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MEXICO.

THE following is an extract from a book in the King's Library of the British Museum, called The pleasant History of the Conquest of the West India, translated 1578. "In Mexico were twelve judges, who were all noble men, grave and well learned in the Mexican laws. These men lived only by the rents that properly appertain to the maintenance of justice, and in any cause judged by them, it was lawful for the parties to appeal unto twelve other judges who were of the prince's blood, and always abode in the court, and were maintained at the king's own cost and charges. The inferior judges came ordinarily once every month to consult with the higher. And in every fourscore days, came the judges of every province within the Mexican empire, to consult with the Judges of Mexico; but all doubtful causes were reserved to the king only, to pass by his order and determination. The painters served for notaries, to paint all the cases which were to be solved; but no suit passed above fourscore days without final end and determination. There were in that city twelve sergeants, whose office was to arrest, and to call parties before the judges. Their garments were painted mantels, whereby they were known afar off. The prisons were underground, moist and dark, the cause whereof was to put people in fear to

offend. If any witness were called to take an oath, the order was that he should touch the ground with one of his fingers, and then to touch his tongue with the same, which signified that he had sworn and promised to speak the truth with his tongue, taking witness thereof of the earth, which did maintain him. But some do interpret the oath, that if the party swear not true, then he might come to such extremity as to eat earth. Sometimes they name and call upon the God of the crime, whose cause the matter touched!"

CHAPTER VIII.

MODERN EUROPEAN OATHS.

ITALY.

I GLADLY begin with Italy, because most judicious alterations have been made, and with most complete success, with regard to the administration of oaths in that country not many years ago. I cannot help recommending to the attentive consideration of my countrymen, especially of those whose voice may have an influence in promoting a calm and considerate review of our own practice, the wise regulations, together with the sensible reasons assigned for them, embodied in a small work, called The Reformation of the Criminal Legislation of Tuscany*. The first extract is quoted only for the sake of the sound principle and right feeling recognised in the preamble: the evil which the law itself was enacted to suppress, we are happily altogether free from in this country.

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"To the end that a just and more efficient restraint might be put to the custom in old times, universally prevalent with regard to oaths in criminal proceedings, and to prevent, to the utmost of our power, a repetition of it, even as the vene

* Riforma della Legislazione Criminale Toscana, 1786.

ration and respect which we owe to God and his holy name require, and, at the same time, to avoid the danger of giving occasion for false-swearing, we enlarge the provisions of the law of 1679, by which it was forbidden to put the accused person upon his oath as to himself, but not as to others: now we absolutely forbid in future that any one who is proceeded against at law should be put on his oath, whether as regards himself or others,whether those others be accomplices or not, in any case or circumstance whatever, even though the accused should desire to be put upon his oath to clear himself."

I beg to remind my reader that these reformations in the legal practice of Tuscany seem to have two great objects in view, the very two which I have at heart for my own country; first, the abolition of all unnecessary oaths; and, secondly, the more solemn and reverential administration of such as may still be retained. Whoever takes an interest in the maintenance and more general dissemination of these two master-principles, will, I think, be gratified by the following paragraphs, though the enactments conveyed in them may not be needed, nor may be applicable in our own country. For, whatever be our defects, the selfaccusation of suspected persons, and the self-conviction of the accused are, at all events, not among the number.

Section the seventh makes these provisions, "No prosecutor shall be compelled, as formerly, to remove all suspicion of calumny by his oath*; since it is enough that he should be liable to the punishment of calumny†. And, whereas the depositions of witnesses examined before the trial comes on are of no use by themselves, unless they are followed up by other proceedings necessary to bring the matter into court, we enact that the witnesses shall not be put on their oath when they are examined in the first instance; but only, if after a copy of the evidence has been given to the person accused, he should desire that the witness be put on his oath, then he shall confirm his deposition by his oath‡. Without this especial request, the evidence will be

* See the Oath of Calumny, p. 23.

By a parity of reasoning, among other oaths which would be pronounced unnecessary in different departments, in our ecclesiastical court the oath of an administrator would be dispensed with, because he enters into a bond himself, with two sureties also, under heavy penalties, to perform those very things which his oath embraces.

This principle would, in our administration of justice, render unnecessary all oaths before the granting of warrants to bring the parties before a magistrate for examination; and also all oaths before commitment, except when the accused required the prosecutor or his witnesses to be sworn. And I know that, even now, oaths of the first class are dispensed with by magistrates in a large district, though it is, I fear, a deviation from the strict course of law as it now stands. I am also aware, that many would feel a strong objection to any change which would authorize arrest and detention without an oath.

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