(Vol. viii., no. 364, 605.; Vol. ix., p. 45.)
I am extremely obliged to your several correspondents who have replied to
my Query.
I now send you "a remarkable case," which occurred in 1657, and throws
considerable light upon the subject.
Dr. Owen, Vice-Chancellor of Oxford, being a witness for the plaintiff in a
cause, refused to be sworn in _the usual manner, by laying his right hand
upon the book, and by kissing it afterwards_; but he caused the book to be
held open before him, and he raised his right hand; whereupon the jury
prayed the direction of the Court whether they ought to weigh such evidence
as strongly as the evidence of another witness. Glyn, Chief Justice,
answered them, that in his opinion he had taken {403} as strong an oath as
any other of the witnesses; but he added that, if he himself were to be
sworn, he would lay his right hand upon the book itself (_il voilt deponer
sa maine dexter sur le liver mesme_). Colt _v._ Dutton, 2 Siderfin's _R._
6.
This case shows that the usual practice at the time it was decided was, not
to take the book in the hand, but to lay the hand upon it. Now, if a person
laid his hand upon a book, which rested on anything else, he most probably
would lay his fingers upon it, and, if he afterwards kissed it, would raise
it with his fingers at the top, and his thumb under the book; and possibly
this may account for the practice I mentioned of the Welsh witnesses,
which, like many other usages, may have been once universally prevalent,
but now have generally ceased.
With regard to kissing the book, so far from assuming that it was
essential, I stated that "in none of these instances does kissing the book
appear to be essential." Indeed, as, "upon the principles of the common
law, there is no particular form essential to an oath to be taken by a
witness; but as the purpose of it is to bind his conscience, every man of
every religion should be bound by that form which he himself thinks will
bind his own conscience most" (per Lord Mansfield, Chief Justice, Atcheson
_v._ Everitt, Cowper's _R._ 389.), the form of the oath will vary according
to the particular opinion of the witness.
Lord Mansfield, in the case just mentioned, referred to the case in
Siderfin, and stated that "the Christian oath was settled in very ancient
times;" and it may, perhaps, be inferred that he meant that it was so
settled in the form there mentioned; but, as he inaccurately translates the
words I have given thus, "If I were sworn, _I would kiss the book_," it may
be doubtful whether he did not consider kissing the book as a part of the
form of the oath so settled.
I cannot assent to the opinion of Paley, that the term _corporal_, as
applied to oath, was derived from the corporale--the square piece of linen
on which the chalice and host were placed. The term doubtless was adopted,
in order to distinguish some oaths from others; and it would be very
strange if it had become the invariable practice to apply it to all that
large class of oaths, in every civil and criminal tribunal, to which it did
not apply; and when it is remembered that in indictments (which have ever
been construed with the strictest regard to the truth of the statements
contained in them) this term has always been used where the book has been
touched, and where the use of the term, if incorrect, would inevitably have
led to an acquittal, no one I think can doubt that Paley is in error.
In addition to the authorities I before referred to, I may mention that
Puffendorff clearly uses the term in the sense I attributed to it; and so
does Mr. Barbeyrac, in his note to "corporal oath," as used by Puffendorff,
where he says: "Juramentum corporale, or, as it is called in the code,
juramentum _corporaliter_ praestitum;" and then refers to a rescript of
Alexander, where the terms used are "jurejurando _corporaliter_ praestito."
(Puffendorff, _Law of Nature and Nations_, lib. iv. ss. 11. and 16., pp.
345. and 350.: London, 1729.) And it seems very probable that the term came
to us from the Romans; and as it appears from the books, referred to in the
notes to s. 16., that there were some instances in which an oath had been
taken by proxy, it may, perhaps, be that the term _corporal_ was originally
used to distinguish such oaths as were taken by the party himself from such
as were taken by proxy.
The word corporale plainly is the "_corporale_ Linteum," on which the
sacred elements were placed, and by which they were covered; and no doubt
were so used, because it covered or touched what was considered to be the
very body of our blessed Lord. In fact, the term is the same, whether it be
applied to oath or cloth; and when used with oath, it is used in the same
sense as our immortal bard uses it in "corporal suffering" and "corporal
toil."