subscribing witnesses, is by calling one of them; unless person 17. It may be laid down as a general rule, that Copies. wherever original instruments can be obtained, no inferior evidence of their contents is admissible; but where the record, the contents of which are necessary to be given in evidence, is public property, and cannot be obtained by subpoena, or other process, from the place where it ought always to remain; or where, though private property, it is not produced by the party possessing it; or, in such instances as parish registers, and other depositaries where the contents concern the public, attested copies of such records and entries are good evidence. (v) Before the conclusion of what is to be admitted respect- Stamps on ining documentary evidence, it is necessary to observe struments. briefly on the production of those instruments as evidence, to the validity of which instruments, for their principal and original purpose, stamps are necessary. To enter on a comparison of conflicting cases respecting the admissibility of instruments without having been stamped (which, to give them validity, ought to have stamps), as evidence in suits and prosecutions, would much exceed the prescribed limits of this work, especially as many nice distinctions have been made respecting their admissibility in civil, and in criminal proceedings. But it may be laid down as a general rule, at least for the purpose of all those instruments that are likely to come in question before a court of session of the peace, that whenever an instrument becomes in any way the direct subject of a prosecution, it cannot be given in evidence, unless it have the proper stamp, because by the stamps act, without a stamp, it cannot be read as a genuine instrument. Such an instrument, however, being without a stamp or having an improper stamp, is admissible as evidence for collateral purposes. Thus, though in a prosecution for stealing an unstamped instrument, sent in a letter, which, to give it any value, must have a stamp, it could not be produced in evidence against a letter-carrier, to prove the stealing of the instrument itself; yet it might be produced merely as a piece of paper which can be identified, in order to prove the purloining of the letter. (w) But when an agreement on unstamped paper had been (v) Peake, Ev. 91. (w) 3 B. and P. 316. proof of handwriting. destroyed, parol evidence of its contents was not allowed to be given, even though it appeared that it had been so destroyed by the wrongful act of the party who took the objection.(x) Private writings 18. Private writings, not under seal, are proved by evidence of the handwriting of the party by whom they purport to be written or signed. This proof may be given either by a person who has seen the party write; or by one who has received letters from him in the course of correspondence, and acted on them. (y). It is never necessary that a witness should swear positively to handwriting; it is sufficient if, having means of knowledge, he swears that he believes it to be the handwriting of the individual alleged to be the writer; this belief may be formed even from once seeing the party write; (2) and it will be a question whether, under all the circumstances, the belief is such as the jury can safely act on. Although the belief of a witness as to the handwriting of another must be produced by a comparison made in his own mind between the writing produced and other writings which he has seen at other times; yet the jury are never allowed to judge for themselves, by comparing in court the writings in question with other acknowledged or established writings of the prisoner. Who generally competent. § 11. OF THE COMPETENCY OF WITNESSES. All persons are competent witnesses who are of sane mind; capable of understanding and of feeling the obligation of an oath; and not disqualified by infancy, relationship, or interest in the event of a cause. The parties, then, who are disqualified from giving evidence are those who, from tender age or defect of intellect, are incapable of understanding the obligation of an oath; those who, from a total and admitted want of religious belief, are incapable of feeling its obligations; those whom the law has branded as infamous; and those who, from relationship or interest, are supposed too nearly connected with the result to render it safe that their evidence should be submitted, even with the utmost caution, to a jury. 1. The first class are persons incompetent from defect of understanding, as children, lunatics, and idiots. Mere youth, however tender, although a proper ground for (x) Rippiner v Wright, 1 Chit. R. 478. (y) Cary v. Pitt, Peake, Ev. App. 85. (z) Harrington v. Fry, 1 Ry. and Mo. 90; Lewis v. Sapio, 1 Mo. and Malk. N. P. C. 49. cautious investigation as to the understanding, is never in itself a reason for rejecting the testimony of a child. Upon this subject, experience shews that no certain rule as to age could be adopted with propriety; if the child, of how tender age soever, comprehends the difference between truth and falsehood, and believes that falsehood is a crime and will be punished, he may be sworn and examined; if he has no such sense, though of an age when such knowledge might reasonably be expected, he cannot be sworn. (a) The same rule applies to persons who are surmised to be insane or idiots; the Court is to be satisfied by its own examination of the state of their perceptions, and will admit or exclude them as may seem best to its discretion. A person with a mere organic defect, as one who is deaf and dumb, is not, therefore, incompetent, provided it appears, from the examination of those who are acquainted with his habits, that he has a sense of the obligation of an oath on the conscience, and a power of understanding and answering questions. (b) In this case, some person acquainted with the signs by which he is accustomed to convey his meaning must be sworn truly to interpret between the Court and the witness; and, being so sworn, must first interpret and explain to him the oath, and inform the Court that he understands and accepts it; and then must interpret to him the questions asked, and return his answers as he gives them. In cases of great importance, where a child, who is a necessary witness to support the charge, is found unfit to give evidence from the mere absence of instruction, a judge will sometimes postpone the trial till the next assizes, in order that the child may be properly taught in the interval; but this course can scarcely be called for by any case likely to occur at sessions. 2. The second class of persons incompetent are those Persons inco:nwho deny all religious sanctions of every kind, and petent from want of religious who, therefore, understand no peculiar sanctity in an belief. appeal to Heaven, It is not, however, necessary that the party should believe in the Old or New Testament; nor is it any objection that his belief is of the wildest and most superstitious kind; if he believes in a superior intelligence, the punisher of falsehood, he is a competent witness. (c) Jews, Mahometans, Gentoos, and Deists, may, therefore, be sworn in such manner as, according to (a) 2 Stark. Ev. 393. (b) The King v. Rushton, 1 Leach, 455. Case of Quakers. their own apprehension, is binding on their consciences. It has been sometimes allowed to a counsel to question witnesses on the voir dire as to their religious belief; but it may be doubted whether a witness would not be justified in insisting, when so questioned, on the simple answer that he considers the oath administered in the usual form binding on his own conscience, and in declining to answer further; for a witness is always privileged from answering that which tends to his disgrace; and as a confession, thus forced from him, of a disbelief in a state of retribution, would certainly be esteemed as disgraceful in a court of justice, there seems no reason why a person should thus be taxed, perhaps to his own infinite prejudice and misery, merely because he appears to perform a public duty in obedience to a subpoena. At all events, it is quite clear that a witness may properly refuse to answer any questions which go beyond an inquiry into his belief in a superior Being to whom man is answerable; and that it is the duty of counsel to refuse, however urged, to put such questions, which are altogether impertinent and vexatious. All witnesses, indeed, must be sworn after a form, the obligation of which they acknowledge; as a Jew on the Pentateuch, with his head covered; a Mahometan on the Alcoran; a Scotch Covenanter after the solemnities of his sect; but if a witness himself declares that he acknowledges the sanction of the oath in the usual form, there seems no just ground for troubling him with further questions. It is certain, that in whatever form he consents to be sworn, he will be liable, if he swear falsely, to the penalties of perjury. The case of Quakers rested on another ground than that of incompetency; they did not insist on a particular kind of oath; but they refused to be sworn at all; admitting that on their affirmation they were solemnly bound to perform the duty of speaking the truth; but refusing to consider it as an oath. In deference to a scruple firmly and consistently maintained, their affirmation was allowed in civil cases; and in criminal cases, their excuse was received so as to prevent them from suffering the penalties of contumacy; but the effect was occasionally unfortunate for the purposes of justice. By a recent statute, this evil has been removed, and the affirmations of Quakers, and, of another class of very respectable Dissenters, the Moravians, who had formed a similar scruple, are received in criminal cases. (d) That act, reciting that it is expe (d) 9 Geo. 4. c. 32. s. 1. dient that Quakers and Moravians should be allowed to give evidence upon their solemn affirmation in all cases, criminal as well as civil," enacts, "that every Quaker and Moravian who shall be required to give evidence in any case whatever, criminal or civil, shall, instead of taking an oath in the usual form, be permitted to make his or her solemn affirmation in the words following:- I, A. B. do solemnly, sincerely, and truly declare and affirm;' which said affirmation and 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 affirmation or declaration 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." famy. 3. The third class of persons who are incompetent as Persons incomwitnesses are those whom the law considers as infamous. petent for inThese are all persons convicted of treason or capital felony whose competency is not restored by a pardon; all persons convicted of perjury, or subornation of perjury; and persons convicted of barratry and other misdemeanors, including the charge of falsehood, and affecting the public administration of justice, who have not completed the endurance of the punishment to which they have been sentenced. In all cases where a capital convict is pardoned on condition of suffering certain punishment, the endurance of the punishment fulfils the condition, and restores his competency. (e) Before the abolition of benefit of clergy, the allowance of clergy in clergyable felonies, and the endurance of the mitigated punishment, restored the offender to competency. The statute 7 and 8 Geo. 4. c. 28. abolishing the benefit of clergy, and affixing punishments directly to the offences, was probably intended to have the same effect; but, as doubts were entertained whether it had distinctly accomplished the object, the 9 Geo. 4. c. 32. s. 3. enacts, "that where any offender hath been, or shall be, convicted of any felony not punishable with death, and hath endured, or shall endure, the punishment to which such offender hath been, or shall be, adjudged for the same; the punishment so endured hath, and shall have, the (e) 2 Hale, 278. |