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

Again, H. 13 7. Dighton and Holt's cafe. They were committed by the high commiffioners, 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 reafon thereof Coke chief juftice declared to be, because this examination is made to cause them to accuse themselves of the breach of a penal law; which is against law, for they ought to proceed against them by witneffes, and not inforce them to take an oath to accuse themselves. Cro. Ja. 388.

Finally, by the ftatute of 13 C. 2. c. 12. it is enacted, that it shall not be lawful for any perfon exercifing ecclefiaflical jurifdiction, to tender or adminifter to any perfon whatJoever, the oath usually called the oath ex officio, or any other oath, whereby fuch perfon to whom the fame is tendered or adminiftred, may be charged or compelled to confefs, or accufe, or to purge him or herself of any criminal matter or thing, whereby he or she may be liable to cenfure or punishment.

But in other cafes, where the courfe of the ecclefiaftical courts hath been, to receive anfwers upon oath, they may ftill receive them. And therefore in the cafe of Hern and Brown, T. 31 C. 2. where a fuit was for payment of the proportion affeffed 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 faid, it was no more than the chancery did to make defendants answer upon oath in fuch like cafes. Gibf. 1011. 1 Ventr. 339.

And fome years before that in the cafe of Goulfon and Wainwright, it was held by the court, that if articles ex afficio are exhibited in the fpiritual court for matters criminal, and the party is required to anfwer upon oath, he

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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. Gibs. 1011. I Sid. 374.

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

439.

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And by a legatine conftitution of Otho it is thus ordained: The oath of calumny, in caufes ecclefiaftical and civil, for fpeaking the truth in fpirituals whereby the truth may be more eafily difcovered, and caufes more speedily determined, we ordain for the future to be taken in the kingdom of England, according to the canonical and legal fan&tion, the custom obtained to the contrary notwithstanding. Athon. 60.

The oath of calumny] Which oath was this: "You fhall "fwear, That you believe the cause you move is just :

That you will not deny any thing you believe is truth, "when you are asked of it: That you will not (to your "knowledge) use any false proof: That you will not "out of fraud request any delay, fo as to protract the "fuit: That you have not given or promised any thing, "neither will give or promife any thing, in order to ob"tain the victory, except to fuch perfons, to whom the laws and the canons do permit: So help you God." Confet. 91.

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

To be taken] And this both by the plaintiff and the defendant. Which if they fhall refuse respectively, the plaintiff in fuch cafe fhall lose his caufe, and the defendant hall be taken as having confeffed. Athon. 60.

The custom obtained to the contrary notwithflanding] By this it appeareth that by the custom of the realm of England, the oath of calumny was not to be adminiftred. Nevertheless this cuftom was not fo general as in this canon is alleged. The cafe was thus: Laymen were free by the custom of the realm from taking of that oath, unless it were in caufes matrimonial and teftamentary; and in those two cafes, the ecclefiaftical judge might examine the parties upon their oath, becaufe contracts of matrimony, and the eftates of the dead, are many times fecret,

and

and do not concern the fhame and infamy of the party, as adultery, incontinency, fimony, herefy, and fuch like. And this appeareth by two writs in the register, directed to the fheriff, to prohibit the ordinaries from calling laymen to that oath against their wills, except in those two cafes. 2 Inft. 657. 2 Inft. 657. 12 Co. 26. Gibf.

1011.

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

But if, in a penal law, the jurifdiction of the ordinary be faved, as by 1 Eliz. for hearing of maffes, or by 13 El. for ufury, or the like, neither clerk nor layman fhall be compelled to take the oath of calumny; because it may be an evidence againft him at the common law, upon the penal ftatute. 2 Inft. 657. 12 Co. 27.

This oath had long continuance in the ecclefiaftical court and it had the warrant of an act of parliament, in 2 H. 4. c. 15. whereby it was enacted, that diocefans fhall proceed according to the canonical fan&tions; which act was repealed by 25 H. 8. c. 24. but was revived in the reign of queen Mary, and then all the martyrs who were burnt were examined upon their oaths; and then again. by the 1 Eliz. c. 1. it was finally repealed. And the matter touching this oath at this day ftandeth thus: It is confeffed, as well by the faid provincial conftitution of Otho, as by the register, that the faid conftitution 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 cafe of an oath, which is fo facred a thing, and which generally concerneth all the nobility, gentry, and commonalty of the realm of both fexes: And by the ftatute of the 25 H. 8. c. 19. no canon against the king's prerogative, the law, ftatutes, or custom of the realm is of force; which is but declaratory of the common law. 2 Inft. 658. 12 Co. 29.

So that the refult of the matter, upon these premises, will be this; So far as this conftitution was against the custom of the realm, it is of no avail: fo far as it is warranted by the cuftom, it is ftill of force; and confequently extendeth to the clergy, and to laymen in cafes matrimonial and teftamentary, and alfo to perfons who take the faid oath voluntarily, and not by compulsion.

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The voluntary or decifive oath.

Oath of truth.

Oath of malice.

Suppletory oath,

For the writs in the register do only require, that lay men be not compelled to answer against their will; so that if any affent to it, and take it without exception, this ftandeth with law. 12 Co. 27.

4. The voluntary or decifive oath, is given by one party to the other, when one of the litigants, not being able to prove his charge, offers to ftand or fall by the oath of his adversary; which the adversary is bound to accept, or to make the fame propofal back again, otherwife the whole fhall be taken as confeffed by him. Wood Civ. L. 314. (c)

And this feemeth to have fome foundation in the common 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. 1 Inft. 155, 157. 2 Inft. 45.

But this oath, in the ecclefiaftical courts, is now obfolete, and out of use. 1 Ought. 176.

5. The oath of truth, is when the plaintiff or defendant is worn upon the libel or allegation, to make a true anfwer 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 decifive; and the plaintiff or defendant may proceed to other proofs, or prove the contrary to what is fworn. Wood Civ. L. 314.

6. The oath of malice, is when the party proponent fwears that he doth not propofe fuch a matter or allegation, out of malice, or with an intent unneceffarily to protract the cause. 1 Ought. 158.

And this oath may be adminiftred at any time during the fuit, at the judge's difcretion, whether the parties confent to it or not. Id.

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 fufficient power to the judge to condemn or abfolve. It is called the necessary oath, because it is given out of neceffity, at the inftance of the party, whether the other party will consent to it or not. But when the judge doth adminifter it, he ought first to be fatisfied, that there is an half proof already made, by one unexceptionable witnefs, or by fome other fort of proof. If the cause is of

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

an

an high nature, and there is a temptation to perjury; or if it is a criminal caufe; or if more witneffes might be produced to the fame 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 Ofborne. The question below was, whether Mr. Williams was married to the lady Bridget Ofborne; the minifter who performed the ceremony, having formerly confeffed it extrajudicially, but now denying it upon oath. So that there being variety of evidence on both fides, the judge upon hearing the caufe required, according to the method of ecclefiaftical courts, the oath of the party, which the civilians term the fuppletory oath, that he was really married as he fuppofeth in his libel and articles. The accepting this oath (as was agreed on both fides) is difcretionary in the judge, and is only used where there is but what the civilians efteem a femiplena 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 ftrictly 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 cafe. Upon admitting the party to his fuppletory oath, the lady appeals to the delegates. So that the queftion now was not upon the merits, whether there really was a marriage or not, but only upon the courfe of the ecclefiaftical courts, whether the judge in this cafe ought to have admitted Mr. Williams to his fuppletory oath, as a perfon that had made an half proof of that which he was then to confirm. The questions before the delegates were two: First, whether the fuppletory oath ought to be adminiftred in any cafe to inforce a half proof: And, fecondly, admitting it might, whether the evidence in this case amounted to a half proof, fo as to entitle Mr. Williams to pray that his fuppletory oath might be received. As to the first, it was argued to be against all the rules of the common law, that a man fhould be a witnefs in his own caufe. It is not allowed in the temporal courts in any cafe but that of a robbery, which being prefumed to be fecret, the party is admitted to be a witnefs for himself. In the temporal courts no man can be examined that has any intereft, tho' he be no party to the fuit. On the other fide many authorities and precedents were cited out of the civil law, to prove this practice of allowing a fuppletory oath. And therefore the court held, that by the canon and civil law, the

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