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The Non-Christian Oath in English Law

F. Ashe Lincoln

<plain_text><page sequence="1">The Non-Christian Oath in English Law1 By F. Ashe Lincoln, K.C., M.A., B.C.L. The return of the Jews to England soon led to a discussion whether they were to be accepted as witnesses in a court of law and even whether they could appear as parties and give evidence on their own behalf. The question, and its subsequent determination, is of interest in the first place because it throws light upon the attitude taken towards the Jews at the end of the seventeenth century, but secondly it is of importance because the arguments used about the admissibility of Jewish evidence were later utilized to enable any non-Christian to give evidence. When in the early eighteenth century trade with India increased, doubts were expressed as to the acceptance of the evidence of Hindu and Moslem witnesses and the arguments used and decisions made in favour of Jewish evidence ultimately carried the day for all non-Christian witnesses and parties. That, however, was not until the decision in Omichund v. Barker decided in Chancery, 23rd February, 1744 (reported 1 Atkyn's Reports, p. 21). Why should there have been any difficulty at any time about accepting the evidence of a non-Christian ? The trouble arose because of the doubt whether a charge of perjury could be maintained against a non-Christian or anyone not sworn upon the New Testament. It must be remembered that it was the era of strict pleading in both civil and criminal matters. In criminal cases, the indictment had to be strictly proved as laid. A rigid formalism had crept into the law and resulted in a strict adherence to set forms, particularly in criminal indictments. This formalism lasted until well on in the nineteenth century, having arisen very largely as the result of the influence of Lord Coke in the early seventeenth century. The strictness of form and of proof in criminal cases had the salutary effect of protecting the prisoners who could not, in those days, give evidence on their own behalf and who stood in danger of capital punishment for all felonies. The indictment then, had to be proved exactly word for word. The standard form of indictment for perjury required proof that the witness had been sworn " on the sacred evangels 55 sacro sancta evangelia or as it is put in another case " tactis sacro sanctis Dei evangeliis Could a Jew (or any non-Christian) not sworn on the New Testament, ever be indicted for perjury in this form ? Until that difficulty could be resolved their evidence could not be accepted. Coke's Institutes were at that time the standard guide to the Common Law and reference to that work gave little hope that the non-Christian oath would be acceptable. He was writing, of course, at a time when there were no Jews in England. His opinion is as follows :? 3rd Institute c. 14 " Of Perjury, Subornation of Perjury and incidentally of Oaths". " An oath ought to be performed with a sacred and religious mind, quia jurare est Deum in testem vocare et est actus divini cultus." In the following section he says :? " An oath is an affirmation or denial by any Christian of any thing lawful and honest before one or more that have authority to give the same for advance? ment of truth and right; calling almighty God to witness that his testimony is 1 Paper read before the Jewish Historical Society of England on 25th February, 1935. 73 G</page><page sequence="2">74 the non-christian oath in english law true. So an oath is sacred and so deeply concerneth the conscience of Christian men as the same cannot be ministered to any unless the same be allowed by the common law or by some Act of Parliament ; it is called a corporal oath because he toucheth with his hand some part of the holy scriptures." (This last sentence is the foundation for the use of the form " tactis sacro sanctis, etc.) In the 4th Institute c. 64 Coke says :? " An oath ought to be accompanied with the fear of God and service of God for advancement of truth, Dominum Deum tuum timebis et illi soli servies et per nomen illius jurabis " (this is a quotation from the Mosaic law, Deut. c. vi, v. 13). Bracton is quoted as saying that " an alien born cannot be a witness, which is to be understood of an alien ". Coke himself supplements this for he says in another place (Coke on Lyttleton 6 b) " An infidel cannot be a witness ". Coke included Jews as infidels " by shutting their eyes against the light ". Whenever he mentions Jews he talks of them as " infidel Jews ". In the 2nd Institute 506 and 507 he says " and thus this noble king (meaning Edward I) banished for ever these infidel usurious Jews ". Lord Chief Justice Hale stated that he understood Coke to " mean Jews for infidels as well as others ". Coke's views on " infidels " are given in the 7th Reports?Calvins Case 17 where he says "All infidels are in law perpetui inimici ; for between them as with the devil, whose subjects they be, and the Christian there is perpetual hostility ". (It is interesting to observe that a little over a century later a " Gentleman of Lincoln's Inn " gives it as his opinion that these views of Coke " have been exploded, both in Theory and in Practice, as an un-Christian, absurd, monkish, and fantastical conceit evidently tending to destroy all means of convincing them of their Errors and converting them to the Christian Faith ".) The opinions of Coke and the effect of the wording of the indictment for perjury therefore, led to grave doubts whether a non-Christian could give evidence. So far as Jews were concerned, the matter arose for determination soon after the Restoration of Charles II in the case of Robeley v. Langston on 29th January, 1667, reported in 3 Keble 314, as follows :? " Robeley v. Langston 2 Keble 314 (January 29th 19 Car. II 1667). Wild, Serjeant, on evidence of a jury at Guildhall yesterday (where, because the witnesses produced were Jews, Keeling C. J. swore them upon the Old Testa? ment) desired the opinion of the court, if this were any oath by the statute of 5 Eliz. c. 9 which might be assigned for perjury : and per curiam, it is so and within the general words of sacro-sancta evangelia so of the common prayer book that hath the epistles and gospels : contra by Windham of a psalm book only." In Michaelmas Term, 1684, the question arose in the Chancery Division and is reported in Vernons folio Reports 263 as follows :? " Anonymous A Jew being to put in an answer upon a motion, it was ordered that he should be sworn upon the Pentateuch and that the Plaintiff's clerk should be present to see him sworn." In Well v. Williams, Ld. Raymond 282 (Eng. Rep. 91, p. 1086) Michaelmas Term 9 William III, the court said " That the necessity of trade has nullified the too rigorous rules of the old law in their restraint and discouragement of aliens. A Jew</page><page sequence="3">THE NON-CHRISTIAN OATH IN ENGLISH LAW 75 may sue at this day, but heretofore he could not ; for then they were looked upon as enemies, but now commerce has taught the world more humanity ; and therefore, held that an alien enemy ' commorant5 here by licence of the king and under his protection may maintain debt upon a bond though he did not come with safe conduct ". Unfortunately, there is no full note of the arguments used in the above cases to persuade the court to accept Jewish testimony, but references in other cases make it clear that considerable research had been undertaken by contemporary barristers and judges in order to determine whether Coke had declared the Common Law aright. Precedents had to be sought in the records that survived from Norman times. A note to Sherleys case (case 59) decided in Easter Term 3 and 4 Philip and Mary reported in Dyer 144a, states " 9 Ed. I?A Jew had his trial per medietatem linguae (semble 6 of Jews ') and they were sworn upon the five Books of Moses holden in their arms and by the name of the God of Israel which is merciful55. This is a reference to the old jury system of Norman times by which a jury was summoned to give a verdict upon any matter of their own knowledge?that is to say the jurymen were witnesses in the sense that they had to speak not from evidence adduced before them, but merely of their own knowledge and belief. In any matter therefore, which concerned a Jew of Norman times it would be natural and usual to summon a jury of Jews to say upon oath how they found from their knowledge of the case, and the Plea Rolls afford many instances of this practice. The form of oath and method of swearing mentioned by Dyer are mentioned by Seiden, Vol. III, "De Judaeos ", p. 1460, but he expresses doubts as to the form of oath, " What oath was given them " he writes, " I find not but R. Moses Mitktozi that lived in the time of Henry III writes in praec afnrmat 123, that holding the Book of the Pentateuch between their arms, they called to witness the God of Israel, which is merciful, etc." The reference to " Rabbi Moses Mitktozi " is probably intended for Rabbi Moses of Coucy who completed his Sefer Mitzvoth ha-Gadol (the Semag) in 1250 and who mentions the form and method of oath referred to by Seiden as appropriate in Jewish Courts (see 2nd edition of the Semag published at Venice, 1547, part II, No. 123 of the "positive commands" HUSO). It is a fair assumption that Lord Dyer is right in stating that the Jews in Norman times were sworn in the manner he describes. Although Seiden says " What oath was given them I find not " there is nevertheless clear evidence that Jews were sworn according to their own customs and laws. Thus Madox in his History of the Exchequer (p. 166) quotes from the Great Roll of the time of John (Mag. Rot 5 Joh. Rot 9 a Line), " Benedictus frater Aaronis Judaei Lincolniae debet xx marcas, pro habenda juratione secundum consuetudinem Judaeorum etc." Further, on page 174 Madox quotes from Rot. Cart. 2 Joh. N. 49 " Titulo Carta Judaeorum Angliae " as follows. " Si Judaeus ab aliquo appellatus fuerit sine teste, de illo appellatu erit quietus solo sacramento suo super librum suum ; et de appellatu illarum rerum quae ad coronam nostram pertinent, similiter quietus erit solo sacramento suo super rotulum suum ". It is thus clear that they were sworn according to Jewish custom and upon the Scroll of the Law (rotulum suum). The precedents of Norman times and the clear acceptance of a Jewish oath in those days enabled the Judges of Charles II to accept the Jewish oath and to regard such an acceptance as being consistent with the Common Law. In effect they over? ruled Coke and seem to have had little hesitation in so doing. As was ably said by</page><page sequence="4">76 THE NON-CHRISTIAN OATH IN ENGLISH LAW Lord Chief Justice Willes (i Atkyns Rep. p. 44) speaking of Coke " he puts the Jews upon a footing with stigmatized and infamous persons : this notion though advanced by so great a man, is contrary to religion, common sense, and common humanity : and I think the devils themselves to whom he has delivered them could not have suggested anything worse." These decisions were finally accorded statutory approval in 10 George I c. 4 and 13 Geo. II. There remained the question of non-Christian (other than Jewish) testimony. On 9th December, 1738, a committee of the Privy Council inquiring into a complaint against General Sabine, heard a Turkish witness who was sworn on the Koran?but that was not a court of law. As has been pointed out above, this question was raised in the case of Omichund v. Barker where the issue was whether the evidence of a Hindu (called throughout the case a Gentoo) was acceptable. All the old arguments from Coke were resusci? tated and the difficulty of the indictment for perjury was again raised. The Solicitor General said in regard to this question " There is no instance of a Jew's being indicted for perjury " to which Lord Chief Justice Lee retorted, " I have tried a Jew myself upon an indictment for perjury." The final decision in this case was that " an Infidel in general cannot be excluded from being a witness ".</page></plain_text>