The history of and current state of oaths of office

By: Taylor Handford
AAC Legal Counsel

According to etymologists, the word “oath,” originates from the Old English að, meaning “judicial swearing” or “solemn appeals to deities in the witness of truth or a promise.” Merriam-Webster defines oath as meaning: “a solemn usually formal calling upon God or a god to witness the truth of what one says or to witness that one sincerely intends to do what one says” or “a solemn attestation of the truth or inviolability of one’s words.” An oath is simultaneously an inward and outward manifestation of intent to abide by and uphold the law at the risk of divine punishment.

The first oath of office taken in the United States of America was President George Washington’s presidential oath, administered on April 30, 1789, by fellow revolutionary and Founding Father Robert Livingston at Federal Hall in New York City. The first presidential oath of office was taken using a hastily borrowed Bible from nearby St. John’s Lodge. The Bible was opened (landing on Genesis 49:13), the President placed his right hand on it, swore the oath, kissed the Bible, and then Livingston turned to the audience and shouted, “Long live George Washington, President of the United States!”

The history of oaths ranges from ancient times — oaths were present in Egypt, Rome, Greece and Judea — to the present. While the manner and form of oaths has changed in the 235 years since President Washington’s first oath of office, the American ideals solemnized and conveyed through oaths has not. Throughout history, oaths have represented the relationship between citizens, leaders, government, and a belief that public service is undertaken in pursuit of ideals greater than earthly ambitions and rewards.

Oaths in History

While the word “oath” comes to us through Anglo-Saxon origins, the concept of oaths is deeply rooted in many traditions, intertwining religious and legal concepts.

In 509 B.C. the Roman Temple of Jupiter was dedicated on the Capitoline Hill (the word capitol is assumed to be derived from Capitoline Hill, the likely inspiration for Capitol Hill in Washington, D.C.). An officeholder would swear to Jupiter upon the investiture of their office. The elected official would swear upon an oath stone which was meant to represent Jupiter as divine lawmaker and peacekeeper. If a Roman official broke their sacred oath they could be expected to be punished by Orcus, the god of the underworld and punisher of violated oaths.

In Judaism and Christianity, the idea of swearing a sacred vow appears multiple times. The first person to swear an oath in the Bible is Eliezer, the chief servant of Abraham. In Genesis 24:3-4, Abraham tells Eliezer, “I want you to swear by the Lord, God of heaven and the God of earth that you will … get a wife for my son Isaac.” In response to Abraham’s request, Eliezer, which means “Help of my God,” swears an oath to Abraham. Additionally, Numbers 30:2 states, “When a man voweth a vow unto the Lord, or sweareth an oath to bind his soul with a bond, he shall not break his word; he shall do according to all that proceedeth out of his mouth.” This verse provides more evidence that an oath is a plea and a promise beyond earthly considerations, that a person’s word is a bond, and a person’s actions must be in accordance with their words.

The first instance of oaths used in a legal setting in the western world dates to 9th century England. Oath-takers in England during this time took their vows at an altar while swearing on a Bible. Throughout a period of 300 years, this practice was adopted by the English courts. After this practice emerged, it stayed consistent. The oath-taker places their hand on the Bible while taking the oath, kisses the Bible, and acknowledges that, as Hannah Rosefield writes in A Brief History of Oaths and Books, “should [they] lie under oath, neither the words in the Bible nor [their] good deeds nor [their] prayers will bring [them] any earthly or spiritual profit.” To this day, British witnesses state, “by Almighty God,” while American oath-takers state, “So help me God.”

Oaths Today

Federal Oaths

The United States Constitution contains two mandates regarding oaths: Article 2, § 1 and Article 6. Article 2, § 1 sets the presidential oath of office, providing the specific wording for it: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Article 6, the general oath of office for members of Congress, does not contain specific wording. Instead, Congress has amended and changed the wording of Article 6 oath multiple times, depending on the needs and culture of the time. In fact, the first ever law passed by Congress regulated oaths of office. The First Congress passed “An Act to regulate the Time and Manner of administering certain Oaths” with the House approving it on April 27, 1789, followed by the Senate on May 5, 1789. The act specified the oath itself and the manner for it to be administered to members of Congress.

In 1862, President Abraham Lincoln expanded this oath during the Civil War, creating the so-called Ironclad Test Oath. In 1884, Congress removed the Ironclad Test Oath language, creating the oath that is still in use today: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

Oaths Today

Arkansas Oaths

In Arkansas, our state constitution and the Arkansas Code govern oaths. The “who” and the “when” regarding oaths of office are answered in Article 19, § 20 of the Arkansas Constitution, A.C.A. § 14-14-1304, A.C.A. § 21-1-102, A.C.A. § 21-2-105. Answering both “who” and “when,” Article 19, § 20 lays the foundation for oaths of office, containing the required “oath of affirmation” and that all senators, representatives, judicial officers, executive officers, state officers, county officers, “and all other officers,” must take the oath. The oath in Art. 19, § 20 reads: “I, ______, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of ______, upon which I am now about to enter.” County assessors must take an additional oath under A.C.A. § 14-15-201.

Who must take oaths of office? As mentioned above, Art. 19, § 20 lists which officers must take an oath of office. This is reinforced by A.C.A. § 14-14-1304 that states, “each county, justice of the peace, and township officer, before entering upon the discharge of the duties of his or her office, shall take and subscribe to the oath prescribed in the Arkansas Constitution for officers.” According to Arkansas Attorney General Opinion No. 2011-123, county deputy sheriffs “are ‘officers’ for purposes of the constitution, and … hold a ‘civil office under this State.’” Due to deputy sheriffs being civil officer holders under the State of Arkansas, they too must take the oath of office pursuant to the Arkansas Constitution and statutes. The opinion reaffirms that “a judge, county judge or a county clerk, can swear in a police officer or deputy sheriff.”

Who conducts oaths of office to county elected officials and their deputies? A.C.A. § 21-2-105 provides a list: the Secretary of State or their designee; an Arkansas Supreme Court justice; a judge of the court of appeals, circuit court, district court, or county court; the county clerk; the circuit court clerk, or justices of the peace. The only county positions that can administer oaths are the county judge, circuit court clerk, county clerk, and justices of the peace.

When must oaths of office be taken? Again, Art. 19, § 20 informs us that the oath must be taken “before entering” office. A.C.A. § 14-14-1304 reaffirms this. A.C.A. § 21-1-102 Term of Office of certain officers provides that “all county officers’” terms “shall begin on January 1 following their election.” Arkansas AG Opinion No. 2017-015 states, “it is only when the oath is complete that the ‘incoming officer assumes all the rights, privileges, and duties of his or her respective office.’”

What happens if a newly elected official “refuses or neglects to take and subscribe to the official oath?” A.C.A. § 14-14-1308(2) provides that this qualifies as a vacancy in office. If a county elected official, such as a county judge or sheriff, were to fail to properly take the oath of office, then A.C.A. § 14-14-1309 allows the quorum court to declare a vacancy and subsequently fill the vacancy under A.C.A. § 14-14-1310. Additionally, it is possible for an incumbent that either lost re-election or decided to not stand for re-election to be “held over” if the new elected official were to fail to properly and timely take the oath of office. Article 19, § 5 of the Arkansas Constitution provides, “All officers shall continue in office after the expiration of their official terms, until their successors are elected and qualified.”

This language appears nearly verbatim in A.C.A. § 21- 1-102(b): “All officers shall hold their respective offices for the term prescribed by the law and until their successors are elected and qualified.” Arkansas AG Opinion No. 2021- 012 details what occurs when a newly elected official, in this instance a justice of the peace, is neither interested in serving nor in taking the constitutionally required oath of office. In this case, the incumbent justice of the peace did not file for re-election and the newly elected justice of the peace no longer wanted to take office. The opinion states, “To be qualified, the successor must take the oath of office on or before January 1, when the new term commences.” When the successor does not qualify or does not take the oath of office, there is not a vacancy, but instead the incumbent, the individual preceding the newly elected official, remains in office. The opinion continues: “As a consequence of the JP-elect’s failure to qualify, the incumbent JP is entitled to continue in office after the expiration of his official term and until a successor is elected and qualified.”

This flows from Art. 19, § 5 that mandates incumbents holdover in their position until the successor is elected and qualified. Qualification includes taking the “oath of office pursuant to Article 19, § 20 … which requires of

ficers to be sworn in ‘before entering on the duties of their respective offices.’” Taking the oath of office in the proper form and manner as provided by Art. 19, § 20, A.C.A. § 14-14-1304, and A.C.A. § 21-2-105 ensures that a person is fully qualified before acting in their official capacity.

Conclusion

The structure provided by the Arkansas Constitution — Art. 19, § 20 — and the Arkansas Code — A.C.A. §§ 21-2-105 and 14-14-1304 — answers “who” and “when” related to oaths of office for county officials. Article 19, § 20 and A.C.A. § 14-14-1304 provide that all county officers shall take the oath of office. A.C.A. § 21-2-105 provides who can administer oaths of office. Article 19, § 20 and A.C.A. § 14-14-1304 answer when the oath of office must be taken: before entering the office and discharging the duties of the office. When do county officers enter office? A.C.A. § 21-1-102 states that terms of office for county officers begin on January 1 following their election. If an elected county official fails to take the constitutionally required oath of office, then their office can either, depending upon the facts and circumstances, be declared vacant and then filled by the quorum court or be filled through the previous officeholder “holding over.”

The ancient Greek statesman Lycurgus of Athens summarized, “it is the oath which holds democracy together.” An oath encapsulates the contemporary society in which it is enacted. The distinct threads of religion, politics, and the law, are bound together through oaths to reflect the aspirations and concerns of the polity. An oath is a personal obligation and a public obligation, a promise to be faithful to the law and perform to the best of one’s abilities, with the understanding that such a commitment is at the heart of our societal principles, beliefs, and values. These obligations to the law and to the constitution are what unites us. And if a person wants to take their oath and kiss the Bible as our first President did, the Arkansas Code provides for that as well: A.C.A. § 16-2-101(a) states, “the usual mode of administering oaths practiced by the person who swears, laying his or her hand on and kissing the Gospels, shall be observed in all cases in which an oath is or may be required.”