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opposed to mine, I think I ought to relinquish it, or further to defend it. On reviewing the whole ground I cannot give it up; because, 1. My opinion is grounded on the common law, and the statute, 52 H. 3, ch. 23, that gave the injured party only full damages for waste, as stated a. 11, s. 1, above; also on Massachusetts statutes of 1700 ; cited a. 13. $. 4. merely making tenant in dower liable to an action for any strip or waste. It appears to me, this never could mean an action for the place wasted and treble damages, in the severe spirit of the statute of Gloucester; but that it means an action for “the full damages,” in the spirit of the common law, and of the 52 H. 3, ch. 23 : 2. further reasons, as stated in another place forty years ago: C. J. Dana and others held, invariably, that where our ancestors adopted the common law, they adopted the British statutes enacted in amelioration of that law, and rarely, if ever, British statutes increasing, and especially severely, the penalties of the common law; on this principle, most clearly true, because they thought the spirit of our system has ever been far more mild than that of England. Therefore, in adopting laws from England by our ancestors, a milder, and not a severer temper has ever prevailed. Again, by our statute of March 11, 1784, cited a. 1, s. 6; a tenant in dower forfeits for waste the place wasted, “and damages assessed.” Is it possible our legislature by these words, “damages assessed," could mean treble damages? If it be thought our legislature, in passing these acts of 1700 and 1784, believed the statute of Gloucester was in force here, and meant to conform to it, why did they not adopt its language, at least its very plain meaning? If it be said, the legislature in 1700 and 1784, intended to reenact here the statute of Gloucester, as it was common here to reenact British statutes, it may be asked why, when the words of that statute were so few and plain, the legislature did not reenact its words, at any rate, its obvious meaning? In the case of waste, pending actions, &c., when the legislature intended treble damages, it called them, very naturally, treble damages, and not." damages assessed." ;
The Supreme court of Massachusetts has since decided, in Padelford v. Padelford, 6 Pick. 152, that the place wasted and single damages are forfeited under the statute of Massachusetts in relation to waste on estates held in dower. But in a subsequent case, Sackett v. Sackett, decided in the county of Berkshire, September, 1829, not yet published, the same court has decided, as we understand, that in case of waste on other estates for life, the place wasted and treble damages are forfeited. See S. C. 5 Pick. 191. On the subject of · Federal Principles and Cases in Equity,'
VOL. IV.NO. VII.
the decisions since 1820 have supplied the author with a large mass of materials.
Considering the very extensive agency of corporations, in conducting various branches of industry in many of the United States, besides their important municipal and political functions, and considering the frequent questions arising in practice as to the extent and the proper and legal exercise of their powers, it would, it seems to us, have been an improvement if the author had made a distinct title in this volume, both in the body of the work and in the index, for this subject. Some of the cases relating to corporations are embraced in the work, but not so as to be conveniently consulted in reference to the
properties of these ecclesiastical, political, and economical organs.
This volume contains a number of cases under the head of Ministers and Religion,' decided in Maine, New Hampshire, and Massachusetts, with the addition of one from 20 Johns. On the question which has for a long time been agitated in Massachusetts, respecting the rights of churches and towns or congregations, Mr. Dane supports, very decidedly, the doctrine adopted by the courts of that state. Though this question will be of little interest, and perhaps hardly intelligible, in those parts of the United States where the municipal and parochial organization have always been different from those of New England, still as it is a question in which many of our readers take an interest, and as the author is very familiar with this branch of history and law, we quote some of his remarks.
“As recently as 1828 it has been contended in vindication of each gathered church, that it is a body politic; and that it retains, under the old colony and province laws, its first and separate vote in the election and settlement of a minister; and that the decision in Avery's case is erroneous, wherein it is held, the parish has, by law, the exclusive right to elect and contract with him. This is indeed strange, as these old laws are all so expressly repealed by the statutes of March 4, 1800, and June 18, 1811. Equally singular that any one should urge the church can choose a pastor, and the parish a minister. It is conceived that though the church could so elect under those old laws, yet it never was so a body politic as to sue and be sued, make a money contract, or vote, assess, and collect a tax, clearly not after 1662, when church members alone ceased to be voters, and others became voters too. In advocating the ancient power of the church, despotic till 1662, the power of the town has, by mistake, been ascribed to the church, as in the case of one Briscoe of Watertown, A.D. 1642, who was taxed towards the minister's salary, and complained and wrote against the tax. Governor Winthrop and Hubbard speak of it as a tax voted and assessed by the church; but it seems now, on examining the Watertown record, it was a tax voted by the
won, in a town meeting, in which town officers were chosen. As then only church members were voters in town meetings, Winthrop might not be attentive to distinguish the acts and votes of the town and those of the church; and as he confounded them in Briscoe's case, it is probable he did in other cases. I have never seen the least evidence that a church, as such, ever exercised civil power as a body politic, as to sue or be sued and defend, or to use a seal, to make money contracts, buy or sell land, or vote and assess taxes. No doubt church members alone voted the tax in Briscoe's case, because then they alone were voters in any case. Though the church, as a church, had power to act by vote, it was only in church order and discipline, but whenever they acted in matters of property and civil rights, they acted and voted as a town. But most clear it is, that whatever the church, as such, might do under those old laws, is now of no importance, as those old laws have all been actually repealed, and new laws enacted on the subject in conformity to the constitution of 1780.'
On the question respecting the incompetency of witnesses on account of religious belief, which has been recently so learnedly and ably investigated in Connecticut, in the case of Atwood v. Walton, 7 Day, 66, from which large extracts were made in the last number of this journal, p. 338 to 350, Mr. Dane, ch. 98, s. 5 and 9, of this volume, states the opinion in Jackson v. Gridley, 18 Johns. 98, that infidels who do not believe in a God, or who, believing in a God, do not think he will reward or punish them in the world to come, is not a competent witness, and remarks that in that case 'the witness totally disbelieved in the existence of a Supreme Being. He believed in no punishment by an overruling Providence in this life. Hence as to future punishment, the opinion of Chief Justice Spencer was an obiter dictum. Mr. "Dane then cites, with apparent approbation, the opinion of Chief Justice Willes. He says, 'Willes, C. J. admits a person as a witness if he believes in a God, and his punishment in this life or the next. See his R. left in his own hand-writing, pages 545, 549, 550, and 551.'(a)
(a) In the case of the Commonwealth against Origen Bacheler, tried in the Boston Municipal Court, March, 1829; a witness was objected to on account of his being a Universalist. Judge Thacher, who presides in that court, in charging the jury, made the following remarks upon this subject :
• In the course of the examination of some of the witnesses, much time was
This volume went to the press and was mostly printed at the commencement of the last session of congress, but was not spent in inquiries as to the extent of their religious belief. I confess, that I have always been desirous to exclude from this Hall all inquiries which have a tendency to excite a sectarian or party spirit either in religion or politics. Good men will differ on these points, and their passions will insensibly become enlisted in the controversy. It is the duty of Courts to assuage the violence of party spirit, and to administer justice with an equal hand. To withhold equal civil privileges from any of our citizens, however they may differ in their speculative views of religious faith, seems to me to be against the spirit of our institutions. Objections to witnesses, arising from defective or erroneous views of religion, ought to go to the credibility rather than to the competency of a witness, and in conformity with this sentiment, where it was objected to a witness, that he did not believe in the existence of a future state, on account of his professed declarations to that effect, our Supreme Judicial Court still admitted him to testify, considering the objection as applying to his credibility and not to his competency. 15 Mass. R. 184. Hunscom v. Hunscom. Errors in speculation insensibly creep into the mind, having their origin in our virtues as well as in our defects—sometimes arising from education and example, sometimes froin pride and vanity. Some men think it the part of wisdom to doubt every thing; while others deem it meritorious to believe even in impossibilities. It is best to leave them all to the corrections of reason, and to the sure influence of time, “which, while it dissipates the errors of opinion, will not fail to confirm the decisions of truth.”
• It is well settled, that Atheists and such infidels as profess not any religion, that can bind their consciences to speak the truth, are excluded from being witnesses. But every person who believes in the obligation of an oath, whatever may be his religious creed, whether Jew, Christian, Mahomedan, or Pagan, is an admissible witness; and may testify in a Court of Justice, being sworn according to that form of oath, which, according to his creed, (see the case of Atcheson v. Everett, Cowp. 382.) he holds to be obligatory. Phillips on Evidence 19. It may be justly doubted, whether it is not wholly inconsistent with the rights of conscience, to compel a man to disclose his opinions on religious subjects, inasmuch as they are matters between his conscience and his God. If from his veneration to truth, he should avow the belief of a sentiment, which would render him unpopular or odious to his fellow citizens, or to any class of them, or which would tend to his disgrace or injury; it would be to criminate, or bear witness against himself. If therefore an objection is taken to a witness, on account of his religious sentiments; it is very reasonable, that these should be proved hy other witnesses ;-and I cannot but regret, that I allowed any of the witnesses, who have been examined on this trial, to be interrogated on these points, with a view to their own disqualification; and, with my present views of the law, I should not allow it to be done again.
In the case of one of the witnesses, Ephraim C. Beals, it was attempted to be shown, that he ought not to be sworn, for the alleged ground, that he did not regard the sanctions of an oath. His son, Edward L. Beals, was offered as a witness to disqualify his father in this respect. This young man stated, that he left his father's house, when he was about four years old, and it was very apparent, from his own account of himself, that he had had but a slight opportunity, to form a correct judgment of his father's opinions on religious subjects. The witness however stated, that, from a conversation which he had with his father, at the time of his brother's death, he inferred, that he did not believe in the punishment of the impenitent in a future state; but he professed, that he was not able to detail the particulars of that conversation ; he had heard his father say, that we should all be happy in another world, and that we should be punished for our evil deeds in this state. Now, if in con
published until late in the session, and after the crisis of the debate on Mr. Foote's resolution in relation to the public lands. The same question which occupied a part of that debate, we mean the nullification doctrine, is discussed by Mr. Dane, and his arguments coincide very strikingly with those so eloquently and demonstratively presented in Mr. Webster's speech. This coincidence is of itself an argument of some weight, if any additional argument were necessary, in support of the correctness of these views. As this great question has not lost its interest, though the contest upon it bas ceased, and as Mr. Dane introduces still another piece of testimony from Virginia, we will extract the passage. We are the more ready to quote it, as it incidentally involves the consideration of the operation of the provision of the constitution establishing the Supreme Court. The passage to be extracted shows very clearly how essential to the liberty of the citizen is the independence of the judges, and the permanency of the judiciary. When the citizen chances to find himself on the confines of the different jurisdictions, he must be sacrificed in the contentions of the general and state executives, unless he can fly to some secure retreat. The judiciary is his only city of refuge. In such a case, this mild and peaceful power of the judiciary extends its shield for his protection. If this beneficent, intermediate power, is prostrated, you leave the citizen to be rent and crushed in the strise of these antagonists. The independence of the judiciary is his palladium, and, of all persons in the world, a professed lover of the people and champion of their rights, should be the last to steal from them or rob them of this greatest of all political treasures, the right of being tried by independent judges. The passage referred to is as follows.
13. As in this general abridgment of American law, it is sequence of such a general statement, from a witness, whose education, it was apparent, had been much neglected, the witness, Mr. E. C. Beals, had been rejected, it would then have followed, that a great body of our fellow citizens would, in the judgment of this court, have been disfranchised, and excluded from their oath both in civil and criminal cases. With my present views of the law, if a man believes in the being of God, and in his attributes as a righteous avenger of wickedness, and in the existence of a future state,-I consider it my duty to admit him to his oath. From such a belief it follows, that Gud will punish him who commits wilful perjury, that crime so odious to God and man, either in this world or in that which is to come. The punishment will be worthy of a God of perfect justice, whether inflicted in this world or in a future. Who then will not dread such a punishment—and who will not fear to commit such an offence ?