most sacred name, and of the most holy institutions admit of any other than serious and sorrowful thoughts, would border upon the ludicrous. Grateful as every reflecting mind must be for that happy change which has been effected in our country since those times of darkness; acknowledging with thankful hearts our deliverance from those bonds of superstition which then enchained Christendom, we must, nevertheless, not acquiesce in our present advanced state, whether of religious knowledge or of civilization, as though it could admit of no further improvement. These superstitions have neither place nor name among us; but we ought to show our gratitude by joining hand and heart in promoting a steady, gradual, constant progress from good to better. As in the moral and religious government of our own minds and heart, so in the cultivation of the great field of society, we must be advancing, or we shall be retrograding; and with many others, whose station and talents will deservedly cause their sentiments to be heard, where I could not, without presumption, expect mine to reach, I am deeply impressed with the conviction that our practice with regard to oaths, is susceptible of very great improvement indeed, and that the serious attention of our legislature to the subject is loudly called for.

280

SECTION H.

OATHS BY PROXY.

A VERY extraordinary custom prevailed in many courts of Christendom, where the sovereign never took an oath in his own person; but whenever it was necessary for his promise to be confirmed by his oath, his courtiers, or his ambassadors, swore in his name and in his stead. There are many curious instances of this custom preserved in history. For example, Tillet (often quoted as Tilius), among other instances records that when St. Louis of France made a treaty with Henry the Third of England, in the year 1231, the prior of St. Martin's in the Fields, [Le prieur St. Martin des Champs] swore to the treaty in the presence of Louis, and on the soul of Louis. The oath was sworn for Henry in his presence, by one Ralph [Roul filz de Nicole son seneschal.] So too Isabella, sister of Henry the Third, was betrothed to the Emperor Frederic by proxy, the ambassadors swearing on the soul of the Emperor, and on his part offering to her the espousal-ring *. It is said that the kings of France never took their oath in their own persons but once, at their inauguration;

* Tillet, Recueil des Traictez, ii. 11.

on all other occasions, they swore by proxy, or promised on their royal word.

William, King of Sicily, in settling with King Henry the Second of England a treaty of marriage with his daughter, refused to take an oath personally, alleging that it was contrary to the custom; and asserting that an oath sworn by others, in his presence, and on his soul, was equally binding*.

Thus, too, by the laws of Germany, either party in a suit was allowed to swear by his proctor, a custom (as Heineccius explains it) originating in the religious scruples of ecclesiastics who substituted others to swear on their soulst. This practice was followed by laymen, at first the more noble, at last the common people, so that the custom obtained generally of a proctor swearing by the soul of his client. But, adds Heineccius, implying his disapprobation of such want of gallantry in those middle ages, this privilege was positively forbidden to women.

The practice of swearing in the name, and at the peril of another, was very common in England formerly. In the Register of the Garter‡, we have the oath recorded which was to be taken by any one chosen into that illustrious body, sworn by his proctor." It is couched in these words: "I,

66

* See Du Cange, "Jurare in animam alterius."

† Hein. El. Jur. Ger. T. 219.

★ 1724.

A. B., knight and proctor of the renowned prince (arch-duke, duke, marquess, earl, viscount, baron, lord, or at least knight) now of late nominated and elected to the most famous Society of the Order of St. George, on the behalf and in the name of my said master, with a true heart and in entire faith, do promise and swear, that my said master shall well and faithfully observe and perform the statutes of this order, and all the articles of them, according to the import, form, and effect of them, at least so far as the dispensation of the sovereign shall moderate and declare."

It is not generally known that this oath by proxy is still retained in some of our ecclesiastical courts in England*. It has long been disused, with many others, in Doctors' Commons. Is it reasonably retained any where? The following is the form as observed in the ecclesiastical court of Hereford within the last seven years.

A form of exhibiting answers by virtue of a special proxy through a syndic :

"1st. I exhibit my special proxy for the mayor, &c., and I do it on my own part for the same body; and, in the name of my employers, I answer and believe in all things, and by all things, as to

I was not aware, till this section had been sent to the press, that the form of an Oath by Proxy is still retained at Cambridge," when a Master of Arts is created by proxy." "Jurabis in animam Magistri A.B., &c."

what is contained in the words of this my special proxy.

"2nd. And I swear by the soul of this my same employer, and by the sacred Gospel of God, that the answer is true according to the information of my employer, and the belief of my proxy, in those things which concern the matter in question in regard to the corporation, and concerning the knowledge of this, my same employer, in the things which concern the matter in question concerning myself."

This oath was taken in 1827, by a professional gentleman of my acquaintance. How far this custom, originating in superstition, and continued in ignorance, deserves to be authoritatively put down in a Christian protestant country, I trust will soon be made a subject, with many others, of serious and dispassionate inquiry. It is painful, though curious, to find every where, under some disguise or other, so many heathen customs prevalent among us. Heineccius tells us that the custom of swearing by proxy in Germany, originated in the scruples of ecclesiastics, but we have traces of it in high heathen antiquity. Xenophon, for example, supplies a precedent when he records the proposition of the Thebans to swear in the name of all the Boeotians*. Indeed it was the usual practice of the representatives of the different

* Xen. Hellen. lib. v., c. 1.