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 cases. 22 Inft. 657. 12 Ga. 26. Gibf.

1011.

But this cuftom extended not to thofe 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 bearing 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 against 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 whereby it was enacted, that diocefans fhall proceed according to the canonical fan&tions; which act was repealed by 25 H. 8.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 it was finally repealed.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 mat ter 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 cuftom 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 thefe premises, will be this; So far as this conftitution was against the cuftom 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 Dath voluntarily, and not by compulfion.

The voluntary or decifive oath.

Oath of truth.

Oath of malice,

Suppletory oath.

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

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 adverfary; which the adverfary is bound to accept, or to make the fame proposal 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 fimple contract. 1. Inft. 155, 157. 2 Inft. 45.

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

5. The oath of truth, is when the plaintiff or defendant is fworn 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 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 allega tion, 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 suppletory oath, is given by the judge to the plaintiff or defendant, upon half proof already made. This being joined to the half proof fupplies, and gives fufficient power to the judge to condemn or abfolve. It is called the neceffary oath, becaufe it is given out of neceffity, at the inftance of the party, whether the other party will confent to it or not. But when the judge doth adminifter it, he ought firft to be fatisfied, that there is an half proof already made, by one unexceptionable wit nefs, or by fome other fort of proof. If the caufe is of

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

an

an high nature, and there is a témptation 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 Ofberne; 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 fpeaking, 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 question now was not upon the merits, whether there really was a marriage or not, but only upon the course 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 cafe amounted to a half proof, fo as to entitle Mr. Williams to pray that his fupplctory 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 cause. 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 witnels for himself. In the temporal courts no man can be examined that has any interett, 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

party

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 cir cumftances: It must be by one witnefs; it must be evidence that concludes neceffarily, and not by prefumption; there must be no presumption to encounter it; and the witness must be of good repute: That matrimonial causes require the greateft certainty; and where that is the fole queftion, the proof ought to be fuller than where it comes in by incident, as on granting adminiftration. 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 witness to support 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 witness. There is no fixing the bounds of an half proof; for in many cafes circumftances may overbear pofitive evidence and then if thofe circumftances fhould 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 question; and implies in the notion of it, that a pofitive witness hath not depofed to the principal fact. And in this cafe, tho' there was no pofitive conclufive evidence, but only fuch as depended on circumftances, as confeflions, and letters, and unufual 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, muft exhibit a schedule ingroffed, with his hand to it, wherein is written fo much ás is proved more than half proof, or half proof; and muft take his oath to speak the truth of his own certain knowledge. 1 Ought. 177. (e)

. By the ancient canon law, a proctor having a fpe- 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, fhall 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 cases.

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.

(4) 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 afed, the maxim being, actore non probante, reus abfolvitur. See Huber ad Dig, 12, 2, 12.

All