I concur in the opinion of Judge MARTIN that the trial court erred in not permitting the defendant, when examined as a witness on his own behalf, to testify as to the state of the relations existing between himself and several witnesses for the plaintiff. But there was further error committed on the trial. On cross-examination the defendant Corey was asked, against the objection and exception of his counsel, whether he believed in the existence of a Supreme Being who would punish false swearing, to which he replied that he knew nothing about it; that he was an agnostic and had no belief on the subject at all. In submitting the case to the jury the learned County Court charged: "It is for you to say how far you are to attach credibility to his (Corey's) statements, how far his testimony is impeached as to what he has said here in regard to his religious beliefs," to which comment *Page 157 and instruction the appellants excepted. I think that these rulings also were erroneous.
At common law no one but a Christian was a competent witness, and, as testimony could be given only under the sanction of an oath, even Christians (such as Friends and others) who deemed the taking of an oath unlawful were necessarily excluded from testifying. The common-law rule was relaxed from time to time, either by statute or by judicial decisions, until as the law stood in this state prior to the adoption of the Constitution of 1846: "Every person believing in the existence of a Supreme Being who will punish false swearing, shall be admitted to be sworn, if otherwise competent." (2 R.S. 408, § 87.) And it was further enacted by the legislature that "no person shall be required to declare his belief in the existence of a Supreme Being, or that he will punish false swearing, or his belief or disbelief of any other matter, as requisite to his admission to be sworn or to testify in any case. But the belief or unbelief of every person offered as a witness may be proved by other and competent testimony." (Id. 408, § 88.) It was immaterial whether the witness believed that Divine punishment would be inflicted in this world or in the next. (1 Greenl. Ev. § 369.) Though it seems that prior to the legislation referred to the rule was to the contrary and it was necessary that the witness believe in a future state of rewards and punishments. (Jackson v. Gridley, 18 Johns. 98; Butts v. Swartwood, 2 Cowen, 431.) But by the Constitution of 1846 there was added to the previously existing constitutional declaration of religious liberty the further provision: "And no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief." This amendment, of course, established the competency of an infidel or an atheist as a witness. As to this there is no dispute. But it is contended that though the witness may not be excluded from testifying by reason of being an infidel, he may be interrogated as to his belief, and his infidelity be considered by the jury on the question of his credibility. This was so held by the Supreme Court in Stanbro v. Hopkins *Page 158 (28 Barb. 265), though the declaration was obiter, the judgment having been reversed on another point. The same view was taken by this court without discussion in People v. Most (128 N.Y. 108). The question has arisen in other states. In Iowa the rule in the Stanbro case seems to have been adopted. (Searcy v.Miller, 57 Iowa 613; Stole v. Elliott, 45 id. 486.) On the other hand, in Virginia and in Kentucky, under constitutional provisions not as explicit as our own, but enacting liberty and equality of religious belief, it has been held that a witness cannot be interrogated as to his belief in the existence of a Deity or a future state for the purpose of affecting his credibility. (Perry v. Commonwealth, 3 Grattan, 632; Bush v. Commonwealth, 80 Ky. 244.)
The record of the proceedings of the convention by which this constitutional provision was formulated shows that the view taken by the Virginia and Kentucky courts is the correct one. The provision was the subject of discussion and debate and was not adopted without opposition. The member who introduced the provision (Mr. Taggart, of Genesee) said that he had known the question of a witness's belief in a Supreme Being being raised but once, and trusted that he should never see it raised again. But, he said, if there was anything in this, "let it go to the jury; let it go to his credit and not to his competency." Acting on this suggestion another member moved an amendment: "But evidence may be given as to the belief or disbelief of the witness in the obligation of an oath and of the grounds of such belief or disbelief, in order to enable the jury to judge of his credibility." This amendment was rejected by a vote of 92 to 12. (Crosswell Sutton Debates, pp. 808, 809.) It may be worthy of notice that the convention at the same time struck out the provision of the then existing Constitution which disqualified ministers from holding office, thus making the divorce between the state and religious creeds complete.
Therefore, upon the adoption of the Constitution of 1846 by the people, a witness could not be excluded by reason of his religious belief or unbelief, nor under the statute *Page 159 could he be interrogated on that subject. The learned court in the Stanbro case said with entire truth that though a witness may be competent his credibility may be impaired. It then argued that in analogy to the case of a party to an action who is now a competent witness, but whose interest in the cause goes to his credibility, so the religious belief of a witness, while not rendering him incompetent, might be considered on the question of the credit to be accorded him. I think the learned court was misled by a false analogy. Interest in the subject-matter and relationship to the parties are temporal and mundane influences which common experience teaches us tend to bias consciously or unconsciously the testimony of witnesses. But such is not naturally the result of abstract religious belief. I think that the decision of this court in Gibson v. Am. Mutual Life Ins.Co. (37 N.Y. 580) is controlling on that question. That was an action on a life insurance policy, one of the defenses being suicide. Evidence offered by the defendant to show that the insured was an atheist was excluded. The ruling of the trial court was upheld on the ground that a man's probable course of action could not be predicated from his religious belief. It was there said by Judge HUNT: "In what way, and how far do these statements of belief operate upon the conduct of man? Is it certain that he who believes in the eternal punishment of the impenitent, in a future world, is a better observer of the laws of his country, and more free from actual crime, than he who denies that doctrine? Or is it certain that he who believes in the final salvation of all men would refrain from an offense which he would have committed had he believed that there was no future state? No man can answer with certainty." The truth of this statement is apparent when it is borne in mind that at all times men have been found to unfalteringly meet death rather than deny their religious faith, who could not be induced to conform their lives to the commands of that religion for a week continuously. All that was written by Judge HUNT in the case cited applies with far more force to the case before us. The light *Page 160 in which suicide was viewed by Pagan ethics differs widely from the judgment passed on that act by the Christian religion. While there were not wanting philosophers or moralists in the old world to condemn the act, they were the exceptions. But the Christian religion declared that suicide was a "mortal" sin, and there can be no doubt that it is due to belief in that religion that a practice once common has substantially ceased, though sporadic instances still occur. (See 1 Lecky European Morals, 233 etseq.) Indeed, one of the grounds of attack on Christianity by the great apostle of modern pessimism is what he contends to be its false view of suicide. (Schopenhauer's Essays.) The argument was, therefore, not without force, that an infidel or an atheist would be more likely to commit suicide than a Christian. But I know of no system of religion or code of ethics at any time generally prevalent in the world that has failed to condemn falsehood or to hold truth as a virtue.
It has been seen that in the condition of the law just prior to 1846 the only religious view that excluded a witness was failure to believe in Divine punishment. Thus fear was deemed the only influence by which veracity in witnesses could be assured. If, despite the constitutional enactment that no such test of competency shall longer prevail, inquiry on the subject is still to be made with reference to the witness' credibility, I think we may be led into great embarrassments. I do not see why a witness who declares merely his ignorance as to whether there is or is not a Deity who will punish false swearing is less amenable to fear than one who believes that his future state, whether of salvation or punishment, has been decreed from all eternity regardless of faith or good works. Yet the denomination holding this doctrine in its confession of faith has given to American history at least as many great names as any other religious sect. I think that the learned court in the Stanbro case failed to appreciate that when the Constitution abrogated all disqualifications from office or civil rights, the consideration of a witness's religious belief on the question of his credibility necessarily fell at *Page 161 the same time. On the trial of a cause, as is pointed out by the Supreme Court of Virginia, the judge may be a skeptic or an infidel and the juror an agnostic or an atheist; neither can be excluded for that reason from sitting in judgment. Is it possible that we would uphold the submission to a jury of a witness's belief in Christianity as impairing his credibility?
It is said by one of the learned judges in the Stanbro case with reference to the practice of interrogating a witness as to his religious belief: "I have no fears that this rule will encourage parties to scandalize truly religious witnesses by imputations that they profess the worst of creeds. For so long as no religious test shall be required for judges and jurors, parties will be loath to cross-examine witnesses as to their opinions on matters of religious belief unless they are well assured the opinions of the witnesses are very obnoxious to the sentiments of citizens who say with Pope:
`For modes of faith let graceless zealots fight, He can't be wrong whose life is in the right.'"
That which the learned judge considered a safeguard against the abuse of the practice, to me constitutes its danger. Doubtless, no wise advocate will interrogate a witness as to his religious faith unless it is obnoxious and unpopular in the community. But that is the very case in which the exposure of a witness's religious belief would probably lead to injustice. It is somewhat singular that shortly after the adoption of the Constitution of 1846 abolishing all religious tests or disqualifications, religious animosities, it is true not standing alone, but connected with questions of race and nationality, reached the highest pitch ever known in this country, not only affecting the action of political parties, but leading in many cases to riot and the destruction of property. I think that no one who remembers that period will deny that during the prevailing prejudice and passion a witness professing the unpopular faith might have found himself, in some parts of the country, as much discredited by a jury, or some members of it, as an agnostic or atheist would now be. It is true that the feelings then existing have entirely or almost entirely subsided. It is also *Page 162 true, as said by Bacon, that a religion of negation only is not apt to draw to itself many or enthusiastic adherents, and it may be added that for this reason it is not likely to excite the most violent antipathies. But the principle involved here is in itself important, and the rule declared by the court, in my judgment, wrong. Unfortunately, religious animosities are easily aroused, and we should not give sanction to a principle that may hereafter work great injustice.
I do not say that no examination into a witness's religion can at any time be had. The religious creed of a person may not deal exclusively with his relations to his Creator, but may enjoin acts forbidden by law or forbid compliance with the law. The weight of authority seems to be that the Thugs in India committed their crimes under the direct sanction if not command of their religion. Of course, a witness may be interrogated as to whether he thinks it wrong to give false testimony, whether his religion requires him to commit a crime. These inquiries relate to temporal matters, not to spiritual or theological ones. So also a witness may be asked whether he is a member of the same church as that of one of the parties. This also involves no direct inquiry into his religious belief, but only as to his associations. Experience teaches us that we may be biased in favor of our associates, whether in a church, in a club or in a business institution. Possibly the most "obnoxious" religious faith to-day is that of the Mormons. In a prosecution for polygamy a witness might properly be asked whether he was a Mormon, and whether his religion did not enjoin or, at least, approve that practice. But when a Mormon sues on a bill for groceries, in my judgment it is neither constitutional nor reasonable to interrogate him on the subject of his belief for the purpose of exciting prejudice against him.
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
BARTLETT, HAIGHT, VANN and WERNER, JJ., concur with CULLEN, J., who agrees with MARTIN, J., as to ground for reversal; PARKER, C.J., concurs with MARTIN, J., fully.
Judgment reversed, etc. *Page 163