Such scenes as this are not of very infrequent occurrence in courts of justice, and, like some of the other occurrences which take place there, they lead attentive observers to ask themselves several questions as to the nature of oaths, and the reasonableness of the use which is made of them, which neither the little girl nor the paternal chairman would have found it altogether easy to answer. What is an oath? What is the practical value of an oath? How far does our own practice square with true principles on this subject?
An oath is usually denned as "a calling God to witness;" but this is obviously a rhetorical phrase. Its defects are described by Jeremy Bentham, in language which, though not really profane, produces some of the effects of profanity by its picturesque and passionate vigour. The common theory, he says, ascribes to man a power over his Maker. It places the Almighty in the station of a sheriffs officer; it places him under the command of every justice of the peace." . . ."The notion which represents the common ceremony of an oath as entailing, and without recovery, guilt, with its inseparable appurtenance—future punishment—on the violators of it; and this independently of, and over and above whatever may be attached to the occasion; leaves to Divine Omnipotence no alternative. Bailiff to and under the human magistrate, the Divine Functionary has given bond for the execution—the constant, and punctual, and sure execution— of whatever writ shall be sent from the court below to the court above; for when the idea is so self-contradictory, language is at a loss how to phrase it." Startling as this language may sound, it is no doubt justified by any theory which ascribes to oaths some specific characteristic distinct from those which attach to all other assertions. A man would find it very hard to answer Bentham's argument, who maintained that there was some feature common to the conduct of the false witness, who attempts to take away the life of an innocent man by falsely accusing him of parricide; and that of every Fellow of Trinity College, Cambridge, who after swearing to obey the old statutes, omitted on certain occasions to talk Latin; but which was not to be found in the conduct of a Quaker, who made a false affirmation to precisely the same effect as the supposed testimony of the perjured witness. On the other hand, Bentham’s objection would not apply to a person who considered an oath merely as a prayer—a prayer to God to afflict and injure the supplicant if he failed to speak the truth, or to keep his word in relation to some given subject matter. Such a person, however, must agree in Bentham's conclusion that an oath is no more than a very solemn way of giving emphasis to an assertion, and of pledging the credit of the speaker to his sincerity in making it; and this may be implied by the circumstances where the form is absent, as in the case of the Quaker witness, or may be so qualified by circumstances as to be of little practical effect, though the form is unhappily and wrongly present, as in the case of swearing to the college statutes. This view of the subject is in itself the most reverent, and it is also the one which in all probability is held by the great majority of persons who are in the habit of reflecting with any accuracy on the language which they habitually use. The notion that the prayer, and not the falsehood, is the important thing—that the Deity regards not the immorality of the transaction, but the personal affront implied in asking him to testify to what is false—is a notion fitter for a heathen than a Christian, and is probably a remnant of heathen superstition. All experience shows that, in point of fact, this is so. Savage nations and uneducated classes place the greatest distinctive value on an oath, and lay the greatest stress on the difference between lying and perjury. It is said that in one of our Chinese establishments, if a Chinese witness is wanted really to tell the truth, he has to be taken to a remote temple, supposed to be inhabited by a god who has views as to perjury peculiar to himself, and is particularly severe on those who take a liberty with him on the subject. It is supposed that something dreadful will happen to a man who is so audacious as to go through certain prescribed formulas before his image with a dishonest intent. So tremendous is the anger of this mysterious power supposed to be that there is a general feeling that witnesses ought not to be required to swear by him unless some special necessity for having true evidence exists. To put a man under such a sanction is felt to be taking a mean advantage. This superstition is almost universal, and clings closer to all of us than we are aware, though it is strongest in the most ignorant, ill-instructed, and wicked. There are few stranger or darker corners of human experience than those which relate to this subject. No classes of men dread an oath more than the most abandoned vagrants and criminals. It has been often remarked that unlawful associations such as those which were for many years the curse of Ireland lay particular stress upon oaths. The same is true of gangs of criminals. In his earliest and one of his most powerful novels, Sir E. Lytton introduces, with much justice and great dramatic effect, a scene in which a professional robber swears to secresy as to other matters a murderer who is about to betray his associate. "I think," says the ruffian who administers the oath, "the Devil himself would not break that oath." The gipsies have oaths which terrify them, and ignorant and utterly mendacious members of the lowest class of Irish will often shrink from perjuring themselves on a particular relic, or will imagine that they avoid the penalty of their crime by kissing their thumbs, instead of kissing the cross on the Testament.
This, no doubt, is the extreme and consistent view of perjury, at something generically different from other forms of emphatic and deliberate falsehood. The fact that such a view is entertained by the very off-scourings of mankind is sometimes treated by persons who write or think on the subject as proof that there really is such a generic difference. Would these people, it is said, dread perjury so much and falsehood so little if they were substantially the same things? and can anything short of the irresistible power of truth compel those who have broken through all the restraints of human law, and all the checks of conscience, to tremble before a ceremony which in reality adds nothing to their guilt? One answer to this is, that it is impossible to underrate the value of the opinions of men of this kind upon any subject. No doubt upon certain points their feelings are keen, but the inferences which they draw from them are simply worthless. Their clouded minds and guilty consciences combine to possess them with a notion of their Maker, than which nothing more false, scandalous, and horrible can be imagined. They form to themselves a conception of a narrow, limited being, as capricious and moody as themselves, capable of being flattered and bribed on the one hand, and piqued on the other, keenly alive to anything like a breach of etiquette, and comparatively indifferent to a breach of morality. It is from this paltry and heathenish state of feeling that they infer that it is in their own power to apportion their Maker's judgment in particular cases; that by the use of particular ceremonies they can compel the infliction of a particular punishment for a particular falsehood, and so provide some security as between themselves for truth and honour after they have flung to the wind the securities already provided for them by the order of Providence. No sight is more hateful, and very few are more instructive, than that of men steeped in crime and utterly unworthy of the faintest confidence on any subject whatever, struggling to make themselves at artificial character for a particular purpose by the help of essentially blasphemous imprecations. Whether, in point of fact, such oaths really do effect their purpose, is a curious question on which it would be instructive to hear trustworthy evidence; but even if they do, the fact would prove, not that there really is any specific difference between perjury and falsehood, but that the most degraded part of the human race are led to think so by reason of their degradation, and by reason of the base views which it suggests to them on the most important of all subjects.
These views as to the nature of oaths do not show that they ought not to be administered. They show only what is their true nature and purport. When a reasonable man takes an oath to speak the truth, he expressly promises to do so to all the parties concerned, and by the form in which he makes this promise he records his own conviction that there is a God who imposes on him and all mankind in general—and on him specifically on that particular occasion—the duty of speaking the truth, and liability to punishment according to the circumstances of the case, in case of failure; and he further expressly states his own submission to and acquiescence in this state of things. No doubt it is quite true that all this is so, whether the person swearing says it or not. It is as true of a Quaker, who only affirms, as of members of other denominations who swear; and whether the person swearing says the words or not—whether, by a verbal address to the Almighty, he expresses his submission to, and acquiescence in, this constitution of things or not, his position is precisely the same. It is, however, no less true that the solemn expression of language has deep importance. It has the strongest possible effect upon parts of our nature which are quite as characteristic of human creatures as such, as any others, and which no one can afford to underrate—the imagination, namely, and the memory. It is by no means uncommon to write and speak as if the imagination was little better than a weakness, and was not fit to be trusted or employed in the serious business of life. It is, in fact, one of the most important parts of our nature. No one can do anything at all unless he has in his mind an image of the thing to be done, and unless he applies to his imagination appropriate stimulants on necessary occasions, he will be very apt to forget what it most concerns him to remember. We all know what would happen if a man were systematically to repress all those outward signs of courtesy and goodwill by which he is constantly impressed with the truth that his neighbours have feelings like himself, and that it is his place to conciliate and soothe them. Hence the solemn recalling to a man of the obligation of truth, and of the ultimate sanction of moral obligations in general, is matter of real and high importance, and would still be matter of high importance even if some of the associations and superstitions connected with it were by degrees to die away.
Such being the nature of an oath, what is its importance in practice? Whatever the theory may be, do oaths, in point of fact, impose a great restraint on mankind and furnish any considerable guarantee for the objects which they are generally supposed to secure? Several eminent men have used language on this point which experience appears hardly to justify. Tillotson, for instance, whose name it is impossible to mention without an expression of regret, on reflecting what the pulpit was 180 years ago, and what it is, and might, and ought to be, at the present day—Tillotson observes that "the use, and even necessity, of oaths is so great that human society can very hardly, if at all, subsist long without them. Government would many times be very insecure, and for the faithful discharge of offices of great trust, in which the welfare of the public is nearly concerned, it is not possible to find any security equal to that of an oath And where men's estates or lives are concerned, no evidence but what is assured by an oath will be thought sufficient to decide the matter so as to give full and general satisfaction to mankind.' So in the trial of Williams, for publishing Paine's Age of Reason, Lord Erskine, as counsel for the Crown, treated oaths as "the foundation of all our laws and the sanction of all justice." He said:—"What gives our court its jurisdiction? what but the oath which his lordship, as well as yourselves (the jury), have sworn upon the Gospel to fulfil?'' From this he argued that the jurisdiction of the court being founded on an oath, and the oath being sworn on the New Testament, attacks on the Bible were "attacks on the very foundations of the court's jurisdiction."
What amount of truth is there in general assertions like these? They are founded upon, and indeed assume, the well-known division of oaths into promissory and assertory oaths—those which bind a man to do something, and those which bind him to speak the truth; and it is remarkable that both Tillotson and Lord Erskine lay great stress on promissory oaths; indeed, they assign to them the most conspicuous place in their statement of the importance of an oath. You can have no other security, says Tillotson, for the performance of the duties of offices of high importance to the public. The jurisdiction of courts of justice is entirely based upon these, says Erskine; that is, in the absence of an oath you have no security for the integrity of judges or juries. No doubt the common practice of mankind favours this opinion. To say nothing of the importance which was attached to oaths in heathen times, and especially by the Romans, there can be no question that in Christian Europe they have played a most conspicuous part in the economy of all nations. So high was the common estimate of the importance of oaths, that people seem to have thought that it was impossible to put too much trust in them. In the earlier and ruder periods of our history oaths were used on every conceivable occasion. Not only was everybody sworn to perform every duty with which he was trusted, but oaths were imposed upon the members of almost all corporations in perpetual succession. Kings considered it a matter of serious importance to obtain oaths of allegiance, and were themselves considered to give great security to their subjects by their coronation oath. As political and religious divisions began to grow rife the unhappy expedient of test oaths suggested itself, and rival parties excluded each other's adherents from power by contrivances identical in principle with the Japanese test of trampling on the cross. Perhaps it would not be altogether improper to say that the principal classes of promissory oaths have been oaths of office and corporation, oaths of allegiance and test oaths. In estimating their practical importance, somewhat different considerations apply to these different classes. Oaths of offices and of corporations have, as a general rule, been almost totally disregarded—corporation oaths in particular. Till very recently the members of the foundations of the colleges at each university used for the most part to swear to observe the statutes, many of which were puerile or perfectly unsuited to the times in which the oath was taken ; and so plain was this that men famous for their scrupulous regard to veracity invented theories as to the meaning of these oaths and the nature of the obligations imposed by them, which rival any of the Jesuitical sophistries ridiculed by Pascal in the Provincial Letters. Dr. Hey was a man famous for excessive honesty, yet he said—"’I will say so many masses for the soul of Henry VI.’ may come to mean, ‘I will perform the religious duties required of me by those who have authority.' 'I will commonly wear a gown with a standing collar; in my journeys, a priest's cloak, without gards, welts, long buttons or cuts.' This may come to mean, 'I will observe a decency in my dress suitable to my profession.' ‘I will preach at Paul's Cross,' may mean, 'I will endeavour to propagate true religion.'" One of the consequences of this way of dealing with language was, that no one ever thought that the meaning supposed to be substituted for the plain sense of the words was really binding on the conscience. Probably Dr. Hey would not have considered that a man who neither said masses for the soul of Henry VI., nor went to the college chapel according to the rules established for the time being, was perjured, yet his words would imply that he was.
Oaths of allegiance have undergone a considerable change in their binding force, according to time and place. Of those who took the solemn league and covenant in the seventeenth century, a considerable proportion faithfully observed it long after it was sworn to; and there can be no doubt that the fact that it was sworn to, exercised a perceptible influence over the history of the nation for a considerable space of time. There have, however, especially of late years, been innumerable instances to the contrary. The oaths of allegiance which were taken to James II. were no protection to him; and persons fond of historical curiosities have calculated the number of oaths made by men who lived through the French Revolution till the re-establishment of the Bourbons. A large proportion of the French nation swore allegiance to several different rulers, and to a variety of constitutions; yet they threw aside each, in its turn, with neither more nor less reluctance than if they had never sworn at all. Particular persons, no doubt, were faithful to their oaths; but, for the most part, they would have been faithful to their respective parties without oaths, and it appears very unlikely that any government which held power in France from 1789 to 1863 has derived any advantage from the imposition of oaths, in the shape of securing the fidelity of those who took them.
Undoubtedly, however, some advantage has been derived from the operation of the practice on those who refused to swear; and this introduces the subject of test oaths. Indeed, oaths of allegiance are test oaths as to those who refuse them; and there is no doubt that such oaths frequently have the effect of excluding from office, or otherwise from public power, persons whom the parties imposing the oath wish to exclude. During the long period in which oaths designed to exclude Roman Catholics from Parliament were administered, no Roman Catholics were sat in Parliament, though there was probably not a single Fellow or Scholar at either university who had not sworn to do a variety of things which he never did, and was never supposed by any one ever to intend to do.
The result of this review of promissory oaths is, that ia most instances they are practically worthless, and that the only case in which they really effect their purpose is when they operate on those who do not take them. This proves that, as oaths, they have, in practice, no force whatever. Whatever force they have, they derive not from their quality as oaths, but from their character as promises. No one can doubt that a solemn declaration of Protestantism would have kept Roman Catholics out of Parliament as effectually as an oath in the same terms. Nor would the promises contained in the marriage service be more solemn if the parties said "So help me God," and kissed a Testament. By comparing the effect of an oath to keep a college statute, requiring the person swearing to talk Latin at dinner, which people in general regarded as a mere empty form, with the effect of an oath of abjuration, which would be regarded as innocent or criminal according to the political or religious sentiments of the person swearing, we get a crucial test as to the practical importance of an oath as an oath. Where the public at large expect it to be kept, where they look upon the non-observance of it as substantially false and disgraceful, it has great effect. Where they look upon it as a mere form, it has, generally speaking, and except in the case of persons of specially scrupulous consciences, literally no effect at all. This demonstrates the truth, that whatever the importance of oaths ought to be, it is, in fact, dependent almost entirely on the view which is generally taken of the subject-matter of the assertion to which the oath relates. This conclusion is corroborated by the slightness of the check which the fear of perjury, in fact, imposed upon human conduct in rode ages, when the moral power of opinion was small, even in cases in which there could be no question as to its atrocious guilt. In speaking of the moral character of the middle ages, Mr. Hallam observes:—"One crime as more universal and characteristic than others may be particularly noticed. All writers agree in the prevalence of judicial perjury. It seems to have almost invariably escaped human punishment, and the barriers of superstition were in this, as in every other instance, too feeble to prevent the commission of crimes." [Hallam’s Middle Ages, ii. 404, iii. 307, 11th edition.] He also says elsewhere: "Perjury was the dominant crime of the middle ages, encouraged by the preposterous rules of compurgation, and by the multiplicity of oaths in the ecclesiastical law."
It does not follow from this that it really is a light matter to break or trifle with a promissory oath. No man, who has any sense of morality or religion, would for a moment admit such a notion into his mind. No question in morals is more difficult than the question as to the consequences of taking a rash or idle oath, or as to the degree in which its obligation may be altered by subsequent occurrences. It would be out of place to attempt to discuss it on the present occasion, nor is it ever very edifying to do so. Hardly anything has a more immoral tendency than the practice of dwelling needlessly upon the exceptions to general moral rules. The true inference is, that promissory oaths do not, in point of fact, add, in any perceptible degree, to the strength of the institutions which they are supposed to fortify—that they are a mere snare to the conscience, and ought to be abolished, because, as a rule, they are observed only when they are not required. When Lord Erskine spoke, as he did, of the sanction of an oath being the only foundation of the jurisdiction of courts of law, and the only guarantee for the integrity of judges, his sincerity can be vindicated only by the reflection that he laboured under the infirmity, which affects almost every lawyer more or less, that it is necessary to have a technical reason for everything—an infirmity which has led men of eminence to defend the rule which requires two witnesses in cases of high treason, on the ground that the prisoner's oath of allegiance must be supposed to require an extra oath to outweigh it, over and above the oath of a person who testifies to a direct act of guilt. The real guarantee for the pure administration of justice is to be found in the independence of the judges, and in the tone of public feeling prevalent in the nation at the time. The reason why every one of the fifteen judges is altogether above the suspicion of any form of judicial corruption is that, by long habit and education, by professional sympathy, by virtue of his position as an English gentleman, sharing the ordinary feelings of his class, time, and country, he is placed under the strongest possible guarantees for uprightness. No one would trust them less if they were not sworn. No one does trust them less if, by any accident, they are called upon to act in an extra-judicial capacity. For instance, Sir John Pattison, after his retirement, acted as arbitrator between the university and town of Cambridge. He was a mere private person under no oath, but he was trusted as implicitly as when he sat in the Court of Queen's Bench, and with quite as much reason.
We have still a great number of promissory oaths, though some of the most offensive—university oaths, for instance—have been abolished. The oath of allegiance is administered on all occasions to all sorts of people. Can any one suppose that it adds the faintest shadow of stability to the throne of her Majesty, or that those who have not taken it might not be relied upon as implicitly to support her authority or defend her person aa those who have? Is a surgeon, for instance, less loyal than a barrister, or a clergyman more loyal than his wife? On the other hand, can any one suppose that if we ever had a sovereign who came into vehement collision with the people at large, the oath of allegiance would produce the least practical effect? It would be either forgotten, evaded, or defied, but would have no more substantial effect than a straw before the wind. How many of the citizens of the Confederate States have sworn allegiance to the Government of the United States? and how many of them have failed to find some path out of the terms of their oath?
Some of our modern promissory oaths are not merely useless but profane. They take the name of the Almighty in vain, in the sense of attaching it to declarations as trifling as that of the famous Highgate oath, "never to drink water when you can drink wine, unless you prefer the water." Several times a year a number of barristers newly called, and a stray clergyman or two newly presented to livings, are to be seen clustered together in one of the courts at Westminster, " from their hearts abjuring and detesting as impious, schismatical, and heretical the damnable doctrine and position," that the Pope may lawfully give people orders to murder the Queen, a ceremony frequently interrupted by the half-smothered laughter of those who take part in it. The most singular piece of absurdity is connected with this profane ceremony. Part of it was intended to exclude Roman Catholics from the bar; but when this monstrous iniquity was removed, instead of abolishing the test oath altogether, a new form was introduced for the use of Roman Catholics. The Protestant barrister still has to swear certain things about the Pope in order to prevent Roman Catholics being barristers, but the Roman Catholic comes in by an oath of his own, for which it is difficult to find any reason at all. This ingenious plan goes a step beyond the big hole for the cat and the little hole for the kitten. Not only are there two holes, but the door itself is kept wide open.
Oaths to give true evidence are generally supposed to stand on a different footing from promissory oaths, and are accordingly described by the separate name of assertory oaths. The division is merely one of convenience, and does not denote any substantial difference, for an assertory oath is, in fact, a promissory oath—an oath by which he who takes it promises to speak the truth on the occasion in question. There is, however, this accidental difference between the two. In the case of assertory oaths, the promise is always one which is collaterally sanctioned in the highest degree by every consideration of religion, morality, and public opinion. It is also one in which the fulfilment of the promise is always required, and required whilst the impression of having taken the oath is still fresh on the memory of the person swearing. This is not the case with promissory oaths, which may never have to be fulfilled at all, or only at a period very remote from the taking of the oath, as in the case of the oath taken by a Volunteer on his enrolment. No doubt these circumstances save assertory oaths from the imputation to which most promissory oaths are exposed—the imputation of producing a needless trifling with sacred names; but they do not prove their necessity. It may be asked, whether a solemn affirmation would not do as well. The answer to this is, that it would not do as well now, because the practice of taking oaths does in fact prevail, because the associations connected with the practice do, in fact, deeply influence men's minds, and because a change in the form would be taken by the public at large to imply the recognition of a lower view of the importance of speaking the truth. Combining these reasons with the observations already made as to the rational interpretation of an oath, it seems to be clear that, for purposes of judicial evidence, oaths ought to be retained. It is, however, interesting and practically important to inquire what amount of credit is due to sworn testimony— what, so to speak, is the dead weight of an oath. This is the more important, because the administration of justice in this country is entirely in the hands of jurymen, who decide conclusively in matters involving life, liberty, character, and property solely by reference to the impression which evidence given on oath makes on their minds.
Those who have seen much of the administration of justice will probably concur in the impression that juries attach an exaggerated value to sworn testimony. They are far too apt to draw from the fact that a person swears he saw, or did, or heard something, the inference that he really did see, do, or hear it, and one main reason of this is, that they suppose an oath to be a far greater guarantee of truth than it really is. The true guarantee lies not in the witness's oath, nor in his dread of punishment, but in the resources which are, in most cases, at the disposal of persons practised in that art, for the object of distinguishing truth from falsehood. A few words on the history of this subject, and on the nature of the tests by which truth and falsehood may be distinguished, and on the cases in which they fail, will throw light upon this. In early times it would appear that hardly any attempt was made to distinguish between true and false statements. One person swore one thing, and one another, and that was enough. So true is this, that the rules of evidence known to the Anglo-Saxons, some of which maintained a sort of dead-alive existence down to our own time, as well as those known to the modern Roman law which prevailed on the continent of Europe, resolved themselves, for the most part, into technical ways of weighing evidence. So many oaths, plus such and such circumstances, were plena probatio, or full proof; such and such circumstances without the oaths, or such and such oaths without the circumstances, were semi-plena probatio, or half full proof; and even in our own day, this system exercises considerable influence over the jurisprudence of nations which ought to know better. [See Feuerbach’s Remarkable Trials, passim. An interesting review of this curious book is contained in Mr. Senior's Biographical Sketches, p. 227.] In our own country the Roman law of evidence never prevailed, except to a slight extent in the Ecclesiastical and Admiralty Courts; but the laws of the Anglo-Saxons, though not so elaborate, had a naive absurdity of their own which proceeded on similar principles. In many cases, both civil and criminal, the process of trying a man consisted simply in producing a number of witnesses to swear on the one hand that they believed him guilty, and on the other that they believed him innocent. This system of compurgation, when the evidence on opposite sides was numerically weighed, was abolished by the Normans as far as criminal trials were concerned, though it still retained a sort of existence in a process called "waging his law," by which a defendant, in certain civil actions, could escape from his liability, simply by producing a number of compurgators to deny it upon oath. This absurdity is now happily abolished, and jurymen, in all cases whatever, are judges in the proper sense of the word, that is, they hear the evidence, and say what it proves. It is strange, and in one sense painful, to see what submissive confidence they usually place in the discharge of this function on a direct oath. Let a man, of whom they know nothing whatever, get into the witness-box and swear, "I saw this or that," and if he is not contradicted, though there may be no possibility of contradicting him, or shaken by cross-examination, though there may be no means of shaking him, the jury will almost always believe what he says, however tremendous the consequences may be to others.
The observations already made tend to show that this confidence proceeds upon a mistake. There is in reality little or no reason for trusting a man's oath where you would not trust his word, for the case of promissory oaths shows that where the oath is the only consideration by which a person is induced to speak the truth, and where the other sanctions which lead men to abstain from falsehood do not apply, the oath in itself has in fact little force. Jurymen, therefore, are greatly in the wrong who will decide important questions either in civil or criminal cases upon a witness's oath when, if he had not been upon oath, they would not have trusted him. If any further evidence is required to show how little force ought to be attached to a bare oath, it is supplied by the experience of civil courts since it became usual to call the parties as witnesses in their own cases. In almost every case they are called, and they almost invariably contradict each other. It would be harsh to say that in all, or even in most cases, this arises from wilful and corrupt perjury. It is as often as not the result of bias and onesidedness, and of that wonderful power which men undoubtedly have of remembering without conscious falsehood those parts of a transaction or conversation which are favourable to their own view and unfavourable to their antagonists. On such occasions juries are always told that they must look at the whole transaction, consider which side on the whole tells the most probable story, and is most confirmed by circumstances, and find their verdict accordingly. This, no doubt, is very proper. The misfortune is that they should ever suppose that they have any other duty, that their hands are ever, so to say, tied by a direct oath, so that in the absence of some specific reason for believing it to be false they are bound to make it the basis of their verdict. There is little doubt that, in point of fact, they are under the influence of such a notion, and there is great reason to fear that gross injustice often results from it.
How, then, ought juries to act? If they are not to rely upon direct oaths as to what a man personally heard or saw, on what can they rely? The answer is that the degree in which they can and ought to rely upon a statement depends not on its being made on oath, but on its belonging or not to one or the other of several classes into which assertions may be divided. To give a complete enumeration of these classes would require a large treatise. In his six octavo volumes on the subject of judicial evidence Bentham treated the matter imperfectly, and in a fragmentary way, though with wonderful power, originality, and occasional humour. All that can be done here is to give a few hints on the subject as illustrations of its general nature. The great safeguards of truth are honesty and the fear of detection. Of the honesty of a witness a jury can in general know nothing at all, though his manner and position in life may give them some clue to it. As a rule, however, he is a stranger to them and they to him, and they have to rely much more on his fear of being found out if he lies than on his disinclination to lie. Hence the questions for the consideration of every man likely to sit on a jury are, In what cases are people likely to be found out when they lie, and to what extent may we trust them when they are not likely to be found out? The principal way of finding out liars in courts of justice is by cross-examination, the force of which depends upon the fact that by bringing other circumstances than those which he has mentioned to the memory of a witness, and by comparing together different parts of his conduct or narrative, and requiring him to explain inconsistencies between them, it is often possible to expose falsehood, or mental confusion, or imperfections of memory. It does, in fact, answer one or the other of the two last mentioned purposes much oftener than the exposure of direct falsehood. An honest man who says in the warmth of his heart and imagination more than he can stand to, can generally be reduced to his due dimensions by judicious cross-examination, but the falsehood of a wilful liar who tells a lie and sticks to it can rarely be exposed. The utmost that can be done is to tie him down to so many details and collateral circumstances that if he is lying he can be contradicted by other testimony. This is frequently possible, especially if the fact deposed to was witnessed in whole or in part by other persons, but cases continually occur where no cross-examination whatever can shake a false witness—where, on the contrary, it can only confirm him. This happens when the fact deposed to was in its nature transient, and could have left no traces of its occurrence except on the memory of the witness who says he saw it. Suppose, for instance, the question was, whether a man knew that a bad sovereign passed by him was really bad, and suppose that a person was called who said, "I travelled with the prisoner in the train from Birmingham to London at such a time; he showed me a sovereign which he took from his waistcoat pocket, and said he had been cheated; that he took it in change, and it was a bad one. No one else was in the carriage at the time." If the man really had travelled in the same carriage alone, any amount of cross-examination as to details will only confirm this evidence. Yet it might be totally false. Hence the great leading distinction in the trustworthiness of evidence tested by cross-examination, is whether or not it is capable of being contradicted either by persona or things. If not, cross-examination is no test at all; for, except in novels, people are never, or hardly ever, made to contradict themselves, or to vary materially in a story which they have once told; though, if they are honest though mistaken, the fact that they are or may be mistaken may generally be brought to light. It is for this reason that the bare assertion that a particular person heard or saw this or that on occasions where no one can contradict him ought to be received with great caution. There is, however, another subordinate distinction of hardly less importance as to the subject-matter of such assertions. In mathematical language it may be said that their credibility varies inversely as their apparent importance to the point at issue. This is the true meaning of many of the current commonplaces in what is usually called circumstantial evidence. [On this expression see an article on the "Trial of Jessie M'Lachlan," in the Cornhill Magazine for November last, pp. 699-700.] It is often said that the kind of evidence thus described is stronger than what is contrasted with it as direct evidence because it is more difficult to forge it. No one, it is said, could put together a set of circumstances suggesting collectively the guilt of an innocent person without exposing himself to contradiction, though it is comparatively safe to swear falsely to the actual commission of a crime. A man is general!;, at least, as open to contradiction in the one case as in the other, and though it would, no doubt, be hard to forge a great many circumstances which would make an innocent man look guilty, yet, when a number of circumstances are already given which, by the addition of one more circumstance, may be made to suggest the guilt of an innocent man, there is no more difficulty in forging that one circumstance than in testifying to the execution of the act itself. To stab a man with a knife is a simpler operation than to get powder, shot, and wadding, to charge and level a gun, and to shoot him; but if he passes of his own accord before a loaded gun, it is easier to pull the trigger than to stab him with a knife. A, B, and C are alone in a railway carriage together; C goes to sleep. Is it easier for A to say falsely, on reaching the station, "I saw B pick C's pocket and throw his purse out of the window on my observing him;" or to steal the purse himself and privately conceal it in B's pocket? There would be no greater difficulty in the one than in the other form of false testimony; yet by those who divide evidence into direct and circumstantial evidence, the one would be described as direct, and the other as circumstantial evidence. Hence the difficulty of concocting evidence does not depend on its being direct or circumstantial.
On the other hand, the credibility of a given article of evidence is affected by the degree of its apparent connection with the matter in debate at the time when it is given. If one man sees another stick a knife into somebody else, he knows at once that he has witnessed an important transaction, and if his assertion is the only reason for believing that the transaction occurred as he describes it, and if the jury know nothing of any importance about the witness except the fact that he has made that assertion, it is always possible to suggest numerous reasons which may have induced him to lie. He may have some secret ground of hostility to the man; he may have committed the crime himself, or have been bribed by the person who did commit it; and if the prisoner is not in a position to prove these secret motives, he has no way of showing their existence except by asking the witness the question, which would of course produce an indignant denial.
On the other hand, if the evidence given is not immediately and apparently connected with the subject of inquiry, a witness has fewer motives for forging it, and if at the time and subsequently he was ignorant of the other parts of the affair, nearly every possible motive for falsehood is taken away. Suppose, for instance, it happened to become important to show that a man was at a given place on a given day, a witness who said he saw him there on the day in question, though he was ignorant of all the other circumstances in the case, and did not appreciate the importance of his own evidence, would be entitled to far greater confidence than if he swore to some striking dramatic incident of obviously vital importance.
Experience shows that it is a most difficult thing to bring the jurymen, or, indeed, any men whatever, to doubt an explicit confident assertion. They appear to feel a sort of satisfaction in bowing to it. It saves trouble, and is supposed to save responsibility. In fact, however, whatever we hear, and in whatever capacity we listen, we have to argue as well as to listen. The inference from the assertion to the truth of the assertion is not the less important or the less difficult because its form is simple, and it is of the highest importance that men should be aware of this, and should not suppose that there is any virtue in the most solemn ceremonies which will absolve them from the responsibility of using their minds as well as their ears in deciding on the truth and falsehood of statements made to them. It is hard to say whether it is more difficult to teach people to doubt or to believe in a really judicious manner.
Cornhill Magazine, April 1863.
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