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cestors rested upon oaths, and the punishment for their violation was severe. The perjurer was declared unworthy of the ordeal, was incompetent as a witness, denied Christian burial, and classed with witches, murderers and the most obnoxious members of society.
Oaths were administered to the complainant in criminal proceedings, and to the accused. The oath of the complainant was as follows: “In the Lord, I accuse not N. either from hate, or art, or unjust avarice, nor do I know any thing more true ; but so my mind said to me, and I myself tell for truth that he was the thief of my goods."
The accused swore as follows: "In the Lord, I am innocent, both in word and deed, of that charge of which P. accused me.”
The oath of the witness was: “In the name of Almighty God, as I stand here a true witness, unbidden and unbought, so I oversaw it with mine eyes, and even heard it in my ears, what I have said."
From this, it would appear that, in those early days, before the inveterate chicanery of Norman Jurisprudence had cursed English soil, that it was usual to swear the parties, “those who knew something about the matter."
The different oaths of modern Europe, ordeal oaths, oaths of compurgators, decisory oaths, oaths of calumny, oaths military, masonic, might well deserve attention ; but we have already, perhaps, occupied too much attention in reverting to the forms and usages of the past.
There are but two instances of nations among whom oaths have not been adopted in judicial proceedings. Among the Chinese, no oath is exacted by the magistrate, upon the delivery of testimony. When they question eaeh other's testimony, appeals to the Gods are only made by cutting off the head of a fowl and wishing they may thus suffer — or blowing out a candle and wishing they may thus be extinguished, if they do not speak the truth. The other instance is to be found in the code of laws formed, with great judgment and much discrimination, by the missionaries at Hawaii — where, we believe, oaths have, for the first time, been abolished by a Christian people.
Whim and caprice seem to have governed men in selecting the punishment to be inflicted for a violation of the truth. Among some nations, fines, confiscation of goods, and imprisonment have sufficed. The Hindoos cut out the tongue, as be
ing the offending member, while the Spaniards, sparing the tongue, extracted the teeth, for their share in the formation of sound. Some cut off the hand. The old Germans were content with a thumb, while the Danes, using three fingers in the ceremony, were content with taking only two; and the Dutch, still more merciful, thought the jointing of the forefinger a sufficient expiation for the offence. By the Salic law, a fine of fifteen shillings satisfied the offended majesty of the law; but in case of the decisory oath, according to the laws of some countries, no punishment can be imposed
on the false swearer beyond what God will inflict.
With us, the oath is used on so many occasions, that a stranger would imagine it was a precept of our religion, to swear always, at all times and on all occasions. Not an executive officer, from the President to a Marshal, from a Governor to a Constable ; not a judicial officer, from the chief justice to the lowest magistrate known to the law; not a member of our numerous legislative assemblies ; not an officer of the army or navy, nor a soldier or sailor, enlisting, but is sworn in certain set and prescribed formulas. A sworn assessor is required to assess our taxes; a sworn collector to collect, and a sworn treasurer to receive the money collected. Not a lot of land is levied upon, without the intervention of oaths. The whole custom house department is rife with them. Through all the innumerable grades of official life, civil, military, executive and judicial, the oath is the official security, by which, in their respective spheres, they are all bound to the performance of their several duties — and that, too, by a people, one of the clearest precepts of whose religion is, swear not at all ;” and when, in many of the above instances, the violation of the several duties sworn to be done and performed, is not punishable as perjury.
Nor are these the only occasions in which the oath is used. No testimony is received in any judicial proceeding until after its administration. As a security for official faithfulness, or as a preventive of official delinquency, it is notoriously worthless and inoperative. What may be its value in the preserving and promoting of trustworthiness of testimony, we propose to consider.
For the purposes of Justice, it is perfectly immaterial whether the testimony uttered be sworn or unsworn, provided it be true. Before considering the supposed efficiency of an oath, it may be advisable to see what other, and how power
ful securities for testimonial veracity are attainable without resort to this supernatural agency.
Truth is the natural language of all; it is the general rule, falsehood the rare and occasional exception. Even of those least regardful of veracity, truth is the ordinary and common language. The greatest liar, no matter how depraved he may be, usually speaks the truth. And why? Invention is the work of labor. To narrate facts in the order of their occurrence, to tell what has been seen or heard, is what obviously occurs to any one. To avoid doing this, is a work of difficulty. Falsely to add to what has occurred, carefully to insert a dexterous lie, requires ingenuity, greater or less, according to the greater or less degree of skill with which the lie is dovetailed among the truths which surround it. No matter how cunning the artificer, the web cannot be so woven that the stained and colored thread shall not be perceived. Love of ease, fear of labor, the physical sanction, are always seen coöperating in favor of truth. Any motive, however slight and even infinitesimal, is, or may be sufficient to induce action in a right direction, except when overborne by other and superior motives, in a sinister direction. By a sort of impulse, by the very course of nature, the usual tendency of speech is in the line of truth.
Regard for public opinion, the pain and shame universally attendant upon the ignominy attached to falsehood detected, the disgrace of the liar, in other words, the moral and popular sanction, with but rare and accidental exceptions, is found tending in the same direction. Much the greater part of what is known, is known only from the testimony of others. Our necessities, the necessities of others, and of social intercourse, require, that for our own preservation as well as for that of others, the truth should be told. Hence, among all nations, barbarous and civilized, and among civilized in proportion to their advancement, the term Liar has been one of deep reproach ; never used without inflicting pain on the person to whom it is applied. However great the disgrace, it is immeasurably increased, when the occasion upon which the falsehood is uttered is a judicial one. The more important the occasion, the greater the public indignation and scorn attached to its violation.
The law regarding veracity, which is peculiarly desirable in judicial investigations, may impose severe penalties for false testimony, mendacity, - penalties varying in degree of se
verity, according to the aggravation of the offence- and thus may furnish additional sanction to, and security for testimonial trustworthiness.
It may happen that the statement of a witness, while true in part, may be defective in detail, either by the omission of true, or the utterance of false facts. Correctness and completeness are both included in perfect veracity. Incorrect in part, incomplete to any material extent, - the evils of such incompleteness and incorrectness, when not the result of design, may be as great as those of deliberate and intentional falsehood. How best to attain those indispensable requisites, is the problem, the solution of which becomes so important in the practical administration of the law. How best to compel the reluctant and evasive witness, how to quicken the careless and indifferent, how to check and restrain the rash and presumptuous, how convict the deliberately and wilfully false, how to extort from reluctant lips the truth, the whole truth, and nothing but the truth — by what processes to accomplish these results, is the great question.
Interrogation and cross-interrogation, rigid, severe and scrutinizing, under a proper system of procedure, confirmed and strengthened by the sanctions already alluded to, are the securities upon which all real and substantial reliance can be placed. The ordinary motives to veracity, without the aid of cross-examination, and unaccompanied by fear of punishment in case of falsehood, are found sufficient in the common affairs of life to produce veracity. The extraordinary securities afforded by punishment, compulsory examinations and cross-examinations, would seem to suffice in the case of evidence judicially delivered.
As, however, testimony is judicially delivered only upon and after the ceremony called an oath — it is only punishable if false, after the oath has been legally administered. not necessarily so — for, if the legislature should so will, the temporal punishment might as well be inflicted without, as with an oath.
Having briefly considered the temporal securities for truth, it now remains, to ascertain the real significance and true value of the oath, as a preventive of testimonial mendacity.
“What is universally understood by an oath," says Lord Hardwick, “is, that the person who undertakes, imprecates the vengeance of God upon himself, if the oath he takes be false."
“An oath,” says Michaëlis, “is an appeal to God as a surety
and the punisher of perjury : which appeal as He accepted, He of course became bound to punish a perjured person irremissibly.
“ Were not God to take upon Himself to guarantee oaths, an appeal to Him in swearing, would be foolish and sinful. He undertakes to guarantee it, and is the avenger of perjury, if not in this world, at any rate in the world to come.”
By the use, then, of this ceremony, the Deity is engaged, or it is assumed that He is engaged, in case of a violation of the oath, to inflict punishment of an uncertain and indefinite degree of intensity — at some remote period of time, in some indefinite place, according to the varying and conflicting theological notions of those holding this belief — notions varying according to the time when, and place where, they are entertained, and the education and character of those entertaining them.
It cannot be questioned, that the Deity will punish for falsehood, whether judicially or extrajudicially uttered; nor that such punishment, whatever it may be, whensoever, wheresoever, or howsoever inflicted, will be just, fitting and appropriate.
Were the ceremony not used, were unsworn testimony delivered, subject to temporal punishment, were all oaths abolished, false testimony, so far as this world is concerned, would be as injurious as if uttered under the sanction of an oath. The injurious effects in the administration of Justice, would be the same.
The unsworn witness would be amenable to the penalties of the law, as the sworn witness is now.
Now what is accomplished by the oath? The falsehood and its disastrous effects to the cause of Justice are the same, whether the oath has been taken or not; the temporal punishment is, or may be made the same. The oath, if effective, therefore, is only effective so far as future punishment is concerned, which, in consequence of its administration, will thereby be increased or diminished, -- for, if the punishment were to remain the same, then nothing would have been effected; the oath would be a mere idle ceremony — telumque imbelle sine ictu.
That future punishment will thereby be diminished, no one will pretend, certainly not those who repose confidence in the efficacy of this sanction. If future punishment is increased, then, and then only is the ceremony effective — then, only, is a valid reason given for its adoption.
The falsehood being the same, whether the testimony be sworn or unsworn, the punishment for the falsehood itself, must necessarily be the same. For, if falsehoods be a proper