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and best men in the country of different professions and departments in life. Men who are best qualified by education and experience for the undertaking. The duty of such Commissioners would be, to ascertain whether any alterations are required in the laws and in the practice of our country on these points, and upon what principles such changes should be made.
I am impressed with a deep and lively conviction, that much good would be consequent on the inquiry; and if followed up, the result would be hailed by every friend of true religion, sound morality, and progressive social improvement. Under the Divine blessing, I have good hope we should find it one means of advancing the honour of Almighty God, by associating sentiments of awe with the administration of oaths, whenever those solemn appeals were made to his omniscience,—by cherishing among us habits and feelings of Christian simplicity and truth, which He loves,—by preserving His holy name from profanation,—and by causing it, whenever heard, or uttered, to be held in reverence.
END OF PART I.
FORMS OF OATHS.
The form of administering an oath is by no means an essential part of the oath itself, and indeed, being of human institution, is in itself a matter of perfect indifference, provided it contains nothing irreverent, and the individual sworn regards it as binding on his conscience. Since however, in many cases, the manner in which a thing is done has far greater influence on the generality of mankind than the real character of the thing itself; the mode of administering an oath becomes, in this point of view, a subject of very great importance.
In the first place then, as Mr. Phillips well observes, that ceremony or form is evidently the best which most clearly conveys the meaning of the oath, and most forcibly impresses its obligation*.
* It is curious to find that, as far back as the Peloponnesian war this principle was recognised in the terras of a solemn league between the two chief belligerent powers. After stipulating that the oaths should be taken by the principals and their allies in the several cities, the covenant Whilst therefore the ceremony or form has varied in different ages and countries, it is obviously necessary to allow men to swear according to the principles of their own religion, that is, in the manner most binding on their conscience*. "Possibly," says Chief Justice Hale, " they may not think themselves under any obligation, if sworn according to the usual style of the Courts of England.'' And this is now the invariable rule in our courts of jusprovides that in each case the most solemn oath should be
taken according to the custom of the country. Thucyd:
* Puffendorf writes very clearly and satisfactorily on this point. "That part in the form of oaths, under which God is invoked as a witness or an avenger, is to be accommodated to the religious persuasion which the swearer entertains of God; it being vain and insignificant to compel a man to swear by a God whom he doth not believe, and therefore doth not reverence: and no one thinks himself bound to the Divine Majesty in any other words, or under any other titles, than are agreeable to the doctrines of his own religion, which, in his judgment, is the only true way of worship. Hence likewise it is, that he who swears by false gods, yet such as were by him accounted true, stands obliged; and if he deceives, is really guilty of perjury: because whatever his peculiar notions were, he certainly has some sense of the Deity before his eyes, and therefore by wilfully forswearing himself, he violated, as far as he was able, that awe and reverence which he owed to Almighty God. Yet when a person, requiring an oath from another, accepts it under a form agreeable to that worship which the swearer holds for true and he himself for false, he cannot in the least be said hereby to approve of that worship."— Book iv., c. 3.
tice; the oath is administered to witnesses in that particular form which they profess to be most binding; whilst no other than Atheists, and such infidels as profess not any religion that can bind their consciences to speak the truth, are excluded from giving testimony, on the score of incompetency from defect of religious principle.
The adoption of this rule, so agreeable as it is to the dictates of common sense, does not call for our admiration more than the practice and the defence of an opposite principle excite our surprise, especially when we find it countenanced by persons of high legal reputation. Yet so the fact is. Sir Edward Coke* pronounces generally, that an " infidel cannot be sworn," under which denomination, he intended to comprise Jews, as well as heathens; and Hawkins-f- holds it to be a sufficient objection to the competency of a witness, that he believed neither the Old nor the New TestamentJ. These sentiments strike us with greater astonishment, when we reflect that the very rule now established in our
* 4 Co. Lit. vi. b. 2 Inst. 506. 3 Inst. 165.
t Hawk. P. C. b. 2, c. xlvi. s. 26.
% Lord Chief Justice Willes, in giving judgment in the case of Omychund and Barker, says distinctly, " Serjeant Hawkins, in his Pleas of the Crown, though a very learned and painstaking man, is mistaken in his notion of Lord Coke's opinion; long before his time, and ever since the Jews returned to England, they have been constantly admitted as witnesses."—Atkyns, vol. i., s. 44.
courts, not only before the time of Coke was acknowledged in different parts of Christendom, but was settled even as long back as the days of St. Augustin; so far, at least, as competency on the score of religious belief is affected. A question had been submitted to that illustrious father of the Church, by one Publicola, " Whether it were lawful for us to put a man upon his oath whom we knew to be a heathen, and who consequently would swear by an idol?" Augustin answers in the affirmative, supporting his view of the question as well by the example of Abraham and Abimelech, and of Jacob and Laban, as also by alleging the necessity of the case. To one of his very cogent remarks we shall have occasion to refer, when we examine the forms of the ancient Roman oaths; to his reasoning from the necessity of the case, a very strong resemblance is borne by the tenour of Chief Justice Hale's argument, when he points out as well the unreasonableness of excluding indiscriminately all heathens from giving evidence, as the inconsistency of compelling them to swear in a form which they may possibly consider not binding. "It were a very hard case," says Hale, " if a murder committed here, in presence only of a Turk or Jew, should be dispunishable, because such an oath should not be taken which the witness considers binding, and he cannot swear otherwise, and possibly might think himself under no obligation, if sworn according to the usual