Atwood v. Welton

7 Conn. 66

• Court: Supreme Court of Connecticut
• Decided: June 15, 1828
• Status: Published

Opinions

Daggett, J.

It is very clear, that a witness, on his cross-examination, may be questioned as to his being in a controversy with the party against whom he testifies, and w hether he has not threatened to be revenged on him. If he should answer affirmatively, it would show a bias on his mind, which ought to be weighed by the jury, in considering his testimony. To such a witness as full belief will not be readily yielded as to one who feels no such hostility. If the witness should answer in the negative, it is equally clear, he may be contradicted by other proof. A witness may always be asked any question relative to the issue, for the purpose of contradicting him, if his answer be one way, by other witnesses, in order to discredit his whole testimony “ Falsus in uno,falsus in omnibus,” has become a familiar maxim. Such has been the invariable rule in our country ; and such is the rule of the common law. In upwards of forty years practice, 1 have not known it to be doubted. It is true, a witness may not be interrogated as to any collateral independent fact. This would be to try as many issues as a party might choose to introduce, and which the other party might not be prepared to meet. Spencely quitam, v. De Willott, 7 East 108. The question whether the defendant had a controversy with thé witness, and had threatened to be revenged, surely was relevant to the issue ; for it tended to prove such a state of mind towards the defendant, as might well be submitted to the jury to discredit his testimony as to material facts. There is hardly a point about which there can be less doubt. Swift’s Ev. 148. 16 Mass. Rep. 185. 17 Mass. Rep. 160 2 Camp. Rep. 630. 1 Stark. Ev. 135. “ In such a case, (says the learned Commentator,) the enquiry is not collateral, but most important to show the motives and temper of the witness in the particular transaction.”

It is also insisted, by the defendant, that the court should have told the jury, that the proof of the witness’ unbelief in a future state of rewards and punishments, might impeach his testimony ; for that a person of this religious opinion might not feel the same obligation to speak the truth as if he believed in the denunciations against “ perjured persons ” This point might deserve much attention, were it necessary to decide it; for such is the decision in Hunscom v. Hunscom, 15 Mass. Rep. 184. so far as the brief report of that case may be considered as bearing on this case : — so too are the decisions cited from 2 Cowen 432 572. But in the view which I take of the condition of this witness, he should not have been admitted. This supersedes the necessity of an enquiry as to the credit, to which his testimony was entitled

The question is not, whether a person who believes in any future punishment, though not endless, may be admitted as a witness ; — but, whether a person who denies all punishment after this life, and who, in the language of the motion, believes that men will be punished in this life for their sins, but immediately after their death, be made happy, be a competent witness.

Nor is it necessary to ask or to answer, whether an oath shall be refused to any one, on the ground of his religious opinions. No objection is or can be made, in many such cases; nor are the rights of any individua] particularly affected. Of this description are the oaths administered to electors under our constitution, oaths to support that constitution and the constitution of the United States, and oaths taken by judges, magistrates, «Sic. of all grades. But the question is, if a person denying all future accountability, is offered as a witness in a court of justice, in a case where life, liberty, property or reputation are to be affected, by bis testimony, he may not be objected to, by the party against whom he is about to testify ; and whether, in such case, he is a competent witness ?

Nor has the statute in this state relative to the people called Quakers, who decline to take the oath by reason of scruples of conscience, and for whom a substitute is provided, by affirmation, under the pains and penalties of perjury, any bearing on this question. This is a legislative enactment in alteration of the common law, which courts are bound to obey, and without which enactment, they could not dispense with the common law oath. Besides, the pains and penalties of perjury comprised in the oath, are not limited to the statute punishment, but extend, it is believed, to the future punishment denounced against false witnesses. It is doubted whether the legislature would consent to amend'that oath, by adding this qualification next after the words “ pains and penalties of perjury” — “ to be inflicted in this life only.”

It is also true, that no declaration can be received in a court of justice without oath. The casuistical position, that an oath does not increase the obligation to speak the truth, is not yet a maxim of the common law. A man of the most exalted virtue, though judges and jurors might place the most entire confidence in his declarations, cannot be heard in a court of justice, without oath. This is a universal rule of the common law, sanctioned by the wisdom of ages, and obligatory upon every court of justice, whose proceedings are according to the course of the common law. One credible witness is required to establish any fact. 3 Bla. Com. 370.

« Where,” said the greatest and best of men, “ is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion.” Wash. Farewell Address.

Let us now examine the oath, which a witness must take, before he can be heard in a court of justice. This oath is an appeal to God, by the witness, for the truth of what he declares, and an imprecation of divine vengeance upon him, if his testimony shall be false. All law writers agree substantially in this definition, from the earliest to the latest. 1 Phil. Ev. 18. and cases there cited. The witness must believe in the existence of God ; for it would be absurd to hear an appeal made to a being whose existence is denied. I am not aware of any doubt on this point. Many of the ablest commentators carry the principle much farther. Thus, Lord Coke says, generally, that an infidel cannot be a witness ; (4 Co. Rep. 6. b.) and under this he included Jetos, as well as heathen. 2 Inst. 506. 3 Inst. 165. Mr. Sergeant Hawkins thought it a sufficient objection to a witness, that he believed neither the old nor the new testament. Hawk. Pl. C. b. 2.—c. 48. sect. 148. Lord Hale denied this rigid rule ; (2 Hal. Pl. C. 279.) and it is now exploded.

The doctrine, as now established, in this country and in England, is, that if a person believes in a God, the avenger of falsehood, and in a future state of rewards and punishments, he may be a witness, and not otherwise. In the case of The King v. Taylor, Peake's Rep. 11. a witness was called for the prosecution. The counsel for the defendant asked him, if he believed in Jesus Christ. This question was objected to; and Butler, J. overruled it, saying, it should not be put. He was then asked, if he believed in the holy gospels of God. Butter, J. said, that was not the proper question ; and asked him, if he believed in God, the obligation of an oath, and a future state of rewards and punishments; and on his answering in the affirmative, he was admitted.

I am aware, that this question may not now be put to a witness, but the course is to enquire of other witnesses as to his belief on those points, and to decide the question of admissibility on such proof. This is manifestly proper; because a man ought not to be questioned respecting his religious opinions, as the enquiry may subject him to reproach, if he should confess his infidelity; and moreover, it would seem absurd to enquire of him under oath, whether he does not entertain such opinions as would show that he was unfit to be sworn. If, on enquiry of witnesses, it is satisfactorily proved, that the person does not believe in a future state of rewards and punishments, there is not that tie upon his conscience, and of course, that sanction, ¾⅛ ]aw requires; and therefore, he ought not to be sworn.

This is the rule of the common law ; and there is no adjudged case, nor hardly a dictum in the English books, against it. In Jackson d Tuttle v. Gridley, 18 Johns. Rep 98. Curtiss v. Strong, 4 Day 51. Swift’s Ev. 48. 1 Swift’s Dig. 739. this doctrine is laid down, and the reasoning is very satisfactory. In 3 Bla. Com. 389. the editor, Mr. Christian, remarks in a note, that he has known a witness rejected and hissed out of court, who said, that he doubted the existence of a God and a future state. Mr Justice Story, in a case which occurred before him and the District Judge in Rhode-Island, in November, 1827, gave the following opinion : “ We think these persons are not competent witnesses. Persons who do not ber lieve in the existence of God, or a future state, or who have no religious belief, are not to be sworn as witnesses. The administration of an oath supposes, that a moral and religious accountability is felt to a Supreme Being; and this is the sanction which the law requires upon the conscience, before it admits him to testify.” One of those witnesses did not believe in the existence of a God ; — the other did not believe in a state of future rewards and punishments here or hereafter, — indeed did not seem to have any settled religious belief. Both were rejected. The opinion of this learned judge expressly excludes a witness, who denies the existence of God, who denies a future state, or has no religious belief. Can it be seriously contended, that a person who believes he shall be made immediately happy after death, without any regard to his conduct in this life, would feel any stronger obligation to speak the truth, than one who disbelieves in a future state ?

But the decision in Connecticut, Curtiss v. Strong, 4 Day 51. must be the guide to this Court. That case was elaborately discussed ; — it was decided by the unanimous opinion of the nine judges of the Supreme Court of Errors within the last twenty years ; and the decision has been acquiesced in. No murmurs have been heard respecting it. The reasons should be cogent to compel a departure from such a decision.

Nor am I satisfied, that there is any principle, or precedent of high authority, opposed to it Two of the judges of the circuit court in New-York, at Nisi Prius, held, that persons of this description might testify. 2 Cowen 432. 572. We are told, by the reporter, there are many persons in those counties where these decisions were had, who deny all future punishment. Why this is mentioned, it is not easy to per-cieve, unless to suggest a reason for a departure from the rule of the common law, in obedience to public opinion. On these decisions I remark, that they are directly opposed to that of the Supreme Court of the state of New-York, in Jackson d. Tuttle v. Gridley, 18 Johns. Rep. 98. The court there say, with much force : “ Religion is a subject on which every man has a right to think according to the dictates of his understanding. It is a solemn concern between his conscience and his God, with which no human tribunal has a right to intermeddle. But in the developement of facts, and the ascertainment of truth, human tribunals have a right to interfere. They are bound to see, that no man’s rights are impaired or taken away, but through the medium of testimony entitled to belief; and no testimony is entitled-to credit, unless delivered under the solemnity of an oath, which comes home to the conscience of the witness, and will create a tie arising from his belief that false swearing would expose him to punishment in the life to come. On this great principle rest all our institutions, and especially the distribution of justice between man and man.” In this opinion I entirely concur.

The judges above mentioned at the circuit, in commenting on this case, say, that the opinion was obiter ; that the witness rejected did not believe in the existence of a God, or a future state, and therefore was incompetent according to all the decisions. It is true, there was this farther objection to his testimony ; but still, the court, in giving its opinion, expressly decides on his disbelief in future punishment, and declares it to be a disqualification, quoting, with high approbation, the decision of Curtiss v Strong, 4 Day 51.

It is also said, that this decision rests, for much of its support, on the case of Omychund v. Barker, reported in Wittes 549. and 1 Atk. 45. ; and that the report of the case by Atkyns is incorrect, and that by Wittes gives the true state of the case. To this I would observe, that Atkyns furnished the case from the judges themselves, and when the decision was pronounced. With his accuracy as a reporter, it is not credible, that he should have omitted what is now deemed important in the opinion of Wittes. On the other hand, Wittes’ Reports were not published in more than half a century after the decision ; and the manuscript was furnished by his grandson. But the p0jnt jn decision, in that case, was not, whether the disbelief in future punishment disqualified the witness. It was, whether depositions of certain Gentoos, sworn according to their religion, should be admitted, in relation to transactions, which took place in their country, between a native thereof and the defendant, an Englishman. All the judges, in giving their opinion, lay stress upon that fact; and there was no proof as to the point of the belief or unbelief of the deponents in future punishment.

There was a consideration presented by the counsel for the plaintiff, which, by their ingenuity, was rendered plausible ; and therefore, is deserving of attention. It was urged, that there are certain religionists, denominated Antinomians, who hold that the Gospel releases Christians from all the obligations of morality, and in close connection with this doctrine is that of the faith of assurance, absolute election, and the final perseverance of the saints. And it is hence said, that if a person is f ully assured of his own election to eternal life, and of hisjper-severing in that state, he can have no fear of future accountability or punishment, and therefore will not feel the obligation arising therefrom, in his testimony. This is not the place for considering that subject. I will, however, say, that if it should be proved respecting any person offered as a witness, that he believed his own happiness secure at death, regardless of his conduct in this life, he ought not to be sworn ; nor would it be any recommendation of him as a witness, that he entertained this opinion of himself and his own sect only. He should be excluded as not feeling the obligation of an oath.

It is urged again, that courts have no right to interfere with religions opinions. It is said, faith is a matter between men and their God, and ought not to be examined by courts or the legislature. But it is declared, by the judges in England, that Christianity is a part of the common law of the land. Our ancestors brought it with them to this state, and there is no statute abrogating it. Nay, our statute (p. 164.) punishes, by fine, imprisonment, and binding to good behaviour, persons guilty of blasphemy against God, either person of the Trinity, the Christian religion, or the holy scriptures ; and in p. 165. profane swearing, and in p. 385. violations of the Sabbath, are punished by fine Our constitution declares it to be the duty of all men to worship the Supreme Being according to the die-tates of their consciences. These provisions do not look like annulling Christianity. The law does not, indeed, prescribe _ any rules of faith, nor mode of worship, nor attempt to enforce practical piety: — it simply recognizes the great doctrines of Christianity, and preserves them from the open assaults of their enemies. This is all a legislature or court can rightfully do. But it is not easy to see how there is any interference with religious faith, in deciding a person professing certain opinions to be unfit to be sworn. What if a man should claim the right of making his simple declaration, and that it should be received without oath, because his conscience told him that an oath did not add to the obligation to speak the truth ; shall such a declaration be received to affect important rights ? What if a witness should declare, that there was no God ; — that he believed in no God, and worshipped none ; — shall he be permitted to appeal to God, and imprecate his vengence if he speak falsely ? This would be the first-born of absurdities 1 — Yet belief in God lies at the foundation of all true religion. Hence, the court may, as it is universally conceded, ascertain the religious belief of a witness. And surely it must be done, by en-quiring into the religious faith.

It has been said, however, that this decision in excluding the witness, is a violation of the constitution of the state. I presume this argument rests on the 3rd and 4th sections of the declaration of rights. The 3rd section is : “ The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in this state.” The 4th section is: “ No preference shall be given by law to any Christian sect or mode of worship.” It is less difficult to see, that neither of these sections can have any possible bearing on the point in judgment, than it is to answer such mere vagaries of the imagination. The plain meaning of these provisions, is, to secure an entire freedom in religious profession and worship, and an entire exclusion by law of any preference to any sect or mode of worship. No man shall be prohibited from professing what religion he pleases, or worshipping in any manner he pleases ; nor shall there be any religious establishment, or approximation towards it, by any law giving any preference to any sect or mode of worship. We know, that it had been insisted by many, that formerly our laws conferred certain privileges on the located societies, and thus gave a preference to certain Christian sects bevond what was conceded to other denominations of Christians. It cannot be material to enquire whether such preference teas given, or not. The constitution designed to remove every possibility of legislative interference in future.

But cannot a person be free in his profession and worship, who is excluded from giving testimony, on the ground of his denial of all liability to future punishment '! How does his exclusion affect his belief, profession or mode of worship 1 It has no possible bearing on either.

But his rights are infringed, or he is disturbed in the exercise and enjoyment of them What right ? Doubtless the right of giving testimony. This is a new right, privilege or franchise, unknown, and therefore, undefined, and I may add, unheard of before, by any lawyer or judge. Suppose an elector of Connecticut was to appear in a court, and claim the privilege of testifying in a cause on trial. Neither the plaintiff nor the defendant has called him as a witness, or desires his testimony. He persists, however, in the exercise of what he calls his franchise, until the court, in the exercise of its discretion, is obliged to commit him for contempt, for thus disturbing the rights of the court and of the parties.

The party may be injured, by the improper rejection of a witness, on the ground of his principles ; so he may in a thousand other instances ; but it is incomprehensible how the proposed witness can be, in any way, affected. If a court should reject a witness, because he was not six feet high, (if such a supposition may be made) it might deprive a party of important testimony, and thus injure him ; but it could not affect the witness.

Moreover, if the witness who denies all future punishment, cannot be excluded, without a violation of the constitution, neither can the Atheist. His language maybe — “1 deny the existence of Cod, — the immortality of the soul, — and insist, that men die like brutes. This is my religious profession.” I have before shewn, that it would be the height of absurdity for the court to permit such a person to appeal to God for the truth of what he asserts. Yet how can he be excluded, if this objection is to prevail ?

It may be added, that this objection arising out of the constitution, was not suggested, by the able and ingenious counsel, who argued the cause before this Court. It may be presumed, therefore, to have had no weight, in their opinion.

There is an opinion, said to be sanctioned by gubernatorial authority, that “ Connecticut is an asylum for all sorts of consciences.” Without saying that such an opinion is better suited to a festive occasion ad captandum vulgus, than to cherish elevated sentiments of religion, law, or government, I would say, if thereby it is meant, that all sorts of consciences are here tolerated, it is doubtless true ; but if it be farther intended, that witnesses with all sorts of consciences are equally entitled to credit, it is denied. There are, at least, two sorts of consciences, somewhat variant in their properties. There is “ a conscience void of offence towards God and towards man and there is a conscience “ seared as with an hot iron.” The latter should not seek an exclusive asylum ; the former should also be tolerated. Shall we be compelled to give equal credit to the man who denies future accountability and punishment, with the man who believes them ?

I come then, necessarily, to the result, that as an oath is an indispensable means of ascertaining truth in a court of justice, so the oath necessarily implies the existence of a God, and a. belief in a future state, and a punishment, of some duration, in that future state; and that a witness who has no belief in these truths, is not a competent witness.

A new trial, therefore, must be granted.

Hosmer, Ch. J. and Lanman, J., were of the same opinion.