Scottish Court of Session Decisions

no such distinction, except perhaps in regard to the greater affection of the parent.

Lord Moncreiff.—I agree that we cannot depart from the rule that has been followed in practice, though I cannot say I regret this so much as my brother who spoke last, believing it to be founded on a solid principle in our law—the principle of metus perjurii, which runs through the whole of our law of evidence, though not so much regarded in the law of England. So, in civil cases, on certain questions, we reject near relations as witnesses. I recollect an instance, in Gordon v. Gordon, of one son offering his mother as a witness against another son, to prove a prior marriage; the mother was first held admissible, but, on reconsideration, she was rejected. As showing the contrast between our law and that of England in the Berkeley Peerage case, Lady Berkeley was admitted as a witness by the House of Lords, and yet, after her testimony was given, it was not believed, on the ground that there could be nothing but perjury in the matter.

In regard to a child, it has been long held, that he could not be compelled to swear away the life or perpetual liberty of his parent; and I can see nothing to distinguish this from the case of a parent—a father or a mother—believing that there is no affection under heaven so strong as the affection of a mother for her child. There could not be conceived a more trying situation than that of a mother, on whose evidence the life of her child depended. In the case of Leask, where the point was long argued, the witness was withdrawn, and it cannot be affected as a precedent, by the fact of the public prosecutor having consented to this step. But several cases have occurred since. In the case of Braid and his sister, for incest and murder, in this Court, the mother of both was called, and told of her option; she chose to give evidence, and one of the pannels was acquitted. Another case occurred at Glasgow before Lord Meadowbank and myself. Thus it is now too late to go back upon the rule. It is true there may be inconvenience attending it, as the late Lord Meadowbank observed; and yet, at Glasgow, in 1814, his Lordship allowed the existence of the rule. It must be presumed, either that the witness is an honest man, or is under the influence of affection. If he is an honest man, there can be no collusion or falsehood; but if it is to be presumed that he will not tell the truth, from a bias to the pannel, then, by allowing him an option, we just reject a witness, from whom the truth could not be expected; should he choose to give evidence, intending to swear falsely to save the child, then his evidence can be of little value. I agree with the chair, that the witness must be sworn, and then directed as to his option; if he decline, that will be a fact for the jury in reference to the rest of the case; and, in so far as the public prosecutor is concerned, he will be viewed as if he were dead.

The witness was accordingly put into the box and sworn, and, having been told as to his option, declined to give evidence.