The Atheist And The Judicial Oath
Persons, "who are insensible to the obligations of an oath, from defect of religious sentiment and belief," are classified by Simon Greenleaf as "persons incompetent to testify." The ominous distrust which pervades humanity is traceable to "defect of religious sentiment and belief." There is little if any profit to be derived by society from pointing up the need of confidence in one's fellowman when it is daily demonstrated that the majority of people, the world over, are utterly insensible to the obligations to speak the truth, the whole truth and nothing but the truth. To have confidence in people who have slight if any regard for truth is an impossibility.
Those who sincerely hold to the doctrine of the right of "mental reservation" should be regarded as incompetent to testify; they are insensible to the obligation to speak the truth when the truth is to their own hurt. The obligation to speak the truth is not limited to those cases where personal interests are not present. Dishonesty is identified as expediency with many and thus justified in the sight of men. The doctrine of "mental reservation" is a phase of the subject, of the obligation to speak the truth, which needs to be thoroughly explored in a nonpartisan spirit. This, however, is not the design of this article. The atheist and the obligation to speak the truth is its concern and the following quotation from Green-leaf's text book on EVIDENCE clearly sets forth the case.
"The third class of persons incompetent to testify as witnesses consist of those who are insensible to the obligations of an oath, from defect of religious sentiment and belief. The very nature of an oath, it being a religious and most solemn appeal to God, as the Judge of all men, presupposes that the witness believes in the existence of an omniscient Supreme Being, who is "the rewarder of truth and avenger of falsehood; and that, by such a formal appeal, the conscience of the witness is affected. Without this belief, the person cannot be subject to that sanction, which the law deems an indispensable test of truth. It is not sufficient, that a witness believes himself bound to speak the truth from a regard to character, or to the common interests of society, or from fear of the punishment which the law inflicts upon persons guilty of perjury. Such motives have indeed their influence, but they are not considered as affording a sufficient safeguard for the strict observance of truth. Our law, in common with the law of most civilized countries, requires the additional security afforded by the religious sanction implied in an oath; and, as a necessary consequence, rejects all witnesses, who are incapable of giving this security. Atheists, therefore and all infidels, that is, those who profess no religion that can bind their consciences to speak truth, are rejected as incompetent to testify as witnesses." (p. 415-416.)
Greenleaf inserts as a footnote the following clear, convincing comment from STARK'S EVIDENCE:
"The law is wise in requiring the highest attainable sanction for the truth of testimony given; and is consistent in rejecting all witnesses incapable of feeling this sanction, or of receiving this test; whether this incapacity arises from the imbecility of their understanding, or from its perversity. It does not impute guilt or blame to either. If the witness is evidently intoxicated, he is not allowed to be sworn; because, for the time being, he is evidently incapable of feeling the force and obligation of an oath. The non compos, and the infant of tender age, are rejected for the same reason, but without blame. The atheist is also rejected, because he, too, is incapable of realizing the obligation of an oath, in consequence of his unbelief. The law looks only to the fact of incapacity, not to the cause, or the manner of avowal. Whether it be calmly insinuated with the elegance of Gibbon, or roared forth in the disgusting blasphemies of Paine; still it is atheism; and to require the mere formality of an oath, from one who avowedly despises, or is incapable of feeling, its peculiar sanction, would be but mockery of justice." (Law Reporter, pp. 346, 347.)
— 417 E. Groesbeck, Lufkin, Texas