Front Page Titles (by Subject) CHAPTER IX: FALSE SECURITIES FOR TRUSTWORTHINESS IN EVIDENCE—OATHS AND EXCLUSIONS. - The Works of Jeremy Bentham, vol. 6
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CHAPTER IX: FALSE SECURITIES FOR TRUSTWORTHINESS IN EVIDENCE—OATHS AND EXCLUSIONS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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FALSE SECURITIES FOR TRUSTWORTHINESS IN EVIDENCE—OATHS AND EXCLUSIONS.
Ceremony of an Oath—a False Security for Trustworthiness.
Securities against mendacity brought to view—securities in such numbers and variety—and no mention yet of oaths—no mention of that sacred instrument, which, in the general estimation of mankind, occupies the highest place on the list of these securities, and has so frequently been employed, not only in preference to, but to the exclusion of, all those others.
That by the omission here spoken of, an emotion of surprise should be produced, cannot itself be matter of much surprise. In the character of an instrument actually and generally thus employed, the title of this ceremony to a place upon the list of these securities, admits not of dispute. But, in the character of an instrument fit to be so employed, the more closely it is looked into, the more plainly, it is supposed, will its unfitness to be so employed be recognised.
Exhibited in detail, and with a degree of particularity in any degree corresponding to the importance of the subject, the consideration by which the condemnation here in question was produced, would have given too long an interruption to the thread of the inquiry, and run into a degree of extension altogether disproportionate. Not requiring to be taken into consideration on the occasion, or for the purpose, of anything that follows, the matter belonging to that head is here omitted.‡
Meantime, of the considerations by which so important a conclusion was produced, some intimation, how slight and general soever, may in this place be not altogether without its use.
The following are the propositions by which they may stand expressed. For the present, they may be considered as so many positions set down for proof:—
1. That, in the very essence of this instrument, a rash and grossly incongruous supposition is involved; viz. that, for the purpose of eventual punishment, and thence for the purpose of dominion, applicable to any end in view at pleasure, the power of the Almighty lies at all times at the disposal—at the absolute disposal, of any the most worthless of human kind.
2. That, by the religion of Jesus, in so far as the precepts ascribed to Jesus are to be admitted as containing the expression of it, the application of any such instrument to any such purpose as the one here in question stands prohibited; prohibited in the plainest and most pointed terms:* and that for any exception which a man may feel himself disposed to cut out of that prohibition, imagination is the only warrant that can be found.
3. That, by the articles expressive of the particular tenets of that modification of the religion of Jesus which is established in England, the use of it, though declared allowable, is not on any occasion enjoined.†
4. That, to any such good purpose as that in question, its efficiency will, if attentively examined, be found to amount to nothing: inasmuch as, in every case in which this supposed security presents itself to view as if operating with effect, other instruments, of which, in the character in question, the efficiency is altogether out of dispute,—two other instruments, viz. punishment and shame, may be seen, one or both of them, operating on the occasion in question, in that same direction, and to that same end:—and that, when these instruments are both of them out of the question,—have not either of them, any place,—mendacity, any application made of this instrument, notwithstanding, is altogether without restraint:—and if called for by any exciting motive, takes place accordingly:—and to this purpose, university oaths and custom-house oaths are brought to view.
5. That, of its inutility in the character in question, a continual and unquestionable, but tacit and virtual, recognition is made, in and by the practice of both houses of parliament: inasmuch as, by the House of Commons, operations, of incomparably greater importance than any to which the sanction of an oath is ever applied, viz. measures of legislation—in a word, laws of all sorts—are continually established on the ground of evidence obtained without any assistance from this instrument.
6. That, while to good purposes it is thus inefficient, to bad purposes, vast and indefinite in extent, variety, and importance, it has been, is, and threatens to continue to be, but too efficient: for that the instrument being in its nature alike applicable on every imaginable occasion,—viz. not only on those occasions on which the oath has been distinguished by the name of an assertory oath, but on those on which it retains the name of a promissory oath,—whatsoever pernicious effects it is found pregnant with in the latter of these two characters, will be attached to it, inseparably attached to it, in whichsoever of the two it be employed.
7. That, in the character here in question, viz. that of an assertory oath, it has already been seen to be a main, an indispensable instrument, in the organization of the system of mendacity licences above mentioned.
8. That, in this same character, it has, in a variety of ways, the effect of obstructing the action and weakening the efficiency of the laws.
9. That, in a sort of ambiguous or mixed character, composed of that of the assertory, and that of the promissory oath, it has the effect of bewildering the conceptions, corrupting the morals, and enslaving the consciences of men in the situation of jurymen: contributing, in conjunction with other instruments, to the converting them into puppets in the hands of judges.
10. That, in the character of a promissory oath at large, it is employed, and but too naturally, and with but too much frequency and success, in giving union, force, and effect, to the mischievous enterprises of criminal and lawless conspirators.
11. That, in this same character of a promissory oath, in the mouth of an English monarch, it is but too well adapted to the affording pretence and encouragement to misrule by abuse of prerogative: and on this occasion, the application made of it on and by the coronation oath is brought to view.
12. That, in those seats of superior education, in which the characters of a considerable proportion of the future rulers of the community are formed, the use that has been made, and continues to be made, of this instrument, is such, as to have introduced distortion into the intellectual, as well as corruption into the moral part, of the mental frame: and on this occasion, a fundamental error in morals and legislation—an error respecting the use and application of punishment—forced by an irresistible pressure into the mind in that tender and yeilding state of its growth, is brought to view.
13. That, on any of the occasions, on which, to the purpose of judicature, it is employed in the character of an assertory oath, there exists not any real need of it:—for that its place may be supplied, and with great advantage, by other and unexceptionable arrangements: of which arrangements an indication is accordingly brought to view.
Exclusion of Evidence—a False Security against Deception.
In the character of a security against deception, putting exclusion upon evidence is a practice, which appears to have as yet been everywhere in use: and in the boundless field of evidence, vast in the aggregate,—prodigiously diversified in respect of the seat of the particular spots,—is the extent that would be found occupied by this mode of husbandry, even in those regions, whichsoever they may be, in which the use made of it has been least extensive.
“So universally as this sort of arrangement has been received in the character of a security against deception, is not then its title to that character,” says somebody, “a good one? If exclusion put upon false evidence be not a security against deception by false evidence, what else can be? In comparison of this, how precarious is the effect of all those other securities put together! Can a man have been deceived by evidence which has never been so much as present to his mind?”
No, certainly: and so it is, that if no evidence at all were on any occasion admitted, deception by evidence could not on any occasion be produced.
But deception may be, and is produced,—deception and thence misdecision,—not only by evidence, but for want of evidence: produced, viz. by false or otherwise fallacious evidence on the other side: or by causing not to be believed, the existence of a really existing fact, the existence of which, had the evidence been admitted, would have been believed.
Moreover, if, on the part of the judge, deception be pernicious, it is so only in so far as it is productive of misdecision: and if misdecision itself be pernicious, it is so no otherwise than in so far as it is productive of injustice: injustice, viz. of that sort which stands opposite to the direct ends of justice, as above explained.
If misdecision be one cause by which injustice is produced, non-demand is another. When a man is well assured that the evidence, without which the justice of his demand cannot be made appear, will not, if presented, be admitted,—in such case, be his demand ever so just, and the loss of the object of it ever so fatal to him, he forbears, if he be well advised, to present it.
By non-demand and misdecision taken together, that of the practice of putting exclusion upon evidence, the effect is much more frequently to produce than to prevent injustice,—so much so, that it would be a prodigious benefit to justice, if exclusion of evidence were, in so far as it takes this for its ground, itself for ever, and in every instance, excluded,—is a persuasion, entertained after little less than fifty years of consideration, on grounds of which a slight outline will be given in the present abstract, the filling it up being reserved for the body of the work.
“But trustworthiness—(it may be asked) why speak here of trustworthiness? By whom can any such conception have been entertained, as that exclusion of evidence can operate as a security for the trustworthiness of evidence? as a security for its title to credence, any more than for its actually obtaining credence?”
No, certainly: not for the trustworthiness of the particular lot of evidence to which, in the instance in question, the exclusion is applied: for, by the exclusion put upon it, its untrustworthiness is always affirmed:—not for the trustworthiness of that one lot; but however for the trustworthiness of the whole remaining mass, of which that lot, had it obtained admittance, would have made a part: if so it be, that after the exclusion of whatever articles have been excluded, there be remaining any others to which admittance has not been refused.
[‡ ]It will be found in the tract entitled “Swear not all,” in vol. V. of this collection.
[* ]Matt. v. 34—“Swear not at all.”
[† ]Article 39—“We judge that the Christian religion doth not prohibit, but that a man may swear when the magistrate requireth.”