tion as to whether he had mailed certain notices, answered, "that he had no doubt he mailed them, but could not say he precisely remembered the distinct fact." It was held that this was competent evidence to go to the jury, and that the degree of its reliability was a question for their consideration. So, also, it has been decided that the testimony of a witness who declares himself unable to answer questions put to him on cross-examination, on the ground that his memory at times fails him in consequence of mental injury resulting from sunstroke, and that such is his present condition, is not to be stricken out by the presiding judge, but may be submitted to the jury.1

But the testimony of a person eighty years of age was held insufficient, upon an issue in chancery as to the fairness of a conveyance, his memory being too impaired to recollect whether he made alleged payments, amounting to $1,300, in 1861, 1862, 1863, 1864, or 1865, or whether he got any of the money from the grantor, his son-in-law. 2

1 Lewis v. Eagle Ins. Co., 10 Gray (Mass.) 508.

2 McCutchen v. Pique, 4 Heisk. (Tenn.) 565.

CHAPTER II.

OF MORAL DISQUALIFICATIONS.

§ 11. Defect of Religious Belief.

§ 12. Ascertaining Competency with Reference to Religious Belief.

§ 13. Statutory Abolition of Incompetency upon this Ground.

§ 14. Common Law Rule as to Infamous Persons.

§ 15. What constitutes Infamy.

§ 16. How Infamy may be proved.

§ 19.

Removal of Incompetency by Pardon, Reversal of Judgment, or
Expiration of Sentence.

§ 20. Abolition of the Disability by Statute.

§ 21. Accomplices.

§ 11. Defect of Religious Belief. It being a rule of universal application that on all trials, civil or criminal, oral evidence must be given under the sanction of an oath (except in cases where, by statute, the substitution of a solemn affirmation is permitted), it naturally follows that one who, from defect of religious sentiment, is insensible to the obligation of an oath, ought not to be permitted, even if willing, to blasphemously invoke the name of a Supreme Being, in whose existence as "the rewarder of truth and avenger of falsehood," he does not believe.

1 Per Lord Hardwicke, 1 Atk. 48. "The law is wise in requiring the highest attainable sanction for the truth of testimony given; and is consistent in rejecting all witnesses in capable of feeling this sanction, or of receiving this test; whether this incapacity arises from the imbecility of their understanding, or from its perversity. It does not impute guilt or blame to either. If the witness is evidently intoxicated, he is not allowed to be sworn; because, for the time being, he is evidently incapable of feeling the force and obligation of an oath. The non compos, and the infant of tender age, are rejected for the

same reason, but without blame. The atheist is also rejected, because he, too, is incapable of realizing the obligation of an oath, in consequence of his unbelief. The law looks only to the fact of incapacity, not to the cause, or the manner of avowal. Whether it be calmly insinuated with the elegance of Gibbon, or roared forth in the disgusting blasphemies of Paine, still it is atheism; and to require the mere formality of an oath, from one who avowedly despises, or is incapable of feeling, its peculiar sanetion, would be but a mockery of justice." 1 Law Reporter, pp. 346, 347

Without such belief, one sanction, which the law regards as material security for truth, namely, the fear of Divine punishment invoked by the witness upon himself, is wanting. It does not suffice that a witness believes himself bound to speak the truth from a regard to character, or to the common interests of society, or from a fear of the punishment which the law inflicts upon persons guilty of perjury. Such motives have indeed their influence, but they are not considered as affording a sufficient safeguard for the strict observance of truth. Our law, in common with the law of the most civilized countries, requires the additional security afforded by the religious sanction implied by an oath, and, as a necessary consequence, rejects all witnesses who are incapable of giving this security.1

Accordingly, it has been held in many cases that atheists i.e., persons who do not believe in the existence of a God, nor in a future state of rewards and punishments, are not competent witnesses.2 The test is, does the witness believe in God, and that He will punish him if he swears falsely ?3 And the great weight of authority, in this country, now is, that it is immaterial whether the witness believes God's vengeance will overtake him before or after death.*

11 Phill. Ev. (10 ed.) 19; Com. v. Winnemore, 2 Brews. (Pa.) 378.

2 B. N. P. 292; Gilb. Ev. 129; 1 Stark. Ev. 22; 1 Atk. 40, 45; Wakefield v. Ross, 5 Mason (U. S.) 16; Curtiss v. Strong, 4 Day (Conn.) 51 (the case of a subscribing witness to a will); Atwood v. Welton, 7 Conn. 66; Central &c. R. R. Co. v. Rockafellow, 17 Ill. 541; Smith v. Coffin, 18 Me. 157; Thurston v. Whitney, 2 Cush. (Mass.) 104; Norton v. Ladd, 4 N. H. 444; Jackson v. Gridley, 18 Johns. (N. Y.) 98; People v. McGarren, 17 Wend. (N. Y.) 460; Scott v. Hooper, 14 Vt. 535; Arnold v. Arnold, 13 Id. 363.

3 Orchimund v. Barker, Willes, 545; Butts v. Swartwood, 2 Cow. (N. Y.) 431; People v. Matteson, Id. 433, 573 n.; Cubbison v. McCreary, 2 Watts & S. (Pa.) 262.

4 Noble v. People, 1 Ill. 29; Shaw v. Moore, 4 Jones (N. C.) L. 25; People v. Matteson, 2 Cow. (N. Y.) 432 n. (a);

Anonymous, Id. 572; Brock v. Milligan, 10 Ohio, 121; Blair v. Seaver, 26 Pa. St. 274; Jones v. Harris, 1 Strobh. (S. C.) 160; Bennett v. State, 1 Swan (Tenn.) 411; United States v. Kennedy, 3 McLean (U. S.) 175; Blocker v. Burness, 2 Ala. 354. The only cases found to the contrary are, Com. v. Bachelor, 4 Am. Jur. 81; Curtiss r. Strong, 4 Day (Conn.) 51; Atwood v. Welton, 7 Conn. 66; and Jackson v. Gridley, 18 Johns. (N. Y.) 98. In two of these, Curtis . Strong, and Jackson v. Gridley, the point was not involved, as, in the first case, the witness did not believe in the obligation of an oath, and in the second he was a confirmed atheist, devoid of any religious principles whatever. As to the rule in Tennessee, see State v. Doherty, 2 Tenn. 80; State v. Cooper, Id. 96. See also Easterday v. Kilborn, 1 Wright (Ohio) 345, 346, where a witness said he did not believe in the existence of a God, but added that he saw God in trees,

If the witness believes in a Deity, whether the God of the Christians, or of the Jews, or a Heathen idol, he will be competent, and if not a Christian, the oath will be administered to him according to the form in use in his own country, as we shall see hereafter. 1

§ 12. Ascertaining Competency with Reference to Religious Belief. The law, in its charity, presumes that every one offered as a witness in a court of justice, believes in the existence of a Supreme Being, and upon him who seeks to exclude a witness, upon the ground of defect of religious belief, devolves the burden of proving the witness to be an unbeliever. The party adducing the witness may remain passive until his antagonist offers evidence of incompetency, and when this is done, he may support his witness by evidence upholding the presumption.2

The condition of the witness's religious belief at the time of the trial is the question, and this is presumed to be the common faith of the country, until the contrary is shown. This may be done and the competency of the witness impeached by proof of his declarations to others made previously to the trial. But not, according to the weight of authority, by an examination of the witness himself; 4 still he will be permitted to explain his religious sentiments, if he desires so to do; and if he then declares that he believes in a future state of existence, and in a Supreme Being who will punish him either in this world or the next, for his evil deeds, the court will. permit him to be examined as a witness, leaving his credi

2 Id. 399; but such evidence should be confined to a time not long before the trial, Brock v. Milligan, 10 Ohio, 126; and it was held in Maine, that evidence that a witness had stated "that he had lost his devotion, that he intended now to serve the devil as long as he had served the Lord, and that he had a pack of cards which he carried about in his pocket, and called them his Bible," was not admissible to discredit the witness, not conflicting with any statement of his. Halley v. Webster, 21 Me. 461.

4 Com. v. Smith, 2 Gray (Mass.) 516; Com. v. Batchelder, Thach. (Mass.) Cr. 191.

bility to the jury. It has been held to be error, to require a witness, objected to for defect of religious belief, to be examined on his voir dire, when he proposes to resort to proof aliunde.2 And, on the other hand, after the witness's incompetency (on this ground) has been established by testimony, he cannot be sworn upon the voir dire, to restore his com