Popular Science Monthly/Volume 9/July 1876/Ordeals and Oaths
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Ordeals and Oaths
By Edward Burnett Tylor
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IN primitive stages of society, the clannish life of rude tribes may well have been more favorable to frank and truthful relations between man and man than our wider and looser social intercourse can be. Yet one can see, from the habits of modern savages, that already in early savage times society was setting itself to take measures against men who broke faith to save themselves from harm or to gain some coveted good. At the stage of civilization where social order was becoming regular and settled, the wise men turned their minds to devise guarantees stronger than mere yes and no. Thus the ordeal and the oath were introduced, that wrong-doing should not be concealed or denied, that unrighteous claims should not be backed by false witness, and that covenants made should not be broken.
The principles on which these ordeals and oaths were invented and developed may to this day be plainly made out. It is evident that the matter was referred to the two intellectual orders of early times, the magicians and the priests. Each advised after the manner of his own profession. The magician said, "With my symbols and charms I will try the accused, and bind the witness and the promiser." The priest said, "I will call upon my spirits, and they shall find out the hidden thing, and punish the lie and the broken vow." Now, magic and religion are separate in their nature and origin. Magic is based on a delusive tendency arising out of the association of ideas, namely, the tendency to believe that things which are ideally connected in our minds must therefore be really connected in the outer world. Religion is based on the doctrine of spiritual beings, souls, demons, or deities, who take cognizance of men and interpose in their affairs. It is needful to keep this absolute distinction clear in our minds, for on it depends our finding our mental way through a set of complicated proceedings, in which magical and religious elements have become mixed in the most intricate manner. Well they might, considering how commonly the professions of sorcerer and priest have overlapped so as even to be combined in one and the same person. But it seems, from a general survey of the facts of ordeals and oaths, that on the whole the magical element in them is earliest and underlying, while the religious element is apt to come in later in history, often only taking up and consecrating some old magical process.
In the series of instances to be brought into view, this blending of the religious with the magical element will be repeatedly observable. It will be seen also that the ordeal and the oath are not only allied in their fundamental principles, but that they continually run into one another in their use. Oaths, we shall see, may be made to act as ordeals, and ordeals are brought in as tests of oaths. While recognizing this close connection, it will be convenient to divide the two and take them in order according to their practical application, ordeals being proceedings for the discovery of wrong-doers, while oaths are of the nature of declarations of undertakings.
The association of ideas which serves as a magical basis for an ordeal is quite childish in its simplicity. Suppose it has to be decided which of two men has acted wrongfully, and appeal is had to the ordeal. There being no evidence on the real issue, a fanciful issue is taken instead, which can be settled, and the association of ideas does not rest. Thus in Borneo, when two Dyaks have to decide which is in the right, they have two equal lumps of salt given them to drop together into water, and the one whose lump is gone first is in the wrong. Or they put two live shell-fish on a plate, one for each disputant, and squeeze lime-juice over them, the verdict being given according to which man's champion-mollusk moves first. This reasoning is such as any child can enter into. Among the Sandwich-Islanders, again, when a thief had to be detected, the priest would consecrate a dish of water, and the suspected persons, one by one, held their hands over it, till the approach of the guilty was known by the water trembling. Here the connection of ideas is plain. But we may see it somewhat more fully thought out in Europe, where the old notion remains on record that the executioner's sword will tremble when a thief draws near, and even utter a dull clang at the approach of a murderer.
Starting with the magical ordeal, we have next to notice how the religious element is imported into it. Take the ordeal of the balance, well known to Hindoo law. A rude pair of scales is set up with its wooden scale-beam supported on posts; the accused is put in one scale, and stones and sand in the other to counterpoise him; then he is taken out, to be put in again after the balance has been called upon to show his guilt by letting him go down, or his innocence by raising him up. This is pure magic, the ideal weight of guilt being by mere absurd association of ideas transferred to material weight in a pair of scales. In this process no religious act is essential, but in practice it is introduced by prayers and sacrifices, and a sacred formula appealing to the great gods who know the walk of men, so that it is considered to be by their divine aid that the accused rises or falls at once in material fact and moral metaphor. If he either goes fairly up or down the case is clear. But a difficulty arises if the accused happens to weigh the same as he did five minutes before, so nearly at least as can be detected by a pair of heavy wooden scales which would hardly turn within an ounce or two. This embarrassing possibility has in fact perplexed the Hindoo lawyers not a little. One learned pundit says, "He is guilty, unless he goes right up!" A second suggests, "Weigh him again!" A third distinguishes with subtlety, "If he weighs the same he is guilty, but not so guilty as if he had gone right down!" The one only interpretation that never occurs to any of them is, that sin may be an imponderable. We may smile at the Hindoo way of striking a moral balance, but it should be remembered that a similar practice, probably a survival from the same original Aryan rite, was kept up in England within the last century. In 1759, near Aylesbury, a woman who could not get her spinning-wheel to go round, and naturally concluded that it had been bewitched, charged one Susannah Haynokes with being the witch. At this Susannah's husband was indignant, and demanded that his wife should be allowed to clear herself by the customary ordeal of weighing. So they took her to the parish church, stripped her to her under garments, and weighed her against the church Bible; she outweighed it, and went home in triumph. Here the metaphor of weighing is worked in the opposite way to that in India, but it is quite as intelligible, and not a whit the worse for practical purposes. For yet another case, how an old magical process may be afterward transformed by bringing in the religious sanction, we may look at the ancient classic sieve and shears, the sieve being suspended by sticking the points of the open shears into the rim, and the handles of the shears balanced on the forefingers of the holders. To discover a thief, or a lover, all that was required was to call over all suspected names, till the instrument turned at the right one. In the course of history, this childish divining-ordeal came to be Christianized into the key and Bible; the key, of course, to open the secret, the Bible to supply the test of truth. For a thief-ordeal, the proper mode is to tie in the key at the verse of the 50th Psalm," "When thou sawest a thief, then thou consentedst with him;" and then, when the names are called over, at the name of the guilty one the instrument makes its sign by swerving or turning in the holders' hands. This is interesting, as being almost the only ordeal which survives in common use in England; it may be met with in many an out-of-the-way farmhouse. It is some years since English rustics have dared to "swim" a witch, that is, to put in practice the ancient water-ordeal, which our folk-lore remembers in its most archaic Aryan form. Its essential principle is as plainly magical as any: the water, being set to make the trial, shows its decision by rejecting the guilty, who accordingly comes up to the surface. Our ancestors, who did not seize the distinction between weight and specific gravity, used to wonder at the supernatural power with which the water would heave up a wicked fellow, even if he weighed sixteen stone.
Mediæval ordeals, by water or fire, by touch of the corpse, or by wager of battle, have fallen to mere curiosities of literature, and it is needless to dwell here on their well-known picturesque details, or to repeat the liturgies of prayer or malediction said or sung by the consecrating priests. It is not by such accompanying formulas, but by the intention of the act itself, that we must estimate the real position of the religious element in it. Nowhere is this so strong as in what may be called the ordeal by miracle, where the innocent by divine help walks over the nine red-hot ploughshares, or carries the red-hot iron bar in his hand, or drinks a dose of deadly poison, and is none the worse for it; or, in the opposite way, where the draught of harmless water, cursed or consecrated by the priests, will bring, within a few days, dire disease on him or her who, being guilty, has dared to drink of it.
Looking at the subject from the statesman's point of view, the survey of the ordeals of all nations and ages enables us to judge with some certainty what their practical effect has been for evil or good. Their basis being mere delusive imagination, when honestly administered their being right or wrong has been matter of mere accident. It would, however, be a mistake to suppose that fair-play ever generally prevailed in the administration of ordeals. As is well known, they have always been engines of political power in the hands of unscrupulous priests and chiefs. Often it was unnecessary even to cheat, when the arbiter had it at his pleasure to administer either a harmless ordeal like drinking cursed water, or a deadly ordeal by a dose of aconite or physostigma. When it comes to sheer cheating, nothing can be more atrocious than this poison-ordeal. In West Africa, where the Calabar bean is used, the administerers can give the accused a dose which will make him sick, and so prove his innocence, or they can give him enough to prove him guilty, and murder him in the very act of proof; when we consider that over a great part of that great continent this and similar drugs usually determine the destiny of people inconvenient to the fetich-man and the chief—the constituted authorities of church and state—we see before us one efficient cause of the unprogressive character of African society. The famed ordeal by red-hot iron, also, has been a palpable swindle in the hands of the authorities. In India and Arabia the test is to lick the iron, which will burn the guilty tongue but not the innocent. Now, no doubt the judges know the secret that innocent and guilty alike can lick a white-hot iron with impunity, as any blacksmith will do, and as I have done myself, the layer of vapor in a spheroidal state preventing any chemical contact with the skin. As for the walking over red-hot ploughshares, or carrying a red-hot iron bar three paces in the palm of the hand, its fraudulent nature fits with the fact that the ecclesiastics who administered it took their precautions against close approach of spectators much more carefully than the jugglers do who handle the red-hot bars and walk over the ploughshares nowadays; and, moreover, any list of cases will show how inevitably the friend of the Church got off, while the man on the wrong side was sure to "lose his cause and burn his fingers." Remembering how Queen Emma in the story, with uplifted eyes, walked over the ploughshares without knowing it, and then asked when the trial was to begin, and how, after this triumphant issue, one-and-twenty manors were settled on the bishopric and church of Winchester, it may be inferred with some probability that in such cases the glowing ploughshares glowed with nothing more dangerous than daubs of red paint.
Almost the only effect of ordeals which can be looked upon as beneficial to society is, that the belief in their efficacy has done something to deter the credulous from crime, and still more often has led the guilty to betray himself by his own terrified imagination. Visitors to Rome know the great round marble mask called the Bocca della Verità. It is but the sink of an old drain; but many a frightened knave has shrunk from the test of putting his hand into its open "mouth of truth" and taking oath of his innocence, lest it should really close on him as tradition says it does on the forsworn. The ordeal by the mouthful of food is still popular in Southern Asia for its practical effectiveness: the thief in the household, his mouth dry with nervous terror, fails to masticate or swallow fairly the grains of rice. So in old England, the culprit may have failed to swallow the consecrated cor-snæd, or trial-slice of bread or cheese; it stuck in his throat, as in Earl Godwin's in the story. To this day the formula, "May this mouthful choke me if I am not speaking the truth!" keeps up the memory of the official ordeal. Not less effective is the ordeal by curse, still used in Russia to detect a thief. The babushka, or local witch, stands with a vessel of water before her in the midst of the assembled household, and makes bread-pills to drop in, saying to each in order, "Ivan Ivanoff, if you are guilty, as this ball falls to the bottom, so your soul will fall into hell." But this is more than any common Russian will face, and the rule is that the culprit confesses at sight. This is the best that can be said for ordeals. Under their most favorable aspect, they are useful delusions or pious frauds. At worst they are those wickedest of human deeds, crimes disguised behind the mask of justice. Shall we wonder that the world, slowly trying its institutions by the experience of ages, has at last come to the stage of casting out the judicial ordeal; or shall we rather wonder at the constitution of the human mind, which for so many ages has set up the creations of delusive fancy to hold sway over a world of facts?
From the ordeal we pass to the oath. The oath, for purposes of classification, may be best defined as an asseveration made under superhuman penalty, such penalty being (as in the ordeal) either magical or religious in its nature, or both combined. Here, then, we distinguish the oath from the mere declaration, or promise, or covenant, however formal. For example, the covenant by grasping hands is not in itself an oath, nor is even that wide-spread ancient ceremony of entering into a bond of brotherhood by the two parties mixing drops of their blood, or tasting each other's. This latter rite, though often called an oath, can under this definition be only reckoned as a solemn compact. But when a Galla of Abyssinia sits down over a pit covered over with a hide, imprecating that he may fall into a pit if he breaks his word, or when in our police-courts we make a Chinaman swear by taking an earthen saucer and breaking it on the rail in front of the witness-box, signifying, as the interpreter then puts it in words, "If you do not tell the truth, your soul will be cracked like this saucer," we have here two full oaths, of which the penalty, magical or religious, is shown in pantomime before us. By-the-way, the English judges who authorized this last sensational ceremony must have believed that they were calling on a Chinaman to take a judicial oath after the manner of his own country; but they acted under a mistake, for in fact the Chinese use no oaths at all in their law-courts. Now, we have to distinguish these real oaths from mere asseverations, in which emphatic terms, or descriptive gestures, are introduced merely for the purpose of showing the strength of resolve in the declarer's mind. Where, then, does the difference lie between the two? It is to be found in the incurring of supernatural penalty. There would be no difficulty at all in clearing up the question, were it not that theologians have set up a distinction between oaths of imprecation and oaths of witness. Such subtilties, however, looked at from a practical point of view, are seen to be casuistic cobwebs which a touch of the rough broom of common-sense will sweep away. The practical question is this: does the swearer mean that by going through the ceremony he brings on himself, if he breaks faith, some special magic harm, or divine displeasure and punishment? If so, the oath is practically imprecatory; if not, it is futile, wanting the very sanction which gives it legal value. It does not matter whether the imprecation is stated or only implied. When a Bedouin picks up a straw, and swears by him who made it grow and wither, there is no need to accompany this with a homily on the fate of the perjured. This reticence is so usual in the world, that as often as not we have to go outside the actual formula and ceremony to learn what their full intention is.
Let us now examine some typical forms of oath. The rude natives of New Guinea swear by the sun, or by a certain mountain, or by a weapon, that the sun may burn them, or the mountain crush them, or the weapon wound them, if they lie. The even ruder savages of the Brazilian forests, to confirm their words, raise the hand over the head or thrust it into their hair, or they will touch the points of their weapons. These two accounts of savage ceremony introduce us to customs well known to nations of higher culture. The raising of the hand toward the sky seems to mean here what it does elsewhere. It is in gesture calling on the heaven-god to smite the perjurer with his thunderbolt. The touching of the head, again, carries its meaning among these Brazilians almost as plainly as in Africa, where we find men swearing by their heads or limbs, in the belief that they would wither if forsworn; or, as when among the Old Prussians a man would lay his right hand on his own neck, and his left on the holy oak, saying, "May Perkun (the thunder-god) destroy me!" As to swearing by weapons, another graphic instance of its original meaning comes from Aracan, where the witness swearing to speak the truth takes in his hand a musket, a sword, a spear, a tiger's tusk, a crocodile's tooth, and a thunderbolt (that is, of course, a stone celt). The oath by the weapon not only lasted on through classic ages, but remained so common in Christendom that it was expressly forbidden by a synod; even in the seventeenth century, to swear on the sword (like Hamlet's friends in the ghost-scene) was still a legal oath in Holstein. As for the holding up the hand to invoke the personal divine shy, the successor of this primitive gesture remains to this day among the chief acts in the solemn oaths of European nations.
It could scarcely be shown more clearly with what childlike imagination the savage conceives that a symbolic action, such as touching his head or his spear, will somehow pass into reality. In connection with this group of oaths, we can carry yet a step further the illustration of the way men's minds work in this primitive stage of association of ideas. One of the accounts from New Guinea is that the swearer, holding up an arrow, calls on Heaven to punish him if he lies; but by turning the arrow the other way the oath can be neutralized. This is magic all over. What one symbol can do, the reverse symbol can undo. True to the laws of primitive magical reasoning, uncultured men elsewhere still carry on the symbolic reversal of their oaths. An Abyssinian chief, who had sworn an oath he disliked, has been seen to scrape it off his tongue and spit it out. There are still places in Germany where the false witness reckons to escape the spiritual consequences of perjury by crooking one finger, to make it, I suppose, not a straight but a crooked oath, or he puts his left hand to his side to neutralize what the right hand is doing. Here is the idea of our "over the left;" but so far as I know this has come down with us to mere schoolboy's shuffling.
It has just been noticed that the arsenal of deadly weapons by which the natives of Aracan swear, includes a tiger's tusk and a crocodile's tooth. This leads us to a group of instructive rites belonging to Central and North Asia. Probably to this day there may be seen in Russian law-courts in Siberia the oath on the bear's head. When an Ostiak is to be sworn a bear's head is brought into court, and the man makes believe to bite at it, calling on the bear to devour him in like manner if he does not tell the truth. Now, the meaning of this act goes beyond magic and into religion, for we are here in the region of bear-worship, among people who believe that this wise and divine beast knows what goes on, and will come and punish them. Nor need one wonder at this, for the idea that the bear will hear and come if called on is familiar to German mythology. I was interested to find it still in survival in Switzerland a few years ago, when a peasant-woman, whom a mischievous little English boy had irritated beyond endurance, pronounced the ancient awful imprecation on him, "The bear take thee!" (der Bär nimm dich!) Among the hill-tribes of India a tiger's skin is sworn on in the same sense as the bear's head among the Ostiaks. Rivers, again, which to the savage and barbarian are intelligent and personal divinities, are sworn by in strong belief that their waters will punish him who takes their name in vain. We can understand why Homeric heroes swore by the rivers, when we hear still among Hindoos how the sacred Ganges will take vengeance sure and terrible on the children of the perjurer. It is with the same personification, the same fear of impending chastisement from the outraged deity, that savage and barbaric men have sworn by sky or sun. Thus the Huron Indian would say in making solemn promise, "Heaven hears what we do this day!" and the Tunguz, brandishing a knife before the sun, would say, "If I lie, may the sun plunge sickness into my entrails like this knife." We have but to rise one stage higher in religious ideas to reach the type of the famous Roman oaths by Jupiter, the heaven-god. He who swore held in his hand a stone, praying that, if he knowingly deceived, others might be safe in their countries and laws, their holy places and their tombs, but he alone might be cast out, as this stone now—and he flung it from him. Even more impressive was the great treaty-oath, where the pater patratus, holding the sacred flint that symbolized the thunderbolt, called. on Jove that if by public counsel or wicked fraud the Romans should break the treaty first—"In that day, O Jove, smite thou the Roman people as I here to-day shall smite this swine, and smite the heavier as thou art the stronger!" So saying, he slew the victim with the sacred stone.
These various examples may be taken as showing the nature and meaning of such oaths as belong to the lower stages of civilization. Their binding power is that of curses, that the perjurer may be visited by mishap, disease, death. But at a higher stage of culture, where the gods are ceasing to be divine natural objects like the Tiber or Ganges, or the sun or sky, but are passing into the glorified human or heroic stage, like Apollo or Venus, there comes into view a milder kind of oath, where the man enters into fealty with the god, whom he asks to favor or preserve him on condition of his keeping troth. Thus, while the proceeding is still an oath with a penalty, this penalty now lies in the perjurer's forfeiting the divine favor. To this milder form, which we may conveniently call the "oath of conditional favor," belong such' classic phrases as "So may the gods love me!" (Ita me Dii ament!), "As I wish the gods to be propitious to me!" (Ita mihi Deos velim propitios). I call attention to this class of oaths, of which we shall presently meet with a remarkable example nearer home. We have now to take into consideration a movement of far larger scope.
Returning to the great first-mentioned class of savage and barbaric oaths, sworn by gestures or weapons, or by invocation of divine beasts, or rivers, or greater Nature-deities— the question now to be asked is, What is the nature of the penalties? It is, that the perjurer may be withered by disease, wounded, drowned, smitten by the thunderbolt, etc., all these being temporal, visible punishments. The state of belief to which the whole class belong is that explicitly described among the natives of the Tonga Islands, where oaths were received on the declared ground that the gods would punish the false-swearer here on earth. A name is wanted to denote this class of oaths, belonging especially to the lower culture; let us call them "mundane oaths." Now, it is at a point above the savage level in culture that the thought first comes in of the perjurer being punished in a world beyond the grave. This was a conception familiar to the Egyptians in their remotely ancient civilization. It was at home among the old Homeric Greeks, as when Agamemnon, swearing his mighty oaths, calls to witness, not only Father Zeus, and the all-seeing sun, and the rivers, and earth, but also the Erinnys who down below chastise the souls of the dead, whosoever shall have been forsworn. Not less plainly is it written in the ancient Hindoo "Laws of Manu"—"A man of understanding shall swear no false oath even in a trifling matter, for he who swears a false oath goes hereafter and here to destruction." To this higher stage of culture, then, belongs the introduction of the new "post-mundane" element into oaths. For ages afterward nations might still use either kind, or combine them by adding the penalty after death to that in life. But in the later course of history there comes plainly into view a tendency to subordinate the old mundane oath, and at last to suppress it altogether. How this came to pass is plain on the face of the matter. It was simply the result of accumulated experience. The continual comparison of opinions with facts could not but force observant minds to admit that a man might swear falsely on sword's edge or spear's point, and yet die with a whole skin; that bears and tigers were not to be depended on to choose perjurers for their victims, and that in fact the correspondence between the imprecation and the event was not real, but only ideal. How judgment by real results thus shaped itself in men's minds we may see by the way it came to public utterance in classic times, nowhere put more cogently than in the famous dialogue in the "Clouds" of Aristophanes. The old farmer Strepsiades asks, " Whence comes the blazing thunderbolt that Zeus hurls at the perjured?" "You fool," replies the Socrates of the play, "you smack of old Kronos's times—if Zeus smote perjurers, wouldn't he have been down on those awful fellows Simon, and Kleonymos, and Theoros? Why, what Zeus does with his bolt is to smite his own temple, and the heights of Sunium, and the tall oaks! Do you mean to say that an oak-tree can commit perjury?" What is said here in chaff full many a reasonable man in the old days must have said to himself in the soberest earnest, and, once said or thought, but one result could come of it—the result which history shows us did come. The venue of the judicial oath was gradually changed, till the later kind, with its penalties transferred from earth to the region of departed souls, remained practically in possession of the field.
As a point in the science of culture, which has hitherto been scarcely if at all observed, I am anxious to call attention to the historical stratification of judicial oaths, from the lowest stratum of mundane oaths belonging to savage or barbaric times, to the highest stratum of post-mundane oaths such as obtain among modern civilized nations. Roughly, the development in the course of ages may be expressed in the following two classifications:
Though these two series only partly coincide in history, they so far fit that the judicial oaths of the lower culture belong to the class of mundane curse, while those of the higher culture in general belong to that of post-mundane judgment. Anthropologically, this is the most special new view I have here to bring forward. It forms part of a wider generalization, belonging at once to the science of morals and the science of religion. But, rather than open out the subject into this too wide field, we may do well to fix it in our minds by tracing a curious historical point in the legal customs of our own country. Every one knows that the modes of administering a judicial oath in Scotland and in England are not the same. In Scotland, where the witness holds up his hand toward heaven, and swears to tell the truth as he shall answer to God at the day of judgment, we have before us the most explicit possible example of a post-mundane oath framed on Christian lines. In contrasting this with the English judicial oath, we first notice that our acted ceremony consists commonly in taking a New Testament in the hand and kissing it. Thus, unlike the Scotch oath, the English oath is sworn on a halidome (Anglo-Saxon, háligdōm; German, heiligthum), a holy or sacred object. Many writers have fallen into confusion about this word, mystifying it into sacred judgment or "holy doom;" but it is a perfectly straightforward term for a sanctuary or relic, as "On tham haligdome swerian"—to swear by the relic. Now, this custom of swearing on a halidome belongs to far pre-Christian antiquity, one famous example being when Hannibal, then a lad of nine years old, was brought by his father to the altar and made to swear, by touching the sacred things (tactis sacris), that when he grew up he would be the enemy of Rome. In classical antiquity the sacred objects were especially the images and altars of the gods, as it is put in a scene in Plautus, "Touch this altar of Venus!" The man answers, "I touch it," and then he is sworn. When this ancient rite came into use in early Christian England, the object touched might be the altar itself, or a relic-shrine like that which Harold is touching with his right fore-finger in the famous scene in the Bayeux tapestry, or it might be a missal, or a book of the gospels. In modern England a copy of the New Testament has become the recognized halidome on which oaths are taken, and the practice of kissing it has almost supplanted the older and more general custom of touching it with the hand.
Next, our attention must be called to the remarkable formula in which (in England, not in Scotland) the invocation of the Deity is made, "So help me God!" or "So help you God!" Many a modern Englishman puzzles over this obscure form of words. "When the question is asked what the meaning of the oath is, the official interpretation practically comes to saying that it means the same as the Scotch oath. But neither by act nor word does it convey this meaning. So obvious is the discrepancy between what is considered to be meant and what is actually done and said, that Paley, remarking on the different forms of swearing in different countries, does not scruple to say that they are "in no country in the world, I believe, worse contrived either to convey the meaning, or impress the obligation of an oath, than in our own."
This remark of Paley's aptly illustrates a principle of the science of culture which cannot be too strongly impressed on the minds of all who study the institutions of their own or any other age. People often talk of mystic formulas and mystic ceremonies. But, the more we study civilization in its earlier stages, the more we shall find that formulas and ceremonies, both in law and in religion, are as purposeful and business-like as can be, if only we get at them anywhere near their origin. What happens afterward is this, that, while men's thoughts and wants gradually change, the old phrases and ceremonies are kept up by natural conservatism, so that they become less and less appropriate, and then, as their meaning falls away, its place is apt to be filled up with mystery. Applying this principle to the English oath formula, we ask what and where it originally was. It was Teutonic-Scandinavian, for, though corresponding formulas are known in Latin (Ita me adjuvet Deus) and in Old French (Ce m'ait Diex, etc.), these are shown by their comparatively recent dates to be mere translations of the Germanic originals. Now, although ancient English and German records fail to give the early history of the phrase, this want is fortunately supplied by a document preserved in Iceland. Some while after the settlement of the island by the Northmen, but long before their conversion to Christianity, the settlers felt the urgent need of a code of laws, and accordingly Ulfliot went to Norway for three years to Thorleif the Wise, who imparted to him his legal lore. Ulfliot went to Norway a. d. 925, so that the form of judicial oath he authorized, and which was at a later time put on record in the Icelandic Landnâmabôk, may be taken as good and old in Norse law. Its pre-Christian character is, indeed, obvious from its tenor. The halidome on which it was sworn was a metal arm-ring, which was kept by the godhi or priest, who reddened it with the blood of the ox sacrificed, and the swearer touching it said, in words that are still half English: "Name I to witness that I take oath by the ring, lawoath, so help me Frey, and Niördh, and almighty Thor (hialpi mer svâ Freyr, ok Niördhr, ok hinn almâttki Âss) as I shall this suit follow or defend, or witness bear or verdict or doom, as I wit rightest and soothest and most lawfully," etc. Here, then, we have the full and intelligible formula which must very nearly represent that of which we keep a mutilated fragment in our English oath. So close is the connection, that two of the gods referred to, Frey and Thor (who is described as the almighty god), are the old English gods whose names we commemorate in Friday and Thursday. The formula belongs, with the classic ones lately spoken of, to the class of oaths of conditional favor, "so help me as I shall do rightly," while Frey and Niördh are gods whom a Norse warrior would ask for earthly help, but who would scarcely concern themselves with his soul after death. It is likely that the swearer was not indeed unmindful of what the skalds sang of Naströnd, the strand of corpses, that loathly house arched of the bodies of huge serpents, whose heads, turned inward, dripped venom on the perjurers and murderers within. But the primary formula is, as I have said, that of the oath of conditional favor, not of judgment. With the constituents of the modern English oath now fairly before us, we see that its incoherence, as usual in such cases, has an historical interpretation. What English law has done is to transplant from archaic fetich-worship the ceremony of the halidome or consecrated object, and to combine with this one-half of a pre-Christian formula of conditional favor, without the second half which made sense of it. Considering that to this combination is attached a theological interpretation which is neither implied in act nor word, we cannot wonder if in the popular mind a certain amount of obscurity, not to say mystery, surrounds the whole transaction. Nevertheless, we may well deprecate any attempt to patch up into Scotch distinctness and consistency the old formula, which will probably last untouched so long as judicial oaths shall remain in use in England.
Being in the midst of this subject, it may not be amiss to say a few words upon old and new ideas as to the administration of oaths to little children. The Canon Law expressly forbade the exacting of an oath from children under fourteen—pueri ante annos XIV non cogantur jurare. This prohibition is derived from yet earlier law. The rough old Norsemen would not take oaths from children, as comes out so quaintly in the saga of Baldur, where the goddess made all the beasts and birds and trees swear they would not harm him, but the little mistletoe only she craved no oath from, for she thought it was too young. Admitting the necessity of taking children's evidence somehow, the question is how best to do it. In England it must be done on oath, and for this end there has arisen a custom in our courts of putting the child through an inquisition as to the theological consequences of perjury, so as usually to extract from it a well-known definition which the stiffest theologian will not stand to for a moment if put straight to him, but which is looked upon as a proper means for binding the conscience of a little child. Moreover, children in decent families learn to answer plain questions some years before they learn to swear, and material evidence is often lost by the child not having been taught beforehand the proper answers to make when questioned as to the nature of an oath. I heard of a case only lately, which was expected to lead to a committal on a charge of murder, and where an important point rested on the evidence of a young lad who was, to all appearance, truthful, but who did not satisfy the bench that he understood the nature of an oath. Those in whom the ceremony of swearing a child arouses the feeling of physical repugnance that it does in myself, may learn with interest a fact as yet little known in England, and which sufficiently justifies my bringing forward the subject. Hearing that there was something to be learned from Germany, I applied to the eminent jurist, Dr. Gneist, of Berlin, and hear from him that under the new German rules of procedure, which are expected shortly to come into force, the evidence of children under sixteen may be received without oath, at the discretion of the judge. In these days there is a simple rule which an Englishman will do well to act up to, and that is, "Don't be beaten by a German!" Let us live in the heartiest fellowship with the Germans, and never let them get ahead of us if we can help it. In this matter of children's legal evidence, they are fairly leaving us behind, by introducing a plan which is at once more humane and more effective than ours.
If, now, looking at the subject as one of practical sociology, we consider what place the legal oath has filled in savage, barbaric, and civilized life, we must adjudge to it altogether higher value than to the ordeal. At certain stages of culture it has been one of the great forces of society. There was a time when Lycurgus could tell the men of Athens that the oath was the very bond that held the democracy together. There was a time when, as Montesquieu insists, an oath was so binding on the minds of the Romans, that for its observance they would do more than even patriotism or love of glory could draw them to. In our own day, its practical binding power is unmistakable over the consciences of a numerous intermediate class of witnesses, those who are neither truthful nor quite reckless, who are without the honesty which makes a good man's oath superfluous, who will indeed lie solemnly and circumstantially, but are somewhat restrained from perjury by the fear of being, as the old English saying has it, "once forsworn, ever forlorn." Though the hold thus given is far weaker than is popularly fancied, it has from time to time led
legislators to use oaths, not merely in special and solemn matters, but as means of securing honesty in the details of public business. When this has been done, the consequences to public morals have been disastrous. There is no need to hunt up ancient or foreign proofs of this, seeing how conspicuous an instance is the state of England early in the present century, while it was still, as a contemporary writer called it, "a land of oaths," and the professional perjurer plied a thriving trade. A single illustration will suffice, taken from the valuable treatise on Oaths, published in 1834, by the Rev. James Endell Tyler: "During the continuance of the former system of custom-house oaths, there were houses of resort where persons were always to be found ready at a moment's warning to take any oath required; the signal of the business for which they were needed was this inquiry, 'Any damned soul here?'" Nowadays this enormous excess of public oaths has been much cut down, and with the best results. Yet it must be evident to students of sociology that the world will not stop short at this point. The wider question is coming into view, What effect is produced on the every-day standard of truthfulness by the doctrine that fraudulent lying is in itself a minor offense, but is converted into an awful crime by the addition of a ceremony and a formula? It is an easily-stated problem in moral arithmetic; on the credit side, Government is able to tighten with an extra screw the consciences of a shaky class of witnesses and public officers; on the debit side, the current value of a man's word is correspondingly depreciated through the whole range of public and private business. As a mere sober student of social causes and effects, following along history the tendencies of opinion, I cannot doubt for a moment how the public mind must act on this problem. I simply predict that where the judicial ordeal is already gone, there the judicial oath will sooner or later follow. Not only do symptoms of the coming change appear from year to year, but its greatest determining cause is unfolding itself day by day before observant eyes, a sight such as neither we nor our fathers ever saw before.
How has it come to pass that the sense of the sanctity of intellectual truth, and the craving after its full and free possession, are so mastering the modern educated mind? This is not a mystery hard to unravel. Can any fail to see how in these latter years the methods of scientific thought have come forth from the laboratory and the museum to claim their powers over the whole range of history and philosophy, of politics and morals? Truth in thought is fast spreading its wide waves through the outside world. Of intellectual truthfulness, truthfulness in word and act is the outward manifestation. In all modern philosophy there is no principle more fertile than the doctrine so plainly set forth by Herbert Spencer—that truth means bringing our minds into accurate matching with the realities in and around us; so that both intellectual and moral truth are bound up together in that vast process of evolution whereby man is gradually brought into fuller harmony with the universe he inhabits. There need, then, be no fear that the falling away of such artificial crutches as those whose history I have here been tracing should leave public truth maimed and halting. Upheld by the perfect fitting of the inner mind to the outer world, the progress of truth will be firmer and more majestic than in the ancient days. If, in time to come, the grand old disputation before King Darius were to be reënacted, to decide again the question, "What is the strongest of all things?" it would be said, as then, that "Truth abides, and is strong for evermore, living and conquering from age to age." And the people as of old would say again with one voice, "Truth is great, and prevails!"—Advance-sheets of Macmillan's Magazine.
- Two illustrative cases are given me by a friend learned in the law. In court lately, a little girl was asked the usual preliminary question as to the consequence of swearing falsely, and answered in due form, "Please, sir, I should go to burning hell!" Unluckily, however, the unusual question was then put, how she knew that? which brought the reply, "Oh, please, another girl outside told me I was to say so!" It is bar tradition, though there may be no record in print, that years ago the most sarcastic of English judges put the whole matter in a nutshell. The question having been asked of a child witness, if she knew what would become of her when she died, she answered simply, "Don't know, sir!" whereupon the judge said, "Well, gentlemen, no more do I know—but the child's evidence cannot be taken."
- Esdras iv. 41: μεγάλη ἠ ὰλήθεια, και ὕπερισχύει—Magnus est veritas, et pranalet.