116 



EVIDENCE. 



truth. There are, however, some exceptions to this 

 rule. Whenever the hearsay or declaration accom- 

 panies a fact, or, as it is often expressed, is a part of 

 the ret gestat, it may be evidence. So in cases of 

 pedigrees, and of prescriptions, customs and boun- 

 daries, where, from the nature of the title, the facts 

 are of great antiquity, or, ordinarily, other proofs 

 could not be presumed to exist, hearsay or reputation 

 is admitted ns evidence. A monument, or lomb- 

 stone, or family bible, stating a relationship, is, uj on 

 this ground, admitted as evidence of the relationship, 

 as it would be of the death of a party. So declara- 

 tions of parents, either written or oral, of the legiti- 

 macy and births of their children, especially if such 

 declarations be before any litigation has arisen (Us 

 viota), are admissible, after their decease, in proof of 

 the fact. But it has been lately said, that such de- 

 clarations, made post litem motam, are not admissible. 

 The admission of hearsay, too, is limited in extent, 

 even in these classes of cases. It is admitted only to 

 prove public or general rights, and matters of gene- 

 ral reputation. But it is said to be inadmissible to 

 prove mere private rights, or particular facts; as, 

 for instance, upon a question of boundary, that a post 

 *v3 put down in a particular spot ; or in a case of 

 birth, that the birth was in a particular place ; or 

 that a party has a private right of way. There are 

 other cases, where the solemn declarations of parties, 

 under whom the party to be affected by them claims, 

 or with whom (as it is technically expressed) he is in 

 privity of title, or estate, or blood, are good evidence ; 

 as, for example, the recital of a fact in a deed, un- 

 der which the party claims title, binds him. So the 

 testimony of a deceased witness, given upon a former 

 trial, where the same point was in issue between the 

 same parties. So dying declarations of a party, who 

 has received a mortal wound, are evidence against 

 the party accused of the crime. To go at large into 

 this subject would require a treatise. 



II. As to oral or unwritten evidence. Having con- 

 sidered the nature and operation of presumptive evi- 

 dence, we may now pass to a consideration of some 

 of the rules of evidence, as to witnesses when they 

 are, and when they are not competent to give testi- 

 mony. In general, it may be said that all persons, 

 not under any known disability, are competent wit- 

 nesses. Several grounds of incompetency exist, in 

 the common law of England. 1. The first is, want 

 of reason or understanding. Persons insane, lunatics, 

 and idiots, are incompetent to be witnesses. But 

 lunatics and persons temporarily insane, are, in their 

 lucid intervals, or returns of reason, restored to their 

 competency. A person deaf and dumb, if he has suf- 

 ficient understanding, and can, by signs, make known 

 his thoughts through an interpreter, or otherwise, 

 is competent. But a person deaf, dumb, and blind, 

 would be deemed incompetent. Children are admissi- 

 ble as witnesses as soon as they have a competent 

 share of understanding, and know and feel the nature 

 of an oath, and of the obligation to speak the truth. 

 There can, therefore, scarcely be assigned any pre- 

 cise age fixed for the admission of them as witnesses. 

 A child of five years of age is not necessarily incom- 

 petent, if he or she has sufficient reason, and a know- 

 ledge of the obligation and nature of an oath ; al- 

 though, certainly, at such an age, there ought to be 

 great hesitation in admitting or relying on such tes- 

 timony, and it ought to have little weight, if uncor- 

 roborated by other proof. And the like circum- 

 stances would govern the case of persons, whose 

 memory and understanding are greatly impaired by 

 age. If they have too little mind to know the value 

 of truth, or to understand or remember facts, they are 

 incompetent. But if they are not thus deficient, they 

 re admissible, and their credit is to be left to the 



jury. 2. A second ground of incompetency is the 

 want of religious belief. The law, in order to justify 

 the administration of an oath, or a solemn equivalent 

 ailirmation, requires that the party should believe, 

 that it is obligatory upon his conscience, and that he 

 becomes thus bound to tell the truth. But there is 

 no certain sanction or obligatory force upon the con- 

 science of a man, unless he believes, that his telling 

 or not telling the truth, will, at all events, make him 

 accountable to a Supreme Being for his conduct; 

 and that, if he tells a falsehood, the Supreme Being 

 will punish him accordingly. It is not sufficient, by 

 the common law, that a witness believes himself 

 bound to speak the truth from a regard to his own 

 character and the opinion of the public, or his own 

 permanent interests, or the civil punishments annexed 

 to perjury. Such motives (as has been justly said) 

 have their influence, and may be brought in aid of 

 religious obligation ; but they do not supply its place. 

 Indeed, they are of so uncertain a nature, so liable 

 to be perverted to wrong purposes, so infirm in their 

 operation, and so mixed up with other motives, of 

 present reward, of future favour, of hatred, or kind- 

 ness, or prejudice, that they do not afford a solid 

 foundation upon which to rest our confidence. But 

 if a man does believe in a superintending Providence ; 

 and in his responsibleness to that Providence for 

 all his conduct ; if he feels that the eye of God can 

 search his thoughts, and that he cannot escape his 

 notice or his power, but will receive at his hands 

 according to his deeds, there is a most solemn and 

 affecting influence upon his mind. He may not 

 always, with this belief, avoid falsehood ; but he has 

 the highest motives to do so. Our law, therefore, 

 requires that a person, to be a witness, should 

 believe in the existence of a Supreme God, to whom 

 he is accountable for his actions. The rule is usually 

 laid down, in our books, with this addition that he 

 should also believe in a future state of rewards and 

 punishments. And it has been accordingly held by 

 some judges, that if he does not believe in a state of 

 punishment, but only of reward, in a future world, 

 he is not a competent witness, although he may 

 believe in punishment in the present world, for 

 all crimes, by the order of Providence. But this 

 doctrine has been doubted and denied by other judges, 

 who think, that if a witness believes in a God, and 

 that he will punish him in this world, if he swears 

 falsely, he is admissible, notwithstanding he may not 

 believe in a future state, or if he does believe in a 

 future state, that he will be liable to any punishment 

 in such state. But upon such a question, where very 

 able judges have differed, it becomes us to say no 

 more than that the question may still be deemed 

 unsettled. It was formerly a rule, that infidels, or 

 disbelievers in Christianity, such as Jews, Moham- 

 medans, and the various kinds of heathen, were not 

 competent witnesses. But that rule has been abro- 

 gated for a considerable length of time ; and it now 

 matters not whether a person be a Jew or a Chris- 

 tian, a Mohammedan or a Hindoo, if he believes in 

 a God, and in his responsibleness to him for his con- 

 duct, and that he will be rewarded or punished ac- 

 cording to his conduct, he is a competent witness. 

 But atheists, and such infidels as profess no religion, 

 or do not believe in any responsibleness to any 

 Supreme Being for their actions, are incompetent 

 witnesses. 3. A third ground of incompetency ie 

 infamy of character. But this infamy is not that, 

 which is morally attached to a man for his private 

 profligacy and dissoluteness. That is not sufficient 

 to exclude him as a witness, though it may go far to 

 diminish his credibility. But the infamy, of which 

 we speak, is that which results from a conviction of 

 some crime deemed, in the law, infamous. It is not 



