party agent, making a half proof, was intitled to pray that his fuppletory oath might be received: And tho' it be against the rules of the common law, yet this being a cause of ecclefiaftical 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 cafes where the civil law is the rule, and the exercise of it lies in the difcretion of the judge. Secondly, It being therefore established, that a perfon, making half proof, is intitled to his oath, the next queftion was, what is, according to the notion of the civilians and canonifts, 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 pofitive unexceptionable witneffes 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 circumftances: It must be by one witnefs; it must be evidence that concludes neceffarily, and not by prefumption; there must be no prefumption to encounter it; and the witness must be of good repute: That matrimonial causes require the greatest certainty; and where that is the fole queftion, 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 fide, that half proof implies no more than what the common lawyers call prefumptive evidence; and that is properly called prefumptive evidence, which hath no one pofitive witnefs to fupport it, but relies only on the ftrength of circumftances. And when there is one witnefs, who depofeth directly to the principal fact, this immediately ceafeth to bear the name of prefumption, and affumes that of pofitive evidence. And that which in the temporal courts paffeth for pofitive evidence, is the fame degree of evidence with the full proof of the canonifts and civilians. The fuppletory oath doth ex vi termini import, that there has been no one pofitive witness to the principal fact; and he that demands to be admitted to take his oath, doth thereby admit that he hath produced no conclufive evidence to the point in iffue, and therefore the party himself fupplies the place of the witnefs. There is no fixing the bounds of an half proof; for in many cafes circumftances may overbear pofitive evidence and then if those circumstances should not be efteemed to amount to an half proof, when the positive evidence would exceed it; that would be to overthrow the the pofitive evidence, by that which is not fo ftrong. Half proof therefore they concluded to be, that degree of evidence which would incline a reasonable man to either fide of the queftion; and implies in the notion of it, that a pofitive witness hath not deposed to the principal fact. And in this cafe, tho' there was no pofitive conclusive evidence, but only fuch as depended on circumftances, as confeffions, and letters, and unusual familiarities, yet the court thought it amounted to an half proof (d), and confequently that the dean of the arches had done right, in admitting Mr. Williams to his fuppletory oath: And therefore they difmiffed the appeal, with 150 l. cofts. Str. 80. The party praying this oath, must exhibit a schedule ingroffed, with his hand to it, wherein is written so much as is proved more than half proof, or half proof; and muft take his oath to fpeak the truth of his own certain knowledge. 1 Ought. 177. (e) 8. By the ancient canon law, a proctor having a spe- Oath in animam cial proxy, may take the oath of calumny, and may fwear domini. in animam domini; upon the foul of his client. Wood Civ. L. 298. But by Can. 132. It is ordained, that forafmuch as in the probate of teftament and fuits for adminiftration of the goods of perfons dying inteftate, the oath ufually taken by proctors of courts, In animam conftituentis, is found to be inconvenient; therefore from henceforth every executor, or fuitor for adminiftration, shall perfonally repair to the judge in that behalf, or his furrogate, and in his own perfon (and not by proctor) take the oath accustomed in these cafes. 9. The oath in litem, or of damages, is that by which Oath of da the plaintiff eftimates the damages in the lofs of any thing; and which the judge may allow or moderate. Wood Civ. L. 314. 10. The oath of expences and cofts, is where the litigant Oath of cofts. (which gained the fentence or decree), upon the taxing of cofts, affirms upon his oath that these charges were neceffarily expended by him in the profecution of his fuit. Wood Civ. L. 314. (d) See Evidence, 1. in not. (e) According to civilians this oath is not tendered by either party, but required by the judge inopiâ probationum, and it is, either fuppletory or purgatory, according as it is tendered to the plaintiff or defendant; but they agree that it ought rarely to be ufed, the maxim being, actore non probante, reus abjolvitur. See Huber ad Dig. 12. 2. 12. All Oath of purga tion. Other oaths of 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 ufe 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 fay, 11. The oath of purgation; which oath was adminiftred where the defendant was fufpected to be guilty; and if he fwore that he was innocent, and produced honeft men for his compurgators, he was to be difcharged. If he could not bring fuch compurgators, to fwear that they also believed him innocent, he was esteemed as convicted of fuch crime. Wood Civ. L. 332. But by the aforefaid act of the 13 C. 2. 6. 12. It shall not be lawful for any perfon exercifing ecclesiastical jurisdiction, to tender or adminifter to any perfon, any oath whereby fuch perfon to whom the fame is tendred 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. 12. Befides the above recited, there are alfo divers other wfe in the courts. oaths of ufe in the courts: As, the oath of the proctor, that he hath not queftioned the witneffes; the oath of the proctor, concerning his bill of cofts; the oath of the party, for the obtaining of abfolution, that he will ftand 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 alledged; the oath of a creditor, concerning his debt; the oath of an executor, administrator, accountant, churchwardens, queftmen, curates, preachers, schoolmafters, phyficians, furgeons, midwives, and other fuch like. 1 Ought. 176. Oath of allegi ance. 13. The oath of allegiance is very ancient: and by the common law, every freeman at his age of twelve years was required, 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 Inft. 73. But the clergy, not being bound to attend at the tourn or leet, were confequently so far exempted from taking this oath of allegiance. 2 Inft. 121. -1 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. 1 H. H. 71, 72, 14. The 14. The oath of fupremacy came in after the reforma Oath of fupre tion, in confequence of abolishing the papal authority. macy. And this oath all clergymen especially were bound to take. 15. The oath of abjuration came in after the revolu Oath of abju. tion; received fome alterations in the first year of queen ration. Anne; and again in the first year of king George the first; and finally in the fixth year of king George the third. And this oath, together with the oaths of allegiance and fupremacy, all clergymen as well as others are bound to take, on their being promoted to offices. 16. In all cafes wherein by any act of parliament an Oaths of qua oath shall be allowed, authorised, or required, the folemn keis. affirmation or declaration of any of the people called qua kers fhall be allowed inftead of fuch oath, altho' no par ticular or exprefs provision be made for that purpose in fuch act. 22 G. 2. c. 46. S. 36. And if any perfon making fuch affirmation or declaration, fhall be lawfully convicted of having wilfully, falfly, and corruptly affirmed or declared any matter or thing, which if the fame had been deposed upon oath in the usual form, would have amounted to wilful and corrupt per jury; he fhall fuffer as in cafes of perjury. Id. But no quaker by virtue hereof fhall be qualified: or permitted to give evidence in any criminal cafes, or to ferve on juries, or to bear any office or place of profit in the government. 37. 17. By the 22 G. 2. c. 30. Every perfon being a mem- of the moravie ber of the proteftant epifcopal church, known by the name ans. of Unitas fratrum, or the united brethren, which church was formerly settled in Moravia and Bohemia, and are now in Pruffia, Poland, Silefia, Lufatia, Germany, the United Provinces, and alfo in his majefty's dominions, who fhall be required to take an oath, fhall be allowed inftead of fuch oath to make their folemn affirmation: But this not to qualify them to give evidence in a criminal cause, or to serve on juries. 18. Such oaths ought to be impofed on heathens and of infidels or jews, which they allow to be obligatory. Wood Civ. aliens. L. 313. Thus a jew is to be fworn upon the old teftament ; and perjury upon the statute may be affigned upon this oath. 2 Keb. 314. And when jews take the oath of abjuration, the words [on the true faith of a christian] shall be omitted. 10 G. 6. 4. f. 18. Thus Oaths and declarations to qua. lify for offices. Thus alfo Mahometans fhall be fworn upon the Korar Str. 1104. In the cafe of Omichund and Barker, H. 18 G. 2. a commiffion iffued out of chancery, to take the answer of Omichund the defendant, and the depofitions of several witnesses, who were heathens of the Gentou religion, in their own country manner, at Calcutta in the Eaft-Indies; and the commiffion being executed and returned, the depofitions were allowed to be read in the court of chancery, by lord Hardwicke, affifted by the two lords chief juftices and the lord chief baron. The manner of taking which oath was thus: There were three bramins or priests prefent, 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. Caf. 397. At the rebel affizes at Carlifle, in the year 1745, many of the Scotch witneffes refusing to be fworn 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. 19. By the 25 C. 2. c. 2. Every perfon who fhall be admitted into any office civil or military, or fhall receive any pay by reafon of any patent or grant from the king, or fhall have any command or place of truft in England or in the navy, or fhall have any fervice or employment in the king's houfhold, fhall within three months after his admiffion receive the facrament according to the ufage of the church of England, in fome publick church on the Lord's day, immediately after divine fervice and fermon: And in the court where he takes the oaths (as hereunder mentioned) he fhall firft deliver a certificate of fuch his receiving the facrament, under the hands of the minifter and churchwardens, and shall then make proof of the truth thereof by two witneffes on oath. And they fhall also, when they take the faid oaths, make and fubfcribe the declaration against tranfubftantiation. f. 2, 3, 9% [But this declaration cannot now be required of those catholicks who fhall take and subscribe the declaration and oath introduced by 31 G. 3. c. 32. Vid. infra, 20. B.] Any office civil or military] Ecclefiaftical offices do not feem to be included within this defcription: and confequently it feemeth not requifite for clergymen, in qualifying for ecclefiaftical offices, to produce any cer 6 tificate |