I cannot concur in the opinion of Judge Dag-gett, in which I understand him to hold, that a person professing to believe in a Supreme Being, and that men are punished for their sins in this life, but are all made happy, by their Creator, immediately after death, is not a competent witness; though I fully concur in the decisions of the three great cases chiefly relied on, by him, which it was not the intention of the court below to deny or impugn. If this case cannot be distinguished from them, a new trial ought to be granted.
By the ancient common law, Christians only were allowed tobe sworn as witnesses ; (Co. Litt. 6. b. for an oath was considered as of Christian institution. “ An oath,” says Lord Coke, “ is an affirmance or denial, by a Christian man, of any thing lawful or honest before one or more that have authority to give the same, for the advancement of truth and right, calling Almighty God to witness that his testimony is true.” 3 Inst. 165. *80cap. 14 And in Calvin's case, 7 Rep. 17. he informs us, that ¡, a]j are jn jaw perpetUal enemies; for the law presumes not that they will be converted, that being a remote possibility; for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace.” Such was toleration in the seventeenth century, “ in the reign of the most high and most illustrious king, the fountain of all piety and justice, and the life of the law !” 7 Rep. title-page. This notion, advanced by so great a judge, so contrary to common sense and common humanity, though sometimes doubted, (2 Hale’s P. C. 279.) was considered as law, until 1744. Peake’s Ev. 148. Swift’s Ev. 48. 1 Atk. 21, 2. and authorities there cited.
“ In the gloomy days of superstition and ignorance,” says Dane, “ a man could not be a witness, who did not believe in the religion of the country, in which he was called to give e vi-dence. Those who did not believe in Christianity, and sometimes in Christianity of a particular description, were deemed incapable of binding themselves by oath But an infidel is a witness, if his infidelity extend not to atheism, both in England and in the United States, though this was not always the case.” 3 Dane’s Abr. 535.
In Omychund v. Barker, 1 Atk. 21 a more liberal principle was recognized and established. In a bill in chancery before Lord Hardwicke, assisted by the two Chief Justices and the Chief Baron, the deposition of certain Gentoos, who believed in a God, as the creator of the universe, the rewarder of virtue and the avenger of vice, and had been sworn according to the usage of the Bramins, by touching the hand and foot of a priest, wTere offered in evidence ; to which two objections were made, 1. that the deponents were not Christians; and 2. that they were not sworn upon the Evangelists. These objections were argued, by the most eminent advocates of that day; and the judges delivered their opinions seriatim. They unanimously agreed, that the testimony of all infidels who were not atheists, was to be received; and that upon the principles of the common law, there was no particular form essential to an oath to be taken by a witness, but as the purpose is to bind the conscience, every man of every religion should be bound by that form, which he thinks will bind his conscience most. Peake’s Ev. 149. (ed. 1809.) Atcheson v. Everett, Cowp. 389.
These were the only points made and decided ; and it is re*81markable, that neither of the learned counsel, nor of the more learned judges, intimated that a belief in future rewards and punishments was essential to a witness.
Chief Justice Willes is, indeed, made to say, that infidels who believe a God, and future rewards and punishments in the other world, may be witnesses; yet if they [infidels] do not believe a God or future rewards and punishments, they ought not to be admitted as witnesses. I Atk. 45. But in his own report of his own opinion, he says : “ Nothing but the belief of a God, and that he will reward and punish us according to our deserts, is necessary to qualify a man to take the oath.” Willes’ Rep. 545. Again : “ Infidels, who believe a God, and that he will punish them, if they swear falsely, in some cases, and under some circumstances, may and ought to be admitted witnesses, in this, though a Christian country. On the other hand, I am clearly of opinion, that such infidels, if any such there be, whp either do not believe a God, or if they do, do not think he will either reward or punish them, in this world or the next, cannot be witnesses, in any case, or under any circumstances, for this plain reason, because an oath cannot possibly be any tie' or obligation upon them.” Willes’ Rep. 549. Again: “ Supposing an infidel who believes a God, and that he will reward and punish him, in this world, but does not believe a future state, be examined on his oath, as I think he may, and, on the other side, to contradict him, a Christian be examined, who believes a future state, and that he shall be punished in the next world, as well as in this, if he does not swear the truth, I think the same credit ought not to be given to the infidel as to the Christian, because he is plainly not under the same obligation.” Willes’ Rep. 550.
From the remarks of the judges it is apparent, that they concurred in the opinion actually given by Ch. J. Willes, and quite certain, that they did not contradict him. “If my Lord Coke,” said the Chief Baron, “ had, by an infidel, meant a professed atheist, I should have been of opinion, that he could not be a witness.” Again : “ As to the Gentoo religion, it will appear from the best testimonies, that persons of this religion do believe in God as the creator and governor of the world.” 1 Atk. 40. “ I agree entirely,” said Ch. J. Lee, “ with Ch. J. Willes and Ch. Baron Parker, that where it is returned by the certificate, that the witness is of a religion, it is sufficient; for the foundation of all religion is the belief of a God.” 1 Atk. *8246. The Lord Chancellor concurred with the judges, and sa¡¿. (( -phe ruje tjjat an pers0ns ⅛ believe a God, are capable of an oath.” 1 Atk. 20. Again: “ My intention was t0 certified, whether these people believed the being of a God and his providence.” — “ The first author I shall mention is Bishop Sanderson, De Jurisjuramenti Qbligatione. Juris-juramentum, saith he, est affirmatio religiosa. All that is necessary to.an oath, is an appeal to a Supreme Being, as thinking him the re warder of truth and avenger of falsehood.” 1 Atk. 48.
The latest English writer on this subject, upon a review of all the cases, concludes, by saying: “ It seems sufficient, if he [the witness] believes in a God, who will reward or punish him in this world.” Saund. on Plead. & Ev. 940.
Such is the basis of the modern doctrine, that a belief of future rewards and punishments is essential to the competency of a witness ! But, if the foundation fail, where is the superstructure,?
In Curtiss v. Strong, 4 Day 51. it was correctly decided, that a person who did not believe in the obliga Lion of an oath, was not a cibmpetent witness. So in Jackson v. Gridley, 18 Johns. Rep. 98. the supreme court of New-York, with perfect propriety, rejected the testimony of an atheist; and so did Judge Story in Wakefield v. Ross, cited by Judge Daggett. But if these learned judges had contented themselves with deciding the cases before them, they would have been as silent as Lord Hardwicke and his advisers respecting a belief in the administration of justice in a future world. But zeal to establish a favourite dogma seems to have led the mind of a great and learned judge into an error, not only with respect to the English law, but with respect to the language of an English judge. “ By the law of England,” says Ch. J. Spencer, “ which has been adopted in this state, it is fully and clearly settled, that infidels who do not believe in a God, or if they do, do not think that he will either reward or punish them in the world to come, cannot be witnesses in any case, nor under any circumstances, because an oath cannot possibly be any tie or obligation upon them.” 18 Johns. Rep. 103. This certainly is not the language of the court in Omychund v. Barker, but is the precise opinion of Ch. J. Willes, as reported by him, omitting “ this world or the next,” and inserting “ the world to come.” “ Infidels,” says Butter, “ cannot be witnesses, — e. such as profess *83no religion that can bind their consciences to speak the truth ; but when any person professes a religion that will be a tie upon him, he shall be admitted as a witness.” Bul. N. P. 292. And Wooddeson says: “ The case of men wholly without religion, (if any such there be) may justly be thought a reasonable and lawful objection to bearing testimony in any cause or trial whatsoever.” 3 Wooddes. 281,2. Another writer says: “ And in order that persons should be permitted to testify, it is sufficient if they profess a religion and belief in the Deity, which will be a tie upon them to attest the truth.” Esp. Dig. 726.
In conformity with these principles, in 1804, at the Old Bailey, a native of China, being examined before Baron Graham, on an indictment for felony against Ann Alsley and another, was sworn according to the form of the courts in China, by holding a saucer in his hand, which he dashed to pieces at the conclusion of the oath, believing, as he stated, that God would cause his body to be cracked as he cracked that saucer, if he did not tell the truth. Peake’s Ev. 149. n. (ed. 1809.) When and where did this Pagan believe, that the vengeance of Heaven would overtake the body of the perjured witness ? Surely, not in the world to come. Notwithstanding the strong opinion expressed by Ch. J. Spencer, his dicta have been disregarded, by several learned and respectable judges of that and other states.
Thus, in Butts v. Swartwood, 2 Cowen 431. Southerland, J., in delivering the opinion of the supreme court, said : “ The proper test of a witness’ competency, on the ground of his religious principles, is, whether he believes in the existence of a God, who will punish him if he swears falsely.”
So, in Matteson’s case, cited 2 Cowen 433. n., a witness was offered, who did not believe in any future punishment after this life ; and Walworth, Cir. Judge, now Chancellor, said: “ I apprehend the true test of the competency of a witness to be this : has the obligation of an oath any binding tie upon his conscience? Or, does the witness believe in the existence of a God, who will punish his perjury ? If he swears falsely, does he believe he will be punished, by an overruling Providence, in this world, or the world to come ? If he does not believe in the existence of a God ; or if he believes in no punishment, except by human laws ; no obligation or tie can have any binding force upon his conscience. But if he believes, that he will be punished, by his God, even in this world, if he swears falsely, there *84is a binding tie upon the conscience of the witness, and he must pc swonL” This judge fully recognized the opinion of Ch. J. Willes, as reported by himself, and added : “ That part of the opinion of Ch. J. Spencer, which relates to punishment in another world, was an obiter dictum, and wholly unnecessary to decide the case before the court. In this opinion I am supported, by most, if not all, the circuit judges.”
A similar opinion was given, by Williams, Cir. Judge, upon the precise question before us, viz. whether a person who believes in a God, and in rewards and punishments in this life only, may be a witness. 2 Cowen 573.
The same opinion upon the same point, was given by Chancellor Desaussure, of South-Carolina, in Fernandis & al. v. Henderson, in equity, Union district, August term, 1827, upon a laborious investigation of all the cases on this subject.
And in the case of Hunscom v. Hunscom, 15 Mass. Rep. 184. the supreme court of Massachusetts decided, that a person who did not believe in a future state of existence, was a competent witness.
Finally, there is nothing in the case before the court, to shew, that the creed of this witness is materially variant from that of a considerable class of Unirersalists, who believe in the existence of a God, the authenticity of the scriptures, and the divinity of the Saviour, but deny that there is any punishment for the wicked after this life. 2 Cowen 432. n.
A contrary creed on most of these topics was once, by statute, classed among “ capital and otherfelonies,” and rendered its possessor not only incapable of holding an office, but of sueing or defending in a court of justice. But this statute has been repealed, because it wras repugnant to the constitution. If the legislature cannot disfranchise a citizen, on account of his religious sentiments, a fortiori a court of justice cannot, for the same cause, deprive him of the’power of vindicating his rights,- by his own testimony, in “ due course of law.” If the principle now sanctioned, by this court, be carried into full effect, the most atrocious crimes may be committed with impunity, unless perpetrated in the presence of an orthodox witness. Vid. Const. Conn. art. 1. Stat. tit. 16. c. 1. (ed. 1808.) lib. 2. p. 425.
2. The remaining questions are of minor consideration ; but they must be disposed of. It is a well settled rule, that a witness cannot be cross-examined concerning a collateral fact ir*85relevant to the issue, for the purpose of impeaching his testimony, by contradictory evidence. Spenceley q. t v. De Willott, 7 East 108. But if he is so examined, his answer is conclusive.
It is also a rule, that a witness cannot be examined concerning any fact, which tends to degrade or disgrace him. 2 Stark. Ev. 139. Cook’s case, 1 Salk. 153 Northrop v. Hatch, 6 Conn. Rep. 361. The issue in the case before us, is, usury or not. The evidence in question neither proved nor disproved it. The enquiry certainly tended to disgrace the witness ; but the answer ought not to be drawn from him ; for, to be suspected of harbouring such vindictive feelings towards another as would induce a commission of perjury for the sake of revenge, is certainly a disgrace. Peake’s Ev. 136. Rex v. Lewis & al. 4 Esp. Rep. 225. McBride v. McBride, 4 Esp. Rep. 242.
But the practice on this subject seems not to be well settled. Peake’s Ev. 130 2 Stark. Ev. 139. In my opinion, the rule is, or ought to be, the same as in proving a witness interested, viz. by examining him on the voir dire, or proving his interest by other testimony, but not by both. The election of one mode precludes the other. The reason is the same in both cases. “ It is certainly unreasonable,” said the court, in Butler v. Butler, 3 Day 204. “ that the party should be permitted to sport with the conscience of the witness, when he has other proof of his interest.” Stebbins v. Sackett, 5 Conn. Rep. 150. Chance v. Hine, 6 Conn. Rep. 231.
3. The authorities which admit witnesses of the faith in question, seem to take it for granted, that their incredibility is as their infidelity ; and that the ratio must be settled by the jury ; but they furnish no rule to ascertain the effect of speculative opinions upon the consciences of witnesses. By what standard is their testimony to be weighed ? The jury have none but their own sectarian prejudices. What confidence has a Christian in the testimony of a Mahometan, who believes that paradise is his inevitable portion ? What credit will be given, by a Protestant, to the testimony of a Catholic with an indulgence in his pocket ? Or what would be the fate of a Free-mason, accused and tried by Anti-masons, and vice versa 1 Let the history of parties and persecutions, from the days of Mather’s Magnolia to our own times, answer these questions.
The moral character of a witness is the only safe criterion ; *86and, upon this topic, 1 adopt the sentiment and language of the late Chief Justice : “ It may often be difficult to ascertain what are the speculative opinions of men, and how far they influence their conduct. In the conflict of parties, both religious and political, misrepresentations will often take place ; and it will commonly be safer to rely on the general character.for truth, which a man has acquired, by his own conduct in society, than on his mere opinions.” Swift’s Ev. 50.
Note. A new trial having been granted, in this cause, it came on again for trial before the Superior Court, in August, 1828, Daggett, J. pre- iding The same witness was offered, and the same objection taken to his testimony Many witnesses were examined relative to the opinions of the witness as to a future state of rewards and punishments. Judge Daggett was satisfied, in view of the testimony, that he was a believer in future, though not endless punishment. He was, therefore, admitted.XRosmee, Ch. J. and Lanman, J., were of the same opinion.
Brainaro, J. was absent.New trial to be granted.