OATH
264
OATH
or want of belief, may uot merely be conceded, but the enteriiiiiiiug of such sentiments may be deemed the mis- fortune of one's life. But because one of the securities for truth may be wantiu":, it is difficult to perceive why, 1(11 others remaiuin;? in full force and vigor, the witness should not be heard ; and why after, not, as the common law docs, before such hearing, some judt;ment should not be formed l)y those who are to decide upon the matter in dispute of the truth or falsehood of his statements. He is rejected only because he is disbelieved. If he is to be be- lieved when the truth uttered would expose him to re- proach and ignominy, wliy not hear him under more fa- vorable circumstances when the rights of others may be involved, and then judge? Exclude him, and any out- rage may be committed upon him— his property may be robbed, his wife may be violated, his child may be mur- dered before his eyes— and the guilty go unpunished, if he be the only witness; not because he cannot and will not tell the truth, but because the law will not hear him. Practically, the law is that, provided a man's belief be erroneous, anybody whose belief is better— and it matters little what it be, Hindiiism or Fetichism— may inflict any and all conceivable injuries on his person and property, and the law will permit such a person to go unpunished, unless there happens to be a witness whose belief should comport with the judicial idea of competency. Let the ■witness testify under the pains and penalties of perjury, and the great argument for the wholesale e.xclusiou of testimony by the law is done away with. No intelligent judge orjurvman ever relied upon the security of an oath alone. Judge of the witness by his appearance, manner, answers, the probability of his statements, comparing them with the lights derivable from every source. Punish falsehood injuriously aflecting the rights of others in pro- portion to the wrong done, not with one uniform measure of punishment, as if the ofi'euce were in all cases the same. Tolerate not two kinds of truth, the greater and lesser, else both are lost. Elevate the standard of veracity by requiriuir it on all occasions, and in this way public mo- rality is increased, and the real securities upon which the Bocial fabric rests are strengthened."
It may be added in defence of those who approve of the practice of judicial swearing, that such look upon the oath as a reminder of the obligation to tell the truth only, a duty which they claim "man is too prone to forget." The object of all forms of adjuration, they teach, " should be to show that we are not calling the attention of man to God; that we are not calling upon him to punish the wrong-doer, but upon man to re- member that he will" (Tyler, p. 14). In this sense the oath should be defined as " an outward pledge given by the juror that his assertion or promise is made under an immediate sense of his responsibility to God." Those who approve of oaths teach that God will punish false swearing with more severity than a simple lie or breach of promise, and assign for tlieir belief the following rea- sons: •' 1. Perjury is a sin of greater deliberation. 2. It violates a superior confidence. 3. God directed the Is- raelites to swear by his name (Dent, vi, 13 ; x, 20), and was pleased 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 jjromise." See Pkrjuhy. Promissory oaths, it is generally agreed, are not binding where the prom- ise itself would not be so. See Pro.mises. As oaths are designed for the security of the imposer, it is mani- fest that they must be interpreted and performed in the sense in which the imposer intends them.
Refusals to take the oath have been frequent in mod- ern times, but mainly in English-speaking countries. Of I'rotestants, the Anabaptists were the first to teach that oaths should not be taken. The !Mennonites also held thus. Like them, the Quakers and the Moravians, applying literally the words of Christ (Matt, v, 34), re- gard all oaths as unlawful. But other communions gen- erally restrict this jirohibition to ordinary and private discourse, and find in Kom. i, 0 ; 2 Cor. xi, 21 ; (lal. i, 20 ; Phil, i, 8; and 1 Thess. ii, 5, full warrant for the law- fulness of oaths in judicial and other solemn use. From some passages of the fathers it appears that they had scruples as to the lawfulness of swearing (c<mip. Browne, Exposition of the XX XIX Artich-s, j). 840-«43); but those Christians who advocate the ceremony explain the writings of these fathers as for the most part refer- ring to the oaths required of Christians by the pagans,