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OATHS.

I. Justices' Power to administer Oaths.

II. Declaration in lieu of Oath.

III. Promissory Oaths Act, 1868.

I. Justices' Power to administer Oaths.

There does not appear, upon an examination of many legal authorities, to have been any general power given by statute to a justice of the peace to administer an oath or take an affidavit, previous to the passing of "The Declaration Act of 1835," 5 & 6 Will. 4, c. 62, noticed infra, although it was considered, that in all cases where a magistrate has power to hear evidence, he has incidentally a power to administer an oath to the party who gives it (see Vol. I. p. 84). That statute, by sect. 13 (see p. 1516), prohibits justices from administering oaths touching matters whereof they have no jurisdiction by statute, excepting in the cases herein provided for; but power is given them to take affidavits in many cases by subsequent statutes in proceedings not before them, viz. (amongst others):

1. To be used in any matter in bankruptcy under the English Bankruptcy Acts Rule No. 157 of 1st January, 1870, made pursuant to 32 & 33 Vict. c. 71, s. 78):

2. In proof of debts under the Irish Bankruptcy Act, 20 & 21 Vict. c. 60, s. 366, and in backing search warrants for effects of bankrupts (Id. s. 73); but no fees to be taken or received for affidavits (Id. s. 368):

3. In proof of debts under the Scotch Sequestration Act (19 & 20 Vict.

c. 79, s. 22):

4. Any affidavit to be used in a county court (9 & 10 Vict. c. 95, s. 62; 19 & 20 Vict. c. 108, s. 58):

5. Of the service of process from the Vice-Warden's Court of the Stannaries of Cornwall and Devon (18 & 19 Vict. c. 32, s. 8):

6. Affidavits required by the laws of a foreign country to give validity to instruments in writing (5 & 6 Will. 4, c. 62, s. 13, post, p. 1516): 7. Oaths administered according to the law and practice of Scotland on the ratification of deeds by married women, exempted from 5 & 6 Will. 4, c. 62, by 6 & 7 Will. 4, c. 43 [saved by Promissory Oaths Act, 1868, 31 & 32 Vict. c. 72, s. 14, sub-s. 11):

8. In proof of compliance with Commons' Standing Orders of Parliament before examiner of petitions and committee on private bills (Orders 77, 139. See proviso to sect. 13, p. 1516):

9. Of unstamped promissory notes issued by banks (9 Geo. 4, c. 23, 8. 7; see Reg. v. Greenland, 36 L. J. (N. S.) M. C. 37; 15 Law T., N. S. 589):

10. Oaths of allegiance under Naturalization Acts, 1870 (under Home Secretary's Regulations, ante, p. 1322).

11. Made for the purposes of the Stamp and Stamp Duties Management Acts, 1870 (33 & 34 Vict. cc. 97, 98, s. 27).

Justices also have a general power to administer an oath (or an affirmation where necessary) to witnesses in summary proceedings and on charges of indictable offences, in which they have jurisdiction, as will be seen from the following references to the statutes:In Summary Proceedings.] Oath or affirmation substantiating information or complaint, and granting a warrant (11 & 12 Vict. c. 43, s. 2, Vol. I. pp. 138, 139, in addition to the power given by the particular statute on receiving an information, &c. Oath or affirmation on granting summons or warrant for a witness (Id. s. 7, Id. p. 161);—and by sect. 15, Id. "the justice before whom any witness shall appear for the purpose of being examined has full power and authority to administer to him the usual oath or affirmation."

Charges of Indictable Offences.] Oath or affirmation on receiving the
information for the purpose of granting a warrant (11 & 12 Vict. c. 42,
8. 8, ante, p. 881); of identity of person indicted (s. 3, ante, p. 911);
—on backing a warrant granted in another jurisdiction (s. 11, ante, p.
897); oath or affirmation on granting a summons or warrant for a
witness (s. 16, ante, p. 939);—and oath or affirmation on taking the
depositions of witness (s. 17, ante, p. 945.)
Generally.] "The Law of Evidence Amendment Act," 14 & 15 Vict.
c. 99, s. 16, enacts," Every court, judge, justice, officer, commissioner,
arbitrator, or other person, now or hereafter having by law or by con-
sent of parties authority to hear, receive and examine evidence, is em-
powered to administer an oath to all such witnesses as are legally called
before them respectively."

Persons tendered as Bail for a Party.] See Vol. I. p. 159, Note 4, and ante
p. 978.

Afirmation or Declaration of a Quaker or Moravian.]

Geo. 4, c. 32, s. 1;

3 & 4 Will. 4, c. 49, s. 1; Form, Vol. I. p. 87. Afirmation for those who formerly were Quakers or Moravians.] 1 & 2 Vict. c. 77; Form, Vol. I. pp. 87, 88.

Afirmation of Separatists.] 3 & 4 Will. 4, c. 82, s. 1; Form, Vol I. p. 88.

Affirmations to other Persons.] 24 & 25 Vict. c. 66; 17 & 18 Vict. c. 125,
8. 20, and 32 & 33 Vict. c. 68; Vol. I. pp. 87, 88.

To an Interpreter for a Foreign Witness, or a Deaf and Dumb Witness.] Form,
Vol. I. p. 89.

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The 5 & 6 Will. 4, c. 62, does not interfere with the oaths to be 5 & 6 Will. 4, taken in courts of justice or before justices of the peace (see s. 7, c. 62. and proviso to s. 13, infra), but comprises various provisions as to declarations in relation to the revenue departments (ss. 2, 3, 4, 5), the oath of allegiance (s. 6), declarations at the universities or other local bodies (s. 8), or by churchwardens and sidesmen (s. 9), or by trustees of turnpike trusts (s. 10), or on taking out a patent (s. 11),

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5 & 6 Will. 4, or by pawnbrokers (s. 12), on the transfer of stock at the Bank of England (s. 14), and in suits on behalf of her Majesty in her Majesty's territories, &c. (17),-and the following provisions relative to the duties of justices of the peace.

Oath prohibited.] Sect. 13 recites, that "a practice has prevailed of administering and receiving oaths and affidavits voluntarily taken and made in matters not the subject of any judicial inquiry, nor in anywise pending or at issue before the justice of the peace or other person by whom such oaths or affidavits have been administered or received;" and that "doubts have arisen whether or not such proceeding is illegal;" "for the more effectual suppression of such practice and removing such doubts," enacts,that, from and after the commencement of this act, it shall not be lawful for any justice of the peace or other person to administer, or cause or allow to be administered, or to receive, or cause or allow to be received, any oath, affidavit or solemn affirmation touching any matter or thing whereof such justice or other person hath not jurisdiction or cognizance by some statute in force at the time being."114

66

Exception of Foreign Countries.] "Provided always, that nothing herein contained shall be construed to extend to any oath, affidavit or solemn affirmation before any justice in any matter or thing touching the preservation of the peace,-or the prosecution, trial, or punishment of offences,-or touching any proceeding before either of the houses of parliament [Case 8, ante, p. 1514], or any committee thereof respectively, nor to any oath, affidavit, or affirmation which may be required by the laws of any foreign country 115 to give validity to instruments in writing designed to be used in such foreign countries respectively."

114 A justice who had sworn witnesses in a matter before the Bishop of Exeter as to the conduct of two clergymen, was held to have brought himself within this enactment. Reg. v. Nott, 1 Car. & M.288.

115 The act is somewhat loosely drawn, but the correct construction of the words "foreign country" in this section (13), taken in conjunction with sect. 15 (which applies to actions and suits in our colonies, except Victoria, 22 & 23 Vict. c. 12), would appear to be all countries and places abroad, whether or not they are part of her Majesty's dominions. As respects such foreign countries, if the justice satisfies himself by documents or otherwise that the laws of such places require an oath or affidavit "to give validity to instruments in writing," he may safely receive the affidavit and administer the oath in such cases, and also, if necessary, add his seal; but it is conceived, that in other cases of documents intended for such foreign places, not being for the purpose of "giving validity to instruments," viz. in proof of debts or accounts and other matters, even where the laws of such places require an affidavit (of which it is said there are many, passed before the 5 & 6 Will. 4, c. 62, and which must be considered as virtually repealed by that act), an affidavit cannot be received, but a declaration must be taken under the general enactment of either sects, 16 or 18, p. 1417, as the case may require.

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To take Declarations instead of Affidavits in relation to Actions 5 & 6 Will. 4, in certain Colonies.] Section 15, after reciting 5 Geo. 2, c. 7, and c. 62. 34 Geo. 3, c. 15 (which related to the recovery of debts in the Plantations and Colonies of America and the Colony of New South Wales, by persons resident in Great Britain, and authorized the mayor or other chief magistrate of boroughs to take affidavits in such cases), and that "it is expedient that in future a declaration should be substituted in lieu of the affidavit on oath authorized and required by the said recited acts," enacts,—that "in any action or suit then depending-or thereafter to be brought or intended to be brought-in any court of law or equity within any of the territories, plantations, colonies or dependencies abroad, being within and part of his Majesty's dominions, for or relating to any debt or account wherein any person residing in Great Britain and Ireland shall be a party, or for or relating to any lands, tenements or hereditaments, or other property, situate, lying and being in the said places respectively," the plaintiff or defendant, and also any witness, may verify or prove any matter or thing relating thereto by solemn declaration or declarations in writing in the form in the schedule to the act, made "before any justice of the peace, notary public or other officer, now by law authorized to administer an oath, and certified and transmitted under the signature and seal of any such justice, notary public duly admitted and practising or other officer;-which declaration, and every declaration relative to such matter or thing as aforesaid, in any foreign kingdom or state, or to the voyage of any ship or vessel, every such justice, &c. shall be, and he is hereby authorized and empowered to administer or receive;-and every declaration so made, certified and transmitted, shall, in all such actions and suits, be allowed to be of the same force and effect, as if the person or persons making the same had appeared and sworn or affirmed the matters contained in such declaration viva voce in open court, or upon a commission issued for the examination of witnesses or of any party in any such action or suit respectively; 116-provided that in every such declaration there shall be expressed the addition of the party making such declaration, and the particular place of his or her abode." [By 22 & 23 Vict. c. 12, s. 1, the above sect. 15 and sect. 17, and sects. 1, 2, 3 of the 54 Geo. 3, c. 15, are repealed so far as they apply to the colony of Victoria. Justices may, therefore, take a declaration in these cases under

116 If the matter in question is not relating to a suit or action in the colonies, and, therefore, not provided for by this section, sect. 18, supra, will apply. The 19 & 20 Vict. c. 113, which provides the mode of taking evidence in her Majesty's dominions in relation to civil and commercial matters pending before tribunals in a foreign country, would seem not to affect this enactment, nor does the 22 Vict. c. 20.

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5 & 6 Will. 4, Sects. 16 or 18, infra, as the case may require, or an affidavit, should the colonial laws so provide.]

To take Declaration of Execution of Wills or Deeds.] By sect. 16, any attesting witness to the execution of any will or codicil, deed or instrument in writing, or any other competent person, may verify and prove the signing, sealing, publication, or delivery of any such will, &c., by such declaration in writing.

To take Declarations in other Matters.] Sect. 18, reciting "that it may be necessary and proper in many cases, not herein specified, to require confirmation of written instruments, or allegations, or proof of debts, or of the execution of deeds, or other matters," enacts "that it shall and may be lawful for any justice of the peace, notary public, or other officer now by law authorized to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form in the schedule in this act annexed,117-and if any declaration so

117 This section seemingly authorizes any declaration being received by the justice or other person which he may think it "necessary and proper" for the confirmation of "written instruments, or allegations, ... or other matters." In Reg. v. Boynes, 1 Car. & Kir. 65, Erskine J., expressed an opinion that this section is not confined to the cases mentioned in the preamble, which might perhaps mean matters ejusdem generis, but that it extends to declarations generally. The later decision of Byles, J., in Reg. v. Cox, 9 Cox, C. C. 301; 4 F. & F. 42, that the preamble must be read with the enacting part overrides this. The general opinion and practice now is, that the enactment of sect. 18 is controlled and limited by the recital; otherwise, why should the legislature have taken the trouble in the previous sections to declare what declarations may be taken, if it was intended that justices and others should have power to take any declaration whatever. This subject has been much discussed at the present time [March, 1872], both in parliament and in the legal journals and other newspapers, in reference to the scandalous charges brought against the wife of a gentleman holding a high official appointment, which were contained in a voluntary declaration made before a metropolitan police magistrate. In the course of that discussion the following published regulation, the practice referred to in which had been adhered to at the Mansion House, London, for thirty years, met with unqualified approval:

5. Subject of Affidavit or Declaration.]-The subject-matter and the facts set forth in the affidavit or declaration will be examined, and only such affidavit as is authorized by law, or such declaration as appears to be 'necessary and proper,' will be taken." To this regulation there is this note appended:-"The Statutory Declaration Act, 5 & 6 Will. 4, c. 62, authorizes the taking of a declaration in relation to actions in our colonies (s. 15), except Victoria, .; and of execution of wills or deeds (s. 16); and also by sect. 18, where it may be necessary and proper in many cases, not herein specified, to require confirmation of written instruments or allegations, or proof of debts, or of the execution of deeds or other matters.' Declarations will, therefore, not be received respecting immoral practices, or involving criminal charges or supposed criminal charges, affecting the declarant or other persons, whether or not they are the subject of proceedings commenced, pending, or determined, nor in any other improper case. Of course, an affidavit of the same purport cannot be taken.'

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