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Leader (1850-1860), 21st May 1853, Edition 1 of 1, Page 497, Untitled Article

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      Untitled Article

      Courts of justice , in most nations , exact an oath , (« . e . a recognition , by the speaker , of the presence of an invisible Being , superior to man , ready and willing to punish the deviation from truth , —invoking that Being to attest the truth of what is uttered , and , iu . some cases , calling down his vengeance , in the event of falsehood , ) as a condition precedent to the reception of evidence ; and , among us in particular , ' non creditor nisi juratis , ' and ' jurato creditor injudicio , ' have been legal maxims from the earliest times . Hence it follows that the evidence of a witness must be rejected , who either is ignorant , or does not believe in the existence of such a superior power , or refuses to give the required security to the truth of his testimony .

      " The celebrated case of Omychund v . Barker , established the great and sound principle , that courts of Justice are not schools of ilieology , that the object of the law in requiring an oath is to get at the truth , relative to the matters in dispute , by obtaining a hold on the conscience of the witness , and , consequently , that every person is admissible to give evidence , who believes in a Divine Being , the avenger of falsehood and perjury among men , and consents to invoice , by some binding ceremony , the attestation of that power to the truth of his deposition .

      But how is the belief of the proposed witness on these subjects to be ascertained ? It is clear that unbelief in the existence and moral government of God is not to be presumed ; if such exist , they are psychological facts , and consequently incapable of proof , except by the avowal of the party himself , or the presumption arising from circumstances . According to most of our text writers , and the usual practice , the proper and regular mode is by examining the party himself ( p . 182 ) . " The object is not to pry into the speculative views of the witness , but to enable the tribunal to estimate his trustworthiness , in accordance with which it is fully established that he cannot be questioned as to any particular religious opinion , nor even whether he believes in the Old or New Testament .

      No question can be asked , beyond Whether he believes in a God , the avenger of falsehood ; and can designate a mode of swearing which he considers binding on his conscience ; and if he answer this latter question in the affirmative , he cannot be asked whether he considers any other mode more binding , for such a question is superfluous . And we apprehend , that although the questions may be put , a witne ss is not bound to answer , if he is an Atheist or a Theist , for by so doing he might expose himself to an indictment under the 9 th and 10 th William III ., c . 32 , and perhaps also at Common haw ; and it is an established principle that no man is bound to criminate himself" ( p . 185 ) . If ,

      therefore , an Atheist , upon the questions being put , refuses to answer on the above ground , but states that he considers the oath , administered in the common form , binding on his conscience , we apprehend that the judge would not presume , from his claiming his right not to answer , that he had not the necessary belief to enable him to take an oath ; because , as has been before said , " unbelief is not to bo presumed . " To disqualify such a man from taking an oath , other evidence must be given , such us proof of his declarations previously made to others , &c . Now , if this statement of the law bo correct , I do not sco how Mr . Commissioner Phillips was justified in refusing to allow Mr . Holyoake to take

      the oath in the Insolvent Court . Mr . Holyoake stated that the oath iuhninistorcd in the usual form would be legally binding upon his conscience , and offered to take it in ' the usual form , and with the customnry ceremonies . There was no evidence heforo the commisaioner to show that Mr . Holyoake had not the necessary xoli'nous belief . Mr . 11 . said he did not wish Ins taking the oath in the usual manner to be considered as a confession of his faith , " i . e ., that "he did not wish to bo hound by the faith of a Christian ; " ho also told tho commissioner that he gave " the p recedence to tho duties of this life over considerations which pertain

      to another world , " and he declined saying whether or not ho believed in flod , as " ho could not answer that question with the brevity the court would require . Nothing fell from Mr . Holyoako to justify tho Commissioner in coining to the conclusion , that that , gentleman did not believe " in the existence of God , and that Divine punishment would Ik , tho cortain con-Hequonoe of perjury . " Mr . Commissioner Phillips must , in tho nbHMiceof-uny evidence to prove , \ mwpresumed , contrary to lawthat Mr . Holyoake did not believe " in

      , tho existence and moral government of Ood . Mr . Commissioner Ryh . n . I , properly , did not " presume - dly hu « 1 , unbelief , and therefore allowed Mr . Holyoake to be sworn in the Chancery suit ( RubhoII « . Jackson ) , as « tute < l iu tho Leader of December 11 th last . With your permission , I will return to tins wilgcct . J A JUhbibxkk . Temple , J > t > ru » ry 21 it , 1 B 59 ,

      Untitled Article

      INCOME AND PROPERTY TAX . * ( To the Editor of the Leader . ) 23 , Chancory-lane , 8 Fob ., 1853 . Sin , —The question of tho Incomo and Property Tax being much discussed , and the proposal made by Mr . Fan * of capitalizing Income being objectionable because very inquisitorial , I tuko leave , ns Mr . Fair ' s proposed system appears to be , viewed with favour by the Times and other papers , to submit for your consideration tho enclosed copy of a project of n Property and Income Tax published by mo in a pamphlet in the year 1849 . This project , I trust , you will bo of opinion is free from tho objections attaching to other projects on this matter . Within these few days I have noticed tho advocacy of the principle I have bo many years contended for , in an

      evening paper . > That my project would rcalizo a large sum of money there is no doubt , by sonic , it is believed , so large a sum as fifteen millions annually . What it would realize cannot , however , I think , bo estimated with anything liko certainty ; and therefore I did not venture to propose that any taxes should bo repealed until tho amount was ascertained by the actual working of tho scheme . I have submitted this project to many persons who take an interest in such questions , also to many who have hitherto escaped taxation ; « md , without exception , they admit tho justice of tho scheme . Those competent to give an opinion have no doubt as to its groat productivonoHS and practicability . _^_____

      Not a single interest would escape where there waa any plant or good-will . This principle is also consistent with sound morality . To permit a realized interest to escape because small is a temptation to make false statements . The scheme does not propose to tax mere daily labour ; because if not unjust , impracticable . Nor does it propose to tax intellect ; because if not in many cases impracticabje , not politic . But it does propose to tax the plant , or what is the same thing nearly , the good-will ; because such an interest is subject-matter of sale . Thus , there is no good-will in a physician ' s profession generally , and therefore no subject matter for taxation ; but there is often in a surgeon ' s business , and therefore there is subject matter for taxation beyond the mere plant or property on the premises .

      With these few observations I beg to express the hope you may deem my proposition , as it would meet every case , and also be just , worthy of your approval . I am , sir , your obedient servant , Thomas Banisteb .

      ( Memorandum . ) PBOJBCT OF A PEOPEETY TAX AND ON FIXED INCOMES . Though it cannot but be admitted that there is equity in the principle of a graduated scale proportioned to the income of individuals , yet that inasmuch as it would require a double operation , viz ., to tax the property where found with reference to possession of property elsewhere , would be inquisitorial , and in many cases impossible , the following scheme is submitted for consideration : —

      1 st . That all real and funded property should be submitted to a certain named duty , and that this duty should be paid by the parties in actual possession ; they having the rig ht to claim from the real owners , on a settlement , such sum or sums as such party should pay . 2 nd . That all recipients of income ' from Government , or from Church preferments , and under 200 / . a-year , 1 per cent . ; and above 200 / . a-year , 3 per cent . 3 rd . That all recipients of salary , whether from railways , insurance companies , bankers , merchants , clerks , and others , under 2001 . a-year , 1 per cent . ; and above 2 iQ 0 l . a-year , 3 per cent .

      4 th . Ifc may be said that it would be unjust not to tax property engaged in trade , or income derived from trade , professions , &c . My answer is—Tf a man spends all his profits or earnings , he pays taxes indirectly , and the community benefits by such expenditure . If he save any portion , then that portion enables him to enlarge his business , and eo he benefits the community ; or it becomes realized property , and as such contributes to the State the following years . However , there could be no objection , and it certainly would have tho appearance of fairness , that a tax : should bo imposed , not upon the profits or incomes made in trade , professions , &c . ; but a per centage which the interest of capital would amount to if it were not engaged in trade , &o .

      Thus—A publican takes a house , and his capital in tradeins plant—a good-will , in fact , is , say , 3000 / . This sum would , at 6 per cent ., give 150 / . a-year . This 150 / . a-year would , therefore , be charged with a tax of 5 per cent . Again : a merchant is engaged in trade ; his capital iH , say , 20 , 000 / . ; the interest of which is K ) OOZ . a-year at 5 per cent . ; tho tax on which at 5 per cent , would be 50 / . A shopkeeper at the same rate on the interest of tho capital engaged ; a farmer , and every other occupation the same ; mines , shipping , &o . &c .

      There would be no inspection of private accounts or books—no investigation into profits in such a system ; and when we consider the enormous amount of property , by some estimated at five , and even six , thousand millions , there cannot be a doubt but that a vory largo revenue upon an equitable ; principle would bo realized ; that no interest would escape paying what is just ( to permit any realized interest to escape is to encourage immorality ) , and that trade and general enterprise would bo encouraged , without beiug oppressive to any ,,..,, / , ¦ -, <;( 1 ., ml mwliilv itiwniiniimifr Hi > eeiilutioii . And or without undulencouraging speculation . And

      one , y though it would bo unwist ; in tho first inutaiice . to reduce taxation , yet it- is confidently anticipated that almost nil , if not all , interior taxes , such as tho window tax , mult and paper tux , duties upon life and fire in-Hurances and charter-parties , < t <\ , nil of which fall more or less onerously upon parties who are generally not competent to bear them , might Imj ( lone uway with upon experience of tho produetivenosB of this plan proving how they might safely bo repealed . T / UOKAU llAfUBTEU , Tomnlo , lftty .

      Untitled Article

      THE LAW OP OATHS . ( To the Editor of the Leader . ) Sib , —I submit to your legal readers that there is no law in England to compel any man who does not himself object to take the oath , to answer any question as to hie religious belief . Witnesses in England are bound by law to attend Courts of justice , being subpoenaed . They may be punished for not attending . They are bound to take the oath , and may be committed for refusing j but they cannot be committed for refusing to answer any question relating to their religious belief , whether it be put before or after they are sworn .

      Ihe subpoena requires the witness to testify the truth according to his knowledge in a certain action depending between A . B . and C . D . The oath the witness is called upon to take is—I am now speaking of the practice of the superior courts" that the evidence he or she will give to the court and jury , touching the matters in question , shall be the truth , the whole truth , and nothing but the truth . " Bear in mind , it is the duty of the judge to protect him against answering unlawful questions .

      Suppose the witness in the box ready to take the oath , and he is then asked as to his religious belief , and declines to answer , I submit there is no legal power to commit him . To justify a commitment , there must be an offence against some law . Now , I ask any lawyer to prepare a warrant for the offence he affirms this man has committed , at the point of time I have mentioned . He will find his difficulty when he comes to state the offence . The witness has obeyed the subpoena , and he has not refused the oath .

      The oath taken pledges him " to speak touching the matter in question , the truth , the whole truth , and nothing but the trjith . " The only obligation he is then under , is to speak the truth as to the matter in question , and that duty he has not violated . The judge may refuse to take his testimony , but the witness , I submit , is guiltless of any legal offence , and cannot be committed . If a witness , when called , raises an objection , he lays the ground for the rejection of his testimony .

      In the case which I wish to submit , I have presupposed that the witpess does not object to take the oath , and what I desire to fix attention upon is this , that a witness , being willing to take the oath , cannot be committed for refusing to answer any question as to his creed . Of course , ho must bear the odium theologicum , but that arises from a social , and not a legal , error . It arises from unenlightened opinion—say judicial

      ignorance . When the judges are more enlightened—they are rapidly becoming more so—it will cease . Social practice is a growth , and requires time , if erroneous , to die out . The question is thus , on the part of witnesses , reduced to a question of policy , and whether or not , they feel themselves conscientiously bound to refuse the oath , that is , to refuse the mode of verifying the truth required by organized society . Edwaed Search .

      Untitled Article

      » | Tho 8 o ~ lottors huvo boon unavoidably omittod from ¦ wreok to wook , owing to tho pressure on our space . ]

      Untitled Article

      Mat 21 , 1853 . ] THE LEADE R . 497

  • Citation
    • Leader (1850-1860), May 21, 1853, page 497, in the Nineteenth-Century Serials Edition (2008; 2018) ncse-os.kdl.kcl.ac.uk/periodicals/l/issues/vm2-ncseproduct1987/page/17/