Page:Harvard Law Review Volume 9.djvu/31

3 A CHAPTER OF LEGAL HISTORY. 3 a party calling his adversary as a witness shall have " the same liberty in the examination of such witness as is allowed upon cross- examination ; " and that " the usual mode of administering oaths now practised here, with the ceremony of holding up the hand [no book being usedj shall be observed ; . . . [yet] when a person de- clares that a peculiar mode of swearing is, in his opinion, more solemn and obligatory than by holding up the hand, the oath may be administered in such mode." ^ A Quaker may " solemnly and sincerely affirm, under the pains and penalties of perjury," and so may any one who declares (and satisfies the court) that " he has conscientious scruples against taking any oath ; " and so must he who is " not a believer in any religion." He who believes in a religion other than the Christian, " may be sworn according to the peculiar ceremonies of his rehgion, if there are any such."^ In Massachusetts then, all the common-law grounds of witness- exclusion have disappeared : lack of religious belief, pecuniary interest, being a party to the suit or a party's husband or wife, and conviction of an infamous crime ; — all, except the lack of natural capacity. I. As to religious belief and the oath. In this respect, as in others, the change was slow. The two colonies, at Plymouth and Massachusetts Bay, were much distressed by two peculiar classes of people, Quakers and Indians. They regarded the first of these for a long time as the worst sort of intruders, as bringers of a sort of spiritual small-pox; and struggled to be wholly rid of them. To relieve them from the pressure of any hardship, by dispensing, for example, with the necessity of an oath, would have been the last thing likely to be thought of; the effort was to drive them out. In England the Quakers had some relief as early as 1695. It had been found there, after a long contest, that the Quaker was a sort of person 'who could not be killed off, or put 1 This clause covers the case of some Roman Catholics. See the explanation of the court to Bishop Fenwick, when he inquired why it was proposed to adopt in his case a method different from the usual one : viz. " It is well understood, as matter of general notoriety, that those who profess the Catholic faith are usually sworn on the Holy Evangelists, and generally regard that as the most solemn form of oath, and for this reason alone that mode is directed in this court, in case of administering the oath to Catholic witnesses.- This is done by the witness placing his hand upon the book whilst the oath is administered, and kissing it afterwards." The Reporter adds ; ** The oath was then administered to Bishop Fenwick in this form." Com. v. Buzzell, i6 Pick. 153, 156 (1834). 2 Pub. St. Mass., c. 169, ss. 13-31 inclusive.