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בס"ד

Judicial Oaths.

A correspondent wishes us to indicate to him through our pages “how an oath should be taken in a court of justice.” The customary manner has been to place the hat on, as is done in our places of worship, or when we are at prayers, or studying the law at home; since we are engaging in the most solemn act of recognising the presence of the Deity, by invoking Him to listen to our asseverating to what we allege to be the truth, in his name. We see, at the same time, no objection to our taking a printed copy of the English Bible in our hand, as is done by all other inhabitants of the country, who have no conscientious scruples about taking an oath, and reciting the customary form, “to say the truth, the whole truth, and nothing but the truth,” with the clause attached, “so help me God;” since our own authori<<98>>ties seem to permit it; we refer to Mishna Shebuoth, ch. iv. § 13. An Israelite is bound to testify to the truth without an oath; the Bible speaks of testimony to be given by simple assertion, without invoking a curse, or making a solemn affirmation; for in treating of testimony in Deuteronomy, xvii. 6, and elsewhere, the mere assertion but no oath, is even alluded to. We admit that we are told, “And by his name shalt thou swear,” (Deuteronomy, vi. 13); but Rashi explains this, “If thou fearest the Lord thy God, and hast served Him, then mayest thou swear by his name, but if not, thou must not swear;” from which it will appear that according to the strict principles of Jewish jurisprudence, witnesses were not necessarily sworn before testifying; as, however, the laws of the country demand an oath or affirmation, before any one makes an assertion of a truth in judicial controversies, and as there is no prohibition against our complying with this rule, neither in Bible nor Talmud, we are bound to comply with the law, custom, or whatever else it may be, in the manner indicated, that is, we should regard it as a solemn invocation of God, to attest that we are about uttering the truth and nothing, but the truth, and it is, therefore, proper at the same time that we cover our head, as though we were about commencing a prayer, or studying the Scriptures. It is needless to say that it would be improper to lay our hand on any part but the Old Testament, so-called, whilst listening to the recitation of the form of the oath; since, if we are to add authority to our assertion by the act of swearing, the book, which we seize hold of as an additional confirmation, must be such as excites in us the highest veneration. Not that an oath would be less an oath, whether we kissed the Scrip­tures or not; the invocation, “So help me God,” is the essence of the asseveration; but that if a book is required at all, let it be one which commands our entire belief and confidence.

For our part we should be pleased to see an entire reform introduced into the whole system of judicial, official, custom-house, and all sorts of oaths, including the one called, “Oath of allegiance,” since it must be evident that perjury or false swearing is too often resorted to, with the full knowledge that a falsehood is uttered, notwithstanding the solemn invoking of the Holy Name. Princes, priests, nobles, commoners, officers, and soldiers all swear, so do legislators and judges, that they will fulfil the duties demanded of them; but we are yet to learn that the least restraint is thereby imposed against their violating their solemn obligations. Oaths, therefore, are no safeguard against the dishonest, and the conscientious will be faithful, notwithstanding <<99>> they have never promised the least under any manner of solemn invocation.

Some of our readers are, no doubt, familiar with the system of judicial oaths, as they were administered in accordance with Talmudic authority; may we request them to give us a condensed account of it, as also of our whole system of justice? We are aware that Rabbis Frankel and Fassel have of late years published several learned works (in German), on the law of testimony, and principles of right among the Jews; but we have never yet obtained a sight of these valuable treatises; if any of our friends have, we would esteem it a high favour if they would instruct us and the public in general on these important subjects, interesting both in a religious and antiquarian sense.