rejected; for whether she was instructed in religious knowledge previously or subsequently to the commission of the crime in question, or whether the instruction was intended to excite permanent feelings or merely to secure the temporary purpose of enabling her to swear to the facts she had witnessed, can signify nothing, provided that at the time when she was called upon to give her evidence, she was really aware of the solemn responsibility which devolved upon her of speaking the truth. Accordingly in Ireland it has been held that even on an indictment for murder, an infant might be examined, though her religious knowledge had been communicated to her after the perpetration of the offence, and with the sole object of rendering her a competent witness." R. v. Milton, Ir. Cir. Rep. 61, per Doherty, C: J. In R. v. Nicholas, 2 C. & K. 246, 61 E. C. L., Pollock, C. B., refused to put off the trial in order that a child of six years old might receive instruction, but said that he thought there were cases in which such application might be entertained; and that the judge should act according to his discretion.

Where a case depends upon the testimony of an infant, it is usual for the court to examine him as to his competency to take an oath, previously to his going before the grand jury, and if found incompetent, for want of proper instruction, the court will, in its discretion, put off the trial, in order that the party may, in the meantime, receive such instruction as may qualify him to take an oath. 1 Stark. Ev. 94, 2nd ed. This was done by Rooke, J., in the case of an indictment for rape, and approved of by all the judges. 1 Leach, 430 (n); 2 Bac. Ab. by Gwill. 577 (n).1 An application to postpone the trial upon this ground ought properly to be made before the child is examined by the grand jury; at all events, before the trial has commenced, for if the jury are sworn, and the prisoner is put upon his trial before the incompetency of the witness is discovered, the judge ought not to discharge the jury upon this ground. 1 Phill. Ev. 19, 10th ed., citing R. v. Wade, post, tit. Practice. There the witness was *an adult, but the principle seems to apply equally to the case of a child. If a child is, from want of understanding, in- [*117 capable of giving evidence upon oath, proof of its declaration is inadmissible. R. v. Tucker, 1808, MS.; 1 Phill. Ev. 10, 10th ed.; Anon., Lord Raym, cited 1 Atk. 29.

Degree of credit to be given in testimony of infants. It is said by Blackstone, that "where the evidence of children is admitted, it is much to be wished, in order to render it credible, that there should be some concurrent testimony of time, place, and circumstances, in order to make out the fact; and that the conviction should not be grounded solely on the unsupported testimony of an infant under years of discretion." 4 Com. 214. 4 Com. 214. In many cases undoubtedly the statements of children are to be received with great caution, but it is clear that a

1 Jenner's Case, 2 Rog. Rec. 147. S.

See Commonwealth v. Lynes, 142 Mass. 577; Coon v. People, 99 Ill. 368; s. c. 39 Am. Rep. 28.

It was said by Willes, C. J., that he was clearly of opinion that those infidels (if any such there be) who either do not believe in a God, or if they do, do not think that he will either reward or punish them in this world or the next, cannot be witnesses in any case, nor under any circumstances, for this plain reason, that an oath cannot possibly be any tie or obligation upon them. Omichund v. Barker, Willes, 538, 1 Atk. 21. A witness was rejected on this ground by Grose, J., at the Bedford Spring Assizes, 1789, on an indictment for murder. Anon., 1 Leach, 241 (n).

An adult witness will, of course, be presumed to profess those principles of religion which render him a competent witness.

What the exact question is which is the subject of inquiry in such a case does not appear to be fully decided. The witness must believe in the existence of a Divine Power, who would be offended by perjury, and would be capable of punishing it. The doubt has been whether it is also necessary that the witness should believe in a future state of rewards and punishments; from the case of Omichund v. Barker, it seems that Willes, C. J., thought that the expectation of temporal punishment proceeding from a Divine Power was sufficient.

There has also been some dispute as to the mode in which the state of the witness's belief is to be ascertained. The preponderance of authority is in favor of the witness being himself examined as to his religious opinion. 1 Phill. Ev. 17, 10th ed.; The Queen's case, 2 B. & B. 284, 6 E. C. L.; R. v. Taylor, 1 Peake, N. P. 11; R. v. White, 1 Lea, 430; R. v. Serva, infra; Best, Ev. 208. It is, however, the opinion of some writers (and this opinion is supported by the practice in America), that the witness ought not to be questioned at all, but that the fact should be proved by the oath of persons acquainted with him. Mr. Best (ubi supra) strongly contends that evidence both of the party himself and others is admissible on the point.

The inquiry can never be carried further, if the witness himself asserts his belief. Thus in R. v. Serva, 2 C. & K. 53, 61 E. C. L., a negro, who was called as a witness, stated, before he was sworn, that he was a Christian, and had been baptized; Platt, B., held that he might be sworn, and that no further question could be asked before he

was so.

In R. v. James, 6 Cox, C. C. 5, after the jury had delivered their verdict, it was discovered that one of the witnesses had not been sworn; the jury were then directed to reconsider their verdict, and to leave out of their consideration the evidence given by the unsworn witness.

It is not yet settled by the Scotch law, whether a witness professing his disbelief in a God, and in a future state of rewards and punishments is admissible. "When the point shall arrive," says Mr. Alison, "it is well worthy of consideration, whether there is any rational ground for such an exception;-whether the risk of allowing unwilling witnesses to disqualify themselves by the simple expedient of alleging that they are atheists, is not greater than that of admitting

the testimony of such as make this profession." 2 Alison, Prac. Cr. L. *Scotl. 438. The policy of the rule has also been questioned by English text writers. Best, Ev. 212.

[*121

Form of the oath. The particular form or ceremony of administering an oath is quite distinct from the substance of the oath itself. 1 Phill. Ev. 14, 10th ed. The form of oath under which God is invoked as a witness, or as an avenger of perjury, is to be accommodated to the religious persuasion which the swearer entertains of God; it being vain to compel a man to swear by a God in whom he does not believe and whom he therefore does not reverence. Puffend. b. 4, c. 2, s. 4. The rule of our law therefore is, that witnesses may be sworn according to the peculiar ceremonies of their own religion, or in such a manner as they may consider binding on their consciences.1 1 Phill. Ev. 14, 10th ed. Per Alderson, B., in Miller v. Salomons, 7 Ex. R. 534, 535; and per Pollock, C. B., Id. 558. A Jew consequently is sworn upon the Pentateuch, with his head covered. 2 Hale, P. C. 279; Omichund v. Barker, Willes, 538. But a Jew who stated that he professed Christianity, but had never been baptized, nor even formally renounced the Jewish faith, was allowed to be sworn on the New Testament. R. v. Gilham, 1 Esp. 285. A witness who stated that he believed both the Old and New Testament to be the word of God, yet as the latter prohibited, and the former countenanced swearing, he wished to be sworn on the former, was permitted to be sworn. Edmonds v. Rowe, Ry. & Moo. N. P. C. 77. So where a witness refused to be sworn in the usual form, by laying his right hand on the book, and afterwards kissing it, but desired to be sworn by having the book laid open before him, and holding up his right hand; he was sworn accordingly. Colt v. Dutton, 2 Sid. 6; Willes, 553. And where on a trial for high treason, one of the witnesses refused to be sworn in the usual manner, but put his hands to his buttons ; and in reply to a question, whether he was sworn, stated that he was sworn and was under oath; it was held sufficient. R. v. Love, 5 How. St. Tr. 113. A Scotch witness has been allowed to be sworn by holding up the hand without touching the book, or kissing it, and the form of the oath administered was, "You swear according to the custom of your country, and of the religion you profess, that the evidence, etc., etc." R. v. Mildrone, Leach, 412; Mee v. Reid, Peake, N. P. C. 23. Lord George Gordon, before he turned Jew, was sworn in the same manner, upon exhibiting articles of the peace in the King's Bench. MS. M'Nall on Ev. 97. In Ireland it is the practice to swear Roman Catholic witnesses upon a Testament with a crucifix or cross upon it. Id. The following is also given as the form of a Scotch Covenanter's oath: "I, A. B., do swear by God

1 That form of oath is to be used which the witness holds obligatory. Curtiss v. Strong, 4 Day's Con. Rep. 51. A Chinaman who stated that he did not know the name of the book he was sworn on, but that he believed that if he should state anything untrue the court would punish, and that after his death, he would "go down there," making an emphatic gesture downward with his hand, held to be a competent witThe Memmic, 1 Bened. D. C. 490. S.

ness.

General rules. The various statutes, and the cases upon them, with respect to the taking of oaths by witnesses, are of diminished importance in consequence of certain recent statutes to be presently noticed, post, p. 122, et seq.; but it may still become necessary in some cases, to refer to the old law upon the subject. It is an established rule that all witnesses who are examined upon any trial, civil or criminal, must give their evidence under the sanction of an oath, or some affirmation substituted in lieu thereof. This rule is laid down as an acknowledged proposition by some of our earliest writers; Sheppard's Abridg. Tryal; and it appears to be of universal application, except in the few cases in which a solemn affirmation has been allowed by statute (see post) in lieu of an oath. No exemption from this obligation can be claimed in consequence of the rank or station of a witness. A peer cannot give evidence without being sworn; Lord Shaftsbury v. L. Digby, 3 Keb. 631; R. v. Lord Preston, 1 Salk. 278; and the same appears to be the case in regard to the king himself; 2 Rol. Abr. 686; Omichund v. Barker, Willes' Rep. 550. The rule also holds even in the case of a judge; Kel. 12; or juryman; Bennett v. Hundred of Hertford, Sty. 233; Fitzjames v. Moys, 1 Sid. 133; Kitchen v. Manwaring, cited Andr. 321; 7 C. & P. 648, 32 E. C. L.; who happens to be cognizant of any fact material to be communicated in the course of a trial. 1 Phill. Ev. 13, 10th ed. An examination on oath implies that a witness should go through a ceremony of a particular import, and also that he should acknowledge the accuracy of that ceremony, to speak the truth. 1 Phill. Ev. 14, 10th ed. It is therefore necessary, in order that a witness's testimony should be received, that he should believe in the existence of a God, by whom truth is enjoined and falsehood punished. Id. 15, 10th ed. It is not sufficient that a witness believes himself bound to speak the truth from a regard to character, or to the common interests of society, or from a fear of the punishment which the law inflicts upon persons guilty of perjury. R. v. Ruston, 1 Leach, C. C. 455. Atheists, therefore, and such infidels as do not possess any religion that can bind their consciences to speak the truth, are excluded from being witnesses. Bull. N. P. 292; Gilb. Ev. 129. Although it was formerly held that infidels (that is to say, persons professing some other than the Christian faith) could not be witnesses, on the ground that they were

1 Where a witness has testified without being sworn, his evidence must be stricken out. Thompson v. State, 37 Texas, 121.

religious and moral obligation; and Richardson, J., added, that if the witness had sworn falsely, he would be subject to the penalties of perjury. Sells v. Hoare, 3 Br. & B. 232, 7 E. C. L.; 7 B. Moore, 36.

Affirmation in lieu of oath. Formerly it was necessary in all cases that an oath, that is a direct appeal to the Divine Power, should be made by the witness. Many conscientious persons have objected to this, and various sects have been established, part of whose religious creed it is to do so. In order to prevent the difficulty which arose from large classes of the community being thus rendered unavailable as witnesses, various statutes have from time to time been passed exempting such persons from the necessity of taking the usual form of oath, and allowing them to substitute a solemn affirmation in its stead. Thus, by the 9 Geo. 4, c. 32, s. 1, U. K., "every Quaker or Moravian who shall be required to give evidence in any case whatsoever, criminal or civil, shall, instead of taking an oath in the usual form, be permitted to make his or her solemn affirmation or declaration, in the words following:-'I, A. B., being one of the people *called Quakers [or one of the persuasion of the people called Quakers, or of the united brethren called Moravians, as the [*123 case may be], do solemnly, sincerely, and truly declare and affirm :' which said affirmation or declaration shall be of the same force and effect in all courts of justice and other places, where by law an oath is required, as if such Quaker or Moravian had taken an oath in the usual form; and if any person making such declaration or affirmation. shall be convicted of having wilfully, falsely, and corruptly affirmed or declared, any matter or thing, which if the same had been sworn in the usual form, would have amounted to wilful and corrupt perjury, every such offender shall be subject to the same pains, penalties, and forfeitures, to which persons convicted of wilful and corrupt perjury are or shall be subject."1

By the 3 & 4 Will. 4, c. 49, U. K., Quakers and Moravians are permitted to take an affirmation or declaration, instead of taking an oath, "in all places, and for all purposes whatsoever, where an oath is or shall be required, either by the common law, or by any Act of Parliament;" and any such affirmation or declaration, if false, is punishable as perjury.

Where a prosecutor, who had been a Quaker, but had seceded from the sect, and called himself an evangelical friend, stated that he could not affirm according to the form, either in the 9 Geo. 4, c. 32, or in the 3 & 4 Will. 4, c. 49, and he was allowed to give evidence under a general form of affirmation; the judges were unanimously of opinion that his evidence was improperly received. R. v. Doran, 2 Lew. C. C. 27; 2 Moo. C. C. 37.

This case led to the passing of the 1 & 2 Vict. c. 77, U. K., which enacts that any person who shall have been a Quaker or a Moravian may make solemn affirmation and declaration, in lieu of taking an

1 A witness who has no objections to be sworn may not be affirmed. Williamson v. Carrol, 1 Harrison, 271. S.