Wabash Herald, Volume 1, Number 36, Rockville, Parke County, 17 December 1831 — Page 2

iTo; the Editor of the Bloomingtos Whig. Important Law Case Sir, a, question of the highest importar.ee having been brought be fore Hire court, at the present October term of the Monroo Circuit Court; and the

tourt having been called upon to ex press an opinion, the doing of which has caused considerable -warmth m th ritizrns. and a desire m vthcrs that the opinion should be made public through the medium of the press; I bow furnish you with it, in as perfect 11 cnrt-n n" promising that I do not lurmsh it, thro LtirW t Potism.but to sratify some who are opposed to llie principle ex pressed in the opinion. The Estate ot Indiana. Indictment for m -t t Nathan MTrac ken, i i orgenu J . The Jury being elected and sworn, E. M. Huntington, Esq. Circuit Prosecutor introduced hhu uctu 5"--Bowland, and other; afterwards Gen. Howard, counsel for the prisoner objected to thc corr.peter.cy of said Bowland. . aud he was pcimittcd by the. Court to irteregate the said witness. (See PlackfordsRep. 71, to the three following points i. e. 1st. "Do you believe in the existence of a God T 2d. "Do you believe in a future state of rewards and punishments!" ?d. Do veu believe that there is a God who ."will punish perjury! To which the witness replied "that there might be a God, or might not be; that there might, or might not be a future state ot rewards and punishments; tn as to hinself he had no settled opinion or belief on those subjects. That per iurv should, and would be punished. The Prosecutor then as'-ed the witness whether he believed in the obligations of aD oath;' to which he replied in tbs affirmative. The court tin n asked the witness -hor.i what source or ? ri.ncinrC ttat obligation arose: from the ""-V;H antique? of the country. One ot tne J dry bcir.g taken ill, he was discharged .by the Court, and another Juror substituted; and some douhts being entertained by the court, as to the rejection Gf Rowland's testimony ainl proposit g to the parties to admit the witness and resume the point upon a motion for a pew trial; it was agreed that the Jury should be discharged, and the investigation of the cause refumed on the ... . . next day, whicti was accordingly dorie. On the next day the cause again came on for trial, and after the Jury were regularly empannellcd, the prosecutor - again offered the said John Bowland and other witnesses, when he Bowland was again objected to by the defenderst's counsel, on the ground of bis incompetency and it being agreed that the witness stood before the court upon the same questions, and recpone. a -5 on the previous trial, the court J udgo jjiiikirk dissenting gave the following opinion. .The U"stion now brought here the court is cre of the first importance, not :c? 'H-CTS r.i h. i dr-t!tand the -so of the witness but like-.seisti-thereof the state. And however j;-. 5 rotable, if may be for this court t decide the question, considering the respectable society, yet they are imperatively called U;)OU tO discharge a sacred duty. which thev must do fearless of consequerces. Two principal points arc jn;:d in the cas. . 1st. As to the exclusion by he principles of the common law and Cnd. As to the exciusioe up-n coiistituiioral ground?. And as to the first, the commsn law and those sta tues ot England in aGirmance thereof which are adopted as the law of our land (see Rev. laws, IS31, p 330) and hv reference :o Archibald's Grim. PI. p. m, 2 Esq. N. P. 395-1 Phil. Lv. IS in note u. and authorities there cited 18 Johns Rep. 51. Thus we discover that by the decision of the English and mi rican cases Lo-jvland is an incompetent witness. But serondlv as to the constitutional grounds it is contended by the Prosecuting Attorney that under the 3d Sec. of the 1st Art. of the Cor?itutiou ot Indiana, which provides thvl io human authority can &c. conts-c! or interfere with the rights of o nsciei.ee'"no religious test shall I a required as a qualification to any otVce of honor, trustor profit''' and thr.t ij reject the witnt-sfr in the present c.-e, would be in direct violation of ?',is provision in cur constitution, But when we take in connection with it the 1st sec. of the Hth Article of the Mrr.fi instrument which pn.vides that "every officer Concerned in the government or its administration shall take an cath' and by the 4th ser. of the ,ame Article, it was provided that 8Uch oath shall be under the sanction: of a Solemn appeal to God,' and when w, atvert lo tlft CU - : -cubed by the statue for nrtlvi a'es see ne rr. f ? whi whsc-M i an nppral to "Almigh-ZV- ' t M.Mcosnn-htbe .-p: rr ' 'o m nr S'.raues) we have an ni.J .evi Jer-f of the understand- ' . . to

ing and opinion of our legislators upon; the subiects of "Oaths.'' It is prepos-

terous, even sheer nonsense ana tursicai in the extreme, to appeal to a being in whom we do not believe. It "fcucti he not the triici Lonshlutwnal and Jjegat stale of the oueslion, what ties do tiiere exist to bind society together! The prosecutor, a high minded and honorable man. tells us honor!!'. " A poor assurance indeed ! for what one man from birth, fortune, education and, other fortuitous circumstances would, conceive honorable and be thereby bound to society, another less noble miuded and fortunate would conceive dishonorable and act accordingly: with the Poet we might well say "What is honor but a name A charm that lulls to sleep." The 'right of conscience' and "no re ligious test"" is adverted to and strongly relied upon in the prcseat case, we re ply, that the 'right of conscience' is not pretended to be contrcled we say en joy your opinion and belief, (whether taptist or other sect or, no sect to all.) but we exclude you. as we do the color ed man, (Indian Mulaltoe or Negro, from holding ofhees or giving evidence. Hut the Olive branch is holdcn out: sarifice yeur obstinacy and unhelicfUV submit to our Lonstitution a'dd laws, & you shall receive a plenary participation in their benefits. But our Constitution and Legisla tivc law or dcc;sons, in other states, has put this question to rest. And we are not called upon, and if so, we cannot change the plain letter and direct meaning tf our Constitutional and statutes. The court are therefore of opinioi: that the witness is incompetent. To this opinion of the court the Prosecuting Attorney excepted. Had the subject ended here, particular?? as regarded anything further in ! the Circuit Court, it would have been v fv r the honor a?id credit of those pci-.-unally rot pio'essionally opposed ;o this opinion of the court. But on he. morning of the 15 h, (two days after the decision.) Three effigies were Uispeneted before tae Court-house door, re judge asGen. I lowsociate iudmondson an ard, an -honorable and hsgh minded i t;e one who Ar. Bowland ocach. When member of the T-ar, -. raised the objection U w Uh opprobrious label? the Cotu t ope-ied in presence of the Grand Jury, the riiT '.-as direc ted to have Lie ehigies removed and the President Judge rose and addressed the Jury tJ t-ie following purport "i rise gc-ntlemen to vi idicate the tnsair?d laws t.e dignity of this court and l.hc impartial and untrammelled administration of Justice. If I had been personally attacked I should have passed it over with silent contempt, for i thank that God whom 1 acknowledge and reverence,, that I have si;hcicnt forbearance ;:!:d philosophy to' have .-. t.-. An vtnrc -n by birth education atac.hufu's, I appreciate the freedom of opiniou and speech and conduct but I abhor licentiousness. If 'courts of justice are to decide up on the lay through the fear of oeingj carricaured cr hung in Efligy, any inDuential Merchant or capitalist may enlist the rabble and dregs of society, and thereby sulneit our dear &, blood bought irsiitutions. 1 ie (-a greeable -exhibition, and tl ? cOneen ed in their erection, before their Court ho-.ise door, mav be equalled by a Robespiere, or a Canton, or bv one of the Jewish Rebellion; but not surpassed in our civilized, enlightened and free States. - It is the duty of Grand Juries to enquire into offences, and thereby preserve the public peace, and tranquility in society, else why so many indictments for crimes and offences. Why your criminal Docket so crowded.--Why almost the whole week occupied in their trial ? The subject is with you and the Pro?rrviVg Attorney. It is an important oi- vfhatcvci this Grand Jurv or ibis rertt:;i'itv :nav think of JU G. W. JOHNSTON, President Judge 7i District. Bloomington, Oct. 15, 1831. The followin-r remarks of the Editor of the Political Clarion, in relation to the above decision, we have thought proper to lav before our readers, believing- lb em to nrnffl'd from an impartial investigation of the subject; and as nearly correct as any comrnenta upon the subject, which have fdlen under our eye. The decision of Judga Johnston, has caused c Hjaideraule excitement in Rom" parts of the state, part icular, ly in Monroe County, and in fact, is becominjlquite general, for Svhich we have thought proper 1 1 present it to our readers It is the first time tbe case has bfci adverted to ihour papet, and may p obably be t ie last we will merely add that the time consumed in an attentive perusal would bp. "well t pent. Ed. Herald. J REMARKS. There are very few, and probably

no 'points' which are cognizable- by either: the Judiciary - or Legislature of our Gountry,upon which the American people are more sensitive than those which, bear upon Religion and Con

science.' 1 o tins sensitiveness on the part of our Fathers may be attributed more than to any other cause, the settlement of this4 Continent at the time and amidst the disheartening circumstances ia which it was settled. Would V illiam Pcnn and his humble follow ers, ever have founded the "City of brotherly love" and Colonized the stato which bears his venerable name, had the tenets of Quakers been tolerated in he Mother Country I Would our Puritan Fathers ever have landed upon the Rock of Plymouth & endure the privations and calamities which were attendant upon chc settlement of New England had not the fires of persecution been lighted around them had not "bonds and atllictions" awaited them, on the oth er side of the Atlantic, because of Oncir conscientious professions? in the figurative language of the elder Dr. S taughlon, "the ' Almighty sifted the whole World for the precious Wheat with which he planted North America.' The striking peculiarity of this " Wheat" was an unconquerable attachment to civil and religious freedom. This attachment has "grown with our growth and strengthened with our strength." It grew and became strong enough to break the cords which hound the Colonies to Britain. It became so attracting and powerful as to constitute the great Pole Star which ruided the Council that framed the Constitution of the General Government the Council that framed the "eu-litutionof the several states. From the article of Judge Johnston, it appears that his decision was the ca-ue of considerable excitement in Monroe Coonty; and we understand that the excitement has reached other counties, ud may, very probably, per vade the State betore the question is put to rest. The press has already taken the subject up. and we do not es teem it very likelj tt-.at it will be put down until it as settled oy the bupreme Court or the Legislature. The iSaleni Annolator, of the 2d inst. has descanted upon the subject somewhat somewhat leugthily,"and as we think, in the main, very intemperately, though we heartily arccrd with the writer in many of iiis positions. But if the sentiments a:id feelings of the Judge horde" en the extreme -we cannot but regard those o.' the Annotator quite as far or farther-upon the other. What J he Christian w orld deem 'orthodoxy,' whether right or wrong, involves mat ters of toq-erious an import to be properly trcafed w ith sneers and dark insinuations. We would go as far as the favtherest to prevent an amalgamation of "Church and State"' but we regaid it as a matter of extreme doubt "that Oaths at the pre:-ciA day, are rather. an injur) than a neneht to society. It is verv certain that Religion does not need the aid of civil Government to sustain it; but we would not take it u n i urself to say that civil Govcrnrint could be sustained by a people r gardlessof the restraints of Religion. The world has never witnessed an instance of it, and it is believed that the constitution of Man will never admit of an instance. The Inlidel may talk of his never being swayed by the inlibences of Religion but he grossly deceives himself, until he can show that as a social being, his deportment and habitudes of life are free from the infiuencies of his fellows. As a general thing, wc arc decidedly averse to the editorial corps taking it upon themselves to determine what is, or what is not, LAW. The Constitutions of all civilized People, have as signed that as the prerogative of ano ther, a distinct department a department, the members of which, in the language of one of the illustrious Fathers of the Law.should consider themselves as students until they have pass ed through the intense drudgery of 'twenty years of lucubrations. Hence it is haVdly to be supposed that Editors, as a body, have qualified themselves for expounding that intricate Science whose 'habitation is the bosom of God. whose voice is the harmony of worlds.' And should they assume to themselves this duty, to say the least, there is extreme danger of consequences the most deleterious. They have to do particularly with the multitude, the great body of the people a body that every scnsible man will acknowledge to beentirelv incompetent to adjust abstruse questions of Law a body which however well-moaning, is proverbially susceplibh; of sudden ebullitions, & bursts of frenzied excitement, when the plainest dictates of judgment and common sense are tr.mplcd under foot. Rut when questions occur similar to the one under consideration, questions of a popular nature, and in which arc involved rights which Americans have esteemed as sacred above ull others, from the time that "pilgrim bark" landed upon our Continentwhen such questions.

we sav arise, the .Press' should liiVUV

voice land coolly, temperately and dispassionately inform the Public Mind. But wc know of nothing more culpable than cllorls to inflame the "feelings of the community on such a subject. For as we. said before whenever this point is approached, the passions of our fellow citizens arc generally wro't to the topmost degree of high-pressure but. little more is wanting for a general explosion but hurl the fire-brand, and instantly the whole civil' fabric is weltering in a sheet of iJamci but inadvertently drop the gauntlet and "swords are out," the 'doss of War let looscT Entertaining such sentiments, and having bestowed some investigation &: retlection, upon the question, we do not deem it presumplious or inappropriate to present to our readers the light in which wc regard it: In the first place, we hold that the decision of the Judge was not applicable to the question before him. In the second place, had the question been clearly proper for the kind of decision given we hold that in the United States at least, Law and expediency, call for a contrary sort of decision. And linally that some of the incidental positions of the Judge arc neither tenable nor courteous: It may be observed that the objection to the counsel for the prisoner, was not made in its natural course. It should have been made before instead of after the witness was sworn; because in objecting on the ground of infidelity he assumes that the witness it incapable of being bound by an oath. SeeStarkic on Evidence, Part 2, Sec. IG. First, then the Judge has decided a question which did not come before him. He takes up the witness as having said that he docs not believe in the existence of a God and a future state of rewards and punishments. But such is not the declaration of the w itness according to the showing of the Judge himself, any more than the reverse. And we arc unable to derive it by implication. What does the witness say? He says "that as lo himself, he had no fctllea opinion or belief on these subjects." This being the case, it is as proper to say that he believes as that he disbelieves. To call the case by the worst name, we can say no more tian that the witness is sceptical. But what reason does the common Law assign for excluding the testimony of an infidel? Because he is supposed to be freed from that obliga tion which arises from the sanctity of an appeal to God, and the dread which arises from future punishment. See Chitty's Criminal Law, Vol. 1st, page oil. And it cannot be supposed that a person this side of confirmed infidelity would be regardless of the sanctity of this aw ful appeal. Tire rule is, according to Starkie Part 4, page 393 4iThc want of religious belief, sv.ch as renders the party incapable of the obligation of an cath." Now it must be conceded that a party will recognize some obligation until he is confirmed in infidelity. There, is a vast difference between an " unsettled'" and confirmed state. It may be said that when the Court questioned the witness as to the source whence he deemed the obligation of an Oath arose, he replied "from the civil authorities of the Country." But it cannot be inferred from this that the witness intended to convey the idea, that the only obligation which he recognized, was the civil penalty of Perjury. The Court did not ask him whether this was the only ob ligation, until he can say Hint he is a ''settled' Atheist "settled" in the belief thtt there is ho punishment awaiting the perjured in the other world Hence it clearly appears, that "Upon the strict principles of the old Common Law, the witness was competent, and that all which could be objected to him as to the degree of his religious obligation, is matter of fact belonging exclusively to the Jury on the score of credibility: But granting that this witness was a confirmed infidel, so long as he expressed himself before the world as it appears from the record that he did before the courtit may bo shown from English decisions that he could not be made out, an incompetent witness: Mr. Christian says: See note 30, page 3G9, book 3, Black. Com. ',kI have since heard a learned Judge declare at Nisi Prius, that the Judges had resolved not to permit adult witnesses to be interrogated respecting their belief of a Deity and a futur statct It is probably more conducive to the course of justice, that this should be presumed until the contrary be proved." From what has been said it appears that the witness in question could never be proved a unbe liever.' Consequently so far as belief or unbelief is concerned, his competency would be above objection. If we arc correct, the Supreme Court, though they should regard the decision of Judge Johnston, Law, will nevertheless say that the witness was admissible, and tUe Law inapplicable to his case. ' ' - -. '

-Second: Iri questions of the kin J

.v uuiu iiiai.il touirary sort ot decision-.should be given. We are awarc that the old Common Law js considered a? settled ngainst our position, and that the greater number of decisions, particularly in England are!i!.Cwise against us. But still we do not regard the question as settled, at the present day: moio especially-in the United States. Oar limits prevent u from sustaining our position in detail to the extent desirable. But a few suggestions and facts may be presented: The Common Law wnVcslablisued, ittins particular, several centurion r. at a time when religious bigotrv, fanat icism and i epish infallibility, domineered over every thinir civil', rrlmin,,, and military throughout the European world. It should be remembered alsa that wc have derived the Common Lav. Irom a Government w here Church n-.,! State are united and mutunllv sustain each other. Hence it is rational to suppose that on no points would Lawbe more likely to be warped and pervvncu iu..tiiuii inose wnicu involve religious questions. In fact, the who' -history of England is a demonstration that such perversion of I 1V line pmii)( . ed from ecclesiastical influence. The Common Law only accords with our civil institutions when it is purged from or adulterated by this influence. But society is progressing, the World is becoming freed and more liberal minded, aim voernmenc and j,aw must conform. Chancellor Kent observes in the iirst Vol. of his Commentaries en American Law, page 415: 'Considering the influence of manners upon Law ar.d the force of opinion, silently and almost insensil- ly controlling the course of business and the practice of the courts, it is impossible that the fabric of our jurisprudence should not exhibit deep traces of the progress of society, as well as of the foolstrps of time"--Hence even in England the rigid rules of the old Common Law have been greatly meliorated. Lord Mansfield says, 1 T. R. 200: 'The old cases upon the comnctrnrc nf Tvifnncins V.or,v gone upon very subtle grounds. But f late years the courts have, rndvr.ed as far as possible, consistent with thoritics, to let the objection go to thecredit rather than to the competency of a witness. fcir V H.iam Blackstone wrote his Commentaries on the Laws of England in the latter part of the last Centurv.and if wc have exnminnd j correctly, he says nothing about the incompetency of a witness becausf of .. J I i J fidelity in any part o.f that excellent worK. ins rule is troa and liberal. It runs thus, Book 3, page 369. Killwitnesses of whatever religion or country, that have the use of their reason ar& to be rec"ivcd and examined, exceptsuch as are infamous, or such as are interested in the event of the cause. All others are comnetrnt: thmirh tho. j jry from other circumstances WilTiud ere oi ineir crcaioiuly. And nnce this rule was laid down, Mr. Christian sa; s as above auoted. 'that ihe. Jndws hr? K ' O resolved not to permit adult witnesses iu ui; lujjdKU icspucuilg IMGir DC--, lief of a Deity and a future state.' The Common Law being so far meliorated by the modern English Judges we are of the opinion that it would not have been an unjustifiable stretch, of power to admit an unbelieving witness upon his credibility, even in England ; a fortiori, it would not in the United Stales. The Books are fa" f t m showing that this question has been decided otherwise in such a multiplicity of cases as to irrefrag ibly establish the law, forever. We would not be understood as esteeming judicial decisions lightly. Wc entertain for them a very great reverence. Precedents' should be duly regarded: if they are not, the land marks of civilized society are unsettled ; and consequently the security of life, liberty and property are greatly jeopardized. In the language of Sir W. Jones: 'No man who is not a lawyer would ever know how to act; and no man who is a lawvnr wnnlrL in mnnir j - j instances, know what to advise.' But Judges are not infallible, nnd however wise they may be, circumstances, dilacult to be controlled, will sometimes warn their decisions. And were not this the case, as we have shown above, snriptv is nmo-rfsinrr bpnee it is im"""v " i'-o- ti --, possible for the laws to be always bai r :. suu siijnr unufjwis wucu u is rornllnclcd that morn than nnr tliniLtnnrt. cases may be pointed out in the Engusn ana mencan jdooks oi lvepons, which have been over-ruled, doubted or limited in their application, it will bo ar.knowledfrr.fi that linwrvrr much the doctrine of sfFrc decisis should and must be generally received, it is too ho ly to be sometimes violated. Thus it is that Chancellor Kent very appropriately observes: "The ancient reporters arc going very fast not only out of use, collection. The modern report's, and the latest of the modern, are tne most useful, because they contain the'Ja?:, C0NTIMTK OS T1UHU iAB3