Reason, ftated to be the first ground of all laws, by the author of the book called Doctor and Student, general principles must determine the case; therefore the only queftion is, whether upon principles of reason, juftice and convenience, this witness ought to be admitted. Upon this occafion I fhall lay down two propofitions.

First, That by the practice of England, and of all the nations in the world that are Chriftians, perfons, though not of the Christian perfuafion, may be admitted as witneffes, and fworn according to their own form.

Secondly, That the case of a Pagan is within this reasoning, and authority.

Cafes of law depend upon occafions which give rife to them. Where the commerce and intercourfe is most frequently with the Pagans, the inftances to be sure will moft frequently arife.

After the Roman emperors were converts, Chriftians, as well as those who continued Pagans, fwore according to their fancy, without any particular form. Selden, tom. 2. f. 1467. "Mittimus

hic, principibusChriftianis, ut ex hiftoriis fatis obvius liquet, folennia "fuiffe et peculiaria juramenta, ut per vultum fanéti Luca, per pe"dem Chrifti, per fanctum hunc vel illum, ejufmodi alia nimis crebra; "Inolevit vero tandem, ut quemadmodum Pagani facris ac myfteriis "aliquo fuis aut tactis aut præfentibus jurari folebant, ita foleniora "Chriftianorum juramenta fierent, aut tactis facrofanétis evangeliis, "aut infpectis, aut in eorum præfentia manu ad pectus amota, fub"lata aut protenfa; atque is corporaliter feu perfonaliter juramen"tum præftari dictum eft, ut ab juramentis per epiftolam, aut in " fcriptis folummodo præftitis diftingueretur, inde in vulgi passim "ore." Upon my corporal oath.

So that by this paffage out of Selden it appears, the corporal part which prevails now all over Chriftendom, was taken from the Pagans, and by degrees under the Greek Roman emperors, it 'came to be established, that this ceremony fhould be used.

The opinion of the Greek Roman emperors, as to the oaths of perfons of other perfuafions, is mentioned by Selden, tom. 2. p. 1468. to be as follows: "Aliena autem perfuafionis homines per "id quod venerantur illi, et juxta modum quo venerantur, adjurari "confueverunt." And in p. 1469 Selden gives a long account of a particular ceremony in fwearing a few in courts of justice; and before the 18th of Edward the Firft, the perfon adminiftring an oath to a Jew, faid, If you don't speak the truth, veniant fuper caput tuum omnia peccata tua, & parentum tuorum, et omneş maledi&tiones quæ in lege Mofaicâ et prophetarum infcriptæ funt femper tecum maneant." To which he answer'd, Amen.

In Spain the Turks poffeffed the greatest part of the kingdom till the time of Ferdinand the Catholic; what did they then do, when Chriftians and Turks had controversy together? Why, according to Selden tom. 2. 1470. the form of the oath was in Spanish to fwear as he hoped to be faved by the contents of the alcoran, and fays he," Pœna autem Mauro perjuro inflicta eft, non minus quam Chriftiano, licet pro locorum et feculorum difcrimine difpar.”

Thus

Thus it ftands upon the authorities of Chriftian countries, where fuch queftions have arifen; but, as I faid before, the queftion did not arife here till after the restoration. Was it then determined that a perfon not a Chriftian should not be fworn? No! the first time it exifted, the court determined that he should be fworn according to his own principles.

No cafe of a Turk fworn upon the alcoran in England but that before the council, who were of opinion, greatly affifted and greatly attended, that he might be fworn upon the alcoran. Here is a material circumstance in this cafe, a court erected in Calcutta, by the authority of the crown of England, where Indians are sworn according to the most folemn part of their own religion.

All occafions do not arife at once; now a particular species of Indians appears; hereafter another fpecies of Indians may arife; a ftatute very seldom can take in all cafes, therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for this reafon fuperior to an act of parliament.

The oldeft books of all countries mention the folemnity of an oath, as a fecurity for a perfon's fpeaking the truth; they can do no more than lay him under the moft facred and binding obligations; they all call it appealing to God for the truth, and deprecating his vengeance as they speak truth.

There is not a book upon the general law of nature and nations, but admits that Chriftians may allow perfons to fwear per Dominum et per falfos deos. It is fo laid down in the Decretals, in Grotius, and Puffendorf, who in his 4th book, 4th sect. and 122d page, faith, That part of the form in oaths under "which God is invoked as a witnefs, or as an avenger, is to be "accommodated to the religious perfuafion which the swearer "entertains of God; it being vain and infignificant to compel

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a man to fwear by a God whom he doth not believe, and "therefore doth not reverence; and no one thinks himself "bound to the Divine Majefty in any other words, or under any other titles, than what are agreeable to the doctrines of "his own religion, which in his judgment is the only true way "of worship: And hence likewife it is, that he who fwears by "falfe gods, yet fuch as were by him accounted true, ftands obliged, and if he deceives, is really guilty of perjury, be"caufe, whatever his peculiar notions are, he certainly had "fome fenfe of the Deity before his eyes, and therefore, by wilfully forfwearing himself, he violated, as far as he was able, "that awe and reverence he owed to Almighty God; yet when a perfon, requiring an oath from another, accepts it under a "form agreeable to that worship which the fwearer holds true, "and he himself holds for falfe, he cannot in the least be said "hereby to approve of that worship."

The oath must be always understood according to the belief of the person who takes it; not only Chriftian writers now, but before Christianity, the world was divided into a vast variety of opinions, and yet every man was admitted to speak according to his own belief, “Dig, lib. 12. t. 2. f. 5. Omni enim omninɔ

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"licitum jusjurandum, per quod quis fibi jurari, idoneum eft, et fi ex eo fuerit juratum, prætori id tuebitur: Divus pius jurejurando, quod propria fuperftitione juratum eft, ftandum refcripfit, dato jurejurando, non aliud quæritur, quam an juratum fit: remiffa "quæftione, an debeatur, quafi fatis probatum fit jurejurando. Lord Stairs's Institute 694.

I do not find any authority has been produced from any other country, that fuch oath ought not to be admitted: The reafon, why ld. ch. juf. Eyre would not fuffer the Indian a worshipper of the fun to be fworn upon the evangelifts was, because he did not believe in Christianity; but if he cannot be fworn at all, ma-nifeft injuftice, and manifeft inconvenience muft follow.

Heathens bought the goods, heathens fent them, heathens knew the price, heathens kept the account. Would it do honour then to the Chriftian religion, to say, that you cannot swear according to our oath, and therefore you fhall not be fworn at all? What must the heathen courts think of our proceedings? Will it not deftroy all faith and confidence between the contracting parties? Is the cafe of the Turk or Jew swearing according to their religion, different from the Indians fwearing according to his? The objection is stronger against the Turk, becaufe he fwears upon the alcoran, which we think an impofture; but the Indians here fwear by one fupreme God, without appealing to any particular book or authority in their religion.

It is faid a heathen is not to be believed.

Is it not known that all the heathens believe in a God? I will refer them to Tully in his Tufculan difputations, lib. 1. f. 13. " Porro firmiffimum hoc afferri videtur, cur Deos effe credamus, quod nulla gens tam fera, nemo omnium tam fit immanis, cu"jus mentem non imbuerit deorum opinio. No country can subfift a twelvemonth where an oath is not thought binding, for the want of it must neceffarily diffolve fociety.

2dly, It is objected, that fuppofing they may be admitted as witneffes, yet under the fanction of the oath thus certified, they ought not to be admitted, for that the form is ridiculous, and their notions of religion not certified by the commiffioners.

But the oath they have taken fhews it; for the commiffioners have certified that they have fworn by one God, and alfo proves that they think themselves under the tye of an oath.

Look into books of travels, and you will find that heathens, efpecially Gentous, believe in one God the Creator of the world, though they may have fubordinate deities, as the papists who worship faints. Relig. Cerem. vol. 3. 380, 381, 398.

No doubt but they all have a notion of a God, according to Tully: But to use a greater authority than Tully, "They are a "law unto themfelves, which fhew the work of the law written "in their hearts, their confciences alfo bearing witness, and their "thoughts the mean while accufing or elfe excufing one ano"ther. St Paul's epiftle to the Romans, 2 ch. 14th & 15th verses.

The corporal ceremony is a mere matter of form, and not of the effence of an oath: Du Frefne's gloffary fays, that monks fwore

fwore by kiffing the feet of the abbot, nay the abbots (wore by their word only, from whence the expreffion in verbum facerdotis; and I cite this to fhew, that as it has varied fo much, it is all form.

Lord ch. juft. Lee defired he would answer the objection as to the form of indictments of perjury upon the holy evangelists which are neceffary words.

Mr. Solicitor General. There is no inftance of a Jew's being indicted for perjury.

Lord ch. juft. Lee. I have tried a Jew myself upon an indictment of perjury.

Mr. Solicitor General infifted, That the indictment would not be wrong against a Jew, if it was tacto libro legis Mofaica. No precedents but what are of indictments against Christians for perjury before the restoration; and fince that time it is incumbent on the other fide to fhew, that it has been held to be ill, when the indictment against a Jew fays, that he was fworn on the Pentateuch,

Mr. Clarke of the fame fide.

That religion ex vi termini means the belief of the existence of the Deity.

To fhew further the neceffity of admitting this evidence even with regard to intercourfes between Chriftian countries themfelves, vid. Voet's Commentary on the Pandect. 602. Sine evangelii tatu, &c. If this oath cannot be adminiftred, because not upon the evangelifts, the fame objection will hold as to a Dutchman, who does not swear as we do on the New Teftament.

As to the opinions of the commentators on the civil law, vide facumb. 4 fec. c. 4. t. 2. Mefingius 6 Cent. Obf. 20. p. 301.

There was a time when fwearing on the holy evangelifts was not the practice here; for when St. Auftin introduced the Christian religion, the inhabitants were tenacious of their own cuftoms, and therefore he indulged them.

There were not above twelve Jews in the kingdom before the restoration. And they deputed one of the principal perfons amongst them, in Oliver Cromwell's time, to come over hither, in order to find out, Whether Oliver was the Meffiah or not?

In Maddox's history of the exchequer, in his chapter relating to the Jews, p. 166, 167, & 174; there are the following paffages, "Benedictus frater Aaronis Judæi Lincolnia debet xx mar"cas, pro habenda juratione fecundum confuetudinem Judæorum, ad "convincendum fi Ürfellus Judæuş Lincolniæ fit falfonarius, tali vi"delicet juratione quali alii Judæi falfonarii convinci folebant. Mag. Rot. 5. Joh. Rot, 9. a. Linc.

"Judai Anglia debent centum libras, ut Judai retentores,. la"trones, et eorum receptatores, per inquifitionem factam per facra "mentum legalium Chriftianorum vel Judæorum, vel alio modo de “ prædicta malicia convicti, a regno ejiciantur irredituri; ficut con"tinetur in originali." Mag. Rot. 22 H. 3. Londonia & Midd.

Si Judæus ab aliquo appellatus fuerit fine tefte, de illo appellatu erit quietus folo facramento fuo fuper librum fuum; et de appellatu illarum rerum quæ ad coronam noftram pertinent, fimiliter quietus erit folo facramento fuo fuper rotulum fuum. Rot. Cart. 2 Joh. N. 49. Titulo Carta Judæorum Angliæ.

Ld. Coke in the 7th rept. Calvin's cafe 17, faith," All infi"dels are in law perpetui inimici; for between them, as with the "devils, whofe fubjects they be, and the Chriftian, there is per66 petual hoftility, &c." But he meant perpetual enemies in a fpiritual fenfe, and quotes a paffage in fcripture to that purpose. What concord hath Chrift with Belial? or what part hath he that believeth with an infidel? 2 Cor. vi. 15.

As to the objection that Ld. Coke fays, no oath can be altered but by act of parliament, it relates to fome particular officers of the crown. And as to the civil confequence of punishment for perjury, Ld. Coke, in his third inft. 164 on perjury, fays, that with refpect to a person's being charged with a breach of oath, the question is, Whether it was lawfully adminiftred?

Then if the oath adminiftred here is agreeable to the genius. of the laws of England, will they not be liable to punishment for a breach of it; for I would fubmit it, Whether the crime may not be stated specially, and recite the ceremony of the witnefs's taking the oath, provided it cannot be laid in the usual common form?

Mr. Chute's reply, who was the leading counsel for the defendant Barker. Nov. 12, 1744.

As to the reasons urged from neceffity, and inforced from what the law does in fimilar cafes, it is not put in iifue, nor proved that there is a neceffity for having thefe witneffes. It is not faid by the counsel for the plaintiff, that there is no other way of carrying on business in the East Indies, without those perfons, nor is it even pretended in the bill itself; if there is no fuch neceffity, the argument from thence can have no weight in this cafe; and I hope this is anfwer to what has been called neceffity and a failure of juftice, if these witnesses fhould not be admitted.

The act of 2 Geo. 2. c. 21. in the cafe of murder, where the ftroke was at sea, and death at land, or vice verfâ, is to take effect only in futuro; so that if a murder of this fort had been committed by a perfon before, here was certainly a failure of juftice; and yet the legislature would not by a law, ex poft facto, include fuch perfon in this act.

I fay this with regard only to the particularity of the perfons concerned as witne fles. As to the principal queftion, it is endeavoured to be fupported by the other fide, by principles of reafon, by authority of feripture, and by rules of the civil law.

The cafes from fcripture are not fimilar, and arguments a pari. To fay it is natural to have a religion, and to believe a God, I think fo in fome measure; but yet it is otherwise in experience, Pfalm 115. ver. 4th and 8th. "Their idols are filver and

gold,