Report No. 69
VI. Competence and Compellability
2.32. Development of rules as to competence and compellability.-
When it became permissible to summon witnesses and to compel them to give evidence under the Act of 1562-63, two questions arose, namely-(a) competency, and (b) compellability of witnesses under which their testimony could be admitted1.
1. Holdsworth History of English Law, Vol. 9, p. 185
2.33. As to the competency of witnesses, it would be noted that the canon law had developed a number of detailed rules1 as to the class of persons who were not competent to become witnesses. Some of these rules had been adopted by the common law in relation to jurors, when it became permissible to summon witnesses. As such, the rules as to competency at canon law filtered into common law in relation to witnesses also.
1. See also chapter I, supra.
2.34. Rules as to competency developed on native lines.-
Of course, the rules were not adopted wholesale or without modifications, but were developed on native lines1. As a result of this process, rules developed as to (a) the natural, and (b) artificial, incapacity of witnesses. "Natural" incapacity was of witnesses who were insane or (subject to certain qualifications) infants. The rule as to disqualification of women; which prevailed in canon law was not, however, adopted2.
1. Holdsworth History of English Law, Vol. 9, p. 186-187.
2. Holdsworth History of English Law, Vol. 9, p. 187-189.
2.35. Natural and artificial incapacity.-
Apart from natural incapacity, cases of artificial incapacity based on (i) religious grounds, (ii) moral grounds and (iii) the ground of interest in litigation, arose. As to the religious ground, it was presumed that only a Christian could be a competent witness, until the matter was settled in Omichand's case1. As to moral grounds, the idea that the commission of such crimes rendered a man so infamous that his testimony should be excluded, had its roots in Roman law, which, in its turn, had borrowed the rule from canon law2.
The operation of this disqualification was complicated by the intricacies of the criminal law as then in operation-for example, the benefit of clergy (which operated as a pardon), and other complications. The rule was largely swept away in 1843.3 As to the disqualification of the party and other persons interested in litigation, the rule is stated by Coke in Slade's case4where he said that experience rules that men's conscience "grows so large" that the respect of their private advantage rather induces men to perjury.
1. See Omichand v. Barker, (1744) 1 Atk 21 (48, 50).
2. Salmond Essays in Jurisprudence, pp. 34-37, referred to in Holdsworth History of English Law, Vol. 9, p. 191.
3. Statutes.-7, Vict., Chap. 85.
4. Slade's case, (1602) 4 Co Rep 95a.
2.36. By the 17th century, this disability was established in civil cases, and, in criminal cases, it was established later in the latter half of the 17th century .1 Gradually, by the process of legislation in the 19th century, this disqualification was abolished in respect of:-
(a) persons interested,2
(b) parties in civil cases,3
(c) parties in criminal cases.4
1. Holdsworth History of English Law, Vol. 9, p. 155.
2..-7 Vict., Ch. 85 (1843).
3. 14-15 Vict., Ch. 99 (1851), section 2.
4. 61-62 Vict., Ch. 36 (1898).
2.37. Children.-
At one time1 the unsworn evidence of children of tender years was not admissible except in special circumstances. The rule no longer prevails.
1. (a) R. v. Powell, 1755 L Leach 110, and
(b) R. v. V. Brasier, (1779) 1 Leach 199.
2.38. The rule of compulsion and its exceptions.-
When the statute of 1562-63 had established1 the general rule that all competent persons could be compelled to testify,2 the question soon arose whether there were any, and, if so, what exceptions to the general rule of compulsion. It is obvious that there is no necessary connection between the causes which render a witness incompetent, and the causes which may make it fair that he should be exempted from the general rule of compulsion. But in some cases these two very different sets of exceptions to a general rule seem to have exercised some influence upon one another.
This influence is most marked in the case of husband and wife. The rule that the husband or wife cannot be compelled to testify against the other is stated by Coke in the same sentence as that in which he states their incompetence to testify on one another's behalf;3 and, it would seem, that the privilege is better attested in the earlier cases than the disability4. It was justified-as the rule of incompetence was justified-on the ground that any other rule "might be a cause of implacable discord and dissension between the husband and the wife". From that time onwards it was accepted as an absolute rule in civil cases, and, subject to one or two exceptions, as the general rule in criminal cases.
1. Holdsworth History of English Law, Vol. 9, p. 197.
2. Holdsworth History of English Law, Vol. 9, p. 195.
3. Co. Litt. 6b.
4. Wigmore, Vol. 4, 3034-3035, 2227.
2.39. While it became possible to compel witnesses to give evidence, privilege in respect of certain particular kinds of questions survived. One such privilege will now be discussed.
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