Images de page

that the people to whom he spake, made a distinction between swearing directly by the 'name of God' and swearing by those inferior objects of veneration, 'the heavens,' 'the earth,' 'Jerusalem,' or 'their own head.' In opposition to which distinction, he tells them, that on account of the relation which these things bore to the Supreme Being, to swear by any of them was in effect and substance to swear by him; 'by heaven, for it is his throne; by the earth, for it is his footstool; by Jerusalem, for it is the city of the great King; by thy head, for it is his workmanship, not thine-thou canst not make one hair white or black;' for which reason he says: 'Swear not at all'—that is, neither directly by God, nor indirectly by anything related to him. This interpretation is greatly confirmed by a passage in the twentythird chapter of the same Gospel, where a similar distinction, made by the Scribes and Pharisees, is replied to in the same


3. Our Saviour himself being 'adjured by the living God,' to declare whether he was the Christ, the Son of God, or not, condescended to answer the high-priest, without making any objection to the oath (for such it was) upon which he examined him. 'God is my witness,' says St Paul to the Romans,' that without ceasing I make mention of you in my prayers:' and to the Corinthians still more strongly, 'I call God for a record upon my soul, that to spare you I came not as yet to Corinth.' Both these expressions contain the nature of oaths. The epistle to the Hebrews speaks of the custom of swearing judicially, without any mark of censure or disapprobation: 'Men verily swear by the greater and an oath for confirmation is to them an end of all strife.'

Upon the strength of these reasons, we explain our Saviour's words to relate, not to judicial oaths, but to the practice of vain, wanton, and unauthorised swearing in common discourse. St James's words, chap. v. 12, are not so strong as our Saviour's, and therefore admit the same explanation with more ease.

IV. Oaths are nugatory-that is, carry with them no proper force or obligation-unless we believe that God will punish false swearing with more severity than a simple lie or breach of promise; for which belief there are the following reasons:—

1. Perjury is a sin of greater deliberation. The juror has the thought of God and of religion upon his mind at the time; at least, there are very few who can shake them off entirely. He offends, therefore, if he do offend, with a high hand; in the face, that is, and in defiance of the sanctions of religion. His offence implies a disbelief or contempt of God's knowledge, power, and justice; which cannot be said of a lie where there is nothing to carry the

mind to any reflection upon the Deity, or the Divine Attributes at all.

2. Perjury violates a superior confidence. Mankind must trust to one another, and they have nothing better to trust to than one another's oath. Hence legal adjudications, which govern and affect every right and interest on this side of the grave, of necessity proceed and depend upon oaths. Perjury, therefore, in its general consequence, strikes at the security of reputation, property, and even of life itself. A lie cannot do the same mischief, because the same credit is not given to it.1


3. God directed the Israelites to swear by his name ;2 and was pleased, in order to shew the immutability of his own counsel,' to confirm his covenant with that people by an oath neither of which it is probable he would have done, had he not intended to represent oaths as having some meaning and effect beyond the obligation of a bare promise; which effect must be owing to the severer punishment with which he will vindicate the authority of oaths.

V. Promissory oaths are not binding where the promise itself would not be so; for the several cases of which, see the Section of Promises.

VI. As oaths are designed for the security of the imposer, it is manifest that they must be interpreted and performed in the sense in which the imposer intends them; otherwise, they afford no security to him. And this is the meaning and reason of the rule, jurare in animum imponentis;' which rule the reader is desired to carry along with him, whilst we proceed to consider certain particular oaths, which are either of greater importance, or more likely to fall in our way, than others.


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.

1 Except, indeed, where a Quaker's or Moravian's affirmation is accepted in the place of an oath; in which case, a lie partakes, so far as this reason extends, of the nature and guilt of perjury.

2 Deut. vi. 13; x. 20.

8 Heb. vi. 17.

For when the person to be examined is sworn upon a voir direthat 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 shews, 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 nowise justify his concealment of the truth, unless it could be shewn 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 magistrate and the witness, when an accomplice is admitted to give evidence against the partners of his crime.

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 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.


'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 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 II., 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 fortyfive 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 II., 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 unauthorised 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 for 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

« PrécédentContinuer »