Medieval Theology in Modern Criminal Law

Abstract

I. Credibility of Dying Declarations During the formative period of our common law the class of individuals responsible for the course and development of that law was composed of persons professing belief in the doctrines of orthodox Christianity of the time. In many respects the law, on various subjects, came to conform to such doctrines. In a few particulars it does so even to this day, and in some matters it discriminates against those not having or professing the belief in question. The discrimination works a wrong upon them, and that too without any corresponding benefit to society or even to any other class. The wrong is inflicted not only upon atheists but also upon those religious persons who omit adherence to one or more of the 17th century doctrines and who have no objectionable religious practices. But if atheists alone were the victims, dictates of humanity would still suggest that discriminations on account of religious or non-religious beliefs ought to be removed. Civilization has so progressed, in the matter of toleration of diverse opinions on religious subjects, that it is not impious to say that the individual who professes no religion whatever is not, on that account, any less deserving of respect and of rights and privileges than any one else. The atheist, when it is discovered that he really is an atheist, is generally found to be as good a citizen as his Christian neighbor, and to have been such previously. No one disputes his understanding of secular subjects. He is moral, from choice and natural bent, and in every way entitled to every civil right enjoyed by Christians. Theoretically, the atheist does enjoy every civil right claimed by others, but in the matter of the protection of life, if not also in other respects, he is less secure than the believer. This situation arises from a seemingly harmless rule of evidenceregarding the credibility of dying declarations. The rule concerns the use, as evidence in a trial for murder, of declarations made by the person assaulted when he was about to die from the injuries received. Such dying statements may, ordinarily, be treated as the testimony of the declarant and given effect as if they were statements made by a witness at the trial testifying