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Testimonial Exclusions and Religious Freedom in Early America

  • Jud Campbell
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1. Patrick, John C., ed., The Writings of George Washington: From the Original Manuscript Sources, 1745–1799, 39 vols. (Washington, DC: Government Printing Office, 1931–44), 35:229.

2. Ibid. Many of the virtues discussed in Washington's letter, including religion, were contrasts to events unfolding in France.

3. Blackstone, William, Commentaries on the Laws of England, 4 vols. (Oxford: Clarendon Press, 1765–69), 4:44.

4. Perry v. Commonwealth, 44 Va. (3 Gratt.) 645, 646 (1846).

5. Shaw v. Moore, 49 N.C. (4 Jones) 25, 31 (1856).

6. Fisher, George, “The Jury's Rise as Lie Detector,” Yale Law Journal 107 (1997): 661.

7. Langbein, John H., Lerner, Renée Lettow, and Smith, Bruce P., History of the Common Law: The Development of the Anglo-American Legal Tradition (New York: Aspen Publishers, 2009), 453.

8. See, for example, notes 9 and 107.

9. For a concise summary of the doctrinal shift, see Green, Steven K., The Second Disestablishment: Church and State in Nineteenth-Century America (Oxford: Oxford University Press, 2010), 178–82, 214–18. Green, however, does not provide evidence to defend his statement that “the effect of the traditional rule requiring a belief in God and in future punishment had been to exclude many Universalists, Catholics, Jews, adherents of other faiths, and skeptics from testifying in court or entering into legal or commercial arrangements requiring an oath.” Ibid., 214. The “traditional rule,” as will be discussed, was formulated in the eighteenth century to allow testimony from Jewish and other non-Protestant witnesses. See Part I.A.

10. Formisano, Ronald P. and Pickering, Stephen, “The Christian Nation Debate and Witness Competency,” Journal of the Early Republic 29 (2009): 229. Christopher Grasso nicely captures parts of this shift in a brief comparison of an 1803 case with an 1836 journal article. See Grasso, Christopher, “The Boundaries of Toleration and Tolerance: Religious Infidelity in the Early American Republic,” in The First Prejudice: Religious Tolerance and Intolerance in Early America, ed. Beneke, Chris and S., Christopher Grenda (Philadelphia: University of Pennsylvania Press, 2011), 286, 292–95.

11. Formisano and Pickering, “The Christian Nation Debate,” 229. See also ibid., 232 (“Religious tests for witnesses, though diminishing in frequency, persisted well through the nineteenth century”). Older contributions to the literature are almost purely doctrinal and descriptive, making little effort to explain how and why competency rules evolved. See, for example, White, Thomas Raeburn, “Oaths in Judicial Proceedings and Their Effect upon the Competency of Witnesses,” American Law Register 51 (1903): 373446.

12. Indeed, their principal question—whether the United States was a “Christian nation”—is quite distinct from my inquiry. Similarly, a Connecticut case study focuses mostly on questions of disestablishment. See Weisbroad, Carol, “On Evidences and Intentions: ‘The More Proof, the More Doubt,’Connecticut Law Review 18 (1986): 803.

13. The few exceptions do not delve into religion-based competency cases. See, for example, Lerner, Renée Lettow, “The Transformation of the American Civil Trial: The Silent Judge,” William and Mary Law Review 42 (2000): 195264; and Witt, John Fabian, “Making the Fifth: The Constitutionalization of American Self-Incrimination Doctrine, 1791–1903,” Texas Law Review 77 (1999): 825922. Witt briefly discusses religion-based rules.

14. Fisher, “The Jury's Rise as Lie Detector,” 585–90. Trials by ordeal ended rather quickly after the decree of the Fourth Lateran Council in 1215. Ibid., 585–86; and Whitman, James Q., The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (New Haven, CT: Yale University Press, 2008), 126. Juries have existed since at least the twelfth century, but they initially decided only whether individuals should face an ordeal. Whitman, Origins of Reasonable Doubt, 133–38.

15. The prevalence of witness testimony in the thirteenth century is unclear. See Fisher, “The Jury's Rise as Lie Detector,” 594 n.51. Fisher points out that criminal juries did not necessarily mimic civil juries, “which almost certainly were self-informing.” Ibid., 593.

16. The general rule against party testimony was subject to some exceptions. See, for example, Swift, Zephaniah, A System of the Laws of the State of Connecticut, 2 vols. (Windham, CT: John Byrne, 1795–96), 2:238, 242. For a fascinating exploration of common-law treatment of whether children could testify, see Brewer, Holly, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (Chapel Hill: University of North Carolina Press, 2005), 155–74. The predominant obstacle to children's testimony in the late eighteenth century was their inability to appreciate the nature of an oath. Ibid., 158–60.

17. Fisher, “The Jury's Rise as Lie Detector,” 590; and Donahue, Charles Jr., “Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law,” in On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, ed. Arnold, Morris S., Green, Thomas A., Scully, Sally A., and White, Stephen D. (Chapel Hill: University of North Carolina Press, 1981), 131.

18. Whitman, Origins of Reasonable Doubt, 186–92.

19. Matthew 7:1 (King James). See also Luke 6:37 (King James).

20. Similarly, strict competency rules helped shield witnesses from facing eternal damnation if they lied based on their temporal interests in the outcome of a case. On the risks faced by witnesses, see Whitman, Origins of Reasonable Doubt, ch. 3 and 4. More cynically, competency determinations increased judicial control over trials.

21. As Lord Chief Justice Edward Coke explained in his Institutes of the Laws of England, “An Oath is an affirmation or denyal by any Christian of any thing lawfull and honest, … calling Almighty God to witness that his testimony is true.” Coke, Edward, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and other Pleas of the Crown, and Criminal Causes, 4th ed. (London: A Crooke et al., 1669), 165.

22. Calvin's Case, 77 Eng. Rep. 377, 398 (K.B. 1608) (“All infidels are in law perpetui inimici; for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility”). Along similar lines, Virginia disallowed testimony from “Popish recusants convict,” who were “convicted in a court of law of not attending the service of the church of England.” Blackstone, Commentaries, 4:56–57; see Devitt, Edward I., “Catholics in Colonial Virginia,” in The American Catholic Historical Researches 25 (1908): 354; and Fogarty, Gerald P., Commonwealth Catholicism: A History of the Catholic Church in Virginia (Notre Dame, IN: University of Notre Dame Press, 2001), 1719.

23. Coke, The Third Part of the Institutes of the Laws of England, 165.

24. See Lincoln, F. Ashe, “The Non-Christian Oath in English Law,” The Jewish Historical Society of England: Transactions 16 (1952): 7375.

25. Hale, Matthew, Historia Placitorum Coronæ: The History of the Pleas of the Crown, 2 vols. (London: E. Nutt et al., 1736), 2:279.

26. Omichund v. Barker, 2 Eq. Cas. Abr. 397 (High Ct. Ch. 1744/5). This report was published as A General Abridgment of Cases in Equity Argued and Adjudged in the High Court of Chancery, 2 vols. (London: Henry Lintot, 1756). Counsel made oral arguments in November 1744, and the justices issued opinions 3 months later on February 23, 1744/5. Until September 1752, England used the Julian calendar, with year changes taking place in March. For the period between January and March, eighteenth-century Americans often noted both years using a comma, dash, or space to separate the years.

27. Identification of Barker's first name comes from Chaudhuri, Kirti N., The Trading World of Asia and the English East India Company, 1660–1760 (New York: Cambridge University Press, 1978), 357.

28. The complaint “was brought to have a satisfaction for 67,955 rupees, amounting to about 7,600 £ English money, from the estate of the late Mr. Barker.” 1 Atk. 21. In modern purchasing power, that sum would be well over £1,000,000.

29. See Chatterjee, Kumkum, “Trade and Darbar Politics in the Bengal Subah, 1733–1757,” Modern Asian Studies 26 (1992): 243–71; Nandy, Somendra C., “Amir Chand (d. 1758),” in Oxford Dictionary of National Biography, ed. Matthew, Henry Colin Gray and Harrison, Brian (Oxford: Oxford University Press, 2004).

30. Omichund, 2 Eq. Cas. Abr. 398.

31. Omychund v. Barker, 1 Atk. 21, 23, 26 Eng. Rep. 15 (High Ct. Ch. 1744/5). This report was published as Atkyns, John Tracy, Reports of Cases Argued and Determined in the High Court of Chancery in the Time of Lord Chancellor Hardwicke, 3 vols. (London: J. Worrall & W. Sandby, 1765–68).

32. Ibid., 24.

33. Omichund v. Barker, 2 Eq. Cas. Abr. 407.

34. See Poser, Norman S., Lord Mansfield: Justice in the Age of Reason (Montreal: McGill-Queen's University Press, 2013), 86, 9899 (discussing the lucrative private practice of Murray, including his representation of Amirchand). On Ryder's and Murray's official duties, see Oldham, James, “The Work of Ryder and Murray as Law Officers of the Crown,” in Legal Record and Historical Reality, ed. Watkin, Thomas G. (London: The Hambledon Press, 1989), 157.

35. Omychund v. Barker, 1 Atk. 30. See also Omichund v. Barker, MSS. Misc. 136, Lincoln's Inn Library, London, England (hereafter Omichund v. Barker, Lincoln's Inn Manuscript), 1135 (“[T]he Nature of Trade & Commerce require it”). This manuscript, which is part of a five-volume set of English decisions, was written “by an unknown hand.” Baker, John H., English Legal Manuscripts, 2 vols. (Zug, Switzerland: Inter Documentation Co., 1975–78), 2:99. Pages 1153–68 of the manuscript contain a transcription of Lord Chief Baron Thomas Parker's decision, which the writer notes “was delivered by [Parker] in Court, & which I transcribed from a Copy lent by him to Sir John Strange.” Omichund v. Barker, Lincoln's Inn Manuscript, 1153.

36. Omychund v. Barker, 1 Atk. 33.

37. Ibid., 34. See also Omichund v. Barker, Lincoln's Inn Manuscript, 1137 (“Christian Courts must do Justice to the Indians if there is a Commerce between them, otherwise there is no Faith at all & no Jurisd[ictio]n can be exercised”).

38. Omychund v. Barker, 1 Atk. 34.

39. Ibid., 44. See also Omichund v. Barker, Lincoln's Inn Manuscript, 1143 (“The not admitting this Evidence would be destructive of Trade & subversive of Justice and liable to many other Inconveniences”). The transcription of Parker's original manuscript reads: “The rejecting of these Witnesses would be both destructive of Trade & subversive of Justice, & attended with infinite other Inconveniences.” Ibid., 1168.

40. Omychund v. Barker, 1 Atk. 46. See also Omichund v. Barker, Lincoln's Inn Manuscript, 1147 (“The Rules of Evidence are considered as positive artificial Rules formed by Men for their Convenience as to proceedings in Courts of Justice, but there is one Rule which is fixed eternal & immutable, & that is the Rule of natural Justice, & all other Rules must give way to this”).

41. Omychund v. Barker, 1 Atk. 49. See also Omichund v. Barker, Lincoln's Inn Manuscript, 1150 (“[T]here is but one general Rule of Evidence, i.e. that the best Evidence must be received, that the nature of the Case will admit”).

42. Omychund v. Barker, 1 Atk. 48. See also Omichund v. Barker, Lincoln's Inn Manuscript, 1150 (“[A]ll that is necessary is, An Appeal to the Supreme Being, the Witness of the Truth & the Avenger of Perjury”).

43. Omychund v. Barker, 1 Atk. 45 (emphasis added). Willes clarified that evidence of religious belief could still be used to impeach a witness's credibility. Ibid., 45–46 (“It must be left to the jury or judge what credit they will give… . The same credit ought not to be given to the evidence of an infidel, as of a Christian; because [he is] not under the same obligations”). According to a report published in 1756, Willes stated: “I think such Infidels, who believe in God, and that he will punish them if they swear falsly, in some Cases, and under some Circumstances, ought to be admitted as Witnesses in this tho’ a Christian Country, but that one who has not such Belief, cannot be admitted under any Circumstances.” Omichund v. Barker, 2 Eq. Cas. Abr. 404–5.

44. Omichund v. Barker, 1 Willes 538, 125 Eng. Rep. 1310 (High Ct. Ch. 1744/5). This report was published as Charles Durnford, Reports of Adjudged Cases in the Court of Common Pleas During the Time Lord Chief Justice Willes Presided in That Court (London: A. Strahan, 1799). The report was later published in Philadelphia and was widely cited in the United States. For a study of the use of manuscript case notes in eighteenth-century England, see Oldham, James, “The Indispensability of Manuscript Case Notes to Eighteenth-Century Barristers and Judges,” in Making Legal History: Approaches and Methodologies, ed. Musson, Anthony and Stebbings, Chantal (Cambridge: Cambridge University Press, 2012), 3052. For an introduction to eighteenth-century reporting practices, see, for example, Oldham, James, “Underreported and Underrated: The Court of Common Pleas in the Eighteenth Century,” in Law as Culture and Culture as Law: Essays in Honor of John Phillip Reid, ed. Hartog, Hendrik and Nelson, William E. (Madison, WI: Madison House Publishers, Inc., 2000), 119–46.

45. Omichund v. Barker, 1 Willes 550. See also ibid., 549.

46. Ibid., 550.

47. Some comments, for example, appear in other reports but not in the Durnford report. Compare 1 Atk. 44 (“Lord Coke is a very great lawyer, but our Saviour and St. Peter are in this respect much better authorities”), and 2 Eq. Cas. Abr. 403 (“Coke was certainly a very great Lawyer, but I think our Saviour and St. Peter in these Matters much better Authorities”), and Lincoln's Inn Manuscript, 1144 (“Now my Lord Coke is a great Authority, but it must be allowed, that Our Saviour & St. Peter are greater”), with 1 Willes 542 (“It is a little mean narrow notion …”). Moreover, the 1756 report, the 1765 Atkyns report, and the unpublished manuscript seem to have been independently recorded when the decisions were read, given that some material appears in the Durnford report and only one of the two earlier reports. Compare 1 Willes 541 (“Serjt. Hawkins (though a very learned pains-taking man) is plainly mistaken in his History of the Pleas of the Crown … where he understands Lord Coke as not excluding the Jews from being witnesses, but only Heathens… . I shall therefore take it for granted… . [A]lmost ever since the Jews have returned into England, they have been admitted to be sworn as witnesses”), with 1 Atk. 44 (“Serjeant Hawkins in his Pleas of the Crown, though a very learned and pains taking man, is mistaken in his notion of lord Coke's opinion; long before his time, and ever since the Jews returned to England, they have been constantly admitted as witnesses”), and 2 Eq. Cas. Abr. 402 (“Hawkins, tho’ a very Pains-taking Man, is, I think, plainly mistaken in his [Pleas of the Crown] where he understands him otherwise. I shall therefore take this for granted”), and Lincoln's Inn Manuscript, 1144 (“Serj[ean]t Hawkins in his [Pleas of the Crown] is mistaken in his Opinion of my Lord Co[ke]. I take it for granted my Lord Coke meant Infidels generally, & that lessens the Authority of what he says, for Jews were admitted before his time & since”).

48. See Lincoln's Inn Manuscript, 1146 (“The best Evidence, that the Party can procure must be rece[ive]d; But if better Evidence is produced on the other Side, the first is to be rejected; As if a Copy of a Deed be offered in Evidence & on the other Side the original is produced & differs from the copy. So if an Infidel who believes only a Reward & Punishment in this world be contradicted by a Christian”). For more on the approach to evidence law that led to this view, see notes 60 and 62 and accompanying text.

49. Christians generally interpreted the Old Testament, shared by the Jewish faith, as supporting the existence of a future state; see, for example, The Religious Magazine or Spirit of the Foreign Theological Journals and Reviews 2 (1828): 17; and Graves, Richard, “A Future State Known to the Jews,” in The Whole Works of Richard Graves, 4 vols., ed. Graves, Richard Hastings (Dublin: William Curry Jr. & Co., 1840), 2:288, but concerns about Jewish beliefs occasionally cropped up. See, for example, Edward Livingston to M[ordecai] M[anuel] Noah, [1825], Edward Livingston Papers, Princeton University (“Does the [Jewish] sect which denied the existence of a future state still subsist? Is it numerous? Are there any congregations of them in the U.S.[?]”); see also Rush, Jacob, “The Nature of an Oath Stated and Explained,” in Charges and Extracts of Charges, on Moral and Religious Subjects; Delivered at Sundry Times, by the Honorable Jacob Rush (Philadelphia: D. Hogan, 1803), 29 (“the sanction of rewards and punishments is more fully revealed by the Christian religion, and consequently the degree of guilt in transgressing the rules of moral duty, must be greater”). For a discussion of the treatment of Jewish witnesses in English courts after Omichund, see Macfarlane, Karen A., “‘Does He Know the Danger of an Oath’? Oaths, Religion, Ethnicity and the Advent of the Adversarial Criminal Trial in the Eighteenth Century,” Immigrants & Minorities 31 (2013): 334–36.

50. Many scholars have noted this shift in the epistemological underpinnings of English evidence rules. See, for example, Brewer, By Birth or Consent, 162–74. The erosion of status-based rules was part of a broader evolution in English law. See, for example, Kennedy, Duncan, “The Structure of Blackstone's Commentaries,” Buffalo Law Review 28 (1979): 299.

51. See Swift, Zephaniah, A Digest of the Law of Evidence, in Civil and Criminal Cases (Hartford: Oliver D. Cooke, 1810), 4748; and Note, “An Originalist Analysis of the No Religious Test Clause,” Harvard Law Review 120 (2007): 1655–56 (quoting several framers’ views of oaths). But see James Madison to Edmund Pendleton, October 28, 1787, in The Papers of James Madison, 17 vols., ed. William T. Hutchinson and William M. E. Rachal (Chicago: University of Chicago Press, 1962–91), 10:233 (“If the person swearing believes in the supreme being who is invoked, and in the penal consequences of offending him, either in this or a future world or both, he will be under the same restraint from perjury as if he had previously subscribed a test requiring this belief” [emphasis added]).

52. Curtiss v. Strong, 4 Day 51 (Conn. 1809). This volume of Thomas Day's reports was published in 1813. The case, which involved a disputed will, turned on the admissibility of a witness who apparently “did not … believe in the obligation of an oath, and in a future state of rewards and punishments, or any accountability for his conduct after death.” Ibid., 52.

53. Ibid., 55.

54. Dreisbach, Daniel L., “The Constitution's Forgotten Religion Clause: Reflections on the Article VI Religious Test Ban,” Journal of Church and State 38 (1996): 293; Tara E. Strauch, “Taking Oaths and Giving Thanks; Ritual and Religion in Revolutionary America” (PhD diss., University of South Carolina, 2013), 126. See, for example, Rush, “The Nature of an Oath Stated and Explained,” 34; State v. Cooper, 2 Tenn. (2 Overt.) 96, 97 (1807) (report of the opinion of Campbell, J.); James Madison to Edmund Pendleton, October 28, 1787, in The Papers of James Madison 10:223 (noting that oaths were “a religious test” of sorts).

55. See note 22.

56. Peake, Thomas, A Compendium of the Law of Evidence, 2nd ed. (London: Brooke & Clarke, 1804), 141–42.

57. Ibid., 139.

58. Swift, A Digest of the Law of Evidence, 47–48.

59. Ibid., 48.

60. See, for example, Gilbert, Geoffrey, The Law of Evidence (London: Henry Lintot, 1756). See also Shapiro, Barbara J., Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence (Berkeley: University of California Press, 1991), 2627 (noting the epistemological concerns of eighteenth-century evidence treatise writers, including Gilbert). Notably, the influential epistemological ideas of John Locke included the view that “the social fabric depends on commitments underpinned by the fear of God.” Waldron, Jeremy, God, Locke, and Equality: Christian Foundations in Locke's Political Thought (Cambridge: Cambridge University Press, 2002), 223.

61. “Review on the Exclusion of Infidels from Judicial Oaths,” Christian Spectator, September 1829, 444.

62. See Swift, System of the Laws, 2:249 (“the law will presume that every body swears the truth, and that no man will be guilty of perjury”). Perjury rules required two witnesses to prove that someone was lying under oath. Ibid., 400; and Hawkins, William, A Treatise of the Pleas of the Crown, 6th ed. (London: Thomas Leach, 1777), 719. This rule reflected a numerological approach to evidence law. See Fisher, “The Jury's Rise as Lie Detector,” 653 (“Almost every major treatise suggested that whenever jurors faced the task of choosing between conflicting oaths, they should tend to give more credit to the side that produced the greatest number of witnesses”). For the epistemological foundations of this approach, see Witt, “Making the Fifth,” 850 n. 89. Useful surveys of contemporary treatises can be found in Twining, William, Rethinking Evidence: Exploratory Essays, 2nd ed. (Cambridge: Cambridge University Press, 2006), 4555, and in Brewer, By Birth or Consent, 369–75.

63. Gordon, Sarah Barringer, “Blasphemy and the Law of Religious Liberty in Nineteenth-Century America,” American Quarterly 52 (2000): 686. See also Hutson, James, Forgotten Features of the Founding: The Recovery of Religious Themes in the Early American Republic (Lanham, MD: Lexington Books, 2003), 136; Hamburger, Philip, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002), 70; McConnell, Michael W., “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103 (1990): 1467; and note 85. For more on English perjury law, see Oldham, James, English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004), 268–75.

64. Curtiss v. Strong, 4 Day 56. Several years before the Curtiss decision, Tapping Reeve had endorsed the same procedure: “An atheist is not a good witness, because an oath is not binding. The way to discover their belief is not by appealing to them in Court; but by their avowed declarations out of Court. This is a Com. Law Principle.” Lonson Nash, Lectures on Various Legal Subjects Delivered in the Litchfield Law School, 1803, 2:736, MS 4004, Harvard Law School Library. See also Bow v. Parsons, 1 Conn. (1 Root) 480, 481 (1792) (“The court admitted parol testimony of particular conversations and declarations to evince his infidelity”).

65. See Campbell, Wesley J., “A New Approach to Nineteenth-Century Religious Exemption Cases,” Stanford Law Review 63 (2011): 983 n.50–52 (collecting cases). Occasionally, however, courts did permit direct questioning of witnesses. See, for example, “Want of Religious Belief,” Niles’ Weekly Register (Baltimore), October 2, 1830, 103 (reporting “the late trial of J. F. Knapp, at Salem,” in which a lawyer questioned a witness about his beliefs).

66. Swift, A Digest of the Law of Evidence, 49. Although courts usually framed this rule in terms of religious liberty, it also had roots in the general evidentiary rule against asking questions “the direct object and immediate tendency of which are to degrade, disgrace, and disparage the witness, and shew his moral turpitude and infamy.” Ibid., 79–80.

67. Delaware Declaration of Rights of 1776, § 2, in Cogan, Neil H., ed., The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (New York: Oxford University Press, 1997), 15. See also Campbell, Wesley J., “Religious Neutrality in the Early Republic,” Regent Law Review 24 (2012): 319 (collecting provisions from other states).

68. See, for example, Hamburger, Philip A., “Natural Rights, Natural Law, and American Constitutions,” Yale Law Journal 102 (1993): 922–30.

69. Americans in the Founding Era and Early Republic often spoke of “rights,” but this language did not necessarily contemplate judicial definition and enforcement. See Rakove, Jack, Original Meanings (New York: Knopf, 1996), 288338; and Campbell, Jud, “Judicial Review and the Enumeration of Rights,” Georgetown Journal of Law and Public Policy 15 (2017): 569–92. See generally Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).

70. See Campbell, “Religious Neutrality,” 336; Cornell, Saul, “Moving Beyond the Canon of Traditional Constitutional History: Anti-Federalists, the Bill of Rights, and the Promise of Post-Modern Historiography,” Law and History Review 12 (1994): 27; and Dreisbach, “The Constitution's Forgotten Religion Clause,” 286–88. See generally Hamburger, “Natural Rights.” This point is often lost among even the most sophisticated modern observers. See, for example, Curry, Thomas J., The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986), 196 (describing as “contradictory sentiments” an eighteenth-century endorsement of freedom of conscience alongside support for test oaths).

71. Journal of Debates and Proceedings in the Convention of Delegates, Chosen to Revise the Constitution of Massachusetts (Boston: Daily Advertiser, 1821), 90. Along similar lines, Zephaniah Swift defended the consistency of free-exercise rights and state-imposed religious assessments, arguing that “[a] Jew, a Mehometan, or a Bramin, may practice all the rites and ceremonies of their religion, without interruption, or danger of incurring any punishment,” and that “[e]very Christian may believe, worship, and support in such manner as he thinks right, and if he does not feel disposed to join public worship, he may stay at home and believe as he pleases.” Swift, System of the Laws, 1:146. See also Daggett, David, Count the Cost (Hartford: Hundson and Goodwin, 1804), 56 (“Our laws permit every man to worship God when, where, and in the manner most agreeable to his principles or to his inclination; and not the least restraint is imposed; all ideas of dictating to the conscience are discarded”); and Jefferson, Thomas, Notes on the State of Virginia (London: John Stockdale, 1787), 265 (“[I]t does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg. If it be said, his testimony in a court of justice cannot be relied on, reject it then, and be the stigma on him”).

72. In combination with subpoena requirements, traditional oaths required Quakers and some other Christian sects to violate their religious duties. See notes 87–91 and accompanying text.

73. See, for example, Massachusetts Constitution of 1780, Part I, art. III, in Cogan, Complete Bill of Rights, 21. Five of fourteen states “made provision for tax support of ministers, and those five plus seven others continued religious tests for public office.” Noll, Mark A., The Old Religion in a New World: The History of North American Christianity (Grand Rapids, MI: Wm. B. Eerdmans Publishing Co., 2002), 72.

74. See, for example, New Jersey Constitution of 1776, § XIX, in Cogan, Complete Bill of Rights, 25; North Carolina Constitution of 1776, § XXXIV, in ibid., 30; Pennsylvania Constitution of 1790, § III, in ibid., 33.

75. See, for example, New Jersey Constitution of 1776, § XIX, in ibid., 25; North Carolina Constitution of 1776, § XXXIV, in ibid., 31.

76. New Jersey Constitution of 1776, § XIX, in ibid., 25. See also Vermont Constitution of 1777, § 3, in ibid., 41.

77. Delaware Declaration of Rights of 1776, § 2, in ibid., 15.

78. Bill for Religious Freedom, in ibid., 52.

79. See Massachusetts Constitution of 1780, Part I, art. III, in ibid., 21; New Hampshire Constitution of 1783, Part I, art. V, in ibid., 23.

80. Hamburger, Philip A., “Equality and Diversity: The Eighteenth-Century Debate About Equal Protection and Equal Civil Rights,” Supreme Court Review 8 (1992): 299. For a more complete explanation, see ibid., 317–36; and Meyler, Bernadette, “The Equal Protection of Free Exercise: Two Approaches and their History,” Boston College Law Review 47 (2006): 293311. Meyler briefly discusses religion-based competency cases. Ibid., 295–96. Interestingly, Connecticut's laws barring Christians from openly avowing atheism, polytheism, Unitarianism, and apostasy were enforced through a denial of civil privileges on the first offense and denial of protection of law on the second offense. See Swift, System of the Laws, 2:321.

81. Jackson ex dem. Tuttle v. Gridley, 18 Johns. 98 (N.Y. 1820). In 1820, the Supreme Court was New York's highest court of law, with appeals running only to the quasi-legislative Court for the Trial of Impeachment and Correction of Errors. See Rosenblatt, Albert M., “The New York Court of Appeals,” Green Bag 2d 11 (2008): 469.

82. Jackson v. Gridley, 18 Johns. 99.

83. Ibid., 102.

84. Ibid., 103. Spencer's citation to Omichund may have been based on his reading of Curtiss v. Strong or Swift's Law of Evidence rather than on his own reading of the Willes or Atkyns reports. Ibid., 103–4.

85. Ibid., 106. Defenses of oaths often appeared in other contemporary religious liberty cases. See, for example, Commonwealth v. Wolf, 3 Serg. & Rawle 48, 51 (Pa. 1817) (“Laws cannot be administered in any civilized government unless the people are taught to revere the sanctity of an oath, and look to a future state of rewards and punishments for the deeds of this life”); Updegraph v. Commonwealth, 11 Serg. & Rawle 394, 407 (Pa. 1824) (impugning Christianity would “weaken the confidence in human veracity, so essential to the purposes of society, and without which no question of property could be decided, and no criminal brought to justice; an oath in the common form, on a discredited book, would be a most idle ceremony”).

86. Jackson v. Gridley, 18 Johns. 106.

87. Matthew 5:34 (King James).

88. McConnell, “The Origins and Historical Understanding of Free Exercise,” 1467–68.

89. See, for example, Swift, A Digest of the Law of Evidence, 51; Q.E.D., “Messrs. Editors,” Albany Argus, December 25, 1821; “Report Relating to Incompetency of Witnesses on Account of Religious Belief,” Massachusetts Senate Report Number 22 (Boston: Charles Hudson, 1838), 8; and Campbell, “A New Approach,” 978–80, 984–86. For the rule that the availability of affirmations required religious scruples, see, for example, Lewis v. Maris, 1 U.S. (1 Dall.) 278, 285 (Pa. 1788); and State v. Putnam, 1 N.J. L. 260 (1794). Some states codified this rule. See, for example, “An Act Concerning Oaths,” § 16 (April 2, 1801), in Laws of the State of New York, 2 vols. (Albany, NY: Charles R. Webster and George Webster, 1802), 405 (“[E]very person believing in the existence of a Supreme Being, and a future state of rewards and punishments, who shall have conscientious scruples against taking an oath, shall [affirm in lieu of swearing]”); and “An Act for reducing into one, the several Acts prescribing the Oath of Fidelity and Oaths of Public Officers,” § 8 (December 22, 1792), in A Collection of All Such Acts of the General Assembly of Virginia … (Richmond: Samuel Pleasants, Jr. and Henry Pace, 1803), 55 (affirmations available to “[a]ny person refusing to take an oath, and declaring religious scruples to be the true and only reason of such refusal”). For the rule that religious scruples had to be shown by evidence of denominational membership, see, for example, Bryan's Case, 1 D.C. (1 Cranch C.C.) 151 (C.C.D.C. 1804).

90. Later on, however, reformers occasionally argued that affirmations demonstrated that oaths were unnecessary. See note 225.

91. As it turned out, nearly all nineteenth-century controversies about oath taking involved putative witnesses—not jurors or public officials—in part because direct questioning of oath takers was usually prohibited, see note 65, and in part because nobody outside of the courtroom could object, see Rapalje, Stewart, A Treatise on the Law of Witnesses (Albany, NY: Banks & Brothers, 1887), 1415 n.2. Still, some people may have felt unable to take public oaths because of their beliefs. See Whitman, Bernard, “Letter II [November 1830],” in Two Letters to the Reverend Moses Stuart: On the Subject of Religious Liberty, 2nd ed. (Boston: Gray & Bowen, 1831), 148 (observing that religious barriers to oath taking meant that “universalists … must be excluded from every office of honor, trust, or emolument … where an oath of fidelity or allegiance is required” because they “will not act the part of hypocrites”); “Religious Test Applied to Witnesses,” Rhode-Island American [Providence], November 20, 1827 (religious premise of oath taking “takes from him one of his dearest privileges, the right of holding any office, or exercising any right to which is attached the sanction of an oath”). Some writers, however, thought that competency rules did not apply to other types of oaths. In 1839, for example, a Boston trial court—recognizing as “very doubtful” that jurors and public officials could be prevented from swearing on account of their religious beliefs—explained that, in contrast to oaths taken by witnesses, the oaths of jurors and public officials were “promissory” and not subject to perjury penalties. Commonwealth v. Gates (Boston Police Ct. 1839) (Rogers, J.), reported in “Religious Belief of Witnesses,” Washington National Intelligencer, July 2, 1839. See also Cushing, Caleb, The Right of Universalists to Testify in a Court of Justice Vindicated (Boston: Bowles and Dearborn, 1828), 20. “[I]t is well settled that the principles of law respecting the oath of a witness in a court of justice, are wholly inapplicable to an oath of office” (citing Omichund v. Barker, 1 Willes 538, 548 [High Ct. Ch. 1744/5]). Cushing's authorship is confirmed in Fuess, Claude M., The Life of Caleb Cushing, 2 vols. (New York: Harcourt, Bruce & Co., 1923), 1:81. Cushing was stretching Willes's point, which was simply that the rule “that an oath cannot be altered, nor a new one imposed, but by authority of parliament relates only to promisory oath or oaths of office.” Omichund, 1 Willes 548.

92. In 1817, newspapers across the nation reported that North Carolina Chief Justice John Louis Taylor had refused to admit a witness on account of his supposed belief that there was not “either a heaven or a hell! Nor any future rewards or punishment!” See, for example, “Important Judicial Decision,” Connecticut Journal, April 22, 1817; and “Important Judicial Decision,” Vermont Intelligencer, May 5, 1817. Although little can be gleaned from the short newspaper reports, the disputed legal issue seems to have been whether the witness could testify as to his own religious beliefs, not whether such a witness would be competent if he disbelieved in future punishment.

93. Holifield, E. Brooks, Theology in America: Christian Thought from the Age of the Puritans to the Civil War (New Haven, CT: Yale University Press, 2003), 221.

94. Ibid., 221–26.

95. Ibid., 226–27. Even this position sometimes led to accusations that Universalist belief “destroys both the solemnity and validity of an oath, which are predicated upon the certain future punishment of perjury.” Eddy, Richard, Universalism in Gloucester, Mass. (Gloucester, MA: Procter Brothers, 1892), 175–76 (reprinting a public letter by residents of Gloucester dated October 1785); see Lum, Kathryn Gin, Damned Nation: Hell in America from the Revolution to Reconstruction (Oxford: Oxford University Press, 2014), 3132.

96. Holifield, Theology in America, 228–29.

97. Ibid., 230. See also Curtiss v. Strong, 4 Day 54 (referring to “Universalists, who believe there is no punishment after death”).

98. Bressler, Ann Lee, The Universalist Movement in America, 1770–1880 (Oxford: Oxford University Press, 2001), 16.

99. Ibid., 166 n. 45 (quoting Crowell, Seth, Strictures on the Doctrine of Universal Salvation: Wherein the Doctrine Is Disproved on the Principle of the Moral Government of God [New York: Holt & Bolmore, 1821], 114).

100. Ibid., 46.

101. Ibid., 126–27. See, for example, Alger, William Rounseville, A Critical History of the Doctrine of a Future Life with a Complete Bibliography of the Subject (Philadelphia: G.W. Childs 1864), 537; Nichols, Thomas L., Religions of the World: An Impartial History of Religious Creeds, Forms of Worship, Sects, Controversies, and Manifestations, from the Earliest Period to the Present Time (Cincinnati: Valentine Nicholson & Co., 1855), 67; see also Lum, Damned Nation, 125 (noting “a wider backlash against the idea of damnation”); Hatch, Nathan O., The Democratization of American Christianity (New Haven, CT: Yale University Press, 1989), 170–74 (noting that many sects rejected Calvanist emphasis on formal doctrine); Bratt, James D., “The Reorientation of American Protestantism, 1835–1845,” Church History 67 (1998): 69 (stating that many sects focused on personal relationships with God rather than “seeking, finding, and losing salvation”); and Hempton, David, Methodism: Empire of the Spirit (New Haven, CT: Yale University Press, 2005), 25, 75 (arguing that Methodist teachings focused on God's love rather than the prospect of damnation).

102. Many Americans began to doubt the duration of punishment after death (see note 95) and even among believers in eternal punishment, damnation was less central in their religious thinking (see note 101).

103. Quakers were only excluded because of their own refusal to swear (see notes 87–91) not because the law barred them from swearing. Christopher Grasso has discovered one instance in which the testimony of an outspoken deist was rejected on account of his religious views. See Grasso, “The Boundaries of Toleration and Tolerance,” 292–93; see also Pattillo, Henry, “An Address to the Deists,” in Sermons, &c (Wilmington, DE: James Adams, 1788), 273 (“[A]n oath is an act of worship … . The absurdity, the impiety of this act of religious worship, in the mouth of a Deist, must strike every person present with a degree of horror”).

104. Hunscom v. Hunscom, 15 Mass. (14 Tyng.) 184 (1818). For this session, Tyng's reports note: “The reporter was not present at this term, and is indebted to the minutes of a highly respected friend at the bar, for the arguments of the counsel, and in some instance for the decision of the court, in the cases here reported.” Tyng, Dudley Atkins, Reports of Cases, Argued and Determined in the Supreme Judicial Court of the Commonwealth of Massachusetts (Boston: Cummings and Hilliard, 1819), 15:178. The original case records and case file do not provide any insights regarding the excluded witness. See Hancock County, Maine, Supreme Judicial Court Records, 4:203, Maine State Archives; and Hancock County, Maine, Supreme Judicial Court Case Files, Castine sitting, June 1818, Hanscom v. Hanscom, case no. 13, Maine State Archives.

105. Hunscom, 15 Mass. 184 (italics in the original). The punctuation tracks the published 1819 report. In an 1851 edition, lawyer Benjamin Rand added a footnote citing subsequent cases. See Tyng, Dudley Atkins, Reports of Cases Argued and Determined in the Supreme Judicial Court of the Commonwealth of Massachusetts, ed. Rand, Benjamin (Boston: Charles C. Little and James Brown, 1851), 15:172.

106. In Rutherford v. Moore, 1 D.C. (1 Cranch C.C.) 404 (C.C.D.C. 1807), lawyer Francis Scott Key (soon to be famous for other reasons) objected to a witness who had purportedly “declared his disbelief in a future state of rewards and punishments.” Key cited English authorities, including the Omichund decision, in favor of his objection. Chief Judge William Cranch stated that he was “inclined to think” that the objection “ought to go rather to the credit” of the witness instead of his competency, “[b]ut Mr. Key waived the question as to the competency, and examined his witnesses as to the credibility.” Ibid.

107. For example, John Witt remarks that “the Supreme Judicial Court abolished the disqualification of atheists in 1818.” Witt, John Fabian, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge, MA: Harvard University Press, 2004), 57. See also Ariens, Michael S. and Destro, Robert A., Religious Liberty in a Pluralistic Society (Durham, NC: Carolina Academic Press, 2002), 105 (“In Massachusetts … a witness's lack of religious belief initially went only to credibility, not competence”). Compare with Fisher, “The Jury's Rise as Lie Detector,” 678 n.481 (describing Hunscom, without suggesting any precedential status, as “holding that a witness's atheism went only to credibility, not to competency”).

108. See S. G., “Exclusion of Witnesses for Unbelief,” 1:349 n.1; Cushing, The Right of Universalists to Testify, 10; Howe, Samuel, The Practice in Civil Actions and Proceedings at Law, In Massachusetts (Boston: Hilliard, Gray, & Co. 1834), 254; Metcalf, Theron, Digest of the Cases Decided in the Supreme Judicial Court of Massachusetts (Boston: Richard & Lord, 1825), 132; and Story, Joseph, “Evidence,” in Encyclopaedia Americana: A Popular Dictionary of Arts, Sciences, Literature, History, Politics and Biography, vol. 5, ed. Lieber, Francis (Philadelphia: Carey & Lea, 1831), 9. See also Thurston v. Whitney, 56 Mass. (2 Cush.) 104 (1848) (rejecting atheist testimony); and Commonwealth v. Wyman & Robinson, Thacher Cr. 432 (Boston Mun. Ct. 1836) (same).

109. At the outset of his illustrious legal career, John Appleton of Maine—who staunchly supported allowing Universalists and atheists as witnesses—explained that the court in Hunscom “consider[ed] a disbelief in a future state of existence as an objection to the credibility—but the question was not decided on argument, and is contrary to the decisions in England and New-York, and most other States in this country.” John Appleton, “On the Admissibility of Atheists as Witnesses,” The Yankee; and Boston Literary Gazette (Boston), June 11, 1829, 188. The editors of the Christian Spectator noted, albeit without attribution, that they were “permitted, on the highest authority, to say that the Judges of the Supreme Court of Massachusetts do not consider that note [of the Hunscom ruling] as the record of a decision by which they feel themselves to be bound. The note was made by the Reporter himself, and no written decision was given in that case by the court.” “Review on the Exclusion of Infidels from Judicial Oaths,” 440 n.3.

110. See “Report Relating to Incompetency of Witnesses on Account of Religious Belief,” 6 (“No person is rejected as an incompetent witness, who believes in a God who will punish perjury, if he is otherwise competent. This has been the doctrine of our courts since 1818”).

111. Noble v. People, 1 Ill. 54 (1822). On a separate issue, the court revealed a strikingly liberal interpretation of competency requirements. Ibid., 56 (“If the witness be manifestly biased by his interest, the jury can detect him”).

112. “An Extract from a Letter, dated Elkton, 4th April, 1822,” in The Philadelphia Universalist Magazine and Christian Messenger, 2 vols., ed. Abner Kneeland (Philadelphia: J. Young, 1822), 1:287.

113. Ibid.

114. Butts v. Swartwood, 2 Cow. 431 (N.Y. 1823).

115. Ibid., 432.

116. Ibid.

117. Bressler, The Universalist Movement in America, 46.

118. People v. Matteson, 2 Cow. 433, 433 (N.Y. Ct. Oyer & Terminer 1824) (italics in the original).

119. Ibid., 433.

120. Ibid., 434. Judge Williams issued a similar opinion in an unnamed case. See 2 Cow. 572 (N.Y. Cir. Ct. 1824).

121. Farnandis v. Henderson, 1 Car. L.J. 210. In Petty, two of the five justices of South Carolina's Constitutional Court had articulated the “well settled” common-law rule: “If one called as a witness, does not believe in God, and a future state of rewards and punishments, he cannot be sworn.” State v. Petty, 16 S.C.L. (Harp.) 59, 62 (1823) (Colcock, J.). In Petty, the attorney for the state had argued that “the rule must be considered abrogated, by that part of the constitution which guarantees the liberty of conscience.” Ibid. Justice Charles Colcock summarily dismissed this argument, stating: “I have always regarded that as a wise provision in the constitution; and shall never believe that it was intended to banish all religion; nor can I permit myself to enter seriously into any arguments on a question which I most earnestly hope will never be seriously entertained in these United States.” Ibid., 62–63.

122. Farnandis v. Henderson, 1 Car. L.J. 204, 206.

123. Ibid., 210.

124. Ibid., 211.

125. S.C. Constitution of 1790, art. VIII, § 1.

126. Ibid., 212. For the opposing counsel's argument, see “Mr. Chestney's Speech Before the Hon. Chancellor Desaussure,” South Carolina State Gazette (Columbia), May 24 and 31, 1828.

127. Farnandis v. Henderson, 1 Car. L.J. 212.

128. Ibid., 213 (citing, although not by name, People v. Philips (N.Y. Ct. Gen. Sess. 1813), in Sampson, William, The Catholic Question in America [New York: Edward Gillespy, 1813]). See also Walsh, Walter J., “The First Free Exercise Case,” George Washington Law Review 73 (2004): 41.

129. Farnandis v. Henderson, 1 Car. L.J. 214.

130. See, for example, Oliver Ellsworth, “To the Landholders and Farmers, Number VII,” Connecticut Courant (Hartford), December 17, 1787, 1 (arguing that “a good and peaceable citizen” should be “liable to no penalties or incapacities on account of his religious sentiments”); and Journal of Debates and Proceedings in the Convention of Delegates Chosen to Revise the Constitution of Massachusetts (Boston: Daily Advertiser, 1821), 83 (remarks of James Prince) (arguing that natural liberty is abridged whenever “the consciences of men are in any wise shackled by forms or qualifications”).

131. Nathaniel H. Carter, William L. Stone, and Marcus T.C. Gould, eds., Reports of the Proceedings and Debates of the Convention of 1821, Assembled for the Purpose of Amending the Constitution of the State of New York (Albany, NY: E. & E. Hosford, 1821), 462.

132. Ibid., 463.

133. Root quickly withdrew his first proposal, see ibid., 464, and the following day, he proposed that “no witness shall be questioned as to his religious faith.” Ibid., 465. Root seems to have been worried about competency and credibility challenges. See ibid. (arguing against the rule that a witness “must agree to some particular tenets, otherwise he is excluded from being a witness, or the jury are informed, that he is an incredible witness, and his testimony is not to be believed”). The delegates defeated the proposal by a vote of 94 to 8 after Chancellor Kent deemed it to be “unworthy of notice.” Ibid., 466.

134. See, for example, Q.E.D., “To the Editors of the Argus,” Albany Argus, January 8, 1822, 3; and Q.E.D., “Messrs. Editors,” Albany Argus, December 25, 1821, 2. See also Brownlee, William Craig, A Dissertation on the Nature, Obligations, and Form of a Civil Oath (New York: Wilder & Campbell, 1825), 18.

135. “Meeting at Whitesborough” [Jan. 24, 1822], in Herttell, Thomas, The Demurrer: Or, Proofs of Error in the Decision of the Supreme Court of the State of New York, Requiring Faith in Particular Religious Doctrines as a Legal Qualification of Witnesses; Thence Establishing by Law a Religious Test and a Religious Creed (New York: E. Conrad, 1828), 145–46.

136. Ibid., 146. See also “Report of the Judiciary Committee, on Petition from Monroe County,” Watch-Tower (Cooperstown, NY), June 9, 1823, 2.

137. Herttell, The Demurrer, 6 (emphasis omitted).

138. Ibid., 84 (emphasis added).

139. Wakefield v. Ross, 5 Mason 16, 18n*, 28 F. Cas. 1346, 1347n2 (C.C.D.R.I. 1827) (No. 17,050). Mason's report was published in 1831 and was the most frequently cited report of the case.

140. Ibid. Justice Story continued: “The administration of an oath supposes, that a moral and religious accountability is felt to a Supreme Being, and is the sanction which the law requires upon the conscience of a person, before it admits him to testify.” Ibid. After the decision, there was some debate about whether Story thought the witnesses were incompetent as atheists, or as Universalists. See, for example, “Litchfield Decision,” Trumpet and Universalist Magazine, October 18, 1828, 1 (“The public mind was much agitated about the close of the year 1827, by a misreport of a decision … by Mr. Justice Story. It was at first supposed that the two witnesses, father and son, were rejected for want of belief in the doctrine of future rewards and punishments”); and “Competency of Witnesses,” Trumpet and Universalist Magazine, September 14, 1833, 2 (“Judge Story, we believe, is misrepresented. It was an atheist to who he objected”).

141. Atwood v. Welton, 7 Conn. 66 (1828).

142. Ibid., 75 (“Atkyns furnished the case from the judges themselves, and when the decision was pronounced. With his accuracy as a reporter, it is not credible, that he should have omitted what is now deemed important in the opinion of Willes”).

143. Ibid., 74.

144. Ibid., 73.

145. Ibid., 77.

146. Ibid., 78.

147. Ibid.

148. Ibid., 76. For similar arguments, see Whitman, Bernard, “Letter II [November 1830],” in Two Letters to the Reverend Moses Stuart: On the Subject of Religious Liberty, 2nd ed. (Boston: Gray & Bowen, 1831), 148–49; and J. F., “Dr. Ely—Orthodox Party—Oaths,” Trumpet and Universalist Magazine, April 24, 1830, 1.

149. Atwood v. Welton, 7 Conn. 69.

150. See note 49.

151. Atwood v. Welton, 7 Conn. 85 (Peters, J., dissenting). See also Farnandis v. Henderson, 1 Car. L.J. 211 (noting that strict application of the common-law rule “may exclude Roman Catholics, who believe that punishments in another world may be avoided altogether by absolution, or diminished by masses and prayer”); Tucker, St. George, Appendix to Volume First, Part Second, of Blackstone's Commentaries (Philadelphia: William Young Birch and Abraham Small, 1803), 9 (“Atheism destroys the sacredness and obligation of an oath. But is there not also a religion (so called) which does this, by teaching, that there is a power which can dispense with the obligations of oaths; that pious frauds are right, and that faith is not to be kept with heretics”). Interestingly, DeSaussure faced bitter criticism from the Catholic Bishop of Charleston for misrepresenting Catholic doctrine. John England, Bishop of Charleston, “Mistakes: To the Hon. Chancellor Desaussure,” Baltimore Gazette and Daily Advertiser, December 24, 1827, 2. Arguments about Jewish and Catholic theology were nearly always made in favor of reform, not in favor of excluding Jews or Catholics. But see ibid. (noting an unsuccessful attempt in York District, South Carolina, “to invalidate the testimony of the principal witness for the prosecution, upon the ground that he was suspected of being a Roman catholic”); and Commonwealth v. Buzzell, 16 Pick. 153, 156 (Mass. 1834) (argument of counsel, rejected by the court, that “confession and absolution being parts of the Roman Catholic faith, a witness belonging to that sect might testify what was not true, in the expectation of afterwards obtaining absolution”).

152. The Giddins family seems to have used both spellings. See Edward Giddins to Henry Giddings, January 28, 1824, Papers of Victory Birdseye, Livingston Masonic Library, New York, NY.

153. Testimony of David Morisson, quoted in “Anti-Masonic Almanacs—Concluded,” Republican Compiler (Gettysburg, PA), June 22, 1830, 2. This episode is summarized in Formisano, Ronald P., For the People: American Populist Movements from the Revolution to the 1850s (Chapel Hill: University of North Carolina Press, 2008), 136–39. At the later trial in 1831, Judge Samuel Nelson permitted Giddins to testify based on prosecution witnesses who testified that he believed in God. Trial of Parkhusrt [sic] Whitney, Timothy Shaw, Noah Beach, William Miller, and Samuel M. Chubbuck; for a Conspiracy; the Abduction, False Imprisonment, and Assault and Battery of William Morgan: Had at a Special Circuit Court, Held at Lockport, Niagara County, Feb. 1831 (Lockport, NY: Balance Office, [1831]), 24 (hereafter Trial of Parkhurst Whitney).

154. Stone, William Leete, Letters on Masonry and Anti-Masonry: Addressed to the Hon. John Quincy Adams (New York: O. Halsted, 1832), 344. Morgan testified to the grand jury but was “excluded from testifying on the trials of some of the parties implicated.” John C. Spencer, Report of the Special Counsel on the Subject of the Abduction of William Morgan, N.Y. Senate Report No. 67 (1830), 18.

155. Ibid., 347.

156. “Intolerance,” Boston Patriot & Mercantile Advertiser, July 15, 1828, 2. Commentators were sometimes simultaneously critical of the common-law rule but not the judicial decisions themselves. See “Religious Test Applied to Witnesses,” Rhode-Island American (Providence), November 20, 1827, 2 (“rejecting a witness for not believing in future rewards and punishments, is undoubtedly correct according to the absurd doctrines of the common law”); and Norwich Courier (CT), July 16, 1828, 2 (stating that the holding of Atwood v. Welton “is not, we understand, a new point, which was adjudged” but “has been settled law in Connecticut, for very many years”).

157. My search has been mostly unavailing. The papers of two leading reformers reveal almost no discussion of efforts to eliminate testimonial exclusions. From 1827 through 1832—a period inclusive of his most active reform efforts—Millard Fillmore's unpublished papers show only two letters discussing testimonial exclusions. In the first letter, a constituent lauded Fillmore for proposing that “professed atheism apply to only the credibility of witnesses in our courts of justice, & not to their competency.” Exclusion of atheists, he wrote, “is now unfortunately connected with political considerations that will prove an obstacle to its dispassionate consideration.” A. B. Johnson to Millard Fillmore, January 29, 1831, Microfilm Edition of the Millard Fillmore Papers, Series 1, Reel 1. In another letter, Philo C. Fuller—a New York legislator and later congressman—wrote to Fillmore: “I get your Essays on abolishing the religious test—and regularly read, cut out & preserve them: a compliment I have paid to very few productions which have come to hand this winter.” P. C. Fuller to Millard Fillmore, February 26, 1832, Microfilm Edition of the Millard Fillmore Papers, Series 1, Reel 2. Gideon Welles's papers from 1827 through 1830 reveal almost no discussion of witness-competency rules despite his introduction of a reform bill in the Connecticut legislature. One correspondent wrote: “I am not a universalist in faith or profession, but in the doctrine of evidence lately recognized I see much to alarm the people of this state. As a lawyer I aprobate the doctrine—as an advocate for the rights & liberty of man, nay as a christian I see in it much to deplore—But all things work for good. The promulgation of the doctrine here has (I speak within bounds) added thirty substantial names to the Jackson cause.” Asa Child to Gideon Welles, July 9, 1828, Gideon Welles Papers, Library of Congress. A few months later, one of Welles's Jacksonian correspondents reiterated the decision's political usefulness: “The Litchfield decision has been particularly beneficial.” Andrew T. Judson to Gideon Welles, October 11, 1828, Gideon Welles Papers, Library of Congress. Welles's correspondence, including the collection in the New York Public Library, does not illuminate his subsequent efforts to reform the law.

158. “Religious Test Applied to Witnesses,” Rhode-Island American (Providence), November 20, 1827, 2.

159. See, for example, D. Pickering, “Reply to Mr. Cowell's ‘Card,’” Providence Patriot, December 1, 1827, 2 (“[D]oes not a witness suffer, by being proscribed as unworthy of credit, merely because he cannot conscientiously subscribe to a certain religious tenet … ?”); J. F., “Dr. Ely—Orthodox Party—Oaths,” Trumpet and Universalist Magazine, April 24, 1830, 1 (“[T]o guarantee to one man the privilege of being a witness under oath, while you withhold it from another whose moral character is equally good, creates an inequality, and gives one a legal pre-eminence over the other”); and Appleton, “On the Admissibility of Atheists as Witnesses,” 188 (“Government has no right to interfere with the religions of its citizens—it is entirely a question between them and their God”). These arguments were often explicitly pitched in constitutional terms. See, for example, “Senate,” Connecticut Courant (Hartford), June 8, 1830, 2 (remarks of Samuel Hart and Lorrain Pease) (criticizing Atwood as “unconstitutional”).

160. See, for example, “Review of the Controversy, respecting Judge Story's Late Decision,” Rhode-Island Religious Messenger (Providence), December 7, 1827, 3 (denouncing the view that because individuals “are at liberty to exercise [religion], without encroaching the province of our neighbors, … [and] believe as they choose, that, ergo, all opinions are equally good, by the laws of both God and man”).

161. Cushing, The Right of Universalists to Testify, 21. See also “For the Courier,” Norwich Courier (CT), July 16, 1828, 2–3; “Of the Controversy Respecting Judge Story's Late Decision,” 142. Similarly, William Leete Stone wrote to John Quincy Adams that “the court were clearly right in rejecting [Giddins], both by the principles of the constitution and the common law.” Stone, Letters on Masonry and Anti-Masonry, 348. In support, Stone cited Jackson v. Gridley and the subsequent debates in New York's 1821 convention. Ibid., 348–49. Adams surely agreed, explaining in a floor debate in Congress in 1840 that “it is a well known principle of the common law that a man who avows his own disbelief of this responsibility, who denies the existence of a God, or his own liability to account in a future world for any falsehood of his oath before a court of justice on earth, thereby becomes incompetent to testify in courts of law.” “House of Representatives,” Daily National Intelligencer, June 16, 1840, 2.

162. “Review on the Exclusion of Infidels from Judicial Oaths,” Christian Spectator, September 1829, 447. Later, the reviewer explained: “Every man in a court of justice has a right to be tried by those rules, strike where they may. Nor can courts deprive him of the exercise of this right, by the consideration that in so doing, they may affect the reputation of any third person who is offered as a witness.” Ibid., 451.

163. See, for example, notes 158, 159, 177, 230, 274, and 275.

164. “Religious Test Applied to Witnesses,” Rhode-Island American (Providence), November 20, 1827, 2.

165. Whitman, Bernard, “Letter II [November 1830],” in Two Letters to the Reverend Moses Stuart: On the Subject of Religious Liberty, 2nd ed. (Boston: Gray & Bowen, 1831), 151.

166. Edward Giddins to Victory Birdseye, June 16, 1830, Papers of Victory Birdseye.

167. See, for example, Herttell, The Demurrer, 24–25 (“By being thus deprived of the right or privilege of taking an oath, he is debarred the means of personal safety placed out of the pale of legal protection … as if proceedings and judgment of outlawry were had and given against him”); J. F., “Dr. Ely—Orthodox Party—Oaths,” Trumpet and Universalist Magazine, April 24, 1830, 1 (“[Y]ou cannot more seriously molest a man, than by depriving him of the dearest privilege of a freeman, and placing him beyond the protection of the laws”); and “Connecticut Legislature,” Connecticut Journal, June 15, 1830, 2 (remarks of John Gray) (“[T]he penalty, by a recent decision, is no less than disfranchisement, and outlawry for difference in opinion in religious matters”).

168. Cushing, The Right of Universalists to Testify, 3. In later prosecutions relating to the William Morgan affair, and after New York changed its law, Judge Samuel Nelson apparently stated that because a competency objection “was in its nature penal as to the witness, … it ought most clearly to be made out.” Trial of Parkhurst Whitney, 24.

169. For a historical defense of the view that the Equal Protection Clause originally forbade all sorts of improper classifications, see Saunders, Melissa L., “Equal Protection, Class Legislation, and Colorblindness,” Michigan Law Review 96 (1997): 245337. For a rebuttal of this argument and defense of the view that the Equal Protection Clause originally guaranteed only equal governmental protection of private rights, see Christopher Green, R., “The Original Sense of the (Equal) Protection Clause: Pre-Enactment History,” Civil Rights Law Journal 19 (2008): 4571.

170. “For the Universalist Magazine,” Universalist Magazine (Boston), March 15, 1828, 1.

171. “Review on the Exclusion of Infidels from Judicial Oaths,” American Mercury (Hartford, CT), December 8, 1829, 3.

172. “Connecticut Legislature,” The Hartford Times, June 8, 1829, 3 (remarks of Samuel Hart).

173. See, for example, ibid. (remarks of Robert Fairchild (“[T]he Legislature should settle the question. The public mind was greatly agitated”). See also note 156.

174. The act, passed on January 19, 1828, and entitled “An act declaratory of the laws of this State, relating to freedom of opinion in matters of religion,” provided:

Be it enacted, by the General Assembly, and by authority thereof it is enacted, That by the law of this state, “all men are free to profess, and by argument to maintain, their opinions in matters of religion; and that the same do not in any wise diminish, enlarge or affect their civil rights or capacities;” and that no man's opinions, in matters of religion, his belief or disbelief, can be legally inquired into, or be made a subject of investigation, with a view to his qualifications to hold office or give testimony, by any man or men, acting judicially or legislatively. (Public Laws Of the State of Rhode-Island and Providence Plantations, passed since the session of the General Assembly, in January, A. D. 1827 [Providence, RI, 1829], 668–69).

The vote total is reported in “General Assembly,” Rhode-Island Republican (Newport), January 24, 1828, 1.

175. One writer expressed concern at the “vulgar and personal abuse” against Justice Story stemming from a “hyper-zeal for the integrity of our religious freedom.” “Of the Controversy Respecting Judge Story's Late Decision,” Rhode-Island Religious Messenger, December 7, 1827, 3. But newspaper commentary in Rhode Island was overwhelmingly hostile to the decision.

176. “Connecticut Legislature,” The Hartford Times, June 8, 1829, 2 (remarks of Andrew T. Judson); see also ibid. (remarks of Samuel Hart) (“The Constitution admitted of no ambiguity in regard to religious rights; but that instrument in his opinion had been misconstrued by three of the Judges of the highest Court of Judicature in the State; and it was the duty of the Legislature to interfere”); and ibid. (remarks of Robert Fairchild) (arguing that the common-law rule was unconstitutional, and mentioning Chancellor DeSaussure's decision in South Carolina). Judson remarked that “[t]he original bill had regard to the right of questioning a witness as to his religious belief.” Ibid.

177. Ibid. (remarks of Andrew T. Judson). Chauncey Cleaveland, who opposed “that any Court should reject a Universalist, or a man of any other denomination, on account of his religious opinions,” speculated that the common-law rule might “exclude an eighth or a fourth part of the community.” Ibid.

178. Ibid. (remarks of Edmond Fanton). See also ibid. (remarks of Jared Griswold) (“The Constitution did not compel any man to worship God contrary to the dictates of his conscience. He may belong to what denomination he chooses; but it recognizes the God of Christians; and the oath of a witness is an appeal to that Being”).

179. Ibid. (remarks of Jared Griswold, David S. Boardman, and Samuel Church).

180. Ibid. (remarks of Asa Wilcox and Chauncey Cleaveland). Erastus Root made a similar remark at the 1821 convention in New York, see Reports of the Proceedings and Debates of the Convention of 1821, 465, and the same argument reappeared in Connecticut the following year, see “Senate,” Connecticut Courant (Hartford), June 8, 1830, 2 (remarks of Elisha Haley).

181. “Connecticut Legislature,” The Hartford Times, June 8, 1829, 2 (remarks of Samuel Church). The amendment passed narrowly by a vote of 95 to 80. Ibid.; and “Connecticut Legislature,” Connecticut Courant (Hartford), June 9, 1829, 1. The final bill passed by a vote of 114 to 66. Ibid. The Times reported 65 votes against, and the Courant reported 67 votes against. The individual votes add up to 66.

182. “Connecticut Legislature,” The Hartford Times, June 8, 1829, 2 (remarks of Samuel Church).

183. Ibid. (remarks of Chauncey Cleaveland). See also Atwood v. Welton, 7 Conn.  85 (Peters, J., dissenting) (“The jury have none but their own sectarian prejudices”).

184. “Religious Freedom,” The Hartford Times, November 2, 1829, 2.

185. “An Act to Secure to the Citizens of this State Freedom of Opinion in Matters of Religion,” in The Public Statute Laws of the State of Connecticut: Compiled in Obedience to a Resolve of the General Assembly, Passed May, Eighteen Hundred and Thirty-Eight (Hartford: John L. Boswell, 1839), 502. The bill passed in the Senate by a vote of 14 to 6, after the Senate rejected by a vote of 14 to 5 a motion to strike the words “who believes in the existence of a Supreme Being.” See “Senate,” Connecticut Courant (Hartford), June 8, 1830, 2; and Religious Inquirer (Hartford), June 5, 1830, 125.

186. “Connecticut Legislature,” Connecticut Journal (New Haven), June 15, 1830, 2. Some votes are not reported in the newspaper but are recorded in the journal of House of Representatives at the Connecticut State Archives. Proponents of reform who voted against the bill included John Gray, Thomas Mussey, and Gideon Welles.

187. See note 133.

188. For the Connecticut law, see note 185. For the New York law, see “Of the Administration of Oaths and Affirmations,” in The Revised Statutes of the State of New-York, Passed During the Years One Thousand Eight Hundred and Twenty-Seven, and One Thousand Eight Hundred and Twenty-Eight, 3 vols. (Albany, NY: Packard & Van Benthuysen, 1829), 2:407–8. Unfortunately, a lack of recorded debates in New York limits an opportunity to tell a detailed story of that state's transition to a more liberal competency regime, an effort spearheaded by John C. Spencer, the special prosecutor in the William Morgan trials. But there are snippets of useful information. On October 9, 1828, for example—just 1 month after the first round of William Morgan trials—the New York House of Representatives considered a bill passed by the Senate allowing atheists to testify. Journal of the Assembly of the State of New-York, at their Fifty-first Session, Second Meeting (Albany, NY: E. Croswell, 1828), 34. By a margin of 44 to 33, the House voted to replace this provision with one providing that “Every person believing in the existence of a Supreme Being who will punish false swearing, shall be admitted to be sworn, if otherwise competent.” Ibid. See also Formisano, For the People, 136–38; and Spencer, John C., Notes on the Revised Statutes of the State of New York … (Albany, NY: Websters and Skinners, 1830), 167–68 (noting the reform, without comment).

189. Out of fourteen representatives who voted “nay” in 1829 who also cast a vote in 1830, half of them switched their votes.

190. For cases allowing Universalist testimony, see, for example, United States v. Kennedy, 3 McLean 175, 26 F.Cas. 761 (C.C.D. Ill. 1843) (No. 15,524); and Blocker v. Burness, 2 Ala. 354 (1841). An 1835 committee report reveals that competency requirements evolved similarly in Vermont, notwithstanding the lack of reported cases. Journal of the General Assembly of the State of Vermont at Their Session Begun and Holden at Montpelier, in the County of Washington, on Thursday, October 8, 1835 (Middlebury: Knapp & Jewett, 1835), 207. In a brief opinion, the Delaware Supreme Court of Errors and Appeals stated that “there can be no sanction for an oath without a belief in a future state,” but the excluded witness was an atheist. Perry v. Stewart, 2 Del. (2 Harr.) 37 (1835). One later decision in New Jersey required belief in a state of future punishments in order to admit a dying declaration, but that case was about the rationale of a hearsay exception, not the requirements of judicial oaths. Donnelly v. State, 26 N.J.L. 463 (1857). In 1841, a Georgia trial court excluded three Universalist witnesses, explaining that it “did not exclude the witnesses on the ground of their being Universalists, but on the principle of the common law, that makes the belief in a future state of rewards and punishments the test as to the competency of witness objected to on the ground of religious belief.” “Judge Andrews’ Decision in the Case of the State v. D. Patton, in Oglethorpe Superior Court, April Term, 1841,” Macon Weekly Telegraph, August 3, 1841, 2. The judge firmly denied that any civil rights were at issue, explaining that “[t]he witnesses were not proposing to take an oath to interpose a claim, to qualify themselves to hold an office, or to assert any other of their civil rights,” and that “[i]f a duty which a man may be compelled to form, and which he cannot perform, unless permitted, regardless of his wishes, be his right, then is the English language incapable of representing distinct ideas.” Ibid. Interestingly, Andrews also quoted a Georgia statute that governed the competency of witnesses “on the trial of slaves or free persons of color, which declares that ‘any witness shall be sworn, who believes in a God and a future state of rewards and punishments.’” Ibid.

191. Farnandis v. Henderson, 1 Car. L.J. 213. See also, for example, “Connecticut Legislature,” The Hartford Times, June 8, 1829, 2 (remarks of Robert Fairchild) (“[M]en at the present day were growing more liberal in their sentiments”); and Cooper, Thomas, A Treatise on the Law of Libel and the Liberty of the Press: Showing the Origin, Use, and Abuse of the Law of Libel (New York: G. F. Hopkins & Son, 1830), xvii (“All such laws and decisions as cast a stigma of reproach or disability on any man for his opinions on theological subjects … are laws and decision in favor of the alliance of church and state”).

192. See Formisano, For the People, 136–38.

193. For Universalist political views, see Bressler, The Universalist Movement, 164 n.25. It is worth emphasizing that these partisan trends were not uniform.

194. See note 157.

195. See, for example, Kessler, Amalia D., Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877 (New Haven, CT: Yale University Press, 2017), 910 (discussing this scholarly view).

196. The experience of New York lawyer Henry Vanderlyn provides a particularly rich example. See note 267.

197. For one example of a lawyer identifying a competency problem unknown to the judge, see note 106. Along the same lines, Kessler notes a “new and apparently lawyer-driven focus on the admissibility of evidence, both oral and written,” in the second quarter of the nineteenth century. Kessler, Inventing American Exceptionalism, 94.

198. About 70% of the speakers were lawyers. For the debates, see “Connecticut Legislature,” The Hartford Times, June 8, 1829, 2. Lists of lawyers in Connecticut appear in the five initial volumes of State Register of Civil, Judicial, Military, and Other Officers in Connecticut (Hartford: John Russell, 1827–1830; H. & F. J. Huntington, 1831). Overall, 31 of the 208 representatives in 1829 were lawyers. The lawyers who spoke were David S. Boardman, Samuel Church, Chauncey F. Cleaveland, Robert Fairchild, Jared Griswold, Charles Hawley, Andrew T. Judson, Phineas Miner, Timothy Pitkin, and Ansel Sterling.

199. Lawyers were roughly the same proportion of each county's delegation: Fairfield (17%), Hartford (18%), Litchfield (16%), Middlesex (21%), New Haven (11%), New London (12%), Tolland (5%), and Windham (19%). The data come from thirteen towns with a lawyer and non-lawyer each voting. Of these, both representatives voted “yea” in six instances (Berlin, Canterbury, Killingly, Newton, Salisbury, and Sharon), both representatives voted “nay” in  six instances (Enfield, Guilford, Litchfield, New Milford, Somers, and Winchester), and the lawyer voted “nay” and non-lawyer voted “yea” in three instances (Cheshire, Colchester, and Lyme). No firm conclusions can be drawn, but these data do not support an argument that lawyers disproportionately favored evidence-law reform. The following year, thirteen of fifteen voting lawyers in the House of Representatives supported allowing Universalists to testify, but by that time reform was overwhelmingly popular, with a substantial portion of “nay” votes coming from proponents of reform who thought that the bill did not go far enough. See note 186. Of the nine individuals who spoke during the legislative debates in 1830, three were lawyers: Thaddeus Betts, John Holbrook, and Romeo Lowrey. Voting patterns in the Senate were similar. See Religious Inquirer (Hartford), June 5, 1830. The bill passed by a vote of 14 to 6, with at least five of the chamber's eight lawyers voting in favor. Two of the Senators, including lawyer Lorrain Pease, voted “nay” because the bill was not liberal enough. See ibid.; and “Senate,” Connecticut Courant (Hartford), June 8, 1830, 2.

200. Witt, “Making the Fifth,” 864 n.145. For a broader view of the codification movement and its ties to the views of, and about, lawyers, see Spaulding, Norman W., “The Luxury of the Law: The Codification Movement and the Right to Counsel,” Fordham Law Review 73 (2004): 984–91; and Cook, Charles M., The American Codification Movement: A Study of Antebellum Legal Reform (Westport, CT: Greenwood Press, 1981).

201. “Progress of Liberal Principles,” The Correspondent, February 29, 1828, in Houston, George, The Correspondent, from January 26, 1828, to July 19, 1828 (New York: Houston & Co., 1828), 3:90.

202. See, for example, Bolles, John A., “Qualifications of Witnesses,” Christian Review 4 (1836): 481 (“Now if an affirmation is as efficacious as an oath, in any case, why not adopt it universally?”). See also, for example, “Connecticut Legislature,” Connecticut Journal (New Haven), June 15, 1830, 2 (remarks of John Gray) (denouncing the “precedents of a barbarous age”). For identification, see Formisano and Pickering, “The Christian Nation Debate and Witness Competency,” 244.

203. Samuel Cheever, Lectures of Reeve and Gould, Litchfield Law School, 1812, 2:252, MS 4010, Harvard Law School Library.

204. Cushing, The Right of Universalists to Testify, 9.

205. For the Rhode Island statute, see note 174.

206. See, for example, Norton v. Ladd, 4 N.H. 444 (1828).

207. Grasso, Christopher, “Skepticism and American Faith: Infidels, Converts, and Religious Doubt in the Early Nineteenth Century,” Journal of the Early Republic 22 (2002): 480; and Bratt, “The Reorientation of American Protestantism,” 52–53. See also Grasso, “The Boundaries of Toleration and Tolerance,” 286–302.

208. Grasso, “Skepticism and American Faith,” 480.

209. Ibid., 486 (quoting Beecher, Lyman, Lectures on Scepticism, Delivered in Park Street Church, Boston, and in the Second Presbyterian Church, Cincinnati [Cincinnati: Corey & Fairbank, 1835], 86).

210. Ibid., 508. Universalists vigorously opposed this view, arguing that their belief in universal salvation was based on rational premises.

211. By the mid-1830s, there were likely hundreds of thousands of Universalists in the United States, albeit still heavily concentrated in New England and New York. See Hayward, John, The Religious Creeds and Statistics of Every Christian Denomination in the United States and British Provinces (Boston: Jonathan Howe, 1836), 151. In a scholarly assessment, Russell Miller describes the contemporary Universalist population statistics as likely exaggerated, but Universalism was nonetheless steadily growing and was already perhaps the sixth most populous American religious sect by the mid-1830s. Miller, Russell E., The Larger Hope: The First Century of the Universalist Church in America, 1770–1870 (Boston: Unitarian Universalist Association, 1979), 161–62.

212. “Sketch of the Remarks of Mr. C. Rogers of Washington County, in Committee of the Whole, on the Bill Introduced by Mr. Herttell, in Relation to the Rights and Competency of Witnesses,” Albany Evening Journal, March 30, 1837, 2. See also “Report Relating to Incompetency of Witnesses on Account of Religious Belief,” 19 (“In its moral influence, nothing can be more pernicious than atheism. It is the bane and pest of society, the grave of every virtuous sentiment”). But see “An Atheist,” Boston Recorder, July 3, 1835, 107 (“It was given in evidence for the government, that [Enoch] Winkley,” an atheist barred from testifying, “was a man of respectability, wealth and influence, and that he was often entrusted with important town offices in Amesbury”).

213. Fillmore, Millard, “An Examination of the Question, ‘Is it Right to Require Any Religious Test as a Qualification to be a Witness in a Court of Justice?’Publications of the Buffalo Historical Society 10 (Buffalo: Buffalo Historical Society, 1907): 77. Fillmore published the pamphlet under the pseudonym “Juridicus” in 1832.

214. Bolles, “Qualifications of Witnesses,” 488.

215. Ibid. See also Livingston, Edward, “Introductory Report to the Code of Evidence,” in A System of Penal Law for the State of Louisiana (Philadelphia: James Kay, Jun. & Co., 1833), 286 (“[T]he right of appearing as a witness against one who has committed a crime affecting the party, is a civil and temporal right; to deprive him of it, for want of uniformity of faith in any one point with the rest of the community, is to deprive him of it for a difference in religious belief, which is contrary to the constitution and laws”). Debates in Connecticut in 1830 reflected similar views.

216. Hurlbut, Elisha P., Essays on Human Rights and their Political Guaranties (New York: Greeley & McElrath, 1845), 7980. See also John Appleton, “Of Incompetency of Witnesses on Account of Religious Opinion,” American Jurist & Law Magazine (1830), 4:288; and Bolles, “Qualifications of Witnesses,” 498.

217. Fillmore, “An Examination of the Question,” 75. See also Walker, Timothy, Introduction to American Law, Designed as a First Book for Students (Philadelphia: P.H. Nicklin & T. Johnson, 1837), 544.

218. See, for example, Livingston, “Introductory Report to the Code of Evidence,” 285 (avowed atheism “requires some courage” and “must add to his credit”); “Catechising Witnesses,” Gospel Anchor (Troy, NY), March 16, 1833, 301 (“Under the present prejudices entertained by the public, a man who declares himself an Atheist, must be a fearless and honest truth teller”); and Bolles, “Qualifications of Witnesses,” 490 (noting that skeptics may be “frank and honest” for declaring their views). Compare “An Atheist,” Boston Recorder, July 3, 1835, 107 (“For our part, we should place much more confidence in the testimony of a witness, who should honestly avow himself an atheist, and on that ground refuse to swear, than of one who should swear by a being, whose existence he disbelieves”).

219. Appleton, “Of Incompetency,” 289–90.

220. Bolles, “Qualifications of Witnesses,” 486.

221. Fillmore, “An Examination of the Question,” 76. See also “Religious Test for Oaths,” Universalist Watchman, Repository and Chronicle (Montpelier, VT), November 15, 1845, 5 (“[The oath] does not seem to inspire the witness with any degree of sacredness, reverence or awe—with any sense of God or fear of divine retribution”); Titus, “Exclusion of Witnesses for Unbelief,” Law Reporter (August 1839), 2:98–99 (“There is not one case in a hundred where the individual taking the oath considers himself as invoking the vengeance of the Deity upon him if he speaks falsely”); and “On Judicial Oaths,” American Jurist and Law Magazine 19 (1838): 78 (“Many men … take the oath, without understanding the peculiar obligations which they assume, or the force of the imprecations which they invoke upon themselves”).

222. See note 101.

223. An 1843 article in the Methodist Quarterly Review is illustrative. While acknowledging that atheists could be trustworthy, the writer emphatically denied that this fact bore on their capacity to testify. “The truth principle upon which the law rests,” the author argued, “is simply this: that belief in the existence of a supreme Being, who will punish false swearing, is necessary to a feeling of the moral obligation of an oath.” “Review of Thomas Herttell, Rights of Conscience Defended” [1835], Methodist Quarterly Review 25 (1843): 15.

224. Appleton, “Of Incompetency,” 290.

225. “An Atheist,” Boston Recorder, July 3, 1835, 107. This argument was common. See, for example, D. Pickering, “Reply to Mr. Cowell's ‘Card,’” Providence Patriot, December 1, 1827, 2 (“An Atheist cannot swear by the Deity, because he does not believe in his existence; yet he may affirm, and his evidence appreciated according to his weight of character for truth and veracity”); “Testimony of Universalists,” Western Recorder (Utica, NY), July 6, 1830, 1 (asserting that “administering of oaths” to atheists and Universalists is “mere mockery,” but arguing that “every man, who passes among his neighbours as a man of truth,” should be allowed to “tell his story, and let the jury value it at what [it] is worth”); Bolles, “Qualifications of Witnesses,” 484 (“Now if an affirmation is as efficacious as an oath, in any case, why not adopt it universally?”); Public Ledger (Philadelphia), February 2, 1837, 2 (“The best rule would be to put no questions about religious belief, but to dispense with oaths where witnesses require it, to hold them under the penalties of perjury, and to increase the severity of these penalties”); and “Religious Test for Oaths,” Universalist Watchman, Repository and Chronicle (Montpelier, VT), November 15, 1845, 5 (“To us, it appears worse that useless, for an atheist … to swear by a God whose very existence he disbelieves… . We would have every individual allowed to testify in our courts under the pains and penalties of perjury, … and let the jury judge of the probability of his story and take into consider his general character as a religious and moral man”).

226. In most states, credibility evidence regarding religious beliefs was still proved by other witnesses, not the witness whose religious beliefs were at issue. But see Stanbro v. Hopkins, 28 Barb. 265, 269 (N.Y. 1858).

227. See note 132.

228. In 1829, reformers in the Connecticut House of Representatives proposed a measure stating that “no person's religious belief shall affect his admissibility to an oath, or his credibility as a witness.” See note 176. The final bill allowed credibility assessments. See note 185. Reformers in New York proposed a sweeping bill that would have precluded any testimony—including credibility evidence—respecting a witness's religious beliefs or lack thereof. “An Act Relative to the Competency of Witnesses,” in Fillmore, “An Examination of the Question,” 71. The primary sponsor of this bill apparently continued to introduce it annually without success. “Sketch of the Remarks of Mr. C. Rogers of Washington County, in Committee of the Whole, on the Bill Introduced by Mr. Herttell in Relation to the Rights and Competency of Witnesses,” Albany Evening Journal, March 30, 1837, 2.

229. Journal of the General Assembly of the State of Vermont, 209; Age (Augusta, ME), February 8, 1837, 3. See also Formisano and Pickering, “The Christian Nation Debate and Witness Competency,” 243.

230. Journal of the General Assembly of the State of Vermont, 207. On November 4, 1845, the Vermont House passed a bill modeled after the Rhode Island statute abolishing competency rules based on religious belief. See The Journal of the House of Representatives of the State of Vermont, October Session, 1845 (Windsor: Bishop & Tracy, 1846), 209–10. The bill failed in the Senate the following day. See The Journal of the Senate of the State of Vermont, October Session, 1845 (Windsor: Bishop & Tracy, 1846), 131.

231. “Report Relating to Incompetency of Witnesses on Account of Religious Belief,” 8. Three years earlier, the Massachusetts Supreme Judicial Court eliminated inquiries regarding particular theistic beliefs, remarking that “the religious faith of witnesses is not a subject for argument or proof.” Otherwise, the court stated, “if the witness belongs to a sect which holds that the duration or extent of future punishment will be less than it will be according to the tenets of a different sect, you might argue that his testimony is not entitled to so much confidence as it would be if he belonged to the latter sect.” Commonwealth v. Buzzell, 33 Mass. (16 Pick.) 153, 156 (1834), also reported in Trial of John R. Buzzell Before the Supreme Judicial Court of Massachusetts (Boston: Russell, Odiorne, & Metcalf, 1834), 55.

232. This law, passed in 1833, provided: “No person who believes in the existence of a supreme being, shall be adjudged an incompetent or incredible witness in any judicial court, or in the course of judicial proceedings, on account of his opinions in matters of religion; nor shall such opinions be made a subject of investigation or inquiry.” The Revised Statutes of the State of Maine, 2nd ed. (Hallowell: Glazier, Masters & Smith, 1847), 505.

233. Compare note 111.

234. Bolles, “Qualifications of Witnesses,” 496–97.

235. Appleton, “Of Incompetency,” 288–89. See also, for example, Walker, Introduction to American Law, 544 (“[T]he want of religious belief ought not to render a witness incompetent, though the jury may properly take it into consideration in weighing his credibility”); Titus, “Exclusion of Witnesses for Unbelief,” 2:98 (“[T]he witness can be cross-examined by the opposite party, and the accuracy of his knowledge, and his disposition to tell the truth fully tested—because the jury can observe his appearance upon the stand, and his manner of testifying, and thus judge of the truth of what he is saying, and because he testifies under the pains and penalties of perjury”). But see Public Ledger (Philadelphia), February 14, 1837, 2 (arguing that oaths and all inquiries into religious belief should be abolished and replaced with more stringent perjury laws).

236. “Oaths in Court,” Oshkosh Democrat (WI), August 22, 1851, 2 (emphasis added); see also “Rejection of a Witness,” Spectator (New York, NY), June 5, 1847, 1 (“The jury might disregard his evidence, for the reason that they doubt his sincerity [regarding his changed religious faith], but we conceive that question to be one exclusively for the decision of the jury”).

237. Thomas, Abel C., Strictures on Religious Tests, with Special Reference to the Late Reform Convention (Philadelphia: J. Richards, 1838), 10. Thomas was a Universalist minister in Philadelphia, Lowell, Brooklyn, and Cincinnati. Wilson, James Grant and Fiske, John, eds., Appleton's Cyclopædia of American Biography, 6 vols. (New York: D. Appleton & Co., 1888–89), 6:77.

238. Debates and Proceedings in the New-York State Convention for the Revision of the Constitution (Albany, NY: Albany Argus, 1846), 807–8. Earlier in the convention, Taggart had proposed similar language that “no person shall be deprived of any right or provision, or rendered incompetent as a witness, on account of his religious belief or unbelief.” Taggart explained “that his main object was to abolish the law which declared persons holding certain opinions from being a witness.—He desired to see such objections apply to the credibility, not the competency of the witness.” Ibid., 430 (remarks of Mr. Taggart).

239. Ibid., 809 (remarks of Mr. Taggart). The delegates voted down by a vote of 92 to 12 an amendment that “evidence may be given as to the belief or disbelief of the witness in the obligation of an oath, and of the ground of such belief or disbelief, in order to enable the jury to judge of his credibility.” Ibid. The language of Taggart's motion, however, specifically went only toward the witness's competency, and immediately before the vote, Taggart had clarified that evidence could still be offered to impeach a witness's credibility. Ibid.

240. Ibid., 808 (remarks of Mr. Loomis) (stating that atheist incompetency “was analagous [sic] to a custom in certain parts of this country, where testimony was excluded because the witness was a man of color or a slave, however true it might be”).

241. Ibid. (remarks of Mr. Stow).

242. Ibid., 809.

243. Wisconsin Constitution of 1848, art. 1, § 19.

244. California Constitution of 1849, art. 1, § 4.

245. Indiana Constitution of 1851, art. 1, § 7.

246. Ohio Constitution of 1851, art. 1, § 7.

247. Iowa Constitution of 1857, art. 1, § 4.

248. Minnesota Constitution of 1857, art. 1, § 17.

249. Oregon Constitution of 1857, art. 1, § 6.

250. Kansas Constitution of 1859, Bill of Rights, § 7. See also Michigan Constitution of 1835, art. XII, § 1 (“no other oath, declaration, or test shall be required as a qualification for any office or public trust”). At the convention, the delegates briefly debated a motion to include a provision specifically addressing witness incompetency, but delegates rejected the motion after someone noted that “the subject was already provided for in the bill of rights.” Harold M. Dorr, ed., The Michigan Constitutional Conventions of 1835–36: Debates and Proceedings (Ann Arbor: University of Michigan Press, 1940) (remarks of Mr. McClelland).

251. Title IV, ch. 115, §§ 5–6, in Revised Code of the District of Columbia (Washington: A. O. P. Nicholson, 1857), 439. See, for example, “An Act Concerning Witnesses,” § 18, in Revised Statutes of the State of Missouri (St. Louis: Argus, 1835), 623. But see “An Act Relating to the Rights and Competency of Witnesses,” § 1, in The Acts and Resolves of the State of Vermont, at the October Session, 1851 (Montpelier: E. P. Walton & Son, 1851), 9 (“No person shall be deemed to be incompetent … on account of his opinions on matters of religious belief; nor shall any witness be questioned, nor any testimony be taken or received, in relation thereto”).

252. Agg, John, ed., Proceedings and Debates of the Convention of the Commonwealth of Pennsylvania to Propose Amendments to the Constitution, 14 vols. (Harrisburg: Packer, Barrett, & Parke, 1838), 11:227–49.

253. Ibid., 240 (remarks of Mr. Porter) (citing Judge Cowan's Reports, which presumably meant Butts v. Swartwood and People v. Matteson), and ibid., 248 (remarks of Mr. Dickey) (stating that he did not think excluding witnesses based on disbelief in rewards and punishments was the rule of evidence).

254. Cubbison v. M‘Creary, 2 Watts & Serg. 262 (Pa. 1841).

255. Agg, Proceedings and Debates of the Convention of the Commonwealth of Pennsylvania, 11:239.

256. The Maryland convention voted on several measures, finally adopting a provision, by a vote of 42 to 27, stating that a witness or juror would not be disqualified so long as he believed “in the existence of a God, and that under his dispensation such person will be held morally accountable for his acts, and will be rewarded or punished therefor, either in this world or in the world to come.” Debates and Proceedings of the Maryland Reform Convention to Revise the State Constitution, 2 vols. (Annapolis: William M‘Neir, 1851), 1:214, 216.

257. Changes in views of divine punishment and damnation may also have lagged in Maryland, where the Roman Catholic Church was especially strong.

258. A reformer in Pennsylvania made one attempt to frame the issue in terms of juror competence. See Proceedings and Debates of the Convention of the Commonwealth of Pennsylvania, 11:245 (remarks of A.H. Read) (noting that “jurors have sense and intelligence enough to discriminate”).

259. Commonwealth v. Batchelder, Thacher Cr. 191, 196 (Boston Mun. Ct. 1829) (“To withhold equal civil privileges from any of our citizens, however they may differ in their speculative views of religious faith, seems to me to be against the spirit of our institutions”).

260. Commonwealth v. Wyman & Robinson, Thacher Cr. 432, 437 (Boston Mun. Ct. 1836).

261. Thurston v. Whitney, 56 Mass. (2 Cush.) 104, 110 (1848). The court also stated that even if atheists had a right to religious freedom, “the rejection of a witness for such a disbelief or sentiment, as incompetent, would be no violation of this article of the constitution. It is not within its words or meaning. It would not hurt, molest, or restrain him, in his person, liberty, or estate.” Ibid. See also Scott v. Hooper, 14 Vt. 535, 539 (1842) (“It would, indeed, be worse than solemn mockery to be engaged in administering an oath to him who can feel no religious obligation”); Commonwealth v. Moody (Mass. Ct. Com. Pl. 1835) (holding that a materialist who “does not believe in a Supreme, Intelligent Ruler of the Universe” was not competent to testify), reported in “Interesting Decision,” Salem Gazette, June 23, 1835, 2; “An Atheist,” Boston Recorder, July 3, 1835, 107 (reporting the decision of Judge Strong that a government witness named Enoch Winkley was incompetent to testify, notwithstanding his asserted belief in God, because he was “a materialist; one of a sect that has grown up within a few years, and who do not believe in a Supreme intelligent Being, who governs all events”); “Incompetency of an Infidel Witness,” in Hazard's United States Commercial and Statistical Register, ed. Samuel Hazard (Philadelphia: Wm. F. Geddes, 1840), 1:87 (“Judge [Ross] Wilkins, in the United States Court at Detroit, has decided that the testimony of an atheist is not admissible”); and Commonwealth v. Gates (Boston Police Ct. 1839) (Rogers, J.), reported in “Religious Belief of Witnesses,” Washington National Intelligencer, July 2, 1839, 2 (if “a witness believes in the existence of no other God, except Nature or the Material World, he does not … believe in the existence of a God”).

262. Easterday v. Kilborn, 1 Wright 346 (Ohio 1833). Justice John Wright argued that the common-law rule was invalid based on the Ohio constitutional provision that “no human authority can, in any case whatever, control or interfere with the rights of conscience.” Ibid., 346–47. This was a striking shift from the same court's ruling just years earlier in Newbury v. Lingo (1827), which had unanimously reversed a lower court's decision to allow a witness who did not “believe in the existence of a God, or a future state of rewards and punishments.” One of the judges “stated that all nations had some form of an oath, in order to impose a religious obligation upon the conscience—but no such obligation could be imposed upon the conscience of a person who disbelieved it.” The panel declined a motion to refer the matter to the full court, explaining that “in this case the court could not for a moment entertain a doubt” about its decision. “Law of Ohio,” Niles’ Weekly Register (Baltimore), November 8, 1828, 166.

263. Easterday v. Kilborn, 1 Wright 347. See also Halley v. Webster, 21 Me. 461, 461–62 (1842) (rejecting an effort to discredit a witness based on his prior statement that he “had lost his devotion; that he intended now to serve the devil as long as he had served the Lord; that he had a pack of cards with him which he carried about in his pocket, and called them his bible”).

264. Journal of the House of Representatives of the State of Ohio, Being the First Session of the Thirty-Sixth General Assembly (Columbus: Samuel Medary, 1837–38), 106. The committee declined to recommend any further liberalization of the common-law rule, explaining that “[i]t must be very rare indeed that injustice would result from the inforcement of a rule so relaxed as in its judicial interpretation, as that now under review.” Ibid.

265. Smith v. Coffin, 18 Me. 157, 163 (1841). Concurring, Justice Nicholas Emery was contemptuous of the law proscribing atheist testimony: “I can frankly declare, that a much more appropriate title to the [witness competency] act would be, ‘An act to deprive witnesses of freedom of opinion in matters of religion, and to jeopardize the rights of innocent people.’” Ibid., 165 (emphasis omitted).

266. Ibid., 164.

267. Entry of April 14, 1840, Henry Vanderlyn Diary, 7 vols. (April 1827–March 1857), New York Historical Society, 4:278–79. I thank Amalia Kessler for pointing me to this source.

268. The most famous example, stemming from the William Morgan affair, was Judge Samuel Nelson's decision to allow Edward Giddins—whom another trial judge had excluded as a witness in 1828—to testify in related trials in 1831. Nelson explained that evidence of Giddin's beliefs was “contradictory” and “apparently irreconcilable,” and that “[t]he witness was presumed in the first instance, to be competent, and … he should always hold the party objecting, to make out a clear and undoubted case of disqualification, before he would exclude.” Nelson noted that “the objection was in its nature penal as to the witness.” Reported in Trial of Parkhurst Whitney, 24.

269. Perry v. Commonwealth, 44 Va. (3 Gratt.) 645 (1846).

270. The witness seems to have been a Universalist, see ibid., 647, but the implication of the decision seems clear: Defect of religious principle was no longer grounds for incompetency in Virginia. See ibid., 655 (stating that the constitution proclaimed “to all our citizens that henceforth their religious thoughts and conversations shall be as free as the air they breathe”). See also I. T., “Religious Belief as Qualification of Witness,” in The Lawyers Reports Annotated, Book XLII, ed. Burdett A. Rich (Rochester, NY: The Lawyers’ Co-Operative Publishing Co., 1905), 568 (“The dicta of the case show that no religious opinion is there required”).

271. Perry v. Commonwealth, 44 Va. 652.

272. Ibid., 654.

273. Ibid., 654–55. An isolated statement at Virginia's Constitutional Convention reveals one delegate's view that oath taking required belief in God and a future state of rewards and punishments, and that this rule was “not contradicted by” the declaration of religious freedom. See Proceedings and Debates of the Virginia State Convention of 1829–30 (Richmond: Samuel Shepherd & Co. 1830), 457 (remarks of William H. Brodnax).

274. Perry, 44 Va. 657, 658.

275. Ten years later, the North Carolina Supreme Court similarly lambasted the idea that “to be sworn as a witness is no privilege—the person loses nothing by being incompetent.” Such a view, the Court ruled, was “wholly repugnant to the tolerant and enlightened spirit of our institutions and of the age in which we live.” Shaw v. Moore, 49 N.C. (4 Jones) 25, 30–31 (1856).

276. Those states that allowed atheist testimony were: California, Indiana, Iowa, Maine, Massachusetts, Michigan, Missouri, New York, Ohio, Oregon, Rhode Island, Vermont, Virginia, and Wisconsin. Kansas, which had written its constitution in 1859, was in the process of becoming a state. An 1877 decision in Ohio, however, called into question the prevailing rule in that state. See I. T., “Religious Belief as Qualification of Witness,” 563.

277. For a helpful discussion of these laws, see Kaufman, Paul W., “Disbelieving Nonbelievers: Atheism, Competence, and Credibility in the Turn of the Century American Courtroom,” Yale Journal of Law and the Humanities 15 (2003): 395433; and Swancara, Frank, “Non-Religious Witnesses,” Wisconsin Law Review 8 (1932): 4966. For a thorough review of pertinent nineteenth-century cases, statutes, and constitutional provisions, see I. T., “Religious Belief as Qualification of Witness,” 553–68.

278. See note 101.

279. See, for example, Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 877–79 (1990); see also McConnell, Michael W., “Neutrality Under the Religion Clauses,” Northwestern University Law Review 81 (1986): 146–67.

280. For evidence of this view in other nineteenth-century free-exercise controversies, see Campbell, “Religious Neutrality,” 333–47. For earlier debates about religious freedom and equality of civil privileges, see Hamburger, “Equality and Diversity,” 295–392.

281. Nelson, William E., The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, MA: Harvard University Press, 1998), 14. See also Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993): 29 (courts in Jacksonian era began “to emphasize the illegitimacy of so-called unequal, partial, class, or special legislation; that is, legislation which advanced the interests of only a part of the community”).

282. See, for example, Committee on Slavery and the Treatment of Freedmen, “To Secure Equality Before the Law in Courts of the United States,” S. Rep. No. 99 (February 29, 1864), in The Reports of Committees of the Senate of the United States, for the First Session of the Thirty-Eighth Congress (Washington, DC: Government Printing Office, 1864), 12 (describing exclusions founded on race as “something more than a rule of evidence, from which justice may suffer,” finding their “most perfect parallel” in the Indian caste system, and decrying their use as “despoil[ing] the colored person of his right to testify”); see also Green, “The Original Sense of the (Equal) Protection Clause,” 68.

283. See, for example, Congressional Globe, 38th Cong., 1st Sess. 837 (1864) (remarks of Senator Collamer) (arguing that liberal reforms with respect to religion-based competency rules militated in favor of broader competency reforms).

284. See, for example, notes 161 and 162.

285. Den v. Vancleve, 5 N.J.L. (2 South.) 652 (1819) (noting that the “personal privilege” or “right” of being a witness did not overcome the “want of religious principle and belief, as in the case of those who do not believe in the being, perfections and providence of God, nor in a future state of rewards and punishments”).

286. See Hamburger, “Equality and Diversity,” 229 n.9.

287. House Documents, Otherwise Published as Executive Documents: 13th Congress, 26th Cong., 1st Sess., vol. 7, no. 244, 45. For discussions of race-based incompetency rules, see Gross, Ariela J., Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton, NJ: Princeton University Press, 2000), 6166; and Morris, Thomas D., Southern Slavery and the Law, 1619–1860 (Chapel Hill: University of North Carolina Press, 1996), 229–48.

288. See note 240.

289. See note 282.

290. See, for example, Witt, “Making the Fifth,” 864–65; and Twining, Rethinking Evidence, 41–45, 54–55. Having completed the research for this article, I still have very little appreciation for how much Appleton, Bentham, or others, such as Edward Livingston, influenced the American reform effort. John Witt argues that “Bentham's role appears to have been to supply a rhetoric that could be put to use in promoting an independently existing opposition to the disqualification rules.” Witt, “Making the Fifth,” 865. That may be right, but my view is that we do not have enough information to know whether evidentiary reform in America would have been any different without Bentham and his followers.

291. Fisher, “The Jury's Rise as Lie Detector,” 671–97; Bodansky, Joel N., “The Abolition of the Party-Witness Disqualification: An Historical Survey,” Kentucky Law Journal 71 (1981): 91130.

292. See note 183.

293. See, for example, Congressional Globe, 37th Cong., 2nd Sess. 3355 (1862) (remarks of Senator Wilkinson) (“Leave that to the jury… . “[L]et the jury and court determine as to the credibility of the witness”); and “To Secure Equality Before the Law,” 11 (“[T]he plain tendency of recent legislation, and also of judicial decisions in England and in the United States, has been to limit objections to the capacity of witnesses, and to allow the court and jury on hearing their testimony to estimate its weight and value”).

294. “To Secure Equality Before the Law,” 16.

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Law and History Review
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