Jackson ex dem. Tuttle v. Gridley

. Spencer, Ch. J. delivered the opinion of the Court. It was proved, unanswerably, on the trial, that Amos Grid103 ley, a witness offered by the defendant, had, deliberately, within three months of the trial, declared his disbelief in a God, and a future state of rewards and punishments ; that he had said, man was like a beast, and when he died there was an end of him. Being interrogated as to his present belief, he said that he did not know that he had any reason to doubt there was an after state of rewards and punishments. He was directed to be sworn, though objected to, and being about to be sworn on the gospels, was asked if he believed in the scriptures, and the question was overruled. If Gridley ought not to have been admitted as a witness, there ought to be a new trial, for his evidence was material, and might, and probably did, produce a verdict for the defendant. By the law of England, which has been adopted in this state, it is fully and clearly settled, that infidels zoho 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 he witnesses in any case, nor under any circumstances ; because an oath cannot possibly be any tie or obligation, upon them. Ma-hometans may be sworn on the Koran ; Jews on the Pentateuch, and Gentoos and others, according to the ceremonies of their religion, whatever may be the form. It is appealing to God to witness what we say, and invoking punishment, if what we say be false. (Willes' Rep. 549. 1 Atk. 45. Str. 1104. Morgan's case, Leach's Cr. C. 64.) On this subject we have, also, express legislative recognition of the common law. (1 N. R. L. 386.) Every person believing in the existence of a Supreme Being, and a future state of rewards and punishments, having conscientious scruples against taking an oath, shall be admitted to an affirmation. But how is it to be ascertained whe-ther a person offered as a witness, disbelieves in the existence of a God, or in a state of future rewards and punishments ? Mr. Christian, in a note to 3 Bl. Com. 369. says, “ I have known a witness rejected and hissed out of Court, who declared, that he doubted of the existence of a God and a future state; but I have since heard a learned Judge declare, at Nisi Prius, that the Judges had resolved not to permit adult witnesses to be interrogated respecting their belief of the deity, and [104] a future'state. It is, (he adds,) probably, more conducive to the course of justice, that this should be presumed, till the contrary is proved; and the most religious witness may be scandalized by the imputation which the very question implies.’’ In Curtiss v. Strong, (4 Day's Conn. Rep. 51.) it was decided, that the incompetency of the witness could be proved from his declarations out of Court, concerning his opinions and principles; and it was also decided, that he could not be admitted to deny or explain in Court the declarations imputed to him, as it would be incongruous to admit' a man to his oath, for the purpose of ascertaining whether he had the necessary qualifications to be sworn; Judge Swift (Treatise on Evidence, 49, 50.) gives, in my opinion, an unanswerable argument against propounding any questions to a person offered as a witness, and'before he is sworn, touching his religious creed. If an infidel has any conscience, or regard to truth, he would, if questioned, honestly avow his creed, and be rejected. ' If he had no conscience, or regard to truth, and his feelings inclined him to favour the party calling him, he would- either deny the opinions imputed to him, or pretend to a sudden conviction, that he had been in an error, and that he now believed in a God, and a future state of rewards and punishments. But there is a still more decisive objection; it being proved by other, and competent witnesses, that the witness offered had deliberately acknowledged himself to be an infidel, and .disbelieved in a future state of rewards and punishments, the incompetency of the witness is established by proof. The declarations of the witness, not under oath, do not disprove these facts ; for no fact, in a court of justice* can be established, or, when established, can be destroyed, but by evidence ; and nothing can be evidence, unless delivered under the sane-., tion of an oath. The assertions in a court of justice of no man, however high his rank, or exalted his character, can be received to make out a fact. I fully concur in the opinion expressed in Curtiss v. Strong, that it would be incongruous to admit a man to his oath, to ascertain whether an oath had any binding influence on his conscience. If he had no idea of the sanction which the appeal to heaven, by taking an oath, creates, what is there to prevent his swearing [105] false in the preliminary inquiry ? It may be, that in some instances, a witness has been interrogated in the way in which Gridley was, but we are without any adjudication in the English courts upon this point, and are at full liberty to settle the course of proceeding upon solid and rational principles ; and it does appear to me, that upon principle, afte.r it is proved that a witness offered is, at the time he is offered, an infidel, that he can neither be sworn to disprove the fact, nor be permitted, without oath, to make himself competent. I say an infidel at the time he is offered, for the proof ought to relate to avowals and opinions expressed by the witness within such time, as to induce the presumption that his infidelity still exists. If the declarations were made some time before, and it could be proved by external signs, that there had been a change of mind, such as a pious and devout attention to religious worship, and declarations in the belief of God, and a future state of rewards and punishments ; such proof might reinstate the witness, and entitle him to be sworn. It will always be matter of proof addressed to the Court; and they will take care that the incapacitating infidelity does not exist, when the witness is admitted to be sworn. It is the practice to question infants of tender years, as to their capacity to give evidence; and they are asked as to their religious knowledge, and whether they believe in a Supreme Being, and a future state of rewai’ds and punishments. This inquiry is with the view of testing their capacities, and to ascertain whether they have sufficient understanding of the nature and obligations of an oath. The case of infants, supposed not to have strength of mind, and intelligence sufficient to testify, is widely different from that of adults who have perverted minds, not acknowledging the sanction of an oath, and not being impressed with any dread, except of temporal punishments, should they swear falsely. The course pursued on this trial was to admit the witness on his declaration, that he did not know that he had any reason to doubt that there was an after state of rewards and punishments, and to leave his credit to the jury; and the learned Judge told the jury., that his statement ought tpbe digre106 garded as deserving no credit. Now, it does appear tome, if the Judge was authorized to say so, as I think he was, he ought not to have been admitted at all. It would be strange if the law admitted a man to be a witness, that the same law should declare he was not to be believed an account of the obliquity of his mind, and because he was incapable of being bound by any religious tie to speak the truth. The very fact that a person possesses such an awful creed, as Venders him unworthy of credit, establishes that he should not be heard. Religion is a subject on which every man has a right to think according to the .dictates of his understanding. It is a solemn concern between his conscience and his God, with which no human tribunal has a right to meddle. But in the development of facts, and the ascertainment of truth, human tribunals have a right to interfere. They are bound to see that no man’s rights are impaired or taken away, but through the medium of testimony entitled to belief; and no testimony is entitled to credit, unless delivered under the solemnity of an oath, which comes home to the conscience of the witness, and will create a tie arising from his belief that false swearing would expose him to punishment in the life to come. On this great principle rest all our institutions, and especially the distribution of justice between man and man. There must be a new trial, with costs to abide the event.