To tell the truth

The form of oath

At this time of year when an innocent wish that someone else enjoy happy holidays can bring down the wrath of some folks, The Legal Genealogist was pleasantly surprised when poking around in court records to find evidence of a more tolerant approach to religion early on in America.

religionI came across it when leafing through a set of records from the Delaware Orphans’ Court — a court “founded ‘to inspect and take care of the Estates, Usage, and Employment of Orphans…That care may be taken for those, that are not able to take care for themselves.’ Subsequent legislation gave the court added responsibilities relating to the guardianship of minors, real estate left intestate, partition of real estate, adoptions, and appeals from register of wills decisions. The Orphans’ Court was abolished in 1970, and its responsibilities and functions were divided among the Court of Chancery, Superior Court, and Family Court.”1

The particular document I was looking at was an order to value the property of a minor to determine what its rental value was,2 and the pre-printed form called on the court to name freeholders from the county to set the value. And every one of the freeholders had to take an oath to perform his task faithfully.

Now think about that for a minute. We’ve all seen the television scenes and movie scenes. The witness or the official who’s taking an oath raises his left hand, puts his right hand on the Bible and swears to tell the truth or act faithfully or whatever it is he’s swearing to “so help me God.”

Right?

Except that’s not what the law required.

And certainly not what so many of our ancestors did — particularly not if they were Quakers or Moravians or Mennonites or Jews or Muslims or “Gentou” — an archaic term not defined in the legal dictionaries but meaning Hindu.

And in Delaware, in 1834, the law understood that it was different strokes for different folks. So the directions on this particular form outlined what the court was to do depending on the freeholders’ particular beliefs:

The person about to be sworn should, as a matter of decency, take his hat off, and be uncovered; a Friend, commonly called a Quaker, need not take his hat off, nor need he take his glove off, when he is affirmed, if he does not choose so to do.

If the person about to swear is a christian, he must lay his naked right hand upon the New Testament and keep it there while he swears, and when the words So help you God are pronounced, he must kiss the Testament.

If the person about to swear is a Jew, he must put his right hand on the Old Testament, and swear “by the true God, the Creator of all things, that you will faithfully and impartially,” &c. and he need not kiss the book — and the words on the Holy Evangels of Almighty God must be left out, and so help you God may be omitted.

If the person to be sworn is a Turk or Mahometan, he is to be sworn on the Koran.

If he is of the Gentou religion he must be sworn in the manner most usual and solemn among them. …3

The directions even intimated that there might be unbelievers in the community as well. But, the directions added: “If a person is a professed Atheist or Infidel, the Chancellor knows not what form of oath will bind him.”4

And, it turns out, Delaware was hardly alone in recognizing these differences. Virginia, as early as 1779, provided for oaths “according to the solemnity used by the church of which (a person) professed to be a member,” and by 1806 allowed a person to use “the solemnity and ceremony, and repeat the formulary, which, in his own opinion, ought to be observed.”5

English common law recognized that

With regard to the ceremony or form of administering an oath, that form is obviously the best which most clearly conveys the meaning of the oath, and most forcibly impremes its obligation. And since this is not an essential part of the oath, but entirely of human institution, and has varied in different times and countries, though the substance of the oath must be the same in all, it is obviously necessary to allow men to swear according to the peculiar ceremony of their religion, that is, in the manner which they consider binding on their conscience.

… Common sense requires, that witnesses should be allowed to swear in that particular form which they consider binding on their conscience. A Quaker affirms the truth of what he states. A Jew swears on the Pentateuch, with his head covered. A Gentoo touches with his hand the foot of a Brahmin. Mahometans are sworn on the Koran : and upon the same principle, all persons ought to be sworn according to the ceremonies of their peculiar religion. Whatever be the form, the meaning of the oath is the same.6

And by the middle of the 19th century, even the law dictionaries recognized that “(t)he oath … may be varied in any other form, in order to conform to the religious opinions of the person who takes it.”7

And so, I swear, happy holidays, folks, whatever you (or I) believe.


NOTE: One last time — have you voted yet? Today is the last day and The Legal Genealogist would love to get your vote in the American Bar Association Journal’s voting for the top legal blog in the niche category at this link. Read more about the ABA Blawg 100 here. Thank you!!


SOURCES

  1. Orphans’ Court,” Agency Histories, Delaware State Archives (http://archives.delaware.gov/ : accessed 19 Dec 2013).
  2. Kent County, Delaware, Orphans’ Court, Order to Value Rent, 25 Mar 1834, Estate of John Killen, deceased, 1834-46 #43; Delaware Public Archives, Dover; digital images, “Delaware Orphan Court Records, 1680-1978,” FamilySearch (https://familysearch.org : accessed 19 Dec 2013).
  3. Ibid., “Directions.”
  4. Ibid.
  5. William Waller Hening, “What Solemnities May Be Used Instead of Oaths,” The New Virginia Justice, 2d edition (Richmond : 1810), 409; digital images, Google Books (http://books.google.com : accessed 19 Dec 2013).
  6. Samuel March Phillips, A Treatise on the Law of Evidence, 4th American Edition (New York : Gould Banks & Co., 1839), vol. I: 22; digital images, Google Books (http://books.google.com : accessed 19 Dec 2013).
  7. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 19 Dec 2013), “oath.”
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14 Responses to To tell the truth

  1. Donna Brown says:

    Awesome. What a great exercise of common sense. I laughed out loud at ‘But, the directions added: “If a person is a professed Atheist or Infidel, the Chancellor knows not what form of oath will bind him.”4′ How cool it would be if today we could all live and work together with acceptance of the humanity we all share.

  2. Michael Pollock says:

    While I am unable to cite a statute codifying the same, it was common even in the colonial era in areas of Virginia where there were large Quaker communities to allow witnesses to wills, deed, bonds, etc., to “affirm” that they had seen the testator/grantor/etc. sign his/her signature, and likewise those giving testimony in a lawsuit or criminal trial that they were telling the truth in their accounts of what had happened.

  3. Candace Gray says:

    Judy, This week, in a small public library in Florida, I grabbed up _Thomas Jefferson’s Qur’an: Islam and the Founders by Denise Spellberg. Very appropos to your post, the preface and Indroduction lay the groundwork for yet another forgotten chapter in our teext books, constutution and basic history. In th fall I was in a constiutional semeinar that got me to thinking of religious tolerance. Jacob Henry from North Carolina was a worthwihile essay. I do not want to spoil it for anyone, but TJ does more with Cato than the Prophet in his eventual conclusions. Thanks for your post.

    • Candace
      Please be careful of how much you rely on the TJ Qur’an book. There is a lot of discussion on how accurately that book portrays Jefferson with respect to his thoughtson the Qur”an. One individual who has written on it is Edward Cline. He has a blog but right now I don’t remember the name. Probably a google of his name would get you to the blog.

    • Judy G. Russell says:

      Thanks for the kind words.

  4. I love it! How sad that we’ve regressed through the years.

  5. Kenneth H. Ryesky says:

    The Colony of New York did it in 1729.

    Laws of the Colony of New York, ch. 538 (12 July 1729), in 2 THE COLONIAL LAWS OF NEW YORK 513, 515 (Albany, James P. Lyon, State Printer, 1894) (General Assembly naturalized several persons, including Samuel Myer, David Hayes and Judah Hayes. The law specifically allowed them, and all future persons professing the Jewish religion to take an oath that omits the words “upon the true faith of a Christian.”).

    http://books.google.com/books?id=CKzhOgmvRWQC

  6. KAYTHEGARDENER says:

    The foregoing discussion applied only to males —
    Females were usually not considered of separate legal standing as qualified witnesses…The only time women in the English colonies seemed to state facts in court were in regard to their dower & curtsy rights, usually to confirm what male witnesses had already testified to be the situation…

    • Judy G. Russell says:

      Not so. By colonial times women were qualified witnesses and often testified in court, particularly in criminal cases.

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