
    Leonard Ross versus Joshua Lapham.
    In an action for charging the plaintiff with perjury, it is not competent for the defendant to give evidence that the plaintiff" had constantly advanced atheistical opinions as the principle of his belief, in mitigation of damages.
    The declaration in this action was for slanderous words; alleging that the defendant had, at various times, charged the plaintiff with the crime of perjury.
    The general issue was joined, and at the trial thereof, before Jackson, J., at the last April term in this county, the defendant, by a motion in writing to the judge, offered to give in evidence, in mitigation of damages, “that the plaintiff constantly from his youth up had advanced, as the principle of his belief, that there is no God, that all existence is the effect of chance, that man perishes at his death like the trees, that he has no soul, that he has no existence beyond the grave, and that he has no accountability hereafter/’
    The judge overruled the motion; and the defendant filed his exceptions to the said decision, the jury having returned a verdict for the plaintiff. The judge allowed the exceptions; but considering them immaterial, entered judgment, and ordered execution to issue thereon.
    
      Hubbard, for the defendant,
    moved for a new trial, for the rejection of the said evidence, and argued to the following effect: In the trial of this action, the defendant was allowed to prove that the plaintiff had in * conversation contradicted his testimony under oath, and to show his manner and appearance while testifying.
    The reason for admitting this evidence was, that thereby a reasonable suspicion might have been excited in the mind of the defendant, that the plaintiff had not conformed to the obligation of his oath. If to these causes of suspicion atheism were added, the reasonableness of the suspicion would be augmented, and the presumption of malice in the defendant would be lessened. The object of the evidence rejected was the same as of that admitted, and its direct tendency was to render the latter less equivocal.
    As the only stable foundation of morality is religion, and as the knowledge or belief of the existence of God is the foundation of al’ religion, the atheist must be without moral principle. To him an oath is a senseless form of words, an invocation to a Being that with him has no existence; and no blessing or curse attaches to him for uttering truth or falsehood.
    Should a person called as a witness avow his atheism, the court tvould not suffer an oath to be administered to him; and this not solely on the ground of technical propriety, but that truth may be gtablished and always proclaimed in courts of justice. It is true . .at all the sanctions of human laws would attach to the atheist, who testifies falsely, as much as to a person of another character. The reason, then, for rejecting an atheist as a witness is, that the use and object of an oath administered to a witness is not to secure the temporal punishment of its violation, but that truth may be manifested. It is the witness’s sense of the obligation imposed on him which begets the legal assurance in his testimony, and makes it more improbable that he will swear falsely. The atheist has can celled this obligation. He is extra legem, and incompetent to be a witness.
    An incompetent witness is necessarily, in a legal point of view, an incredible witness ; and if a juror is bound to give no credence to testimony, the law will * not imply malice in another, who refuses to place confidence in it.
    In every action for slander, the defendant has a right to show the general reputation of the plaintiff, in respect to objects comprised in the class or species of calumny complained of; otherwise justice can be done to neither party.
    Whatever may be shown, to discredit one compulsorily relating facts as a witness, must be received against him in an action grounded on the truth of his testimony. For it were absurd to say that evidence may be adduced against a witness to discredit and nullify his testimony, and yet that, in an action for impeaching that testimony, that very evidence should be excluded as irrelevant.
    Mankind revolt from the atheist, and denounce him as unworthy of belief, not to be endured. Where, then, is the malice in uttering the common sentiments of mankind ? It is true, he has all the legal rights of a citizen, and is entitled to the protection of his person and property from the law. But when he prosecutes for an injury to his reputation, what is the consideration for compensation ? where the right or title to recover damages? The only allowable measure of damages is the danger of corporal suffering he may be subjected to under the statute of perjury; nothing for loss of reputation, for ne can lose none; nothing for the injury done to his feelings, for all humane, social, and religious feelings and sympathies are. dead in him.
    No oath binding the conscience of an atheist was administered to fhe plaintiff. A lifeless ceremony was performed over a dead carcass. As to any obligation the plaintiff felt himself under to declare the truth, the charge complained of is as if it had been made against one who had taken no oath.
    It is competent for this Court, the main preserver of the public
    
      peace and morals, to permit this evidence to go to the jury. The civil constitution of the state is expressly bottomed upon principles at war with those delineated in the motion. Common law is the approved * principles of reason and justice.
    .That God exists is the highest dictate, and that he'should be reverenced is the first law, of our nature. The atheist has stilled that dictate, and annulled that law. Suspicion, distrust, and disbelief, attach to whatever he says under oath.
    The evidence offered goes invincibly in diminution of damages. A good character is used to enhance the compensation for slander: may not the worst character among mankind go to lessen it? A verdict, which should make no distinction between the claims of a Christian and an atheist, in an action like the present, would be a libel on every thing that is venerable or estimable. The damages, to be exemplary, must be small. Nothing, but an insurmountable rule "of law, could compel a Christian jury to give to an atheist in this action one cent damage. A charge of perjury does not defame him ; it is only alleging that crime to have been perpetrated which all mankind believed would be perpetrated, when an opportunity presented.
    
      Noble, for the plaintiff.
    No one is bound to defend himself in a court of justice against charges not contained in the declaration of pleadings. The plaintiff was not obliged, indeed he could not, come prepared to answer a charge such as the defendant would have alleged against him. His general character, as a man of truth, he puts in issue, when he brings such an action as the present. But he is not held to disprove particular charges, whether of crimes, errors, or indiscretions, unless they are pertinent to the issue on trial, and he has had due and legal notice.
    It may be said that, with many people, perhaps with a great part of the community, it would not go further to impeach or lessen a man’s credibility as a witness, that he was suspected of atheism, than that he was an avowed Universalist, or a believer in the doctrine of absolute irrespective decrees, in relation to the future condition of mankind.
   Per Curiam.

It is a strong argument against the admission of the evidence offered by the defendant at the trial of this cause, that, in the whole history of actions * for slander, of which the books are so full, this point does not appear to have been ever taken. Indeed, on principle, independent of the authority which the silence suggested implies, we think the evidence inadmissible. The words charged are in themselves actionable, and the jury are the proper judges of the damages. The evidence has no bearing on the temporal consequence of the crime. It would indeed be a singular defence, in a criminal prosecution for perjury, that the person charged with the crime was an atheist.

On the other ground, too, that this evidence was a surprise upon die plaintiff, it was properly rejected by the judge. By commencing this action, the plaintiff put his general reputation at issue. He must be prepared to repel by evidence any attack on his character at large. But evidence of particular facts, however, if proved, it might affect his general standing in society, is not to be received. The particular offered in evidence had no tendency to make it more probable that the plaintiff had committed perjury, or to show it less injurious on the part of the defendant to have charged him with it.

Motion for a new trial overruled.  