Excommunication.

it was solemnly decided, that the depositions of witnesses professing the Gentoo religion, who had been sworn according to the ceremonies of their religion under a commission out of Chancery, ought to be admitted in evidence (1). And it may now be considered as an established rule, that infidels of any other country, who believe in a God, the avenger of falsehood, ought to be received here as witnesses: but infidels, who believe not that there is a God or a future state of rewards and punishments, cannot be admitted in any case (2). It follows, that, for the purpose of trying the competency of a witness, the proper question is, not as to his particular opinions, as, whether he believes in Jesus Christ, or in the gospels, but whether he believes in the existence of a God and a future state. For this reason, in a case before Mr. Justice Buller, where a witness, who had been sworn on the gospels, was asked, whether he believed in the gospels on which he had been sworn, the question was objected to, and overruled by the court (3). This question appears to have been put after the swearing in chief, though before the examination of the witness. If it had been asked before the witness was sworn, it seems that it would have been regular; for if he had not believed in the gospels, how could he have been sworn upon them? The administration of an oath in such a case would be merely nugatory; and evidence would be given without any religious sanction, on the bare assertion of a witness. If the law requires an oath, and a witness believes not in any form of religion, the consequence seems to be, that he cannot be sworn. (4)

It has been frequently laid down, that persons excommunicated are not competent witnesses, because it is supposed, that those who have been excluded from the church

are not under the influence of any religion. The authority, generally referred to in support of this rule, is a dictum of Lord Coke C.J. in the case of the Attorney General v. Griffith (1), concerning the oath of allegiance required of Popish recusants. He is there reported to have said, "by the stat. 3 J. c. 5. every recusant convict is to be excommunicated; and therefore on my circuit, I do not admit of them for witnesses between party and party, they being not competent witnesses." On the authority of this dictum, the rule has been commonly adopted by writers on the subject of evidence; although the reason, upon which it is supposed to have been founded, would in the present day be generally exploded. But now, by a late act of the legislature, this objection has been entirely removed. The stat. 53 G. 3. c. 127. §2, 3. enacts that no sentence of excommunication shall be pronounced by Ecclesiastical Courts in cases of contempt or disobedience to their order, and that persons excommunicated shall in no case incur any civil penalty or disability.

With regard to the ceremony or form of administering an oath, that form is obviously the best, which most clearly conveys the meaning of the oath, and most forcibly impresses its obligation. And since this is not an essential part of the oath, but entirely of human institution, and has varied in different times and countries, though the substance of the oath must be the same in all, it is obviously necessary to allow men to swear according to the peculiar ceremony of their religion, that is, in the manner which they consider most binding on their conscience. "Possibly, says Lord Hale, they may not think themselves under any obligation, if sworn according to the usual style in the courts of England (2)." Jews have therefore been sworn in our courts from the earliest times on the Pentateuch (3); and no distinction appears ever to have been taken between their swearing in a civil or in a criminal case. In an old case,

where a witness refused to be sworn in the usual form, by laying his right hand on the book and kissing it afterwards, Glin C.J. ruled, that he might be sworn, by having the book laid open before him and holding up his right hand (1). "In my opinion, said the Chief Justice, he has taken as strong an oath as any other witness." So on the trial of some of the rebels at Carlisle in the year 1745, a witness being sworn in the same manner by holding up his hand, the point was referred to the judges for their opinion, and they all agreed in thinking the witness legally sworn (2). Mahometans may be sworn on the Koran (3); and Gentoos, and upon the same principle all persons, according to the ceremonies of their religion (4). Whatever be the form, the meaning of the oath is the same. It is calling upon God to witness what we say, and invoking his vengeance, if what we say be false.

There appears to be no good reason for not admitting the solemn affirmation of a Quaker in all cases, as well as the oath of a Jew or Gentoo, or any other person, who thinks himself really bound by the mode and form in which he attests. Before the revolution, Quakers, who refused to take a legal oath, were treated as obstinate offenders, and subject to penalties (5). But, these hardships have been since removed by the Toleration Act (6), which first allowed them to make a declaration of their fidelity to the state, instead of taking an oath of allegiance, and exempted them from all pains and penalties, on their making, if required, certain other declarations there prescribed. And now by subsequent Acts (7), their solemn affirmation in Courts of Justice is admitted to have the same effect as an oath taken in the usual form, excepting only, that on such affirmation

they are not permitted to give evidence in criminal cases. This exception has been continued in the several succeeding acts of the legislature on this subject; but the propriety. of such a distinction seems questionable; unless, indeed, it can be shewn, that evidence requires less sanction in civil cases than in criminal, or that Quakers in making their solemn affirmation do not consider themselves under a strict religious obligation to speak the truth.

The legislature, by not admitting the affirmation of Quakers in criminal cases, must be understood to mean causes technically criminal. They may be received in penal actions: as, in an action for debt on the statute against bribery in elections (1): so, on a motion for an attachment for nonperformance of an award (2), or on a motion to quash an appointment of overscers (3); these proceedings being of a civil, not a criminal nature.

But in all cases, which are substantially of a criminal nature, the affirmation of a Quaker is inadmissible: as, in an appeal for murder (4), though it is in form a civil proceeding; so on a motion for an information for a misdemeanor (5), or on exhibiting articles of the peace (6), or on a motion for non-performance of an order of Court (7). Where the application to the court is against a Quaker, his affirmation may be received in his own defence, though the proceeding be of a criminal nature. (8)

It has been observed by Lord Mansfield (9), that Quakers are at present under some hardship, in not being able to call other Quakers as witnesses in their defence, on a charge of treason or felony; since in these cases, witnesses

(1) Atcheson v. Everett, Cowp. 382. () Taylor v. Scott, cited Cowp. 394. Powel v. Ward, cited Andr. 200. (3) R. v. Turner, 2 Str. 1219. (4) Castil v. Bainbridge, 2 Str. 856. Owp.392.

(5) R. v. Wych, 2 Str. 872. Gardner, 2 Burr. 1117.

R. v.

(6) R. v. Green, 1 Str. 527.

(7) Skipp v. Harwood. Willes, 291. and see n. (b) ib. where the cases on this subject are collected.

(8) R. v. Shacklington, And. 201. n. R. v. Gardner, 2 Burr, 1117. Corp. 383.392.

(9) Cowp. 391.

on behalf of the prisoner are to be sworn, before they can give evidence, like witnesses for the crown (1); and no exception is made in the statute, in order to give a prisoner the benefit of a Quaker's testimony.

(1) St. 7 & 8 W. & M. c. 3. s. 1. St. 1 Ann. ft. 2. c. 9. s. 3.

What

offences incapacitate.

CHAP. IV.

Incompetency from Infamy of Character.

SECT. I.

Of the Offences, which incapacitate.

Third cause of incompetency proceeds from the conviction of certain crimes, or from infamy of character.

There are many offences, which our law considers such blemishes on the moral character, as to incapacitate from giving evidence in courts of justice (1); as, treason, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, attaint of false verdict, and other offences of the same kind, which necessarily imply falsehood (2). The whole class of offences which come under the denomination of felony (3), that is, all offences which occasion a forfeiture of lands or goods, will have the same effect in rendering a witness incompetent; though it is obvious, that crimes are not always punished by the legislature in proportion to their guilt, and there may be more depravity in frauds, which are not punishable, than in some kinds of felony. By the common law, a person convicted of petty larceny was not a competent witness, as the offence was felony no

(1) Gilb. Ev. 126. Bull. N. P. 291. (2) Co. Litt. 6. 6. Hawk. b. 2. c. 46. S. 101. Com. Dig Testmoigne, A. 5. 2 H. P. C. 277- Fortesc. Rep. 209.

Jones v. Mason, 2 Stra. 833. Walker v. Kearney, 2 Stra. 1148.

(3) Co. Litt. 6 6. Com. Dig. ubi sup.

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