MASSACHUSETTS QUARTERLY REVIEW.

NO. X.-MARCH, 1850.

ART. I.-JUDICIAL OATHS.

not at all:" containing an exposure of the needlessid mischievousness as well as anti-christianity of the ny of an oath: A view of the Parliamentary recogof its needlessness, implied in the practice of both

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And an indication of the unexceptionable securi which whatsoever practical good purpose the ceremony en employed to serve, would be more effectually profor: Together with proof of the open and perseverntempt of moral and religious principle perpetuated nd rendered universal in the two Church of England sities, more especially in the University of Oxford. EMY BENTHAM, ESQ., formerly of Queen's College, Oxford, A. M. London, 1817.

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2. The Oath a Divine Ordinance and an Element of the Social Constitution: Its origin, nature, ends, lawfulness, obligations, interpretations, form and abuses. D. X. JUNKIN, A. M., Pastor of the Presbyterian Church, Greenwich, N. J. New York, 1845.

Two works upon the same subject can hardly be found in the whole range of literature more diverse than those of Bentham and Junkin upon oaths. Their very titles are antagonistic, their objects opposing. The conflict is in the beginning, in the middle, and in the conclusion. Not less striking is the antagonism of their respective authors. The one is a freethinking reformer, fearless and unyielding. The other is a conservative, rigidly orthodox and fearful of all change. One 21

NO. X.

might as well mingle oil and water, and we will not attempt the commixture. Yet these works are both of value as affording the means of readily weighing the opposing considerations which affect the subject, and we propose to make free use of their contents in what we are about to offer.

It is a noticeable fact, that in the earliest stages of civilization the belief of the special interference of the Deity in the affairs of men, is a prevailing and all but universal idea. Man, it was thought, by certain mystic forms and hallowed ceremonies, could compel the interference of the Divinity either to establish innocence, or to detect guilt. Hence came ordeals and trials by battle and by lot; hence the belief that by the eating of bread, or the drinking of water, by walking barefoot over burning ploughshares, by thrusting the hand amid poisonous serpents, or throwing the accused, bound hand and foot, into the water, amid prayers and the imposing forms of antique superstition, that God would manifest the truth by a miraculous violation of the the laws of Nature. So extensively diffused was this idea, that it was alike believed by the polished Athenian on the banks of the Ilissus, the stern Israelite amid the hills of Judea, the African dwelling under the burning heat of the torrid zone, and the Scandinavian worshipper of Thor or Odin, amid the fastnesses of the North. All nations, barbarous, or just emerging from barbarism, have resorted to the Divinity for the decision of disputed questions with somewhat similar ceremonies, and undoubtedly with like success.

Part and parcel with ordeals, whether of bread or of water, of poisons or of ploughshares, whether of Grecian, Jewish, Hindoo, or Scandinavian form and origin, based upon the same principle, involving the same leading idea, is the oath by which divine vengeance is imprecated upon falsehood, and, by the use of which ceremony, if it be effective, the Deity is, specially and for that cause, bound to inflict the requisite and appropriate punishment, in case of its violation. As the analogies traceable amid the radical words of different languages all point to a common origin, a primal language, so the innumerable resemblances discernible amid the elemental forms of jurisprudence, among nations diverse in their local habitations, with varying customs, and sympathies, and languages, would equally seem to indicate a common source, from which at some point of time, now uncertain or lost in the darkness of a remote antiquity, they originally sprung.

The oath, either assertory or promissory, is found among all nations, with the exception of those so barbarous as to have no conception of the existence of a God. Its antiquity seems almost coeval with man's existence. Indeed, according to classical mythology, its antiquity is still greater; for as the Gods and Goddesses swore more or less according to the emergency of the case, after, so it is fairly inferrible, that they did before his creation. At any rate the custom reaches back to the earliest recorded history.

"An oath is a religious asseveration, by which we either renounce the mercy, or imprecate the vengeance of Heaven, if we speak not the truth." Oaths have usually been divided into promissory or oaths of office, and assertory or oaths uttered judicially or extrajudicially, for the purpose of compelling truth on the part of the witness, and enforcing belief on the part of the hearer.

So extravagantly profuse and wasteful is the use of oaths amongst us, so utterly at variance are they with the command, "Swear not at all," so powerless are they for all good, so potent for much evil, that we have thought it might not be uninteresting briefly to notice the purposes for which, and the occasions upon which they have been in use, their different forms and ceremonies, the various punishments for their violation, the theory which justifies and requires their adoption as a sanction for truth, and their real force and efficiency in the administration of judicial affairs.

In the earliest records of the Jews, we find not only oaths but the very form of the uplifted hand, which is every day witnessed in court. It is the form adopted by the Deity: "I lift up my hand to Heaven and say, I live forever." To swear and to lift up the hand, are indifferently used as translations of the same Hebrew word. "The Lord lifted up His hand to the House of Israel," or "sware," as is subjoined in the margin. So in Revelations," the angel which I saw, lifted up his hand to Heaven, and sware by him that liveth forever, who created Heaven and the things that therein are, and the sea and the things that therein are, that there should be time no longer."

The person to be sworn did not pronounce the formula, but the words of the oath were repeated to him, or, when heard, he ratified them by uttering the words "amen, amen; thus imprecating upon himself the curse. The most solemn oaths were taken amid sacrifices, the person who imposed the

oath dividing the victim, and the person took it passing between the divided parts, with an imprecation, expressed or understood, to the following import: "May God do to me if I am perjured, what has been done to these victims, or punish me still more, in proportion to his greater power."

The first instance of a judicial oath is to be found in Exodus, xxii. 10, 11; where, in case of the loss of animals, delivered by one to his neighbor to keep, and they die, or be hurt, or driven away, no man seeing it, it is decreed, that "then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbor's goods; and the owner of it shall accept thereof, and he shall not make it good."

Perjury, by the Mosaic law, was not an offence against the civil law; to God alone was left its punishment. The civil magistrate had no jurisdiction of the offence, except in the case of a false charge of crime, when the punishment for the offence charged, was to be inflicted upon the person falsely charging it. The perjurer might expiate his guilt, by making the prescribed and predetermined trespass offerings. The misunderstanding or misinterpretation of this, may in later times have led to the doctrines of absolution, and the sale of indulgences; for it is difficult to perceive much difference in principle, whether the offerings, made to escape the punishment of the Deity, be in certain specific articles, or in certain money payments.

The form among the Greeks was by lifting up the hand to Heaven, or touching the altar, adding a solemn imprecation to their oaths, for the satisfaction of the person by whom the oath was imposed, as well as to lay a more inviolable obligation upon the person taking it-in terms something like this; -if what I swear be true, may I enjoy much happiness, if not, may I utterly perish.

In judicial proceedings, the oath was administered to the witnesses before an altar erected in the courts of judicature, and with the greatest solemnity. The parties were likewise sworn the plaintiff, that he would make no false charge, the defendant, that he would answer truly to the charge preferred.

An ancient form among the Romans was, for the juror to hold a stone in his hand, and to imprecate a curse upon himself should he swear falsely, in these words: "If I knowingly deceive, whilst He saves the city and citadel, may Jupiter

cast me away from all that is good, as I do this stone." Among the Greeks and Romans, the oath was not merely used to induce faith in judicial proceedings, but the Gods were invoked as witnesses to contracts between individuals, and treaties between nations.

When the shrine of Jupiter gave place to that of St. Peter, when the innumerable gods and goddesses of ancient superstition were converted into the equally numberless saints and saintesses of Catholicism, when the Pontifex Maximus of consular and imperial, became the Pontifex Maximus of papal Rome -without even the change of his sacerdotal vestments, when the rites and ceremonies, the whole ritual of the pagan worship was transferred bodily to the worship of the papacy, the oath, which was essentially a religious ceremony, was adopted as it had heretofore been administered, except so far as was required by the alteration in the names of the object of worship, and in its purposes and beliefs. As before this change, the altar, or the sacred things upon it were touched or kissed, as the more gods one swore by the stronger the oath, so we find after this change similar forms and ceremonies were adopted, with slight variations. The very form of the imprecation used is of pagan origin. "So help me Jupiter and these sacred things," became "So help me God and these sacred relics," or, "these holy Evangelists."* The Flamen of Jupiter, from the sacredness of his office, was not compelled to take an oath, and the word of the priest, "verbum sacerdotis," in conformity to the old superstition, has sufficed.

Justinian prescribes the following form:-"I swear by God Almighty and by his only begotten Son, our Lord Jesus Christ, by the Holy Ghost and by the glorious St. Mary, mother of God, and always a virgin, and by the Four Gospels, which I hold in my hand, and by the holy Archangels, Michael and Gabriel, &c.," closing with an imprecation upon head of the "terrible judgment of God and Christ, our Saviour, and that he might have part with Judas and the leper Gehazi, and that the curse of Cain might be upon him.”

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Besides oaths on solemn and judicial occasions, the ancients were in the habit of making use of them, as nowadays, as "the supplemental ornament of speech"-" as expletives to

"So help me Fuyre Njord and the Almighty, as I shall testify truly, &c.," was the Scandinavian formula.