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Forms of swearing.
tions may be put, a witness is not bound to answer if he is an Atheist or a Theist, for by so doing he might expose himself to an indictment under the 9 & 10 Will. III. c. 32, and perhaps also at common law; and it is an established principle that no man is bound to criminate himself Nemo tenetur seipsum prodere (s).
§ 158. The ordinary form of swearing in English courts of common law is well known. The witness holding the New Testament (t) in his bare right hand, is addressed by the officer of the court in a form, which varies according to the nature of the proceedings.
On trials for felony it runs thus:
"The evidence that you shall give to the court and jury sworn between our sovereign lady the Queen and the prisoner at the bar, shall be the truth, the whole truth, and nothing but the truth: So help you God." In civil cases it is
"The evidence that you shall give to the court and jury touching the matters in question, shall be the truth, the whole truth, and nothing but the truth: So help you God."
The witness then kisses the book.
But there can be little doubt that if a witness allows himself to be sworn in either of these, or perhaps any other form, without objecting, he is liable to be indicted for perjury if his testimony prove false (u).
§ 159. Numerous instances are to be found in our books of the application of the principle that witnesses are to be sworn in that form which they consider binding on their consciences. Members of the Kirk of
(s) 3 Bulst. 50.
(t) Strictly speaking, this should be the four Evangelists; but the distinction is disregarded
(u) Sells v. Hoare, 3 B. & B. 232; and 1 & 2 Vict. c. 105.
Scotland (x), and others (y), who object to kissing or touching the book, have been sworn by lifting up the right hand while it lay open before them. Irish Roman Catholics are sworn on a New Testament with a crucifix delineated on the cover (z). Jews are sworn on the Pentateuch, keeping on their hats, the language of the oath being changed from "So help you God" to "So help you Jehovah." Mohamedans are sworn on the Koran, and the ceremony is thus described in R. v. Morgan (a). The book was produced. The witness first placed his right hand flat upon it, put the other hand to his forehead, and brought the top of his forehead down to the book, and touched it with his head; he then looked for some time upon it, and on being asked what effect that ceremony was to produce, he answered that he was bound by it to speak the truth. According to the report of Omychund v. Barker (b), part of the ceremony of swearing a Hindoo consists in his touching the foot of a Bramin, or, if the party swearing be himself a priest, then the Bramin's hand; but, if this is deemed by their religion essential to the validity of an oath, it is obvious that Hindoos cannot be sworn in countries where no Bramins are to be found (c). A Chinese witness has been sworn thus (d). On getting into the witness-box he knelt down, and a china saucer having been placed in his hand, he struck it against the brass rail in front of the box and broke it. The officer who swears the witnesses then administered the oath in these words, which were
(r) Mildrone's case, 1 Leach, C. L. 412; Walker's case, Id. 498; Mee v. Reid, 1 Peake, 23. (y) Colt v. Dutton, 2 Sid. 6. (z) Mac Nally, Ev. 97. (a) 1 Leach, C. L. 54.
(b) 1 Atk. 21.
(c) We understand that in some parts of India, at least, the natives are sworn on a portion of the water of the Ganges.
(d) R. v. Entrehman, Car. & M. 248. See also Peake's Ev. 141.
Doubtful expediency of this exclusion.
translated by the interpreter into the Chinese language. "You shall tell the truth and the whole truth; the saucer is cracked, and if you do not tell the truth your soul will be cracked like the saucer."
§ 160. Whether this deference to the conscience of witnesses would be carried so far as to allow a form of oath involving rites which our usages would pronounce indecent or improper; as, for instance, the sacrifice of an animal (e); or, as in patriarchal times, placing the hand under the thigh of the person by whom the oath is administered (f), has not been settled by authority. The great question in all such cases is to consider whether the rite suggested is malum in se, and the scruples of the witness against being sworn in any other way are bonâ fide, and not affected with the view of evading the obligation of an oath or turning the ceremony into contempt.
§ 161. Atheism, and other forms of infidelity which deny all exercise of Divine power in rewarding truth and punishing falsehood, remain untouched by Omychund v. Barker and the above decisions, and are still recognized grounds of incompetency. But ought this to be maintained? at least so far as casual evidence is concerned? Is it wise to leave in the power of every man whose breast is the repository, perhaps the sole repository, of evidence affecting the lives and fortunes of his fellow citizens, to stifle that evidence by pretending to hold erroneous views on the subject of religion?
(e) See Genes. xv. 9 et seq.; Grotius de Jur. Bell. ac Pac. lib. 2, c. 13, § 10; Liv. lib. 1, c. 24. It is said that in the island of Hong Kong, even since it came into the possession of the British, part of the ceremony of swearing
a Chinese witness consisted in the cutting off the head of a live cock or live fowl. Berncastle's Voyage to China, vol. 2, p. 39.
(f) Genesis, chap. 24, ver. 2; chap. 47, ver. 29.
And even supposing the atheism, epicureanism, &c., ever so unfeigned and genuine, is it not more properly an objection to the credit than to the competency of the witness?-for it amounts simply to this, that, out of four sanctions of truth one has no influence on his mind (g). The only case, as has been well observed, in which "Cacotheism," or bad religion, is a legitimate ground for the exclusion of testimony, is where a man belongs to a religion the god of which ordains perjury (h); and the fanatic whose creed allows mendacity in private and false swearing in public (i) is more dan
(g) 5 Benth. Jud. Ev. 125, 126. See also Introd. § 16 et seq., and § 54.
(h) See Benth. Jud. Ev. book 9, Part 3, chap. 5, sect. 2.
(i) "Of all the religious codes known," says Bentham," the Hindoo is the only one by which, in the very text of it, if correctly reported, a licence is in any instance expressly given to false testimony, delivered on a judicial occasion, or for a judicial purpose. Cases, some extra-judicial, some judicial, and upon the whole in considerable variety and to no inconsiderable extent, are specified, in which falsehood, false witness, false testimony, are expressly declared to be allowable. 1o. False testimony of an exculpative tendency, in behalf of a person accused of any offence punishable with death. Three cases, however, are excepted: viz. 1. Where the offence consists in the murder of a Bramin; or 2. (What comes to the same thing), a cow; or
3. In the drinking of wine, the offender being, in this latter case, of the Bramin caste."
The other cases stand word for word as follows. "If a marriage for any person may be obtained by false witness, such falsehood may be told; as upon the day of celebrating the marriage, if on that day the marriage is liable to be incomplete, for want of giving certain articles, at that time, if three or four falsehoods be asserted, it does not signify; or if, on the day of marriage, a man promises to give his daughter many ornaments, and is not able to give them, such falsehoods as these, if told to promote a marriage, are allowable. If a man, by the impulse of lust, tells lies to a woman, or if his own life would otherwise be lost, or all the goods of his house spoiled, or if it is for the benefit of a Bramin, in such affairs, falsehood is allowable." Benth. Jud. Ev. vol. i. pp. 235, 236; and vol. v. p. 134. We have verified his re
gerous in the witness-box than any form of infidel that could present himself. Even atheism, as justly remarked by Lord Bacon (k), “leaves a man to sense, to philosophy, to natural piety, to laws, to reputation: all which may be guides to an outward moral virtue, though religion were not; but superstition dismounts all these, and erecteth an absolute monarchy in the minds of men." Experience has ever shewn that while an enlightened sense of religion, and faith in the attributes and government of God, raise the standard of truth and establish a love of it in the human mind, superstition and irreligion alike lower the one and extinguish the other. And, whatever might have been formerly urged in favour of the exclusion in question, it seems inconsistent to retain it at the present day; since the 6 & 7 Vict. c. 22, has allowed the unsworn testimony to be received of the members of certain barbarous and uncivilized races in the British colonies, who are described in that statute (whether truly or not is immaterial to our present purpose) as "destitute of the knowledge of God and of any religious belief."
ference for these extraordinary statements. The above passages will be found in the translation of Pootee, ch. 3, sect. 9, in Halhed's Code of Gentoo Laws. The lower order of Irish, although timorous of taking even true oaths in general, commonly consider perjury to save a criminal from capital punishment either as no crime at all, or at most a peccadillo. To these instances may be added the principle laid down by Mascardus relative to confessions to clergymen, who, not satisfied with contending that
such confessions ought to be inviolable, goes on to say that if the priest be examined as a witness to prove what was stated to him in confession, " potest dicere se nihil scire, ex eo quod illud quod scit, scit ut Deus; et ut Deus non producitur in testem, sed ut homo, et tanquam homo ignorat illud super quo producitur:" Mascardus, de Prob. Quæst. 5, NN. 50, 51; 1 Greenl. Evid. § 247, 4th Ed.
(k) Bacon's Essay on Superstition.