Sidebilder
PDF
ePub
[merged small][ocr errors][ocr errors][ocr errors]

two causes (matrimonial and teftamentary); and that was grounded upon great reason: for laymen for the moft part are not lettered, wherefore they may easily be inveigled and intrapped, and principally in herelies and errors. 12 Co. 26.

Again, H. 137. Dighton and Holt's case. They were committed by the high commissioners, because they refused to take the oath ex officio; whereupon an habeas corpus being awarded, it was returned, that they were committed, because they being convented for flandrous words, against the book of common prayer and the government of the church, and being tendered the oath to be examined upon these causes, they refused, and were therefore committed. And after three terms deliberation, the court now gave their resolution, that they ought to be delivered. And the reason thereof Coke chief justice declared to be, because this examination is made to cause them to accuse themselves of the breach of a penal law; which is againft law, for they ought to proceed against them by witnesses, and not inforce them to take an oath to accuse themselves. Cro. Ja. 388.

Finally, by the statute of 13 C. 2. 6. 12. it is enacted, that it shall not be lawful for any person exercising ecclefia aflical jurisdiction, 10 tender or adminifter to any person whatfoever, the outh usually called the oath ex officio, or any other oath, whereby such person to whom the fame is tendered or ad. miniftred, 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 cenfure or pu. nishment.

But in other cases, where the course of the ecclesiastical courts hath been, to receive answers upon oath, they may still receive them. And therefore in the case of Hern and Brown, T. 31 C. 2. where a suit was for payment of the proportion affefled towards the repair of the church, the defendant offering to give in his answer, but not upon oath, prayed a prohibition, because it was refused. The court, after hearing arguments, denied the prohibition ; for they said, it was no more than the chancery did to make defendants answer upon oath in such like cases. Gibs. 1011. i Ventr. 339.

And some years before that in the caso of Goulson and Wainwright, it was held by the court, that if articles ex officio are exhibited in the spiritual court for matters cria minal, and the party is required to answer upon path, he

like cade Fome ye was held by piritual courwer upon Casamay

B 3

Oath of calumny.

may have a prohibition : but if it be a civil matter, he cannot do so, for then he s bound to answer. Gibl. 1011. 1 Sid. 374.

3. The oath of calumny was required by the Roman law, of all persons engaged in any lawsuit, obliging both plaintiffs and defendants, at the beginning of the cause, to swear that their demands and their defences were fincere and upright, without any intention to give unnecessary trouble, or to use quirks and cavils. i Domat. 439.

And by a legatine conftitution of Otho it is thus ordained : The oath of calumny, in caufes ecclefiaftical and civil, for speaking the truth in spirituals whereby the truth may be more easily discovered, and causes more speedily determined, we ordain for the future to be taken in the kingdom of England, according to the canonical and legal fanction, the custom obtained to the contrary notwithstanding. Athon. 60.

The oath of calumny] Which oath was this : “ You fhall 6 swear, That you believe the cause you move is just : 6. That you will not deny any thing you believe is truth, 66. when you are asked of it: That you will not (to your c knowledge) use any false proof: That you will not 66 out of fraud request any delay, so as to protract the 66 suit : That you have not given or promised any thing, " neither will give or promise any thing, in order to ob66 tain the victory, except to such persons; to whom the « laws and the canons do permit i So help you God." Confet. 91.

Of calumny] Jusjurandum calumniæ; sc. vitandæ : for the avoiding of calumny. Athon. 60.

To be taken And this both by the plaintiff and the defendant. Which if they shall refuse respectively, the plaintiff in such case shall lose his cause, and the defendant Thall be taken as having confessed. Athon. 60.

The cuflom obtained to the contrary notwithstanding] By this it appeareth that by the custom of the realm of England, che oath of calumny was not to be adminiftred. Nevertheless this custom was not so general as in this canon is alleged. The case was thus : Laymen were free by the custom of the realm from taking of that oath, unless it were in causes matrimonial and teftamentary; and in those two cases, the ecclefiaftical judge might examine the parties upon their oath, because contracts of matrimony, and the estates of the dead, are many times secret,

and

heriff,"

[ocr errors]

and do not concern the shame and infamy of the party, as adultery, incontinency, fimony, heresy, and such like. And this appeareth by two writs in the register, directed to the Cheriff, to prohibit the ordinaries from calling laymen to that oath against their wills, except in those two cases. 2 Inft. 657. 12 Co. 26. Gibs. 1011.

But this custom extended not to those of the clergy, but to lay people only; for that they of the clergy, being presumed to be learned men, were better able to take the oath of calumny. 2 Inft. 657.

But if, in a penal law, the jurisdiction of the ordinary be saved, as by i Eliz. for hearing of masses, or by 13 El. for usury, or the like, neither clerk nor layman shall be compelled to take the oath of calumny; because it may be an evidence against him at the common law, upon the penal statute, 2 Inft. 657. 12 Go. 27.

This oath had long continuance in the ecclesiastical court : and it had the warrant of an act of parliament, in 2 H. 4. 6. 15. whereby it was enacted, that diocesans shall proceed according to the canonical sanctions ; which act 'was repealed by 25 H. 8. 6. 24. but was revived in the reign of queen Mary, and then all the martyrs who were burot were examined upon their oaths; and then again by the i Eliz. C. J. it was finally repealed. And the male ter touching this oath at this day ftandeth thus : It is confessed, as well by the said provincial constitution of Orbo, as by the register, that the said constitution was against the custom of the realm :, and no custom of the realm can be taken away by a canon of the church, but only by act of parliament; and especially in case of an oath, which is so sacred a thing, and which generally concerneth all the nobility, gentry, and commonalty of the realm of both sexes : And by the statute of the 25 H. 8. 6. 19. no canon against the king's prerogative, the law, statutes, or custom of the realm is of force ; which is but declaratory of the common law. 2 Infi.658. 12 Co. 29.

So that the result of the matter, upon these premises, will be this ; So far as this constitution was againt the custom of the realm, it is of no avail: so far as it is warranted by the custom, it is still of force ; and consequently extendech to the clergy, and to laymen in cases matrimonial and teftamentary, and also to persons who take the said Qash voluntarily, and not by compulsion. i

[blocks in formation]
[ocr errors]

For the writs in the register do only require, that laymen be not compelled to answer against their will; so that if any assent to it, and take it without exception, this

ftandeth with law. 12 Ca. 27.
The voluntary 4. The voluntary or decisive oath, is given by one
or decißve oath.

party to the other, when one of the litigants, not being
able to prove his charge, offers to stand or fall by the
oath of his adversary ; which the adversary is bound to
accept, or to make the same proposal back again, other-
wise the whole shall be taken as confessed by him.
Wood Civ. L. 314. (c)

And this seemeth to have some foundation in the com.
mon law, in what is called waging of law ; which is a
privilege that the law giveth to a man, by his own oath to
free himself, in an action of debt upon a simple contract.

i Inf. 155, 157. 2 Inft. 45.
. But this oath, in the ecclesiastical courts, is now ob.

folete, and out of use. i Ought. 176.
Oath of truth. 5. The oath of truth, is when the plaintiff or defend,

ant is sworn upon the libel or allegation, to make a true
answer of his knowledge as to his own fact, and of his
belief of the fact of others. This differs from the former,
for it is not decisive; and the plaintiff or defendant may
proceed to other proofs, or prove the contrary to what is

sworn. Wood Civ. L. 314.
Oath of malice. 6. The oath of malice, is when the party proponent

swears that he doth not propose such a matter or allega-
tion, out of malice, or with an intent unnecessarily to
protract the cause. i Ougbt. 158.

And this path may be administred at any time 'during
the suit, at the judge's discretion, whether the parties con

sent to it or not. 1d.
Suppletory oath 7. The necessary or fuppletory oath, is given by the judge

to the plaintiff or defendant, upon half proof already made.
This being joined to the half proof supplies, and gives
sufficient power to the judge to condemn or absolve. It
is called the necessary oath, because it is given out of ne-
ceflity, at the instance of the party, whether the other
party will consent to it or not. But when the judge doth
administer it, he ought first to be satisfied, that there is
an half proof already made, by one unexceptionable wit.
nels, or by some other sort of proof. If the cause is of

[ocr errors]

(c) Qui jusjurandum defert prior de calumnia debet jurare, si boc exigatur. Dig. 12. 2. 34. § 4.

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 Serjeants Inn, Jan. 22, 1717. Williams and Lady Bridget Osborne. The question below was, whether Mr. Williams was married to the lady Bridget Ofoorne; 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 ecclefiaftical courts, the oath of the party, which the civilians term the luppletory oath, that he was really married as he supposerb in his libel and articles. The accepting this oath (as was agreed on both fides) 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 doch 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 fuppletory 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 ecclefiaftical courts, when ther the judge in this case ought to have ad.nitted Mr. Williams to his suppletory oath, as a person that had made an halt proof of that which he was then to confirm. The questions before the delegates were two: First, whether the suppletory oath ought to be administred 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 adınitted to be a witness for himself. In the temporal courts no man can be examined that has any inierelt, tho' 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 there. fore the court held, that by the canon and civil law, the

party

« ForrigeFortsett »