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[64]: Justice [Jacob] Rush 1746-1820: The Nature and Importance of an Oath—the Charge to a Jury - Charles S. Hyneman, American Political Writing During the Founding Era: 1760-1805, vol. 2 [1983]

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American Political Writing During the Founding Era: 1760-1805, ed. Charles S. Hyneman and Donald Lutz (Indianapolis: Liberty Fund, 1983). 2 vols. Volume 2.

Part of: American Political Writing During the Founding Era: 1760-1805, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


[64]

Justice [Jacob] Rush 1746-1820

The Nature and Importance of an Oath—the Charge to a Jury

rutland, vermont, 1796

Jacob Rush chose to make law his profession rather than to follow in the steps of his elder brother Benjamin, who was destined to become America’s first physician to command eminence in the great hospitals of Europe. He also differed from his brother in displaying little disposition to figure in the great debate over grievances with England and the rules to be followed in constructing a republican form of government. His charge to a jury in Philadelphia that is printed here excited enough interest in other places to be printed in a magazine in Vermont, the Rural Magazine or Vermont Repository, in 1796. A careful reading of the text will show that Judge Rush took the opportunity to outline a little-understood aspect of American political theory. Many Americans believed that political obligation rested not on any signed contract but rather on the taking of an oath. Many colonies had required oaths before one could vote or become a citizen, and state constitutions often required oaths of a wide range of officials. We still require oaths of jurors, witnesses in court, military personnel, and naturalized citizens, not to mention the president of the United States, and this essay is a reminder that to a completely Christian people the problem of political obligation has a simple, theoretical solution. The text here is taken from the October issue of the Vermont magazine.

A Charge, delivered by Judge Rush, at Easton Court, on the 8th Sept. 1796, to the Grand Jury of the County of Northampton, in Pennsylvania.

Gentlemen of the Grand Jury.

As we are constantly employed in the administration of oaths, and every person is liable to be called upon to swear before some competent authority, it cannot be deemed improper, in this place, to address a few observations to you on the importance of an oath. This is the more requisite, from the danger that every idea, with respect to the solemnity of an oath, is likely to be obliterated from the mind, by the indecent manner in which they are daily uttered in familiar conversation, and the almost equally indecent manner in which they are frequently administered in the ordinary course of justice.

An oath, gentlemen, is a very serious transaction, and may be defined, a solemn appeal to God for the truth of the facts asserted by the witness, with an imprecation of the divine justice upon him, if the facts which he relates are false; or in the case of a promissory oath, if the party doth not fulfil his engagement.

We perceive from this definition, that oaths are of two kinds, assertory and promissory. The former included the testimony given by witnesses, and in general all matters of fact that are asserted or related upon oath. Promissory oaths are those taken by officers of government—all oaths of allegiance and protection, and likewise the oaths you have severally taken as grand jurymen.

The use of oaths, as a means of ascertaining the truth, it is impossible to trace to its origin. They have prevailed in different ages and countries, as far back as historical information can carry us, and are in fact as old as the creation. Abraham and Abimeleck ratified their covenant by the solemnity of mutual oaths, as did also Jacob and Laban—in which cases we observe, that Abraham and Jacob received the oaths of Abimeleck and Laban, though they swore by false gods, which are acknowledged by modern writers to be binding, provided the party believes in the existence of one God, the creator of all things. Swearing by inferior deities in such cases is considered as a mode of appealing through them to the Supreme Being; agreeably to the declaration of our Saviour, “He that sweareth by the throne of God, sweareth by him who sitteth thereon, and he that sweareth by the temple, sweareth by him who inhabits the same.” Through these inferior objects the appeal is made, and terminated in a solemn invocation of the God of all Gods.

If we suppose the institution of an oath to be of divine origin, yet there is no doubt, that human authority is competent to establish those forms of swearing that are most calculated to strike with religious awe and veneration. Accordingly the forms of swearing vary in different countries. But in one point all ages and countries have uniformly concurred—namely, that oaths are to be administered to all persons according to their opinion, and in such form as most affects their consciences.

In the Old Testament we find Abraham called upon his servant to swear, and requiring him to place his right hand under Abraham’s thigh, while he repeated the words of the oath to him; and Jacob used the same ceremony when he made his son Joseph swear he would not bury him in Egypt.

The persons of the Gentoo religion in India, when they take an oath, fall prostrate before the bramin or priest, and lay the right hand upon the bramin’s foot; an oath of this kind has been admitted to be legal evidence in England, because the Gentoos profess a belief in one God, the creator and governor of all things.

A Mahometon swears upon the Alcoran, and places his right hand flat upon it, and his left hand upon his forehead. In this posture he looks steadily a few minutes at the Alcoran, and by this ceremony he conceives himself bound to speak the truth.

A Jew is sworn upon the five books of Moses, upon which he lays his right hand.

The general form in use among Christians, is to lay the right hand upon the Bible, or the New Testament only, and to kiss it. The ceremony of laying the hand upon the book, is undoubtedly of Pagan origin, and was introduced among the primitive Christians from the example of the heathens, who were accustomed to swear in the presence of their false gods—and sometimes by actually touching or laying the hand upon the sacred utensils of their superstition. The mode appeared solemn and affecting to the Christians; and therefore the presence of the Bible when they swore, was substituted in the place of the false gods of the Pagans, and was produced as a sacred memento of the religious obligations they were under to speak the truth. Hence we find some of them swore with the hand laid upon the Bible—some with the Bible spread open before them—some by laying their hand upon the breast, others with the hand stretched out, or lifted up towards heaven, but always with the sacred book in their immediate presence and sight. The insatiable spirit of superstition, which finally terminated in the establishment of popery, had at that time made considerable progress in the christian church; and to this spirit we must ascribe the circumstance of kissing the book and the expressions we sometimes meet with in ancient writers—so help me God and his saints, which last words, viz. and his saints, have been omitted by the protestants: Though they still retain the former, and the ceremony of kissing the book.

Thus we see the mode of swearing amongst us, is partly of pagan, and partly of popish extraction. Among the early Christians, great latitude was admitted with respect to the form of swearing; nor does it appear that any mode whatever was prescribed, but that every person made use of the form most agreeable to his conscience. Even in the reign of Charles the second in England, we meet with an instance of a Doctor Owen, Vice Chancellor of Oxford, who being summoned as a witness, refused to be sworn by laying his hand upon the Bible, and kissing it; but he caused the book to be held open before him, with his right hand lifted up towards heaven, and was sworn in that form. The jury conceiving some doubts, whether he deserved as much credit as a witness sworn in the common form, put the question to the court. The chief justice with the utmost liberality told them that the doctor had taken as strong an oath, as any other witness, and was as much entitled to belief—but added he, if he himself was to be sworn, he would lay his right hand upon the book.

These and many other forms of swearing have been made use of in the world—but an oath does not consist merely in form. It consists in something more than laying the hand upon the Bible—kissing it—looking at it—or having placed it in our sight with the hand held up or stretched out. These are so many shadows, and alter not the nature of the transaction. It is the solemn appeal to God—it is engaging to speak the truth, and calling upon him to witness our sincerity, that constitute the oath and obligation. If this be done, it is immaterial whether any or what form be used. Whether the witness kiss the book, or lay his hand upon it, or whether he does neither, he is equally bound to speak the truth; and if he does not, he is guilty of perjury. But though oaths are obligatory in all religions, however indistinct the views they exhibit of God and his attributes, yet is their force peculiarly binding in Christian countries; because the sanction of rewards and punishments is more fully revealed by the Christian religion, and consequently the degree of guilt in transgressing the rules of moral duty, must be greater.

But can this appeal be made by every body? Can this security for speaking the truth be given by every one? Most certainly, gentlemen, it cannot.

It is impossible this appeal should be made or this security given, by those who do not believe in one God as creator and governor of the world. A Turk, or Indian, believing this, may be a witness, and a Christian renouncing the belief of it, or through ignorance unacquainted with it, is utterly incapable of being sworn in our courts of justice. The ties of religion can have no effect upon a mind, in which no idea of religion can be found, and there can be no religion if you take away a belief in the existence of a God, because it is the foundation of all religion. Upon this ground, Lord Kenyon, the present chief justice of England, rejected a person as incompetent to give evidence, who knew nothing of the obligations of an oath, of a future state of rewards and punishment, had never learned his catechism, and had only heard there was a God, and that those who told lies would go to the gallows. A person discovering a disbelief of these principles, stands in the same predicament with one who is entirely ignorant of them, and consequently cannot be a witness.

If the obligation of an oath depend wholly upon the sense and belief of a deity; that he abhors falsehood, and will punish perjury; and if oaths are necessary for the maintenance of peace and justice among men; it clearly follows that a belief in the existence of God is necessary for the support of civil society. Every thing therefore that tends to unhinge our belief in this important principle, must be reprobated by all good men; because it tends to weaken the security of an oath. Lord Mansfield has asserted, what no person will venture to deny, “that no country can subsist a twelve-month in which an oath is not thought binding: for the want of it, he adds, must necessarily dissolve society.” Whatever therefore relaxes the religious sentiment upon which an oath is founded, is injurious to society; because it lessens the restraint which the belief of that salutary principle imposes upon the human mind.

It is with perjury as with other crimes, there are certain paths that lead to it; and though there are some persons who may never arrive at the commission of this horrid crime, yet there is reason to fear, by their practices and example, they may be the means of others falling into it. One deviation from moral rectitude necessarily leads to another. He who has robbed his neighbour, will not hesitate to deny it with a lie or an oath, if such denial may be the means of his acquital. Drunkenness is often the foundation of quarrels, which not unfrequently end in murder or manslaughger.

The two vices that more immediately lead to perjury, are the infamous habits of lying, and swearing in common conversation. With respect to the person who has been accustomed to disregard truth in the ordinary occurrences of life, besides the pernicious example he sets to others, it is much more likely he should fall into the crime of perjury, than the man who is distinguished for strict veracity in his conversation. As to the impious vice of common swearing: to say that least of it—it is so absurd in itself, that nothing can possibly exceed the guilt, unless it be the folly of it. And were it not that it becomes criminal when viewed in its consequences upon civil society, would deserve it be mentioned only to be despised. It is indeed to be lamented that so many persons of rank, and good sense, among us, are addicted to it. They little think while they are invoking the vengeance of heaven upon themselves and others, and confirming the most trivial assertions with the awful name of the diety, that they are scattering firebrands, arrows and death around them. Man is an imitative animal; and the lower rank are eternally copying the manners, and even the expressions of those they have been taught to look upon as their superiors in education and stile of living. Though we are ready to admit, that persons of rank and sense who are guilty of this vice, if called upon to swear in a court, would scrupulously adhere to the truth, yet are they by the force of their example doing infinite mischief by inducing others to treat with contempt the name of the deity, who perhaps may not be restrained from perjury by the advantages of a good education, and better reflection, which their superiors may have enjoyed. It is indeed a self-evident proposition, that an habitual profanation of the name of God by the familiar use of oaths and curses in common conversation, must very much tend to lessen that awe and reverence of the Supreme Being, which is one of the strongest guards against perjury; and consequently be in a high degree injurious to society. It is for this reason our laws have endeavoured to restrain common swearing, and have made it an offence punishable by a magistrate. Such, however, is the unfortunate predominance of custom, that the law is seldom put in execution: And this in fact will be always the case, while men of influence in elevated stations, lead the way in the violation of the laws. Their example like a torrent, sweeps away all before it, and the law seems to be silently repealed, by the rank, the character, and the number of the offenders.

Let the pretensions of a person to virtue be what they may, if he conducts himself in any manner injurious to his country, and forbidden by the laws, he is at best but a pretender to the character of a good citizen. His actions speak louder than his words, and mark him the decided enemy of social order and public happiness. “By their fruit you shall know them”—is not less true when applied to detect the pretender in patriotism, than the hypocrite in religion. The man who by his immoral practices is constantly infringing the laws of order, and spreading confusion through the moral world, contributes his utmost efforts to involve every thing in anarchy and ruin; and whatever may be the language of his lips with his vices, he is stabbing his country to the heart.

I observed, gentlemen, that some oaths are called promissory oaths; such are all oaths of office, and some others. This mode of exacting the performance of a trust, by the additional security of an oath, is universally practised by civilized nations; and though by our law the punishment of perjury cannot be inflicted for the violation of such engagement, yet may it be prosecuted as a misdemeanor; and in the sight of God, the guilt is equal to the case of perjury, where facts are misrepresented or concealed. In the eye of reason there can be no difference, between a person’s swearing to a fact that never existed, and swearing that he will perform a particular act, and wilfully omitting it; or swearing that he will not perform a particular act, and afterwards deliberately doing it. There are doubtless different degrees of malignity attending the crime of perjury, as well as all other crimes. Yet I cannot avoid remarking that perjury in the case of violated promises may be, and frequently is, a more aggravated and detestable crime than even swearing to a direct falsehood, because it is accompanied with a perfidious breach of trust. In the case of marriage, for example, which is generally understood to be a contract, fortified with the solemnities of an oath, scarcely any guilt can exceed the violation of it. It is a cruel breach of trust, coupled with perjury; and tends directly to destroy the peace of families, and to tear up the very foundation of society. Contracts and oaths must have some meaning. But if the inconvenience of executing them, or mere whim and pleasure, be admitted as an excuse for the breach of them; then farewell, gentlemen, to all honour and honesty. If one of the parties be discharged, the other cannot remain bound. The consequence of both parties being released from obligations, whenever either party shall feel, or fancy he feels, an inconvenience from adhering to his contract, must be this—that every person will be at liberty to rescind his solemn compact whenever he pleases. A doctrine pregnant with the most horrid confusion, and the entire subversion of society.

The true criterion or standard of any action whatever is this—what would be the result to society, if every other person did the same thing. In this scale man may weigh his actions, with the utmost nicety—by this rule he may measure the innocence or criminality of every step he takes in life. Suppose, for example, all persons to abandon themselves to adulterous courses—or suppose an universal and unrestrained intercourse to take place between the sexes; in either of these cases, such an universal depravity of morals would ensue, as must utterly destroy society.

Every single act therefore, comprized in either of these supposed cases, must be unlawful. If one man has a right to be his own avenger, every other person must have the same right. But if all men were to execute their own revenge, desolation, rapine and murder would quickly overspread the land. Every single act of revenge therefore, is utterly repugnant to social obligation.

From the consequences of any action being injurious to the public welfare, if universally practised, we infer, that every single action of the same kind of description, is criminal. The rule will hold good when applied to lying, stealing, drunkenness, and every other vice. For if one man has a right to steal, to tell a lie, to get drunk, or to violate his solemn promises as often as he pleases, so has every other man. But if all men were to give into these practices, society must be annihilated; for it could not possibly exist, if it were entirely composed of such infamous wretches. In the one case there would be no such thing as property—in the other no truth, or dependence of one man upon the words of another; and in the third, viz. a society consisting of drunkards, universal wretchedness must be the inevitable consequence.

From these observations, gentlemen, we cannot but perceive the destructive tendency of vice, in its very nature; and how utterly incompatible it is, with the interests of society. It is at the same time agreeable to remark, the coincidence, the perfect harmony, between the precepts of heaven, and the necessary consequences of human actions.

The laws of God forbid the indulgence of our passions only in such cases, where their gratification would be injurious to ourselves, or our neighbours, and enjoin the performance of all those duties, that are calculated to improve the heart, or promote the welfare of others. The Christian religion is in fact the surest basis of morality, and consequently of order and good government.

Of this heaven born religion it is the peculiar characteristic, that while obedience to its commands constitutes the highest felicity of the individual, the practice of its benevolent precepts, is at the same time, the firmest foundation of social happiness and public prosperity. In the elegant language of holy writ, “her ways are ways of pleasantness, and all her paths are peace.” even in this world. “Righteousness exalts a nation; (that is, makes it flourish) but sin is a reproach to any people; and by slow, but sure steps, under any form of government, inevitably leads to national misery and destruction.”