Oaths in court

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.

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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).