A lunatic is a person who enjoys intervals of sound mind, and may be admitted as a witness, in lucidis intervallis. Com. Dig. Testm. (A. 1.) He must of course have been in possession of his intellect at the time of the event to which he testifies, as well as *at the time of exami- [ *117 ] nation; and it has been justly observed, that it ought to appear that no serious fit of insanity has intervened, so as to cloud his recollection, and cause him to mistake the illusions of imagination for the events he has witnessed. Alison's Prac. C. L. of Scotl. 436. With regard to those persons who are afflicted with monomania, or an aberration of mind on one particular subject (not touching the matter in question), and whose judgment in other respects is correct, the safest rule appears to be to exclude their testimony, it being impossible to calculate with accuracy the extent and influence of such a state of mind (1).

General rules.] It is an established rule that all witnesses who are examined upon any trial, civil or criminal, must give their evidence under the sanction of an oath. This rule is laid down as an acknowledged proposition by some of our earliest writers, Sheppard's Abridg. Tryal, and it appears to be of universal application, except in the few cases in which a solemn affirmation has been allowed by statute (see post) in lieu of an oath. No exemption from this obligation can be claimed in consequence of the rank or station of a witness. A peer cannot give evidence without being sworn. Lord Shaftesbury v. L. Digby, 3 Keb. 631; Lord Preston's case, 1 Salk. 278; and the same appears to be the case in regard to the king himself; 2 Rol. Abr. 686; Omichund v. Barker, Willes' Rep. 550. The rule also holds even in the case of a judge; Kel. 12; or juryman; Bennett v. Hundred of Hertford, Sty. 233; Fitzjames v. Moys, 1 Sid. 133; Kitchen v. Manwaring, cited Andr. 321; 7 C. and P. 648 (a); who happens to be cognizant of any fact material to be communicated in the course of a trial. Phill. Ev. 8, 8th ed.

An examination on oath implies that a witness should go through a ceremony of a particular import, and also that he should acknowledge the efficacy of that ceremony to speak the truth. Phill. Ev. 8. It is therefore necessary, in order that a witness's testimony *should be re- [ *118 ]

(1) A person in a state of intoxication is inadmissible. Gebhart v. Skinner, 15 S. & R. 235. (a) Eng. Com. L. Rep. xxxii. 670.

ceived, that he should believe in the existence of a God, by whom truth is enjoined and falsehood punished. Id. 11. It is not sufficient that a witness believes himself bound to speak the truth from a regard to character, or to the common interests of society, or from a fear of the punishment which the law inflicts upon persons guilty of perjury. Ruston's case, 1 Leach, C. C. 455. Atheists, therefore, and such infidels as do not possess any religion that can bind their consciences to speak the truth, are excluded from being witnesses. Bull. N. P. 292; Gilb. Ev. 129.

Although it was formerly held that infidels (that is to say persons professing some other than the Christian faith) could not be witnesses on the ground that they were under none of the obligations of our religion, and therefore could not be under the influence of the oaths which our courts administer; Gilb. Ev. 142; yet a different rule has since prevailed, and it is now well settled, since the case of Omichund v. Barker, Willes, 549, that those infidels who believe in a God, and that he will punish them in this world, or (as it seems) in the next, if they swear falsely, may be admitted as witnesses in this country. Id. p. 550.

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; because an oath cannot possibly be any tie or obligation upon them. Omichund v. Barker, Willes, 549. A witness was rejected on this ground by Grose, J., at the Bedford Spring Assizes, 1789, on an indictment for murder. Anon. 1 Leach, 341, (n.) And where a witness on the voire dire stated that he had heard there was a God, and believed that persons who tell lies would come to the gallows; but acknowledged that he had never learned the catechism, that he was altogether ignorant of the obligation of an oath, a future state of reward and punishment, the existence of another world, and what became of wicked people after their death; he was rejected, on the ground that a person who has no idea of the sanction which this appeal to Heaven creates, ought not to be sworn as a witness. White's case, 1 Leach, 430. Upon this case it may be observed, that it seems to come within the rule with regard to competency laid down by Willes, C. J., in Omichund v. Barker, Willes, 550, the witness believing that perjury would be punished by God in this world, and that upon this ground the testimony of the witness was admissible.

Where it appeared that the prosecutrix, in an indictment for rape, though an adult, and of sufficient intellect, had no idea of a future state of rewards and punishments, Bayley, J., discharged the jury, that the witness might have an opportunity of being instructed upon that point before the next assizes; but referred the question to the twelve judges, who thought the discharge of the jury improper, and that the prisoner ought to have been acquitted. Wade's case, 1 Moo. C. C. 86 (a).

It is not yet settled by the Scotch law, whether a witness professing [ *119] *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

(a) 2 Eng. C. C. 86.

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." Alison, Prac. Cr. L. Scot. 438 (1).

Form of the oath.] The form of oaths, 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 (2). Phill. Ev. 10, 8th ed. A Jew consequently is sworn upon the Pentateuch. 2 Hale, P. C. 279; Omichund v. Barker, Willes, 543. But a Jew who stated that he professed Christianity, but had never been baptized, nor ever formally renounced the Jewish faith, was allowed to be sworn on the New Testament. Gilham's case, 1 Esp. 285. A witness who stated that he believed both the Old and the 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 so sworn. Edmonds v. Rowe, Ry. and Moo. N. P. C. 77 (a). 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. Dalton v. Colt, 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. Love's case, 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," &c. &c. Mildrone's case, 1 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'Nally 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 also is given as the form of a Scotch covenanter's oath :

(1) Persons who do not believe in the obligation of an oath, and a future state of rewards and punishments, are incompetent witnesses. Curtiss v. Strong, 4 Day's Cas. 51. Wakefield v. Ross, 5 Mason, 16. State v. Cooper, 2 Tenn. Rep. 96. It is not enough to believe in God, and that men are punished in this life. Atwood v. Welton, 7 Conn. Rep. 66. [Altered by legislative enactment in Connecticut, May, 1830.] But the witness need not believe in the eternity of future punishment. Butts v. Swartwood, 2 Cowen, 431, 433, n. 572, n. His belief may be proved from his previous declarations and avowed opinions, and he cannot be admitted to explain them himself. Curtiss v. Strong, 4 Day's Cases, 51. Norton v. Ladd, 4 N. Hamp. Rep. 444. State v. Petty, 1 Harper, 62. Jackson v. Gridley, 18 Johns. 98. He may show reform of conduct and opinion since the declarations proved. Ibid. A single declaration of disbelief proved is not enough. Case of Thornton et al. Bucks. Co. Pa. Pamphl.

Contra, that disbelief in a future state goes only to credit. Hunscum v. Hunscum, 15 Mass. Rep. 184. And see Noble v. People, 1 Bree. 29. Easterday v. Kilborne, Wright, 345. (2) That form of oath is to be used which the witness holds obligatory. Curtiss v. Strong, 4 Day's Cas. 51.

(a) Eng. Com. L. Rep. xxi. 384.

"I, A. B. do swear by God 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 [*120 ] but the truth; So help me God." 1 Leach, *412 (n.) ; Walker's case, O. B. 1788; Ibid. A Mahomedan is sworn on the Koran. The form in Morgan's case; 1 Leach, 54, was as follows. The witness firstplaced 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.

Questions as to religious belief.] The only means of ascertaining the competency of a witness, with reference to religious principle, is by examining the party himself. Phil. Ev. 12, 8th ed. Although an opinion formerly prevailed, that if a person tendered as a witness professed his disbelief in Christianity, see 1 Atk. 39, 50, he could not be received as a witness; yet it is now clearly settled, that upon an examination to try his competency with regard to religious principles, a question as to his belief in the Christian faith, is inadmissible. Thus where a witness was asked whether he believed in the Holy Gospels of God, on which he had been sworn, Buller, J., said, that this was not the proper question, and asked him whether he believed in God, and the obligation of an oath, and a future state of rewards and punishments; and on his answering in the affirmative, he was admitted. Taylor's case, Peake, N. P. C. 11. It seems that it would be sufficient to inquire, whether he believed in a God who would punish falsehood either in this world, or in the next. Willes, 550, ante, p. 118.

But although a witness may not be questioned as to his particular religious opinions, he 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. and B. 284 (a). 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. and B. 232 (b); 7 B. Moore, 36, S. C.

Quakers and Moravians.] Quakers and Moravians, who refuse to [*121] take an oath, were formerly inadmissible witnesses in criminal *ca

(a) Eng. Com. L. Rep. vi. 112. (b) Id. vii. 425.

ses, 2 Russ. 592; but now by stat. 9 Geo. 4, c. 32, s,1, 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 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.

By the 3 and 4 Wm. 4, c. 49, Quakers and Moravians are permitted to make 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 affirin according to the form, either in the 9 Geo. 4, c. 32, or in the 3 and 4 Wm. 4, c. 49, and he was allowed to give evidence under a general form of affirmation; the judges were unanimously of opinion that his evidence was improperly received. Doran's case, 2 Lew. C. C. 27. This case led to the passing of the 1 and 2 Vict. c. 77, 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 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, as the case may be] and entertaining conscientious objections to the taking of an oath, do solemnly, sincerely, and truly declare and affirm” (1).

Separatists.] By stat. 3 and 4 Wm. 4, c. 82, 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 [*122 ] 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 con

(1) A witness who has no objections to be sworn may not be affirmed. Williamson v. Carroll, 1 Harrison, 271.