WITNESS. One who, being sworn or affirmed, according to law, deposes
as to his knowledge of facts in issue between the parties in a cause.
2. In another sense by witness is understood one who is called upon to be
present at a transaction, as a wedding, or the making of a will. When a person
signs his name to an instrument, as a deed, a bond, and the like, to signify
that the same was executed in his presence, he is called an attesting
3. The testimony of witnesses can never have the effect of a demonstration,
because it is not impossible, indeed it frequently happens, that they are
mistaken, or wish themselves to deceive. There can, therefore, result no other
certainty from their testimony than what arises from analogy. When in the calm
of the passions, we listen only to the voice of reason and the impulse of nature
we feel in ourselves a great repugnance to betray the truth, to the pre-judice
of another, and we have observes that honest, intelligent and disinterested
persons never combine to deceive others by a falsehood. We conclude then, by
analogy, with a sort of moral certainty, that a fact attested by several
witnesses, worthy of credit, is true. This proof derives its whole force from a
double presumption. We presume, in the first place, on the good sense of the
witnesses that they have not been mistaken; and, secondly, we presume on their
probity that they wish not to deceive. To be certain that they have not been
deceived, and that they do not wish to mislead, we must ascertain, as far as
possible, the nature and the quality of the facts proved; the quality and the
person of the witness; and the testimony itself, by comparing it with the
deposition of other witnesses, or with known facts. Vide Circumstances.
4. It is proper to consider, 1st. The character of the witness. 2d. The
quality of the witness. 3d. The number of witnesses required by law.
5. - 1. When we are called upon to rely on the testimony of another in order
to form a judgment as to certain facts, we must be certain, 1st. That he knows
the facts in question, and that he is not mistaken; and, 2d. That he is disposed
to tell the truth, and has no desire to impose on those who are to form a
judgment on his testimony. The confidence therefore, which we give to the
witness must be considered, in the first place, by his capacity or his
organization, and in the next, by the interest or motive which he has to tell or
not to tell the truth. When the facts to which the witness testifies agree with
the circumstances which are known to exist, he becomes much more credible than
when there is a contradiction in this respect. It is true that until impeached
one witness is as good as another; but when a witness is impeached, although he
remains competent, he is not as credible as before. Vide Circumstances;
6. - 11. As to the quality of the witnesses, it is a general rule that all
persons way be witnesses. To this there are various exceptions. A witness may be
incompetent, 1. For want of understanding. 2. On account of interest. 3. Because
his admission is contrary to public policy. 4. For want of religious principles;
and, 5. On account of infamy.
7. - §1. Persons who want understanding, it is clear, cannot be witnesses,
because they are to depose to facts which they know; and if they have no
understanding, they cannot know the facts. There are two classes of persons of
8. - 1. Infants. A child of any age capable of distinguishing between good
and evil may be examined as a witness; and in all cases, the examination must be
under oath or affirmation. 1 Phil. Ev. 19; 1 Const. R. 354. This appears to be
the rule in England; though formerly it was held by some judges that it was a
presumption of law that the child was incompetent when he was under seven years
of age. Gilb. Ev. 144; 1 East, R. 422; 1 East, P. C. 443; 1 Leach, 199. When the
child is under fourteen, he is presumed incapable until capacity is shown; 2
Tenn. Rep. 80; 19 Mass. R. 225; and see 18 John. R. 105; when he is over
fourteen he may be sworn without a previous examination. 2 South. R. 589.
9. - 2. Idiots and lunatics. An idiot cannot be examined as a witness, but a
lunatic, (q. v.) during a lucid interval, (q. v.) may be examined. A person in a
state of intoxication cannot be admitted as a witness. 15 Serg. & Rawle,
235. See Ray, Med. Jur. c. 22, §300 to 311.
10. - §2. Interest in the event of the suit excludes the witness from
examination, unless under certain circumstances. See article Interest. The
exceptions are the cases of informers, (q. v.) when the statute makes them
witnes-ses, although they may be entitled to a penalty; 1 Phil. Ev. 96; persons
enti-tled to a reward, (q. v.) are sometimes competent; agents are also admitted
in order to prove a contract made by them on the part of the principal, 1 Phil.
Ev. 99; and see 1 John. Cas. 408; 2 John. Cas. 60; 2 John. R. 189; 13 Mass. R.
380; 11 Mass. R. 60; 2 Marsh. In 706 b; 1 Dall. R. 7; 1 Caines' R. 167. A mere
trustee may be examined by either party. 1 Clarke, R. 281. An interested witness
competency may be restored by a release. 1 Phil. Ev. 101. Vide, generally, 1
Day's R. 266, 269; 1 Caines' R. 276; 8 John. R. 518; 4 Mass. R. 488; 3 John.
Cas. 82, 269; 1 Hayw. 2; 5 Halst. R. 297; 6 Binn. R. 319; 4 Binn. 83; 1 Dana's
R. 181; 1 Taylor's R. 55; Bac. Ab. Evidence B; Bouv. Inst. Index, h. t.
11. - §3. There are some persons who cannot be examined as witnesses, because
it is inconsistent with public policy that they should testify against certain
persons; these are,
12. - 1. Husband and wife. The reason for excluding them from giving
evidence, either for or against each other, is founded partly on their identity
of interest, partly on a principle of public policy which deems it necessary to
guard the security and confidence of private life, even at the risk of an
occasional failure of justice. They cannot be witnesses for each other because
their interests are absolutely the same; they are not witnesses against each
other, because it is against the policy of marriage. Co. Litt. 6, b; 2 T. R.
265, 269; 6 Binn. 488. This is the rule when either is a party to a civil suit
13. But where one of them, not being a party, is interested in the result,
there is a distinction between the giving evidence for and against the other. It
is an invariable rule that neither of them is a witness for the other who is
interested in the result, and that where the husband is disqualified by his
interest, the wife is also incompetent. 1 Ld. Raym. 744; 2 Str. 1095; 1 P. Wms.
14. On the other hand, where the interest of the husband, consisting in a
civil liability, would not have protected him from examination, it seems that
the wife must also answer, although the effect may be to subject her husband to
an action. This case differs very materially from those where the husband
himself could not have been examined, either because he was a party or because
he would criminate himself. The party to whom the testimony of the wife is
essential, has a legal interest in her evidence; and as he might insist on
examining the husband, it would, it seems, be straining the rule of policy too
far to deprive him of the benefit of the wife's testimony. In an action for
goods sold and delivered, it has been held that the wife of a third person is
competent to prove that the credit was given to her husband. 1 Str. 504; B. N.
P. 287. See 1 H. & M. 154; 11 Mass. 286; 1 Har. & J. 478; 1 Tayl. 9; 6
Binn. 488; 1 Yeates; 390, 534.
15. When neither of them is either a party to the suit, nor interested in the
general result, the husband or wife is, it seems, competent to prove any fact,
provided the evidence does not directly criminate, or tend to criminate, the
other. 2 T. R. 263.
16. It has been held in Pennsylvania that the deposition of a wife on her
death-bed, charging her husband with murdering her, was good evidence against
him, on his trial for murder. Addis. 332. On an indictment for a conspiracy in
inveigling a young girl from her mother's house, and she being intoxicated,
procuring the marriage ceremony to be recited between her and one of the
de-fendants, the girl is a competent witness to prove the facts. 2 Yeates,
17. See, as to the competency of a wife de facto, but not de jure, Stark. Ev,
pt. 4, p. 711. And on an indictment for forcible entry, the wife of the
prosecutor was examined as a witness to prove the force, but only the force. 1
18. 2. Attorneys. They cannot be examined as witnesses as to confidential
communications which they have received from their clients, made while the
relation of attorney and client subsisted. 3 Johns. Cas. 198. See 3 Yeates, 4.
Communications thus protected must have been made to him as instructions
ne-cessary for conducting the cause, and not any extraneous or impertinent
matter; 3 Johns. Cas. 198; they must have been made to him in the character of a
counsel and not as a friend merely; 1 Caines' R. 15 7; they must have been made
while the relation of counsel and client existed, and not after. 13 John. Rep.
492. An attorney may be examined as to the existence of a paper entrusted to him
by his client, and as to the fact that it is in his possession, but he cannot be
compelled to produce it, or disclose its date or contents. 17 Johns. R. 335. See
18 Johns. R. 330. He may also be called to prove a collateral fact not entrusted
to him by his client; as to prove. his client's handwriting. 19 Johns. R. 134: 3
Yeates, 4. He is a competent witness for his client, although his judgment fee
depends upon his success; 1 Dall. 241; or he expects to receive a larger fee
from his client if the latter succeeds. 4 S. & R. 82. In Louisiana, the
reverse has been decided. It is there held that an attorney cannot become a
witness for his client in a cause in which he was employed, by renouncing his
fee, and having his name struck off from the record, in that case. 3 N. S. 88.
Vide Confidential Communications.
19. - 3. Confessors. In New York it has been held that a confessor could not
be compelled to disclose secrets which he had received in auricular confession.
City Hall Rec. 80 n. Vide Confessor; Confidential Communications.
20. - 4. Jurors. A juror is not competent to prove his own or the conduct of
his fellow jurors to impeach a verdict they have rendered. 5 Conn. R. 348. See
Coxe, R. 166, and article Grand Jury. And a judge in a cause which is on trial
before him cannot be a witness, as he cannot decide on his own competency, nor
on the weight of his own testimony, compared with that of another; 2 Mart. R. N.
S. 312; 1 Greenl. Ev. §364.
21. - 5. Slaves. It is said that a slave could not be a witness at common law
because of the unbounded influence his master had over him. 4 Dall. R. 145, note
1; but see 1 St. Tr. 113 Macnally's Ev. 156. By statutory provisions in the
slave states, a slave is generally held incompetent in actions between white
persons. See 7 Monr. R. 91; 4 Ham. R. 353; 5 Litt. R. 171; 3 Harr. & John.
97; 1 McCord, R. 430. In New York a free black man is competent to prove facts
happening while he was a slave. 1 John. R. 508; see 10 John. R. 132.
22. - 6. A party to a negotiable instrument, is not allowed to give evidence
to invalidate it. 1 T. R. 300. But the rule is confined to negotiable
instruments. 1 Bl. R. 365. This rule does not appear to be very firmly
established in England. In the state courts of some of the United States it has
been adopted, and may now be considered to be law. 2 Dall. R. 194; ld. 196; 2
Binn. R. 154; 2 Dall. R. 242; 1 Cain. R. 258, 267; 2 Johns. R. 165; Id. 258; 1
John. R. 572; 3 Mass R. 559; Id. 565; Id. 27; Id. 31; 1 Day, R. 17; 6 Pet. 51; 8
Pet. 12; 5 Greenl. 374; 1 Bailey, 479; 2 Dall. 194. But flee 16 John. 70; 8
Wend. 90; 20 John. 285. The witness may however testify to subsequent facts, not
tending to show that the instrument was originally invalid. Peake's N. P. C. 6.
See 2 Wash. 63; 1 Hen. & Munf. 165, 166, 175; 1 Cranch, R. 194.
23. - §4. When the witness has no religious principles to bind his
conscience, the law rejects his testimony; but there is not such defect of
religious principles, when the witness believes in the existence of a God, who
will reward or punish in this world or that which is to come. Willes' R. 550.
Vide the article Infidel where the subject is more fully examined and Atheist;
24. - §5. Infamy (q. v.) is a disqualification while it remains.
25. - III. As to the number of witnesses, it is a general rule that one
witness is sufficient to establish a fact, but to this there are exceptions,
both in civil and criminal cases.
26. - 1. In civil cases. The laws of perhaps all the states of the Union
require two witnesses and some require even more, to prove the execution of a
last will and testament devising lands.
27. - 2. In criminal cages, there are several instances where two witnesses
at least are required. The constitution of the United States, art. 3, s. 3,
provides that no person shall be convicted of treason, unless on the testimony
of two witnesses to the same overt act, or on confession in open court. In cases
of perjury there must evidently be two witnesses, or one witness, and such
circumstances as have the effect of one witness; for if there be but one
witness, then there is oath against oath, and therefore uncertainty.
28. A witness may be compelled to attend court. In the first place a subpoena
requiring his attendance must be served upon him personally, and on his neglect
to attend, an attachment for contempt will be issued. See, generally, Bouv.
Inst. Index, h. t.
WITNESS, AGED. It has been laid down as a rule that to be considered
an aged witness, a person must be at least seventy years old. See Aged
WITNESS, GOING. A going witness is one who is about to leave the
jurisdiction of the court in which a cause is depending. See Going Witness.
WITNESS INSTRUMENTARY, Scotch law. He who has attested a deed or other
2. When witnesses attest a deed without knowing the grantor, and seeing him
subscribe, or bearing him own his subscription, and the deed happens to be
forged, the witnesses are declared accessory to forgery. Ersk. Pr. L. Scot, 4,
4, 37; 6 Hill, N. Y. Rep. 303.
WOMEN, persons. In its most enlarged sense, this word signifies all
the females of the human species; but in a more restricted sense, it means all
such females who have arrived at the age of puberty. Mulieris appellatione etiam
virgo viri potens continetur. Dig. 50, 16, 13.
2. Women are either single or married. 1. Single or unmarried women have all
the civil rights of men; they may therefore enter into contracts or engagements;
sue and be sued; be trustees or guardians, they may be witnesses, and may for
that purpose attest all papers; but they are generally, not possessed of any
political power; hence they cannot be elected representatives of the people, nor
be appointed to the offices of judge, attorney at law, sheriff, constable, or
any other office, unless expressly authorized by law; instances occur of their
being appointed post-mistresses nor can they vote at any election. Wooddes.
Lect. 31; 4 Inst. 5; but see Callis, Sew. 252; 2 Inst 34; 4 Inst. 311, marg.
3. - 2. The existence of a married woman being merged, by a fiction of law,
in the being of her husband, she is rendered incapable, during the coverture, of
entering into any contract, or of suing or being sued, except she be joined with
her husband; and she labors under all the incapacities above mentioned, to which
single women are subject. Vide Abortion; Contract; Divorce; Feminine; Foetus;
Gender; Incapacity; Man; Marriage; Masculine; Mother; Necessaries; Parties to
Actions Parties to Contracts; Pregnancy; Wife.
WOODGELD, old Eng. law. To be free from the payment of money for
taking of wood in any forest. Co. Litt. 233 a. The same as Pudzeld. (q. v.)
WOODS, A piece of land on which forest trees in great number naturally
grow. According to Lord Coke, a grant to another of omnes boscos suos, all his
woods, will pass not only all his trees, but the land on which they grow. Co.
Litt. 4 b.