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and do not concern the fame and infamy of the party, as adultery, incontinency, fimony, heresy, and such like. And this appeareth_by two wries in the register, directed to the sheriff, to prohibit the ordinaries from calling laymen to that oath, againīt their wills, except in those two cases. 2 Inft. 657. 12 Go, 26. Gibf. 1011.
But this custom extended not to chofe 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 jurisdi&tion of the ordinary be saved, as by 1 Eliz. for bearing of masses, or by 13 El for usury, or the like, neither clerk nor layman Anal be compelled to take the oath of calumny ; becaufe it may be an evidence against him at she common law, upon the penal ftatute, 2 Inft. 657. 12 Co. 27.
This oath had long continuance in the ecclesiastical court : and it had the warrant of an act of parliament, ia 2 H. 4. c. 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 whereby it was enacted, that diocesans fhall proceed according to the canonical fanctions; which act was repealed by 25 H. 8.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 burat were examined upon their - oaths ; and then again by the 1 Eliz. c. 1. it was finally repealed. And the marie ter touching this oath at this day ftandeth thus : It is confessed, as well by the said provincial conftitution of Orbo, as by the register, that the said constitation was against the custom of the realm : and no custom of the reaim 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 so sacred a thing, and which generally concernech 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 againft the king's prerogative, the law, Atatutes, or custom of the realm is of force ; wbich is but declaratory of the common law. 2 Inft. 658. 12 Co. 29.
So that the result of the matter, upon these premises, will be this; So far as this constitution was against the cuftom of the realm, it is of no avail : fo 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 ozih voluntarily, and not by compulsion.
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. : The voluntary 4. The voluntary or decisive: oath, is given by one or deciGve 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, otherwise the whole fhall be taken as confessed by him. Wood Civ. L. 314. (c)
And this seemeth to have some 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 fimple contract. 1 Inft. 155, 157. 2 Inf. 45.
But this oath, in the ecclefiaftical courts, is now ob.
solete, and out of use. 1 Ought. 176. Qath 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. 3'4. Oath of malice, 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 unneceffarily to protract the cause. Ought. 158.
And this oath may be adminiftred at any time during the suit, at the judge's discretion, whether the parties con
sent to it or not. id. 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 fufficient power to the judge to condemn or absolve. It is called the necessary oath, because it is given out of necelfity, at the instance 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 satisfied, that there is an half proof already made, by one unexceptionable wit. ness, or by some other sort of proof. If the cause is of
(c) Qui jusjurandum defert prior de calumnia debet jurare, k 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 Ofborne; 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 fuppletory oath, that he was really married as he supposeth 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 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 ftrialy 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 ad initted Mr. Williams to his suppletory oath, as a person that had made an half proof of that which he was then to confirm. The queftions before the delegates were iwo: First, whether the fuppletory oath ought to be administred in any case to inforce a half proof: And, secondly, admirting it might, whether the evidence in this case amounted to a half proof, so as to entitle Mr. Williams to pray that his fuppletory catb 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 presuaied to be secret, the party is adinitted to te a witneis for himself. In the temporal couris 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 pra&ice of allowing a fuppletory oath. And there. fore the court beld, that by the canon and civil law, the
party agent, making a half proof, was intitled to pray that his fuppletory oath might be received : And tho it be agaiost 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 meafure of their proceedings ; and therefore this practice being agreeable to the civil jaw, 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 intitled to his oath, the next question 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 positive unexception able 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 wittiess; 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 role 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 presumptive evidence; and that is properly called presumptive evidence, which hath no one positive witness to support it, but reJies 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 prefumption, and affumes that of positive evidence. And that which in the temporal courts pafleth for pofitive evidence, is the same degree of evidence with the full proof of the canonists and civilians. The fuppletory 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 hash produced no conclufive 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 over bear pofitive evidence : and then if those circumstances (hould 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 so strong:
The party praying this oath, must exhibit a schedule
. By the ancient canon law, a proctor having a spe. Oath in animam cial proxy, may take the oath of calumny, and may swear domini, in animam 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 teftament and suits for adminiftration of the goods of persons dying intestate, the oath usually taken by proctors of courts, In animam conftituentis, is found to be inconvenient ; therefore from henceforth every executor, or suitor for administration, shall persona'ly 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.
9. The oath in litem, or of damages, is that by which Oath of da. the plaintiff estimates the damages in the loss of any thing; mages. and which the judge may allow or moderate. Wood Civ.
10. The oath of expences and costs, is where the litigant Oath of cofts. (which gained the sentence or decree), upon the taxing of cofts, affirms upon his oath that ihese charges were peceffarily expended by him in the profecution of his suit. Wood Civ. L. 314.
(4) See Ebidence, I. in not.
(c) According to civilians this oath is not cendered by either perty, but required by the judge inopia 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 used, the maxim being, aktore non probante, reus absolvitur. See Huber ad Dig. 12, 2, 12.