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, or renouncing 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.

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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. "I 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 unauthorised 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.

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 às 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.

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 2. As to the seeming universality of the prohi-affect every right and interest on this side of the bition, "Swear not at all," the emphatic clause not at all" is to be read in connexion 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 Saviour's 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 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.

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

*Except, indeed, where a Quaker's or Moravian's affirmation is accepted in the place of an oath; in of the nature and guilt of perjury. which case, a lie partakes, so far as this reason extends, + Heb. vi. 17.

Deut. v. 13. x. 20.

OATH OF ALLEGIANCE.

security to him. And this is the meaning and remit what it will of the obligation: and it be-
reason of the rule, "jurare in animum imponen-longs to the court to declare what the mind of the
tis;" 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.

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, de-
pends 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 explana-
tion by the court can carry the obligation beyond

that.

CHAPTER XVII.

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 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.'

CHAPTER XVIII.

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 So that the present oath is a relaxation of And as the oath was intended to form. the old one. 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, in 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 crown and government, than the reigning sovereign. A jacobite, who is persuaded of the Pretender's right to the crown, and who I know but one exception to this rule; which moreover designs to join with the adherents to is, when a full discovery of the truth tends to that cause to assert this right, whenever a proper accuse the witness himself of some legal crime.-opportunity, with a reasonable prospect of sucThe law of England constrains no man to become cess, presents itself, cannot take the oath of alhis own accuser; consequently imposes the oath legiance; or, if he could, the oath of abjuration of testimony with this tacit reservation. But the follows, which contains an express renunciation exception must be confined to legal crimes. A of all opinions in favour of the claim of the exiled point of honour, of delicacy, or of reputation, may family. 2. The oath excludes all design, at the time, make a witness backward to disclose some circumLet the justice of the stance with which he is acquainted; but will in of attempting to depose the reigning prince, for no wise justify his concealment of the truth, unless any reason whatever. it could be shown, that the law which imposes the Revolution be what it would, no honest man oath, intended to allow this indulgence to such could have taken even the present oath of allemotives. The exception of which we are speak-giance to James the Second, who entertained, at ing, 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

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 withholden 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 forty-five, with the expectation of titles, estates, or preferment; or because they

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were disappointed, and thought themselves ne- for my use and benefit, directly or indirectly, any glected and ill-used at court; or because they sum or sums of money, office, place, or employentertained a family animosity, or personal resentment, gift or reward, or any promise or security, ment, against the king, the favourite, or the minis- for any money, office, employment, or gift, in orter;-if any were induced to take up arms by der to give my vote at this election." 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.

The several contrivances to evade this oath, such as the electors accepting money under colour of borrowing it, and giving a promissory note, or other security, for it, which is cancelled after the election; receiving money from a stranger, or a person in disguise, or out of a drawer, or purse, left open for the purpose; or promises of money to be paid after the election; or stipulating for a place, living, or other private advantage of any incur the moral guilt; for they are manifestly within the mischief and design of the statute which imposes the oath, and within the terms indeed of the oath itself; for the word "indirectly" is inserted on purpose to comprehend such cases as these.

We are next to consider what the oath of al-kind; if they escape the legal penalties of perjury, legiance 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.

CHAPTER XX.

Oath against Simony.

FROM an imaginary resemblance between the purchase of a benefice, and Simon Magus's attempt to purchase the gift of the Holy Ghost, (Acts viii. 19,) the obtaining of ecclesiastical preferment by pecuniary considerations has been termed Simony.

The sale of advowsons is inseparable from the allowance of private patronage; as patronage would otherwise devolve to the most indigent, and for that reason the most improper hands it could be placed in. Nor did the law ever intend to prohibit the passing of advowsons from one patron to another; but to restrain the patron, who possesses the right of presenting at the vacancy, from being influenced, in the choice of his presentee, by a bribe, or benefit to himself. It is the same distinction with that which obtains in a freeholder's vote for his representative in parliament. The right of voting, that is, the freehold to which the right pertains, may be bought and sold as freely as any other property; but the exercise of that right, the vote itself, may not be purchased, or influenced by money.

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 utmost, can only signify obedience to lawful commands. Therefore, if the king should issue a proclamation, levying money, or imposing any service or restraint upon the subject beyond what the crown is empowered by law to enjoin, there would exist no sort of obligation to obey such a proclamation, in consequence of having taken the oath of allegiance. 3. The oath does not require that we should continue our allegiance to the king, after he is actually and absolutely deposed, driven into exile, carried away captive, or otherwise rendered incapable of exercising the regal office, whether by his fault or without it. The promise of allegiance implies, and is understood by all parties to suppose, that the person to whom the promise is For this purpose, the law imposes upon the made, continues king; continues, that is, to ex-presentee, who is generally concerned in the siercise the power, and afford the protection which mony, if there be any, the following oath: "I do belongs to the office of king: for, it is the pos- swear, that I have made no simoniacal payment, session of this power, which makes such a par- contract, or promise, directly or indirectly, by myticular person the object of the oath; without it, self, or by any other to my knowledge, or with my why should I swear allegiance to this man, ra- consent, to any person or persons whatsoever, for ther than to any man in the kingdom? Beside or concerning the procuring and obtaining of this which, the contrary doctrine is burthened with ecclesiastical place, &c.; nor will, at any time herethis consequence, that every conquest, revolution after, perform, or satisfy, any such kind of payof government, or disaster which befals the per-ment, contract, or promise, made by any other son of the prince, must be followed by perpetual and irremediable anarchy.

CHAPTER XIX.

Oath against Bribery in the Election of Members of Parliament.

"I DO Swear, I have not received, or had, I myself, or any person whatsoever, in trust for me, or

without my knowledge or consent: so help me God, through Jesus Christ!"

It is extraordinary that Bishop Gibson should have thought this oath to be against all promises whatsoever, when the terms of the oath expressly restrain it to simoniacal promises; and the law what payments and contracts, are simoniacal, and alone must pronounce what promises, as well as consequently come within the oath; and what do not so.

Now the law adjudges to be simony,

1. All payments, contracts, or promises, made | and make that a reason for laying aside the obby any person for a benefice already vacant.servation of it. The advowson of a void turn, by law, cannot be transferred from one patron to another; therefore, if the void turn be procured by money, it must be by a pecuniary influence upon the then subsisting patron in the choice of his presentee, which is the very practice the law condemns.

the actual belief of each and every separate pro- | further than as they become the first occupiers position contained in them, must suppose, that the after him, and succeed to the same want and use. legislature expected the consent of ten thousand Moreover, as natural rights cannot, like rights men, and that in perpetual succession, not to one created by act of parliament, expire at the end of controverted proposition, but to many hundreds. a certain number of years; if the testator have a It is difficult to conceive how this could be ex- right, by the law of nature, to dispose of his pected by any, who observed the incurable diver-property one moment after his death, he has the sity of human opinion upon all subjects short of demonstration.

2. Anabaptists; who were at that time a pow-into Rome; and that not till after a considerable erful party on the Continent.

Whoever finds himself comprehended within these descriptions, ought not to subscribe. Nor can a subscriber to the Articles take advantage of any latitude which our rule may seem to allow, who is not first convinced that he is truly and No doubt, many beneficial purposes are atsubstantially satisfying the intention of the legis-tained by extending the owner's power over his lature.