Front Page Titles (by Subject) Section 13.: Practice of receiving Judicial Oaths, its Repugnancy to the Precepts of Jesus. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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Section 13.: Practice of receiving Judicial Oaths, its Repugnancy to the Precepts of Jesus. - 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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Practice of receiving Judicial Oaths, its Repugnancy to the Precepts of Jesus.
How palpably repugnant to the precepts of Jesus many of the observances are, to which men are compelled, under the notion of their being enjoined by the religion of Jesus, is what could not easily be conceived by any, who, on such occasions, are not in the habit of using their eyes, nor will be believed by many of those who are.
“Again,” (says the account in Matthew, v. 33, the only one of his four biographers by whom any account is given of this precept,) “Again, ye have heard that it hath been said of old time, Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths: (33) But I say unto you, Swear not at all: neither by heaven, for . . . &c. (35) Nor by the earth, for . . . &c. neither by Jerusalem: for . . . &c. (36) Neither . . . by thy head, because . . . &c. (37) But let your communication be Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil.”
As to what is to be understood to have been here meant by “old time,” the only passages of the Mosaic law, as reported in the Old Testament, that have any bearing upon the subject (at least as far as the marginal references can be depended upon) are those which are in Exodus (xx. 7,) Leviticus (xix. 12,) Deuteronomy (v. 11.)
In Exodus (xx. 7,) the words are these, “Thou shalt not take the name of the Lord in vain: for the Lord will not hold him guiltless that taketh his name in vain.” These are the words, in the authentic translation of that portion of the Jewish statute law, which, in the Church-of-England liturgy and other offices, is distinguished by the name of the ten commandments, of which it stands third.
Next comes Leviticus (xix.) in which the words are these:—(11) “Ye shall not steal, neither deal falsely, neither lie one to another. (12) And ye shall not swear by my name falsely, neither shalt thou profane the name of thy God: I am the Lord.”
Lastly comes Deuteronomy, (v. 11,) in which the words are exactly the same as in Exodus.
Will it be said, that by the words “but shalt perform unto the Lord thine oaths,” it appears that the sort of oath meant by Jesus to be forbidden was the promissory oath alone, and not the assertory oath?
But—1. In the promissory oath the assertory oath, it has been seen, is included.
2. And, in the above passage in Leviticus, the assertory, in which is included the testimonial oath, is specially mentioned. “Ye shall not lie one to another—Ye shall not swear by my name falsely, neither shalt thou profane the name of the Lord—Ye shall not swear by my name falsely”—says the law of Moses. What says the law of Jesus? Ye shall not swear falsely? No: but Swear not at all. “Ye shall not swear at all.” In this prohibition the words are general, all-comprehensive. If, in respect of judicial occasions or any other occasions, it had been his intention that any exception should be made, would not such intention have been expressed?—would not this have been the occasion for expressing it? If, of words thus plain and positive, the only obvious import is not to be trusted to, would it not be better that, instead of being in such multitudes distributed, all Testaments, old and new, should be burnt, and the Church-of-England Common Prayer-book, with its articles of faith, and other appendages, distributed instead of them?*
3. And accordingly comes the concluding passage of the words of Jesus, in which the word, employed in contradistinction to swearing, is “communication.” Under this word communication, is not assertion—statement—narrative,—whichsover be the name given to that application of the faculty of discourse which is most in use;—is it not still more obviously and necessarily included, than any such comparatively rare application as is made by what is called promise, engagement—deliberate and solemn engagement?
The words of James—will they be acknowledged as the words of Jesus, or as conformable to and explanatory of the meaning of the words of Jesus? “But above all things, my brethren,” says that apostle (v. 12,) “swear not: neither by heaven, neither by the earth, neither by any other oath: but let your yea be yea, and your nay, nay, lest ye fall into condemnation.”
On either of these occasions respectively, did Jesus—did James—explain, and say—“on a judicial occasion, or for a judicial purpose, swear as much as you will, for in such case swearing is not swearing?” On the day when this letter was written by James, had such been the meaning of his master, was it not high time for the disciple to have made known as much?
On this ground stands the system, by which, on pretence of Christianity, Christians in such multitudes, together with all such other persons, to whom it may happen to stand in need of their testimony, are thrust out of the protection of the law—of that branch of it, viz. the penal, on which alone men are altogether dependent for whatsoever protection is afforded to them against the most grievous of the injuries to which man’s nature is exposed.
All this while,—without any the smallest innovation upon Church-of-Englandism—upon that system, in comparison of which all perceptible happiness and unhappiness is as dust upon the balance—without any such horrible and impracticable temerity (will men believe as much when they see it with their own eyes?)—the practice of administering oaths might be abolished. No: not indeed, if so it were, that, by any one of the thirty-nine articles, the practice is enjoined: but on the contrary, so it is, that, by the only article which has any application to the subject, what is declared is—not the obligatoriness—but merely the lawfulness, of employing this instrument. The lawfulness? Yes. Lawful then let it be: at any rate, so as the practice of employing it be done away, the doctrine concerning its lawfulness, taking the word lawfulness in a religious sense, may without much mischief remain unquestioned and undisturbed.
If so it really were, that in all testimonial cases the employment of this supposed security were obligatory, what should be said of those, by whom, to so great an extent as has been seen, it has been left unemployed?
Obligatory or unobligatory, useful or unuseful, the practice at present maintained in relation to it will in either case be indefensible.
[* ]True it is, that, in the same chapter (v. 17,) “Think not,” says Jesus, “that I am come to destroy the law or the prophets: I am not come to destroy, but to fulfil . . . &c.” But from this passage, can the oath-and-perjury-compelling powers think to extract a warrant for the exaction or reception of the assertory—the judicial oath? Can any such notion be maintainable, as that—the assertory, the testimonial, the judicial oath, having been allowed by the Mosaic law—the prohibition of it by Jesus would pro tanto be a destruction of that law, and therefore, consistently with the explanation thus given by him, cannot be supposed to have been intended?