The Court did not consider themselves entitled to dispense with the form of an oath, where a Quaker was called on to depone, but on refusal, held him as confessed.
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Sameul telfair pursues Bartholomew Gibson, the horse-ferrier at the Abbey, for making furthcoming some horses of the Earl of Eglinton's he had arrested in his hands; and referred the libel to his oath. Bartholomew, being a Quaker, offered to declare the truth as in the presence of God, conform to the custom of these sectaries, but refused to hold up his hands, or depone in the usual terms, by God. This being objected against as contrary to the fixed law and consuetude of this kingdom, whereby a set formula jurisjurandi was prescribed, and all behoved follow that method; else Papists might pretend they cannot in conscience depone, but laying their hands on the Canon of the Mass, and by the Virgin Mary; and this were to encourage men in their superstitions and delusions, and put them in a better case than the Orthodox Protestants, and to harden and indulge them in their humorous peevishness;—answered, The form they are content to declare in is, materially, an oath, and so binding, that if it can be redargued as false, they stand liable to perjury, and so punishable; and both Holland (where they called Memnonistæ) and England accept of their declarations in judgment in the terms now offered; and if they shall be holden as confessed for refusing to swear, it is in the power of a malicious pursuer to ruin them by referring a debt of 20,000 or 40,000 merks to their oaths; and in Scotland, they have been connived at; and in 1680, Burnet, Tutor of Leys, was permitted to depone in that manner; and since the Revolution, Grieve of Pinackle, and others. Replied, Incommodum non solvit argumentum; and the English found it could not be done without an act of Parliament, which they lately made to that effect. And the examples given of our custom was only where the pursuer consented to accept of his declaration in that manner; and the Lords used to interpose with rigorous persons, not to urge their formal deponing, but it would be pessimi exempli to authorise it by a decision. The Lords wished the pursuer might dispense with the formality of his oath, but, by plurality, found they could not do it; and therefore held him as confessed, if he refused to depone in the legal manner introduced by the laws and customs of this nation. I find, Bouritius De officio judicis, cap. 9. of the same opinion in the case of the Anabaptists, and that the form by which the Jews swear is, by laying their hand on Moses's Decalogue, and repeating the third commandment, non assumes nomen Domini in vanum. Grotius De jure belli et pacis, lib. 2. cap. 13. § 12. De jurejurando, reproves Duarenus for allowing Christian Judges to take the oaths of Pagans and Mahometans in their superstitious manner. But Zieglerus, in his notes and animadversions on Grotius, excuses Duaren, and shews cases where the public good of discovering some actions may plead for that dispensation. See a parallel case, apud Anneæum Robert. Rer. judicat. lib. 1. c. 11.
Fol. Dic. v. 2. p. 294. Fountainhall, v. 1. p. 813.
