WISCONSIN. The name of one of the new states of the United States, of America.
2. The constitution of Wisconsin was adopted by a convention, at Madison, on the first day of February, 1848.
3. The right of suffrage is vested by the third article of the constitution, as follows: Sect. 1. Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in this state for one year next preceding any election, shall be deemed a qual-ified elector at such election. 1st. White citizens of the United States. 2d. White persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States on the subject of naturalization. 3d. Persons of Indian blood who have once been declared by law of congress to be citizens of the United States, any subsequent act of congress to the contrary notwithstanding.
4th. Civilized persons of Indian descent, not members of any tribe; Provided, that the legislature may at any time extend by law the right of suffrage to persons not herein enumerated, but no such law shall be in force until the same shall have been submitted to a vote of the people at a general election, and approved by a majority of all the votes cast at such election.
Sect. 2. No person under guardianship, non compos mentis, or insane shall be qualified to vote at any election; nor shall any person, convicted of treason or felony, be qualified to vote at any election, unless restored to civil rights.
Sect. 3. All votes shall be given by ballot, except for such township officers as may by law be directed or allowed to be otherwise chosen.
Sect. 4. No person shall be deemed to have lost his residence in this state by reason of absence on business of the United States or of this state.
Sect. 5. No soldier, seaman or marine, in the army or navy of the United States, shall be deemed a resident in this state, in consequence of being stationed within the same.
Sect. 6. Laws may be passed excluding from the right of suffrage all persons who have been, or may be convicted of bribery, or larceny, or any infamous crime, and depriving every person who shall make or become directly or indirectly interested in any bet or wager depending upon the result of any election, of the right to vote at such election. 4, The fourth article vests the legislative power in a senate and assembly. These will be separately considered, by taking a view, 1. Of the senate. 2. Of the assembly.
5. - 1. The senate. It will be proper to examine, first, the qualification of the senators; secondly, the time of their election; third, the duration of their office fourth, the number of senators.
6. - 1. The senators must have resided one year within the state, and be qualified electors in the district which they may be chosen to represent. Sect. 6.
7. - 2. Senators are elected on the Tuesday following the first Monday of November by the qualified electors of the several districts. One half every year.
8. - 3. They hold their office for two years.
9. - 4. The senate shall consist of a number of members not more than one-third, nor less than one-fourth of the number of the members of the assembly. Sect. 2.
10. - 2. The assembly will be, considered in the same order.
11. - 1. Members of the assembly must have resided one year in the state, and be qualified electors for the district for which they may be chosen.
12. - 2. Members of the assembly are elected at the same time senators are elected.
13. - 3. They are elected annually.
14. - 4. The number of members of the assembly shall never be less than fifty-four nor more than one hundred.
15. The two houses are invested severally with the following powers:
Sect. 7. Each house shall be the judge of the elections, returns and quali-fications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members, in such manner and under such penalties as each house may provide.
Sect. 8. Each house may determine the rules of its own proceedings, punish for contempts and disorderly behaviour; and, with the concurrence of two-thirds of all the members elected, expel a member; but no member shall be expelled a second time for the same cause.
Sect. 9. Each house shall choose its own officers, and the senate shall choose a temporary president when the lieutenant-governor shall not attend as president, or shall act as governor.
Sect. 10. Each house shall keep a journal of its proceedings and publish the same, except such parts as require secrecy. The doors of each house shall be kept open, except when the public welfare shall require secrecy. Neither house shall, without the consent of the other, adjourn for more than three days.
16. By the fifth article, the executive power is vested in a governor.
17. - Sect. 1. The executive power shall be vested in a governor, who shall hold his office for two years; a lieutenant governor shall be elected at the same time, and for the same term.
18. - Sect. 2. No person, except a citizen of the United States, and a qua-lified elector of the state, shall be eligible to the office of governor or lieutenant governor.
19. - Sect. 3. The governor and lieutenant governor shall be elected by the qualified electors of the state, at the times and places of choosing members of the legislature. The persons respectively having the highest, number of votes for governor and lieutenant-governor shall be elected, but in case two or more shall have an equal and the highest number of votes for governor or lieutenant-governor, the two houses of the legislature, at its next annual session, shall forthwith, by joint ballot, choose one of the persons so having an equal and the higbest number of votes, for governor or lieutenant governor. The returns of election for governor or lieutenant governor shall be made in such manner as shall be provided by law.
20. - Sect. 4. The governor shall be commander-in-chief of the military. and naval forces of the state. He shall have power to convene the legislature on extra-ordinary occasions; and in case of invasion, or danger from the preva-lence of contagious disease at the seat of government, he may convene them at any other suitable place within the state. He shall communicate to the legislature at every session, the condition of the state; and recommend such matters to them for their consideration as he may deem expedient. He shall transact all necessary business with the officers of the government, civil and military. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws be faithfully executed.
21. - Sect. 5. The governor shall receive during his continuance in office an annual compensation of one thousand two hundred and fifty dollars.
22. - Sect. 6. The governor shall have the power to grant reprieves, commutations and pardons after conviction for all offences, except treason, and cases of impeachment, upon such conditions and with such restrictions and lim-itations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason he shall have the power to suspend the execution of the sentence, until the case shall be reported to the legislature at its next meeting, when the legislature shall either pardon, or commute the sentence, direct the execution of the sentence, or grant a further reprieve. He shall annually communicate to the legislature each case of reprieve, commutation or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or re-prieve, with his reasons for granting the same.
23. - Sect. 7. In case of the impeachment of the governor, or his removal from office, death, inability from mental or physical disease, resignation or absence from the state, the powers and the duties of the office shall devolve upon the lieutenant-governor for the residue of the term, until the governor, absent or impeached, shall have returned, or the disability shall cease. But when the governor shall, with the consent of the legislature, be out of the state in time of war, at the head of the military force thereof, he shall continue commander-in-chief of the military force of the state.
24. - Sect. 8. The lieutenant-governor shall be president of the senate, but shall have only a casting vote therein. If during a vacancy in the office of governor, the lieutenant governor shall be impeached, displaced, resign, die, or from mental or physical disease, become incapable of performing the duties of his office, or be absent from the state the secretary of state shall act as governor until the vacancy shall be filled, or the disability shall cease.
25. - Sect. 9. The lieutenant governor shall receive double the per them allowance of members of the senate, for every day's attendance as president of the senate, and the same mileage as shall be allowed to members of the legislature.
26. - Sect. 10. Every bill which shall have passed the legislature, shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it, but if not, he shall return it with his objections to that house in which it shall have originated, who shall enter the objections It large upon the journal, and proceed to reconsider it. If after such reconsideration, two-thirds. of the members present shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present, it shall become a law. But in all such cases, the votes of both houses shall be determined by, yeas and nays, and the names of the members, voting for or against the bill, shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law, unless the legislature shall by their adjournment prevent its return, in which case it shall not be a Iaw.
27. The seventh article establishes the judiciary as follows:
Sect. 1. The court for the trial of impeachments shall be composed of the senate. The house of representatives shall have the power of impeaching all civil officers of this state, for corrupt conduct in office, or for crimes and misdemeanors; but a majority of all the members elected shall concur in an impeachment. On the trial of an impeachment against the governor, the lieutenant governor shall not act as a member of the court. No judicial officer shall exercise his office after he shall have been impeached until his acquittal. Before the trial of an impeachment, the members, of the court shall take an oath or affirmation truly and impartially to try the impeachment according to the evidence; and no person shall be convicted without a concurrence of two-thirds of the members present. Judgment in case of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold any office of honor, profit or trust under the state; but the party impeached shall be liable to indictment, trial and punishment according to law.
28. - Sect. 2. The judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate, and in justices of the peace. The legislature may also vest such jurisdiction as shall be deemed necessary in municipal courts and shall have power to establish inferior courts in the several counties with limited civil and criminal jurisdiction: Provided, that the jurisdiction which may be vested in municipal courts shall not exceed, in their respective municipalities, that of circuit courts, in their respective circuits, as prescribed in this constitution: And that the legislature shall provide as well for the election of judges of the municipal courts, as of the judges of inferior courts, by the qualified electors of the respective jurisdictions. The term of office of the judges of the said municipal and inferior courts shall not be longer than that of the judges of the circuit court.
29. - Sect, 3. The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state; but in no case removed to the supreme court shall a trial by jury be allowed. The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto certiorari, and other original and remedial writs, and to hear and determine the same.
30. - Sect. 4. For the term of five years and thereafter until the legislature shall otherwise provide, the judges of the several courts shall be judges of the supreme court, four of whom shall constitute a quorum, and the concurrence of a majority of the judges present shall be necessary to a decision. The legislature shall have power, if they should think it expedient and necessary to provide by law for the organization of a separate supreme court, with the jurisdiction and powers prescribed in this constitution, to consist of one chief justice and two associate justices, to be elected by the qualified electors of the state, at such time and in such manner as the legislature may provide. The separate supreme court, when so organized, shall not be changed or discontinued by the legislature; the judges thereof shall be so classified that but one of them shall go out of office at the same time, and the term of office shall be the same as provided for the judges of the circuit court. And whenever the legislature may consider it necessary to establish a separate supreme court, they shall have power to reduce the number of circuit court judges to four, and subdivide the judicial circuits, but no such subdivision or reduction shall take effect till after the expiration of the term of some one of the said judges, or till a vacancy occur by some other means.
31. Circuits are established, and they may be changed by the legislature.
Sec. 7. For each circuit there shall be a judge chosen by the qualified electors therein, who shall hold his office as is provided in this constitution until his successor shall be chosen and qualified, and after he shall have been elected, he shall reside in the circuit for which he was elected. One of said judges shall be designated as chief justice, in such manner as the legislature shall provide. And the legislature shall, at its first session, provide by law as well for the election of, as for classifying, the judges of the circuit court to be elected under this constitution, in such manner, that one of the said judges shall go out of office in two years, one in three years, one in four years, one in five years and one in six years, and thereafter the judge elected to fill the office, shall bold the same for six years.
32. - 8. The circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law, and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions.
33. - Sect. 9. When a vacancy shall happen in the office of a judge of the supreme or circuit court, such vacancy shall be filled by an appointment of the governor, which shall continue until a successor is elected and qualified; and when elected, such successor shall hold his office the residue of the unexpired term. There shall be no election for a judge or judges at any general election for state or county officers, nor within thirty days either before or after such election.
34. - Sect. 10. Each of the judges of the supreme and circuit courts shall receive a salary, payable quarterly, of not less than one thousand five hundred dollars annually; they shall receive no fees of office or other compensation than their salaries; they shall hold no office of public trust, except a judicial office, during the term for which they are respectively elected, and all votes for either of them for any office except a judicial office, given by the legislature or the people, shall be void. No person shall be eligible to the office of judge who shall not at the time of his election be a citizen of the United States, and have attained the age of twenty-five years, and be a qualified elector within the jurisdiction for which he may be chosen.
35. - Sect. 11. The supreme court shall hold at least one term annually at the seat of government of the state at such times as shall be provided by law, and the legislature may provide for holding other terms, and at other places when they may deem it necessary. A circuit court shall be held at least twice a year, in each county of this state, organized for judicial purposes. The judges of the circuit court may hold courts for each other, and shall do so when required by law.
WISTA. Among the Saxons, this was a measure of land; it contained a half hide, or sixty acres.
TO WIT. To know, that is to say, namely. See Scilicet.
WITH STRONG HAND, pleading. This is a technical phrase indispensable in describing a forcible entry in an indictment. No other word or circumlocution will answer the same purpose. 8 T. R. 357.
WITHDRAWING A JUROR, practice. An agreement made between the parties in a suit to require one of the twelve juror's impanneled to try a cause to leave the jury box; the act of leaving the box by such a juror is also called the withdrawing a juror.
2. This arrangement usually takes place at the recommendation of the judge, when it is obviously improper the case should proceed any further.
3. The effect of withdrawing a juror puts an end to that particular trial, and each party must pay his own costs. 3 T. R. 657; 2 Dowl. R. 721; S. C. 1 Crom. M. & R. 64.
4. But the plaintiff may bring a new suit for the same cause of an action. R. & M. 402; S. C. 21 E. C. L. R. 472; 3 Barn. & Adolph. 349; S. C. 23 E. C. L. R. 91. See 3 Chit. Pr. 916.
WITHERNAM, practice. The name of a writ which issues on the return of elon-gata to an alias or pluries writ of replevin, by which the sheriff is commanded to take the defendant's own goods which may be found in his bailiwick, and keep them safely, not to deliver them to the plaintiff until such time as the defendant chooses to submit himself, and allow the distress, and the whole of it, to be reprevied, and he is thereby further commanded that he do return to the court in what manner he shall have executed the writ. Hamm. N. P. 453; 2 Inst. 140; F. N. B. 68, 69; 19 Vin. Ab. 7; 7 Com. Dig. 674; Grotius, 3, 2, 4, n. 1.
WITHOUT, pleading. This word is adopted in formal traverses, and is a negative signifying "and not for;" accordingly the language of the elder entries sometimes is, It et nemy pur tiel cause," &c. Hamm. N. P. 120.
WITHOUT DAY. This signifies that the cause or thing to which it relates is indefinitely adjourned; as when a case is adjourned without day, it is not again to be inquired into; when the legislature adjourn without day they are not to meet again. This is usually expressed in Latin, sine die.
WITHOUT IMPEACHMENT OF WASTE. When a tenant for life holds the land without impeachment of waste, he is of course dispunishable for waste whether wilful or otherwise. But still this right must not be wantonly abused so as to destroy the estate, and he will be enjoined from committing malicious waste. Dane's Ab. c. 78, a. 14, 7; Bac. Ab. Waste, N; 2 Eq. Cas. Ab. tit. Waste, A. pl, 8; 2 Bouv. Inst. n. 2402. See Impeachment of Waste and Waste.
WITHOUT RECOURSE. Vide Sans Recours and Indorsement; Chit. on Bills, 179; 14 S. & R. 325; 3 Cranch, 193; 7 Cranch, 159; 1 Cowen, 538; 12 Mass. 172; 6 Shipl. R. 354.
WITHOUT RESERVE, contracts. These words are frequently used in conditions of sale at public auction, that the property offered, or to be offered for sale, will be sold without reserve.
2. When a property is advertised to be sold without reserve, if a puffer be employed to bid, and actually bid at the sale, the courts will not enforce a contract against a purchaser, into which he may have been drawn by the vendor's want of faith. 5 Madd. R. 34. Vide Puffer.
WITHOUT THIS, THAT, pleading. These are technical words used in a traverse, (q. v.) for the purpose of denying a material fact in the preceding pleadings, whether declaration, plea, replication, &c. In Latin it is called absque hoc. (q. v.) Lawes on Pl. in Civ. Act. 119; Com. Dig. Pleader, G 1; Summary of Pleading, 75; 1 Saund. 103, n.; Ld. Raym. 641; 1 Burr. 320; 1 Chit. Pl. 576, note a.
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 witness.
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; Competency; Credibility.
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 this kind.
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 or action.
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. 610.
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, 114.
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 Dall. 68.
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; Future state.
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.
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 writing.
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.