Front Page Titles (by Subject) Section 1.: Oath. Incongruity of the assumption, on which its supposed beneficial efficiency is grounded. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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Section 1.: Oath. Incongruity of the assumption, on which its supposed beneficial efficiency is grounded. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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Oath. Incongruity of the assumption, on which its supposedbeneficialefficiency is grounded.
By the term oath, taken in its largest sense, is universally understood, a ceremony composed of words and gestures, by means of which the Almighty is engaged eventually to inflict on the taker of the oath, or swearer, as he is called, punishment, in quantity and quality, liquidated, or more commonly unliquidated, in the event of his doing something which he, the swearer, at the same time and thereby engages not to do, or omitting to do something which he in like manner engages to do.*
Correlative to the term oath, is the term perjury, and its conjugates to perjure oneself, perjured, perjurants; among which perjury is understood as designative of the conduct, whether positive or negative, which stands in opposition to the conduct engaged for, as above.
In so far as, in a state of political society, application of this ceremony has been made to the purpose of producing any practical effect, other persons besides the swearer have commonly, in some way or other, borne a part in it: one person at any rate, viz. the person by whom the oath is said to have been administered: and commonly some other person or persons, by whose authority and order, or at whose instance at least, it has been administered, or at any rate taken.
The intervention of any such third person is not essentially and inseparably included in the notion of an oath: but it is only in so far as some such intervention has place, that it belongs to the present purpose.
By the ceremony thus described, may be seen at the least two persons, of very different descriptions, over both of whom power is exercised, or supposed or endeavoured to be exercised; viz. 1. Man, the individual swearer, on whom, by means of the eventual punishment in question, the effect of a law, whether prohibitive or compulsive, is produced, or supposed or endeavoured to be produced; 2. The Almighty, who, in the event in question, is supposed or endeavoured to be engaged to inflict such punishment.
Considered in respect of the purpose to which it is applied or applicable, an oath has commonly been distinguished into assertory and promissory: and, in conformity to this distinction, the assertory sort of oath, it will naturally be observed, is the only sort of oath which belongs to the present purpose;—which bears any immediate relation to the subject of evidence,—to the subject of testimony at least.
From this distinction, a natural inference again is—that, let it even be supposed that, in the promissory oath, condemnation should on any just ground be passed, yet by such condemnation the assertory—the testimonial oath—the oath considered as confined to the purpose of securing trustworthiness to testimony—would, notwithstanding such condemnation, remain untouched.
In opposition, however, to this notion, it must be observed, and upon consideration will be acknowledged—1. That the nature of the ceremony—the nature of the instrument thus employed—is one and the same, to what purpose soever it be applied; 2. That to every oath alike belongs, in truth and propriety, the quality and name of a promissory oath, and that accordingly the assertory oath, and thereunder the testimonial,† are neither more nor less than the promissory oath applied to that particular purpose.
By the promissory, as opposed to the assertory oath, that which a man may undertake for, is—anything whatsoever that is in his power to do, with the exception of the giving correctness and relative completeness to some assertion or other, whatever it be, to which, for the purpose of securing to assertion those qualities, it is applied: by the assertory oath, that which is undertaken for is—the giving to some assertion those same qualities: but, in both cases alike, something or other is undertaken for, engaged for, promised: in both cases alike, an obligation is imposed, or supposed or endeavoured to be imposed: in both alike, for the purpose of giving to such obligation a binding force—a force derived from the religious sanction,—a ceremony, and the same ceremony, is employed.
On the supposition that, by man, over the Almighty, power should, to this or any other purpose, be exercised or exercisable, an absurdity, than which nothing can be greater, cannot be denied to be involved:—man the legislator and judge, God the sheriff and executioner;—man the despot, God his slave.
If, in any given instance, on the part of the almighty executioner, any exception to the rule of obedience be supposed, in that instance the effect of the ceremony is nothing; the case is exactly as if there had been no such ceremony. But if in any one case it be thus inefficient, how comes it to be otherwise in any other case?
Yet this or nothing is what is supposed: this or nothing if the supposition be, that,—after and in consequence of the promise thus made, and the breach of it—the perjury—committed,—punishment—the result of the will and act of God—takes place of course,—that is, to a certainty, and in every individual instance.
If, the supposition of absolute certainty being deemed too strong, that of probability be substituted to it, still, so long as it amounts to something, and that something produced by the mere ceremony, independently of any other cause,—though it be but a probability, for example, as 1 to 10,—the supposition is in substance one and the same. God is a negligent servant indeed, but still a servant: he disobeys the orders nine times out of ten, but he pays obedience to them on the tenth.
The circumstance by which the supposition of the influence of an oath, over the supernatural agent in question, is saved from the ridicule that attaches upon the supposition of the influence of a magical incantation* over the supernatural agent to which that instrument is applied, is, that in the case of the oath, the scene of its influence is placed in a state of things of which no human being is in this life supposed to be or about to be witness: whereas, in the case of the magical incantation, the scene lies here below, and it is in this life that men are bid to look for it:—the moon brought down upon the earth, as according to the Pagan system: disembodied spirits of this or that denomination brought down or up to the same place, as under the Jewish and Christian, well or ill interpreted.
Undertaking to defend the use of this mysterious instrument, what will a man say of it? That there ever has been or ever will be so much as a single case in which these effects have or will have been produced by it? Will that be his supposition? If so, then is the absurdity thus charged upon it admitted to be involved in it:—That there never has been nor ever will be any such case? If so, then is the supposition admitted to be a mere fiction; and, in proportion as this admission is acceded to, the ceremony is divested of its binding force, and therewith of every useful influence that can ever have been ascribed to it, or expected from it.
The effect, to the production of which, if possible, man and God both are thus sought and supposed to be engaged,—the line of conduct, to the observance of which man is thus sought and supposed to be compelled,—say that it is—say that it is not—such, for the enforcement of which, punishment, to be inflicted by such hands—punishment, in quantity as well as quality properly adapted to the purpose ought to be, may with reason be expected to be, applied:—if yes, the punishment sought and supposed to be applied by the oath is needless; and, being needless, it is superfluous, and on that account improper and mischievous: if no, it is undue, and on that account again, mischievous: mischievous in a double and more extensive degree: mischievous in a limited extent, by the useless suffering it inflicts on the individual so punished: mischievous to an unlimited extent, in respect of the mischievous line of conduct to which it seeks to engage him, and with a degree of success (of which presently) but too frequently exemplified.
Observe here another absurdity resulting from the supposition attributing a penal effect to this ceremony. Once more—the punishment which, independently of it, is attached to the transgression meant to be prevented—in the present case to mendacity—must in supposition be either adequate or not adequate. If adequate, then is there no need for any additional punishment:—for any such punishment as, in case of mendacity, in which would be included the profanation of the ceremony, would be the effect. If not adequate, then observe the consequence: To his justice, that being the attribute here in question, God cannot give adequate exercise, unless and until man gives him leave. God’s justice is thus kept in a state of dependence on human folly or improbity.*
Concerning the absurdity—the simple absurdity—of the supposition, thus much may suffice. Note now the complex absurdity—the inconsistency—involved in it. For this purpose, set to work two swearers—with or without to each of them an administerer,—with or without, to each of them, a prescriber, an ordainer of the oath: two swearers, swearing, and thus respectively engaging themselves, to direct their utmost endeavours to the production of two opposite and altogether incompatible effects. By the draughts thus drawn for eventual punishment, what, according to the current theory, is the effect produced upon the Almighty? What but that he is compelled, or, if that word be too plain and clear, engaged, to lend his power, at the same place and time, to the productions of these same opposite and incompatible effects?
For the field of action, meaning the geographical field, take for example England: for the political field, religion,—technical religion: in it place two contending religions, Catholicism and Church-of-Englandism:—swearers and proposed actors, James and George, two contenders for the throne:—what James swears is—that, in respect of wealth, power, dignity, and other good things of all sorts, the teachers and professors of the old religion shall, so far as depends upon his endeavours, be, absolutely speaking, as great as possible, and, speaking by comparison, as much greater as possible, than those of the new one:—What George swears, is—that, so far as depends upon his endeavours, the reverse of all this shall have place. According to the theory of the binding power of an oath, and the supernatural punishment attached to perjury, what is the work thus cut out for the Almighty? To combat each religion, and at the same time and place to defend it: to combat it with one hand, to defend it with the other: to employ one person to combat it, and at the same time and place, another person to defend it.
Pressed by these consequences, yet unwilling to give up altogether an instrument of such antiquity, and to which common opinion is in use to attach so much importance, “No,” says somebody, “this is going too far: this inference about punishment is more than what the ceremony, including the words and gestures of which it is composed, could upon a closer view be seen to warrant. ‘So help me God!’ says the royal swearer in the coronation oath: ‘So help you God!’ says the administerer in other cases:—what is there about punishment there?—Then comes the kiss given by the swearer to the book: what is there about punishment in this kiss?”
True, says the answer, nothing.
But among a great variety of forms, by all of which, in different ages and countries, and in particular in this age and country, an oath has been alike considered as being administered and taken, this is but one: and by all of them the effect considered as produced is of the same kind,—by all of them, that which has just been stated. Moreover, in all these cases, as often as the engagement so taken is considered as having been violated, perjury—or what, in the language in question, is the equivalent of that word—is the name by which such violation is designated:—the signs infinitely diversified, the thing signified everywhere the same:—everywhere either that which is above described, or nothing.
[* ]In every case, except where the observance promised consists in speaking truth, as in the present case, in which case the oath is said to be assertory (of which immediately,) i. e. in every case in which the oath is commonly spoken of in the character of a promissory one, the term vow has moreover been indifferently employed in speaking of it. See, in Cruden’s or any other Concordance, the words oath and vow.
[† ]In the way in which the testimonial oath is commonly employed and administered, the observation, of its being included, as above, under the promissory, will, it is supposed, be acceded to without difficulty; since, in that case, the ceremony is seen at the first glance to precede the operation which it is employed to influence. By a person from whom assertions or declarations of a testimonial nature are about to he extracted or received, the oath—the ceremony, whereby the qualities in question are supposed to be secured—is performed in the first place, and thereupon comes the testimony by which the promise so made is either kept or broken, and perjury accordingly abstained from or committed.
[* ]Magic not being now in fashion, of the existence and exercise of the sort of power indicated by that term, the supposition would be an object of scorn and ridicule. But, of the existence of the ideal power so denominated, the supposition is, in the scale of absurdity, inferior to that of the existence of the power, to the belief of which the ceremony of an oath is indebted for whatever efficiency, whether to a good or a bad purpose, it possesses. By any magical incantation, it is only over this or that imaginary being of a subordinate class that the power is supposed to be exercised: by the ceremony of an oath, it is always over the Supreme Being, who thereupon, supreme as he is, is to the extent of this power subject at the same time.
[* ]If the majority of a great nation are to be kept in a state of everlasting degradation,—with probable, not to say just, cause of eventual revolt perpetually administered to it,—for what reason is it to be thus dealt with? Is it because, independently of all oaths, it is a king’s duty so to govern? No: but because, by an oath which he took, he swore that he would so govern: which oath taken, the consequence is, that should it happen to him to govern otherwise, God stands engaged to punish him as for perjury. If the supposed effect of an oath be any thingless than this, whence comes the fear of doing, after and notwithstanding the oath, exactly what would have been done had there been no such oath?