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 appear to be essential." Indeed, as, "upon the principles 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 book," it may be doubtful whether 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 indictments (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, juramentum corporaliter præstitum;" and then refers to a rescript of Alexander, where the terms used are "jurejurando corporaliter præstito." (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, referred 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 corporal 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 altogether 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.