§ MR. LABOUCHEREasked Mr. Attorney General, Whether magistrates have a right to refuse to administer the affirmation to a witness who has a scruple, either religious or otherwise, to take an oath; and, if not, what would be the proper method, in case of such a refusal, for a witness to take in order to obtain his legal rights.
§ THE ATTORNEY GENERAL (Sir HENEY JAMES), in reply, said, that he had given an answer to this Question last Session, which he would now repeat. A statute passed in the year 1861 recited that it was expedient to grant relief to persons who might refuse, or who might be unwilling, from alleged conscientious motives, to be sworn in criminal proceedings, and it was enacted that in the case of any witness in any Court requiring or desiring to give evidence who should refuse or be unwilling from alleged conscientious motives to be sworn it should be lawful for the Judge or magistrate to permit him to affirm. Although it was a matter of permission, it clearly was a duty cast upon the magistrate to allow any person to affirm who alleged con- 359 scientious motives. As to the last part of the Question, he was not aware it was a legal right; but the course taken would be that if a person had called a witness, and the magistrate refused to allow the witness to affirm, and therefore shut out evidence, there would be power to compel the magistrate by process of mandamus to hear and determine the matter before him—that was to say, to allow the witness to give his evidence.