Affirmations are statements made in lieu of oaths by people who have conscientious scruples against taking oaths. Under modern North Carolina law, this means saying “solemnly affirm” instead of “solemnly swear,” and avoiding any invocation of God in support of one’s statement (North Carolina General Statues 11-1 and 11-4). Starting its colonial history with a de facto freedom to affirm instead of swear, North Carolina returned to a more restrictive position based on English law, then extended affirmation privileges to certain Protestant groups, and ultimately made affirmations available to anyone with objections to oaths.
In the colonial era, the laws of England initially failed to grant any privilege of affirmation until the Society of Friends (Quakers) posed a major religious challenge to English laws regarding oaths. Quakers recited Matthew 5:34 (“swear not at all” – KJV) and James 5:12 (“swear not” – KJV) to justify their stance as the true Christian position. As a result of their refusal to swear, Quakers suffered imprisonment, loss of property, and ineligibility to testify in court.
Parliamentary statutes in 1689, 1696, and 1722 allowed Quakers to make affirmations instead of oaths. This affirmation privilege did not extend to criminal cases and oaths of office, however. In 1749, English Parliament gave Moravians (another sect that rejected oath-taking) the same limited affirmation privileges as Quakers. Parliament did not make further extensions of the affirmation privilege until after American independence in 1776.
North Carolina was initially more receptive to affirmations than its mother country. In its early years as a colony, North Carolina had a large contingent of Quaker settlers, and in 1695 a Quaker governor was appointed: John Archdale took an affirmation rather than an oath when assuming office. In 1704, when a test oath was proffered to Quaker officeholders, they resigned rather than compromise their beliefs. This development ended the political influence North Carolina Quakers had enjoyed. The Quakers were not the only North Carolina group objecting to oaths on Biblical grounds. So, too, did Moravians and Mennonites. In 1777, after North Carolina separated from England, the legislature adopted an oath statute prescribing the forms of oaths. According to the legislation, the privilege of affirming was recognized in “civil controversies” for “quakers, Moravians and mennonists,” and this affirmation was to be made “in the manner heretofore used and accustomed.”
Later that year, for Quakers only, the legislature passed a new affirmation law that allowed affirmations in criminal cases, as well as in civil cases. The legislature did not expressly recognize the right of Moravians and Mennonites to affirm in criminal cases until 1819, approximately forty-two years after Quakers had been permitted to give affirmations in criminal trials. In 1821, the legislature passed an affirmation law for another religious group, the Dunkers. These affirmation statutes probably did not abolish the common-law requirement that, to be a witness in court, a person must believe that God punishes wrongdoers (The latter requirement is deemed unconstitutional under modern jurisprudence).
For members of the four specified religious groups who held public office, the affirmation they were expected to make was different from the oath of office provided for others. A Quaker, Moravian, Mennonite or Dunker did not take the standard oath of allegiance to the state constitution. Instead, as stated in the law, he affirmed that he would be “a peaceful citizen of North Carolina,” accept the government’s authority either through “active or passive obedience,” refrain from treasonable conspiracies, and report any such conspiracies to the government.
No developments regarding affirmations seemed to have occurred between the 1820s and the 1980s, except for an interesting state Supreme Court decision in 1873. A man named Davis had been convicted of perjury for testifying falsely after giving an affirmation. The indictment, however, said that Davis had been sworn, not affirmed. The court overturned the conviction, emphasizing that perjury under oath and perjury under affirmation were different things. According to the court: “If one is charged with killing another with poison it will not be sufficient to prove that he killed him with a sword” (State v. Davis).
When the state’s statutes on oaths and affirmations were subject to a court challenge in the 1980s, the General Statutes Commission proposed a bill drafted by the state Attorney General’s office to make changes to the law. A 1984 memo from an official in the Attorney General’s office said that existing law could be seen as limiting affirmation privileges to Quakers, Moravians, Mennonites and Dunkers, while denying the affirmation privilege to others (like atheists). The proposed amendment would expressly make the option of affirmation available to anyone who objected to taking oaths.
Another problem, according to the Attorney General’s office, was that statutory affirmations, like statutory oaths, seemed to include the phrase “so help me, God.” Including this phrase in the oath and in the affirmation was “at best unusual, and more likely unconstitutional,” because it not only excluded atheists but also might seem too oath-like to religious people protesting oath-taking. The memo tentatively suggested omitting the phrase “so help me God” from affirmations.
House Resolution 900, which passed the North Carolina House of Representatives in 1985, embodied the statutory changes that the General Statutes Commission recommended. The bill would delete the phrase “so help me, God” from the language of affirmations, while keeping the phrase for oaths. Anyone with scruples regarding taking oaths was to be permitted to make an affirmation instead. The law’s declaratory language about the importance of oaths was to be amended to refer to affirmations, and a reference to the divine sanction of oaths was to be deleted.
The state Senate amended the House bill to restore declaratory language about the divine sanction of oaths. Affirmations, however, were described as having a purely secular significance, for they were deemed “highly conducive to the important end of good government.”
In addition to acknowledging a broad right of affirmation, without references to God, H.R. 900 abolished the alternative oath of office for Quakers, Moravians, Mennonites and Dunkers. All officeholders were required to take the same oath or affirmation, pledging to support the U.S. Constitution and the state of North Carolina, its government, and its constitution.
Daniel Blau, “Holy Scriptures and Unholy Strictures: Why the Enforcement of a Religious Orthodoxy in North Carolina Demands a More Refined Establishment Clause Analysis of Courtroom Oaths,” First Amendment Law Review (2006) 4: 223-265; Comment, “A Reconsideration of the Sworn Testimony Requirement: Securing Truth inthe Twentieth Century,” Michigan Law Review (1977): 1681-1707; C. Daniel Crews, Through Fiery Trials: The Revolutionary War and the Moravians (Winston-Salem, 1996); Documents relating to the 1985 revision of the oath and affirmation statutes, General Statutes Commission papers, North Carolina State Archives; Nadine Farid, “Oath and Affirmation in the Court: Thoughts on the Power of a SwornPromise,” New England Law Review (2006): 40: 555-561; Henry G. Hood Jr., The Public Career of John Archdale: 1642-1717 (Greensboro, 1976); Ireland Law Reform Commission, Report on Oaths and Affirmations (Dublin, 1990); Rufus M. Jones, The Quakers in the American Colonies (New York, 1966); Paul W. Kaufman, “Disbelieving Nonbelievers: Atheism, Competence, and Credibility in the Turn of the Century American Courtroom,” Yale Law Journal (2003) 15: 395-433; Maximilian Longley (as Eric Longley), “Oaths and Affirmations in Anglo-American History,” Sewanee Theological Review (1999) 43:1: 61-77; St. John A. Robilliard, Religion and the Law: Religious Liberty in Modern English Law (Manchester, 1984).