An oath is required in England in a great many cases besides judicial proceedings, as for instance, on admission to place. of public trust, and on a variety of other occasions.
As oaths may be either voluntary or may be imposed by a political superior, so they may be imposed either on extra-judicial or on judi cial 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 administered on judicial occasions is this : it is sup posed that an additional security is thereby acquired for the veracity of him who takes the oath.
There are occasions on which oaths are treated lightly, on which he who imposes the oath, he who takes it, and the community who are witnesses to it, treat the violation of it as a trivial matter. Such occa sions as these furnish Bentham with arguments against the efficacy of oaths on all occasions. Suppose we admit, 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, notwithstanding the fact, which nobody can doubt, " that among the English clergy believers are more abundant than unbelievers." The kind of oaths " which go for nothing " are not mentioned by Bentham, but they may be con jectured. 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. Ile 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 of the latter kind, and therefore they have an Influence on the great majority of those who take them. Whether society will In time so far improve as to render it safe to dispense with this ceremony 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. For some
able remarks on this part of tho subject, the reader is referred to Mr. Best's admirable treatise on the Law of Evidence,' 3rd edit., PP. 61.67.
How far the requisition of an oath may be injurious in excluding testimony In certain case., and how far oaths on solemn and important occasions may be made most efficacious, and in what cases it may be advisable to substitute declarations 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 ho 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. (See L. C. J. Willes's judgment in Omichund v. Barker, Willes, 541.) There is some difficulty in stating accurately how far oaths were required from witnesses in Roman procedure under the republic and the earlier emperors. In addition to what has been stated, the reader may refer to Cicero, Pro Q. Rose. Comoed.,' c. 15, &c. ; Noodt, Op. Omn.,' ii. 479, De Testibus; ' to the commentary of Asconius on the Verrine Orations ; and to Zirnmern's treatise on Civil Procedure among the Romans,' §§ 135 & 150. By a constitution of Constantine, all wit nesses were required to give their testimony on oath ; and this was again declared by a constitution of Justinian. (` Cod.' 4,20, 9. 16. 19.) Many persons conscientiously object to the taking of an oath on religious grounds, and particularly with reference to our Saviour's pro hibition (Matth., ss 33). On the subject of oaths in general the reader may consult carotins,' 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 referred to.