Page:Harvard Law Review Volume 9.djvu/37

9 A CHAPTER OF LEGAL HISTORY. 9 In Omichund v. Barker, it was declared to be the common law of England that heathens (in that case, native Hindoos) might testify when sworn according to the forms and ceremonies re- quired by their own religion ; on the principle that no more was essential for an oath, than that witnesses should ** believe in a God, and that he will punish them if they swear falsely." ^ The doctrine was there laid down that it was not necessary to believe in a future existence, but only in a God who will punish in the present state ; that greater credit might be given to a witness who believed in divine punishments hereafter; ^ and that " such 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 in the next, cannot be witnesses in any case nor under any circumstances." This case, therefore, disposed of all difficul- ties, growing out of the form of the oath, or the ceremonies ac- companying it, in the case of all sorts of persons whose rehgious belief made them amenable to any kind of an oath. It is to be remembered, of course, that before the case of Omichund v. Barker, and even long before it, the practice of the courts may have conformed to the doctrine there laid down. That case itself only confirmed the action of Lord Hardwicke in order- ing the taking of a deposition in 1739. And another instance of the same sort in the Privy Council is reported by Sir John Strange, as of Dec. 9, 1738.^ ** On a complaint of Jacob Fachina against General Sabine as Governor of Gibraltar, Alderman Ben Monso, a Moor, was produced as a witness and sworn upon the Koran. I made no objection to it." ^ After the Revolution,^ a statute was passed that " In the admin- istration of oaths in this Commonwealth, the ceremony of lifting up that where Indians were a part of coroners' juries, upon the death of an Indian, the verdict in some cases expressly says that it is under oath, and no qualification is made as to the Indians. Such a case occurred at Barnstable in 1720, and at Yarmouth about the same time. It may be conjectured that, as time went on, Indians would gen- erally be admitted to the oath when they did not object, on a presumption of their being converted, or, at any rate, of their recognizing its obligation. 1 Per Willes, C. J., Willes Rep. at p. 549. 2 And so Hunscom v. Hunscom, 15 Mass. 184 (1818). Compare tfte note to that case, as to the English law. 8 So Thurston v. Whitney, 2 Cush. 104. 6 Compare a case of swearing a Jew on the Old Testament, in 1667-8, Robely v, Langston, 2 Keble, 314. 6 Stat. 1797, c. 35, s. 10.
 * 2 Strange, 1104.