
    Fryatt and another v. Lindo and another.
    
      October 1, 1838.
    
      Practice. Jurat.
    
    Bill prayed that the defendants, being Jews, should swear to their answer according to their creed; and it set forth the oath and ceremony which alone was supposed to bind their conscience. The jurat to their answer was in the ordinary form; and therein the commissioner certified that the defendants had been “ duly sworn.” On a motion to strike the answer off the •files, the same was refused ; there being no proof to show that the defendants were not sworn according to their creed, while the commissioner certified they had been duly sworn.
    A judgment creditor’s bill against Stephen Lindo and Meyer Chrystaller. In the prayer for an answer was the following : “To the end therefor that the said Stephen Lindo, Meyer Christaller, and their confederates, when discovered, may, upon their several and respective corporal oaths, (the said Stephen Lindo and Meyer Christaller, who are, as your orators are informed and believe, Jews and believers in the Jewish religion, and in all things practicers and observers of the ceremonies thereof, to be sworn according to the peculiar ceremonies of the said Jewish religion, which, to render an oath solemn and obligatory and binding upon the conscience of the party taking the same, require, as your orators are informed and believe, that a minister of the Mosaic religion shall, before the taking of the oath, and in the presence of the officer administering the same, admonish the party as to the purport of an oath. That the world is founded on the three pillars, Right, Truth and Peace. That by pronouncing the name of God he calls the Almighty to witness. That although the court and the earthly judges may be deceived by an untruth, yet the heavenly Judge, who knows his thoughts and searches his heart, cannot be deceived, nor can he avoid the heavenly punishment for his sins to the fourth generation. And the said minister is to support this argument by citations from the law, prophets, and commentaries. That if, after such admonition, the party answer that he is yet willing to swear, then he is to wash his hands and put on a Talith, or prayer-cloak. That while swearing the party is to take and hold in his hands a Tora, or the five books of Moses, written on parchment, for the use of the house of worship, and that the party must swear by the name of mm or Jehovah, and looking at that word he shall swear,
    ‘ I swear by Adonai,’ and conclude his oath, ‘so help me, God, to future happiness,’) may full, true, direct, and perfect answer make, &c.”
    The answer of these defendants was put in, with the ordinary certificate or jurat (adopting the form suggested in the 18th rule); and the commissioner therein certified that they “ being by me duly sworn, did severally depose and say, that they had heard read, &c.”
    Motion to take the answer off the files as irregularly and improperly filed, as it did not appear that the defendants had been sworn as required by the bill.
    
      Mr. Nicoll, for the motion.
    
      Mr. R. Bogardus, contra.
   The Vice-Chancellor :

The motion is founded upon the circumstance of the jurat to the answer being in the ordinary form, and at the same time, on the idea that such an oath has no weight with the defendants, owing to their Jewish belief.

The statute regulates the mode of administering oaths and affirmations; and there is a section as to swearing by persons not Christians. Such persons must be sworn according to the peculiar ceremonies of their religion, if there be any such ceremonies, instead of any other prescribed modes : 2 R. S. 329, § 106, 2d edit. However, the difficulty under which the complainant labors in this motion is, that the commissioner certifies to the defendants having been “ duly sworn ;’’ and there is no affidavit, in support of the motion, to show that they were not sworn according to their creed. I may, therefore, avoid giving a decision upon the point pressed by the complainants; and must consider the defendants to have been sworn in such manner and form as to render the oath binding in conscience as well as obligatory in law.

Motion denied with costs, ) 
      
      ) The reporter shewed the above text to three intelligent Jews; and they severally wrote to him as follows: “ This mode was practised when the Jews were a nation and subject to their own laws and judges. The sacrifices they were bound to make, were only performed during the existence of the temple. We have no priests now, only readers. Our peculiar laws not only require us to pray for the peace of the country protecting us, but enjoin upon us to be faithful and observe the laws of that country. Any form of oath that is directed by those laws, is binding on us, as much as if taken under the ancient law; and even if it be necessary to have the deposition of a Jew in respect to the affairs of the synagogue, before the authorities of the country, it is taken according to the laws of the latter. The commandment to us is, ‘ Thou shall not take the name of the Lord thy God in vain.’ Any addition to this is merely rabbinical or local, changing at different periods, according to the laws of the country in which we may happen to reside. When the mode referred to in the text was adopted, of swearing on a manuscript of the pentateuch on parchment, the art of printing was not known ; so that there were no bibles as there are at the present day. And now it would not be permitted to take one of the copies out of our synagogues for the purpose of administering an oath in a case between man and man.
      “Among the Jews, oaths are very much discouraged. Those living in countries, the manners and customs of which they have not adopted, regard an oath with dread. There are many who, in controversial suits, will rather lose their cause, and even reduce themselves to beggary, than take an oath.
      “ It is said in the bible, * The Lord thy God thou shall fear, and by his name thou shall swear.’ This constitutes the oath of an Israelite. The commentators and jurists, however, in order to avoid such solemn oath, have classified cases and kinds of oath to be taken in different circumstances. As far as my observation goes, the practice of the Jewish courts of justice, in countries where such courts are allowed them, is to require no oath from witnesses, either in criminal or controversial suits, whether both parties are Israelites, or one of them happens to be a Gentile. For the commandment is clear, 1 Thou shall not bear false witness against thy neighbor;’ and it is believed that, if an individual will violate this command, his oath will not be binding. A judge may indeed exhort a party suspected, but I have never witnessed this practice.
      “ In controversial cases, the defendant is obliged to take an oath in disclaiming any charge made against him by the plaintiff, except only when an account sued for is substantiated by the books of the plaintiff; in which case the latter is allowed to swear that his books have been regularly kept. The oaths, according to the rabbis, are different. First, is the Herem, or curse; second, is the bible, or any book considered holy; third, the scroll of the law of the synagogue.
      “When the judge pronounces his opinion, that one or other of the parties must swear, to substantiate what he says, the party may take hold on any thing that happens to be before him, a blank book, a piece of wood, or any object of the creation, and swear by it, and the oath will be considered valid in most cases» unless the opposite party, before such an oath is taken, declares that he will consider no oath valid, except it be such as is prescribed by the rabbis.
      “In the countries, however, where the Jews have'assimilated with the Christians, oaths taken in the courts of justice,'in the ordinary way, are to all intents and purposes valid.”
      “ The conscience of the Jew is, according to""alI the principles of their religion, as much bound by a declaration to speak the truth, as by any form or ceremonial observances; and our writers teach that, in the view of the Creator, the sin and punishment of falsehood are the same in either instance. Ex. ch. 23, v. 1.; Maimonides, vol. 3; Hilchoth Shebuoth, modes of swearing ch. 2, v. 2; Moshem Mishpot, Breastplate of Judgment, ch. 87, 19 vs.
      “ The origin of symbolic or ceremonial oaths is traceable to the time of our patriarch Abraham, who made Eleázer of Damascus swear, putting his hand under his thigh : Gen. ch 24, v. 2. This oath was taken by the then only outward emblem of the faith of the future nation, namely, circumcision: Yarchi on the above verse. In subsequent times, the oaths of men of religious and good character were not required, their declarations being received. When, however, one was brought to testify, whose character was unknown, or whose testimony was suspected, the judges, before receiving his testimony, were required to advise him of the sin of false swearing and its certain punishment, and then to receive his oath with the formalities attending it set forth in the complainant’s bill.
      “ At a later period, this form was changed, and the printed Pentateuch containing the ten commandments, has alone and ever since been used : Choshem Mishpot, ch. 87, v. 19.
      “ Our laws strongly discountenance the taking of oaths, and on all occasions seeks to avoid their requirement, and enjoins the utterance of the truth at all times.”
      It may not be uninteresting to add here, (although, it is true, it relates to an idolater’s oath), the circumstances attending the examination of a Chinese in the Marine court of the city of New.York, on the fifth day of December, 1839 as a witness. It was in a suit before Judge Schiefflin in the Marine court; and a young man, about seventeen years old, a native of China, who could speak English tolerably well, was called by one of the parties as a witness. The opposite party objected to his evidence being received on the ground that he was not a Christian nor believed in the existence of a God. He was then asked by the court if he believed in Christianity, and he replied in the negative. He was next asked, did he believe in a God ? and he said “ I do; for there are several gods in our temples in China.” The court then quoted a seel ion of the Revised Statutes, which says that “Every person believing in any other than the Christian religion, shall be sworn according to the peculiar ceremonies of his religion,” and asked the witness what was the formula of an oath in China. The witness replied that a person about to give evidence first goes to one of their temples where there are idols, and that he reads, or there is read for him, a portion of the Chinese bible, after which the witness spits on the ground, and then takes in his hand a saucer containing salt, and dashes them against the ground, by doing which the saucer is broken in pieces and the salt scattered along the floor. When this has been done, the witness then goes before a Mandarin and gives his evidence. The court then asked the witness by whom had the book been written which he called the Chinese bible, or whether it was supposed to have been the work of Confucius ? To this the witness replied that he had never heard of such a person, nor could he tell by whom the book had been written, nor did he know any thing more about it, except that it was the sacred book of the Chinese, and the only English word that he was acquainted with, which conveyed his idea of it, was the word bible. On hearing this the judge said that he could not see how the statute could be complied with, which enacted that a witness should be sworn according to the peculiar ceremonies of his religion. It was true that the court might for the purpose be considered a temple, as it was called the temple of justice, and the ceremonies of spitting on the ground and throwing down a saucer with salt in it might also be performed, but then there were no idols in the court, nor could the judge tell what was the name or nature of the book which the witness called his bible. Under all the circumstances of the case, Judge Schiefflin therefore determined to make no decision as to whether the witness could be sworn at all, or his evidence received, until he further considered the question and consulted with the other judges of the court.
      Aryouk, the Chinese witness, attended in court on Saturday afterwards, accompanied by another native of China, who was the plaintiff. The lad Aryouk, who, though an intelligent youth about 16 years old, appeared not to be so well informed in relation to the Chinese ceremony of swearing an oath as his countryman, the plaintiff, who is more advanced in years, and from whom it appeared the young man had since the day before acquired more information on the subject.
      On being questioned by Judge Scott, he said that there were various ceremonies attending the taking an oath in China, some of which might be dispensed with, and yet the witness considers himself equally bound to tell the truth. In addition to what he said the day before, he now mentioned that a witness sometimes holds a lighted torch in his hand, but that his omitting to do so, or to use some other ceremonies, such as spitting on the ground, are not necessary to render the oath binding and valid.
      It would be sufficient, he said, to have the oath administered in the following manner, which was done accordingly. The plaintiff knelt down, and the witness took in his hand what he called the Chinese Bible, and the judge, as does the Mandarin in such cases, told the witness to tell the truth. The witness then handed the bible to the plaintiff. The witness then took a China cup in his hand, and held it while the plaintiff read aloud a small portion of the Chinese Bible. When the plaintiff stopped reading, the witness then handed him the cup, which the plaintiff dashed against the ground with much vehemence of manner, and of course broke it in pieces. The witness then shut up the book, and witness and plaintiff kissed it, and the plaintiff stood up. The plaintiff then required the judge to put his, the plaintiff’s, name in that part of the bible which he had read, which the Judge did, and the witness then began to give his evidence. Prior to the oath being administered, the court had decided that, according to the Revised Statutes, the oath could be legally administered, as it was the form in which oaths were sometimes sworn in China.
      The difficulty in relation to the witness being sworn in a temple, was obviated by the witness stating that their Chinese courts are held in their temples, or, as he called them, churches. So that a temple and court of justice in China is one and the same thing. What he called the Bible is a small book in the form of a pamphlet containing a portion of the writings of Confucius, in the Chinese language, and having a Mandarin’s signature on the cover, to attest its being a genuine copy of the work.
     