countries, all proceedings conducted under the superintendence, or by the instrumentality, of any one from whom at his entrance upon office the law requires this oath, are declared null and void to all intents and purposes, should the taking of the oath have been neglected. Thus, in France, so universally were all public functionaries bound to take the oaths of office, that (what seems to have excited the admiration of the French law-writers,) even Peers were not exempt. This point was tried at Paris in 1735, on the translation of the Bishop of Laon to the archiepiscopal see of Cambrai; and the law was not altered by the Revolution, but still remains in force the same as before*. In that country, however, it has been ruled (in 1807,) that the oath needs not necessarily be retaken on the removal of an officer from one place to another, though the acts of any functionary who has not taken the prescribed oath at all are null.

*Répertoire de Jurisprudence.

SECTION N.

CORPORAL OATHS.

It was a matter of surprise to me, when I discovered the mistake into which such a man as Dr. Paley had been misled, on the interpretation of the phrase 'a corporal' oath. Like many others in different departments of literary research, he was betrayed by yielding too easily to one of those etymological temptations, the success of which is owing merely to the circumstance that they are new, and opposed to the more obvious and ordinary interpretation. His note is, "It is commonly thought that oaths are denominated corporal oaths, from the bodily action which accompanies them of laying the right hand upon a book containing the four Gospels. This opinion, however, appears to be a mistake, for the term is borrowed from the ancient usage of touching on these occasions the corporale or cloth which covered the consecrated elements." I am not aware from what source the archdeacon borrowed this ingenious piece of criticism, but I feel no hesitation in pronouncing that it is as unsound as it is ingenious. In the first place, I should say that the corporale, in Paley's interpretation of it, not to make a broader assertion than the subject requires,

was not used on these occasions, more than the cross, or the Bible, or the altar, or the relics. We might however, safely say, that if ever used, it was not used in any degree so frequently. In the next place, it is called, in Greek, a bodily oath. It was opposed, I believe, to a mere declaration by word of mouth, and also to a mere written testimony, such as that of Athanasius above quoted, who says in his letter to Constantius, I hold forth my hand and call God to witness upon my soul. Thus, bishops and priests were forbidden to take a corporal oath, and were directed, simply to say every thing with purity and truth. In the fifth of Winchelsey's Constitutions, Priests are directed to swear on the holy books lying open on which they are to have their eyes fixed. Therefore, says Johnson, it is not a corporal oath, for the touching the book or relics made it corporal. Expressions, moreover, are constantly occurring in ancient writers, which admit of no other interpretation. Thus, "Touching bodily the holy Gospels, let them in public take upon them bodily the oaths+." I have taken more pains in ascertaining the true view of the case in this respect, because a friend of acknowledged talents and legal learning,

Σωματικος όρκος. Thus σωματικαι ήδοναι are αἱ του σωματος

ndoval. Arist. Eth., lib. 7. So Plutarch in Coriol, σωματική Tux, meaning "a misfortune happening to the body." Tactis corporaliter sacrosanctis Evangeliis in publico corporaliter subeant sacramenta.-Du Cange.

though he did not take precisely the same view with Paley, yet still did not consider the expression as meaning merely an external visible or tangible act. My friend's words are, "I consider the meaning of the words 'corporal oath' to be this; that it was formerly taken at the altar, where the consecrated elements were present; one of these elements, usually the first named, and always the first.administered, being called Corpus Christi. And that the name of corporal oath' was retained after the oath had ceased to be taken in the presence of the consecrated elements." But my friend forgets, that it was called a "bodily oath," at the time when oaths, though often indeed sworn at the altar, yet were also sworn upon the evangelists, and the cross, without any immediate reference to the Eucharist.

Since I learned his view of the question, I have met with so many repeated confirmations of the meaning which I have attached to it, that not a shadow of doubt remains in my mind, that both the archdeacon and my friend are quite in error.

Brissonius for instance, when he gives an example of a corporal oath, (jurisjurandi corporaliter præstiti,) quotes a passage from an ancient dramatist* which I must translate verbally:

-L. I touch it.

G. Touch this altar of Venus!G. By this Venus you must swear.swear?

-L. What shall I

*Plautus, Rudens, Act v., sc. 2, v. 46.

G. What I bid you.

L. Dictate whatever you please.

G. Hold this altar.-L. I do hold it.

G. Swear then that you will give me the money. L. Be it so.

I am afraid of dwelling too long upon a point, which I am compelled to regard as no longer admitting of doubt; but page after page in the Roman laws might be brought to confirm the view which we have taken, and the use which the jurists made of the word is, I conceive, decisive. When they wish to express "bodily possession of a thing," they use the word, "corporalis possessio*." they would speak of real tangible material bodily pledges (as opposed to names and abstract rights) they say, "corporalia pignora." And to mention no other name, Calvin of Heidelberg, who is excellent authority on these subjects, uses the expression of "swearing bodily +."

When

I had prepared this chapter for the press, when the explanation of Coke first offered itself to my notice. "It is called a corporal oath, because he toucheth with his hand some part of the Holy Scripture." This is evidently too narrow definition of the meaning of the word, applying only as it does to our oaths in England. But the

a

Digest. xiii., tit. vii., c. 40. Papinian. Soluta pecunia, creditor possessionem pignoris quæ corporalis apud eum fuit, restituere debet.

+ Jurare corporaliter.

Coke, 3 Instit. 74. [165]