The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1857-02-24

be a mistake. The Chief Justice either
used the word future" inadvertently, and
without, in his own mind, attaching any
force to it, or Atkins miscOnceivedh his mean
ing and yet this expression is referred to
by most of the English writer's who treat OF
evidence, and is the foundation of all the
error Oh this subject. Some fifty years af-
ter the case was reported by Atkins, the
opinion of Chief Justice Willes, drawn out
at length, in his own hand writing, was
found among his manuscripts, and is report
ed in WilIes. The words in this manu-
script are: Il am clearlySsof opinion, that
such infdels, Gf such there be- who either
do not believe in God, or if they do, do
not think that he will reward or punish
them in this uorId or an the merit, cannot be
Witnesses in any case, or under any circum-
stances, for this plain reason, because an
oath cannot possibly be any tie or obliga-
ton upon them" This proves either that
Atkins misapprehended the words of the
Chief Justice, or that upon reflection, he
thought proper to alter the expression, So
as to make it consistent with The decision.
The great case of Omichund V. Barker.
ut may well be called great" for it re-
licved the common law from an error, that
was reproach TO it, estabESles the rule to
be, that an imfidel is a competent witness,
provided he believes in the existence of
Supreme being, who Furnishes the wicked,
70 fbo nf
mcmt. The substance of the thing is, eccry
oath must hare a religious sanction. Such
being the common law in regard to intidels,
it follows, a t0rtiOri, that the same rule is
applicable to a witness, who is Christians;
and the fact, that this Christian believes
that the divine punishment will be inflicted
in this world and not in the world to come
is immatcral, and in 10 wise affects the
principle of the rule. 1t is mere difference
of opinion" as to the true teaching of the
gospel. This we find is the conclusion of
the Courts in most, if not ALL of the States
of the Union where the question has been
presented for adjudication. 10 Massachusetts,
Rep. III, , Gushing 104, Is Johnson %,
D Mason 10. AllDillna Dbl. SOuLn CafOllDa
Law journal 2O2, I3 Vermont 362.
1t was insisted, in the argument. that al
though this may have been the rule of the
common law, It is changed by our statute
ry provisions prescribing the forms of oaths,
CHI. 76, Rev. Code.
We think it manifest, by perusal of the
Statute, that it was not intended to alter
any rule of law, but the sole object was to
prescribe forms adapted to the religious be-
lief of the general mass Of the citizens, for
the sake of convenience and uniformity
Accordingly. the first section prescribes
form of oath as a general form, suited to
snch as hold the ordinary tencts of the
Christian religion; that is, an oath, laying
the hand upon 1.-The Holy Evangelists," &c.
The second section makes an exception in
favor of those Christians who have con-
scientious scruplcs against taking an oath
on the Holy Evangelists, and the form of
oath is framed in reference to their belief,
as to great day of judgment, when the
secrets of all hearts shall be known" The
third section makes an exception in favor
of those Christians who are Quakers, &c,
and the form is framed in reference to their
peculiar belief, 'swear not" This satisfies
the words of the Statute, and the argument
that it was also intended to change the law
by prohibiting aAy one from being sworn
except in one or other of the prescribed
forms, proves too much; for, it would ex-
clude both Jews and infdels, who believe
in God. We think it indecent to suppose
that the Legislature intended in an indirect
and covert manner to alter Il well settled
and unquestioned rule of law, and in de-
spite of the progress of the age to throw
the country back upon the illiberal and in
tolerant rule which was supposed to be the
law IN the time of bigotry ;for, it was every
! days practice to swear Jews upon the Old
Testament, and Omichund v. Barker had
settled the rule that infidels are to be sworn
according to the form which they hold to be
most sacred and obligatory on their con-
| sciences.
| If it be admitted, for the sake of the ar
! gument, that besides prescribing forms for
| general use, the Legislature had the pur-
pose of altering the common law, so as to
exclude Jews and infdels, who believe in a
| God. and christians, who do not believe in
future rewards and punishments, from the
privilege of taking the oaths which are re-
CURED, to enable them to testify as witness
SOS, or to take any office or place of trust
or profit in other words, to degrade and
prosecute them for "opinions sake" then it
is clear, that the statute, so far as this pur-
pose is involved. is void and of no effect,
because it is in direct contravention of the
10Th sec. of the Declaration of Rights /:
That all men have a natural and unaliena-
bic right to worship Almighty God accord
ing the dictates of their own consciences.' -
We go farther, and express the opinion,
that if Omichund v. Barker had not reliev-
ed the common law from the reproach of
holding Jews and infdels. who believe in a
God, unfit to take an oath, treating them as