"Benefit of Clergy." History relates that the English Church_CHAP. III. being threatened in the reign of Henry IV, with a stripping of their estates, the Archbishop of Canterbury, on one particular occasion, used the strong remonstrance to the monarch," that of all the crimes a prince could commit, none was so heinous as an invasion of the church's patrimony" (1).

The Mitacshara restricts the obligation of false testimony to the cases in which the interests of the privileged class is involved. Other authorities, however, carry it even further.

Thus it is said in Halhed's Gentoo Law:-" Wherever a true evidence would deprive a man of his life, in that case, if a false testimony would be the preservation of his life, it is allowable to give such false testimony; and for ablution of the guilt of false witness, he shall perform the pooja sereshtee: but to him who has murdered a Brahmin, or slain a cow, or who, being of the Brahmin tribe, has drunken wine, or has committed any of these particularly flagrant offences, it is not allowed to give false witness in preservation of his life.

"If a marriage for any person may be obtained by false witness, such falsehood may be told; as upon the day of celebrating the marriage, if on that day the marriage is liable to be incomplete, for want of giving certain articles, at that time, if three or four falsehoods be asserted, it does not signify; or if, on the day of marriage, a man promises to give his daughter many ornaments, and is not able to give them, such falsehoods as these, if told to promote a marriage, are allowable.

"If a man, by the impulse of lust, tells lies to a woman; or if his own life would otherwise be lost; or all the goods of his house spoiled; or if it is for the benefit of a Brahmin; in such affairs falsehood is allowable" (2).

The Mahomedan law too, in the catalogue of smaller offences, allowed equivocation in testimony. Thus, though enjoining on the witness the general obligation to tell the truth, in cases of this description, it absolved him from the liability, by sanctioning his availing himself of the ingenious device of not telling the whole truth; and the same precept which declared that a denial of a positive fact would be wrong, proceeded to add-" but equivocation is PRAISEWORTHY” (3).

(1) Manning's Lives of the Speakers, p. 36.

(2) Halhed's Gentoo Law, p. 115.

(3) Beaufort's Digest of Criminal Law, Section 628.

CHAP. III.

Proxy Evidence permitted by Mahomedan law.

English Law of

of Superior

Courts of
Common Law.

Mahomedan law also, in certain prescribed cases, allowed the singular expedient of giving evidence by proxy. In the event of the death of the principal witness, the absence of the witness on a three days' journey, or his sickness, and in a certain class of cases in which the judgment was not barred by doubt, a witness, or the person who would have been such, was permitted to supply a proxy, substituting another person to detail facts or opinions for him (1). To admit evidence by proxy is but one step removed from undergoing punishment by substitution; and this provision of Mahomedan law may recall to mind the history of the "Whipping Boy," given by Sir Walter Scott in his Fortunes of Nigel, in the person of Sir Mungo Malagrowther, who, in the pupilage days of King James I., played the part of proxy, to receive the castigations which would otherwise have fallen on the back of the royal tyro; in order, as the historian of the tale relates," that the superhuman yells which the proxy uttered might produce all the effects on the monarch who deserved the lash, which could possibly be produced by seeing another and an innocent individual suffering for his delict" (2).

The Law of Evidence, as dispensed in England in what are Evidence that called the Superior Courts of Common Law,-namely, the Courts of Queen's Bench, Common Pleas and Exchequer,-furnishes the rule for the general Courts of the country, including the Courts of Equity; and this is the law which is detailed in most of the established treatises on the subject.

Excepted application of

Law.

There are, however, in England certain Courts of limited app jurisdiction, principally the Ecclesiastical and Admiralty ones, in which the civil law, being adopted as the law of their procedure, the rules of evidence prescribed by the Civil Law prevail; and these are in some few respects at variance with ordinary English law, though in some few only.

On the establishment in England of the two Courts of Probate and Divorce, and the transfer to them, from the Ecclesiastical Courts, of the business for the administration of which the former were created, in the two Acts respectively constituting the new Courts, the Legislature directed the adoption in both, in all matters of fact, of the rules of evidence observed in the Superior Courts of Common Law.

(1) Beaufort's Digest of Criminal Law, Section 635.
(2) Chapter VI.

The Supreme Courts of India were constituted on the basis of CHAP. III. the English Courts, with a corresponding jurisdiction, separate from the ordinary one, in the matters ranging under Admiralty or Ecclesiastical cognizance. Previously these had to adopt alternately the different rules of evidence applicable to these separate jurisdictions, according as the subjects submitted to their decision ranged under the one jurisdiction or the other.

On a like principle, however, with that adopted in the Acts establishing the Probate and Divorce Courts in England, the Indian Evidence Act enacted that "the rules of evidence in Her Majesty's Supreme Courts, as to matters of Ecclesiastical or Admiralty Civil jurisdiction, shall be the same as they are on the Plea side of the said Courts" (1).

Neither the Charters of the High Courts, nor the Act (24 and 25 Vict., c. 104) under which they were granted, introduced any alteration in the Laws of Evidence (2).

The ordinary Evidence Law of England, as modified by the Result. Indian Acts, has thus accordingly become the law of the High Courts of the presidencies, in every branch of their jurisdiction; and it may be understood that the law, which it will be our business to explain, is that which is the guide throughout India, as well in the Courts of the mofussil as in those of the presidencies.

The Evidence Act is of an enlarging, rather than a restraining, Evidence Act character in its scope; and it has in its concluding section a provi- enlarging. sion that nothing in the Act contained shall be so construed as to render inadmissible in any Court any evidence which, but for the passing of the Act, would have been admissible in such Courta provision which its marginal placitum points as having been framed with peculiar reference to the Courts of the mofussil.

(1) Act II of 1855, s. 27.

(2) Sir Mordaunt Wells, in a case before him, shortly after the establishment of the High Courts, thus classified the law obtaining in the High Court at Calcutta in its Original Jurisdiction :

1. The Common Law as it prevailed in England in 1726, and which has not subsequently been altered by statutes, especially extending to India.

2. The Statute Law which prevailed in England in 1726, and which has not subsequently been altered by statutes, especially extending to India.

3. The Statute Law expressly extending to India, which has been enacted since 1726, which has not been repealed.

4. The Civil Law as it obtains in the Ecclesiastical and Admiralty Courts in England. 5. Regulations made by the Governor-General in Council under the 13th George III, c. 63, ss. 36 and 37, 39 and 40; George III, c. 79, s. 18; and 53 George III, c. 155, ss. 98 and 99. 6. The Hindu Law in all civil actions in which a Hindu is defendant.

7. The Mahomedan Law in all civil actions in which a Mahomedan is defendant. -Borrodaile v. Chainsook Buxyram, Indian Jurist, Vol. I, p. 71; and Hyde's Rep., p. 61.

Importance

of subject.

Delivery of
Testimony on

Oath.
Exception.

CHAPTER IV.

ON THE PERSONAL QUALIFICATIONS AND DISQUALIFICATIONS

OF WITNESSES.

IN the two earlier chapters a sketch has been given of the more general principles of evidence in their broader classification. To fill up the outline in its detail will be the province of the remaining portion of the work.

One of the first subjects for consideration is naturally the instruments of testimony; and here the personal qualification, or disqualification, of the witnesses lies at the threshold.

According to English law, certain persons having religious scruples to taking an oath are allowed to give their evidence on affirmation; though under a formal declaration of truth, substituted for the oath, and with the like penalties for perjury.

The excepted class was originally confined to certain religious sects called Quakers and Moravians; afterwards extended to one termed Separatists; but an Act of 1854 (1) conferred the exemption from swearing on all persons unwilling from alleged conscientious motives to be sworn, on the Court being satisfied of the sincerity of the objection. In place of taking an oath, these persons were allowed to make a solemn affirmation. And now (2), if any person object to take an oath, or is objected to as incompetent to take one, the Judge, upon being satisfied that the taking of an oath would have no binding effect upon him, may take a promise and declaration from him in lieu of an oath.

With these exceptions all testimony delivered in English Courts of Justice, or otherwise as part of a legal procedure, whether Bankruptcy, Inquisition, Arbitration, or otherwise, is taken under the sanction of an oath.

So universal is this, that it extends even to the depositions of Peers of Parliament. The same principle, it seems too, would apply even in the case of the Sovereign, had the Sovereign to appear as a witness in a proceeding. The Peers are, however, privileged, while sitting in judgment in the High Court of Parliament, to deliver their verdicts upon honour, and similarly to answer a bill in Chancery.

(1) 17 & 18 Vict., c. 125 (Common Law Procedure Act), s. 20.
(2) 32 & 33 Vict., c. 68, s. 4. See post, p. 119.

All false testimony thus delivered carries with it an exposure _CHAP. IV. to the penalties of perjury; though in England, to constitute False perjury, it is necessary that the testimony, which must be to a testimony, when Perjury. matter which is material to the point in question (1), should be taken In England. in the course of a regular proceeding, and the oath have been administered by, or the declaration made before, an authorized person.

By the Common Law in England, perjury is defined to be a wilful false oath by one who, being lawfully required to depose the truth in any proceeding in a course of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not (2).

Under the Indian Penal Code (Act XLV of 1860), however, it is no part of the definition of giving false evidence that the testimony should relate to a thing material to the point in question; but in order to constitute the offence of fabricating false evidence, the intention must be to cause an erroneous opinion to be entertained touching any point material to the result of the proceeding in which it is to be used (3).

To the offence either of giving or of fabricating false evidence, it is not essential that it should be given or fabricated for the purpose of being used in some stage of a judicial proceeding, but the offender is liable to a heavier punishment when it is so given or fabricated than in any other case.

The Indian Penal Code, in propounding its definition of false evidence, declares (Section 191):-" Whoever being legally bound by an oath, or by any express provision of law, to state the truth, or being bound by law to make a declaration on any subject, makes any statement which is false, and which he either knows or believes to be false, or does not believe to be true, is said to give false evidence." Explanation I. points out that a 'statement' is within the meaning of the clause whether made verbally or otherwise.

(1) Mr. Taylor, in his 5th edition, p. 54, says it is still a moot point whether, on an indictment for perjury, the materiality of the matter in which the false swearing is proved is a question of fact for the Jury, or a question of law for the Judge; but according to the better opinion, it ought to be regarded in the latter light.

(2) 1 Hawkins' Pleas of the Crown, c. 69, s. 1.

(3) And see an earlier Section of the Penal Code in the Chapter relating to offences against Public Servants, Section 181, which enacts that whoever, being legally bound by an oath to state the truth on any subject to any public servant, or other person authorized by law to administer such oath, makes to such public servant, or other person as aforesaid, touching that subject, any statement which is false, and which he either knows or believes to be false, or does not believe to be true, shall be punished, &c.

In India.