APPENDIX IX.

OATHS.

THE manner of taking oaths in ancient times and modern, the origin of the practice, its use, intent, and purpose, are the subjects of this appendix.

The definition of an oath, as given by Paley, is this—“it is the calling upon God to witness, i. e. to take notice of what we say, and invoking his vengeance, or renouncing his favour, if what we say be false, or what we promise be not performed."

The forms of oaths, like other religious ceremonies, have been various; but they have generally consisted of some bodily action, accompanied by a prescribed form of words. The bodily action has commonly been the touching of something sacred, with a view to confirm the sanctity of the appeal. I shall show how this ceremony came to be adopted, and in what its efficacy is supposed to consist. First let me observe that the common expression corporal oath is not derived from the bodily action which accompanies it, that (namely) of laying the hand on the bible; but, as Paley tells us, is borrowed from the ancient usage of touching the corporale, or cloth which covered the consecrated elements.

The primary idea in swearing is, that you call the Deity to witness the truth of what you say; and in so doing you invoke him to come near you, or to be present while you take the oath, as Abraham did, when lifting up his hand to heaven he swore an oath to the King of Sodom. The holding up of his hand was a pointing to the supposed residence of the Deity. Afterwards, when men came to use idols and symbols to represent the Deity, they used to touch these while in the act of swearing, and supposed that by so doing they made him present at the oath, just as Jupiter actually was present, when Vesta, touching his head, (in Homer's hymn,) takes the oath which the poet's lines express:

Touching the head of Ægis-bearing Jove

A mighty oath she swore, and hath fulfilled,
That she among the Goddesses of heaven
Would still a virgin be.

The heathen nations generally touched the altar of the God by whom they swore, and the sanctity of the oath depended much on the particular God who was appealed to. For each nation had a favourite deity, as the Carthaginians, Juno; the Ephesians, Diana: the Tyrians, Hercules; and also favourite temples, rites, forms, and other appendages of religion. The ceremony is described in a passage in Plautus thus:

G. Tange aram hanc Veneris. L. Tango.
G. Per Venerem hanc jurandum est tibi.

Thucydides tells us, that at the peace of Nicias it was stipulated that each of the belligerent powers should swear the most solemn oath according to the custom of their country. In Virgil's twelfth Eneid, where king Latinus swears to the treaty made with the Trojans before the single combat of Eneas and Turnus, he stands by the altar and performs this ceremony; as the reader will see by Dryden's translation, which I quote:

I touch the sacred altars, touch the flames,

And all these powers attest, and all their names;
Whatever chance befal on either side,

No term of time this union shall divide;
No force nor fortune shall my vows unbind,

Or shake the stedfast tenor of my mind.

The touching of the altar was often accompanied with other rites, as libation, burning of incense, or sacrifice.

The immolation of fullgrown victims gave peculiar sanctity to the oath of a Greek.2 A military oath is described by Eschylus in the play of the Seven Chiefs:

Over the hollow of a brazen shield

A bull they slew, and touching with their hands
The sacrificial stream, they called aloud

On Mars, Enyo, and bloodthirsty Fear,
And swore an oath, or in the dust to lay

These walls, and give our people to the sword,
Or perishing to steep the land in blood.

We read of Scythians and other barbarous people cutting their fingers, pouring the blood into a cup, and tasting it, to cement a compact of friendship or alliance. The Saxons and other German tribes swore by their arms, and punished the false swearer by cutting off the hand that bore them.

The fire ordeal of the middle ages had its origin in a ceremony, of which mention is made at a very early period. Demosthenes in the action against Conon, (where there are some good observations on the subject of oaths,) speaks of those who walked through fire in order to sanctify their oaths. And in the Antigone of Sophocles the messenger, who brings tidings of the burial of Polynices, says:

Ready were we to grasp the burning steel,
To pass thro' fire, and by the Gods to swear,
The deed was none of ours, nor aught we knew
Of living man, by whom 'twas plann'd or done.

Compare Virgil, Eneid XI. 785.

An Athenian witness was sworn at an altar belonging to the deity who presided over the courts of justice; the hero Lycus, namely; or Apollo, according to Müller. The evidentiary oath, or wager of law, being attended with more important results, as I have elsewhere shown, the swearing of it was accompanied with greater solemnity. If the party swore by his children, he made them stand before him,

(1) ἐπιχώριον ὅρκον τὸν μέγιστον. Thucyd. ν. 47.
(2) Hence ομόσαι καθ ̓ ἱερῶν τελείων.

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and then, laying his hand upon their heads, pronounced a curse upon them if he swore falsely. If he had no children, he would imprecate destruction upon himself and his whole race, and add force to his words by touching the holy victims.

The oath by the children was the most solemn of all. A peculiar power was attributed to the parental curse. It was at once produc tive and prophetic of the evil which it prayed for. Polynices, in the play of Sophocles, ascribes his expulsion from Thebes to the Fury of his father; and, when his father has cursed him, Antigone asks, who will dare to follow him to the war after the prediction of Edipus? Nor has this notion been confined to ancient times. The curse of Lear upon Goneril seems to carry with it its own fulfilment.2 A singular rite occurs in the history of the patriarchs Abraham and Jacob. Abraham says to his servant (Genesis, c. XXIV.):

"Put, I pray thee, thy hand under my thigh; And I will make thee swear by the Lord, the God of Heaven and Earth, that thou shalt not take a wife unto my son of the daughters of the Canaanites, among whom I dwell;

'But thou shalt go unto my country, and to my kindred; and take a wife unto my son Isaac."

Jacob makes Joseph perform the same ceremony when he promises to carry him out of Egypt and bury him in the burying-place of his fathers. According to some commentators, this was equivalent to swearing by the Messiah, who was to spring from the loins of Abraham.

The Jews of a later age touched the book of the law, or their phylacteries, upon which extracts of the law were written. When Christians kiss the Bible, or lay their hands upon the cross or relics in taking an oath, or when Mahometans do the same upon the Koran, we recognise at once the source from which their practice has been derived. Some persons may be disposed to think that the custom smacks of idolatry; some may think, that, even if it does, it is one of an innocent kind. It is not my intention to pronounce any opinion upon such a question. My wish is simply to draw attention to the historical facts connected with the subject. It is curious indeed to observe how the rite which we have been noticing has found its way into some of the every-day practices of life. Thus, the hand has always been considered sacred to faith, and hence to grasp the hand of a person, to whom a promise was made, was to give a pledge of faith. This is kept up at the present day; and hence we say "to clench a bargain." In the same way the eye was sacred to Love;

(1) This is the exact meaning of ομνύναι κατὰ παίδων Οι καθ' ἱερῶν, and is the origin of the expression κατ' ἐξωλείας ομνύναι.

(2) This is one of the most affecting scenes in the whole of Shakspeare Sophocles fails to excite our sympathies in favour of Edipus, because the wrongs done him by his son are not brought before our eyes; they are narrated, not dramatized. The suppliant address of Polynices disarins our wrath, and makes the curs seem revolting.

and therefore the lover used to touch and swear by the eyes of his mistress, and she often by her own, as in Propertius:

Viles isti videantur ocelli,

Per quos sæpe mihi credita perfidia est.

It is specially worthy of notice, that God, that is, the true God, swears by Himself, because he can swear by none greater. See Hebrews, chap. VI.; Genesis chap. XXII.; and Milton's Paradise Lost, bk. V.

Your head I him appoint,

And by myself have sworn; to him shall bow
All knees in heaven, and shall confess him Lord.

It is in this spirit that Juliet, in the excess of her devotion to Romeo, exclaims:

Do not swear at all,

Or if thou wilt, swear by thy gracious self,
Which is the God of my idolatry,

And I'll believe thee.

The early Greeks attached the utmost sanctity to the obligation of an oath, and had a firm belief that an oath-breaker would be punished both in this world and the next. Pindar places those who kept their oaths in Elysium, while those who broke them were in torment. In the Frogs of Aristophanes, Bacchus asks Xanthias, when they are in the infernal region:

What lies beyond there?

X. Mire and darkness.
B. See you the parricides and oathbreakers
Of whom he told us?

However the Greeks may afterwards have degenerated, the opinion of the moralist respecting perjury continued to be the same; as we may see indeed from the orators, who, while they are constantly accusing their adversaries of false swearing, always speak of the offence as one of a most odious character.

It has often been observed, that the frequency of oaths, and the habit of administering them on light and trivial occasions, tend to weaken their effect, and to diminish their sacredness in the minds of the people. Frivolous swearing amounts to that taking of God's name in vain, which is so solemnly forbidden. Paley recommended long ago, that declarations, attended with penal consequences in case of falsehood, might in many cases be substituted for oaths with advantage. And this recommendation has been to a considerable extent adopted. There are some who would go further, and abolish oaths altogether, at least all official and judicial oaths. Such was the advice of that acute but eccentric man, the late Jeremy Bentham; who, writing on the subject of oaths, pronounces them to be useless, and worse than useless. Without pronouncing any opinion of my own, I shall give my readers an opportunity of judging of his argu

ments :

"The supposition of an oath's efficiency is absurd in principle. It ascribes to man a power over his Maker. It places the Almighty in

the station of a sheriff's officer, under the command of every justice of the peace. It supposes him to stand engaged, no matter how, but absolutely engaged, to inflict on every individual by whom the cere mony has been profaned a punishment, which (but for the ceremony and the profanation) he would not have inflicted.

"Either the ceremony causes punishment to be inflicted by the Deity in cases where otherwise it would not have been inflicted, or it does not. In the former case, the same sort of authority is exercised by man over the Deity, as that which in English law is exercised over the judge by the legislature, or over the sheriff by the judge. In the latter case, the ceremony is a mere form, without any useful effect whatever.

"Under the ceremony of an oath are included two very different ties, the moral and the religious. The one is capable of being made more or less binding upon all men; the other upon such only as are of a particular way of thinking. The same formulary which undertakes to draw down upon a man the resentment of the Deity in case of contravention, does actually, in the same event, draw down upon him the resentment and contempt of mankind. The religious tie is that which stands forth, which makes all the show, which offers itself to view; but it is the other tie that does by far the greatest part of the business.

Applied to judicial testimony, if there be an appearance of its exercising a salutary influence, it is because this supposed power acts in conjunction with two real and efficient ones; the power of the political sanction, and the power of the moral or popular sanction. When, to preserve a man from mendacity, he has, in addition to the fear of supernatural punishment, the fear of fine, imprisonment, or pillory, on the one hand; the fear of infamy, the contempt and hatred of all that know him, on the other; it is no wonder that it should appear powerful. Strip it of these accompaniments, deprive it of these supports, its impotence appears immediately.

"In certain cases the tie of an oath is seen to have a powerful effect upon mankind. In what cases? Where the force of public opinion acts under its command; where it employs itself in insuring the veracity of witnesses in courts of justice. In other cases oaths are cobwebs, or (at best) hairs. In what? In all in which the force of public opinion runs counter, or withholds its aid; in the case of jurymen's oaths in a variety of instances; in the case of various other offices; in the case of university oaths, custom house oaths, and subscriptions.

"It was in the earliest stages of society, that this, together with so many other articles in the list of supernatural securities, or sub

(1) He alludes to such cases as these: where some of the jury give up their opinions to the rest, in order to agree upon a verdict, which must be unanimous; or where they acquit a guilty prisoner, in order to save him from a cruel punishment; or wherever they find a verdict manifestly contrary to law and to the evidence, in order to do what they consider substantial justice.