Untitled article by W. H. M.

Pacific Press Publishing Company · New York · March 10, 1892

FromThe American Sentinel, Vol. 7, No. 10

More Judicial Legislation in Tennessee.

By W. H. M.

The question of the competency of witnesses is a vital matter in the trial of any case or in the discussion of any subject wherein parties differ. If by any means a witness, whose testimony is necessary to establish a certain line of evidence, can be excluded from giving that testimony, as incompetent to be heard in the witness chair, then from lack of proof of essential facts an unjust cause may be won and a good cause may be lost.

Upon the subject of competency of witnesses the code of Tennessee, 1884, says:—

4560. Every person of sufficient capacity to understand the obligation of an oath, is competent to be a witness.

The succeeding sections of the Article specify certain exceptions wherein persons are or may be held incompetent to testify,—when guilty of certain heinous crimes, and when incapacitated by reason of special family or legal relations to the parties to the suit. But it is not once hinted that religious belief or unbelief enters into the question of competency in any degree. It would therefore naturally be supposed that it would be entirely unnecessary to go any farther in this investigation, so far as the jurisprudence and judicial decisions of the State of Tennessee are concerned,—particularly as the Constitution of the State expressly lays down the broad principle, that no religious test shall ever be required as a qualification for holding office in the State, nor as a qualification for jury service. It would, therefore, be most natural to suppose the same principle must continue of force throughout; and in a court where neither the judge who sits on the bench nor the jury upon whose verdict the life, liberty, or property of the party at bar may depend,—if they can not be required to be of any specified religious creed, or to have any religious belief at all,—then, certainly, it would not be expected that any such discrimination would hold in the case of witnesses who appear before such a court. It would seem that the incongruity of such a distinction would make this impossible, and the evident deduction from such a situation,—that the professedly Christian or atheist prisoner would, in asserting his privilege to be tried by his peers, have the right to call for a Christian or atheist judge and jury by whom his case might be tried without prejudice,—would cause the ludicrousness of subjecting the witness to a religious test, which the Constitution prohibited applying to judge and jury, to appear so clearly that the possibility of its application to a witness would not be thought of.

But the compilers of the code have attached a foot-note to section 4560, in which certain references are given thus:—

Before acquitting the State of Tennessee on this count it might be well to consult these cases. The first (2 Tenn. 96) is that of State vs. Cooper, tried in the Superior Court of last resort, at Knoxville, in September 1807. This case must speak for itself. After what has been seen of the spirit of the Constitution of the State on such a question as this and the broad statement of the code that, every person capable of comprehending the obligation of an oath is competent to act as a witness, no other testimony could be believed, which should say as does the caption of this case, “No person can be a witness who does not believe in a future state of rewards and punishments.” The case is reported thus:—

In this case, a witness, Captain Buller, was produced as to the credibility of Samuel Finley, and asked if he had not heard Finley say that he did not believe that there was either God or devil, that the Old and New Testament was no more than any other history. The Attorney-General argued that by the laws of England every rational creature, whatever his belief might be, could be a witness. There was no instance in any of the law books that any man’s religious opinions ever were excepted to. No question can occur as to these things, with respect to a citizen.—It is true, as to savages it may.

Campbell J. thought that no man who did not believe in a future state of existence, rewards, and punishments, could be a witness. The question is proper.

Overton J. considered this question of importance and therefore took a view of the English authorities. Prima facie, every person of a country where a belief in a future state of rewards and punishments commonly exist, let his religion be what it may, is competent. With respect to such persons no slight or casual sayings can be given in evidence for the purpose of rendering them incompetent. Evidence of a settled belief should be produced. The same question may be asked in this case, as in others which relate to reputation, viz., what is his general reputation, not particular questions, unless the ground is first laid in the general reputation of the person offered, and then particular questions as to the creed of the witness.

Thus Judge Campbell, in this case, unhesitatingly excludes from the witness stand every person who does not “believe in a future state of existence, rewards, and punishments.” And Judge Overton concurs with him, only marking out the course of examination by which it is necessary to ascertain whether or no the creed of the witness is such as will render him competent to testify. And this, although counsel had shown, and it had not been denied, that there was no authority for such a holding. But this case was tried in 1807, and perhaps it is referred to merely as ancient history. The next citation, possibly, will be in consonance with the language and spirit of the section of the code under consideration. It is the case of Bennett vs. the State, 1 Swan 411, heard at the April term of the Supreme Court at Jackson, Tennessee, 1852. A portion of this case reads thus:—

An objection was made to the competency of the prosecutor, John Edgar, to testify as a witness. It appears that he was sworn on the voir dire, and on being interrogated by the defendant’s counsel, as to his religious belief stated, “that he did not believe in a state of future rewards and punishments after death; and that the only punishment inflicted for wrongs in this life, was the pangs of conscience; but he believed in the existence of a God, he also believed the Bible.” The court held him to be a competent witness; and in this there is no error. The statement of the witness as respects a future state of rewards and punishments is neither very intelligible nor consistent. As we understand it, however, he means not to disavow, but on the contrary, distinctly to affirm his belief in such a future state; but entertains an opinion different from many persons as to the nature of the punishment—an opinion in which he is by no means singular.

It seems that the view of the ancient judges is, notwithstanding the lapse of time, still that of Judge McKinney, in this case. He evidently considers it necessary that to be a competent witness a man must believe in a future state of rewards and punishments, although he would not necessarily hold that those beliefs must be either intelligible or consistent. A very fortunate holding perhaps, for if perfectly consistent and intelligible views were requisite even those holding the so-called orthodox ideas as to the future state might be excluded from testifying in court. Both of these decisions are contrary to the spirit of the Constitutions of the State in force at their rendering; the first to the Constitution of 1796, in which the bill of rights declares that no human authority can control or interfere with the rights of conscience and no religious test be required of any one upon whom is placed a public trust. The Constitution of 1834, reiterates these principles, and to this the case of Bennett vs. the State is in antagonism.

The next decision, that of Harrel vs. the State, 1 Head 125, was delivered by the same judge at the September term of the Supreme Court, at Knoxville, six years later, under the code of 1858, then just adopted. This code is similar in its provisions, as to the competency of witnesses in this regard, to that quoted at the beginning of the article. In this case Harrel was convicted of receiving stolen goods and sentenced to the penitentiary. The principal witness, upon whose testimony this conviction was secured, had affirmed his disbelief in the accepted views of religion. The action of the lower court on this point is thus narrated:—

For the purpose of excluding said witness on the ground of incompetency, from want of religious belief; it was proposed, on behalf of the defendant, to prove, that, within less than four months from the time of the trial, said Stephens “had solemnly declared that he did not believe the Bible was true; that he did not believe in the existence of a God; that he did not believe that man had a soul; that he was like the beasts; that his breath was his soul, when you stopped that his soul was destroyed, and that was the end of man.”

The Court would not admit this evidence although it held that the defendant might produce evidence as to the “general religious reputation” of Stephens or might question the witness himself as to his religious belief. This the defendant’s counsel would not do, and the case went on to a conviction under Stephens’ testimony. In his decision upon appeal Judge McKinney says:—

It is admitted that the sentiments imputed to Stephens, if really entertained, rendered him incompetent to testify as a witness; and the only question is as to the mode of proof. Upon this point a difference prevails in practice. Mr. Greenleaf states that the ordinary mode of showing this objection to the competency of a witness is, “by evidence of his declarations, previously made to others.” Vol. 1, sec. 270, and note 2. And according to some of the authorities referred to in the note, it is not admissible to enquire of the witness as to his religious belief. On the other hand Mr. Starkie lays it down (Vol. 1, p. 121) that, “before a witness takes the oath, he may be asked whether he believes in the existence of a God, in the obligation of an oath, and in a future state of rewards and punishments; and if he does not he can not be admitted to give evidence.” We have held recently, in a case not reported, that the party seeking to exclude a witness on this ground, may adopt either mode of proof; and we adhere to this determination as the better practice. If the witness really disregards the obligation of an oath, it would seem to be neither safe, nor consistent to resort to his examination. If he has voluntarily avowed his disbelief, we perceive no reason why this should not be proved in the same manner as any other fact. The question, whether his declarations in regard to his faith have been correctly understood, as represented; as also the question whether his opinion has undergone a change, will be open to proof of a like character. In this view, his honor erred in excluding the evidence offered. But in the instructions to the jury we think there is no error. Judgment reversed.

Thus, in establishing the incompetency of a material witness, an opportunity was made for a receiver of stolen goods to go free. The authorities referred to here, it will be noticed, are Greenleaf, and Starkie, on Evidence, nothing more.

The next case is that of Anderson vs. Maberry, heard in the Supreme Court by Judge Nicholson, in 1871. In the questions involved, in reference to the competency of the witness, the case is almost precisely similar to that just given, and the judge says, “This exact question arises in the case of Harrel vs. the State, 1 Head 125.” He then quotes from Judge McKinney’s decision in that case, and renders his own decision:—

Upon this authority, which we adopt as the best rule of practice, the Circuit Judge erred in not permitting plaintiff’s counsel to call witnesses to prove the declarations of Drury Smith, as to his disbelief in a God, and in a future state of rewards and punishments, and in requiring him to resort to the examination of the witness himself. The record shows the evidence of Drury Smith to have been material on the issue before the jury. For this error the judgment is reversed, and the cause remanded for another trial.

Again a witness is excluded whose testimony is “material to the issue.” This case is decided under the same absence of code provisions as the previous cases, but under the Constitution of 1870, in which there was added to the bill of rights, in reference to jurors, “and no religious or political test shall ever be required as a qualification for jurors.” Thus the constitutional theory and the judicial practice draw farther apart; the one retrogrades as the other advances.

One of the authorities upon which Judge McKinney bases his opinion is the “Law of Evidence,” by Thomas Starkie, Esq., of the Inner Temple, one of Her Majesty’s Counsel. This, then, is an English authority, and Her Majesty’s Counsel says:—

Before a witness takes the oath, he may be asked whether he believes in the existence of a God, in the obligation of an oath, and in a future state of rewards and punishments; and if he does he may be admitted to give evidence. And it seems that he ought to be admitted if he believes in the existence of a God who will reward or punish him in this world, although he does not believe in a future state. But it is not sufficient that he believes himself bound to speak the truth, merely for a regard to character, or the interests of society, or fear of punishment by the temporal law.

To this, Sharswood’s American edition has this note, “The weight of authority in the United States is very decidedly with the text on this point.” Again, on

page 30 of the same edition, this authority says that all “who do not believe in the existence of a Deity; or in a state where that Deity will punish perjury, can not be admitted as witnesses.” To this Mr. Sharswood appends this note, in reference to the “decisions of various courts in the United States. There is entire unanimity in holding that the witness must believe in the existence of a God who will punish falsehood.” Greenleaf deals with the question much more at length, but reiterates the same thoughts and repeats the same facts.

According to the unqualified testimony of all the Tennessee cases bearing upon this issue, the English Church and State precedent has been implicitly followed in the United States upon the question of the competency of witnesses, solely upon a religious basis, without the slightest thought having ever been given as to whether it was or was not in keeping with constitutional principles.

W. H. M.