The Moral Character, Obligations, and Effects of Particular Oaths.

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

  IN reading the paragraphs which follow respecting several of the specific oaths which are imposed in this country, the reader should remember that the evils with which they are attended would almost equally attend affirmations in similar circumstances. Our object, therefore, is less to illustrate their nature as oaths, than as improper and vicious engagements. With respect to the interpretation of a particular oath, it is obviously to be determined by the same rule as that of promises. A man must fulfil his oath in that sense in which he knows the impossible designs and expects him to fulfil it. And he must endeavour to ascertain what the imposer’s expectation is. To take an oath in voluntary ignorance of the obligations which it is intended to impose, and to excuse ourselves for disregarding them because we do not know what they are, cannot surely be right. Yet it is often difficult, sometimes impossible, to discover what an oath requires. The absence of precision in the meaning of terms, the alteration of general usages while the forms of oaths remain the same, and the original want of explicitness of the found themselves, throw sometimes insuperable obstacles in the way of discovering, when a man takes an oath, what it is that he binds himself to do. This is manifestly a great evil: and it is chargeable primarily upon the custom of exacting oaths at all. It is in general a very difficult thing to frame an unobjectionable oath,—an oath which shall neither be so lax as to become nugatory by easiness of evasion and uncertainty of meaning, nor so rigid as to demand in words more than the imposer wishes to exact, and thus to ensnare the consciences of those who take it. The same objections would apply to forms of affirmation. The only effectual remedy is to diminish, or if it were possible to abolish, the custom of requiring men to promise beforehand to pursue a certain course of action. How is non-fulfilment of these engagements punished? By fine, or imprisonment, or some other mode of penalty? Let the penalty, let the sanction remain, without the promise or the oath. A man swears allegiance to a prince: if he becomes a traitor he is punished, not for the breach of his oath, but for his treason. Can you not punish his treason without the oath? A man swears he has not received a bribe at an election. If he does receive one, you send him to prison. You could u easily send him thither if he had not sworn. You reply,—But by imposing the oath we bind the swearer’s conscience. Alas, we have seen, and we shall presently again see, that this plan of binding men is of little effect. There is one kind of affirmation that appears to involve absurdity. I mean that by which a man affirms that he will speak the truth. Of what use is the affirmation? The affirmant is not bound to veracity more than he was before he made it. It is no greater lie to speak falsely after an affirmation than before.

  OATH OF ALLEGIANCE. “I do sincerely promise and swear that I will be faithful, and bear true allegiance, to his majesty King George.” On the propriety of exacting these political oaths we shall offer some observations in the next Essay.¹ At present we ask, What does the oath of allegiance mean? Set a hundred men each to write an exact account of what the party here promises to do, and I will undertake to affirm that not one in the hundred will agree with any other individual. “I will be faithful:” What is meant by being faithful? What is the extent of the obligation, and what are its limits? “I will bear true allegiance:” What does allegiance mean? Is it synonymous, with fidelity? Or does it embrace a wider extent of obligation, or a narrower? And if either, how is the extent ascertained? The oath was, I believe, made purposely indefinite: the old oath of allegiance was more discriminative. But no form can discriminate the duty of a citizen to his rulers, unless you make it consist of a political treatise: and no man can write a treatise with definitions to which all would subscribe. The truth is that no one knows what the oath of allegiance requires. Paley attempts, in six separate articles, to define its meaning: one of which definitions is, that the oath excludes all design at the time, of attempting to depose the reigning prince.”² At the time! Why the oath is couched in the future tense. Its express purpose is to obtain a security for future conduct. The swearer declares, not what he then designs, but what, in time to come, he will do. Another definition is, “it permits resistance to the king when his ill behaviour or imbecility is such as to make resistance beneficial to the community;”³ But how or in what manner “fidelity and true allegiance” means” resistance,” casuistry only can tell. We may rest assured that after all attempts at explanation, the meaning of the oath will be, at the least as doubtful as before. Nor is there any remedy. The fault is not in the form, for no form can be good; but in the imposition of any oath of allegiance. The only means of avoiding the evil is by abolishing the oath. Besides, what do oaths of allegiance avail in those periods of disturbance in which princes are commonly displaced? What revolution has been prevented by oaths of allegiance?

  Yet if the oath does no good, it does harm. It is always doing harm to exact promises from men who cannot know beforehand whether they will fulfil them. And as to the ambiguity, it is always doing harm to require men to stake their salvation upon doing—they know not what.

  OATHS IN EVIDENCE. “The truth, the whole truth, and nothing but the truth, touching the matter in question.” Is the witness to understand by this that if he truly answers all questions that are put to him, he conforms to the requisitions of the oath? If he is, the terms of the oath are very exceptionable; for many a witness may give true answers to a counsel, and yet not tell “the whole truth.” Or does the oath bind him to give an exact narrative of every particular connected with the matter in question, whether asked or not! If it does, multitudes commit perjury. How then shall a witness act? Shall he commit perjury by withholding all information but that which is asked? Or shall he be ridiculed and perhaps silenced in court for attempting to narrate all that lie has sworn to disclose? Here again the morality of the people is injuriously affected. To take an oath to do a certain prescribed act, and then to do only just that which custom happens to prescribe, is to ensnare the conscience and practically to diminish the sanctions of veracity. The evil may be avoided either by disusing all previous promises to speak the truth, or to adapt the terms of the promise (if that can be done) to the duties which the law or which custom expects. “You shall true answer make to all such questions as shall be asked of you,” is the form when a person is sworn upon a voir dire; and if this is all that the law expects when he is giving evidence, why not use the same form? If however, in deference to the reasonings against the use of any oaths, the oath in evidence were abolished, no difficulty could remain; for to promise in any form to speak the truth is, as we have seen, absurd.

  While the oath in evidence continues to be imposed, it is not an easy task to determine in what sense the witness should understand it. If you decide by the meaning of the legislature which imposed the oath, it appears manifest that he should tell all he knows whether asked or not. But what, it may be asked, is the meaning of a law, but that which the authorized expounders of the law determine? And if they habitually admit an interpretation at variance with the terms of the oath, is not their sanction an authoritative explanation of the legislature’s meaning! These are questions which I pretend not with confidence to determine. The mischiefs which result from the uncertainty are to be charged upon the legislatures which do not remove the evil. I would however suggest that the meaning of a form in such cases is to be sought, not so much in the meaning of the original imposers, as in that of those who now sanction the form by permitting it to exist. This doubtless opens wide the door to extreme licentiousness of interpretation. Nor can that door be closed. There is no other remedial measure than an alteration of the forms or an abolition of the oath.

  MILITARY OATH. “I swear to obey the orders of the officers who are set over me: So help me God.” And suppose an officer orders him to do something which morality forbids,—his oath then stands thus: “I swear to obey man rather than God.” The profaneness is shocking. Will any extenuation be offered, and will it be said that the military man only swears to obey the virtuous orders of his superiors We deny the fact: the oath neither means nor is intended to mean any such thing, It may indeed by possibility happen that an officer may order his inferior to do a thing which a court-martial would not punish him for refusing to do. But if the law intends to allow such exceptions, what excuse is there for making the terms of the oath absolute? Is it not teaching military men to swear they care not what, thus to make the terms of the oath one thing and its meaning another? But the real truth is, that neither the law nor courts-martial allow any such limitations in the meaning of the oath as will bring it within the limits of morality, or of even a decent reverence to Him who commands morality to man. They do not intend to allow the moral law to be the primary rule to the soldier. They intend the contrary: and the soldier does actually swear that if he is ordered so to do, he will violate the law of God. Of this impiety what is the use? Does any one imagine that a soldier obeys his superiors because he has sworn to obey them? It were ridiculous. When courts-martial inflict a punishment, they inflict it, not for perjury, but to, disobedience.

  I would devote two or three sentences to the observation that the military oath is sui generis. So far at least as my information extends, no other oath is imposed which promises unconditional obedience to other, men; no other oath exists by which a man binds himself to violate the laws of God. Why does the military oath thus stand alone, the explicit contemner of the obligations of morality?—Because it belongs to a custom which itself contemns morality. Because it belongs to a custom which “repeals all the principles of virtue.” Because it belongs to war. There is a lesson couched in this, which he who has ears to hear will find to be pregnant with instruction.

  OATH AGAINST BRIBERY AT ELECTIONS. “I do swear I have not received, or had, by myself or any person whatsoever in trust for me, or for my use and benefit, directly or indirectly, any sum or sums of money; office, place, or employment; gift or reward; or any promise or 1ecurity for any money, office, employment, or gift, in order to gain my vote at this election.” This is an attempt to secure incorruptness by extreme accuracy in framing the oath. With what success public experience tells. No bribery oath will prevent bribery. It wants efficient sanctions,—punishment by the law and reprobation by the public. A man who possesses a vote in a close borough, and whose neighbours and their fathers have habitually pocketed a bribe at every election, is very little under the influence of public opinion. That public with which he is connected does not reprobate the act, and be learns to imagine it is of little moral turpitude. As to legal penalties, they are too unfrequently inflicted or too difficult of infliction to be of much avail. Why then is this nursery of perjury continued? Which action should we most deprecate, that of the voter who perjures himself for a ten pound note, or that of the legislator who so tempts him to perjury by imposing an oath which he knows will be violated? If bribery be wrong, punish it; but it is utterly indefensible to exact oaths which everybody knows will be broken. Not indeed that any thing in the present state of the representation will prevent bribery. We may multiply oaths and denounce penalties without end, yet bribery will still prevail. But though bribery be inseparable from the system, perjury is not. We should abolish one of the evils if we do not or cannot abolish both.

  As to those endless contrivances by which electors avoid the arm of the law, and hope to avoid the guilt of perjury, they are, as it respects guilt, all and always vain. The intention of the legislature was to prevent bribery, and he who is bribed violates his oath whether he violates its literal terms or not. The shopkeeper who sells a yard of cloth to a candidate for twenty pounds is just as truly bribed, and he just as truly commits perjury as if the candidate had said, I give you this twenty pound note to tempt you to vote for me. These men may evade legal penalties: there is a power which they cannot evade.

  OATH AGAINST SIMONY. The substance of the oath is, “I do swear that I have made no simoniacal payment for obtaining this ecclesiastical place. So help me God through Jesus Christ!” The patronage of livings, that is, the legal right to give a man the ecclesiastical income of a pariah, may, like other property, be bought and sold. But though a period may legally sell the power of giving the income, he may not sell the income itself; the reason it may be presumed being, that a person who can only give the income will be more likely to bestow it upon such a clergyman aa deserves it, than if he sold it to the highest bidder. It may however he observed in passing, that the security for the judicious presentation for church preferment is extremely imperfect; for the law, while it tries to take care that preferment shall be properly bestowed takes no care hat the power of bestowing it shall be intrusted to proper hands. The least virtuous man or woman in a district may possess this power; and it were vain to expect that they will be very solicitous to assign careful shepherds to the Christian flocks.

  To prevent the income from being bought and sold, the law requires the accepter of a living to swear that he has made no simoniacal payment for it. What then is simony? To answer this question the clergyman must have recourse to the definitions of the law. Simony is of various kinds, and the clergyman who.is under strong temptation to make some contract with or payment to the patron, is manifestly in danger of making them in the fearing, doubting hope, that they are not simoniacal. And so he makes the arrangement, hardly knowing whether he has committed simony and perjury or not. This evil is seen and acknowledged: “The oath,” says a dignitary of the church, “lays a snare for the integrity of the clergy; and I do not perceive that the requiring of it in cases of private patronage produces any good effect sufficient to compensate for this danger.”

  UNIVERSITY OATHS. The various statutes of colleges, of which every member is obliged to promise the observance on oath, are become wholly or partly obsolete; some are needless and absurd, some illegal, and to some, perhaps, it is impossible to conform. Yet the oath to perform them is constantly taken. A man swears that he will speak, within the college, no language but Latin; and he speaks English in it every day. He swears he will employ so many hours out of every twenty-four in disputations; and does not dispute for days or weeks together. What remains then for those who take these oaths to do? To show that this is not perjury. Here is the field for casuistry! Here is the field in which ingenuity may exhibit its adroitness! in which sophistry may delight to range! in which Duns Scotus, if he were again in the world, might rejoice to be a combatant!—And what do ingenuity, and casuistry, and sophistry do? Oh! they discover consolatory truths; they discover that if the act which you promise to perform is unlawful, you may swear to perform it with an easy conscience; they discover that there is no harm in swearing to jump from Dover to Calais, because it is “impracticable;” they discover that it is quite proper to swear to do a foolish thing because it would be “manifestly inconvenient” and “prejudicial” to do it.—In a word, they discover so many agreeable things, that if the book of Cervantes were appended to the oath, they might swear to imitate all the deeds—of his hero, and yet remain quietly and innocently in a college all their lives.

  That nothing can be said in extenuation of those who take these oaths cannot be affirmed; yet that the taking them is wrong, every man who simply consults his own heart will know. Even if they were wrong upon no other ground they would be so upon this—that if men were conscientious enough to refuse to take them, the “necessity” for taking them would soon be withdrawn. No man questions that these oaths are a scandal to religion and to religious men; no man questions that their tendency is to make the public think lightly of the obligation of an oath. They ought therefore to be abolished. It is imperative upon the legislature to abolish them, and it is imperative upon the individual, by refusing to take them, to evince to the legislature the necessity for its interference. Nothing is wanted but that private Christians should maintain Christian fidelity. If they did do this, and refused to tab these oaths, the legislature would presently do its duty. It needs not be feared that it would suffer the doors of the colleges to be locked up, because students were too conscientious to swear falsely. Thus, although the obligation upon the legislature is manifest, it possesses some semblance of an excuse for refraining from reform, since those who are immediately aggrieved, and who are the immediate agents of the offence, are so little concerned that they do not address even a petition for interference. That some good men feel aggrieved is scarcely to be doubted: let these remember their obligations: let them remember, that compliance entails upon posterity the evil and the offence, and sets, for the integrity of successors, a perpetual snare.

  It is an unhappy reflection that men endeavour rather to pacify the misgiving voice of conscience under a continuance of the evil, than exert themselves to remove it. Unschooled persons will always think that the usage is wrong. In truth, even after the licentious interpretations of the oaths have been resorted to,—after it has been shown what he who takes them does not promise, what imaginable security is there that he will perform that which he does promise,—that he will even know what he promises? None, Being himself the interpreter of the oath, and having resolved that the oath does not mean what it says, he is at liberty to think that it means any thing; or, which I suppose is the practical opinion, that it means nothing.—If we would remove the evil we must abolish the oath.

  Bishop Clayton said, “I do not only doubt whether the compilers of the Articles, but even whether any two thinking men, ever agreed exactly in their opinion, not only with regard to all the Articles, but even with regard to any one of them.”⁴ Such is the character of that aeries of propositions in which a man is required to declare his belief before he can become a minister in a Christian community. The event may easily be foreseen: some will refuse to subscribe; some will subscribe though it violates their consciences; some will subscribe regardless whether it be right or wrong; and some of course will be found to justify subscription.

  Of those who on moral grounds refuse to subscribe to that which they do not believe, it may be presumed that they are conscientious men,—men who prefer sacrificing their interests to their duties, These are the men whom every Christian church should especially desire to retain in its communion; and these are precisely the men whom the Articles exclude from the English church.

  As it respects those who perceive the impropriety of subscription and yet subscribe, whose consciences are wronged by the very act which introduces them into the church,—the evil is manifest and great. Chillingworth declared to Shelden that “if he subscribed, lie subscribed his own damnation,” yet not long afterward Chillingworth was induced to subscribe. Unhappy, that they who are about to preach virtue to others should be initiated by a violation of the moral law!

  With respect to those who subscribe heedlessly and without regard to their belief or disbelief of the Articles,—of what use is subscription f It is designed to operate as a test, but what test is it to him who would set Ilia name to the Articles if they were exactly the contrary of what they are? If conscientiousness keeps some men out of the church the want of conscientiousness lets others in. The contrivance is admirably adapted to an end;—but to what end? To the separation of the more virtuous from the leas, and to the admission of the latter.

  A reader who was a novice in these affairs would ask, in wonder, for what purpose is subscription exacted? If the Articles are so objectionable, and if subscription is productive of so much evil, why are not the Articles revised, or why is subscription required at all? These are reasonable questions. They involve, however, political considerations; and in the Political Essay we hope to give such an inquirer satisfaction respecting them.

  And with respect to the justifications that are offered of subscribing to doctrines which are not believed, it is manifest that they must set out with the assumption that the words of the Articles mean nothing,—that we are not to seek for their meaning in their terms but in some other quarter. It is hardly necessary to remark, that when this assumption is made, the inquirer is launched upon a boundless ocean, and though he has to make his way to a port, possesses neither compass nor helm, and can see neither sun nor star. Who can assign any limit to license of interpretation when it is once agreed that the words themselves mean nothing? The world is all before us, and we have to seek a place of rest from Pyrrhonism wherever we can find it. We are told to go back to Queen Elizabeth’s days, and to find out, if we can, what the legislature who framed the Articles meant: always premising that we are not to judge of what they meant by what they said. How is it discovered that they did not mean what they said? By a process of most convincing argumentation; which argumentation consists in this, “It is difficult to conceive how” they could have meant it!⁵ These are agreeable and convenient solutions; but they are not true.

  “They who contend that nothing less can justify subscription to the Thirty-nine Articles than the actual belief of each and every separate proposition contained in them, must suppose that the legislature expected the consent of ten thousand men, and that in perpetual succession, not to one controverted proposition, but to many hundreds. It is difficult to conceive how this could be expected by any who observed the incurable diversity of human opinion upon all subjects short of demonstration.”⁶ Now it appears that the legislature of Elizabeth actually did require uniformity of opinion upon these controverted points. Such baa been the decision of the judges. “One Smyth subscribed to the said Thirty-nine Articles of religion with this addition,—so far forth as the same were agreeable to the Word of God; and it was resolved by Wray, chief justice in the King’s Bench, and all the judges of England, that this subscription was not according to the statute of 13th Eliz. Because the statute required an absolute subscription, and this subscription made it conditional: and that this act was made for avoiding diversity of opinions, &c.; and by this addition the party might, by his own private opinion, take some of them to be against the Word of God, and by this means diversity of opinions should not be avoided, which was the scope of the statute; and the very act made touching subscription, of none effect.”⁷

  This overthrows the convenient explanations of modem times. It is agreed by those who offer these explanations, that the meaning of Elizabeth’s legislature is that by which they are bound. That meaning, then, is declared by all the judges of England to be, that subscribers should believe the propositions of the Articles. The modem explanations allow private opinion the liberty of thinking some of them to be “against the Word of God.” This was precisely the liberty which the legislature intended to preclude. The modern explanations affirm the Articles to be conditional, and, in fact, that they impose only a few general obligations; but unconditional subscription was the very thing which the legislature required. If a person should now express the condition which Smyth, as reported by Coke, expressed, and should say, I believe the Articles so far as they are accordant with Christian truth,—it appears that his subscription would not be accepted; and yet this is what is done by perhaps every clergyman in England,—with this difference only, that the reservation is secretly made, and not frankly expressed. So that in reality, and according to the principles laid down by the apologists of subscription, almost every subscriber subscribes falsely.

  But what, it will be asked, is to be done? Refuse to subscribe. There is no other means of maintaining your purity, and perhaps no other means of procuring an abolition of the Articles. At least this means would be effectual. We may be sure that the legislature would revise or abolish them, if it was found that no one would subscribe. They would not leave the pulpits empty, in compliment to a barbarous relic of the days of Elizabeth. Perhaps it will be said, that although men of virtue refused to subscribe, the pulpits would still be filled with unprincipled men. The effect would speedily be the same: the legislature would not continue to impose subscription for the sake of excluding from the ministry all but bad men. Those who subscribe, therefore, bind the burden upon their own shoulders and upon the shoulders of posterity. The offence is great: the scandal to religion is great: and even if refusal to subscribe would not remove the evil, the question for the individual is, not what may be the consequences of doing his duty, but what his duty is. We want a little more Christian fidelity; a little more of that spirit which made our forefathers prefer the stake to tampering with their consciences.

——————————
^{1 Essay iii. c. 5.
2 Moral and Political Philosophy, b. 3, p. l, c. 18.
3 Ibid.
4 Confessional, 3d. Ed. p. 246.
5 Mor. and Pol. Phil. b. 3, p. 1, c. 22.
6 Ibid.
7 Coke: Instit. 4, cap. 74, p. 324.
8 These principles are, that the meaning of a promise or an oath is to be determined by the meaning of those who impose it. This, as a general rule, is true; but I repeat the doubt whether, in the case of antiquated forms, a proper standard of their meaning is not to be sought in the intention of the legislatures which now perpetuate those forms. This doubt, however, in whatever way it preponderates, will not afford a justification of subscribing to forms of which the terms are notoriously disregarded.}

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