1902 Encyclopedia > Witness


WITNESS, in law, is a person who gives or might give evidence in a court of justice. The law of witnesses is on the one hand a branch of the law of EVIDENCE (q.v.), and on the other is closely connected with the JURY (q.v.), for the jurors were originally chosen for their knowledge or presumed knowledge of the facts in dispute. The part of the Scotch juror's oath " and no truth conceal " is an obvious survival of the time when the juror was a witness. It is only by gradual steps that the law has reached its present stage in the United Kingdom and the United States. At present the disabilities of witnesses are few; almost every one is a capable witness, and the main question has become one of credibility rather than of capability. It was far otherwise in Roman and ecclesi-astical law and in the older law of England and Scotland. A reference to TORTURE will show that in Roman and mediaeval law the testimony of many persons was not admissible without the application of torture. At the same time a large body of possible witnesses was excluded for reasons which have now ceased to be considered expedient, and was subject to rules which have long become obsolete. In Roman law witnesses must be idonei, or duly qualified. Minors, certain heretics, infamous persons (such as women convicted of adultery), and those interested in the result of the trial were inadmissible. Parents and children could not testify against one another, nor could slaves against their masters, or those at enmity with the party against whom their evidence was offered. Women and slaves were under a disability to be witnesses to a will. The canon law extended the disability to testify to an excommunicated person, and to a layman in a criminal charge against a clerk, unless he were actually the prosecutor. In the days of trial by battle a party could render a witness against him incompetent by challenging and defeating him in the judicial combat. A policy similar to that of Roman law was followed for centuries in England by excluding the testimony of parties or persons interested, of witnesses for a prisoner, and of infamous persons, such as those who had been attainted, or had been vanquished in the trial by battle, or had stood in the pillory. All these were said vocem non habere. Many systems of law excluded witnesses from policy of a local or temporary nature. WOMEN (q.v.) were generally regarded as wholly or partially incompetent. The evidence of Jews was frequently rejected in Spain and other countries during the 14th and 15th centuries. In the United States, while slavery was lawful, the evidence of slaves (and in some States that of free persons of colour) was not received for or against whites. There were in Roman law some hard and fast rules as to number. Seven witnesses were necessary for a will, five for a mancipatio or manumission or to determine the question whether a person were free or a slave. Five was also the number necessary under the Liber Feudorum for proving ingrati-tude to the lord. Two were generally necessary, as in the Mosaic law, as a minimum number to prove any fact. Unius res})onsio testis omnino non audiatur are the words of a constitution of Constantine. The evidence of a single witness was simply semiplena probatio, to be supplemented, in default of a second witness, by torture or by reference to oath. In the canon law the evidence of a notary was generally equivalent to that of two ordinary witnesses. The evidence of the pope and that of a witness who simply proved baptism or heresy (according to some authorities) are perhaps the only other cases in which canon law dispensed with confirmatory evidence. In England one witness is as a rule sufficient. But in certain cases two or more are necessary. Two must attest a marriage or a will, and two are necessary for a conviction of perjury, treason, and some other crimes, such as offences against the Act of Supremacy of Elizabeth. In the United States the number necessary for the attestation of a marriage or will is not uniform in all the States. Sometimes a special number has been fixed in England by statute in excep-tional cases. A curious Act of Richard II., passed in 1383 (6 Ric. II. st. 2, c. 5), fixed the number of compurgators necessary to free an accused person from complicity in the peasant revolt at three or four. Corroborative evidence —not necessarily the evidence of another witness, but corroboration in a material particular—must in England be given to entitle the complainant or plaintiff to succeed in an affiliation summons or in an action for breach of promise of marriage. The evidence of an accomplice also needs confirmation, if not in strict law, at least in practice. The number of witnesses had in one instance in old Scotch law the curious effect of determining the punishment. By the assizes of King William, the ordeal of water was under-gone by the accused on the oaths of three witnesses; if to them the oaths of three séniores were added, the penalty was immediate hanging. Witnesses need not now in English law be idonei or credible, except in the case of witnesses to bills of sale under the Bills of Sale Act, 1882. The "credible " of the Statute of Frauds has not been repeated in the Wills Act (see WILL). In the case of dishonour of a foreign bill of exchange the evidence of a notary is required, and a solicitor must attest a warrant of attorney, as was also required for a bill of sale from 1878 to 1882.

The modern law of witnesses has been already treated to a considerable extent under EVIDENCE. It should be noticed that since the date of that article a new rule of great importance has received statutory sanction. The rules of the Supreme Court, 1883 (Ord. xxxvi., r. 38), enable the judge in all eases to disallow any questions put in cross-examination of any party or other witness which may appear to him to be vexatious and not relevant to any matter proper to be inquired into in the cause or matter. It will suffice here to give a brief statement of the law as it at present stands, rather by way of supplement to what has been already said than as an ex-haustive notice. Witnesses may be either sworn or unsworn, either judicial or non-judicial, the unsworn and non-judicial almost coin-ciding. The evidence of judicial witnesses may be given viva voce or by deposition or affidavit, the latter being the more usual course in chancery and bankruptcy proceedings. Where evidence is taken on commission, the usual course where the witness is out of the jurisdiction, the questions and the witness's answers are produced in writing to the court which issued the commission, it being a delegation of the authority of the court. As a rule all witnesses coming before a court of justice, whether to give evidence as to a fact or a professional opinion, must be sworn (see OATHS). To this rule certain exceptions exist at common law and have been introduced by statute, the one of the most importance being the law by which persons objecting to take an oath may affirm. Another exception was introduced by the Criminal Law Amendment Act, 1885, the Act allowing the evidence of a child of tender years to be received without oath. But to ensure a conviction such evidence must be corroborated. At common law a person merely producing documentary evidence need not as a rule be sworn. A witness, too, may be examined unsworn on the voir dire, as it is called, to decide the preliminary question of his competency. Non-judicial witnesses are those who attest an act of unusual importance, for the due execution of which evidence may afterwards be required. They are either made necessary by law, as the witnesses to marriages and wills, or used by general custom, as the witnesses to deeds. In some cases the attestation has become a mere form, such as the attestation of the lord chancellor to a writ of summons (see WRIT). Those witnesses whose evidence is not received may be divided into incompetent and privileged,—classes which must be carefully distinguished. The evidence of the former is wholly inadmissible ; that of the latter is admissible if they waive their privilege. Among the incompetent witnesses are those of too tender years to under-stand the nature of an oath, idiots and lunatics, those convicted of perjury under an Act of Elizabeth (see PERJURY), and accused persons or their husbands or wives (except wdiere the trial is for treason or for personal injuries inflicted by one spouse against the other). The exclusion of the latter class has led to much disussion among English lawyers. In 1878 the Criminal Code Commission recommended that prisoners should be allowed to give evidence on their own behalf on oath. Several recent Acts have modified in some degree the rigour of the common law. The accused, or the husband or wife of the accused, may give evidence on oath in certain proceedings, nominally criminal, substantially of a civil nature, such as indictments for nuisance or non-repair of a highway (40 Vict, and 41 Vict. c. 14). The same is the case under the Merchant Shipping, Licensing, and Customs Acts, the Married Women's Property Act, 1882, the Criminal Law Amendment Act, 1885, the Merchandise Marks Act, 1887, and other Acts. Up to 1702 the prisoner was under the further disability of not being able to have his witnesses examined on oath. This harsh rule, borrowed from Roman law, was not abrogated in Ireland until 1711, in Scotland until 1785. Where a witness is competent, he is also compellable, except the king. The only privileged witnesses practically now recognized in England are high officers of state, executive or judicial, and members of the legal profession, who need not divulge what has been disclosed to them in professional confidence. Clergy and medical men are not privileged, though attempts have sometimes been made to protect disclosures to them, especially to priests in the confessional. Any witness is privileged from answering questions the answers to which might expose him to penalty or forfeiture or to a charge of adultery. Lists of wit-nesses intended to be called by the crown must be supplied to the accused in charges of TREASON (q.v.), and are generally on the back of the indictment in ordinary cases, though the prosecution is not bound to call them. In Scotland lists of the witnesses are supplied in all cases, and in the United States in capital charges.

The mode of securing the attendance of a witness is by subpoena (see WRIT) in civil actions in the High Court, by subpoena or RECOGNIZANCE (q.v.) before an assize court, by SUMMONS (q.v.) in a county court or court of summary jurisdiction. In exceptional cases attendance may be secured by writ of habeas corpus ad testificandum or by WARRANT (q.v.) of a secretary of state. In Scotland attendance is generally secured by citation. Disobedience to a sub-poena is punishable as CONTEMPT OF COURT (q.v.). False evidence renders the offender liable to the penalties of perjury. Various
Acts of Parliament deal with compelling appearance before committees of parliament, courts of martial, and other tribunals of a special nature. A witness is protected from any action for slander for words spoken in the witness box. He is also protected from arrest eundo, morando, et redeundo. The scale of allowances to witnesses depends upon orders of court made with the approval of the Treasury. It is graduated according to the social position of the witnesses. (J. Wt.)

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