Front Page Titles (by Subject) Section 3.: Its inefficiency in the character of a security against deceptious incorrectness and incompleteness in evidence. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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Section 3.: Its inefficiency in the character of a security against deceptious incorrectness and incompleteness in evidence. - 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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Its inefficiency in the character of a security against deceptious incorrectness and incompleteness in evidence.
Of the utter inefficiency of this instrument, when employed by itself, and without either punishment or shame for its support, the demonstration, for such surely it might be made, would, for the completion of it, require more room than can here be spared.
For everything but demonstration, the bare term custom-house oath, added to the perjurious unanimity secured, in the case of jurymen, as above, by impending torture, might of themselves perhaps suffice.
It is not without that extreme reluctance, of which the causes may without much difficulty be imagined, that the necessity is here yielded to of adding university oaths:—English university-statute-enforcing oaths.
When the question has been concerning a Mahometan, a Hindoo, a Chinese,—or even a Christian, if a Catholic,—great doubts have been entertained, by pious and learned Church-of-England men—lawyers—and non-lawyers—concerning the degree of binding force, which, in any such heterodox bosom, ought to be ascribed to the ceremony of an oath.
But, in the case of one of the two English Universities,—thence in the case of about one half of the English Church-of-England clergy,—the right reverend prelates not excluded,—if conduct be any proof of opinion, no room can be found for doubt. Ask what regard?—answer, Not a particle. Ask what binding force?—answer, None whatever.
In the University of Oxford, on the admission of every member, an oath is administered to him, by which, without exception, “all the statutes, privileges, and customs of the university,” and, for aught appears, present and future, cognoscible and uncognoscible are promised by him to be observed.*
Of this treasure of antique wisdom,—part polished, part recast, part originally cast—nobody knows in what proportions—by the hand of Laud,† —so much as is contained in about 261 closely printed Latin pages, and which makes but a part, nor that a determinate one, of the whole body,‡ is at the same time put into the young man’s hand:—what else there may be of it remaining locked up in the archives, invisible to every eye but those of the members of the governing aristocracy—the heads of houses.
Amongst the provisions in these statutes are to be found articles in no small abundance, which, to every member without exception, are objects of continual, notorious, and open violation. Every member violates them himself, every member sees them continually violated by every other.
Of the ordinances thus violated, a great part, not to say the greater, are (it may perhaps be said) manifestly and completely useless: and accordingly the violation of them not mischievous. Are they so indeed? For the purpose, then, of the argument at least, be it so: but the inefficiency of the ceremony, which is the only point here in question, is not the less incontestable.
Talk of custom-house oaths, when such are the university oaths! Talk of merchants, when of such is the bench of bishops! In a custom-house, men pure from perjury must surely be to be found: so at least let us hope, were it only for the credit of those, who, in the case of universal perjury, would be the universal suborners. In a custom-house many, in the University of Oxford—pure from perjury no man—for ages has been,—or, where the swallowing the about-to-be-continually-violated oath continues to be, amongst other breaches of sincerity, the price exacted for admission, will ever be,—to be found.
In that chief nursery of Church-of-England piety, on the part of the rulers at least, never was perjury more completely unsusceptible of any such excuse as might be supposed to be afforded by inadvertence: on the part of the same reverend persons, in whose power it has always been, either to keep the oath or to abolish it, never was subornation of perjury more determinate. Not to speak of indirect, though not the less intelligible, charges,—from one of themselves,∥ for some thirty or forty years past, in another book, which, written by another member not only of the same university but of the same sacred function, has gone through many more editions than the statute-book itself,* —the charge has been urged in terms so pointed, as to take from this repetition of it, all merit on the ground of originality, and therefore surely to save it from all reproach, not only of calumny, but of unnecessary asperity.
From the perjury thus rendered habitual and universal, ingenuity, as will be seen further on, was at an early period employed, in the endeavour to remove the name. But by this very endeavour, as will also be seen, the charge, instead of being removed, has been but the more directly pointed, as well as the more firmly fixed.
“What?” it may here be said—“whatever inferences may be found deducible from this state of things, is this then to be one, viz. that to the testimony delivered, upon any occasion, under the sanction of an oath, by any of the reverend, right reverend, and other distinguished persons, at whose instance the sort of perjury above exhibited has been constant and universal, no more regard would be due than to that of an equal number of persons convicted of perjury, viz. of mendacious testimony delivered in a court of justice?”
My answer is—By no means. Not more revolting would any such inference be upon the first mention of it, than upon examination it would be seen to be unfounded, as well as irrelevant, with relation to the present purpose. What is not here contended for is—that in the instances of those by whom this useless promissory oath has thus been violated, testimony, whether delivered with or without oath, has a less chance for being pure from mendacity than in the instance of those, by whom no such oath having been taken, no such oath has been violated. What is here contended for, is—that, in those same instances, if after an assertory, if after a testimonial oath taken, testimony is pure from mendacity, such purity has for its cause—not the force of this instrument, but the force of those instruments, one or more or all of them, which have already been brought to view, in the general character of the tutelary or improbity-restraining, and in the particular character of the mendacity-restraining sanctions. What in these same instances is denied is—not the existence of veracity in the character of an effect, but the efficiency, the relative efficiency, of the instrument here in question, in the character of a cause productive of, or contributing to the production of, that effect. Fear of eventual punishment in most cases—fear of eventual shame in all cases—fear of punishment at the hand of the Almighty—these are the springs of action that have been brought to view in the character of improbity-restraining forces in general, and mendacity-restraining forces in particular. In the present case, so it is, that of these three forces, the two first at least have notoriously no application. In this case, the oath is taken by everybody, everybody violates the oath so taken, nobody is ever punished for violating it, nobody is ever put to shame by the violation of it. And such, then, is the ground of the inference,—viz. that, to whatsoever object directed, whether to the prevention of transgression in any other shape, or to the prevention of transgression in the particular shape of mendacity, the instrument in question, the ceremony of an oath, is inefficient and useless.
In every case, whatsoever be the force in which the legislator puts his trust, it concerns him surely to know it for what it is: and if so indeed it were, that, by religion, such force as that sanction is in possession of is actually employed in the endeavour to deter men from transgression in the shape in question—from transgression in the shape of perjury,—it has now been seen what that force really amounts to: and then would come the question, whether, supposing that sanction really to receive support from the enormously expensive machinery which is seen to be employed in the support of it, or under the notion of giving support to it, whether the value of the support be equal to the value of the expense.
A less grating supposition will surely be, that, in the endeavour to keep men’s lips pure from transgression, at least in this particular shape, the force of religious hopes and fears does not employ itself: but, upon this supposition, the ceremony, its inutility considered, will be parted with without reluctance: always remembered, that, even by the articles of the Church of England, the use made of it is stated—not as necessary, but simply as allowable.
[* ]Page 261. “The oath at the matriculation of a scholar. Tu fidem dabis ad observandum omnia statuta, privilegia, et consuetudines hujus Universitatis Oxon. Ita Deus te adjuvet, tactis Sacro-Sanctis Christi Evangeliis.”
[† ]Laud’s Diary, as referred to in his Life in the Biographia Britannica:—Dr. Newton, Principal of Hertford college, in page 19 of his “University Education,” London, 1726, hereinafter mentioned.
[‡ ]“Parecbolæ sive Excerpta e Corpore Statutorum Universitatis Oxoniensis . . . . In usum Juventutis Academicæ,” says the title-page. “Oxonii e Typographeo Clarendoniano, 1794. This is the date of that which has recently been put into my hand, as the last edition extant. Of my own copy, which, at my own matriculation, was put into my hands in 1759, the date is 1756. Number of pages in the edition of 1756, 254: in that of 1794, 261.
[∥ ]Here follows what is said by the Rev. R. Newton, D.D., at that time Principal, in a tract, intituled, “Hints and Statutes for the Government of Hertford College, in the University of Oxford.” London, 1747, pp. 162, p. 98. “And for a student or scholar to take an oath at his entrance that he will observe the statutes, there can be no occasion, if the imposing an oath upon him for that purpose were innocent . . . . Young men will often break them without adverting that they do so. To them, an oath to observe the statutes will be a snare.” In conversation, in conduct, and in print, from some year earlier than 1725, to some year later than 1747, did this truly conscientious divine continue to give vent to the uneasiness occasioned by the load, which, ever since the year 1634, has by Archbishop Laud, in his quality of chancellor and legislator of this university, been laid upon all such consciences as it has found in that tabernacle, in which, wherever it has not by priestcraft or lawyercraft been extirpated, that organ of the mind will still be to be found.
[* ]Here follows what is said in a book, intituled, “Liberal Education, by Vicesimus Knox, M.A. late Fellow of St. John’s College, Oxford, in two vols. 10th edition, 1789:” to which is added, “A Letter to . . . . Lord North,” then chancellor.