POPULAR LEGAL FALLACIES.[1]
BY AN EXPERIENCED PRACTITIONER.
KISSING THE BOOK.
Perjury is a crime which strikes at the very root of the administration of justice; for if no reliable evidence could be obtained, it would be impossible to enforce by means of legal proceedings the rights of those who had been wronged, or to settle in a satisfactory manner the thousands of disputes which come yearly before the various courts. And yet, we fear that this pernicious practice is more common than is generally supposed. Our opinion is that nineteen persons out of every twenty who will tell an untruth will swear to it as a truth—that is to say, looking at the matter from the moral standpoint alone. The fear of punishment has a deterring effect upon some; but the offence is one which is very difficult of detection if well managed. If two or three persons swear to a consistent story, and an equal, or even a greater, number contradict their evidence on oath, who is to decide which set of witnesses are to be believed, and which are to be prosecuted for perjury? The punishment on conviction may be any term of penal servitude not exceeding seven years, or imprisonment, with hard labour, for a term not exceeding two years; and some people are afraid of risking this—in which fear lies the principal practical advantage of administering an oath to a witness before he gives evidence in court.
Some persons have a variety of ingenious but vain expedients which they hope will enable them to lie in the witness-box with impunity; and while gratifying their personal spite, or earning the wages of falsehood, to evade the pains and penalties attendant upon the practice of perjury, and the object of this paper is to show how futile the supposed precautions are, and in what consists the essence of the oath, and the violation of it which will render the offender liable to punishment for the perjury committed by him.
The form of taking the oath varies in different nations; but in all, the essence of the ceremony is the adjuration addressed to a superior Power to attest the truth of what the witness is going to assert. The witness who thought that if he told a lie after having taken the oath, all the jurymen would be sent to everlasting perdition, was an extreme illustration of the misconceptions which exist on this subject. Most people know that the invocation of the Almighty—‘So help me God’—is one the consequences of which are intended to be personal to themselves. But they dishonour their Maker if they try to escape from the consequences by a trick.
The form of oath varies according to the circumstances and purpose in and for which it is taken. The manner of administration to a Christian witness south of the Border is the same. The witness takes the Holy Gospels in his right hand, and after the form of oath has been read over to him, he reverently kisses the book; that is to say, he is supposed to kiss the book; but some persons will, instead of the book, kiss their own thumb, or avoid contact between their lips and the book by holding it at an imperceptible distance. This is a very common, perhaps the most common, mode of attempted evasion. But another is often attempted, which is more easy of detection—that is to say, keeping on the glove, in order that the hand and book may not become actually in contact with each other. It may appear unnecessary to say that these devices are both equally unavailing for the purpose intended.[2] The essence of the oath lies in the reverent assent to the appeal to the Almighty and omniscient God. The witness must at least pretend to assent to the formulary read over to him, and if he does this, he is sworn to all intents and purposes. As the oath is complete in its religious sense, so also is its legal effect the same whether the hand and the lips actually touch the cover of the book or not. It has long been the practice to insist upon the witness holding the book in his or her right hand; but this is by some writers held to be wrong, inasmuch as the left hand is supposed to be nearer to the heart, and would receive a more bountiful portion of the blood which is the life, were not its natural advantages counterbalanced by the effects of daily labour; therefore, it is contended by them that the left hand ought to be used in holding the book, when the oath is taken.
Hebrews are sworn upon the Old Testament, and the witness puts on his hat before taking the oath; while a Christian invariably uncovers his head for the purpose. A Chinaman breaks a saucer, the idea being somewhat similar to our oath—that is to say, he thereby devotes his soul to destruction if his testimony should be untrue. A Brahmin swears with his hand upon the head of one of the bulls devoted to his deity. A West African kills a bird; while his sovereign immolates a few human beings from among his subjects. And other nations have equally distinct methods of attesting their intention to speak ‘the truth, the whole truth, and nothing but the truth.’
UNDERWEIGHT AND OVERWEIGHT.
Formerly, farmers sold butter by customary pounds, some giving eighteen ounces for a pound, and some twenty ounces; and numerous other articles were sold by similar local weights. This is now illegal. By the Weights and Measures Act, 1878, all customary and local weights were abolished. As these weights of many irregular kinds had been largely used, various trades were much exercised by their abolition, and evasions have been frequent, and are not altogether unknown even now. By the Act of Parliament referred to, the imperial standard pound is the unit of weight from which all others are to be calculated: one-sixteenth part of a pound is an ounce; one-sixteenth part of such ounce is a dram; and one seven-thousandth part of the pound is a grain avoirdupois. A stone consists of fourteen pounds; a hundredweight of eight such stones; and a ton of twenty such hundredweights. Any person who sells by any denomination of weight other than one of the imperial weights, or some multiple or part thereof, is liable to a fine not exceeding forty shillings for every such sale, with the following exceptions: gold, silver, platinum, diamonds, and other precious metals and stones, may be sold by the ounce troy or by any decimal parts of such ounce, which is defined as containing avoirdupois four hundred and eighty grains; and drugs when sold by retail, may be sold by apothecaries’ weight. It is also enacted that a contract or dealing is not to be invalid or open to objection on the ground that the weights expressed or referred to therein are weights of the metric system, or on the ground that decimal subdivisions of imperial weights, whether metric or otherwise, are used in such contract or dealing. Any person who prints, and any clerk of a market or other person who makes any return, price-list, price-current, or any journal or other paper containing price-list or price-current in which the denomination of weights quoted or referred to denotes or implies any other than the standard weights, is liable to a fine not exceeding ten shillings for every such paper. And every person who uses or has in his possession for use in his trade a weight which is not of the denomination of some Board of Trade standard, is liable to a fine not exceeding five pounds, or in the case of a second offence, ten pounds; and the weight is liable to be forfeited.