Judgments in Vacation

by Sir Edward Abbott Parry

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?’”