10 HARVARD LAW REVIEW, the hand, as heretofore used, shall be practised, with such excep- tions as to Mahometans and other persons who believe that an oath is not binding unless taken in their accustomed manner, as the several courts shall find necessary in the execution of the laws." The practice imder this statute appears to have been lib- eral, and to have followed that of the English court in Colt v. But- ton, 2 Sid. 6 (1657), in allowing a variation from the comrnon form, not merely where this was thought not binding, but where it was thought less solemn. And so the court was able to answer the Roman Catholic Bishop as it did in 1834.^ This practice was sanctioned by Rev. Stat, c.94, s. 8 (Nov. 1835), allowing it when the court . . . shall be satisfied " of a witness's belief as to the greater solemnity of another form, — changed by Stat. 1873, c. 212, 6. I, to "when a person . . . shall declare." ^ Regarding the Indians as atheists, they would regularly have been wholly excluded from giving testimony; for atheists, as I have said, were not admitted to testify in this State until the enactment of the General Statutes (Dec. 28, 1859), where it was provided (c. 131, s. 12; now Pub. St. c. 169, s. 17), that "every person not a believer in any religion shall be required to testify truly under the pains and penalties of perjury." ^ But the politic and sensible arrangements about Indians which were actually adopted have been already stated. For such an exception there was not only the usage as to the witnesses of persons accused of high treason or felony, mentioned above (p. 7), but there was the nearer analogy of children too young to take an oath, in rape cases.^ This practice as to young children was, indeed, declared bad, by a divided court, in Powell's Case, Leach (4th ed.), no (1775), and by a unanimous court in Brasier's Case, ib. 199 (1779). But it has recently been revived in England, by statute, in a similar class of cases. 2. Passing from the oath and the religious disabilities to those arising from a pecuniary interest in the litigation and from legal 1 Com. V. Buzzell, 16 Pick, at p. 156; supra, p. 3, n. i. Compare Vail v. Nickerson 6 Mass. 262 (1810) and Bonnier, Preuves (4 ed.), i. ss. 420, 424. 2 And so now in Pub. Stat. c. 169, s. 14. Rev. Stat. c. 94, s. 11, had also introduced the express provision previausly mentioned, that believers in any other than the Chris- tian religion might be sworn according to any peculiar ceremonies of their religion. 8 In England, this was partly accomplished in 1854 by Stat. 17 and 18 Vict. c. 125, 8. 20; it was completed in 1869, by Stat. 32 and 33 Vict. c. 6, s. 4. See the later com- prehensive statute of 1888, Stat. 51 and 52 Vict. c. 46.
- I Hale, PI. Cr. 634; 2 ib. 279.
