CHAPTER XVII.

OATH IN EVIDENCE.

THE witness swears "to speak the truth, the whole truth, and "nothing but the truth, touching the matter in question."

Upon which it may be observed, that the designed concealment of any truth, which relates to the matter in agitation, is as much a violation of the oath, as to testify a positive falsehood; and this whether the witness be interrogated to that particular point or not. For when the person to be examined, is sworn upon a voir dire, that is, in order to inquire, whether he ought to be admitted to give evidence in the cause at all, the form runs thus: "You shall true "answer make to all such questions as shall be asked you :" But when he comes to be sworn in chief, he swears" to speak the whole "truth," without restraining it, as before, to the questions that shall be asked: which difference shows, that the law intends, in this latter case, to require of the witness, that he give a complete and unreserved account of what he knows of the subject of the trial, whether the questions proposed to him reach the extent of his knowledge or So that if it be inquired of the witness afterwards, why he did not inform the court so and so, it is not sufficient, though a very common answer, to say, " because, it was never asked me.”

not.

I know but one exception to this rule; which is, when a full discovery of the truth tends to accuse the witness himself of some legal crime. The law of England constrains no man to become his own accuser; consequently imposes the oath of testimony with this tacit reservation. But the exception must be confined to legal crimes. A point of honour, of delicacy, or of reputation, may make a witness backward to disclose some circumstance with which he is acquainted; but is no excuse for concealment, unless it could be shown that the law which imposes the oath, intended to allow this indulgence to such motives. The exception is also withdrawn by a compact between the magistrate and the witness, when an accomplice is admitted to give evidence against the partners of his crime.

Tenderness to the prisoner is a specious apology for concealment, but no just excuse: for if this plea be thought sufficient, it takes the administration of penal justice out of the hands of judges and juries, and makes it depend upon the temper of prosecutors and witnesses.

Questions may be asked, which are irrelative to the cause, wh affect the witness himself, or some third person; in which, and

all cases where the witness doubts of the pertinency and propriety of the question, he ought to refer his doubts to the court. The answer of the court, in relaxation of the oath, is authority enough to the witness; for the law which imposes the oath, may remit what it will of the obligation; and it belongs to the court to declare what the mind of the law is. Nevertheless, it cannot be said universally, that the answer of the court is conclusive upon the conscience of the witness; for his obligation depends upon what he apprehended, at the time of taking the oath, to be the design of the law in imposing it, and no after-requisition or explanation by the court can carry the obligation beyond that.

CHAPTER XVIII.

OATH OF ALLEGIANCE.

"I Do sincerely promise and swear that I will be faithful and bear true allegiance to his Majesty King GEORGE." Formerly the oath of allegiance ran thus: "I do promise to be true and faith"ful to the King, and his heirs, and truth and faith to bear, of life "and limb, and terrene honour; and not to know or hear of any "ill or damage intended him, without defending him therefrom;" and was altered at the Revolution to the present form. So that the present oath is a relaxation of the old one. And as the oath was intended to ascertain not so much the extent of the subject's obedience, as to whom it was due, the legislature seems to have wrapped up its meaning upon the former point, in a word purposely made choice of for its general and indeterminate signification.

It will be most convenient to consider, first, what the oath excludes, as inconsistent with it; secondly, what it permits.

1. The oath excludes all intention to support the claim or pretensions of any other person or persons than the reigning sovereign, to the crown and government. A Jacobite, who is persuaded of the pretender's right to the crown, and who, moreover, designs to join with the adherents of that cause to assert this right, whenever proper opportunity, with a reasonable prospect of success preats itself, cannot take the oath of allegiance; or, if he could, the th of abjuration follows, which contains an express renunciation all opinions in favour of the claim of the exiled family. 2. The oath excludes all design,.at the time, of attempting to Dose the reigning prince, for any reason whatever. Let the jusof the Revolution be what it would, no honest man could have

taken even the present oath of allegiance to James the Second, who entertained at the time of taking it, a design of joining in the measures that were entered into to dethrone him.

3. The oath forbids the taking up of arms against the reigning prince, with views of private advancement, or from motives of personal resentment or dislike. It is possible to happen in this, what frequently happens in despotic governments, that an ambitious general, at the head of the military force of the nation, by a conjuncture of fortunate circumstances, and a great ascendency over the minds of the soldiery, might depose the prince upon the throne, and make way to it for himself, or for some creature of his own. A person in this situation would be withheld from such an attempt by the oath of allegiance, if he paid any regard to it. If there were any who engaged in the rebellion of the year forty-five, with the expectation of titles, estates, or preferment; or because they were disappointed, and thought themselves neglected and ill-used at court; or because they entertained a family animosity, or personal resentment against the king, the favourite, or the minister;-if they were induced to take up arms by these motives, they added to the many crimes of an unprovoked rebellion, that of wilful and corrupt perjury. If the same motives determined others, lately, to connect themselves with the American opposition, their part in it was chargeable with perfidy and falsehood to their oath, whatever was the justice of the opposition itself, or however well founded their particular complaint might be of private injuries.

We are next to consider what the oath of allegiance permits, or does not require.

1. It permits resistance to the king, when his ill behaviour or imbecility is such as to make resistance beneficial to the community. It may fairly be presumed, that the Convention Parliament, which introduced the oath in its present form, did not intend, by imposing it, to exclude all resistance, since the members of that legislature had many of them recently taken up arms against James the Second, and the very authority by which they sat together was itself the effect of a successful opposition to an acknowledged sovereign. Some resistance, therefore, was meant to be allowed; and if any, it must be that which has the public interest for its object.

2. The oath does not require obedience to such commands of the king as are unauthorized by law. No such obedience is implied the terms of the oath; the fidelity there promised, is intended fidelity in opposition to his enemies, and not in opposition to la and allegiance, at the utmost, signifies only obce to la

commauds. Therefore, if the king should issue a proclamation, levying money, or imposing any service or restraint upon the subject, beyond what the crown is empowered by law to enjoin, there would exist no sort of obligation to obey such a proclamation in consequence of having taken the oath of allegiance.

3. The oath does not require that we should continue our allegiance to the king, after he is actually and absolutely deposed, driven into exile, carried away captive, or otherwise rendered incapable of exercising the regal office. The promise of allegiance implies, and is understood by all parties to suppose, that the person to whom the promise is made continues king; continues, that is, to exercise the power, and afford the protection, which belong to the office of king; for, it is the possession of this power, which makes such a particular person the object of the oath; without it, why should I swear allegiance to this man rather than to any other man in the kingdom? Besides, the contrary doctrine is burthened with this consequence, that every conquest, revolution of government, or disaster which befals the person of the prince, must be followed by public and perpetual anarchy.

CHAPTER XIX.

OATH AGAINST BRIBERY IN THE ELECTION OF MEMBERS
OF PARLIAMENT.

"I Do swear, I have not received, or had, by myself, or any "person whatsoever in trust for me, or for my use and benefit, di"rectly or indirectly, any sum or sums of money, office, place, or "employment, gift, or reward; or any promise or security, for any CC money, office, employment, or gift, in order to give my vote at "this election."

The several contrivances to evade this oath, such as the electors accepting money under colour of borrowing, and giving a promissory note, or other security, for it, which is cancelled after the election; receiving money from a stranger, or a person in disguise, or out of drawer, or a purse, left open for the purpose; or promises of money to be paid after the election; or stipulating for a place, living, or other private advantage of any kind; if they escape the legal penalties of perjury, incur the moral guilt: for they are manifestly within the mischief and design of the statute which imposes the oath, and within the terms indeed of the oath itself; for the word "indirectly" is inserted on purpose to comprehend such cases as these.

CHAPTER XX.

OATH AGAINST SIMONY.

FROM an imaginary resemblance between the purchase of a benefice and Simon Magus' attempt to purchase the gift of the Holy Ghost, (Acts viii. 19) the obtaining of a presentation by pecuniary considerations has been called Simony.

The sale of advowsons is inseparable from the right of private patronage; as patronage would otherwise devolve to the most indigent, and for that reason the most improper hands it could be placed in. Nor did the law ever intend to prohibit the passing of advowsons from one patron to another; but to restrain the patron, who possesses the right of presenting at the vacancy, from being influenced in the choice of his presentee, by a bribe, or benefit to himself. It is the same distinction with that which obtains in a freeholder's vote for his representative in parliament. The right of voting, that is, the freehold to which the right pertains, may be bought and sold as freely as any other property; but the exercise of that right, the vote itself, may not be purchased, or influenced by money.

For this purpose the law imposes upon the presentee, who is generally concerned in the simony, if there be any, the following oath : "I do swear, that I have made no simoniacal payment, con"tract, or promise, directly or indirectly, by myself, or by any "other to my knowledge, or with my consent, to any person or 66 persons whatsoever, for or concerning the procuring and obtaining of this ecclesiastical place, &c.; nor will, at any time hereaf"ter, perform, or satisfy, any such kind of payment, contract, or "promise, made by any other without my knowledge or consent : "So help me God, through Jesus Christ."

It is extraordinary that Bishop Gibson should have thought this oath to be against all promises whatsoever, when the terms of the oath expressly restrain it to simoniacal promises; and the law alone must pronounce what promises, as well as what payments and contracts are simoniacal, and consequently come within the oath; and what are not so.

Now the law adjudges to be simony,

1. All payments, contracts, or promises, made by any person for a benefice already vacant. The advowson of a void turn, by law, cannot be transferred from one patron to another; therefore, if the void turn be procured by money, it must be by a pecuniary influ