The fear of legal punishment is ad mitted by Bentham to be a sanction against mendacity. But the legal punish ment may or may not overtake the offender. Legal punishment may follow detection, but the perjury may not be detected, and therefore not punished. Is the oath, or would a declaration with out oath be, "a mere form without any useful effect whatever,' because the legal punishment may not, and frequently does not overtake the offender ? When a Greek or a Roman swore by his gods, iu whose existence he believed, and who, being mere imaginations, could not pu nish him for his perjury, was not his belief in their existence and their power and willingness to punish perjury a sane tion against mendacity ? All antiquity at least thought so.
There are occasions on which oaths are treated lightly, on which he who im poses the oath, he who takes it, and the community who are witnesses to it, treat the violation of it as a trivial matter. Such occasions as these furnish Bentham with arguments against the efficacy of oaths on all occasions. Suppose we ad mit, with Bentham, as we do merely for the sake of the argument, that "on some occasions oaths go with the English clergy for nothing;"' and this, notwith standing the fact, which nobody can doubt, " that among the English clergy believers are more abundant than un believers.' The kind of oaths "which go for nothing" are not mentioned by Bentham, but they may be conjectured. Now, if all oaths went for nothing with the clergy, or with any other body of men, the dispute would be settled. But this is not the fact. If in any way it has become the positive morality of any body of men that a certain kind of oath should go for nothing, each individual of that body, with respect to that kind of oath, has the opinion of his body. He does not believe that such oath, if broken, will bring on him divine punishment, and therefore such oath is an idle ceremony. But if there is any oath the violation of which he thinks will bring on him divine punishment, his opinion as to that kind of oath is not at all affected by his opinion as to the other kind of oath. Now, oaths taken on judicial occasions are by the mass of mankind considered to be oaths the violation of which will bring some punishment some time, and therefore the3 have an influence on the great maw jority of those who take them. Whether
society will in time so far improve as to render it safe to dispense with this cero mony in judicial proceedings, cannot be affirmed or denied ; but a legislator who knows what man now is, will require better reasons for the abolition of judicial oaths than Bentham has given.
How far the requisition of an oath may be injurious in excluding testimony in certain cases, and how far oaths on so lemn and important occasions may be made most efficacious, and in what cases it may be advisable to substitute declara tions in lieu of oaths, are not matters of consideration here. It is enough here to show that an oath is a sanction or security to some extent, if the person who takes it fears divine punishment in case be should violate it ; and that this, and no other, is the ground on which the oath is imposed.
Indeed it is evident that in English procedure the professed opinion or belief of the person who takes the oath is the only reason for which courts of justice either admit or refuse to receive his evidence ; and this is shown by the questions which may be put to a witness when he comes to deliver his evidence in a court of justice.
There is some difficulty in stating ac curately how fir oaths were required from witnesses in Roman procedure under the reptiblic and the earlier em perors. In addition to what has been stated, the reader may refer to Cicero, Pro Q. Rose. C'omoed., c. 15, &c. ; and Noodt, Op. Omn., ii. 479, De Testibus.' By a constitution of Constantine, all wit nesses were required to give their testi mony on oath; and this was again de clared by a constitution of Justinian.
(C'od. 4, tit. 20, s. 9, 16, 19.) Many persons conscientiously object to the taking of an oath on religious grounds, and particularly with reference to our Saviour's prohibition (Matth. v. 33). On the subject of oaths in general the reader may consult Grotins, De Jure, B. & P., lib. ii, C. 13; Paley's Moral Philosophy ; Tyler's Origin and History of Oaths ; the Law Magazine, vol. xii.; and the work of Bentham already re ferred to.