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able offence, as at present, to give wilfully false evidence in a court of justice. The witness might be called on to declare that he gives his evidence deliberately, and with a full conviction of its truth: but this declaration ought not to be made on any book or outward symbol; in which case we should have all the superstition and the unmeaning, if not mischievous, formality of the corporal oath. We confess that it is utterly inconceivable to us how Mr. Tyler, who has written so sensibly on the entire subject of judicial oaths, should have expressed such sentiments as are contained in the following passage. Speaking of the form of administering an oath used in the Scotch courts, he says:
"The witness lifts up his hand, and the judge himself administers the oath to him; this last circumstance probably constitutes its greater solemnity; for I can conceive that our outward form, if observed with more reverence, and as it used to be, is at least equally impressive with the Scotch practice. This will not indeed be the case so long as the crier of the court thrusts hurriedly and unceremoniously a diminutive volume taken from his waistcoat pocket, into the hand of the witness, and hastens it as unceremoniously to his mouth; but were the witness to lay his hand upon a Bible, in size and character something like the Holy book which he sees in the church, or one which he reads in his own home1; and were the witness then to bend down and reverently kiss the book, as it lies upon the desk before him, I conceive that our form would be equally solemn with that of lifting up the hand." p. 188.
We profess ourselves quite unable to understand why a large Bible is more likely to bind the conscience than a small one; or why a man who would forswear himself after having lifted a Bible in small print to his mouth, would tell the truth if he kissed a Bible in large print on a desk. It would perhaps have been desirable that Mr. Tyler should have explained in what consists the virtue of touching the Bible at all: for even if an oath is administered, it manifestly can derive no conceivable force from any bodily motion of the swearer. Even if the use of oaths is retained, we should be glad to see this ceremony abolished, as tending only to foster
1 We believe that an oath is usually administered not on the Bible, but on the New Testament, or even the Gospels alone. Why is the Old Testament excluded!
VOL. XII. X
superstitious fancies, and to make ignorant people think that the essence of an oath resides in its outward symbol. The extent to which this error prevails is shown in the practice of kissing the thumb, instead of the book, or in not kissing the book at all: as if the obligation to tell the truth could be removed by evading such an empty formality. A not less absurd instance of this superstition is mentioned by Mr. Tyler after Heineccius, who says that priests swore in courts of justice by laying their hands upon their breast; and that this privilege (still retained in Spain and some Italian states) was granted to them, because they were supposed to have the word of God written in their hearts. (Tyler, p. 161.) As if the word of God was physically written on priests' hearts; or even supposing that it was, as if a priest's obligation to tell the truth could be increased by his touching a written copy of the Bible! The following is another instance of an abuse of the corporal oath mentioned by Mr. Tyler. "In most foreign countries, before the French revolution, the form of an oath was to put the hand upon the Gospels. But as the book was not always at hand, and as the occasion for it was very frequent, the practice was introduced of causing the person to touch a scrap of paper instead of the Gospels, as if it were a copy of the Gospels. Hence in old deeds the formula is often to be met with, " tactis Ike. ut" or " tactis &c. quasi," that is, having laid his hand upon paper, as if it were a copy of the Gospels. This led to a lamentable increase of perjury. The custom is still prevalent in many parts of Italy, as Piedmont, the Roman states, Modena, &c." (p. 182.)
The best course with regard to oaths would in our opinion be to abolish them altogether, substituting in their place, if necessary, a declaration, by which all levity or hastiness of statement would be avoided, and a person would be reminded of his moral and religious duty to speak the truth: and retaining the legal punishment for false evidence, in all cases where it is now applicable for perjury. In this manner all office oaths, which produce so abundant a harvest of perjury, without (as we believe) affording a shadow of protection to the community, would be got rid of: and the only valuable part of the judicial oath, viz., its making the witness liable to punishment for perjury, would be retained. If this change should be thought too sudden and sweeping, it would at least be desirable to remove the imprecatory form, to substitute a declaration expressing the true spirit of an oath, and to abolish the symbolical ceremony of a corporal contact with the Bible.
We copy the following paragraph from the Examiner of 7th September, 1834.
"A poor Irish woman appeared here the other day to complain of a most brutal assault upon her by her husband. She was in an advanced state of pregnancy. She refused, however, to take any oath until after her confinement; if she did, there would be no comfort for her in this world again. Mr. Broderip pointed out, at great length, the absurdity of the notion which the prosecutrix, in common with many of her countrywomen, entertained, that it was offensive in the eyes of Heaven to take an oath while they were enceintes. He assured her that ladies if the first consequence never objtcted to take the oath when similarly circumstanced, and he could not take her testimony unless she was sworn. This seems to have prevailed; and, after her evidence, Mr. Broderip felt it to be his duty to commit the prisoner for trial for the capital offence of wounding his wife with intent to murder her."
We understand that the prejudice here described prevails among women of the poorer classes in Ireland generally, and is not confined to the time of pregnancy, though at that time they probably imagine that they are in a more precarious state, aud therefore more likely to iuffer from the supposed ill effects of an oath. It does not, however, appear that their dislike of an oath is founded on any definite reason, though they sometimes carry it so far as to refuse to swear to their own property: and the origin of this superstition in Ireland is not (as we are informed) known even to persons of research.
AET. II.—LIFE OF LORD MACCLESFIELD.
History, it has been often said, teaches no less by her warnings than by her examples. Fortunately for our country, the time has long been past when she had cause to fear the taint of judicial corruption poisoning the pure sources of justice, or the solicitations of personal ambition or aggrandizement casting their shadow over " the broad, pure, and open path" of the judges of England. Amid the multitudinous complaints of governmental and official abuses, and not least of the grievances inflicted by the law and its ministers, to which a thousand tongues and pens are daily giving currency, no voice is heard to breathe a whisper of imputation against the unblemished purity of the judicial ermine. While the ascendancy of public opinion excludes from the high places of the profession those among its members whose character or practice would have dishonoured it; while the responsibility to public opinion—were no higher principle in action—secures the exercise of an unswerving integrity in those who have attained them,—the warning to be derived from the life of a
Bacon or a Macclesfield can find no application. But though this is happily the case, the spectacle of great talents and a noble mind, overpowered by the temptations of a venal age, and betrayed to reproach and uselessness, will scarcely be viewed with the less interest, because we may fear no longer to fall into the same condemnation.
Thomas Parker, Earl of Macclesfield, was born on the 23rd of July, 1666, at the town of Leek in Staffordshire, where his father, of the same name, was a practising attorney. He was descended from a junior branch of an ancient and respectable family, which had originally borne the name of Le Parker, traced its descent as far back at least as the reign of Richard II.,1 and had at one period enjoyed a considerable estate in the counties of Stafford and Derby. Of his early years or course of education we have no further account than that he was sent at the usual age to perfect his studies at Trinity College, Cambridge; which, however, if we may trust the accuracy of the "Graduati Cantabrigienses," he quitted without taking any degree. A copy of adulatory verses, addressed to him when Lord Chancellor by the poetlaureate Eusden, (who was himself a fellow of Trinity,) would lead us to infer, if poetical evidence commanded implicit credit, that he was not a little distinguished as a university student: "Prophetic Granta, with a mother's joy, Saw greatness omened in the manly boy, Who madest thy studies thy beloved concern, Nor could she teach so fast as thou could'st learn. Still absent thee our groves and Muses mourn, Still sighing echoes the sad sound return, And Cam with tears supplies his streaming urn." That he was designed from an early age for the bar is manifest from the period of his admission to the Inner Temple,— 14th February, 1683, when he was not yet seventeen. Hutton, in his History of Derby, affirms that he practised for some years in that town as an attorney, and finally ceased to reside there only on his appointment to the chief-justiceship; a story disproved at once by the date of his call to the bar, as it appears on the records of the same Inn—24th May, 1691; not many months after the expiration of the required
'We find the name of Le Parker among the gentry who volunteered to accompany Edward I., when Prince of Wales, to the Holy Land, in 1270.—Ejcerpta Historica, p. 271.
term of studentship. It is most probable that he settled there in the outset as a provincial counsel; a personage so much less frequent in those days than at present, that the worthy antiquary may well be excused for his misconception. He proceeds to describe to us, with laudable preciseness, the dwelling occupied by our lawyer in the good town of Derby: "in Bridge-gate, at the foot of the bridge, in the house next the Three Crowns." On the Midland Circuit, which Mr. Parker chose as the first field of his professional labours, his local connexions speedily introduced him to business; nor was it very long before his reputation both as a lawyer and an advocate became so high as to advance him to leading practice; such, indeed, were his powers of persuasive oratory, as to procure for him the appellation of the silver-tongued counsel. It is not however until the first year of Queen Anne's reign (1702), that the occurrence of his name in the Reports leads us to conclude that he had transferred the exercise of his talents and attainments to the more conspicuous arena of the metropolitan courts: after that period it is frequently to be found, and almost always in connexion with cases of some importance and extent; we may particularize, out of many, the elaborate legal defence of Tutchin, the obnoxious publisher of the Observator (1704), and the case of Kendall v. John (1707), an action brought by a candidate who was seated on petition, against the returning officer for a false return,—an experiment which doubtless grew out of the decision in the case of Ashby and White. At the period of the general election in 1705, when the Whig party, to which he had warmly attached himself, was almost universally successful, he had acquired sufficient local influence to be returned, in conjunction with a member of the Cavendish family, for the town of Derby, of which he had some years before been elected recorder; and for which he sat without interruption until his elevation to the bench five years afterwards. The government had^about the same time apparently discovered either his usefulness as a partizan or his claims as a lawyer; for in the month of June in the same year, he was at once called to the degree of the coif and appointed queen's Serjeant, and not long afterwards honoured with knighthood. What degree of reputation he acquired in parliament we have no means of judging from contemporary