146

FALSEHOODS OF LEGAL DOCUMENTS.

[ESSAY II.

master lies. An uninitiated servant suffers a shock to his moral principles when he is first required to tell these falsehoods. It diminishes his previous abhorrence of lying, and otherwise deteriorates his moral character. Even if no such ill consequences resulted from this foolish custom, there is this objection to it, which is short but sufficient,—nothing can be said in its defence.

Among the prodigious multiplicity of falsehoods which are practised in legal processes, the system of pleading not guilty is one that appears perfectly useless. By the rule, that all who refused to plead were presumed to be guilty, prisoners were in some sort compelled to utter this falsehood before they could have the privilege of a trial. The law is lately relaxed; so that a prisoner, if he chooses, may refuse to plead at all. Still, only a part of the evil is removed, for even now, to keep silent may be construed into a tacit acknowledgment of guilt, so that the temptation to falsehood is still exhibited. There is no other use in the custom of pleading guilty or not guilty, but that, if a man desires to acknowledge his guilt, he may have the opportunity; and this he may have without any custom of the sort.-It cannot be doubted that the multitude of falsehoods which obtain in legal documents during the progress of a suit at law, have a powerful tendency to propagate habits of mendacity. A man sells goods to the value of twenty pounds to another, and is obliged to enforce payment by law. The lawyer draws up, for the creditor, a Declaration in Assumpsit, stating that the debtor owes him forty pounds for goods sold, forty pounds for work done, forty pounds for money lent, forty pounds for money expended on his account, forty pounds for money received by the debtor for the creditor, and so on,-and that two or three hundred pounds being thus due to the creditor, he has a just demand of twenty pounds upon the debtor! These falsehoods are not onehalf of what an every day Declaration in Assumpsit contains. If a person refuses to give up a hundred head of cattle which a farmer has placed in his custody, the farmer declares that he "casually lost" them, and that the other party "casually found" them: and then, instead of saying he casually lost a hundred head of cattle, he declares that it was a thousand bulls, a thousand cows, a thousand oxen, and a thousand heifers!*-I do not think that the habits of mendacity which such falsehoods are likely to encourage are the worst consequences of this unhappy system, but they are seriously bad. No man who considers the influence of habit upon the mind can doubt that an ingenuous abhorrence of lying is likely to be diminished by familiarity with these extravagant falsehoods.

* See the Form, 2 Chitty on Pleading, p. 370.

"An oath is that whereby we call God to witness the truth of what we say, with a curse upon ourselves, either implied or expressed, should it prove false."*

A CURSE. Now supposing the Christian Scriptures to contain no inform ation respecting the moral character of oaths, how far is it reasonable, or prudent, or reverent, for a man to stake his salvation upon the truth of what he says? To bring forward so tremendous an event as "everlasting destruction from the presence of the Lord," in attestation of the offence perhaps of a poacher, or of the claim to a field, is surely to make, unwarrantably, light of most awful things. This consideration applies, even if a man is sure that he speaks the truth: but who is, beforehand, sure of this? Oaths in evidence, for example, are taken before the testimony is given. A person swears that he will speak the truth. Who, I ask, is sure that he will do this? Who is sure that the embarrassment of a public examination, that the ensnaring questions of counsel, that the secret influence of inclination or interest, will not occasion him to utter one inaccurate expression? Who, at any rate, is so sure of this that it is rational, or justifiable, specifically to stake his salvation upon his accuracy? Thousands of honest men have been mistaken; their allegations have been sincere, but untrue. And if this should be thought not a legiti mate objection, let it be remembered that few men's minds are so sternly upright that they can answer a variety of questions upon subjects on which their feelings, and wishes, and interest are involved, without some little deduction from the truth, in speaking of matters that are against their cause, or some little over-colouring of facts in their own favour. It is a circumstance of constant occurrence, that even a well-intentioned witness adds to or deducts a little from the truth. Who then, amid such temptation, would make, who ought to make, his hope of heaven dependent on his strict adherence to accurate veracity? And if such considerations indicate the impropriety of swearing upon subjects which affect the lives, and liberties, and property of others, how shall we estimate the impropriety of using these dreadful imprecations to attest the delivery of a summons for a debt of half-a-crown!

These are moral objections to the use of oaths independently of any reference to the direct moral law. Another objection of the same kind is this: To take an oath is to assume that the Deity will become a party

* Milton: Christian Doctrine, p. 579.

148

MATT. V. 33.-OATHS OF THE ANCIENT JEWS. [ESSAY II.

Is it not irreverent, and

in the case,—that we can call upon Him, when we please, to follow up by the exercise of His almighty power, the contracts (often the very insignificant contracts) which men make with men. for that reason immoral, to call upon him to exercise this power in reference to subjects which are so listen with patience to their details? The objection goes even further. insignificant that other men will scarcely A robber exacts an oath of the man whom he has plundered, that he will not attempt to pursue or to prosecute him. Pursuit and prosecution are duties; so then the oath assumes that the Deity will punish the swearer in futurity if he fulfils a duty. enterprise bind one another to secrecy and to mutual assistance, by Confederates in a dangerous and wicked oaths, assuming that God will become a party to their wickedness, and if they do not perpetrate it will punish them for their virtue.

Upon every subject of questionable rectitude that is sanctioned by habit and the usages of society, a person should place himself in the independent situation of an inquirer. He should not seek for arguments to defend an existing practice, but should simply inquire what our practice ought to be. ment of public institutions consists in this circumstance, that most men One of the most powerful causes of the slow amendendeavour rather to justify what exists than to consider whether it ought to exist or not. therefore invite the reader, in considering the citation which follows, to This cause operates upon the question of oaths. We suppose himself to be one of the listeners at the mount,-to know nothing of the customs of the present day, and to have no desire to justify them.

"Ye have heard that it hath been said by them of old time, Thou shalt not forswear thyself, but shall perform unto the Lord thine oaths. But I say unto you, Swear not at all: neither by heaven, for it is God's throne; nor by the earth, for it is his footstool; neither by Jerusalem, for it is the city of the Great King. Neither shalt thou swear by thy head, because thou canst not make one hair white or black. But let your communication be yea yea, nay nay; for whatsoever is more than these cometh of evil."*

If a person should take a New Testament and read these words to ten intelligent Asiatics who had never heard of them before, does any man believe that a single individual of them would think that the words did not prohibit all oaths? I lay stress upon this consideration: if ten unbiased persons would, at the first hearing, say the prohibition was universal, we have no contemptible argument that that is the real meaning of the words. For to whom were the words addressed? Not to schoolmen, of whom it was known that they would make nice distinctions and curious investigations; not to men of learning, who were in the habit of cautiously weighing the import of words, but to a multitude,-a mixed and unschooled multitude. was addressed; it was to such apprehensions that its form was adapted. It was to such persons that the prohibition "It hath been said of old time, Thou shalt not forswear thyself." Why refer to what was said of old time? For this reason assuredly; to point out that the present requisitions were different from the former; that what was prohibited now was different from what was prohibited before. And what was prohibited before? Swearing falsely, swearing and not performing. What then could be prohibited now? Swearing truly,-swearing, even, and performing: that is, swearing at all; for it is manifest that

Matt. v. 33-37.

CHAP. 7.]

MILTON-PALEY.

149 if truth may not be attested by an oath, no oath may be taken. Of old time it was said, "Ye shall not swear by my name falsely." 99 "If a man swear an oath to bind his soul with a bond, he shall not break his word." There could be no intelligible purpose in contradistinguishing the new precept from these, but to point out a characteristic difference; and there is no intelligible characteristic difference but that which denounces all oaths. Such were the views of the early Christians. "The old law," says one of them, "is satisfied with the honest keeping of the oath, but Christ cuts off the opportunity of perjury." In acknowledging that this prefatory reference to the former law is in my view absolutely conclusive of our Christian duty, I would remark, as an extraordinary circumstance, that Dr. Paley, in citing the passage, omits this introduction, and takes no notice of it in his argument.

"I say unto you, Swear not at all." The words are absolute and exclusive.

"Neither by heaven, nor by the earth, nor by Jerusalem, nor by thy own head." Respecting this enumeration it is said that it prohibits swearing by certain objects, but not by all objects. To which a sufficient answer is found in the parallel passage in James. "Swear not," he says; "neither by heaven, neither by the earth, neither by any other oath." This mode of prohibition, by which an absolute and universal rule is first proposed and then followed by certain examples of the prohibited things, is elsewhere employed in Scripture. "Thou shalt have no other gods before me. Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth." No man supposes that this after-enumeration was designed to restrict the obligation of the law,-Thou shalt have no other gods before me. Yet it were as

reasonable to say that it was lawful to make idols in the form of imaginary monsters because they were not mentioned in the enumeration, as that it is lawful to swear any given kind of oath because it is not mentioned in the enumeration. Upon this part of the prohibition it is curious that two contradictory opinions are advanced by the defenders of oaths. The first class of reasoners say, the prohibition allows us to swear by the Deity, but disallows swearing by inferior things. The second class say, the prohibition allows swearing by inferior things, but disallows swearing by the Deity. Of the first class is Milton. The injunction, he says, "does not prohibit us from swearing by the name of God, we are only commanded not to swear by heaven, &c." But here again the Scripture itself furnishes a conclusive answer. It asserts that to swear by heaven is to swear by the Deity: "He that shall swear by heaven sweareth by the throne of God, and by Him that sitteth thereon."** To prohibit swearing by heaven is therefore to prohibit swearing by God. Among the second class is Dr. Paley. He says, "On account of the relation which these things [the heavens, the earth, &c.] bore to the Supreme Being, to swear by any of them was in effect and substance to swear by Him; for which reason our Saviour says, Swear not at all; that is, neither directly by God nor indirectly by any thing related to him." But if we are thus prohibited from swearing by any thing related to Him, how happens it that Paley proceeds to justify judicial oaths?

Lev. xix. 12.

+ Numb. xxx. 2.

+ Basil.

1 Exod. xx. 3. See also xx. 4. ¶ Christian Doctrine, p. 582. tt Moral and Political Philosophy, b. 3, p. 1, c. 16.

James v. 12. ** Matt. xxiii. 22.

150

IMMORALITY OF OATHS:

[ESSAY IL Does not the judicial deponent swear by something related to God? Does he not swear by something much more nearly related than the earth or our own heads? Is not our hope of salvation more nearly related than a member of our bodies? But after he has thus taken pains to show that swearing by the Almighty was especially forbidden, he enforces his general argument by saying that Christ did swear by the Almighty! He says that the high-priest examined our Saviour upon oath, "by the living God;" which oath he took. This is wonderful; and the more wonderful because of these two arguments the one immediately follows the other. It is contended, within half a dozen lines, first that Christ forbade swearing by God, and next that he violated his own command.

"But let your communication be yea yea, nay nay." This is remarkable: it is positive superadded to negative commands. We are told not that only what we ought not, but what we ought to do. It has indeed been said the expression "your communication" fixes the meaning to apply to the ordinary intercourse of life. But to this there is a fatal objection: the whole prohibition sets out with a reference, not to conversational language, but to solemn declarations on solemn occasions. Oaths "to the Lord," are placed at the head of the passage; and it is too manifest to be insisted upon that solemn declarations, and not every-day talk, were the subject of the prohibition.

"Whatsoever is more than these cometh of evil." This is indeed most accurately true. Evil is the foundation of oaths: it is because men are bad that it is supposed oaths are needed: take away the wickedness of mankind, and we shall still have occasion for No and Yes, but we shall need nothing more than these. And this consideration furnishes a distinct motive to a good man to decline to swear. To take an oath is tacitly to acknowledge that this "evil" exists in his own mind,-that with him Christianity has not effected its destined objects.

From this investigation of the passage, it appears manifest that all swearing upon all occasions is prohibited. Yet the ordinary opinion, or rather perhaps the ordinary defence is, that the passage has no reference to judicial oaths.-"We explain our Saviour's words to relate, not to judicial oaths, but to the practice of vain, wanton, and unauthorized swearing in common discourse." To this we have just seen that there is one conclusive answer: our Saviour distinctly and specifically mentions, as the subject of his instructions, solemn oaths. But there is another conclusive answer even upon our opponents' own showing. They say, first, that Christ described particular forms of oaths which might be employed, and next that his precepts referred to wanton swearing; that is to say, that Christ described what particular forms of wanton swearing he allowed and what he disallowed! You cannot avoid this monstrous conclusion. If Christ spoke only of vain and wanton swearing, and if he described the modes that were lawful, he sanctioned wanton swearing, provided we swear in the prescribed form.

With such distinctness of evidence as to the universality of the prohibition of oaths by Jesus Christ, it is not in strictness.necessary to refer to those passages in the Christian Scriptures which some persons adduce in favour of their employment. If Christ have prohibited them, nothing else can prove them to be right. Our reference to these passages will accordingly be short.

"I adjure thee by the living God that thou tell us whether thou be the Christ, the Son of God." To those who allege that Christ, in answering