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oath may be changed into a solemn affirmation and be made by him in that form.” The constitutions of Illinois (II., 3), of Nebraska (I., 16), and of Ohio (I., 7) provide that the liberty of conscience which they secure "shall not be construed to dispense with oaths or affirmations.” Such provisions, upon their face, leave it optional with the individual whether he shall be sworn or merely affirm; and either mode of attestation is the equivalent of the other.
So, also, as to the competency of persons to be sworn or to affirm as witnesses, the constitutions of Arkansas (I., 21), of California (I., 4), of Florida (Declaration of Rights, 5), of Indiana (I., 7), of Iowa (I., 4), of Kansas (Bill of Rights, 7), of Michigan (VI., 34), of Minnesota (I., 17), of Nebraska (I., 16), of Nevada (I., 4), of New York (I., 3), of Ohio (I., 7), of Oregon (I., 6), and of Wisconsin (I., 19) expressly declare that no person shall, in consequence of his opinions on matters of religion, be disqualified as a witness in any court of law or equity. These constitutions formally exclude any religious test in application to witnesses, whether they are to be sworn or simply affirm. Their religious opinions have nothing to do with their legal competency to testify in a court of justice.
Turning then, to the question of State legislation, we refer to the Revised Statutes of New York State (Part III., chapter 7, title 3, and article 9), as an example of such legislation. We quote the following sections :
“ “ Section 82. The usual mode of administering oaths now practised by the person who swears, laying his hand upon and kissing the Gospels, shall be observed in all cases in which an oath may be administered according to law, except in the cases hereinafter otherwise provided."
“Section 83. Every person who shall desire it shall be permitted to swear in the following form :
You do swear in the presence of the Ever-Living God.' And while so swearing, such person may or may not hold up his right hand, in his discretion.' “ Section 84.
ion 84. Every person who shall declare that he has conscientious scruples against taking any oath or swearing in any form shall be permitted to make his solemn declaration or affirmation in the following form: “You do solemnly, sincerely, and truly declare and affirm.'
“ Section 86. Every person believing in any other than the Christian religion shall be sworn according to the peculiar ceremonies of his religion, if there be any such ceremonies, instead of
of the modes herein before prescribed.”
These references are sufficient to give us, at least, a general idea of the oath as an institution of law. In regard to them we submit the following observations :
1. The civil oath is not absolutely required in any case, and is, hence, not made compulsory in respect to anybody. Though commonly used, because not commonly objected to, it may, never
theless, be dispensed with, and a simple affirmation, at the option of the individual, may be substituted as its equivalent. The law assumes its right to compel witnesses to testify, and to punish them if they give false testimony ; but it does not force them to be sworn against their conscientious scruples or undertake to judge of the character of those scruples. It is well known that Quakers have such scruples; and, hence, they are permitted to affirm, and their evidence is accepted as if it had been given under oath. And as the law deals with the Quaker, so it will with any citizen, if he desires it. Whether he shall be sworn or not is a matter for him to determine.
2. The civil affirmation is distinguished from an oath in containing no formal appeal to God and no imprecation of his curse in the event of falsehood. The affirmant solemnly, sincerely, and truly declares and affirms that he will speak the truth. He enters into such a covenant with society ; but in doing so he makes no disclosure of his religious faith or the want of such faith. His affirmation may to him, in the forum of conscience, have all the binding power of an oath, yet it is not such in form. What it is in form is a pledge of his moral natura to be truthful in respect to what he is about to say A Deist or even an Atheist may make such a pledge as really as a Christian.
3. The constitutions of the States above referred to, distinctly declare that the opinions of a witness on matters of religion shall not affect his qualification to be sworn or to affirm, and thereafter to testify in any court of law or equity. The constitution of Oregon, for example, says that “no person shall be rendered incompetent as a witness or juror in consequence of his opinions on matters of religion, nor be questioned in any court of justice touching his religious belief to affect the weight of his testimony.” So, also, that of New York says that “no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief.” An Atheist could not take an oath with any sincerity, and a Hindu could not take a Christian oath ; yet either of them could in either of these States affirm and give legal evidence, and neither could be excluded from testifying on the ground of his opinions in respect to religion. The same remark applies to most of the States in the Union.
4. Those persons who do not believe in the Christian religion, but do believe in some other religion, may be sworn, if sworn at all, according to their particular faith. The law does not compel them to take any oath ; and, if they do take one, it does not compel them to take a Christian oath. The form or kind of oath which corresponds with their religious faith is the one which the law will employ. Thus, as Bouvier remarks, “a Jew is sworn on the Pentateuch, or Old Testament, with his head covered ; a Mohammedan, on the Koran; a Gentoo, by touching with his hand the foot of a Brahmin or priest of his religion ; a Brahmin, by touching the hand of another such priest; a Chinaman, by breaking a china saucer.” The Bible, even when an oath is administered, is not an indispensable instrument of the administration, and the faith which it teaches is not an indispensable condition. In the case of The People vs. Cook (8 New York Reports, 4 Seld. p. 67), the Court of Appeals of the State of New York held that an oath irregularly administered by mistake, as by swearing one upon “Watts's Psalms and Hymns," instead of the Gospels, if not objected to at the time by the party taking it, is to be deemed a valid oath, rendering him liable for perjury if testifying falsely. He is presumed “to have assented to the particular form adopted," whatever it may be.
5. The fact that neither the oath itself nor the Christian form of taking it is made an absolute legal requirement conclusively shows that the State, in using the Christian oath, establishes no connection between itself and the religious system incidentally implied in the use. The whole purpose of the State is to increase the certainty that the person speaking will tell the truth. It uses his faith for civic ends, without passing any judgment upon it, and certainly without proposing first to give him a faith and then to swear him by it. The oath, in the very nature of things, if used at all, must accommodate itself to the faith of the person sworn, since here