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6.: FREE DISCUSSION, LETTER II MORNING CHRONICLE, 8 FEB., 1823, P. 3 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I [1822]

Edition used:

The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


6.

FREE DISCUSSION, LETTER II

MORNING CHRONICLE, 8 FEB., 1823, P. 3

This letter, centring on the utility of oaths, draws heavily on “Swear not at all”: Containing an Exposure of the Inutility and Mischievousness, as Well as Anti-Christianity, of the Ceremony of an Oath (London: Hunter, 1817), by Jeremy Bentham (1748-1832); in his Works, ed. John Bowring, 11 vols. (Edinburgh: Tait, 1843), Vol. V, pp. 187-229. (This work was printed in 1813, and a copy given to the Head of an Oxford College in that year, almost certainly during the tour on which Bentham took Mill and his father; see CW, Vol. I, pp. 55-7.) In the tract Bentham refers to all the issues cited by Mill: jurymen’s oaths, pp. 204-5, custom-house oaths, p. 195, university oaths, pp. 195-7, 209-12, 213-19, and 224-9 (all dealing with Oxford, Bentham’s university, except pp. 213-19, on Cambridge), and Quakers’ affirmations, p. 201. For the context, heading, and entry in Mill’s bibliography, see No. 5.

sir,—

In my first letter I endeavoured to give a general conception of the plan which I intend to pursue in advocating the cause of free discussion. This plan I will now endeavour to carry into execution.

Persecutors do not usually attempt to justify their intolerance under pretence of avenging the cause of God. The absurdity of this pretension would be too obvious, since it would imply that God is unable to avenge his own cause; and since it is also evident, that Christianity rejects this method of defence. If there was any reason which could justify persecution in the eyes of a man of sense, that reason must be its utility to man; and it is upon this circumstance accordingly, that the greatest stress has been laid. By permitting the propagation of infidel doctrines, you destroy, it is said, the principal security for good judicature, and for the practice of private morality.

How far this assertion is true it shall be our business to inquire; and first as to judicature—among those requisites without which good judicature cannot exist, the principal is true and complete evidence. A great part of the evidence delivered in a Court of Justice consists in the testimony of witnesses. To secure veracity on the part of witnesses is therefore one of the most important ends to which the Legislator can direct his endeavours.

For insuring the veracity of witnesses, among other securities the ceremony of an oath has been resorted to. That the desired effect is attained in a very considerable degree is certain—that this beneficial result is to be attributed to the ceremony of swearing, is by no means a legitimate conclusion. There are several motives which tend to produce veracity on the part of witnesses. Even those who attribute the effect principally to the ceremony of swearing will admit, that the fear of punishment and the fear of shame in this instance co-operate with the religious inducement.—Since, then, it is allowed on all hands, that the veracity of witnesses is the joint result of several causes, it is for them to shew why it is to be attributed to one of these more than to another.

When a number of different causes co-operate in the production of a given effect, it is often a matter of some difficulty to determine which of the causes is principally instrumental in bringing it about. This difficulty, however, is removed, if an opportunity presents itself of examining the effects produced by each of the causes, taken separately. If we find that one of the causes, when unsupported by the others, is not followed by any degree of the effect in question, we shall be intitled to conclude, that in all those cases in which the effect really takes place, it is to the other causes, and not to this one, that it ought to be attributed.

This opportunity fortunately presents itself in the case we are considering. There are several instances in which, although the ceremony of an oath is employed, neither the laws nor the popular voice enforce observance of it. If it should appear that in all these cases truth is uniformly and openly violated, then we ought to conclude, that whenever judicial mendacity is prevented, we owe this benefit to the laws and to popular opinion, not to the ceremony of swearing.

I. It is notorious, that from motives of humanity, but in defiance of the strongest evidence, Juries frequently condemn a criminal to a milder punishment than the laws have appropriated to his offence, by finding him guilty of stealing under the value of 40s. Here the oath of the Jurymen is flagrantly violated. They have sworn to judge according to the evidence; but humanity, which dictates the perjury, also prevents public opinion from censuring the perjured Jurymen. This instance, therefore, makes it apparent, how slender is the security which an oath affords, when unsupported by, or at variance with, public opinion.

II. Another most striking instance of the inefficacy of oaths is, the abuse which is made of them at the Custom House. So notoriously does every merchant, who imports or exports goods, swear falsely to their quality and amount, that Custom House oaths have almost passed into a proverb.1 This perjury, indeed, has for its object to evade certain laws, which are so admirably contrived for the purpose of fettering commerce, that if they were rigidly enforced, certain commodities could not possibly be exported or imported. From the acknowledged absurdity of the laws, this perjurious evasion of them is not reprobated by public opinion.

III. Every young man, at his admission into the University of Oxford, swears to obey certain statutes, drawn up by Archbishop Laud for the government of the University.2 Now it is well known that no one of these students ever bestows a single thought upon the observance of these statutes. The cause of this non-observance is, that from the uselessness and absurdity of the statutes, public opinion does not enforce obedience to them. If, however, the ceremony of an oath was of any efficacy in preventing mendacity, this efficacy would shew itself even in a case where the obligation is not sanctioned by public opinion. The violation of the University oath, in every case where its observance interferes in the slightest degree with the convenience of the swearer, is a complete proof that the ceremony of swearing affords no security whatever for veracity in any other case, and that whenever witnesses speak the truth, it is not because they have sworn, but because they fear punishment and shame.

The inefficiency of an oath is practically recognized by English Legislators, and by English Judges, when they admit persons of all religious denominations to give evidence, after taking an oath according to the form prescribed by their own religion. For there are some religions which are acknowledged to have little or no efficacy in preventing mendacity. Yet we do not find that, ceteris paribus, less reliance is to be placed on the oaths of one set of religionists, than of another.

But the law is not even applicable to all Christians, which amounts to an admission of the inefficacy of oaths to secure good evidence. The respectable sect of Quakers is freed from the necessity of swearing,3 and yet it is always understood that there is proportionably less false evidence on the part of the members of that body, than on the part of the members of any of the swearing sects.

Having thus made it appear that it is not to the influence of religious motives that good evidence is to be attributed, we might conclude from analogy that the security we have for useful actions is chiefly referrable to other sources. This conclusion is farther supported by the frequency with which duelling and fornication are practised, notwithstanding the positive manner in which they are forbidden by Christianity. They are practised merely because public opinion does not, in these instances, support the dictates of religion. The drinking of wine in Mahometan countries is another equally striking instance.

From the considerations which we have adduced, all of them notorious results of experience, it is evident how ill-founded is the argument of those who defend persecution on the ground which we have combated.

In my next I will endeavour to shew that persecution is not necessary for the support of Christianity.

Wickliff

[1 ]For the Custom House oaths, see, e.g., 1 George IV, c. 8 (1820).

[2 ]See Statuta selecta e corpore statuorum universitatis Oxoniensis (Oxford: Webb, 1638) for the statutes as codified in 1636 by William Laud (1573-1645), Chancellor of the University of Oxford from 1629; later (1633) Archbishop of Canterbury. Bentham refers to several revisions and forms of the statutes in “Swear not at all”; see esp. pp. 195n and 224-9.

[3 ]Under Sect. 36 of 22 George II, c. 46 (1749).