The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 VI.

OF THE CEREMONY OF AN OATH, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY.

§ 1.

An oath, what?

On a former occasion, mention was made of the three great sanctions—the political, the popular, and the religious,—as so many powers usually, and in a certain sense naturally, employed, in the character of securities for trustworthiness in testimony. But their efficacy in that character will depend, in no small degree, on the mode in which application is made of them to that use. Although not expressly invoked, nor so much as regarded, by the factitious arrangements of judicial procedure; they might, notwithstanding, be by no means devoid of efficacy. But, in point of fact and general usage, a particular instrument has been employed for the special purpose of pointing their force to this special use. This instrument is the solemnity, or say ceremony, called an oath.

Contemplated in themselves, and abstraction made of the application of this instrument, they might be considered, in a certain sense, as so many natural securities for testimonial trustworthiness: contemplated as applied to this special purpose by the intervention and assistance of this factitious instrument, their united force, so augmented and applied, may be considered as a sort of factitious or artificial security for trustworthiness, superadded to those natural securities.

But, in perhaps every civilized nation upon earth (unless the Chinese nation, the most numerous of all civilized nations, be an exception,) the ceremony distinguished by the name of an oath, or what in other languages is equivalent to that word, has been designed or understood to involve in it an address (or at least a reference) to a supreme being or beings—to invisible, supernatural, and omnipotent, or at least superior, agents: and the object of this address or reference has been to engage those superior powers, or to represent them as engaged, to inflict on the witness punishment, in some shape or other, at some time or other, in the event of his departing knowingly from the truth on the occasion of such his testimony.

Unfortunately in some respects, this same ceremony, with the address or reference included by it, has (besides the above use) been employed as an instrument to bind men to the fulfilment of miscellaneous promises of all sorts: promises having no connexion with testimony.

It has been applied promisenously, and without any discrimination or distinction so much as in name, to purposes of the most heterogeneous nature: to the securing of veracity and correctness on the part of the swearer, on judicial occasions, and thence to the prevention of deception and consequent misdecision on the part of the judge; and, besides that, to the securing the performance of other acts of all sorts.

At present, our view of the ceremony is confined to the case in which the purpose for which it is employed is that of securing the truth of testimony.

§ 2.

Inefficacy of an oath, as a security for the trustworthiness of testimony.

Consistently with the opinion so generally entertained by unreflecting prejudice, a place upon the list of securities for the trustworthiness of testimony, and thence against deception, and consequent misdecision and injustice, could not be refused to the ceremony of an oath. But, whether principle or experience be regarded, it will be found in the hands of justice an altogether useless instrument; in the hands of injustice, a deplorably serviceable one.

1. The supposition of its efficiency is absurd in principle. It ascribes to man a power over his maker: it places the Almighty in the station of a sheriff’s officer; it places him under the command of every justice of the peace. It supposes him to stand engaged, no matter how, but absolutely engaged to inflict—on every individual, by whom the ceremony, after having been performed, has been profaned,—a punishment (no matter what) which, but for the ceremony and the profanation, he would not have inflicted.

It supposes him thus prepared to inflict, at command, and at all times, a punishment, which, being at all times the same, at no time bears any proportion to the offence.

Take two offenders: the one a parricide, by whose false testimony his innocent father has been consigned to capital punishment; the other, by whose false testimony a reighbouring householder has been wrongfully convicted of the offence of laying rubbish on the highway. Take the offence in both cases on the mere footing of false testimony, one sees how unequal is the guilt,—and how widely different the punishment, which, consistently with the principle of religion, cannot but be expected at the hands of divine justice. Take it on the footing of perjury, the guilt is precisely the same in both cases: for in both cases the ceremony is the same; and in both cases it is alike violated and profaned.

In a certain sense, and with reference to a certain relative point of time, the consent of the beneficent power over which authority was supposed to be exercised by a subordinate power could hardly have been looked upon as wanting. It must have been considered as having been given, in general terms, at some anterior period: but,—being thus given, by an engagement, express or virtual, contracted by the superior being,—so long as the engagement thus entered upon was adhered to, the conduct of the superior being would not be less under the command of the inferior, than if the relation had from the beginning been reversed; and whatever promise the superior being might, by means of the oath, be called upon by the interior being to enforce,—to such promise, so long as the engagement was adhered to, it would not be in the power of the superior being to refuse his sanction.*

Will it be said, Nay: for, after and not withstanding this ceremony, God will govern himself by his own good pleasure, as he would have done without it: though the act which the oath-taker engaged himself thus to perform be unperformed, if that act be a criminal one, God will not punish him for the omission of it: commission, not omission, is what God punishes in crimes? Be it so: God will not punish the violation of an oath, when the act engaged for by it is the commission of a crime: God would not have punished Jephthah, had he omitted to put to death his unoffending daughter, notwithstanding his eventual promise so to do. Be it so: but, this being supposed, here is an end of the efficacy, the separate and independent efficacy, of an oath.

To the purpose in question, the authority given by the oath to the inferior being over the superior, must have been understood to be absolute, or it must have amounted to nothing. Were there any exceptions or limitations? If so, the imagination is set to work to look out for the terms and grounds of such exceptions and limitations: to inquire, for example, into the species and degree of mischief that in each instance might be expected to result from the violation of testimonial truth. But if this, then, be the ground of the supernatural punishment attached to the violation of the oath,—then the mere violation of the oath itself, independently of the mischief resulting from the falsehood, is not that ground; that is,—the effect produced by the oath, considered in and by itself, amounts to nothing.

In vain would it be to say, No; when God punishes for perjury, though he punishes for the profanation, that does not hinder but that he may punish for the false testimony in proportion to the mischievousness of the effects produced by it. Whatever reason there is for supposing him to punish for the false testimony, there is the same reason for supposing him to punish for that crime, whether the profanation be or be not coupled with it. Whatever punishment is inflicted by him on the score of the false testimony, is not inflicted by him on the score of the profanation: whatever is inflicted by him on the score of the profanation, is not inflicted by him on the score of the false testimony.

Either the ceremony causes punishment to be inflicted by the Deity, in cases where otherwise it would not have been inflicted; or it does not. In the former case, the same sort of authority is exercised by man over the Deity, as that which, in English law, is exercised over the judge by the legislator, or over the sheriff by the judge. In the latter case, the ceremony is a mere form, without any useful effect whatever.*

2. To justice it is not of any the smallest use. The only character in which it is in the nature of it to render—in which it has ever been supposed to render—service to justice, is that of a security against a man’s doing what (on the occasion in question) he has engaged not to do: viz. assert what he knows or believes to be false. But that in this character it is altogether without efficacy, is matter of daily and uncontroverted and uncontrovertible experience. On the part of the most exalted characters, it is seen every day yielding to the force of the weakest of all human motives.

Comparison being had with the motives of the two other classes—viz. the self-regarding, and the dissocial—the weakest upon the whole, in the great mass of mankind, are those which, belonging to the social class, may be referred to the head of sympathy: of which that sort of sympathy towards an individual, commonly characterized by the term humanity, is one.

But, of all descriptions of men (hangmen perhaps excepted, butchers certainly not excepted,) the lawyer, and, among the lawyers of all nations, the English lawyer, is he on whom,—judging from situation, from habitual exposure to the action of opposite interest, or from historical experience,—the principle of humanity may with reason be regarded as acting with the smallest degree of force. For, under the existing mode of remuneration (viz. by fees,) there is no other class of men whose prosperity rises and falls in so exact a proportion with those miseries of mankind which it is in their power to increase or decrease: nor any set of men, who have had if so effectually in their power, and so determinedly and inexorably in their will, to preserve those miseries from decrease. Unfortunately, this hostility (though undeniable) not being perceptible without such an insight into the system of procedure made by them, as scarce any but themselves had adequate inducements for obtaining, can never be rendered so easily perceptible, as, for the preservation of the rest of the community, it were so desirable that it should be.

Weak as, in the breast of an English lawyer, this weakest of all human motives cannot but be—and more especially in the breast of an English lawyer whose acknowledged experience has raised him to the situation of judge,—in that situation it is found habitually strong enough to overpower whatever regard, if any, is lodged in the same bosom, for the ceremony of an oath.

Many and notorious are the occasions on which, in violation of their oaths, a set of jurymen,—for the purpose of screening a criminal from a degree of punishment to which the legislature has declared its intention of devoting him,—ascribe to a mass of stolen property a value inferior in any proportion to that which, to the knowledge of everybody, is the real one; and this under the eyes and direction of a never-opposing, frequently applauding, or even advising judge: so that here we have in perpetual activity as many schools of perjury as there are courts of justice, having cognizance of these the most frequently committed sorts of crimes; schools in which the judge is master, the jurymen scholars, and the by-standers applauders and encouragers.

Not that there exists, perhaps, any other nation, in which a due regard to veracity on the occasion of testimony is more general. But, of this regard (be it more or less extensive,) the cause must be looked for in the influence of those other really operative securities, to which, in compliance with usage, this delusive one has been so undeservedly associated. What is not only possible, but probable, is, that, in the production of this regard, the religious principle, the fear of God, has no inconsiderable influence. What is certain, as being rendered so by the above experience (not to mention so many others as might be adduced,) is, that in the application thus supposed to be made of it, the religious principle has no influence.

Under the ceremony of an oath are included, it is to be observed, two very different ties,—the moral, and the religious. The one is capable of being made more or less binding upon all men; the other upon such only as are of a particular way of thinking. The same formulary, which undertakes to draw down upon a man the resentment of the Deity in case of contravention, does actually, in the same event, draw down, upon him (as experience proves) the resentment and contempt of mankind. The religious tie is that which stands forth, which makes all the show, which offers itself to view; but it is the moral tie that does by far the greatest part of the business. The influence of the former is partial—that of the latter is universal, nothing, therefore, could be a mark of greater weekness and imprudence than to cultivate the former only, and neglect the latter. As to the religious tie;—not only are there many on whom it has no hold at all—but in those on whom it has a hold as well as the moral, that of the moral is beyond comparison the strongest. Can anybody doubt, that among the English clergy (for example) believers are more abundant than unbelievers? Yet, on some occasions, oaths go with them for nothing.

What gives an oath the degree of efficacy it possesses, is, that in most points, and with most men, a declaration upon oath includes a declaration upon honour: the laws of honour enjoining as to those points the observance of an oath. The deference shown is paid in appearance to the religious ceremony: but in reality it is paid, even by the most pious religionists, much more to the moral engagement than to the religious.

It is, in truth, to the property which the ceremony of an oath possesses, of weakening the power of the only really efficacious securities, that what influence it has is confined. In the character of a security for veracity, take it by itself, it is powerless, and may plainly be seen to be so.

Applied to judicial testimony, if there be an appearance of its exercising a salutary influence, it is because this supposed power acts in conjunction with two real and efficient ones: the power of the political sanction, and the power of the moral or popular sanction. When, to preserve a man from mendacity,—in addition to the fear of supernatural punishment for the profanation of the ceremony, a man has the fear of fine, imprisonment, pillory, and so forth, on the one hand; the fear of infamy, the contempt and hatred of all that know him, on the other; it is no wonder that it should appear powerful. Strip it of these its accompaniments—deprive it of these its supports—its impotence appears immediately.

But of a case in which it is thus deprived of its supports,—and in which impotence complete impotence, is the consequence—the notorious consequence of such deprivation,—the bare word custom-house oaths is sufficient to present to view the complete exemplification.*

So long as two forces, pointing towards the same object, are followed to a certain degree by the effect they aim at, without its being apparent in what proportion they have repectively contributed to the common end; the credit of the result may be given to whichever of the two is most in favour. Watch them, and catch them acting separately, or in opposition: then is the time to see how far the credit given has been due. In certain cases, the tie of an oath is seen to have a powerful effect upon mankind. Where?—in what cases? Where the force of public opinion acts under its command: where it employs itself in insuring the veracity of parties or witnesses in courts of justice (especially in civil causes: or in criminal ones, where falsehood has not the plea of compassion or self-preservation to extenuate it.) In other cases, oaths are cobwebs, or at best, hairs. In what? In all in which the force of public opinion runs counter, or does but withhold its aid: in the case of jurymen’s oaths, in a variety of instances: in the case of a variety of other offices: in the case of university oaths: in the case of custom-house oaths: in the case of subscriptions,—which, considering the solemnity of the act, and the awfulness of the subject, may be placed on the same line with oaths.

If you wish to have powder of post taken for an efficacious medicine, try it with opium and antimony: if you wish to have it taken for what it is, try it by itself.

That in England, in the governing part of the public mind, there has always prevailed a sort of tacit sense of the inefficacy and inutility of this ceremony in the character of a security for testimonial veracity, is evidenced, not by any explicit verbal declarations indeed, but by tokens still more trustworthy—by long-continued practice.

On the occasion of the inquiries carried on by the House of Commons—whether by the whole House in the form of a committee, or by detached committees—no oath is administered (at least in general practice) to any persons examined in the character of witnesses. The ceremony is suffered to remain unperformed. Why? Because, none of the really efficient securities* being wanting, the want of this inefficient one is thought not worth supplying.

This branch of the legislature, not possessing, like the other, ordinary judicial powers, possesses not (it may be said) the power of exacting the performance of this ceremony. Be it so: but this, instead of a refutation of the proposition above advanced, is a confirmation of it. Is legislation of less importance than judicature? So far from it, the importance of an act of legislation is to that of an act of judicature, as the whole number of subjects in the empire is to 2. Is information concerning matters of fact less necessary to constitute a just ground for an act of legislation than for an act of judicature? Nor that neither.

Had the performance of this ceremony been really necessary, or been really thought necessary, to the forming of sufficient grounds for legislation, would the most efficient of the three branches of the supreme power have acquiesced thus long under the non-possession of it?

Conceive the courts of justice throughout the country, all of them abundantly provided with the power of administering oaths, all of them destitute of the power of applying punishment,—in what degree of vigour would have been the power of these courts? For what length of time, in that case, would society have held together?

If, in the character of a security for testimonial veracity, this ceremony were seriously looked upon as possessing any considerable value,—the occasions to which the ordinary judicial securities failed of applying, at the same time that the value at stake is equal to any pecuniary value that is ever at stake in judicature,—these are the occasions on which this supernatural security would (at least supposing any tolerable degree of providence or consistency on the part of the ruling powers) have been resorted to with particular care. I speak of the cases where money is to be received by individuals at any of the public offices instituted for that purpose—the Bank of England, the Navy and Army pay-offices, and so forth. For one pound paid by the appointment of a court of justice, fifty or a hundred pounds perhaps are paid in and by these non-judicial offices. In these pay-offices, there being no adverse party to contest the claim, all those ordinary securities, to the application of which the diligence of an adverse party is necessary (cross-examination, faculty of counter-evidence, and so forth,) are of course inapplicable. For the protection of so prodigious a mass of property, under the deficiency of ordinary securities, what does legislative providence? Does it call in, with peculiar anxiety and exclusive or superior confidence, this extraordinary security?—does it employ oath without punishment? On the contrary, it employs punishment without oath.*

Another proof of the inefficiency and inutility of the ceremony of an oath, in the character of a security for the truth of testimony. Of the modes of delivering evidence—of delivering what is equivalent to testimony,—that which is susceptible of having the ceremony attached to it, is but one. Of the modifications of mendacity (or, what is equivalent to it, the endeavour to gain credence for false facts,) that which is chargeable with the profanation of this ceremony,—that which is, in consequence, susceptible of the appellation of perjury,—mendacious deposition,—is but one. The others (as we have seen) are, forgery commonly so called (forgery in respect of written evidence;) forgery in respect of real evidence; fraudulent obtainment; and personation.† For the prevention of these modifications of malâ fide falsehood, punishment, simple punishment, has all along been trusted to: without any assistance from the ceremony of an oath, and apparently without any suspicion of deficiency on the score of the want of such assistance.

True it is, that in those several cases it may happen to the species of fraud which is not perjury, to be supported by deposition delivered to a court of justice; in which case, the punishment appointed for those several offences will receive, from the ceremony of an oath, whatever support it is in the power of that ceremony to give. But this is but a contingency; and that, comparatively speaking, but seldom exemplified: the case in which the punishment annexed to these offences respectively derives no support from the oath, is by far the most common case.

To the persuasion thus indicated on the part of the governing class, add the like persuasion as indicated on the part of all persons without distinction, in the character of suitors and their law advisers.

Supposing a man wrongfully deprived of the possession of any moveable thing belonging to him; and supposing him to demand restitution of it by the only species of action by which specific restitution is so much as professed to be given; in that case, if the defendant,—performing the ceremony of an oath in conjunction with twelve other men speaking only to his character, and not so much as professing to know anything about the matter—will take upon him to say, in general terms, that the plaintiff’s demand is not a just one,—the plaintiff therefore loses the cause: neither can any question be put to the defendant for the purpose of bringing down from generals to particulars such his self-regarding and self-serving testimony; nor are any witnesses in support of the plaintiff’s demand permitted to be examined. The man who proffered this curious kind of evidence, was said to wage his law.

By what exertion of fraud or imbecility, any species of demand (or action, as it is called) was thus paralyzed, or why one species more than another, are questions which, at this time of day, must be left to the industry of antiquarians. In point of fact, so it is, that to a man who claims the thing itself, this species of defence is still liable to be opposed; while, to the man who, instead of the thing itself, claims money in the name of satisfaction, this same sort of defence is not capable of being opposed. What has been the consequence? That the action of detinue—the only action at common law by which a man can claim the thing itself—has for ages been abandoned altogether: the action called assumpsit—the action by which a man, instead of the thing, demands money under the name of damages,—is the action employed in lieu of it. Men—all men—have all this while, under the guidance of their law advisers, chosen to give up everything moveable they had been accustomed to call their own, rather than trust to this supernatural security, to the exclusion of the other natural ones.

As to judges (I speak of English judges, and more particularly of the highest stages in that office,) the contempt universally entertained by them for this ceremony stands evidenced by every day’s practice.

No jury is ever impannelled, but their entrance into their ephemeral office is prefaced by what is called their oath. Each man bearing his part in this ceremony, promises that the verdict in which he joins shall be according to the evidence, i. e. according to his own conception of the probative force of the evidence. What is the consequence? That, so far as in relation to this probative force (i. e. as to that one of the two sides of the cause, to which the greatest quantity of probative force applies) there is any ultimate difference of opinion, some proportion out of the twelve, any number from one to eleven inclusive, has committed perjury. Lest the consummation of this perjury should be delayed for an inconvenient length of time, a species of torture has, by the care of those judges by whom the foundation of this species of judicature was laid, been provided for the purpose: a species of torture, composed of hunger, cold, and darkness. Hence judicature by jury is a sort of game of brag, in which the stake is won by the boldest and the most obstinate: they or he remain unperjured—all the others perjured. Of all the men of law that ever sat upon the official bench, by what one could this carefully-manufactured and perpetually-exemplified perjury have been unknown?—by what one of them was it ever spoken of as matter of regret?

On the contrary, Englishmen of all classes——non-lawyers and lawyers—have been at all times vying with one another in their admiration, their blind and indiscriminating admiration, of an institution into the basis of which a necessary course of perjury had been wrought: and, at the same time (as if to crown the inconsistency) the oath, the sacred oath, has ever been sounded in men’s ears; as if in that consisted the principal, if not sole, security, for whatever regard for justice is looked for at their hands.

Nor yet is it to the inevitable perjury, the perjury without which the business could not go on,—nor yet is it to the complacency with which this really accidental accompaniment is regarded,—that the proofs of the contempt entertained for the ceremony by all classes, judges and jurymen as well as suitors, lawyers as well as non-lawyers, is confined. Business would not the less go on, although effects to which jurymen are called upon to set a value (the true value) upon their oaths, were accordingly to be appreciated, appreciated without exception, at their true value: although a purse of money, with money of the real value of three pounds, were appreciated at three pounds, instead of being appreciated at nine and thirty shillings. Yet what sessions ever passes over at the Old Bailey, without giving birth to instances, more than one, in which effects, known by all mankind to be worth three pounds, or ever so much more, are valued at less than forty shillings?* Valued, thus under-valued, and for what purpose? For what but to set their power above that of the law; and, in the very teeth of the legislature, consign to a less degree of punishment, some criminal, for whom a greater degree of punishment has been appointed by parliament? When a judge is really displeased with a verdict, his practice and his duty is to send them back to their box, or their room, with a recommendation to reconsider it. What instance was ever known of a judge sending back a jury with a recommendation to exonerate their consciences of a load of perjury thus incurred? On the contrary,—whether by judges, by lawyers of other classes, or by non-lawyers,—in how many instances has such perjury been ever spoken of with any other note of observation, than what has been expressive of approbation and applause? Mercy—humanity—such are the eulogistic names bestowed, regularly bestowed, upon the profanation of this ceremony: as often as the object of the profanation has been to usurp a power lodged by the constitution in other hands, and put the most marked contempt that can be put by a subordinate authority upon superior law.

Blessed effect of this ceremony and its vaunted sanctity! Judges designating by the self-same name the practice they punish, and the practice they encourage! Punishing at one time—promoting, enforcing, at another—the same thing, or at least what they bid men look upon as the same thing: for, to cause two things to be looked upon as the same thing, what shorter or more effectual course can a man take, than to call them by the same name?

In the well-known epigram of Prior, the story of the fat man in the crowd, complaining, in terms of impatience, of the inconvenience of which in his own person he was in so great a degree the cause, presents, as it flows from the pen of the poet, no other sentiments than those sentiments of ridicule and pleasantry which it was intended to excite.

Sentiments of a somewhat different complexion may perhaps be excited, in the instance of the mischief now upon the carpet—that of perjury—when, in the persons of the most constant complainers of it, and indefatigable declaimers against it, we find the chief and unceasing encouragers, and, as far as encouragement goes, authors: encouragers in every mode and form in which encouragement can be administered,—example, precept, commendation, reward, punishment: punishment attached, not, as might have been supposed, to the incurring of the guilt, but to the abstaining or omitting to incur it;—the punishment here spoken of being not that which is administered in ceremony, half a dozen times perhaps in the year, with the professed view of curbing it, but that which is administered without ceremony every day in the year, not merely in the design, but with the indisputable effect, not merely of promoting, but of securing, the perpetration of it.*

§ 3.

Mischievousness of Oaths.

Inefficacious as is the ceremony of an oath to all good purposes, it is by no means inefficacious to bad ones.

1. Under the name of the mendacity-licence will be hereafter treated of, at full length, one of the principal among the devices by which, under the fee-gathering system, judges—the authors of unwritten law in both its branches, the main or substantive branch, and the adjective branch, or system of procedure—have, with so disastrous a success, pursued the ends—the real ends—under the fee-gathering system the only ends—of judicature. It is by the licence granted to mendacity on both sides of the cause, that judges have given encouragement and birth to their best customers, the malâ fide suitors. It is by means of the vain and pernicious ceremony of an oath, that they have been enabled to grant and vend the mendacity-licence. The punishment due to testimonial mendacity has been artfully attached, not to testimonial mendacity, but to perjury: not to testimonial mendacity in all cases without distinction, but to testimonial mendacity in such cases, and such cases alone, in which mendacity has by their authority been converted into perjury: which conversion cannot be effected without the previous ceremony of an oath; of which ceremony they have, at pleasure, caused, or forborne to cause, the performance: and, when the religious ceremony has been withheld, they have not only exempted the offence from punishment, but, by exempting it from punishment, they have exempted it from infamy also.

2. The ceremony having acquired a technical denomination, that of an oath—a substantive which is understood to have for its quasi-conjugate the verb to swear—religionists of different descriptions (in particular those called Quakers) have, by a principle of religion, been prevented from taking a part in it. The consequence has been a licence, inter alia, to commit, to the prejudice as well of Quakers as of all other persons, every imaginable crime, of which, in whatsoever number. Quakers, and they alone, shall have been percipient witnesses.

From the class of wrongs called civil, the licence has, by an act of the legislature, in case of a Quaker witness, been withdrawn; viz. by substituting to the words oath, and swear, the words affirmation, and solemnly affirm: but to the encouragement of the class of wrongs called criminal (to which class belong those which are of the deepest die) the licence continues to operate with unabated force and efficacy.*

3. The last which shall be here mentioned of the wounds inflicted upon justice by this disastrous ceremony, is one, of which, on the present occasion, a short hint is all that can be afforded.

Of the mischief done to justice by the door so inconsistently shut against evidence from the most satisfactory source, viz. confessional evidence, if presented in the best shape,—while, to evidence from the same source, on condition of its being presented in some less trustworthy shape, the same door is left wide open,—mention will be made in the sequel.* To an exclusion thus prejudicial to justice, it seems as if the ceremony of an oath, with the prejudices that cluster round it, had been in some degree necessary. That sacred regard for the ceremony of an oath,—that awful sense which, if it ever was alive, is seen to be so effectually dead, in judges and jurymen—has been supposed to be essentially and tremblingly alive in robbers, murderers, and incendiaries. If (what is not endurable) a man of any of these descriptions were, on his trial, to be subjected to examination, as well as his accomplice, on whose testimony he is about to be convicted, the oath so regularly tendered to the one must not be tendered to the other, for it would be a snare laid to his conscience: and thus it is, that, not being to be interrogated upon oath, he is not to be interrogated at all.

Note, that to one who is really innocent, neither oath nor question can be a snare. It is only on the supposition of his being the robber, the murderer, or the incendiary, which he is supposed to be, that his conscience can be afflicted with the qualms supposed to be infused into it by that ceremony, which is trampled upon even to ostentation by jurymen and judges.

In compelling a man, in the character of an extraneous witness, to declare what he knows touching a transaction in which he has no pecuniary, or other reputedly considerable, interest,—and, on the occasion of such a declaration to such an effect, to join in the ceremony of an oath,—the man of law, the English lawyer for example, finds not the smallest difficulty. In compelling a man, in the character of a party—in the character of a defendant—always with the same ceremony, to make a declaration, in consequence of which (if true) he may find himself divested of the possession of an estate to any magnitude, the property of which, till the question had thus been put to him, he had conceived no apprehension of not carrying with him into his grave—the man of law, and again the English lawyer, finds as little difficulty.

But now comes another case: the defendant is under prosecution for a crime, for which, if convicted, he will be punished with death. Now then, shall a man thus circumstanced be put to his oath? Forbid it, religion! forbid it, humanity! What! subject him to a temptation, under which it is not possible he should not sink! force him, and at such a time, to commit perjury! His body is to be sent to the worms: and, before it has time to reach them, is his soul to be consigned into the hands of the devil—of the devil, at whose instigation the crime, if committed, was committed,—his soul to be consigned over to the devil, to be plunged immediately into hell!

Whence comes all this tenderness, this delicacy, this difficulty? It arises principally, if not entirely, out of the oath. Take the man out of the court of justice—out of that place, where everything that passes, passes in the face of day; where,—either by threats, promises, or other undue influence—by threats of severity, by promises of mercy or positive reward—the idea of seducing his testimony from the line of truth is hopeless and without example;—take him into a forest, or a dungeon—into a recess of any kind, into which no third eye can penetrate; in this case, whatever he may have been made to say, though to his own indubitable condemnation, is unexceptionable evidence. Why? Because, in that case, there is no oath, no perjury: if his body goes to the worms, and his soul to the place of endless torment, it is for whatever he has done; it is not for what he has thus said—it is not for the perjury.

But the mischief, and the difficulty, the inconsistency, end not here. Not only when life may be saved by perjury, may not the temptation be too great? May it not also be too great, when liberty, reputation, property, the great bulk of a large property, may at this price be saved? and so down to a fine of five shillings? Would not this, too, be laying a snare for men’s consciences? Was not this the cruelty practised by the wicked judges of the star-chamber? Could it be proved that a judge of the star-chamber ever folded a piece of paper in three folds—would not the wretch who should presume, at this time of day, to fold a piece of paper in three folds, deserve to be held in execration by all posterity?

Thus it is, that, in the case of a defendant, you must not have the security, the supposed security, that an oath would give: and because you must not have the sham, the hollow security that this ceremony could give, you must not in this same case have the real, the substantial security that punishment would give—punishment applied to mendacity in this, as in any other case.†

It was simply in the character of a security for veracity, and in respect of its inefficiency and inaptitude in that character, that the ceremony of an oath fell to be considered here. Its efficiency, its unhappy efficiency, in a very different character, that of an instrument of tyranny and improbity, by serving to bind men to the performance of engagements fraught with the most pernicious consequences to themselves and others, belongs not directly to the present purpose. The purposes to which it has thus been applied, belong not the less to the list of the objections to the use of it: but, not being directly applicable to the purpose in hand, to mention them pro memoriâ may, in this place, be sufficient.

Suppose but an atom of punishment attached to the profanation on its own account merely—on its own account merely, and, if that be the case, inseparably attached to it; so far as that supposition extends, so far the institution of an oath is mischievous, and purely mischievous. It gives to man, weak, frail, sinful, wicked man—it gives to man pro tanto (so he be but clothed in temporal authority) the command, the absolute command, over a proportionable part of God’s power—applicable to the worst, as easily as to the best of purposes. It makes man the master, God his servant: and not his servant only, but his slave—his slave bound to a degree of unerring obedience such as no human master ever received, or could have received, from any slave.

Attach to the ceremony, and thence to the profanation of it, but the smallest particle of punishment, and that particle inseparable; then has every man a sure recipe for binding himself, and any such other man as the influence of a moment can put into his power for this purpose,—for binding them, with a force proportioned to the quantum of this particle, to the commission of all imaginable crimes: then has man, by grant from God himself, a power over God, applicable at any time to the purpose of converting God himself into an accomplice of all those crimes.

Let this be the supposition built upon, then would Jephthah, by the amount of this inseparable particle,—then would Jephthah, had he spared his daughter, have been punished by God’s power—punished, not for the taking of the rash vow, but for the breaking of it.

Then would the assassin of Henry IV. (punished, or not punished for making the attempt) have been punished, and by divine vengeance, had he refrained from making it.

Assassination,—assassination through motives of piety, is the natural,—in case of consistency the necessary, and as history testifies, the too frequent,—fruit of the popular persuasion relative to the nature and effect of oaths.

It was in the earliest stages of society—in those stages at which the powers of the human understanding were at the weakest—that this, together with so many other articles in the list of supernatural securities, or substitutes for testimonial veracity, took their rise. Ordeals, in all their forms: trials by battle: trials without evidence (understand human evidence:) trials by supernatural, to the exclusion of human, evidence: trials by evidence secured against mendacity by supernatural means—by the ceremony of an oath.

As the powers of the human understanding gain strength, invigorated by nourishment and exercise,—the natural securities rise in value, the supernatural, understood to be what they are, drop, one after another, off the stage. First went ordeal: then went duel: after that, went, under the name of the wager of law, the ceremony of an oath in its pure state, unpropped by that support which this inefficient security receives at present from those efficient ones which are still clogged with it: by and bye, its rottenness standing confessed, it will perish off the human stage: and this last of the train of supernatural powers, ultima cælicolâm, will be gathered, with Astrea, into its native skies.

The lights, which at that time of day were sought for in vain from supernatural interference, are now collected and applied, by a watchful attention to the probative force of circumstantial evidence, and a skilful application of the scrutinizing force of cross-examination.

§ 4.

How to adapt the ceremony, if employed, to its purposes.

Objectionable as the ceremony of an oath, considered in the light of a security for the trustworthiness of testimony, has appeared to us to be; still, if it is to be applied to that purpose, it cannot be a matter of indifference to know in what way the little efficiency which it possesses may be made as great as possible.

An oath acts in three ways: it carries with it the operation of three different sanctions: of the religious sanction, from its nature and essence; of the legal sanction, whenever punishment has been attached to the profanation of the ceremony, as such; of the moral or popular sanction, because that which points the force of the legal sanction upon any object, generally points at the same time the force of the moral sanction, and brings to bear the punishment issuing from that source, also.

Suitable to the nature of the three different sanctions concerned, will be the arrangements calculated to raise to its maximum the salutary agency of the ceremony, as applied to the purpose in hand. The practical utility of introducing into practice this or that particular arrangement on the occasion in question, will depend so much upon the state of public opinion in each respective country—upon the prejudices, and humours, and caprices, of the people and their rulers,—that the hints which follow on the subject cannot be adapted to any other purpose than that of illustration. For that purpose, a concise (and as it were) short-hand mention of them will be sufficient, without attempting to enter into details, distinctions, modifications, or justifications.

I. Arrangements for adapting the ceremony of the oath for the purpose of pointing the force of the religious sanction:—

1. Form of words, appropriate and impressive.*

2. Different form of words, rising one above another in solemnity and impressiveness; partly according to the importance of the occasion, as measured by the mischievousness of the offence, according to the modifications above exhibited; partly according to the apprehension of falsehood, excited by the individual circumstances of the case in the bosom of the judge.†

3. On occasions of superior importance, attitudes and gestures directed to the same end—litting up the hands and eyes to heaven,‡ &c.

4. Appropriate graphical exhibitions, constituting in this view a regular part of the furniture of every court of justice. Copy, in painting or engraving, of the death of Ananias and Sapphira (capitally punished on the spot by divine justice, for mendacious testimony of the self-investitive or self-exoncrotive kind,) a subject treated by Raphael in one of his cartoons. Over the picture or print, explanations and applications, in characters legible to all spectators.

5. Other appropriate exhortations and observations taken from scripture.

6. The oath administered, not by a lay-officer of the court, but by a minister of the established religion.∥ On extraordinary occasions (the witness professing a religion other than the established)—power to the judge to call in the assistance of a minister of the witness’s own religion, for the purpose. On occasions of extraordinary importance, prayer by the minister, short but appropriate.

II. Arrangements for adapting the ceremony, on extraordinary occasions, to the purpose of pointing the force of the political sanction:—

1. In front of the station of the witness, as he stands up to deliver his evidence,—a table, in characters large enough to be read from every part of the court, stating the punishment for perjury, according to its various gradations. While the witness is pronouncing the oath, an officer of the court, with a wand, points to the particular modification of punishment attached to the particular modification of perjury, which on the occasion in question, would, in case of mendacity, be incurred.*

2. On extraordinary occasions (for example, when the temptation or the proneness to mendacity is apprehended to be particularly great, and, at the same time, the cause important,) a curtain draws up, and discovers a graphical exhibition, representing a convict suffering the characteristic punishment for perjury, whatsoever it be. The officer, with his wand, directs the attention of the witness to it, as above.

III. Arrangements for adapting the ceremony to the purpose of pointing the force of the moral sanction:—

1. In the wording of the oath, express and distinct reference made to the punishment from this source, as well as from the religious. In the event of mendacity, the witness recognises himself as about to incur, and as meriting to incur, the contempt, or (according to the nature of the case) the abhorrence of all good men.†

2. In case of suspicion of falsehood (whether arising from extraneous contradiction, from self-contradiction, from inconsistency, or improbability,) but without ground sufficient for prosecution; the publication of this particular part of the evidence in the newspapers, authorized, encouraged, or ordered, by the judge: warning given of this arrangement to the witness at the time. Concerning the publicity to be given to judicial examination in general, see a subsequent chapter of this Book.‡

3. To this head may likewise be referred the several arrangements exhibited under the two former heads. Whatever discourses and exhibitions are addressed in this way to the witness, make their way at the same time to the public at large, and through that channel (circuitous as it is) are reverberated upon him with augmented force.

Preach to the eye, if you would preach with efficacy. By that organ, through the medium of the imagination, the judgment of the bulk of mankind may be led and moulded almost at pleasure. As puppets in the hand of the showman, so would men be in the hand of the legislator, who, to the science proper to his function, should add a well-informed attention to stage effect. Unhappily, among the abundantly diversified shapes in which severity has displayed itself in penal exhibitions, scarce the faintest trace of ingenuity is anywhere to be found. No marks of any progress made in the study of human nature—no sign of any skill, or so much as thought, displayed in the adaptation of means to ends. Ends are scarce so much as looked at. Blind antipathy is the spur—blind practice the only guide. To do (though it be to fail) as others have done before him, is each man’s only aim, is each man’s highest praise.

Next (if not superior) in importance, to the study of augmenting the efficacy of the ceremony by these corroborative circumstances and accompaniments, is the attention not to spend its force upon the air—not to consume it upon inadequate objects—nor to debilitate it and bring it into contempt, by employing it upon occasions in which its utter inefficacy is demonstrated by experience: not to persevere in employing it in the character of a security for veracity, in cases where mendacity is the constant and notorious result.

The following are such further rules, as may with advantage be observed in the wording and administering of the oath:—

Rule 1. Let the words of the oath be pronounced by the witness himself: not simply heard, and tacitly assented to, as they issue from the mouth of a third person—such as the person by whom the oath is said to be administered.

Reasons: 1. A ceremony—a discourse—will naturally appear to a man to be the more unequivocally and indisputably his own, the more active the part is which he takes in it. Whatever issues out of a man’s own mouth, will naturally appear to him to be more completely his own, than what he silently hears while spoken by another. Silence, says the proverb, gives consent: True; but not so clear and unequivocal a consent as is given by direct speech. Where the inclination is reluctant, nothing more inventive than the imagination—nothing more flimsy than the subterfuges which it will make or catch at. I did not hear—I did not attend—I did not comprehend: no excuses too weak for a man to pass upon himself, howsoever it be with others. What you yourself pronounced, you cannot but have heard: what you yourself pronounced, you cannot but have attended to: what you yourself pronounced, you cannot but have comprehended; it being that sort of proposition, which a man cannot fail of comprehending, so he have but given it that measure of attention, without which he could not have pronounced it. Such are the bars which the voice of conscience, or of any monitor from without, has to oppose to the propensity to evasion in the case of audible enunciation, but not in the case of silent auditorship.

2. Any denunciation of infamy, though it be but eventual and hypothetical, is reflected upon a man in a more forcible manner, when the mouth from which it is known to have issued is his own. “Thy own mouth condemneth thee, not I.”* “Out of thy own mouth will I judge thee.”†

Rule 2. In the words which the witness pronounces, the verbs and pronouns should be in the first person, I swear, I declare, and so forth.

Reason: This feature in the oath is necessary to give complete fulfilment to the intention expressed in the rule last preceding; to raise to its maximum the force of the inflicted infamy; to raise to its maximum the force of the impression made by the oath upon the mind of him who takes it.

This form, though not only the most apposite, but the most natural, is not however so necessary as to render the opposite form without example. The form, in which the judgment eventually passed upon the conduct of the witness, and pronounced by the witness, is expressed, may be that of a judgment passed upon it, not by himself, but by others, viz. the authors of the disposition of law, by which the oath is instituted.

Rule 3. The form should be as concise as is consistent with the preceding rules.

Reasons: 1. In proportion as a discourse is drawn into length, especially if without material addition to the ideas conveyed by it, the impression made by it is weakened.

2. Where witnesses are numerous (especially where the time allowed for the examination is limited and scanty,) the time consumed in this way may be a material object, in respect of vexation, expense and delay; and at any rate, in respect of the time consumed on the part of the judge.

§ 5.

Oaths, how applied as a security for the trustworthiness of testimony, under past and present systems of law.

Under the original Roman law, the ceremony of an oath (as already mentioned‡ ) does not appear to have been employed in general on the occasion, nor consequently for the purpose of adding to the securities for the truth of testimony. Not extending in general to what are commonly called assertory declarations, it must have been for the most part confined to those occasions on which it has been distinguished by the appellation of a promissory oath.

At one period or other, on here and there an occasion, the ceremony does indeed appear to have been employed for this purpose. But if the intention was really sincere, so shallow was the conception, so clumsy the manipulation, that the interests of truth seem upon the whole rather to have suffered by it, than to have been served.

An oath, in so far as a breach of the engagement is exposed to detection, operates, it is true, as a check to mendacity. But, if the breach of it is entirely covered from detection, it operates,—in here and there a mind of more than common delicacy, as a check to mendacity,—but on minds of vulgar mould, rather as an encouragement. By presenting a colour of efficiency to a check which in reality amounts to nothing, it furnishes a certificate of veracity to any liar who thinks fit to apply it to that use. It gives him credit for virtue which he does not possess; secures to him all the profit of mendacity without any of the risk; and enables him to combine the benefits of mendacity with the reputation of the opposite virtue. When, by the tie of so awful a sanction, a man is bound to the observance of the laws of truth,—can you, without a violation of the law of charity, refuse to take him at his word? Such, on these occasions, is the joint cry of the hypocrite and the dupe.

In case of falsity, the testimony given by a man is the more thoroughly exposed to detection,—in the first place, the more particular and circumstantial it is at the first delivery,—in the next place, the more completely it is subjected to the test of cross-examination. Remove this test, you already grant to mendacity a sort of half-licence. But if, instead of calling upon a man for particulars, you admit of a declaration in general terms,—nothing is more easy, more natural, or more common, than, by the generality of those terms, to render the licence complete.

Such, at any rate, is the effect. More than one cause (speaking of psychological causes) may, any of them, have been adequate to the production of it. In some instances, fraud: the futility of the remedy being understood by the hand that administered it. In other instances, honest imbecility: the prescriber being himself a believer in the efficacy of his own quack medicine.

In what, if in any, cases, the general declaration has been substituted to particular statement, such as would naturally be extracted by examination,—in what cases, if in any, superadded,—does not appear clearly, on the face of such reports as are before me. What seems probable is, that the reporter himself had no clear conception of the difference: what seems equally probable is, that the judges, whose practice he has in view, had not themselves any clear conception of the difference. Sometimes the one course may have been pursued, sometimes the other, according to the occasion, and the object (public or private, good or bad) that happened to have been principally in view. Substitution would be suggested by indolence or favour—addition, by despair and lassitude. In the latter case, the judge stands in the predicament of the miser Harpagon, in Molière: after searching till he was tired, and finding nothing on the supposed thief—“Rends moi,” says he, “sans to fouiller, ce que tu m’as volé.”

Among the Romanists, the following present themselves as the principal instances in which this sort of mock security appears to have been employed:—

1. The juramentum expurgatorium. The sort of case here is a criminal one. The process of examination must have been already undergone; for to employ it, was the constant practice in these cases. The evidence thus extracted was found insufficient: it was so, even with the addition of the extraneous evidence. Had an oath been administered before the examination? then to what use repeat it afterwards? Had no oath been administered at that stage? then why discard it at a time at which (if at any) it might have been useful, reserving it for a time at which all chance of its being useful was at an end?

2. The juramentum suppletorium. The case is here a non-penal one. The plaintiff, for example, demands a debt. The extraneous evidence he produces is deemed insufficient. To supply the deficiency, he is admitted as witness in his own behalf: but on what terms? Not on the terms of submitting to examination, like an extraneous witness,—but on the terms of repeating, in general words, what in general words he had said before. Of so untrustworthy a sort is the testimony, that, so long as any other is to be had, it is not to be received at all: this same untrustworthy evidence, when it is received, is to be received free from those essential checks, which, in the case of the most trustworthy witnesses are deemed indispensable.

3. The oath of calumny: placed by Bishop Halifax at the head of those arrangements the object of which was to restrain what he calls temerity (he should have said mala fides) on the part of litigants. I believe my cause is a good one,—says the suitor, plaintiff or defendant. To a suitor by whom these words have been pronounced, what judge can be so uncharitable as to impute any but the purest wishes and the purest motives? By these words, as surely as by a talisman, everything that savours of temerity is to be restrained. What grounds have you for looking upon your cause to be a good one? A question of that sort would have been too dangerous: a customer who could not answer it, might every now and then be driven from the shop, the officina justitiæ, as Blackstone so truly calls it.

On the vivâ voce examination of a witness, the form observed in English procedure, on the occasion of a trial before a jury, is as follows:—An officer of the court, having put into the hand of the witness a book containing the Christian scriptures (viz. that part which is purely Christian, the New Testament—or, in case of a Jew, that part of the Christian scriptures which is recognized in common by Jews and Christians—the Old Testament)—addresses himself to the witness, and says to him as follows:—The evidence you shall give on the issue joined between our sovereign lord the king and the defendant—or, the prisoner at the bar—or, the parties—shall be the truth, the whole truth, and nothing but the truth—so help you God. The witness thereupon, either of his own accord or at the suggestion of the officer, puts his lips to the book: and then, and not till then, the oath is considered as having been taken.

As to the description of the testimonial duty, it seems happily enough imagined:—comprehensiveness, conciseness, and emphaticalness, are qualities, the praise of which seems to be justly merited by it. Of the three members of the clause—“the truth,” “the whole truth,” “and nothing but the truth”—the sense might perhaps be conveyed by the two last, without the first. But so useful is the first for filling the period, and strengthening the impression made upon the mind through the medium of the ear, that, supposing it omitted, the force of the phrase can scarcely but appear to have sustained a considerable loss. Instead of being considered as an additament purely superfluous, the general expression the truth may be considered as containing in itself the whole of the sense: in which case, the two other members may be considered as added by way of exposition; lest, for want of sufficient particularity, either of the ideas (in particular that of integrality) should fail of presenting itself to notice.

In other respects, if the above rules be considered as affording a proper test, the above exhibited formulary seems ill qualified to abide it. So far as enunciation goes, the witness is purely passive: he is a hearer only, not a speaker, though in a concern so much his own. Not speaking at all, the rule which requires him to speak in the first person is unobserved of course. The kissing of the book is an exhibition altogether vague and inapposite. If it be understood to convey an expression of respect, there is nothing to direct it to any object beyond the book: if it contain an expression of respect for the book, and the objects from which it derives its title to respect, it bears not any express assurance of the veracity of the statement about to be delivered.

Considered as an instrument for calling in the force of the religious sanction for the purpose of binding the witness to the observance of his duty, the phrase So help you God seems but very feeble and inadequate. It contains an allusion to God’s favour, but scarce the faintest allusion to God’s wrath. It brings good alone to view, not evil—reward, not punishment. It holds up to the witness the prospect of a sort of special grace, an extraordinary and unknown reward, to be hoped for by him in the one event; but is silent as to reprobation and punishment, in the other, The worst that is represented as about to befal him in any event—in the event of his defiling himself with the crime of perjury,—is the failure of this special grace: a sort of acquisition, the idea of which not having been ever stamped upon his mind, the apprehension of missing it is not of the number of those by which sensible and serious alarms are wont to be excited. What salutary terror can be expected to be excited in the mind by the faint and altogether oblique intimation of a possible loss, of which neither the value, nor so much as the nature, has in any perceptible degree been ever present to a man’s mind? If a working man (and of such is the bulk of the species) has a burthen to raise, and wants help to lift it, whom has he been used to look to?—not God, but his next neighbour.

In the Danish law, no great value appears to be set upon the judge’s time. In causes of a certain degree of importance, each witness, before or after he takes the oath, is to hear what is called an “exposition” of it, extending to the length of three quarto pages; an expense of time the more wanton, inasmuch as this dissertation is to be kept constantly exposed to view, in every court of justice.*

According to the Danish code, a witness swears with his fingers—the thumb and the two next being held up together, one for each person of the Trinity.†

Of this sort of theology, observe the moral consequence. If murder or incendiarism (for example) be committed in presence of Arians or Socinians in any number, and of no others (not to speak of Jews,) either the crime is to go unpunished, or the witness is to be duly plagued in form of law, till he submit to swear against his conscience.

In case of perjury, besides forfeiture of all forfeitable property, the witness is to lose two fingers,—two of the three offending fingers, it seems natural to suppose,—and thus far analogy seems to have been consulted. Pity an equal regard had not been shown to economy, not to speak of humanity and common sense. The convict, if not already a pauper, was to be converted into one by the forfeiture; and, by the same sentence, his means of livelihood were to be cut of.

As to the punishment of the religious sanction, if any particulars are desired concerning it, reference may be made to the Hindoo code, and to the Danish code.

In respect of quality, the Hindoo code does not afford us much information: in respect of quantity, it is precise to admiration. The misfortune is, every quantity is relative: and what the correlative is, is not explained.

If the subject be a cow (whether the cause be penal of non-penal is not specified,) the guilt of perjury is equal to that of the murder of exactly ten persons: if a horse, guilt equal to one hundred murders: if a man, one thousand murders: if a piece of gold, the number of murdered persons on the other side of the equation is rather difficult to reckon; it is equal to all the men that ever were born, plus all that ever will be.

“If the affair be concerning land,” the ratio of this lot of guilt to the preceding one seems rather difficult to measure: it is that of the murder of all the creatures of all sorts living in the world; but at what period is not specified.

Another difficulty turns upon the distinction between an animal having hair upon its tail, and an animal having none: in the former case (kine and horses excepted as above,) the number of murders, to the guilt of which that of the perjury is equal, is exactly five: when the tail has no hair upon it, the degree of guilt is left to be discovered by the faint light of human reason.

For exculpative perjury (at least for self-exculpative,) when the punishment is capital, there is an express licence—a few cases of particular atrocity excepted, such as the cases of murdering a cow, or drinking wine:* and, for the encouragement of marriage, three or four falsehoods may be told, to promote so laudable an end. At the same time, so much better a thing is gallantry without marriage, than marriage itself, that in the former case the quantity of “falsehood” pronounced “allowable” is unlimited.†

In the Danish code, the punishment of the religious sanction says nothing of proportions, and seems to have but one and the same lot for all offences, whatever be the unhappy occasion,—men, land, horses, gold, animals without hair upon their tails, or cows. In respect of quality, it furnishes considerable information. Besides being excluded for ever from the company of the inhabitants of heaven, with the three persons of the Trinity at their head—a privilege the loss of which might, by want of the experienced enjoyment, have been rendered the more tolerable,—besides this, together with a variety of other negative punishments of the same complexion,—the perjurer’s body and soul are to stand devoted to Satan and his crew (who, for the occasion, are loaded with sad epithets,) and with them in the depth of Erebus, are to be surrounded and tossed about in everlasting and unextinguishable fire, always consuming, never liberated. Another punishment, which in case of perjury the witness is to be understood to wish for, is one that is to be borne, not by himself immediately, but by his cattle. They are not to be roasted, like their master, in Erebus, but to pine away upon earth, and be emaciated, till they have lost their value. Such, it is explained, is to be his wish: but as to the cattle, whether the wish is to be accomplished, is not stated.

By the Swedish law, if the letter of it is to be depended upon,—be the cause what it may—in a cause of property, be the value in dispute what it may,—every man is at liberty to perjure himself for forty dollars: a sum considerably less than the ten pounds, which, in English equity law, is deemed so very a trifle as not to be worth restoring to a man who is unjustly deprived of it. One would think that all the absurdity in human nature had crowded itself into the department of science in which the demand for intelligence is the most urgent.

In the same code, the oath, though little more than a tenth of the length of the Danish explication, is still too long for ordinary occasions. It occupies a dozen quarto lines.‡ No written exposition here, as, on extraordinary occasions, in the Danish code: but, whatever be the occasion, the witness is condemned to hear, and the judge to pronounce, on the subject of it, an extempore admonition, which may be of any length. Much scope for eloquence is not indeed afforded to the sermon, where the text is no more than forty dollars. The pain of being intestabilis (whatever be meant by intestabilis) will not make any very efficient addition to the dollars: if the privilege from which a man is debarred be the making of a will, the terror will not be very great where he has nothing to leave, or is satisfied with the will that the law has made for him: if it be that of serving again as a witness, it is so much trouble saved, the only inconvenience being to a possible somebody else, whom he does not care about: unless the case be his own, and then the exclusion may cost him his life.

§ 6.

Should an oath, if employed in other cases, be employed or not on the examination of a defendant in penali?

When a defendant, in a cause of a penal nature, is examined—in other words, where the testimony extracted or received is of the self-regarding kind, and, in the event of conviction, self-disserving, and self-convicting,—shall an oath he administered to him or not? If not, then the security thus afforded for veracity is left unemployed: and in what cases? In those in which the discovery of the truth is of most importance. If the ceremony be extended to these cases, then comes a hardship, which to some eyes may be apt to appear so tremendous as to be intolerable. In case of perjury, the suffering, being supernatural, may be infinite; while, in case of delinquency, such is the frailty of human nature, more particularly in so guilty a bosom, that the temptation to incur this infinite punishment may be irresistible.

Another difficulty. Suppose it desirable, that, under such circumstances, a defendant should take the oath: what if he refuse? Acquiesce in the refusal, the security is lost,—lost to the most important class of causes. Refuse to acquiesce in the refusal, what resource is there for compelling it? To endeavour to compel it, is but in other words to employ torture. But admitting torture to be a warrantable expedient in any case, is this a case in which to employ it?

Not to pursue, as it were in a parenthesis, an inquiry of such intricacy, a solution for the difficulty presents itself, and such a one as seems equally simple and unexceptionable. Tender the oath: if he accepts it, swear him; if he declines it, do not attempt to force him, but warn him of the inference. From a refusal to take the oath (particular religious persuasions excepted) the inference—an inference which, at the suggestion of common sense, every man will draw immediately,—is exactly the same as that which would be drawn from non-responsion under the oath, or from non-responsion on an occasion of an extrajudicial nature, and which accordingly admits not of an oath.

This course seems to be equally advantageous, whether guilt be supposed, or innocence. In case of innocence, all objection vanishes: being innocent, a man embraces with alacrity this as well as every other means of impressing the court with the persuasion of his innocence. In case of guilt, if he declines taking the oath, a species of circumstantial evidence operating in proof of the guilt—a sort of evidence tantamount to non-responsion, is thus obtained. If, notwithstanding his guilt, and thence his consciousness of guilt, he takes the oath—takes it in the view of avoiding to bring to bear against himself that species of circumstantial criminative evidence,—a result more or less probable is, that, to the symptoms of perturbation produced in his deportment by the apprehension of the legal punishment which he has incurred, may be added those of an ulterior degree of perturbation, produced by the contemplation of the guilt of perjury.

Will it again he said—still you ought not thus to lay snares for consciences; it is cruel, for any temporal advantage, thus to subject a sinful soul to so serious an addition to its guilt? If this reasoning were conclusive, you should abstain from the use of this security altogether: in cases non-penal, as well as penal—in the case of extraneous, as well as in that of self-regarding, testimony; wherever you saw a man determined, as you thought, to commit perjury, this security for veracity ought, in that instance, to be laid aside: the more hardened and determined in mendacity a man were, the more safe.

The mischievous consequences that would ensue from the notion that the profanation of the ceremony were accompanied with any guilt, moral or religious, over and above whatever may be attached to the mendacity by which the profanation is effected, have been already stated: together with the radical incongruity and inconsistency attached to the notion of a frail and weak being, such as a man, disposing, at his pleasure, of the power of a Being all-powerful and all-wise. If the conclusion be just, the above objection, respecting the peril of future supernatural punishment, falls to the ground.

At any rate, the objection can never come with any tolerable consistency or grace from the lips of any one by whom the application made of this ceremony to the function of a juryman, on the occasion of an English trial, is approved. An oath, forced into the mouth of twelve such judges, to oblige them to declare their real opinion; and torture applied to force some number of them, in case of diversity of opinion, to declare (each of them) that to be his opinion which is not!—a mode of judicature so contrived that it could not go on, unless the judges, in unknown numbers, were continually forced by torture into perjury!

True it is, that the incongruity of one such practice does not give congruity to another: but if, for fashion’s sake, a certain quantity of perjury must at all events be preserved, better preserve a sort which is of some use, than a sort which is as useless, as in every other point of view it is incongruous.*

[* ]In specie it was the same sort of authority as that which was supposed to be exercised by magical incantations: exercised only over a different sort of supernatural person, and to different and even strongly contrasted purposes. The authority exercised by a testimonial oath, was exercised over a divinity spoken of in the character of a beneficent divinity, and for purposes spoken of in the character of beneficial purposes: the authority exercised by a magical incantation, was exercised over a maleficent divinity, and for pernicious purposes.

[* ]“The alternative to which Providence is by consequence reduced, of either giving up that country to everlasting superstition, or of working some miracle in order to accomplish its conversion.” Such are the words in which (in the Edinburgh Review for April 1808a ) a reverend divine is represented as describing one of the consequences which, in his view of the matter, will ensue, should the arm of government be employed in restraining, by coercive measures, the exertions directed to the extension of the benefits of christianity to the natives of Hindostan. “The idea of reducing Providence to an alternative!!” exclaims the reviewer in a double note of admiration: “and by a motion at the India-House, carried by ballot!”—“Providence reduced to an alternative!!!!!”—another exclamation by notes of admiration five deep. Then—for the declared purpose of representing the idea as the ne plus ultra’ of irrationality—this and that and the other idea, represented as irrational, is said to be pure reason when compared to it.

The ground on which the line of conduct thus protested against, as tending to reduce Providence to an alternative, is censured, is that of its being too great a power for human imbecility to exercise, or so much as to attempt to exercise, over divine omnipotence. But the power, the supposed exercise of which drew from the reverend divine the apprehension and the censure expressed in the above passage—this power, if indeed it reduced the Supreme Being to an alternative, left him, at any rate, in possession of an alternative: and an alternative which does not present itself to human conception as pregnant with any considerable degree of distress.

But the notion which represents the common ceremony of an oath as entailing, and without recovery, guilt—with its inseparable appurtenance, future punishment—on the violators of it,—and this independently of, and over and above, whatever may be attached to the occasion,—leaves to divine omnipotence no alternative. Bailiff to and under the human magistrate, the divine functionary has given bond for the execution—the constant and punctual and sure execution—of whatsoever writ shall be sent from the court below to the court above: for, when the idea is so self-contradictory, language is at a loss how to phrase it.

The human power, which, reducing divine omnipotence indeed to an alternative, leaves it at any rate in possession of an alternative, is not proposed to be exercised by any other hand than one, and that the hand of the supreme authority in the state: the power which leaves omnipotence no alternative, is a power which any and every individual in the state, who is rash enough and foolish enough, may exercise at any time, and any number of times, at pleasure: on so simple a condition as that of getting a justice of peace to join in the performance of the instantaneous ceremony.

God made man after his own image, says the text: man has returned him the compliment, says I forget what commentator. “Every man his own broker” is the title of one book; “Every man his own lawyer” of another: difficult as it is for any (not to speak of every) man to be his own broker, much more his own lawyer, no man finds any difficulty in being his own God-maker: and when a man has made his God, we see the sort of work he puts him to. The God of the good sort of man is himself a good sort of man: but the God of the vulgar, great and small, is what the God of Samuel Johnson was—a devil, with the name of God written in great letters on his forehead.

O that, in making his God, man would but content himself in making him for his own use! But no: it is not for his own use, it is not for his own benefit at least, that man makes his God; but for the destruction of others, of all others who presume to differ from him; and who, for this offence, are, on any the slightest pretence, doomed to unutterable torture without end in another world, together with such as can be inflicted by the present and ready-prepared engines of the civil magistrate in this.

[* ]By 1 & 2 W. IV. c. 4, declarations were substituted to oaths in this department.—Ed. of this Collection.

[* ]Subjection to interrogation ex adverso, backed by fear of punishment and of loss of reputation, to enforce compliance.

[* ]In some of the above cases, the title to the money rests solely upon the authenticity of a script, an order, or other voucher, produced in the character of an article of written evidence. In these cases, he who, instead of an authentic, produces a counterfeit script, subjects himself to the punishment (generally capital) appointed in case of forgery.a In others of these cases, the mere identity of the person is the efficient causes of title. In these cases, he who, not being the person entitled under a certain name to receive a certain sum of money, represents himself as being that person, and receives the money accordingly, subjects himself to the punishment (generally capital) appointed for this offence, under the name of personation.

[† ]See the last Chapter, § 1.

[* ]By 7 & 8 G. IV. c. 29, § 12, the amount is raised to £5,—Ed. of this Collection.

[* ]“Oaths” the seed, “perjury” the “harvest.” Such is the husbandry which by Blackstonea is spoken of as actually pursued; and of which, by the mention made of it in these terms, his disapprobation is pointedly enough declared. O yes! bad indeed was such husbandry in that case. And why in that case? Because, in that case, the husbandman was a competitor in trade: the judge, or the practitioner, in a rival set of judicatories; which—though (under the auspices of the fee-gathering system) united by a common interest with his own—had also for a source of rivalry and discord, its separate interest. Never can he bring himself to speak without a sarcasm, of the business of those decayed and petty traders (once, in the good old times, at the head of the trade,) whom the vast firm to which he belongs have now, for such a length of time, kept like toads under a harrow. Viewing in every rival an usurper, he grudges them even their wretched remnant in the trade of wickedness.

On this occasion, could he but have looked at home,—had the range of his optics been somewhat more extensive, and somewhat more under command,—he would have thought a second time, before he had hazarded an imputation so easily retorted, and with such increase of force.

In the nursery of a spiritual court is no such forcing frame as a jury-box—no such horticulturist as a lord chief-justice. In the spiritual nursery, perjury is but a sort of weed—an accidental product: the system, if purposely, is at least not avowedly, directed to the production of it: when it does spring up, the cause of its growth is not in the cultivator only, but in the soil likewise. But in the profane nursery, the cultivator is actively and conspicuously employed in forcing it: nor is that soil to be seen anywhere in which it can fail to grow.

Shift the scene,—give to another set of lawyers the benefit,—and perjury now becomes pious. Employ it (as above) in the jury-box, to debilitate the understanding, as well as taint the morals, of the people, and thus render them passive tools and unresisting victims in the hands of this domineering and now uppermost set; and the choicest epither, how incongruous soever, is not too good for it.

Pious is, of all others, the epithet chosen by Blackstoneb for perjury, when (under the direction of common-law judges) employed by jurymen to rescue criminals from a punishment to which they have been devoted by the legislature. “Pious perjury:” as who should say—loyal treason, humane assassination, honest peculation, chaste adultery. Humane perjury—yes, in this case, beyond dispute: moral perjury—even that might pass: but, of all imaginable eulogistic epithets (eulogy being the strain to be pursued at any rate) why pitch upon that of pious to affix to perjury?—why thus volunteer a flat contradiction in terms? Why, but to reconcile to the practice those pious persons, who, looking down upon morality, look up only to piety, as that in comparison of which all other objects are unworthy of regard. With these—whatsoever of humanity, or utility in any other shape, might appear predicable of the practice—the impiety of it might be apt to be considered as an objection to it, and that objection an insuperable one. What is to be done? Give them to understand, that (in this instance at least,) perjurious as the practice is, here may still be piety in it,—the objection is removed, and “everything is as it should be.” When every other argument fails, then is the time to try what can be done by a bold paradox: the bolder it appears, the more difficult it is fer the disciple to be persuaded, or to suffer himself so much as to entertain the suspicion, that, without some safficient reason at bottom, so great a master would have given utterance to it.

In the eye of the man of law (not to speak at present of the priest,) whether an act be right or wrong, is a question that depends never on the act itself, but always on the quality of the persons by whom it is practised.

Practised by a “bishop,” that bishop being a papist, “subornation of perjury” was a bad thing: no piety in it: sheer “wickedness,” and nothing else.c On this occasion, a system of contrivance is reported, by which,—when a clerk (meaning here by a clerk, perhaps a clergyman only, perhaps any man who could read)—when a clerk had in a capital crime been defendant,—if in that character he had been convicted by a lay jury, he used to be saved from punishment: the contrivance consisting in making him pass through the formality of a sort of new trial, in which the bishop sat as judge; the jury being, as Judge and Reporter Hobart represents it, “compounded of clerks and laymen;” or as Blackstone, referring to Hobart, finds it more convenient to misrepresent it, “composed of twelve clerks.”

On every such occasion (to take the account of the matter from Blackstone) might be seen “a vast complication of perjury and subornation of perjury, in this solemn farce” (so he calls it) “of a mock trial; the witnesses, the compurgators” (twelve of them) “and the jury, being all of them partakers in the guilt: the delinquent party also, though convicted before on the clearest evidence, and conscious of his own offence, yet was permitted, and almost compelled, to swear himself not guilty: nor” (adds he) “was the good bishop himself,” (good being the epithet applied to this papist to make the sarcasm the more caustic;) “the good bishop himself, under whose countenance this scene of wickedness was daily transacted, by any means exempt from a share in it.”

Against this “perjury and subornation of perjury,” lest our indignation should not be strong enough, the learned commentator sets out with informing us, that “in the beginning of the (then) last century it was remarked on with much indignation by a learned judge,” viz. Judge Hobart, whose reports constitute the authority to which he refers.a

On this occasion, the learned judge, it must be acknowledged—without any apparent scruple, reserve, or affected delicacy, such as, in this age of refinement, a non-lawyer, an unlicensed person at least, might be expected to observe—speaks out, and calls things by their names. “The perjuries, indeed,” quoth he, “were sundry: one in the witnesses and compurgators; another in the jury, compounded of clerks and laymen; and of the third, the judge himself was not clear, all turning the solemn trial of truth by oath, into a ceremonious and formal lie.”

As to the ceremony of riding off on the backs of twelve compurgators; in civil cases, to a great extent, under the learned judge’s own sort of law, it then was, and still is, law at this day.b It might be brought into exercise any day, and would be every day, but for a more modern quirk, by which the original quirk is evaded.

As to the “ceremonious and formal lie,” it is no other than that which, under his own sort of law, is pronounced, as often as, among the Rev. Dr. Paley’s “twelve men taken by lot out of a promiscuous multitude,”c any difference of opinion has place: and this in virtue of the torture applied with the knowledge and under the authority of the judge, but without the need of any work and labour done by the reverend artificer, in the subornative line, for the purpose of giving existence to the lie: not to speak of the cases in which—the perjury (when committed) being of the pious sort recommended under that name by Blackstone—the learned judge, ambitious of taking his share in the praise of piety, makes special application of that “countenance” which, had the judicatory been of the spiritual law, instead of the common-law class, would have made the scene of perjury and subornation a scene of wickedness, and himself, in the bitter sense of the word good, a “good judge.”

As to the “complication” with which the mode employed on this occasion by these ecclesiastical judges,for the giving impunity to criminals, appears so justly chargeable, it must be imputed to a comparative deficiency in respect of those associated endowments of genius and courage, which with such brilliant success have been displayed by their lay brethren of the trade: by so simple an invention as that of a flaw in the indictment, all this “complication” might have been saved.

[* ]By 9 Geo. IV. c. 32, the evidence of Quakers is taken in affirmation in criminal cases.—Ed. of this Collection.

[* ]See Book IX. Exclusion.

[† ]What, then, it may be asked—by threatening a man with inferior punishment in case of mendacity, would you expect to see him, by veracity, subject himself to superior punishment? By threatening him eventually with punishment short of death, would you expect to see him subject himself for a certainty to the very punishment of death? No, surely: nor in that case is it necessary to subject a man, in case of mendacity, to any separate, independent punishment. Undetected, it cannot be punished in any case; detected, it will in general subject him to the proper punishment: to the very punishment from which, by that fresh crime, the natural consequence of every former crime, he struggled to escape from it.

Not that, even in this case, punishment as for mendacity would be necessarily without its use: for a man who is innocent has everything to lose by mendacity, nothing to gain by it: and it may happen that, though the former crime which he has committed may not be susceptible of sufficient proof, yet among the lies which he has uttered, in his endeavours to escape from the imputation of such his former crime, there may be this or that one so ill-contrived as to be susceptible of the clearest refutation.

[* ]To show how much in this case may depend on form, when in substance the ceremony is the same. I have heard at different times many more instances than I can recollect of the importance attached to particular forms among sea-faring men and other individuals belonging to the unlettered classes—forms not established, but cast by chance in each man’s particular imagination. Say, you wish your tongue may rot off—say, you wish your eyes may drop out of your head this moment,—if you ever saw any such thing. By an adjuration in some such form, or varying from it by some whimsical embroidery which I have now forgotten, and which, if remembered, it might perhaps not be decent to repeat, has a man been made to bring out some truth, which, till then, he had masked by a profusion of false protestations, uttered without scruple; and which could not have been extracted from him by all the force that could have been brought to bear upon him in a court of justice.

Unfortunately, illustration is the only purpose that can be answered by this observation. The comparative impressiveness of each such formulary depending upon the inscrutable texture of individual idiosyncrasy, it can never be applied to any judicial purpose; unless possibly at the suggestion of a party, apprized by habitual intercourse, of his adversary’s state of mind in this respect: in which case, however, it would always be to be added (since it could never on sufficient assurance be substituted) to the regular oath.

[† ]With a view to solemnity and impressiveness, the choice of a formulary is matter of no small difficulty. It is exposed to this dilemma; employ the same form on all occasions, the most trifling as well as the most important,—applied to the most important, it fails of being so impressive as it might be; or else, when applied to the least important, it sounds bombast and ridiculous. Employ divers forms, rising one above another in impressiveness,—then comes another danger: on the occasions on which any form short of the most impressive is employed, the witness, knowing that there is another which is regarded as more efficacious, may conceive lightly of that which, on the occasion in question, is tendered to him, and regard it as wanting in some particular which is necessary to endow it with a completely binding force.

The only effectual remedy would be, not to employ the ceremony at all, or, if at all, only on the most important occasions.

The following might be two of the gradations:—

the truth, the whole truth, and nothing but the truth.

knowingly utter anything that is false, or in any respect conceal, disguise, or misrepresent the truth, I acknowledge myself to be deserving of the wrath of Almighty God, and of the contempt and abhorrence of all mankind.

[‡ ]Scotch covenanter’s oath.

[∥ ]On the ground of English law,—if the faculties possessed by ecclesiastical functionaries were not, by a sort of mutual (though tacit) understanding, set down among the sorts of talents better kept under the napkin than drawn out for use,—the application might be made of this principle in a variety of obvious instances:—

1. In a bench of justices of the peace, sitting in general sessions, it seldom happens but that one or more clergymen are spontaneously present. In this case, the principle might be applied, without the smallest additional trouble or expense.

2. At the assizes, it scarcely ever happens but that one or more of the neighbouring clergy are present, drawn by curiosity or business.

3. At the Old Bailey, in the intervals of meals, might not the Lord Mayor’s chaplain be as suitably and profitably employed in this line of serious service, as in saying grace before and after meat at the Mansion-house? As a simple spectator, the Ordinary of Newgate is often present.

4. In Westminster Hall, of the five chiefs, three are commonly members of the House of Lords, and in that character give title (if not occupation) each of them to a certain number of chaplains. Might not these, with or without the assistance of other such labourers in the sacred vineyard, suffice amongst them for the discharge of a function so well assorted to their other functions? At whatever price the labour was estimated, the chief judge of the chief court of equity has in his hands assets singularly well adapted to the purpose of affording it its reward.

5. In the House of Commons, the Speaker has a chaplain, whose duty consists in offering up prayers and thanksgivings, which, happily for his congregation, they are not obliged to join in. Might not his time be employed to rather more advantage, in giving solemnity to the oaths administered to witnesses before committees?

6. In the ecclesiastical establishment, for the greater advancement of piety and religion, are contained (as everybody knows) in no inconsiderable number, dignities and other benefices, composed of reward altogether pure from service. Would the reward be less profitably bestowed, if service, in this or some other shape, were attached to it.

Among our Saxon ancestors, in the county courts (at that time competent, as they should never have ceased to be, to all sorts of causes,) the minister of justice never sat without the minister of religion at his elbow.

[* ]The institution of binding a man to his good behaviour, by obliging him (in the language of English law) to enter into a recognisance, bears, in one respect, an analogy to this arrangement. Considered on the mere footing of a contract, an engagement, an agreement,—so far as the cognizor himself is concerned, and without adverting to the persons joining with him in the obligation in the character of sureties, the operation is useless and nugatory: to what end employ the compulsive force of law, to engage a man to consent to submit to an eventual obligation, which it would be just as easy to impose upon him without such forced consent, as with it? The only real use of the instrument is to fix the penal sum which, on the deprecated event in question, a man will have to pay; and to notify to him the amount of it.

[† ]A very few words, indeed, well chosen and well placed, will be sufficient. There is no sort of incompatibility between the one object and the other. Among men not under the influence of religion, an oath bearing reference to religion and nothing else, is in danger of losing the whole, or a great part, of that respect, which might be secured to it by a prudent attention to their opinions. All men ought to be under the influence of religion—therefore, whether they are or no, we ought to deal with them as if they were—is a most deplorably self-deceiving, though unhappily but too frequent, logic. But deplorable would be a man’s own error—deplorable the misfortunes of his subjects—if, on any practical occasion, any such assumption, any conceit thus hatched, should be taken up by him in the capacity of a legislator, and acted upon as a ground for any of his measures.

[‡ ]Chap. X.

[* ]Job xv. 6.

[† ]Luke xix. 22.

[‡ ]See last Chapter, § 3.

[* ]Code Dan. l. 1. cap. xiii. § 8. p. 58.

[† ]Expositio Juramenti, p. 545.

[* ]Halhed’s Code of Gentoo Law, pp. 129, 130.

[† ]Ibid. p. 130. See above, p. 262.

[‡ ]Page 364.

[* ]For the principal alterations in the law regarding oaths, which have taken place since the above chapter was first published, vide supra, pp. 312 & 316, and Vol. V. p. 188.

[* ]“The alternative to which Providence is by consequence reduced, of either giving up that country to everlasting superstition, or of working some miracle in order to accomplish its conversion.” Such are the words in which (in the Edinburgh Review for April 1808a ) a reverend divine is represented as describing one of the consequences which, in his view of the matter, will ensue, should the arm of government be employed in restraining, by coercive measures, the exertions directed to the extension of the benefits of christianity to the natives of Hindostan. “The idea of reducing Providence to an alternative!!” exclaims the reviewer in a double note of admiration: “and by a motion at the India-House, carried by ballot!”—“Providence reduced to an alternative!!!!!”—another exclamation by notes of admiration five deep. Then—for the declared purpose of representing the idea as the ne plus ultra’ of irrationality—this and that and the other idea, represented as irrational, is said to be pure reason when compared to it.

The ground on which the line of conduct thus protested against, as tending to reduce Providence to an alternative, is censured, is that of its being too great a power for human imbecility to exercise, or so much as to attempt to exercise, over divine omnipotence. But the power, the supposed exercise of which drew from the reverend divine the apprehension and the censure expressed in the above passage—this power, if indeed it reduced the Supreme Being to an alternative, left him, at any rate, in possession of an alternative: and an alternative which does not present itself to human conception as pregnant with any considerable degree of distress.

But the notion which represents the common ceremony of an oath as entailing, and without recovery, guilt—with its inseparable appurtenance, future punishment—on the violators of it,—and this independently of, and over and above, whatever may be attached to the occasion,—leaves to divine omnipotence no alternative. Bailiff to and under the human magistrate, the divine functionary has given bond for the execution—the constant and punctual and sure execution—of whatsoever writ shall be sent from the court below to the court above: for, when the idea is so self-contradictory, language is at a loss how to phrase it.

The human power, which, reducing divine omnipotence indeed to an alternative, leaves it at any rate in possession of an alternative, is not proposed to be exercised by any other hand than one, and that the hand of the supreme authority in the state: the power which leaves omnipotence no alternative, is a power which any and every individual in the state, who is rash enough and foolish enough, may exercise at any time, and any number of times, at pleasure: on so simple a condition as that of getting a justice of peace to join in the performance of the instantaneous ceremony.

God made man after his own image, says the text: man has returned him the compliment, says I forget what commentator. “Every man his own broker” is the title of one book; “Every man his own lawyer” of another: difficult as it is for any (not to speak of every) man to be his own broker, much more his own lawyer, no man finds any difficulty in being his own God-maker: and when a man has made his God, we see the sort of work he puts him to. The God of the good sort of man is himself a good sort of man: but the God of the vulgar, great and small, is what the God of Samuel Johnson was—a devil, with the name of God written in great letters on his forehead.

O that, in making his God, man would but content himself in making him for his own use! But no: it is not for his own use, it is not for his own benefit at least, that man makes his God; but for the destruction of others, of all others who presume to differ from him; and who, for this offence, are, on any the slightest pretence, doomed to unutterable torture without end in another world, together with such as can be inflicted by the present and ready-prepared engines of the civil magistrate in this.

[* ]In some of the above cases, the title to the money rests solely upon the authenticity of a script, an order, or other voucher, produced in the character of an article of written evidence. In these cases, he who, instead of an authentic, produces a counterfeit script, subjects himself to the punishment (generally capital) appointed in case of forgery.a In others of these cases, the mere identity of the person is the efficient causes of title. In these cases, he who, not being the person entitled under a certain name to receive a certain sum of money, represents himself as being that person, and receives the money accordingly, subjects himself to the punishment (generally capital) appointed for this offence, under the name of personation.

[* ]“Oaths” the seed, “perjury” the “harvest.” Such is the husbandry which by Blackstonea is spoken of as actually pursued; and of which, by the mention made of it in these terms, his disapprobation is pointedly enough declared. O yes! bad indeed was such husbandry in that case. And why in that case? Because, in that case, the husbandman was a competitor in trade: the judge, or the practitioner, in a rival set of judicatories; which—though (under the auspices of the fee-gathering system) united by a common interest with his own—had also for a source of rivalry and discord, its separate interest. Never can he bring himself to speak without a sarcasm, of the business of those decayed and petty traders (once, in the good old times, at the head of the trade,) whom the vast firm to which he belongs have now, for such a length of time, kept like toads under a harrow. Viewing in every rival an usurper, he grudges them even their wretched remnant in the trade of wickedness.

On this occasion, could he but have looked at home,—had the range of his optics been somewhat more extensive, and somewhat more under command,—he would have thought a second time, before he had hazarded an imputation so easily retorted, and with such increase of force.

In the nursery of a spiritual court is no such forcing frame as a jury-box—no such horticulturist as a lord chief-justice. In the spiritual nursery, perjury is but a sort of weed—an accidental product: the system, if purposely, is at least not avowedly, directed to the production of it: when it does spring up, the cause of its growth is not in the cultivator only, but in the soil likewise. But in the profane nursery, the cultivator is actively and conspicuously employed in forcing it: nor is that soil to be seen anywhere in which it can fail to grow.

Shift the scene,—give to another set of lawyers the benefit,—and perjury now becomes pious. Employ it (as above) in the jury-box, to debilitate the understanding, as well as taint the morals, of the people, and thus render them passive tools and unresisting victims in the hands of this domineering and now uppermost set; and the choicest epither, how incongruous soever, is not too good for it.

Pious is, of all others, the epithet chosen by Blackstoneb for perjury, when (under the direction of common-law judges) employed by jurymen to rescue criminals from a punishment to which they have been devoted by the legislature. “Pious perjury:” as who should say—loyal treason, humane assassination, honest peculation, chaste adultery. Humane perjury—yes, in this case, beyond dispute: moral perjury—even that might pass: but, of all imaginable eulogistic epithets (eulogy being the strain to be pursued at any rate) why pitch upon that of pious to affix to perjury?—why thus volunteer a flat contradiction in terms? Why, but to reconcile to the practice those pious persons, who, looking down upon morality, look up only to piety, as that in comparison of which all other objects are unworthy of regard. With these—whatsoever of humanity, or utility in any other shape, might appear predicable of the practice—the impiety of it might be apt to be considered as an objection to it, and that objection an insuperable one. What is to be done? Give them to understand, that (in this instance at least,) perjurious as the practice is, here may still be piety in it,—the objection is removed, and “everything is as it should be.” When every other argument fails, then is the time to try what can be done by a bold paradox: the bolder it appears, the more difficult it is fer the disciple to be persuaded, or to suffer himself so much as to entertain the suspicion, that, without some safficient reason at bottom, so great a master would have given utterance to it.

In the eye of the man of law (not to speak at present of the priest,) whether an act be right or wrong, is a question that depends never on the act itself, but always on the quality of the persons by whom it is practised.

Practised by a “bishop,” that bishop being a papist, “subornation of perjury” was a bad thing: no piety in it: sheer “wickedness,” and nothing else.c On this occasion, a system of contrivance is reported, by which,—when a clerk (meaning here by a clerk, perhaps a clergyman only, perhaps any man who could read)—when a clerk had in a capital crime been defendant,—if in that character he had been convicted by a lay jury, he used to be saved from punishment: the contrivance consisting in making him pass through the formality of a sort of new trial, in which the bishop sat as judge; the jury being, as Judge and Reporter Hobart represents it, “compounded of clerks and laymen;” or as Blackstone, referring to Hobart, finds it more convenient to misrepresent it, “composed of twelve clerks.”

On every such occasion (to take the account of the matter from Blackstone) might be seen “a vast complication of perjury and subornation of perjury, in this solemn farce” (so he calls it) “of a mock trial; the witnesses, the compurgators” (twelve of them) “and the jury, being all of them partakers in the guilt: the delinquent party also, though convicted before on the clearest evidence, and conscious of his own offence, yet was permitted, and almost compelled, to swear himself not guilty: nor” (adds he) “was the good bishop himself,” (good being the epithet applied to this papist to make the sarcasm the more caustic;) “the good bishop himself, under whose countenance this scene of wickedness was daily transacted, by any means exempt from a share in it.”

Against this “perjury and subornation of perjury,” lest our indignation should not be strong enough, the learned commentator sets out with informing us, that “in the beginning of the (then) last century it was remarked on with much indignation by a learned judge,” viz. Judge Hobart, whose reports constitute the authority to which he refers.a

On this occasion, the learned judge, it must be acknowledged—without any apparent scruple, reserve, or affected delicacy, such as, in this age of refinement, a non-lawyer, an unlicensed person at least, might be expected to observe—speaks out, and calls things by their names. “The perjuries, indeed,” quoth he, “were sundry: one in the witnesses and compurgators; another in the jury, compounded of clerks and laymen; and of the third, the judge himself was not clear, all turning the solemn trial of truth by oath, into a ceremonious and formal lie.”

As to the ceremony of riding off on the backs of twelve compurgators; in civil cases, to a great extent, under the learned judge’s own sort of law, it then was, and still is, law at this day.b It might be brought into exercise any day, and would be every day, but for a more modern quirk, by which the original quirk is evaded.

As to the “ceremonious and formal lie,” it is no other than that which, under his own sort of law, is pronounced, as often as, among the Rev. Dr. Paley’s “twelve men taken by lot out of a promiscuous multitude,”c any difference of opinion has place: and this in virtue of the torture applied with the knowledge and under the authority of the judge, but without the need of any work and labour done by the reverend artificer, in the subornative line, for the purpose of giving existence to the lie: not to speak of the cases in which—the perjury (when committed) being of the pious sort recommended under that name by Blackstone—the learned judge, ambitious of taking his share in the praise of piety, makes special application of that “countenance” which, had the judicatory been of the spiritual law, instead of the common-law class, would have made the scene of perjury and subornation a scene of wickedness, and himself, in the bitter sense of the word good, a “good judge.”

As to the “complication” with which the mode employed on this occasion by these ecclesiastical judges,for the giving impunity to criminals, appears so justly chargeable, it must be imputed to a comparative deficiency in respect of those associated endowments of genius and courage, which with such brilliant success have been displayed by their lay brethren of the trade: by so simple an invention as that of a flaw in the indictment, all this “complication” might have been saved.

[a]Page 180.

[a]Capital punishment has now been abolished in such cases, by 7 W. IV. and 1 Vict. c. 84.—Ed. of this Collection.

[a]II. 344; and see IV. 361.

[b]IV. 239.

[c]Blackstone, IV. 360.

[a]Hob. 289, 291.

[b]Wager of Law.

[c]Paley, II. 263.