finds upon investigation that he is aware of the nature of an oath or declaration, and that he is in a condition to understand the subject with respect to which he is required to testify.'

2440. As to the Admissibility of the Evidence of the Deaf and Dumb.-It used to be the custom of Judges to regard persons deaf and dumb from birth as, in contemplation of law, idiots. But this presumption, which led to considerable inconsistency, is no longer recognized. It has been long understood that persons who lack these important senses may yet be possessed of very considerable intelligence, and be capable of a very large amount of culture. The general rule in such cases is that the Court should ascertain that the witness possesses the requisite amount of intelligence, that he understands the nature of an oath, and that being satisfied upon these points, it should direct the witness to be sworn, and receive his evidence through an interpreter. If the witness is able to communicate his ideas perfectly in writing, he will be required to adopt that as the more satisfactory method;' but if his knowledge of that method is imperfect, he will be permitted to testify by means of signs. Mr. Taylor mentions a case in which he had, at the Lambeth County Court, to come to a decision on the sole evidence of three deaf and dumb witnesses-viz., the plaintiff and his wife on one side, and the defendant on the other."

2441. Lunatic a Competent Witness during a Lucid Interval. Even where the insanity itself is of such a nature as to preclude the evidence of the person laboring under it from being received, the occurrence of a lucid interval will

Reg. v. Hill, 2 Den. C. C. 254. See also Spittle v. Walton, 11 L. R., Eq. 420; 40 L. J., Ch. 368, S. C,; and Matter of Christie, 5 Paige, 242.

1 Hale P. C. 31; Reg. v. Steel, 1 Lea C. C. 452.

3 Harrod v. Harrod, 1 Kay & J. 4, per Wood, V. C.

Morrison v. Lennard, 3 Car. & P. 127, per Best. C. J., 1 Phil. Ev., 10th ed., p. 7. 5 Id; Reg. v. Ruston, 1 Lea C. C. 408; Reg. v. Steel, 1 Lea C. C. 452; The State v. DeWolfe, 8 Conn. 93; Commonwealth e. Hill, 14 Mass. 207.

Taylor on Evidence, § 1241, note, (5th ed.)

7 We have ourselves defended a man who was deaf and dumb, who was accused of having committed a rape on a blind woman. The evidence of identification failed, and the prisoner was acquitted

render the witness competent.' So in the case of drunkenness, the return of sobriety will enable a Court to receive the evidence; and it is in the power of the Judge, if he has good cause to believe that a witness will be able to testify within a reasonable time, to postpone a trial. But to justify such a course, the testimony should be of such a nature that without it the ends of justice would not be done. In all cases, however, the application for postponement must be made before the jury is sworn, as the Court cannot on this ground discharge the jury after the commencement of the trial.'

442. The Question of Evidence given during Lucid Interval Considered. To all intents and purposes, a man is practically sane during the continuance of a lucid interval, and is therefore a perfectly competent witness with regard to any circumstances which may have occurred during the remission of the disease; and in most cases he would be a perfectly competent witness to any circumstances which occurred in his experience during the continuance of a former lucid interval. Indeed, it seems to us that the law goes too far in insisting upon the possession of intellect i. e. of a perfectly sound mind-at the time of the event to which the individual testifies, as well as at the time of the examination as a constituent of competency. Sane men are, as it were, mad in dreams. Sleep is full of delusions; but this fact does not prevent us, when the morning comes, dissociating our real impressions-as of cold, or headache-from the false impressions of infinite distance with a never-ending leap-of dead friends alive, and all the rest of sleep's drama. In many cases the individual who has been under the influence of that waking nightmare-a delusion-and has recovered, is perfectly capable of bearing testimony to any circumstances which came under his notice during the exacerbation of the disease. But care must be taken to distinguish those kinds of insanity which have the effect of deteriorating the intel

Com. Dig. Testmoigne, A 1.

Hartford v. Palmer, 16 Johns. 153; Hem. ad Pand. Pars. 3, § 14.

Rex v. White, 1 Lea, 430, n. a; 3 Bac. Ab. 202 n.

* Reg. v. Wade, 1 Moo. C. C. 86; Reg. v. Kinloch, 18 How. St. Tr. 402, 408.

lect. In cases of progressive decay, marked by exacerbation and remission of some more acute form of mental derangement, the evidence of persons during lucid intervals in the later stages of the disease is not to be relied upon, [304] on account of general incapacity to observe or to externalize any impressions which may have been made by events upon the mind. So that it has been laid down that, in order to render the evidence given by an individual during a lucid interval valid, it is in some cases necessary that no serious fit of insanity has intervened between the event and the testimony, at least no such fit as would cloud the recollection of the witness, "and cause him to mistake the illusions of imagination for events which actually took place."

2443. Medical Opinions as to the Rule of Law.-Dr. Ray, in his work upon the Medical Jurisprudence of Insanity, has expressed an opinion that it would be well to dissociate the idea of incompetence to testify from that of insanity; but as experience proves, no real, practical inconvenience arises from the presumption of law, although it might be more logically consistent to adopt the rule of the Indian Evidence Act already referred to. [302] Hoffbauer has advanced the opinion that before a witness can be deemed competent, it is necessary that his senses should be sufficiently sound to take cognizance of the facts to which he testifies, that his impressions should have been really what he believes they were, that his testimony should coincide with his belief, and that he should be able to convey his ideas to others sufficiently clearly to be understood. The first and fourth of these principles are truisms, and the second and third are not quite. That a blind man is not to be asked whether a person had on a green or a yellow dress seems to be dictated by the most common of common sense, and that it does not matter whether that blindness has been produced by glaucoma or general paralysis is not a great advance in the way of ratiocination upon the first proposition. As for the fourth principle, that a man should have sufficient capacity to convey his ideas clearly to others before he is believed, does not require

true.

to be laid down definitely in the case of lunatics, as it would naturally suggest itself as being true of any kind of testimony whatever. As to the second and third of Hoffbauer's rules, little need be said. That the lunatic's testimony should bear the same relation to his beliefs that 803 the evidence of a sane man bears to his impressions is all that can be expected. The coincidence of impression and testimony is very rarely found even in the most sane and the most truthful witness. That the impressions should have been really what he believes they were is not absolutely necessary. But if the relation between the impression and the belief are such as they would have been had a sane man been placed in similar circumstances, the evidence of the lunatic is worthy of as much credence as would have been due to the testimony of the sane witness.

444. Method of Inquiry.-From what has been said, it will be understood that the witnessing capacity, if we may make a phrase, varies in different kinds and stages of insanity; and that the lawyer and the physician may understand the conditions of these changes, and so be enabled to judge of the worth of the testimony offered under such circumstances, a more minute inquiry into the subject may be of use. And in order to ascertain the value of the evidence of insane persons, we propose to consider the question-first, in relation to amentia; second, in relation to dementia; third, in relation to mania; and fourth, in relation to melancholia.

445. The Value of the Testimony of Idiots and Imbeciles. It is quite evident that idiocy must disqualify an individual from bearing testimony to any facts. Indeed, the word "witness" does not merely mean the corporal presence of an individual at the scene of an event, else a stone-wall or a tree would be a witness; but it includes, as we have seen, the idea of the possession of sufficient intelligence or mental sentiency to observe the circumstances of the event, and some capacity to remember and relate these circumstances in their actual order, in such a way as to give a third party some knowledge concerning the event. Now, some imbeciles are quite able to do this. Indeed, many imbeciles have much

acuteness; and many stories are told with a view to show that imbeciles have occasionally a somewhat thorough knowledge of the characters of individuals with whom they have come in contact, which would seem to prove that occasionally those persons who are recognized as mentally defective have sufficient power to essay the very highest kind of observation. In each case the question of the reliability of an imbecile's testimony will be a matter for the jury. An individual who is not accused of insanity, but who is known to be untruthful, may be only partially trusted. If a jury knows that it is his interest to speak truth, they will place more reliance upon what he says; and so in the case of an imbecile, if the circumstances are such as would in all probability have made an impression upon a weak mind: if they were such as owing to their relations were likely to be remembered, greater reliance may be placed upon his testimony than if such conditions were not present. Many cases, however, may arise in which an imbecile would be incapable of giving testimony of any value. Some events have too many convolutions, are too complicated in their details, to be appreciated in their entirety by persons of weak mind. (305) The transitory character of all impression on the memory of imbeciles must be borne in mind. Memory is lasting in proportion to the intensity of attention; and it is in the impossibility of the attentive attitude, in the failure to concentrate the rays of consciousness, that the lower forms of intelligence are most clearly distinguished from the highest order of intellects. In consequence of this fact, it is well to be careful in accepting the evidence of persons of weak mind concerning events which are remote in point of time, unless frequent repetition has stereotyped the impression in memory. Still, in many cases, imbeciles are competent to give very useful evidence, and to further the ends of justice, which, but for their evidence, could not be efficiently promoted.

446. The Question of Credibility: How to be Determined by Jury.-The question of the credibility of the evidence of a person of weak mind, which is left to the jury, is very much the same as that which falls to be considered by them in the case of witnesses who have scarcely reached