“The evidence you shall give to the Court touching the matter
in question shall be the truth, the whole truth, and nothing
but the truth—So help you God.”
_The Oath._
When the clerk in an English Court of Justice administers the usual oath,
he finishes with the words “Kiss the Book,” spoken in an imperative mood,
and if the witness shows any hesitation in carrying out the unsavoury
ceremony, he does his best to compel performance. The imperative mood
of the clerk has not, to my thinking, any legal sanction. Kissing the
Book is not, and never has been, as far as I can learn, a necessary
legal incident of the oath of a Christian witness or juror. Why, then,
does the twentieth-century Englishman kiss the Book by way of assuring
his fellow-citizens that he is not going to lie if he can help it? The
answer is probably akin to the answer given to the question: “Why does
a dog walk round and round in a circle before he flings himself upon
the hearth-rug?” Naturalists tell us that it is because the wild dog of
prehistoric days made his bed in the contemporary grass of the forest
after that fashion. Both man and dog are victims of hereditary habit.
Probably the majority of men and dogs never consider for a moment how
they came by the habit. But when, as in the case of kissing the Book, the
habit is so insanitary, superstitious and objectionable, it is worth a
few moments to consider its history, origin, and practical purpose, and
then to further consider whether mankind is not old enough to give it up,
and whether we should not make an effort at reform in the healthy spirit
that a growing schoolboy approaches the manly problem of ceasing to bite
his nails.
In a modern English Encyclopædia of Law it is suggested that the habit
of kissing the Book did not become recognised in the English Courts
until the middle of the seventeenth century, and that it only became
general in the latter part of the eighteenth century. For my part, I
cannot subscribe to that view. It is true that there is very little
direct authority in any ancient law book on practice which enables one to
say what the practice was. But that is because the old lawyers did not
consider “kissing the Book” essential to the oath, and the practice was
so universally followed that there was no need to describe it.
Shakespeare wrote “The Tempest” about 1613. He gives Stephano, when
offering Caliban the bottle, these lines: “Come, swear to this; kiss the
book:—I will furnish it anon with new contents:—swear. (_Gives Caliban
drink._)” And a few lines later on Caliban says, “I’ll kiss thy foot;
I’ll swear myself thy subject.” To me, reading the scene to-day, and
bearing in mind that it was a low-comedy scene written to amuse the
groundlings, the conclusion is irresistible that Shakespeare drew his
simile from the common stock of everyday affairs, and that the idea of
kissing the Book was as familiar to the average playgoer at the Globe or
the Curtain as it is to-day to the pittite at His Majesty’s. Beaumont and
Fletcher, too, in _Women Pleased_, II, vi, have the lines: “Oaths I swear
to you ... and kiss the book, too”; and no doubt, if diligent search were
made in the Elizabethan writers other such popular references could be
found.
Samuel Butler, who, we must remember, was clerk to Sir Samuel Luke, of
Bedfordshire, and other Puritan Justices of the Peace, and therefore had
administered the oath many hundreds of times prior to the Restoration,
has the following passage in “Hudibras” concerning a perjurer:—
“Can make the Gospel serve his turn,
And helps him out; to be forsworn;
When ’tis laid hands upon and kiss’d;
To be betrayed and sold like Christ.”
This is, I think, conclusive that in 1660, in the common form of oath,
the practice was for the witness to lay the hand upon the Book and
afterwards to kiss it.
Fleetwood, the Recorder of London, writing to Lord Burghley, describing
Serjeant Anderson taking his seat as Chief Justice of the Common Pleas
in 1582, notes that: “Then the clarke of the corone, Powle, did read
hym his oathe, and after, he himself read the oathe of the supremacie,
and so kist the booke.” This, of course, was a ceremonial oath, but it
throws light upon the custom. Although the direct references to kissing
the Book are few and far between, several interesting specimens are given
in _Notes and Queries_ from early Irish records, showing that oaths were
taken both upon holy relics and upon the Holy Gospels, _corporaliter
tacta et deosculata_, in the time of Henry VI., and that in the reign of
Edward I. kissing the Book was an incident of the official oath of the
Exchequer. It is possible that a close study of the records of a Catholic
country would throw light upon the origin of kissing the Book, which,
from a Protestant point of view, is doubtless as superstitious a custom
as kissing relics or the Pope’s toe or a crucifix. It was said by John
Coltus, the Archbishop of Armagh, in 1397, that the English introduced
the custom of swearing on the Holy Evangelists into Ireland, and that
in earlier days the Irish resorted to croziers, bells, and other sacred
reliquaries to give solemnity to their declarations. That kissing the
Book is directly evolved from the superstitious but reverential worship
of holy relics can scarcely be doubted. When Harold pledged his solemn
oath to William the Conqueror, we learn in the old French _Roman de Rou_
how William piled up a reliquary with holy bodies and put a pall over
them to conceal them, and, having persuaded Harold to take the oath
upon these hidden relics, he afterwards showed Harold what he had done,
and _Heraut forment s’espoanta_, Harold was sadly alarmed. Curious, but
interesting, is the form of oath here described. Harold first of all _suz
sa main tendi_, held his hand over the reliquary, then he repeated the
words of his oath, and then _li sainz beisiez_ kissed the relics. It is
almost the same ceremony that we have to-day, and in the same order. The
Book is held in the hand, the words of the oath are repeated, and then
the Book is kissed.
The Rev. James Tyler, in his interesting book on oaths, quotes an
eleventh-century oath of Ingeltrude, wife of Boston, that she swore to
Pope Nicholas, as one of the earliest examples of kissing the Book. It
runs thus: “I, Ingeltrude, swear to my Lord Nicholas, the chief Pontiff
and universal Pope, by the Father, the Son and the Holy Ghost, and these
four Evangelists of Christ our God which I hold in my hands and kiss with
my mouth.” This early example of the habit shows that kissing the Book
was contemporaneous with kissing bells, crucifixes and relics, and that
the religious origin of the custom is similar. In the Roman Catholic
ritual the priest still kisses the Gospel after he has read it, and I
have been told that this is done in some Anglican churches. It is curious
that the ceremony should survive in the law courts and have died out in
most of the churches. But in these things the average man violently
strains at gnats and complacently swallows camels. The Roman ceremony
of kissing the Book—which is done reverently by the priest as part of a
religious ceremony—would distress a Protestant, who watches the kissing
of the same Book in a modern police court without the least sign of moral
or mental disturbance.
Of the ultimate origin of kissing as a sign and pledge of truth much
could be written, and it would be an interesting task to trace the
history of the ceremonial kiss to its earliest source. The perjury of
Judas was signed by a kiss, and Jacob deceived his father with the same
pledge of faith. So also false, fleeting, perjured Clarence swears to
his brother: “In sign of truth I kiss your highness’ hand.” The kiss
as a pledge or symbol of truth is probably as old in the world as the
degraded ceremony of spitting on a coin for luck, and is what students of
folk-lore call a saliva custom, the origin of which seems to have been
a desire on the part of the devotee for a union with the divine or holy
thing.
So much for the ancient origin of the kissing portion of this ceremony.
It is shown to be of superstitious if not idolatrous origin, and I hope
to show beyond doubt that in the view of English lawyers it is not, and
never has been, an essential part of the English Christian oath. That
is to say, an English Christian has a legal right to take the oath by
merely laying his hand upon the Book, and the act of kissing the Book
afterwards is a work of supererogation, and of no legal force or effect
whatever.
No lawyer that I know of has ever suggested that a witness or juror must
kiss the Book. Nor, on the contrary, has any lawyer sought to forbid a
man to kiss the Book. I take it that any reverent and decent use of the
Book as a voluntary addition to the oath would be allowed. The general
rule of English law is that all witnesses ought to be sworn according to
the peculiar ceremonies of their own religion, or in such manner as they
deem binding on their consciences. If, therefore, a Christian wishes to
kiss the Book he may do so, but the only formality that need be legally
observed is the laying of hands upon the Book. As Lord Hale says, “the
regular oath as is allowed by the laws of England is _Tactis sacrosanctis
Dei Evangeliis_.” Lord Coke, too, says “It is called a corporal oath
because he toucheth with his hand some part of the Holy Scripture.”
Modern antiquarians have sought to show that the word corporal was used
in connection with the ritual of an oath, and referred to the “Corporale
Linteum” on which the sacred Elements were placed, and by which they were
covered. Some suggest that the word comes from the Romans, and draws a
distinction between an oath taken in person and by proxy. But for my part
I think Lord Coke knew as much about it as any of his scholarly critics,
and is not far wrong when he says a corporal oath is an oath in which a
man touches the Book.
This form of oath was practised by the Greeks and Romans, and is of great
antiquity. Hannibal, when only nine years old, was called upon by his
father to swear eternal enmity to Rome by laying his hand on the sacred
things. Livy, in describing it, uses the words _tactis sacris_, the very
expression that passed into the University and other oaths of modern
England. Izaak Walton, in his “Life of Hooker,” sets down a bold but
affectionate sermon preached to Queen Elizabeth by Archbishop Whitgift,
in which he reminds the Queen that at her coronation she had promised to
maintain the Church lands, and then he adds: “You yourself have testified
openly to God at the holy altar by laying your hands on the Bible, then
lying upon it.”
That this is the real form of an English Christian oath, and that kissing
the Book is purely a voluntary ceremony is, I think, made clear in a
curious little volume, entitled, “The Clerk of Assize, Judges Marshall
and Cryer, being the true Manner and Form of the Proceedings at the
Assizes and General Goale Delivery, both in the Crown Court and Nisi
Prius Court. By T.W.” This was printed for Timothy Twyford in 1660, and
sold at his shop within the Inner Temple Gate. It is probably the book
Pepys refers to when he notes in his diary: “So away back again home,
reading all the way the book of the collection of oaths in the several
offices of this nation which is worth a man’s reading.”
I am quite of Pepys’ opinion, and a man may read it after two hundred
and fifty years with as much profit as Pepys did. It is a quaint little
book, and in the preface T. W. writes that “the Government of this nation
being now happily brought into its ancient and right course, and that the
proceedings in Courts of Justice to be in the King’s name, and in Latine
and Court-hand (the good old way), I have set forth and published the
small Manuel,” for the benefit of the new officers who may here “find all
such Oaths and Words as are by them to be administered.” In the rubric
attached to the jurors’ oath is the following:—“Note that every juror
must lay his hand on the Book and look towards the prisoners.” In the
same way in the oath to the foreman of the grand jury, T. W. writes: “The
foreman must lay his hand on the Book.”
Although it seems probable that kissing the Book was customary at this
date, T. W. would, I think, certainly have pointed out that it was
necessary if he had so considered it, and the absence of any reference
to kissing the Book in a “manuel” published for the very purpose of
explaining to the ignorant the correct manner in which to administer the
oath, shows that the author did not consider that part of the ceremony a
necessary one. The references to the form of oath in old law books are
very few. There is a case reported, in “the good old way” of law French,
in Siderfin, an ancient law reporter, in Michaelmas Term, 1657. Dr. Owen,
Vice-Chancellor of Oxford, refused to take the oath _en le usual manner
per laying son main dexter sur le Lieur et per baseront ceo apres_. The
doctor merely lifted up his right hand, and the jury, being in doubt,
asked Chief Justice Glin whether it was really an oath. The Chief Justice
said, “that in his judgment he had taken as strong an oath as any other
witness, but said if he was to be sworn himself he would lay his right
hand upon the Book.” There is another curious decision upon the necessity
of kissing the Book mentioned in Walker’s “History of Independency,” in
the account of the trial of Colonel Morrice, who held Pontefract Castle
for the King. The colonel wished to challenge one Brooke, foreman of the
jury, and his professed enemy, but the Court held, probably rightly, that
the challenge came too late, as Brooke was sworn already. “Brooke being
asked the question whether he were sworn or no, replied ‘he had not yet
kissed the Book.’ The Court answered that was but a ceremony.”
The whole matter was very much discussed in 1744, when, in a well-known
case, lawyers argued at interminable length as to whether it were
possible for a person professing the Gentoo religion to take an oath in
an English court. Sir Dudley Rider, the Attorney-General, says in his
argument “kissing the Book is no more than a sign, and not essential to
the oath.” He seems to think that touching the Book is not essential;
but the true view seems to be laid down by Lord Chancellor Hardwicke,
who says that the outward act is not essential to the oath, but there
must be some external act to make it a corporal act. That is to say, that
the kind of external act done may be left to the taste and fancy of the
person taking the oath. The laying the hand on the Book is convenient,
and is the recognised form, but a salute or act of reverence towards the
Book would be sufficient, as Dr. Owen’s case seems to show.
Apart altogether from the forms and ceremonies of oaths, it is surely
well worth considering whether the practice of oath-taking in courts
of justice should not be discontinued. Although many good and learned
men have argued with great ability that a man taking an oath does not
imprecate the Divine vengeance upon himself if his evidence is false, yet
the whole history and practice of oath-taking is adverse to their amiable
and well-meaning philosophy. The gist of an oath is, and always has been,
that the swearer calls upon the Almighty to inflict punishment upon him
here or hereafter if he is false to his oath. In early days oaths were
only taken upon solemn occasions, and in a solemn manner. In modern life
they have been multiplied, and become so common that little attention
is paid to them. Even in this country prior to Elizabeth there was no
statute punishing perjury, and the oath was the only safeguard there
was against the offence. The statute then passed shows of what little
use the oath was even in those days as a preventive of perjury. But then
few people could give testimony in courts, and there may have been some
semblance of a religious ceremony in the affair. To-day that is gone, and
necessarily gone.
All writers who have seriously considered the matter condemn the
multiplicity of oaths on trivial occasions as taking away from the
ceremony any practical value it may have. Selden, in Cromwell’s day,
says: “Now oaths are so frequent they should be taken like pills,
swallowed whole; if you chew them you will find them bitter; if you
think what you swear, ’twill hardly go down.” What would he think of our
progress to-day in this matter? Defoe, at a later date, lays down the
principle that “the making of oaths familiar is certainly a great piece
of indiscretion in a Government, and multiplying of oaths in many cases
is multiplying perjuries.” England has been called “a land of oaths,” and
familiarity with oath-taking has always bred contempt of the oath. In the
old days of the Custom House oaths it is said that “there were houses of
resort where persons were always to be found ready at a moment’s warning
to take any oath required; the signal of the business for which they were
needed was this inquiry: ‘Any damned soul here?’”
Without suggesting that there is a great amount of perjury in English
courts, for Englishmen respect the law and have a wholesome dread
of indictments, we cannot pride ourselves on a system that uses what
ought to be a very solemn ceremony on every trumpery occasion. In the
County Courts alone a million oaths at least must be taken every year
in England. And upon what trifling, foolish matters are men and women
invited by the State to make a presumptuous prayer to the Almighty to
withdraw from them His help and protection if they shall speak falsely.
Two women, for instance, have a dispute over the fit of a bodice; each is
full of passion and prejudice, and quite unlikely to speak the truth, the
whole truth, and nothing but the truth. Is it fair to ask them to take
an oath that they will do so, and, in the language of Chaucer, to swear
“in truth, in doom and in righteousness,” about so trivial a matter? Or,
again, in an arbitration under the Lands Clauses Act, is it fitting that
six land surveyors should condemn themselves to eternal penalties when
everyone knows that, like the barristers engaged in the arbitrations,
they are paid for services of an argumentative character rather than as
witnesses of mere fact? As Viscount Sherbrooke said in an excellent essay
on the oath, written at the time of the Bradlaugh case, “If you believe
in God it is a blasphemy; if not, it is a hollow and shameless cheat.”
Any practical, worldly scheme to prevent perjury is of more use than a
religious oath, and one might quote many historical instances in proof
of this. Two widely apart in circumstance and period will show my
meaning. The Ministers of Honorius on a certain occasion swore by the
head of the Emperor, a very ancient form of oath. (Joseph, it may be
remembered, swore “by the life of Pharaoh,” and Helen swore by the head
of Menelaus.) The same Ministers, says Gibbon, “were heard to declare
that if they had only invoked the name of the Deity they would consult
the public safety (by going back on their word), and trust their souls
to the mercy of Heaven; but they had touched in solemn ceremony that
august seal of majesty and wisdom, and the violation of that oath would
expose them to the temporal penalties of sacrilege and rebellion.” In
like manner I remember a Jew, annoyed by apparent disbelief of his oath,
saying before me in a moment of irritation, “I have sworn by Jehovah that
every word I say is true, but I will go further than that: I will put
down ten pounds in cash, and it may be taken away from me if what I say
is not true.” What sane man will say that the oath, as an oath, is of
practical use when for centuries we find instances such as these of the
way it is regarded by the person by whom it is taken. But it will be said
that if a man pleases he can to-day affirm. Undoubtedly that is so, but
the average Englishman has a horror of making a fuss in a public place,
especially about a matter of everyday usage. The other day I suggested
to a man who was suffering from cancer in the tongue that he might take
the Scotch oath instead of kissing the Book. He did it reluctantly, as
I thought. Once, too I made the same suggestion to a witness at Quarter
Sessions who was in a horrible state of disease, but he preferred to kiss
the Book—which was afterwards destroyed.
The average man is like the average schoolboy, and would any day rather
do “the right thing” than to do what is right. All of us have not the
courage of Mrs. Maden, who was refused justice in a Lancashire county
court as late as 1863 because she honestly stated her views on matters
of religion. As Baron Bramwell pointed out in deciding the case, the
judgment he was giving involved the absurdity of ascertaining the fact
of Mrs. Maden’s disbelief by accepting her own statement of it, and then
ruling that she was a person incompetent to speak the truth. Truly no
precedent in English law can be over-ruled by its own inherent folly.
Later on, too, in our own time, we can remember the fate of Mr. Bradlaugh
in his struggles with Courts and Parliament, and we can read in history
the stories of George Fox and Margaret Fell. The cynic may say that these
people made a great deal of fuss about a very unimportant matter; but,
after all, the attitude of George Fox on the question of the oath was a
very noble one.
“Will you take the oath of allegiance, George Fox?” asks the
Judge in the Court of Lancaster Castle.
_George Fox_: “I never took an oath in my life.”
_Judge_: “Will you swear or no?”
_George Fox_: “Christ commands we must not swear at all; and
the apostle: and whether I must obey God, or man, judge thee, I
put it to thee.”
And having read many volumes of man’s answer to George Fox, I am content
for my part to think he still has the best of it, and that “Swear not at
all” is as much a commandment as “Thou shalt not steal,” or “Sell all
that thou hast and give to the poor.” Whether in a work-a-day world of
timid people, who cling to the bad habits of their prehistoric ancestry,
it is possible to live up to the ideals of these commandments is quite
another matter, and I should be the last in the world to throw stones at
others in this matter.
I must confess that on the few occasions I have given evidence I have
dutifully “kissed the Book” like any other witness. Whether I should do
so again I am not so sure. Probably literary pride would overcome the
natural shyness of my disposition, and I should propose to read what I
have written here to a long-suffering judge, and claim as of right to
take the oath “tactis sanctis,” with no ceremony of kissing.
For the more I see of the ceremony the more it jars upon me as a mere
matter of reverence to holy things, and the more I read of the matter the
more convinced I am of its superstitious origin. When, too, I feel sure
that it is of no practical purpose and is as useless as it is insanitary,
I begin to think that the hour is approaching when we may, without
impiety to the shades of our ancestors, adopt some more reasonable
ceremony of commencing our evidence in the law courts than that of
kissing the Book.