The Oath has always been the cornerstone of our civilised world (England). If you break your Oath, you commit perjury at common law. If you commit this offence, you lose everything you own and could of owned, including pensions etc.
The commons and lords have committed perjury under common Law and Treason.
Oaths and the fabric of society
Anglo-Saxon society was, and, as we are the representatives of the Anglo-Saxons today, arguably is still bound together by a web of vows, pledges and unretractable obligations. Some may draw distinctions between oaths and vows (such as the marriage vow), but for my purposes the sworn obligations are analogous, as indicated in the etymological discussion above showing that marriage and kinship were understood to be relationships linked by oaths. My discussion will therefore begin with the Coronation Oath, as sworn by the Queen in 1953, and the Accession Declaration made prior to that.
The religious nature of oaths was apparent in the three Oaths of Supremacy, Obedience andAbjuration sworn at various points in history by priests and bishops of the Church of England and by parliamentarians, judges and others with roles in the state. Even today, state personnel from the prime minister down to soldiers and policemen are required to swear Oaths of Allegiance, of Office and theJudicial Oath. Naturalised citizens take the Oath of Citizenship.
Judges and magistrates take oaths, as do members of court juries and people giving testimony in court. Affidavits of various kinds are also used in court procedures. Finally, there are the vows that ordinary people may enter into that are not directly connected with the affairs of state. Chief among these is the marriage vow. Baptism and confirmation services include vows, and godparents also take on responsibilities towards their godchildren.
From an anthropological point of view, oaths forge connections between people in a way that creates social bonds. Once the Church has recognised the monarch, the ecclesiastical hierarchy has sworn oaths of allegiance to the Crown and the monarch has sworn the Coronation Oath, the nature of the interlocking obligations in society becomes clear. It is a distortion to claim that England has no constitution simply because there is no hallowed piece of parchment that claims to define social bonds for all time. Such a document could only be valid if it could be shown that those drawing it up had the right to do so and the right to impose their social set-up on society, a test that is failed by all written constitutions.
The English constitution is rather organic, arising out of the natural bonds of society, which should be seen, not as a relationship with a yellowing piece of paper, as in the US, but rather as a relationship between living people. Just as oaths of allegiance forge the bond between rulers and ruled, so the marriage vow creates kinship between people previously unrelated. Permanent obligations are created by these oaths and vows. The way in which oaths of allegiance (essentially the feudal bond established by homage) creates bilateral obligations that cannot be unilaterally cancelled was pointed out early on by the thirteenth-century jurist, Henry de Bracton, in his De Legibus et Consuetudinibus Angliae (“On the Laws and Customs of England”), an early codification of English Common Law:
What is homage? Homage is a legal bond by which one is bound and constrained to warrant, defend, and acquit his tenant in his seisin against all persons for a service certain, described and expressed in the gift, and also, conversely, whereby the tenant is bound and constrained in return to keep faith to his lord and perform the service due. Homage is contracted by the will of both, the lord and the tenant, and is to be dissolved by the contrary will of both, if both so wish, for it does not suffice if one alone wishes, because nothing is more in conformity with natural equity etc. The nexus between a lord and his tenant through homage is thus so great and of such quality that the lord owes as much to the tenant as the tenant to the lord, reverence alone excepted.3
The requirement to take oaths is often dispensed with, as where a judge allows a witness to “affirm” the truth of his testimony in court. In the House of Commons, Members of Parliament are allowed to be sworn in using non-Christian religious books, arguably making a mockery of our Constitution – because the Queen’s authority is based on the acknowledgement of the Christian church, which has deep roots in our history and culture – and therefore compromising the validity of the oath. Not only are oaths often replaced by affirmations, our law-courts and statutes also claim the right to set aside oaths, as in the claim by constitutional lawyers that the Coronation Oath is “modified” by subsequent legislation, and so is ultimately meaningless. Judges also claim the right to abrogate the marriage vow, an act that unpicks social bonds. Yet the reason why any of these oaths is taken in the first place is that an oath cannot be set aside. The legal efficacy of an oath may or may not be removed, but the oath itself – its binding moral force – cannot be cancelled retrospectively.
Furthermore, the swearing of an oath, a morally binding act, means that failure to fulfil the oath is perjury. There is an interesting distinction between the crime of perjury and other crimes: crimes in law require malice aforethought. Could it therefore be thought that no perjury has been committed where an oath, subsequently broken, was made in good faith, and only later on did the forswearer decide to give false evidence? From this it is clear that the nature of an oath is to create an ongoing obligation, one that a person of honour could not resile from, and that an oath made on one day binds the swearer forever afterwards, creating the continuing possibility of perjury if the oath is broken, regardless of the fact that no false intention was held at the very time the oath was taken.
Back in the days of Alfred the Great, the difference between Englishmen and the Vikings was seen in the fact that the Vikings broke their oaths: such people were not to be trusted. Consequently, oath-breaking, in other words, perjury, has always been contrary to Common Law, although the first Act of Parliament dealing with perjury appears to be the 1540 Maintenance and Embracery Act. De Bracton indicated that perjury was against the Common Law as understood in his day:
The punishment of those convicted in the aforesaid assises will be this: first of all, let them be arrested and cast into prison, and let all their lands and chattels be seized into the king’s hand until they are redeemed at the king’s will, so that nothing remains to them except their vacant tenements. They incur perpetual infamy and lose the lex terrae, so that they will never afterwards be admitted to an oath, for they will not henceforth be oathworthy, nor be received as witnesses, because it is presumed that he who is once convicted of perjury will perjure himself again.4
Sir Edward Coke, chief justice under James I, pointed out that the statute law against perjury introduced under Henry VIII provided for milder punishments than those provided for in Common Law, as the severity of the common-law punishments meant that few or no juries were convicted.5 The law on perjury is interested only in the oaths administered while giving evidence in court; prime ministers who violate their oaths of office cannot be charged with “perjury”. Coke stated that the breach of an oath outside the judicial setting was not perjury in law, although it was still perjury in truth, in that a general oath had been forsworn:
For though an oath be given by him that hath lawful authority, and the same is broken, yet if it be not in a judicial proceeding, it is not perjury punishable either by the common law, or by this act, because they are general and extra-judicial, but serve for aggravation of the offence, as general oaths given to officers or ministers of justice, citizens, burgesses, or the like, or for the breach of the oath of fealty or allegiance, &c. they shall not be charged in any court judicial for the breach of them afterwards. As if an officer commit extortion, he is in truth perjured, because it is against his general oath: and when he is charged with extortion, the breach of his oath may serve for aggravation.6
Although extra-judicial breaches of oaths are not covered by the law on perjury, in many cases breaches of oaths of allegiance and oaths of office would be covered by the laws on high treason and sedition. The fact that the offence of high treason is based on the prior allegiance of subjects to the crown – a prior relationship of fealty that cannot be unilaterally terminated – is shown by the ancient law on petty treason. Petty treason (or petit treason) was a common-law offence occasioned by the betrayal of an oath of fealty to a superior by a subordinate. This common-law offence was brought into statute law by the Treason Act of 1351, before being abolished as a separate offence from murder by the Offences against the Person Act of 1828. Before 1828, the killing of a husband by his wife, the killing of a bishop by a clergyman subordinate to him, and the killing of a master or the master’s wife by his servant were regarded as more serious offences than general murder, owing to the bond of obligation that existed between superior and subordinate. Originally, in the Common Law, a servant’s committing adultery with his master’s wife or daughter was considered petty treason too, although this was not adopted in the 1351 statute. Evidently therefore the substance of high treason lies in the bond of fealty, sworn by oaths (in the case of the officers of state), that exists between monarch and subject.”