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might be at the same time avoided * The inconveniences of the present system have, in one point at least, been so strongly brought to our minds recently, that I conceive most persons are desirous of some improvement in this respect.
The principles which I am here advocating would necessarily interfere with the practice of judges and magistrates delegating to their clerks or servants, either in court or in private, the office of administering an oath. I would not for a moment be supposed to recommend that a judge's time should be taken up, and himself fatigued, by administering the oaths which are now given by his clerk in an outer room, at chambers, or otherwise. I would suggest that the signature of the party, in the presence of the clerk, should be deemed sufficient in all cases where the actual presence and immediate attention of the judge himself is not required, and, in fact, is not now given—such a presence and attention, I mean, as would enable him, if called as an ordinary witness to the signature of a deed, to testify that he did witness it. What would be said in court to a witness who, in his examination in chief, should have declared that a disputed document was signed
* It is a curious fact, that in Durham the witnesses are, eren at present, sworn before the grand jury themselves. This exception to the otherwise, I believe universal practice, arises from the circumstance that the members of the grand jury in Durham are all in the commission of Oyer and Terminer.
by the parties in his presence, and afterwards, in his cross-examination, should confess, or it should be proved by other evidence, that he was never in the room at all during the transaction, and that he never saw the parties in his life? Would the judge represent him to the jury as a witness deserving implicit credit ? In every case where the actual presence and cognizance of the president or judge is not now required or usually had, and the additional solemnity which that presence would convey is not now given, I conceive that the signature of the person who under the present system would be sworn, might safely be held equivalent, to all intents and purposes, to the oath as now administered. The signature might be attested by the clerk who now administers the oath, whilst the same temporal penalties might attach to a false declaration which now may be visited on perjury.
Finally, I cannot but express an ardent wish that every judge, and magistrate, and examining advocate, and every officer of our court, had the sentiment of Sir Edward Coke deeply impressed upon his mind, and ever practically present in his thoughts. That learned man is speaking of the examination of witnesses by a commission, but the spirit of his injunctions may very easily be transfused into every proceeding where recourse is had to the solemn and sacred obligation of an oath. “ For as much as the witnesse by his oath, which
is so sacred as he calleth Almighty God (who is truth itself, and cannot be deceived, and hath knowledge of the secrets of the heart) to witness that which he shall depose, it is the duty both of the commissioner and the examiner gravely, temperately, and leisurely to take the deposition of the witnesse, without any menace, disturbance, or interruption of them in hinderance of the truth, which are grievously to be punished. And after the depositions taken, the commissioners and examiners ought to read the same distinctly to the witnesses, and suffer them to explain themselves to the manifestation of the whole truth. Interrogatories ought to be single and plaine, pertinent to the matter in question, and in no sort captious, leading, or directory.”—Coke, Inst. iv. 278.
CONCLUSION OF PART I.
The objects then, which, after a patient, and I trust an unprejudiced inquiry, I cannot but regard as worthy the serious and favourable consideration of the Legislature are these three:
First, an approximation towards such a state of a Christian community with regard to oaths as would be worthy of the Gospel: to be attempted by the legislative abolition of all oaths among us (whether ecclesiastical, civil, academical, judicial, municipal, financial, or any other,) except such only, as after a careful and unprejudiced examination of the subject by competent men, might be pronounced indispensable*
Secondly, that in the administration of those oaths which the law might still require, the presiding judge, or supreme officer (if he cannot always in his own person actually perform the solemn duty of administering the oath in each case) should nevertheless enforce the most grave and reverent and
* On the first of these points I cannot refrain from adding a very brief extract from the letter of a friend of the highest legal distinction. “I think it of the first necessity to diminish, as much as possible, the multitude of oaths daily taken in this country, and that for this purpose they should be confined to oaths strictly and properly judicial, and to such promissory oaths of office as relate to the more important and solemn offices of state.
impressive manner in those who are intrusted with the duty*.
Thirdly, in cases where the party to be sworn may desire it, a change in all our oaths from the imprecatory to the attesting form, as is already the case with the Moravians and Separatists t.
To effect these changes, or rather, I would say, to diminish the present evils (as far as, after mature and able deliberation, it may be deemed safe and consistent with the best interests of the community to adopt any change,) I would most humbly, but at the same time, most earnestly suggest that a Commission of Inquiry should be appointed, consisting of members chosen from among the wisest
* On this second point the same excellent person observes, “I think further, it is highly expedient, in the case of judicial oaths, that the form and ceremony should be more solemn than at present, and more likely to affect thereby the conscience of the party sworn, and the minds of the bystanders.
+ On this third point there seems to be much difference of opinion among persons eminent for soundness of judgment, and clear and liberal views in practical matters. Whilst one considers “ the imprecatory form as merely speaking out, in clear and intelligible words, the effect and consequence of a false oath,which the person who takes the oath might not always be able to draw so distinctly for himself;" another says, “The imprecatory form of oath strikes me as wrong. It would be much more decent and pious, if that were left to be implied (as it must needs be) and not expressed." All we mean to say is, “I call God to witness, that what I say is true.” The consequences of a false appeal no man can be ignorant of.