156

COURTS-MARTIAL-UNITED STATES.

[ESSAY proved) that the truth can be discovered without them. But if affirma. tion is thus a sufficient security for veracity in the great questions of a legislature, how can it be insufficient in the little questions of private life!

There is a strange inconsistency here. That same parliament which declares, by its every-day practice, that oaths are needless, continues, by its every-day practice, to impose them! Even more: those very men who themselves take oaths as a necessary qualification for their duties as legislators, proceed to the exercise of these duties upon the mere testimony of other men!-Peers are never required to take oaths in delivering their testimony, yet no one thinks that a peer's evidence in a court of justice may not be as much depended upon as that of him who swears. Why are peers in fact bound to veracity though without an oath? Will you say that the religious sanction is more powerful upon lords than upon other men? The supposition were ridicu lous. How then does it happen? You reply, Their honour binds them. Very well; that is the same as to say that public opinion binds them. But then he who says that honour, or any thing else besides pure religious sanctions, binds men to veracity, impugns the very grounds upon which oaths are defended.

Oath evidence, again, is not required by courts-martial. But can any man assign a reason why a person who would speak the truth on affirmation before military officers would not speak it on affirmation before a judge? Arbitrations, too, proceed often, perhaps generally, upon evidence of parole. Yet do not arbitrators discover the truth as well as courts of justice? and if they did not it would be little in favour of oaths, because a part of the sanction of veracity is, in the case of arbitrations, withdrawn.

But we have even tried the experiment of affirmations in our own courts of justice, and tried it for some ages past. The Society of Friends uniformly give their evidence in courts of law on their words alone. No man imagines that their words do not bind them. No legal court would listen with more suspicion to a witness because he was a Quaker. Here all the motives to veracity are applied: there is the religious motive which, in such cases, all but desperately bad men feel: there is the motive of public opinion: and there is the motive arising from the penalties of the law. If the same motives were applied to other men, why should they not be as effectual in securing veracity as they are upon the Quakers.

We have an example even yet more extensive. In all the courts of the United States of America no one is obliged to take an oath. What are we to conclude? Are the Americans so foolish a people that they persist in accepting affirmations, knowing that they do not bind witnesses to truth? Or, do the Americans really find that affirmations are sufficient? But one answer can be given: They find that affirmations are sufficient: they prove undeniably that oaths are needless. No one will imagineth virtue on the other side the Atlantic is so much greater than on this, that, while an affirmation is sufficient for an American an oath is necessary here.

So that, whether we inquire into the moral lawfulness of oaths, they are not lawful; or into their practical utility, they are of little use, or of

none.

There is a power and efficacy in our religion which elevates those who heartily accept it above that low moral state in which alone an oath can even be supposed to be of advantage. The man who takes an oath virtually declares that his word would not bind him; and this is an admission which no good man should make, for the sake both of his own moral character and of the credit of religion itself. It is the testimony even of infidelity, that "wherever men of uncommon energy and dignity of mind have existed, they have felt the degradation of binding their assertions with an oath."* This degradation, this descent from the proper ground on which a man of integrity should stand, illustrates the proposition, that whatever exceeds affirmation" cometh of evil." The evil origin is so palpable that you cannot comply with the custom without feeling that you sacrifice the dignity of virtue. It is related of Solon that he said, "A good man ought to be in that estimation that he needs not an oath; because it is to be reputed a lessening of his honour if he be forced to swear." If to take an oath lessened a pagan's honour, what must be its effect upon a Christian's purity?

Oaths, at least the system of oaths which obtains in this country, tend powerfully to deprave the moral character. We have seen that they are continually violated,-that men are continually referring to the most tremendous sanctions of religion, with the habitual belief that those sanctions impose no practical obligation. Can this have any other tendency than to diminish the influence of religious sanctions upon other things? If a man sets light by the Divine vengeance in the jury-box to-day, is he likely to give full weight to that vengeance before a magistrate tomorrow? We cannot prevent the effects of habit. Such things will infallibly deteriorate the moral character, because they infallibly diminish the power of those principles upon which the moral character is founded.

Oaths encourage falsehood. We have already seen that the effect of instituting oaths is to diminish the practical obligation of simple affirmation. The law says, You must speak the truth when you are upon your oath; which is the same thing as to say that it is less harm to violate truth when you are not on your oath. The court sometimes reminds a witness that he is upon oath, which is equivalent to saying, If you were not, we should think less of your mendacity. The same lesson is inculcated by the assignation of penalties to perjury and not to falsehood. What is a man to conclude, but that the law thinks light of the crime. which it does not punish; and that since he may lie with impunity, it is not much harm to lie? Common language bears testimony to the effect. The vulgar phrase, I will take my oath to it, clearly evinces the prevalent notion that a man may lie with less guilt when he does not take his oath. No answer can be made to this remark, unless any one can show that the extra sanction of an oath is so much added to the obligation which would otherwise attach to simple affirmation. And who can show this? Experience proves the contrary: "Experience bears ample testimony to the fact, that the prevalence of oaths among men (Christians not excepted)

Godwin: Political Justice, v. 2, p. 633.

† Stobaeus: Serm. 3.

158

[ESSAY IL has produced a very material and very general effect in reducing their estimate of the obligation of plain truth, in its natural and simple forms." "There is no cause of insincerity, prevarication, and falsehood more powerful than the practice of administering oaths in a court of justice." Upon this subject the legislator plays a desperate game against the morality of a people. He wishes to make them speak the truth when they undertake an office or deliver evidence. Even supposing him to succeed, what is the cost? That of diminishing the motives to veracity in all the affairs of life. A man may not be called upon to take an oath above two or three times in his life, but he is called upon to speak the truth every day.

A few, but a few serious, words remain. The investigations of this chapter are not matters to employ speculation, but to influence our practice. If it be indeed true that Jesus Christ has imperatively forbidden us to employ an oath, a duty, an imperative duty, is imposed upon us. It is worse than merely vain to hear his laws unless we obey them. Of him, therefore, who is assured of the prohibition, it is indispensably required that he should refuse an oath. There is no other means of maintaining our allegiance to God. Our pretensions to Christianity are at stake: for he who, knowing the Christian law, will not conform to it, is certainly not a Christian. How then does it happen, that although persons frequently acknowledge they think oaths are forbidden, so few, when they are called upon to swear, decline to do it? Alas, this offers one evidence among the many of the want of uncompromising moral principles in the world,-of such principles as it has been the endeavour of these pages to enforce,-of such principles as would prompt us and enable us to sacrifice every thing to Christian fidelity. By what means do the persons of whom we speak suppose that the will of God respecting oaths is to be effected? To whose practice do they look for an exemplification of the Christian standard? Do they await some miracle by which the whole world shall be convinced, and oaths shall be abolished without the agency of man? Such are not the means by which it is the pleasure of the Universal Lord to act. He effects his moral purposes by the instrumentality of faithful men. Where are these faithful men?-But let it be if those who are called to this fidelity refuse, theirs will be the dishonour and the offence. But the work will eventually be done. Other and better men will assuredly arise to acquire the Christian honour and to receive the Christian reward.

8

*Gurney: Observations, &c. c. x.

+ Godwin: v. 2, p. 634.

CHAP. 8:]

ARTICULAR OATHS.

159

CHAPTER VIII.

THE MORAL CHARACTER, OBLIGATIONS, AND EFFECTS OF PARTICULAR OATHS.

SUBSCRIPTION TO ARTICLES OF RELIGION.

IN reading the paragraphs which follow respecting several of the specific oaths which are imposed in this country, the reader should remember that the evils with which they are attended would almost equally attend affirmations in similar circumstances. Our object, therefore, is less to illustrate their nature as oaths, than as improper and vicious engagements. With respect to the interpretation of a particular oath, it is obviously to be determined by the same rule as that of promises. A man must fulfil his oath in that sense in which he knows the imposer designs and expects him to fulfil it. And he must endeavour to ascertain what the imposer's expectation is. To take an oath in voluntary ignorance of the obligations which it is intended to impose, and to excuse ourselves for disregarding them because we do not know what they are, cannot surely be right. Yet it is often difficult, sometimes impossible, to discover what an oath requires. The absence of precision in the meaning of terms, the alteration of general usages while the forms of oaths remain the same, and the original want of explicitness of the forms themselves, throw sometimes insuperable obstacles in the way of discovering, when a man takes an oath, what it is that he binds himself to do. This is manifestly a great evil: and it is chargeable primarily upon the custom of exacting oaths at all. It is in general a very difficult thing to frame an unobjectionable oath,-an oath which shall neither be so lax as to become nugatory by easiness of evasion and uncertainty of meaning,nor so rigid as to demand in words more than the imposer wishes to exact, and thus to ensnare the consciences of those who take it. The same objections would apply to forms of affirmation. The only effectual remedy is to diminish, or if it were possible to abolish, the custom of requiring men to promise beforehand to pursue a certain course of action. How is non-fulfilment of these engagements punished? By fine, or imprisonment, or some other mode of penalty? Let the penalty, let the sanction remain, without the promise or the oath. A man swears allegiance to a prince: if he becomes a traitor he is punished, not for the breach of his oath, but for his treason. Can you not punish his treason without the oath? A man swears he has not received a bribe at an election. If he does receive one, you send him to prison. You could as easily send him thither if he had not sworn. You reply,-But by imposing the oath we bind the swearer's conscience. Alas, we have seen, and we shall presently again see, that this plan of binding men is of little effect. There is one kind of affirmation that appears to involve absurdity. I mean that by which a man affirms that he will speak the truth. Of what use is the affirmation? The affirmant is not bound to veracity more than he was before he made it. It is no greater lie to speak falsely after an affirmation than before,

160

OATH OF ALLEGIANCE-OATH IN EVIDENCE.

[ESSAY IL OATH OF ALLEGIANCE. "I do sincerely promise and swear that I will be faithful, and bear true allegiance, to his majesty King George." On the propriety of exacting these political oaths we shall offer some observations in the next Essay.* At present we ask, What does the oath of allegiance mean? Set a hundred men each to write an exact account of what the party here promises to do, and I will undertake to affirm that not one in the hundred will agree with any other individual. "I will be faithful:" What is meant by being faithful? What is the extent of the obligation, and what are its limits? "I will bear true allegiance :" What does allegiance mean? Is it synonymous with fidelity? Or does it embrace a wider extent of obligation, or a narrower? And if either, how is the extent ascertained? The oath was, I believe, made purposely indefinite: the old oath of allegiance was more discriminative. But no form can discriminate the duty of a citizen to his rulers, unless you make it consist of a political treatise: and no man can write a treatise with definitions to which all would subscribe. The truth is that no one knows what the oath of allegiance requires. Paley attempts, in six separate articles, to define its meaning: one of which definitions is, that "the oath excludes all design at the time, of attempting to depose the reigning prince." At the time! Why the oath is couched in the future tense. Its express purpose is to obtain a security for future conduct. The swearer declares, not what he then designs, but what, in time to come, he will do. Another definition is, "it permits resistance to the king when his ill behaviour or imbecility is such as to make resistance beneficial to the community." But how or in what manner "fidelity and true allegiance" means "resistance," casuistry only can tell. We may rest assured that after all attempts at explanation, the meaning of the oath will be, at the least, as doubtful as before. Nor is there any remedy. The fault is not in the form, for no form can be good; but in the imposition of any oath of allegiance. The only means of avoiding the evil is by abolishing the oath. Besides, what do oaths of allegiance avail in those periods of disturbance in which princes are commonly displaced? What revolution has been prevented by oaths of allegiance?

Yet if the oath does no good, it does harm. It is always doing harm to exact promises from men who cannot know beforehand whether they will fulfil them. And as to the ambiguity, it is always doing harm to require men to stake their salvation upon doing-they know not what.

OATHS IN EVIDENCE. "The truth, the whole truth, and nothing but the truth, touching the matter in question." Is the witness to understand by this that if he truly answers all questions that are put to him, he conforms to the requisitions of the oath? If he is, the terms of the oath are very exceptionable; for many a witness may give true answers to a counsel, and yet not tell "the whole truth." Or does the oath bind him to give an exact narrative of every particular connected with the matter in question, whether asked or not? If it does, multitudes commit perjury. How then shall a witness act? Shall he commit perjury by withholding all information but that which is asked? Or shall he be ridiculed and perhaps silenced in court for attempting to narrate all that he has sworn to disclose? Here again the morality of the people is injuriously affected. To take an oath to do a certain prescribed act, and then to do only just that which custom happens to prescribe, is to ensnare the conscience and practically + Moral and Political Philosophy, b. 3, p. 1, c. 18.

* Essay iii. c. 5.

+ Ibid.