CHAPTER III.

ОАТН.

§ 45. The oath must be judicial: that is, administered in a Judicial proceeding, and by one having authority to administer it: otherwise an indictment for perjury could not be maintained. Thus when a man came before a Cantonment Police Officer with a statement that the Native Revenue authorities had defrauded the Government of a lakh of Rupees, and the Magistrate, instead of referring or reporting the case to the District Revenue authority, took an affidavit of the facts from the deponent, the affidavit was a mere voluntary affidavit.

§ 46. Formerly, the party taking the oath must have had a belief in the existence of a God, and in a future state of rewards and punishments. See Madan v. Catanach 7, Jur. n. s., p. 1107.

§ 47. This operated to exclude idiots and lunatics, who cannot understand; children so young or persons so uneducated, that they do not understand the nature of an oath and Atheists who do not. believe in the existence of a God.(g)

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§ 48. An idiot is a person born without rationality. A lunatic is one originally born with rationality, but subsequently becoming insane. Such a one is capable of being sworn and deposing during a proved lucid interval.

§ 49. In the case of children, and I apprehend adults, incapable through defective education, of understanding the nature of an oath or affirmation, the practice is to put off the trial until the party has had the necessary instruction imparted to him. The leading authority on this point is Brazier's case,() which lays down the law as above.

(7) It may well be questioned whether Atheism is not rather an objection to the credibility than the reception of evidence. It is but the absence of one out of four guarantees for truth, and it may be that the other three may prove sufficiently strong safeguards for veracity, notwithstanding this be wanting. Whether this is so, in each particular case might be left to the Judgo to decide; and accordingly we find the Legislature (Act II. of 1855, Sec. XV.) declaring that "want of religious belief" shall not exclude a witness. See Mills on Liberty, p. 55-6.

(i) Leach's Crown Cases, Case 98, where it was held "that no testimony whatever can be legally received except upon oath; and that an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infaut appears, on strict

By Act II. of 1855, Sec. XV., such parties and also persons who are defective in religious belief may be admitted to testify on simple affirmation to speak the truth; but still if the age or defect of education were such as to show that the party tendered did not understand the difference between truth and falsehood, a trial might be put off.

§ 50. It is the office of the Judge to ascertain by personal examination, if possible previous to the tender of the oath, the mental qualification of the witness: and it may be useful to cite the language of Patterson, J.(^) as to the nature of the understanding requisite to satisfy a Judge: He says, "I must be satisfied that this child feels the binding obligation of an oath from the general course of her religious education. The effect of the oath upon the conscience of the child should arise from religious feelings of a permanent nature, and not merely from instruction confined to the nature of an oath recently communicated to her for the purposes of this trial; and as it appears that previous to the happening of the circumstances to which this witness comes to speak, she had had no religious education whatever, and had never heard of a future state and now has no real understanding on the subject, I think that I must reject her testimony.' may be proper to add that the examination by the Court should be of a general nature; as to the child's belief in the existence of a God, of a future state of reward and punishment, of the consequences of telling a lie in the eye of God, of the obligation imposed by an oath to tell the truth: it should never enter upon doctrinal or disputed points.

It

§ 51. There is a proverb that fools and children speak the truth, and I cannot close these remarks without observing that Hindoo children of very tender years are remarkably intelligent and veracious witnesses, and perhaps on the whole the most satisfactory class of native witnesses ordinarily presented to our Courts of Justice.

examination by the Court, to possess a sufficient knowledge of the nature and conse quence of an oath, for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if they are found incompetent to take an oath, their testimony cannot be received. The Judges determined, therefore, that the evidence of the information which the infant had given to her mother and the other witness, ought not to have been received. The prisoner received a pardon." And sec Starkie, p. 117, note n and the cases there cited; also the whole Law traced by Best Pr: of Evid., § 147-152,

(m) R. v. Williams, 7 C, and P. 320.

§ 52. During the darkness of barbarous times oaths were multiplied and accumulated. The most trifling occasion called forth an oath. The policy of modern days, recognizing the maxim that "familiarity breeds contempt," has been to abolish oaths on all but the most solemn occasions: and the practice substituting a solemn affirmation for an oath even in judicial investigations has largely obtained. (1.)

(1) A late trial of the Swiss Doctor (Demme) for poisoning his patient Trumpy, has made known a judicial usage which most people were ignorant of. It appears that the oath is not administered to witnesses until after they have given their evidence, and eveņ then only on very important occasions. One of the principal witnesses is an old woman named Annie Murner, who had lived as a servant in the family of the deceased for 37 years. Her evidence appeared to the Court to be of such moment that the President asked whether she had any objection to swear to it. She had none; and the President advised her to retire a few minutes for further reflection. She declined to do so, and said that, as she had told nothing but the truth, she was ready to take the oath. The President thereupon called upon the officer of the Court to read the solemn warning which the law prescribes of a preliminary to the swearing. The audience all stood up, and the officer read the following:

"The oath which by order of the authorities you are to take, with your hand uplifted in testimony of your sincerity, is a solemn act by which you declare you speak the truth, invoking God, who knows all things, who is a judge all-powerful and just, and who will punish you in this world and in the next if you swear falsely and commit perjury. The words which you are about to repeat signify that you renounce for ever and deliberately the clemency, the help, and the blessing of God, and that you do not expect from Him anything but disgrace and malediction, if you swear falsely; and that you mean to take the present oath with open heart, and without mental reservation or fraud. Consider, then, that God, whom you invoke in testimony of the truth, possesses infinite wisdom; that He knows the innermost folds of your heart, and that neither cunning nor hypocrisy can deceive Him, that it is God who loves truth and will protect you, but who holds falsehood in horror; the just and holy God who does not permit His grandeur to be insulted, and who will punish the sin of perjury with temporal and eternal pain, the only and powerful God, whom you are to fear in humility, and before whose Majesty you should tremble; the God of mercy, who will reward your sincerity, but who will give you no part in His grace if you swear falsely. Reflect how horrible is the sin of perjury; by perjury you mock at the omniscience of God, invoke His justice for the sake of revenge, call His eternal truth to witness your falsehood, outrage. His omnipotence, renounce your hope in His mercy, abjure knowingly and wickedly His holy religion, and use it as a veil to cover duplicity and injustice, sin against the conviction and the lights of your conscience, despise Heaven and Hell, and deliver yourself up for ever and ever and with deliberation to the Divine wrath. Reflect how great and terrible are the penalties for false swearing. With respect to temporal life, they consist in the loss of your honer and your fair repute, the abomination of all honest people, the privation of the Divine blessing in all your undertakings, the malediction of God on your worldly goods, your house, your belongings, and your children. With regard to spirituals, they are a hardened, unquiet, and desparing conscience, which, night and day, will inspire you with fear and terror, fearful agony, judgment, condemnation, and the pain of eternal suffering. Wherefore, once more reflect well on what you are about to do, you who are here to take the oath. The words which you are about to utter cannot be recalled, and the pain which will follow them, if your heart be not in accord with those words, is great and terrible, as it is certain and inevitable. Take care then and do not, either out of favor or hate, or with a view to worldly advantage, deviate in any way from the truth. Of what benefit to you are men or riches if eternal condemnation weighs upon you? Do not rely upon secret subterfuge, and on the external interpretation of your words, for God, from whom nothing is concealed, will not admit it; it will only aggravate your crime and consequently

§ 53. The following are the principal Legislative Enactments or this subject:

The Civil and Criminal Procedure Codes do not appear to incorporate the provisions previously existing relating to oaths and affirmations. We must therefore be guided by the several enactments which related thereto previous to the passing of such Codes.

Reg. III. of 1802, Sec. VII., (unrepealed by Act X. of 1861 and Act XVII. of 1862) regulates the administration of oaths in civil cases, and points out cases in which an oath may be dispensed with.

Reg. V. of 1802, Sec. XVII., (unrepealed) gives the same power to the Sudder Adawlut Court.

Reg. VII. of 1816, (unrepealed) Sec. IV., Clauses 9 to 12, regulates the power of District Punchayets as to oaths.

Act XXI. of 1837, (unrepealed except as to Sec. 4) provides for affirmations in matters not judicial.

Act V. of 1840, (unrepealed except as to Secs. 2 and 3) provides

for affirmations in all Courts other than the Supreme Courts. Act II. of 1855, Sec. XV., provides for the admission of evidence on simple affirmation in the cases of children, persons wanting, or defective in religious belief, if the Court thinks propér. Sec. XVI. makes the provisions of Sec. XV. applicable to written testimony.

The Indian Penal Code, Sec. 178, provides the punishment for parties refusing to be sworn.

Ch. XI. of the Indian Penal Code, Sec. 191-201 is devoted to the subject of false evidence. It would swell this volume too much to give the provisions.

§ 53a. Before leaving this subject it may be well to advert to the New York Civil Code: which provides that any person may take a

your punishment. But if your heart be sincere and pure, and your intentions be good and honest, proceed to this important act, invoking the Divine grace.'

The witness, nothing dismayed by these terrible warnings, took the oath, standing, and with three fingers of the right hand opened. It was as follows:

'I swear before God, who knows all things, that I have answered the questions which have been put to me without reticence or mental reservation, without hope of profit, and without fear of loss, with the entire truth, and according to my conscience. I swear it, as truly as I wish God (for Catholics the words and all the saints' are added) to help me in my last moments, without deceit or fraud.'

solemn affirmation at his own option. Sec. 1877. The remarks of the author of the Code are worth transcribing.

"An important change is made by this section in respect to the administration of oaths, inasmuch as it allows a witness, in any case, to make a declaration or affirmation, instead of taking an oath. By the present law, the oath must be administered, unless the witness declares that he has conscientious scruples against taking an oath. We would not require it, if the witness merely preferred the declaration or affirmation.

"That many good men doubt the lawfulness of oaths, and that more are shocked at their frequency, and the levity with which they are taken, are sufficient reasons for dispensing with them, wherever it can be done with safety. It appears to us safe to leave it optional with the witness, whether to take the oath or make the declaration, even though he have no scruple whatever about the lawfulness of an oath.

"A bad man will avoid the oath if he choose, by feigning a scruple he does not feel; a good man does not need it as a sanction for the truth of his declarations."

§ 53b. The opinion of Archbishop Tucker will be found worthy of perusal. He says:

"It must be owned great numbers will certainly speak truth without an oath, and too many will not speak it with one. But the generality of mankind are of a middle sort, neither so virtuous as to be safely trusted, in cases of importance, on their bare word, nor yet so abandoned as to violate a more solemn engagement. Accordingly we find by experience, that many will boldly say what they will by no means adventure to swear; and the difference which they make between these two things is often, indeed, much greater than they should; but still it shows the need of insisting on the strongest security. When once men are under that awful tie, and, as the Scripture phrase is, have bound their souls with a bond (Numb. xxx. 2,) it composes their passions, counterbalances their prejudiccs and interests, makes then mindful of what they promise and careful what they assert, puts them upon exactness in every circumstance; and circumstances are often very material things. Even the good might be too negligent, and the bad would frequently have no concern at all about their words, if it were not for the solemnity of this religious act. And a farther advantage of it is, that when we have thus had the strongest assurance given us which we can have concerning any matter, we are naturally disposed to acquiesce in it; and an oath for confirmation becomes the end of all strife. (Heb. vi. 16.)"

§ 53c. And we may add that an oath, such at least as is ordinarily administered in the Indian Courts, appears to afford very little