« PoprzedniaDalej »
when the judge doth administer it, he ought first to be satisfied, that there is an half proof already made, by one unexceptionable witness, or by some other sort of proof. If the cause is of an high nature, and there is a temptation to perjury; or if it is a criminal cause; or if more witnesses might be produced to the same fact; then this oath cannot take place. Wood Civ. L. 314. Ayl. Par. 391.
Before the delegates at Sergeants Inn, Jan. 22, 1717. Williams and Lady Bridget Osborne. The question below was, whether Mr. Williams was married to the lady Bridget Osborne, the minister who performed the ceremony, having formerly confessed it extrajudicially, but now denying it upon oath. So that there being variety of evidence on both sides, the judge upon hearing the cause required, according to the method of ecclesiastical courts, the oath of the party, which the civilians term the suppletory oath, that he was really married as he supposeth in his libel and articles. The accepting this oath (as was agreed on both sides) is discretionary in the judge, and is only used where there is but what the civilians esteem a semiplena probatio; for if there be full proof, it is never required; and if the evidence doth not amount to a half proof, it is never granted, because this oath is not evidence strictly speaking, but only confirmation of evidence; and if that evidence doth not amount to a half proof, a confirmation of it by the party's own oath, will not alter the case. Upon admitting the party to his suppletory oath, the lady appeals to the delegates. So that the question now was not upon the merits, whether there really was a marriage or not, but only upon the course of the ecclesiastical courts, whether the judge in this case ought to have admitted Mr. Williams to his suppletory oath, as a person that had made an half proof of that which he was then to confirm. The questions before the delegates were two: First, whether the suppletory oath ought to be administered in any case to inforce a half proof: And, secondly, admitting it might, whether the evidence in this case amounted to a half proof, so as to entitle Mr. Williams to pray that his suppletory oath might be received. As to the first, it was argued to be against all the rules of the common law, that a man should be a witness in his own cause. It is not allowed in the temporal courts in any case but that of a robbery, which being presumed to be secret, the party is admitted to be a witness for himself. In the temporal courts no man can be examined that has any interest, though he be no party to the suit. On the other side many authorities and precedents were cited out of the civil law, to prove this practice of allowing a suppletory oath. And therefore the court held, that by the canon and civil law, the party agent, making a half proof, was entitled to pray that his suppletory oath might be received:
being presumed to the temporal fou be no party
And though it be against the rules of the common law, yet this being a cause of ecclesiastical cognizance, the civil and not the common law is to be the measure of their proceedings; and therefore this practice being agreeable to the civil law, is well warranted in all cases where the civil law is the rule, and the exercise of it lies in the discretion of the judge. Secondly, it being therefore established, that a person, making half proof, is entitled to his oath, the next question was, What is, according to the notion of the civilians and canonists, a half proof? With them it was argued on the behalf of the lady, that nothing is esteemed as a full proof, unless there be two positive unexceptionable witnesses to the very matter of fact, as to the marriage ; that a half proof, which is the next degree of evidence, is what is affirmed by the oath of one witness as to the principal fact, and confirmed by concurrent circumstances : It must be by one witness; it must be evidence that concludes necessarily, and not by presumption; there must be no presumption to encounter it; and the witness must be of good repute: That matrimonial causes require the greatest certainty; and where that is the sole question, the proof ought to be fuller than where it comes in by incident, as on granting administration. To this it was answered on the other side, that half proof implies no more than what the common lawyers call presumptive evidence; and that is properly called presumptive evidence, which hath no one positive witness to support it, but relies only on the strength of circumstances. And when there is one witness, who deposeth directly to the principal fact, this immediately ceaseth to bear the name of presumption, and assumes that of positive evidence. And that which in the temporal courts passeth for positive evidence, is the same degree of evidence with the full proof of the canonists and civilians. The suppletory oath doth ex vi termini import, that there has been no one positive witness to the principal fact; and he that demands to be admitted to take his oath, doth thereby admit that he hath produced no conclusive evidence to the point in issue, and therefore the party himself supplies the place of the witness. There is no fixing the bounds of an half proof; for in many cases circumstances may overbear positive evidence: and then if those circumstances should not be esteemed to amount to an half proof, when the positive evidence would exceed it; that would be to overthrow the positive evidence, by that which is not [ 11 ] so strong. Half proof therefore they concluded to be, that degree of evidence which would incline a reasonable man to either side of the question; and implies in the notion of it, that a positive witness hath not deposed to the principal fact. And in this case, though there was no positive conclusive evidence, but only such as depended on circumstances, as confessions, and letters, and unusual familiarities, yet the court thought it amounted to
an half proof (c), and consequently that the dean of the arches had done right, in admitting Mr. Williams to his suppletory oath : And therefore they dismissed the appeal, with 150l. costs. Str. 80.
The party praying this oath, must exhibit a schedule ingrossed, with his hand to it, wherein is written so much as is proved more than half proof, or half proof; and must take his oath to speak
the truth of his own certain knowledge. 1 Ought. 177. (d) Oath in 8. By the ancient canon law, a proctor having a special proxy, animam
may take the oath of calumny, and may swear in animam domini ; domini,
upon the soul of his client. Wood Civ. L. 298.
But by Can. 132. It is ordained, that forasmuch as in the probate of testament and suits for administration of the goods of persons dying intestate, the oath usually taken by proctors of courts, In animam constituentis, is found to be inconvenient; therefore from henceforth every executor, or suitor for administration, shall personally repair to the judge in that behalf, or his surrogate, and in his own person (and not by proctor) take the
oath accustomed in these cases. Oath of da- 9. The oath in litem, or of damages, is that by which the plainmages.
tiff estimates the damages in the loss of any thing; and which
the judge may allow or moderate. Wood Civ. L. 314. Oath of 10. The oath of expences and costs, is where the litigant (which
gained the sentence or decree), upon the taxing of costs, affirms upon his oath that these charges were necessarily expended by
him in the prosecution of his suit. Wood Civ. L. 314. [ 12 7 All these oaths are unknown to the common law, but they
were all used in the courts governed by the civil or canon law. Wood Civ. L. 314.
But they are only made use of in civil causes, and cannot be properly applied to criminal. Wood Civ. L. 333. But the oath
next following regardeth only criminal cases : That is to say, Oath of
11. The oath of purgation, which oath was administered where purgation.
the defendant was suspected to be guilty; and if he swore that he was innocent, and produced honest men for his compurgators, he was to be discharged. If he could not bring such compurgators, to swear that they also believed him innocent, he was esteemed as convicted of such crime. Wood Civ. L. 332.
But by the aforesaid act of the 13 C. 2. c. 12. it shall not be
(c) See Evidence, 1. in note.
(d) According to civilians this oath is not tendered by either party, but required by the judge inopid probationum, and it is either suppletory or purgatory, according as it is tendered to the plaintiff or defendant; but they agree that it ought rarely to be used, the maxim being, actore non probante, reus absolvitur. See Huber ad Dig. 12. 2. 12.
lawful for any person exercising ecclesiastical jurisdiction, to tender or administer to any person, any oath whereby such person to whom the same is tendered or administered, may be charged or compelled to confess, or accuse, or to purge him or herself of any criminal matter or thing, whereby he or she may be liable to censure or punishment.
12. Besides the above recited, there are also divers other oaths Other oaths of use in the courts : As, the oath of the proctor, that he hath of use in not questioned the witnesses; the oath of the proctor, concerning his bill of costs; the oath of the party, for the obtaining of absolution, that he will stand to the law, and obey the commands of the church; the oath of the party, on his being admitted in forma pauperis; the oath of the party, concerning matter newly come to his knowledge; the oath of the party that he believes he can prove the matter alleged; the oath of a creditor, concerning his debt; the oath of an executor, administrator, accountant, church wardens, questmen, curates, preachers, schoolmasters, physicians, surgeons, midwives, and other such like. 1 Ought. 176.
13. The oath of allegiance is very antient: and by the com- Oath of mon law, every freeman at his age of twelve years was required, allegiance. in the leet (if he were in any leet), or in the tourn (if he were not in any leet), to take the oath of allegiance. 2 Inst. 73.
But the clergy, not being bound to attend at the tourn or leet, were consequently so far exempted from taking this oath of allegiance. 2 Inst. 121. i H. H.64.
But they were bound nevertheless to do homage to the king, for the lands held of him in right of the church. i H. H. 71, 72. Oath of
14. The oath of supremacy came in after the reformation, in supremacy. consequence of abolishing the papal authority. And this oath L 13 J all clergymen especially were bound to take.
15. The oath of abjuration came in after the revolution; re- Oath of abceived some alterations in the first year of queen Anne; and juration. again in the first year of king George the first; and finally in the sixth year of king George the third. And this oath, together with the oaths of allegiance and supremacy, all clergymen as well as others are bound to take, on their being promoted to offices.
16. In all cases wherein by any act of parliament an oath shall Oaths of be allowed, authorised, or required, the solemn affirmation ordeclar- quakers.
(See 1 W.& ation of any of the people called quakers shall be allowed instead of such oath, although no particular or express provision be made s. 13. as for that purpose in such act. 22 G. 2. c. 46. § 36.
And if any person making such affirmation or declaration, shall be lawfully convicted of having wilfully, falsely, and corruptly affirmed or declared any matter or thing, which if the same had been deposed upon oath in the usual form, would have
Andt; and inne; and Oath of
commented on 2 vol. 197. note. 7 ravians.
Lusatia and Bohemiren, which by the name member of
amounted to wilful and corrupt perjury; he shall suffer as in cases of perjury. 22 G. 2. c.46.536.
But no quaker by virtue hereof shall be qualified or permitted to give evidence in any criminal cases, or to serve on juries, or
to bear any office or place of profit in the government. $37. Of the Mo- 17. By the 22 G. 2. c. 30. Every person being a member of
the protestant episcopal church, known by the name of Unitas fratrum, or the united brethren, which church was formerly settled in Moravia and Bohemia, and are now in Prussia, Poland, Silesia, Lusatia, Germany, the United Provinces, and also in his majesty's dominions, who shall be required to take an oath, shall be allowed instead of such oath to make their solemn affirmation: But this not to qualify them to give evidence in a criminal
cause, or to serve on juries. Of infidels 18. Such oaths ought to be imposed on heathens and Jews, or aliens. which they allow to be obligatory. Wood Civ. L. 313.
Thus a Jew is to be sworn upon the old testament; and perjury upon the statute may be assigned upon this oath. 2 Keb. 314. See Jewe.
And when Jews take the oath of abjuration, the words (on the
true faith of a Christian] shall be omitted. 10 G. c. 4. $18. [ 14 1 Thus also Mahometans shall be sworn upon the Koran.
In the case of Omichund and Barker, H. 18 G. 2. a commission issued out of chancery, to take the answer of Omichund the defendant, and the depositions of several witnesses, who were heathens of the Gentou religion, in their own country manner, at Calcutta in the East Indies; and the commission being executed and returned, the depositions were allowed to be read in the court of chancery, by lord Hardwicke, assisted by the two lords chief justices and the lord chief baron. The manner of taking which oath was thus: there were three bramins or priests present, and the oath being interpreted to each witness, the witness touched the feet of one of the bramins, and two being bramins or priests did touch his hand. 2 Abr. Eq. Cas. 397.
At the rebel assizes at Carlisle, in the year 1745, many of the Scotch witnesses refusing to be sworn otherwise than in their own country manner; the judges so far submitted, as to allow them to be sworn after the Scotch manner for finding the bills, by the
grand jury, but did not admit it upon the trials. Oaths and 19. By the 25 C. 2. c. 2. Every person who shall be admitted declarations into any office civil or military, or shall receive any pay by reason to qualify for offices. of any patent or grant from the king, or shall have any command
or place of trust in England or in the navy, or shall have any service or employment in the king's household, shall within three months after his admission receive the sacrament according to the usage of the church of England, in some public church on