« PreviousContinue »
maintain, they might say, the allowableness of administering an oath, but you do not hold it to be imperative : it is with you a question of expediency. You infer the utility of oaths from the circumstance, that some men who are not scrupulous about truth and falsehood, in cases of simple affirmation, have a scruple against violating an oath. But may it not be that the practice of administering oaths tends to make men the less scrupulous about veracity whenever they are not upon oath ? And may not the expressions of calling God to witness," invoking the divine judgment,' and the like, tend to foster in men's minds the notion,-grossly absurd as it is when distinctly stated,—that God is not a witness of our conduct unless we invite Him to be so, and that He will not punish false-witness except with our permission ? An oath, properly considered, is merely a declaration on our part that we are fully sensible of God's being a witness and a judge of all our actions. Would it not be better therefore to substitute for the oaths usually administered, a solemn affirmation, accompanied with a declaration to the above effect ;-either uttered by the Witness himself, or (in the form of an admonition) by the Judge ? This should be made, to all legal purposes, an oath ; with the penalties for perjury in case of falsehood.
Under such a regulation, all conscientious scruples would be satisfied; and I am convinced there would be rather a general improvement than the contrary, in respect of veracity.
OATH IN EVIDENCE.
M HE witness swears 'to speak the truth, the whole truth, and I 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 as 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 ques. tions 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 not. So that if it be inquired of the witness afterwards, why he did not inform the court so and so, it is not a sufficient, though a very common answer, to say, ' because it was never asked me.'
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 will in no wise justify his concealment of the truth, unless it could be shown, that the law which imposes the oath, intended to allow this indulgence to such motives. The exception of which we are speaking is also withdrawn by a compact between the magi. strate and the witness, when an accomplice is admitted to give evidence against the partners of his crimė.
Tenderness to the prisoner, although a specious apology for concealment, is 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, which affect the witness himself, or some third person ; in which, and in 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
ch to the wait of the obligat law is. Never
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 afterrequisition or explanation by the court can carry the obligation beyond that.
OATH OF ALLEGIANCE.
'T DO sincerely promise and swear, that I will be faithful and
I bear true allegiance to his Majesty King George.' Formerly the oath of allegiance ran thus: 'I do promise to be true and faithful 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 the person 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 to the crown and government, than the reigning sovereign. A Jacobite, who is persuaded of the Pretender's right to the crown, and who, moreover, designs to join with the adherents to that cause to assert this right, whenever a proper opportunity, with a reasonable prospect of success, presents itself, cannot take the oath of allegiance; or, if he could, the oath of abjuration follows, which contains an express renunciation of all opinions in favour of the claim of the exiled family.
2. The oath excludes all design, at the time, of attempting to depose the reigning prince, for any reason whatever. Let the justice of 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 which 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 might, by a conjuncture of fortunate circumstances, and a great ascendancy over the minds of the soldiery, 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 withholden from such an attempt by the oath of allegiance, if he paid 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 any 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, in the late American war, the same motives determined others to connect themselves with that 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 own complaints might be of private injury.
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 by the terms of the oath; the fidelity there promised, is intended of fidelity in opposition to his enemies, and not in opposition to law; and allegiance, at the utmost, can only signify obedience to lawful commands. 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, whether by his fault or without it. 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 belongs 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 man in the kingdom ? Beside which, the contrary doctrine is burthened with this consequence, that every conquest, revolution of government, or disaster which befalls the person of the prince, must be followed by perpetual and irremediable anarchy.
OATH AGAINST BRIBERY IN THE ELECTION OF MEMBERS OF
T. DO swear, I have not received, or had, by myself, or any
1 person whatsoever, in trust for me, or for my use and benefit, directly or indirectly, any sum or sums of money, office, place, or employment, gift, or reward, or any promise or security, for any money, office, employment, or gift, in order to give my vote at this election.'