Omychund v Barker
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1744 |
| Date | 01 January 1744 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 15
HIGH COURT OF CHANCERY
S. C. Willes, 538. See Ex parte Chippendale, In re German Mining Company, 1852, 4 De G. M. & G. 36. Followed and applied, Att.-Gen. v. Bradlaugh, 1885, 14 Q. B. D. 667; 54 L. J. Q. B. 205; 52 L. T. 589; 33 W. R. 673.
1 ATK. 22. OMYCHUND V. BARKER 15 Case 10.-omychund v. barker. Michaelmas Term, 1744. [S. C. Willes, 538. See Ex parte Chippendale, In re German Mining Company, 1852, 4 De G. M. & G. 36. Followed and applied, Att.-Gen. v. Bradlaugh, 1885, 14 Q. B. D. 667; 54 L. J. Q. B. 205; 52 L. T. 589 ; 33 W. R. 673.] 2 Eq. Gas. Abr. 397, pi. 15, S. C.; 1 Wils. Rep. 84, Note 2 ; Harg. Co. Lit, 6 b. Lord Chancellor, assisted by Lord Chief Just, l-ee, Lord Chief Jus. Willes, and Lord Chief Baron Parker, of opinion that the deposition of witnesses of the Gentoo religion, sworn according to their ceremonies, ought upon the special circumstances of this case to be read as evidence in the cause. Pursuant to the order above of the 4th of December 1739, a commission went to the East Indies, and on the 12th of February 1742, the commissioners certified, that among other witnesses for the plaintiff, they had examined Bamkissenseat, and Bamchurnecoo-berage, and several others, subjects of the Great Mogul, being persons who profess the Gentoo religion, and that they were solemnly sworn in the following manner, viz. " The " several persons being before us, with a brarain or priest of the Gentoo religion, the oath " prescribed to be taken by the witnesses was interpreted to each witness respectively; '' after which they did severally with their hands touch the foot of the bramin or priest '; of the Gentoo religion, being also before us with another bramin or priest of the same " religion, the oath prescribed to be taken by the witnesses was interpreted to him ; " after which Neenderam Surmah. being himself a priest, did touch the hand of the '' bramin, the same being the usual and most solemn form, in which oaths are most " usually administered to witnesses who profess the Gentoo religion, and the same " manner in which oaths are usually administered to such witnesses in the courts of " justice, erected by letters patents of the late king at Calcutta." The cause came on this term upon the merits, and the bill was brought to have a satisfaction for 67,955 rupees, amounting to about 7600 English money, from the estate of the late Mr. Barker, the father of the defendant. Mr. Barker in July 1729 being appointed, by the East-India Company, Chief of Patna, applied to the plaintiff, who was a considerable merchant, to be engaged in partnership with him in the sale of goods. [22] The plaintiff was to advance the money for buying the goods, and in consideration thereof Mr. Barker was to allow him interest upon a moiety of 12 per cent. The goods were sold by Mr. Barker for a great profit, and the whole money received by him ; but he refused to come to any account with the plaintiff, upon which he filed his bill in 1736, in the mayor's court at Calcutta, and when the cause was ready for hearing there, Mr. Barker left Calcutta, and took his passage in a French East-India ship for Europe, and upon his withdrawing himself, the court at Calcutta interpreted it to be a flight from justice, and decreed that he should pay plaintiff's demand in full, and all his costs. Mr. Barker died in the voyage, but by his will made on the 21st of .December 1736, charges his real and personal estate with the payment of his debts. The end of the bill was, that all books and papers relating to the dealings between Mr. Barker and the plaintiff might be produced, and that the sum before mentioned might be paid with subsequent interest, and the costs in the mayor's court at Calcutta. Mr. Attorney-Generalior the plaintiff offered to read the deposition of Bamkissenseat, but the counsel for the defendant objecting to his being a proper witness. Lord Chancellor ordered the commission and the return to be read, and likewise the letters patent,bearing-date the 12th of Sept. the 13th of the late king. Mr. Tracy Atlcyns argued in support of the objection, 1st, That as the law of England now stands, no oath can be administred to make a man a competent witness, but the oath upon the Evangelists. 'Idly, Tha,t it would be contrary even to the rules of equity to admit any other. The substance of this argument follows : I will endeavour to shew, from the oldest authorities extant down to the present time, that the rule has been uniform and invariable as to the particular oath required. Fleta, lib. 5. c. 22, p. 344, " Juramentum est affirmatio vel negatio de aliquo attesta-" Hone sacrce rei firmata," so that as long ago as Ed. the First's time, which is at least 16 OMYCHUND V. BARKER 1 ATK. 23. 400 years, the general definition of an oath was the person's affirming or denying a thing, with a solemn appeal to the sacred writings for the truth of what he said. Bracton, fol. 116, the oath that was administered by the justices itinerant, to the jury, summoned to inquire for the crown, agrees exactly with this definition : " Hoc " audite justitiarii, quod ego veritatem dicam de hoc quod a me inter rogabitis ex parte " domini regis, et fideliter faciam id quod mihi prcecipietis ex parts domini regis et pro " aliquo non omittam, quin ita faciam pro posse meo ; sic me Deus adjuvet, et kcec sancta '' Dei evangelia." Briton de Challenge de Jurors, c, 53, p. 135, describes the oath thus ; " Que jeo write " diray, si Dieu moi aide & les seintz, & p'sout les evangelies beyses touts hoors sicome " notre foy & noire, sauvation." In Fortescue de Laud. I^eg. Anglice. c. 26, p. 58, octavo edition, intituled, How jurors ought to be informed by evidence and witnesses, he says, " Et tune adducere potest utra-" gue pars coram [23] eisdem justitiariis et juratis, omnes et singulos testes, quos pro parte " sua producere velit, qui super sancta Dei evangelia, per justiciaries onerati, testifica-" buntur omnia quce cognoscunt probantia veritatem facti, de quo partes contendunt." So that your Lordship sees it is omnes et singulos testes, without any exception of persons whatsoever, qui super sancta Dei evangelia onerati testificabuntur. Lord Coke in his 2d Institute, 479, upon the statute of Westminster the 2d, says. " A new oath cannot be imposed upon any subject without authority of parliament, but " the giving of every oath must be warranted by act of parliament, or by the common law " time out of mind." And in the 719th page of the same Institute in the margin, " None " can examine witnesses in a new manner, or give an oath in a new case, without an act " of parliament." And in his 3d Institute, c. 14, p. 165, intituled, Of Perjury, Subornation of Perjury, and incidentally of oaths, saith, that the word oath is derived from the Saxon word Eoth, and that it is expressed by three several names, 1st, sacramentum a sacra & mente because it ought to be performed with a sacred and religious mind, quia jurare est Deum in testem vocare, et est actus divini cultus. 2dly, by juramentum a jure, which signifieth law and right, because both are required and meant, or because it must be done with a just and rightful mind. Sdly, jus jurandum a jure et jurando. And in the very next section he saith, An oath is an affirmation or denial, by^ any Christian, of any thing lawful and honest, before one or more that have authority to give the same for advancement of truth and right, calling Almighty God to witness^ that his testimony is true. So as an oath is so sacred, and so deeply concerneth the consciences of Christian men, as the same cannot be ministred to any, unless the same be allowed by the common law, or by some act of parliament; neither can any oath allowed by the common law, or by act of parliament, be altered but by act of parliament; it is called a corporal oath, because he toucheth with his hand some part of the holy scriptures. In the 4th Institute, c. 64, p. 279, he says, An oath ought to be accompanied with the fear of God and service of God, for advancement of truth, Dominum Deum tuum timebis, et illi soli servies, et per nomen illius jurabis (Deut. chap. vi. v. 13), taken out of the Mosaic law ; and the words immediately following are, Bracton saith, That an alien born cannot be a witness, which is to be understood of an alien infidel. I shall beg leave to mention a statute made in the 21st of Hen. 8, c. 16, touching artificers strangers, in the 4th section of which 'tis enacted, that the same strangers should, upon lawful warning to them given, by the wardens of divers misteries, within the cities and towns, present themselves to the common hall of the said crafts, and there to receive and take their oath, and be sworn before the wardens upon the holy evangelists, to be true to the king, &c. So that notwithstanding aliens and strangers are the subjects of this act of parliament, yet without reservation of any form of ceremony in their own religion, relating to oaths, they are direct-[24]-ed to take the oath upon the holy Evangelists: so that the legislature governed themselves by the law as it then stood, and saw no reason to alter it for the private convenience of particular persons. I appeal to your Lordship's judgment, whether the people who are offered as witnesses, are capable of taking an oath, as the law of England conceives of it. The most authentic histories of this part of the world represent the natives as extremely ignorant, and particularly with regard to their notions of religion, absurd and ridiculous, and in their ideas of the Deity so gross, that it would be shocking even to mention. How 1ATK. 25. OMYCHUND V. BARKER 17 then can they be said to perform such a ceremony with a sacred and religious mind, which the word sacramentum implies 1 It appears by the certificates of the commissioners, and even by their own witnesses, who may be supposed to represent it in the most favourable light, that the...
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2016 index
...Railway Co [1917] 2 KB 836 ....................................................................................... 231Omychund v Barker (1745) 1 Atk 21, 49, 26 ER 15 ........................... 302R v Anglian Water Services Ltd [2003] EWCA Crim 2243 (31 July 2003) ................................