See also:

• WITNESS
• WITNESS (from O. Eng. witan, to know)

WITNESS (from O. Eng. See also:

• WITAN, or WITENAGEMOT (from O. Eng. wita, p1. witan, a wise man, and gemot, a meeting, from O. Eng. metan, to meet)

witan, to know)  , in See also:

• LAW
• LAW (0. Eng. lagu, M. Eng. lawe; from an old Teutonic root lag, " lie," what lies fixed or evenly; cf. Lat. lex, Fr. loi)
• LAW, JOHN (1671—1729)
• LAW, WILLIAM (1686-1761)

law, a See also:

• PERSON, OFFENCES AGAINST THE

person who is able from his knowledge or experience to make statements relevant to matters of fact in dispute in a See also:

• COURT
• COURT (from the O. Fr. court, Late Lat. cortis, curtis, a popular form of class. Lat. cohors, gen. cohortis; the mod. Fr. form tour is due to the influence of the Lat. curia, the word used in medieval documents to translate " court " in the feudal sense)
• COURT, ANTOINE (1696-176o)

court of See also:

• JUSTICE (Lat. justitia)

justice . The relevancy and probative effect of the statements which he makes belong to the law of See also:

• EVIDENCE (Lat. evidentia, evideri, to appear clearly)

evidence (q.v.) . In the See also:

• PRESENT

present See also:

• ARTICLE (from Lat. articulus, a joint)

article it is only proposed to See also:

• DEAL

deal with matters concerning the position of the See also:

• WITNESS
• WITNESS (from O. Eng. witan, to know)

witness himself . In See also:

• ENGLAND
• ENGLAND, THE CHURCH OF

England, in the earlier stages of the See also:

• COMMON

common law, the jurors seem to have been the witnesses, for they were originally chosen for their knowledge or presumed knowledge of the facts in dispute, and they could (and can) be challenged and excluded from the See also:

• JURY

jury if related to the parties or otherwise likely to show See also:

• BIAS
• BIAS (from the Fr. biais, of unknown origin; the derivation from Lat. bifax, two-faced, is wrong)

bias (see JURY) . The Scottish jurors' See also:

• OATH (0. Eng. ddh)

oath contains the words " and no truth conceal," an obvious survival from the See also:

• TIME (0. Eng. Lima, cf. Icel. timi, Swed. timme, hour, Dan. time; from the root also seen in " tide," properly the time of between the flow and ebb of the sea, cf. O. Eng. getidan, to happen, " even-tide," &c.; it is not directly related to Lat. tempus)
• TIME, MEASUREMENT OF
• TIME, STANDARD

time when a juror was a witness . See also:

• MODERN

Modern views as to the persons competent to give evidence are very different from those of See also:

• ROMAN

Roman law and the systems derived from it . In Roman law the testimony of many persons comwas not admissible without the application of See also:

• TORTURE (from Lat. torquere, to twist)

torture, and potency. a large See also:

• BODY

body of possible witnesses was excluded for reasons which have now ceased to be considered expedient, and witnesses were subject to rules which have See also:

• LONG, GEORGE (1800-1879)
• LONG, JOHN DAVIS (1838– )

long become obsolete . Witnesses must be idonei, or duly qualified . Minors, certain heretics, infamous persons (such as See also:

• WOMEN

women convicted of See also:

• ADULTERY (from Lat. adulterium)

adultery), and those interested in the result of the trial were inadmissible . Parents and See also:

• CHILDREN, LAW RELATING TO

children could not testify against one another, nor could slaves against their masters, nor those at enmity with the party against whom their evidence was offered . Women and slaves could not See also:

• ACT (Lat. actus, actum)

act as witnesses to a will . There were also 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 See also:

• FREE

free or a slave . As under the See also:

• MOSAIC (corresponding to Lat. opus musivum, from Gr. µovoeiov, an artificial grotto often decorated with mosaics; the word is only found in the sense of mosaic in late Greek, which generally uses k oXI yrlµa)

Mosaic law, two witnesses were generally necessary as a minimum number to prove any fact . Unius responsio testis omnino non audiatur are the words of a constitution of See also:

• CONSTANTINE

Constantine . The evidence of a single witness was simply semi-plena probatio, to be supplemented, in See also:

• DEFAULT (Fr. defaut, from defailler, to fail, Lat. fallere)

default of a second witness, by torture or by reference to oath . The See also:

• CANON

canon law followed the Roman law as to competence, but extended the disabilities to excommunicated persons and to a layman in a criminal See also:

• CHARGE
• CHARGE (through the Fr. from the Late Lat. carricare, to load in a carrus or wagon; cf. " cargo ")

charge against a clerk, unless he were actually the prosecutor . The evidence of a See also:

• NOTARY, or NOTARY PUBLIC

notary was generally See also:

• EQUIVALENT

equivalent to that of two See also:

• ORDINARY (med. Lat. ordinarius, Fr. ordinaire)

ordinary witnesses . The evidence of the See also:

• POPE (Gr. irarraas, post-classical Lat. papa, father)
• POPE, ALEXANDER (1688–1744)
• POPE, ALEXANDER (1763-1835)
• POPE, JANE (1742-1818)
• POPE, JOHN (1822-1892)
• POPE, SIR THOMAS (c. 1507-1559)

pope and that of a witness who simply proved See also:

• BAPTISM

baptism or See also:

• HERESY

heresy (according to some authorities) are perhaps the only other cases in which canon law dispensed with confirmatory evidence . It is probable that the incompetence of See also:

• JEWS
• JEWS (Heb. Y8hudi, man of Judah; Gr. 'Iovbaiot; Lat. Judaei)

Jews as witnesses in See also:

• SPAIN
• SPAIN (Espana)

Spain in the 14th and 15th centuries was based on what is termed " want of See also:

• RELIGION
• RELIGION, FOLKLORE, CUSTOM

religion," i.e. heresy or unwillingness to take the See also:

• CHRISTIAN
• CHRISTIAN, WILLIAM (1608-1663)

Christian oath on the gospels . But in England until their See also:

• EXPULSION (Lat. expulsio, from expellere)

expulsion they were in the status of slaves (captivi) of the See also:

• KING
• KING (O. Eng. cyning, abbreviated into cyng, cing; cf. O. H. G. chun- kuning, chun- kunig, M.H.G. kiinic, kiinec, kiinc, Mod. Ger. Konig, O. Norse konungr, kongr, Swed. konung, kung)
• KING [OF OCKHAM], PETER KING, 1ST BARON (1669-1734)
• KING, CHARLES WILLIAM (1818-1888)
• KING, CLARENCE (1842–1901)
• KING, EDWARD (1612–1637)
• KING, EDWARD (1829–1910)
• KING, HENRY (1591-1669)
• KING, RUFUS (1755–1827)
• KING, THOMAS (1730–1805)
• KING, WILLIAM (1650-1729)
• KING, WILLIAM (1663–1712)

king . 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 anointed or had been vanquished in the trial by See also:

• BATTLE

battle, or had stood in the See also:

• PILLORY (0. Fr. pilori, Prov. espitlori, from Lat. speculatorium, a place of observation or " peep-hole ")

pillory . All these were said vocem non habere . 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 .

Women were generally regarded as wholly or partially incompetent . See also:

• ENGLISH

English law had also certain rules as to the number of witnesses necessary . Thus under a See also:

• STATUTE

statute of 1383 (6 See also:

• RICH, BARNABE (c. 1540-1617)
• RICH, CLAUDIUS JAMES (1787-1821)
• RICH, JOHN (1692-1761)
• RICH, PENELOPE, LADY (c. 1562–1607)
• RICH, RICHARD, 1ST BARON RICH (1490?-1567)

Rich . II. st . 2, c . 5) the number of compurgators necessary to free an accused person from complicity in the See also:

• PEASANT (O. Fr. paysant, Mod. paysan; Lat. pagensis, belonging to the pagus or country; cf. " pagan ")

peasant revolt was fixed at three or four . Five was the number necessary under the See also:

• LIBER

Liber feudorum for proving ingratitude to the See also:

• LORD
• LORD (O. Eng. hldford, i.e. hldfweard, the warder or keeper of bread, hlIf, loaf; the word is not represented in any other Teutonic language)
• LORD, JOHN (1810-1894)

lord . In one instance in old Scots law the number of witnesses had the curious effect of determining the See also:

• PUNISHMENT (from Lat. punire, to punish, from poena, punishment, Gr. 7rocvil)

punishment . By the assizes of King See also:

• WILLIAM
• WILLIAM (1143-1214)
• WILLIAM (1227-1256)
• WILLIAM (1J33-1584)
• WILLIAM (A.S. Wilhelm, O. Norse Vilhidlmr; O. H. Ger. Willahelm, Willahalm, M. H. Ger. Willehelm, Willehalm, Mod.Ger. Wilhelm; Du. Willem; O. Fr. Villalme, Mod. Fr. Guillaume; from " will," Goth. vilja, and " helm," Goth. hilms, Old Norse hidlmr, meaning
• WILLIAM (c. 1130-C. 1190)
• WILLIAM, 13TH

William, the See also:

• ORDEAL (O.Eng. ordal, ordael, judgment)

ordeal of See also:

• WATER

water was undergone by the accused on the oaths of three witnesses; if to them the oaths of three seniores were added, the See also:

• PENALTY (Lat. poena, punishment)

penalty was immediate See also:

• HANGING

hanging . In the course of the See also:

• GRADUAL (Med. Lat. gradualis, of or belonging to steps or degrees; gradus, step)

gradual development of the law of evidence, which is in a sense See also:

• PECULIAR

peculiar to the English See also:

• SYSTEM

system, the fetters of the Roman rules as to witnesses were gradually shaken off . In See also:

• CIVIL

civil cases all disabilities by See also:

• INTEREST

interest, relationship, See also:

• SEX (Lat. sexes; possibly connected with secure, to cut)

sex or See also:

• CRIME (Lat. crimen, accusation)

crime have been swept away . The witness need not he idoneus in the Roman sense, and objections which in Roman law went to his competence, in English law go to his credibility .

The only See also:

• GENERAL
• GENERAL (Lat. generalis, of or relating to a genus, kind or class)

general test of competency is now understanding . It excludes lunatics, idiots, dotards and children of See also:

• TENDER

tender years; a person convicted of See also:

• PERJURY (through the Anglo-Fr. perjurie, modern parjure, Lat. perjurium, a false oath, perjurare, to swear falsely)

perjury is said to be competent if convicted at common law, but incompetent if convicted under the act of See also:

• ELIZABETH
• ELIZABETH (1533-1603)
• ELIZABETH (1596-1662)
• ELIZABETH (1635–1650)
• ELIZABETH [ AMELIE EUGENIE ] (1837—1898)
• ELIZABETH [1lisabeth Philippine Marie Helene of France] (1764—1794)
• ELIZABETH [PAULINE ELIZABETH OTTILIE LOUISE] (1843– )
• ELIZABETH [PETROVNA] (1709-1762), EMPRESS
• ELIZABETH, SAINT (1207-1231)

Elizabeth . No trial ever takes See also:

• PLACE (through Fr. from Lat. platea, street; Gr. IrAar6s, wide)

place now under this act, and on this point the act seems to have been virtually repealed by Lord See also:

• DENMAN, THOMAS, 1ST BARON (1779-1854)

Denman's Act (1843; 6 & 7 Vict. c . 85) . The disqualification is not See also:

• ABSOLUTE (Lat. absolvere, to loose, set free)

absolute as to lunatics; as to children it is sometimes made to depend on whether they are able to understand the nature of the witness's oath . And in certain cases within the Criminal Law See also:

• AMENDMENT (through the O. Fr. amender, to correct, from Lat. mendum, a fault)

Amendment Act 1885 and the Prevention of See also:

• CRUELTY (through the O. Fr. crualte, mod. cruaute, from the Lat. crudelitas)

Cruelty to Children Act 1904, the unsworn evidence of children of tender years is admissible but needs corroboration . Non-judicial witnesses are those who attest an act of unusual importance, for the due See also:

• EXECUTION (from Lat. ex-sequor, exsecutus, follow or carry out)

execution of which evidence may afterwards be required . They are either made necessary by law, as the witnesses to marriages and See also:

• WILLS, WILLIAM GORMAN (1828-1891)

wills, or used by general See also:

• CUSTOM (from O. Fr. costume, costume or coustume; Low Lat. costuma, a shortened form of consuetudo)

custom, as the witnesses to deeds . In some cases the See also:

• ATTESTATION (Lat. adtestare, attestare, to bear witness, testis, a witness)

attestation has become a See also:

• MERE
• MERE, ADALBERT (1838-1909)

mere See also:

• FORM (Lat. forma)

form, such as the attestation of the lord See also:

• CHANCELLOR (M. Eng. and Anglo-Fr. canceler, chanceler, Fr. chancelier, Lat. cancellarius)

chancellor to a See also:

• WRIT (O. Eng. gewrit, writ, from writan, to write)

writ of See also:

• SUMMONS (Fr. semonce, from semonner or semondre, Lat. summonere, summonitio)

summons (see WRIT) . The See also:

• RULE

rule of English law as to the number of witnesses necessary is expressed in the phrase testes ponderantur non numerantur . But there are certain exceptions, all statutory . Two witnesses are necessary to make a will valid; two are required to be present at a See also:

• MARRIAGE

marriage and to attest the entry in the marriage See also:

• REGISTER

register;" and in the See also:

• CASE
• CASE, JOHN (d. 1600)

case of See also:

• BLASPHEMY (through the Fr. from Gr. PXaa4o ta, profane language, slander, probably derived from root of )3X

blasphemy, perjury, See also:

• PERSONATION

personation and most forms of See also:

• TREASON (Fr. trahison, Lat. traditio)

treason, two or more witnesses are necessary to justify conviction .

Witnesses to bills of See also:

• SALE
• SALE, GEORGE (c. 1697-1736)
• SALE, SIR ROBERT HENRY (1782—1845)

sale under the Bills of Sale Act 1882, and witnesses on a charge of personation at elections, are required to be " credible." And in the case of dishonour of a See also:

• FOREIGN

foreign See also:

• BILL

bill of ex-See also:

• CHANGE (derived through the Fr. from the Late Lat. cambium, cambiare, to barter; the ultimate derivation is probably from the root which appears in the Gr. «a urmu', to bend)

change the evidence of a notary public is required, probably a survival from the law See also:

• MERCHANT (O. Fr. marcheant, modern marchand; from Lat. mercari, to trade, merx, goods, merchandise)

merchant or a concession to See also:

• CONTINENTAL

continental practice, A See also:

• WARRANT (Med. Lat. warantum; O. Fr. garant, warant, derived from O.H.G. root represented in modern German bygewdhren)

warrant of See also:

• ATTORNEY (from O. Fr. atorne, a person appointed to act for another, from atourner, legal Lat. attornare, attorn, literally to turn over to another or commit business to another)

attorney must be attested by a See also:

• SOLICITOR

solicitor, and certain conveyances of See also:

• PROPERTY

property held on charitable uses must be attested by two solicitors . In certain civil cases the evidence of a single witness is not sufficient unless corroborated in some material particular—not necessarily by another witness—e.g. in actions of See also:

• BREACH (Mid. Eng. breche, derived from the common Teutonic root brec, which appears in " break," Ger. brechen, &c.)

breach of promise of marriage, or See also:

• AFFILIATION (from Lat. ad filiare, to adopt as a son)

affiliation proceedings and matrimonial causes, or where unsworn evidence of children is admissible . In practice, but not in strict law, the evidence of an See also:

• ACCOMPLICE (from Fr. complice, conspirator, Lat. complex, a sharer, associate, complicare, to fold together; the ac- is possibly due to confusion with " accomplish," to complete, Lat. complere, to fill up)

accomplice is required to be corroborated . The English common law in theory has never permitted examination by torture—unless certain forms of See also:

• CROSS

cross-examination can be so described . In trials in the court of See also:

• ADMIRALTY, HIGH COURT OF

admiralty the Roman system was used until 1536 (28 See also:

• HENRY
• HENRY (1129-1195)
• HENRY (c. 1108-1139)
• HENRY (c. 1174–1216)
• HENRY (Fr. Henri; Span. Enrique; Ger. Heinrich; Mid. H. Ger. Heinrich and Heimrich; O.H.G. Haimi- or Heimirih, i.e. " prince, or chief of the house," from O.H.G. heim, the Eng. home, and rih, Goth. reiks; compare Lat. rex " king "—" rich," therefore " mig
• HENRY, EDWARD LAMSON (1841– )
• HENRY, JAMES (1798-1876)
• HENRY, JOSEPH (1797-1878)
• HENRY, MATTHEW (1662-1714)
• HENRY, PATRICK (1736–1799)
• HENRY, PRINCE OF BATTENBERG (1858-1896)
• HENRY, ROBERT (1718-1790)
• HENRY, VICTOR (1850– )
• HENRY, WILLIAM (1795-1836)

Henry VIII. c . 15) . Torture in See also:

• SCOTLAND
• SCOTLAND, CHURCH OF
• SCOTLAND, EPISCOPAL CHURCH OF

Scotland was abolished at the See also:

• UNION
• UNION (known locally as Union Hill and officially as Town of Union)

Union . ' The provisions of the Marriage Act 1823 appear to be See also:

• DIRECTORY

directory . Non-compliance does not invalidate the marriage, but creates difficulty as to its See also:

• PROOF (in M. Eng. preove, proeve, preve, &°c., from O. Fr . prueve, proeve, &c., mod. preuve, Late. Lat. proba, probate, to prove, to test the goodness of anything, probus, good)

proof in other proceedings, e.g. for See also:

• BIGAMY (from Lat. bis, twice, and Gr. ya,uor, marriage)

bigamy . In criminal cases an accused person could not formerly be sworn as a witness or examined by the court, though he was free to make statements . The origin of this rule is by some traced to the See also:

• MAXIM, SIR HIRAM STEVENS (184o- )

maxim nemo tenetur prodere seipsum, by others to the theory that the See also:

• PETTY, SIR WILLIAM (1623-1687)

petty jury were the prisoner's witnesses . Moreover, witnesses for the See also:

• DEFENCE
• DEFENCE (Lat. defendere, to defend)

defence could not be examined on oath in cases of treason and See also:

• FELONY (0. Fr. felonie, from felon, a word meaning " wicked," common to Romanic languages, cf. Italian fella, fellone, the ultimate origin of which is obscure, but is possibly connected either with Lat. fel, gall, or fallere, to deceive. The English " fel

felony until 1702 in England, 1711 in See also:

• IRELAND
• IRELAND, CHURCH
• IRELAND, CHURCH OF
• IRELAND, JOHN (1761-1842)
• IRELAND, JOHN (1838- )
• IRELAND, WILLIAM HENRY (1777-1835)

Ireland and 1735 in Scotland .

The See also:

• HUSBAND

husband or wife of the accused could not be examined on oath as a witness either for the See also:

• PROSECUTION

prosecution or the defence except in prosecutions for treason or for See also:

• PERSONAL

personal injuries done by one See also:

• SPOUSE, (O. Fr. espous, mod. epoux, espouse, epouse, Lat. sponsus, sponsa, a betrothed or promised man or woman, from spondere, to promise)

spouse to the other . This exclusion was in See also:

• ACCORD (from Fr. accorder, to agree)

accord with the disqualification of parties to civil causes; but there was a lack of See also:

• RECIPROCITY (Lat. reciprocus, returning back the same way, alternating, probably from re back and pro forward)

reciprocity, for the prosecutor was a competent witness because the See also:

• CROWN

crown is the nominal prosecutor . The rule had to a certain extent a beneficial effect for the defence, in saving the accused from cross-examination, which in certain periods and in See also:

• POLITICAL

political trials would have led to abuse . On the abolition of other disqualifications that of the accused was See also:

• LEFT

left . This inconsistency led to much legal discussion and to piecemeal, and ultimately See also:

• COMPLETE

complete, change in the law . In 1878 the Criminal See also:

• CODE (Lat. codex)

Code See also:

• COMMISSION (from Lat. commissio, committere)

Commission recommended that prisoners should be allowed to give evidence on their own behalf on oath . Since 1872 many statutes have been passed rendering accused persons and their husbands or wives competent witnesses on charges of particular offences . Most of these acts do not make them compellable witnesses . By the Criminal Evidence Act 1898 (6o and 61 Vict. c . 36) the See also:

• DEFENDANT

defendant, or the wife or husband of the defendant, is made a competent but not a compellable witness for the defence at every See also:

• STAGE (Fr. 6/age; from Lat. stare, to stand)

stage of criminal proceedings, subject to certain conditions, of which the See also:

• PRINCIPAL

principal are that a prisoner shall not be called except on his or her own application, and that the failure of this prisoner or his wife or her husband to give evidence is not to be the subject of comment by the prosecution, and that the prisoner may not be cross-examined as to any previous offence or conviction or as to See also:

• CHARACTER (Gr. xapareri7p, from xap&crew, to scratch)

character, unless the proof of a previous offence is admissible evidence in the case, or unless he or she has given evidence of his or her See also:

• GOOD, JOHN MASON (1764-1827)

good character, or cross-examined with that view, or unless the nature and conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution . The act applies to See also:

• GREAT

Great See also:

• BRITAIN (Gr. Hperavuml vi7vot, Bperravia; Lat. Britannia, rarely Britannia)

Britain but not to Ireland . It has been extended to proceedings before See also:

• NAVAL

naval and military courts-See also:

• MARTIAL (MARCUS VALERIUS MARTIALIS)

martial .

This statute abrogates the common law rule making an accused person incompetent, and in practice supersedes most of the See also:

• PRIOR (from Lat. prior—former, and hence superior, through O. Fr. priour)
• PRIOR, MATTHEW (1664-1721)

prior particular statutes . But it is necessary to observe that as to certain offences named in the See also:

• SCHEDULE

schedule of the act and in other earlier or later acts, the husband or wife is competent without the consent of the accused ; and that proceedings by See also:

• INDICTMENT (from Anglo-Fr. enditernent, enditer, to charge; Lat. in, against, dictare, declare)

indictment for obstruction or non-repair of public ways, See also:

• BRIDGES
• BRIDGES, ROBERT (1844– )

bridges and See also:

• RIVERS
• RIVERS, ANTHONY WOODVILLE, or WYDEVILLE, 2ND EARL (c. 1442—1483)
• RIVERS, EARL
• RIVERS, RICHARD SAVAGE, 4TH EARL (c. 1660—1712)

rivers are for purposes of evidence treated as civil proceedings . Quite apart from statute a husband or wife has always and necessarily been a competent witness in criminal proceedings against the other spouse in respect of personal injuries . Even where a witness is competent, his statements, whether of fact or of See also:

• EXPERT (Lat. expertus, from experiri, to try)

expert See also:

• OPINION (Lat. opinio, from opinari, to think)

opinion, are not admissible in evidence unless he has taken the required oath,' or, where he conscientiously See also:

• OBJECTS

objects to taking an oath or by want of religion would not be See also:

• BOUND, or BOUNDARY (from O. Fr. bonde, Med. Lat. bodena or butina, a frontier line)

bound by the oath, has made the substituted See also:

• AFFIRMATION (from Lat. affirmare, to assert)

affirmation or See also:

• DECLARATION (from Lat. declarare, to make fully clear, clams)

declaration . This question was settled in 1888 after the entry of Mr See also:

• BRADLAUGH, CHARLES (1833-1891)

Bradlaugh into See also:

• PARLIAMENT (Anglo-Lat. parliamentum, Fr. parlement, from parler, to speak)

parliament . Unless he is duly sworn, &c., there is no enforceable See also:

• SANCTION (Lat. sanctia, from sancire, to decree or ordain)

sanction for false evidence (see PERJURY) . English law has gradually accepted as sufficient any form of oath which the witness is prepared to accept as binding on him in accordance with his religious beliefs, whether he be Christian or See also:

• JEW, THE WANDERING

Jew, See also:

• MAHOMMEDAN

Mahommedan, See also:

• HINDU

Hindu, See also:

• SIKH

Sikh or Buddhist . At one time peers in certain proceedings testified on their See also:

• HONOUR (Lat. honos or lwnor, honoris; in English the word was spelled with or without the u indifferently until the 17th century, but during the 18th century it became fashion-able to spell the word " honor "; Johnson's and Webster's Dictionaries stereoty

honour unsworn, but now no distinction is made except as already stated in the case of See also:

• YOUNG
• YOUNG, A
• YOUNG, ARTHUR (1741-1820)
• YOUNG, BRIGHAM (1801-1877)
• YOUNG, CHARLES MAYNE (1777–1856)
• YOUNG, EDWARD (1683–1765)
• YOUNG, JAMES (1811-1883)
• YOUNG, THOMAS (1773-1829)

young children . The attestation of documents out of courts of justice is ordinarily not on oath; but where the documents have to be proved in court the attesting witnesses are sworn like others, and the only judicial exception is that of witnesses ordered to produce documents (called in Scotland " havers ") who are not sworn unless they have to verify the documents produced . Questions as to competence (including questions of the right to affirm instead of See also:

• SWEARING (O. Eng. swerian, to swear, originally to speak aloud, cf. andswerian, to answer, Ger. schworen, Dan. svaerge, &c., all from root sorer-, to make a sound, cf. " swarm," properly the buzzing of bees, Lat. susurrus)

swearing or as to the proper form of oath) are settled by examination by the court without oath, on what is termed the voir dire . The evidence of judicial witnesses is taken viva voce at the trial, except in interlocutory proceedings and in certain matters in the See also:

• CHANCERY

chancery See also:

• DIVISION (from Lat. dividere, to break up into parts, separate)

division and in See also:

• BANKRUPTCY (from Lat. bancus or Fr. banquet table or counter, and Lat. ruptus, broken)

bankruptcy courts . Where the witness cannot attend the court or is abroad his evidence may be taken in See also:

• WRITING
• WRITING (the verbal noun of " to write," O. Eng. writan, to inscribe)

writing by a See also:

• COMMISSIONER

commissioner delegated by the court, or by a foreign tribunal under letters of See also:

• REQUEST, LETTERS OF

request issued by the court in which the cause is pending .

The depositions are returned by the delegated authority to the court of trial . Under English law evidence must be taken viva voce in a criminal trial, with a few exceptions, e.g. where a witness who has made a deposition before a See also:

• MAGISTRATE (Lat. magistratus, from magister, master, properly a public office, hence the person holding such an office)

magistrate at an earlier stage in the case is dead or unable to travel, or in certain cases within the Merchant See also:

• SHIPPING

Shipping Acts, or of offences in See also:

• INDIA
• INDIA, FRENCH

India or by crown officials out of England . In See also:

• EUROPE

Europe commissions 2 The giving of evidence unsworn appears to have been at one time regarded as a See also:

• PRIVILEGE

privilege . The men of See also:

• RIPON
• RIPON, GEORGE FREDERICK SAMUEL ROBINSON, 1ST MARQUESS OF (1827-1909)

Ripon, for instance, were by a See also:

• CHARTER (Lat. charta, carta, from Gr. Xap-rns, originally for papyrus, material for writing, thence transferred to paper and from this material to the document, in O. Eng. boc, book)

charter of £Ethelstan to be believed on their yea and See also:

• NAY, or NEY

nay to a. disputes . vogatoires are freely used to obtain written depositions for the purpose of criminal trials, and are allowed to be executed in England . In England the viva voce examination of witnesses is not conducted by the presiding See also:

• JUDGE (Lat. judex, Fr. juge)

judge but by the See also:

• ADVOCATES, FACULTY OF

advocates in the cause, and the witness is called not by the court but by the party . The court, however, has full See also:

• POWER [WILLIAM GRATTAN] TYRONE (1797-1841)

power to See also:

• CALL (from Anglo-Saxon ceallian, a common Teutonic word, cf. Dutch kallen, to talk or chatter)

call witnesses not called by either party, or to examine witnesses on questions not inquired into by the advocates of either party . The examination of a witness by the See also:

• ADVOCATE (Lat. advocatus, from advocare, to summon, especially in law to call in the aid of a counsel or witness, and so generally to summon to one's assistance)

advocate of the See also:

• SIDE
• SIDE (mod. Eski Adalia)

side for which he is called is termed " examination-in-See also:

• CHIEF (from Fr. chef, head, Lat. caput)

chief "; when by the advocate of the other party it is called " cross-examination . " The judge, and by his leave the jurors, are free to question the witness . But the See also:

• MAIN (from the Aryan root which appears in " may " and " might," and Lat. magnus, great)
• MAIN (Lat. Moenus)

main See also:

• DUTY (from " due," that which is owing, O. Fr. deu, dil, past participle of devoir; Lat. debere, debitum; cf. " debt ")

duty of the judge is not himself to interrogate the witness but to see that neither side asks irrelevant or vexatious questions (see R.S.C . 1883, See also:

• ORDER
• ORDER (through Fr. ordre, for earlier ordene, from Lat. ordo, ordinis, rank, service, arrangement; the ultimate source is generally taken to be the root seen in Lat. oriri, rise, arise, begin; cf. " origin ")
• ORDER, HOLY

order 36, rule 38) . As a general rule competent witnesses are also compellable, except the king; i.e. they can be required to attend the court and to take Attend- the oath and to See also:

• ANSWER (derived from and, against, and the same root as swear)

answer all relevant questions .

But by the statutes as to evidence in criminal cases the accused ante. is not a compellable witness, nor in many specified cases is the husband or wife of the accused . The attendance of witnesses is secured in the following manner: In civil actions in the High Court of Justice by writ of subpoena personally served with tender of the necessary See also:

• JOURNEY (through O. Fr. jornee or journee, mod. Fr. journee, from med. Lat. diurnata, Lat. diurnus, of or belonging to dies, day)

journey See also:

• MONEY

money (see WRIT) ; in civil actions in See also:

• COUNTY (through Norm. Fr. comae, cf. O. Fr. cunte, conk', Mod. Fr. comae, from Lat. comitatus, cf. Ital. comitato, Prov. comtat; see COUNT)

county courts by witness summons; in criminal proceedings before the High Court of Justice or a court of See also:

• ASSIZE

assize or See also:

• QUARTER (through Fr. from Lat. quartarius, fourth part)

quarter sessions by crown See also:

• OFFICE (from Lat. officium, " duty," " service," a shortened form of opifacium, from facere, " to do," and either the stem of opes, " wealth," " aid," or opus, " work ")

office subpoena or by See also:

• RECOGNIZANCE (from Lat. recognoscere, to acknowledge)

recognizance entered into before justices when the accused was committed for trial . In proceedings before justices out of quarter sessions the attendance of a witness is secured by witness summons or if need be by See also:

• ARREST (Fr. arrester, arreeter, to stop or stay)

arrest on warrant of a justice . In criminal cases tender of expenses is not essential . Where a witness refuses to attend or to be sworn or to answer, he is summarily punishable for contempt if the court is one of See also:

• RECORD (Lat. recordari, to recall to mind, from cor, heart or mind)

record,' and liable to imprisonment if the proceedings are before a court of See also:

• SUMMARY

summary See also:

• JURISDICTION
• JURISDICTION, CRIMINAL LAW, DIVORCE

jurisdiction . Various acts of parliament deal with compelling See also:

• APPEARANCE (from Lat. apparere, to appear)

appearance before committees of parliament, courts martial and other tribunals of a See also:

• SPECIAL

special nature . The attendance of a witness who is in custody is obtained by writ of habeas corpus ad testificandum or by judge's order in certain cases, or by order of the See also:

• HOME
• HOME, DANIEL DUNGLAS (1833-1886)
• HOME, EARLS OF

home secretary under the See also:

• PRISON (derived through the Fr. from the Lat. prehensio, seizure)

Prison Act 1898 . A witness's expenses in a civil case are payable by the' party calling him and are included in the See also:

• COSTS

costs of the cause . Scales of allowances are scheduled to the Rules of the Supreme Court and the County Court Rules . Failure of a witness duly summoned to attend in a civil See also:

• ACTION

action exposes him to liability in respect of pecuniary damage done to the party by his See also:

• ABSENCE (Lat. absentia)

absence . In criminal cases the witness's expenses fall on the party calling him, but in prosecutions for felony and many misdemeanours the expenses are paid out of the See also:

• LOCAL

local See also:

• RATE

rate in accordance with scales fixed by the home secretary (see Cosrs) . A witness is privileged from arrest on civil See also:

• PROCESS

process while he is in attendance on a court of justice or is on his way to or from the court (eundo, morando et redeundo) .

The privilege does not exempt from arrest on a criminal charge . All witnesses except the defendant in a criminal case are entitled to See also:

• OBJECT

object to answer any question put to them in court on the ground that the answer might tend to criminate them or to expose them to a penalty or See also:

• FORFEITURE (from " forfeit," originally an offence, and hence a fine exacted as a penalty for such; derived through the O. Fr. forfeit, from the late Lat. foris factum, a trespass, that which is done foris, outside)

forfeiture, or where the question is as to the fact of adultery . The defendant in a criminal case if sworn as a witness is not entitled to refuse to answer questions tending to prove him guilty of the offence for which he is being tried, and a witness cannot refuse to answer a question on the ground that the answer might involve See also:

• ADMISSION

admission of a See also:

• DEBT (Lat. debitum, a thing owed)

debt 0r subject him to a civil action (i8o6, c . 37) . Witnesses are also privileged from making disclosure of matters known to them in the following cases: (1) Public See also:

• OFFICERS

officers, as to matters coming within their See also:

• OFFICIAL (Late Lat. QJicialis, for class. Lat. apparitor, from officium, office, duty)

official See also:

• COGNIZANCE (Lat. cognoscere, to know)

cognizance if they can swear that it is inconsistent with the public service to disclose them . This applies to See also:

• STATE
• STATE, GREAT OFFICERS OF

state secrets, and extends to jurors as to what passed among them, and the public prosecutor; and the See also:

• POLICE (Fr. police, government, civil administration, a police force, Gr. sroXumeia, constitution, condition of a state, roars, city, state)

police on this ground refuse to disclose the See also:

• SOURCES

sources of See also:

• INFORMATION (from Lat. informare, to give shape or form to, to represent, describe)

information leading to prosecutions for crime . (2) Lawyers, as to communications between themselves and their clients, unless the communications are in themselves See also:

• PART

part of a criminal or unlawful enterprise . English law declines to extend professional privilege to communications between See also:

• DOCTOR (Lat. for " teacher ")

doctor and patient or See also:

• PRIEST (Ger. Priester, Fr. pretre)

priest and penitent . In most See also:

• EUROPEAN

European countries, and in many See also:

• BRITISH

British colonies, medical privilege is recognized as to matters communicated to the doctor or even discovered by him in attending the patient . In See also:

• CATHOLIC (Gr. KcaBoXuK6s, general, universal)

Catholic countries confessions to a priest are sacred . In England it is not now the practice to insist on evidence by a See also:

• MINISTER (Lat. minister, servant)

minister of religion as to matters confessed to him as such . (3) Communications between husband and wife during the marriage have always been privileged from disclosure, and this privilege is preserved by modern legislation (1853, c .

83, s . 3.;1898, c . 36, s . 1. d.) . It is correlative to the See also:

• OBLIGATION

obligation of a witness to testify that no action may be brought against him under English law for any statement however defamatory, however irrelevant, and however malicious, made by him in the course of his testimony in judicial proceedings (See also:

• SEAMAN, OWEN (1861– )

Seaman v . Netherclift, 1876, i C.P.D . 540; See also:

• HODSON, WILLIAM STEPHEN RAIKES (1821-1858)

Hodson v . See also:

• PARE, AMBROISE (1510-1590)

Pare, 1899, 1 Q.B . 455) . The only remedy, if the statement is deliberately false, is to prosecute him for perjury . In ecclesiastical courts the punishment was by See also:

• EXCOMMUNICATION (Lat. ex, out of, away from; communis, common)

excommunication.76x On charges of treason lists of the witnesses to be called by the crown must be supplied to the accused . In ordinary indictable cases there is no such obligation, but the names of the. witnesses for the crown are written on the back of the indictment; and where the witnesses have not been examined at the preliminary inquiry it is now established practice to require See also:

• NOTICE

notice to the accused of their names, and a precis of what they will be called to prove .

In Scotland in all indictable cases a See also:

• LIST (O.E. lisle, a Teutonic word, cf. Dut. lust, Ger. Leiste, adapted in Ital. lista and Fr. lisle)
• LIST, FRIEDRICH (1789-1846)

list of witnesses must be served on the accused (the See also:

• PANEL (O. Fr. panel, mod. panneau, piece of cloth, from Med. Lat. pannellus, diminutive of pannus, cloth)

panel) (1887, c . 35), and the same rule is observed in See also:

• FRANCE
• FRANCE, ANATOLE (1844– )

France . In the See also:

• UNITED

United States the same course is adopted where a See also:

• CAPITAL (i.e. capital stock or fund)
• CAPITAL (Lat. caput, head)

capital offence is charged . Scotland.—The rules as to competence of witnesses have been made substantially the same as in England by modern legislation (1837, c . 37, s . 9; 1840, c . 59, s . I; 1852, c . 27; 1874, c . 64) . Their attendance is procured by See also:

• CITATION (Lat. citare, to cite)

citation . Witnesses to produce documents are called " havers .

" The evidence of witnesses is taken on oath (in the Scots form) or affirmation . Their privileges are substantially the same as in England, but they may be sued for irrelevant defamatory statements volunteered during their evidence, the law of Scotland on this point being the same as under the Dutch Roman law (see Nathan, Common Law of S . See also:

• AFRICA
• AFRICA, ROMAN

Africa, § 1593) . British Possessions.—In India the law as to witnesses and evidence is consolidated in the See also:

• INDIAN

Indian Evidence Act 1872, which contains in code form the substance of the English law on the subject . The test of competency is understanding : " all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions by tender years, extreme old See also:

• AGE (Fr. age, through late Lat. aetaticum, from aetas)

age, disease whether of body or mind, or of any other cause of the same See also:

• KIND (O. E. ge-cynde, from the same root as is seen in " kin," supra)

kind . A lunatic is not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them ' (s . 118) . In criminal proceedings the defendant is not, but the husband or wife of the defendant is, competent (s . 120) . Under the Indian Oaths Act (x. of 1873) See also:

• HINDUS

Hindus or Mahommedans or persons objecting to make an oath may affirm (s . 6) . The court may accept an oath or See also:

• SOLEMN (Lat. sollemnis, sollemnis, less correctly solennis, yearly, annual; from sollus = totus, whole, entire, Gr. Mos., and annus, year)

solemn affirmation in any form common amongst or held as binding by persons of the per-suasion or religion to which the witness belongs, unless it is repugnant to justice or decency (s .

8) . In the See also:

• REST (O. Eng. rest, reste, bed, cognate with other Teutonic forms, e.g. Ger. Rast, Riiste, rest, and probably Gothic Rasta, league, i.e. resting or stopping place)

rest of the British See also:

• EMPIRE

empire the law as to witnesses does not differ materially from that of England, but has in most colonies been incorporated in statutes or codes (e.g . British See also:

• GUIANA (Guyana, Guayana')

Guiana, Ord . No . 20 of 1893) . Colonial legislation has provided for the evidence of accused persons under conditions similar to but not identical with those prevailing in England . In colonies with a large native See also:

• POPULATION (Lat. populus, people; populare, to populate)

population there is from time to time a tendency to reject the evidence of coloured witnesses against Europeans . United States.—The rules of the United States as to witnesses have a common origin with those of England and are on the same lines, but in most states depend on the particular provisions of state codes . The number of witnesses necessary for the attestation of a marriage or will is not See also:

• UNIFORM

uniform in all the states . While See also:

• SLAVERY

slavery was lawful, the evidence of slaves (and in some states that of free persons of See also:

• COLOUR (Lat. color, connected with celare, to hide, the root meaning, therefore, being that of a covering)

colour) was not received for or against whites . These rules appear not to have been absolutely overridden by the 14th amendment to the Federal Constitution, and the See also:

• LAWS

laws of See also:

• DELAWARE

Delaware and See also:

• NEBRASKA

Nebraska discriminate against free persons of colour . Incompetency by conviction of perjury or subornation is retained in federal laws (Rev .

Stat . § 5392) and in those of a few states (see Wigmore, p . 654 n) . European Countries.—In the law of most European states the Roman law as to the competency and examination of witnesses is more closely followed than in countries whose law is based on that of England . In criminal cases the prisoner is not only competent but necessary, and the whole system of See also:

• PROCEDURE (Fr. procedure, from Lat. procedere, to go for-ward)

procedure is inquisitorial, beginning with interrogation of the accused, not by the state prosecutor, but by the See also:

• PRESIDENT (Fr. president, from Lat. praesidens, post-Augustan Lat. for praeses, director, ruler, from praesidere, to sit in front of, preside)

president of the court . In view of this system it is not surprising that the English conception of the rules of proof and relevancy, known as the law of evidence, is not accepted; since under the continental system the person who puts the questions is the person who has to determine their relevancy . In France See also:

• CON

con-sanguinity and See also:

• AFFINITY (Lat. affinitas, relationship by marriage, from offinis, bordering on, related to; finis, border, boundary)
• AFFINITY, CHEMICAL

affinity to the parties disqualify a witness in civil cases, and he is also asked whether he is employe or servant of the parties (Code Civil, Proc . 262, 268) . In criminal cases a like inquiry is made . See also:

• CONSANGUINITY, or KINDRED

Consanguinity and affinity in the case of lineals may be made ground of disqualification if the objection is taken, as may pecuniary interest in the penalty (Code d'instr . Crim . 75, 322) .

Husband and wife cannot testify for or against each other even after See also:

• DIVORCE

divorce (ib.) . In France See also:

• DISABILITY

disability to be a witness may be inflicted as part of the punishment on conviction for certain crimes (Code Penal, See also:

• ART

art . 42) . (W . F .