An oath is required in England in a great many cases besides judicial pro ceedings, as for instance, on admission to places of public trust, and on a variety of other occasions. By an act of the 5 & 6 Wm. IV. c. 62, the lords of the Treasury are empowered to substitute a declaration in lieu of an oath, solemn affirmation, or affidavit, in a variety of cases, such as relate to the revenues of Customs or Excise, the Post-Office, and other departments of administration men tioned in the second section of this act. This act also substitutes declarations in lieu of oaths, solemn affirmations, and affidavits, in various other cases enu merated in the act; for instance, where a person seeks to obtain a patent under the Great Seal. Justices of the peace and others are (§ 13) prohibited from administering or receiving oaths, affi davits, or solemn affirmations, touching any matter or thing whereof such justice or other person has not cognizance or jurisdiction by some statute in force at the time ; with certain exceptions how ever, specified in the latter part of this section. The object of this section was to put an end to the practice of adminis tering and receiving oaths and affidavits voluntarily made in matters not the sub ject of any judicial inquiry, nor in any wise pending or at issue before the person by whom such oaths or affidavits were administered or received. But this act does not extend or apply to cases where the oath of allegiance then was or there after might be required to he taken by any person who may be appointed to any office; nor does it extend or apply to any oath, solemn affirmation, or affidavit, which then was or thereafter might be made or taken, or required to be made or taken, in any judicial proceeding, in any court of justice, or in any proceeding for or by way of summary conviction before any justice of the peace. (§ 7.) Persons who wilfully and corruptly make or subscribe any declaration, under the provisions of this act, knowing the same to be untrue in any material particular, are declared (* 21) to be guilty of a misdemeanor. The statute of l & 2 Viet. c. 77, provides the same privilege of solemn affirmation for persons who have been Quakers or Moravian, and have ceased to be such, but still entertain conscientious objections to the taking of an oath, as they would have enjoyed if they were still Quakers or Moravian.
As oaths may he either voluntary or may be imposed by a political superior, so they may be imposed either on extra judicial or on judicial occasions. Oaths which are imposed on occasion of judicial proceedings are the most frequent in this country, and the occasions are the most important to the interests of society. The principle on which an oath is administer ed on judicial occasions is this : it is sup posed that an additional security is there by acquired for the veracity of him who takes the oath. Bentham, in his 'Ra tionale of Evidence,' on the contrary, affirms that "whether principle or expe rience be regarded, the oath will be found, in the hands of justice, an altogether use less instrument ; in the hands of injustice, a deplorably serviceable one ;" " that it is inefficacious to all good purposes,' and " that it is by no means inefficacious to bad ones."
The three great sanctions or securities for veracity in a witness, or, to speak perhaps more correctly, the three great sanctions against mendacity in a witness, are, the punishment legally imposed on a person who is convicted of false swearine, the punishment inflicted by public opinion or the positive morality of society, and the fear of punishment from the Deity, in this world or the next, or in both. The common opinion is, that all the three sanctions operate on a witness, though they operate on diflerent witnesses in very different degrees. A man who does not believe that the Deity will punish false swearing can only be under the influence of the first two sanctions; and if his character is such that it cauuot be made worse than it is, he may be under the influence of the first sanction only. Bentham affirms that the third sanction only appears to exercise an influence in any case, because it acts in conjunction with "the two real and efficient sanctions," " the political sanction and the moral or popular sanction ;" and that if it is strip ped of those accompaniments, its impo tence will appear immediately.
Bentham's chief argument is as follows . "that the supposition of the efficiency of an oath is absurd in principle. It as cribes to man a power over his Maker. It supposes the Almighty to stand en gaged, no matter how, but absolutely engaged, to inflict on every individual by whom the ceremony, after having been performed, has been profaned,— a punishment (no matter what) which, but for the ceremony and the profanation, he would not have inflicted. It supposes him thus prepared to inflict, at command, and at all times, a punishment, which, being at all times the same, at no time bears any proportion to the offence.' Again " either the ceremony causes punishment to be inflicted by the Deity, an cases where otherwise it would not have been inflicted; or it does not. In the former case the same sort of authority is exercised by man over the Deity, as that which, in English law, is exercised over the judge by the legislator, or over the sheriff by the judge. In the latter case the ceremony is a mere form without any useful effect whatever." The absurdity of this argument hardly needs to be exposed. He who adminis ters the oath, by virtue of the power which he has to administer it, and the political superior who imposes the oath, may either believe or not believe that the Deity will punish false swearing, and it is quite immaterial to the question which of the two opinions they entertain. That which gives the oath a value in the eyes of him who administers it, or of that political superior who imposes it, is the opinion of the person who takes the oath ; and if the individual who takes the oath believes that the Deity, in case it is pro faned, will inflict a punishment which otherwise he would not inflict, the object of him who enforces the oath is accom plished, and an additional sanction against mendacity is secured. It matters not whether the Deity will punish or not, nor whether he who enforces the oath believes that he will punish or not : if he who takes the oath believes that the Deity will punish false swearing, that is sufficient to show that the oath is of itself a sanction.