Some oaths may, indeed, from the form of them, produce an obligation, where the juror would otherwise have been under no obligation. This is the case in assertory oaths, where the person who takes the oath might otherwise have been silent, and consequently would not have been obliged to tell the truth, if he had not sworn to tell it. But then in forms of this sort we must observe, that, besides the oath itself, there is a promise contained, and such a promise, as would have been obligatory, if it had been expressed in such words as would have separated it from the oath. So that the oath introduces an obligation no otherwise, than by being accidentally included in the same form of words with the promise, from which the obligation properly arises. A form of words, which is suited to the purpose of my swearing to tell the truth, contains both a promise, that I will do so, and an oath confirming such promise.

are outward marks

XII. *An oath produces no effect, where it is not at- No effect of an tended with such outward circumstances, as plainly oath, unless there show, that he who goes through the form of it, intends of an intention to to swear. How far his want of inward intention may swear. affect his obligation, shall be considered presently.

This seems to be so certain, as to make it ridiculous to imagine, on the contrary, that he who repeats the words of an oath, when the occasion of doing this, or the manner of doing it, show him to have no intention of binding himself, should, notwithstanding this, be bound merely by repeating those words: as if the words of an oath acted like a charm, and could not pass through a man's mouth, upon any occasion, or in any manner, without binding his conscience. A clerk in court dictates to me the very words which I am to say in taking an oath, and without mentioning my name, speaks throughout in the first person, because I, who am to repeat the words after him, am to speak in this person: the occasion of his doing this would sufficiently show, that he had no design of swearing himself; that I, and not he, am the juror; and that whatever is the matter of the oath, I, and not he, am bound to the performance of it.

However, in most cases, all ambiguity of this sort is effectually provided against, by speaking in the second person, and telling the juror what he is to swear, without making him repeat the words: or, because, where the oath is long and the matter of it various, it may be the better impressed upon his mind, if he is made to repeat them, his name may be inserted to ascertain that he is the juror. And in either case, in the solemn form of an oath, besides repeating the words, some act likewise is to be done by the juror, such as holding the gospels, kissing the book, lifting up his right hand, putting his hand under the thigh of him who imposes the oath. Such oaths as these, from the corporal act of the juror himself, are called corporal oaths: and this act, whatever it is, sufficiently fixes who the person is, that intends to swear.

XIII. But may it not be asked, whether the juror is Want of inward obliged by his oath, or incurs the guilt of perjury in intention, where breaking it, supposing him to go through all the for- there is the outmality of swearing, as to the outward acts, in such a does not prevent manner, that all who see and hear him, would conclude the effect of an that he intends to swear, but to have, in the meantime, oath.

* Grot. Lib. II. Cap. XIII. § II.

ward mark of it,

† Grot. Ibid. § III.

a reserve, of not intending to swear, in his own mind. A simple promise, in the same circumstances, would undoubtedly be binding: because those outward signs, which either nature suggests or custom establishes for expressing or publishing our intentions, stand in the place of the intentions, which they so express. The juror, therefore, notwithstanding his inward reserve, is certainly under the obligation of his promise. And the only doubt that there can be, in regard to the effect of his oath, arises from hence: mankind have no way of knowing one another's thoughts, but by means of the outward signs, which are made use of to express those thoughts: upon that account, our obligations or our claims, arising from consent, can be ascertained no otherwise than by the intention, which appears; and no regard can be had to any other intention. But the case may at first sight appear to be otherwise in respect of God. He knows the innermost thoughts of our heart, though we express them by no outward sign at all; nor can he be misled to judge them to be what they are not, though we should make use of such outward signs as custom has made to signify what is directly contrary to our meaning when we use them. Since, therefore, the effect of an oath, like all adventitious obligations, depends upon our intention, as far as it is known to the party with whom we are concerned; and since the party, with whom we are concerned in oaths, is God, who knows the true intention of our hearts; it may seem at first sight, that the want of an inward intention to swear, will prevent the oath from producing its effect; notwithstanding we make use of such words or other signs, as might make us appear outwardly to have an intention of swearing. But here it is to be remembered, that the effect of all oaths is to confirm some human pact, some contract or some promise, either express or implied, between man and man. God is called in, not in order to produce any new obligation, but only to strengthen the obligation of such human pact. It is to be remembered farther, that, in the very oath itself, the juror agrees with the person, who imposes or who accepts the oath, to call God in as a party to their obligation. Thus then an oath, in all views of it, though it calls in God as a party, is in itself only part of a human pact: and, consequently, as in all other pacts between man and man, so likewise in an oath, the outward declarations stand in the place of the juror's intention; and if he falsifies in respect of what is expressed by such outward declarations, he is guilty of perjury, whatever secret reserves he might have in his own mind.

Oath is void, when

So,

XIV. From what has been said it sufficiently appears, the pact is that the proper matter of all oaths is some other obligawith which it is tion. What we swear to, is some promise or contract, joined. either expressed or implied: and the obligation of such promise or contract, which the oath is intended to confirm, is the matter of the oath. When, therefore, the promise or contract is void, which the oath was made use of to confirm, there can be no effect of the oath; or, to speak in the common language, there can be no obligation arising from it. For where there is no obligation from such promise or contract, the oath has no matter, and of course can produce no We swear to make good some particular obligation: therefore, where that obligation is void, or where there is no obligation, we swear to nothing.

*Upon this principle, all oaths which are obtained by fraud are void; if the fact, in which the juror is deceived, was the whole ground or reason of his swearing: for we have seen already, that such erroneous pacts are void in themselves. In like manner all oaths to the performance of what is impossible or unlawful are void: because the pacts are so, which such oaths are made use of to strengthen. For the same reason, where an extorted promise is void, the promiser, though he should be sworn to performance, is not affected by the oath.

But in the case of oaths, which arise from fear, we must distinguish, as we did in the case of promises. Whenever a promise, which arises from fear, is binding upon the promiser, an oath, arising from the same cause, and applied to confirm such a promise, will have its full effect. All oaths, therefore, which are extorted by any just fear are binding; and so likewise are all such as arise even from unjust fear; provided the person, to whom we swear, had no hand in the injustice.

XV. It is sometimes inquired, under this head, Oath to a robber whether we are bound by an oath, which we swear to is binding. a robber. Those, who maintain such an oath not to be binding, are apt to confound two other questions with this; though they are very different from it. They either invent some unlawful matter for the oath, and then conclude it to be void; or else they set aside the obligation of it upon an arbitrary supposition of its having been unjustly extorted. But in the true state of this question the matter of the oath and the manner of procuring it are no way concerned. It is one thing to inquire, whether an oath to this or that purpose is binding; and another to inquire whether an oath, without considering the purport of it, is therefore void, because the person, with whom we are concerned, is a robber. The former inquiry relates to the matter of the oath, the latter relates only to the character of the person to whom we swear. So again; it is one thing to inquire whether an oath unjustly extorted is binding; and another to inquire, whether an oath is binding, merely because the person, to whom we swear, is a robber, without considering whether he extorts it or not. The stress of the present question, when stripped of all circumstances, which do not belong to it, rests upon this single point; since a robber is a common enemy of mankind; can any oath, though the matter of it should be lawful, and though there is no particular injustice in the manner of obtaining it, oblige the juror? The character of the person, to whom we swear, is the only circumstance to be considered: and the question is, whether, as there is no intercourse of social ties between him and the juror, he can have any claim in consequence of the juror's oath.

When the question is thus stated, the obvious answer seems to be, that such an oath is binding, notwithstanding the character of him to whom we swear. If there is nothing unlawful in the matter of the oath, nor any injustice in the manner of procuring it, the character of the robber does not at all enter into it, and for that reason cannot at all affect it. To urge, that he has broken all social ties, and that consequently he can have no claim arising from the natural connections of mankind with one another is nothing to the purpose: because the claim in question is not such an one as naturally arises out of any social con

* Grot. Lib. II. Cap. XIII. § XIV.

Grot. Ibid. § XV.

nections with him, but such an one as we give him by the particular act of swearing to him voluntarily for some lawful purpose. He may, indeed, by having, as it were, declared war against all mankind, have deprived himself of all his former claims: but it does not appear from hence, that it is become impossible for him to acquire any claim, though we are ever so willing to give him one, and though there is no injustice either in our giving him such claim, or in his procuring or accepting it.

*

Grotius, indeed, carries this matter farther, and maintains, that if our oaths are not directed to man, but to God; that is, if our engagements are properly vows and not oaths; or if they are indeed such, as tend to confer a claim upon them, to whom we swear, but any thing can be objected to that claim, so as to set it aside; which is the case where an oath is extorted; we are then obliged to make good what we have sworn to, not in virtue of their right, to whom we swear, because, by the supposition, they have no right, but in regard to God, by whom we swear. If this reasoning was just, an oath given to a rob ber, not only when he has procured it fairly, but when he has extorted it by unjust fear, would be binding upon the juror.

To clear up this matter we will first suppose our engagement to be properly an oath: where, besides the appeal to God, there is the appearance of some right or claim conferred upon the party, to whom we swear. If this right or claim is void in itself, or if any thing can be opposed to it, which would set it aside, so that the promiser, if he had not sworn, would not have been bound to performance; yet, if he has sworn, the oath, says our author, will bind him. Now, this decision plainly proceeds upon this false principle, that the oath is a distinct covenant in itself, and not a part of the pact, which it is intended to confirm. But the true notion of an oath, as already explained, shows that it is no such distinct covenant, that it does not properly contain in it the notion of an obligation, if we separate it from some other obligatory pact with which it is joined: the obligation of it amounts to no more than the addition of an extraordinary penalty, if we falsify in that pact. If, therefore, we take away the obligation of the pact, to which such penalty has been annexed by swearing to it; what becomes of the penalty; that is, of the obligation of the oath? I make a promise or engage in a contract: by this act I oblige myself to do or to give something. I swear to this pact; the oath strengthens this obligation, by subjecting me to an extraordinary penalty, if I do not act conformably to my obligation. But by some flaw in the pact there happens to be no obligation arising from it: how, therefore, do I incur the penalty annexed? I am subject to it, if I do not do what I was obliged to: but I am, on account of that flaw in the pact, obliged to nothing; and, consequently, let me act as I will, I am clear of the penalty.

If we suppose, what is not true, that the oath is an obligatory act distinct from the promise or contract confirmed by it; the obligation of an oath, in this view of it, is between God and the juror; so that it will, in effect, amount to a vow. We shall, therefore, see how the case would stand upon this supposition, if we consider what would be the effect of a vow in such circumstances. Suppose, therefore, a vow

Grot. Lib. II. Cap. XIII. § XIV.

to be unjustly extorted; does such vow bind the person, who is thus forced to engage in it? To determine upon this question, it will be necessary to observe, that as a promise made to a man does not oblige, unless he, to whom it is made, accepts it; so neither does a vow, which is a promise made to God, oblige, unless God accepts it. Whenever, therefore, we have sufficient reason to believe that God does not accept a vow, such vow is not binding. Now the case supposes some damage to arise from the vow to the party engaging in it; which damage is the effect of the other party's injustice, who extorts it by the use of force. I cannot, therefore, see what grounds there can be to imagine, that God accepts such a vow, unless we would make him a party in the injustice, and suppose that he consents to the damage, which must be sustained by the performance of it.

XVI. *Whatever effect there is in an oath, merely as Effect of an oath an oath, or as it subjects the juror to the guilt of perjury does not extend to if he falsifies, this effect does not descend to the heirs the juror's heirs. of the juror. It has, indeed, been shown elsewhere, that as far as any contract, which has been confirmed by an oath, affects the goods of the juror, such contract will bind his heirs. But then it does not bind them under the penalty of perjury: because an oath is a personal appeal to God; it is an act, by which the person, who makes this appeal, imprecates the divine displeasure upon himself, or renounces for himself the divine favour, if he does not perform what he swears to: and, consequently, the penalty of incurring the divine displeasure, or of forfeiting the divine favour, if the oath is not kept, is merely personal, or does not affect the juror's heirs.

A man may endeavour to extend this penalty farther, by wishing a curse upon his heirs, by imprecating the divine displeasure upon them, or by renouncing the divine favour towards them, if they do not perform what he has sworn to. But whatever fear superstition may produce in them upon account of such an execration; it is very evident, that reason and religion would show it to be impossible for any one to renounce the favour of God and the hopes of his mercy for any one but himself; and, consequently, that the penalty of perjury is confined wholly to himself, however he might endeavour to extend it to his heirs. XVII. When we threaten to do any causeless harm, Oaths to do harm and swear to put those threatenings in execution; it is not binding as plain that such an oath confers no right at all upon

Vows.

any one. It certainly confers no right upon the person who is to suf fer this harm; or if we could imagine it to confer any, we may be sure it is such a right as he very readily gives up; because we are sure that he, like all other men, is desirous to keep free from suffering harm. And if we have engaged to do him this harm by a promise made to some third person, which promise we have sworn to; this promise is void. If, therefore, we apprehend ourselves to be bound under the penalty of perjury to do such harm, it must be by an obligation to God, in the way of a vow. But the matter of such oaths, even in this view of them, will always be sufficient to set them aside; since we may be certain that God does not accept them. So that the juror, though he is guilty of profaning God's name by thus swearing, is not guilty of perjury by not doing what he has sworn.

Grot. Lib. II. Cap. XIII. § XVII.