State v. Powers

• Decision Date: 10 June 1889
• Citation: 51 N.J.L. 432,17 A. 969
• Parties: STATE (PERCEY, Prosecutor) v. POWERS et al.
• Court: New Jersey Supreme Court

17 A. 969

51 N.J.L. 432

STATE (PERCEY, Prosecutor)

v. POWERS et al.

Supreme Court of New Jersey.

June 10, 1889.

Certiorari to court of common pleas, Essex county; KIRKPATRICK, BUTTNER, and LEDWITH, judges.

An appeal in an action of debt, begun in a court for the trial of small causes, came on for trial in the Essex common pleas. The plaintiff, whose administrator is now the defendant in certiorari, was sworn as a witness on his own behalf, and subsequently the defendant, now plaintiff in certiorari, tendered himself as a witness in his own behalf. The plaintiff objecting to his competency, on the ground that he did not believe in the existence of a Supreme Being, and in a future state of rewards and punishments. The defendant stated that he did believe in the existence of a Supreme Being; that he did not disbelieve in a future state of rewards and punishment; that he believed the punishment proscribed by the state laws to be the only punishment which he would receive for false swearing; and further than that he could not honestly go. Upon this the common pleas excluded him as incompetent, allowed him an exception, and subsequently rendered judgment for the plaintiff. Hence this certiorari.

Argued June term, 1888, before DEPUE, VAN SYCKEL, and DIXON, JJ.

J. A. Beecher, for plaintiff in certiorari, L. McCarter, for defendant in certiorari.

DIXON, J., (after stating the facts as above.) Assuming the common-law rule to be that no person can be a witness in a judicial proceeding unless he believes that God will punish perjury, it becomes necessary to consider the effect of that clause in the first article of our state constitution, which declares that "no person shall be denied the enjoyment of any civil right merely on account of his religious principles." By statute, in this state, parties in suits are generally competent witnesses in their own behalf, and when the prosecutor tendered himself as a witness in his own behalf before the common pleas his right to testify would have been conceded had he believed that God would punish perjury. His right was denied merely because he did not so believe. It was not that he did not think himself bound to tell the truth according to his oath, but only that he had not an affirmative faith that the Divine Being would inflict some penalty upon him if he violated his obligation. Two questions, therefore, arise—First, is the right of a party to testify in his own behalf a civil right; second, is the belief of a person as to whether God will punish perjury to be ranked among his religious principles. By civil rights, I understood those rights which the municipal law will enforce, at the instance of private individuals, for the purpose of securing to them the enjoyment of their means of happiness. They are distinguishable from natural rights, which would exist if there were no municipal law, some of which are abrogated by municipal law, while others lie outside of its scope, and still others are enforceable under it as civil rights. They are also distinguishable from political rights, which are directly concerned with the institution and administration of government. Among civil rights is the right to prosecute and defend actions in the courts of the commonwealth according to the established rules of practice. This proposition is sufficiently vindicated by a reference to the Civil Rights Cases in the supreme court of the United States, (100 U. S.,) where it is assumed as true by all the justices of that tribunal. Thus in Strauder v. West Virginia, 100 U. S. 303. Mr. Justice STRONG, expressing the opinions of himself and all his associates, except Justices CLIFFORD and FIELD, says that the Fourteenth amendment of the federal constitution was intended to secure to the colored race all the civil rights which the white race enjoy, and speaks of section 1977 of the Revised Statutes of congress, (which enacts that all persons within the jurisdiction of the United States shall have the same right to sue, be parties and give evidence,) as putting in the form of a statute what had been substantially ordained by the constitutional a...