The Oath System and the Regulation of Witness Testimony in Early Modern Criminal Proceedings

Duda, Mark, History - Graduate School of Arts and Sciences, University of Virginia
Halliday, Paul, History, University of Virginia
Nicoletti, Cynthia, Law, University of Virginia

This thesis examines how the practice of swearing oaths regulated witness testimony in English criminal courts from approximately 1670-1800. The central idea is that the practice of swearing oaths so dominated the presentation of witness testimony that we should conceive of there having been a comprehensive “oath system” at work. The oath system had two particular effects. First, the oath system controlled who could testify at trial. It excluded or limited the testimony of children, religious minorities, defendants, defense witnesses, and persons considered of bad character. Second, the oath system governed what witnesses could testify about. It largely limited witnesses to direct, first-hand observations that they were comfortable enough with to swear to—and thus comfortable enough to stake their souls on.

In making those arguments, this thesis comments on the meaning of the oath—its epistemic and metaphysical significance—both in the courtroom and in broader English society. It also reevaluates prior scholarship on early modern English criminal procedure, which has frequently invoked but consistently under-emphasized the significance of the oath. It concludes by briefly tracking the reduced power of the oath system in the late eighteenth century, the factors that precipitated its decline, and what came afterwards to regulate witness testimony: namely, cross-examination.

MA (Master of Arts)
english legal history, oath, criminal procedure, criminal law, criminal trial, evidence
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