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Subject Area: Law
Topic: The American Revolution and Constitution

§ 67.: Religious discrimination in respect to admissibility of testimony.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 67.

Religious discrimination in respect to admissibility of testimony.—

According to the English common law, no one was a competent witness who did not believe in the existence of God, and of a state of rewards and punishments hereafter. This rule has been recognized and enforced to its fullest extent in the earlier cases,1 and it was almost universally required by the courts of this country, that the witness, in order to be competent, should believe in a superintending Providence, who can and would punish perjury.2 The reason for the rule was declared to be, that without such belief an oath could not be made binding upon the conscience, and such a person’s testimony was therefore unworthy of belief. The growth of public opinion towards the complete recognition of religious liberty is exerting its influence upon this rule, and in many of the State constitutions there are provisions which abolish this and every other religious qualification of witnesses.3 Mr. Cooley says, “wherever the common law remains unchanged, it must, we suppose, be held no violation of religious liberty to recognize and enforce its distinction.” But it would appear to us that the enforcement of such a law would violate the constitutional guaranty of religious liberty, and hence the enactment of this constitutional provision was an implied repeal of the common-law requirement.4

[1]See Atwood v. Welton, 7 Conn. 66.

[2]See Arnold v. Arnold, 13 Vt. 362; Hunscom v. Hunscom, 15 Mass. 184; Butts v. Swartwood, 2 Cow. 431; Cubbison v. McCreery, 7 Watts & S. 262; Jones v. Harris, 1 Strobh. 160; Blocker v. Burness, 2 Ala. 354; Brock v. Milligan, 10 Ohio, 121; Central R. R. Co. v. Rockafellow, 17 Ill. 541.

[3]Such a provision is to be found in Arkansas, California, Florida, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, Nevada, New York, Ohio, Oregon, Wisconsin.

[4]See Perry’s Case, 3 Gratt. 632.