(Anglo-Saxon, ath) may be defined (see above) as an expressed or implied solemn invocation of a superior power, admitted to be acquainted with all the secrets of our hearts, with our inward thoughts as well as our outward actions, to witness the truth of what we assert, and to inflict vengeance upon us if we assert what is not true, or promise what we do not mean to perform. Almost all nations; whether savage or civilized, whether enjoying the light of revelation or led only by the light of reason, knowing the importance of truth, and willing to obtain a barrier against falsehood, have had recourse to oaths, by which they have endeavored to make men fearful of uttering lies, under the dread of an avenging Deity. The antiquity of oaths seems almost coeval with man's existence. The absence of the practice in any people is one of the clearest proofs of a want of conception of the existence of God. Indeed, it is a noticeable fact that in the earliest state of civilization the belief of the special interference of the Deity in the affairs of men was a prevailing and all but universal idea. Man, it was thought, by certain mystic forms and hallowed ceremonies could compel the interference of the Divinity either to establish. innocence or to detect guilt. Hence came ordeals and trials by battles and by lot; hence the belief that by the eating of bread or by the drinking of water by walking barefoot over burning plowshares, by thrusting the hand amid poisonous serpents, or throwing the accused, bound hand and foot, into water, amid prayers and the imposing forms of antique superstition, God would manifest the truth by a miraculous violation of the laws of nature. So extensively diffused was. this idea, that it was alike believed by the polished Athenian on the banks of the Ilissus, Western Israelite amid the hills of Judaea, the African dwelling under the burning heat of the torrid zone, and the Scandinavian worshipper of Thor or Odin amid the fastnesses of the North. All nations, barbarous or just. emerging from barbarism, have resorted to the Divinity for the decision of disputed questions with somewhat similar ceremonies, and undoubtedly with like success. Part and parcel with ordeals, whether of bread or of water, of poisons or of plowshares, whether of Grecian, Jewish, Hindf, or Scandinavian form and origin, based upon the same principle, involving the same leading idea, is the oath by which divine vengeance. is imprecated upon falsehood, and by the use of which ceremony, if it be effective, the Deity is, specially and for that cause, bound to inflict the requisite and appropiate punishment in case of its violation. As the analogies traceable amid the radical words of different languages all point to a common origin — a primal language — so the innumerable resemblances discernible amid the elemental forms of jurisprudence among nations diverse in their local habitations, with varying customs and sympathies and languages, would equally seem to indicate a common source, from which at some point of time; now uncertain or lost in the darkness of a remote antiquity, they originally sprang. (For an inquiry into the origin of oaths; and an acute disquisition on oaths generally, see Heineccius, Exercit. xviii, De Lubricitate, etc.)
Among Christians an oath is a solemn appeal for the truth of our assertions, the sincerity of our promises, and the fidelity of, our engagements, to the one only God, the Judge of the whole earth, who is everywhere present, and sees and hears and knows whatever is said or done or thought in any part of the world. Such. is the Being whom Christians, when they take an oath, invoke to bear testimony to the truth of their words and the integrity of their hearts. Surely, then, if oaths be a matter of so much moment, it well behooves us not to treat them with levity, nor ever to take them without due consideration. Hence we ought, with the utmost vigilance, to abstain from mingling oaths in our ordinary discourse, and from associating the name of God with low or disgusting images, or using it on trivial occasions, as not only a profane levity in itself, but .tending to destroy that reverence for the Supreme Majesty ‘ which ought to prevail in society and to dwell in our own hearts. Perhaps all excesses in this case are caused by the extravagant, profuse, and wasteful, use of oaths among us, so utterly at variance with the command, "swear not at all," making the oath so powerless for good and so potent for evil.
To develop clearly the use of oaths in early and modern times, we will here briefly notice the purposes for:which and the occasions on which they have been taken, their different forms and ceremonies, the various punishments for their violation, the theory which justifies and requires their adoption as a sanction for truth, and their real force and efficiency in the administration of judicial affairs. (We rely mainly on Appleton's Rule of Evidence Stated and Discussed [Phila. 1860, 8vo], ch. 16). For the usages among the Jews, see the preceding article.
Perjury, by the Mosaic law, was an offense against the civil law; to God alone was left its punishment. The civil magistrate had no jurisdiction of the offense charged, except in the case of a false charge of crime, when punishment was to be inflicted upon the person falsely charging it. The perjurer might expiate his guilt by making the prescribed and predetermined trespass offerings. The misunderstanding or misinterpretation of this may in later times have led to the Romish doctrines of absolution and the sale of indulgences; for it is difficult to perceive much difference in principle whether the offerings made to escape the punishment of the Deity be in certain specific articles or in certain money payments.
The form of swearing among the Greeks was by lifting up the hand to heaven or touching the altar, adding a solemn imprecation to their oaths, for the satisfaction of the person by whom the oath was imposed, as well as to lay a more inviolable obligation upon the person taking it — in terms something like this: If what I swear be true, may I enjoy much happiness; if not, may I utterly perish. In judicial proceedings the oath was administered to the witness before an altar erected in the courts of judicature, and with the greatest solemnity. The parties were likewise sworn the plaintiff that he would make no false charge, the defendant that he would answer truly to the charge preferred.
An ancient form among the Romans was for the juror to hold a stone in his hand, and imprecate a curse upon himself: should he swear falsely, in these words: "If I knowingly deceive, while he saves the city and citadel, may Jupiter cast me away from all that is good, as I do this stone." Among the Greeks and Romans, the oath was not merely used. to induce faith in judicial proceedings, but the gods were invoked as witnesses to contracts between individuals and treaties between nations.
When the shrine of Jupiter gave place to that of St. Peter; when the innumerable gods and goddesses of ancient superstition were converted into the equally numberless saints and saintesses of Catholicism; when the Poutifex Maximus of consular and imperial, became the Pontifex Maximus of papal Rome, without even the change of his sacerdotal vestments; when the rites and ceremonies — the whole ritual of the pagan worship were transferred bodily to the worship of the papacy, the oath, which was essentially a religious ceremony, was adopted as it had heretofore been administered, except so far as was required by, the alteration in the name of the object of worship, and in its purposes and its beliefs. As before this change the altar, or the sacred things upon it, were touched or kissed, as the more gods one swore by the stronger the oath, so we find after this change similar forms and ceremonies were adopted, with slight variations. The very form of the imprecation used is of pagan origin. "So help me Jupiter and these sacred things" became "So help me God and these sacred relics," or "these holy Evangelists." The flamen of Jupiter, from the sacredness of his office, was not compelled to take an oath, and the word of the priest, "verbum sacerdotis," in conformity with the old superstition, has sufficed. Justinian prescribes the following form: "I swear by God Almighty, and by his only-begotten Son our Lord Jesus Christ, by the Holy Ghost and by the glorious St. Mary, mother of God, and always a virgin,. and by the four Gospels which I hold in my hand, and by the holy archangels Michael and Gabriel," etc., closing with an imprecation upon his head of the terrible judgment of God and Christ, our Savior, and that he might have part with Judas and the leper! Gehazi, and that the curse of Cain might be upon him. Besides oaths on solemn and judicial occasions, the ancients were in the habit of making use of them, as nowadays, as the "supplemental ornament of speech" "as expletives to plump the speech, and fill up sentences;" swearing by the patron divinities of their cities. as in later days by patron saints; by all manner of beasts and creeping things, by the fishes of the sea, and by stones and mountains.
"Per Solis radios, Tarpeiaque fulmina jurat
Et Martis frameam, et Cirrhaei spicula Vatis;
Per calamos Venatricis pharetramque Puellse,
Perque tuum pater A Egaei Neptune tridentem;
Addit ’ et Herculeos arcus, hastamque Minervse,
Qulidquid habent telorum armamentaria coeli."
Indeed, the common profane oath of the English is but a translation of the "Dii me perdant" of classical antiquity. But the oaths of the ancients, however absurd or ridiculous, were infinitely exceeded in absurdity by the exuberant and grotesque profaneness of the Christians of the Middle Ages. They swore "by Sion and Mount Sinai," "by St. James's lance," "by the brightness of God," "by Christ's foot," "by nails and by blood," "by God's arms two" — they swore
"By the saintly bones and relics
Scattered through the wide arena;
Yea, the holy coat of Jesus,
And the foot of Magdalena."
Menu, the great lawgiver of the East, the son of the Self-existent, as he is termed in the sacred books of the Hindus, ordains that the judge, having assembled the witnesses in the court, should in the presence of the plaintiff and defendant address them as follows:
"What ye know to have been transacted in the matter before tus, between to parties reciprocally, declare at large and with truth, for your evidence is required.
"The witness who speaks falsely shall be fast bound under water in the sinaky cords of Varuna, and he shall be wholly deprived of power to escape torment during a hundred transmigrations; let mankind give therefore no false testimony.
"Naked and shorn, tormented with hunger and thirst, and deprived of sight, shall the man who gives false testimony go with a potsherd to beg bread at the door of his enemy. Headlong and in utter darkness shall the inmpious wretch tumble into hell, who, being interrogated in a judicial inquiry, answers one question falsely.
"The priest must be sworn by his veracity; the soldier by his horse, or elephant, or weapons; the merchant by his kine, grain, and gold; the mechanic, or servile man by imprecating on his head, if he speak falsely, all possible crimes."
In this code the guilt of perjury varies in intensity according to the subject- matter of testimony.
"By false testimony concerning cattle in general, the witness incurs the guilt of killing five men; he kills ten by false. testimony concerning kine; he kills a hundred by false testimony concerning horses; and a thousand by false testimony concerning the human race."
But what is human life compared with gold, or with land? The scale rises, the atrocity increases:
"By speaking falsely in a cause concerning gold, he kills, or incurs the guilt of killing, the born and unborn; by speaking falsely concerning land, he kills everything animated. Beware, then, of speaking falsely concerning land. Marking well all the murders which are comprehendied in the crime of perjury, declare the whole truth as it was heard and as it was seen by thee."
Notwithstanding all this, pious falsehood — for instance, perjury to save life which would be forfeited by the rigor of the law — is not merely allowed, but approved, and eulogistically termed "the speech of the gods."
"To a woman on a proposal of marriage, in the case of grass or fruit eaten by a cow, of wood taken for a sacrifice, or of a promise made for the preservation of a Brahmin, it is no deadly sin, to take a slight oath."
Somewhat famous has been the lubricity of lovers' oaths. The lover swore, indeed; but, as was said by the Greeks, oaths made in love never enter into the ears of the gods. This, probably, is the only code not only allowing and approving falsehoods by lovers, but by others. Various are the modes of administering an oath. A cow is sometimes brought into court, that the witness may have the satisfaction of swearing with her tail in his hand; the' leaf of the sweet basil and the waters of the Ganges are swallowed; the witness holds fire, or touches the head of his children or wife; while the less orthodox followers of Brahmin, those of the jungle tribes, impressed with the belief that if they swear falsely, they shall be food for tigers, are sworn in the skin of one. — Among the Mohammedans the oath is administered with the Koran on the head of the witness; but it is not binding illness taken in the express name of the Almighty, and then it is incomplete unless the witness, after having given in his evidence, again swears that he has spoken nothing but the truth. The oath is not worthy of credit unless taken in the name of God; and the swearer must corroborate it by reciting the attributes of God, as, "I swear by the God besides whom there is no other righteous God, who is acquainted with what is hidden," etc.
Much of the judicial proceedings of our Anglo-Saxon ancestors rested upon oaths, and the punishment for their violation was severe. The perjurer was declared unworthy of the ordeal, was incompetent as a witness, denied Christian burial, and classed with witches, murderers, and the most obnoxious members of society. Oaths were administered to the complainant in criminal proceedings, and to the accused. The oath of the complainant was as follows: "In the Lord, I accuse not N either from hate, or art, or unjust avarice, nor do I know anything more true; but .so my mind said to me, and I myself tell for, truth that he was the thief of my goods." The accused swore as follows: "In the Lord, I am innocent, both in word and deed, of that charge of which P accused me." The oath of the witness was: "In the name of Almighty God, as I stand here a true witness, unbidden and unbought, so I oversaw it with mine eyes, and even heard it in my ears, what I have said." From this it would appear that, in those early days before the inveterate chicanery of Norman jurisprudence had cursed English soil, it was usual to swear the parties — those who knew something about the matter. The different oaths of modern Europe — ordeal oaths, oaths of compurgators, decisory oaths, oaths of calumny, oaths military and masonic-might well deserve attention; but we have already, perhaps, occupied too much attention in reverting to the forms and usages of the past. There are but two instances of nations among whom oaths have not been adopted in judicial proceedings. Among the Chinese no oath is exacted by the magistrate upon the delivery of testimony. When they question each other's testimony, appeals to the gods are only made by cutting off the head of a fowl and wishing they may thus suffer, or blowing out a candle, and wishing they may thus be extinguished, if they do not speak the truth. The other instance is to be found in the code of laws formed with great judgment and much discrimination by the missionaries at Tahiti, where, we believe, oaths have for the first time been abolished by Christian people (comp. Ellis, Polynesian Researches, p. 150).
The form of oaths in Christian countries varies greatly, but in no country in the world are they worse contrived, either to convey the meaning or impress the obligation of an oath, than in Great Britain and America. The juror with us, after repeating the promise or affirmation which the oath is intended to confirm, adds, "So help me God;" or, more frequently, the substance of the oath is repeated to the juror by the magistrate, who adds in the conclusion, "So help you God." The energy of this sentence resides in the particle so — that is, hac lege, upon condition of my speaking the truth or performing this promise, and not otherwise, may God help me! The juror, while he hears or repeats the words of the oath, holds his right hand upon a Bible, or other book containing the Gospels, and at the conclusion kisses the book. This obscure and elliptical form, together with the levity and frequency of oaths, has brought about a general inadvertency to the obligation of them, which, both in a religious and political view, is much to be lamented; and it merits public consideration whether the requiring of oaths upon so many frivolous occasions, especially in the customs and in the qualification of petty offices, has any other effect than to make such sanctions cheap in the minds of the people. A stranger among us would imagine it was a precept of our religion to swear always, at all times and on all occasions. Not an executive officer, from the president to a marshal, from a governor to a constable; not ajudicial officer, from the chief-justice to the lowest magistrate known to the law; not a member of our numerous legislative assemblies not an officer of the army or navy; not a soldier or sailor enlisting, but is sworn in certain set and prescribed formulas.
A sworn assessor is required to assess our taxes, a sworn collector to collect, and a sworn treasurer to receive the money collected. Not a lot of land is levied upon without the intervention of oaths. The whole custom-house department is rife with them. As has been well said, "Not a pound of tea can travel regularly from the ship to the consumer without costing half a dozen oaths at least." Through all the innumerable gradations of life official, civil, military, executive, and judicial the oath is the established security by which, in their respective spheres, they are all bound to the performance of their several duties-and that, too, by a people, one of the clearest precepts of whose religion is "Swear not at all;" and when, in many of the above instances, the violation of the several duties sworn to be done and performed is not punishable as perjury. Nor are these the only cases in which the oath is used. No testimony is received in any judicial proceeding until after its administration.
As a security for official faithfulness, or as a preventive of official delinquency, it is notoriously worthless and inoperative. What may be its value in the preserving and promoting of trustworthiness of testimony we propose to consider. Those who advocate the use of oaths should bear in mind that for the purpose of justice it is perfectly immaterial whether the testimony uttered be sworn or unsworn, provided it be true. Before considering the supposed efficiency of an oath,' it may be advisable to see what other and how powerful securities for testimonial veracity are attainable without resort to this supernatural agency... "Truth is the naturial language of all it is the general rule; falsehood the rare and occasional exception: Even of those least regardful of veracity, truth is the ordinary and common language. The greatest liar, no matter how depraved he may be, usually speaks the truth. And why? Invention is the work of labor. To narrate facts in the order of their occurrence, to tell what has been seen or heard, is what obviously occurs to any one. To avoid doing this is a work of difficulty. Falsely to add to what has occurred, carefully to insert a dexterous lie, requires ingenuity, greater or less, according to the greater or less degree of skill with which the lie is dovetailed among the truths that surround it. No matter how cunning the artificer, the web cannot be so woven that the stained and colored thread cannot be seen. Love of ease, fear of labor, the physical sanction, are always seen cooperating with truth. Any motive, however slight and even infinitesimal, is or may be sufficient to induce action in a right direction, except when overborne by other and superior motives in a sinister direction. By a sort of impulse, by the very course of nature, the usual tendency of speech is in the line of truth. Regard for public opinion, the pain and shame universally attendant upon the ignominy attached to falsehood detected, the disgrace of the liar — in other words, the moral and popular sanction, with but rare and accidental exceptions — is found tending in the same direction.
Much the greater part of what is known, is known only from the testimony of others. Our necessities, the necessities of others and of social intercourse, require that, for our own preservation as well as for that of others, the truth should be told. Hence among all nations, barbarous and civilized, and among civilized in proportion to their advancement, the term Liar has been one of deep reproach, never used without inflicting pain on the person to whom it is applied. However great the disgrace, it is immeasurably increased when the occasion upon which the falsehood is uttered is a judicial one. The more important the occasion, the greater the public indignation and scorn attached to its violation. The law regarding veracity, which is peculiarly desirable in judicial investigations, may impose severe penalties for false testimony — mendacity — penalties varying in degree of severity according to the aggravation of the offense, and thus may furnish additional sanction to and security for testimonial trustworthiness. It may happen that the statement of a witness, while true in part, may be defective in detail, either by the omission of true or the utterance of false particulars. Correctness and completeness are both included in perfect veracity. Incorrect in part, incomplete to any material extent, the evils of such incompleteness and incorrectness, when not the result of design, may be as great as those of deliberate and intentional falsehood, How best to attain those indispensable requisites is the problem, the solution of which becomes so important in the practical administration of the law. How best to compel the reluctant an d evasive witness; how to quicken the careless and indifferent; how to check and restrain the rash and presumptuous; how to convict the deliberately and wilfully false; how to extort from reluctant lips the truth, and nothing but the truth — by what processes these results may be attained, is the great question; Interrogation and cross- interrogation — rigid, severe, and scrutinizing-under a proper system of procedure, confirmed and strengthened by the sanctions already alluded to, are the securities upon which all real and substantial reliance must be placed. The ordinary motives to veracity, without the aid of cross- examination, and unaccompanied by fear of punishment in case of falsehood, are found sufficient in the common affairs of life to produce veracity. The extraordinary security afforded by punishment, compulsory examinations and cross-examinations, would seem to suffice in the case of evidence judicially given. As, however, testimony is judicially given only updn and after the ceremony called an oath, it is only punishable, if false, after the oath has been legally administered. This is not necessarily so; for, if the legislature should so will, the temporal punishment might as well be inflicted without as with an oath."
Having briefly considered the temporal securities for truth, it now remains to ascertain the real significance and true value of the oath as a preventive of testimonial mendacity.
" ‘ What is universally understood by an oath,' says lord, Hardwicke, is that the person who undertakes imprecates the vengeance of God upon himself if the oath he takes be false.' ‘ An oath,' says Michaelis, ‘ is an appeal to God is a surety and the punisher of perjury; which appeal, as he has accepted, he of course becomes bound to vindicate upon a perjured person irremissibly.' ‘ Were not God to take upon himself to guarantee oaths, an appeal to him in swearing would be foolish and sinful. He undertakes to guarantee it, and is the avenger of perjury, if not in this world, at any rate in the world to come.' By the use, then, of this ceremony, the Deity is engaged, or it is assumed that he is engaged, in case of a violation of the oath, to inflict punishment of an uncertain and indefinite degree of intensity — at some remote period of time, in some indefinite place, according to the varying and conflicting theological notions of those holding this belief — notions varying according to the time when and place where they are entertained, and the education and character of those entertaining them. It cannot be questioned that the Deity will punish for falsehood, whether judicially or extra-judicially uttered; nor that such punishment, whatever it may be, whensoever, wheresoever, or howsoever inflicted, will be junstitting, and appropriate. Were the ceremony not used, were unsworn testimony delivered, subject to temporal punishment, were all oaths abolished, false testimony, so far as this world is concerned, would be as injurious as if uttered under the sanction of an oath.
The injurious effects in the administration of justice would be the same. The unsworn witness would be amenable to the penalties of the law, as the sworn witness is now. Now, what is accomplished by the oath? The falsehood and its disastrous effects to the course of justice are the same whether the oath has been taken or not, the temporal punishment is or maybe made the same. The oath, if effective, therefore, is only effective so far as future punishment is concerned, which, inconsequence of its administration, will thereby be increased or diminished-for if the future punishment were to remain the same, then nothing would have been effected; the oath would be a mere idle ceremony-telumque imbelle sine ictu. That punishment hereafter will thereby be diminished, no one will pretend, certainly not those who repose confidence in the efficacy of this sanction. If it be increased, then, and then only, is the ceremony effective — then only is a valid reason given for its adoption. The falsehood being the same, whether the testimony be sworn or unsworn, the punishment for the falsehood itselfmust necessarily be the same. For if falsehood be a proper subject of punishment, when the effects are the same, the lie will be punished without as well as with any ceremony preparatory to its utterance. If, then, an increase of punishment will be inflicted, it must be for the profanation of the ceremony, and nothing else.
All that is alleged, then, to have been accomplished is that an increased amount of punishment is to be inflicted simply for the violation of a ceremony, and entirely irrespective and regardless of any evils flowing from the falsehood. No sanction for truth is really obtained. But in what does the binding force of oan oath consist? When Jephthah, returning in triumph, was met by his daughter with timbrels and dances, was Jephthah under any obligation to perform the vow he had made, to offer up for a burnt offering whatsoever should come forth from the doors of his house to meet him? If yea, such obligation arose not from the rightfulness or propriety of the matter vowed, for that was a dark and atrocious murder, ‘ for she was his only child; besides her he had neither son nor daughter.' The performance, if required, was required solely in consequence of the vow, ‘ For I have opened my mouth to the Lord, and cannot go back.' If nay, if the vow was not to be performed, then does it not follow that it is the fitness of the thing sworn to be done or not which is the basis of the obligation, and upon which its binding force rests? When Herod, pleased with the dancing of the daughter of Herodias,' ‘ promised with an oath to give her whatsoever she would,' and when she requested the head of. John the Baptist in a charger, was he thereby bound to give it to her? "Mohammed says, when you swear to do a thing, and afterwards find it better to do otherwise, do that which is better, and make void your oath. The very definitions of an oath show that, by reason and in consequence of an oath, the Deity becomes bound to punish a perjured person irremissibly.
History, too, shows that obligations upon man, and so, too, upon the Deity, arising from the oath, varied, or were supposed to vary, in intensity, according to the changing forms and circumstances attendant upon its administration. When Robert, the pious king of France, abstracted the holy relics from the cases upon which the oath was taken, and substituted therefor the egg of an ostrich, as being an innocent object, and in capable of taking vengeance on those who should swear falsely, he might have been correct as to the incapacity of the egg; but did he thereby save his subject from perjury, or avert the punishment of the Deity? When Harold, shuddering, saw the bones and relics of saints and martyrs, real or fictitious, upon which he had unconsciously sworn, were the obligations he had assumed increased by their unknown presence? Or was it the unreasoning fear of abject superstition which led him to believe that he had thus immeasurably increased the dangers of superhuman punishment? Indeed, when men consider they are under obligation to utter the truth or not, as they stand upon a tiger's skin or hold in their hand the tail of a cow; as they have their hat on or off; as certain spurious relics of fictitious saints are closed in the pyx or not; as the lips touch the thumb or the book; as the book has, or not, a cross upon it — who is there so wise as to affirm that the person so swearing does not believe that the virtue resides, or is considered by those believing, to reside in the ceremony, and in that alone? that the thing sworn to be done or not done, and its propriety, are not even matters deemed worthy of thought? Or, as Mr. JunLin has aptly said, ‘ No one pretends that the material of a book — the leather, the paper, the cord, the ink is God, and yet many, hei; the book (Bible) is used, lift their thoughts no higher.' (This position has, however, been questioned by the editor of the Princeton Review, Jan. 1846, p. 176 sq.) Now, can it be possible that by acts of idolatry the obligation to utter truth is increased? Is not truth eternal and immutable? Is not the duty to utter the truth, and nothing but the truth, paramount and prior to all oaths?
The oath may be the same, so far as the ceremony is concerned, either to utter the truth or a falsehood, but is the .obligation the same? If the obligation rests on, the oath, each alike must be performed as sworn. If it rests on the rightfulness of the thing to be done, then why add the oath? "The oath is not without its accompanying evils. By imposing punishment only when it has been administered, it lessens the iniportance of and the respect due to truth, in. statements uttered extra-judicially, and gives an implied license to falsehood out of court. The truth seems only to be specially requisite in the case of an oath, otherwise it is comparatively immaterial. Charles Lamb, in his quaint and quiet way, and with great humor and truth, says, The custom of resorting to an oath in extreme cases is apt to introduce into the laxer sort of minds the notion of two kinds of truth: the one applicable to the solemn affairs of justice, and the other to the common proceedings of daily intercourse. As truth, bound upon the conscience by an oath, can be but truth, so, in the common affirmations of the shop and the market, a latitude is expected and conceded upon questions wanting this solemn covenant. Something less than the truth satisfies. It is common for a person to say, You do not expect me to speak as if I were upon my oath. Hence, a kind of secondary or laic truth is tolerated when clerical truth, oath truth, is not required: A Quaker knows none of these distinctions.' Not very dissimilar was the idea of St. Basil, that ‘ it is a very foul and silly thing for a man to accuse himself as unworthy of belief, and to proffer an oath for security.' The oath, too, is a disturbing force in giving the just degree of weight to testimony. It tends to place all testimony upon the same level, to cause equal credence to be given to all, because all have passed through the same ceremony. The attention of the court or the judge is withdrawn from the just appreciation, of the grounds of belief or disbelief in the evidence. The same ceremony for all, the tendency is to believe that its force is the same upon all, and thus the bad receive undue credence, while the good are reduced to the standard of the bad.
"In what does the difference consist between judicial and extra-judicial falsehood? The consequences of the latter may be more or less injurious than those of the former; the injury greater, the loss in the latter case of property, reputation, or even life, in the former of a few shillings, it may be; is the falsehood judicially uttered the greater offense? To suffer the same by the utterance of the same words in court or out of court, in the street or on the stand, with or without assenting with upraised hand to certain words, in what is the difference to the loser, or the general injury to the community? Why in one case punish, in the other exempt from punishment? Does it not degrade the general standard of veracity? does it not create the notion that truth is not expected on ordinary occasions, but is only required as a sort of court language? What are the lessons of experience? To determine the real value of this sanction, one must abstract all those concurring and cooperating securities which alone are of real importance, but which, not being estimated at their value, give this an unnatural and undeserved efficiency.
Take away public opinion; let falsehood be regarded with as much indifference as among the Hindus; remove all fear of temporal punishment in case of testimonial falsehood; abolish the test of crossexamination; leave the willing or unwilling witness to state more or less, according to the promptings of his inclination, and you then see the measure of security for trustworthiness derivable from the oath. When the oath-sanction is in accordance with the other securities of trustworthiness, its weakness is not perceived. Let the religious cease to be in conformity with the popular sentiment or even with convenience, and its violation is looked on with indifference or even complacency. ‘ If you wish,' says Bentham, ‘ to have powder of post taken for an efficacious medicine, try it with opium and antimony; if you wish to have it taken for what it is, try it by itself.' Definite, certain, immediate punishment alone is powerful to restrain or coerce. The future, enshrouded in darkness, yields to the present. The fear of punishment hereafter to he imposed for falsehood, without oath, or with oaths, so far as it may be increased thereby, is a motive of little strength. The uncertainty whether any will be inflicted, the unalterable ignorance as to what the amount may be, or when in time or where in space it is to be inflicted, render it a security untrustworthy and powerless in its action upon even the most intelligent and conscientious, while unaided and unsupported by other sanctions. The oaths of Oxford University have been taken by the most cultivated minds of Europe; by those who, in after-life, attained the highest dignities of the Church or the State; by those who, from their station, their education and intelligence, would be least likely to disregard their obligation. These oaths required obedience to statutes framed centuries ago by and for a ‘ set of monks, and are about as consonant with the present state of society as the monkish costume would be to a general-in-chief at the head of his army. Consequently, they are not merely not observed. but their observance would be a matter of astonishment to all, equally to those sworn to observe and those sworn to require their observance. Another habitual violation of oaths has been seen in the conduct of English judges and juries in the administration of the criminal law. The English code was written in blood.
Draco would have shuddered at the multiplicity of its bloody enactments. Death was inflicted in case of larceny dependent upon .the value of the thing stolen. With greater regard to the dictates of humanity than to their oath — obligations, juries, at the suggestion of the court, and for the express purpose of evading the law, have intentionally returned the article stolen as of less than its true value, to avoid the punishment of death, which otherwise would have been the penalty in case of conviction. Unanimity, too, is required in juries. A difference of opinion exists; in most contested cases of much complexity it is likely to exist. The really dissenting minority yield to the majority. The court aid or advise, and if advice will not serve, compel agreement by partial starvation; thus bringing physical wants to their aid to coerce real opinion. The open and profligate violation of custom-house oaths has attracted so much attention that in England they have been abolished. In this country a bill to that effect, with the approbation of the late John Quincy Adams, was introduced, but we believe it was defeated.
"A committee of the British Parliament, in their report on the judicial affairs of British India, recommended the abolition of oaths, on the ground that their moral sanction does not add to the value of native testimony, Hindu or Mohammedan; that the only practical restraint on perjury is the fear of punishment, imposed by law for that offense, and that the fear of consequences in a future state, or the loss of character or reputation among their own countrymen, has little effect upon the great majority of the people in securing true and honest testimony, when they may be influenced by the bias of fear, favor, affection, or reward.
The legal exclusion consequent upon, and caused by the oath, affords an unanswerable argument against its use. Most nations, in the spirit of religious bigotry and barbarian exclusiveness, so characteristic of unenlightened legislation, have excluded as witnesses those whose faith differ from their own. The government, determining what shall be the faith, decrees that dissidents shall be branded as infidels. The term infidel expresses merely dissent or disbelief, without reference to the truth Or falsehood of the thing disbelieved. It is the epithet which majorities apply to minorities, and consequently one of reproach. Justinian excluded infidels. Hindus and Mohammedans excluded infidels, because of their infidelity, and, by way of reprisal, they in their turn were excluded by Christians for the same cause. Such was the common law, as drawn from its purest fountains — from Fileta and Bracton. Coke, its greatest expounder, excludes them as unworthy of credit; for, says he, they are perpetual enemies as between them, as with the devils, whose subjects they are, and Christians, there is perpetual hostility, and can be no peace; for, as the apostle said, "And what concord hath Christ with Belial, or what part hath he that believeth with an infidel." It was not until the East India Company commenced that splendid career of conquest by which they acquired dominion over millions of subjects, and it was seen that an urgent necessity required the testimony of the natives, that the court, overruling the well-established law of ages, threw Bracton and Fleta overboard, because they were papists, and because in their day ‘ little trade was carried on but the trade in religion; and in the suit of Omichunld, the great Hindu banker, whose melancholy fate reflects little credit on British faith, against Baker, by an act of judge- made law, decided that all infidels, without reference to their religion, might be received and sworn, according to the customs of their respective countries; not because such was the law, but because to exclude them would be a ‘ most impolitic notion, and would tend at once to destroy all trade and commerce.' Even judicial optics, with dim and beclouded vision, saw that if the whole population of a country were ‘ excluded as infidels, proof might be deficient; but as it was thought to be to ‘ the advantage of the nation to carry on trade and commerce in foreign countries, and in many countries inhabited by heathens,' it was judged advisalle to trample the law under foot. A judicial caveat, however, was at the same time entered against giving the same credit, either by court or jury, to an infidel witness as to a Christian; provided only the wrath of God be imprecated, whether Vishnu or Fo, or any other of the innumerable gods of heathenism. But in none of them does the Christian repose faith. The witness imprecating the vengeance of false gods, of gods who will not answer, what is the belief of the Christian?
That the true God will as much hear and punish in consequence of the use of this ceremony, and for its violation, as if the adjuration had been in his name. If so, then are the magic virtues of the oath more enhanced, being compulsory upon the Deity, even when his name is not invoked? If not, then why swear the witness in the name of false gods? Why give a judicial sanction to superstition and idolatry by invoking false gods? why not rather let testimony be delivered under the pains and penalties of perjury, and let that suffice? Yet, by the common law, the swearer by broken cups and saucers, or he who thinks truths obligatory only when he has held the tail of the sacred cow, was heard when the oath was administered; while the intelligent and pious Quaker, who, in the simplicity of his heart, was so heretical as to believe that the command, ‘ Swear not at all,' meant what its obvious language imports, was excluded, because he believed the divinity of the command he was anxious to obey. He was thus left without protection to his person or property, unless he should be able to find a witness outside the pale of his sect by whom his legal rights could be established. But by that patchwork legislation so eminently distinguishing all law reform, an act was passed, and the law so amended — that a Quaker, when property was endangered, was admitted to. testify — but in cases of property alone, his testimony not being admissible in criminal cases. In this country, however, the legislature has removed the disqualification entirely; the absurdity is that it should ever have existed. These limited reforms do not afford a complete remedy for the evil. The incorrectness of religious belief is not the ground of exclusion; for, if so, one would think Hinduism sufficiently erroneous for that purpose. The theological jurist view's with more complacency the worst forms of paganism than a question alle variety of Christianity or entire unbelief. The only required qualification, in his view, is belief in future punishment, of which, in some aspect, there must be a recognition. If, believing the general doctrines of Christianity, the person sworn is so unfortunate as to believe that the cares and sorrows and misfortunes of this life are a sufficient punishment for transgressions here committed, and that God, in his infinite goodness and mercy, will hereafter receive all into a state of happiness, the common law excludes his testimony.
The judicial dabbler in theology in this country has generally followed the lead of transatlaitic jurisprudence. But whether the Universalist be a witness or not, all authorities agree that he who disbelieves in the existence of God, who, in the darkness of his beclouded reason, sees no God in the earth, teeming with its various and innumerable forms of animal or vegetable life, sees him not in the starry firmament — nor yet in the existence of man, the most wonderful of his works — is excluded. Atheism is always rare, yet we have, three times in one country, known the attempt made to exclude for that cause. The general bad character of the witness for truth and veracity affords no ground for exclusion, however much it may be for disbelief in testimony; but even if it did, it would not have been established in those cases. Erroneous belief was the only reason urged. The error of such belief, or want of belief, may not merely be conceded, but the entertaining of such sentiments may be deemed the misfortune of one's life. But because one of the securities for truth may be wanting, it is difficult to perceive why, all others remaining in ill force and vigor, the witness should not be heard; and why after, not, as the common law does, before such hearing, some judgment should not be formed by those who are to decide upon the matter in dispute of the truth or falsehood of his statements. He is rejected only because he is disbelieved. If he is to be believed when the truth uttered would expose him to reproach and ignominy, why not hear him under more favorable circumstances when the rights of others may be involved, and then judge? Exclude him, and any outrage may be committed upon him — his property may be robbed, his wife may be violated, his child maybe murdered before his eyes — and the guilty go unpunished, if he be the only witness; not because he cannot and will not tell the truth, but because the law will not hear him. Practically, the law is that, provided a man's belief be erroneous, anybody whose belief is better — and it matters little what it be, Hinduism or Fetichism — may inflict any and all conceivable injuries on his person and property, and the laws will permit such a person to go unpunished, unless there happens to be a witness whose belief should comport with the judicial idea of competency. Let the witness testify under the pains and penalties of perjury, and the great argument for the wholesale exclusion of testimony by the law is done away with. No intelligent judge or juryman ever relied upon the security of an oath alone. Judge of the witness by his appearance, manner, answers, the probability of his statements, comparing them with the lights derivable from every source. Punish falsehood injuriously affecting the rights of others in proportion to the wrong done, not with one uniform measure of punishment, as if the offense were in all cases the same. Tolerate not two kinds of truth, the greater and lesser, else both are lost. Elevate the standard of veracity by requiring it on all occasions, and in this way public morality is increased, and the real securities upon which the social fabric rests are strengthened."
It may be added in defense of those who approve of the practice of judicial swearing, that such look upon the oath as a reminder of the obligation to tell the truth only, a duty which they claim "man is too prone to forget."' The object of all forms of adjuration, they teach, "should be to show that we are not calling the attention of man to God; that we are not calling upon him to punish the wrong-doer, but upon man to remember that he will" (Tyler, p. 14). In this sense the oath should be defined as "an outward pledge given by the juror that his assertion or promise is made under an immediate sense of his responsibility to God." Those who approve of oaths teach that God will punish false swearing with more severity than a simple lie or breach of promise, and assign for their belief the following reasons: — "1. Perjury is a sin of greater deliberation. 2. It violates a superior confidence. 3. God directed the Israelites to swear by his name ( Deuteronomy 6:13; Deuteronomy 10:20), and was pleased to confirm his covenant with that people by an oath; neither of which, it is probable, he would have done had he not intended to represent oaths as having some meaning and effect beyond the obligation of a bare promise." (See Perjury). Promissory oaths, it is generally agreed, are not binding where the promise itself would not be so. (See Promises). As oaths are designed for the security of the imposer, it is manifest that they must be interpreted and performed in the sense in which the imposer intends them.
Refusals to take the oath have been frequent in modern times, but mainly in English-speaking countries. Of Protestants, the Anabaptists were the first to teach that oaths should not be taken. The Mennonites also held thus. Like them, the Quakers and the Moravians, applying literally the words of Christ ( Matthew 5:34), regard all oaths as unlawful. But other, communions generally restrict this prohibition to ordinary and private discourse, and find in Romans 1:9; 2 Corinthians 11:21; Galatians 1:20; Philippians 1:8; and 1 Thessalonians 2:5, full warrant for the lawfulness of oaths in judicial and other solemn use. From some passages of the fathers it appears that they had scruples as to the lawfulness of swearing (comp. Browne, Exposition Of The Xxxix Artices, p. 840-843); but those Christians who advocate the ceremony explain the writings of these fathers as for the most part referring to the oaths required of Christians by the pagans, which generally involved a recognition of particular pagan divinities; and that they condemned these pagan oaths, rather as involving, or even directly containing, a profession of the popular paganism, than as unlawful in themselves. The Christians of the later ages may perhaps be said to have multiplied in an opposite degree the occasions of oaths, especially of what were called "purgatorial" oaths, in which, a party charged with a crime justified himself by swearing his innocence. These oaths were commonly accompanied by some imprecatory form or ceremonial, and were often expected to be followed by immediate manifestations of the divine vengeance upon the perjurer. The common instrument of attestation On oath was the Bible, or some portion of it; but oaths were sometimes sworn on the relics of saints, or other sacred objects; sometimes simply by raising the hand to heaven, or by laying it upon the breast or the head. In canonical processes the oath was often administered to the party kneeling. The forms varied very much, the most general being that which the English oath still retains (Sic me Deus adjuvet). Divines commonly require, in order to the lawfulness of an oath, three conditions (founded upon Jeremiah 4:2), viz. Truth, Justice, And Judgment; that is to say,
(1) that the asseveration, if the oath be assertive, shall be True, and that the promise, if the oath be promissory, shall be made and shall be kept In Good Faith,
(2) that the thing promised shall be objectively lawful and good;
(3) that the oath shall not be sworn without due discretion and deliberation, nor without satisfactory reasons founded on necessity, or at least on grave and manifest utility.
Hence the person who is a witness must have sufficient understanding to know the nature and obligations of an oath; and on this ground young children are incompetent to be witnesses. Another condition or qualification required in the party who takes an oath as a witness is, that he has a competent sense of religion; in other words, he must not only have some religious knowledge, but some religious belief. He must, in substance, believe in the existence of a God, and in the moral government of the world; and though he cannot be questioned minutely as to his particular religious opinions, yet, if it appear that he does not believe in a God and future state, he will not be allowed to give his evidence, for it is assumed that without the religious sanction his testimony cannot be relied upon. So long, however, as a witness appears to possess competent religious belief, the mere form of the oath is not material. The usual practice in the United States and in Great Britain is for the witness, after hearing the oath repeated by the officer of court, to kiss the four gospels by way of assent; and in Scotland the witness repeats similar words after the judge, standing and holding up his right hand, "swearing by Almighty God, as he shall answer to God at the great day of judgment," but without kissing any book. Jews, if they so desire, are sworn on the Pentateuch, keeping on their hats, and the oath ends with the words, "So help you Jehovah." A Mohammedan is sworn on the Koran; a Chinese witness has been sworn by kneeling and breaking a China saucer against the witness- box. Thus the mere form of taking the oath is immaterial; the witness is allowed to take the oath in whatever form he considers most binding upon his own conscience — the essential thing being, however, that the witness acknowledge some binding effect derived from his belief in a God or a future state. The policy of insisting upon the religious formalities attending the taking of an oath has been much discussed of late years, and it has been disputed whether atheists, who avow an entire absence of all religious belief, should be entirely rejected as witnesses (as is sometimes the case), and justice be thereby frustrated. See Paley, Moral Philosophy, vol i, ch. xvi; Grotius, De Jure, I, ll, c. 13, § 21; Barrow, Works, vol. i, ser. 15,; Burnet, Exposition of the 39 Articles of the Church of England, p. 475, 515 sq.; Herport, Essay on Truths of Importance and Doctrine of Oaths; Doddridge, Lectures, lect. 189; Tillotson, 22d Sermon; Wolsely, Unreasonableness of Atheism, p. 152; Blackstone, Commentaries, vol. iii; Junkin, The Oath a Divine Ordinance (N.Y. 1845); Tyler, Oaths, their Origin, Nature, and History. On the casuistry of oaths: Sanderson, De Jurament. Oblig. Prcelect. (ed. 1688). See also Literature in Malcom, Theol. Index, s.v., and Notes and Queries, Jan. to June, 1860, and Dec. 1859.