Efficacy of Oaths as Securities for Veracity.

From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia

  Men naturally speak the truth unless they have some inducements to falsehood. When they have such inducements, what is it that overcomes them and still prompts them to speak the truth!

  Considerations of duty founded upon religion:

  The apprehension of the ill opinion of other men:

  The fear of legal penalties.

  I. It is obvious that the intervention of an oath is designed to strengthen only the first of these motives,—that is, the religious sanction. I say to strengthen the religious sanction. No one supposes it creates that sanction; because people know that the sanction is felt to apply to falsehood as well as to perjury. The advantage of an oath, then, if advantage there be, is in the increased power which it gives to sentiments of duty founded upon religion. Now it will be our endeavour to show that this increased power is small; that in fact the oath, as such, adds very little to the motives to veracity. What class of men will the reader select in order to illustrate its greatest power?

  Good men? They will speak the truth, whether without an oath or with it. They know that God has apponded to falsehood as to perjury, the threat of his displeasure, and of punishment in futurity. Upon them religion possesses its rightful influence without the intervention of an oath.

  Bad men? Men who care nothing for religion? They will care nothing for it though they take an oath.

  Men of ambiguous character? Men on whom the sanctions of religion are sometimes operative and sometimes not? Perhaps it will be said that to these the solemnity of an oath is necessary, to rouse their latent apprehensions and to bind them to veracity. But these per~ do not go before a legal officer or into a court of justice as they go into a parlour or meet an acquaintance in the street. Recollection oi mind is forced upon them by the circumstances of their situation. The court and the forms of law, and the audience, and the after publicity of the evidence, fix the attention even of the careless. The man of only occasional seriousness is serious then: and if, in their hours of seriousness, such persons regard the sanctions of religion, they will regard them in a court of justice though without an oath.

  Yet it may be supposed by the reader that .the solemnity of a specific imprecation of the Divine vengeance would, nevertheless, frequently add stronger motives to adhere to truth. But what is the evidence of experience? After testimony has been given on affirmation, the parties are sometimes examined on the same subject upon oath. Now Pothier says, “In forty years of practice, I have only met two instances where the parties in the case of an oath offered after evidence have been prevented by a 1ense of religion from persisting in their testimonies,” Two instances in forty years: and even with respect to these it is to be remembered, that one great reason why simple affirmations do not bind men, is that their obligation is artificially diminished (as we shall presently see) by the employment of oaths. To the evidence resulting from these truths I know of but one limitary consideration; and to this the reader must attach such weight as he thinks it deserves,—that a man on whom an oath had been originally imposed might then have been bound to veracity, who would not incur the shame of having lied by refusing afterward to confirm his falsehoods with an oath.

  II. The next inducement to adhere to truth is the apprehension of the ill opinion of others. And this inducement, either in its direct or indirect operation, will be found to be incomparably more powerful than that religious inducement which is applied by an oath as such. Not so much because religious sanctions are less operative than public opinion, ae because public opinion applies or detaches the religious sanction. Upon this subject a serious mistake has been made; for it has been contended that the influence of religious motives is comparatively nothing,—that unless men are impelled to speak the truth by fear of disgrace or of legal penalties, they care very little for the sanctions of religion. Bu& the truth is, that the sanctions of religion are in a great degree either brought into operation, or prevented from operating, by these secondary motives. Religious sanctions necessarily follow the judgments of the mind; if a man by any means becomes convinced that a given action is wrong the religious obligation to refrain from it follows. Now the judgments of men respecting right and wrong are very powerfully affected by public opinion. It commonly happens that that which a man has been habitually taught to think wrong he does think wrong. Men are thus taught by public opinion. So that if the public attach disgrace to any species of mendacity or perjury, the religious sanction will commonly apply to that species. If there are instances of mendacity or perjury to which public disapprobation does not attach,—to those instances the religious sanction will commonly not apply, or apply but weakly. The power of public opinion in binding to veracity is therefore twofold. It has its direct influence arising from the fear which all men feel of the disapprobation of others, and the indirect influence arising from the fact that public opinion applies the sanctions of religion.

  III. Of the influence of legal penalties in binding to veracity little needs to be said. It is obvious that if they induce men to refrain from theft and violence, they will induce men to refrain from perjury. But it may be remarked, that the legal penalty tends to give vigour and efficiency to public opinion. He whom the law punishes as a criminal is generally regarded as a criminal by the world.

  Now that which we affirm is this,—that unless public opinion or legal penalties enforce veracity, very little will be added by an oath to the motives to veracity more than would subsist in the case of simple affirmation. The observance of the Oxford statutes¹ is promised by the members on oath,—yet no one observes them. They swear to observe them, they imprecate the Divine vengeance if they do not observe them, and yet they disregard them every day. The oath then is of no avail. An oath, as such, does not here bind men’s consciences. And why! Because those sanctions by which men’s consciences are bound are not applied. The law applies none: public opinion applies none: and therefore the religious sanction is weak; too weak with most men to avail. Not that no motives founded upon religion present themselves to the mind; for I doubt not there are good men who would refuse to take these oaths simply in consequence of religious motives: but constant experience shows that these men are comparatively few; and if any one should say that upon them an oath is influential, we answer, that they are precisely the very persons who would be bound by their simple promises without an oath.

  The oaths of jurymen afford another instance. Jurymen swear that they will give a verdict according to the evidence, and yet it is perfectly well known that they often assent to a verdict which they believe to be contrary to that evidence. They do not all coincide in the verdict which the foreman pronounces; it is indeed often impossible that they should coincide. This perjury is committed by multitudes; yet what juryman cares for it, or refuses, in consequence of his oath, to deliver a verdict which he believes to be improper? The reason that they do not care is, that the oath as such does not bind their consciences. It stands alone. The public do not often reprobate the violation of such oaths; the law does not punish it; jurymen learn to think that it is no harm to violate them; and the resulting conclusion is, that the form of an oath cannot and does not supply the deficiency: it cannot and does not apply the religious sanction.

  Step a few yards from the jury-box to the witness-box, and you see the difference. There public opinion interposes its power,—there the punishment of perjury impends,—there the religious sanction is applied,—and there, consequently, men regard the truth. If the simple intervention of an oath was that which bound men to veracity, they would be bound in the jury-box as much as at ten feet off: but it is not.

  A custom-house oath is nugatory even to a proverb. Yet it is an oath: yet the swearer does stake his salvation upon his veracity; and still his veracity is not secured. Why? Because an oath, as such, applies to the minds of most men little or no motive to veracity. They do not in fact think that their salvation is staked, necessarily, by oaths. They think it is either staked or not, according to certain other circumstances quite independent of the oath itself. These circumstances are not associated with custom-house oaths, and therefore they do not avail. Churchwardens’ oaths are of the same kind. Upon these, Gisborne remarks,—” In the successive execution of the office of churchwarden, almost every man above the rank of a day labourer, in every pariah in the kingdom, learns to consider the strongest sanction of truth as a nugatory form.” This is not quite accurate. They do not learn to consider the strongest sanction of truth as a nugatory form, but they learn to consider oaths as a nugatory form. The reality is, that the sanctions of truth are not brought into operation, and that oaths, as such, do not bring them into operation.

  We return then to our proposition.—Unless public opinion or legal penalties enforce veracity, very little is added by an oath to the motives to veracity, more than would subsist in the case of simple affirmation.

  It is obvious that the legislature might, if it pleased, attach the same penalties to falsehood as it now attaches to perjury; and therefore all the motives to veracity which are furnished by the law in the case of oaths might be equally furnished in the case of affirmation. This is in fact done by the legislature in the case of the Society of Friends.

  It is also obvious that public opinion might be applied to affirmation much more powerfully than it is now. The simple circumstance of disusing oaths would effect this. Even now, when the public disapprobation is excited against a man who has given false evidence in a court of justice, by what is it excited? by his having broken his oath, or by his having given false testimony? It is the falsehood which excites the disapprobation, much more than the circumstance that the falsehood was in spite of an oath. This public disapprobation is founded upon the general perception of the guilt of false testimony and of its perniciousness. Now if affirmation only was employed, this public disapprobation would follow the lying witness, as it now follows, or nearly as it now follows, the perjured witness. Every thing but the mere oath would be the same,—the fear of penalties, the fear of disgrace, the motives of religion would remain; and we have just shown how little a mere oath avails. But we have artificially diminished the public reprobation of lying by establishing oaths. The tendency of instituting oaths is manifestly to diffuse the sentiment that there is a difference in the degree of obligation not to lie, and not to swear falsely. This difference is made, not so much by adding stronger motives to veracity by an oath, as by deducting from the motives to veracity in simple affirmations. Let the public opinion take its own healthful and unobstructed course, and falsehood in evidence will quickly be regarded as a flagrant offence. Take away oaths, and the public reprobation of falsehood will immediately increase in power, and will bring with its increase an increasing efficiency in the religious sanction. The present relative estimate of lying and perjury is a very inaccurate standard by which to judge of the efficiency of oaths. We have artificially reduced the abhorrence of lying, and then say that that abhorrence is not great enough to bind men to the truth.

  Our reasoning then proceeds by these steps. Oaths are designed to apply a strong religious sanction: they however do not apply it unless they are seconded by the apprehension of penalties or disgrace. The apprehension of penalties and disgrace may be attached to falsehood, and with this apprehension the religious sanction will also be at1ached to it. Therefore, all those motives which bind men to veracity may be applied to falsehood as well as to oaths. In other words, oaths are needless.

  But in reality we have evidence of this needlessness from every-day experience. In some of the most important of temporal affairs an oath is never used. The Houses of Parliament, in their examinations of witnesses, employ no oaths. They are convinced (and therefore they have proved) that the truth can be discovered without them. But if affirmation is thus a sufficient security for veracity in the great questions of a legislature, how can it be insufficient in the little questions of private life?

  There is a strange inconsistency here. That same parliament which declares, by its every—day practice, that oaths are needles, continues, by its every—day practice, to impose them I Even more: those very men who themselves take oaths as a necessary qualification for their duties as legislators, proceed to the exercise of these duties upon the mere testimony of other men!—Peers are never required to take oath, in delivering their testimony, yet no one thinks that a peer’s evidence in a court of justice may not be as much depended upon as that of him who swears. Why are peers in fact bound to veracity though without an oath? Will you say that the religious sanction is more powerful upon lords than upon other men? The supposition were ridiculous. How then does it happen? You reply, Their honour binds them. Very well; that is the same as to say that public opinion binds them. But then he who says that honour, or any thing else besides pure religious sanctions, binds men to veracity, impugns the very grounds upon which oaths are defended.

  Oath evidence, again, is not required by courts—martial. But can any man assign a reason why a person who would speak the truth on affirmation before military officers would not speak it on affirmation before a judge? Arbitrations, too, proceed often, perhaps generally, upon evidence of parole. Yet do not arbitrators discover the truth as well u courts of justice? and if they did not it would be little in favour of oaths, because a part of the sanction of veracity is, in the case of arbitrations, withdrawn.

  But we have even tried the experiment of affirmations in our own courts of justice, and tried it for some ages past. The Society of Friends uniformly give their evidence in courts of law on their words alone. No man imagines that their words do not bind them. No legal court would listen with more suspicion to a witness because he was a Quaker. Here all the motives to veracity are applied: there is the religious motive which, in such cases, all but desperately bad men feel: there is the motive of public opinion: and there is the motive arising from the penalties of the law. If the same motives were applied to other men, why should they not be as effectual in securing veracity as they are upon the Quakers.

  We have an example even yet more extensive. In all the courts of the United States of America no one is obliged to take an oath. What are we to conclude? Are the Americans so foolish a people that they persist in accepting affirmations, knowing that they do not bind witnesses to truth? Or, do the Americans really find that affirmations are sufficient? But one answer can be given: They find that affirmations are sufficient: they prove undeniably that oaths are needless. No one will imagine that virtue on the other 1ide the Atlantic is so much greater than on this, that, while an affirmation is sufficient for an American oath is necessary here.

  So that whether we inquire into the moral lawfulness of oaths, they are not lawful; or into their practical utility, they are of little use, or of none.

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^{1 See p. 163.}

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