CHAPTER IV. On the personal Qualifications, and Disqualifications of Witnesses. IN the two earlier chapters a sketch has been given of the more general principles of Evidence in their broader classification. To fill up the outline in its detail, Importance of subject. will be the province of the remaining portion of the work. One of the first subjects for consideration is naturally the instruments of testimony; and here the personal qualification, or disqualification, of the Witnesses lies at the threshold. Delivery of Testimony According to English Law, certain persons having religious scruples to taking an oath, are allowed to give their Evidence on affirmation; though under a formal declaration of truth, substituted for the oath, and on Oath. Exception. with the like penalties for perjury. The excepted class was originally confined to certain religious sects called Quakers and Moravians; afterwards extended to one termed Separatists; but an act of 1854 confers the exemption from swearing, on all persons, unwilling from alleged conscientious motives to be sworn, on the court being satisfied of the sincerity of the objection. With this exception, all testimony delivered in English Courts of Justice, or otherwise as part of a legal procedure, whether Bankruptcy, Insolvency, Inquisition, Arbitration or otherwise, is taken under the sanction of an oath. So universal is this, that it extends even to the depositions of Peers of Parliament; whose verdicts when sitting in Judgment in the High Court of Parliament are delivered, and whose answers to suits in Equity are put in, upon Honor. The same principle, it seems too, would 17 and 18 Victoria, C. 125. apply even in the case of the Sovereign; had the Sovereign to appear as a witness in a proceeding. False testimony, when All false testimony thus delivered carries with it an exposure to the penalties of perjury; though to constitute perjury it is necessary that the testimony should be taken in the course of a regular proceeding, and the oath have been administered by, or the declara Perjury. In England. tion made before, an authorized person. This is applicable as much to India as to England; and in the Bengal Presidency it has been laid down in express terms in reference to the Mofussil, that a deposition taken on oath in a private dwelling is illegal; and a charge of perjury cannot be sustained upon it.* The Indian Penal Code (Act II of 1860) in propounding its definition of false evidence, declares (Section 191)-"Whoever being legally bound by an oath or by an express provision of law, to state the truth, or being bound by law to make a declaration on any subject, makes any statement which is false, and which he either knows or believes to be false, or does not believe to be true, is said to give false evidence."-Explanation I, points out that a statement is within the meaning of the clause whether made verbally or otherwise. Section 192 provides:-"Whoever causes any circumstances to exist, or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in Evidence in a Judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement so appearing in evidence, may cause any person who, in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said to fabricate false evidence." In pointing out what is to be taken as a judicial proceeding, within the What under Code a judicial proceeding. meaning of its provisions, Section 193 of the Code supplies the following explanations. *Const. No. 267. I. "A trial before a Court Martial or before a Military Court of Enquiry is a judicial proceeding. II. "An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. III. "An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice is a stage of a judicial proceeding, though that proceeding may not take place before a Court of Justice." Form of Oath according to English Law. Its adaptation to object. According to the form as prevailing in England, and adopted in the Indian Courts in reference to parties coming within the ordinary provisions of English law, the oath when taken pledges the witness to speak the and nothing but the truth;-and it concludes with. the adjuration of the Deity "So help me God!" Nothing could be better framed to meet the purposes of the oath itself. truth, the whole truth, "To lead' says Mr. Bentham 'to a good decision, testimony ought to possess two qualities; it ought to be accurate and complete-to contain nothing but the truth, and the whole truth; that is a just representation of all the facts essential to the case. Testimony may be inaccurate in two ways; I. By positive falsehood, when the witness affirms a fact which did not really happen; II. By negative falsehood when he denies a fact which really did happen. In other words, testimony is inaccurate by false affirmation or by false negation. Testimony is incomplete when it does not state some essential fact which really happened; false, by omission." Tried by the tests here suggested, the formulary is obviously a very perfect one. According to English Law, the religious or invocatory part of the oath and its appeal, are governed by the conscience of the individual; to be learned from himself Addressed to conscience of swearer. Judicial Evidence, p. 49. ૨ previously to swearing; and the oath itself is administered with reference to some outward symbol, supposed to be calculated to imbue the mind with the solemnity of the adjuration. Thus, Christianity being the religion of the Nation, in England the prevailing ceremonial is the kissing by the witness of the Holy Scriptures-ordinarily the New Testament. Those, however, not professing the Christian faith are sworn in the form imagined most binding on their conscience;-the Jew on the Pentateuch;-the Mahomedan on the Koran; and in a case to be found in the books in which a Chinese witness had to be sworn, the course adopted, in conformity with his explanation of the mode of swearing in his own country, was, that being put into the witness box, he immediately knelt down, and a China saucer having been placed in his hand, he struck it against the brass rail in front of the box, and broke it. The oath was then administered to him in these words, (translated by the interpreter into the Chinese language)—“You shall tell the truth and the whole truth; the saucer is cracked; and if you do not tell the truth, your soul will be cracked like the saucer.”* It would be an idle ceremony however to administer an oath to Assumes sense of moral one destitute of a sense of accountability to a accountability. Supreme Being, or incapable of distinguishing the obligations of the appeal :-consequently all persons in either position are by the law of England held incapable of giving evidence ;-that is to say Atheists, Persons professing no religion, Madmen, Idiots, Children of too tender or uninstruct an age, or a Person in a state of drunkenness. The test of competency on the score of religious belief underwent considerable discussion in a case of Omichund v. Barkert which occurred above a century ago; and which, though arising out of certain mercantile transactions at Calcutta, was that of a suit instituted in the Court of Chancery in England, during the Chancellorship of Lord Hardwick. The question was raised upon a commission issued to India to take the testimony of certain Native witnesses there, and the Chancellor * Regina v. Entrehman and Samut, 1, Carrington and Marshman, p. 248. had the assistance of the English Judges in arriving at his decision. It was there settled that the true test was the belief in an Omniscient Supreme Being as the rewarder of truth, and avenger of falsehood; and it is this governing principle which prevails throughout the courts of British India, amid all the varying modifications of belief exhibited by the Native inhabitants of the country. It has been questioned whether the belief in a future state of existence be essential, provided accountability to God in this life be acknowledged. "It may be considered however' says Mr. Taylor as now generally settled in this country as well as in America, that it is not material whether the witness believes that the punishment will be inflicted in this world, or in the next. It is enough if he has the religious sense of accountability to the Omniscient Being, who is invoked by an oath."* Children, With respect to Children the precise age of exclusion has never, in England, been accurately fixed; save that the law will always imply sufficient understanding in one of fourteen years of age. Under that age, it is a question of circumstances, degree of intelligence, and instruction; but the testimony of children eight or nine years old is constantly received. In India, where children arrive at an earlier maturity, a child of this age would probably be considered hardly more advanced than an Indian one of six or seven. In a case of Regina v. Williams tried by Mr. Justice Patteson,† where the evidence of a child of eight years of age was tendered, and the child appeared to have had no religious education but had, subsequently to the events she had been called to prove, received some general instruction from a Clergyman as to the nature of an oath and its obligations, the evidence was rejected; the learned Judge observing : "I must be satisfied that the child feels the binding obligation of an oath from the general course of her religious education. The effect of the *Taylor on Evidence, Vol II, p. 1079. † 7, Carrington and Payne, p. 320. |