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Section 6.: Mischief 2— Weakening in various ways the Efficiency of the Laws. - 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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Mischief 2—Weakening in various ways the Efficiency of the Laws.
Various are the occasions on which—various the ways in which—the effect of this ceremony has been to confuse the texture, and enervate the effective force of the whole body of the laws.
Were the force of which it deprives the arm of justice no other force than its own, the mischief, as already intimated, would be scarce worth taking into account. But the performance of this ceremony having been rendered necessary,—in some cases to the application of an adequate lot of punishment in case of the delivery of mendacious testimony—in other, and indeed in most cases, and these in the greater number, to the very attempt to extract or receive the testimony,—hence it is, that throughout its whole field of legal action, by the mere non-application of this stimulus, the arm of the law is left in a palsied and inefficient state.
1. In the first place, may be mentioned exclusion—the virtual exclusion put by it upon the testimony of a numerous class of men. And what men? Men whose distinguishing characteristic is—that, in their instance a more than ordinary degree of sensibility to the force of the religious sanction, is, by the most unequivocal tokens, put out of dispute. Before these pages are at an end, the absurdity of any such exclusion will, it is hoped, be rendered plain, if any thing can be rendered plain, even in the case of the most flagrant and manifest improbity and untrustworthiness:—here the object on which the stigma is made to strike is that class of men which stands most eminently distinguished for trustworthiness.
“Swear not at all,” says Jesus: at least in as far as to his biographer Matthew credence may in this point be ventured to be given—“Swear not at all,” says Jesus: and as if, unless inculcated and enforced by reasons, a precept so simple should escape from remembrance, reasons are subjoined. Professing himself a religionist of the religion of Jesus—an obeyer of the ordinances of Jesus—and of all the ordinances attributed to Jesus—not seeing any ordinance more clear or precise than this, a Quaker refuses to disobey it. For this refusal it is, that, between church and state, matters are so ordered, that, in a case which has afforded no other witness than such as are of this persuasion, justice—criminal justice at least—is deprived of all evidence: licence being thereby granted, to all such crimes as from time to time it shall happen to any man to feel himself disposed to commit (other persons out of the question) upon the bodies, or in the presence, of any number of quakers.
In England, this same religion has been adopted. Adopted? but how? Exactly with those same reservations, with which a bill is at its first introduction adopted in the House of Commons;—viz. with liberty of making amendments:—amendments, omissive, interpolative, substitutive:—amendments of all sorts, and in all cases:—and in all cases to such effect, as the convenience of that class of men, by whose convenience every thing is regulated, was found to require.
In regard to some of its clauses, as where poverty, or equality, or non-resistance, are ordained, the amendment made has been of the omissive kind. In the present instance, for the purpose here in question, it has been of the interpolative kind: an amendment for giving admission to such oaths as, for purposes such as those above described, it should be found convenient to administer: to administer, amongst other occasions, on the occasion of the delivery of judicial testimony.
What is certain is—that by Jesus, any such exception is not, by any one of his four biographers, represented as having been made. Not made by him? And what then? It is of the number of those, which, though he did not make, he ought to have made.*
2. Not so much as the profession of rendering justice being to be made, unless the performance of this ceremony be duly accomplished, thereupon comes more complication, more law learning, more doubts, more business.
A Jew’s oath, what shall it be? Must the hat be off or on? and if on, what shall in law be deemed and taken to be a hat? And the book—what must it be? and in what language?
Jew or Christian, what is it that shall be kissed? What if, instead of the book, it be the thumb that receives the salute? what if to a book with the Song of Solomon in it, by astutia or laches of the clerk, those of Rochester be found to have been substituted? With such an instrument, could a man commit perjury?
In Westminster Hall, when a man takes an oath which is said to be administered by a judge or certain judges, the judge or judges—must they be there, or may they be not there? Not many years ago, the writer of this was sworn in this way to the truth of a mass of testimony before a learned judge, who was anywhere but there. From beginning to end, suppose it wilful falsehood, was any of it perjury?
The Mahometan—in his system of imposture, does the ceremony find the necessary virtue? does it in the still more extravagant imposture of the Hindoo? In the religion, or the no-religion of the Chinese, is that magic to be found, which in case of profanation draws down with such unerring certainty the ever-obsequious vengeance of the Church-of-England God, by whom all such magic stands prohibited, in terms as plain as it is in the power of language to provide? In this or that false religion, suppose this ceremony to be misperformed—in the Hindoo religion, for example, in which, as exquisitely turned as if it had been in Westminster Hall, the whole mass of ceremonies is a widow’s cruise of nullities?
3. As often as a new statute is passed, creative of new offences—and to such novelties not a year but gives birth by dozens,—if to any judicatory other than the regular—if to justices of the peace, for example, one or more, as usual, cognizance of the offence be given, power must by fresh words be given for the performance of this ceremony. Here then may be seen one of the host of causes, from whose hydropic virtue the needless and endless unwieldiness of the body of the law, and the impossibility of knowing, and consequently of doing, that which man is predestinated to be legally plundered and punished for not doing, receives its daily increase.
The empowering formulary—is it omitted? This is what has sometimes happened. Deprived of this necessary support, down tumbles the paper edifice, and with it perish the hundreds or thousands of pounds that have been spent in rearing it.*
4. Exists there a case in which, be the judge who he may, it rests with him, in collecting the information, to perform or not perform the ceremony as he pleases? Here, then, is despotism: here opens a door to safe corruption,—punition or impunity being attached to mendacity, according as it is the one or other that is heard called for by the sinister purpose.
5. Where, for the creation of it, the security, such as it is, requires on every occasion the interposition of human agency, it stands necessarily exposed to all those accidents, as well as to all those abuses, to which the application of human power stands exposed.
Where the oath is the security, for the application of it there must be, as above, either a magistrate, or some other functionary, empowered quoad hoc to execute the office of a magistrate. But, unless by a casual charity not worth reckoning upon, the magistrate will not, still less the quasi magistrate, join in the ceremony, without his fee. To those whose business with the law is to make it, and if they please to execute it, the fee is nothing. But to those whose business with the law, made or not made, is to obey it,—to the greater part of them at least,—the fee is something: half of what a man has to subsist himself and family upon for a day, is always something to him, especially if on that day he have no work.
If, on the part of the justice of peace, or, according to the occasion, the Master Extraordinary in Chancery (for such is the title worn by the country attorney, when decked out in this one red feather from the magistrate’s crest)—if, on the part of this regularly commissioned possessor of power over the Almighty, either inclination—(relation being had to the individual by whom, the occasion on which, and the person or persons for whose benefit the testimony is proposed to be delivered)—either inclination or ability be deficient, thereupon comes in another source of vexation, nor that a very limited one. Neither the ordinary justice, nor the extraordinary master, can be any more obliged to receive testimony, than, when it is in the affidavit shape, the proposed witness can be to deliver it: and if, in the breast of the only Extraordinary Master, whose abode is known to be within half a day’s journey of the proposed deponent or answer-making defendant, so it be that, in regard to witness or party, it is more blessed to give than to receive—to give vexation than to receive a shilling,—the consequences may more speedily be imagined than expressed.
6. In the times of William the Third,—amongst other driblets of sham reform, a show was made, of substituting, to a certain extent, the purity of natural to the pravity of technical procedure. Under the name of arbitrators, parties were empowered to choose their judges; and, to the decisions pronounced by such judges, upon application made to one of the great shops in Westminster Hall, the force of law was to be sold at an under-price.*
The show was made:—was it any thing—and if anything, how much, better than a show?
In giving jurisdiction by a fresh law to a justice or justices out of sessions, that which to no one man of law, in or out of parliament, could have been unknown, was—that unless for administering oaths to witnesses power were given by an express clause, the law would be without effect. In this act, with all its fine professions, no such power was given: and why not? The answer is already seen. Where was ever that justice of peace, by whom, for the purpose here in question as well as any other, the judge’s part might not, as well as by a Daniel, have been acted in this ceremony? Where is the justice of peace’s wife by whom it might not be as well acted as by her husband?
Not to speak of clergymen, of whom each parish ought to contain at least one—and to whom for such a function there could not consistently have been a shadow of objection—what attorney is there, who, not being unfit to continue on the roll, would be otherwise than fit for the pronouncing of the words in question, seeing the book kissed, and signing his name? Fit? Yes:—nor less so than, for the application of this same ceremony to testimonial instruments collected under the authority of the chancery court, the same attorney would be, if dubbed for the purpose, (as, on paying his fees, any attorney may be) master extraordinary in chancery, as above?
Here there is another instance—nor that a scantily extensive one—in which this instrument of priestcraft has been made an instrument of deceit, hypocrisy, and mischief, in the hands of lawyercraft. Suppose no such ceremony—suppose, in manner as mentioned below, that, by an all-comprehensive provision, punishment, according to the nature of the mischief, attached, as of course, upon all mendacity, uttered upon a legal occasion, to a legal purpose—in such case, the remedy, if not by other devices defrauded of its pretended object, would, instead of the sham remedy that it is, have been a real one.†
7. By the House of Commons, to whatsoever subject its powers are directed, for obtaining the information, whatsoever it be, on which, in the exercise of those powers, it grounds itself—whatsoever is done, is done without the assistance of this ceremony.
For security against deceptious incorrectness and incompleteness, the means remaining in its hands consist of that shame, which in case of detected and exposed mendacity takes place of itself, and the punishment which, under the name of commitment for contempt, attaches in case of an order made for that purpose. But as to the shame, be the delinquent who he may, the circle within which are included those by whose judgment delinquency is pronounced, and by that declaration punished, is in general comparatively a very narrow one: and, as to the punishment as for contempt, being in its duration limited to the life of the parliament, the consequence is, that from the birth to the death of the assembly, the maximum of punishment is a continually decreasing quantity, till at last being reduced to 0, mendacity, to whatsoever subject applied, obtains in this way too a licence:—a licence at the hands of time.
[* ]At a time of pretended toleration, a statute was passed, authorising the admission of a Quaker’s testimony without oath: but, lest complication and confusion should not be thick enough, confining the indulgence to cases termed civil cases, to the exclusion of cases termed criminal cases. Distinct enough, the two words: but between the things themselves, where is the line of distinction to be found? In the nature of the case itself? No: but, as usual under judge-made law, in the treatment which happens to have been bestowed upon it. In a civil case, millions may be included in the stake; in a criminal case, one shilling may be the amount of it: and the same case is either civil or criminal, or both, according to the form given to the mass of absurd mendacity which a man is forced to allow his lawyers to join in the utterance of, before he is permitted to take his chance for that which is called justice.—
[* ]Morning Chronicle, Wednesday, 9th December 1812:—
[* ]At an expense the amount of which is among the secrets that might be worth generally knowing, the award is made a rule of court: this having, to the purposes of execution, an effect analogous to that of a judgment, the delay, vexation, and expense of the proceedings by which the judgment would otherwise have been preceded, are, as to such share of those evils as would have been produced in the court of technical procedure, in so far saved.
[† ]True it is, that at present,—under an official custom, the commencement of which might be matter of curiosity at least, if not of use, in furtherance (as it would naturally be said) of the object of this statute, the three great common-law justice shops in Westminster Hall have been, and continue to be, generous enough (fees being duly paid) to lend out—a partner or a journeyman as it may happen—for the performance of this ceremony; the person, whose testimony is to be delivered to the arbitrators, being taken by an attorney to the court or one of its offices, and there sworn, a judge being present, viz. either in fact or—what, but for the imposture, would be quite as well—in law.