Reg. I. of 1824, gives power to Criminal Courts and Magistrates. Act XXI. of 1837, provides for affirmations in matters not judicial. Act V. of 1840, provides for affirmations in all Courts other than Act II. of 1855, Sec. XV. provides for the admission of evidence Before leaving this subject it may be well to advert to the New York Civil Code: which provides that any person may take a solemn affirmation at his own option. Sec. 1877. The remarks of the author of the Code are worth transcribing. "An important change is made by this section in respect to the administration of oaths, inasmuch as it allows a witness, in any case, to make a declaration or affirmation, instead of taking an oath. By the present law, the oath must be administered, unless the witness declares that he has conscientious scruples against taking an oath. We would not require it, if the witness merely preferred the declaration or affirmation. "That many good men doubt the lawfulness of oaths, and that more are shocked at their frequency, and the levity with which they are taken, are sufficient reasons for dispensing with them, wherever it can be done with safety. It appears to us safe to leave it optional with the witness, whether to take the oath or make the declaration, even though he have no scruple whatever about the lawfulness of an oath. "A bad man will avoid the oath, if he choose, by feigning a scruple he does not feel; a good man does not need it as a sanction for the truth of his declarations." And we may add that an oath, such at least as is ordinarily administered in the Indian Courts, appears to afford very little safeguard against false swearing. Whether an oath taken in the temple, or while holding a cow's tail, is thought to require a more strict observance than other forms, it may be difficult to say, but the result of experience certainly proves how very little restraint the common oath of a Law Court imposes. Perhaps the most beneficial effect of an oath upon an educated mind is to arouse the attention, to excite caution, and secure accuracy of statement: it may terrify or stupify the superstitious; but so far as the value of Native testimony is concerned, perhaps it is not too much to say, that evidence is as credible without, as with the sanction of our ordinary oath. § 54. But the penalties for perjury still attach to a wilfully false statement made upon affirmation, solemn or simple.(~) § 55. There were always two exceptions to the rule that evidence must be upon oath. The first was in favor of such as had religious scruples, Quakers, and Moravians, for instance; not, be it observed, of those who had irreligious scruples, such as Atheists. A perverse refusal to be sworn is a contempt of Court. The second was in favor of persons" in extremis," making dying declarations. § 56. The subject of dying declarations will be considered more fully hereafter; here it may suffice to remark that the admissibility of such testimony depends upon the maxim Nemo moriturus præsumitur mentiri. It is not probable that any man would rush into the presence of his Maker with a lie upon his tongue; and the awful circumstances in which he is placed are thought to constitute in themselves a sufficient guarantee for the truth of the deponent's statement. This unwillingness may be exemplified by the conduct of those persons, who, convicted of a capital crime upon the clearest evidence, though they will not confess their guilt, submit to execution of the extreme sentence of the Law in silence. Thus too, Palmer, when called upon to confess the truth shortly before his death, sought to escape dying with a lie in his mouth, by an equivocation, which perhaps might have satisfied his own mind, that his victim did not die by strychnine. Supposing antimony to have been mixed with the other poison, he might have deemed this statement true according to the letter, though it was certainly a negative pregnant almost tantamount to a confession of murder. § 57. Formerly much difficulty was often experienced in proving, what was then necessary, that the party "in extremis" was impressed with a belief of impending death. It has been now thought that although a gleam of hope of recovery might linger in the sufferer's mind, his condition is sufficiently awful to afford a security for truthfulness; and the Legislature has accordingly(0) declared that a dying (n) Act II. of 1855, Sec. XVII. (0) Ibid, Sec. XXIX. declaration is admissible in evidence, notwithstanding the entertainment of a hope of recovery at the time of making it.(p) § 58. As we are at present investigating the principles of evidence the remainder of the learning on this head may conveniently be deferred to a period when the practice regarding it will come in logical order under consideration. We have now only further to observe that the admission of such evidence militates against the other excluding principle; that of the cross-examination test; for even if the statement has been made in the absence of the party to be affected by it, so that he has had no opportunity for cross-examination, it is nevertheless receivable. This exception to the general rule is however based upon the soundest reasoning. Crime is in its very nature secret. It must often happen that the available evidence of the deed is locked up in the breast of the party slain: his peril may be so imminent that no time can possibly be lost; and if under such circumstances his testimony, vouched for as it is by his awful situation, were to be excluded, because not delivered upon oath, and in the presence of the prisoner, we should hold out a premium to the assassin to strike his blow home and sure. § 59. Where an oath is still to be taken, it is to be administered in the form most binding upon the conscience of the witness. The leading case upon this subject is that of Omychund v. Barker.(2) (p) See C. O. Foujd. Ad. 26th Nov. 1832. (q) Willes' Rep. p. 538, also 1 Smith's Leading Cases, p. 195. See also Best on Ev. § 159. "Numerous instances are to be found in our books of the application of the principle that witnesses are to be sworn in that form which they consider binding on their consciences. Members of the Kirk of Scotland, and others who object to kissing or touching the book, have been sworn by lifting up the right hand while it lay open before them. Irish Roman Catholics are sworn on a New Testament with a crucifix delineated on the cover. Jews are sworn on the Pentateuch, keeping on their hats, the language of the oath being changed from "So help you God" to "So help you Jehovah." Mohamedans are sworn on the Koran, and the ceremony is thus described in R. v. Morgan. The book was produced. The witness first placed his right hand flat upon it, put the other hand to his forehead, and brought the top of his forehead down to the book, and touched it with his head; he then looked for some time upon it, and on being asked what effect that ceremony was to produce, he answered that he was bound by it to speak the truth. According to the report of Omychund v. Barker, part of the ceremony of swearing a Hindoo consists in his touching the foot of a Bramin, or, if the party swearing be himself a priest, then the Bramin's hand; but, if this is deemed by their religion essential to the validity of an oath, it is obvious that Hindoos cannot be sworn in countries where no Bramins are to be found. A Chinese witness has been sworn thus. On getting into the witness-box he knelt down, and a China saucer having been placed in his hand, he struck it against the brass rail in front of the box and broke it. The officer who swears the witnesses then administered the oath in these words, which were translated by the interpreter into the Chinese language. You shall tell the truth and the whole truth; the saucer is cracked, and if you do not tell the truth your soul will be cracked like the saucer.'' See R. v. Morgan, 1 Leach Cr. Cas. 54. § 60. We come now to the second excluding test mentioned in § 40 that of cross-examination. I have already had occasion to observe that this test is directed both to the ability and willingness of a witness to speak the truth. It is indeed the most powerful weapon in the hands of a practised Judge or Advocate. But it is also a very dangerous, although a very tempting one, in the hands of the novice. It is a double edged weapon, and often wounds the wielder: or like the Boomerang, it reverts on him who hurls it. § 61. There are some excellent observations of Starkie on this subject which should be studied. (P. 195.) "The power and opportunity to cross-examine, it will be recollected, is one of the principal tests which the law has devised for the ascertainment of truth, and this is certainly a most efficacious test. By this means the situation of the witness with respect to the parties and the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discerning facts in the first instance, and his capacity for retaining and describing them, are fully investigated, and ascertained, and submitted to the consideration of the jury, who have an opportunity of observing the manner and demeanour of the witness; circumstances which are often of as high importance as the answers themselves. It is not easy for a witness who is subjected to this test, to impose upon the Court; for however artful the fabrication of the falsehood may be, it cannot embrace all the circumstances to which the cross-examination may be extended; the fraud is therefore open to detection for want of consistency between that which has been invented, and that which the witness must either represent according to the truth, for want of previous preparation, or misrepresent according to his own immediate invention. In the latter case, the imposition must obviously be very liable to detection; so difficult is it to invent extemporaneously, and with a rapidity equal to that with which a series of questions is proposed, in the face of a court of justice, and in the hearing of a listening and attentive multitude, a fiction consistent with itself and the other evidence in the cause." § 62. It is not essential that cross-examination should actually have taken place. It is sufficient if the party to be affected by it has had the opportunity of cross-examining the deponent. Thus, if the deposition of a deceased witness, taken before a Magistrate on a charge of D felony, were tendered in evidence against a prisoner at his trial, it would be no objection on his part to its reception, that he had not actually cross-examined the deceased. It would suffice if he had been present when the deposition was taken, and had the opportunity of cross-examining, if so disposed. On the other hand, this rule obviously rejects all such evidence as has been taken in the absence of the party to be affected by it; for he could not in that case have had the opportunity which the law requires. Hence the necessity for taking depositions of witnesses in the presence of the prisoner. Hence too the depositions of witnesses in a former suit, to which the person sought to be affected by such depositions was no party, are necessarily rejected; for it is "res inter alios acta," an affair between others. He could have had no possibility of cross-examining the witnesses in the former suit, and therefore it shall not affect him, conclusive as it may be in a second suit, about the same matters, between the same parties. § 63. Generally indeed it may be said that this test excludes all "res inter alios actas." For this reason, a judgment obtained by A in an action against B, though conclusive between the same parties, in a subsequent action, touching the same matter, shall not affect C, a stranger, whether at the suit of A, or B, or of any other person. The exceptions to this rule will be considered when we come to the subject of Judgments. But the observations of Starkie may be here most conveniently stated. (P. 36.) "It is, however, to be observed that there is one class of cases where decrees or judgments are evidence against a party, although he was not actually privy to the proceeding or suit in which the judgment or decree was pronounced. This happens where the suit or proceeding does not relate to a mere private transaction between individuals or particular parties, but to some more public subject-matter beyond the mere rights of the litigants, in which the public possess an interest. It will be necessary hereafter to consider these cases with some minuteness; for the present, it may suffice to advert to them generally, and briefly to state the principle on which such evidence is admissible; and how far it is inconsistent with the general and ordinary rule, that a party is not to be affected either by any testimony or judgment founded upon that testimony, where he has not had an opportunity to cross-examine the witness and to controvert his testimony. In many instances a court possesses a jurisdiction which enables it to pronounce on the nature and qualities of a particular subject-matter, where the proceeding is, as it is technically termed, in rem: as where the Ordinary or the Court Christian decides upon questions of marriage or bastardy; or the Court of |