April 29. 1854.] 



NOTES AND QUERIES. 



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 ap- 

 pear to be essential." Indeed, as, " upon the prin- 

 ciples 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 booh," it may be doubtful Avhether 

 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 in- 

 dictments (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, juramen- 

 tum corporalitcr praestitum;" and then refers to 

 a rescript of Alexander, where the terms used are 

 " jurejurando corporalitcr prasstito." (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, re- 

 ferred 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 cor- 

 poral 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." S. G. C. 



As the various forms in which oaths have been 

 administered and taken is a question not alto- 

 gether devoid of interest, I would wish to add a 

 few words to what I have already written upon 

 this subject. The earliest notice of this ceremony 

 is probably that which is to be found in Genesis 

 xxiv. 2, 3. : 



" And Abraham said unto his eldest servant of his 

 house, that ruled over all that he had, Put, I pray thee, 

 thy hand under my thigh ; And I will make thee swear," 

 &c. 



That at a very early period the soldier swore by 

 his sword, is shown by the Anglo-Norman poem 

 on the conquest of Ireland by Henry IL, pub- 

 lished by Thomas Wright, Esq.: London, 1837, 

 p. 101. : 



" Morice par sa espe ad jure, 

 N' i ad vassal si ose." 



In a charter of the thirteenth century, made by 

 one Hugh de Sarnefelde to the Abbey of Thomas- 

 court in Dublin, of a certain annuity, we find the 

 passage : 



" Et sciendum quod jam dictus Adam de Sarnefelde 

 affidavit in manu Magistri Roberti de Bedeford pro 

 se et heredibus suis quod fideliter et absque omni fal- 

 lacia persolvent, etc. redditum prenominatum." 



And such clauses are probably of frequent oc- 

 currence in ancient charters. The expression 

 " affidavit in manu" may be perhaps explained by 

 referring to the mode in which the oath of homage 

 was accustomed to be taken. This form, as it was 

 of old time observed in England, is, I presume, 



