and audacity of their sex ;"-A law which looks apocryphal, but CHAP. II. which even if genuine could not have been of universal application. "One of the strangest and most absurd applications of this principle" (to borrow Mr. Best's concise history of the matter) "was the rejecting, or at least regarding with suspicion the testimony of women as compared with that of men. The Hindu code, it appears, rejected their evidence generally if not absolutely, as likewise did the Mohammedan law on charges of adultery, and in some other cases. Nor were these merely Asiatic views. The civil and canon laws of medieval Europe seem to have carried the exclusion much further. Mascardus says "Foeminis plerumque omnino non creditur, ob id duntaxat quod sunt fœminæ, quæ ut plurimum solent esse fraudulentæ, fallaces et dolosa” (1). And Lancelottus, in his Institutes of the Canon Law, lays down in the most distinct terms that women cannot in general be witnesses, citing the language of Virgil " Varium et mutabile semper fœmina" (2),-not the only instance in which poetry has been invoked to justify maxims and laws indefensible by reason. That these rules were plastic enough like the other rules of those systems, so as to admit many exceptions, may easily be conceived; but the following extract, from an able French jurist of our time shows how long the principle held its ground on this continent. "After women had been admitted to bear testimony by an ordonnance of Charles VI (of France) of the 15th November 1394, it was long before their evidence was considered equivalent to that of a man. Bruneau, although a contemporary of Made. de Sévigné, did not scruple to write, in 1686, that the deposition of three women was only equal to that of two men. At Berne, so late as 1821, in the Canton of Vaud down to 1824, the testimony of two women was required to counterbalance that of one man. We will say nothing of the minor distinctions with which the system was complicated, such for instance, as the principle that a virgin was entitled to greater credit than a widow-magis creditur virgini quam viduæ. In the edition of the Institutiones Canonico of Devotus, published at Paris in 1852, it is distinctly stated that, except in a few (1) Credence in general ought not to be given to women for the simple reason that they are women, and their usual habit is to be fraudulent, false, and deceitful. (2) A fickle and ever changing thing is woman.-En. IV, 569. CHAP. II. peculiar instances, women are not competent witnesses in criminal cases. In Scotland also, until the beginning of the 18th century, sex was a cause of exclusion from the witness box in the great majority of cases. Even our old English lawyers occasionally rejected the evidence of women, on the ground that they are frail. Sir E. Coke, in the reign of Charles I, without a single note of dissent or disapprobation, writes thus :-" In some cases women are by law wholly excluded to bear testimony, as to prove a man to be a villein,- mulieres ad probationem status hominis admitti non debent' (1). It seems also that in very early times their testimony was insufficient to prove issue born alive, so as to entitle a man to be tenant by the curtesy; neither could they prove the summons of Jurors in an assize" (2). Hindu and The Mitacshara enumerates women generally among the class of incompetent persons. But their testimony was nevertheless admissible on matters peculiarly affecting themselves. "So also," says Mr. Macnaghten, "women should be made the witnesses of women" as Menu has said "women should regularly be witnesses for women" (3). A curious (it is to be hoped rare) authority, cited by Mr. Macnaghten in his volume of authorities will illustrate the sort of case to which such testimony would apply. A woman, having committed adultery with her husband's younger brother, sued him for her maintenance, and selected his wife, as the witness, and the only one, to prove the fact. The case being that of a female, the evidence though but of one single female, was not only received, but held to be good and legal (4). The Mahomedan law proceeded on much the same principle,that is to say, at least in certain cases involving minor consequences, when the evidence of two men at least was primâ facie required, this might be supplied by the evidence of one man, and two women. But in cases inducing the penalties of what were termed hudd or kisas (penalties of the graver description) which were barred by a doubt of the truth of the charge, the evidence was inadmissible; because, said the law, the testimony of women involves in itself a degree of doubt; and it is considered merely a substitute for evidence, being taken only when that of men cannot be had. To even this rule, however, there was an exception, (1) Women ought not to be admitted to the trial of a man's status. (2) Best on Evidence, p p. 77, & sqq. (3) Principles of Hindu Law, Vol. I, p. 242. (4) Vol. II, p. 319. founded on a traditional saying of the Prophet:-" The evidence_CHAP. II. of women is valid with respect to such things as it is not fitting for man to behold" (1). universally. Fortunately the improved moral and intellectual education of Now admitted women in civilized countries, in modern times, has removed this degrading incapacity; and whatever the effect ascribable to it when delivered, female testimony is now universally admitted, not only in the courts of Europe, but in all those under British sway in India. with crime. The prejudice against the Police addresses itself to those con- The Police, nected with the apprehension of, and obtaining punishment for, corps." The 'esprit de offenders, in fact with the administration of criminal justice Familiarity generally; and certainly the Native police of India have not escaped the general suspicion. Its obvious foundation is the "esprit de corps " of the whole body; and the assumed existence of an impulse to convict, stimulated, if by no other reward, by a prospect of personal advancement proportioned to the zeal displayed in the cause; and of which zeal success is ordinarily taken as a test. Moreover, familiarity with crime is usually anything but an incentive to veracity; and as respects the lower functionaries, at all events, of the police, these are taken from the lower section of the community itself. Of course we speak only in generals and of tendencies; it is not meant to be advanced that honest witnesses are not to be found among the police, as well as in any other body of the community. Impartiality. mistake. With respect to Foreigners,-these, from the very fact of their Foreigners. being foreigners, may be said, on the one hand, to be impartial Liability to witnesses; on the other, however, supposing their deposition to Want of local be taken in the Courts of the country in which they may be tem- check. porary residents, or otherwise to relate to facts occurring during their residence there, they are not unlikely to be mistaken ones, from a lower degree of familiarity with the usages, and the language of those among whom they are sojourning, and the chances accordingly of original misapprehension. Moreover, while speaking to circumstances occurring in another country, and either examined under a commission there, or coming from a distance to depose in the Court in which the trial proceeds, the check of contradiction and cross-examination would be of a lower than the ordinary degree. In the proportion too in which the home of any (1) Beaufort's Digest of Criminal Law, p. 118. CHAP. II. foreigner may be distant from the tribunal to which his evidence. is submitted, or he himself unknown to the Court or its suitors, would be weakened that hold upon his veracity which is attributable to every local witness, both in the circumstance that his testimony would be liable to be submitted to the criticism of his neighbours, and the knowledge and appreciation by the Court of his character. Translation. Chances of miscarriage. Gain of time to answer. The torture test-Menu. In one sense too, every witness whose testimony requires translation to make it intelligible to the forum, is a foreign witness; and in this sense, so far at all events as regards the High Courts of the Presidencies in India, a very large proportion of even the native population is foreign. But translation always involves the chance of misapprehension and inaccuracy; exaggeration on the one hand, under-statement on the other, and sometimes total misconception. Nor is this all. In the High Courts of the Indian Presidencies, and sometimes too (when attended by English Advocates) in those of the mofussil, in the case of Natives, the question asked of the witness is put in one language, say English, before it is translated by the Interpreter (this in the Native Courts may be the Sheristadar, sometimes, even the Judge) into the language of the witness. Now it constantly happens, though more particularly in the Presidency Towns, or as regards the mofussil among the higher classes of Natives only, that though the process of translation is resorted to, the witness in fact has, to say the least of it, a very decent knowledge of the language in which the question is originally put, often a much greater one than he cares to confess. The result is to afford greater time both to concoct and to mature an answer of falsehood,—to give opportunity for fencing,-and finally to get out of an embarrassment or a contradiction, under the plea of misapprehension. Among rude nations the barbarous practice has prevailed of applying torture as well to elicit a confession from an accused, as to try the trustworthiness of a witness; and the Laws of Menu resorted to the torture test of veracity in every variety of form. "He," saith Menu," whom the blazing fire burns not, whom the water soon forces not up, or who meets with no speedy misfortune, must be held veracious in his testimony on oath" (1). (1) Menu, C. VIII, §§ 114 and 115. practised in Trial by Wager of To Europe too, in the earlier and darker period of her history, CHAP. II. the torture test was not unknown; nor was English Judicature in Torture those days altogether free from the reproach. In the West, formerly however, it did not so generally assume the form of trying the Europe: veracity of the witnesses, as that of either determining the litigated Ordeal: right itself by an appeal to Heaven of the litigants, or the existence of battle. the crime alleged, by forcing a confession of guilt from the accused. The ordinary phase of the two last was, in the case of a contested right, to subject its decision to the issue of a judicial combat, either of the parties, or the champions; in that of an alleged offence, its trial by the ordeal, say of fire or water, upon the theory, that, were it a case of guilt the elements would themselves avenge the crime by the destruction of the culprit; while innocence would be proclaimed by escape from their powers. Thus the guilty were burnt or drowned, the innocent-(though few enough under such an ordeal they must have proved)-came out unscathed :—a double compound of superstition and barbarity, scarcely reconcileable with even the moderate advance in civilization of the age in which it was practised. witches. Even down to a comparatively late period, this iniquitous Applied to mockery was applied in England to those unhappy creatures who, under the name of witches, had the misfortune to be charged by either ignorance or malice with communication with the unknown world, and the being armed with a sort of commission for mischief from it; and under its cruel process many harmless unoffending women, both old and young, have been put to a wanton death. The readers of Hudibras may not have forgotten the lines of the great Satirist on this abomination : --- "It is no jesting, trivial matter, To swing i' the air, or douce in water, That's to destroy, and not to prove." To which his Annotator has subjoined the note: The common test for witchcraft was to throw the suspected witch into the water. If she swam, she was judged guilty; if she sank, she preserved her character, and only lost her life. King James in his Dæmonology explained the floating of the witch, by the refusal of the element used in baptism to receive into its bosom one who had renounced the blessing of it " (1). (1) Hudibras, Part II, Canto I, line 501, Note 2. |