Page images

hæc sancta evangelia," or "So help me God, and the contents of this book;" which last clause forms a connexion between the words and action of the juror, that before was wanting. The juror then kisses the book: the kiss, however, seems rather an act of reverence to the contents of the book (as in the popish ritual, the priest kisses the Gospel before he reads it,) than any part of the oath.


This obscure and elliptical form, together with the levity and frequency with which it is adminis tered, has brought about a general inadvertency to the obligation of oaths; which, both in a religious and political view, is much to be lamented and it merits public consideration, whether the requiring of oaths on so many frivolous occasions, especially in the Customs, and in the qualification for petty offices, has any other effect, than to make them cheap in the minds of the people. A pound of tea cannot travel regularly from the ship to the consumer, without costing half a dozen oaths at the least; and the same security for the due discharge of their office, namely, that of an oath, is required from a church-warden and an archbishop, from a petty constable and the chief-justice in England. Let the law continue its own sanctions, if they be thought requisite ; but let it spare the solemnity of an oath. And where, from the want of something better to depend upon, it is necessary to accept men's own word or own account, let it annex to prevarication penalties proportioned to the public mischief of the offence.

II. But whatever be the form of an oath, the signification is the same. It is "the calling upon God to witness, i. e. to take notice of, what we say," and it is "invoking his vengeance, or renouncing his favour, if what we say be false, or what we promise be not performed."

III. Quakers and Moravians refuse to swear upon any occasion; founding their scruples concerning the lawfulness of oaths upon our Saviour's prohibition, Matt. v. 34: "I say unto you, Swear not at all."

The answer which we give to this objection cannot be understood, without first stating the whole passage: "Ye have heard that it hath been said

[ocr errors]

by them of old time, Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths. But I say unto you, Swear not at all; neither by heaven, for it is God's throne; nor by the earth, for it is his footstool; neither by Jerusalem, for it is the city of the great King. Neither shalt thou swear by thy head, because thou canst not make one hair white or black. But let your communica tion be, Yea, yea; Nay, nay: for whatsoever is more than these, cometh of evil."

To reconcile with this passage of Scripture the practice of swearing, or of taking oaths, when required by law, the following observations must be attended to:


1. It does not appear, that swearing "by hea ""by the earth," 27 62 ven," by Jerusalem," or by their own head," was a form of swearing ever made use of amongst the Jews in judicial oaths: and consequently, it is not probable that they were judicial oaths which Christ had in his mind when he mentioned those instances.

2. As to the seeming universality of the prohibition, "Swear not at all," the emphatic clause" not at all" is to be read in connexion with what follows; "not at all," i. e. neither " by heaven," nor by "the earth," nor 66 by Jerusalem," nor 26 by thy head;""not at all," does not mean upon no oc casion, but by none of these forms. Our Saviour's argument seems to suppose, that the people to whom he spake, made a distinction between swearing directly by the "name of God," and swearing by those inferior objects of veneration," the heaens," ""the earth," "Jerusalem," or "their own head." In opposition to which distinction, he tells them, that on account of the relation which these things bore to the Supreme Being, to swear by any of them, was in effect and substance to swear by him, "by heaven, for it is his throne; by the earth, for it is his footstool; by Jerusalem, for it is the city of the great King; by thy head, for it is his workmanship, not thine-thou canst not make one hair white or black :" for which reason he says, "Swear not at all," that is, neither directly by God, nor indirectly by any thing related to him. This interpretation is greatly confirmed by a pas

sage in the twenty-third chapter of the same Gos> pel, where a similar distinction, made by the Scribes and Pharisees, is replied to in the same


3. Our Saviour himself being "adjured by the living God," to declare whether he was the Christ, the Son of God, or not, condescended to answer the high priest, without making any objection to the oath (for such it was) upon which he examined him-" God is my witness," says St. Paul to the Romans, "that without ceasing I make mention of you in my prayers ;" and to the Corinthians still more strongly, "I call God for a record upon my soul, that to spare you, I came not as yet to Corinth." Both these expressions contain the nature of oaths. The Epistle to the Hebrews speaks of the custom of swearing judicially, without any mark of censure or disapprobation: "Men verily swear by the greater; and an oath, for confirmation, is to them an end of all strife."

Upon the strength of these reasons, we explain our Saviour's words to relate, not to judicial oaths, but to the practice of vain, wanton, and unauthorized swearing, in common discourse. St. James's words, chap. v. 12, are not so strong as our Saviour's, and therefore the same explanation

with more ease.

IV. Oaths are nugatory, that is, carry with them no proper force or obligation, unless we believe that God will punish false swearing with more severity than a simple lie, or breach of promise; for which belief there are the following reasons:

1. Perjury is a sin of greater deliberation. The juror has the thought of God and of religion upon his mind at the time; at least, there are very few who can shake them off entirely. He offends, therefore, if he do offend, with a high hand; in the face, that is, and in defiance, of the sanctions of religion. His offence implies a disbelief or contempt of God's knowledge, power, and justice ; which cannot be said of a lie, where there is nothing to carry the mind to any reflections upon the Deity or the Divine Attributes at all.

2. Perjury violates a superior confidence. Mankind must trust to one another; and they have no

thing better to trust to than one another's oath. Hence legal adjudications, which govern and affect every right and interest on this side of the grave, of necessity proceed and depend upon oaths. Perjury, therefore, in its general consequences, strikes at the security of reputation, property, and even of life itself. A lie cannot do the same mischief, because the same credit is not given to it.*

3. God directed the Israelites to swear by his name;t and was pleased, "in order to show the immutability of his own counsel," to confirm his covenant to 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; which effect must be owing to the severer punishment with which he will vindicate the authority of oaths.

V. Promissory oaths are not binding where the promise itself would not be so; for the several cases of which, see the Chapter of Promises.

VI. As oaths are designed for the security of the imposer, it is manifest that they must be interpret ed and performed in the sense in which the imposer intends them; otherwise, they afford no security to him. And this is the meaning and reason of the rule, "jurare in animum imponentis;" which rule the reader is desired to carry along with him. whilst we proceed to consider certain particular oaths, which are either of greater importance, o more likely to fall in our way, than others.


Oath in evidence.

THE witness swears "" to speak the truth, the whole truth, and nothing but the truth, touching the matter in question."

*Except, indeed, where a Quaker's or Moravian's affirmation is accepted in the place of an cath; in which case, a lie partakes so far as this reason extends, of the nature and guilt of perjury.

Deut. vi. 13. x. 20.


Heb. vi. 1.

[ocr errors]

Upon which it may be observed, that the designed concealment of any truth, which relates to the matter in agitation, is as much a violation of the oath, as to testify a positive falsehood; and this, whether the witness be interrogated as to that particular point or not. For when the person to be examined is sworn upon a voir dire, that is, in order to inquire whether he ought to be admitted to give evidence in the cause at all, the form runs thus: "You shall true answer make to all such questions as shall be asked you;" but when he comes to be sworn in chief, he swears" to speak the whole truth," without restraining it, as before, to the questions that shall be asked: which difference shows, that the law intends, in this latter case, to require of the witness, that he give a complete and unreserved account of what he knows of the subject of the trial, whether the ques-tions proposed to him reach the extent of his knowledge or not. So that if it be inquired of the witness afterward, why he did not inform the court so and so, it is not a sufficient, though a very common answer, to say, "Because it was never asked me."

I know but one exception to this rule; which is, when a full discovery of the truth tends to accuse the witness himself of some legal crime. The law of England constrains no man to become his own accuser consequently imposes the oath of testimony with this tacit reservation. But the exception must be confined to legal crimes. A point of honour, of delicacy, or of reputation, may make a witness backward to disclose some circumstance with which he is acquainted; but will in no wise justify his concealment of the truth, unless it could be shown, that the law which imposes the oath, intended to allow this indulgence to such motives.The exception of which we are speaking, is also withdrawn by a compact between the magistrate and the witness, when an accomplice is admitted to give evidence against the partners of his crime.

Tenderness to the prisoner, although a specious apology for concealment, is no just excuse for if this plea be thought sufficient, it takes the administration of penal justice out of the hands of judges

« PreviousContinue »