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A Sacred Act of Worship

The Puritans sought to pattern civil law after Biblical Law. Therefore, for the Puritans, all oaths were "test oaths." These oaths were the foundation of Christian Government.

The Bible says that only men of the Faith can take any oath genuinely. A true oath is one that is made in the Presence and in the Name of God. The Westminster Confession of Faith (1647) says that swearing an oath is an act "of religious worship"[1] and "the Name of God only is that by which men ought to swear."[2]

This is why atheists were never allowed to testify in court: oaths were sacred, witnessing to the authority of God. How could an atheist take an oath? For an atheist, every man is his own god. Secular Humanism says "Man is the measure of all things." He never prays, "So help me, God." As a result, U.S. Supreme Court Justice Joseph Story observed, "infidels and pagans were banished from the halls of justice as unworthy of credit."![3]

A. A. Hodge, a well-known expositor of the theology of the Reformation and Professor at Princeton, wrote in 1869 about the requirements of God's Law:

It is evident that none who believe in the true God can, consistently with their integrity, swear by a false god. And it is no less evident that it is dishonest for an atheist to go through the form of swearing at all; or for an infidel to swear with his hand upon the Christian Scriptures, thereby professing to invoke a God in whose existence he does not believe.[4]

The Founding Fathers took oaths this seriously; they would not permit an atheist to take one. Oaths were sacred, witnessing to the authority of God; how could an atheist take an oath?

John Locke believed in freedom for all Christian denominations. But Locke did not believe the civil magistrate should tolerate atheists. The constitution he drafted for Carolina did not allow atheists to hold office. And in his Essay on Toleration (1685), he specifically exempted the atheist from the civil protection of toleration:

Lastly, those are not all to be tolerated who deny the being of 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 toleration.[5]

The French journalist Alexis de Tocqueville came to America and published his observations in the famous book Democracy in America. He observed the following during his travels through the states:

While I was in America, a witness, who happened to be called at the assizes of the county of Chester (state of New York), declared that he did not believe in the existence of God or in the immortality of the soul. The judge refused to admit his evidence, on the ground that the witness had destroyed beforehand all the confidence of the court in what he was about to say. The newspapers related the fact without any further comment. The New York Spectator of August 23d, 1831, relates the fact in the following terms:

The court of common pleas of Chester county (New York), a few days since rejected a witness who declared his disbelief in the existence of God. The presiding judge remarked, that he had not before been aware that there was a man living who did not believe in the existence of God; that this belief constituted the sanction of all testimony in a court of justice: and that he knew of no cause in a Christian country, where a witness had been permitted to testify without such belief.[6]

The Constitution did not require God to be stripped from the law. Atheism has been imposed on the legal system by Secular Humanists. One such Humanist, in an article which advocates one last purging of religion from the law, has noted some of the restrictions on atheists which existed long after the Constitution was ratified.[7]

Oaths to God to assume public office and in judicial proceedings were inherited from England . . . . Anyone who wanted to assume public office in England or to testify in a court proceeding was required to do so in the presence of Almighty God, according to the teachings of the Holy Evangelists, and to kiss the Bible.[156] According to one English scholar, the purpose of the oath was to provide the "highest possible security which men in general can give for the truth of their statements."[157]

Although the oath of office specified in the Constitution does not include a reference to God,[158] Presidents have appealed to the deity in their oaths since the inauguration of George Washington.[159] When President Washington completed his constitutional oath of office, his hand placed on a Masonic Bible, he added, spontaneously, "I swear, so help me God" and then kissed the Bible.[160] It is most likely that Washington borrowed this practice from the English coronation ceremony, where the new King would kneel at the altar, place his hands on the Bible, swear the oath, and then kiss the Bible.[161] Every President in modern times has sworn his oath "so help me God."[162] President Bill Clinton and Vice President Al Gore followed this tradition when they were sworn into office on January 20, 1993.[163]

Similarly, under English common law, no one but a believer in God and in a future state of rewards and punishments could serve on a jury or testify as a witness. The oath was taken on a Christian Bible, in effect disqualifying non-Christians.[164] The English courtroom was quite explicit as to the consequences of perjury while under oath:

I charge thee, therefore, as thou will answer it to the Great God, the judge of all the earth, that thou do not dare to waver one tittle from the truth, upon any account or pretense whatsoever; . . . for that God of Heaven may justly strike thee into eternal flames and make thee drop into the bottomless lake of fire and brimstone, if thou offer to deviate the least from the truth and nothing but the truth.[165]

This is the courtroom atmosphere America inherited.[166] Consequently, in certain places in early America the privilege of serving as a witness or on a jury was expressly restricted to Christians.[167] It is, therefore, not surprising that the South Carolina Supreme Court is reported to have noted in 1848 that

"[i]n the courts over which we preside, we daily acknowledge Christianity as the most solemn part of our administration. A Christian witness, having no religious scruples against placing his hand upon the Book, is sworn upon the holy Evangelists -- the books of the New Testament, which testify of our Savior's birth, life, death and resurrection; this is so common a matter that it is little thought of as an evidence of the part which Christianity has in the common law."[168]

In 1828, the Connecticut Supreme Court "ruled that disbelievers in accountability to God or in an afterlife were not competent witnesses."[169] Indeed, as late as 1939, five states and the District of Columbia excluded the testimony of those professing a disbelief in God, and, in a dozen or so additional states, the testimony of nonbelievers was subject to attack on the ground that one's credibility was impaired by irreligion or a lack of belief in a deity.[170] Oaths on the Bible are still standard fare in American courtrooms today; witnesses, grand jurors, prospective petit jurors, and interpreters are all asked to swear to tell the truth, "so help me God."[171]

What the Founding Fathers believed about "infidels."

"Offenses Against God and Religion," William Blackstone (1765). Showing the common understanding that the integrity of the judicial system depends upon the participants' belief in God.

What Would John Jay Say Today?

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1. The Westminster Confession of Faith, ch. xxii.i., cf. The Larger Catechism, Q. 108.  [Back to text]

2. Ibid., ch. xxii.ii; cf. Larger Catechism Q. 108. (one of "the duties required in the second commandment," citing "Deut. vi. 13. Thou shalt fear the Lord thy God, and serve him, and shalt swear by his name." (Emphasis in Catechism)).  [Back to text]

3. in William W. Story, ed., Life and Letters of Joseph Story (Boston: Little & Brown, 1851) vol. II, pp. 8-9. Cited in David Barton, Original Intent (Aledo, TX: Wallbuilders, 1996) p. 38. "Credit," means here "trust" (from the Latin, credo," I believe").  [Return to text]

4. A.A. Hodge, The Confession of Faith, 287 (1869 [1978]). Hodge was a professor at Princeton, 1877-86.  [Back to text]

5.John Locke, Treatise of Civil Government and A Letter Concerning Toleration, Chas. Sherman ed., (NY: Appleton-Century, 1937) pp. 212-13.  [Back to text]

6. A. de Tocqueville, 1 The Republic of the United States of America and Its Political Institutions, Reviewed and Examined, 12 (H. Reeves, trans., 1851). Cited in D. Barton, Myth of Separation, p. 81-82.  [Back to text]

7. Steven B. Epstein, "Rethinking the Constitutionality of Ceremonial Deism," 96 Columbia Law Review 2083, 2110-12 (1996).  [Back to text]

Prof. Epstein's Notes

156. See [Anson Phelps] Stokes & [Leo] Pfeffer, [Church and State in the United States (1964)] at 489.  [Back to text]

157. Richard Whitcombe, An Enquiry into Some of the Rules of Evidence Relating to the Incompetency of Witnesses 38-39 (1824)  [Back to text]

158. See U.S. Const. art. II, 1, cl. 8 (presidential oath); U.S. Const. art. VI, cl. 3 (federal officers). These provisions do, however, require Presidents to "swear (or affirm)" the specified oath and state that officers "shall be bound by oath or affirmation," the former in each instance implying appeal to the divinity. Id.; U.S. Const. art II, 1, cl. 8.  [Back to text]

159. Carl H. Esbeck, A Restatement of the Supreme Court's Law of Religious Freedom: Coherence, Conflict, or Chaos?, 70 Notre Dame L. Rev. 581, 604 n.83 (1995) (noting the practice of taking the Presidential oath of office with the added "so help me God" was started by George Washington).  [Back to text]

160. [Martin Jay] Medhurst, ["God Bless the President": The Rhetoric of Inaugural Prayer (1980) (unpublished Ph.D. dissertation, Pennsylvania State University) (on file with the Pennsylvania State University Library).] at 62.  [Back to text]

161. See id.  [Back to text]

162. See 83 Cong. Rec. 316 (1937); 87 Cong. Rec. 189 (1941); 91 Cong. Rec. 364 (1945); 95 Cong. Rec. 477 (1949); 99 Cong. Rec. 451 (1953); 103 Cong. Rec. 805 (1957); 107 Cong. Rec. 1012 (1961); 111 Cong. Rec. 985 (1965); 115 Cong. Rec. 1290 (1969); 119 Cong. Rec. 1659 (1973); 123 Cong. Rec. 1862 (1977); 127 Cong. Rec. 541 (1981); 131 Cong. Rec. 631 (1985); 135 Cong. Rec. S68 (daily ed. Jan 20, 1989); 139 Cong. Rec. S56 (daily ed. Jan 20, 1993).  [Back to text]

163. See 139 Cong. Rec. S55-56 (daily ed. Jan 20, 1993) (chronicling President Clinton and Vice President Gore swearing their oaths).  [Back to text]

164. See Stokes & Pfeffer, supra note [156] at 489.  [Back to text]

165. Lady Lisle's Trial, 11 How. St. Tr. 298, 325 (1685), quoted in 6 John H. Wigmore, Evidence in Trials at Common Law 1816, at 383 (James J. Chadbourne ed., 1976).  [Back to text]

166. Indeed, President Washington emphasized the religious nature of the oath in his farewell address: "Let it simply be asked, where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in Courts of Justice?" Note, A Reconsideration of the Sworn Testimony Requirement: Securing Truth in the Twentieth Century, 75 Mich. L. Rev. 1681, 1686 n.23 (1977) (citing V. Paltsits, Washington's Farewell Address 151 (1935)). An early American court description of the purpose of the oath follows:

The purpose of the oath is not to call the attention of God to the witness, but the attention of the witness to god; not to call upon Him to punish the false-swearer, but on the witness to remember that He will assuredly do so. By thus laying hold of the conscience of the witness, and appealing to his sense of accountability, the law best insures the utterance of truth.

Clinton v. State, 33 Ohio St. 27, 33 (1877).  [Back to text]

167. See Stokes & Pfeffer, supra note [156], at 489.  [Back to text]

168. [Morton] Borden, [Jews, Turks, and Infidels (1984)], at 114; see also O'Reilly v. People, 86 N.Y. 154, 157-58 (1881):

Some form of an oath has always been required, . . . and the sanctions of religion add their solemn and binding force to the act . . . . While these sanctions have grown elastic, and gradually accommodated themselves to differences of creed, and varieties of beliefs, . . . yet through all changes and under all forms the religious element has not been utterly destroyed.

(citation omitted) (emphasis added).  [Back to text]

169. Stokes & Pfeffer, supra note [156], at 489.  [Back to text]

170. See id. at 490. It is interesting to note that in 1901, the United States Supreme Court upheld a federal statute requiring that the testimony of Chinese witnesses, in some cases, be corroborated by white men due to "'loose notions entertained by [Chinese] witnesses of the obligation of an oath.'" Li Sing v. United States, 180 U.S. 486, 494 (1901) (quoting Chae Chan Ping v. United States, 130 U.S. 581, 598 (1889)) (citation omitted).  [Back to text]

171. See Federal Judicial Center, Forms of Oaths for Use in the United States District Courts 2 (1976); United States District Court for the Eastern District of North Carolina forms (on file with the Columbia Law Review) [hereinafter E.D.N.C. Oaths]. The religious purpose of the oath is still manifest. See Society of Separationists v. Herman, 939 F.2d. 1207, 1221 (5th Cir. 1991) (Garwood, J,. dissenting) (asserting that the Constitution recognizes an oath, unlike an affirmation, to be a religious test); Lackey v. Mesa Petroleum Co., 559 P.2d. 1192, 1193 (N.M. Ct. App. 1976) ("An oath is an appeal by a person to God, to witness the truth of what he declares."); 6 Wigmore, supra note 165, 1816, at 382 (recognizing that the purpose of the oath is to remind a witness "strongly of the divine punishment somewhere in store for false swearing").  [Back to text]

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