lent and indifferent to a sense of their danger as well as of their duty. They convince us not only that it is an act of piety and benevolence to instruct the people, but it is one of self-defence and self-preservation. The question is not whether the poor shall be taught or not, but whether they shall be taught what is right or what is wrong-whether they shall be trained up in attachment to religion and the laws, or in hostility or indifference to both. And if only as much vigour and alacrity be displayed in behalf of these substantial blessings, as our adversaries are wont to employ in decrying them, the issue of the contest cannot be doubtful. A few discordant voices will continue to be raised, reviling our system of instruction and loading the patrons of it with abusive epithets; but they will become every day more feeble, till at length they will cease of their own accord, weary of exerting impotent efforts, which are no longer noticed because they can be no longer mischievous.

ART. VI.

A short Inquiry as to the Competency of Witnesses with reference to their Religious Opinions. By Sir William Smith, Bart. LL.D. F. R. S. and M. R. I. A. Third Baron of the Exchequer in Ireland. London, Cadell and Davis. 1811. An Attempt to shew that Witnesses under Cross-examination ought not to be required to bear testimony to their own Disgrace. By

the same.

Some Observations on that part of the Law of Evidence which relates to the Proof of Deeds. By the same. Archer, Dublin.

A

TRACT by a judge is somewhat of a novelty. Whether it be that the public functions of these eminent persons leave them but little leisure for abstract disquisitions, or that at the time of life at which they ascend the bench, there commonly remains no great activity of research or facility of composition, or whether, finally, it may not have been held indecorous in those who are to dispense the law, to commit, and, as it were, manacle themselves by the publication of any particular opinions,-whatever, we say, be the cause, it is observable that, in modern times, no science has been less indebted to the literary exertions of its superior professors than the law. This, upon the whole, we see no great reason to regret: the two former of the causes to which this effect is attributable, we may, though on other accounts, lament; the latter we apprehend to be, not only a sufficient excuse, but a complete defence, and (we may add) an imperative motive for the reserve of the judges.

VOL. VI. NO. XII.

56

Sir Richard Steele is reported to have published his Christian Hero' with the avowed purpose of obliging himself to lead a religious life; and Doctor Johnson suggests, that the author of The Whole Duty of Man' may have concealed his name, lest by any scandal of his life he should diminish the efficacy of his work. Human nature is as weak and fallible in the judge as in the moralist or divine; and his character is, at least, of as much public importance as theirs. He, therefore, does wisely, to profit by these examples, and either to refrain from publishing legal opinions lest he should feel himself obliged to abide implicitly by his book, or to conceal his name, lest his practice should interfere with his doctrine. We, therefore, read the title-pages of these tracts with a strong disposition to doubt (whatever might be their intrinsic merit) of the expediency or prudence of their publication.

This doubt the perusal has strengthened by a most apposite illustration; for though the learned judge treats his subjects in general, with great candour and moderation, and professes his anxiety 'stare decisis,' and to abide by authorities; yet we cannot conceal from ourselves, that some of the positions here laid down, if quoted to him and his brethren on the bench of the Exchequer, or to him sitting alone at Nisi Prius, might, in particular circumstances, occasion a considerable degree of inconvenience; and we more than suspect that a verdict given, under his direction, on any of these subjects, would run some risk of being set aside on appeal, to the disparagement of the judge, and the delay and, possibly, the eventual denial of justice.

We shall now endeavour to state the particular doctrines which Mr. Baron Smith endeavours to maintain :-1. The object of the first tract is, we believe, altogether new, and seems interesting as a point, not only of law, but of morals and religion; namely, whether a deist, (i. e. one of those persons popularly so called, who, born and bred in a christian country, are nevertheless not christians, such as Lord Bolingbroke, &c. &c.) be admissible as a witness in a court of law.

This question the learned judge would decide in the negative; for,' he says syllogistically, a witness must be sworn; but a deist may not be sworn ou the gospels, the truth and sanctity of which he does not believe, nor yet according to any Jewish or pagan ritual or form which he acknowledges as little; therefore he cannot be sworn at all, and therefore Q. E. D. cannot be a witness.'

This reasoning would be perfectly conclusive, if both the premises assumed by Mr. Baron Smith were conceded to him; but we are not quite clear that he is entitled to the full admission of either. He considers, we think, rather the form than the substance of the testamentary obligation, and does not apear sufficiently to

have developed the spirit in which the relaxations of the law on this point have been admitted. All witnesses, in the more ancient times, were indeed sworn on the new Testament, and infidels (including the Jews) were held inadmissible, because they would not swear, tactis sacris evangeliis:' this was the law when Lord Coke wrote, and, until the days of Lord Chief Justice Hale, there is no authority to the contrary. Why was this?-because it was reasonable? no: but because our municipal law had in those early times, little conversation with pagans or Jews, and the defect of justice, which an adherence to this rule in modern times would create, was not felt. When, however, our enlarged state of society rendered it necessary we find that the law, which, as Lord Mansfield said in an eloquent argument on this very subject, works itself pure by rules drawn from the fountain of justice,' began to admit, though at first hesitatingly, that Jews and Turks might testify in cases of absolute need because, says my Lord Hale, (the earliest authority for swearing an infidel,)' it were a very hard case if a murder committed here in England in presence only of a Jew or a Turk that owns not the Christian religion, should be dispunishable.'* This liberality of the law continued to increase with our intercourse with pagan countries, till at last it was decided (in the great case of Omichund and Baker)+ by Lord Hardwicke, with the assistance of the other chief judges of his day, that an infidel acknowledging a God and any solemn form of asseveration, might be a witness; because, says one of the judges, not to admit them would be destructive of trade, subversive of justice, and attended with innumerable inconveniences.' Here then is fairly stated the profane ground (not in its ill sense) of this mitigation of the rigid practice of our ancestors.

Fortunately the number of deists, of those notorious deists we speak whom Mr. Baron Smith would exclude from the witnessbox, are so few, that we do not recollect to have ever heard of or seen a witness, to whose competency on this score any objection could be established; nor do we think that if such a one (of otherwise credible character, Mr. Hume for instance,) were to be the only witness of a murder, any objection concerning the form of the oath, would prevent the judge's admission of his evidence. Here Sir M. Hale's argument in favour of the Jew and the Turk would equally apply; and there would be besides the direct authority of Lord Chief Justice Willes, who was of opinion, that infidels who believe in a God and future rewards and punishments may be witnesses; and that he who cannot take the christian oath, must be allowed to swear according to his notion of

* 2 Hale P. C. 279. † 1 Atkyn's Report. 25. + 1 Atk. 44. $1 Atkyns.

an oath and, in a more modern instance, Mr. Justice Buller, when the belief of a witness in our Lord Jesus Christ and in his gospels was directly questioned, would not suffer the examination to proceed, but asked him, whether he believed in God, the obligation of an oath, and a future state of rewards and punishments? Upon his answering in the affirmative, his evidence was admitted. Doctor Paley too, a name high amongst moralists and divines, and no mean authority even on legal questions, says, 'whatever be the form of an oath, the signification is the same; it is calling God to witness, (i. e.) to take notice of what we say, and it is invoking his vengeance, or renouncing his favour, if what we say be false.'+

The decision of Mr. Justice Buller seems now to be generally allowed as law; we, at least, have not heard it questioned, except by Mr. Baron Smith: it must, however, be admitted, that there is some apparent inconsistency in swearing a witness on the holy evangelists, yet not permitting him to be asked whether he believes them to be holy; but this we are inclined to rank among the anomalies so frequent in our laws and constitution, where an ancient form survives the original spirit. The question at this day appears to be, Does the witness believe in the essential obligation of an oath abstractedly considered? If he does, he is sworn on the holy gospels, which is the form that our law requires.

To these considerations we think that Mr. Baron Smith has not sufficiently attended: for, undoubtedly, though we all feel that he who sanctifies his evidence by a sincere and pious appeal to the gospel, is of all possible witnesses the most trust-worthy; yet we cannot deny that the conviction of the existence of a God, the belief in a state of future retribution, and finally, the sense of the obligation of an oath, are the essential qualifications for a witness : -all above this will add to his credit; but this suffices to his competency.

Mr. Baron Smith sees in this subject two separate questions, 1st, whether the witness should be sworn; and 2d, how he should be sworn ; and because he knows not how he should swear a deist, he most inconclusively 'concludes' that he must not be sworn. In truth, we think this distinction of Mr. Baron Smith's overthrows his whole argument; for if a witness entitles himself to be sworn, the common sense of the judges will find out how to swear him and it is contrary to all law, divine or human, that crimes should on account of any forms whatsoever, be, as Sir M. Hale expresses it, dispunishable. When we say form, let us not be misunderstood: Christianity is the very essence of our hopes of welfare here and hereafter; but, under the authority of all the sages of

Peake, N. P. 11.

† Mor. and Pol. Phil. c. 16.

;

the law, we must contend that the ceremony of swearing is but a mere form of the municipal law, capable of alteration, relaxation, or even omission altogether*, as necessity, or even expediency may require.

2. The subject of Mr. Baron Smith's second tract, is of more practical importance than the former; but we own that after an attentive perusal we can extract no better statement of his doctrine, than the title-page, which we have already quoted, contains. The extent to which a cross-examination might be carried, we always considered as a question of degree, and we believe it is so considered by the judges. Mr. Baron Smith seems to think that a witness is, in no case, bound to answer questions defamatory of himself; because, he says, you must either have no grounds for asking the question, or you must be able to prove it by other witnesses: and it is upon this last circumstance that the learned judge particularly relies; but he has totally forgotten that his argument relates to cross-examination-that cross-examination is only applicable to your opponent's witnesses-and that until these appear in the box you cannot tell what witnesses are to be produced. Suppose a man who had been pilloried for perjury at Charing-cross, to be produced as a witness at the assizes at Stafford : ten thousand people had seen him in the pillory, but not one of the ten thousand is at Stafford is the counsel to be prevented from asking this witness whether he was ever in the pillory, and for what crime? We are far from denying that a great license of cross-examination has been sometimes assumed by the bar; (and, if we may judge from the reports which we have seen, by the Irish bar particularly;) but we think it belongs to the discretion of the court to repress this license; and we have not seen many instances in which such improper conduct in the bar was not reprimanded by the court, or checked by the visible disgust of the jury. We think, therefore, that Mr. Baron Smith might have been contented with repressing (which it is his right and duty to do) irrelevant and vexatious cross-examinations, without endeavouring to make into law, what is not law, and what, if it were, the well being of society would make it necessary immediately to abrogate. Of an infamous witness the infamy ought to be exposed; and we own that we should see but little safety for property or character, if we were forbidden to apply to testimony the touchstone of a severe cross-examination, and to measure the value of evidence by the character of the giver. And here again we are glad to refer to the authority of Dr. Paley, who has placed this matter on its true grounds of reason and of law,† discriminating what a witness owes to his oath, to the public, and to himself, and showing, we think, clearly and concisely, how little necessity there is * As in the instance of Quakers.

† Mor, and Pol. Phil. c. 17.