Report No. 28
37. Special oaths and wager of law-Decisory and suppletory oaths.-The conclusive character of the evidence given on special oath makes it look like a wager of the law. As is stated by Best1,-
"One of the greatest of these (abuses) is the investing of oaths with a conclusive effect,-where the law announces to a person whose life, liberty or property is in jeopardy, that in order to save it he has only to swear to a certain indicated fact. This was precisely the case of the wager of law-anciently used in Ehgland, and the system of purgation under the cannon law. So, in the civil law, either of the litigant parties might in many cases tender an oath, called 'the decisory oath', to the other; who was bound, under peril of losing his cause, either to take it, in which case he obtained judgment without further trouble, or refer it back to his adversary who then refused it at the like peril, or took it with like prospect of advantage. The Judge also............ had a discretionary power of deciding doubtful cases by means of another oath, called the 'suppletory oath', administered by him to either of the parties.
With reference to these, one of the greatest foreign authorities (Pothier), who to the learning of a jurist added the practical experience of a judge, expressed himself as follows:-
'I would advise the judges to be rather sparing in the use of these precautions, which occasion many perjuries. A man of integrity does not require the obligation of an oath to prevent his demanding what is not due to him, or disputing the payment of what he owes; and a dishonest man is not afraid of incurring the guilt of perjury. In the exercise of my profession for more than forty years, I have often seen the oath deferred; and I have not more than twice known a party restrained by the sanctity of the oath from persisting in what he had before asserted'2."
1. Best on Evidence, (1922), pp. 45-46, para. 59.
2. 1 Ev. Poth, Article 831.
38. Partaking of the nature of wager of the law1, the provisions relating to the conclusive and binding nature of the evidence2 given on special oaths appear to be opposed to sound public policy.
1. Para. 37, supra.
2. Existing section 11.