It was said by Willes, C. J., that he was clearly of opinion that those infidels (if any such there be) who either do not believe in a God, or if they do, do not think that he will either reward or punish them in this world or the next, cannot be witnesses in any case, nor under any circumstances, for this plain reason, that an oath cannot possibly be any tie or obligation upon them. Omichund v. Barker, Willes, 538, 1 Atk. 21. A witness was rejected on this ground by Grose, J., at the Bedford Spring Assizes, 1789, on an indictment for murder. Anon., 1 Leach, 241 (n).

An adult witness will, of course, be presumed to profess those principles of religion which render him a competent witness.

What the exact question is which is the subject of inquiry in such a case does not appear to be fully decided. The witness must believe in the existence of a Divine Power, who would be offended by perjury, and would be capable of punishing it. The doubt has been whether it is also necessary that the witness should believe in a future state of rewards and punishments; from the case of Omichund v. Barker, it seems that Willes, C. J., thought that the expectation of temporal punishment proceeding from a Divine Power was sufficient.

There has also been some dispute as to the mode in which the state of the witness's belief is to be ascertained. The preponderance of authority is in favor of the witness being himself examined as to his religious opinion. 1 Phill. Ev. 17, 10th ed.; The Queen's case, 2 B. & B. 284, 6 E. C. L.; R. v. Taylor, 1 Peake, N. P. 11; R. v. White, 1 Lea, 430; R. v. Serva, infra; Best, Ev. 208. It is, however, the opinion of some writers (and this opinion is supported by the practice in America), that the witness ought not to be questioned at all, but that the fact should be proved by the oath of persons acquainted with him. Mr. Best (ubi supra) strongly contends that evidence both of the party himself and others is admissible on the point.

The inquiry can never be carried further, if the witness himself asserts his belief. Thus in R. v. Serva, 2 C. & K. 53, 61 E. C. L., a negro, who was called as a witness, stated, before he was sworn, that he was a Christian, and had been baptized; Platt, B., held that he might be sworn, and that no further question could be asked before he

was so.

In R. v. James, 6 Cox, C. C. 5, after the jury had delivered their verdict, it was discovered that one of the witnesses had not been sworn; the jury were then directed to reconsider their verdict, and to leave out of their consideration the evidence given by the unsworn witness.

It is not yet settled by the Scotch law, whether a witness professing his disbelief in a God, and in a future state of rewards and punishments is admissible. "When the point shall arrive," says Mr. Alison, "it is well worthy of consideration, whether there is any rational ground for such an exception;-whether the risk of allowing unwilling witnesses to disqualify themselves by the simple expedient of alleging that they are atheists, is not greater than that of admitting

the testimony of such as make this profession." 2 Alison, Prac. Cr. L. *Scotl. 438. The policy of the rule has also been questioned by English text writers. Best, Ev. 212.

[*121

Form of the oath. The particular form or ceremony of administering an oath is quite distinct from the substance of the oath itself. 1 Phill. Ev. 14, 10th ed. The form of oath under which God is invoked as a witness, or as an avenger of perjury, is to be accommodated to the religious persuasion which the swearer entertains of God; it being vain to compel a man to swear by a God in whom he does not believe and whom he therefore does not reverence. Puffend. b. 4, c. 2, s. 4. The rule of our law therefore is, that witnesses may be sworn according to the peculiar ceremonies of their own religion, or in such a manner as they may consider binding on their consciences.1 1 Phill. Ev. 14, 10th ed. Per Alderson, B., in Miller v. Salomons, 7 Ex. R. 534, 535; and per Pollock, C. B., Id. 558. A Jew consequently is sworn upon the Pentateuch, with his head covered. 2 Hale, P. C. 279; Omichund v. Barker, Willes, 538. But a Jew who stated that he professed Christianity, but had never been baptized, nor even formally renounced the Jewish faith, was allowed to be sworn on the New Testament. R. v. Gilham, 1 Esp. 285. A witness who stated that he believed both the Old and New Testament to be the word of God, yet as the latter prohibited, and the former countenanced swearing, he wished to be sworn on the former, was permitted to be sworn. Edmonds v. Rowe, Ry. & Moo. N. P. C. 77. So where a witness refused to be sworn in the usual form, by laying his right hand on the book, and afterwards kissing it, but desired to be sworn by having the book laid open before him, and holding up his right hand; he was sworn accordingly. Colt v. Dutton, 2 Sid. 6; Willes, 553. And where on a trial for high treason, one of the witnesses refused to be sworn in the usual manner, but put his hands to his buttons; and in reply to a question, whether he was sworn, stated that he was sworn and was under oath; it was held sufficient. R. v. Love, 5 How. St. Tr. 113. A Scotch witness has been allowed to be sworn by holding up the hand without touching the book, or kissing it, and the form of the oath administered was, "You swear according to the custom of your country, and of the religion you profess, that the evidence, etc., etc." R. v. Mildrone, Leach, 412; Mee v. Reid, Peake, N. P. C. 23. Lord George Gordon, before he turned Jew, was sworn in the same manner, upon exhibiting articles of the peace in the King's Bench. MS. M'Nall on Ev. 97. In Ireland it is the practice to swear Roman Catholic witnesses upon a Testament with a crucifix or cross upon it. Id. The following is also given as the form of a Scotch Covenanter's oath: "I, A. B., do swear by God

1 That form of oath is to be used which the witness holds obligatory. Curtiss v. Strong, 4 Day's Con. Rep. 51. A Chinaman who stated that he did not know the name of the book he was sworn on, but that he believed that if he should state anything untrue the court would punish, and that after his death, he would "go down there," making an emphatic gesture downward with his hand, held to be a competent witThe Memmic, 1 Bened. D. C. 490. S.

ness.

Himself, as I shall answer to Him at the great day of judgment, that the evidence I shall give to the court and jury, touching the matter in question, is the truth, the whole truth, and nothing but the truth, So help me God." 1 Leach, 412 (n); R. v. Walker, O. B. 1788; Id. A Mahomedan is sworn on the Koran. The form in R. v. Morgan, 1 Leach, 54, was as follows:-The witness first placed his right hand flat upon the book, put the other hand to his forehead, and brought the top of his forehead down to the book, and touched it with his head. He then looked for some time upon it, and being asked what effect that ceremony was to produce, he answered that he was bound by it to speak the truth. The deposition of a Gentoo has been received, who touched with his hand the foot of a Brahmin. *Omichund v. Barker, Willes, 538; 1 Atk. 21. The following is

*122] given in a recent case as the form of swearing a Chinese. On entering the box the witness immediately knelt down, and a china saucer having been placed in his hand, he struck it against the brass rail in front of the box and broke it. The crier of the court then, by direction of the interpreter, administered the oath in these words, which was translated by the interpreter into the Chinese language, "You shall tell the truth and the whole truth; the saucer is cracked, and if you do not tell the truth, your soul will be cracked like the saucer." R. v. Entrehman, Carr. & M. 248, 41 E. C. L.

The 1 & 2 Vict. c. 105, s. 1, U. K., enacts that "in all cases in which an oath may lawfully be and shall have been administered to any person either as a juryman or a witness, or a deponent in any proceeding, civil or criminal, in any court of law or equity in the United Kingdom, or on appointment to any office or employment, or on any occasion whatever, such person is bound by the oath administered, provided the same shall have been administered in such form and with such ceremonies as such person may declare to be binding; and every such person, in case of wilful false swearing, may be convicted of the crime of perjury in the same manner as if the oath had been administered in the form and with the ceremonies most commonly adopted."

A witness may be asked, whether he considers the form of administering the oath to be such as will be binding on his conscience. The most correct and proper time for asking a witness this question is before the oath is administered; but as it may happen that the oath may be administered in the usual form, by the officer, before the attention of the court, or party, or counsel is directed to it, the party is not to be precluded; but the witness may, nevertheless, be afterwards asked whether he considers the oath he has taken as binding upon his conscience. If he answers in the affirmative he cannot then be further asked, whether there be any other mode of swearing more binding upon his conscience. The Queen's case, 2 Br. & B. 284, 6 E. C. L. So where a person, who was of the Jewish persuasion at the time of trial, and an attendant on the synagogue, was sworn on the Gospels as a Christian, the court refused a new trial on this ground; being of opinion that the oath as taken was binding on the witness, both as a

religious and moral obligation; and Richardson, J., added, that if the witness had sworn falsely, he would be subject to the penalties of perjury. Sells v. Hoare, 3 Br. & B. 232, 7 E. C. L.; 7 B. Moore, 36.

Affirmation in lieu of oath. Formerly it was necessary in all cases that an oath, that is a direct appeal to the Divine Power, should be made by the witness. Many conscientious persons have objected to this, and various sects have been established, part of whose religious creed it is to do so. In order to prevent the difficulty which arose from large classes of the community being thus rendered unavailable as witnesses, various statutes have from time to time been passed exempting such persons from the necessity of taking the usual form of oath, and allowing them to substitute a solemn affirmation in its stead. Thus, by the 9 Geo. 4, c. 32, s. 1, U. K., "every Quaker or Moravian who shall be required to give evidence in any case whatsoever, criminal or civil, shall, instead of taking an oath in the usual form, be permitted to make his or her solemn affirmation or declaration, in the words following:-'I, A. B., being one of the people *called Quakers [or one of the persuasion of the people called

Quakers, or of the united brethren called Moravians, as the [*123 case may be], do solemnly, sincerely, and truly declare and affirm?' which said affirmation or declaration shall be of the same force and effect in all courts of justice and other places, where by law an oath is required, as if such Quaker or Moravian had taken an oath in the usual form; and if any person making such declaration or affirmation. shall be convicted of having wilfully, falsely, and corruptly affirmed or declared, any matter or thing, which if the same had been sworn in the usual form, would have amounted to wilful and corrupt perjury, every such offender shall be subject to the same pains, penalties, and forfeitures, to which persons convicted of wilful and corrupt perjury are or shall be subject."1

By the 3 & 4 Will. 4, c. 49, U. K., Quakers and Moravians are permitted to take an affirmation or declaration, instead of taking an oath, "in all places, and for all purposes whatsoever, where an oath is or shall be required, either by the common law, or by any Act of Parliament;" and any such affirmation or declaration, if false, is punishable as perjury.

Where a prosecutor, who had been a Quaker, but had seceded from the sect, and called himself an evangelical friend, stated that he could not affirm according to the form, either in the 9 Geo. 4, c. 32, or in the 3 & 4 Will. 4, c. 49, and he was allowed to give evidence under general form of affirmation; the judges were unanimously of opinion that his evidence was improperly received. R. v. Doran, 2 Lew. C. C. 27; 2 Moo. C. C. 37.

a

This case led to the passing of the 1 & 2 Vict. c. 77, U. K., which enacts that any person who shall have been a Quaker or a Moravian may make solemn affirmation and declaration, in lieu of taking an

1 A witness who has no objections to be sworn may not be affirmed. Williamson v. Carrol, 1 Harrison, 271. S.

1

oath, as fully as it would be lawful for any such person to do if he still remained a member of either of such religious denominations of Christians, which said affirmation or declaration shall be of the same force and effect as if he or she had taken an oath in the usual form; and such affirmation or declaration, if false, is punishable as perjury. Every such affirmation or declaration is to be in the words following: —“I, A. B., having been one of the people called Quakers [or one of the persuasion of the people called Quakers, or of the united brethren called Moravians, us the case may be], and entertaining conscientious objections to the taking of an oath, do solemnly, sincerely, and truly declare and affirm."

By the 3 & 4 Will. 4, c. 82, U. K., the class or sect of dissenters called Separatists, when required upon any lawful occasion to take an oath, in any case where by law an oath is or may be required, are also allowed to make an affirmation or declaration instead, in the words following:-"I, A. B., do, in the presence of Almighty God, solemnly, sincerely, and truly affirm and declare, that I am a member of the religious sect called Separatists, and that the taking of an oath is contrary to my religious belief, as well as essentially opposed to the tenets of that sect; and I do also in the same solemn manner affirm and declare," etc.

But besides the persons comprised within these sects, other persons called as witnesses not infrequently refused to be sworn from what they asserted to be conscientious motives, it is, therefore, provided by the 24 & 25 Vict. c. 66, s. 1, that if any person called as a witness in any court of criminal jurisdiction in England or Ireland, or required, *or desiring to make an affidavit or deposition in any criminal

*124] proceeding, shall refuse or be unwilling from alleged conscien

tious motives to be sworn, it shall be lawful for the court or judge, or other presiding officer or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following:-"I, A. B., do solemnly, sincerely, and truly affirm and declare that the taking of any oath is according to my religious belief unlawful, and I do also solemnly, sincerely, and truly affirm and declare," etc. Which solemn affirmation and declaration shall be of the same force and effect as if such person had taken an oath in the usual form. By s. 2, "if any person making such solemn affirmation or declaration shall wilfully, falsely, and corruptly affirm or declare any matter or thing which, if the same had been sworn in the usual form, would have amounted to wilful and corrupt perjury, every such person so offending shall incur the same penalties as by the laws and statutes of this kingdom are or may be enacted or provided against persons convicted of wilful and corrupt perjury." Finally, it is enacted by the 32 & 33 Vict. c. 68, s. 4, that, "if any person called to give evidence in any court of justice, whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incompetent to take an oath, such person shall, if the presiding judge is satisfied that the taking of an