received as though it were sworn to: and in all proceedings against an accused person who has run away, the evidence of witnesses, though not sworn, shall be altogether valid."

The tenth section of this reformed code, prescribes as a consequence of the preceding law, that, "instead of the warning which used to be previously given to the witness to say the truth being on his oath, the magistrate shall admonish him of the obligation, which by divine and human law every one is under, of not giving false evidence, or falsely concealing any thing; and shall dwell on the importance of such obligation. He shall also warn him that he is liable to be called upon to verify, by his oath, the evidence he is about to give.”

This is a far more considerate, wise, and humane course, than what is usually adopted in our country, whether in the previous proceedings or during trial, as far, at least, as my own observation and experience enable me to pronounce. The usual course with us is for the witness to be first sworn. The first words he hears are, "Take the Book;" and the first word he utters is a declaration of his own name upon oath. He is then examined, and not a word is ever said about the solemn obligation under which he lies, till either the cross-examining barrister would force him into a change of testimony, or the judge suspects that he is stating what is false. Then he is reminded

of "the solemn oath" he has taken; sometimes, indeed, he is cautioned on religious grounds by the judge; but much more frequently he has a more or less gentle hint from an advocate, that there is such a thing as an indictment for perjury. But this generally comes too late; the witness has pledged himself to the truth of an assertion, and the frail tendency of human nature will not allow him to retract. And the perjury which a solemn caution, such as the law of Tuscany prescribes, would have prevented, subsequent remonstrance, or threat, will only drive the unhappy witness to reiterate. I have myself more than once observed the good effect of a few words from the judge at first, "Now speak the truth, witness*."

This injunction of the Tuscan code reminds me of what once took place, and very probably more than once, in Westminster-Hall. It was at the trial of Edward Earl of Warwick, for the murder of Richard Coote, Esq., in the year 1699. There were many inconsistencies in our courts of law then, some of which have been since removed; others, I fear, still remain. The earl, however, was tried by his peers who were not upon oath, but he was charged by witnesses upon oath; whilst the witnesses whom he called for his defence were

* Perhaps such an address owes much of its effect to its being rare. If it were a constant form, perhaps it would be comparatively disregarded.

not allowed to be sworn*. The peers pronounced their judgment, each standing up in his place uncovered; and laying his right hand on his breast, each peer said, "Not guilty of murder, but guilty of manslaughter, upon my honour." When the first witness for the defence was called, the Lord High Steward thus addressed him; " Captain Keeting, you are not upon your oath, because the law will not allow it. In cases of this nature, the witnesses for the prisoner are not to be upon oath, but you are to consider that you speak in God's presence, who does require the truth should be testified in all causes before courts of judicature; and their Lordships do expect that, in what evidence you give here, you should speak with the same regard to truth as if you were upon oath."

I cannot help mentioning here a fact bearing

* It was only in the first year of the reign of Queen Anne, that it was provided by statute [1 Anne, ii. 9.] that in all cases, witnesses for the prisoner should be examined upon oath, in like manner as witnesses against him. Before the reign of Queen Mary, the prisoner was not allowed to call any witnesses for his exculpation. She gave a very humane and honourable injunction to Chief Justice Morgan, to hear whatever might be said in the defence of an accused person. But the prisoner's witnesses were still not examined upon oath, and therefore the jury gave less credit to them than to the witnesses for the prosecution, till the statute of Anne. The trial of the Earl of Warwick took place between the injunction of Mary and the statute of Anne.-See some excellent remarks of Blackstone, book iv., c. 27.

upon the point before us, communicated to me on the best authority. A solemn inquiry was lately conducted, under the Record Commission, by men of undoubted integrity, and talent, and learning, which not only affected the character of the individual concerned, but involved the forfeiture of a lucrative situation should the result of the investigation be unfavourable. The inquiry was carried on with the utmost anxiety to reach the truth, and (after, as I understood, grave deliberation,) it was conducted without the administration of a single oath. Each witness was admonished to speak with the same regard to truth, as if he were upon his oath. And the commissioners were fully satisfied that they had arrived with equal safety at the truth. But to return to the laws of Italy.

The eleventh section runs thus, "whenever either the culprit, or any other person, shall, by the direction of the magistrate, be obliged to give bail, neither the person bailed nor his bail shall take any oath. And, as well in this case, as in the case of a promise on oath (which was usually admitted instead of bail, and which we altogether abolish) the magistrate shall be satisfied with his promise under bond, &c."

Section 12. "We enact, that whenever it be lawful to put a person on oath, for any cause whatever, the judge or the magistrate before

administering it, shall warn the persons on the obligation which an oath carries with it, dwelling on its essence and importance; and, to make a greater impression, we abolish the form of simply causing a paper to be touched*, and we order that the oath shall be given before a crucifix; and if the person do not belong to the Church of Rome, then he shall be put upon his oath, after the aforesaid warning, according to the most respected and feared rule of his religion."

In the Austrian code of Joseph the Second (1782), we find the abolition of a curious oath in some of the universities. Before that time students and graduates were compelled to declare upon oath their belief in the immaculate conception of the Virgin Mary. The law runs thus: "Whereas the importance of an oath requires that it should be given only when it can be founded on the most certain truth, and where there is necessity for it,

* To understand this, we must remember, that in most foreign countries, before the French revolution, the form of 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 Gospel. Hence, in old deeds, the formula is often to be met with, "tactis &c., 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, such as Piedmont, the Roman States, Modena, &c.