Omychund v Barker and the law of oaths

The old English case of Omychund v Barker (1744) 125 ER 1310; [1744] Willes 538 (sometimes spelt as Omichund v Barker) is well known for its contribution to the development of the (now largely defunct) best evidence rule.

However the case is also famous for the development it made to the law of oaths and affirmations. This post explains that aspect of the case.

What does Omychund v Barker say about oaths?

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The two key points about oaths which were decided in Omychund v Barker (1744) 125 ER 1310 were:

(1) a person of any religion (and, in particular, not just the Christian religion) is competent to testify on oath provided that they hold a belief in the existence of a God, and a belief that there is a system of rewards and punishments for their acts by that God; and

(2) the oath can be administered with such ceremony and in such form as the witness declares to be binding on their conscience.

A case summary of Omychund v Barker (1744) 125 ER 1310 on the law of oaths appears below.

Summary of the facts in Omychund v Barker

Omychund was an Indian merchant. Barker was a British employee of the East India Company. In July 1729 Omychund and Barker entered into a partnership for the sale of goods.

Omychund provided money to purchase the goods. Barker purchased them, and sold them at a great profit. However Barker refused to account to Omychund for his share of the profit.

Omychund sued Barker in the mayor’s court at Kolkata (then known as Calcutta) but Barker left on a ship for Europe before the case could be heard.

The court interpreted Barker’s departure as a “flight from justice” and determined he should pay the full amount he was sued for plus costs. Unfortunately for Omychund, Barker died on the ship back to Europe. However Barker’s will charged his estate as responsible for payment of his debts.

Omychund sued Barker’s son for the debt in the English Court of Common Pleas, and commissioners went to India to take evidence. The commissioners took evidence from witnesses named Ramkissenseat, Ramchurnecooberage and several others who were persons of the Hindu religion.

The witnesses were sworn by having an other interpreted to them, after which they each touched the foot of a Hindu priest. Another priest then had the oath interpreted to him and touched the hand of the first priest. This was the usual and most solemn form in which oaths were administered to witnesses of the Hindu religion, and the way such oaths were usually administered in the courts of justice in Kolkata at the time.

There was evidence before the court that persons of the Hindu religion believed in a God as the Creator of the universe, and that the God was a rewarder of those who did well, and an avenger of those who did ill.

Over objection, the evidence was admitted. All four judges gave separate judgments.

The judgments in Omychund v Barker

Lord Chief Baron Parker held that the forms of oath taken by Christians and Jews were various and there was not one correct oath for these religions. The oath taken by the Hindu witnesses was not a new oath that required Parliamentary approval.

Lord Chief Baron Parker stated:

It is plain that by the policy of all countries, oaths are to be administered to all persons according to their own opinion, and as it most affects their conscience.

Lord Chief Justice Willes held that Jews had constantly been admitted as able to give evidence in the English courts.

Lord Willes CJ powerfully dispensed with an earlier pronouncement of Lord Coke, who had confined the law to only allow Christians to give evidence on oath. The Lord Chief Justice said:

The defendant’s counsel are mistaken in their construction of Lord Coke, for 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 any thing worse.

Lord Willes CJ stated the requirements to give evidence on oath as follows:

I am of [the] opinion that infidels [meaning, in this context, “non-Christians”] who believe [in] a God, and future rewards and punishment in the other world may be witnesses; yet I am as clearly of [the] opinion, that if they do not believe [in] a God, or future rewards and punishments, they ought not to be admitted as witnesses.

Lord Chief Justice Lee gave a short judgment agreeing entirely with the judgments of Lord Chief Baron Parker and Lord Chief Justice Willes.

The final judgment was given by the Lord Chancellor who noted that the case was one not only of great expense but also of great consequence.

On the issue of what was required for a person to swear an oath, the Lord Chancellor quoted Bishop Sanderson:

All that is necessary to an oath is an appeal to the Supreme Being, as thinking him the rewardor of truth, and avenger of falsehood.

The Lord Chancellor, like Lord Willes CJ, was dismissive of the attempt by Lord Coke to narrow the field to Christians:

This is not contradicted by any writer that I know of but Lord Coke, who has taken upon him to insert the word Christian and is the only writer that has grafted this word into an oath.

As to the form of oath, the Lord Chancellor noted that it had been “laid down by all writers that the outward act is not essential to the oath.” The Lord Chancellor stated that all that was necessary had been done in this case: “an external act was done to make it a corporal act.”

The Lord Chancellor concluded, in agreement with various writers, “that it has been the wisdom of all nations to administer such oaths as are agreeable to the notion of the person taking…”.