Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Anent Initialia Testimoniorum
1676.
February.
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I have heard some hudibrass the initialia testimoniorum, viz. the examining of witnesses upon their age, their being married or not, &c. as an impertinent and insignificant old style; notwithstanding that the same is necessary to be interrogated and inserted; for, 1mo, If the witness be found lying and trinketing in thir, it vilifies and derogates much from the weight and faith of his testimony: but many doctors think that falsum committed by a witness in extrinsecis, non facit testimonium corruere in totum.—See M'Keinzie's Pleadings, p. 82. 2do, By this it is known if the witness be past fourteen or eighteen; before which time a witness is not supposed to know the hazard of an oath, or to depone with judgment. The 3d reason is, to distinguish them from other men bearing the same name or designation. 4to, If they be deponing in re antiqua, the telling their age invalidates or adminiculates their testimony; as they were then of years capable to discern or consider such things, which must always be things falling under one of the five senses.—See my abridgment of Farinacius' tractate De Testibus.
In Saxony, Vesembec tells us, they go a greater length, and interrogate the witness anent his wealth and riches; for, if he be poor, he is suspected as more liable to be tempted: yet vide parag. ult. Instit. de Suspectis Tutoribus. This is coincident with our vulgar objection against witnesses, viz. that he is not worth the King's unlaw, estimated to L.10 Scots. But we set it at so low a rate, that it renders the declinator altogether unpracticable; for there is scarce any witness brought in but he is clear to affirm he is worth that: his clothes, if rouped, would be of that value. It should be fixed at L.100 Scots, or something like that. Since all that is acquired by money has grown, the price of that should augment also; especially in this age, wherein the faith of witnesses was never more lubric and vacillant, nor ever so much perjury discovered: so that it is a most commendable part in our law to leave as little to the credit and probation of witnesses as can be; for it allows them not in a case above L.100 Scots; and really this way of probation cannot be restricted enough, considering the impudence this generation has arrived at.
