532 



NOTES AND QUERIES. 



[No. 187. 



FORMS OF JUDICIAL OATHS. 



(Vol. vii., p. 458.) 



Will you permit me to make a few observations 

 in reply to the Queries of Mr. H. II. Breen on 

 this subject ? 



There is hardly any custom more ancient than 

 for a person imposing a promise on another to call 

 on him to bind himself by an oath to the due per- 

 formance of it. In this oath the person swearing 

 calls on God, the king, his father, or some person 

 or thing to whom he attaches authority or value, 

 to inflict on him punishment or loss in case he 

 breaks his oath. The mode of swearing is, in one 

 particular, almost everywhere and in every age the 

 same. 



When a father, a friend, a sword, or any cor- 

 poreal object is sworn by, the swearer places his 

 hand upon it, and then swears. When a man, 

 however, swore by the Deity, on whom he cannot 

 place his hand, he raised his hand to heaven 

 towards the God by whom he swore. 



When Abraham made Abimelech swear to obey 

 him, he caused him to place his hand under his 

 thigh, and then imposed the oath ; and when Jacob, 

 by his authority as a father, compelled his son 

 Joseph to swear to perform his promise, he ordered 

 him to go through a similar ceremony. (Genesis, 

 ch. xxiv. V. 5., and ch. xlvii. v. 29.) 



In the prophet Daniel we read that — 



" The man clothed in linen which was upon the 

 waters, held up his right hand and his left hand unto 

 heaven, and sware by Him that liveth for ever and ever," 

 &c. — Daniel, ch. xil. v. 7. 



In the Revelation we also find — 



" And the angel, which I saw stand upon the sea 

 and the earth, lifted up his hand to heaven and sware 

 by Him that liveth for ever and ever," &c. — Reve- 

 lation, ch. X. V. 5, 6. 



Your correspondent inquires how oaths were 

 taken prior to their being taken on the Gospel. 



Among the nations who overthrew the Roman 

 empire, the most common mode of swearing was on 

 the relics of the saints. In England, I think, the 

 most common mode was to swear on the corporalia 

 or eucharistic elements, whence we still have the 

 common phrase " upon your corporal oath." In 

 each case the hand was placed on the thing sworn 



The laws of the Alamanni as to conjurators, 

 direct that the sacrament shall be so arranged that 

 all the conjurators shall place their hands upon 

 the coffer (containing the relics), and that the 

 principal party shall place his hand on all theirs, 

 and then they are to swear on the relics. (^Ll. Alam. 

 cap. G57.) 



The custom of sv?earing on the Gospels is re- 

 peatedly mentioned in the laws of the Lombards. 

 (Z/. Longo. 1 tit. 21. c. 25. ; LI. Longo. 2. tit. 55. 

 c. 2., and c. 2. tit. 34. et al.) 



In the Formularies of Marcvlphns, two forms of 

 oaths are given, one says that — 



" In palatio nostro super capella domini Martini ubi 

 reliqua sacramenta percurrunt debeat conjurare." 



In the other we read — 



" Posita manu supra sacrosanctium altare sanctl .... 

 sic juratus dixit. Juro per hunc locum sanctum et 

 Deum altissimum et virtutis sancti . . . . quod," &c. 



In the laws of Cnut of England, two forms of 

 oath are given. They both begin with " By the 

 Lord before whom this relic is holy." (^Ancierd 

 Laws and Justice of England, p. 179.) 



Your correspondent asks " what form of judicial 

 oath was first sanctioned by Christians as a 

 body ? " _ 



In the history of the Council of Constantinople, 

 it is stated that — 



" George, the well-beloved of God, a deacon and 

 keeper of the records, having touched the Holy Gospels 

 of God, swore in this manner, ' By these Holy Scrip- 

 tures, and b}' the God who by them has spoken,' " &c. 



At the Council of Nice it is said that — 



" Prayer having been offered up, every one saluted 

 the Holy Gospels, the venerated cross and image of 

 our Lord and Saviour Jesus Christ, and of our Lady 

 the mother of God, and placed his hands upon them in 

 confirmation of what he had said." 



From these I infer that the custom of swearing 

 on the Gospels received the sanction of the church 

 at a very early period. 



In reply to the question as to other modes of 

 swearing, it may be said briefly, that men swore 

 by anything to which they attached any import- 

 ance, and generally by that to which they attached 

 most importance. 



By the laws of the Alamanni, a wife could claim 

 her Morgen-gabe (or the gift of the morning after 

 the wedding night) by swearing to its amount on 

 her breast ; and by the Droits d'Augsbourg, by 

 swearing to it on her two breasts and two tresses. 



Nothing was more common than for a man to 

 swear by his beard. This custom is alluded to by 

 one of Shakspeare's fools, who suggests that if a 

 certain knight swore by his honour, and his mis- 

 tress by her beard, neither of them could be for- 

 sworn. 



In the canons of the Fourth Council of Orleans-^ 

 we read — 



" Le Roi lui-meme, ou le plus renomme des che- 

 valiers presents, ayant decoupe le paon, se leva, et 

 mettant la main sur I'oiseau, fit un voeu hardi ; Ensuite 

 il passa le plat, et chacun de ceux qui le re9urent fit 

 un voeu semblable." 



In the year 1306, Edward I. of England swore 

 an oath on two swans. 



It was also very common from an early period, 

 both in England and abroad, to swear by one, two, 

 seven, or twelve churches. The deponent went 



