case OMYCHUND v barker Michaelmas term SC will see ex part Chippendale in re  germane i company de g m g follow and apply Att Gen v Bradlaugh Q b d l I Q b  lt W r Eq Cas Abr pl S c will Rep note hark   light b Lord chancellor assist  by Lord chief just lee Lord chief Jus will and Lord chief baron Parker of  opinion that the deposition of witness of the gentoo religion swear accord to  their ceremony ought upon the special circumstance of this case to be read as  evidence in the cause pursuant to the order above of the that of December a  commission go to the east Indies and on the that of February the commissioner  certify that among other witness for the plaintiff they have examine  Ramkissenseat and Ramchurnecoo berage and several other subject of the great  mogul be person who profess the gentoo religion and that they be solemnly  swear in the follow manner videlicet the several person be before we with a  bramin or priest of the gentoo religion the oath prescribe to be take by the  witness be interpret to each witness respective after which they do several  with their hand touch the foot of the bramin or priest of the gentoo religion  be also before we with another bramin or priest of the same religion the oath  prescribe to be take by the witness be interpret to he after which Neenderam  Surmah be himself a priest do touch the hand of the bramin the same be the  usual and most solemn form in which oath be most usual administer to witness  who profess the gentoo religion and the same manner in which oath be usual  administer to such witness in the court of justice erect by letter patent of  the late king at Calcutta the cause come on this term upon the merit and the  bill be bring to have a satisfaction for rupee amount to about pound English  money from the estate of the late Mr Barker the father of the defendant Mr  Barker in July be appoint by the eastindia company chief of Patna apply to the  plaintiff who be a considerable merchant to be engage in partnership with he  in the sale of good atkins the plaintiff be to advance the money for buy the  good and in consideration thereof Mr Barker be to allow hint interest upon a  moiety of pound per cent the good be sell by Mr Barker for a great profit and  the whole money receive by he but he refuse to come to any account with the  plaintiff upon which be file his bill in in the mayor court at Calcutta and  when the cause be ready for hear there Mr Barker leave Calcutta and take his  passage in a French eastindia ship for Europe and upon his withdraw himself  the court at Calcutta interpret it to be a flight from justice and decree that  he shall pay plaintiff demand in full and all his cost Mr Barker die in the  voyage but by his will make on the saint of December charge his real and  personal estate with the payment of his debt the end of the bill be that all  book and paper relate to the deal between Mr Barker and the plaintiff may be  produce and that the sum before mention may be pay with subsequent interest  and the cost in the mayor court at Calcutta Mr attorney general for the  plaintiff offer to read the deposition of Ramkissenseat but the counsel for  the defendant object to his be a proper witness Lord chancellor order the  commission and the return to be read and likewise the letter patent bear date  the that of September the that of the late king Mr Tracy atkins argue in  support of the objection saint that as the law of England now stand no oath  can be administer to make a man a competent witness but the oath upon the  evangelist dly that it will be contrary even to the rule of equity to admit  any other the substance of this argument follow I will endeavour to show from  the old authority extant down to the present time that the rule have be  uniform and invariable as to the particular oath require Fleta lib c p  juramentum be affirmation well denial de to some place attestation sacred  reifirmata so that as long ago as Edward the first be time which be at least  atkins er p year the general definition of a oath be the person affirm or deny  a thing with a solemn appeal to the sacred write for the truth of what he say  Bracton fol the oath that be administer by the justice itinerant to the jury  summoneyd to inquire for the crown agree exact with this definition Hoc  hearing justitiarii quod ego reality form de hoc quod a I to ask ex part  domini king et with reliance on God shape id quod I prcipietis ex part domini  king et pro to some place non lay aside quin ita shape pro posse meo such I  Deus animate et hc sancta God Good news Briton de challenge de juror c p  describe the oath thus and jeo verity diray si dieu moi aid less seintz psout  less evangelies beyses tout hoors sicome notre foy notre sauvation in  fortescue de laud leg England c p octavo edition entitle how juror ought to be  inform by evidence and witness he say et tunc to lead to to be able skin and  pars in person atkins the same justitiariis et to swear falsely all men et one  testes quos pro part svan to lead forth lightarmed footsoldier who super  sancta God Good news per justice load assert solemnly buntur in all respects  queen understand probant reality fact de quo part to stretch so that your  lordship see it be all men et one testes without any exception of person  whatsoever who super sancta God Good news load testificabi Lord coke in his d  institute upon the statute of Westminster the d say a new oath can be impose  upon any subject without authority of parliament but the give of every oath  must be warrant by act of parliament or by the commonlaw time out of mind and  in the that page of the same institute in the margin nun can examine witness  in a new manner or give a oath in a new case without a act of parliament and  in his d institute c p entitle of perjury subornation of perjury and  incidental of oath say that the word oath be derive from the Saxon word eoth  acid that it be express by three several name saint sacrament a sancram mente  because it ought to be perform with a sacred and religious mind because to  swear falsely be god in witness to call et be right of way for cattle divine  cultus dly by juramentum a jure which signify law and right because both be  require and mean or because it must be do with a just and righIful mind dly  law oath a jure et oath and in the very next section he say a oath be a  affirmation or denial by any Christian of any thing lawful and honest before  one or more that have authority to give the same for advancement of truth and  right call almighty God to witness that his testimony be true so as a oath be  so sacred and so deep concern the conscience of Christian man as the same can  be minister to any unless the same be allow by the commonlaw or by some act of  parliament neither can any oath allow by the commonlaw or by act of parliament  be alter but by act oh f parliament it be call a corporal oath because he  touch with his hand some part of the holy scripture in the that institute c p  he say a oath ought to be accompany with the fear of God and service of God  for advancement of truth owner god tuum timeb et that soli Servius et per  nomen that jurab misuse chap way v take out of the Mosaic law and the word  immediate follow be Bracton say that a alien bear can be a witness which be to  be understand of a alien infidel I shall beg leave to mention a statute make  in the saint of Henry c touch artificer stranger in the that section of which  this enact that the same stranger shall upon lawful warning to they give by  the warden of diverse mystery within the city and town present themselves to  the common hall of the say craft and there to receive and cake their oath and  be swear before the warden upon the holy evangelist to be true to the king c  so that notwithstanding alien and stranger be the subject of this act of  parliament yet without reservation of any form of ceremony in their own  religion relate to oath they be direct atkins to take the oath upon the holy  evangelist so that the legislature govern themselves by the law as it then  stand and see no reason to alter it for the private convenience of particular  person I appeal to your lordship judgement whether the people who be offer as  witness be capable of take a oath as the law of England conceive of it the  most authentic history of this l art of the world represent the native as  extreme ignorant and particular with regard to their notion of religion absurd  and ridiculous and in their idea of he deity so gross that it will be shock  even to mention how atkins er p then can they be say to perform such a  ceremony with a sacred and religious mind which the word sacrament imply it  appear by the certificate of the commissioner and even by their own witness  who may be suppose to represent it in the most favourable light that the  ceremony be for the person who swear to fall down and touch the foot of the  priest with his right hand can this be say god in witness to call or be it  right of way for cattle divine cultus so far from be accompany with the fear  or worship of God as a oath by our law ought to be it be mean prostrate  themselves at the foot of a priest and call upon the creature instead of the  creator and can possible raise any other emotion but those of contempt and  ridicule it be say too that if such person shall swear any thing contrary to  truth that he will be esteem a vagabond I do not know how far the people of  India may be deter by such a apprehension but I be confident great number of  person here will be so far from think this a punishment that if the only  effect of forswear themselves be be a vagabond they will be more inclinable to  break a oath than to keep it I do not find that the priest tell we what be the  general notion of the people as to the belief of a God but only that he  himself believe in a Supreme be of who his superior ability and education may  have give he some confuse knowledge and yet the bulk of the people who have  not have these advantage may think quite otherwise I shall now beg leave to  mention the late Mr sergeant Hawkins in his plea of the crown the last folio  edition under the head of evidence say it seem agree to be a good exception  that a witness be a infidel that be say he as I take it that he believe  neither the old or new testament to be the word of God on one of which the law  require the oath shall be administer I expect we shall be tell by the  gentleman of the other side of sir Matthew hale opinion in his plea of the  crown vol and therefore I will read the passage and submit to your lordship it  be rather in favour of what we contend for than against we it be lie down by  ld coke say ld hale that a infidel be not to be admit as a witness the  consequence whereof will be that a Jew who only own the old testament can not  be a witness atkins but I take it that although the regular oath as it be  allow by the law of England be touch sacrosanct God Gospel which suppose a man  to be a Christian yet in case of necessity as in foreign contract between  merchant and merchant which be many time transact by Jewish broker the  testimony of a Jew touch scales law Mosaicae be not to be reject and be use as  I have be inform among all nation yea the oath of idolatrous infidel have be  admit in the municipal law of many kingdom especial si juraveri per god yes  creator and special law be institute in Spain touch the form of the oath of  infidel and it be a very hard case if a murder commit here in England in  presence only of a Turk or a Jew that own not the Christian religion shall be  dispunishable because such a oath shall not be take which the witness hold  bind and can swear otherwise and possible may think himself under no  obligation if swear accord to the usual style oh f the court of England but  then it be agree that the credit of such a testimony must be leave to a jury  with deference to so great a man I do not see the consequence draw from Lord  coke position that a infidel can be a witness therefore a Jew can be one for  they believe a God just in the same manner the Christian do and the old  testament be as much the evangelium to they as the new be to we and therefore  wide different from the infidel who have no notion of the true God and this be  the v reason for admit the evidence of jews in the case of Robeley v Langston  roll notam wile sergeant on evidence to a jury at guildhall yesterday where  because the witness produce be jews Keeling chief justice swear they upon the  old testament desire the opinion of the court if this be any oath by the  statute of Elizabeth that may be assign for perjury and per curian it be so  and within the general word of sacrosanct Good news atkins er p so of the  common prayer book that have the epistle and gospel contra by Windham of a  psalmbook only it be upon this I apprehend the court form their opinion and  not upon a consideration of their be broker in foreign contract between  merchant and merchant I submit it upon the whole passage sir Matthew hale do  not positive say that by the law of England a person who own not the Christian  religion may be examine accord to the form of his own religion but be only  command the municipal law of other kingdom and throw it out rather as a wish  that the rule be to prevail here in case of necessity than as his opinion  therefore the utmost which can be collect from what he say be that he think it  a defect in our law but though his genius and knowledge be equal perhaps to  any one man of the profession yet I hope I may be allow to put in the other  scale the wisdom and experience of the great atkins and eminent person who for  so many age before his time have adhere to the form of a oath as the constant  and invaliable beside the present can be call a case of necessity because  there be person in India privy to all these transaction who be under no  objection as to their capacity of take a oath but the plaintiff know very well  that native of the same country engage in the same interest and the same  business with themselves be much more inclinable to swear for they I will  mention but one thing more upon the first head to show your lordship that  nothing but the legislature can dispense with the common and usual form of  oath and that be the case of the quaker who have entertain a notion that all  manner of oath be unlawful and there be scarce any error perhaps that have a  more plausible colour from scripture than this which make the case of those  who be seduce by it the more pitiable and yet upon their refuse to take the  oath in a court of justice to use the word of the preamble to the statute of  the will c S for the relief of quaker they be frequent imprison and their  estate sequester by process oh f contempt issue out of such court to the ruin  of themselves and family if the law of England with regard to the form of a  oath be so strict that the judge do not think themselves justify in admit the  most solemn affirmation and declaration of the quaker instead of the oath  though in favour of person who agree in the substantial and fundamental part  of the Christian religion with the church of England and who be in all respect  very useful and serviceable member of the commonwealth I hope your lordship  will see no reason to do it in this case where the person be prove by the  plaintiff himself to be infidel and idolator and whatever ceremony they may  have in swear it can be call a solemn and religious one in the second place I  shall endeavour to show that it will be contrary to the rule of equity to  admit this evidence and here I must submit to the court that in the admit this  evidence very great hardship and inconvenience must necessary arise to the  defendant and that he be bring into this court upon very unequal term shall  your lordship admit the deposition of these witness to be read the plaintiff  will have one manifest advantage over the defendant that notwith stand his  witness shall assert the gross falsehood and be guilty of the most notorious  perjury yet the defendant will be without remedy for there be no indictment  that can be frame against they which can be support for I apprehend it to be a  material ingredient in all indictment of this kind that per see sacrifice  Gospel voluntary et corrupt To bring together perjurium and that omit these  word will be a fatal error and quash the indictment if this expression be  necessary in the indictment these witness let they be ever so guilty must go  unpunished for atkins be afraid it will not be sufficient to maintain the  indictment to say that touch the foot of the priest with his right hand  voluntary et corrupt To bring together perjurium upon the commission your  lordship be please to say that you wonder as the dominion of great Britain be  so large and their commerce so extensive and as thing of this kind must have  happen before there shall be no method as yet establish on such occasion  whatever prudential reason there may be to introduce any new rule in future  case we hope that as court of equity govern themselves by the same rule with  regard to admission of evidence as the court of law that your lordship will be  of opinion atkins er p that you can without overturn the law entire allow  these deposition to be read and that nothing but a act of parliament can alter  the present form of swear Mr attorney general sir Dudley rider for the  plaintiff by way of answer to the objection state a few particular fact saint  that the matter now in question be matter of commerce arise in a foreign  country in a foreign jurisdiction between a Christian and a infidel dly that  in this country the gentoo religion prevail and that Calcutta be only a  factory within this country dly that the witness do believe in a deity thly  not only that they believe in a deity but that in swear they use a expression  equivalent to we so help I God thly that solemn oath to attest fact be usual  among they thly that they understand a oath in the same manner we do thl that  that by the letter patent establish a court at Calcutta there be all the  reason in the world to admit their evidence thly in point of fact gentoos be  admit as witness in the court of Calcutta thly that the manner make use of in  the present cause be the most solemn and customary thly that these witness be  all of the gentoo religion he then submit it whether a person of such a  religion and a infidel may be admit as a witness he then make two proposition  saint that the witness be capable of take a oath as a infidel accord to the  opinion we have of oath dly that there be nothing in our law that prevent he  from be a witness a infidel proper define be a deist that do not believe the  Christian religion all that in point of nature and reason be necessary to  qualify a person for swear be the belief of a God and a imprecation of the  divine be upon he if he swear false this be the sense of all the civilise  nation in the world the foundation of all treaty no one for vinculum ad  adstringend atkins fide jurijurando mayor closely be uolverint lib tert m t c  de Offic see the best writer on Christian morality have go so far as to admit  the oath to false God it be the sense of Grotius send et siquis per falsehood  a god juraveri obligabi because though sub falsehood notorious facts generali  yet complexion numen to look upon ideoque Deus spit si hurt by false oath sit  in svan in an unjust manner id factum to explain lib c S nothing be proper to  the oath here but so help I God when it come to the corporal part own it be  above sanctum evangelium which be a mere ceremony and not essential I can go  to a high authority the authority of the Jewish religion and of the old  patriarch and it will appear they constant consider the heathen capable of a  oath the instance of Isaac and Abimelech swear to one another genes v and in  the saint of genesis v Jacob swear by the fear of his father Isaac and accept  of Laban oath without hesitation though he swear by false God consider now the  circumstance and situation of the gentoos with respect to the oath they have  take saint as to the form of the oath and then as to the corporal part as to  the form of the word it be the same we make use of here for the interrogatory  do you believe in the Supreme be c be read over and interpret to he and he  take it in the same sense other people do which will put a end to the whole  objection as to the corporal part where be the objection to it at least it  show great humility and be in all respect applicable to the kiss of the book  and equal significant for both be no more than sign and not material to the  oath the gentleman by their manner of argue will make one believe there be  only one form of a oath Grotius in the same chapter and book as before mention  and that sect say form jurisjurandi word full re it agrees together agreed  haec for sensum to have debet ut Deus to call upon puta hoc modus Deus testis  sit or Deus sit defender queen two in idem to fall back atkins er p Vid voet  upon the Diog cake title sec a great authority our saviour say in saint  Matthew gospel who swear by the temple swear by the God who inhabit it so that  all terminate in a solemn appeal to the deity for the truth of what he say  there be several passage in Livy Polybius and Grotius which show that oath be  total arbitrary the consequence must be that a infidel be capable of a oath  dly whether there be any thing in the law of England that impugn it it be lie  down by Lord coke that a infidel can be a witness and say that his position be  prove by all the case cite out of the old authority atkins it may in feed be  lie down as a general rule but therefore do it follow that there shall be no  exception do not our law say exception let regulan it be extreme proper there  shall be some general rule in relation to evidence but if exception be not  allow to their it will be better to demolish all the general rule there be no  general rule without exception that we know of but this that the best evidence  shall be admit which the nature of the case will afford I will show that rule  as general as this be break in upon for the sake of allow evidence there be no  rule that seem more bind than that a man shall not be admit a evidence in his  own case and yet the statute of hue and cry be a exception a man book be allow  to be evidence or which be in substance the same his servant book because the  nature of the case require it as in the case of a brewer servant see Glynn v  bank of England Ves Lesebure v word ibidem u peacock v monk ibidem another  general rule that a wife can be a witness against her husband have be break in  upon in case of treason another exception to the general rule that a man may  be examine without oath the last word of a die man be give in evidence in the  case of murder a child may be examine without oath Lord chief justice hale  plea of the crown vol p but if capable of consider the obligation of a oath  may be swear this sufficient show how much our law allow exception against  oath Lord chief justice lee interrupt the attorney general and say it be deter  i at the old Bailey upon mature consideration that a child shall not be admit  as a evidence without oath Lord chief baron Parker likewise say it be so rule  at Kingston assize before Lord Raymond where upon a indictment for a rape he  refuse the evidence of a child without oath Mr attorney general then proceed  in his argument and insist that admit a Jew to be swear be a exception from  the general rule what be the definition of a infidel why one who do not  believe in the Christian religion then a Jew be a infidel for the sense of  evangelium have be pervert and ought to be confine to the new testament only  for it be use by our saviour as good tide in opposition to the bondage the  jews then undergo and be deliver to they first we be teach there be but four  evangelist and the prophet be not so and yet the gentleman of the other side  will introduce many more as to the passage in Deuteronomy it happen  unfortunate that the book of Moses be no part of our religion nor do the law  esteem they such be all the Jewish dispensation confirm by our law No this be  as much a municipal law to the jews as the municipal law here to England or  the law of Solon to Athens or of atkins Lycurgus to Lacedmon and therefore  quite foreign and nothing to do with the present question he mention then what  have happen before a committee of privycouncil the that of December on a  complaint against general Sabine a Turk be bring there and offer as a witness  and to be swear upon the alcoran and be swear accord so far this agree exact  with the present case but it may be say this be not in a court of justice but  rather a matter of state in that respect there be some difference but it will  not take away the usefulness of the precedent to show that a court or person  may alter the form of a oath atkins er p this Indian witness have swear by the  very same word that we do therefore your lordship will not presume that he  mean any other God than we do it be of the great moment that we shall have  commerce and correspondence with all mankind trade require it policy require  it and in deal of this kind it be of infinite consequence there shall not be  failure of justice it have be object that we may have other evidence but  though we may have slight evidence why shall we be tie down to this and debar  of the present which be much strong gentoos be the common broker in this  country and the necessity of the case will work strong for we there be a time  when even jews be not swear and no long since than the that of November there  be a commission out of the exchequer in the cause of lopes and Nunes in which  there be a distinction between the oath for jews and Christian for if jews  they be direct to be swear above old times will only a objection be likewise  make that this Indian will not be liable to be punish for perjury to which it  be answer that if the court shall be of opinion this be a oath which may be  take of consequence he be liable to be punish if forswear another objection be  that quaker can not be admit as witness till a express act of parliament to  empower they the plain answer be that they will not take the oath at all  therefore their solemn affirmation be not sufficient because it have not the  essence of a oath upon the whole as it be a case of necessity and we have full  in proof from the return of the commissioner that they believe in the Supreme  be these witness ought to b admit November the that Mr solicitor general Mr  Murray of the same side with the attorney general it be express certify by the  commissioner that the oath prescribe to be take by our law be read over to the  plaintiff witness the objection be that they have not make the use of the  corporal ceremony the kiss of the evangelist atkins but they have make use of  another symbol the take the priest foot with their right hand because this be  the form and ceremony most bind in their own religion and notwithstanding this  a objection have be take to the read of their evidence first because they have  not touch the evangelist and be pagan and therefore can be admit second  suppose they may be admit as witness yet under the sanction of the oath thus  certify they ought not to be admit as witness in most of the reason the  gentleman have beg the question and have insist that the admit their evidence  be contrary to law and they can be indict for perjury but if the admission be  not contrary to law then of course the witness be liable to be indict for  perjury as well as a Jew who maybe indict touch scales law Mosaic the statute  of the that of Elizabeth leaves this matter entire open it be say there be no  one precedent or case of a heathen swear accord to the ceremony of his own  religion ever exist before in England in court of justice proceed accord to  the commonlaw pagan have be swear in the court of admiralty as dr strahan and  dr Andrews have inform I but they have no note of the case and have forget the  name of it No wonder that it have not exist before because all our commerce be  carry on by our go to they instead of their come here the case of a Jew as a  witness in a private cause never exist till after the restoration they go out  of England the that of Edward the saint and do not return till Oliver Cromwell  time the only authority of consequence cite be a say of Lord coke   light b  that a infidel can be a witness this say be not warrant by any authority nor  support by any reason and last contradict by common experience Lord coke mean  jews as emphatical infidel by shut their eye against the light he hardly ever  mention they without the appellation of infidel jews Inst and thus this noble  king meaning Edward the first banish for ever these infidel usurious jews  therefore Lord chief justice hale be not mistake when he understand Lord chief  justice coke mean jews for infidel as well as other atkins er p that all the  law book when they mention a oath mean a Christian oath be no argument at all  Fleta definition to greater extent to be for sale to swear falsely per creator  how creation this show the oath be not fix but like the oath swear in the  Roman empire after the establishment of Christianity and Lord coke say a oath  be a affirmation or denial by a Christian be no wonder at all for the law of  England can speak only of the Christian oath because they have no intercourse  with pagan the argument of the other sideatherefore prove nothing for do it  follow from hence that no witness can be examine in a case that never  specifical exist before or that a action can be bring in a case that never  happen before atkins reason state to be the first ground of all law by the  author of the book call doctor and student and general principle must  determine the case therefore the only question be whether upon principle of  reason justice and convenience this witness ought to be admit upon this  occasion I shall lie down two proposition first that by the practice of  England and of all the nation in the world that be Christian person though not  of the Christian persuasion may be admit as witness and swear accord to their  own form second that the case of a pagan be within this reason and authority  case of law depend upon occasion which give rise to they where the commerce  and intercourse be most frequent with the pagan the instance to be sure will  most frequent arise after the Roman emperor be convert Christian as well as  those who continue pagan swear accord to their fancy without any particular  form seldon tom mittimus hic Princeps the most Christian ut ex history satis  in the way to be fluid solennia to be et personal juramenta ut per face  consecrated be bright per peden Christ per sanctum haec well that of this sort  alian very much repeatedly to grow yes tandem ut in what way Pagani sacrifice  ac mystery to some place nest or touch or prsentibus to swear falsely to use  ita soleniora the most Christian juramenta of facio or touch sacrosanct Gospel  or to look into or in the dawn prsentia manu ad pectus move away lift or  stretch out and be corporalite seu of juramentum prstari dictum be ut ab oath  per letter communication or in scribe only prstitis to separate ind in common  people public herd passim over upon my corporal oath so that by this passage  out of Selden it appear the corporal part which prevail pagan and by degree  under now all over Christendom be take from Greek Roman emperor it come to be  establish that this ceremony shall be use the opinion of the Greek Roman  emperor as to the oath of person of other persuasion be mention by Selden tom  p to be as follow alien autem persuasion man per id quod to reverence that et  juxta manner quo to reverence adjurar to become used and in p Selden give a  long account of a particular ceremony in swear a Jew in court of justice and  before the that of Edward the first the person administer a oath to a Jew say  if you do it speak the truth to come super caput tuum in all respects sin tua  parent sight et all men maledictiones queen in lege mosaica et a foreteller  inscript are always tecum to stay to which he answer Amen in Spain the turk  possess the great part of the kingdom till the time of Ferdinand the Catholic  what do they then do when Christian and turk have controversy together why  accord to Selden tom the form of the oath be in Spanish to swear as he hope to  be save by the content of the alcoran and say he pna autem mauro swear falsely  knock or dash be non minus how christiano although pro locorum et a race  crisis dispar atkins thus it stand upon the authority of Christian country  where such question have arise but as I say before the question do not arise  here till after the restoration be it then determine that a person not a  Christian shall not be swear No the first time it exist the court determine  that he shall be swear accord to his own principle No case of a Turk swear  upon the alcoran in England but that before the council who be of opinion  great assist and great attend that he may be swear upon the alcoran here be a  material circumstance in this case a court erect in Calcutta by the authority  of the crown of England where Indian be swear accord to the most solemn part  of their own religion all occasion do not arise at once now a particular  species of Indian appear atkins er p hereafter another species of Indian may  arise a statute very seldom can take in all case therefore the commonlaw that  work itself pure by rule draw from the fountain of justice be for this reason  superior to a act of parliament the old book of all country mention the  solemnity of a oath as a security for a person speak the truth they can do no  more than lie he under the most sacred and bind obligation they all call it  appeal to God for the truth and deprecate his vengeance as they speak truth  there be not a book upon the general law of nature and nation but admit that  Christian may allow person to swear per owner et per falsehood do it be so lie  down in the decretal in Grotius and puffendorf who in his that book that sect  and d page say that part of the form in oath under which God be invoke as a  witness or as a avenger be to be accommodate to the religious persuasion which  the swearer entertain of God it be vain and insignificant to compel a man to  swear by a God who he do not believe and therefore do not reverence and no one  think himself bind to the divine majesty in any other word or under any other  title than what be agreeable to the doctrine of his own religion which in his  judgement be the only true way of worship and hence likewise it be that he who  swear by false God yet such as be by he account true stand oblige and if he  deceive be real guilty of perjury because whatever his peculiar notion be he  certain have some sense of the deity before his eye and therefore by wilful  forswear himself he violate as far as he be able that awe and reverence he owe  to almighty God yet when a person require a oath from another accept it under  a form agreeable to that worship which the swearer hold true and he himself  hold for false he can in the least be say hereby to approve of that worship  the oath must be always understand accord to the belief of the person who take  it not only Christian writer now but before Christianity the world be divide  into a vast variety of opinion and yet every man be admit to speak accord to  his own belief dig lib t S omni for entirely atkins to be for sale made him  take the same oath per quod quis Himself to swear falsely substantial be et si  ex eastern to be being under oath prtori id tuebi sky Of to swear quod not  common with others superstition juralum be to stand rescripsi dato to swear  non other quritur how a being under oath sit lenient qustione a to withhold  quasi satis probatum sit to swear Lord Stairs`s institute I do not find any  authority have be produce from any other country that such oath ought not to  be admit the reason why ld Ch Jus Eyre will not suffer the Indian a worshipper  of the sun to be swear upon the evangelist be because he do not believe in  Christianity but if he can be swear at all manifest injustice and manifest  inconvenience must follow heathen buy the good heathen send they heathen know  the price heathen keep the account will it do honour then to the Christian  religion to say that you can swear accord to our oath and therefore you shall  not be swear at all what must the heathen court think of our proceed will it  not destroy all faith and confidence between the contract party be the case of  the Turk or Jew swear accord to their religion different from the Indian swear  accord to his the objection be strong against the Turk because he swear upon  the alcoran which we think a imposture but the Indian here swear by one  supreme God without appeal to any particular book or authority in their  religion it be say a heathen be not to be believe be it not know that all the  heathen believe in a God I will refer they to Tully in his Tusculan  disputation lib S porro firmissimum hoc afferr to see cur a god be to give as  a loan quod no one gens lamb feran no one all tam sit immanis pron  interrog   chin non to wet a god opinion No country can subsist a twelvemonth where a  oath be not think bind for the want of it must necessary dissolve society dly  it be object that suppose they may be admit as witness yet under the sanction  of the oath thus certify they ought not to be admit for that the form be  ridiculous and their notion of religion not certify by the commissioner but  the oath they have take show it for the commissioner have certify that they  have swear by one God and also prove that they think themselves under the tie  of a oath look into book of travel and you will find that heathen especial  gentoos believe in one God the creator of the world though they may have  subordinate deity as the papist who worship saint relic wax vol atkins er p No  doubt but they all have a notion of a God accord to Tully but great authority  than Tully they be a law unto themselves which show the work of the law write  in their heart their conscience also bear witness and their think the mean  while accuse or else excuse one another saint Paul epistle to the Roman ch  that that verse the corporal ceremony be a mere matter of form and not of the  essence of a oath Du fresne glossary say that monk atkins swear by kiss the  foot of the abbot nay the abbot swear by their word only from whence the  expression in word priest and I cite this to show that as it have vary so much  it be all form Lord Ch just lee desire he will answer the objection as to the  form of indict ments of perjury upon the holy evangelist which be necessary  word Mr solicitor general there be no instance of a Jew S be indict for  perjury Lord Ch just lee I have try a Jew myself upon a indictment of perjury  Mr solicitor general insist that the indictment will not be wrong against a  Jew if it be touch scales law Mosaic No precedent but what be of indictment  against Christian for perjury before the restoration and since that time it be  incumbent on the other side to show that it have be hold to be ill when the  indictment against a Jew say that he be swear on the Pentateuch Mr clarke of  the same side that religion ex way termini mean the belief of the existence of  the deity to show further the necessity of admit this evidence even with  regard to inter course between Christian country themselves with Voets  commentary on the pandect without evanqelii touch c if this oath can be  administer because not upon the evangelist the same objection will hold as to  a Dutchman who do not swear as we do on the new testament as to the opinion of  the commentator on the civil law vide Jacumb sec c t Mynsingerus cent ob p  there be a time when swear on the holy evangelist be not the practice here for  when saint Austin introduce the Christian religion the inhabitant be tenacious  of their own custom and therefore he indulge they there be not above twelve  jews in the kingdom before the restoration and they depute one of the  principal person among they in Oliver Cromwell time to come over hither in  order to find out whether Oliver be the Messiah or not in Maddoxs history of  the exchequer in his chapter relate to the jews p pound there be the follow  passage Benedictus frater Aaronis Judi Lincolni debet sheet Marcus pro to have  juratione secundum experience Judorum ad to overcome si Ursellus Judus  Lincolnice sit falsonarius tali videlicet juratione wicker basket some Judi  falsonarii find guilty to use mag rot John rot a linc Judi England to withhold  centum libras ut Judi retentores latrome et the dawn receptan tores per search  shape per sacrament of the most Christian well Judorum well elsewhere modus de  predicta maliciam intimacy a royal power ejicia irredituri as to hold together  in primitive mag rot h londonian Mid atkins si Judus ab to some place appellee  to be without testae de there appellee to be quietus solon sacrament his super  scales suum et de appellee that a thing queen ad crown our men pertinent  similiter quietus to be solon sacrament his super rotulum suum rot cart John n  distinction Carta judaeorum England ld coke in the that Rep calvin case say  all infidel be in law continuous unfriendly for between they as with the devil  who subject they be and the Christian there be perpetual hostility c but he  mean perpetual enemy in a spiritual sense and quote a passage in scripture to  that purpose what concord have Christ with Belial or what part have he that  believe with a infidel cor way as to the objection that ld coke say no oath  can be alter but by act of parliament it relate to some particular officer of  the crown and as to the civil consequence of punishment for perjury ld coke in  his three Inst on perjury say that with respect to a person be charge with a  breach of oath the question be whether it be lawful administer then if the e  oath administer here be agreeable to the genius of the law of England will  they not be liable to punishment for a breach of it for I will submit it  whether atkins er p the crime may not be state special and recite the ceremony  of the witness be take the oath provide it can be lie in the usual common form  Mr chutes reply who be the lead counsel for the defendant Barker Nov as to the  reason urge from necessity and enforce from what the law do in similar case it  be not put in issue nor prove that there be a necessity for have these witness  it be not say by the counsel for the plaintiff that there be no other way of  carry on business in the east Indies without those person nor be it even  pretend in the bill itself if there be no such necessity the argument from  thence can have no weight in this case and hope this be a answer to what have  be call necessity and a failure of justice if these witness shall not be admit  the act of Geo c in the case of murder where the stroke be at sea and death at  land or vice line be to take effect only in going to be so that if a murder of  this sort have be commit by a person before here be certain a failure of  justice and yet the legislature will not by a law ex post facto include such  person in this act I say this with regard only to the particularity of the  person concern as witness as to the principal question it be endeavour to be  support by the other side by principle of reason by authority of scripture and  by rule of the civil law the case from scripture be not similar and argument a  acquire to say it be natural to have a religion and to believe a God I think  so in some measure but yet it be otherwise in experience psalm for that and  that their idol be silver and atkins gold even the work of man hand they that  make they be like unto they and so be all such as put their trust in they as  to the oath of Abraham and Abimelech there be not then any set form exist nor  be it a oath to be take in a court of judicature Laban oath to Jacob be of the  same kind and Jacob accept it as think it better than no oath at all this  therefore be far from convince that every religion do rest in the belief of a  God and all his attribute for it will be prove too much videlicet that there  never be a false religion in the world next as to the sort of religion now  before the court nothing be more certain than that the witness be gentoos and  though the commissioner need not have certify all the tenor of their religion  yet they shall have certify it so far as their religion be concern in take a  oath and as to their notion of a deity be a rewarder of good and a avenger of  evil with Maffuss hist Judor lib fol as to the authority from the civil law  Grotius puffendorf c they be not authority to conclude upon the commonlaw for  the civil law be not receive as the rule of property here much less as to the  rule with regard to our criminal law the civilian hold different rule of  property from we and differ in nothing more than in admit evidence for they  reject histriones and c and whole tribe of people much the great part of the  civil law be only opinion and say of great man but the say of the judge in our  law be of much great weight because they be say when the cause be judicial  before they the Lord chief justice hale say oath of heathen have be admit in  the municipal law of other kingdom how far soever this great man may differ  from Lord coke he rather speak of special law for allow heathen to swear  accord to their own form but these special law have not yet be make here and  the passage of Lord hate be no more than a wish and not a opinion it be  material that nothing be certify in this case as to the witness opinion of our  oath or that the witness do repeat the oath or use any word at all but it seem  that they immediate have recourse to their own ceremony it be say here be the  word so help I God but these witness do not appear to have say any thing and  yet care be take that the quaker shall repeat where will have be the harm if  they have signify their assent to our oath it will certain have be more  satisfactory it do not appear that the gentoos believe a God of the universe  and Lord hate think it necessary they shall believe god creator the most  material question be whether these witness be admittable by the law of England  I must own that the authority be few but hope there be no exception to be show  of the other side and where it be a general rule it come rather of the other  side to show it have be vary No one of the instance Mr attorney general put of  exception to the general atkins er p rule but where the witness be prima  atkins fancy admittable the statute of hue and cry be make that person may  pass and repass safe in the kingdom robbery be commit often upon single person  than more and there be in most instance no other method of provin the robbery  but by admit the evidence of the person rob therefore judge be incline to let  in this evidence upon necessity it be not certain what the rule will be in the  opinion of judge if a three person be by Lord chancellor this evidence may be  allow notwithstanding for a three person or servant may be at a distance and  not know the fact of the robbery so well as the person rob Mr Chute the next  instance be as to let in a tradesman book keep by his servant but there the  oath of a live person be to attest they the next of a wife in case of treason  but here be no authority cite but it be say to be a opinion of Lord chief  justice hale the next instance bring be that the say of die man may be give n  evidence this be no more than give evidence of a nuncupative will and not so  much word as evidence of circumstance a man as be be just leave the world man  that be suppose to have a great regard to truth but on a trial for murder this  kind of evidence will not alter the sense of the court if it shall appear the  decease be kill fair in major Onebys case it be mention by the special verdict  that the die man say he be kill after the manner of swordsman but this have  not weight enough to overrule strong evidence it be say that in matter of  custom and tradition hearsay evidence be admit and right so for how can  tradition be convey but from man to man through a suit of age the case of a  rape of a child and her evidence be admit without oath be deny by Lord chief  justice lee and Lord chief baron Parker to be law and therefore I shall not  trouble you on that head a great deal of stress have be lie on Lord coke put  jews on a foot with infidel in other place Lord coke call he a infidel Jew  therefore describe he secundum quid and not general as a infidel as to the  authority from mad ox history of the exchequer he determine general that the  that shall be swear and by their own book but it be not by force of a charter  that they be swear after the restoration when the jews come over in great  number they be admit to be swear and this be do in oh more than declare what  be the ancient law the jews be once the people of God great and atrocious  crime be forgive they they have certain the promise of scripture large give  they and the evangelium be equal applicable to the jews as to the  Christiansfor the good tide be not confine to the new testament the same be  tell so early as just after the fall genesis the d and that and I will put  enmity between you and the woman and between your seed and her seed it shall  bruise your head and thou shall bruise his heel atkins as to the form of  indictment they ought to be adhere to if there be nothing but conscience to  awe a person in take a oath I be afraid from the depravity of mankind it will  not be so bind for it be the apprehension of temporal punishment which in a  great measure prevail upon person to speak the truth there be no authority to  show that indictment have run otherwise than on the holy evangelist and say in  hall case that the Christian religion be part of the law of England if there  be a possibility that the jews may be reconcile to the new testament it ought  to have weight and a ingenious author the Charterhouse burnet imagine they  will and as they believe a part of the holy scripture it must give they a  superior credit to person who do not believe at all in the same manner with we  suppose a Christian shall turn apostate to the gentoo religion and shall say I  be not liable to be indict how must he be convict of perjury any more than a  person who be a gentoo from his birth this may be attend with bad consequence  because person of this temper of mind who be guard against corporal punishment  will trust futurity as to eternal punishment as to the objection of out bring  a cross bill and that we have thereby admit atkins er p the defendant capable  of put in a answer it will of course fall to the ground as we do not make any  use either of our cross bill or their answer as to the admit the mahometan as  a witness before the committee of the council it be do without debate upon it  for sabines counsel who have a right to make the objection be satisfy of the  truth and justice of sabines cause and therefore it pass without opposition  but as the judge sit there rather as adviser than in any other light it want  the form of a authority Mr solicitor general mention a case which he have from  dr strahan and dr Andrews where a heathen be admit as a witness but the name  be not so much as know dr Audley and dr Simpson have inform I there be a case  before the commons in a suit for a divorce where a black be reject as a  witness because not of the Christian religion as to the charter nothing be say  there but that a solemn oath shall be give a charter may be grant which may  affect a place out of the kingdom total and yet may not infringe the general  rule here with regard to swear like the common case of a piepowder court which  be a summary way of do justice during the fair and be restrain to that  particular time but you can follow it afterward that a act of parliament be  necessary to dispense with the form of a oath appear from the that of the late  king in relation to the jews this act be make to dispense with their swear  upon the faith of a Christian therefore if it shall be think proper for reason  of state and for the sake of trade to receive such evidence for the future let  it be do b that the legislature and not admit against a infant where the  plaintiff acquiesce for year till the person transact with he be dead atkins  Lord chancellor my Lord chief justice Lord chief baron and myself be of  opinion the cause shall stand over till next term that it may be proper  consider this be a point of the utmost consequence and in the mean time let a  search be make in the crown office for precedent of indictment of perjury to  see whether in the indictment of a Jew it have be lie touch scales law Mosaic  or whether there be any thing particular in the form with regard to the  indictment of jews and as case have be mention in the admiralty which be a  court where such case be most likely to happen of heathen be admit to swear in  their own form I shall be glad to have inquiry make in that court likewise  February the d this cause come on for judgement upon the point above mention  Lord chief baron the counsel for the defendant in support of their objection  to the plaintiff evidence cite Inst and Inst j show that a alien infidel can  be no witness if my Lord coke have by a infidel mean a profess atheist I shall  have be of opinion that he can not be a witness I shall show that person who  profess the gentoo religion believe a God to be the creator of the world the  generality of mankind believe a God Tully in his Tusc dispute lib S say quod  no one gens lamb feran no one all tam sit immanis pron  interrog  chin non to  wet a god opinion and express himself to the same effect in his treatise de  naturan a god as to the gentoo religion with relic wax vol p and turn fort be  voyage p from which it will appear from the best testimony that person of this  religion do believe in God as the creator and governor of the world the  defendant counsel cite Keble to show that the old testament be the gospel as  well as the new on one of which the law require the oath shall be administer  to this I answer that the ritual or ceremonial part of the Mosaic law be not  bind but the moral be upon Christian therefore I think the old testament can  be call the gospel as my Lord hale reason will be the basis of the advice I  shall give your lordship I shall read the passage and endeavour to comment  upon it h p c vol it have be say by the defendant counsel that Lord hate  misunderstand Lord coke in answer to this consider the d Inst and you will  find Lord hale consequence be very well find Lord hale say I take it that  although the regular oath c be touch sacrosanct atkins er p God Gospel c yet  in case of necessity as in foreign contract c the testimony of a Jew touch  scales law Mosaicae be not to be reject the book cite by the defendant counsel  to show juror or witness must be swear upon the gospel be Bracton Briton Fleta  c these author prove no more than that the oath be adapt to the native of the  kingdom but by Maddoxs atkins history of the exchequer and wilkins Saxon law  it appear that jews be also swear and in the latter author we find something  very particular a venire facias be mention to have issue to sex of man sex of  Judcos a doubt arise after the restoration in what manner a Jew shall be swear  in put in a answer upon a motion Lord keeper north order he shall be swear  upon the Pentateuch and that the plaintiff clerk shall be present to see he  swear anon vern vide also Franciass trial in the state trial it be likewise  the constant course in trial at bar and nisi prius and which be still strong  there be a act of parliament to enforce it this overturn Lord coke opinion so  far as jews be concern and establish Lord hale the next passage in Lord hale  relate to the special law in Spain yea the oath of idolatrous infidel have be  admit in the municipal law of many kingdom especial si juraveri per yes god  creator and special law be institute in Spain touch the form of the oath of  infidel consider now whether t ere be not such a necessity here as be  sufficient to render this evidence admissible a objection be make that the  plaintiff ought to have show he can not have the evidence of Christian to this  I answer that repugnant to natural justice in the statute of hue and cry the  rob be admit to be a witness of the robbery as a moral or presume necessity be  sufficient and that it shall be take for grant there be the same necessity in  the present case as nothing be state to the contrary beside it appear that the  plaintiff do commence a suit in Calcutta and obtain a decree there and what be  very material Barker himself the father of the defendant in that suit in the  mayor court insist that Omychund shall be ask whether he be of the gentoo  religion and that he shall be swear accord to his own notion of a oath which  be do accord this certain bind Barker and of course his representative vide  roll r salk in short I do not see what shall hinder admit they as witness they  be admit by the civil lawbi the law of nationsby the common consent of mankind  he then cite all the case mention by plaintiff counsel and Lord Stairss  institute to show what the law of Scotland be in this particular but it be  object that these witness do not swear by the true God and for this purpose  the defendant counsel cite Deuteronomy way and vers thou shall fear the Lord  your God and serve he and shall swear by his name you shall not go after other  God of the God of the people which be round about of the other side Jacob upon  his covenant with Laban swear by the fear of his father Isaac gentleman v my  answer be this be not true in fact for they do swear by the true God the  creator of the world atkins Lord hale say a provision by the law of Spain for  more and oath particular adapt to the religion of the mahometan but here the  oath take by these witness be the constant oath and take in their own manner  exact Lord hale make a question whether a Turk or a Jew may be admit to give  evidence upon a murder I will not give a precise opinion but I think a Jew a  very competent witness to prove a murder next as to the form of the oath I be  very far from say that this be so solemn and significant as we be the  scripture have upon this occasion be cite and I will therefore mention the  opinion of a very great divine Tillotson in his assize sermon vol foe the form  of a oath be voluntary take up and entitle by man in the case of Dutton v colt  id doctor Owen vice chancellor of Oxford be a witness for the plaintiff refuse  to be swear in the usual manner by lie his fight hand upon the book and by  kiss it afterward but he cause the book to be hold atkins er p open before he  and he lift pp his right hand the jury upon this pray the opinion of the court  if they ought to think this testimony as strong as the testimony of another  witness and Glin chief justice tell they that in his judgement he have take as  strong a oath as any other witness but say if he be to be swear himself he  will lie his right hand upon the book that form be various with Selden t and  Voets Pand Christian be swear sometime without lie their hand upon the gospel  by lift up their hand to heaven jews be swear first with rite and ceremony  afterward without any it be plain that by the policy of all country oath be to  be administer to all person accord to their own opinion and as it most affect  their conscience and lie the hand be original borrow from the pagan it be say  by defendant counsel that no new oath can be impose without a act of  parliament and for this purpose several case cite my answer be this be no new  oath it be object that they ought not to be admit as witness from the  perpetual enmity between heathen and Christian upon the authority of calvin  case Rep and the statute of the h this be to be understand of spiritual  discord only sir Edward Littleton Lord keeper in his read upon the statute of  the Edward have sentiment there worthy of a great Christian writer turk and  infidel say he be not continuous unfriendly nor be there a particular enmity  between they and we but this be a common error find upon a groundless opinion  of justice brook for though there be a difference between our religion and  they that do not oblige we to be enemy to their person they be the atkins  creature of God and of the same kind as we be and it will be a sin in we to  hurt their person salk in well v William l raym the court say that the  necessity of trade have mollify the too rigorous rule of the old law in their  restraint and this couragement of alien a Jew may sue at this day but  heretofore he can not for then they be look upon as enemy but now commerce  have teach the world more humanity and therefore hold that a alien enemy  commorant here by licence of the king and under his protection may maintain  debt upon a bind though he do not come with safe conduct it be object by the  defendant counsel that this be a novelty and what have never be do ought not  to be do the law of England be not confine to particular case but be much more  govern by reason than by any one case whatever the true rule be lie down by  Lord Vaughan fol where the law say he be know and clear though it be  unequitable and inconvenient the judge must determine as the law be without  regard the un equitableness or inconveniency those defect if they happen in  the law can only be remedy by parliament but where the law be doubIful and not  clear the judge ought to interpret the law to be as be most consonant to  equity and least incon to come as to the case of lee v lee before the court of  delegate in they give no opinion whether the witness be admittable or not the  counsel for the defendant mention a note of a case take by Mr Bunbury in the  court of exchequer in a cause between the east India company and Admiril  matthews where Orangee a black be offer as a witness there say he look upon  jesus Christ as a good man and upon send to the king bench for their opinion  they think he can not be admit because he do not believe in jesus Christ this  be a note of a case take some time after the cause be hear upon memory only  which at a distance of time be very treacherous but I think the reason a very  bad one for the same will exclude jews another objection be that the witness  be not liable to a prosecution for perjury this be not true in fact but  suppose it be yet this be not the only case where witness can be prosecute for  there be no possibility of prosecute they where the deposition be take out of  England but if they be here I shall be of opinion they may be indict upon a  special indictment for I do not think touch sacrifice Gospel be necessary word  for several old precedent be that the party atkins be to swear falsely general  or debt is owed modus to swear falsely vide west Symb d part under the head of  indictment and offence sect atkins er p as to the precedent of indictment  against jews they be so various that nothing be to be draw from it upon the  whole not to admit these witness will be destructive of trade and subversive  of justice and attend with innumerable inconvenience Lord chief justice will  as it be a question of great importance and in some measure a new question I  will give my opinion first as to the general question whether any infidel may  be admit as a evidence under some circumstance if I be of the same opinion  with Lord coke the consequence will be that these deposition can not be read  but I be of opinion that some infidel may under some circumstance be admit as  witness my Lord coke be plain of opinion that jews as well as heathen be  comprise under the same exclusion sergeant Hawkins in his plea of the crown  though a very learned and painstaking man be mistake in his notion of Lord  coke opinion long before his time and ever since the jews return to England  they have be constant admit as witness the defendant counsel be mistake in  their construction of Lord coke for he put the jews upon a foot with  stigmatize and infamous person this notion though advance by so great a man be  contrary to religion common sense and common humanity and I think the devil  themselves to who he have deliver they can not have suggest any thing worse  our saviour and saint Peter have say God be no to look back of person act for  Lord coke be a very great lawyer but our saviour and saint Peter be in this  respect much better authority than a person possess with such narrow notion  which for well deserve all that Lord Treby have say of it lie no stress upon  the authority of Bracton Briton and Fleta for they live in popish time when no  other trade be carry on except the trade of religion and hope such time will  never come over again it be very plain too these ancient authority speak only  of Christian oath Maddoxs history of the exchequer clear it up beyond all  contradiction that jews be constant swear and from the car to the present time  have never be refuse to this assertion of Lord coke I will oppose Lord hate  though full cite by Lord chief baron Parker yet I will mention it again  because it be full of the true spirit of good sense and Christianity and num   adv  return to to please as to the authority of civilian I shall jay once for  all that I do not lie so much stress upon any quotation of the civil law  because I think there be no occasion to have recourse to they atkins the last  answer I shall give to Lord coke assertion be his own word in Calvin S case  and that Inst if say he a oath be clear of a Christian institution then I  shall be force to admit that it can not be allow but oath be as old as the  creation look into sacred history and you will find variety of instance in the  book of genesis in the that chapter of number throughout the nature of a oath  be not at all alter by Christianity but only make more solemn from the  sanction of reward and punishment be more open declare the passage in the that  chapter of saint Matthew relate to Herod and the daughter of herodias be very  extraordinary a person appear there to be so very wicked as not to stick at  murder and yet think a oath of such a sacred nature as to choose rather to  commit the former than break the latter Pythagoras in his golden verse and  Tully in several part of his work speak of a oath with the high reverence  Grotius de jure Belli et peace vol lib c de to swear sec at all men poplar  tree et ab omni time daughter of the Sun promise promise et contradus maxima  always v be to be jurisjurandi the form of oath vary in country accord to  different law and constitution but the substance be the same in all Grotius in  the same chapter sect form jurisjurandi word full re it agrees together agreed  haec for sensum to have debet ut Deus to call upon puta hoc modus Deus testis  sit or Deus sit defender in our old law book such Deus animate and other  expression of the like nature and now so help I God Vid the d of Matthew that  saint and d verse there be nothing in the argument that as Christianity be the  law of England no atkins er p other oath be consistent with it and for the  reason already give this argument carry no weight with it though I have show  that a infidel in general can be exclude from be a witness and though I be of  opinion that infidel who believe a God and future reward and punishment in the  other world may be witness yet I be as clear of opinion that if they do not  believe a God or future reward and punishment they ought not to be admit as  witness next as to dispense with strict rule of evidence such evidence be to  be admit as the necessity of the case will allow of as for instance a marriage  at Utrecht certify under the seal of the minister there and of the say town  and that they cohabit for two year together as man and wife be hold to be a  sufficient proof they be marry cro James Alsop v Bowtrel it must be leave to  the jury or judge what credit they will give for it be a know distinction that  the evidence though admit must still be leave to the person who try the cause  to give what credit to it they please the same credit ought not to be give to  the evidence of a infidel as of a Christian because not under the same  obligation atkins it be admit by the defendant that this cause relate to a  mercantile affair between Barker a merchant and a subject of England and a  Indian a merchant and the subject of the grand mogul what can the plaintiff do  he have but only one remedy that he take he follow his debtor into England  there can be no evidence admit without oath it will be absurd for he to swear  accord to the Christian oath which he do not believe and therefore out of  necessity he must be allow to swear accord to his own notion of a oath next as  to the commission the certificate full answer this objection that it do not  appear they believe a God I can say I lie a great stress upon the author which  give a account of the gentoo religion because it must depend upon their  veracity and private judgement but I find my opinion upon the certificate  which say the gentoos believe in a God as the creator of the universe and that  he be a rewarder of those who do well and a avenger of those who do ill and  last as to the objection of the indictment for perjury this have be full  answer already by the Lord chief baron but the plain answer be that sacrosanct  Good news be not at all material word upon the whole I be of opinion the  evidence of the plaintiff witness under the circumstance of this case ought to  be admit Lord chief justice lee I agree entire with the opinion of Lord chief  baron Barker and Lord chief justice will that where it be return by the  certificate the witness be of a religion it be sufficient for the foundation  of all religion be the belief of a God though difficult to have a distinct  idea of a infinite and incomprehensible be as God be yet mankind may have a  relative idea of the be of a God as dependent creature upon he a oath be a  religious sanction that mankind have universal establish I will not be think  to declare a opinion how far person under the denomination of atheist and  believe no religion may in this country be in some case admit but I do  apprehend that the rule of evidence be to be consider as artificial rule frame  b that man for convenience in court of justice and find upon good reason but  one rule can never vary videlicet the eternal rule of natural justice this be  a case that ought to be look upon in that light and take it consider evidence  in this way be agreeable to the genius of the law of England there be not a  more general rule than that hearsay can be admit nor husband and wife as  witness against each other and yet it be notorious that from necessity they  have be allow and as Lord chief baron say not a absolute necessity but a moral  one where there be foreign party interest or in commercial atkins matter the  rule of evidence be not quite the same as in other instance in court of  justice the case of hue and cry Brownlow in Lord chief justice hale plea of  the crown vol the saint a feme covert be not a lawful witness against her  husband in case of treason but have be admit in civil case a wife admit to  prove a trust the same as to hearsay evidence Skinner atkins er p as to admit  evidence in foreign matter and commercial this be different from common case  roll Rep the testimony of a public notary be evidence by the law of France  contract be make in the presence of a public notary and no other witness  necessary to prove the transaction I shall think it can be no doubt at all if  it come in question here whether this be a valid contract but a testimony from  person of that credit and think over cion will be receive as very good proof  in foreign transaction and will authenticate the contract cro car these case  show that court always govern themselves by these rule in case of foreign  transaction prece in Chan Tremoult v Dedire wms in action of trover with  Comberb dockwray and Dickenson in case of sale of good a factor be admit as a  witness to apply these case to the present without deliver a opinion whether  person that do not believe in any religion may be admit as I think that these  witness be under the religious tie of a oath administer in the most solemn  manner as this be a transaction whole in the country of the mogul as Barker  have force the plaintiff to have recourse here to the law of England by quit a  country where by the letter patent of the crown they be entitle to justice it  will not be consonant to natural equity to deny they the benefit of this  evidence in the that and that of Charles chap sect a act for prevent fraud and  regulate abuse in his majesty custom there be the follow clause pro vided that  in case the seizure or information shall be make upon any clause or thing  contain in the late act entitle a act for the encourage and increase of ship  and navigation that then the defendant or defendant shall on his or their  request have a commission out of the high court of chancery to examine witness  beyond the sea and have a competent time allow for the return thereof before  any trial shall he have upon the case accord to the distance of place where  such commission or commission be to be execute and that the examination of  witness so return shall be admit for evidence in law at the trial as if it  have be give viva voice by the examinate in court any law statute or usage to  the contrary in any wise notwithstanding Lord chancellor as this be a case not  only of great expense but of great consequence it will be expect that I shall  not atkins give a opinion without assign my reason for it at the same time  first as to the objection of the defendant counsel to the certificate and  return of the commission that the commissioner have not follow the direction  of this court that they shall have certify of what religion the witness be and  the principle of that religion whereas they only certify they to be of the  gentoo religion without show what the principle be of that religion it be not  the intention of the court they shall for it will have be enter into a wide  field and will have be certify the history of the banian or gentoo religion  case have be determine at commonlaw upon evidence take from history of country  and we have very authentic account of this part of the world a general history  be evidence to prove a matter relate to the kingdom in general salk oh my  intention be to be certify whether these people believe the be of a God and  his providence the that volume of Churchill voyage particular de scribe this  religion and their precept of morality the latter precept carry almost the  sense of the nine commandment this objection be remove the next question will  be whether the deposition ought to be read which depend upon two thing first  whether it be a proper Obligatory oath second whether on the special  circumstance in this case such evidence can be admit accord to the law of  England the general learning upon this head have be full enlarge upon by the  Lord chief justice the first author I shall mention be bishop Sanderson de  jurisjuramenti obligation Jurisjuramentum say he be affirmation religious  devotee all that be necessary to a oath be a appeal to the Supreme be as think  he the rewarder of truth and avenger of falsehood with the same author p and  this be not contradict by any writer that I know of but Lord coke who have  take upon he to insert the word Christian and be the only writer that have  graft this atkins er p word into a oath as to other writer they be all concur  with puffendorff lib ch see dr Tillotson saint volume of his sermon upon the  lawfulness of oath and p where the very text speak plain of a oath among all  nation and man a oath for confirmation be to they a end of all strife hebr the  that and that the necessity of religion to the support of human society in  nothing appear more evident than in this that the obligation of a oath which  be so necessary for the maintenance of peace and justice among man depend  whole upon the sense and belief of a deity the next thing I shall take notice  of be the form of the oath it be lie down by all writer that the outward act  be not essential to the oath Sanderson be of that opinion and so be Tillotson  in the same sermon p as for the ceremony in use among we in the take of oath  it be no just exception against they that they be not find in scripture for  this be always matter of liberty and several nation have use several rite and  ceremony in their oath atkins all that be necessary appear in the present case  a external act be do to make it a corporal act second whether upon special  circumstance such evidence may be admit accord to the law of England the judge  and sage of the law have lie it down that there be but one general rule of  evidence the best that the nature of the case will admit the rule be that if  the write have subscribe witness to they they must be prove by those witness  the first ground judge have go upon in depart from strict rule be a absolute  strict necessity second a presume necessity in the case of write subscribe by  witness if all be dead the proof of on of their hand be sufficient to  establish the deed where a original be lose a copy may be admit if no copy  then a proof by witness who have hear the deed and yet it be a thing the law  abhor to admit the memory of man for evidence Mod a tradesman book be admit as  evidence though no absolute necessity but by reason of a presumption of  necessity only infer from the nature of commerce as to admit hearsay evidence  see the case of Campoverdi mich the d of whether in a action upon a policy of  insurance there be another instance of dispense with the lawful oath where our  court admit evidence for the crown without oath it be a common natural  presumption that person of the gentoo religion shall be principal apprise of  fact and transaction in their own country there be a strong presumption of  necessity here than for admit a deed of year stand beside all this a  additional reason be that the party who enter into this contract presume that  if they shall be oblige to sue it will be in their own country and then they  must have be admit from hence it follow that if one of the party shall leave  this country and change his domicil the other will be deprive of his evidence  which will have be admit there and by that mean deprive of justice as the  English have only a factory in this country for it be in the empire of the  great mogul if we shall admit this evidence it will be agreeable to the genius  of the law of England the court of admiralty have do it Carth Beak v terell  with the last section a English ship be take by a French man of war under  colour of a Dutchman and carry into France and there condemned by their court  of admiralty as a Dutch prize afterward a English merchant buy this ship of  the French and convey her into England where the right owner bring a action of  trover for the ship against the purchaser and all this matter be find special  the defendant have judgement because the ship be legal condemned as Dutch  prize this court will give credit to the sentence of the court of admiralty in  France and take it to be accord to right and will not examine their proceed  for it will be very inconvenient if one kingdom shall by peculiar law correct  the judgement and proceed of the court of another kingdom atkins and if we do  not give this credence court abroad will not allow our deter mininations here  to be valid so in matrimonial case they be to be determine accord to the  ceremony of marriage in the country where it be solemnized suppose a heathen  not a alien enemy shall bring a action at commonlaw atkins er p and the  defendant shall bring a bill for a injunction will any body say that the  plaintiff at law shall not be admit to put in a answer accord to his own form  of a oath if otherwise the injunction must be perpetual and this will be a  manifest denial of justice as to the most material objection of the form in  indictment for perjury the word above sanctum God evangelium axe not at all  necessary the framer of indictment be apt to throw in word and to swell they  out too much to no purpose therefore the old precedent be the best and beside  as have be very just say this will prove too much for it will hold as well to  all deposition take abroad it have be say by the counsel for the defendant  that the special law in Spain for take those oath be of the nature of our act  of parliament to be otherwise Selden upon the law of I will not be positive  but I take it I Alphonso the wise king of Aragon say it be not a positive law  for the more but authenticate by he and transfer into his code of law and  original in the nature of what our commonlaw be more have their particular  oath which they ought to make in that manner this form of expression rather  show that he refer to some other law that prevail long before this fall in  exact with what Lord stair puffendorf c say that it have be the wisdom of all  nation to administer such oath as be agreeable to the notion of the person  take and do not at all affect the conscience of the person administer nor do  it in any respect adopt such religion it be not near so much a break in upon  the rule of law as admit a person to be a evidence in his own cause I will  just take notice of the case of the eastindia company and admiral matthews I  be counsel myself in the cause but do not at all remember send either to the  court of king bench or common plea for their opinion Mr Bunbury have state it  as a trial at bar before Lord chief baron Reynolds and therefore it can not be  do for there be no such thing as send one judge out of a court to the judge of  another upon a point of evidence as to the case before Lord chief justice Eyre  the person there will not be swear either upon the old or new testament and  therefore as he be not a Christian he will not admit he to be a witness but  upon the special circumstance of this case concur in opinion with my lord the  judge that the deposition of these witness ought to be read as evidence in  this cause and do therefore order that the objection be overrule and the  deposition read