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the solemn form of an oath should not be resorted to in such cases." My friend^ observations are most instructive and interesting; but, I fear, their insertion might seem to intrench upon the line which I have already marked out for my guidance. Enough, I think, has been said, to show that, at all events,
AN INQUIRY IS CALLED FOE.
Were a commission now existing, such as I trust our governors may soon be induced to appoint, whose duty it would be to ascertain in what cases oaths now required might be safely omitted, as well as to examine any proposed improvement in the administration of those which might be retained, I would venture to suggest that their primary attention should be directed to the inferior courts " of the first instance," as they are called;—our police-offices, our petty sessions, and meetings of magistrates, and the proceedings where one magistrate only is required to act. The general business of such courts arises from questions relating to the poor-laws, benefit societies, the road-laws, petty thefts, assaults, trespasses, and breaches of the peace: questions in determining which, my own experience has convinced me, that in nine out of ten cases, the oaths required by law might be cut off at once, without any impediment whatever to substantial justice; and thus, an incalculable accumulation of perjury and false-swearing might be prevented.
In all these or any other substitutions of affirmations for oaths, care should be taken not only to render the temporal punishment of falsehood at least as severe as that which is now apportioned to perjury, but to make the conviction of the offender far more easy and certain than now is the conviction of a perjurer. Probably it might be necessary to render it imperative on a judge or magistrate, before whom the false affirmation might be made, (or before whom complaint of the offence might be brought,) to commit the offender for trial and to prosecute him at the public expense.
But it will be said, are you not removing one of the safeguards by which public peace and justice are secured? Are you not loosening the bands which hold society together? Experience of the past, a knowledge of the present, and the general opinion of those practical men who are best, able to judge, as well as the soundest arguments in the abstract, all unite in answering that question in the negative. Oaths as at present operative among us, are at best no trust-worthy safeguards—securities on which no banker or merchant would depend in his private transactions; and they lead to an appalling mass of perjury. In almost every case, I would say, "Increase bonds and penalties, and diminish oaths."
I shall not be going, I trust, beyond my prescribed limit, if I refer my reader to the improvements in the Tuscan code (see part ii. c. 8, of this treatise), and suggest the establishment of a rule among us, which I know many of our best men and best lawyers think might be safely and beneficially adopted; I mean that we should leave, in many cases, the administration of the oath to the discretion of the magistrate, when he may think it necessary, unless an opposite party should require the oath instead of the affirmation of the prosecuting party or witnesses. It would also be useful to ascertain, (I have endeavoured to do so, but have not succeeded so fully to my satisfaction as to be authorized to state my opinion in the negative, to which, however, I am strongly inclined,) whether, in practice, in the House of Commons, the same members in Election Committees who administer oaths to the witnesses, have more reason to be satisfied with the result of their examination, than they have when engaged in other committees where no oaths are taken.
MANNER OF ADMINISTERING OATHS.
But whether all, or any, or none of the classes of oaths which we have specified, be deemed by the Legislature, after serious deliberation, unnecessary, and therefore to be abolished, I have no doubt at all that a most material change is called for in the manner of administering oaths, as well in the higher courts of justice, as in the other departments of our polity in which the use of oaths may be retained.
I will not dwell upon the rapidity with which we sometimes have heard the solemn words indecently hurried over, in an affair which ought to be, from beginning to end, deliberate and solemn; because great improvement has certainly,in this respect, been discernible within these late years. One most desirable alteration, however, would be, that either the presiding judge, or a magistrate, should administer the oath; at all events, it should be an officer in rank and importance much above those who are now usually employed for that purpose; and another improvement should be, that as much as possible, whenever oaths are administered, the ceremony should not be going on amidst the clamour and confusion of the court*. I will not presume to say, that an oath should never under any circumstances be administered by any one except the chief person in authority present, nor that it should never be administered except when the business of the court was altogether suspended for the solemnity, because
* I have been informed by a lawyer, that the manner in which the oath is administered in courts martial is much more solemn than we generally find it to be in the civil courts. He referred especially to a trial which took place in 1782, when the Judge Advocate and the witness both laid their hands on the Gospels, the witness repeating the oath in his own person after the Judge Advocate. We must not, however, forget that much of the impression made when we witness a proceeding for the first time, is worn off by familiarity.
that would be entering more into detail than our present plan requires; and I should be unwilling to give room for objections to specific practical alterations, which might tend to deprive the general principles upon which I would insist, of a careful scrutiny and a fair unprejudiced consideration. I cannot, however, help confessing the regret which I have often felt on witnessing in the criminal court at an assize so marked a contrast between the correct, solemn, and impressive manner in which the judge's marshal has administered the oath to the grand jury, and the absence of all solemnity and impressiveness when the petty jury are sworn by the crier of the court; though the petty jury consists chiefly of persons of far less cultivated minds, and from their very station and circumstances of life, and the very duties too, which they are then called upon to discharge, requiring far more than those who usually constitute the grand jury, the additional influence of a solemn and impressive address.
A method also might probably be adopted, without the slightest inconvenience to any party, or the least prejudice to the cause of justice and truth, by which witnesses who are to go before the grand jury might be sworn; and the present hurried and confused manner of swearing them in the midst of the bustle and crowd of the court