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two causes (matrimonial and teftamentary); and that was grounded upon great reason: for laymen for the moft pare are not lettered, wherefore they may easily be inveigled and intrapped, and principally in herelies and errors. 12 Co. 26.
Again, H. 13 7. 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 ftatute of 13 C. 2. c. 12. it is enacted, that it shall not be lawful for any person exercising ecclefiaflical jurisdiétion, to tender or adminifler to any person whatfoever, the outh usually called the cath ex officio, or any other ' oath, whereby such person to whom the fame is tendered or adminiftred, may be charged or compelled to confess, or accuje, or to purge him or herself of any criminal matter er thing, whereby he or she may be liable to censure or pue nishment.
But in other cases, where the course of the ecclefiaftical 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 fuit 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 faid, it was no more than the chancery did to make defendants answer upon oath in such like cases. Gibf. 1011.
And fome years before that in the case of Goulfon and Wainwright, it was held by the court, that if articles ex officio are exhibited in the spiritual court for matters crie minal, and the party is required to answer upon path, he B 3
I Ventr. 339.
Oath of calumny.
may have a prohibition : but if it be a civil matter, he
3. The oath of calumny was required by the Roman
And by a legatine constitution of Otho it is thus ordained : The oath of calumny, in causes 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 shall “ 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 « knowledge) use any false proof: That you will not " out of fraud request any delay, so as to protract the “ fuit : That you have not given or promised any thing; “ neither will give or promise any thing, in order to ob“ tain the victory, except to such persons, to whom she « laws and the canons do permit: 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 Ihall be taken as having confessed. Athon. 60.
The cuflom obtained to the contrary notwithsianding] By this it appeareth that by the custom of the realm of England, the oath of calumny was not to be administred. 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 caufes matrimonial and teftamentary; and in those two cases, the ecclefiaftical judge might examine the parties upon their oath, because contracts of matrimooy, and the estates of the dead, are many times secret,
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, disected to the Theriff, to prohibit the ordinaries from calling Jaymen to that oath against their wills, except in those two cases. 2 Inf. 657. 12 Co. 26. Gibs, JO11.
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 Inf. 657. 12 Co. 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 fhall proceed according to the canonical fanctions ; 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. 6. 1. 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 Otho, 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 A. 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 Inf.658. 12 Co. 29.
So that the result 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 : so far as it is warranted by the cultom, it is still of force ; and consequently extendeth to the clergy, and to laymen in cases matrimonial and teftamentary, and also to persons who take the said oath voluntarily, and not by compulsion.
The voluntary or decifre oath.
Oath of truth,
For the writs in the register do only require, that laymen 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 decisive oath, is given by one 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, otherwise 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 Inft. 155, 157. 2 Infl
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.
6. The oath of malice, is when the party proponent swears that he doth not propose such a matter or allegation, out of malice, or with an intent unnecessarily to protract the cause. i Ougbt. 158.
And this path may be adminiftred at any time during the suit, at the judge's discretion, whether the parties con sent 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 sufficient power to the judge to condemn or absolve. It is called the necessary oath, because it is given out of necellity, 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 fort of proof. If the cause is of
Oath of malice.
(c) Qui jusjurandum defert prior de calumnia debet jurare, fs 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 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 ecclefiaftical courts, the oath of the party, which the civilians term the suppletory oath, that he was really married as he fupposeth 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 owo 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 ecclesiastical courts, whether the judge in this case ought to have adınitted Mr. Williams to his fuppletory 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 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 hould 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 witnels 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 therefore the court held, that by the canon and civil law, the