Section 347

iu their turn were excluded by Christians ft)r the same cause. Such was the common law, as drawn from it.s purest fountains — from Fleta and Bracton. Coke, its greatest expounder, excludes them as unworthy ofci edit; for, says he, they aic perpetual enemies — 'as between them, as with the devils, whose subjects they are, and Christians, there ia perpetual hostility, and can be no peace; for, as the apostle said, "And what concord hath Christ with Belial, or what part hath he that believeth with an infidel." ' It was not until the East India Com- pany commenced that splendid career of conquest by which they acquired dominion over millions of subjects, and it was" seen that an urgent necessity required the tes- timony of the natives, that the court, overruling the well- established law of ages, threw Bracton and Fleta over- board, because they were papists, and because in their day 'little trade was carried on but the trade in leligion ;' and in the suit of Omichund, the great Hindu banker, whose melancholy fate reflects little credit (m British faith, against Baker, by an act of judge-made law, decided that all infldels, without reference to their religion, might be received and sworn, according to the cust(7ms of their respective countries ; not because such was the law, but; because to exclude them would be a 'most impolitic no- tion, and would tend at once to destroy all trade and coinmerce.' Even judicial optics, with dim and beclouded vision, saw that if the whole population of a country were exclucled as infldels, ])roof might be deficient; but as it was thought to be to ' the advantage of the nation to carry on trade and commerce in foreign countries, and in many countries inhabited by heathens,' it was judged advisable to tramjile the law under foot. A judicial caveat, how- ever, was at the same time entered against giving the same credit, either 'by court or jury, to an infidel witness as to a Christian ;' provided only the wrath of God be im- precated, whether Vishnu or Fo, or any other of the in- numerable gods of heathenism. But in none of them does the Christian repose faith. The witness imprecat- ing the vengeance of false gods, of gods who will not an- swer, what is the belief of the Christian ? That tlie true God will as much hear and punish in consequence of the use of this ceremony, and for its violation, as if the adju- ration had been in his name. If so, then are the magic virtues of the oath more enhanced, being compulsory upon the Deity, even when his name is not invoked? If not, then why swear the \\itness iu the name of false gods? Why give a judicial sanction to superstition and idolatry by invoking false gods? why not rather let testi- mony be delivered under the pains and penalties of per- jury, and let that suffice? Yet, by the common law, the swearer by broken cups and saucers, or he who thinks truths obligatory only when he has held the tail of the sacred cow, was heard wleo the oath was administered; while the intelligent and pious Quaker, who, in the sim- plicity of his heart, was so heretical as t-^ believe that the command, 'Swear not at all,' meant what its obvious lan- guage imports, was excluded, because he believed the divinity of the command he was anxious to obey. He was thus left without protection to his person or proper- ty, unless he should be able to find a witness outside the pale of his sect by whom his legal rights could be estab- lished. But by that patchwork'legislation so eminently distinguishing all law reform, an act was passed, and the law so amended that a Quaker, when property was en- dangered, was admitted to testify— but in cases of prop- erty alone, his testimony not being admissible in criminal cases. In this country, however, the legislature has re- moved the disqualification entirely; the"!ibsurdity is that it should ever have existed. These limited reforms do not afford a complete remedy for the evil. The incorrect- ness of religious belief is not the ground of exclusion ; for, if so, one would think Hinduism sufficiently erro- neous for that purpose. The theological jurist views with more complacency the worst forms of paganism than a questionable variety of Christianity or entire un- belief. The only required qualiflcaticui, in his view, is belief in future punishment, of which, in some aspect, there must be a recognition. If, believing the general doc- trines of Christianity, the person sworn is so unfortunate as to believe that the cares and sorrows and misfortunes of this life are a sufficient punishment for transgressions here committed, and that God, in his infinite goodness and mercy, will hereafter receive all into a state of happi- ness, the common law excludes his testimony. The judi- cial dabbler in theology in this country has generally fol- lowed the lead of transatlantic jurisprudence. But wheth- er the Universalist be a witness or not, all authorities agree that he who disbelieves in the existence of God, who, in the darkness of his beclouded reason, sees no God in the earth, teeming with its various and innumerable forms of animal or vegetable life, sees him not in the starry firmament — nor yet in the existence of man, the most wonderful of his works— is excluded. Atheism is always rare, yet we have, three times in one country, known the attempt made to exclude for that cause. The general bad character of the witness for truth and verac- ity affords no eronnd for exclusion, however much it may be for disbelief in testimony; but eveii if it did, it would not have been established in those cases. Erroneous be- lief was the only reason urged. The error of such belief,