In a cause of deforcement, though only pursued ad civilem effectum, it was found that the defender was not obliged to give his oath of calumny ne detur occasio perjurio.
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The Master of Gray being pursued for the deforcing of a messenger, and summoned to give his oath de calumnia in the said cause, it was alleged by his advocate, That he ought not to give his oath, because the deforcing of an officer was an action of that nature and quality, that would bring on the like pain as if it had been altogether criminal, and was of itself criminal, albeit it was civilly pursued before the Lords, and the consequence thereof was the tinsel of his hail goods and gear; and in criminal causes, after the practique of the realm, juramentum calumniæ, is not sought, ne detur occasio perjurii; for a man, for safety of his hail gear and life, will swear, peradventure otherwise than he would do in other causes; quia unicuique licet sanguinem suum redimere, D. De bonis eorum qui ante sententiam mortem, &c. et in L. 18. C. De transactionibus; in ibidem Doctores; et canonistæ noluerunt clericum accusatum de cohabitatione cum concubina jurare; rationem ponit gloss. quod non debet compelli aliquis de quo præsumptio est in contrarium, quia nemini parandus est laqueus. It was reasoned, ex altera parte inter Dominos, That there was in this cause no criminal pursuit or question of life, aut pæna sanguinis, but the question and consequence was only of gear, and there are daily sundry weighty causes and actions intented before the Lords, whereof the consequence will be the tinsel of the party's hail gear, yea and perchance meikle of their heritage; and yet juramentum calumniæ is ay sought, when it is asked according to the order of process, et de jure in omnibus causis indistincte præstatur juramentum calumniæ Cod. ibid. L. 1. et 2. et in authent. ibid., et juxta, et in sexto ibid., et text. est expressus in L. 3. § 1. D. De jurejurando, &c. quod in quacunque actione etiam criminali juratur, et tenent theologi, præcipue sanctus Thomas, quod reus tenetur semper in foro conscientiæ veritatem dicere, et quamvis sit interposito juramento.—The Lords, after long reasoning among themselves, found, for the most part, that the said Master should not give his oath de calumnia in the said cause.
Fol. Dic. v. 2. p. 12. Colvil, MS. p. 359.*** Spottiswood reports this case:
The Master of Gray having pursued for the deforcing of an officer, the pursuer craved his oath de calumnia upon the summons. Alleged, He ought not to give it, because the action was criminal, although it was civilly pursued before the Lords, and would infer the loss of all his goods and gear; and by our practique juramentum calumniæ is not sought in criminal causes, ne detur occasio perjurii. Replied, There was no pursuit for life or limb, but only for gear, and there are daily sundry weighty actions and causes Before the Lords, whereof the consequence will be the loss of the party's whole goods, and much of of their heritage, and yet juramentum calumniæ is always sought in them; nam de jure in omnibus causis indistincte præstatur juramentum calumniæ.—The Lords found, that the defender ought not to give his oath de calumnia.
