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. H. 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 performance 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 corporeal 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. xii. 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.—Revelation, 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 by.
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. 657.)
The custom of swearing on the Gospels is repeatedly mentioned in the laws of the Lombards. (Ll. Longo. 1 tit. 21. c. 25.; Ll. Longo. 2. tit. 55. c. 2., and c. 2. tit. 34. et al.)
In the Formularies of Marculphus, 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 sancti ... sic juratus dixit. Juro per hunc locum sanctum et Deum altissimum et virtutis sancti ... quod," &c.
In the laws of Cnût of England, two forms of oath are given. They both begin with "By the Lord before whom this relic is holy." (Ancient 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 Scriptures, and by 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 importance, 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 mistress by her beard, neither of them could be forsworn.
In the canons of the Fourth Council of Orleans, we read—
"Le Roi lui-même, ou le plus renommé des chevaliers présents, ayant découpé le paon, se leva, et mettant la main sur l'oiseau, fit un vœu hardi; Ensuite il passa le plat, et chacun de ceux qui le reçurent fit un vœu 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
to the appointed number of churches, and at each, taking the ring of the church door in his hand, repeated the oath.
One of the most curious specimens of the practice of swearing men by that to which they attached most importance, is to be found in an Hindoo law. It says, let a judge swear a Brahmin by his veracity; a soldier by his horses, his elephants, or his arms; an agriculturist by his cows, his grain, or his money; and a Soudra by all his crimes.
John Thrupp.
Surbiton.
I know nothing about judicial oaths: but the origin of the form Mr. Breen states to be used by the Roman Catholics of the Continent, and the Scotch Presbyterians, may be seen in Dan. xii. 7.: "When he held up his right hand and his left hand unto heaven, and sware by him that liveth for ever." And in Revelation x. 5, 6.: "And the angel ... lifted up his hand to heaven, and sware by him," &c. See also Genesis xiv. 22.
Maria.