1902 Encyclopedia > Oath

Oath




OATH, Anglo-Saxon ___, a word found throughout the Teutonic languages (Gothic aiths, modern German eid), but without ascertainable etymology. The verb to swear is also Old Teutonic (Gothic svaran, modern German _schworen); this word, too, is not clear in original meaning, but is in some way connected with the notion of answering, —indeed it still forms part of the wrord answer, Anglo-Saxon _and-swarian; it has been suggested that the swearer answered by word or gesture to a solemn formula or act. Among other terms in this connexion, the Latin jurare, whence English law has such derivatives as jury, seems grounded on the metaphorical idea of binding (rootj'w, as in jungo) ; the similar idea of a bond or restraint may perhaps be traced in the Greek ____. It may be worth notice that the Latin sacramentum (whence modern French serment) does not really imply the sacredness of an oath, but had its _origin in the money paid into court in a Roman lawsuit, the loser forfeiting his pledge, which went to pay for the public rites (sacra); thence the wrord passed to signify _other solemn pledges, such as military and judicial oaths.

The subject of oaths and swearing, difficult in itself, has been made more obscure by the unsatisfactory methods _employed by most writers on it. This is not due to want of ability in the writers themselves, among whom are included such men as Calvin and Paley, but to their not having followed their subject on the lines of historical development; on the contrary, the usual plan has been to _accommodate to modern views, and discuss with modern _arguments, an institution which originated in an early stage _of knowledge, and has been confused by the changes it has undergone while being carried on into the midst of new ideas. The student who finds, by consulting modern theo-logical and legal authorities, how indefinite are their views of the binding operation of an oath and the consequences _of breaking it (apart from prosecution for perjury) will understand that its meaning must be sought, not among those who now administer and take it, but in the history of _ older states of culture in which it arose. The very formula, " so help you God," by which legal oaths are administered _in England, has not for ages had any precise signification.

An oath may be defined as an asseveration or promise made under non-human penalty or sanction. Writers, viewing the subject among civilized nations only, have sometimes defined the oath as an appeal to a deity. It will be seen, however, by some following examples, that the harm or penalty consequent on perjury may be considered to result directly, without any spirit or deity being men-tioned ; indeed it is not unlikely that these mere direct curses invoked on himself by the swearer may be more primitive than the invocation of divinities to punish. Oaths scarcely belong to the lowest or savage level of life, unless when rude tribes may have learned them from more civilized neighbours. Their original appearance may rather have been in a somewhat higher barbaric stage of society, where legal forms had already come into use, and oaths were needed as a means of strengthening testimony or promise. Examples of the simplest kind of curse-oath may be seen among the Nagas of Assam, where two men will lay hold of a dog or a fowl by head and feet, which is then chopped in two with a single blow of the dao, this being emblematic of the fate expected to befall the perjurer. Or a man will stand within a circle of rope, with the implication that if he breaks his vow he may rot as a rope does, or he will take hold of the barrel of a gun, a spear-head, or a tiger's tooth, and solemnly declare, "If I do not faithfully perform this my promise, may I fall by this!" (Butler in Journ. Asiatic Soc. Bengal., 1875, p. 316). Another stage in the history of oaths is that in which the swearer calls on some fierce beast to punish him if he lies, believing that it has the intelligence to know what he says and the power to interfere in his affairs. In Siberia, in lawsuits between Bussians and the wild Ostyaks, it is described as customary to bring into court the head of a bear, the Ostyak making the gesture of eating, and calling on the bear to devour him in like manner if he does not tell the truth (Erman, Travels in Siberia, vol. i. p. 492, London, 1848). Similar oaths are still sworn on the head or skin of a tiger by the Santals and other indigenous tribes of India. To modern views, a bear or a tiger seems at any rate a more rational being to appeal to than a river or the sun, but in the earlier stage of nature-religion these and other great objects of nature are regarded as animate and personal. The prevalence of river-worship is seen in the extent to which in the old and modern world oaths by rivers are most sacred. In earlier ages men swore inviolably by Styx or Tiber, and to this day an oath on water of the Ganges is to the Hindu the most binding of pledges, for the goddess will take awful vengeance on the children of the perjurer In New Guinea certain tribes are reported to swear by the sun, or a mountain, or a weapon, that the sun may burn them, or the mountain crush them, or the weapon wound them if they forswear themselves. The Tunguz brandishes a knife before the sun, saying, "If I lie may the sun plunge sickness into my entrails like this knife." The natural transition from swearing by these great objects of nature to invoking gods conceived in human form is well shown in the treaty-oath between the Macedonians and the Carthaginians recorded by Polybius (vii. 9); here the sun and moon and earth, the rivers and meadows and waters, are invoked side by side with Zeus and Hera and Apollo, and the gods of the Carthaginians. The heaven-god, able to smite the perjurer with his lightning, was invoked by the Romans, when a hog was slain with the sacred flint representing the thunderbolt, with the invocation to Jove so to smite the Roman people if they broke the oath (Liv., i. 24; Polyb., iii. 25). Another form of this Aryan rite was preserved by the old Slavonic nation of Prussia, where a man would lay his right hand on his own neck and his left on the holy oak, saying, "May Perkun (the thunder-god) destroy me ! " The oaths of the lower culture show a remarkable difference from those of later stages. In the apparently primitive forms the curse on the perjurer is to take effect in this world, as when an African negro swears by his head or limbs, which will wither if he lies; this kind of oath by the swearer's body is still found in both the Eastern and the Western worlds, and generally with the same implication of evil to fall on the part sworn by. But as nations became more observant, experience must have shown that bears and tigers were as apt to kill truth-tellers as perjurers, and that even the lightning-flash falls without moral discrimination. In the Clouds of Aristophanes, indeed, men have come openly to ridicule such beliefs, the Socrates of the play pointing out that notorious perjurers go unharmed, while Zeus hurls his bolts at his own temple, and the tall oaks, as if an oak-tree could perjure itself. The doctrine of miraculous earthly retribution on the perjurer lasted on in legend, as where Eusebius relates how three villains conspired to bring a false accusation against Narcissus, bishop of Jerusalem, which accusation they confirmed by solemn oath before the church, one wishing that if he swore falsely he might perish by fire, one that he might die of the pestilence, one that he might lose his eyes; a spark no man knew from whence burned to ashes the first perjurer's house and all within, the second was consumed by the plague from head to foot, whereupon the third confessed the crime with tears so copious that he lost his sight (Euseb., Hist. Eccl., vi. 9). As a general rule, however, the supernatural retribution on perjury has been transferred from the present world to the regions beyond the grave, as is evident from any collection of customary oaths. A single instance will show at once the combination of retributions in and after the present life, and the tendency to heap up remote penalties in the vain hope of securing present honesty. The Siamese Buddhist in his oath, not content to call down on himself various kinds of death if he breaks it, desires that he may afterwards be cast into hell to go through innumerable tortures, among them to carry water over the flames in a wicker basket to assuage the thirst of the infernal judge, then that he may migrate into the body of a slave for as many years as there are grains of sand in four seas, and after this that he may be born a beast through five hundred generations and an hermaphrodite five hundred more.





The forms of oath belonging to all nations and ages, various as they are in detail, come under a few general heads. It may be first observed that gestures such as grasping hands, or putting one hand between the hands of another in token of homage, are sometimes treated as _of the nature of oaths, but wrongly so, they being rather _of the nature of ceremonies of compact. The Hebrew-practice of putting the hand under another's thigh is usually reckoned among oath-rites, but it may have been merely a ceremony of covenant (Gen. xxiv. 2, xlvii. 29 ; see Joseph., Ant., i. 16). Even the covenant among many ancient and modern nations by the parties mixing their blood or drinking one another's is in itself only a solemn rite of union, not an oath proper, unless some such cere-mony is introduced as dipping weapons into the blood, as in the form among the ancient Scythians (Herod., iv. 70); this, by bringing in the idea of death befalling the cove-nant-breaker, converts the proceeding into an oath of the strongest kind. The custom of swearing by weapons, though frequent in the world, is far from consistent in meaning. It may signify, in cases such as those just mentioned, that the swearer if forsworn is to die by such a weapon; or the warrior may appeal to his weapon as a powerful or divine object, as Parthenopaeus swears by his spear that he will level to the ground the walls of Thebes Aeschyl., Sept. contra Theb., 530; see the custom of the Quadi in Ammian. Marcellin, xvii.) _ or the weapon may be a divine emblem, as when the Scythians swore by the wind and the sword as denoting life and death (Lucian, Toxaris, 38). Oaths by weapons lasted into the Christian period ; for' instance, the Lombards swore lesser oaths by consecrated weapons and greater on the Gospels (see Ducange, s.v. "Juramenta super arma"; Grimm, Deutsche Rechtsalterth., p, 896). Stretching forth the hand towards the object or deity sworn by is a natural gesture, well shown in the oath of Agamemnon, who with uplifted hands (_______) takes Heaven to witness with Sun and Earth and the Erinnyes who below the earth wreak vengeance on the perjurer (Homer, II., xix. 254; see also Pindar, Olymp., vii. 120), The gesture of lifting the hand towards heaven was also an Israelite form of oath : Abraham says, " I have lifted up my hand to Jehovah," while Jehovah Himself is represented as so swearing, " For I lift up My hand to heaven, and say, I live for ever " (Gen. xiv. 22; Deut. xxxii. 40; see Dan. xii. 7; Bev. x. 5). This gesture established itself in Christendom, and has continued to modern times. In England, for example, in the parliament at Shrewsbury in 1398, when the Lords took an oath on the cross of Canterbury never to suffer the transactions of that parliament to be changed, the members of the Commons held up their hands to signify their taking upon themselves the same oath (J. E. Tyler, Oaths, p. 99). In France a juror takes oath by raising his hand, saying, " Je jure ! " The Scottish judicial oath is taken by the witness holding up his right hand uncovered, and repeating after the usher, "I swear by Almighty God, and as I shall answer to God at the great day of judgment, that I will," &c. In the ancient world sacrifice often formed part of the ceremony of the oath; typical examples may be found in the Homeric poems, as in Agamemnon's oath already mentioned, or the compact, between the Greeks and Trojans (II., iii. 276), where wine is poured out in libation, with prayer to Zeus and the immortal gods that the perjurer's brains shall, like the wine, be poured on the ground; the rite thus passes into a symbolic curse-oath of the ordinary barbaric type. Connected with such sacri-ficial oaths is the practice of laying the hand on the victim or the altar, or touching the image of the god. A classic instance is in a comedy of Plautus (Rudens, v. 2, 45), where Gripus says, "Tange aram hanc Veneris," and Labrax answers " Tango " (Greek instance, Thucyd., v. 47 ; see Justin, xxiv. 2). Thus Livy (xxi. 1) introduces the phrase "touching the sacred objects" (tactis sacris) into the picturesque story of Hannibal's oath. Details of the old Scandinavian oath have been preserved in Iceland in the Landnamabók Landneima (Islendinga Sögur, Copenhagen, 1843): a bracelet (baugr) of two rings or more was to be kept on the altar in every head court, which the godi or priest should wear at all law-things held by him, and should redden in the blood of the bullock sacrificed, the witness pronouncing the remarkable formula : " Name I to witness that I take oath by the ring, law-oath, so help me Frey, and Niord, and almighty ThorA (hialpi mer sva Freyr, ok Niordr, ok hinn almattki Ass), &c. This was doubtless the great oath on the holy ring or bracelet which the Danes swore to King Alfred to quit his kingdom ("on tham halgan beage," Anglo-Sax. Chron.; "in eorum armilla sacra," Ethelwerd, Chron., iv.). An oath, though not necessarily expressed in words, is usually so. In the Homeric instances the prayer which constitutes the oath has a somewhat conventional form, and in the classical ages we find well-marked formulas. These are often refer-ences to deities, as "by Zeus ! " "I call Zeus to witness'•' (____________); " by the immortal gods ! " " I call to witness the ashes of my ancestors" (per deos immortales; testor majorum cineres). Sometimes a curse is invoked on himself by the swearer, that he may perish if he fail to keep his oath, as " the gods destroy me," " let me perish if," &c. (dii me perdant; dispeream si). An important class of Roman oaths invokes the deity to favour or preserve the swearer in so far as he shall fulfil his promise—"as the gods may preserve me," "as I wish the gods to be propitious to me " (me ita di servent; ita deos mihi velim propitios). The best Roman collection is to be found in the old work of Brissonius, De Formulis et Solemnibus Populi Romani Verbis, Baris, 1583. Biblical examples of these classes of oaths are "as the Lord liveth" (1 Sam. xiv. 39, and elsewhere), " so do God to me, and more also " (2 Sam. iii. 35, and elsewhere).
The history of oaths in the early Christian ages opens a controversy which to this day has not been closed. Under Christ's injunction, "Swear not at all" (Matt. v. 34; also James v. 12), many Christians seem at first to have shrunk from taking oaths, and, though after a time the usual customs of judicial and even colloquial oaths came to prevail among them, the writings of the Bathers show efforts to resist the practice. Chrysostom perhaps goes furthest in inveighing against this "snare of Satan": " Do as you choose; I lay it down as a law that there be no swearing at all. If any bid you swear, tell him, Christ has spoken, and I do not swear" (Homil. ix. in Act. Apostol.; see a collection of patristic passages in Sixt. Senens., Bibliothec. Sanct., vi. adnot. 26). The line mostly taken by influential teachers, however, was that swearing should indeed be avoided as much as possible from its leading to perjury, but that the passages forbid-ding it only applied to superfluous or trifling oaths, or those sworn by created objects, such as heaven or earth or one's own head. On the other hand, they argued that judicial and other serious swearing could not have been forbidden, seeing that Paul in his epistles repeatedly introduces oaths (2 Cor. i. 23; Phil. i. 8; Gal. i. 20). Thus Athanasius writes : "I stretch out my hand, and as I have learned of the apostle, I call God to witness on my soul" (Apol. ad Imp. Const.; see Augustine, De Mend., 28; Fpist., cl., iii. 9; cl, iv. 250; Enarr. in Psalm, lxxxviii. (4); Serm., 307, 319). This argument is the more forcible from Paul's expressions being actually oaths in accepted forms, and it has also been fairly adduced that Christ, by answering to the adjuration of the high priest, took the judicial oath in solemn form (Matt. xxvi. 63). The passages here referred to will give an idea of the theological grounds on which in more modern times Anabaptists, Mennonites, and Quakers have refused to take even judicial oaths, while, on the other hand, the laws of Christendom from early ages have been only directed against such swearing as was considered profane or otherwise improper, and against perjury. Thus from the 3d or 4th century we find oaths taking much the same place in Christian as in non-Christian society. In the 4th century the Christian military oath by God, Christ, the Holy Spirit, and the majesty of the emperor is recorded by Vegetius (Rei Milit. Inst., ii. 5). Constantine's laws required every witness in a cause to take oath ; this is confirmed in Justinian's code, which even in some cases requires also the parties and advocates to be sworn (Cod. Theod., xi. 39 ; Justin. Cod., iv. 20, 59). Bishops and clergy were called upon to take oath in ordination, monastic vows, and other ecclesiastical matters (see details in Bingham, Antiq. of Chr. Church, xvi. 7). By the Middle Ages oaths had increased and multiplied in Christendom far beyond the practice of any other age or religion. The Reformation made no change in principle, as is seen, for instance, in Art. xxxix. of the church of England : "As we confess that vain and rash swearing is forbidden Christian men by our Lord Jesus Christ, and James His apostle, so we judge, that Christian Beligion doth not prohibit, but that a man may swear when the Magistrate requireth, in a cause of faith and charity, so it be done according to the Prophet's teaching, in justice, judgement, and truth.". But about this time began a legal reformation, which has for reasons of public policy continually reduced the number of oaths required to be taken, and apparently tends toward their total abolition.

The history of swearing in early Christendom would lead us to expect that the forms used would be adopted with more or less modification from Hebrew or Roman sources, as indeed proves to be the case. The oath intro-duced in the body of one of Constantine's laws—"As the Most High Divinity may ever be propitious to me " (Ita mihi summa Divinitas semper propitia sit)—follows an old Roman form. The Roman oath by the genius of the emperor being objected to by Christians as recognizing a demon, they swore by his safety (Tertull., Apol., 32). The gesture of holding up the hand in swearing has been already spoken of. The Christian oath on a copy of the Gospels seems derived from the late Jewish oath taken holding in the hand the scroll of the law (or the phylacteries), a ceremony itself possibly adapted from Roman custom (see treatise "Shebuoth" in Gemara). Among the various mentions of the oath on the Gospels in early Christian writers is that characteristic passage of Chrysostom in a sermon to the people of Antioch : " But do thou, if nothing else, at least reverence the very book thou holdest forth to be sworn by, open the Gospel thou takest in thy hands to administer the oath, and, hearing what Christ therein saith of oaths, tremble and desist" (Serm. ad Pop. Antioch., Homil. xv.). The usual mode was to lay the hand on the Gospel, as is often stated in the records, and was kept up to a modern date in the oath in the university of Oxford, "tactis sacrosanctis Evangeliis"; the practice of kissing the book, which has now almost superseded it in England, appears in the Middle Ages (J. E. Tyler, Oaths, pp. 119, 151). The book was often laid on the altar, or (after the manner of ancient Borne) the swearer laid his hand on the altar itself, or looked towards it; above all, it became customary to touch relics of saints on the altar, a ceremony of which the typical instance is seen in the representation of Harold's oath in the Bayeux tapestry. Other objects, as the cross, the bishop's crosier, &c, were sworn by (see Ducange, s.v. " Jurare"). An oath ratified by contact or inspection of a sacred object was called a " corporal" or bodily oath, as distinguished from a merely spoken or written oath ; this is well seen in an old English coronation oath, "so helpe me God, and these holy evangelists by me bodily touched vppon this hooly awter." The English word signifying the "sacred object " on which oath is taken is halidome (Anglo-Saxon, hdligdom; German, heiligthum); the halidome on which oaths are now sworn in England is a copy of the New Testament. Jews are sworn on the Old Testament; the sacred books of other religions are used in like manner, a Mohammedan swearing on the Koran, a Hindu on the Vedas.





Among the oath-formulas used in Christendom, that taken by provincial governors under Justinian is typical of one class : "I swear by God Almighty, and His only begotten Son our Lord Jesus Christ, and the Holy Ghost, and the Most Holy Glorious Mother of God and ever Virgin Mary, and by the Four Gospels which I hold in my hand, and by the Holy Archangels Michael and Gabriel," <fcc. The famous oath of the kings Louis and Charles at Strasburg in 842 (A.D.) runs : " By God's love and the Christian people and our common salvation, as God shall give me knowledge and power," ore. Earlier than this, as in the oath of fealty in the capitularies of Charlemagne in 802, is found the familiar form " Sic me adjuvet Deus," closely corresponding to above-mentioned formulas of pre-Christian Rome. This became widely spread in Europe, appearing in Old French " Si m'ait Dex," German " So mir Gott helfe," English " So help me God." A re-markable point in its history is its occurrence in the " So help me Frey," &c., of the old Scandinavian ring-oath already described. Among the curiosities of the subject are quaint oaths of kings and other great personages: William Rufus swore " by that and that" (per hoc et per hoc), William the Conqueror " by the splendour of God," John " by God's teeth"; other phrases are given in Ducange (I.e.), as "per omnes gentes," "per coronam," "par la sainte figure de Dieu," "par la mort Dieu," &c.
Profane swearing, the trifling or colloquial use of sacred oaths, is not without historical interest, formulas used being apt to keep up traces of old manners and extinct religions. Thus the early Christians were reproved for continuing to say "mehercle/" some of them not knowing that they were swearing by Hercules (Tertull., De Idol., 20). Oaths by deities of pre-Christian Europe lasted into the modern world, as when a few generations ago Swedish peasants might be heard to swear, " Odin take me if it is not true!" (Hylten-Cavallius, Warend och Wirdarne, vol. i. p. 228). The thunder-god holds his place still in vulgar German exclamations, such as "Donner!" (Grimm, Deutsche Mythologie, pp. 10, 166). The affected revival of classical deities in Italy in the Middle Ages still lingers in such forms as " per Bacco! " " cospetto di Bacco! " (by Bacchus ! face of Bacchus !). In France the concluding oath of the last paragraph has dwindled into "mordieu!" or "morbleu!" much as in England the old oaths by God's body and wounds became converted into "oddsbodikins!" and "zounds!"

The oaths now administered among civilized nations are chiefly intended for maintaining governments and securing the perform-ance of public business. They fall under the headings of political, ecclesiastical, and legal. In England the coronation oath is to be administered by one of the archbishops or bishops in the presence of all the people, who, on their parts, reciprocally take the oath of allegiance to the crown.

The archbishop or bishop shall say : " Will you solemnly promise and swear to govern the people of this kingdom of England and the dominions thereto be-longing according to the statutes in parliament agreed on, and the laws and customs of the same?" The king or queen shall say : " I solemnly promise so to do." Archbp. or bp. "Will you to your power cause law and justice, in mercy, to be executed in all your judgements?" K. or Q. "Twill." Area-bp. or bp. " Will you, to the utmost of your power, maintain the laws of God, the true profession of the Gospel, and the Protestant reformed religion established by the law ? And will you promise unto the bishops and clergy of this nation, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them?" A', or Q. "All this I promise to do." After this the king or queen, laying his or her hand upon the holy Gospels, shall say : " The things which I have here before promised I will perform and keep; so help me God," and then shall kiss the book.

The chief officers of state take an "official" oath well and truly to serve his (or her) majesty. Special oaths are taken by privy councillors, archbishops and bishops, peers, baronets and knights, recruits, asd others. The old oath of allegiance, as administered (says Blackstone) upwards of 600 years, contained a promise "to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him without defending him there-from " (Blackstone, Commentaries, book i. chap. x.). In the reign of William III. it was replaced by a shorter form, and in the present reign stands : " I do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, her heirs and successors, according to law." Statutes of Charles II. and George I. enacted that no member should vote or sit in either house of parliament without having taken the several oaths of allegiance, supremacy, and abjuration. The oath of supremacy in the reign of William III. was: "I A B doe swear that I doe from my heart abhorr detest and abjure as impious and hereticall this damnable doctrine and position that princes excommunicated or deprived by the Pope or any authority of the see of Rome may be deposed or murdered by their subjects or any other whatsoever. And I doe declare that no forreigne prince person prelate state or potentate hath or ought to have any jurisdiction power superiority preeminence or authoritie ecclesiasticall or spirituall within this realme. Soe," &c. The oath of abjuration introduced in the time of William III. recognizes the king's rights, engages the juror to support him and disclose all traitorous conspiracies against him, promises to maintain the Hanoverian Protestant succession, and expressly renounces any claim of the descendants of the late Pretender. This oath was not only taken by persons in office, but might be tendered by two justices to any person suspected of disaffection. In modern times a single parliamentary oath was substituted for the three, and this was altered to enable Roman Catholics to take it, and Jews were enabled to sit in parliament by being allowed to omit the words "on the true faith of a Christian." In its present form the parliamentary oath consists of an oath of allegiance and a promise to maintain the succession to the crown as limited and settled in the reign of William III. The "judicial" oath taken by judges of the Court of Appeal or of the High Court of Justice, and by justices of the peace, is "to do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will." Jurors are sworn, whence indeed their name (juratorcs) ; in felonies the oath administered is : "You shall well and truly try and true deliverance make between our sovereign lady the Queen and the prisoner at the bar whom you shall have in charge, and a true verdict give according to the evidence." In misdemeanours the form is: "Well and truly try the issue joined between our sovereign lady the Queen and the defendant, and a true verdict," &c. The oath of the jurors in the Scottish criminal courts is : "You [the jury collectively] swear in the name of Almighty God and as you shall answer to God at the great day of judgment that you will truth say and no truth conceal in so far as you are to pass upon this assize." The oldest trace of this form of oath in Scotland is in Reg. maj., i. cap. 11, copied from Glenville, which points to an origin in the Norman inquest or "recognition." In the ancient custom of compurgation, once prevalent in Europe, the accused's oath was supported by the oaths of a number of helpers or compurgators who swore to their belief in its validity. A remnant of it lasted on till the 17th century in the "ex officio " oath of a clergyman cited before the ecclesiastical court for misconduct, who might be required to call his neighbours as compurgators to swear to their belief in his inno-cence. The jusjurandum or deeisory oath of Roman law, which was of greater authority than res judicata (Digest xii. 2, 2), is still represented in modern law by the serment decisoire of the Code Civil, and the "reference to the oath of the party" of Scotch law (see the case of Longworth v. Yelverton, in Law Reports, 1 Scotch Appeals, 218). Such an oath is final and conclusive. It has something in common with the old "wager of law" in England, abolished by 3 and 4 William IV. c. 42, s. 13, in so far as it makes an oath the finis litiam. The deeisory oath was formerly used in the ecclesiastical courts (Burn, Eccl. Law, s.v. "Oaths"). It seems to be still used in admiralty cases in Massachusetts (Dunlop, Adm. Pr., 290). Witnesses are sworn : "The evidence you shall give . . . shall be the truth, the whole truth, and nothing but the truth. So," &c. Where a witness is sworn on the voir dire, the oath is : " You shall true answer make to all such questions as the court shall demand of you. So help you God." As to witnesses of religions other than Christian, an oath is to be administered to them in such form and with such ceremonies as they may declare to be binding. The great number of oaths formerly required have been much reduced by modern legislation, in many cases a voluntary declaration before a justice, notary, &c., being substituted. Many alterations of the English law as to oaths have been made of late years in relief of those conscientiously objecting. Quakers, Moravians, and Separatists are allowed to make affirmation, whether as witnesses or on other occasions, where an oath was formerly required. Thus a Quaker in the witness-box affirms by answering "Yea!" and when taking his seat in parliament substitutes for "swear" the words "solemnly, sincerely, and truly declare and affirm," and omits "So help me God." The Evidence Further Amendment Act, 1869 (32 and 33 Vict. c. 68, s. 4), allowing affirmations in place of oaths in certain cases in judicial proceedings, is by the Evidence Amendment Act, 1870 (33 and 34 Vict. c. 49), extended to proceedings before ail persons having authority to administer oaths. It was specially intended to meet the case of an arbitrator. But the right to affirm in lieu of taking the parliamentary oath has been held not to apply to the case of avowed atheists, as appears from the case of Mr Charles Bradlaugh, elected member for Northampton, but not permitted to take the affirmation and sit (1883 ; see Clarke v. Bradlaugh, 7 Q. B. D. 38). False witness given under affirmation is punishable as perjury. Profane swearing and cursing is punishable by law, any labourer, sailor, or soldier being liable to forfeit Is., every other person under the degree of a gentleman 2s., and every gentleman or person of superior rank 5s., to the poor of the parish.

The administering or taking of certain oaths is criminal in English and Scotch law. It is a felony punishable by penal servi-tude for life (a) to administer or cause to be administered or aid or assist at the administering of any oath or engagement purporting or intending to bind the person taking the same to commit treason or murder or any felony which on the 12th of July 1812 was punishable with death ; (b) to take auy such oath or engagement, not being compelled thereto (52 George III. c. 104, s. 1). It is a felony punishable with penal servitude for seven years (a) to administer or cause to be administered or aid or assist at or be present and consenting to the administering or taking of any oath or engagement purporting or intending to bind the person tak-ing the same to engage in any mutinous or seditious purpose ; to disturb the public peace ; to be of any association, society, or confederacy formed for any such purpose ; to obey the orders or commands of any committee or body of men not lawfully constituted, or of any leader or commander, or other person not having authority by law for that purpose ; not to inform or give evidence against any associate, confederate, or other person ; not to reveal or discover any unlawful combination or confederacy or any illegal act done or to be done, or any illegal oath or engagement which may have been administered or tendered to or taken by any person, or the import of any such oath or engagement; (i) to take any such oath or engagement, not being compelled thereto (37 George III. c. 123, s. 1). Compulsion is no defence uidess the person taking the oath or engagement within fourteen days (in the case of oaths falling under 52 George III. c. 104) or within four days if not prevented by actual force or sickness, and then within four days after the cessation of the hindrance produced by such force or sick-ness (in the case of oaths falling under 37 George III. c. 123), declares the circumstances of the administration of the oath by information on oath before a justice of the peace or a secretary of state or the privy council, or, if on active service, to his command-ing officer. The Draft Criminal Code proposes to incorporate these provisions with little alteration. The Irish Act (50 George III. c. 102) is more stringent than 37 George III. c. 123, as the person administering the oath is punishable with penal servitude for life, the person taking the oath is punishable as in England and Scotland. A club or society in which members are required or per-mitted to take an unlawful oath is unlawful, and the members may be proceeded against either summarily or by indictment (39 George III. c. 79, 57 George III. c. 19). The latter statute, as appears from the preamble, was specially aimed at the corresponding societies which existed in Great Britain at the time of the French Revolution.

Politicians and moralists have placed much reliance on oaths as a practical security. It has been held, as Lycur-gus the orator said to the Athenians, that "an oath is the bond that keeps the state together " (Lycurg., Leocr., 80; see Montesquieu, Spirit of Laws). Thus modern law-books quote from the leading case of Omychund v. Barker : "No country can subsist a twelvemonth where an oath is thought not binding; for the want of it must necessarily dissolve society." On the other hand, wherever the belief in supernatural interference becomes weakened, and oaths are taken with solemn form but secret contempt or open ridicule, they become a serious moral scandal, as had already begun to happen in classical times. The yet more disastrous effect of the practice of swearing is the public inference that, if a man has to swear in order to be believed, he need not speak the truth when not under oath. The early Christian fathers were alive to this depreciation of ordinary truthfulness by the practice of swearing, and opposed, though unavailingly, the system of oaths which more and more pervaded public business. How in the course of the Middle Ages oaths were multiplied is best seen by examining a collection of formulas such as the Book of Oaths (London, 1649), which range from the coronation oath to the oaths sworn by such as valuers of cloths and the city scavengers. Oaths of allegiance and other official oaths are still taken throughout Europe, but experience shows that in times of revolution they are violated with little scruple, and in the case of the United Kingdom it is doubtful whether they have any more practical value than, if so much as, simple declarations. The question of legal oaths is more difficult. On the one hand, it is admitted that they do induce witnesses, especially the ignorant and superstitious, to give evidence more truthfully than they would do on even solemn declaration. On the other hand, all who practise in courts of justice declare that a large proportion of the evidence given under oath is knowingly false, and that such perjury is perceptibly detrimental to public morals. The lowering of truth in ordinary intercourse, which follows from the requirement of swearing as a confirmation in public matters, remains much as it was in ancient times. One noteworthy point is that an effect is now produced by oaths foreign to their proper purpose, which is to use the sanction of religion for the enforcement of obligations; now, however, the oath has passed into a sanction of the religion, so that an oath taken in legal form is construed as a confession of faith in Christianity, or at least in the existence of God. (E. B. T.)



The above article was written by: E. B. Tylor, D.C.L., LLD.



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