ATH. Oaths have been in use in all coun of and it is probable that there is no nation which has any clear notion of a Supreme Being, or of superior beings, that does not make use of oaths on certain solemn occasions. An oath may be described generally as an appeal or address to a superior being, by which the person making it engages to declare the truth on the occasion on which he takes the oath, or by which he promises to do something hereafter. The person who imposes or receives the oath, imposes or receives it on the supposition that the person making it apprehends some evil consequences to himself from the superior being, if he should violate the oath. The person taking the oath may or may not fear such consequences, but the value of the oath in the eyes of him who receives or imposes it consists in the opinion which he has of its influence over the person who takes it. An oath may be taken voluntarily, or it may be imposed on a person under certain circumstances by a political superior; or it may be the only condition on which the assertion or declaration of a person shall be admitted as evidence of any fact. — The form of taking the oath has varied greatly in different countries. Among the Greeks a person sometimes placed his hand on the altar of the deity by whom he swore; but the forms of oaths were almost as various as the occasions. Oaths were often used in judicial proceedings among the Greeks. The Dicasta, who were judges and jurymen, gave their verdict upon oath. The Heliastic oath is stated at length in the speech of Demosthenes against Timocrates (c. 36). It does not appear that the oath was always imposed on witnesses in judicial proceedings; and yet it appears that sometimes witnesses gave their evidence VOL. III. - 1

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on oath: perhaps the oath on the part of witnesses was generally voluntary. (Demosth., Пpòs ̓́Αφοβον Ψευδ, c. 16; Κατὰ Κόνωνος, c. 10; and Meier and Schömann, Att. Process., p. 675.) In the Roman jurisprudence an oath was required in some cases from the plaintiff, or the defendant, or both. Thus the oath of calumny was required from the plaintiff, which was a solemn declaration that he did not prosecute his suit for any fraudulent or malicious purpose. The offense of false swearing was perjurium, perjury; but it was considered a less offense in a party to a suit when the oath was imposed by a juder than when it was voluntary. It does not appear that in civil proceedings witnesses were necessarily examined on oath; but witnesses appear to have been examined on oath in the judicia publica, which were criminal proceedings. The title in the Digest, "De Testibus" (22, tit. 5), makes no mention of the oath, though it speaks of punishment being inflicted on witnesses who bore false testimony. The law in America and England, as a rule, requires evidence or testimony for judicial purposes to be given on oath. A Jew, a Mohammedan and a Hindoo may be sworn as witnesses, but they must severally take the oath in that form which is sanctioned by the usage of their country or nation, and which they severally consider to be binding. The offense of declaring what is false when a witness is examined upon oath, constitutes perjury. - Declarations made by a person under the apprehension of immediate death are generally admitted as evidence in judicial proceedings, when properly verified; for it is considered that the circumstances in which the person is placed at the time of making the declaration furnish as strong motives for veracity as the obligation of an oath. Quakers also, in all

civil cases, were allowed by the statute 7 & 8 Wm. III., c. 34, to give their evidence on affirmation; and now the affirmation of Quakers and Moravians is admissible in all judicial proceed ings, both civil and criminal. As oaths may be either voluntary or may be imposed by a political superior, so they may be imposed either on extrajudicial or on judicial occasions. Oaths which are imposed on occasion of judicial proceedings are the most frequent, and the occasions are the most important to the interests of society. The principle on which an oath is administered on judicial occasions is this. it is supposed that an additional security is thereby acquired for the veracity of him who takes the oath. Bentham, in his "Rationale of Evidence," on the contrary, affirms that, "whether principle or experience be regarded, the oath will be found, in the hands of justice, an altogether useless instrument; in the hands of injustice, a deplorably serviceable one;" "that it is inefficacious to all good purposes," and "that it is by no means inefficacious to bad ones." -The three great sanctions or securities for veracity in a witness, or, to speak perhaps more correctly, the three great sanctions against mendacity in a witness, are, the punishment legally imposed on a person who is convicted of false swearing, the punishment inflicted by public opinion or the positive morality of society, and the fear of punishment from the Deity, in this world or the next, or in both. The common opinion is, that all the three sanctions operate on a witness, though they operate on different witnesses in very different degrees. A man who does not believe that the Deity will punish false swearing can only be under the influence of the first two sanctions; and if his character is such that it can not be made worse than it is, he may be under the influence of the first sanction only. Bentham affirms that the third sanction only appears to exercise an influence in any case, because it acts in conjunction with "the two real and efficient sanctions," "the political sanction and the moral or popular sanction;" and that if it is stripped of those accompaniments, its impotence will appear immediately. Bentham's chief argument is as follows. "that the supposition of the efficiency of an oath is absurd in principle. It ascribes to man a power over his Maker. It supposes the Almighty to stand engaged, no matter how, but absolutely engaged, to inflict on every individual by whom the ceremony, after having been performed, has been profaned, a punishment (no matter what) which, but for the ceremony and the profanation, he would not have inflicted. It supposes him thus prepared to inflict, at com mand, and at all times, a punishment, which, being at all times the same, at no time bears any proportion to the offense." Again: "either the ceremony causes punishment to be inflicted by the Deity in cases where otherwise it would not have been inflicted; or it does not. In the former case the same sort of authority is exercised by man over the Deity, as that which, in English law, is ex

| ercised over the judge by the legislator, or over the sheriff by the judge. In the latter case the ceremony is a mere form without any useful effect whatever." The absurdity of this argument hardly needs to be exposed. He who administers the oath, by virtue of the power which he has to administer it, and the political superior who imposes the oath, may either believe or not believe that the Deity will punish false swearing, and it is quite immaterial to the question which of the two opinions they entertain. That which gives the oath a value in the eyes of him who ad ministers it, or of that political superior who imposes it, is the opinion of the person who takes the oath; and if the individual who takes the oath believes that the Deity, in case it is profaned, will inflict a punishment which otherwise he would not inflict, the object of him who enforces the oath is accomplished, and an additional sanction against mendacity is secured. It matters not whether the Deity will punish or not, or whether he who enforces the oath believes that he will punish or not: if he who takes the oath believes that the Deity will punish false swearing, that is sufficient to show that the oath is of itself a sanction. -The fear of legal punishment is admitted by Bentham to be a sanction against mendacity. But the legal punishment may or may not overtake the offender. Legal punishment may follow detection, but the perjury may not be detected, and therefore not punished. Is the oath, or would a declaration without oath be, "a mere form without any useful effect whatever," because the legal punishment may not, and frequently does not, overtake the offender? When a Greek or a Roman swore by his gods, in whose existence he believed, and who, being mere imaginations, could not punish him for his perjury, was not his belief in their existence and their power and willingness to punish perjury a sanction against mendacity? All antiquity at least thought so. - There are occasions on which oaths are treated lightly, on which he who imposes the oath, he who takes it, and the community who are witnesses to it, treat the violation of it as a trivial matter. Such occasions as these furnish Bentham with arguments against the efficacy of oaths on all occasions. Suppose we admit, with Bentham, as we do merely for the sake of the argument, that "on some occasions oaths go with the English clergy for nothing;" and this, notwithstanding the fact, which nobody can doubt, "that among the English clergy believers are more abundant than unbelievers." The kind of oaths "which go for nothing" are not mentioned by Bentham, but they may be conjectured. Now, if all oaths went for nothing with the clergy, or with any other body of men, the dispute would be settled. But this is not the fact. If in any way it has become the positive morality of any body of men that a certain kind of oath should go for nothing, each individual of that body, with respect to that kind of oath, has the opinion of his body. He does not believe

certain that our formula, “So help me God!" is of Scandinavian or pre-Christian origin; a discovery which throws an unexpected light on the much abused dictum that Christianity is parcel of the common law of England, and the proposition, confidently advanced at a later time, that the oath of allegiance taken by members of parliament is in some way (notwithstanding the removal of Jewish disabilities) a bulwark of the Christian religion in England. This statement, however, errs only in generality and in being out of date. It is perfectly true that the oath of allegiance was, down to the Catholic emancipation, one of the chief statutory defenses of the Protestant religion, though in a political rather than a theological sense; and for many years later it contained a promise to maintain and support the Protestant succession to the crown as limited by the act of settlement. The history of the oaths of allegiance and supremacy and of the various transformations they have undergone, is a varied and complex one. Before we go back to the beginning, it may be as well to look at the end. As late as 1868 the English oath of allegiance was reduced by the promissory oaths act to its present simple, not to say meagre, form, which stands thus: "I, -, do swear that I will be faithful and bear true allegiance to her majesty Queen Victoria, her heirs and successors, according to law. So help me God." What the substance of the oath as thus reduced may amount to would not be a very profitable question to discuss at large. It certainly does not promise anything beyond what is at common law the duty of every subject, and it seems to follow that it could not be broken except by some act which was otherwise an offense at common law, for example, treason or sedition, or perhaps also the vaguely defined offense of disparaging the dignity of the crown. And it seems at least a tenable view that the words "according to law" not only express the limit within which the crown is entitled to obedience, but cover the possibility (a possibility, fortunately, of the most remote

desires or of the proposals of reform which it is the right of every citizen to express in a legal way. The oath itself would be opposed to the constitution if it held the person taking it within bounds which would prevent him from exercising that right. With the oath as governments have always wished to interpret it, it would be possible to confiscate the national will for all time. Revolution has too frequently undertaken the task of answering that pretense. ** Says M. Odilon Barrot, Oaths are taken or refused, but not discussed. The sanction of the oath being entirely in the conscience, the strength of the oath is entirely in the morality of the person who takes it.' In political matters, more than in any other, it is the character of the man which gives authority to the oath.** Let the politician, functionary or civil magistrate take an oath to the law, the soldier to his flag, and every citizen to what to him is duty: such, in our opinion, is the simple and easy solution of this much debated question. In politics everything is variable, uncertain and precarious. In the midst of the crumbling of thrones and constitutions which our generation has witnessed, we should like to have pointed out to us a form of government or a dynasty certain to grow old with its oaths. But duty is, and will always subsist. Let men take an oath of fealty to it." The "political oath" here spoken of is very intimately related on one side to the oath of allegiance.-ED.

kind) of the course of succession being legally varied.* Such is the bare residue of the formidable and elaborate fabric of oaths and declarations raised up by parliaments of former generations against the pope and the pretender. We say against the pope and the pretender; for our modern oaths of allegiance are of statutory devising, and date from Henry VIII.'s assertion of the crown's ecclesiastical supremacy as against the see of Rome. The earliest point of history we have to observe is of a distinguishing kind, namely, that the modern oath of allegiance is a thing apart from the older oath of fealty, though formed on its analogy. Side by side with the fealty due from a man to his lord in respect to tenure, there was recognized in England, it would seem as early as the tenth century, an obligation of fealty to the crown as due from every free man without regard to tenure. Sometimes we find mixed or transitional forms. Thus, there is preserved among the so-called statutes temporis incerti an oath taken by bishops, which, translated, is as follows: "I will be faithful and true, and faith and loyalty will bear to the king and to his heirs kings of England, of life and of member and of earthly honour, against all people who may live and die; and truly will acknowledge, and freely will do, the services which belong to the temporalty of the bishoprick of N., which I claim to hold of you, and which you render to me. So help me God and the Saints."

- This bears considerable generic resemblance to the modern oath. But it is not simply an oath of allegiance in the modern sense: it includes an oath of fealty in respect of a specific tenure, namely, for the temporalities of the see holden of the crown. This is made more evident by comparison of the common forms of a free man's homage and fealty: "I become your man from this day forth, for life, for member and for worldly honour, and shall bear you faith for the lands that I claim to hold of you; saving the faith that I owe unto

⚫ There is, I conceive, nothing in law to prevent the crown, by and with the consent of the estates of the realm, in the ordinary form of an act of parliament, and with the advice of responsible ministers, from repealing or amending the act of settlement. In the event of its appearing likely that there should be a failure of the persons thereby defined as capable of succession, amendment would become necessary; for example, if they should not be or should cease to be Pro

testants.

+ It is remarkable that in the assize of Northampton (1176) the justices are directed to take the oath of fealty even from "rustics":" Item justitiæ capiant domini regis fidelitates

* ab omnibus, scilicet comitibus, baronibus, militibus et libere tenentibus, et etiam rusticis, qui in regno manere voluerint." Does this include men who were not free? In the earliest forms of the oath of fealty to the king, both in England and elsewhere, the promise was to be “fidelis sicut homo debet esse domino suo.” Allen ("Royal Prerogative," pp. 68-71) thinks this was a limitation of the subject's obedience, or reservation of his right to throw off allegiance if the king failed in his duties, and this is probable. But the words would likewise operate in the king's interest by adding the stricter personal bond of homage to the more general obligation of fealty.

Bishops after consecration swore fealty only; but on their election, and before consecration, they did homage. Glanvill, lib. 9, cap. 1, ad fin.