I am slow coming to this thread. I did some research on oaths in
connection with the mysterious disappearance of "so help me God" in testimonial
oaths administered during the Democrat interregnum on the Senate Judiciary
Committee, after Jim Jeffords left the Republican Caucus. With Pat Leahy
at the helm, I observed that witnesses were not being asked to give an oath
which invoked Divine assistance (the "so help me God" oath).
Was this a deliberate omission? Was this an excited, inexperienced
Senator's accidental omission? Did it mean anything? These were the
questions I was pursuing.
In a humorous vein, the Law Committee of the Parliament of Victoria, in
Australia, prepared a report on oaths and multicultural society, included an
anecdote about a clerk asking a magistrate if it would be a problem that
testimonial oaths for two previous weeks of court were administered on the
Shorter Oxford Dictionary, the courtroom Bible having disappeared.
In the process of my research, I did find older materials that run
alongside the answer to your question.
Thomas Aquinas wrote on the invocation of Divine assistance in swearing an
oath, among other things concluding that to do so was permissible, was subject
to becoming habitual and the source of abuse, and was, in its essence, a
religious act. (Question 89 in Aquinas' Treatise on Prudence and
Justice). Aquinas' discussion is important because it lays out an early
available theological justification for the employment of religious oaths in
juridical proceedings.
John Locke, in his Letter on Toleration, adverts to the subject but does
not take the matter on directly. In the letter he explains why it is that
atheists cannot be relied upon in establishing truth or determining sincere
commitments to duty:
"Lastly, those are not at all to be tolerated who deny the being
of a God. Promises, covenants, and oaths, which are the bonds of human
society, can have no hold upon an atheist. The taking away of God, though but
even in thought, dissolves all; besides also, those that by their atheism
undermine and destroy all religion, can have no pretence of religion whereupon
to challenge the privilege of a toleration. As for other practical opinions,
though not absolutely free from all error, yet if they do not tend to establish
domination over others, or civil impunity to the church in which they are
taught, there can be no reason why they should not be tolerated."
Blackstone explained the practice (apparently well-established) of judicial
oaths invoking Divinity:
"The belief of a future state of rewards and punishments, the entertaining
just ideas of the main attributes of the Supreme Being, and a firm persuasion
that He superintends and will finally compensate every action in human life (all
which are revealed in the doctrines of our Savior, Christ), these are the grand
foundations of all judicial oaths, which call God to witness the truth of those
facts which perhaps may be only known to Him and the party attesting; all moral
evidences, therefore, all confidence in human veracity, must be weakened by
apostasy, and overthrown by total infidelity."
The Fundamental Orders of Connecticut include the text of an oath to be
taken by magistrates that concludes with an invocation of divine aid: "and
that I will maintain all the lawful priviledges thereof according to my
understanding, as also assist in the execution of all such wholesome laws as are
made or shall be made by lawful authority here established, and will further the
execution of Justice for the time aforesaid according to the righteous rule of
God's word; so help me God, in the name of the Lord Jesus Christ."
Other examples also exist (God forbid that I suggest peeking at Rector,
Holy Trinity Church v. US for sources?).
During Washington's time, immigrants arriving into Pennsylvania from abroad
undertook an oath of loyalty and fealty to the British Crown and of abjuration
of the Pope, which in some ways might be likened to an oath of office (the
office of resident?). That oath, the text of which appears at
http://www.docheritage.state.pa.us/documents/oathsfidelitytrans.asp ,
omits any invocation of divine assistance.
Subsequent in time to Washington's oath, Daniel Webster expressed a view
quite similar to Locke's:
"In no case is a man allowed to be a witness [in court] that has no belief
in future rewards and punishments for virtues or vices, nor ought he to
be. We hold life, liberty and property in this country upon a system of
oaths; oaths founded on a religious belief of some sort . . . . Our system
of oaths in all our courts, by which we hold liberty and property, and all our
rights, is founded on or rests on Christianity and a religious belief."
Jim Henderson
Senior Counsel
ACLJ
