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witness out of court were admissible to prove his incompetency, and the witness could not be permitted to explain or deny 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. And this may be considered as a judicial interpretation of the remarks cited from Blackstone. However incongruous it may be to admit a man to his oath, for the purpose of learning if he has the necessary qualifications for a witness, it is certainly much more so to rely, for the same purpose, on loose conversations, or unguarded statements, unsanctioned by the penalties of an oath. If the law be, that proof of atheism is only to be received from extraneous evidence, besides the absurdity of putting confidence in the statements of a witness for the purpose of discrediting, excluding him by these very statements,—it has the still more glaring absurdity of preferring hearsay evidence over direct proof under oath. This rule considers proof of past, (for that is all the extraneous witness can testisy) as conclusive evidence of present atheism, thus saying that it considers it improbable, (so improbable as not even to admit contrary proof) that an atheist should ever change his opinion. It savs likewise that this hearsay evidence shall be conclusive, and shall neither be explained nor denied by the only person who is best qualified to explain, deny, or confirm these statements.

But in truth, "action, not principle,' is the object of legislation. Government has no right to interfere with the religious belief of its citizens. This is certainly a question between them and their God. Government should never meddle with abstract belief; it should never expose a man to ignominy or disgrace, for atheism or deism, or immoral principles of any

The moment those opinions result in actions—the moment the immoral man is guilty of immorality—the moment the atheist commits perjury,—then the duty of government commences. If because a man is an atheist, it should therefore be presumed that he would commit perjury, and his testimony for entertaining those opinions should be excluded, why might it not equally well be presumed, that on the same account he would commit murder, and thus government be justified in confining bim for life. In other words, if he may be punished (and this exclusion is a punishment for opinion) because it is supposed without the preventive care of govern


be ment in his exclusion he would commit perjury; why should

not government see that he does not have the power of committing every other crime, and thus confine him for life. It is just as probable, that from defect of religious principle, the atheist will shoot the first man he meets, as that he will perjure himself the first time he is called as a witness; and he may with equal propriety be prevented by confinement for life from doing one, as by exclusion, from doing the other. The punishment is more severe in one case than in the other; but one meets thousands of men, for every time he is called on as a witness.

It should be remembered that witnesses cannot be had by asking, and whenever by the exclusion of the only existing testimony, (the witness being an atheist) the punishment falls on an innocent individual, the evils resulting from this rule are obvious. It operates as a license to commit all and every crime on an atheist, if committed only in the presence of those of that belief, and to a complete denial of justice, when the only attainable proof is by an atheist. All this is naked evil, without a solitary benefit to counterbalance it. The evil is less perceived, because the numbers of that belief are few.

The question of the competency of the quaker, the moral sense of this community would not suffer even to be raised as doubtful, though, in criminal cases in England he is, or was, till lately, excluded.



Opinion of Chief Justice Jay, and some of the Justices (being

a minority) of the Supreme Court of the United States, in reply to a letter of President Washington, on the constitutionality of the laws assigning to the Judges of the Supreme Court the duties of holding Circuit Courts.

The extension of the judicial system of the Union to its enlarged and widely diffused population, has been for sometime a subject of deep interest. Not only has it been felt in the halls of congress, but by the mass of the people, who have anxiously regarded this shield to their dearest rights. The difficulty of making it commensurate with the wants of our republic, is great. On the one hand to preserve the supreme appellate tribunal from an over enlargement in numbers; on the other, to carry the beneficial protection of national justice to our remotest borders,-alike perplex the legislator.

If the views entertained by the first Chief Justice and a minority of the members of that court, had been adopted at the outset of the government, it is apprehended much of the difficulty would have been removed, and an easy adaptation to the varying circumstances of our country would have been the characteristic feature of the system. This opinion is fortified on the perusal of a communication prepared by the late Chief Justice Jay, to be laid before the President of the United States in 1790, which it is supposed has never been before published.

A difference of opinion, and probably also a wish to avoid the semblance of embarrassing the operations of government at the first stage, by increasing the number of its functionaries, led to a postponement of the representation, and finally to a silent acquiescence in the execution of the circuit duties prescribed by the judicial act of 1789.

It is now evident that if this construction of the constitution be not adopted, or an equivalent alteration of the judicial system be not effected, a multiplication of the members of the Supreme Court is inevitable, and consequently that that tribunal will be in danger of becoming in some measure a popular assembly, and thus frustrate the design of its framers.

The representation alluded to was in answer to a letter addressed by General Washington to the court upon its organization, which we have therefore prefixed to it.

United States, April 3d, 1790. 'Gentlemen: I have always been persuaded that the stability and success of the national government, and consequently the happiness of the people of the United States, would depend, in a considerable degree, on the interpretation of its laws. In my opinion, therefore, it is important that the judiciary system should not only be independent in its operations, but as perfect as possible in its formation.

you are about to commence your first circuit, and many things may occur in such an unexplored field which it would be useful should be known, I think it proper to acquaint you


that it will be agreeable to me to receive such information and remarks on this subject as you shall from time to to time judge it expedient to make.

GEO. WASHINGTON. The Chief Justice and Associate Justices of the Supreme Court of the United States.'

Sir. We the Chief Justice and Associate Justices of the Supreme Court of the United States, in pursuance of the letter which you did us the honor to write on the third of April last, take the liberty of submitting to your consideration the following remarks on the “ Act to establish the Judicial Courts of the United States.'

It would doubtless have been singular, if a system so new and untried, and which was necessarily formed more on principles of theory and probable expediency, than former experience, had, in practice, been found entirely free from defects.

The particular and continued attention which our official duties called upon us to pay to this act, has produced reflections, which at the time it was made and passed, did not, probably, occur in their full extent either to us or others.

On comparing this act with the constitution, we perceive deviations which, in our opinions, are important.

The first section of the third article of the constitution declares that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts, as the congress may, from time to time, ordain and establish.'

The second section enumerates the cases to which the judicial power shall extend. It gives to the Supreme Court original jurisdiction in only two cases, but in all the others, vests it with appellate jurisdiction ; and that with such exceptions and under such regulations as the congress shall make.

It has long and very universally been deemed essential to the due administration of justice, that some national court or council should be instituted or authorized to examine the acts of the ordinary tribunals, and, ultimately, to aflirm or reverse their judgments and decrees; it being important that these tribunals should be confined to the limits of their respective jurisdiction, and that they should uniformly interpret and apply the law in the same sense and manner.

The appellate jurisdiction of the Supreme Court enables it to confine inferior courts to their proper limits, to correct their involuntary errors, and, in general, io provide that justice be administered accurately, impartially, and uniformly. These controlling powers were unavoidably great and extensive; and of such a nature as to render their being combined with other judicial powers, in the same persons, unadvisable.

To the natural as well as legal incompatibility of ultimate appellate jurisdiction, with original jurisdiction, we ascribe the exclusion of the Supreme Court from the latter, except in two cases.

Had it not been for this exclusion, the unalterable, ever-binding decisions of this important court, would not have been secured against the influences of those predilections for individual opinions, and of those reluctances to relinquish sentiments publicly, though, perhaps, too hastily given, which insensibly and not unfrequently infuse into the minds of the most upright men, some degree of partiality for their official and public acts.

Without such exclusion no court, possessing the last resort of justice, would have acquired and preserved that public confidence which is really necessary to render the wisest institutions useful. A celebrated writer justly observes thatónext to doing right, the great object in the administration of public justice, should be to give public satisfaction.'

Had the constitution permitted the Supreme Court to sit in judgment, and finally to decide on the acts and errors, done and committed by its own members as judges of inferior and subordinate courts, much room would have been left for men, on certain occasions, to suspect that an unwillingness to be thought and found in the wrong, had produced an improper adherence to it; or that mutual interest had generated mutual civilities and tendernesses injurious to right.

If room had been left for such suspicions, there would have been reason to apprehend that the public confidence would diminish almost in proportion to the number of cases in which the Supreme Court might affirm the acts of any of its members.

Appeals are seldom made but in doubtful cases, and in which there is, at least, much appearance of reason on both sides; in such cases, therefore, not only the losing party, but others, not iinmediately interested, would sometimes be led to doubt whether the affirmance was entirely owing to the mere preponderance of right.

These, we presume, were among the reasons which induced the convention to confine the Supreme Court, and consequently its judges, to appellate jurisdiction. We say, “consequently its judges, because the reasons for the one apply also to the other.

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