What format would take a statement from a simple declarative to a legally binding oath? What’s the legal procedure that must take place?
I’m not talking about verbal contracts, and I’m assuming that the person has contractual capacity.
What’s the difference between someone taking an oath of office and newly-accredited citizens reciting the Pledge of Allegiance in a courtroom? What makes one an oath and the other just a recital?
Newly naturalized citizens don’t just say the Pledge of Allegiance, they take the oath of renunciation and allegiance.
As to what makes an oath legally binding, IANAL, but I would think it’s just a question of the law saying an oath is legally binding. “A person who has applied for naturalization shall, in order to be and before being admitted to citizenship, take in a public ceremony…an oath…” (8 U.S.C. 1448; linked to above). Similarly, 10 U.S.C. 502 states “Each person enlisting in an armed force shall take the following oath…” Note that both sections use that word “shall”. There isn’t any such language specifying that anyone must say the Pledge of Allegiance in order for some legal change to take place (i.e., that person becoming a citizen of the United States or being legally enlisted in the armed forces).
Thanks, MEBuckner, for the links. I appreciate it.
But what I’m really trying to find out here is what makes an oath an Oath. What makes it legally binding?
Is it the prerequisite that makes it binding? Is it requiring someone speak those specific words that cause it to become an oath?
I read what Webster says:
** 1 a (1) : a solemn usu. formal calling upon God or a god to witness to the truth of what one says or to witness that one sincerely intends to do what one says
(2) : a solemn attestation of the truth or inviolability of one's words
b : something (as a promise) corroborated by an oath
2 : an irreverent or careless use of a sacred name; broadly : SWEARWORD**
I understand that naturalized citizens take an oath as described in 1a(2). It’s legally binding, evidently, because it’s 1) required, and 2) taken in front of a judge or other legal representative.
I guess that, in order to be recognized as legal, an oath must be required, or else it’s just just another form of a promise.
WAG here, but I’d say that an oath is legally binding if it’s legally witnessed and recorded. There are cases (marriage, obtaining citizenship, being a witness in court) where making and recording an oath are part of the procedure. Or, at least in the UK, there are characters called Commissioners for Oaths (who are usually “Solicitors and…” - in other words, lawyers) who record that so-and-so made such-and-such a commitment on such-and-such a date. (I have a vague feeling that there’s something American called a “Notary Public”; is this the same thing?)
I think we need a lawyer for this one.
I’d say that there are two requirements for an oath to be binding:
It has to be made in a legal proceeding where an oath is required, before a person authorised to take an oath (an objective standard); and
It has to be in a form that the person taking the oath recognises as morally binding (a subjective test).
On the first part, as MEBuckner notes, statutes usually provide when an oath is required, and will normally indicate what officials are able to administer the oath.
The second part is more tricky. If I’m a garden-variety Christian, the standard oath used in most courts would probably work for me. But if I’m an adherent of the Church of the Invisible Pink Unicorn, swearing an oath on the Christian Bible likely will not be binding on my conscience. If so, the official administering the oath would have to inquire what form of oath I would recognize as morally binding. (If I say that the only oath I recognize is swearing with my hand on the Holy Horn of the Invisible Pink Unicorn, there may be a problem.)
Note that problems of the form of the oath can arise with some Christians as well. For example, the classic “English oath” was done either with a hand on the Bible, or kissing it. (I’ve occasionally seen a police officer of the old school “kiss the book.”) However, the stiff-necked Scots Presbyterians (which is part of my heritage, so I can say that 
) objected to any form of the oath involving the Bible, as it seemed to them a form of idolatry. So instead, the “Scottish oath” evolved, where the person taking the oath simply held up his/her right hand and recited it.
Then there are some Christians who will not take an oath for religious reasons. There is one passage in the Gospels where Jesus says something about not making a great show of faith when testifying, simply answering “yes or no.” Some Christain groups (notably the Quakers, if memory serves) took that as a prohibition on taking an oath, so the courts and legislatures evolved the simple “affirmation,” a binding promise to tell the truth in accordance with the individual’s conscience.
(Side note: In Canada, we have both notaries public and the commissioners for oaths that Steve Wright mentioned. Both can take affidavits and statutory declarations; the main difference is that a document taken by a commissioner for oaths is normally only valid within the province/territory where it was taken, but a document taken by a notary public can be admitted in evidence in other provinces or territories.)
Yep, a Notary Public is basically a legally recognized, official witness. I am fairly certain there’s at least one on the boards here, but I can’t recall who it is. Notary Publics are most often used to “notarize” documents; for instance, inventors will often have their notebooks notarized to prove that they had certain ideas on certian dates, thus giving them some measure of protection when it comes to patent challenges.
Oooohh, me! me!
In my province, any lawyer is ex officio a commissioner for oaths within the province, and a notary public. I believe that the same rule applies in the other common law provinces.
Steve Wright’s post indicates that English solicitors are automatically commissioners for oaths as well.
I wouldn’t be surprised if the same holds true for the American lawyers on the boards?
My wife is a lawyer. She is not a notary. I do not think it is common for lawyers in the States to be notaries. There will be a few of the legal assistants that will be notaries. Notaries are used in my experience as a trusted source for verifying that the people who signed documents are really the people who say they are.
In California they have a book which lists every time they notarize something. Currently for things involving land you also put your thumb print by the entry in the notary’s book.
I don’t think notaries are used to witness oral oaths.
[hijack] Your Anabaptist Christian denominations (eg. the Amish) believe this too. That’s what I was taught in the Church of the Brethren Sunday school, and that bit of Scripture sure didn’t seem like it needed much interpretation to me:
“Again, ye have heard that it hath been said by them of old time, Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths: But I say unto you, Swear not at all; neither by heaven; for it is God’s throne: Nor by the earth; for it is his footstool: neither by Jerusalem; for it is the city of the great King. Neither shalt thou swear by thy head, because thou canst not make one hair white or black. But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil.” (Matthew 5:33-37, King James Bible)
I always found it incredibly ironic to see people swearing to tell the truth in court on a Book which specifically forbade the swearing of oaths … [/hijack]
In Wisconsin, all attorneys are automatically notaries with non-expiring commissions.
Thanks SCSimmons, I’ve been hoping to come across the official citation for that verse. I.e., the binary number system is heavenly sanctioned. (Use smilies if you got 'em.)
Now that’s an interesting interpretation. You’d think the authors of the later books would have incorporated that, though … “Here is wisdom. Let him that hath understanding count the number of the beast: for it is the number of a man; and his number is 1010011010.” (Revelations 1101:10010)
Man, I’m going to Hell for sure. 