vailed in the canon law (m), which also, as might have been expected, rejected the evidence of excommunicated persons, at least when tendered against such as were orthodox (n). Even whole races and nations have occasionally been brought within the pale of exclusion; as in some parts of the West Indies, where the evidence of a negro slave was not receivable against a free person (0); and in India, where that of a Hindoo seems not to have been receivable against a Mohammedan (p). Although the English law never went so far in this respect as those of most other countries, yet even among us the number of grounds of incompetency to give evidence was formerly very considerable. They have been much reduced in

dirimendis litigiis nos interpellaverunt, nostro indigentes oraculo, ut eis referetur quid de testibus hæreticis statuendum sit, utrumne accipiantur eorum testimonia, an respuantur, sancimus, contra orthodoxos quidem litigantes nemini hæretico, vel his etiam qui Judaïcam superstitionem colunt, esse in testimonia communionem : sive utraque pars orthodoxa sit, sive altera. Inter se autem hæreticis, vel Judæis, ubi litigandum existimaverint, concedimus fœdus permixtum, et dignos litigatoribus etiam testes introducere: exceptis scilicet his, quos vel Manichaicus furor (cujus partem et Borboritas esse manifestum est), vel Pagana superstitio detinet: Samaritis nibilominus, et qui illis non absimiles sunt, Montanistis, et Tascodrogitis, et Ophitis; quibus pro reatus similitudine omnis legitimus actus interdictus est. Sed his quidem, id est, Manichæis, Borboritis, et Paganis, nec

non Samaritis, et Montanistis, et Tascodrogitis, et Ophitis omne testimonium, sicut et alias legitimas conversationes sancimus esse interdictum. Aliis vero hæreticis tantummodo judicialia testimonia contra orthodoxos, secundùm quod constitutum est, volumus esse inhibita. Cæterum testamentaria testimonia eorum, et quæ in ultimis elogiis, vel in contractibus consistunt, propter utilitatem necessarii usus, eis sine ulla distinctione permittimus, ne probationum facultas angustetur."

(m) Lancel. Inst. Jur. Can. lib. 3, tit. 14, § 15; Decretal. Greg. IX. lib. 2, tit. 20, § 21; Ayl. Par. Jur. Can. Angl. 448.

(n) Lancel. in loc. cit.

(0) Browne's Civil Law, vol. i. p. 107, note; Shephard's Colonial Practice of St. Vincent, 69, 70.

(p) See Arbuthnot's Reports of the Foujdaree Udalut, p. 1, and Preface, p. xxiii.

modern times, by the decisions of the judges and the interference of the legislature (r).


§ 64. One of the strangest and most absurd appli- Testimony of cations of this principle was the rejecting, or at least regarding with suspicion, the testimony of women as compared with that of men. The Hindu code, it appears, rejected their evidence absolutely (s); as likewise did Mohammed on charges of adultery, and probably in other instances (t). Nor were these merely Asiatic views. The law of ancient Rome, while admitting their testimony in general (u), refused it in certain cases (v). The civil and canon laws of medieval Europe seem to have carried the exclusion much further (x); for which the following reason is given by Mascardus (y). "Fœminis plerumque omninò non creditur, ob id duntaxat, quod sunt fœminæ, quæ ut plurimum solent esse fraudulentæ, fallaces, et dolosa." And Lancelottus, in his Institutiones Juris Canonici, lays down in the most distinct terms that women cannot in general be witnesses, citing the language of Virgil, "Varium et mutabile semper fœmina" (~),—not the only instance in which poetry has been invoked to justify maxims and laws indefensible by reason. That these rules were plastic enough, like the other rules of those systems, and admitted many ex

(r) On the subject of the incompetency of witnesses, see Part 1, ch. 2, and Part 2, ch. 2.

(s) Translation of Pootee, ch. 3, sect. 8, in Halhed's Code of Gentoo Laws.

(1) See Gibbon's History of the Decline and Fall of the Roman Empire, ch. 50; Hamilton's Translation of Hedàya, vol. i. p. 382; and Arbuthnot's Reports of the Foujdaree Udalut, p. 3.

(u) Dig. lib. 22, tit. 5, l. 18.

(v) Dig. lib. 22, tit. 5, l. 18; and see the note by Phillimore to the 3rd Ed. of Smith's Leading Cases, vol. 2, p. 250.

(r) Mascard. de Prob. Concl. 763; Lancelott. Inst. Jur. Can. lib. 3, tit. 14, § 10. See also Heinec. ad Pand. Pars 4, § 127 (2).

(y) Mascardus de Prob. Concl. 763, NN. 2, 3.

(z) Æn. 4, 569, 570.

ceptions, may easily be conceived (a); but the following extract, from an able French jurist of our time, shows how long the principle held its ground on the continent (b). "After women had been admitted to bear testimony by an ordinance of Charles VI." (of France) "of the 15th Nov. 1394, it was long before their evidence was considered equivalent to that of a man. Bruneau, although contemporary of Mde. de Sévigné, did not scruple to write, in 1686, that the deposition of three. women was only equal to that of two men. At Berne, so late as 1821; in the Canton of Vaud, so late as 1824, the testimony of two women was required to counterbalance that of one man. We will say nothing of the minor distinctions with which the system was complicated, such, for instance, as the principle that a virgin was entitled to greater credit than a widow-magis creditur virgini quàm viduæ." In Scotland also, until the beginning of the 18th century, sex was a cause of exclusion from the witness box in the great majority of cases (c). Even our old English lawyers occasionally rejected the evidence of women, on the ground that they are frail (d). Sir Edward Coke (e), in the reign of Charles I., without a single note of dissent or disapprobation, writes thus:"In some cases women are by law wholly excluded to bear testimony; as to prove a man to be a villein mulieres ad probationem status hominis admitti non debent." It seems also that in very early times their testimony was insufficient to prove issue born alive, so as to

(a) See Mascard. in loc. cit. (b) Bonnier, Traité des Preuves, §203.

(c) Hume, Crim. Law of Scotland, vol. 2, pp. 339, 340; Burnett, Crim. Law of Scotland, 388-390. See also 20 Ho. St. Tr. 44, note.

(d) Fitzh. Abr. Villenage, pl.

37; Bro. Abr. Testmoignes, pl. 30. (e) Co. Litt. 6 b.

(f) Acc. Fitzh. Abr. Villenage, pl. 37; Bro. Abr. Testmoignes, pl. 30; who refers to a case in the 13 Edw. I.; Britton, c. 31. See, however, the case on the eyre of York, in the 13 Hen. III., cited by Fitzh. Villenage, pl. 43.

entitle a man to be tenant by the curtesy (g); neither could they prove the summons of jurors in an assize (h).

certain number

§ 65. One of the most obvious modes of guarding 5. Requiring a against misdecision consists in the exacting a certain of media of number of witnesses or other media of proof. The great proof. advantage of a plurality of witnesses consists in this, Advantages of. that a false story runs a strong risk of being detected by some discrepancy in their testimony, especially if they are questioned skilfully and out of the hearing of each other (i). But, however salutary such a rule may Evils of. be in countries where mendacity and perjury are so common and notorious as scarcely to be looked upon as crimes (k), and also in some cases of a serious and peculiar nature, it is certainly not based on any principle of general jurisprudence, and wherever so considered has brought immense evils in its train (7).

§ 66. The law of Moses in certain criminal cases, and the New Testament in certain ecclesiastical matters,

(g) See Hargrave's Co. Litt. 29 b, note 5.

(h) Co. Litt. 158 b.

(i) A celebrated application of this principle is to be found in the story of Susannah and the Elders, in the Apocrypha.

(k) See the picture drawn by Cicero, in his oration for Flaccus, of the profligacy of the Greeks in this respect. "In some countries," says Bentham, 3 Jud. Ev. 168-9," there have been said to exist a sort of houses-of-call, or register-offices, for a sort of witnesses of all work, as in London for domestic servants and workmen in different lines, and in some parts of Italy for assassins.

Ireland, whether in jest or in
earnest, was at one time noted
for breeding a class of witnesses,
known for trading ones by a sym-
bol of their trade, straws sticking
out of their shoes. Under the
Turkish Government, it seems
generally understood that the
trade of testimony exists upon a
footing at least as flourishing as
that of any other branch of trade."
The morals of medieval Europe
are well known to have been
very low on this subject; and all
accounts agree in describing hard-
ened perjury as still rife through-
out the East.

(1) See infra, §§ 69 et seq.

Practice of the canonists.

civilians and

require two witnesses; whence the civilians and canonists (the latter at least) inferred a divine command to exact that number in all cases, both civil and criminal (m). The text of the Imperial Code is positive: “Manifestè sancimus, ut unius omninò testis responsio non audiatur, etiamsi præclaræ curiæ honore præfulgeat (n): Solà testatione prolatam, nec aliis legitimis adminiculis causam approbatam, nullius esse momenti, certum est (o)." And that of the Decretals runs thus (p): "Licèt quædam sint causæ quæ plures quàm duos exigant testes, nulla est tamen causa, quæ unius testimonio (quamvis legitimo) terminetur." Sometimes even this was insufficient. Five witnesses were required by the imperial law to prove certain payments (q): the canon law occasionally required five, seven, or more, witnesses to make full proof (r); and the number necessary on criminal charges brought against persons in office in the church is almost incredible (s). By the law of Mohammed a woman

(m) See infra, Part 3, book 2, ch. 7.

(n) Cod. lib, 4, tit. 20, 1. 9.

(0) Cod. lib. 4, tit. 20, 1. 4. Bonnier, in his Traité des Preuves, § 201, has an able argument to show that this principle was not established in the Roman jurisprudence until the time of the Lower Empire, and had its origin in the constitution of the Emperor Constantine, Cod. lib. 4, tit. 20, 1. 9, which (Bonnier thinks) converted into a rule of law what had previously been laid down as matter of advice and caution. See further on this subject, Huberus, Præl. Jur. Civ. lib. 22, tit. 3, n. 2, and infra, Part 3, book 2, ch. 7.

(P) Decretal. Greg. IX. lib. 2, tit. 20, c. 23.

(9) Cod. lib. 4, tit. 20, 1. 18.

(7) Ayl. Par. Jur. Can. Angl. 444; 1 Greenl. Ev. § 260 a, note (2), 4th Ed.; Evans v. Evans, 1 Roberts. Eccl. R. 171.

(s) Fortescue, in his Treatise de Laud. Leg. Angl. cap. 32 (written before the Reformation), tells us of a "lex Generalis Consilii, quâ cavetur, ut non nisi duodecim testium depositione cardinales de criminibus convincantur." Waterhouse, in his Commentary on Fortescue, p. 405, says that he is not aware what council is here referred to, nor have we been able to find it; but he refers to the 2nd Synod of Rome, under Sylvester, as given in the Concilia of Binius, vol. i. p. 315, the third canon of which is as follows. "Non damnabitur


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