Mr. Justice John deP. Wright
Superior Court of Justice
Why do judges, on their appointment to the bench, swear an oath seeking the
assistance of the Deity when promising to fulfill their judicial duties? Why do witnesses
swear an oath that they will tell the truth, the whole truth and nothing but the truth
before giving evidence in court proceedings?
Over the centuries, people have used many ways of trying to enlist divine assistance in
making judicial decisions. The oath is one of the last ways still being used. In primitive
times the guilt or innocence of an accused might be decided by one of the ordeals: the
ordeal by fire, the ordeal by water, the wager of battle. The accused might be forced to
run across hot coals or hold a hot iron. He might be tied up and thrown into a pond.
He might be forced to fight a battle against his accuser. If he came through the ordeal
unharmed, if his feet were unburned by the coals or if his hands were unburned by the
iron, if he floated in the pond and did not drown, or if he won the battle, then this was
considered God’s declaration that he was not guilty of the crime charged.
The casting of lots is another ancient way of inviting divine intervention in the affairs
of humans that is still used. Jurors are chosen by lot. Municipal councilors have been
chosen by the casting of lots when voting resulted in a tie.
Children settle arguments by drawing straws.
In primitive times oaths were not just used by people who were asking the courts to
accept their evidence. In primitive times oaths were also used by people who were
asking people to accept their word that they would fulfill their part of a bargain. In
those days contracts were unheard of. If a person did not do what he had promised to
do there was no way to sue him for damages. One relied upon his promise because he
had asked God to punish him if he did not comply.
There are still good reasons to insist that evidence be given under oath. There are still
those who might lie if their evidence was not under oath. There are those who are
more careful when giving their evidence under oath. The brief ceremony of
administering the oath impresses upon people the seriousness of the evidence they
will give. It signals to the witness that lying under oath might result in criminal charges
of perjury. It signals to those who will receive affidavits which are sworn to under oath
that special care was taken in their preparation.
While the evidence of children need not necessarily be given under oath their
evidence is taken more seriously if they swear to tell the truth. This is because a child
will not be allowed to testify under oath unless she is mature enough to understand
the meaning of an oath. She must understand the solemnity of the occasion, what it
means to tell the truth and the added responsibility to tell the truth over and above
such a duty as part of every-day conduct. She must appreciate what happens in both a
practical and moral sense when a lie is told in court.
Over the years children have given some interesting answers when asked if they knew
what would happen if they told a lie:
A child was being examined before she gave evidence.
"Do you know what happens to someone who lies in court?" asked the judge.
"Oh yes" replied the girl.
"What" said the judge
"They usually win their case" said the girl.
Judge:" Do you know what it means to tell the truth?"
Little boy: "Yeah"
Judge: "What happens if you tell lies?"
Little boy: "I get the blazes beaten out of me with the vacuum cleaner cord."
A judge who was a very distinguished looking gentleman with a small white “goatee"
was asking a little girl if she knew what an oath was and when the little girl answered
"an oath is a promise to God to tell the truth" the judge then looked down and asked
her, "and do you know who God is?" The little girl looked up at the impressive man in
the red sash and replied "you sir"?
No one is forced to take an oath in a form of which he disapproves. It is for the witness
to say what form of oath will bind his conscience. Some people swear upon a Bible,
others swear upon the holy book of another religion. Some prefer not to appeal to a
deity at all but to solemnly affirm that they will tell the truth.
Ontario Justice Education Network