which is called "the Speech of the Gods;" and it is allowable to give false evidence for the purpose of saving a life which would be forfeited to the rigour of the law. The "venial sin" of "benevolent falsehood" is to be expiated by oblations. END OF PART II. PART III. SECTION A. ORIGIN OF OATHS. HEINECCIUS. AFTER enumerating the various machinations, by which, instead of consulting each other's welfare, men were ever attempting to injure their fellow creatures in person, or property, or reputation, Heineccius proceeds, "In this state of affairs, it was essentially necessary to devise some means by which a rein might be put on the perfidy of men, to check its career; and with this view, almost all nations, as if by agreement, have betaken themselves to the religious obligation of an oath; in order that those whom reason itself, and the divine law imprinted on the minds of all would fail of influencing, might yet be deterred from deceit, by reverential awe of the Supreme Being, who fills the universe with his presence, and penetrates into the inmost recesses of the heart; who, moreover, has power to execute his own will in all things, and whose will it is, as his justice requires, to visit with eternal punishment every breach of good faith, and contempt of his name. Hence the Egyptians, as Diodorus Siculus testifies, called an oath, "The greatest pledge of faith among men," and Philo, “The most sure symbol of good faith." The Roman ambassadors, too, in Procopius, speak of it as "Of all, the last and firmest basis of mutual faith and truth." For no one can be persuaded, that any faith may safely be placed in him, whom not even reverence for the Deity, and certain danger of the Divine vengeance, could deter from falsehood. There is, consequently, no department of life, neither public nor private, neither in forensic nor domestic affairs, in which the use of oaths is not most frequent; but no where more frequent than in the courts of law and trials. For whenever the judge cannot be directed in his decision by the evidence of witnesses, or documents, or other lawful proofs, the litigant parties either at the requisition of their opponents, or by the direction of the judge, throw themselves on an oath*, as a kind of sacred , * It may not, perhaps, be altogether superfluous, to remind the English reader, that in the books of the foreign jurists, as well as of ancient Greek and Roman authors, the oaths spoken of are generally those by which the plaintiff or defendant in a suit, either at the desire of his antagonist, or by the direction of the judge, pledges himself to the justice of his cause, or confesses or denies some material point. To a person not aware of this circumstance, much of what appears in the law-books of other ages and countries must either be unintelligible, or is likely to mislead. In our common law courts such an oath has no place; and far be it from me to suggest an addition to the number of oaths already sanctioned in our halls of justice. Still, many of our best lawyers are of opinion that in civil causes an examination of the sheet anchor. It is thus, that St. Paul calls an oath, "The end of the whole dispute*." This use of oaths (as the most short and compendious method of settling a controversy), not only did the Jews, and Greeks, and Romans, and other nations somewhat advanced in civilization, adopt, but also the ancient Germans, who, as we are told†, were otherwise accustomed to settle their disputes not by law, but by arms. All these points, I think, prove that no means for terminating quarrels have appeared more certain and expeditious than an OATH; and for this reason, because men thought that no one would be so reckless of eternal blessedness, by a longing after which we are all influenced, as rather to provoke by solemn stated words the vengeance of God, the most strict Judge, upon himself, than speak the truth.” "Still, however, the reflections which Seneca‡ gravely makes on the other cautions usually adopted by men in forming contracts, namely, that it is a confession of fraud and wickedness, disgraceful to parties themselves in open court would, in a large majority of cases, forward materially the real substantial ends of justice. * Hebrews, vi. 16. This description of St. Paul does not apply to our courts of law: it is only applicable where the custom prevails (alluded to in the previous note) of the judge, or either of the parties, cutting short the controversy by the oath of the other party. Velleius Paterculus, lib. ii., c. 118. |