Ir an unlearned person, using that term in the sense of the ancient lawyers, were to walk into a complete law library, and survey the interminable rows of bulky tomes, the long files of law-calf, shading off from the venerable grey of four centuries ago to the bright clear binding which encompasses the reports of last year, he might well ask with amazement how the laws relating to one little country could possibly have expanded to so extravagant an extent. The mystery might be a little cleared up, if he were aware that in truth he saw before him three or four different systems of law, varied according to the varying requirements of three or four different ages of the world, yet attempted, by refining, repealing, and amending, to be deduced the one from the other, so that as each was laid on the shelf, it was professedly reverenced in principle, while supplanted in practice. But he would not be much enlightened by more particular information as to what was contained within those covers, old and new. Disquisitions, cases, and commentaries without end, on suffering recoveries and springing uses, villains in gros and docking entails; writs innumerable as the stars of heaven, and almost as little understood; writs of latitat, formedon, quare impedit, ne admittas, and pluries capias; together with capias in withernam* and mainprize, de odio et atia, and de homine replegiando. Tenures without end, and which pass human understanding. Tenures in frank almoign and éscuage, grand sergeantry and petit sergeantry, castle guard and cornage, burgage, villainage and socage; besides which knight's service and divine service, and then "Service in the General." Pleadings, which seem more comprehensive than human wrongs themselves. Foreign pleas and pleas in bar, hors de son fee, with profert and demanding oyer, puis darrein con

tinuance, uncore prist, auterfois acquit and auterfois attaint, general issues and special innumerable. In all, let us say briefly, there are two millions and a half of rules and principles in the law of England. And then the Statute Law! Accumulating from that time whereof the memory of man runneth not counter, and Parliament working away at high pressure power for the last two centuries, piling Ossa on Pelion, Statutes enacting, then explaining, then extending, then amending the extending, and afterwards repealing the amending. As to which, being on a legal subject, let us cite an authority. Lord Thurlow, the greatest of law bullies, having on a certain occasion confidently laid down the law from the woolsack, was contradicted by a noble peer, who insisted that the Chancellor had made a mistake. Thurlow bid the interrupter to sit down, and was proceeding according to his usual fashion to rate him soundly for the liberty he had taken, when his opponent quietly produced the Act which directly contradicted the Chancellor's proposition. That high functionary listened with a lowering countenance to the recital of the section, and then drawing back a step or two, gave the desk near him an impressive thump, and exclaimed emphatically, "Dn the Act of Parliament! I knew I was right by the Common Law; but as for the Acts of Parliament, the devil himself could not remember them all."

To attempt to exhume all the venerable relies of the old law would be to undertake a hopeless task; but yet, topics of interest present themselves in those four centuries of legislation and law reports. It is not to be supposed that the old formulas and theories are senseless and unmeaning, because they sound absurd in our ears now-a-days. The child's jacket looks a very foolish garment, if attempted to be stretched on the

full-grown man; but yet it is very suitable for the child. England, however, has long ago discarded the skimp, worn-out vesture of the old Common Law. The leaven of ancient legal principles is being rapidly worked away from our judicial system. The quaint old rules, the exact science, which was preserved in all branches at any cost to justice in individual cases, the scholastic reasoning, the veneration for precedent, are all being swept away before the advance of cheap, rapid, timely, we may add, sensible law. Before the ancient theories are "quite abolished and expire," it may not be out of place from time to time to consider them in our pages in a popular way, With much that was harsh and crabbed, there was also in them much that was noble and just; and, through ages of universal ignorance and oppression, they preserved and main tained some principles which deserve to be rescued from oblivion.

But where shall we begin? How shall we attempt

"The secrets of the hoary deep?" Shall it be the old pleading, or ancient tenures, or the early criminal law? Preliminary, probably, to any of these comes the Judicial Oath. It lies at the foundation of the laws and constitution of England. The King and the constable, the judge and the witness, the bishop and the curate, professional men of every class, and all responsible office-bearers, act under the sanction of the oath. Graduates in Universities are pledged on the Book to disown the sovereignty in England of the Stuarts and the Pope. In tax offices, in police offices, in sessions courts, in all the purlieus of the great law courts, oaths are being incessantly proffered and taken. Do you launch into a Chancery suit to recover £100,000? You must verify your facts on oath. Do you summon an omnibus conductor? You must swear precisely to the three halfpence he has extorted from you. That abuse has crept into the use of the formula is certain. Hence the agitation which has been raised from time to time, and only quite recently repeated, for its abolition. It may not then be uninteresting to glance at the origin of the oath, its history in English jurisprudence, and the

reasons which appear to justify its use.

The origin of oath-taking is painfully plain. Men had not been long together before they discovered at once the necessity they were under of trusting to the statements and promises of one another, and the strong tendency to mendacity and breach of faith which was natural to man. They soon endeavoured to awe human nature into honesty, by invoking the supervision of some superior power on statements made, or contracts entered into. In rude, early times, the object invoked varied with the fancy and superstition of the oath-takers; but the essence of the oath has ever remained the same; namely, an invocation of some superior influence to bind the swearer to veracity or good faith. The earliest mention of a judicial oath is to be found in Leviticus, vi. 3:-"Or, have found that which was lost, and lieth concerning it, and sweareth falsely.

Again, in Exodus, xxii. 10 and 11"If a man deliver unto his neighbour an ass or an ox, to keep, and it die, or be hurt, no man seeing it; then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbour's goods."

In the oath administered by Abraham to his servant, we have an example of that extra-judicial swearing which has been, and is, common to every rude nation. It was the habit of the Jews, Egyptians, Greeks, and Romans, as it is that of all modern nations and peoples, to swear a number of conversational oaths, many of which, in the old time, were free from that irreverence which is the peculiar characteristic of colloquial swearing now. To swear by some part of the body, the head, the beard, the right arm, by some particular and appropriate deity, by some favourite animal, or any object of the speaker's admiration, were common invocations. The symbol of the early Roman civil oath was a flint-stone. The military oath, the sacramentum, at first taken voluntarily, was on the standards 3; by which the warrior swore never to desert his ranks, or prove false to his companions. The innumerable formulas for oath-taking, practised at different times, in different countries, were long to tell; but, in all, there is

a reference to some object held in respect by the swearer.

In the true form of oath the important point is the invocation of the Deity. If there be not that distinct invocation, there is no oath. This principle, ever part of our law, was illustrated in the prosecution of the Earl of Macclesfield for malversation. The managers for the impeachment had averred in their articles of accusation, that the Earl, by selling offices in his court, had broken the oath which he yearly took, as a Privy Councillor, under 12 Richard II. That statute runs thus:

"Item.--It is accorded that the chancellor, treasurer, keeper of the privy seal, steward of the King's house, &c., &c., shall be firmly sworn, that they shall not ordain or name justices of peace, sheriffs, &c., &c., nor any other officer or minister of the King, for any gift or brocage, favour, or affection; nor that none which pursueth by him or any other, privily or openly, to be in any manner of office shall be put in the same office or in any other."

But the noble defendant replied, that he never took an oath to that effect, as all that passed at the annual meeting of the Privy Council to choose sheriffs was, that this old Act was read, and then all present kissed the Bible, but no mention was made of the Deity, and so there was no oath. This was rather a disreputable plea for a Lord Chancellor to set up, but it was good, at least, in law.

Though oath-taking was introduced into England as early as A.D. 600, it was not till a much later period that the swearing of witnesses was considered an essential preliminary to their giving testimony. On the contrary, there was, for a long time, an indisposition among the lawyers to allow witnesses to be sworn at all, if they were called as evidence against the King. Hawkins tells us, that there was a constant immemorial practice not to suffer witnesses to be sworn for the prisoner in capital cases, adding, that the "Judges were always tender of departing from the settled practice of their predecessors, and generally choose rather to presume it originally founded on some statute or other good foundation than to suffer the reasonableness to be nicely inquired into, which might lead to endless uncertainties."

This early practice is curiously

illustrated in the report of the trial of Sir N. Throgmorton, for high treason, in the reign of Queen Mary.

Sir Nicholas seems to have been a brave and even a testy defendant. He fought his case with great skill and courage, exhorting the judges not to be in a hurry to dine, but to patiently listen to his arguments. The Attorney-General pressed him with the confession of one Vaughan, by whom he was implicated, and he at once objected that Vaughan should be brought up to the court to give his testimony before them all. This was done, and then the report thus proceeds:

"Sendall (Clerk of the Crown).— How say you, Cuthbert Vaughan, is this your own confession, and will you abide by all that is here written? Vaughan.-' Let me see it and I will tell you.' Then his confession was showed to him. Attorney-General. Because you of the jury the better may credit him, I pray you, my lords, let Vaughan be sworn.' Then was Vaughan sworn on a book to say nothing but the truth."

Quite like this is the scene at Faithful's trial, in the "Pilgrim's Progress." The witnesses who appeared were asked, "if they knew the prisoner at the bar, and what they had to say for their Lord the King against him. Then stood forth Envy, and said to this effect :-My lord, I have known this man a long time, and will attest upon oath before this honourable bench, that he is

"Judge.-Hold; give him his

oath.'

66

So they sware him."

This is probably not meant as a satire on the professed impartiality of the judge, but to convey that when he found that Envy was hostile to the prisoner he hastened to invest his testimony with the sanction of the oath. Many illustrations might be given from the state trials to show how the oath gradually crept into the judicial system. We read that on the trial of the Duke of Norfolk, in 1571, the Queen's sergeant told the prisoner that the Bishop of Ross accused him, and that he did this

being examined without compulsion.' "Duke. He is a Scot.' Sergeant.-'A Scot is a Christian man."" The court, appearing to favour this theory of the sergeant's, the Duke next claimed that the Bishop should

be produced in court to give his testimony. And, a few years later, one Udall, being on his trial, refers to the alleged evidence of some person against him, and says, "My lord, I auswer it thus, denying it to be his; for if it be, why is he not present to verify it face to face, according to the lae Gradually the principles of justice became too strong for even time-serving judges. Every year after the reign of Elizabeth it became more and more the custom to take evidence in open court only, though, strangely enough, it was not till the first year of Queen Anne's reign that the statute was passed which finally abolished the old vicious theories of the lawyers. It enacted "that every person who shall appear as a witness on the behalf of the prisoner, shall first take an oath to depose the truth in such manner as witnesses for the Queen are by law obliged to do."

Now that we trace the oath in open court into our jurisprudence, it is time to inquire more precisely into the history of the formula. There can be no doubt that in early times the only oath recognised by the courts in England was that taken by a Christian super sacrosanctis evangelis. All the very old authorities the venerable writers from whose crude, simple, and often unintelligible dieta, black letter lawyers love to spin out the principles of our present jurisprudence-Fleta, Bracton, Britton, Fortescue-all speak of the oath as taken, and only taken, according to a Christian formula. Fleta, who wrote more than 500 years ago, says: "Juramentum est affirmatio vel negatio de aliquo attestatione sacrae rei firmata." According to Bracton, the oath concluded: "Sie ne Deus adjuvet et haec sanctae Dei evangelia and a statute of Henry the Eighth's reign directs certain oaths to be taken "upon the holy Evangelists." Finally, we come to the authority of that great expounder of the law, my Lord Coke.

All hail to old Coke That narrowminded, yet vigorous-minded pedant, whose writings display a marvellous combination of clearness of intellect with a deficiency of thinking power. Mankind have probably never seen his precise parallel. His mind was like an ordinary diamond-clear, in certain points of aspect-bright, even

flashing-pointed, polished, small. Beyond the law he never went, unless to refer to the Gospel, or to commit an outrage on some quotation from Virgil by mangling and twisting it to finish off one of his sentences. Science, history, philosophy, polite literature, he scorned as not pertaining unto the law. Bacon, he probably in his heart regarded as an ill-read, unsound man, who was always flitting away from his professional studies. Shakespeare, we are convinced, he never read, nor, had he done so, could he have understood the broad philosophy, exquisite sympathy with human nature, and inimitable felicity of style, which stands out in every page. The story of the old lawyer who, abstractedly, trying to read Macbeth, and coming on the exclamation of the witches, “A deed without a name," involuntarily exclaimed Hum, no good-void,” would certainly be quite true, applied to Coke, if he ever had read Macbeth. There lived the old legal monk among his black-letter tomes, burrowing away with great vigour through authorities on teinures, and demises, aml uses, and remainders, but never able to come out and face the broad expanse and clear light of nature. His disposition was like his mind, harsh and crabbed, yet forcible, and always regulated by the principles of reason, such as they were, which he understood and regarded. If "the book Rich. II., c. 9," said that a man should be hanged for winking with the right eye, Coke would have most complaisantly and conscientiously sentenced an offender to be executed. according to law. But if the book: said that a man who winked with the eyes should be hanged, Coke would probably rather have been strung up himself than allow the one-eye wink ing man to be convicted; for he would” have reasoned “It doth appear that the law contemplateth the simultaneous winking of the two eyes which. naturally belong unto a man, et in" favorem vite, the winking of one eye shall not be intended to come within the book. For the law willeth not that a man should die unless he hath certainly offended against the King's statute; and though id certum est quod certum reddi potest, yet here it cannot be shown that the law meaneth one eye, except in the case of a

man who hath but one eye; as to which, aliter, for there reason, which is the soul of the law, does direct us unto a different intendment."

Such was Coke. Our digression may prepare the reader for the passage which follows. He resolutely lays down, that none but a Christian can take an oath. As for the "infidel Jews," as he is never tired of calling them, he ranks them with pagans in general. Of their cruel expulsion from England by Edward the First, he writes:- "And thus this noble king banished for ever these infidel, usurious Jews.' The reasoning by which he concludes that infidels are incapable of taking an oath is well worth extracting. It is contained in Calvin's case, of which he says:-

"This case was as elaborately, substantially, and judicially argued by the Lord Chancellor and by my brethren the Judges,

as I ever read or heard of any, and so, in

mine opinion, the weight and consequence of the case, both in praesenti et in perpetuis futuris temporibus, justly is deserved."

Then come his views about infidels. "All infidels are in law perpetui inimici, perpetual enemies, for the law presumeth not that they will be converted, that being remota potentia, a remote possibility; for between them, as with the devils, whose subjects they be, and the Christians there is perpetual hostility, and can be no peace. For, as the Apostle saith, 2 Cor., v. 15, Quae conventio Christi cum Belial? Quae pars fideli cum infideli? Infideles sunt Christi et Christianorum inimici.' And

herewith agreeth the book in 18 Hen. VIII., fol. 4, where it is holden that a pagan cannot maintain any action at all."

But this nonsense. was too absurd to last against the growing intelligence of the age. Jews were admitted with the tacit consent of the law yers; and if heathen witnesses were not for some time formally recognised, it was only because in the infancy of commerce the question never presented itself in practice. At last the point was fairly raised in "Omchund v. Barker," in 1774, when Sir E. Coke's principles were fearlessly exposed and denounced. The question arose in a Chancery suit, for the purposes of which some Gentoo witnesses had been examined under a commission in India. It appeared that they avowed belief in a Supreme Being and a future state, but yet were mere

idolaters. The then Solicitor-General, the accomplished and large-minded Murray, afterwards Lord Mansfield delivered an argument for the reception of the evidence worthy of that reputation which it seems probable will long escape the oblivion to which the just sense of mankind speedily consigns mere lawyers. The counsel on the other side, in extensive and painfully learned disquisitions, cited all the old authorities, particularly dwelling on Coke; and in answer to them the Attorney-General, Sir Dudley Rider, one of the forgotten lawyers, cited the cases of Abraham and Jacob, who it appeared from Genesis, took oaths with the heathen infidels Abimelech and Laban. Mr. Atkyns, the leading counsel who argued against the reception of the evidence, assured the Court that the Indian natives were, in accordance to the most authentic accounts published of that part of the world, a degraded race of men, and he insisted that the ceremony of kissing the Brahmin's foot, by which they swore, was a mean prostration, and that the law of England never contemplated a recognition of the sanction of idolaters' rites. A century before this reasoning might have prevailed, but it was out of date now. The judges, in very sensible, philosophical judg ments, declared that according to the principles of our law, any one who had the idea of a Supreme Being in his mind, and who believed that He would punish perjury, could take an oath according to whatever rite he thought proper. Chief-Justice Willes indignantly says of Coke's dicta :-"This notion, though advanced by so great a man, is, I think, contrary not only to the scripture, but to common sense and common humanity. And I think that even the devils themselves, whose subjects, he says, the heathens are, cannot have worse principles, and besides the irreligion of it, it is a most impolitic notion, and would at once destroy all that trade and commerce from which this nation derives such benefits."

This case has settled the Common Law of England on the subject. Parliament has frequently passed statutes since, granting relief to certain classes of persons who objected to the usual form of legal oath; but Lord Brougham has always insisted that such legislation was unnecessary, as