Front Page Titles (by Subject) Section 2.: Mischievousness of this instrument considered in a general point of view. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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Section 2.: Mischievousness of this instrument considered in a general point of view. - 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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Mischievousness of this instrument considered in a general point of view.
From mere incongruity, in this case as in any other, any inference that could be drewn might not, when considered in a practical point of view, be regarded as having much claim to attention: from mere incongruity, that is, if so it were, that, of the institution in question, the effects, taken all together, presented a balance on the side of utility.
True: but, on inquiry, what (it is supposed) will appear clear beyond dispute, is—that of its influence, the real, not to say the whole, amount is on the contrary side: to the here supposed or any other good purpose, its inefficiency complete; to bad purposes, in no small variety, as well as number and extent, its efficiency indubitable.
Of its inefficiency, viz. to any useful purpose,—and in particular to the purpose of securing fulfilment to any useful obligation to which in that view it is attached,—a view will be given presently.
Of the infinite variety of applications of which this instrument of government is susceptible, the only one which in a direct way bears upon the present purpose, is that which regards the subject of evidence. In the list of the mischiefs of which the use of it will be found productive, it is to those which result from the application made of it to this particular purpose, that the first place must accordingly be acknowledged to be due. But, the instrument being in all cases one and the same,—the use of it not being, in this particular application of it, maintainable, without being maintained in every other application that, in this country at least, continues to be made of it,—hence it is, that, in the account of its mischievous effects, to those which result from this particular application of it in its character of an assertory—testimonial—oath, must be added those which result from its application in the character of a promissory oath at large.
Before the consideration of its mischievous effects in this or that particular shape is entered upon, notice is due to an observation, which on this occasion will naturally enough be apt to present itself, as in practice it has been in use to present itself, in the character of an answer;—an answer, clearing the instrument in a great degree, if not altogether, of all imputation on this score. When, in the case of this or that application of it, pure mischief is beyond dispute seen to follow from the observance of it, the oath, it is said, is in this case void: absolutely null and void. In form and appearance it is an oath; but, not having the binding force of an oath, it has not the substance. This being the case, the conclusion is—that, upon the true and genuine instrument, whatsoever mischiefs may be the result of the use made of any such spurious instrument, ought not to be charged.
The oath is void!—The expression is familiar enough, but what meaning is there at the bottom of it? The oath, this particular oath, is void; i. e. is not really binding upon the Almighty, whom it undertakes to bind? Is this what is meant? If so, the truth of this observation must be admitted to be above dispute: for by what human instrument, under this or any other name, can omnipotence be bound? But, in regard to mischievous effects, be they what they may, it leaves the case where it found it.
By man—by the men upon whose agency it may come to have a bearing,—by them will it or will it not be considered—by them, let its effects have been in ever so high a degree mischievous, has it not been considered—as binding upon them? The oath that Jephthah took, was it or was it not by Jephthah considered as binding upon Jephthah: The oath that Herod took, was it or was it not by Herod considered as binding upon Herod? The oath which George took, was it or was it not considered by George as binding upon George? Such are the questions that call for answer, when, whether in speaking of it, any such words as null or void be employed or not employed in speaking of it, its effects, good and bad together, experienced and probable, come to be weighed.
“The oath,” says the casuist,—“the oath which Herod took—was a void oath:”—What, in the mouth of the casuist, is the meaning of this phrase? Either this or nothing, viz. that, in the situation of that tyrant, the casuist, had it happened to him to have taken such an oath, would not have considered himself as bound by it. May be so: but the charger,—the fatal charger,—was it the less cruelly stained by innocent blood?
“Taken in the sense in which George is supposed, or pretended to have understood it, the oath which he took would,” says the casuist, “have been a void oath.” Be it so. But four millions of his own subjects, in the breast of each of whom was inclosed a soul not less precious than his own, a conscience not less entitled to consideration than his own—four millions of his own countrymen, with their posterity to the end of time—were they the less peremptorily treated in the character of an everlastingly degraded cast, composed of everlastingly dangerous adversaries? Were the hands of the sovereign less inexorably employed, in sowing the seeds of rebellion broad cast, and sharpening the axe for heads, more than could find room in many a thousand chargers?
Besides the irrelevancy of it, as above shown,—at the bottom of every observation, for the expression of which any such adjective as null or void, any such substantive as nullity, is employed, an inconsistency, an irremoveable inconsistency will be found. From the ceremony, and that alone, is the binding force, whatever it be, that is supposed to attach on the case, derived; from the ceremony and nothing else:—and the ceremony, beneficial in any degree—pernicious in any degree in its application—the ceremony, which, except the application, is all there is in the case, is it not in every case the same?