Page images
PDF
EPUB

lating criminal

and by the custom of the service.

Under the provisions' of Mr. Wynne's act for By an act reguthe better administration of criminal justice in Justice in India, India, the supreme court in that country is enabled to dispense with the usual form of oath in the case of the high caste brahmins and other natives, who hold it forbidden by their religion; and there would seem no doubt but that courts martial may legally adopt the same rule. Not only does the established practice of courts martial (no proof, it may be urged, that it is good in law) countenance this position, but it would seem to be borne out by the very statute in question, as it expressly repealed the provision of the 4 Geo. 4, c. 81, (the company's mutiny act then in force,) relating to the form of oath, and did not interfere with the corresponding provision in the annual mutiny act for king's troops. It is perhaps not too much to infer, that in drawing up this statute, all the bearings of this clause, with reference to the practice of courts martial, were taken into consideration, and that it may be assumed with confidence, that courts martial held in accordance with the mutiny act, for the trial of an officer or soldier No doubt of the belonging to her majesty's army, have as good practice. warrant for admitting a solemn declaration from a native witness in India, as they have for receiving the affirmation of a quaker in England, although an oath is required by the mutiny act, without any expressed exception for either case.

legality of the

The forms of oath for the president and mem- The form of

(1) 9 Geo. 4, c. 74, s. 37.

(2) Letter of sir Charles Grey, chief justice at Bengal.-Tyler, p. 116.

(3) 9 Geo. 4, c. 74, s. 126.

oath prescribed,

for court,

for witnesses,

bers of courts martial, and for the officiating judge advocate, are not only prescribed by the mutiny act' and articles of war, but also the order in which they shall be administered. The ninety-first article of war directs that all persons who give evidence before any court martial are to be examined upon oath, in the following words: "The evidence which you shall give before this court shall be the truth, the whole truth, and nothing but the truth. So help you God." This form is therefore, without deviation, to be observed in the examination of military witnesses, with reference to whom the article is imperative; but with respect to permay be deviated sons who may be summoned to give testimony, other form more and who may not be controllable by the articles of war, the form must be varied to meet their view of what may be more proper.

from, when

binding.

(1) SCHEDULE-MUTINY ACT.-" Form of Oaths to be taken by Members of Courts Martial.

"You shall well and truly try and determine according to the evidence in the matter now before you. So help you God."

"I, A. B., do swear, that I will duly administer justice, according to the rules and articles for the better government of her majesty's forces, and according to an act now in force for the punishment of mutiny and desertion, and other crimes therein mentioned, without partiality, favour, or affection, and if any doubt shall arise which is not explained by the said articles or act, according to my conscience, the best of my understanding, and the custom of war in the like cases: And I further swear, that I will not divulge the sentence of the court until it shall be duly approved ;-neither will I, upon any account, at any time whatsoever, disclose or discover the vote or opinion of any particular member of the court martial, unless required to give evidence thereof as a witness by a court of justice or a court martial in due course of law. So help me God."

"Form of Oath of Judge Advocate."

"I, A. B., do swear, that I will not, upon any account whatsoever, disclose or discover the vote or opinion of any particular member of the court martial, unless required to give evidence thereof as a witness by a court of justice or a court martial in a due course of law. So help me God."

(2) It is probable that the article of war under consideration, first introduced in the year 1835, was not intended to effect more than to ensure uniformity in the form adopted, when not at variance with the established religious principles of any sect to which a soldier may profess to belong.

accompanying an oath is not

It is obviously most conducive to truth to The ceremony swear all witnesses according to the particular prescribed, form which they may deem most solemn, and with whatever ceremonies from previous associations may be likely to create the greatest impression, and so promote the object of the law in requiring a religious sanction. On this principle the corporal' or bodily oath, (a term used, as contradistinguished from an oath taken by word of mouth only, unaccompanied by any external ceremony, and as opposed to a written instrument solemnly calling on God to witness to its not being in any truth,) not being the essence of the oath, is held to be mere matter of form. The words are prescribed for military witnesses, as before remarked, but the outward2 act is still left in all cases to custom. On ordinary occasions, the witness Form observed kisses the bible or the new testament, as con- occasions. taining the gospels: with a roman catholic, the Roman same ceremony is observed, except that the book is closed and a cross delineated on the cover. the oath be taken on the common prayer book which hath the epistles and gosples, it is good enough, and perjury upon the statute may be

case essential.

on ordinary

Catholics.

If Exceptions;

(1) An oath is called corporal, because the person lays his hand upon some part of the Scriptures, when he takes it. (3 Coke's Institutes, 165.) Dr. Paley objects that it is borrowed from the ancient usage of touching, as the bodily action accompanying the oath, the corporale, or cloth which covered the consecrated elements. (Paley's Philosophy, p. 121.) A recent author pronounces the archdeacon's interpretation to be "as unsound as it is ingenious ;" and, whilst that of sir Edward Coke is confined to the usage generally observed in England, he himself furnishes a definition which appears at once general and correcct. (See Tyler on Oaths, 1836, p. 309)

(2) The lifting up of the hand towards heaven, the ceremony observed in the courts of Scotland, France, Holland, Germany and Italy, by patriarchs of the Old Testament and heroes of profane antiquity; the casting the porcelain to the ground in China, kissing the crucifix, or, in Spain, the form of a cross, made by placing the middle of the thumb on the middle of the fore finger, are each of them as much a genuine form of corporal oath as kissing the book of the Evangelists in England.

Р

on the book of Common Prayer,

by lifting up the hand,

assigned upon this oath.' Doctor Owen,2 vice chancellor of Oxford, refused to be sworn in the usual manner by laying his right hand on the book and kissing it afterwards; but he caused the book to be held up before him and lifted up his right hand. The jury upon this prayed the opinion of the court, if they ought to consider this testimony as strong as that of any other witness, and Glin, chief justice, told them that, in his judgment, he had taken as strong an oath as any other witness.3 In 1745, on one of the state trials at Carlisle, a presbyterian witness was sworn in the same manner, and the twelve Mahometans, judges agreed that it was sufficient. Mahometans are sworn on or by the koran, sometimes kissing it, or placing it on their head. Jews are sworn on the pentateuch." Hindoos may be sworn by the vedas. On the occasion where the validity of a heathen's oath was first affirmed, the hindoo witnesses were sworn by touching a

Jews,

Hindoos.

(1) 2 Kebble, 314, contra by Windham of a psalm book only. In a late case, a witness professing Christianity objected to be sworn on the Evangelists, and was sworn on the Old Testament, on stating that he considered that to be binding on his conscience.-Ry and Mo. N. P. C. 77.

(2) Cited by the chief baron Parker. (1 Atkyns, 42.)

[blocks in formation]

(5) Where a Jew had assumed a false name and been sworn as a Christian on the New Testament, and a new trial was applied for on this ground, it was refused, as by taking the oath he clearly subjected himself to all the temporal obligations.

(6) The well-known Ram Mohun Roy was sworn in this manner to an answer in equity.

(7) The often-quoted case of Omychund v. Barker, Atkyns 21-51. "Certain of the witnesses, subjects of the great mogul, and professing the gentoo religion, had been sworn at Calcutta, a factory within that country," in 1742, (one hundred years ago,) according to the most solemn form of their religion, and after the prescribed words had been recited to them: the admission of their evidence was objected to, not only upon technical grounds, but also on the broad principle that it was improper for a Christian court to allow an oath sworn by false gods. After hearing the arguments of the leading men of that day, and taking very ample time for consideration, the lord chancellor (Hardwicke) overruled the objection.

brahmin's foot; in the present day, their oath is usually sanctioned at Calcutta, by the witness taking in his hand holy water from the Ganges1

very various.

and leaves of a sacred plant, the toolsee, or sweet Their oaths basil; but the form of hindoo oath varies in different parts of India, and according to the caste of the individual.

appear neces

It has been recom- It would not mended to collect some account of the forms of

oath most likely to be required by courts martial the most brief compilation of this sort would far exceed the limits of this work, and even if complete would be more curious than practical, as the proper form is in most cases easily ascertained in each country when required; however, it would be impossible to collect information which might be relied on in every case, and the attempt would most certainly fail, precisely where it might possibly have been useful. It should be the object of a court martial, in all cases, to adopt that form of oath which most forcibly imposes the obligation of speaking the

(1) In Dufresne's Glossary, it is mentioned that monks used to swear by touching the abbot's foot.

(2) On a general court martial at Fort Wiltshire, on the eastern frontier of the Cape, in 1835, it was necessary to obtain the evidence of several caffres, who were allowed to take the oaths they were in the habit of using in trials amongst themselves; for these it would not have been so easy to find precedents in law books, even if there had been a library to refer to, although the multiplicity of oaths volunteered by the same witness, and even many of the particular forms adopted, afforded an additional instance of the similarity of customs in different countries and in remote ages. Amongst other oaths equally classical, the common caffres uniformly swore by the subordinate chief of their tribe, and a petty chief, who was examined in addition to his immediate superior, swore by the king of England. It was remarked at the time as illustrating how readily the natives accommodated themselves to the new state of things consequent on the oath of allegiance to the british crown, which they had taken on the cessation of hostilities a few weeks previously; this state of things was not however of long continuance, as, before many months had elapsed, great pains were taken to explain their independence to the chiefs, and the very post where the court assembled was, with many others, given up to the native tribes, by orders from home.

sary to give any

more precedents.

The most solemn should be

form of oath

adopted,

« EelmineJätka »