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intelligence, and the like; but by no means in treaties, truces, signals of capitulation or surrender: and the difference is, that the former suppose hostilities to continue, the latter are calculated to terminate or suspend them. In the conduct of war, and whilst the war continues, there is no use, or rather no place, for confidence betwixt the contending parties; but in whatever relates to the termination of war, the most religious fidelity is expected, because without it wars could not cease, nor the victors be secure, but by the entire destruction of the vanquished.
Many people indulge, in senous discourse, a habit of fiction and exaggeration, in the accounts they give of themselves, of their acquaintance, or of the extraordinary things which they have seen or heard: and so long as the facts they relate are indifferent, and their narratives, though false, are inoffensive, it may seem a superstitious regard to truth to censure them merely for truth's sake.
In the first place, it is almost impossible to pronounce beforehand, with certainty, concerning any lie, that it is inoffensive. Volat irrevocable; and collects sometimes accretions in its flight, which entirely change its nature. It may owe possibly its mischief to the officiousness or misrepresentation of those who circulate it; but the mischief is, nevertheless, in some degree chargeable upon the original editor.
In the next place, this liberty in conversation defeats its own end. Aluch of the pleasure, and all the benefit, of conversation, depends upon our opinion of the speaker's veracity; for which this rule leaves no foundation. The faith indeed of a hearer must be extremely perplexed, who considers the speaker, or believes that the speaker considers himself, as under no obligation to adhere to truth, but according to the particular importance of what he relates.
But beside and above both these reasons, white lies always introduce others of a darker complexion. I have seldom known any one who deserted truth in trifles, that could be trusted in matters of importance. Nice distinctions are out of the question,
their power, by counterfeiting signals of distress; an artifice which ought to be reprobated by the common indignation of mankindt for, a few examples of captures effected by this stratagem, would put an end to that promptitude in affording assistance to ships in distress, which is the best virtue in a seafaring character, and by which the perils of navigation are diminished to all.—A. u. 1775.
upon occasions which, like those of speech, return every hour. The habit, therefore, of lying, when once formed, is easily extended, to serve the designs of malice or interest;—like all habits, it spreads indeed of itself.
Pious frauds, as they are improperly enough called, pretended inspirations, forged books, counterfeit miracles, are impositions of a more serious nature. It is possible they may sometimes, though seldom, have been set up and encouraged, with a design to do good; but the good they aim at, requires that the belief of them should be perpetual, which is hardly possible; and the detection of the fraud is sure to disparage the credit of all pretensions of the same nature. Christianity has suffered more injury from this cause than from all other causes put together.
As there may be falsehoods which are not lies, so there may be lies without literal or direct falsehood. An opening is always left for this species of prevarication, when the literal and grammatical signification of a sentence is different from the popular and customary meaning. It is the wilful deceit that makes the lie; and we wilfully deceive, when our expressions are not true in the sense in which we believe the hearer to apprehend them: besides that it is absurd to contend for any sense of words, in opposition to usage; for all senses of all words are founded upon usage, and upon nothing else.
Or a man may act a lie; as by pointing his finger in a wrong direction, when a traveller inquires of him his road; or when a tradesman shuts up his windows, to induce his creditors to believe that he is abroad: for, to all moral purposes, and therefore as to veracity, speech and action are the same; speech being only a mode of action.
Or, lastly, there may be lies of omission. A writer of English history, who, in his account of the reign of Charles the First, should wilfully suppress any evidence of that prince's despotic measures and designs, might be said to lie; for, by entitling his book a History of England, he engages to relate the whole truth of the history, or, at least all that he knows of it.
I. Forms of Oaths.
V. What Oaths do not bind. VI. In what Sense Oaths arc to be interpreted.
I. The forms of oaths, like other religious ceremonies, have in all ages been various; consisting however, for the most part, of some bodily action,* and of a prescribed form of words. Amongst the Jews, the juror held up his right hand towards heaven, which explains a passage in the 144th Psalm; " Whose mouth speaketh vanity, and their right hand is a right hand of falsehood." The same form is retained in Scotland still. Amongst the same Jews, an oath of fidelity was taken, by the servant's putting his hand under the thigh of his lord, as Eliezer did to Abraham, Gen. xxiv. 2.; from whence, with no great variation, is derived perhaps the form of doing homage at this day, by putting the hands between the knees, and within the hands, of the liege.
Amongst the Greeks and Romans, the form varied with the subject and occasion of the oath. In private contracts, the parties took hold of each other's hand, whilst they swore to the performance; or they touched the altar of the god by whose divinity they swore. Upon more solemn occasions, it was the custom to slay a victim; and the beast being struck down with certain ceremonies and invocations, gave birth to the expression refiveiv Odkov, ferire pactum; and to our English phrase, translated from these, of " striking a bargain."
The forms of oaths in Christian countries are also very different; but in no country in the world, I believe, worse contrived, either to convey the meaning, or impress the obligation of an oath, than in our own. The juror with us, after repeating the promise or
* It is commonly thought that oaths arc denominated corporal oaths from the bodily action which accompanies them, of laying the right hand upon a book containing the four Gospels. This opinion, however, appears to be a mistake; for the term is borrowed from the ancient usage of touching, on these occa. sions, the corporate, or cloth which covered the consecrated elements.
affirmation which the oath is intended to confirm, adds, " So help me God:" or more frequently the substance of the oath is repeated to the juror by the officer or magistrate who administers it, adding in the conclusion, "So help you God." The energy of the sentence resides in the particle so; so, that is, h&c lege, upon condition of my speaking the truth, or performing this promise, and not otherwise, may God help me. The juror, whilst he hears or repeats the words of the oath, holds his right hand upon a Bible, or other book containing the four Gospels. The conclusion of the oath sometimes runs, "Ita me Deus adjuvet, et haac sancta evangelia," or " So help me God, and the contents of this book;" which last clause forms a connection between the words and action of the juror, that before was wanting. The juror then kisses the book: the kiss, however, seems rather an act of reverence to the contents of the book (as, in the popish ritual, the priest kisses the Gospel before he reads it), than any part of the oath.
This obscure and elliptical form, together with the levity and frequency with which it is administered, has brought about a general inadvertency to the obligation of oaths; which, both in a religious and political view, is much to be lamented: and it merits public consideration, whether the requiring of oaths on so many frivolous occasions, especially in the Customs, and in the qualification for petty offices, has any other effect, than to make them cheap in the minds of the people. A pound of tea cannot travel regularly from the ship to the consumer, without costing half a dozen oaths at the least; and the same security for the due discharge of their office, namely, that of an oath, is required from a church-warden and an archbishop, from a petty constable and the chief justice of England. Let the law continue its own sanctions, if they be thought requisite; but let it spare the solemnity of an oath. And where, from the want of something better to depend upon, it is necessary to accept men's own word or own account, let it annex to prevarication penalties proportioned to the public mischief of the offence.
II. But whatever be the form of an oath, the signification is the same. It is " the calling upon God to witness, i. e. to take notice of, what we say," and it is " invoking his vengeance, cr lenouncing his favour, if what we say be false, or what we promise be not performed.
III. Quakers and Moravians refuse to swear upon any occasion; founding their scruples concerning the lawfulness of oaths upon our Saviour's prohibition, Matt. v. 34: "I say unto you, Swear not at all."
The answer which we give to this objection cannot be understood, without first stating the whole passage: " Ye have heard that it hath been said by them of old time, Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths. But I say unto you, Swear not at all; neither by heaven, for it is God's throne; nor by the earth, for it is his footstool; neither by Jerusalem, for it is the city of the great King. Neither shalt thou swear by thy head, because thou canst not make one hair white or black. But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these, cometh of evil."
To reconcile with this passage of Scripture the practice of swearing, or of taking oaths, when required by law, the following observations must be attended to:
1. It does not appear, that swearing " by heaven," " by the earth," "by Jerusalem," or " by their own head," was a form of swearing ever made use of amongst the Jews in judicial oaths: and consequently, it is not probable that they were judicial oaths which Christ had in his mind when he mentioned those instances.
2. As to the seeming universality of the prohibition, " Swear not at all," the emphatic clause "not at all" is to be read in connection with what follows; " not at all," i. e. neither "by the heaven," nor by " the earth," nor "by Jerusalem," nor "by thy head;" " not at all" does not mean upon no occasion, but by none of these forms. Our Saviours argument seems to suppose, 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 any thing related to him. This interpretation is greatly confirmed by a passage in the twenty-third chapter of the same Gospel, where a similar distinction, made by the Scribes and Pharisees, is replied to in the same manner.
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, "/ 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 unauthorized 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.*
3. God directed the Israelites to swear by his name ;t and was pleased, " in order to show 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 Chapter 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.
OATH IN EVIDENCE.
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 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
* 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.
t Deut. vi. 13. x. 20. t Heb. vi. 17.
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 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 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.
OATH OF ALLEGIANCE.
"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, m 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 own 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 ascendency 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 withholaen 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 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