The Sun.
London, England, 1861-01-29 00:00:00

TILE LAW AS TO AN INFIDEL'S OA7II

The Rochdale Pilot contains a full report of the
motion for a new trial in a case, the result of which
we have already given. In deciding on the motion
for anew trial, sought by Mr. E. H. Craufurd,M.P.,
the Judge of the county court (Mr. C. Temple,
Q.C.), said,—" The case came before him simply
upon the ground that he had committed a mistake
in the law of the land as he had expounded it, and
that the witness to whom the objection was taken
had been improperly refused an opportunity of giv-
ing her testimony. He had known nothing of the
case before it was brought into court, and did not
know even the merits of the case until he read it in
the newspaper, so that he could not be charged
with having a prejudice about the question. After
showing that the fact of the atheistic profession of
the witness was one brought out by an opponent,
and not by the Court, his Honour proceeded to dis-
cuss the simple question—What was the practice of
the law of England as to the admissibility of the
evidence of a witness whose religious belief was
questioned ? Upon examination, it turned out to be
of a particular nature. The learned counsel had
said that it was a common law question, and he was
right. He had said of that common law that it was
elastic, and that therefore it was not to be judged
with the strictness of olden times. He (the learned
judge) admitted that in a degree, but not to the
extent of the learned counsel's argument. The corn-
mon
law of England was
elastic with regard to the
application of its principles to changed circum-
stances of society, butit was not elastic, but immut-
able, with regard to the essential principles on
which it was based. The common law, which ho
had gathered in days long passed, was simply this
—that according to the words of Mr. Justice Bailer,
a witness to be admitted must believe in the exist-
ence of a God, the obligation of an oath, and in a
future state of rewards and punishments, so
that the witness may feel that he is respon-
sible to God for the truth of what he said.
Formerly no man could be admitted without taking
that oath, er rather without he was a Christian.
Now they understood the terms " infidel" and
" atheist" to be synonymous, but formerly every one
was an infidel who was a foreigner or did not hold
the expressed faith of the country. He had taken
some pains to look into the law of the subject, and
found that the old form of oath went further than
the present form, concluding thus :—" So help me
God on His Holy Doom" or judgment. Whatever
the form, however, there was ever one substratum
—a belief in God, a belief that man was responsible
to Him for his actions. But if the form or prin-
ciple of the oath worked wrong or evil—that was
no fault of his ;he
.fbund the oath a legal provision,
its administration thereof was his duty, and he
should always endeavour to perform that which was
his bounden duty. He did so in this case, and saw
no occasion to regret anything he had done. When-
ever it had been sought to relieve persons who enter-
tained conscientious scruples, the Legislature had
felt it necessary to pass an act, knowing that judges
had not the power to relax the provision ; was not
that the strongest evidence that nothing but the
Legislature could do so ? Was it not, too, au ad-
mission that a man sitting in his position was
powerless in the matter if even ho had the inclina-
tion ? This rule of common law, which had existed
from the earliest period of English legal history,
had been maintained through a long vista of years
by legal writers, by men of splendid genius, and
he knew not of one amidst the bright catalogue who
ever expressed a single doubt as to what the law
was. He believed, indeed, that this was the first
time in any court that the argument had been raised
that a man who did not believe in God, who did not
believe in the obligation of an oath or in a future
state, was entitled by the lave of England to be ex-
amined in a court of justice. The learned gentleman
had had a singularly hard duty imposed upon him,
and had discharged it in a way which showed that
he (his Honour) sat there not to make law but to
declare the law. The question was very gravely
considered by sonic of the highest authorities in
the case of " Onaichund v. Barker." This and other
cases his Honour referred to, and said that in
the witnesses whose evidence had been accepted
the Deum Creatorem was a substratum of their
belief. It was asked of him that he should in prac-
tice oppose the eminent men who had so fully con-
sidered this question. He had no power—no right
to do so. He was not called upon to give any
opinion as to whet her he thought the law of England
was too lax or too strict, and even Bentham, who
had been referred to, had only gone to the extent of
saying that the law ought to be different, admitting
that it was as he (his Honour) had laid it down.
On what the law ought to be he would give no
opinion ; on what it was he had no doubt, and he
was not, on mere speculative opinion, to change a
fundamental rule. Upon this point he had no doubt
—that an avowed Atheist, by the law of England,
•annot be admitted. This witness had, unfortu-
nately, avowed her unbelief in a God, her unbelief
in human responsibility; he was consequently of
opinion that the judgment he give in that:case was
a sight judgment, and therefore he refused the ap-
plication to set aside the nonsuit.