"In what does the difference consist between judicial and extra-judicial falsehood? The consequences of the latter may be more or less injurious than those of the I'di- nier ; Iheinjury iireater, the loss iu the latter case ofprop- ertv, reputation.'^or even life, in the former of a few shil- lings, it mav be; is the falsehood judicially uttered the greater offen'ce ? To suffer the same by the utterance of the same words in court or out of court, in the street or on the stand, with or without assenting with upraised
OATH
263
OATH
hand to cei-taiu words, in what is the difference to the loser, or the general injury to the community? Why in one ca^e pnnitfi, in the other exempt from punishment? Does it not deu-nide the general standard of veracity ? does it not create the notion that tiuth is not expected on ordinary occasions, but is only required as a sort of court hint; uaL;e ? What are the lessons of experience ? To de- lermii.e the real value of this sanction, one must abstract all those concurring and co-operating securities which alone are of real importance, but which, not being esti- mated at their value, give this an unnatural and unde- served efficiency. Take away public opinicm ; let false- hood be regarded with as much indifference as among the Hindus; remove all fear of temporal punishment in case of testimonial falsehood ; abolish the lest of cross- examination ; leave the willing or unwilling witness to state more or less, according to the promptings of his in- clination, and you then see the measure of security for trustworthiness derivable from tlie oath. When the oath-sanction is in accordance with the other securities of trustworthiness, its weakness is not jierceived. Let the religious cea^e to be in conformity with the popular Fentimeiit or even with convenience, and its violation is looked on with indifference or even complacency. 'If you wish,' says Beutham, ' to have powder of post taken for an eflicacious medicine, try it with oi)ium and anti- mony; if yon wish to have it taken for what it is, try it by itself.' Detinite, certain, immediate punishment alone is powerful to restrain or coerce. The future, enshrouded iu darkness, yields to the pre.-ent. The fear of punish- ment hereafter to be imposed for falsehood, without oath, or with oaths, so far as it may be increased thereby, is a motive of little strength. The uncertainty whether any will be inflicted, the unalterable ignorance as to what the amount may be, or when in time or where in space it is to be inflicted, render it a security untrustworthy and powerless in its action upon even the most intelligent and conscientious, while unaided and unsupported by other sanctions. The oaths of Oxford University have been taken by the most cultivated minds of Europe ; by those who, in after-life' attained the highest dignities of the Church or the State ; by those who, from their sta- tion, their education and intelligence, would be least like- ly to disregard their obligation. These oaths required obedience to statutes framed centuries ago by and for a set of monks, and are about as consonant with the present state of society as the monkish costume would be to a geueral-in-chief at tlie head of his army. Consequently, they are not merely not observed, but their observance would be a matter of astonishment to all, equally to those sworn to observe and those sworn to require their observ- ance. Another habitual violation of oaths has been seen in the conduct of English judges and juries in the admin- istration of the criminal law. The English code was written in blood. Draco would have shuddered at the multiplicity of its bloody enactments. Death was inflict- ed in case of larceny dependent upon the value of the thing stolen. With greater regard to the dictates of hu- manity than to their oath-obligations, juries, at the sug- gestion of the court, and for the express purpose of evad- ing the law, have intentionally returned the article stolen as of less than its true value, to avoid the punishment of death, which otherwise would have been the penalty in case of conviction. Unanimity, too, is required in juries. Adifterence of opinion exists ;"in most contested cases of much complexity it is likely to exist. The really dissent- ing minority yield to the majority. The court aid or ad- vise, and if advice will not serve, compel agreement by partial starvation ; thus bringing physical wants to their aid to coerce real opinion. The open and profligate viola- tion of custom-house oaths has attracted so much atten- tion that iu England they have been abolished. In this country a bill to that etVect, with the approbation of the late John Quincy Adams, was introduced, but we believe it was defeated.
"A committee of the British Parliament, In their report on the judicial affairs of British India, recommended the abolition of oaths, on the ground that their moral sanc- tion does not add to the value of native testimony, Hindu or Mohammedan ; that the only practical restraint on perjury is the fear of punishment, imposed by law for that offence, and that the fear of consequences in a fut- ure state, or the loss of character or reputation among their own countrymen, has little eflect upon the great majority of the people in securing true and honest testi- mony, when they may be influenced by the bias of fear, favor, affection, or reward. The legal exclusion conse- quent upon, and eansed by the oath, affords an unanswer- able argument against its use. Most nations, in the spirit of religious bigotry and barbarian exclusiveness, so char- acteristic of unenlightened legislation, have excluded as witnesses those whose faith differ from their own. The government, determining what shall be the faith, decrees that dissidents shall be branded as infidels. The term in- fidel expresses merely dissent or disbelief, without refer- ence to the truth or falsehood of the thing disbelieved. It is the epithet which majorities apply to minorities, and consequently one of reproach. Justinian excluded infidels. Hindus and ^Mohammedans excluded infidels, because of their infidelity, and, by way of reprisal, they