counsel is imbued because of his relation to the parties to the action.

case.

§313. Competency of judge as a witness. In consequence of the peculiar province and duties of the judge presiding in a cause, it has been considered objectionable, if not highly improper and erroneous, for him to act as a witness in the same Aside from the objection that his conduct should not be subjected to cross-examination and comment, his peculiar duties in administering oaths to the witnesses, in case the court has no clerk, in adjudicating upon their competency and the admissibility of the evidence, with his power to commit for contempt, render it unfit that he should assume the dual character of witness and judge in the same cause.1 So upon analogous reasoning it has been held that, where a cause was pending before several referees, one of them could not be sworn or examined as a witness by the others. But while these considerations are reasonable they do not apply in the trial of a case in which the witness, though he is a judge, is not presiding in that case; and hence it is a rule that a judge may testify, as, for example, to the accuracy of the notes which he has taken at a former trial.3

§ 314. The incompetency of arbitrators as witnesses in an action on the award.-An arbitrator is a competent witness to prove any facts upon the existence of which his authority as an arbitrator depended. In an action to enforce the award he may be required to testify as to what matters were included in the submission, or what subjects actually came before him for action," and what matters were actually

1 Baker v. Thompson, 89 Ga. 486; Buccleugh v. Board, L. R. 5 H. L. 418, 433; People v. Miller, 2 Parker C. R. 197; Rex v. Harvey, 8 Cox C. C. 103; Regina v. Gazard, 8 C. & P. 595. See ante, § 175.

2 Morss v. Morss, 11 Barb. 310. 3 State v. Duffy, 57 Conn. 525; People v. Dohring, 59 N. Y. 374; Morss v. Morss, 11 Barb. (N. Y.) 510; Shall v. Miller, 5 Whart. (Pa.) 156; People v. Miller, 2 Park. Cr. Cas.

(N. Y.) 197; Ross v. Buhler, 2 Mart. N. S. (La.) 312; Welcome v. Batchelder, 23 Me. 85.

4 Republic Bank v. Darragh, 30 Hun (N. Y.), 29; Thrasher v. Overly, 51 Ga. 91; Hale v. Huse, 10 Gray (Mass.), 99; Hall v. Vanier, 6 Neb. 85; Birbeck v. Burrows, 2 Hall, 51; Cady v. Walker, 62 Mich. 157.

5 Duke of Buccleugh v. Board, L. R. 5 H. L. Cas. 418; 2 Moak's Eng. 448.

considered by him.' So an arbitrator may testify to the fact that an award was made and delivered, and, if it was oral, he may be asked to state it on the witness stand. But an arbitrator is not a competent witness to inpeach the legality or validity of the award, or to show the impropriety of his own actions in connection therewith, unless he dissented from the award. His voluntary assent to or acquiescence in the award as rendered will estop him from denying its validity subsequently. Neither can he be interrogated as to his reasons or the motives which actuated him while exercising the quasijudicial and discretionary powers over the matter submitted to him for arbitration.1

315. Definition and form of oath and affirmation.-An oath has been defined as "an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God." This definition, it should be noticed, omits entirely the imprecatory character which was so prominent in the definitions of the earlier writers on evidence," and is certainly more consonant with modern ideas upon this subject and less calculated to give offense to any who may have conscientious scruples against invoking the anger of Deity upon themselves.

Oaths are divided into two classes: judicial oaths, which are taken during a judicial proceeding, according to legal direction or requirement, and extra-judicial oaths, which are taken without any express authority or direction of law." Judicial oaths are usually administered by the clerk of the court, who repeats the following formula to the witness: "You

1 Mayor of New York v. Butler, 1 Barb. 325; Cole v. Blunt, 2 Bosw. 116.

Cobb v. Dortch, 52 Ga. 548; Alexander v. McNear, 28 Fed. Rep. 408; Tucker v. Page, 69 Ill. 179; Jackson

2 Boughton v. Seamans, 9 Hun, v. Gager, 5 Cow. (N. Y.) 383. 892.

3 Newland v. Douglas, 2 Johns. 62; Jackson v. Gager, 5 Cow. 383; Tucker v. Page, 69 Ill. 179; Campbell v. Weston, 3 Paige, 124.

4 In re Whiteley (1891), 1 Ch. 558; Chapman v. Ewing, 78 Ala. 403; Aldrich v. Jessiman, 85 N. H. 516;

5 Tyler on Oaths, p. 15. For other definitions, see Anderson's Law Dict., citing Parkes v. Parkes, 25 E. L. & E. 619; King v. White, 2 Leach Cr. Cas. 482.

61 Stark. Ev. 22.

7 Anderson's Law Dict.

do solemnly swear that you will tell the truth, the whole truth, and nothing but the truth, as a witness in this issue now joined between A. and B. So help vou God." The assent of the witness is expressed by his uplifted hand or by his placing his hand upon a copy of the Gospels while the oath is being repeated, and by his kissing the Bible at its close. But no particular form of administering the oath was or is required so long as the witness is sworn in such a way as he will consider binding upon his conscience.2

Where a witness, when about to be sworn, says that he is an adherent of a religious faith other than Christianity, he should be asked what oath he would consider most binding, and if he prefers any other than the usual form he should be sworn accordingly. Even in the case of a witness who is a Christian, his wishes and scruples will be respected, and if he shall object to being sworn upon the Gospels his solemn affirmation will be regarded as equivalent thereto.

A witness

1 See Jackson v. State, 1 Ind. 185; sort, refuse, because of conscientious State v. Norris, 9 N. H. 101.

2 In Omichund v. Barker, Willes, 545, 547, the court said: "Oaths were instituted long before the beginning of the Christian era, and were always held in the highest veneration. The substance of an oath has nothing to do with Christianity. The forms have always been different in different countries. But still the substance is the same, which is that God in all of them is called upon to witness the truth of what we say. Such infidels who be lieve in a God and that he will punish them if they swear falsely may testify."

3 Omichund v. Barker, 1 Atk. 21, 46; Atchison v. Everett, Cowp. 399, 390; People v. Green (Cal., 1893), 34 Pac. Rep. 231; State v. Chyo Chiagk, 92 Mo. 395.

* State v. Welch, 79 Me. 99. Many persons, construing the scriptural injunction "Swear not at all" as an express prohibition of oaths of every

principle, to participate in or assent to any form of words which involves an invocation of the Deity. To such persons an interrogation somewhat in the following form is usually propounded: "You do solemnly, sincerely and truly declare and affirm that you will state the truth, the whole truth, and nothing but the truth, in the issue now joined between A. and B." An affirmative reply to this question is equivalent to an oath, and renders the witness liable to a prosecution for perjury in case he testifies falsely. But it is now held in England that the witness should be asked by the judge whether the ground of his refusal to be sworn is a lack of religious belief or whether he objects to taking an oath. If the witness declares he has a religious belief he should be required to take an oath. Reg. v. Moore, 61 Law J. Mag. 80; 17 Cox Cr. Cas. 458.

may, after being sworn, be asked if he considers the oath he has taken as binding, though it would be improper then to ask him if any other form would be deemed by him to be of greater force; for he is liable to be punished for perjury, though he does not consider himself bound by the form of oath by which he was sworn, if he failed to object at the time of swearing. If the witness is sworn before a separate trial is ordered in the case of several jointly indicted, he must be again sworn thereafter.3

The objection that a witness was not properly sworn cannot be raised for the first time when a motion is made for a new trial, unless the omission to swear him was not noticed by the objecting party until after the trial had been finished."

The power to administer oaths is usually conferred upon private arbitrators by statute. At common law they did not possess it, and an oath administered by an arbitrator was a nullity so far as a prosecution of the witness for perjury was concerned. The parties to the arbitration may, however, unless the witness is absolutely required to be sworn by a statute, waive the taking of an oath by the witness. After the waiver, which may be by express language or by necessary

1 The Queen's Case, 2 Brod. & Bing. 284.

* State v. Whisenhurst, 2 Hawks, 458. The clerk will be allowed, where a defendant has many aliases, to repeat them in swearing a witness, stating also his true name. If the aliases are given in the indictment, their repetition by the clerk in the hearing of the jurors is not calculated to prejudice them against the prisoner. People v. Everhart, 104 N. Y. 591; 11 N. E. Rep. 62.

Abbott, Crim. Brief, § 336; Babcock v. People, 15 Hun (N. Y.), 347. 4 Goldsmith v. State (Tex., 1893), 22 S. W. Rep. 405.

5 Hawks v. Baker, 6 Greenl. (Me.) 72. In a trial for a felony it is ground for reversal to swear a witness while the accused is not in court. Bearden v. State, 44 Ark. 331.

6 Rice v. Hassenpflug, 13 N. E. Rep. 655; 45 Ohio St. 477; Large v. Passmore, 5 S. & R. (Pa.) 51; People v. Townsend, 5 How. Pr. (N. Y.) 315.

7 Frazer v. Phelps, 3 Sandf. (N. Y.) 741; Bonner v. McPhail, 31 Barb. (N. Y.) 106.

8 Wolfe v. Hyatt, 76 Mo. 156.

9 Newcomb v. Wood, 7 Otto (U. S.), 581; Cochran v. Bartell, 91 Mo. 655; 3 S. W. Rep. 854; Maynard v. Frederick, 7 Cush. 247; Price v. Perkins. 2 Dev. Eq. (N. C.) 250. An arbitrator who possesses no statutory power to administer an oath should call in a notary or other officer who has that power. Russell on Arbitration, 189. See Rice v. Hassenpflug, 45 Ohio St. 377; 13 N. E. Rep. 655.

implication from the conduct or the silence of a party, he cannot claim to have an award set aside for the sole reason that the witnesses were not sworn.1

§ 316. Incompetency because of a lack of religious belief. At common law, in consequence of the paramount importance attached to the religious element of an oath, all persons whose religious faith did not involve the belief in a Deity who would punish falsehood were incompetent as witnesses. So it was said, to require an oath to be taken by one who, like the atheist, "was presumed to be unable to appreciate its religious sanction, was a mockery of justice." Every person born and educated under the influence of Christianity was prima facie presumed to possess sufficient religious faith to render him competent as a witness. In any case he was only required to believe in a God who would punish perjury, and it was of no consequence whether he believed that the perjurer would be punished by remorse of conscience in this life or beyond the grave in some other way. The witness could not usually be directly questioned as to his possession of a religious belief, though his atheism might always be shown by the evidence of other persons in whose hearing he had voluntarily declared his lack of religious belief; and the fact that he had subsequently acquired sufficient religious faith to render him competent might also be shown.6

It is now the law by statute in almost every state in the Union that no witness shall be considered incompetent because of his belief or disbelief in the tenets of any system of religious faith, provided he understands the nature of an oath. In conformity with the principles underlying such statutory enactments, and having regard to existing federal and state constitutional guaranties intended to secure freedom of relig

1 Cochran v. Bartell, 91 Mo. 655.

2 Omichund v. Barker, 1 Atk. 21. See ante, § 315.

41 Greenl. on Ev., § 369; People v. Matteson, 2 Cowen, 433, 473; Crappell v. State, 71 Ala. 324; Brock v. Milligan, 10 Ohio, 123, 125; Blocker v. Burness, 2 Ala. 355; Arnold v. Arnold, 13 Vt. 43, 362; Hunscom v. Hunscom, 15 Mass. 184; 3 Bl. Com.