Crawford County IL Archives Court.....Gill, Vs. Caldwell 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 10:45 pm

Source: Reports Of Cases Illinois
Written: 1819-31

DECEMBER TERM, 1822.


Thomas Gill, Appellant, v. James Caldwell, Appellee. 

APPEAL from Crawford.

Swearing a witness by an uplifted hand, is a legal swearing, independent of 
the statute.

Oaths are to be administered to all persons according to their opinions, and 
as it must affects their consciences.

Opinion of the Court by Chief Justice Reynolds. This was an action of slander 
commenced by the plaintiff here, against the defendant, in the court below for 
charging him with swearing false in a certain judicial proceeding before one 
Thomas Kennedy, a justice of the peace.

The declaration avers that said Gill "was sworn regularly and legally by the 
said justice, and then and there took his corporal oath." From the bill of 
exceptions taken in the cause, it appears that on the trial below, the justice 
of the peace, Kennedy, testified, "that there was before him the trial 
mentioned in the declaration, that he administered to said Gill what he 
conceived to be an oath, that Gill swore by an uplifted hand, that no bible 
was used, and that Gill was not asked how he took his oath." The defendant's 
counsel then moved to exclude the testimony of Kennedy, it not proving a legal 
oath administered, nor such an one as would support the averment in the 
declaration, which motion the court below sustained, and excluded the 
testimony, and this we are called upon to correct. If the said (Gill was sworn 
by an uplifted hand, it surely can not be said to be a departure from the 
declaration; the only question to be settled is, is it that kind of oath which 
the law recognizes? The pure principle of common law is, that oaths are to be 
administered to all persons according to their own opinions, and as it most 
affects their consciences.

This certianly is the best test of truth, and it was upon this ground the 
legislature enacted the statute which is supposed to govern this case. By 
their act of 1807, after authorizing oaths by uplifted hands, they declare 
that oaths "so taken by persons who conscientiously refuse to take an oath in 
the common form, shall be deemed and taken in law to have the same effect with 
an oath taken in the common form." We conceive that the man who swears by an 
uplifted hand, elects to do so, and the ceremony of refusing to swear upon the 
testament, or in the usual form, is perfectly idle. The statute does not vary 
the common law in this respect, and we conceive that the oath taken as set out 
in the bill of exceptions is valid, legal, and comports with the averments in 
the declaration. The judgment below must therefore be reversed, the plaintiff 
recover his costs, and the cause remanded for new proceedings to be had not 
inconsistent with this opinion. (a) (1)

Judgment reversed.

------------------
(a) By the common law, every witness is sworn according to the form which he 
holds to be the most solemn, and which is sanctified by the usage of the 
country or the sect to which he belongs. It was formerly doubted whether the 
oath must not be taken on the Old or New Testament, but it is now settled that 
it need not. 1 Wilson, 84. Cowper, 390. A Jew is sworn upon the Pentateuch, 
and a Turk upon the Koran; and in France, anciently, the witness, if a layman, 
raised his right hand, or if a priest, placed it upon his breast. Phil. Ev., 
20. Vide Rev. Laws of 1827, page 308.

(1) Affirmed in the case of McKinney v. The People, 2 Gilm. Rep., 540.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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