18 Me. 157 | Me. | 1841
The opinion of the Court was drawn up, and delivered at the September Term, 1841, by
Our statute passed the 21st February, 1833, c. 58, enacts, “ that no person, who believes in the existence of a Supremo Being, shall be adjudged an incompetent or incredible witness, in the judicial courts or in the course of judicial proceedings in this State, on account of his opinions in matters of religion, nor shall such opinions be made the subject of investigation or inquiry.”
Here a witness was rejected, because, when he was offered, the defendant’s attorney objected to him, because the proposed witness was an atheist, or disbeliever in the existence of a Supreme Being. And one Benjamin Gordon was called, who testified, that in a conversation which he recently had with Richard Bettes, the offered witness, he repeatedly said, “ he did believe that any thing and every thing was God, that that stick, that pair of wheels, Jordan mountains, was God, and that every thing like that was God, and that every thing about them was God, and that there was no other God in heaven or earth, but wffat was in that or them.” He, Gordon, further stated, in reply to a question put by plaintiff’s attorney, that said Bettes had, before the time of the conversation above referred to, said that he was an Universalist, and that he, the said Bettes, was friendly to that class of Christians, and also that
In the English treatises on the law of evidence, it is a general rule, that those infidels, who believe in a God, and that he will punish them in this world, or, as it seems the next, if they swear falsely, may be admitted as witnesses.
Roscoe’s Criminal Evidence, 96, citing Omichund v. Barker, Willes’ R. 549, and the opinion of Will.es J. was, that those infidels, who either do not believe in a God, or if they do, do not think that he will either reward or punish them in this world or the next, cannot be witnesses in any case, nor under any circumstances; for this plain reason, because an oath cannot possibly be any tie or obligation upon them.
It is not yet settled by the Scotch law, whether a witness, professing his disbelief in a God, and a future state of reward and punishment, is admissible. “ When the point shall arrive,” says Mr. Alison, “ it is well worthy of consideration, whether there is any rational ground for such an exception ” — “ whether the risk of allowing unwilling witnesses to disqualify themselves, by the simple expedient of alleging that they are atheists, is not greater than that of admitting the testimony of such as make this profession.” Roscoe’s Crim. Em. 96, 97, citing Alison Prac. Cr. L. Scotl. 438.
In New Hampshire, in the year 1828, in the case Norton v. Ladd, 4 N. H. Rep. 444, one John Hunter was offered as a witness. It was proved, that he had, several times, within a short time before the trial, stated, that he had no belief in the existence of a God. “ By the Court. He who openly and deliberately avows that he has no belief in the existence of a God, furnishes clear and satisfactory evidence against himself, that he is incapable
In Jackson, ex dcm. Tuttle v. Gridley, 18 Johns. Rep. 98, it was held, that one who does not believe in the existence of a God, nor in a future state of rewards and punishments, cannot be a witness in a court of justice, under any circumstances ; and that when it was proved, that a person, offered as a witness, had, within three months before the trial, often, deliberately and publicly, declared his disbelief in the existence of a God, and a future state of rewards and punishments, he cannot, on being called to be sworn and objected to, be admitted to deny those declarations, or to state his recantation of them, and his present belief in a God, & c.
The like decision was made in Connecticut, in 1809, in the case of Curtis v. Strong, 4 Day’s Cases in Error, 51.
In Wakefield v. Ross, 5 Mason’s R. 16, the counsel for the defendant objected to the admission of two witnesses, father and son, offered, upon the ground of their want of any religious belief; and to establish the fact, a witness was called, who swore that he knew the persons well; that lie had often heard the son say, that he did not believe in the existence of a God, or of a future state. As to the belief of the father, he said that be had heard him declare, that be did not believe in a future state ; that he had read Tom Paine’s works, and did not know, whether he, the father, believed anything. In answer to a question from the Court, whether the father believed in a state of rewards and punishments, the witness answered only as before, adding, that from the statements of the father he did not seem to believe any thing. It was then suggested, on the part of the plaintiff’s counsel, that the father and son might be examined personally as to their belief, for the father might be a Universalist. To this suggestion, the Court answered, that the defendant’s counsel, who took the objection, were not bound to rely on the testimony of these persons for proof of incompetency. The Court said, “ We think these persons are not competent witnesses. Per
In New York, in the case cited from 18 Johns. R. 98, it was considered, that a witness may be restored to his competency, on giving5 satisfactory evidence of a change of mind, some time before the trial, so as to repel the presumption, arising from his former declarations of his infidelity, existing at the time he is called to be sworn. And it was further held, that, though infants may be examined as to their religious knowledge and belief, it is merely to test their capacity to give evidence, or their understanding of the nature and obligation of an oath. But an adult of sound mind, when called as a witness, and objected to as an infidel, is not to be questioned as to his religious creed.
In Hunscom v. Hunscom, 15 Mass. R. 184, the objection to the competency of the witness offered, was founded upon his professed disbelief of a future state of existence, and evidence was ofered to prove his repeated declarations of such disbelief. But the Court, Parker, Chief Justice, Thatcher and Wilde, Justices, admitted him to be sworn, and said the objection went only to his credibility.
When we consider what changes have been made as to the admissibility of witnesses, we may well deliberate, before we hastily adopt rules, which may lead to consequences of a most disappointing and distressing character. At one lime,'persons not believing in the Christian religion, could not be admitted as witnesses, nor Quakers, who would not take an oath.
In the celebrated opinion, delivered by Chief Justice Willes, in Omichund v. Barker, which was not published from his own manuscript till 1799, about fifty years after it was delivered, he says, “ 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 is examined, who be
Swift, in his Law of Evidence, page 50, says, it may still be a question, whether it would not originally have been better, to consider questions of this kind, as going to the credit rather than the competency. In the conflict of parties, both religious and political, misrepresentations will often take place, and it will commonly be safer to rely on the general character for truth, which a man has acquired, by his conduct in society, than on his mere opinions. The application of the rule, in Connecticut, defeated a devise, the party rejected being one of the subscribing witnesses.
In Walker’s Introduction to American Law, 544, he remarks, that the oath of an atheist, though it wants the religious obligation which belongs to the oath of the believer, has yet the same temporal obligation resulting from the pains and penalties of perjury. For these reasons, he says, it would seem that the want of religious belief ought not to render a witness incompetent, though the jury may properly take it into consideration in weighing his credibility.
It was doubted, in Ohio, whether a defect in religious belief should go to the competency or merely to the credibility of the witness. The objection was raised, and it was shewn by third persons, that the witness’ creed, so far as collectable from his conversations, was as follows: he said, be did not believe in the existence of a God ; but added, that he saw God in trees, bushes, herbage, and every thing he saw; that a man would be punished for falsehood by his conscience, and in this life only; that a man is bound to speak true at all times, and an oath imposes no additional obligation. The Court held, that it was unnecessary to
And in South Carolina, a person who does not believe in future rewards and punishments, but that our evil deeds will all be punished in this world, and that we shall exist immortal in a future state, exempted from punishment for deeds done in the body, is a competent witness. Farnandis v. Henderson, in chancery before Ch. Desaussure, August, 1827, South Car. Law Journal, 202, cited in Cowen & Hills’ notes to Phillips’ Treatise on the Law of Evidence, part 2d in the Supplement, page 1503.
In this case, we think that our statute contemplates, that the belief in a Supreme Being is a pre-requisite for the admission of a witness; but after he is admitted, no inquiry is to be tolerated as to his religious opinions. Yet as it is calculated to impose, as it W’ére, a penalty of degradation and disgrace upon a citizen, to object to his being admitted as a witness for such disbelief, according to the decisions in New Yorlc and Connecticut; and is against the spirit of our institutions in other respects, inasmuch as it, as it were, condemns without a hearing; (for, according to decided cases, the person excepted against is not permitted to explain ;) therefore, as the law seems to stand thus, courts ought to require proof of clear, open, deliberate, avowals of the disbelief on the part of the proposed witness in the existence of a Supreme Being. It is communicated, that the wituess asserted that he was a Universalist, who may believe in punishment in this world. And our statute is entitled “ An act to secure to witnesses freedom of opinion in matters of religion.”
Besides, agreeably to our statute, one conscientiously scrupulous of taking an oath, may be admitted to affirm, which will be under the pains and penalties of perjury. In this there is no appeal to God. It rests on temporal penalties.
In this case, there was no assertion made by the witness that he was conscientiously scrupulous of taking an oath. So that the question came nakedly, whether a person, who was' before the Court, and proffered as a witness to take an oath, did believe in
Exceptions overruled.
After reading the foregoing opinion, Judge Emery remarked, for himself alone, that the st. 1833, c. 58, entitled “ An act to secure to witnesses freedom of opinion in matters of religion,” had been passed over eight years. He did not recollect that it had before come in question for decision. Upon the necessarily strong judicial construction which has been made upon the terms of the statute, and the acts of the Judge in deciding, as he must, on the evidence, he said : I can frankly declare, that a much more appropriate title to the act would be, “ An act to deprive witnesses of freedom of opinion in matters of religion, and to jeopardize the rights of innocent people, who may have a deep interest in the knowledge and testimony of an unwilling witness, perhaps hairbrained and reckless enough to avow his atheism, so that the requisite proofs can be had, and so escape examination, when be ought to
The revised statutes, c. 115, <§> 72, runs thus: “ No person, who believes in the existence of a Supreme Being, shall be adjudged an incompetent or incredible witness in any judicial Court, or in the course of judicial proceedings, on account of his opinion in matters of religion, nor shall such opinions be made a subject of investigation or inquiry.”
