Oaths

An oath is a religious promise which binds the conscience  of the person swearing the oath. At common law, most but not all religions can swear an oath. This page explains the test for whether a particular religion can swear an oath, and the words that should be used.

The test for competence to swear an oath at common law was laid down by the English Court of Chancery in Omichund v Barker 125 Eng Rep 1310 (Ch 1744). There it was held that any person who believed in a god and in the solemn obligation of an oath was competent to testify once they had been sworn in whatever manner their conscience and religious convictions would find binding. The Court also held that:

• although the form of oath can vary, the substance is still the same, which is that the person’s god is called upon as a witness to the truth of what is said; and
• persons who do not think that their god will either award or punish them in this world or the next, cannot swear oaths because an oath cannot possibly be any tie or obligation upon them.

Therefore, at common law the minimum requirements for a religion to be able to swear an oath are that the religion has a god (or gods) which the person making the oath believes will punish or reward them in this world or after death. A person who is religious but whose religion does not meet this test is not competent to swear an oath at common law. Statutory modification has altered this position in some jurisdictions, but the common law test is as laid down in Omichund v Barker.

As Omichund v Barker makes clear, it is the substance and not the form of oath which is important. As an overriding rule, a religious person can be asked what form of oath they will regard as binding on their conscience and to swear them accordingly. However some standardised forms of oath have become commonly used. These are set out below.

Words for a Christian oath at common law

At common law, a Christian oath is administered by instructing the deponent to take the Bible in their hand and to say the words:

“I swear by Almighty God that this is my name and handwriting and that the contents of this my affidavit are true.”

The words “and handwriting” can be omitted if the affidavit is entirely typewritten. Variations on the form are also acceptable provided the witness considers their conscience bound by the words and ceremony used. For example, if no Bible is available the witness can still be sworn provided it is their belief that their conscience will be bound by the oath: see eg R v Chapman [1980] Crim LR 42 where the witness failed to take the Testament in his hand. 

It is also acceptable for the oath to be administered in a question and answer format, ie:

Q: Do you swear by Almighty God that this is you name and that the contents of this your affidavit are true?

A: Yes / I do / etc.

Words for a Jewish oath at common law

The “standard” form of Jewish oath at common law uses the same words as are used in the Christian oath set out above. The difference is the religious book that is used. There are varying views about whether the book to use should be the Old Testament, the Pentateuch (the first five books of the Old Testament) or no religious book at all.  Because the common law does not subscribe any particular form of oath, the witness should simply be asked as to the ceremony they consider will be binding on their conscience. There is no “correct” answer to whether a particular religious book is or is not required: it depends on the person making the oath.

Words for other oaths at common law

The simplest and best practice for other religions is to inquire what oath a witness or deponent will regard as binding and to swear them accordingly. It will often be the case that the witness will regard a form of words which follows those for the Christian oath, but adapted to their beliefs, as sufficient. Hence, provided the witness regards an oath in this form as binding on their conscience, the following formula can be used for any religion which has a god or gods that the deponent believes will reward or punish them in this world or the next:

“I swear by / to [state the deity sworn to by the deponent] that this is my name and handwriting and that the contents of this my affidavit are true.”

Oaths have been said to be as old as civilisation itself and the custom of swearing oaths is a natural and universal part of human history, dating back further than reliable records go. However we do know that early civilisations had numerous customs which were all similar in that the custom involved calling on a beast, weapon or other creature or object to witness the truth of a person’s words, and to destroy the speaker if their words prove untrue.

The history of oaths is recounted by Edward A. Thomas in Oaths in Legal Proceedings in the North American Review in 1882 (Vol. 135, No. 310, Sep., 1882) in which Thomas stated:

The practice of administering oaths in judicial proceedings existed for many centuries before Christ. The priests of every clime and of every faith lent their arts and influence to render the ceremony as impressive as possible to the minds of the uneducated… As the means of rendering promises more sacred and effectual, the Egyptians, Hindoos, Persians, and Hebrews, enforced the custom upon all grave occasions. The Greeks and Romans adopted  a similar practice.

Thomas Raeburn White examined the recorded history of oaths in Oaths in Judicial Proceedings and Their Effect upon the Competency of Witnesses (the American Law Register, Vol. 51, No. 7, Jul., 1903). In that article White stated that the earliest record of an oath being taken in the name of the God of Christians and Jews is found in the Bible in the book of Genesis at 21:23-24 (King James version):

Now therefore swear unto me here by God that thou wilt not deal falsely with me, nor with my son, nor with my son’s son: but according to the kindness that I have done unto thee, thou shalt do unto me, and to the land wherein thou hast sojourned.

And Abraham said, I will swear.

White also noted that the Code of the Laws of Hammurabi (circa 1772BC) contains no fewer than 12 instances where oaths were required in judicial procedure.

Heading a little further in history, we know that oaths were introduced into Roman law about 300AD when the Emperor Constantine, believing that he was following Christian practice, required people giving evidence to swear that they will tell the truth. We also know that the oath was in use by the Saxon tribes who came to England in 449AD and it may have formed a part of the Celtic system of law prior to that time.

Constantine’s provision was later incorporated into the Code of Justinian, and from there it was adapted, primarily through the canon law, to all of European Christendom.

The tradition of the oath was brought to America by the earliest English settlers. The oath is referred to by Noah Webster in an article published in March 1787, On Test Laws, Oaths of Allegiance and Abjuration, and Partial Exclusions from Office:

An oath creates no new obligation. A witness, who swears to tell the whole truth, is under no new obligation to tell the whole truth. An oath reminds him of his duty; he swears to do as he ought to do; that is, he adds an express promise to an implied one. A moral obligation is not capable of addition or diminution.

Today, with only few exceptions, oaths are now in use in judicial proceedings of all countries worldwide. As was stated in Atwood v Welton 7 Conn 66 at 72 (1828):

A man of the most exalted virtue, though judges and jurors might place the most entire confidence in his declarations, cannot be heard in a court of justice without oath. This is a universal rule of the common law, sanctioned by the wisdom of ages, and obligatory upon every court of justice whose proceedings are according to the course of the common law.

For further explanation of these matters, an exhaustive examination of the origins and development of the oath is provided by Helen Silving in Essays on Criminal Procedure (1964). That analysis traces the development of the various forms of oaths in civil and common law countries to three sources: Roman law, Germanic law and canon law. Silving’s analysis continues to be widely cited (for example by the Law Reform Commission of Ireland in its Report on Oaths and Affirmations (LRC 34–1990).