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Not necessarily imprecatory.
different forms which are made use of in different countries, are no part of the oath, but are only ceremonies invented to add the greater solemnity to the taking of it, and to express the assent of the party to the oath when he does not repeat the oath itself: but the swearing in all of them, be the external form what it will, is calling God Almighty to be a witness."
§ 58. There is this important distinction among oaths; that many, besides invoking the attestation of a Superior Power, place in the mouth of the swearer a formula by which he imprecates divine vengeance on himself if his testimony be untrue. One of the forms in use among the ancient Romans is thus described: "Lapidem silicem tenebant juraturi per Jovem, hæc verba dicentes, 'Si sciens fallo, tum me Diespiter salvâ urbe arceque bonis ejiciat, ut ego hunc lapidem' (i);" and it seems that formerly an imprecation formed part of the judicial oath in France (j). Some eminent authorities in our own law have used language calculated to convey the notion that oaths are necessarily imprecatory. Thus in the Queen's case (k), Lord Chief Justice Abbot, when delivering the answer of the judges to a question put by the House of Lords, says, "Speaking for myself, not meaning, thereby, to pledge the other judges, though I believe their sentiments concur with my own, I conceive, that, if a witness says he considers the oath as binding upon his conscience, he does, in effect, affirm, that in taking that oath, he has called his God to witness that what he shall say will be the truth, and that he has imprecated the divine vengeance upon his head, if what he shall afterwards say is false." In Rex v. White (1), also, the
(i) Festus, de Verbor. Signif. lib. 10, voc. "Lapidem;" and the custom is alluded to by Cicero, Epist. ad Divers. lib. 7, epist. 1; and by Aulus Gellius, Noct. Attic. lib. 1, c. 21. See also 1 Greenl.
Ev. § 328, note (1), 4th Ed.
(k) 2 B. & B. 285.
court said, "An oath is a religious asseveration, by which
§ 59. The utility of oaths in any shape has been Abuses of. strongly questioned (n), but the chief arguments brought against them seem founded on their abuses. One of the Attributing to greatest of these is the investing oaths with a conclusive them a coneffect-where the law announces to a person whose life,
(m) De Jur. Nat. et Gent. lib. 4, c. 2, § 2. "Est autem jusjurandum assertio religiosa, quâ divinæ misericordiæ renunciamus, aut divinam pœnam in nos deposcimus, nisi verum dicamus. Hunc enim juramentorum sensum esse, facile indicant formulæ, quibus illa concipi solent; puta, Ita me Deus adjuvet, Deus sit testis, Deus sit vinder, aut his
æquipollentes; quæ eodem ferè
(n) 1 Benth. Jud. Ev. book 2,
liberty, or property is in jeopardy, that in order to save it he has only to swear to a certain indicated fact. This was precisely the case of the wager of law and system of canonical purgation anciently used in England (0). So in the civil law, either of the litigant parties might in many cases tender an oath, called the "decisory oath," to the other; who was bound under peril of losing his cause, either to take it, in which case he obtained judgment without further trouble, or refer it back to his adversary, who then refused at the like peril or took it with the like prospect of advantage. The judge also (be it remembered there was no jury) had a discretionary power of deciding doubtful cases by means of another oath, called the "suppletory oath," administered by him to either of the parties (p). With reference to these, one of the greatest foreign authorities, who to the learning of a jurist added the practical experience of a judge, expressed himself as follows (q): "I would advise the judges to be rather sparing in the use of these precautions, which occasion many perjuries. A man of integrity does not require the obligation of an oath to prevent his demanding what is not due to him, or disputing the payment of what he owes; and a dishonest man is not afraid of incurring the guilt of perjury. In the exercise of my profession for more than forty years, I have often seen the oath deferred;
(0) See 3 Blackst. Comm. 341; 4 Id. 368.
(p) See on the subject of these oaths, Dig. lib. 12, tit. 2, 1. 34; Domat, Lois Civiles, part. 1, liv. 3, tit. 6, sect. 6; 1 Ev. Poth. Oblig. part. 4, ch. 3, sect. 4; Bonnier, Traité des Preuves, §§ 294 -333; Calvin, Lexic. Jurid. Voc. "Juramentum," et "Jurisjur. Usus."
(9) 1 Ev. Poth. Obl. § 831. With the exception of those cases in which a defendant was allowed
to wager his law, the common law of England, as is well known, always rejected the decisory and suppletory oaths of the civilians. In France the decisory oath is not now allowed in criminal cases; Bonnier, Traité des Preuves, § 316, who says that its use in such cases may be considered as having completely disappeared among modern nations; and the suppletory oath is confined in France to civil cases. Id. § 323.
and I have not more than twice known a party restrained by the sanctity of the oath from persisting in what he had before asserted." Another great abuse of oaths is their frequency. Formerly a system of wholesale swear- Frequency of ing pervaded every part of the administration of this country-it was observed, "a pound of tea cannot travel regularly from the ship to the consumer without costing half a dozen oaths at the least (r);" and nothing was more common than for persons to go before magistrates and take voluntary oaths on the most trivial occasions. The latter are now prohibited altogether (s), and by several modern statutes a declaration has, in many proceedings of an extrajudicial nature, been substituted for an oath.
forms for pre
§ 60. Another security for the truth of evidence, and 3. Prescribed check on the action of fraud and perjury, consists in the appointed eviestablishment by law of prescribed forms to be observed dence. when preappointed evidence is resorted to. Of these Writing. the principal and most universal is that derived from the use of writing. The superiority in permanence, and in many respects in trustworthiness, of written over verbal proofs must have been noticed from the earliest times" vox emissa volat; vox audita perit; litera scripta manet." The false relations of what never took place; and even in the case of real transactions the decayed memories, the imperfect recollections and wilful misrepresentations of witnesses, added to the certainty of the extinction, sooner or later, of the primary source of evidence by their death, all show the wisdom of providing some better, or at least more lasting, mode of proof for matters which are susceptible of it, and are in themselves of sufficient consequence to overbalance the trouble and expense of its attainment. "La force des
(r) Paley's Moral and Political Philosophy, book 3, part 1, ch. 16. (s) 5 & 6 Will. IV. c. 8, s. 12.
preuves par écrit," says Domat (t), " consiste en ce que les hommes sont convenus de conserver par l'écriture le souvenir des choses qui se sont passées, et dont ils ont voulu faire subsister la mémoire, soit pour s'en faire des règles, ou pour y avoir une preuve perpétuelle de la vérité de ce qu'on écrit. Ainsi, on écrit les Conventions pour conserver la mémoire de ce qu'on s'est prescrit en contractant, et pour se faire une loi fixe et immuable de ce qui a été convenu. Ainsi, on écrit les Testamens, pour faire subsister le souvenir de ce qu'a ordonné celui qui avait le droit de disposer de ses biens, et en faire une règle à son héritier et à ses légataires. Ainsi, on écrit les Sentences, les Arrêts, les Edits, les Ordonnances, et tout ce qui doit tenir lieu de titre ou de loi. Ainsi, on écrit dans les Registres publics les Mariages, les Baptêmes, les actes qui doivent être insinués; et on fait d'autres semblables registres pour avoir un dépôt public et perpétuel de la vérité des actes qu'on y enregistre. * * * L'écrit conserve invariablement ce qu'on y confie, et il exprime l'intention des personnes par leur propre témoignage." In accordance with these principles, the policy of the common law of England requires that the proceedings of parliament and the higher courts of justice, and some other public matters of great weight and importance, shall be preserved in written records; and that many acts, even among private individuals, must only be done by deed or writing. To these large additions have been made in modern times, especially by the institution of public registers for marriages, births, deaths, &c., and by the celebrated statute 29 Car. II. c. 3, commonly called "The Statute of Frauds and Perjuries." Its principal provisions are the prohibiting of all parol leases for more than three years, &c.(u): that " no action shall be brought to charge any executor or admi
(1) Domat, Lois Civiles, part. 1, liv. 3, tit. 6, sect. 2. See
infra, Part 2, chap. 3, sect. 1. (u) Sect. 1 and 2.