exception. Our Saviour who surely would not be the first example of breaking his own laws, did not refuse to answer upon oath, being called thereto at his trial. The High-Priest said to him, 'I adjure thee by the living God,' that is, he required him to answer the question upon oath." The archbishop then proceeds in nearly the same words with Dr. Whitby, and thus concludes, "so that unless we will interpret our Saviour's doctrine contrary to his own practice, we cannot understand him to forbid all oaths, and consequently, they are not unlawful.” I had written this Section, without any expectation or hope of being able to offer more than conjecture, on what seemed to me the only link wanting to complete the entire chain of our argument, the conjecture which I have offered above, namely, the identity of the Hebrew word used in the Old Testament, to signify beyond all doubt, the administering of an oath,—with the word employed in after-ages in a Jewish Court of Justice, in the sense which we assign to St. Matthew's word, ¿§opkięw. I have since had the satisfaction of discovering this link. The very form of their oath is preserved; and the word of adjuration is precisely the same. The form is And Selden, in whose learned work* I first found this form of judicial oath quoted, asserts without expressing any doubt on the subject, that when Caiaphas addressed our blessed Lord in the words rendered by St. Matthew ¿§opki¿w, &c. he used the received forensic form of administering a judicial oath +. * Selden, ii. 11. I would by no means be understood to say, that there are no instances of the same Hebrew word being employed in the sense affixed by Schleusner to opiw, in the passage of St. Matthew which we are examining. But I have met with a great variety of instances in which the word is used to signify, beyond all doubt, the administration of an oath. Among others I would specify the following: “Si quis pater dixerit Stuprasti et decepisti filiam meam,' dixerit autem alter Nec stupravi, nec decepi;' tumque ille dixerit 'Adjuro te' [] et hic responderit Amen,' reus est."-See Leges Mischnicarum. Tract: de Juram: c. iv. 256 SECTION E. 'ANCIENT DIVISION OF OATHS*. I AM fully aware, that in many points, the ancient divisions of oaths, and their distinguishing characteristics, are inapplicable to the present practice in our courts of common law. Our trials in one point of view are conducted upon a principle at variance with the practice of ancient Greece and Rome, or of those countries in which the civil code was adopted. With us, the plaintiff and defendant must make out their case by documents and witnesses, without being allowed to give their own testimony. Much of the civil code is employed in providing rules for the various cases, in which the point at issue shall be settled by the oaths of the litigant parties themselves. The present inquiry, however, may be thought to require some brief reference to the distinction of oaths formerly adopted. In some of our courts, there seems to be still a very near approximation to the ancient practice, where the affidavits of the parties are admitted or required *We are told that the Latin word, "Juramentum," is not used by any good author before the fourth century; the passages in Seneca and Ulpianus, where it occurs, are deemed spurious. See Vocabularium Utriusque Juris. Naples, 1760. during the progress of the suit, or where debts are sworn to by the creditors. Indeed, whilst we cannot exactly apply any ancient division of oaths to our own courts, yet in some department or other of our jurisprudence we shall, perhaps, find an example of almost every kind of oath admitted, though some, doubtless, with great and reprehensible irregularity. Oaths have been usually divided into two classes -Promissory and Declaratory. Promissory oaths are intended to secure either the faithful performance of the duties of an office, or the full execution of some contract or undertaking. Declaratory or assertory oaths are used for the purpose of establishing the certainty of a present or past fact. These declaratory* oaths are generally distinguished under two heads,-judicial and extrajudicial. The Jews were careful to make this distinction, but with a very questionable anxiety, seeking only another cloak for falsehood. Judicial oaths are those which are sworn in the progress of a cause, and are either voluntary or necessary. Extrajudicial oaths are such as are sworn out of * The Greek and Roman writers adopted different divisions of oaths, and the Roman jurists differ also from each other. I have adopted that arrangement which seemed to recommend itself most by its simplicity and general prevalence. S court, for the settling of a dispute, and are binding only upon the conscience of the parties, the civil magistrate taking no cognizance of them. Voluntary judicial oaths* are those, by which either party in the suit decided the matter, by swearing to the justice of his claim at the desire of the other. Necessary oaths are such as the judge called upon either party to swear, for his own satisfaction, before he formed his judgment. Of promissory oaths we have, as most persons think, far too numerous a body adopted in England. All oaths of office are promissory oaths, and, as we have seen, the law of England will not suffer a breach of them to be prosecuted as perjury: whilst experience loudly and plainly tells us, that, in the generality of instances, they have very little influence on the conduct of the sworn party. As far as any more faithful discharge of the duties of an office may be supposed to be secured by them, it is much, I think, to be feared, that the reasoning of Augustus Cæsar, when he refused to allow the senate to swear, as they voluntarily offered to do, to observe all the laws which he should think it right to make, is too generally applicable, "Without the oath they will obey whatever laws they cordially decree, and a thousand oaths will not secure their obedience against their will‡.” * Some writers called extrajudicial oaths voluntary. |