WITNESS (AS. tvitnes, ge-w-itnrs, testimony, from iritan, to know). A witness is any person who is summoned by a court of law or an officer authorized to take evidence in a legal proceeding, to appear before the court or officer for the pur pose of giving testimony under oath or affirma tion. Attendance as a witness is a compulsory duty, and the presence of any person for the pur pose of acting as a wit.ess can be compelled both in civil and criminal cases. At common law the mode of summoning a witness in a court of law is by serving him with process of the court called a subpaim, i.e. the formal writ issued in the name of the sovereign ; or if the witness is re quired to produce a document in his possession, by the writ called a subffna daces tecum. If a witness do not attend at the time and place men tioned, he is liable to be punished, either by at tachment, i.e. summary imprisonment for con tempt, or by a tine. He is also liable in an action for damages at the suit of the party summoning Lim. During a witness's attendance on this pub lic duty he is privileged from civil arrest, and cannot be lawfully served with SI1111111011S or other process of the court while he is going to, remain ing at, or returning from the court. Moreover, he is entitled to have his reasonable traveling ex penses paid to him, and a suns for subsistence while he ,mains in attendance. He is also en titled to 1, reasonable allowance for his loss of time while attending a civil trial; the .1 mount of such allowance is now generally fixed by stat utes, which provide that it must be paid at the time of the service of the subpoena.
Any person is competent to become a witness who has sufficient mental capacity to understand the nature and obligation of an oath or affirma tion and the nature of the matters about which be is to testify. The special rules governing the
competency of such witnesses as infants, married women, and parties interested in the controversy, as well as the rules governing the examination of witnesses, are considered under the topic EVIDENCE (q.v.). The testimony of witnesses was required at common law to be given under oath. At common law, therefore, an atheist or one not believing in a God and a future state of rewards and punishments was not a competent witness; hut, either by modern statute or relaxa tion of practice, throughout the United States the absence of religious belief does not render one incompetent as a witness. The witness may now qualify either upon oath or affirmation. A per son residing in one State or country cannot he compelled to attend as a witness in another State or country; but in many States there are stat utes authorizing the issuance of a commission di rected to some person residing in another State empowering him to take the testimony of a non resident witness with the sapid. force and effect as if the witness appeared and gave his testi mony in open el mrt. In many States there are also statutes authorizing the issuance of sub paellas to compel a witness within the State to appear and give testimony before a commissioner to take testimony appointed by the court of an other State. There are also generally statutes authorizing the issuance of it commission to take the testimony in advance of trial of aged or in firm witnesses or those who are about to leave the State. This was formerly one of the ex traordinary remedies afforded by courts of equity. See further under such titles as EVIDENCE: TEMPT; OATII; PERJURY; SUBPIENA; DIES No SUNDAY; JURISDICTION; SERVICE OF PAPERS; etc.