the respectability of his standing in society, without rendering him obnoxious to punishment, is a question involved in much obscurity, and about which there is a variety of doctrine, and a collision of adjudications.

After carefully examining this subject, we are of opinion that such a witness, ought not to be compelled to answer. The benevolent and just principles of the common law, guard with the most scrupulous circumspection, against temptations to perjury, and against a violation of moral feeling; and what greater inducement can there be for the perpetration of this offence, than placing a man between Scylla and Charybdis, and in such an awful dilemma that he must either vio. late his oath, or proclaim his infamy in the face of day, and in the presence of a scoffing multitude? And is there not something due to the feelings of human nature, which revolt with horror at an avowal that must exclude the witness from the pale of decent society, and subject him to that degradation which is as frequently the cause as the consequence of crimes?

One of the earliest cases we meet with on this subject, is that of Cooke (4 St. Tr. 748. Salkreld, 153-) who being indicted for treason, in order to found a challenge for cause, asked a juror whether he had not said he believed him guilty. The whole Court determined he was not obliged to answer the question-and Lord Chief Justice Treby said, "Men have been asked whether they have been convicted and pardoned for felony, or whether they have been whipped for petit larceny, and they have not been obliged to answer: for though their answer in the affirmative will not make them criminal nor subject to punishment, yet they

are matters of infamy, and if it be an infamous thing, that's enough to preserve a man from being bound to answer. A pardoned man is not guilty; his crime ist purged; but merely for the reproach of it, it shall not be put upon him to answer a question whereupon he will be forced to forswear or disgrace him."

In the case of Rex, vs. Lewis and others (4 Espinasses nisi prius cases, 225) the witness was asked if he had not been in the house of correction, in Sussex. Lord Ellenborough, relying upon the opinion just quoted, declared, that a witness was not bound to answer any question, the object of which was to degrade or render him infamous. In the case of Mac Bride, vs. Mac Bride (same book 243) Lord Alvanly, on a wit ness being asked whether she lived in a state of concu binage with the plaintiff, overruled the question, saying, that he thought questions as to general conduct, might be asked, but not such as went immediately to degrade the witness, and concluded by saying, "I think those questions only should not be asked, which have a di rect and immediate effect to disgrace, or disparage the witness."

In the supreme court of New-Jersey (Pennington's Reports, the State, vs. Bailey, 415) the following question was proposed to a witness. Have you been convicted of petit larceny and punished? The Court after argument decided, that a witness could be asked no question, which in its answer might tend to disgrace or dishonor him, and therefore, in the particular case the witness was not bound to answer the question.

In the case of Bell, an insolvent debtor, which occursed in the Court of Common Pleas, for the first Judicial

District of Pennsylvania (Browne's Reports, 376) a question was asked the father of the insolvent, which went to impeach and invalidate a judgement he had against the insolvent, which question the Court overruled. Rush, the President, saying, "I have always overruled a question that would affect a witness civilly, or subject him to a criminal prosecution; I have gone farther, and where the answer to a question would cover the witness with infamy or shame, I have refused to compel him to answer it."

In the case of Jackson ex dem Wyckoff, vs. Humphrey (1 Johnson's Reports 498) a deed was attempted to be invalidated at the circuit, by the testimony of the judge, taking the proof on the ground that the proof it was taken in Canada, and also, that the subscribing witness could not have known the facts respecting the identity of the grantor, as testified by him before the judge who took the proof, and also to impeach the general character of the witness. The testimony was overruled by the judge, and a verdict found for the plaintiff, and a motion for a new trial prevailed. The Court declaring, that "The judge, before whom the proof of the deed was made, was a competent witness to prove that it was done in Canada, and if that fact be estab lished, the proof was illegal and void. Though the judge was a competent witness, he would not have been bound to answer any questions impeaching the integrity of his conduct as a public officer;" and we believe it to be the general if not established practice of our Courts to excuse a witness from answering questions which relate to sexual intercourse, in actions brought for a breach of promise of marriage, or by parents for seduction.

We have gone more particularly into this branch of the subject, because it has a very intimate connexion with the point in question. None of these proposi tions-that a witness is not obliged to confess a crime, or subject himself to a penalty, or to impair or injure his civil rights by his testimony-or to proclaim his turpitude or immorality, can be considered as including within its purview, the precise case before us. They all, however, touch upon it, in a greater or less degree. With the exception of the second position, there is this strong difference, they are retrospective and refer to past conduct, whereas in the case now pending, if we decide that the witness shall testify, we prescribe a course of conduct by which he will violate his spiritual duties, subject himself to temporal loss, and perpetrate a deed of infamy. If he commits an offence against religion; if he is deprived of his office and of his bread, and thrown forlorn and naked upon the wide world, an object for the hand of scorn, to point its slow and moving finger at, we must consider that this can not be done without our participation and coercion.

There can be no doubt but that the witness does consider, that his answering on this occasion, would be such a high handed offence against religion, that it would expose him to punishment in a future state-and it must be conceded by all, that it would subject him to privations and disgrace in this world. It is true, that he would not be obnoxious to criminal punishment, but the reason why he is excused where he would be liable to such punishment, applies with greater force to this case, where his sufferings would be aggravated by the compunctious visitings of a wounded conscience,

and the gloomy perspective of a dreadful hereafter; f although he would not lose an estate, or compromit a civil right, yet he would be deprived of his only means of support and subsistence-and although he would not confess a crime, or acknowledge his infamy, yet he would act an offence against high heaven, and seal his disgrace in the presence of his assembled friends, and to the affliction of a bereaved church and a weeping congregation.

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It cannot therefore, for a moment be believed, that the mild and just principles of the common Law would place the witness in such a dreadful predicament; in such a horrible dilemma, between perjury and false swearing: If he tells the truth he violates his ecclesiasti- X cal oath-If he prevaricates he violates his judicial oath -Whether he lies, or whether he testiffes the truth he is wicked, and it is impossible for him to act without acting against the laws of rectitude and the light of conscience.

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The only course is, for the court to declare that he shall not testify or act at all. And a court prescribing a different course must be governed by feelings and views very different from those which enter into the composition of a just and enlightened tribunal, that looks with a propitious eye upon the religious feelings of mankind, and which dispenses with an equal hand the universal and immutable elements of justice.

There are no express adjudications in the British courts applied to similar or analogous cases, which contradict the inferences to be drawn from the general principles which have been discussed and established in the course of this investigation: Two only have been poin