The Online Library of Liberty

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• Errata—vol. VI. *
• An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
• Chapter I.: Title-page Justified.
• Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
• Chapter III.: Ends of Justice On the Occasion of Judicature. *
• Chapter IV.: Duties of the Legislator In Relation to Evidence.
• Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
• Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
• Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
• Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
• Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
• Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
• Chapter XI.: Collection of Evidence—english Practice.
• Chapter XII.: Of Circumstantial Evidence.
• Chapter XIII.: Of Make-shift Evidence.
• Chapter XIV.: Of Preappointed Evidence.
• Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
• Chapter XVI.: Preappointed Official Evidence.
• Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
• Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
• Chapter XIX.: Exclusion of Evidence.—general Considerations.
• Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
• Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
• Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
• Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
• Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
• Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
• Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
• Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
• Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
• Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
• Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
• Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
• Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
• Chapter XXXIII.: Conclusion.
• Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
• Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
• Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
• Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
• Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
• Chapter V.: Situations.
• Chapter VI.: Makeshift Evidence.
• Chapter VII.: Scale of Trustworthiness.
• Chapter VIII.: Best Evidence, What?
• Chapter IX.: English Law Scale of Trustworthiness.
• Appendix B.: of Imprisonment For Debt.
• Section I.: Its Inaptitude As an Instrument of Compulsion.
• Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
• Section III.: Its Needlessness Demonstrated By Experience.
• Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
• Section V.: Means Employed—mendacity and Usurpation.
• Section VI.: Affidavit Previous to Arrest, Its Unfitness.
• Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
• Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
• Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
• Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
• Appendix C.: False Theory of Evidence—(gilbert’s.)
• Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
• Preface.
• Prospective View.
• Book I.: —theoretic Grounds.
• Chapter I.: On Evidence In General.
• Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
• Chapter III.: Of Facts—the Subject-matter of Evidence.
• Chapter IV.: Of the Several Species Or Modifications of Evidence.
• Chapter V.: Of the Probative Force of Evidence.
• Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
• Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
• Chapter VIII.: Modes of Incorrectness In Testimony.
• Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
• Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
• Book II.: —on the Securities For the Trustworthiness of Testimony.
• Chapter I.: Object of the Present Book.
• Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
• Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
• Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
• Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
• Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
• Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
• Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
• Book III.: Of the Extraction of Testimonial Evidence.
• Chapter I.: Of the Oral Mode of Interrogation.
• Chapter II.: Notes, Whether Consultable?
• Chapter III.: Of Suggestive Interrogation.
• Chapter IV.: Of Discreditive Interrogation.
• Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
• Chapter VI.: Of the Notation and Recordation of Testimony.
• Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
• Chapter VIII.: Five Modes of Interrogation Compared.
• Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
• Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
• Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
• Chapter XII.: Of Re-examination, Repetition, Or Recolement.
• Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
• Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
• Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
• Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
• Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
• Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
• Chapter XIX.: Of Confrontation Under the Roman Law.
• Chapter XX.: Recapitulation.
• Book IV.: Of Preappointed Evidence.
• Chapter I.: Of Preappointed Evidence In General.
• Chapter II.: Of Instruments of Contract In General.
• Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
• Chapter IV.: Formalities, What Proper, and In What Cases?
• Chapter V.: Of Wills, As Distinguished From Other Contracts.
• Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
• Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
• Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
• Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
• Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
• Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
• Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)

CHAPTER XI.

OF THE MORAL CAUSES OF CORRECTNESS AND COMPLETENESS IN TESTIMONY, WITH THEIR OPPOSITES.

§ 1.

The moral causes of correctness and completeness in testimony, with their opposites, are motives.

Of action (including, in so far as it is the work of the will, inaction, or forbearance)—of action, in whatsoever shape displayed, the efficient causes are motives; and it has no others that are perceptible.

Utterance of testimony is action. Whatever verity there is in testimony, is therefore produced by motives: and again, whatsoever mendacity there is in testimony, is also produced by motives. Even when the result of mere temerity or negligence, and therefore not referable to the head of mendacity, falsity may be referred to motives: that deficiency of attention, of which the falsity in question is the result, being itself the result either of the love of ease (an article having, as will be seen, an indisputable title to a place in the catalogue of motives,) or at any rate, of the absence of some motive, by which, had it been present, the requisite degree of attention—the degree requisite to the production of correctness and completeness—would have been produced.

A motive, is the idea or expectation of good or evil:—of good, as eventually about to result from the mode of action or conduct with reference to which the idea or expectation of it operates as a motive; of evil as eventually about to be produced by the opposite mode of action or conduct.*

Motive, being a conjugate of motion—motive (though the only word in ordinary use for the purpose of expressing the efficient cause of the mode or line of conduct observed by a man on every given occasion) is in its import too narrow for the purpose: for, be the result action or inaction—motion (whether of the physical or psychological faculties) or rest,—and, in case of offences for example, be the offence produced an offence of the positive or the negative cast,—an appellative for the designation of the efficient cause of the effect thus produced, is alike necessary.

To supply the deficiency, either such a signification must be added to the signification of the word motive, as involves a sort of contradiction in terms—a motive producing, not motion, but the absence of it, viz. rest; or some other appellative, simple or composite, must be employed instead of it: simple, as determinative,—compound, as principle of conduct, source of conduct, efficient cause of conduct.

Rest being the result of the absence of motives—action, positive action, being, when motives are present and operating, the more usual and more conspicuous result of such their operation—hence, to designate the efficient cause of action, the word motive came originally,—and, for want of conceptions sufficiently clear and comprehensive on the part of moralists, has continued—exclusively to be employed. Of imperfect conceptions, imperfect expression has, throughout the whole field of conception and language, been the necessary result.

The relation borne by the signification of the word interest to the signification of the word motive, has on this occasion been rendered a necessary object of attention, and a necessary subject of explanation, not only by the use made of it in common language, but by the use made of it, and the gross and pernicious errors propagated by means of it, to so prodigious an extent, and with such baneful effect, by lawyers.

Correspondent to every species of pain or pleasure, is a species of motive; correspondent to every species of motive, is a modification of interest.†

A motive, is an interest considered as being in a state of action—as being, on the occasion in question, actually exerting its influence on the mind of the individual in question.

An interest, is a motive considered in an abstract point of view; viz. as possessing the faculty of being called into action, but without presenting to view any particular occasion in which it is considered as employing itself in the exercise of such faculty. When the word motive is employed, the object designated by it is in general not considered as pointing any further than to the particular good which is considered as being in view. Interest—when I say such is my interest, or, it is my interest to do so and so—points not only to the attainment of that good, but to the general effect of that event upon the sum of my well-being.

The word interest is used in an abstract sense; viz. for the purpose of designating either some particular species of interest, but without designating what; or every species of interest without distinction; or all taken together: this acceptation is wanting to the word motive.

The word sinister is applied as an epithet indifferently to the word interest or to the word motive. Employed in the way it usually is, it leads to error; conveying the intimation that there are particular species of interest to which the property thus designated belongs; viz. either constantly or incidentally, but in both cases to the exclusion of others. The truth, however, is, that there exists not any species of interest—any sort of motive, in which this property may not occasionally be found. By a sinister interest or motive, is meant an interest or motive that acts in a sinister direction, i. e. that excites or leads to evil—an interest or motive, by the force of which a man is prompted or excited to engage in some evil line of conduct: but there is not any species of interest—any species of motive, to which it may not happen to act in this, as well as in the contrary, direction.

If this part of the field of language were filled up upon any regular and complete plan, opposite and correspondent to sinister as applied to interest, we should have dexter as applied to the same subject: forasmuch as interest is no less apt to lead to good than to evil. As every man has a right side as well as a left side, so, in heraldry, every scutcheon has a dexter side as well as a sinister side—but the language of psychology, though a science rather more useful than heraldry, is not equally well provided.

Of the three classes, to one or other of which all pleasures and pains, consequently all motives, may be referred, viz. the self-regarding, the social, and the dissocial or anti-social,—the word interest is more frequently applied to designate those of the self-regarding class, than those of either of the two others; and among those of the self-regarding class, most frequently of all to that which stretches over so much larger a portion of the field of action than any other of them, viz. the love of money.

Accordingly, this is the only species of interest which the man of law, at least the English, recognises under that name. Good, he knows of none but money: evil, he knows of none but the want of money: interest, he knows of none but pecuniary interest: interest, motive, passion, he knows of none but the love of money.

Accordingly,—be it as it may in regard to other trangressions—to offences, to crimes, committed by other means, by the aid of other instruments,—mendacity is a transgression to which, according to his conception of the matter, no man can be engaged by any other modification of interest than pecuniary interest: nor is there, according to him, that particle of this sort of interest, so impalpably small, to the force of which, if exerted in exciting him to mendacity, it lies within the sphere of possibility that he should oppose an effectual resistance.*

Of this error in theory, the practical consequence (it will be seen) is no less than perpetual injustice, with that perpetual insecurity, and that perpetually renewed affliction, which are among the fruits of it.

In the objects designated by the words pleasure and pain, we see two articles, of which the importance does not seem much exposed to be undervalued, or the nature very liable to be misunderstood.

By reference to pleasure and pain, the word motive in all its several acceptations, and the species of objects comprised under that genus in all its several modifications, receive, now at least (and, so far as concerns the subject of evidence, now for the first time,) a clear and determinate signification. So many distinguishable sorts of pleasures and pains, so many distinguishable sorts of motives.

On the one hand, veracity, and, so far as depends on attention, verity—on the other hand, mendacity—being the result of determinate motives or combinations of motives,—what remains, so far as the will is concerned in the production of those opposite results, is to observe, on the one hand, in what cases, and in what manner, the efficient causes in question operate in the beneficial and desirable direction indicated by the words veracity and verity—that is, in favour of correctness and completeness, on the other hand, in what cases, and in what manner, the same efficient causes (for in both instances they will be found to be at bottom the same) operate in the pernicious and undesirable direction indicated by the word mendacity.

Considered in the character of an efficient cause of veracity and verity in testimony, a motive of any description may be termed a veracity or verity-promoting, or mendacity-restraining, motive.

Considered in the character of an efficient cause of mendacity or bias, and thence of falsehood, a motive of any description may be termed a mendacity-prompting, exciting, or inciting, motive.

On these definitions may be grounded a sort of aphorism or axiom, which, in the character of a help to conception and to memory, may be not altogether without its use. On every occasion, the probability of veracity, and thence, so far as depends upon will, of correctness and completeness in testimony, is as the sum of the force of the mendacity-restraining, to the sum of the mendacity-exciting motives.

§ 2.

Any motive may operate as a cause either of veracity or of mendacity

Of the causes of mendacity and veracity, the list is the same as that of the causes of human action: no action so good or so bad, that it may not have had any sort of motive for its cause. This is what has been already stated, and, if I mistake not, put beyond doubt, by a general survey of the whole stock of motives elsewhere.*

No action, good or bad, without a motive: an action without a motive, is an effect without a cause. Yet men stand excluded by whole shoals and classes from the faculty of being made to serve in the character of witnesses, for no other reason than then standing exposed to the action of this or that species of motive!

No action, good or bad, or even of the class of those termed indifferent (a class which, strictly speaking, has no existence† )—no action whatsoever without a motive. To actions of atomical and almost invisible importance, correspond motives of atomical and equally invisible force.

To judge whether a motive be capable of giving birth to mendacious testimony exhibited in a court of justice, it will be necessary to observe what sort of result it must be that is expected to ensue from the evidence in question; that is, from the decision which will naturally and properly be grounded on that evidence, taking it for true. Applying this test to the several sorts of motives, we shall find that there is not one of them that is not capable of giving birth to mendacious testimony; that there is not one that would not, in certain cases, be necessarily productive of that effect, supposing the force of it to be unchecked by that of any other motive or motives. As there is no sort of pleasure or pain to which it may not happen to a man to be subjected in consequence of the decision of a court of justice,—it follows of course, that there is no sort of motive by which he may not be urged to do whatever is in his power, towards procuring the decision by which the pleasure in question may be secured to him, or the pain averted. And unless the force of any such motive be counteracted by a stronger motive, it will of course lead him to commit mendacity in that view, if mendacity be the most probable means which occurs to him of effecting his object.

As in the whole catalogue of motives there is none which is not capable of producing mendacity, so in the whole catalogue there is none, the force of which is not liable occasionally to act upon the mind in a direction tending to insure its adherence to the line of truth.

On the same individual occasion, a motive of the same kind operating on different persons at the same time, may prompt one of them to speak true, the other to speak false.

Take the motive of self-preservation—self-preservation from legal punishment. In the character of defendants on a criminal charge, two persons are under examination. One of them is innocent: his interest is manifestly to speak true; every true fact he brings to view, that is pertinent to the object of inquiry, operates in his favour in the character of circumstantial evidence. The other is guilty: the true facts, if brought to view, would operate towards his conviction, in the character of articles of criminative circumstantial evidence: accordingly, under this apprehension, he either suppresses the mention of them, or denies their existence, substituting, or not substituting, in the room of them, false facts of his own invention, adapted to the purpose.

On the same individual occasion, the self-same motive, operating on the same person at the same time, may prompt him, in relation to one fact to speak true, in relation to another to speak false.

The guilty defendant is under examination as before. Various questions are put to him, tending to draw from him the admission or the denial (say the admission) of so many various facts. These facts are all true; all of them in their tendency operating against him in the character of circumstantial evidence. Within the compass of twenty-four hours, suppose he was at four different places specified. Self-preservation is his object—an object he is willing to purchase, and at any price. In regard to three of the four facts, mendacity, he sees clearly, presents not the smallest chance of being of use: these facts, he understands, will be proved against him by other evidence; and mendacity being thus detected, would operate against him in the character of a criminative circumstance: the fourth, he hopes, may not be thus capable of other proof. What in this case will he do? He will admit the three first facts, and in respect to those facts, speak true: he will deny the fourth, and in respect to that, speak false.

Mendacity or veracity will in each instance be the result, according as, in that particular instance, the force of the mendacity-prompting, or say seducing motives, or that of the veracity-insuring, or say tutelary motives, is the strongest.

There is no species of motive but what is capable of existing in, and acting with, any degree of force, from the lowest to the highest or—at least, a degree in practical effect equal to the highest.

There is no species of motive, of the effective force of which, in any given instance, any tolerably well-grounded estimate can be formed, without a survey made of the several influencing circumstances in the situation of the witness, on which the effective force of the motive depends; which survey cannot be completely made without a vivâ voce examination taken of the witness himself, having for its object the bringing of those circumstances to light.

There is no one species of motive, of the effective force of which any certain prediction can be made, even after a survey taken, and taken in the best manner, of the several influencing circumstances above mentioned.

Although there be some species of motives, of which the force is upon a medium considerably greater than that of others; yet, as they are capable of acting, each of them, according to circumstances, with any degree of force, from the highest to the lowest, it is impossible to form any tolerably well-grounded prediction with respect to the comparative probability of mendacity or veracity, from the mere observation that, on the occasion in question, the witness is subjected to the action of this or that species of motive.

These two axioms cannot be too often repeated.

No species of motive but is capable of operating in the character of a mendacity-exciting cause.

With but slight exception, and with none that is worth noticing for this purpose, no species of motive but is capable of operating with any degree of force.

In the non-observation of these fundamentally important truths, lies the main root of the exclusionary system already spoken of—that system of misrule, the exposure of which in detail is one of the principal objects of this work.

§ 3.

Of the four sanctions, considered as causes of trustworthiness or untrustworthiness in testimony.

By interests and motives, so far as depends upon the state of the will, are (as hath been seen) produced, in so far as it happens to them to be produced, correctness and completeness in testimony. By those same psychological powers, so far as depends upon the will, are, on the other hand, produced, in so far as it happens to them to be produced, the directly opposite qualities, incorrectness and incompleteness.

But, in each pair, the opposite qualities are in such sort opposite, as to be mutually incompatible. Incapable of existing both of them in the same instance; in each instance, which is it that shall have place?

All depends upon the occasion: of the two opposite sets of forces—on one occasion we shall see the one set prevail—on another occasion, the other.

One leading distinction, however, may be remarked at the outset. Of the tutelary forces, the efficient causes of correctness and completeness, the operation (as will be seen) is constant—operating on all occasions: while of the seductive forces—the efficient causes of incorrectness and incompleteness—the operation is but casual, brought about by particular incidents and situations.*

The general prevalence of correctness and completeness over the opposite qualities in testimony, is a matter of fact out of the reach of dispute, and a state of things the existence of which may be regarded as indispensably necessary to the existence of mankind: it is to the general predominance of the tutelary forces over the seductive, that this prevalence of truth over falsehood is to be ascribed.

Be it in the correct direction, or in the sinister and seductive direction, that it acts—it is still by interest, operating in some shape or other in the character of a motive, that (so far as depends upon the state of the will) the state of the testimony in respect of correctness and completeness is produced. But whether it be the act of giving testimony, or any other sort of act, that constitutes the occasion on which they are considered as operating,—these forces, considered in respect of the direction (viz. the straight direction) most frequently and habitually assumed by them, have in another place† been considered as acting in various groupes; to each of which groupes the name of a sanction, in conformity to a usage already found established, has been attached: the principle of combination being, in each instance, the source from whence the pains and pleasures, acting thus in the character of interests and motives, are seen or supposed to flow.

According to this principle of division, there are four distinguishable sanctions: the physical, the legal or political, the moral or popular, and the religious; which three last may, in consideration of the seat of the pains and pleasures immediately belonging to them, be comprised together under the collective appellation of psychological.

To the physical sanction may be referred all pains and pleasures which are capable of being produced, and habitually are produced, by the operation of causes purely natural; without the intervention of any of the powers, from which the pains and pleasures belonging to any of those other sanctions derive, or are supposed to derive, their existence.*

To the legal, or say the political† sanction may be referred all such pains or pleasures as are capable of being expected at the hand of law and government: pains which, expected from that quarter, and considered as expressly designed to influence action, assume the name of punishment: pleasures which, expected from that quarter, and considered as designed to influence action, assume the name of reward

As there is scarce a pain or pleasure, whether of the physical class or the psychological, which may not immediately or remotely be produced by the hand of political power, and thus assume the shape of punishment or reward; hence it may be understood, that the circumstance by which the pains and pleasures capable of emanating from the legal or political sanction, are distinguished from those of the physical, is, not so much the nature of the sensations themselves, as the quarter whence they are looked for—the source from which they are expected to flow.

To the moral, or say the popular‡ sanction, may be referred all such pains and pleasures as are capable of being expected at the hands of the community at large—that is, of such individual members of it, within the sphere of whose action it may happen to the condition of the individual in question, in his supposed character of witness, to be comprised: such individuals acting, on the occasions in question, in pursuance of whatsoever liberty of indifference is left to them by the law; and accordingly, at pleasure, rendering, or forbearing to render, to him, any such services as they are left at liberty to render or to withhold at pleasure; and producing on his part, or forbearing to produce, any such uneasinesses as, in his instance, they are in like manner left at liberty to produce at pleasure.

From the catalogue of the pains referable to this sanction, are obviously excluded all those severer pains which, for their infliction, require the uncontroulable and irresistible hand of law. But, with this exception, the pains as well as pleasures referable to this sanction, and emanating from this source, may be said nearly to coincide with the pains and pleasures referable to the artifical source just mentioned. When negative action is taken into the account as well as positive—negative action, to which much greater liberty is, and in the nature of the case must be, left by law than to positive,—it will be seen, that of the pains to which a man can be subjected by law, there is not one to which, in a way more or less immediate, it may not happen to a man to be subjected by the free agency left to individuals; viz. in this sense, that, by means of some service or other which it was left free to them to render or not, he might by this or that individual have been preserved from it.

To the religious sanction are to be referred all such pains and pleasures as are capable of being expected at the hands of an invisible Ruler of the universe,

In so far as the pains and pleasures expected from this supernatural source are regarded as eventually liable to be experienced in the present life, they comprehend and coincide with the aggregate multitude of the pains and pleasures belonging to the other sanctions: in so far as they are regarded as liable to be experienced in a life to come, they are inconceivable and indescribable as the Being from whose hand they are expected to emanate.

§ 4.

Operation of the physical sanction, for and against correctness and completeness in testimony.

In the case of the political, popular, and religious sanctions,—among the pains and pleasures respectively belonging to them, there is not one, the expectation of which is not capable of operating in the character of an efficient cause of, or at least a security for, correctness and completeness in testimony; since, in all these several instances, the production of the pain or pleasure in question, in the bosom of the supposed witness, is the result of a will different from, and extraneous to, his own—the will of some other being or beings; and in each case, among the several pains and pleasures, the production of which is in the power of the being in question, it depends upon his will to apply, in the case in question, whichsoever of those forces he pleases.

In the case of the pains and pleasures of the physical sanction, in so far as applying to the purpose here in question,—no such extraneous will, nor indeed any will at all, taking any part in their production,—the only pain or pleasure that has place is one that grows of itself out of the nature of the case. This, it will be seen, is a pain only; and this pain, the pain of labour (mental labour) or exertion: and the motive corresponding to this pain, is the love of ease.

To relate incidents as they have really happened,* is the work of the memory: to relate them otherwise than as they have really happened, is the work of the invention. But, generally speaking, comparing the work of the memory with that of the invention, the latter will be found by much the harder work. The ideas presented by the memory present themselves in the first instance, and as it were of their own accord: the ideas presented by the invention, by the imagination, do not present themseves without labour and exertion. In the first instance come the true facts presented by the memory, which facts must be put aside: they are constantly presenting themselves, and as constantly must the door be shut against them. The false facts, for which the imagination is drawn upon, are not to be got at without effort: not only so, but if, in the search made after them, any at all present themselves, different ones will present themselves for the same place: to the labour of investigation is thus added the labour of selection.

Hence an axiom of mental pathology, applicable to the present case—an axiom expressive of a matter of fact, which may be stated as the primary and fundamental cause of veracity in man. The work of the memory is in general easier than that of the invention. But to consult the memory alone in the statement given, is veracity: mendacity is the quality displayed, so far as the invention is employed.

The love of ease—in other words, the desire of avoiding the pain of mental exertion—is therefore a motive, the action of which tends, on every occasion, with more or less force and effect, to confine the discourse of a man within the pale of truth.

But the pain which in this case acts on the side of veracity,—which acts as a sort of punishment attaching upon the first tendency and leaning towards the path of mendacity—which acts, therefore, as a sort of restrictive force, confining the discourse within the path of truth,—is a punishment which arises immediately and spontaneously out of the offence; which arises of itself, without need of the interposition of the will of any other being, divine or human, to apply it, as in the case of the other three sanctions. The sanction to which this pain, this motive, belongs, is therefore that which has been termed the physical. It is the same sanction by which a man stands prohibited from striking his hand against the edge of a knife, or holding it in the flame of the candle.

Such would be the case, even if the chance in favour of correctness rested on no other basis than the influence of the physical sanction, as above described, taken by itself. But when the influence of the moral sanction is brought upon the carpet, the disproportion receives an ulterior increase.

The act of reporting as true that which is not true,—such a transgression of the line of truth, even when not attended with a consciousness of the departure, is a mode of conduct against which the moral sanction points its censure with a certain degree of force: much more, when the departure is regarded as attended with that vicious consciousness. The labour of invention, consequently, is increased: since the story must be framed, not only so as to answer a present purpose, by deceiving the person to whom it is addressed, but, if possible, so as not to draw down upon the inventor the pain of public disesteem, by being subsequently discovered to be false.

The axiom above brought to view is not a mere barren speculation, but of very high importance with reference to practice. Applied to English law, it will serve to justify the admission of a class of evidence which of late years has been admitted, but which in former times had been excluded: I mean the testimony of non-adults of a tender age. Is the child sufficiently instructed in regard to the nature and consequences of an oath? Upon the ground of this question has the decision, with regard to the admission or rejection of the child’s testimony, been customarily placed. In another place, I shall have occasion to show the fallaciousness of such ground. In return to the suddenly put and unforeseeable question that will be respectively grounded upon each preceding answer,—is it, under these circumstances, most likely that the memory, or the invention, shall on each occasion be the fund to which, for the matter of each respective answer, he will have recourse? Of the two, this would seem to be the more reasonable question.

In the matter of fact of which the above axiom is the expression, we already find a cause adequate to account for the predominance of veracity over mendacity—a cause, of the due consideration of which, the natural tendency will be to confirm or increase our confidence in human testimony, independently of whatever security for veracity may be afforded by the influence of the three other sanctions.

Children—(says a proverb one sometimes hears) children and fools tell truth. There is something offensive in the proverb: there is a sort of immoral turn in it—a sort of intimation, as mischievous as it is false, of a natural connexion between veracity and folly. On the first mention of it, one conceives it to have had for its author a species of knave, who, as such, is a species of fool; for, though all folly is not knavery, yet there is no knavery that is not folly. When the covering of immorality and folly is stripped off from it, its foundation, however, appears to be laid in nature. It had been observed as a matter of fact, that veracity in man was more frequent than mendacity—truth than falsehood; that this frequency was particularly great among such classes of persons as, by the complexion of their understandings, were less sensible to the action of a distant interest—such as that sort of interest commonly must be, by which, on occasions of importance, such as those which come before a court of justice, a man can be influenced to step aside from the path of truth. By the first impulse—by the impulse of the universal principle above delineated—by a sort of instinctive impulse, the line in which a man’s discourse is urged is invariably the line of veracity—of truth: it is only by reflection—reflection on the distant advantage supposed to be obtainable by falsehood, that a man’s footsteps can be turned aside out of that line.

Whatsoever be its direction—in the absence of all rival powers, the love of ease, minute as is the greatest force which on these trivial occasions can be applied by it, is in every instance omnipotent—the power that worketh all in all.*

But,—that, in every instance, to the insuring of verity in contradiction to falsity, the force of this commanding principle applies itself;—to this proposition, before it can be brought to an exact coincidence with the line of truth, some limitation, and that not an inconsiderable one, will require to be applied.

To prevent the testimony from being false in toto, will indeed require less exertion than the opposite course: but to render it, and in every circumstance, a correct and complete picture of the fact, will at the same time frequently require more exertion than, without some degree of uneasiness, could be bestowed. In proportion as the balance inclines to this side,—here then, supposing the result to depend on the physical sanction alone, here would be a mixture of truth and falsehood.†

The result is, that, under the physical sanction (supposing its force the only force in action,) so far as depends upon will, falsehood in toto would never have place; falsehood in circumstance would be frequent: truth would, in every case, constitute the ground; but that ground would be frequently receiving a tincture of falsehood: and the more complex and extensive the ground, the deeper and more extensive would the tincture be naturally apt to be.

Thus far, no interest is supposed to have place, other than that weak, though, in default of all opposing interest, adequately-operating interest—the interest created by the aversion to labour. But let the case be open to any other interest—to any other motive—acting in a sinister direction; there is not any species of interest so weak, the force of which is not capable of existing in a degree sufficient to overcome the correctly-acting force of the physical sanction, and in such sort that falsehood, even in toto, shall be the result. All these motives, however, act more frequently on the side of truth than on that of falsehood.

The more particularly the nature of human intercourse comes to be considered, the more thoroughly we shall be satisfied that it is not by the general and standing interests alone, but by the particular and fleeting interests of each moment also, that the property of truth is secured to the general tenor of human discourse. In particular, it is only by making known, and that truly, something that he thinks, that a man can obtain what he wants. For a number of years, reckoning from the commencement of the power of locomotion, we are all necessarily subject to the perpetual exertion of the power of command. But the power of command can obtain its gratification on no other terms than by the most correct adherence to the line of truth. By every act of command, a desire is made known; and, in proportion as the desire fails of being truly stated, it is certainly frustrated.

§ 5.

Operation of the moral or popular sanction, for and against correctness and completeness in testimony.

Happiness, in almost all its points, is, in every individual, brutes scarcely excepted—the most brutish savages not excepted, more or less dependent upon knowledge; the word knowledge not being on this occasion confined in its application to the knowledge of those recondite facts which belong to the domain of science. But in all cases, except that of a life carried on from beginning to end in a state of perfect solitude, knowledge depends in the largest proportion upon testimony: and except in those cases of comparatively rare occurrence, in which falsehood itself serves to lead to truth,* it is only in so far as it is expressive of truth, that testimony is productive of knowledge.

All the confidence we can ever have, or hope to have, in mankind, either under the law or without the law,—all the reliance we can place on the expectation we entertain of any of the innumerable and daily services, obligatory or free, which we stand in need of for the sustentation and comfort of our existence,—all depends, by a connexion more or less close and immediate, on the preponderance of men’s disposition towards the side of veracity and truth.

The force of the moral or popular sanction coinciding in the main with the force of general interest,—hence it is, that, throughout the whole field of intercourse between man and man, in every state of society (the rudest not excepted,) the moral or popular sanction is, with only here and there a casual exception, found in action constantly on the side of truth.†

Of the degree of force with which the moral or popular sanction acts in support of the law or rule of veracity, a more striking or satisfactory exemplification cannot be given, than the infamy which so universally attaches upon the character of liar, and the violent and frequently insupportable provocation given by any one who, in speaking to, or in the presence of another, applies to him that epithet.‡

There has not, I suppose, existed anywhere, at any time, a community,—certainly there exists not among the civilized communities with which we have intercourse, one in which the appellation of a liar is not a term of reproach. Among the most egregious and notorious liars that ever existed, I cannot think that there can ever have been a single individual to whom it must not have been a cause of pain as often as it happened to him to hear the appellation applied to himself—to whom it would not have been matter of relief and comfort, had it been possible for him to have disburthened his character from the load of it.

Such is the power of the moral or popular sanction, when applied to extrajudicial testimony—to that sort of discourse which has place between man and man in the miscellaneous intercourse of life.

But the force with which it acts in behalf of truth is applied with much more energy, as well as with much more constancy, when (the importance of truth being the same in both cases) the testimony is of the judicial kind—delivered on a judicial occasion—or even, when not delivered on a judicial occasion, if delivered in contemplation of its being eventually applied to a judicial purpose.*

In the main, and upon the whole, the force of the moral or popular sanction acts in a direction favourable to general happiness and virtue. In the main, accordingly, the direction taken by this same force is favourable to that particular branch of virtue which consists in veracity.

But, to the proposition by which this predominant tendency is announced, ere its limits can be brought to coincidence with the line of truth, considerable exceptions will require to be made.

One capital exception has for its cause the repugnancy—the inbred and irremovable repugnancy, that exists between the aggregate mass of the precepts by which it prescribes good conduct in general and prohibits vice in general, and that particular precept by which it prescribes veracity, and reprobates the opposite vice.

Avoid vicious conduct—conduct prejudicial to the general interests of the community of which you are a member, yourself included; avoid vicious conduct, or the ill opinion, and consequent ill will and ill offices, of the community, will attach upon you. Avoid vicious conduct in every shape, and in the several shapes of mendacity, and falsehood through culpable inattention, among the rest.

Thus far we have the result of its action on the side of virtue. But now comes its action on the side of vice. Whatsoever vicious conduct it has happened to you to fall into, conceal it at any rate from the public eye: for it is only in proportion as it falls within the compass of the knowledge or suspicion of the public, that the evil consequences held up to view will take place. But, by him by whom vicious conduct is confessed, it is not concealed—by him by whom, after it has taken place, it is denied to have taken place, it is, or may be concealed, in so far as it is in the power of mendacity to conceal it.

No really existing person could with truth and propriety be represented as delivering on one and the same occasion these repugnant precepts. But if the word precept be on this occasion employed, and the form of a precept given to the discourse in which it is employed, it is in pursuance of one of those unavoidable metaphors to which language is so frequently compelled to have recourse. What there is of strict reality in the case, consists of two motive forces—two interests, acting at the same time in opposite directions on the human mind: and between these motive forces the opposition in question may be seen actually to have place. By confessing what he has done, the individual in question would expose himself to shame: but by denying what he has done, he also exposes himself to shame.

Acted upon as he is by these two opposite forces,—by which of them will the line of his conduct, in regard to testimony, be determined? By that one of them by which, at the moment in question, the interest of the greatest value is presented to his eyes,—certainty and proximity, those two never-to-be-over-looked dimensions, being taken into the account of value.

On this occasion (let it not be forgotten) the question is,—not what is most fit and proper, but what is most likely, to be done. The dilemma be the occasion what it may, is a distressing one. By one only course may the dilemma be avoided. Avoid vice in other shapes, and the temptation to plunge into mendacity for the hope of escaping from that shame which follows at the heels of vice, will not assail you: such is the advice in which the virtue of veracity joins with the other virtues.

Of the other exceptions to the truth-promoting tendency of the moral sanction, the origin may be seen in the opposition between particular interests, and general. The force of the moral sanction, of the popular sanction, taken in its greatest extent, is composed of the general interests of the community at large. But, in every political community, smaller communities or aggregations of individuals will be found; each aggregation having an interest common to all its members, but opposite to that of the all-comprising aggregate to which they all belong; and to every such partial, though still composite interest—to every such section of the community, corresponds a section of the popular or moral sanction, and of the moral force with which it acts.

A sort of honour is to be found among thieves. So it has often been observed, and truly: but this honour is neither more nor less than a disposition to pursue that interest—to be impelled by that detached portion of the general moral force, by which the members of the predatory community in question are bound together. The whole community has its popular or moral sanction upon an all-comprehensive scale: the several communities of thieves, smugglers, and all other communities having particular interests acting in opposition to the general interest—all those, recognised or not recognised as being included in the more comprehensive class or denomination of malefactors,—have each of them a sort of section of the popular or moral sanction to itself.*

It is the interest of the community at large that truth alone should be uttered; that the language of mendacity and deception should be abstained from on every judicial occasion, and on almost every other occasion: abstained from, although, and for the very reason that, the commission of it threatened to be beneficial to the particular interests that act in opposition to the general interests:—to the common interests, for example, of thieves and smugglers.

It is the interest of the community that truth should be revealed, as often as the disclosure of it promises to be conducive to the bringing down of punishment upon the heads of thieves and smugglers. But it is the interest of thieves and smugglers that truth should never be revealed, but always concealed, as often as the disclosure of it threatens to be conducive to the bringing down punishment on the heads of thieves or smugglers. Among these malefactors, therefore, the section of the moral sanction, which applies to testimony, prescribes mendacity while it prohibits, and, as far as may be, punishes veracity, as an act of vice and treachery.

In any community composed of thieves or smugglers, is any act of depredation committed by one member to the prejudice of the rest? The force of the moral sanction changes now its direction, though not its nature: the force of this section of the popular sanction now joins itself to that of the whole;—mendacity is recognised as a vice—veracity, as a virtue.

The interest which these communities of malefactors have in mendacity, would not, however, have succeeded in perverting the moral feelings of the great bulk of the community, who have no interest but in the universal prevalence of veracity, had not the sinister interest of thieves and smugglers found to this purpose a powerful auxiliary in the sinister interest of lawyers.

Under every system, every mercenary lawyer—under the fee-gathering system, every lawyer without exception—has an interest, as unquestionably, though not as uniformly, opposite to the general interest, as that which forms the bond of union in communities of thieves or smugglers. Under that system, every lawyer without exception—the whole fraternity together, with the judges at their head—have a particular interest in common with the interests of malefactors and wrongdoers of every description, not excepting thieves and smugglers. It is their interest that lawsuits,—understand those and those alone which are pregnant with fees,—lawsuits, by whatsoever name distinguished—action or prosecution—may abound to the utmost pitch. That prosecutions may abound, it is their interest that crimes of all sorts may abound: that actions may abound, it is their interest that wrongs of all sorts may abound; as well those wrongs of which the hand of the judge is the pretended avenger, as those of which it is the unacknowledged instrument. It is their interest that wrongs of all sorts be sometimes punished, lest plaintiffs be discouraged, and the mass of litigation and profit be diminished at one end: it is their interest that wrongs of all sorts remain sometimes unpunished and triumphant, lest the mass of litigation and profit be diminished at the other end. It is their interest that every modification of vice, by which litigation with its profit can be produced, may abound; and thence, in a more especial degree, that mendacity, the instrument and cloak of every vice, may abound.

Neither to thieves nor to smugglers, nor to wrongdoers in any other shape than that of judges, has any such power been given as that of granting impunity, and, by means of impunity, licence, to the vice of lying: accordingly, neither by thieves, nor by smugglers, nor by wrongdoers of any other denomination, has any such licence been ever granted.

Judges, under favour of the oscitancy or connivance of the legislature, have given to themselves that power: and such is the use they have made of it, that the whole system of judicial procedure is one continued tissue of lies—of allowed, protected, rewarded, encouraged, and even necessitated, lies.

In this instance as in every other, power, in proportion to its magnitude, serves as a shield as well to every vice as to every crime. Contempt is that modification of the punishment of the moral sanction, that is more particularly attached to the character of liar,—and power, in proportion to its magnitude—power, though it affords not protection against hatred, affords it effectually against contempt.

Hence it is, that, as well the mercenary advocate, whose trade and occupation consist everywhere in the sale of lies, as, under the fee-gathering branch of the English system of procedure, the fee-fed judge, who deals in the same ware,* remain untouched by that infamy, with which, if the dictates of the popular sanction coincided uniformly with the dictates of general utility, they would be covered; and by which the occasional and unprivileged liar, whose lies are many hundred times less frequent, is overwhelmed. The power constitutes a vantage-ground, by which the head of him who is stationed on it is raised above the flood in which the undistinguished, but less guilty herd, are drowned.†

Thus, by the incessant action of comparative knowledge upon invincible ignorance, has the force of the moral of popular sanction been divided and turned against itself. In correspondence with this schism, the aggregate mass of mendacious testimony has been divided, in the contemplation of the public, into two parcels:—whatsoever portion the judge has found it more for his advantage to punish than to permit or to reward, remains in a state of proscription as before, and is continued under the denomination of vice: whatsoever portion he finds it more for his interest to reward or to permit than to punish, is regarded either with indifference or with approbation, and is ranked under the denomination either of innocence or of virtue.

Mendacity is not only permitted, but in some cases properly permitted, by the moral sanction. That cases exist in which a departure from truth is, and ought to be, either prescribed, or at least allowed, by the moral or popular sanction considered in its true and largest sense, is out of dispute. Being in many instances cases of considerable intricacy and delicacy, it happens fortunately, that, to the purpose of the present inquiry, any very particular description of them is neither necessary nor pertinent.

1. In some cases, departure from truth is prescribed by the moral sanction as a duty. Such are all those in which mischief to another would be the certain or probable effect of verity, while from falsity no evil at all, or at least no equal evil, will, with equal probability, be the result: as, if a madman or assassin, with a naked weapon in his hand, asks whether his intended victim be not there, naming the place where he actually is.

2. To this same head may belong falsehoods of humanity or beneficence: as when a physician, to save pain of mind, gives hopes which he does not entertain himself.

3. To this same head may be referred what may be termed falsehoods of urbanity; which is but humanity or beneficence applying itself to interests of inferior moment: as where, on being interrogated by Artifex concerning the degree of estimation in which he holds a production of Artifex,—for fear of applying discouragement, Crito gives for answer, a degree higher than that which he really entertains: and so in regard to conduct in life, taste, and so forth.

4. As to cases in which departure from truth is allowed without being prescribed. A footing on which this matter is commonly placed seems to be, that, where a man has no right to the information sought by him, the information need not be given to him. But granting, that were probity, or the duty of one man to another, the only consideration to be attended to, a liberty thus ample might and would be allowed,—the latitude will be found to receive very considerable limitation, when those considerations are attended to, which concern a man’s self-regarding interest, and belong to the head of prudence.

So dishonourable and pernicious to a man is the reputation of habitual or frequent falsity—so honourable and so valuable to him that of never having violated truth—that, without the least prejudice to any other individual, by even a single departure from veracity it may happen to a man to do irremediable mischief to himself.

The wound thus given by a man to his own reputation will be the more severe, the more intense and deliberate the averment by which the truth is violated: and thus it is, that after a falsehood of humanity or urbanity, uttered with a faint or ordinary degree of assurance,—if urged and pressed, stronger and stronger asseverations being on the other part called for in proof of the verity of the preceding ones, a man may, for the preservation of his own character, find it necessary to give up the enterprise of humanity or urbanity and declare, after all, the naked truth.

A disquisition of no small length and intricacy might be employed on the subject of the exceptions proper to be made to the general rule of verity: a disquisition, curious and interesting at any rate; but, whether subservient or not upon the whole to the interests of morality and happiness, would depend upon the manner in which it was conducted.

§ 6.

Operation of the legal sanction, for and against correctness and completeness in testimony.

The force of the moral sanction was found insufficient to secure good conduct in general: it was found necessary to add to it the force of law.

The force of law itself cannot be applied but through the instrumentality of testimony; and testimony is of no use but in so far as it leads to truth. The same deficiency which produced the necessity of adding the force of the legal to that of the moral sanction, for the purpose of securing good conduct in general, produced the necessity of applying the same auxiliary force to the particular purpose of securing that particular modification of good conduct which consists in attaching the good qualities of veracity and verity to whatsoever testimony comes to be delivered on a judicial occasion or for a judicial purpose.

Many and extensive are the portions of the field of law, in relation to which the popular sanction has nowhere as yet fashioned,—nor (till it has received that sort and degree of improvement which it may yet for a good while have everywhere to wait for) will it fashion—its dictates, so as to bring them to an exact coincidence with those of the principle of general utility. In relation to those same portions of that field, the regulations of the legal sanction are naturally and generally found to approach nearer than those of the popular sanction to so desirable a coincidence. The quarter in which this deficiency is most conspicuously observable, is that which regards those transgressions which are properly termed public; viz. such offences, by the mischief of which, though it be seen to hover over the heads of the whole community, no assignable member of that community is seen to be afflicted.*

One of the advantages of the political, as compared with the moral sanction, is the greater constancy with which it can avail itself of interrogation—an operation which in many instances is indispensably necessary to the verity of testimony, more particularly in so far as concerns completeness. In some instances, this security may chance to have been applied in such sort that the force of the moral sanction may have had the benefit of it; some individual or individuals, willing to apply this instrument and so circumstanced as to be able to apply it with effect, being at hand at the moment at which the testimony is delivered. But the application of this instrument is an act of power: and it is only in the hands of the administrator of the force of the legal sanction—it is only in the hands of the judge, that power of this description is sure at all times to be found.

The force of the political sanction, like that of the moral sanction, may be considered to be one of the standing causes of veracity—standing counter-forces, acting in opposition to mendacity. Like that of the moral sanction however, and from the same cause, it is capable of being by accident brought to act on the adverse side.

Punishment, legal punishment, is, in every civilized country, annexed to mendacity in judicature. But wherever the effect or tendency of true testimony would be to subject the deponent to any obligation of the burthensome kind,—whether on the score of punishment, satisfaction to be rendered to a party injured, or right to be conferred on the adverse party,—so much of the occasional force of this sanction is made to act in opposition to its regular and standing force. In every such case,—abstraction made of every other species of motive,—whichever of the two antagonizing forces of the same sanction, its standing force and its occasional force, happened on each occasion to be the greater (certainty and proximity, as well as intensity, of the punishment, being taken into account on both sides,) on that side human conduct would be sure to be found. If, for example, the offence for which a man were under prosecution, was a species of fraudulent obtainment, the punishment of which consisted of transportation for three years,—while the punishment for the perjury, in case of his answering falsely while under examination on that occasion, was transportation for seven years,—and the probability of conviction appeared exactly the same in both cases; abstraction made of all other motives, veracity in this case ought, in every instance, to be regarded as certain: while on the other hand, all things remaining as before,—if, instead of transportation for three years, the punishment for the fraud were transportation for fourteen years, perjury might in every instance be set down for certain in this case, as veracity was in the other.

This is the casual operation of the legal sanction, to the prejudice of truth: but many instances there are, in which it is made to operate in that mischievous direction by design.

If the administrator of the force of the legal sanction had all along and everywhere been faithful to his trust, the application made of that force to judicial testimony would have been uniform and proportionable: applying itself to all cases in which it happened to such testimony to be delivered, and in a degree regulated by the quantity of force which the opposing force to be surmounted, and the importance of the case (that is, the magnitude of the mischief liable to take place in the event of falsity on the part of the witness, and consequent deception and misdecision on the part of the judge,) required.

But, under every civilized government that has had existence, the administrator of the legal sanction has, as will be seen, been in this particular unfaithful to his trust. Everywhere, at first by the inexperience, and consequent ignorance and unskilfulness—afterwards by the oscitancy or corrupt connivance of the legislator,—the formation of the law of evidence has, along with that of so many other branches of the law, to so immense an extent been abandoned to the judge. Left without allotted recompence by the indigence, the penuriousness, or the improvidence of the legislator, and at the same time with powers adequate to the practice of extortion without stint, the judge has in every country converted the sword and scales of justice into instruments of fraud and depredation.

Having been suffered to convert all judicial demands into a source of profit to himself, he has applied himself to the multiplication of unjust demands: having been suffered to convert all judicial defences made before himself into a source of profit to himself, he has applied himself to the multiplication of unjust defences: having been suffered to convert all judicial expense into a source of profit to himself, he has applied himself to the multiplication of judicial expenses: having been suffered to convert all judicial instruments, and all judicial operations, into sources of profit to himself, he has applied himself to the augmentation of the magnitude and multitude of judicial instruments, and of the multitude of judicial operations. Beholding in delay an encouragement to unjust demands as well as unjust defences, and at the same time, on the occasion of all demands and defences without distinction, a source of incidents which beget occasions or pretences for additional instruments and additional operations, he has applied himself in like manner, with equal energy and success, to the multiplication of delays.

Beholding in mendacious statements a pretence for the reception and entertainment of unjust demands, of unjust defences, of useless expenses, of needless and useless instruments and operations, and of groundless delays (sources of those needless and useless expenses, instruments, and operations,) he has occupied himself in cherishing with one hand that mendacity, which he has been occupied at the same time in punishing with the other. Attaching punishment to those unprivileged lies, in which individuals at large, in the character of suitors, or in other characters, have been concerned by themselves, he has attached reward to those lies in the utterance of which they have employed, as accomplices or substitutes, his subordinate instruments and partners: and, lest with all these lies there should not be yet enough,—having been suffered to convert his own lies into a source of profit to himself, he has multiplied his own lies, lies signed by his own hand, without limit and without shame.*

In holding up therefore to view the force of the legal sanction in the character of a tutelary force, utterance was given to a general rule, of a nature not to be reduced within the limits of truth till after it had been cut into by extensive and numerous exceptions: for, if it were to be held up in the character of a force uniformly and faithfully exerted on the side of truth, regard would be to be had not to what it is, or ever has been, but to what it ought to be, and is so generally, though so erroneously, supposed to be.

I say, supposed to be; for among the delusions which inbred mendacity has, from first to last, been occupied in propagating with so much industry and success, in none has it been more completely successful than in persuading the people, in contradiction to their own eyes and their own feelings, to mistake impunity for purity, and prostrate themselves before the den of mendacity and of depredation, as if it were the sanctuary of truth and spotless justice.

The effect of this perversion of the legal sanction, in occasioning a correspondent perversion of the moral sanction, has been brought to view in the last section. But this is not the only ravage committed by an abuse of the legal sanction upon the force of the moral, even in that part of the field that belongs to testimony.

To an abuse of the power of the political sanction, the nature of things admits of no other check than the resisting force of the moral or popular. A determination to destroy this only check, and thus render the power of the political sanction, by whatsoever vile hands wielded, completely arbitrary, has been not only indefatigably prosecuted, but openly avowed. Judges have been found so insensible to the voice of censure, or so secure of not incurring it, as to maintain for law, and thus to establish for law, that,—when misconduct in any shape is, in any printed and published or written and communicated paper, charged upon a man in power, themselves not excluded,—the truth of the charge, so far from being a justification, shall be deemed to operate as an aggravation; and so far as depends upon themselves shall operate in aggravation of punishment—of that punishment by which, and by which alone, at the command of shameless despotism, the quality of guilt is impressed upon meritorious innocence.

That the triumph over truth may be the more complete, a definition of the sort of instrument called a libel is said to have been given—a definition which requires but to be consistently acted upon, to level whatsoever difference may exist between the constitutions of Britain and Morocco. A libel is any discourse, by which, it being put into writing and made public (whatsoever is to be understood by public,) the feelings of any individual are hurt, injured, violated, wounded, or whatsoever other word it be, that, to answer the purpose of the moment, is presented by the powers of harmony to the rhetoric of despotism. Not that, by this law, the manufacturers of it would wish to be understood as the less friendly to the interests of truth and liberty: for, so often as twelve men, under the name and character of petty jurymen, can be found to join with one voice (speaking upon their oath) to declare their persuasion that the feelings of a malefactor receive no hurt from his seeing himself held up to view in that character—in other words, that it is matter of indifference to a man, guilty or not guilty, whether he be thought criminal or innocent—in a word, that, whether innocent or guilty, man in general has not any such sense belonging to him as the sense of shame,—so often are they at liberty to save him who has been ruined by prosecution, from being ruined over again by punishment.

Towards destroying altogether the force of the moral sanction, the most extensively operating security for individual good conduct, and the only effectual security against the despotic tendency of power—towards rooting out of the human bosom all regard for truth, and at the same time for liberty and virtue,—it seems not easy to say how, with any encouragement from public blindness, it would be possible for the artifice or audacity of usurped legislation to go further.

In such a state of things—under a legislation that connives at such usurpation, and a people that submit to it without remonstrance,—it is a question not altogether exempt from difficulty, whether the force of the moral sanction is or is not with propriety to be numbered among the powers by which human conduct in general, and in particular so far as regards the truth of testimony, is influenced and directed. To-day, yes: and so long as the acquiescence under such law continues to be regarded as short of certainty: to-morrow, perhaps not: to a certainty, not a single moment longer than the design manifested by such doctrines shall continue unaccomplished.

§ 7.

Operation of the religious sanction, for and against correctness and completeness in testimony.

In the case of this sanction, as of the others, its utility, in the character of an efficient cause of truth in testimony, depends partly upon the direction in which, partly upon the degree of force with which, it acts.

In respect of its direction, nothing can be more favourable, more steadily and uniformly favourable: provided always, that in the case of book-religions, the original and authentic repositories of the rule of action be taken for the standard, not any glosses that in later ages may have been put upon them.

On considering the differences—the very wide differences, observable between the several book-religions in other respects,—an observation that would be apt enough here to present itself is, that in this respect likewise, any proposition that were to be predicated of them in the lump, would possess but a feeble chance of being true.

But in this particular, causes, viz. interests and motives, being in all religions the same, effects, viz. precepts and other actions, will naturally, not to say necessarily, fall into the same coincidence. Taking in a certain sense for the author of the religion, the penman by whom the discourses constitutive of the matter of it were committed to writing,—in the instance of every one of them it may with equal truth be observed, that his interest, in respect of the object he had in view, required that the disposition to veracity should, on the part of his adherents, be as strenuous and as uniform as by any means it could be made.

In the case of a leader of this sacred, as in the case of a leader of any profane, description, the success of his designs would be in no small degree dependent upon the correctness of such information, of such testimony, as, on such an infinite variety of occasions, that design might lead him to require at their hands.

In the Jewish religion, the story of the leprosy of Gehazi—in the Christian, the story of the sudden death of Annanias and Sapphira—may serve for illustration.

If there were any decided difference, the steadiness of the religious sanction to the cause of truth would be found more rigorous and entire, not only than that of the legal sanction, of which the unsteadiness has above been brought to view, but even than that of the moral. The moral sanction acknowledges the exceptions that have been seen: it has its falsehoods allowed, if not prescribed, of urbanity—its falsehoods of humanity—and even its falsehoods of duty.

The religious sanction,—if the Jewish (which to a great though undefined extent is at the same time the Christian) be taken for an example, and the text of the sacred writings be taken for the standard of that religion,—acknowledges no such exceptions. When Jephthah, the chief of that religion, having vowed in case of victory to sacrifice to the Lord the first object that presented itself, and having beholden in his own daughter that first object, “did with her according to his vow,” it was for no other reason than that he had said upon his oath that he would do so, though unquestionably without having, in so saying, had her in his thoughts. Not only humanity, but duty, even parental duty, were on this occasion held to be considerations of inferior moment, when compared with the duty of adherence to truth, that duty having been reinforced by the ceremony of a vow—of that solemn appeal which is common to oaths and vows.

Though the text of the sacred writings, the text recognised in all ages as the standard of obedience, remains in all ages the same, or nearly the same, the interpretation put upon it varies from age to age: and, in each age, it is by the interpretation put upon it in that age, that the effectual direction taken in that age by the religious sanction—the practical effect produced by it, is determined. The age in which the text of the sacred writings was first committed to writing, was not, in the instance of any of the book-religions, an age in which any such qualities as those of precision, accuracy, and particularity of explanation, belonged in any considerable degree to the public mind. To reduce the precept to a state adapted to practice, it has become more and more the custom to ful up from the precepts of the moral sanction, the reputed deficiencies manifested in these particulars by the religious sanction. In a delineation which at this time of day should come to be given, of what the religious sanction prescribes in relation to truth and falsehood, the exceptions above mentioned as applied by the moral sanction to the general requisition of veracity and verity—the particular allowances as well as counter-prescriptions made by the moral sanction, in favour of the several classes of falsehoods designated as above by the several appellations of falsehoods of duty, falsehoods of humanity, and falsehoods of urbanity,—would probably not be omitted.* But, whether proper or otherwise, it is in the law of the moral sanction only, not in the law of the religious sanction, as delivered in the text of either the Jewish religion or the Christian (not to speak of the Mahometan,) that any of these exceptions are to be found.

Cases, however, in which the force of the religious sanction has operated on the side of perjury, even in Christian countries, are neither impossible, nor without example. Paris, no longer ago than the middle of last century—Paris, so lately, not to say at present, the centre of unbelief—yielded a batch of false miracles, regularly attested, vying in extraordinariness with the less-regularly-attested prodigies of Jewish history. In the testimony by which these false miracles were proved, it is difficult, if not impossible, to say how much there was of mendacity—how much of simple incorrectness, the honest work of the imagination. That mendacity was not wholly without its share, can scarcely admit of doubt. True miracles are not wanting (says a man to himself on this occasion.) true miracles have not at least been wanting, on this our side, the side of sacred truth. But unhappily the true are not quite sufficient; sufficient for other times, but unhappily not for the present incredulous age, in which, somehow or other, the source of miraculous evidence appears to have run itself dry. Profiting by the occasion, let us do what depends upon us towards supplying the deficiency. Truth must indeed be departed from: but the end will sanctify the means. What end can ever approach to it in importance? and falsehood, the instrument we mean thus to sanctify, as Pagan temples have been sanctified by being converted into churches, how often has it not been applied to the most flagitious, the most impious ends!

Of all the religous codes known, the Hindoo is the only one by which, in the very text of it, if correctly reported, a licence is in any instance expressly given to false testimony, delivered on a judicial occasion, or for a judicial purpose: and in this instance, among the cases pitched upon for receiving the benefit of the licence, are some which, viewed through an European medium, will be apt to appear whimsical enough.

Cases, some extra-judicial, some judicial, and upon the whole in considerable variety and to no inconsiderable extent, are specified, in which falsehood, false witness, false testimony, are expressly declared to be allowable.

1. False testimony of an exculpative tendency, in behalf of a person accused of any offence punishable with death. Three cases, however, are excepted;—viz. 1. Where the offence consists in the murder of a Bramin; or 2. (what comes to the same thing) a cow; or 3. In the drinking of wine, the offender being, in this latter case, of the Bramin caste.*

“Whenever a true evidence would deprive a man of his life,—in that case, if a false testimony would be the preservation of his life, it is allowable to give such false testimony; and for ablution of the guilt of false witness, he shall perform the Poojeeh Sereshtee; but to him who has murdered a Bramin or slain a cow, or who, being of the Bramin tribe, has drunken wine, or has committed any of these particularly flagrant offences, it is not allowed to give false witness in preservation of his life.”

In the representation of the other cases, scarce a word could be varied, without danger of misrepresentation: word for word they stand as follows:—

“If a marriage for any person may be obtained by false witness, such falsehood may be told: as upon the day of celebrating the marriage, if on that day the marriage is liable to be incomplete, for want of giving certain articles, at that time, if three or four falsehoods be asserted, it does not signify; or if, on the day of marriage, a man promises to give his daughter many ornaments, and is not able to give them, such falsehoods as these, if told to promote a marriage, are allowable.

“If a man, by the impulse of lust, tells lies to a woman, or if his own life would otherwise be lost, or all the goods of his house spoiled, or if it is for the benefit of a Bramin, in such affairs, falsehood is allowable.”

To the religious sanction—consideration being had of the undoubted magnitude of its influence on some occasions—on an occasion of this importance and extent, a place cannot be altogether refused. Yet, if,—in preference to theories, however generally received, and rendered plausible by the collateral experience just mentioned—experience in the exact direction of the case here in question, and that no less unquestionable than the other, be admitted as the test,—the more closely it is scrutinized into, the less efficient in the character of a security for the truth of testimony in all ways taken together, or even in the character of a security against wilful and self-conscious mendacity, will it be found.

To judge of the real and proper force of any power, try it, measure it, not when acting in combination with other forces, but when acting alone. If, as applied to forces of the physical class, the propriety of this rule be clear beyond dispute, it will scarcely be less so when applied to any force of the psychological class.

That, when the force of the religious sanction is accompanied and conjoined with the two human forces, the force of the moral and legal sanctions, or even with either of them alone, the force of these powers united is in a high degree efficient—so much so, as to throw into the state of exceptions taken out of a general rule the cases of its failure,—is out of dispute. But take a case—take any case, in which it may be seen to come into the field alone, and without support from either of those indisputably powerful coadjutors, the scene will be found to experience a total change.

If there be a mode of conduct which, being clearly and universally understood to stand prohibited by the force of the sanction in question (viz. the religious,) is nevertheless, generally, and as far as can be seen, universally, or almost universally, practised,—so far as concerns the prevention of that mode of conduct at least, the body of force in question, however composed, cannot but be acknowledged to be in a correspondent degree inefficient. If, in the formation of that body of force, the force of all these sanctions were comprised, the degree of inefficiency thus demonstrated would extend to all three: if the force of one of the three, and that one only,—it is to that one that the demonstration of inefficiency will stand confined.

If, the mode or species of conduct in question being mendacity, wilful and self-conscious falsehood,—the utterance of that falsehood be accompanied by a more than ordinary and most ample degree of deliberation,—the demonstration of the inefficiency of the sanction in question will be the more conclusive.

If either the practice of this wilful falsehood, or what to this purpose comes to the same thing, the approbation—approbation avowedly and publicly bestowed upon it—be the practice, not of men taken promiscuously from the herd, but of men carefully and anxiously selected for the occasion, under the persuasion of their being in a more than ordinary, in even the highest, degree, sensible to the influence of this sanction—the proof of the inefficiency of this sanction will be seen to possess from these circumstances a still higher force.

The examples in which this proof of the inefficiency of the religious sanction in respect of the prevention of wilful and deliberate falsehood stands exhibited, may be comprised under the following heads:—

1. Cases in which—under the influence of a manifestly-operating sinister interest in the shape of wealth, power, dignity, or reputation—such declarations of opinion are made, as, from the nature of the facts asserted, cannot, consistently with the nature of the human mind, be in all points true; but without any particular proof of falsity operating in the case of one such false declarer more than another. To this head may be referred all solemn declarations of opinion on the subject of controverted points respecting facts out of the reach of human knowledge, delivered in the shape of pre-appointed formularies, adopted and authenticated by the signature of the witness in question, or otherwise; the declaration enforced or not by the ceremony of an oath.*

2. Cases where—under the influence of a mendacity-exciting interest, constituted by the fear of present and unavoidable corporeal sufferance terminating in extinction of life—declarations of opinion respecting individual facts, or supposed facts, actually in dispute, are delivered by a numerous company (twelve, for instance,) the members of which are forcibly kept in that state of affliction, until, and to the end, that they may in conjunction declare themselves to be all of one opinion, whether they really be so or no, in circumstances in which, in relation to these same points, immediately before such conjunction, different opinions, in all numbers less than that of the whole company, have been declared. To this head belong the pretendedly unanimous opinions delivered under the name of verdicts by companies of occasional judges, assembled together under the collective name of a jury, in the judicial practice of English law, under the technical system of procedure.

3. Cases where—under the influence of mendacity-exciting interest, constituted by so weak a force as that of sympathy for the sufferance of a stranger—declarations of opinion are delivered with one voice by an equally numerous company, in circumstances in which it is morally impossible that such declarations should be other than wilfully false in the instance of any one of the members. To this head belong the innumerable instances upon record, in which juries, to shield criminals from the unduly-severe punishments prescribed by a bad law, have solemnly and on their oaths declared, that articles of property, which they knew to be of the value of five, ten, or twenty pounds, were under the value of forty shillings.

4. After the above, it is a sort of anticlimax to bring to notice, in this point of view, the course of practice under the technical system of procedure—under which, in the instance of every individual suit without exception, judges, judicial officers their subordinates, professional lawyers of all descriptions, and suitors, unite in the utterance of an indefinitely extensive congeries of wilful falsehoods: judges, with their subordinates and brethren of the profession, voluntarily, under the influence of the profit derived from these enormities; suitors, under the influence of the rewards and punishments by means of which they are in some instances encouraged, in others compelled, by the judges, to join in the habitual perpetration of the same or the like enormities, according to the nature of the instruments and operations into which the tincture of falsehood is infused.

On this occasion, two descriptions of persons standing in so many different situations, require to be distinguished:—1. The individuals who, clothed or not with any authority, engage in the practice of wilful falsehood—the practice thus undeniably reprobated by the religious sanction—engage in it not of their own motion, but either excited by the reward, or compelled by the punishment, held up to them by their superiors: in this situation stand all the members of the community (except in so far as the people called Quakers form an exception,) as well as a select portion of them in the character of jurors; and 2. Those their superiors, under whose constantly observing eyes, and never-withholden approbation, this irreligious practice is carried on, and, in an immensely extensive mass of instances, cherished and inforced by the united powers of reward and punishment.

In this situation may be seen bishops and judges: bishops, to whom, under the notion of there being endued with a more than ordinary degree of sensibility to the action of the motives belonging to the religious sanction, and of their devoting their time to the endeavour of screwing up to its maximum that sensibility in the minds of the rest of the community, such enormous masses of emolument, power, and dignity, are attached;—judges, to whose situations, masses of emolument in some instances still more ample, together with masess of power in every instance much more ample, are, if not under an equally strong persuasion, at least under a like notion, also attached.

5. A still more striking instance of the inefficacy of the religious sanction, when unsupported by the other sanctions, to the production of truth, is that of university oaths. Every student who enters the University of Oxford swears to observe certain statutes, framed long ago by archbishop Laud for the government of the university. From the frivolity and uselessness of the observances which these statutes prescribe, public opinion does not enforce an adherence to them. The moral and the legal sanction stand neuter; the religious sanction, however, remains, and that in its most powerful shape—the shape which is given to it by the ceremony of an oath. This, then, is an experimentum crucis on the force of the religious sanction. If it be notorious that there is not a single student who does not openly and undisguisedly violate those very statutes, which he has solemnly invoked eternal vengeance upon his head if he does not rigidly observe,—violate them, and that as often as the minutest conceivable inconvenience would be incurred by adherence to his oath,—then, surely, the weakness of the religious sanction, considered as a security for veracity, to say nothing of any other virtue, is demonstrated. But every person who has been at the University of Oxford, can testify that this description is literally true.

The weakness manifested in all these instances by the religious sanction, is among those facts which, how little soever adverted to, are most notorious and undeniable. In all these instances, falsehood is committed by high and low, without concealment, scruple, or reluctance. Why? Because it is by the force of this sanction alone that the practice stands prohibited—a sanction composed of pains and pleasures removed to an indefinite distance in point of time, and none of which have ever been presented by experience to any human being.

In other instances, and to a still greater extent, the practice of falsehood is in a very considerable degree repressed, and, in so far as committed, not committed without great reserve, and the most anxious exertions made to conceal it from every eye. Why? Because it is by the force either of the political sanction, or the moral sanction, or both together, that the practice stands prohibited;—of one or both; but, to the production of those symptoms, the force of either is of itself sufficient.

In the case of an interest, by the action of which violent passion is liable to be produced—desire of great pecuniary gain, for instance, fear of great pecuniary loss, sexual desire, or fear of immediate death or severe bodily affliction,—in the case of a contest between the hopes and fears belonging to the religous sanction on the one hand, and any such powerfully-acting motive or interest on the other, and the occasional triumph of the more immediate over the more remote, and as it will he apt to appear, less certain, interest,—the inference afforded of the weakness of the religious principle, by the event of such a contest, would not be so conclusive. The power of the religious principle is in general strong (it might be said) and in a great degree efficient; but (owing to the frail and variable texture of the human mind) not so strong as not to be liable to be, in here and there an instance, borne down by the violence of these stormy passions.

But among the above examples we see one, in which the power of the religious principle is brought into the field in the utmost force of which it is susceptible, and still, habitually, and as it were of course, gives way to an interest of the very weakest species, viz. sympathy for the suffering of a single individual—an individual who is a perfect stranger to all the members of the judicatory by which the contempt of religious principle is thus mamfested—and he a criminal, in whose instance, in the judgment of the supreme and competent authority of the state, the suffering from which by this act of mendacity it rescues him, ought to have been inflicted.

In another of the above examples, that of university oaths, the whole force of the religious sanction, exerted in the strongest and most binding of all its shapes, fails of producing any, even the slightest, effect. Is it that it has some violent, some uncontroulable, passion to contend with, such as it might fail of overcoming, without affording any strong inference against its general efficacy? No: but by fulfilling an obligation, contracted under the sanction of so solemn an engagement, some slight inconvenience, some little trouble, might in some instances be incurred. The minutest possible quantity of trouble being thrown into the scale against the obligations of religion, is found, not in the case of an insulated individual, but of every Oxford student without exception, sufficient to outweigh them.

In the case of that pretended unanimity, which has so wantonly and unnecessarily been rendered compulsory on the occasions of the decisions pronounced by juries, the religious principle, it is true, finds itself encountered by the force of one of those almost irresistible motives above mentioned, viz. desire of self-preservation from death, aggravated by long-protracted torture: at the command of him who has the strongest stomach among you, yield, some or all of you, to the number of from one to eleven out of twelve—yield, and perjure yourselves. Immediately after the oath, by which you have engaged to your God not to join in any verdict but the one which, in your judgment, is true, join notwithstanding in a verdict which, in your judgment, is not true:—do thus, or inevitable death, preceded by insupportable torture, is your doom. Thus saith the law,—that is,—thus, in one knows not what age of barbarity and ignorance, have said those unknown judges, by whose authority this combination of torture with perjury was forced into judicial practice. Here, it must be confessed, the force of the physical sanction, with which that of the religious sanction has to contend, is no light matter:—the choice is between perjury and martyrdom.

But though, in the instance of the individuals themselves, on whom, in the character of occasional judges or jurymen, this obligation of trampling upon religious principle is imposed, the force by which it is subdued is thus mighty and irresistible,—no such force does that principle find to contend with, in the instance of those exalted functionaries, by whose hands the anti-religious obligation is, with such undisturbed serenity and undissembled complacency, habitually imposed. Until the perjury shall have been committed, and to the end that it may be committed, the judge holds himself prepared to torture the jurymen: but by no torture is the judge compelled or excited to manifest the satisfaction so habitually and cordially manifested by him at the thoughts of the practice in which he bears so capital a part—a practice which has torture for its means and perjury for its end.

How unpleasant soever, this comparative estimate was with a view to practice altogether indispensable. To depend, on every the most important occasion of life, upon the force of a principle which, on the occasions here in question, not to speak of other occasions, has been demonstrated by experience to be nearly, if not altogether, without force, would continue to lead, as it has led, to mischievous error and deception, to an indefinite extent. The topic of oaths, and the topic of exclusionary rules, grounded on the supposition of a deficiency of sensibility to the force of the religious sanction, will furnish proofs and illustrations.*

The opinion above expressed is not new. Divines of the most undisputed piety have repeatedly given their sanction to it.

The inefficacy of preaching (l’Inefficacité de la Prédication) constitutes the title, as well as the subject, of a work, published about the middle of the last century, by the Abbé Coyer, a French divine of the Romish church. To prove, or endeavour to prove, the inefficacy of preaching, is in other words to prove, or endeavour to prove, the weakness of the religious sanction; after and notwithstanding, all the force that could in that church be given to it by the most richly-rewarded eloquence.

The same proposition is (if auditors are to be believed) among the propositions habitually brought to view, as being habitually either maintained or assumed, and too manifest to be denied or doubted of,—brought to view in his sermons by a clergyman of the church of England, distinguished, even among those of the Methodist persuasion, for the union of zeal and eloquence.

The occasions on which, in both these instances, the weakness of the religious sanction stands confessed, or rather maintained and advocated, is that of its application to the purpose of meliorating the moral conduct of mankind; viz. in the dealings between man and man, and the conduct of man in regard to his own happiness, in the trifling business of the present transitory life.

To have endeavoured to disprove its efficacy in all respects, would have been an endeavour as vain as it is unexampled.

Various are the purposes to which its efficacy, in a greater or less degree, seems out of the reach of dispute:—

1. In causing men to try to believe,—to succeed in a considerable degree in their endeavours to believe—and whether they succeed or no, to say they believe,—improbable, and even impossible things: and with the more energy, the greater the improbability; and with most energy of all, those things which, not being facts either true or false, but contradictions in terms, are of all things most palpably and flatly impossible.

2. To cause men to profess to regard, and really to regard, with hatred and contempt, and to treat with unkindness—and, when power and opportunity occur, with oppression—those whose belief is not, or is suspected of not being, directed to the same objects, or not with the same energy, as their own belief.

3. To cause men to regard with fear, and in many instances with fear worked up to the pitch of insanity, and to profess and endeavour to regard with love, a being, to whom none of those sentiments can be of any use.*

[* ]As to good and evil, neither have the objects respectively signified by those words any value, nor the words themselves any meaning, but by reference to pain and pleasure.

By the word good, where it has any determinate meaning, is meant, either a determinate lot of pleasure; or the absence of a determinate lot of pain; or the chance, or the efficient cause, of a determinate lot of pleasure, or of exemption from a determinate lot of pain; or some combination of advantage, in any of these different shapes.

By the word evil, in like manner, is meant, either a determinate lot of pain; or the absence or loss of a determinate lot of pleasure; or the chance or efficient cause of a determinate lot of pain, or of the absence or loss of a determinate, and not in every event unobtainable, lot of pleasure; or any combination of disadvantage in any of these different shapes.

[† ]The word interest, and the word motive, are, or at least might and ought to be, exactly co-extensive; the difference being no other than what consists in the difference between the sets of words respectively necessary to make them up into a sentence. A man has an interest in doing so and so, when, by the force of some motive, he is urged to do so and so. The interests corresponding to the self-regarding sorts of motives are, it is true, the sorts of interest most commonly in view where the word interest is employed. But to give the use of the word the extension which is requisite for the purpose of conveying just conceptions, and of which it is not unsusceptible, it must be extended so as to take in the dissocial motives, and even the purely social motives. L’interét de la vengeance (or vindictive interest, as it may be rendered in English) is an expression already familiar enough in the French language: and why should I not he permitted and admitted to take an interest, though it be not a self-regarding one, in the prosperity of mankind, my country, my profession, my party, or my friend?

[* ]See Book IX. Exclusion.

[* ]“Introduction to the Principles of Morals and Legislation,” in Vol. I. of the present collection; Chap. X. Motives.

[† ]Whatever act affords any the minutest particle of satisfaction, of pleasure, or removes or prevents any the least particle of pain, is, in so far, good. In this case are the great majority of human acts, even in the instance of the most atrocious malefactor that ever lived.

[* ]By a tutelary motive, is meant any motive which on the occasion in question prompts the person in question to do right. By a seductive motive, any motive which prompts him to do wrong.—See Introduction to the Principles of Morals and Legislation, Chap. X. Motives, Vol. I. p. 46.

[† ]Ibid. Chap. III. p. 14.

[* ]Under this head must also be included (although, the seat of them being in the mind, the sanction belonging to them should in that respect be referred to the psychological class) all such pains and pleasures as consist in, or are attached to, the expectation of pains or pleasures purely physical. For, strictly speaking, it is not so much by the physical sensation, as by the prospect of it, that the effect in question, produced on human conduct, is produced.

[† ]Legal or political.] Though in general the objects designated by these epithets will be found to coincide, the hand of law being the hand mostly employed by political government in the distribution of good and evil on the score of reward and punishment, more especially on the score of punishment,—they are not, however, absolutely identical; the political sanction comprising in its extent the whole mass of good and evil capable of being distributed and applied by the hand of government. Good and evil, especially good, are capable of being distributed, and in practice are distributed, by the hand of government, and that not only on other scores, but even on the scores of reward and punishment, especially reward—by other hands than that of law; at least, by others than that of the judge: and this not only, as they are but too apt to be, improperly, but to a considerable extent even consistently with strict propriety—especially on the score of reward.

[‡ ]Popular or moral.] Popular, in respect of the persons at whose hands the pains and pleasures, the good and evil in question, are expectable; viz. the members of the community at large, acting in their individual and private capacity, and not any of them, as in the case of the political sanction, in the character of public functionaries: moral, in respect of the degree in which the rules of action received in the character of rules of morality, rules for the government of moral conduct (abstraction made of the force of law, and the other motives referable to the political sanction,) depend upon this sanction for their observance. Abstraction made of the force of the political sanction, and of that of the religious, it is by the popular sanction, as above described, in conjunction with the physical, that human conduct in all its modifications is determined.

[* ]I mean, as to the narrator they have really appeared to happen. With this explanation, the expression, as they have really happened, may be used, instead of the more correct expression, to save words.

[* ]The extreme minuteness of the quantity of labour, the desire of avoiding which composes, in this case, the motive or determinative force, ought not to be considered as constituting any objection against a theory which consists in nothing more than the simple enunciation of a few indisputable facts. It is by forces thus impalpably minute, that the whole system of psychological conduct is regulated and determined. In a material balance, constructed as some have been known to be constructed, one five-hundredth part of a grain has been known to be sufficient to determine the descent on either side: and were it not for friction and the vis inertiæ, a five-millionth part would be equally efficacious.

[† ]Operating by itself, the efficiency of the physical sanction is not altogether so sure in regard to the production of completeness in tesmony, as in regard to the production of correctness. Production of completeness requires attention: viz. attention directed to that purpose: to attention, as well as to invention, when raised to a certain pitch, exertion, labour of mind, is necessary—labour over and above what is necessary to the giving expression to imperfect fragments. Here, then, is a force which, to be overcome, requires an exciting force over and above what is sufficient to produce correctness. This exciting force cannot be any other than that of some special interest. If, then, no such interest is acting upon the mind, completeness, unless by accident, will not have place: the testimony, how correct soever, as far as it goes, will not, to the purpose in question—will not, to the purpose of preventing deception—be complete.

The possibility of incompleteness will, it is evident, be greater and greater, in proportion to the complexity of the matter of fact which constitutes the subject of the testimony: and if the probability of incorrectness, in respect of such parts as are reported, receives increase also from the same cause, still the ratio of increase will not, in regard to incorrectness, be so great as in regard to incompleteness.

[* ]See Book V. Circumstantial, Chap. V.

[† ]Of the moral or popular sanction, however, except where the force of it is assisted by interrogation—of the moral or popular, as well as of the physical sanction, and from the same causes, it may be observed, that it acts with less efficacy in the production of completeness than of correctness.

[‡ ]Like other imputations, this imputation is not the less galling, but apt rather to be the more galling, to a man, from his being conscious of its being merited, and thence of the probability of its being known to be merited. Accordingly, no two characters are more naturally united, in the same person, than the liar and the bully; the function of the bully being to give protection to the liar.

The man who, on hearing imputed to him a supposed act of mendacity,—instead of endeavouring to show the groundlessness of the aspersion, challenges him from whom it came,—gives up the reputation of veracity, as it were in barter, for the pleasure of revenge, and the reputation of courage.

[* ]As in case of pre-appointed evidence. See the book so entitled (Book IV.)

[* ]Instances in which particular classes have joined in making one moral rule for their conduct among themselves—another and a totally different rule for their conduct towards all other persons, are not unfrequent. Such is uniformly found to be the case where particular classes are possessed of so much power as to be in a great degree independent of the good or ill opinion of the community at large. In the moral code of the West-India slaveholders, many acts which would be among the worst of crimes if committed against a white man, are perfectly innocent when the subject of them is a negro. For white and black, substitute Mahomedan and Christian, and the same observation holds good with respect to Turkey. Substitute orthodox and heretic, it at one time held good in all Catholic, not to say in all Christian countries, as well with regard to the other virtues in general, as to that of veracity in particular.—Editor.

[* ]Not that they deal (either of them) in lies and nothing else: the ware they deal in consists in a mixed assortment of truth and lies, made up in whatever proportions happen best to suit the purpose of the customer:—in what proportion, would, to the manufacturer and dealer, be matter of indifference, were it not that, of the two sorts of ware, lies are that by which his skill is most conspicuously displayed.

[† ]To the advocate, as such, belongs no such power, no such coercive power, as that which constitutes the characteristic attribute of the judge: but it is by the tongue of the advocate that the hand of the judge is moved: the power of the advocate, though in respect of intensity less in degree, is in specie the same with the power of the judge.

[* ]Take for example any of that infinite variety of offences, the mischief of which consists in the defalcation which they make from the public revenue. That these offences are not treated by the moral sanction with so much severity as they deserve, is notorious, and the cause is equally plain.

[* ]See the work entitled, “Scotch Reform opposed to English Non-reform,” Vol. V. See also Book VIII. of the present work.

[* ]Mr. Bentham might have quoted, in illustration of this remark, the following passage from Paley—a writer of undisputed piety, who, in a system of morals professing to be founded upon the will of God as its principle, makes no difficulty in giving a licence to falsehood, in several of its necessary or allowable shapes:—

“There are falsehoods which are not lies, that is, which are not criminal; as, where the person to whom you speak has no right to know the truth, or, more properly, where little or no inconveniency results from the want of confidence in such cases; as where you tell a falsehood to a madman, for his own advantage; to a robber, to conceal your property; to an assassin, to defeat or divert him from his purpose. The particular consequence is, by the supposition, beneficial: and as to the general consequence, the worst that can happen is, that the madman, the robber, the assassin, will not trust you again; which (beside that the first is incapable of deducing regular conclusions from having been once deceived, and the two last not likely to come a second time is your way,) is sufficiently compensated by the immediate benefit which you propose by the falsehood.”—Moral and Political Philosophy, book iii. chapter 15.—Editor.

[* ]Halhed’s Code of Gentoo Laws, printed by the East-India Company, anno 1776, p. 129, 4to. chapter iii. section 9.

[* ]Every person taking orders in the English church, signs a declaration of his full belief in the whole of the thirty-nine articles of that church, Some of the most pious members of it have not, however, scrupled to declare, that it is not necessary that this declaration should be true: that it is allowable for a person who does not believe in the whole, but only in a part, of the thirty-nine articles, to sign a declaration professing himself to believe in the whole.—Editor.

[* ]See Book II. Securities, Chapter VI., and Book IX. Exclusion, Part III. Chapter V.

Cases no doubt there are, and those very numerous, in which the religious sanction appears to exercise a much stronger influence than is here ascribed to it. That which is really the effect of the moral sanction, or of the legal sanction, or of both, is continually ascribed to the influence of the religious sanction. From causes which it would be easy, but foreign to the present purpose, to explain, religious persons are apt to suppose, that an act, if virtuous, is more virtuous—if vicious, more excusable, when the motive which prompted it belonged to the religious class, than when it belonged to any other: and even in some cases, that an act which, if produced by any other motive, would be vicious, becomes virtuous by having a motive of this class for its cause. Thus it becomes the interest of every one, to whom the reputation of virtue is an object of desire, to persuade others, and even himself, that as many as possible of his actions, be they good or bad, emanate from that class of motives.—Editor.

[* ]If this view of the matter be just, two practical consequences seem to follow:—

1. That it is a misapplication, a degradation, a profanation, to endeavour to apply so sublime an instrument to so mean a cause. It is applying pearls to the fattening of swine: the pearls are thrown away, and the swine not fattened.

2. That the instrument, not being applicable by government with advantage to any good purpose of government, the best course that can be taken in relation to it is the course so generally taken in relation to it in the United States, viz. to leave the application and enforcement of it to the sincere and unbought exertions of individuals.