The Non-Christian Oath in English Law

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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

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