Gill v. Caldwell (Ill. 1822): Swearing Oaths in Court

Holding: Witness oaths in court must be administered according to their opinions, as it most affects their consciences. Swearing a witness by an uplifted hand, without a bible, is valid and legal.

Procedural Posture: Plaintiff sued defendant for slander in the lower court of Crawford, IL, for defendant’s claim that plaintiff swore falsely in a judicial proceeding before a justice of the peace. The lower court sustained defendant’s motion to exclude the justice of the peace’s testimony about how plaintiff was sworn in on grounds that it did not prove that a legal oath was administered. Plaintiff appealed to the Supreme Court of Illinois to determine whether plaintiff’s oath was legally cognizable. Islamic law is not directly relevant, except that the court notes that “a Turk [is sworn] upon the Koran” when taking an oath in court.

Judgment: Reversed and remanded in an opinion authored by Chief Justice Reynolds.

Facts: Gill sued Caldwell for slander after Caldwell charged that Gill swore falsely in a certain judicial proceeding. In the lower court, the justice of the peace in that proceeding, Thomas Kennedy, testified that Gill was administered “what he conceived to be an oath,” which consisted of swearing by an uplifted hand with no Bible. The lower court excluded this testimony on the grounds that it did not prove a legal oath was administered. The Supreme Court of Illinois found that, at common law, “oaths are to be administered to all persons according to their own opinions, and as it most affects their consciences.” The legislature codified this principle in an 1807 statute. Therefore, the Court concluded that an oath by an uplifted hand, but without scripture, is valid and legal. In a footnote, the Court further noted that at common law, witnesses are sworn “according to the form which [they hold] to be the most solemn, and which is sanctified by the usage of the country or the sect to which [they belong].” This includes, for example, “[a] Jew [swearing] upon the Pentateuch, and a Turk [swearing] upon the Koran.”

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