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the laws are so constituted in this regard, as to throw obstacles in the way of prosecutions for perjury, since they require greater and more powerful evidence in order to conviction in these, than in ordinary criminal cases. The wisdom of this is beside the present question of discussion, though it may be observed that crime has commonly the undue excitement of animal feeling or passion for one parent; an account being always taken of the infirmity of human nature, our legislators have seemingly beguiled themselves into an expectation that perjury is of very rare occurrence, because so effronterous, so cold-blooded in its origin. Or, is it that perjury is more than any other offence open to apparent proof by circumstantial evidence ; the belief of which cannot be too tardy? It may be so, and the law thus indirectly implies the value of each man's reputation, by affording a protection against the heedless assailing of private character, and approving the well-known sentiment:
“ Who steals my purse steals trash ; 'tis something, nothing -
And makes me poor indeed.” But, to return more immediately to the question: we have in the customs and excise certain oaths administered and taken,- lightly taken, because as such only estimated by either of the contracting parties. We have the same oaths violated, and with impunity their violation is permitted, because no moral disgrace now attaches itself to the individual in consequence, who, were he to become by any circumstance, the object of a criminal prosecution, would be held up as an object for commiserative feeling. We need not travel far in order to ascertain the reason of this being the effect of the present system. It may be found in the non-existence of the im, mediate and weighty, not imaginary or prospective penalties, which have been introduced in the act recently passed in relation to this matter*, though but a diminutive half-measure of reform; for it would be problematical to divine a sound reason, why the same principle inducing thus far should not be carried out and acted upon more extensively with safety to the political, and benefit to the moral, government of the community.
A jurist to whom I have previously alluded has made up an oath as consisting of three parts, conveying to his own mind, fiast, “ the religious sanction; next, the fear of human punishment; and lastly, the dread of popular infamy.” It may be necessary here to state, that in quoting Mr. Jeremy Bentham, I must not be understood as chiming in with all his notions
the state and condition of the laws. The contrary is indeed the case in the statement or opinion I have just cited; for, according to my view of the matter, (and which I dwelt upon in my former communication) it is the religious sanction, or appeal to the Divine Being, which alone is to be considered as constituting the oath, and that a religious feeling is strictly and exclusively to be held as conveyed or recognisable in it. The fear of human punishment, and the dread of popular infamy, appear to me rather operative as externals, or circumstances, enforcing the obligation of the religious appeal, or the oath, from motives of worldly and selfish policy; so that, if these circumstances can be shewn to be at present, or can be made, sufficiently effective for the accomplishment of the object, independent of the religious obligation, the inutility of the oath may be considered proven.
By the new act, 100!. penalty is attached to detection of falsehood in certain official cases, extending only to a few of the subsidiary matters, leaving unaffected the great majority which are as equally to be objected to.
Now in the university, the excise, and custom-house oaths, before illustrated, to which there is appended no sense of immediate penal consequence; or, to preserve our phraseology, where the fear of human punishment and the dread of popular infamy do not operate, and the religious sanction or obligation alone remains for the security of the provisions of each ; it is observable, that the infraction of these is deemed of so little consequence as to be unworthy the cognizance and exercise of the law to prevent even their recurrence. What then is the natural corollary? but that if the latter-the appeal to the Divinity --be done away, and the former—the fear of human punishment or the dread of popular infamy-either of them remain attached by the law to the violation of the truth, the word or formal subscription to a document would be equally efficacious in securing the results contemplated under the present system—the eliciting the truth, and furthering the ends of public justice-as the custom of indiscriminately administrating the oath as now constituted. There may indeed be extreme cases, where the subject matter of the engagement may be of special and very grave importance, such as upon which may be suspended the destinies of a nation or the happiness of every people, which may justify the imposition of an oath in all its force and meaning, and also every adjunct operative in any way, as a further conservative to its stipulations ; but unhappily the moral strength and solemnity of the oath has previously been impaired by its common usage on occasions of less moment. To the additional gravity of the matter there is no additional satisfaction in the way of security attainable ; for its whole force, which, under other circumstances, might have constituted that additional satisfaction, has thus become blunted and destroyed.
Another kind of oaths to be considered, are those which are required of witnesses in courts of law. It is currently asserted, that they serve as a check upon the evidence of witnesses who might otherwise give false testimony. But let us for a moment stop to analyse their workings; and in order to ascertain the correctness of the opinion, and to simplify the point, allow me to suppose society, as divided into three great classes, the avowedly atheistical—the religious world—and an intermediate class between the two. It will not be contended, that with the atheistical the religious obligation involved in an oath influences their evidence. be with such persons any restraining consideration, it is the apprehension of the derogation of their character in the estimation of their fellow-men-the fear of the mal-reputation that might follow perjury—the impeachmentof their respectability in society-in short, the calling in question their honour. The truth of any evidence they render, cannot be attributed to the requisition of the oath as such; but entirely to the influence of some such impressions as these. To the intermediate class, the oath is comparatively useless, if we take into consideration the circumstances, the time and place, of their requirement or imposition. These persons vacillate, as it were, betwixt two parties or opinions ; they seem to act by impulse ; are guided either by their interest or their feelings; are neither atheistical, nor decidedly and religiously conscientious; but wish to uphold the character of “ good sort of worthy men.” Now, imagine such an individual summoned into a court of justice, with the educational principles of honesty ; and I ask whether there would not be exerted in the very insignia of public justice, sufficient of influence to bias his mind in favour of the truth, with a predisposition even to follow the course prompted by his interest? Imagine the formalities of the court—the judges on the bench in all the panoply of office and judicial pomp—the jury on the one hand, and hundreds of assembled spectators, with the interested parties, on the other—the publicity of the proceedings--the certainty of exposure, with the hazard of disgrace—and say, whether these will not have their effect upon the mind of such an individual? With this, too, may be coupled the reflection, that possibly the liberty and life of a fellow-creature may be at stake-resting on his sole evidence-himself the witness singled out from the many—an object of universal gaze and subject to the scrutiny of the opposing advocates. A man must have but little of “ the milk of human kindness" in him; his heart must be steeled, too, against the subduing influence of benevolence as well as of religion, if none of these things move him ; and as such, he must rather class with those I have already named, who pretend not to regard the religious sanction, or to recognise in the oath any thing of a religious nature. But I take it, that with those to whom my present argument has reference, they have their due and powerful influence.
Here also may be found an answer to the question, put forward by those who exultingly inquire, “How is it that men are found continually in court hesitating under an oath, who have previously not flinched at open falsehood ?" It is either in the force of the circumstances in which they are then immediately placed; or if not, in the terror of the penalty attached to the violation of the oath in form, to which they are not liable for a simple breach of word or faith ; for that man cannot surely have any great respect for religion or its obligations, who, upon a matter of judicial importance, will deliberately render false evidence, either with or without an oath.
With regard to the last description of individuals to whom I have referred, who respect religion, and conscientiously practical morality and the social duties, it is superfluous to enter into any argument to shew, that any bond beyond the deliberately given word, would neither be necessary nor beneficial, even supposing no penal consequences were attached. But this exemption is not for a moment purposed; for no man has any right wilfully to expose his fellow to temptation, and the legislature would have much to answer for on such account.
There are many minor exceptionable points against the present system, which it might be tedious to dwell upon. One point ought not, however, to be overlooked. Instances have occurred in which individuals have, involuntarily, committed perjury! It is easy to suppose such a case as the following :-An individual claims justice on account of certain wrongs at the hands of a British judge and jury; before whom an ingenious counsellor is permitted to examine and cross-examine him, with a view to elicit some concession upon which to ground an argument to invalidate his tes. timony. Imagine that individual to have been peculiarly aggrieved, and his feelings harrowed up to a high degree of excitement, by the recurrence to his mind of the wrongs, perhaps of the ingratitude, of which he has been the victim. Too excited to allow the exercise of a cool judgment, his memory, perchance, may prove treacherous; and over anxiety to deny the ferreting insinuations of the crafty barrister, leads him into a labyrinth of words, of admissions and denials; by one expression, he falsifies some previously given evidence, with no ill intention, but unguardedly with an injured honour. If it be contended that men respect the oath for its own sake ; from its being an irrevocable appeal to an Almighty Being; how is it to be estimated in a case like this? Are we to judge that the man so circumstanced has incurred the awful religious peril implied in the viola. tion of the oath ? and if not, you virtually admit the oath in itself to be valueless. The case cited, is neither farfetched nor uncommon. In the extraordinary speech, delivered about two years ago, on the state of English jurisprudence, in the House of Commons, by the present highly-gifted Lord Chancellor, he related an anecdote not very dissimilar to the above ; confirming by his experience this objection, which, though not of primary, is yet of subsidiary importance, as shewing the propriety of oaths being as much as possible avoided.
It has struck me very forcibly in the investigation of this question, that the fact of annexing a punishment to perjury, is, in itself, a tacit acknowledgment of the ordinary inefficiency of the oath, for the purposes of its original institution. It is evident that in former days, governments found by experience the oath, or the religious influence, to be insufficient ; and finding it useless as a bond, on religious grounds exclusively, were induced to ensure its observance, by affixing to its violation a certain human punishment; which brings me again to the point previously urged, that this and the dread of popular infamy, practically constitute its chief, if not only security. Without them, its imposition is valueless; and they alone are sufficient for that purpose. The law, indeed, may be said virtually to acknowledge its worthlessness as a bond, when opposed to a man's interest, by refusing to receive in evidence the statement of any who it can be proved are interested in a decision or a judgment, be that interest ever so trifling in importance and amount. Should twenty shillings, only, be the sum in which the witness will benefit, or otherwise, his evidence is by law to be rejected. Therefore, that man's oath, however honourable he may be in every way, is not accounted worth twenty shillings. I am not to be understood as condemning the principle of rejecting every thing in the guise of interested evidence; but only the practice which forces a judge thus to insult and wound the feelings of a man, whose very word would be his bond, even when also upon his oath.
It has been argued, and with plausibility, that absolution is had from an oath, when circumstances have altered sufficiently to warrant its violation; but the position is untenable, inasmuch as it goes to destroy the chief force and importance belonging to oaths, which is, their irrevocability : besides, it is making self and present interests paramount to every religious requirement: it is, in short (if the expression be not irreverent). making God himself a mere matter of convenience; for God is in fact to be considered as a witness or a party to the oath. If it is not so, what makes it less revocable, and consequently more binding, than the bare promise or assertion? On the soundest principles of philosophy, no en. gagement is accounted as honourably departed from, or morally absolved, without the consent of each and all the parties involved in it. The argument, then, that a change of circumstances does away with the necessity of performing any action when engaged to be performed, cannot apply in the question of oaths, though admissible to any extent, mutually agreed upon, where human promises exclusively may be involved. The intention may be said to constitute the crime; or it may be said, also, to create the obligation to perform an action, when promised.. But this can only apply in matters as between man and man; not in those where the Almighty, in an oath, is imprecated as the arbiter.
It is worthy of remark, that in cases of arbitration, there is no power by which the arbitrators can receive evidence upon oath. In the House of Commons, also, there is vested no legislative power, by which they can impose the oath upon any individuals they may summon to their bar for public objects. Yet judgments, by means of arbitrators, are for the most part satisfactory, and to parliamentary evidence implicit confidence is commonly given; so that, in these instances, there is no loss by the omission of the form, the truth appearing to be equally well attained. The decisions of the most powerful assembly in the kingdom, or in Europe, are surely sufficiently important to claim for the guidance of their dicta, the strongest of all possible inducements to the truth—for acquiring a right knowledge
CARIST. OBSERV, No. 366. 3 E
of facts; and those perhaps indispensable to the weal, the happiness and prosperity of the country. Should not every object that could awe the imagination, the physical and mental energies, be conjured up to enforce the exposition of truth in such a place? If the oath be of so great effect as some have represented, here it ought specially to have been imposed; and I would ask of those who maintain the utility of oaths, upon what reasonable principle is to be accounted for the omission of this, which they deem to exercise so firm a hold upon the conscience, in the very case where the gravity of the matters under consideration is so important, as really, almost, to require its imposition. It is no part of my object, at this time, to go into a discussion on constitutional rights, which might from this part of the question, fairly be originated. The fact carries with it the impression, that here oaths are in no great consideration, else long ere this would have been sought the power of imposing them.
History has furnished us with many deplorable proofs of the breach of national faith in regard to political treaties in our own, as also of foreign countries. According to Voltaire, almost the only treaty not ratified by oath was the only one which had never been infringed. The treaty alluded to is supposed to be that negociated by the founder of Pennsyl. vania with the North-American Indians. So great was the reverence excited by William Penn in the minds of this untutored people, that it is related that the very elm tree under which the meeting took place was sacredly preserved for a considerable time. At an after period we read, in the life of Penn,“ that General Simco, when the British pioneers were cutting firewood for the army, placed a sentinel over it for its protection ; and the roll of parchment was shewn by the Indians to Governor Keith, nearly sixty years after it had been in their possession.” To the confirmation of this treaty, there was no stipulation by oath, by way of substantiating further the promises made between the parties ; or of assuring each, that the requirements of the treaty would be the more faithfully complied with.
By some, then, it would appear an undue influence is attached to the administration of oaths; while, by others, too little, if any measure of regard, is paid to their solemnity. In all cases I have attempted to shew their inutility; and the substitute is proposed in full conviction of its being as effectual as the practice now in vogue, of their indiscriminate imposition. Let Government annex to the discovery of falsehood in judicial testimony, the punishment which is now awarded in our civil code to the commission of wilful and corrupt perjury ; mete out that punishment in proportion to the enormity of the offence, or the collateral circumstances peculiar to the several cases, in proportion to the degree of wrong it may have been instrumental in producing; but let the sacredness of an appeal to the Almighty be spared. The name of God needs not thus be perpetually desecrated, when it really and practically serves no object, but what is now or may be otherwise provided for.
SUMNER. P. S.-Some exception has been taken to my former observations upon this subject, because not all made referable to religious principles *; but
We conclude that our correspondent alludes to our note attached to his former paper. We can only repeat, that we heartily agree with the writer, as to the duty and sound policy of greatly diminishing the frequency of oaths, which are a sin and disgrace to the land; though we cannot concur in all his reasonings, in some of their details and principles. We respectfully submit to him, whether he has not placed the practical efficiency of the religious sanction far too low; and also, whether in arguing a question of morals, merely upon “ reasons of worldly policy and expediency," there is not danger of appearing to do injustice to those sacred considerations which are