tries. administration, have been very various in different ages and counThe ancient ceremonies, with which oaths were administered, were of a most imposing kind; and we may remark as a fact of some interest, in descending the chain of history from ancient to modern times, a gradual simplification of oaths and the accompanying ceremonies, as knowledge, intercourse, and good faith have become more common. * A very ancient form of the oath consisted in slaying an animal, cutting it into halves, placing the halves opposite to each other, sometimes upon opposite altars, between which the party or parties to be sworn, passed. This form appears to have been used, when covenants and treaties were made, and upon other occasions of unusual importance. Jeremiah says, "I will give to punishment the men who have not performed the words of the covenant which they had made before me, when they cut the calf in twain, and passed between the parts thereof. This ceremony was highly significant, importing that the person sworn consented to be cut to pieces in like manner with the animal slain before him, if he failed to observe the oath. Sometimes the victim was struck down with an axe, in the presence of the jurors, without being cut into pieces; the striking being preceded by an imprecation. Hence the Latin phrase ferire fœdus or pactum, from whence the English phrase to strike a bargain seems to be derived. This ceremony had the same import with the preceding. In the middle ages, when violence and bad faith were equally the chief characteristics of the times, the parties were sworn, on occasion of important transactions, at the altar of the church, before the consecrated host, or, which was esteemed still more binding, upon the relics of the Saints. The form of doing homage used by vassals to their liege lords, which consisted in the vassal's putting his hands between the knees and within the hands of the liege, at the same time kneeling before him, and which is in some countries continued to this day, may very * Jer. xxxiv. 18; Gen. xv. 9, 10, 17. Homer's Iliad, II. 124; III. 105. Livy, Lib. I. c. 24. See Calmet's Collections, under the terms "Oath" and "Covenant," and in Fragments, Nos. 63, 129, 131, 277. probably have been derived from the form of the oath seen in Genesis xxiv. 2, 3, as the variation is not very considerable.* In Scotland, and in some of the United States, the juror, when sworn, holds up his right hand. Dr. Paley thinks this ceremony was derived from the Jews, and that it explains Psalm cxliv. 8, which says, "whose mouth speaketh vanity, and their right hand is a right hand of falsehood." This, however, more probably refers to the pledge accustomed to be entered into by the parties to an engagement, and evidenced by the joining of their hands. In England, and in several, probably in most of the United States, the juror, while repeating, or more generally listening to the oath, takes a copy of the Bible, or of the Four Gospels, in his right hand, or lays the same hand upon either of them, and the ceremony concludes with his kissing the sacred volume. In England, too, an oath administered to a Jew upon the Old Testament or upon the Pentateuch, to a Mahometan upon the Koran, and to a Gentoo according to the form prescribed by his religion, has been recognised as valid. The reasonable principle, and the one intended, I presume, to be established, is, that every man, when admitted to an oath, shall be bound by the highest sanctions of his own religion. This principle has been expressly sanctioned in the Revised Statutes (ch. 94, sec. 11.) of Massachusetts, and I doubt not, either has been, or would be, if occasion should arise, admitted and acted upon by every court of justice in the United States. 3. The signification of oaths. An oath may well be called a religious act, since by it the existence of God is acknowledged, and an appeal is made to his omniscience, his omnipresence, and his retributive justice. The ancient forms and imposing ceremonies were addressed to the senses and the imagination, and were well suited, we may presume, to the state of the times in which they were devised and used, when, amidst general vio * See Hawkins' Picture of Quebec, p. 130. + Moral and Political Philosophy, p. 110. 1 Atkyns, 21; Phillips' Law of Evidence, 19. § This view of an oath is as ancient as the time of Cicero, who says, "Jusjurandum affirmatio religiosa est." De Officiis, Lib. III. 29. lence, bad faith, and ignorance, it was indispensable to call in the aid of the senses and the imagination, to make a suitable impression on the understanding and conscience. The advance of knowledge, of morals, of religion, and of general cultivation, have rendered the simple forms and ceremonies of modern times adequate to the attainment of the end designed. The substance of the meaning of every oath must be, an appeal to Almighty God, in which the juror invokes his vengeance or renounces his favor, if he knowingly declares what is false, willingly fails to perform his promise or contract, or otherwise violates the terms of the oath in their known signification. In taking the "oath in evidence," the witness swears "to speak the truth, the whole truth, and nothing but the truth," touching the subject of inquiry. This form is brief, appropriate, and easy to be understood. The designed concealment of any truth, which relates to the matter in question, is as much a violation of the oath, as to testify to a positive falsehood; and this too, even if the witness is not questioned as to that particular point. The oath requires of the witness, that he give a complete and unreserved account of what he knows of the subject of the trial, whether or not the questions proposed to him reach the extent of his knowledge. So that if it be inquired of a witness after the trial, why he did not inform the court on any particular point, the reply that he was not questioned on that point, is not a satisfactory answer. There is one exception to this rule, and only one, to wit; when a full disclosure of the truth tends to convict the witness himself of some legal crime. Our law constrains no man to become his own accuser, and consequently must impose the oath in evidence with this tacit reservation. But the exception must be confined to legal crimes. A point of honor, of reputation, or of delicacy, may make a witness disinclined to disclose some circumstance with which he is acquainted; but a concealment of the truth, for either of these reasons, is in nowise justifiable. When, however, an accomplice is admitted to give evidence against his associates in crime, he may, and must, testify against himself, as there is a compact to this effect, between himself and the State. In criminal prosecutions, tenderness to the prisoner, though a specious apology for concealment, is no just excuse; for, if it were so, it would take the administration of penal justice out of the hands of judges and juries, and make it depend upon the temper of prosecutors and witnesses. Questions may be asked, which are irrelative to the cause, which affect the witness himself, or some third person; in which, and in all cases where the witness doubts concerning the pertinency and propriety of the question, he ought to refer his doubts to the court. The answer of the court in explanation, or even in relaxation, of the oath, is authority enough to the witness; for the law which imposes the oath may remit what it will of the obligation, and it belongs to the court to declare what the mind of the law is. Moreover, as oaths are designed for the security of the imposer, (the rule is, Jurare in animum imponentis,) it is manifest that they must be understood in the sense in which the imposer intends them; otherwise they afford no security to him.* 4. The efficacy of oaths, as securities for truth and integrity. Every one who has in mind the observations of Cicero on the oath of Regulus,† by which he bound himself to return to the Carthaginians, unless he should effect an exchange of prisoners, must be satisfied, that oaths were highly efficacious among the Romans during the best days of their commonwealth. And Cicero says, that the conduct of Regulus, in adhering to his oath, which must ever call forth the highest admiration, did not so much spring from his individual virtue, as from the virtue of the times in which he lived. The spirit of those times would not have permitted him to do otherwise than observe his oath, cruel as was the punishment which awaited him on his return. If, then, oaths were thus efficacious under a system of false religion, ought a Christian to doubt their efficacy as securities for truth and integrity, when administered under the sanctions of the true religion? The administration of an oath will make even a good man more circumspect in giving his testimony; and the number of men must be very small, who are hardened enough to stand up * Paley's Moral and Political Philosophy, pp. 115-117. + Idem, c. 31. in a court of justice, and utter deliberate falsehood, under the sanctions and solemnities of an oath. We may well believe, that many a man may be frequently guilty of lying, who will shrink from committing perjury. The thought home to the time, by the We may be further satisfied of the security of oaths, by adverting to the difference between perjury and ordinary lying. Perjury is a sin of greater deliberation than lying. of God and of the sanctions of religion is brought understanding and conscience of the juror at the administration of the oath. If he offends, therefore, it is with a high hand, his offence is a more daring defiance of the sanctions of religion, and a more daring contempt of the knowledge, power, and justice of God, than ordinary lying, in which there may be nothing to lead the mind to any special reflection upon the Deity. Again, perjury violates confidence more flagrantly than lying. Mankind must trust to one another; and if they cannot trust to an oath, they have nothing to which they can trust. 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. The same credit is not given to statements made in the ordinary way; and, therefore, lying cannot do the same mischief with perjury. * Moreover, God directed the Hebrews to swear by his name ; and was pleased, "in order to show the immutability of his own. counsel," to confirm his covenant with that people by an oath; neither of which things, 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 mere promise; which effect must be owing to the more severe punishment with which he will vindicate the violation of oaths. Finally, the declarations of judges, lawyers, and other official persons, are nearly if not quite uniform in favor of oaths, as securities for the attainment of truth in * Deut. vi. 13; x. 20. ↑ Heb. vi. 17. Paley's Moral and Political Philosophy, pp. 114, 115. |