Lead Opinion
It is very clear, that a witness, on his cross-examination, may be questioned as to his being in a controversy with the party against whom he testifies, and w hether he has not threatened to be revenged on him. If he should answer affirmatively, it would show a bias on his mind, which ought to be weighed by the jury, in considering his testimony. To such a witness as full belief will not be readily yielded as to one who feels no such hostility. If the witness should answer in the negative, it is equally clear, he may be contradicted by other proof. A witness may always be asked any question relative to the issue, for the purpose of contradicting him, if his
It is also insisted, by the defendant, that the court should have told the jury, that the proof of the witness’ unbelief in a future state of rewards and punishments, might impeach his testimony ; for that a person of this religious opinion might not feel the same obligation to speak the truth as if he believed in the denunciations against “ perjured persons ” This point might deserve much attention, were it necessary to decide it; for such is the decision in Hunscom v. Hunscom, 15 Mass. Rep. 184. so far as the brief report of that case may be considered as bearing on this case : — so too are the decisions cited from 2 Cowen 432 572. But in the view which I take of the condition of this witness, he should not have been admitted. This supersedes the necessity of an enquiry as to the credit, to which his testimony was entitled
The question is not, whether a person who believes in any future punishment, though not endless, may be admitted as a witness ; — but, whether a person who denies all punishment after this life, and who, in the language of the motion, believes that men will be punished in this life for their sins, but immediately after their death, be made happy, be a competent witness.
Nor is it necessary to ask or to answer, whether an oath shall be refused to any one, on the ground of his religious opinions.
Nor has the statute in this state relative to the people called Quakers, who decline to take the oath by reason of scruples of conscience, and for whom a substitute is provided, by affirmation, under the pains and penalties of perjury, any bearing on this question. This is a legislative enactment in alteration of the common law, which courts are bound to obey, and without which enactment, they could not dispense with the common law oath. Besides, the pains and penalties of perjury comprised in the oath, are not limited to the statute punishment, but extend, it is believed, to the future punishment denounced against false witnesses. It is doubted whether the legislature would consent to amend'that oath, by adding this qualification next after the words “ pains and penalties of perjury” — “ to be inflicted in this life only.”
It is also true, that no declaration can be received in a court of justice without oath. The casuistical position, that an oath does not increase the obligation to speak the truth, is not yet a maxim of the common law. A man of the most exalted virtue, though judges and jurors might place the most entire confidence in his declarations, cannot be heard in a court of justice, without oath. This is a universal rule of the common law, sanctioned by the wisdom of ages, and obligatory upon every court of justice, whose proceedings are according to the course of the common law. One credible witness is required to establish any fact. 3 Bla. Com. 370.
« Where,” said the greatest and best of men, “ is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion.” Wash. Farewell Address.
The doctrine, as now established, in this country and in England, is, that if a person believes in a God, the avenger of falsehood, and in a future state of rewards and punishments, he may be a witness, and not otherwise. In the case of The King v. Taylor, Peake's Rep. 11. a witness was called for the prosecution. The counsel for the defendant asked him, if he believed in Jesus Christ. This question was objected to; and Butler, J. overruled it, saying, it should not be put. He was then asked, if he believed in the holy gospels of God. Butter, J. said, that was not the proper question ; and asked him, if he believed in God, the obligation of an oath, and a future state of rewards and punishments; and on his answering in the affirmative, he was admitted.
I am aware, that this question may not now be put to a witness, but the course is to enquire of other witnesses as to his belief on those points, and to decide the question of admissibility on such proof. This is manifestly proper; because a man ought not to be questioned respecting his religious opinions, as the enquiry may subject him to reproach, if he should confess his infidelity; and moreover, it would seem absurd to enquire of him under oath, whether he does not entertain such opinions as would show that he was unfit to be sworn. If, on enquiry of witnesses, it is satisfactorily proved, that the person does not believe in a future state of rewards and punishments, there
This is the rule of the common law ; and there is no adjudged case, nor hardly a dictum in the English books, against it. In Jackson d Tuttle v. Gridley, 18 Johns. Rep 98. Curtiss v. Strong, 4 Day 51. Swift’s Ev. 48. 1 Swift’s Dig. 739. this doctrine is laid down, and the reasoning is very satisfactory. In 3 Bla. Com. 389. the editor, Mr. Christian, remarks in a note, that he has known a witness rejected and hissed out of court, who said, that he doubted the existence of a God and a future state. Mr Justice Story, in a case which occurred before him and the District Judge in Rhode-Island, in November, 1827, gave the following opinion : “ We think these persons are not competent witnesses. Persons who do not ber lieve in the existence of God, or a future state, or who have no religious belief, are not to be sworn as witnesses. The administration of an oath supposes, that a moral and religious accountability is felt to a Supreme Being; and this is the sanction which the law requires upon the conscience, before it admits him to testify.” One of those witnesses did not believe in the existence of a God ; — the other did not believe in a state of future rewards and punishments here or hereafter, — indeed did not seem to have any settled religious belief. Both were rejected. The opinion of this learned judge expressly excludes a witness, who denies the existence of God, who denies a future state, or has no religious belief. Can it be seriously contended, that a person who believes he shall be made immediately happy after death, without any regard to his conduct in this life, would feel any stronger obligation to speak the truth, than one who disbelieves in a future state ?
But the decision in Connecticut, Curtiss v. Strong, 4 Day 51. must be the guide to this Court. That case was elaborately discussed ; — it was decided by the unanimous opinion of the nine judges of the Supreme Court of Errors within the last twenty years ; and the decision has been acquiesced in. No murmurs have been heard respecting it. The reasons should be cogent to compel a departure from such a decision.
Nor am I satisfied, that there is any principle, or precedent of high authority, opposed to it Two of the judges of the circuit court in New-York, at Nisi Prius, held, that persons of this description might testify. 2 Cowen 432. 572. We
The judges above mentioned at the circuit, in commenting on this case, say, that the opinion was obiter ; that the witness rejected did not believe in the existence of a God, or a future state, and therefore was incompetent according to all the decisions. It is true, there was this farther objection to his testimony ; but still, the court, in giving its opinion, expressly decides on his disbelief in future punishment, and declares it to be a disqualification, quoting, with high approbation, the decision of Curtiss v Strong, 4 Day 51.
It is also said, that this decision rests, for much of its support, on the case of Omychund v. Barker, reported in Wittes 549. and 1 Atk. 45. ; and that the report of the case by Atkyns is incorrect, and that by Wittes gives the true state of the case. To this I would observe, that Atkyns furnished the case from the judges themselves, and when the decision was pronounced. With his accuracy as a reporter, it is not credible, that he should have omitted what is now deemed important in the opinion of Wittes. On the other hand, Wittes’ Reports were not published in more than half a century after the decision ;
There was a consideration presented by the counsel for the plaintiff, which, by their ingenuity, was rendered plausible ; and therefore, is deserving of attention. It was urged, that there are certain religionists, denominated Antinomians, who hold that the Gospel releases Christians from all the obligations of morality, and in close connection with this doctrine is that of the faith of assurance, absolute election, and the final perseverance of the saints. And it is hence said, that if a person is f ully assured of his own election to eternal life, and of hisjper-severing in that state, he can have no fear of future accountability or punishment, and therefore will not feel the obligation arising therefrom, in his testimony. This is not the place for considering that subject. I will, however, say, that if it should be proved respecting any person offered as a witness, that he believed his own happiness secure at death, regardless of his conduct in this life, he ought not to be sworn ; nor would it be any recommendation of him as a witness, that he entertained this opinion of himself and his own sect only. He should be excluded as not feeling the obligation of an oath.
It is urged again, that courts have no right to interfere with religions opinions. It is said, faith is a matter between men and their God, and ought not to be examined by courts or the legislature. But it is declared, by the judges in England, that Christianity is a part of the common law of the land. Our ancestors brought it with them to this state, and there is no statute abrogating it. Nay, our statute (p. 164.) punishes, by fine, imprisonment, and binding to good behaviour, persons guilty of blasphemy against God, either person of the Trinity, the Christian religion, or the holy scriptures ; and in p. 165. profane swearing, and in p. 385. violations of the Sabbath, are punished by fine Our constitution declares it to be the duty of all men to worship the Supreme Being according to the die-
It has been said, however, that this decision in excluding the witness, is a violation of the constitution of the state. I presume this argument rests on the 3rd and 4th sections of the declaration of rights. The 3rd section is : “ The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in this state.” The 4th section is: “ No preference shall be given by law to any Christian sect or mode of worship.” It is less difficult to see, that neither of these sections can have any possible bearing on the point in judgment, than it is to answer such mere vagaries of the imagination. The plain meaning of these provisions, is, to secure an entire freedom in religious profession and worship, and an entire exclusion by law of any preference to any sect or mode of worship. No man shall be prohibited from professing what religion he pleases, or worshipping in any manner he pleases ; nor shall there be any religious establishment, or approximation towards it, by any law giving any preference to any sect or mode of worship. We know, that it had been insisted by many, that formerly our laws conferred certain privileges on the located societies, and thus gave a preference to certain Christian sects bevond what was conceded
But cannot a person be free in his profession and worship, who is excluded from giving testimony, on the ground of his denial of all liability to future punishment '! How does his exclusion affect his belief, profession or mode of worship 1 It has no possible bearing on either.
But his rights are infringed, or he is disturbed in the exercise and enjoyment of them What right ? Doubtless the right of giving testimony. This is a new right, privilege or franchise, unknown, and therefore, undefined, and I may add, unheard of before, by any lawyer or judge. Suppose an elector of Connecticut was to appear in a court, and claim the privilege of testifying in a cause on trial. Neither the plaintiff nor the defendant has called him as a witness, or desires his testimony. He persists, however, in the exercise of what he calls his franchise, until the court, in the exercise of its discretion, is obliged to commit him for contempt, for thus disturbing the rights of the court and of the parties.
The party may be injured, by the improper rejection of a witness, on the ground of his principles ; so he may in a thousand other instances ; but it is incomprehensible how the proposed witness can be, in any way, affected. If a court should reject a witness, because he was not six feet high, (if such a supposition may be made) it might deprive a party of important testimony, and thus injure him ; but it could not affect the witness.
Moreover, if the witness who denies all future punishment, cannot be excluded, without a violation of the constitution, neither can the Atheist. His language maybe — “1 deny the existence of Cod, — the immortality of the soul, — and insist, that men die like brutes. This is my religious profession.” I have before shewn, that it would be the height of absurdity for the court to permit such a person to appeal to God for the truth of what he asserts. Yet how can he be excluded, if this objection is to prevail ?
It may be added, that this objection arising out of the constitution, was not suggested, by the able and ingenious counsel, who argued the cause before this Court. It may be presumed, therefore, to have had no weight, in their opinion.
I come then, necessarily, to the result, that as an oath is an indispensable means of ascertaining truth in a court of justice, so the oath necessarily implies the existence of a God, and a. belief in a future state, and a punishment, of some duration, in that future state; and that a witness who has no belief in these truths, is not a competent witness.
A new trial, therefore, must be granted.
Dissenting Opinion
I cannot concur in the opinion of Judge Dag-gett, in which I understand him to hold, that a person professing to believe in a Supreme Being, and that men are punished for their sins in this life, but are all made happy, by their Creator, immediately after death, is not a competent witness; though I fully concur in the decisions of the three great cases chiefly relied on, by him, which it was not the intention of the court below to deny or impugn. If this case cannot be distinguished from them, a new trial ought to be granted.
By the ancient common law, Christians only were allowed tobe sworn as witnesses ; (Co. Litt. 6. b. for an oath was considered as of Christian institution. “ An oath,” says Lord Coke, “ is an affirmance or denial, by a Christian man, of any thing lawful or honest before one or more that have authority to give the same, for the advancement of truth and right, calling Almighty God to witness that his testimony is true.” 3 Inst. 165.
“ In the gloomy days of superstition and ignorance,” says Dane, “ a man could not be a witness, who did not believe in the religion of the country, in which he was called to give e vi-dence. Those who did not believe in Christianity, and sometimes in Christianity of a particular description, were deemed incapable of binding themselves by oath But an infidel is a witness, if his infidelity extend not to atheism, both in England and in the United States, though this was not always the case.” 3 Dane’s Abr. 535.
In Omychund v. Barker, 1 Atk. 21 a more liberal principle was recognized and established. In a bill in chancery before Lord Hardwicke, assisted by the two Chief Justices and the Chief Baron, the deposition of certain Gentoos, who believed in a God, as the creator of the universe, the rewarder of virtue and the avenger of vice, and had been sworn according to the usage of the Bramins, by touching the hand and foot of a priest, wTere offered in evidence ; to which two objections were made, 1. that the deponents were not Christians; and 2. that they were not sworn upon the Evangelists. These objections were argued, by the most eminent advocates of that day; and the judges delivered their opinions seriatim. They unanimously agreed, that the testimony of all infidels who were not atheists, was to be received; and that upon the principles of the common law, there was no particular form essential to an oath to be taken by a witness, but as the purpose is to bind the conscience, every man of every religion should be bound by that form, which he thinks will bind his conscience most. Peake’s Ev. 149. (ed. 1809.) Atcheson v. Everett, Cowp. 389.
These were the only points made and decided ; and it is re
Chief Justice Willes is, indeed, made to say, that infidels who believe a God, and future rewards and punishments in the other world, may be witnesses; yet if they [infidels] do not believe a God or future rewards and punishments, they ought not to be admitted as witnesses. I Atk. 45. But in his own report of his own opinion, he says : “ Nothing but the belief of a God, and that he will reward and punish us according to our deserts, is necessary to qualify a man to take the oath.” Willes’ Rep. 545. Again : “ Infidels, who believe a God, and that he will punish them, if they swear falsely, in some cases, and under some circumstances, may and ought to be admitted witnesses, in this, though a Christian country. On the other hand, I am clearly of opinion, that such infidels, if any such there be, whp either do not believe a God, or if they do, do not think he will either reward or punish them, in this world or the next, cannot be witnesses, in any case, or under any circumstances, for this plain reason, because an oath cannot possibly be any tie' or obligation upon them.” Willes’ Rep. 549. Again: “ Supposing an infidel who believes a God, and that he will reward and punish him, in this world, but does not believe a future state, be examined on his oath, as I think he may, and, on the other side, to contradict him, a Christian be examined, who believes a future state, and that he shall be punished in the next world, as well as in this, if he does not swear the truth, I think the same credit ought not to be given to the infidel as to the Christian, because he is plainly not under the same obligation.” Willes’ Rep. 550.
From the remarks of the judges it is apparent, that they concurred in the opinion actually given by Ch. J. Willes, and quite certain, that they did not contradict him. “If my Lord Coke,” said the Chief Baron, “ had, by an infidel, meant a professed atheist, I should have been of opinion, that he could not be a witness.” Again : “ As to the Gentoo religion, it will appear from the best testimonies, that persons of this religion do believe in God as the creator and governor of the world.” 1 Atk. 40. “ I agree entirely,” said Ch. J. Lee, “ with Ch. J. Willes and Ch. Baron Parker, that where it is returned by the certificate, that the witness is of a religion, it is sufficient; for the foundation of all religion is the belief of a God.” 1 Atk.
The latest English writer on this subject, upon a review of all the cases, concludes, by saying: “ It seems sufficient, if he [the witness] believes in a God, who will reward or punish him in this world.” Saund. on Plead. & Ev. 940.
Such is the basis of the modern doctrine, that a belief of future rewards and punishments is essential to the competency of a witness ! But, if the foundation fail, where is the superstructure,?
In Curtiss v. Strong, 4 Day 51. it was correctly decided, that a person who did not believe in the obliga Lion of an oath, was not a cibmpetent witness. So in Jackson v. Gridley, 18 Johns. Rep. 98. the supreme court of New-York, with perfect propriety, rejected the testimony of an atheist; and so did Judge Story in Wakefield v. Ross, cited by Judge Daggett. But if these learned judges had contented themselves with deciding the cases before them, they would have been as silent as Lord Hardwicke and his advisers respecting a belief in the administration of justice in a future world. But zeal to establish a favourite dogma seems to have led the mind of a great and learned judge into an error, not only with respect to the English law, but with respect to the language of an English judge. “ By the law of England,” says Ch. J. Spencer, “ which has been adopted in this state, it is fully and clearly settled, that infidels who do not believe in a God, or if they do, do not think that he will either reward or punish them in the world to come, cannot be witnesses in any case, nor under any circumstances, because an oath cannot possibly be any tie or obligation upon them.” 18 Johns. Rep. 103. This certainly is not the language of the court in Omychund v. Barker, but is the precise opinion of Ch. J. Willes, as reported by him, omitting “ this world or the next,” and inserting “ the world to come.” “ Infidels,” says Butter, “ cannot be witnesses, — e. such as profess
In conformity with these principles, in 1804, at the Old Bailey, a native of China, being examined before Baron Graham, on an indictment for felony against Ann Alsley and another, was sworn according to the form of the courts in China, by holding a saucer in his hand, which he dashed to pieces at the conclusion of the oath, believing, as he stated, that God would cause his body to be cracked as he cracked that saucer, if he did not tell the truth. Peake’s Ev. 149. n. (ed. 1809.) When and where did this Pagan believe, that the vengeance of Heaven would overtake the body of the perjured witness ? Surely, not in the world to come. Notwithstanding the strong opinion expressed by Ch. J. Spencer, his dicta have been disregarded, by several learned and respectable judges of that and other states.
Thus, in Butts v. Swartwood, 2 Cowen 431. Southerland, J., in delivering the opinion of the supreme court, said : “ The proper test of a witness’ competency, on the ground of his religious principles, is, whether he believes in the existence of a God, who will punish him if he swears falsely.”
So, in Matteson’s case, cited 2 Cowen 433. n., a witness was offered, who did not believe in any future punishment after this life ; and Walworth, Cir. Judge, now Chancellor, said: “ I apprehend the true test of the competency of a witness to be this : has the obligation of an oath any binding tie upon his conscience? Or, does the witness believe in the existence of a God, who will punish his perjury ? If he swears falsely, does he believe he will be punished, by an overruling Providence, in this world, or the world to come ? If he does not believe in the existence of a God ; or if he believes in no punishment, except by human laws ; no obligation or tie can have any binding force upon his conscience. But if he believes, that he will be punished, by his God, even in this world, if he swears falsely, there
A similar opinion was given, by Williams, Cir. Judge, upon the precise question before us, viz. whether a person who believes in a God, and in rewards and punishments in this life only, may be a witness. 2 Cowen 573.
The same opinion upon the same point, was given by Chancellor Desaussure, of South-Carolina, in Fernandis & al. v. Henderson, in equity, Union district, August term, 1827, upon a laborious investigation of all the cases on this subject.
And in the case of Hunscom v. Hunscom, 15 Mass. Rep. 184. the supreme court of Massachusetts decided, that a person who did not believe in a future state of existence, was a competent witness.
Finally, there is nothing in the case before the court, to shew, that the creed of this witness is materially variant from that of a considerable class of Unirersalists, who believe in the existence of a God, the authenticity of the scriptures, and the divinity of the Saviour, but deny that there is any punishment for the wicked after this life. 2 Cowen 432. n.
A contrary creed on most of these topics was once, by statute, classed among “ capital and otherfelonies,” and rendered its possessor not only incapable of holding an office, but of sueing or defending in a court of justice. But this statute has been repealed, because it wras repugnant to the constitution. If the legislature cannot disfranchise a citizen, on account of his religious sentiments, a fortiori a court of justice cannot, for the same cause, deprive him of the’power of vindicating his rights,- by his own testimony, in “ due course of law.” If the principle now sanctioned, by this court, be carried into full effect, the most atrocious crimes may be committed with impunity, unless perpetrated in the presence of an orthodox witness. Vid. Const. Conn. art. 1. Stat. tit. 16. c. 1. (ed. 1808.) lib. 2. p. 425.
2. The remaining questions are of minor consideration ; but they must be disposed of. It is a well settled rule, that a witness cannot be cross-examined concerning a collateral fact ir
It is also a rule, that a witness cannot be examined concerning any fact, which tends to degrade or disgrace him. 2 Stark. Ev. 139. Cook’s case, 1 Salk. 153 Northrop v. Hatch, 6 Conn. Rep. 361. The issue in the case before us, is, usury or not. The evidence in question neither proved nor disproved it. The enquiry certainly tended to disgrace the witness ; but the answer ought not to be drawn from him ; for, to be suspected of harbouring such vindictive feelings towards another as would induce a commission of perjury for the sake of revenge, is certainly a disgrace. Peake’s Ev. 136. Rex v. Lewis & al. 4 Esp. Rep. 225. McBride v. McBride, 4 Esp. Rep. 242.
But the practice on this subject seems not to be well settled. Peake’s Ev. 130 2 Stark. Ev. 139. In my opinion, the rule is, or ought to be, the same as in proving a witness interested, viz. by examining him on the voir dire, or proving his interest by other testimony, but not by both. The election of one mode precludes the other. The reason is the same in both cases. “ It is certainly unreasonable,” said the court, in Butler v. Butler, 3 Day 204. “ that the party should be permitted to sport with the conscience of the witness, when he has other proof of his interest.” Stebbins v. Sackett, 5 Conn. Rep. 150. Chance v. Hine, 6 Conn. Rep. 231.
3. The authorities which admit witnesses of the faith in question, seem to take it for granted, that their incredibility is as their infidelity ; and that the ratio must be settled by the jury ; but they furnish no rule to ascertain the effect of speculative opinions upon the consciences of witnesses. By what standard is their testimony to be weighed ? The jury have none but their own sectarian prejudices. What confidence has a Christian in the testimony of a Mahometan, who believes that paradise is his inevitable portion ? What credit will be given, by a Protestant, to the testimony of a Catholic with an indulgence in his pocket ? Or what would be the fate of a Free-mason, accused and tried by Anti-masons, and vice versa 1 Let the history of parties and persecutions, from the days of Mather’s Magnolia to our own times, answer these questions.
The moral character of a witness is the only safe criterion ;
XRosmee, Ch. J. and Lanman, J., were of the same opinion.
New trial to be granted.