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the land, will, even without other motive, regard the obligation under which they place him, when they impose upon him the solemnity of an oath; and the sanction by which his duty in this respect is enjoined, is that power of coercion, which the law adds to the moral duties connected with it, in preserving this obligation in violate.
But this power of the law is after all very inconsiderable ; and practice proves the utter inadequacy of its severity for the purposes proposed. Its threatnings may possibly prevent some evil, but it does little either to punish or atone for what it cannot restrain. Within the last twenty years the records of all the courts in Massachusetts do not show more than three convictions for the crime of perjury; and yet it would be rather credulity than candor to believe, that many instances do not occur within almost every year.
The law has a very feeble control over the crime of false swearing. Human power is inadequate to detect its existence in a vast majority of the cases in which it occurs. Whether a witness speak truly or falsely, is in very many instances known only to himself. He is called to testify to what he knows, and the call implies that others are ignorant of the facts, or his testimony would not be required. There is no window to his heart. His story may be entirely fictitious. It may be fabricated by envy or malice towards one party, or by partiality to another. It may contain a small portion of truth, with a large infusion of falsehood, and thus be as destructive in a moral point of view, as the most wholesome aliment would be to the body, if poison was mixed with it. Again, the testimony of a witness may in substance be true, but its coloring, its arrangement, its disposition, and its consequences be intentionally false; the lights and shades of the picture may be artfully managed to give false effect, and where the right ends and the wrong begins, may be difficult and perhaps impossible for human casuistry to decide.
And it is this combination of good and evil, this unnatural and yet intimate and forced alliance of truth and falsehood, this ' lie with a circumstance,' that produces infinite mischief. The demon then takes the air and manner and habiliments of truth, and becomes potent for all manner of iniquity, with a facility of locomotion that eludes the grasp of the law. Civil process cannot reach it. The mischief is done, but the agent escapes.
If the crime is now and then be fixed on one,
the most that can be done is, not to prevent the guilt, or to atone for it, but to punish one among the agents, and very probably the humblest, by which it was perpetrated.
But the civil obligation of an oath, so far as it is enforced by the sanction of the law, stops short of the moral duty which this solemnity enjoins. The laws, that is to say, our laws, punish only perjury, with an exception as to the breach of the revenue oaths; but there is much false swearing which is not included in the legal definition of that offence.
Perjury is wilful and corrupt false swearing in a matter in the course of justice, in a point material to the issue to be tried. The consequence of this definition is, that the moral delinquency implied in the violation of an oath is not always cognizable by human tribunals. Before the law animadverts on false swearing as a crime, it must be established that the oath was administered in the due administration of justice, and that the allegations of the party accused were made to a point of the case on trial, strictly material to the issue between the parties, and not merely in those collateral and incidental matters which constantly occur in the progress of a judicial examination, and which, though not technically a part of the question to be decided, do in a greater or less degree operate to the prejudice or advantage of one side or the other. Beyond the strict lines, which the close definition we have given has drawn for the enclosing of this offence, the law does not presume to exercise its authority (it being always remembered, that the oaths for securing the revenue are placed on a different basis); so that it is obvious its sanctions fall, in their design, very far short of a complete protection against the offence. But even where it professes to act,
power ceedingly feeble. The very great difficulty of proof in a matter which may depend on the mere personal knowledge of the witness, is quite obvious. Where this could be had, the exact minuteness of form in the details of an indictment against a party accused of perjury, the necessity of a precise and literal allegation of the objectionable assertions, in which the supposed falsehood is said to exist, an exactness that is almost impossible unless the false testimony was at the time reduced to writing, with a variety of other embarrassments of the most strict professional technicality occurring in the progress of a trial for perjury, render a conviction almost impracticable in cases even of a high and flagrant char
acter, and make an attempt at conviction in any minor case utterly idle, and almost ridiculous.
We do not adduce this state of the law for the purpose of censuring its provisions in respect to this crime. There are necessary safeguards for innocence, which it might be dangerous to remove in our desire to punish guilt, and there are difficulties to be encountered in any alteration, which would deserve to be considered with very great care before it should be confirmed. Although in this, as in every other branch of the criminal code, a judicious revision is exceedingly desirable, and cannot much longer be delayed with safety to our institutions, yet against the success of any deliberate scheme of perjury we have some security in the open and public administration of justice, in the freedom and ability with which the examination of witnesses is conducted in our judicial trials, and, above all, in the intelligence and fidelity of a jury, bound to exercise their best efforts to detect imposition and to prevent its effects.
From this source we derive an answer to those who inquire how it can be said there is any trifling with the solemnity of an oath, when so few records of convictions can be found. Every man who has had much acquaintance with judicial trials, has seen, in a multitude of cases, direct and positive contradictions, which no ingenuity or good feeling could possibly reconcile. Allowing as much, as the most liberal would require, for mistake, or accident, or opinion, for different position, dissimilar knowledge, imperfect opportunity, and partial examination, no man can doubt that, though an entirely fabricated story may be rare, and the more so because it would be difficult to manage it with address, yet that the intention to deceive, to make erroneous impressions, and to turn the scales of justice by those light weights which are not the less effective for being small, are vastly more common occurrences, than is creditable to the principles and morals of our community. The constant observer is too often pained by the flippancy, the apparent carelessness, and the studied design, with which assertions are made, or facts concealed, by men who pride themselves on their fair fame in the community, and would resent, in every possible mode of indignation, the most distant suspicion that they were not unde viating devotees to truth.
But the civil sanction, though in strictness of terms it may. be confined to the legal animadversion of the law, on the crime of perjury, is not in our community most operative in that form. There is a more extensive, a more searching, and a higher efficiency in public opinion. The strict obligation of an oath is exacted by public sentiment; and a censorship is thus established, which is more authoritative than the measured sanction of the laws. Whatever power there may be in individuals to escape the penalty of a judicial decision, there is none to escape the merited infamy of false swearing in our intelligent and high-minded community. But it is obvious, that the range of public opinion is also limited. It sways those only, who have character and are known.
The case, too, must be one of some ement before it awakens the vigilance of the public mind, and must be plain and demonstrable before its penalty would be inflicted. Hence the bar of public opinion is rather the terror of those, who might be otherwise induced to offend, than the place of arraignment for those who have actually transgressed. It is, nevertheless, a most important and useful barrier against the inroads of corruption. It resists the incursions of an enemy, whose progress
would make one scene of wild devastation with all our institutions, and take away the possibility of maintaining a republican government. This high moral sense in the body of the people, this detestation, which is felt for the crime and the criminal, should be encouraged and supported and strengthened, that it may supply the deficiency of more positive laws, and prevent occasions for the exercise of what already exist. And it is with the view of putting this sentiment on a surer basis than mere temporary convenience, that we would advert to the higher and more durable and unchanging sanctions derived from the obligation which religion imposes. This, as it is adequate and permanent, so also it never bends to times or occasions, to the state of party or politics, to private speculation or public exigency. It is immutable and imperious. The religious sanction of an oath is that conviction of
personal accountability to God, which is implied in the direct appeal that is made to him in the words of adjuration; So help me God.' May God so deal with me, as I deal with the truth.
If the frequency of occasions for the taking of an oath did not diminish the solemn feelings, which such an appeal is cal
culated to make, it would certainly be considered as one of the most serious and important engagements which a moral and responsible being could be called upon to make. But neither its frequency, nor the comparatively unimportant occasions on which it is required, alter the nature or diminish the force of the act. Its character is not changed; its obligation is not lessened; its weight upon the conscience is the same; and the consequences are the same, whether men choose to consider them or not.
The religious sanction is, however, stronger or weaker, in practice, as men feel with more or less sensibility the weight of this obligation ; but the law, which imposes the formality of an oath, supposes that this sensibility exists in a sufficient degree to compel men to the observance of the promise they have made. They certainly, who have no religious feeling, if any such there be, — they who, not speculatively, and for the display of some eccentricity of character, but really are unbelievers in the existence of a Supreme Mind, (if indeed there can be found a rational being who thus debases his faculties,) and they who imagine or persuade themselves that the actions of this life are perfectly immaterial in fixing the condition of the future, pass through an unmeaning ceremony in taking the form of an oath. Such, however, are too few, we trust, to be made account of, in the general regulations of society; and over such, whether few or many, nothing but present personal terror of immediate consequences could have any effect. But in an educated and intelligent community, better sentiments may be supposed to prevail ; and over the great majority of our people, surely the religious sanction of an oath may be supposed to be truly felt and duly appreciated. What then, it may be asked, is the cause that it is not universally imperative? How can it be, that although the civil sanction may be evaded, the religious sanction, which can never be evaded, is not completely and universally effectual ?
The same questions may be asked, with nearly equal pertinence, in regard to all the moral duties of life, and the same answer may be given in respect to all. The binding obligation is disregarded by carelessness, inconsideration, rashness, insensibility to distant threatenings, and by that expectation of impunity which arises, because sentence against an evil work is not executed speedily. The entire Christian world admits the moral obligation of the precepts of the decalogue,