The Press FRIDAY, MARCH 5, 1897

Press, Volume LIV, Issue 9668, 5 March 1897, Page 4

The Press FRIDAY, MARCH 5, 1897

THE OATH IN COUBT.

That instinctive conservatism of the legal mind, which is in some respects such a valuable constitutional safeguard, has, it must be admitted, an impracticable and even ridiculous side to it. One of the most irritating instances of this is the pertinacity with which the Courts oling to the established method of administering the oath to a witness. The law shows every disposition to be tolerant of religious or irreligious prejudices on the subject; it allows a witness to substitute an affirmation, or if he be a Chinaman to blow out a match. In England he may even, if be choose, elect the Scotch method of taking the oath. But the majority of witnesses if they know of these special privileges do not care to take advantage of them; they still take the ordinary oath, and that the law insists shall be by " kissing the Book." This custom is not only disgusting on sanitary grounds, but often degenerates into a sorry travesty of the solemnity that should attach to the act if it is to have any value as a deterrent against bearing false witness.

The Chief Surgeon of the Liverpool police has been collecting information from foreign legal authorities as to the form of oath used in other countries. In France and Belgium no book is used. The Judge say 3 to the witness, " You swear to tell the truth, the whole truth, and nothing but the truth," and the witness, lifting np his right hand, says, " I swear it." In Austria, a Christian witness, whether | Catholic or Protestant, standing before i a crucifix, holds up his right hand and | says, " I swear by God the Almighty jand All. Wise that I will spaak the [pure and full truth and nothing but ithe truth." In Spain the witness, I kneeling on one knee, with his hand

on an open book of the Gospel, says, in answer to the Judge's question, "Yes, I swear." In Italy the Bible is used in the same way but without any invocation of the Deity, and the witness speaks the whole oath himself. Any of these methods, it will be seen, is superior in several respects to the English form. The solemnity of the act is better insured. It is the presiding Judge, clothed in the majesty of law and the dignity of his high office, who administers the oath; in England it is offcenesfc a Court menial, an usher, whose personality too often inspires in the witness anything but awe and respect. He gabbles, the words of the oath in a half-audible, wholly slipshod manner, and the witness says absolutely nothing. He need nofc even listen, for he has not to reply; he has but to wait till the usher has finished his rigmarole, and then kiss the book in any half-hearted nonchalant manner he pleases. In tho Continental methods he has either to utter the solemn words " I swear," or in some cases to recite himself the whole oath; and the gesture of raising the arm heavenwards implies at least a momentary dignity, while the act of kissing the book, in the inferior Courts at any rate, frequently results in buffoonery. There are cold-tubbing Englishmen who still profess to regard some of these Continental peoples as " dirty foreigners." But the sense of cleanliness of these same foreigners is at least strong enough to save them from the indecent necessity of putting their lips to a greasy, evilsmelling book such as the Court Bible frequently becomes. And it is unfortunately a fact, well attested by medical authority, that diseases sometimes unspeakably loathsome are disseminated by this means. Many mothers will not even allow their babies to be kissed from fear of the possible insanitary consequences of "promiscuous osculation." Yet we suffer this infinitely more dangerous custom to continue a public scandal.

The same slovenly indecorum which attaches to the ordinary method of administering the oath to a witness in Court characterises the mode of swearing affidavits before Commissioners or Justices. An automatic machine— drop a penny in the slot and it registers the oath—would ensure about as much solemnity, and at least be free from objection on sanitary grounds. There are many who feel these objections to judicial oaths so strongly that they would have us " swear not at all." An affirmation might bs made quite as solemn and impressive as the oath; the honest witness, they say, will speak the truth, oath or no oath; the dishonest will lie, though he swear never so deeply, and is deterred from perjury only by fear of the consequent prosecution. We do not concur In this view; if the judicial oath were made a serious and impressive ceremony it is capable of having a powerful deterrent effect; it is even conceivable it might have more influence over a certain class of minds by inspiring intangible fears of supernatural consequences than the penalties of the law have with their tangible threats of the prison house. We are all impressed by forms in greater or less degree, and the long history of |tbe judicial oath, its almost universal use by people of every nationality and creed, and degree of civilisation, points to an instinctive sense of its value, which is probably like most universal instincts nofc far from the truth. The reform needed is not the abolition of the oath, but the adoption of some simple, impressive ceremony to be the outward symbol of the gravity of the duty of rendering true testimony. At present the judicial oath has been turned into a scarcely intelligible and almost indecent mixture of sound and gesture ; any change would be an improvement; and ifc should not 'be'-difficult to devise a more effective security against false testimony without doing too great violence to the law's tenacity of long-estab-lished custom.