portion which directs and ordains, which creates rights and obligations, either civil or criminal, and prescribes the punishment for the violation of those rights and obligations, must, for all the purposes of the discussion, be considered perfect; and every rule of evidence must be considered good or bad, as it increases or diminishes the efficiency of that portion of the

As the law operates only through the medium of evidence, to ascertain the fact or facts which require its aid, evidence is necessary. 'Evidence, then, is the basis of justice, and the exclusion of evidence, is the exclusion of justice.' As it may be obtained from all, it should be sought from all, the good and bad, the willing and unwilling. Every species of evidence, every individual, whose fortune it may be to be a percipient witness of the disputed fact, whether atheist or believer, husband or wife, interested or disinterested, aye, and even a convicted felon, and a prisoner at the bar, should all be examined as witnesses, unless in any given case, greater mischief should be likely to result from the admission, than the exclusion of their testimony; for, wherever any parcel of evidence stands excluded, the judges of fact (by whatever name called) are, to the extent of the exclusion, deprived of the requisite means of information.

By the existing rules of evidence, both of the common and civil law, a vast and important mass of evidence is excluded, that is, prevented from being heard by the respective judges of fact, before whose tribunal the case may be tried. No valid reason can be given for these exclusions, other than that the admission of the excluded testimony would be attended with a preponderance of evil. As the cases in which testimony is excluded are numerous, and have for their basis different and discordant reasons, we propose to examine, separately, the force and validity of the reasons assigned in each case for exclusion.

Exclusion, or, as it is technically termed, incompetency, from defect of religious principle, will form the subject of the present number. When the common law flourished in its pristine vigor, it was laid down generally, that an infidel could not be a witness, in which denomination Jews as well as heathens were comprised; and Hawkins thought it a sufficient objection to the competency of a witness, that he believed neither the Old nor the New Testaments.' The original rule was found fraught with evil, and at length (in

Omichund v. Barker) received a partial judicial repeal. But still in England, as well as in this country, 'those are not competent witnesses, who do not believe in the existence of a God or a future state, or who have no religious belief.' As this subject frequently comes before our courts, it may not be unadvisable to consider the expediency of the rule, without, for the present, questioning its existence.(a)

As there is an infinite variety of character among men, so among witnesses, the degree of credit to be attached to their statements, varies from full and implicit confidence, to entire and unhesitating disbelief. Whatever may be urged against any witness, as affecting character, should be urged against his credit, and not his competency. In considering the case of exclusion, on the score of religious belief, the case of the atheist alone will be examined, for if atheism should not be considered a sufficient reason for exclusion, no other variety of religious opinion can ever be so considered.

Improbity, such as would probably affect testimony, is the principal reason of any force, that can be given for the exclyof the atheist. But atheism is not improbity, it is only an aberration of the intellectual powers, and the worst that can be said of it, is, that it affords a presumption of a willingness to commit crime. The atheist testifies under the influence of the same restraining motives as other witnesses, save the fear of future punishment. There is the absence of only one of the mendacity-restraining motives. It is evident that the atheist can speak truth. Unless, then, as before remarked, a preponderance of evil results from his admission, he should be heard. In the great proportion of cases, where he should be without interest, ex vi termini, he would be without motive to commit perjury. No man will do it to set the law at defiance, to ruin his character, or to obtain a steady home' at a penitentiary. The same motives in all cases, tempt to,(b) or prevent the commission of crimes-a benefit real or imaginary-a supposed utility to the criminal. The atheist and the

(a) In Hunscom v. Hunscom, 15 Mass. R. 184, the Court considered a disbelief in a future state of existence, as an objection to the credibility, and not the competency of the witness. This decision was without argument, and is adverse to all the English decisions, as well as to the reported cases of this country. Some of the remarks on this subject were published more than a year ago, since which, having been favored with a perusal of Bentham on Evidence, the writer has made free use of that masterly work, in preparing this article.

(b) Phillips' Ev. p. 69.

believer, in all cases in which they are disinterested, are equally entitled to credit.

With regard to all cases, where there should be an interest, whether legal or not, the atheist would be less entitled to belief, as one restraining motive is wanting. As far as any motive derived from the good or evil of this world, would influence conduct, their credibility would be equal. The difference of credit, therefore, would depend on future punishment, &c., as a motive influencing conduct. In all cases, there are certain securities against crime, such as character, if good, education, fear of present and future punishment, &c. The strength of these motives varies in every case, and in every individual. individual. On the other hand, there are concurring causes, such as interest, passion, hatred, &c., which lead to falsehood, and it is only by comparing the relative force of these antagonist motives, that we can approximate to the truth. Men are not of uniform weight and measure, nor of passions and feelings of equal duration and intensity. Neither do the results depend on the number of these mendacity-restraining, or mendacity-promoting motives, but rather on the energy with which they act. One motive may be sufficient in a given situation to restrain one, while the union of three or more, shall be found insufficient to produce the same effect in another individual. The dread of future punishment to a man sensitive of reputation, might have more influence than the dread of present and future punishment would on a mind differently constituted. The absence of one prevention proves not the absence of all. It merely proves that no reliance can be placed on the one wanting; when the motives to perjury exceed the inducements to truth and the checks. to crime, then the witness, whoever he may be, will testify falsely. In every case of conflicting testimony, it is a question of comparison, weighing the different characters and motives of witnesses, as to their effect on testimony, and after this comparison, believing or disbelieving their statements. This is done with regard to every witness and to every motive of his; and if it can be done when one restraint is removed, it may till all are removed, and as well and safely done, as in ordinary cases. If, then, the question of belief is raised, it should be after the delivery of the testimony, as one affecting its credibilty, and not for the purpose of its rejection.

The fear of future punishment, has probably less weight

The

than is generally imagined. Those who would disregard the present motives to truth, would regard little a future punishment, which by its very remoteness, loses its effect. force of religious obligation is generally united with the other sanctions, but when tested alone, its weakness and inefficiency is perceived, as in the case of custom house and test oaths, or oaths (in England) to obey the obsolete statutes of the universities. In these and similar instances, the religious either stands alone, or opposed to the other sanctions, and is perceived to be an ineffectual check to false testimony. If it should be said that all atheists are immoral, dissolute, &c. then the worse their character, the less danger of undue reliance being placed on their evidence.

An argument, likewise, is drawn from the oath administered. 'All witnesses before they are examined, are called to take an oath, by which they appeal to the Supreme Being for the truth of their assertions, and imprecate Divine vengeance on themselves if their testimony should be false.' It is said to be absurd, therefore, to administer an oath to those who deny its obligations, and who disbelieve in the existence of a future. state of rewards and punishments. With regard to the legal obligations of an oath, and the pains and penalties attached to its violation, no one denies them, any more than the obligations of any other law of the land are denied. The obligations of a religious nature, and their influence on testimony, alone are denied. Were the witness to testify under the pains and penalties of perjury,(a) the absurdity above supposed, would at once vanish. The objection, so far as it relates to the effect of this belief, has been already considered; and so far as it relates to the absurdity of the oath it is purely formal; and the remedy is simple and at hand, i. e. by a change in the words of the oath

or ceremony.

But atheism is a fact regarding the state of the mind, and the impropriety of its affording any sufficient ground of exclusion is very apparent, when one reflects on the only possible mode of ascertaining this fact. If, as must be the case, the fact be proved by his admissions, past or present, (on the stand) by relying on them as a ground of exclusion, the court rely,

(a) The quakers, it is well known, testify under the pains and penalties of perjury, and there is no reason, why all should not so testify. Nothing so much weakens the force of an oath, as the frequent and trivial occasions on which with us it is administered. Mr. Bentham rather prefers its abolition in his work.

in fact, on his character for truth, and say that, having as they believe, spoken the truth in that instance, the only case in which they have known him testify, he shall never again be admitted as a witness, for fear he will ever after perjure himself.(a) If he has stated an untruth, and is not an atheist, then, by the law of the land, he is admissible. Or, if being an atheist, he denies the fact, he must be admitted, for the witness alone knows the state of his belief at the time of his examination, and is not contradicted, although it should be proved that at some previous time he disbelieved in the existence of God. It is offering a premium to the abandoned atheist to lie, and punishing the individual who acts with integrity.

If the atheist has such a regard for truth, such a sense of moral obligation, (no matter how acquired) that from it he acknowledges his disbelief in the existence of God, he would, by that very admission, be entitled to credit, inasmuch, as if, in despite of the disgrace and ignominy consequent on the avowal of such opinions and the great temptations resulting therefrom to misstate, he nevertheless acts with integrity, he shows himself possessed of extraordinary firmness, and an uncommon regard for truth, and might certainly be trusted in other cases. While the unprincipled, who scrupled not to deny his atheism and to assert his belief in future punishments, would be received. So that the rule can never be productive of good; as it only excludes the honest man who embraces that belief, and affords no means of detection, no security, (when alone it is wanted) against the dishonest atheist.

6

It is obvious that the best means of ascertaining the individual's belief, will be to inquire of him whose belief is the subject of doubt; and the preceding remarks are made on the supposition that the question of belief is to be put directly to the witness. But in a note on 3 Black. Com. 369, Mr. Christian makes the following remarks: 'I have heard,' he observes, 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 a future state.' If by this remark was meant, that the witness should never be inquired of, it would operate as a repeal of the rule, unless the inquiry was made of other witnesses. But in Curtis v. Strong, 4 Day 51, it was decided that the declarations of a

(a) Swift's Evidence.