OATH
262
OATH
the rash and prcsumptnoiis; how to couvict the dcliber- att'ly and wilfiiUv false ; huw to extort from reluctant lips the tnith, and nothing' but the truth— by what processes these results may be attained, is the great question. In- terrogation and cross- interrogation— rigid, severe, and scrutinizing— under a proper system of procedure, con- firmed and strengthened by the sanctions already alluded to, are the securities upon which all real and substantial reliance must be placed. The ordinary motives to verac- ity, without the aid of cross-examination, and unaccom- panied bv fear of punishment in case of falsehood, are found sufficient in the common affairs of life to produce veracity. The extraordinary security afforded by punish- ment, compulsory examinations and cross-examinations, would seem to suffice in the case of evidence judicially given. As, however, testimony is judicially given only upon and after the ceremony called an oath, it is only punishable, if false, after the oath has been legally admin- istered. This is not necessarily so; for, if the legislature should so will, the temporal puuishmeut might as well be inflicted without as with an oath."
Having briefly considered the temporal securities for truth, it now remains to ascertain the real significance and true value of the oath as a preventive of testimonial mendacity.
" ' What is universally understood by an oath,' says lord Hardwicke,' is that the person who undertakes imprecates the vengeance of God upon himself if the oath he takes be false.' ' An oath,' says Michaelis, ' is an appeal to God as a surety and the punisher of perjury; which appeal, as he has accepted, he of course becomes bound to vindicate upon a perjured i)erson irremissibly.' 'Were not God to take upon himself to guarantee oaths, an appeal to him iu swearing would be foolish and sinful. He undertakes to guarantee it, and is the avenger of perjury, if not iu this world, at any rate in the world to come.' By the use, then, of this ceremony, the Deity is engaged, or it is as- sumed that he is engaged, in case of a violation of the oath, to inflict punishment of an uncertain and indefinite degree of intensity— at some remote period of time, iu soiiie indefinite place, according to the varying and con- flicting theological notions of those holding this beliefs notions varying according to the time when and place where they are entertainecl, and the education and charac- ter of those entertaining them. It cannot be questioned that the Deity will punish for falsehood, whether judicial- ly or extra-judicially uttered.; nor that such punishment, whatever it may he, whensoever, wheresoever, or howso- ever inflicted, will be just, fitting, and appropriate. AVere the ceremony not used, we.e unsworn testimony deliv- ered, subject to temiKiral punishment, were all oaths abolished, false testimony, so far as this world is con- cerned, would be as injurious as if uttered nuder the sanction of an oath. The injurious efiects in the admin- istration of justice would be the same. The unsworn witness would be amenable to the penalties of the law, as the sworn witness is now. Now, what is accomplished by the oath ? The falsehood and its disastrous effects to the course of justice are the same whether the oath has been taken or not, the temporal punishment is or may be made the same. The oath, if eflective, therefore, is only effective so far as future punishment is concerned, which, iu consequence of its administration, will thereby be in- creased or diminished— for if the future punishment were to remain the same, then notliiug would have been effect- ed ; the oath would be a mere idle ceremony- — tHumqne imbelle sine ictu. That punishment hereafter will there- by be diminished, no one will pretend, certainly not those who repose confidence in the efficacy of this sanction. If it be increased, then, and then only, is the ceremony ef- fective— then only is a valid reason given for its adoption. The falsehood being the same, whether the testimony be sworn or unsworn, the punishment for the falsehood it- self must necessarily be the same. For if falsehood be a proper subject of punishment, when the effects are the same, the lie will be punished without as well as with any ceremony preparatory to its utterance. If, then, an in- crease of punishment will be inflicted, it must be for the profanation of the ceremony, and nothing else. All that is alleged, then, to have been accomplished is that an in- creased amount of punishment is to be inflicted simply for the violation of a ceremony, and entirely irrespective and regaidless of any evils flowing from the falsehood. No sanciion for truth is really obtained. But in what docs the binding force of an oath consist? ^\'hen Jephthah, returning in triumph, was met by his daughter with tim- brels and dances, was Jephthah under any obligaliini to perform the vow he had made, 'to ofler up for a bunit- oft'ering whatsoever should come forth from the doors of his house to meet him?' If yea, such obligation arose not from the rightfulness or propriety of the matter vow- ed, for that was a dark and atrocious murder, 'for she vas his only child; besides her he had neitiicr son nor daughter.' The performance, if required, was required solely in consequence of the vow, 'For I have opcmed my mouth to the Lord, and cannot go back.' If nay, if the vow was not to be pei formed, then does it not follow that it is the fltvvesB of the thing sworn to be done or not which