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Leader (1850-1860), 2nd July 1853, Edition 1 of 1, Page 642, Untitled Article

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      adopted , we may expect to see attempts . to ^ rue ^ wild IfflStafc on the principles of Vattel and Blackstone , before their time , and , moreover , to find the public men of India divided into two parties , one , in . office , learned , conservative , stationary , and . prolific of vast , . practical mistakes ; the other energetic , bold , suggestive , and given to progress , but always in opposition .

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      [ IK THIS DEPARTMENT , AS AM . OFIMIOITS , HOWBVBB BXTBBMB ABB ALLOWED Alf EXPEBSSIOK , THB BDITOB 1 TECESSAEII . Y HOLDS HIMSELF BBSPONSIBLE FOB KONE . ]

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      COLLEGIATE AUTHORITIES . ( To the Editor of the Leader . ) Sir , —At page 603 of the tenth volume of Mr . Beavan ' s Reports , you will find the following observations of the late Master of the Rolls , in the case of " Furfcel v King ' s College , " as to the conduct of Mr . Buller , whose cause you seem inclined to advocate . His Lordship says : —" This gentleman having entered into this transaction , and given as a security bills of exchange , policies , an insurance , and an assignment of his fellowship , did not pay the debt he had contracted . Being called upon in the court for payment , the defence he raises is in the first place , that he was taken by surprise , defrauded , tricked into giving ' securities which he never intended beforehand to give , and that he was induced to give them by surprise . ' To circumstances of that sort be has deliberately pledged his oath in his answer ; but it appears beyond all doubt , both by testimony and by letters under Ms ' own , hand , that the statement so made in Jiis answer is not true .

      Considering what this gentleman is , and with whom he is connected in office , can anything be more lamentable ?" Whether making a false statement on oath be or be not perjury , may bo safely left to the visitor to decide ; but the same evidence which satisfied the College brought a similar conviction to the mind of Lord Langdalo . Your obedient servant , A Fei , low of King ' s . You will find the case also reported in 16 , Law Journal , page 339 .

      [ We insert this letter as a matter of course . Our correspondent is mistaken in wupposing that wo advocate the cause of Mr . Buller . We have no knowledge of the case , and no opinion either way . Wo inserted the brief report as given by the morning papers , knowing that it would interest our academical readers . ]

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      THE LAW AS TO THE ADMINISTRATION OF OATHS . IV . ( To tho Editor of the Leader . ) Sin , —The refusal to allow a man to give evidence is , as you stated in the Leader n few weeks ago , no lean thun n denial of the rights of citizenship . ' A man may bo injured by any brutal , ruffian , and yet the law will not allow him to prove nuch injury in aeouvt of justice , and to obtain redress ; and ho may even bo deprived of a voice in making the laws which ho ia bound to obey if ho has n conscientious objection to take an onth ,, by having the bribery oath offered to him . Hut now as to the fninohievousneHH of oaths in other

      respects . " By , eo simple a process an tho declining to act n p « rt in this ceremony , any man who lias been tho hoIo percipient witness to . , a crime may , whatever be that crime—murder or ntill worse—after appearing as summoned , givo impunity to it ; without the trouble or formality , producing thua tho oilect of pardonsharing thus with his majesty this branch of the prerogative , nncl « von in cases in which his nuld majesty utanda debarred fro m exercising ifc . By tho same " easy proccBB . in a c « called , civil , may » ny roan give to any

      roan any estate of any other man . Wot quite so easy ( says somebody . ) How , would not this be a contempt ? and would he not of course be committed ? May be so ; but when the murderer has been let off , or the man in the right has lost his cause , would the commitment last forlife ?— -in a word , what would become of it ? But to rib such peril need he jex ^ ose himself . A process there is which is still easier— ' I am an Atheist I ' He need bufe pronounce these four wprds . The pardon is sealed ; or Doe ' s estate is given to Roe , " .

      " One of these suits , which the existing Bysfcein engenders in such multitudes—a suit in which one of the parties is conscious of ' being in the wrong , has ( suppose ) place . One percipient witness there is , who being tendered for admission as a narrating witness , is on good grounds believedVby this dishonest suitor to be an Atheist . But Atheist as he is , nothing does it happen to him to have , or to be so much , as supposed to have , to bias him , and warp tis testimony one way pr the

      other ; and no man is maleficient without a motive . Answering to his call , this man places himself in the witness ' s box . The learned counsel has his instructions . ' Sir , * says he , 'do you believe in a God ?' What follows ? Answering falsely , the proposed witness is admitted ; he cannot be rejected : answering truly , he is silenced , and turned out with ignominy The martyr to virtue , the martyr to veracity , receives the treatment given to a convicted felon . "

      The above are extracts from Jeretny JSenfham's Petition , for Justice . I need hardly say , that he was opposed to oaths ; being administered in any' case ( see jkationale of Judvinal JEvidence , b . ^ ii ., chapters 5 and 6 ); and his opinion is entitled to great weight , as many of the reforms so perseveringly advocated by him have since been , carried out . The last-sentence of the above extract should be altered as follows— -as a convicted felon is now a competent witness *' the martyr to virtue , the martyr to veracity receives treatment worse than , that given to a convicted felon . "

      Again , hear the quaint and epigrammatic Benthatn . "A murderer ( suppose ) is on his / trial : necessary to conviction is the testimony of ; an individual who has just mounted the box . Before the oath is tendered , ' First ( may it p lease your lordship ) let me ask this man a question / says the counsel for the murderer . Thereupon comes the dialogue . Counsel : ' Sir , do you believe in a God P' Proposed witness : 'No , sir . ' Judge : ' Away with him ; his evidence is inadmissible . ' Out . walk , they , arm in arm , murderer and Atheist together , laughing . "

      In a case ( Queen v . Hall ) , tried in November , 1849 , at the Central Criminal Court , where , a father was charged with the violating of his daughter , aged twelve , who was ignorant of the nature of an oath , Mr . Baron Alderson refused to postpone the trial for the purpbse of her being taught the nature of an oath , stating , that all the judges were now of opinion that it was an incorrect proceeding ; . that it was like preparing or getr ting up a witness for a particular purpose , and on that

      ground was very objectionable . The < prisoner was , in consequence acquitted . By the strict application of this rule , a parent , by neglecting his moral duty as to the education of his child , may thus obtain an immunity for the commission of a heinous crime . —( S . March Phillipp ' s Law of Evidence , vol . j .-p . 10 , n . 3 . ) It is useless to give instances where the evidence of persona ignorant of the nature of an oath bos been refused , as many such must b 6 familial * to every newspaper reader . .

      Besides these , there arc many persons who , having the necessary religious belief , refuse to take an oath , on the ground that such a proceeding ia repugnant , to Scripture , relying upon the words of Jesus , as reported in the Gospels , " Swear not at all , " and upon those of St . James , in his Epistle , " Above all things , swear not ; " and whoso , evidence is therefore not received , unless they arc cither Quakers , Moravians ,, or . Separatists , who are enabled to affirm , by statute 3 , and 4 , Will . IV . cc . 49 and 82 . A case of this kind occurred

      only the other day , in tho Southampton election committco room . Robert Edmund Bowor , a Baptist , was called as a witness , but the committoo were not ftblc to hear his evidence , bh ho refused to ho wvorn , stating that oaths were forbidden by divine law , and tho , committoo would not permit him tp nfiirm , not being either a Qualujr , Moravian , or Separatist ., Tho . committee , on Wednesday , March Oth , committed him to the custody of tho Sergeant-at-ArmH , and he remained in

      custody . till Friday night , ¦ when ho was discharged upon the motion , of tho chairman of the committee , Mr . IL Herbert , who stated , to tho Houbo . that * f they ( the committee ) believed tlint tho refusal to take the oath proceeded , not from improper motiveB , hut from really co 7 iscientiotts scruples . " Mr . Stuart Wortloy ( Recorder of London ) said ; that " ho wished to cull tho attention of tho Houbo to tho extremely unsatisfactory tttato of ¦ tho law on this subject . The inconvenience of

      which he complained was not confined to the case of a select committee-of thjte House , but applied to every administration of justice . If a man had a conscientious scruple , and did not belong to one of the sects enumerated in the acts , there was no remedy for him * A court of justice , where the evidence , was important , had , to try to coax arid wheedle the witness into taking the oath . If his evidence , ; were unimportant , they ; d | d without him , h ^ ut if it was indispensable , and the rn ^ an still refused to be sworn , tiie judge had no . alternative but to condmit him to custody . He thought the C ^ uy t ought to have the power , where it was satisfied '\ ifre refusal proceeded from conscientious scr ' ujples , to permit the witnesstogive his ^ evidence * u pon iafBrnaiatiori ^ ' ^ -

      ( Times , March 13 th . ) : ; Such ft man is actually ; in a worse position , than an _ atheist , in this respect , for ; in the case of t ) ie tetter , his evidence is only refused , whereas a man who * refuses to take an oath from . * ' . cqn . ? scientibus scruples" is riot ' only not / allowed to -ffiyi ) evidence , but is committed for contempt into the bWgain . It seems strange that the legislature of this enlightened country should only respect the conscience of Quakers , Moravians , and Separatists . Lord Brougham disapproves of oaths , and Mr , Wedgwood , formerly a police magistrate at tjnion Hall , resigned . Jus post on account of conscientipus . scruples in reference to their administration . ( See Mr . ' Pellatt ' s Speech in Times , March llth . ) ; 'V / 7 ' ' ' ' ' . " ¦' ¦ '' "^ i ""

      In addition to the statutes already mentioned allowing Quakers , &c . to affirm , the statute , 1 and 2 Wm . I 7 . c . 4 , abolished certain oaths and . affirmations in some departments of his Majesty ' s revenue ,, and substituted declarations in lieu thereof , and the 5 and 6 . Wm , I "V ^ l c . 62 , abolished all voluntary paths in ' matters riot the subject of judicial inquiry , and a great many other oaths ( more than I have now time to' enuirier&te ) , ' and substituted declarations in lieu thereof . 1 " These

      substitutions , " says the : Chancellor of the Exchequer , " have , given universal satisfaction . " Formerly bankrupts and their wives were sworn before they were examined , but now they may be examine ^^ after making arid signing a declaration to speak the truth . ( 12 and IS Viet . c . 106 , s . 117 . ) ^ '¦ Does the House of Commons place reliance upon the evidence given before the committees of that House , and does that House act upon the evidence so given before the committees for . the consideration of the various railway and other bills of equal importance ? Because if it does , and it is manifest that it does otherwise , receiving the evidence , would be a mere farce , then does it acknowledge the principle that alt persons should be allowed to be examined whatever their

      religious belief maybe ; for the only instance of the HousJe of Commons , or any committee of that House , being authorized to administer an oath is in the case of an election petition , where that power is given by 7 and , 8 Viet . c . 13 , s . 77 , and every witness examined before the other committees give their evidence without being sworn . Mr . Pitt Taylor , in his Treatise on the Law of Evidence , upon this subject says , " That the House of Commons does not enjoy this power , intrusted as it is to every justice of the peace and insignificant com ' - missioner , is certainly a Curious historical fact ; but the

      anomaly is productive of but little practical evil , for although tho giving false testimony before the House of Commons does not render the witness liable to the penalties of- ' -perjury , it subjects him to piihishnio ' nt asj guilty of a breach of privilege ; and many case ' s may be found in tho journals where ' parties who have stated falsehoods , or prevaricated , or suppressed the truth , oi * refused either to answer questions , or to product documents in their possession , have been given into tho custody of the serjeant-at-arms , or even ' committed to gaol . " ( Vol . ii . s . ' 907 . )

      In all these cases the natural moral and legal , or political' sanctions or guarantees of truth , are found to be sufficient Without exacting thd additional security of ah oath . And it scorns ' inconsistent to exclude tho evidence of a " man in this country for want of religious belief , since tho 6 and 7 Viet . c . 22 , has allowed tho unsworn testimony to be received of " various tribes of barbarous and uncivilized people" in our colonies , who arG described in that statute m " destitute of a knowledge of God , and of any religions bolief . " As this net is of importance , and very fihort , I shrill sot it out in extenso in my next letter ; and in conclusion give tho lbnnn of several" curious oaths which have been takteh in our courts of justice . m ' . , ' . ' A BAnniSTEii . Tonn ) le , March 2 S . - >

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      Tabtk . —N <> thing is so atrocioiia as fancy without tiusto . —Prom Goethe ' s Opinions . Anav—Art is based on a ntrong sentiment of religion —on a profound and mighty carnostnoHB ; henco it is « o prone to co-operato with religion , lleligion is not in want of art ; it rests on its own majesty . — -From Qoethe's Opinions .

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      There is no learned man but will confess he liathrrmch profitedby reading controversies , b-is senses awakened . „ arid nis j-udgment sharpened . If " , then , itbe profitable fo * hirn to read , why should it not , at least , be tolerable for bi 3 adversary to write . —Miltoit , -

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      642 '¦ ¦¦¦ TEf LEA D ^ B . [^ W ? f *»

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  • Citation
    • Leader (1850-1860), July 2, 1853, page 642, in the Nineteenth-Century Serials Edition (2008; 2018) ncse-os.kdl.kcl.ac.uk/periodicals/l/issues/vm2-ncseproduct1993/page/18/