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“Who dreams that oaths are sacred; that the shrine
And the gay ghosts, were strangers yet to kings.”
The legal exclusion consequent upon, and caused by the oath, affords an unanswerable argument against its use. Most nations, in the spirit of religious bigotry and barbarian exclusiveness, so characteristic of unenlightened legislation, have excluded as witnesses, those whose faith differed from their own. The Government, determining what shall be the faith,
determines that all dissidents shall be branded as infidels. The term infidel expresses merely dissent or disbelief, without reference to the truth or falsehood of the thing disbelieved. It is the epithet which majorities apply to minorities, and, consequently, one of reproach. Justinian excluded infidels. Hindoos and Mohammedans excluded Christians, because of their infidelity, and, by way of reprisal, they in their turn were excluded by Christians, for the same cause. Such was the common law, as drawn from its purest fountains, — from Fleta and Bracton. Coke, its great expounder, excludes them as unworthy of credit ; for, said he — they are perpetual enemies “ for as between them, as with the devils, whose subjects they are, and Christians, there is 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 Company 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 testimony of the natives — that the Court, overruling the well established law of ages, threw Bracton and Fleta overboard, because they were papists, and in their day “ little trade was carried on but the trade in religion ;” and in the suit of Onuchund,* the great Hindoo Banker, whose melancholy fate reflects little credit on British faith, against Barker, by an act of judge-made law decided that all infidels, without reference to their religion, might be received and sworn, according to the customs of their respective countries ; — not because such was the law - but because to exclude them, would be a “most impolitic notion, and would tend at once to destroy all trade and conımerce.” Even judicial optics, with dim and beclouded vision, saw that, if the whole population of a country were excluded as infidels, proof might be deficient;- but, as it was thought 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 trample the law under foot. A judicial caveat, however, 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 imprecated, it mattered little to the common law, the wrath of what God was imprecated, whether Vishnu or Fo, or any other of the innumerable Gods of heathenism. But in none of them does the Christian repose faith. The witness imprecating the vengeance of false Gods, of Gods who will not answer, what is the belief of the Christian ? That the true God will as much hear and punish in consequence of the use of this ceremony, and for its violation, as if the adjuration had been in His name? If so, then are the magic virtues of the oath still more enhanced being compulsory upon the Deity, even when His name is not invoked. If not, then why swear the witness in the name of false Gods? Why give a judicial sanction to superstition and idolatry, by invoking false Gods; why not rather let testimony be delivered under the pains and penalties of perjury, and let that suffice ?
Yet by the common law, the swearer by broken cups and saucers, or he who thinks truth obligatory only as he has held
See Wille's Rep.
the tail of the sacred cow when the oath was administered, was heard, while the intelligent and pious Quaker, who, in the simplicity of his heart, was so heretical as to believe that the command “ Swear not at all” meant what its obvious language imports, was excluded, because he believed the divinity of the command he was anxious to obey. He was thus left without protection to person or to property, unless he should be able to find a witness without the pale of his sect, by whom his legal rights could be established.
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 endangered, was admitted to testify, - but in cases of property alone, his testimony not being admissible in criminal cases. In this country, however, the legislature have removed the disqualification entirely; the absurdity is, that it should ever have existed.
These limited reforms do not afford a complete remedy for the evil. The incorrectness of religious belief is not the ground of exclusion — for if so, one would think Hindooism sufficiently erroneous for that purpose. The theological jurist views with more complacency the worst forms of Paganism, than a questionable variety of Christianity. The only required qualification in his view, is belief in a future punishment, of which, in every aspect, he must be unutterably ignorant. If, believing the general doctrines of Christianity, he 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 happiness, the common law excludes his testimony. The judicial dabbler in theology in this country, has generally followed the lead of transatlantic jurisprudence.
But whether 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 not 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 county, known the attempt made to exclude for that cause. The general bad character of the witness for truth and veracity, affords no ground for exclusion, however much it may for disbelief in testimony; but even if it had, it would not have been established in those cases. Erroneous belief was the only reason urged. The error of such belief, or want of belief, may not merely be conceded — but the entertaining of such sentiments may be deemed the misfortune of his life. But because one of the securities for truth may be wanting, it is difficult to perceive why, all others remaining in full force and vigor, the witness should not be heard — and then after, not as the common law does before such hearing, some judgment formed by those who are to decide upon the matter in dispute, of the truth or falsehood of his statements. He is excluded only because he is believed. If he is to be believed, when the truth uttered would expose him to reproach and ignominy, why not hear him under more favorable circumstances, when the rights of others may be involved, and then judge? Exclude him, and any outrage may be committed upon him — his property may be robbed - his wife may be violated — his child may be murdered before his eyes, and the guilty go unpunished, if he be the only witness; not because he cannot or will not tell the truth, but because the law will not hear him. Practically the law is, that provided a man's belief be erroneous, any body, whose belief is better, and it matters little what it be, Hindooism or Fetichism, may inflict any and all conceivable injuries on his person and property, and the law will permit such a criminal to go unpunished, unless there happens to be present some witness whose belief should square with the judicial idea of competency.
Nor is this all. It leaves it in the power of any man to be a witness or not. A believer, interested for one party and knowing facts adverse to his interest, he has only falsely to profess the erroneous belief, and he is excluded. Wishing to be a witness, and being an infidel, he has only falsely to express a change of sentiments, and he will be admitted to tes. tify. He alone determines whether he will be heard or not. If an atheist and a man of integrity, he is peremptorily shut out; if an atheist, and he will lie and deny his atheism, he is unhesitatingly received. So that the law does not even protect itself, excluding all honest, and admitting all dishonest unbelievers, provided, only, that they are willing to render themselves competent by falsehood.
Abolish, then, the oath, without which technical perjury cannot exist, and the great argument for the wholesale exclusion of testimony by the law is done away with. No intelligent judge or juryman ever relied upon its security. Judge of the witness by his appearance, manner, answers, the probability of his statements, comparing them with the lights derivable from every source. Punish falsehood injuriously affecting the rights of others, in proportion to the wrong done, not with one uniform measure of punishment, as if the offence in all cases were the same. Tolerate not two kinds of truth, the greater and lesser, else both are lost. Elevate the standard of veracity, by requiring it on all occasions, and in this way public morality is increased, and the real securities upon which the social fabric rests are strengthened.
ART. II.-SPECIMENS OF GERMAN LYRICS.
Die Lyrik der Teutschen in ihren vollendesten Schöpfungen
von Göthe bis auf die Gegenwart. In fünf Büchern her. ausgegeben von HEINRICH FRIEDERICH WILHELMI, Hofrath und Professor. Frankfurt a. M. 1848. 1 vol. 4to.
Tuis volume contains lyrical pieces from two hundred and nine poets of Germany, who have lived within a hundred years; of course, the pieces are of very unequal merit. All the various form of German lyric poetry are represented here from the antique ode to the most didactic piece that is capable of being sung. Properly speaking, the modern lyric poetry of Germany begins with Goethe, and it bears the peculiar mark of that great artist, though none has yet equalled the master in lyric composition.
The work is divided into three main parts, namely : —
We give below a translation of a celebrated piece from
No, it was the wind's low breathing,