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THE witness swears


Oath in Evidence.

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 shews, 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 afterward, 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."

I know but one exception to this rule; which is, when a full discovery of the truth tends to accuse the witness himself of some legal crime. The law of England constrains no man to become his own accuser; consequently imposes the oath of testimony with this tacit reservation. But the exception must be confined to legal crimes. A point of honour, of delicacy, or of reputation, may make a witness backward to disclose some circumstance with which he is acquainted; but will in nowise justify his concealment of the truth, unless it could be shewn, that the law which imposes the oath, intended to allow this indulgence to such motives. The exception of which we are speaking, is also withdrawn by a compact between the magistrate and the witness, when an accomplice is admitted to give evidence against the partners of his crime.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 wit ness for the law which imposes the oath, may remit what it will of the obligation: and it belongs to the court to declare what the mind of the 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 depends upon what he apprehended, at the

ime of taking the oath, to be the design of the law in imposing it, and no after-requisition or explanation by the court can carry the obligation beyond that.


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 form. So that the present oath is a relaxation of the old one. And as the oath was intended to 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 Jaeobite, who is persuaded of the Pretender's right to the crown, and who moreover designs to join with the adherents to that cause to assert this right, whenever a proper opportunity, with a reasonable prospect of success, presents itself, cannot take the oath of allegiance: or, if he could, the oath of abjuration follows, which contains an express renunciation of all opinions in favour of the claim of the exiled family.

2. The oath excludes all design, at the time, of attempting to depose the reigning prince, for any reason whatever. Let the justice of the Revolution be what it would, no honest man could have taken even the present oath of allegiance to James the Second, who entertained, at 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 ascendancy 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 were disappointed, and thought themselves neglected and ill-used at court: or because

they entertained a family animosity, or personal resentment, against the king, the favourite, or the minister;-if any were induced to take up arms by 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.

We are next to consider what the oath of allegiance permits, or does not require.

1. It permits resistance to the king, when his ill benaviour 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.

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 made continues king: continues, that is, to exercise the power, and afford the protection, which belongs to the office of king: for it is the possession of this power, which makes such a particular person the object of the oath ; without it, why should I swear allegiance to this man rather than to any man in the kingdom? Beside which, the contrary doctrine is burdened with this consequence, that every conquest, revolution of government, or disaster which befals the person of the prince, must be followed by perpetual and irremediable anarchy.


Oath against Bribery in the Election of Members of Parliament.

"I DO swear, I have not received, or had, by myself, or any person whatsoever in trust for me, or for my use and benefit, directly or indirectly, any sum or sums of money, office, place, or employment, gift, or reward, or any promise or security, for any money, office, employment, or gift, in order to give my vote at this election."

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 kind; if they escape the legal penalties of perjury, 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.


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.


For this purpose, the law imposes upon the presentee, who is rally concerned in the simony, if there be any, the following oath: "I do swear, that I have made no simoniacal payment, contract, or promise, directly or indirectly, by myself, or by any other to my knowledge, or with my consent, to any person or persons whatsoever, for or concerning the procuring and obtaining of this ecclesiastical place, &c.; nor will at any time hereafter, perform, or satisfy, any such kind of payment, contract, or promise, made by any other 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 alone must pronounce what promises, as well as what payments and contracts, are simoniacal, and consequently come within the oath; and what do not so.

Now the law adjudges to be simony,

1. All payments, contracts, or promises, made by any person, for a benefice already vacant. 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.

2. A clergyman's purchasing of the next turn of a benefice for himself, "directly or indirectly," that is, by himself, or by another person with his money. It does not appear that the law prohibits a clergyman from purchasing the perpetuity of a patronage, more than any other person: but purchasing the perpetuity, and forthwith selling it again with a reservation of the next turn, and with no other design than to possess himself of the next turn, is in fraudem legis, and inconsistent with the oath.

3. The procuring of a piece of preferment, by ceding to the patron any rights, or probable rights, belonging to it. This is simony of the worst kind; for it is not only buying preferment, but robbing the succession to pay for it.

4. Promises to the patron of a portion of the profit, of a remission of tithes and dues, or other advantage out of the produce of the benefice: which kind of compact is a pernicious condescension in the clergy, independent of the oath; for it tends to introduce a practice, which may very soon become general, of giving the revenue of churches to the lay patrons, and supplying the duty by indigent stipendiaries.

5. Generai bonds of resignation, that is, bonds to resign upon demand.

I doubt not but that the oath against simony is binding upon the consciences of those who take it, though I question much the expediency of requiring it. It is very fit to debar public patrons, such as the king, the lord-chancellor, bishops, ecclesiastical corporations, and the like, from this kind of traffic: because from them may be expected some regard to the qualifications of the persons whom they promote. But the oath lays a snare for the integrity of the clergy: and I do not perceive, that the requiring of it in cases of private patronage produces any good effect sufficient to compensate for this danger

Where advowsons are holden along with manors or other principal estates, it would be an easy regulation to forbid that they should ever hereafter be separated; and would, at least, keep church-preferment out of the hands of brokers.

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