While visiting London in the summer of 1857, the Baron Carl de Gleichen, a man of complex nationality and advanced views, was set upon by denizens of the Victorian underworld and robbed. His assailants were caught and brought before the Marlborough Street Police Court. However, because the baron would not say he believed in a future state after death in which he would be "rewarded or punished according to his deserts," they were set free. At English common law, the baron could not take an oath if he did not think a supernatural force would punish him for breaking it, (1) and since he was the only witness, there was therefore no evidence with which to convict.
In 1992, an Ontario high school student--known to us as "N.S."--told a trusted teacher that she had been repeatedly raped by her cousin and uncle from the age of six. Her family did not want to take any action and the police did not lay charges. It is hard to imagine N.S. had the self-confidence generations of privilege and freethinking had bred into the baron. Fifteen years later, though, she tried again. A Crown prosecutor was sufficiently persuaded of the plausibility of her evidence to allow charges to proceed. By this time, N.S. had developed the religious conviction that she must wear a niqab, a veil that covers her entire face other than her eyes, when in the presence of men outside her direct family.
Although they attended the same mosque as N.S., the accused men asked for a court order that N.S. remove the niqab while testifying. They argued that only by seeing her face could the judge or jury tell whether she was lying. As a result of a complex decision released by a divided Supreme Court of Canada in 2012, we do not know whether N.S. will be compelled to choose between obeying her religious convictions and testifying against her alleged assailants. (2) On the basis of the Supreme Court decision, an Ontario Court judge has decided that N.S. must remove her veil to testify; she plans to appeal. In any case, it is clear that some Muslim women will not be allowed to testify in Canadian courts if they will not show their faces.
Religious belief and the competence of witnesses
Google remembers Baron de Gleichen today because his treatment by the English criminal justice system outraged John Stuart Mill:
This refusal of redress took place in virtue of the legal doctrine, that no person can be allowed to give evidence in a court of justice, who does not profess belief in a God (any god is sufficient) and in a future state; which is equivalent to declaring such persons to be outlaws, excluded from the protection of the tribunals; who may not only be robbed or assaulted with impunity, if no one but themselves, or persons of similar opinions, be present, but any one else may be robbed or assaulted with impunity, if the proof of the fact depends on their evidence ... Under pretence that atheists must be liars, [this rule] admits the testimony of all atheists who are willing to lie, and rejects only those who brave the obloquy of publicly confessing a detested creed rather than affirm a falsehood. (3) Outlawery was the gravest punishment of the Anglo-Saxon legal order because an outlaw could be subjected to violence with impunity, and Mill knew the term resonated with his Victorian audience. He pointed out that the protection of the criminal law does not extend to a person who cannot give evidence in court. He had enough imagination to see that a judge or jury drawn from mainstream society will discount the honesty of a person who conscientiously holds minority opinions more than they should, and that there is therefore no danger that such a person's evidence will be given excessive weight. By holding on to this "relic of persecution," society injured both the religious liberty of its freethinkers and its own safety.
On Liberty is a favourite of undergraduate education in political theory and philosophy. It is clearly written and reasonably short, and easily inspires classroom discussion about the implications of the harm principle for censorship of pornography and hate speech. As an undergraduate, I must have been assigned it at least three times. But I don't remember anyone lingering over the case of Baron de Gleichen. Classroom time is scarce, and I suspect it would have seemed too easy: an aftereffect of religious bigotry without any plausible secular justification that was anachronistic even at the time. Debates about the limits of freedom of speech were burning ones in the social science and humanities faculties of the early 1990s, but debates about the relationship between religious beliefs and the competence of witnesses in court proceedings, if we had thought about them at all, would have seemed about as relevant as the divine right of kings.
N.S.'s case shows we would have been wrong: de Gleichen's case was not an easy one, and when faced with similar issues today, there is no guarantee we will get them right. With the exception of Justice Rosalie Abella, who consciously or unconsciously echoed Mill, the judges of Canada's highest court decided that juries cannot be trusted to weigh the evidence of a woman who braves the obloquy of wearing a niqab. In Mill's terms, they have declared such women outlaws, excluded from the protection of the tribunals. Two justices would never allow the evidence of a veiled woman to go to a jury; the majority would give trial judges the discretion to allow it when the evidence of marginal importance, but not when it is central to the case and credibility is in issue. The issues Mill dealt with remain living ones. Questions of who can give evidence go to the heart of who is included in a society both because a person who cannot give evidence is outside the protection of the legal system and because evidence depends on a consensus on procedures for determining who can be trusted. We are still a long way from those procedures being rooted in science, which means they must depend on cultural expectations, which in turn are more rooted in religion than secular undergraduates are likely to realize.
Oaths and early modern English law
As is so often the case, condescension about the past blinds us to a more interesting story. In fact, easy as it is to forgive him, Mill was unfair to the authors of the common law rule he decried. They were relative cosmopolitans who acted not out of religious bigotry or hatred but from purely secular motives.
Like most legal rules in those days, the "rule in Omichund v. Barker" arose out of concrete litigation. Barker was an Englishman trading in Calcutta in the first half of the 18th century, before British dominance was established in India. He ran up a large debt with a local merchant, Omichund, and sailed home rather than pay it. In 1744, Omichund sought the assistance of the English...