observes, 'it is a wise rule in the kingdom of Spain, that a heathen and idolater should be sworn upon what he thinks is the most sacred part of his religion.' In order to remove the difficulties in this case, I shall direct that the words, on the holy Evangelists,' be left out.-The next consideration is, what words must be inserted in their room? On the part of the plaintiff in the cross bill, it is desired that I should appoint a solemn form for the oath: I think this very improper, because I may possibly direct a form that is contrary to the notions of religion entertained by the Gentoo people. I will, therefore, direct that the commissioners may administer such oath in the most solemn manner, as in their discretion shall seem meet; and if the person, upon the usual oath being explained to him, shall consent to take it, and the commissioners approve of administering it (for he may perhaps be a Christian convert), the difficulty is removed; or, if they should think proper to administer another oath, that then they shall certify to the Court what was done by them, and afterwards will come the proper time to controvert the validity of such an oath, and to take the opinions of the Judges upon it, if the Court should have any doubt.”b

The point was afterwards finally settled in the great case of Omychund v. Barker, where a similar commission to Nov. 1744. examine witnesses having issued, the Commissioners certified "that they had sworn the witnesses examined under it in the presence of a Bramin or priest of the Gentoo religion, and that each witness touched the hand of the Bramin, this being the most solemn form in which oaths are administered to witnesses professing the Gentoo religion." Objection was made that the depositions so taken could not be read in evidence; and, on account of the magnitude of the question, the Lord Chancellor called in the assistance of the three chiefs of the common law courts.-After very long, learned, and ingenious arguments, which may be perused with pleasure, they concurred in the opinion that the depositions were admissible :

Lord Chancellor. "As this is a case not only of great expense, but of great consequence, it will be expected that I should not decide without giving my reasons for the decision I am to pronounce. It is certified to us that these witnesses believe in the being of a God, and in his providence; and we know that they appealed to his favour or vengeance in the manner in which they considered the most solemn. The first author I shall mention is Bishop Sanderson, 'De Jurisjuramenti Obligatione.' Juramentum,' says he, 'est affirmatio religiosa.' All that is necessary to an oath is an appeal to the Supreme Being, as thinking him the rewarder of truth and avenger of falsehood. This is not con

b 1 Atk. 19.

A.D. 1744.

tradicted by any writer that I know of but Lord Coke, who has taken upon him to insert the word 'Christian,' and he alone has grafted this word into an oath. As to other writers, they are all concurring (vid. Puff. lib. 4, c. 2, s. 4). Dr. Tillotson, in his sermon upon the lawfulness of oaths, taking a text which applies to all nations and all men, an oath for confirmation is to them an end of all strife' (Heb. vi. 16), says, 'the necessity of religion to the support of human society, in nothing appears more evidently than in this, that the obligation of an oath, which is so necessary for the maintenance of peace and justice among men, depends wholly upon the sense and belief of a Deity.' The next thing I shall notice is the form of the oath. It is laid down by all writers that the outward act is not essential to the oath. Sanderson is of that opinion, and so is Tillotson in the same sermon. 'As for the ceremonies in use among us in the taking of oaths, they are not found in Scripture, for this was always matter of liberty; and several nations have used several rites and ceremonies in their oaths.' Secondly, whether, upon special circumstances, such evidence may be admitted according to the law of England? The Judges and sages of the law have laid it down that there is but one general rule of evidence, 'The best the nature of the case will admit.' The first ground Judges have gone upon, in departing from strict rules, is an absolute necessity; then a presumed necessity. Writings subscribed by witnesses are to be proved by those witnesses, but, if they are all dead, the proof of one of their hands is sufficient. Where the original is lost, a copy may be admitted; if there be no copy, then the proof by witnesses who have read the deed, although the law abhors the memory of man for evidence of that which is written. Persons of the Gentoo religion must be admitted in courts of justice in their own country to prove facts and transactions within their own knowledge. One of the parties changing his domicil, and suing here, can he deprive his opponent of evidence which would have been admissible had he sued in the country where the cause of action arose? Suppose a heathen should bring an action at common law, and the defendant should file a bill for a discovery, will any body say that the plaintiff at law may not be admitted to put in an answer according to his own form of an oath? otherwise the injunction for not putting in the answer would be perpetual, and would be a manifest denial of justice. This is the view of the subject taken by Lord Stair, Puffendorf, and other jurists. It has been the wisdom of all nations to administer such oaths as are agreeable to the religious notions of the person taking them. This course does not in the slightest degree affect the conscience of the persons administering the oath, and is no adoption by them of the religion conformed to by one of its votaries. Concurring in opinion with my Lords the Judges that these depositions are admissible, I do order that the objection to them be overruled, and that they be now read as evidence."

Lord Hardwicke settled some important questions respecting 1 Atk. 21-50; Phillipps on Evidence, 9.

literary property. The infamous Edmund Curle had printed a volume of private letters to and from Pope, who immediately applied for an injunction. There had been hitherto no instance of a Court of Equity interfering under such circumstances, and the defendant's counsel argued that Mr. Pope had parted with all property in his own letters which he had sent to his correspondents; that he never had acquired any property in those which he had received; that there could be no property in the letters the defendant had printed, as they were not written for publication, and the statute of Anne for protecting copyright did not extend to them :

Lord Chancellor. "As to the first objection, that where a man writes a letter, it is in the nature of a gift to the receiver, I am of opinion that the receiver only acquires a qualified interest in it. The paper on which it is written may belong to him, but the composition does not become vested in him as property, and he cannot publish it against the consent of the writer. Then, as to the objection that the statute does not apply to these letters, because they are on familiar subjects, containing little more than inquiries after the health of friends, and not deserving the name of a learned work,' I am of opinion that we cannot inquire into their nature or merits, and that the bookseller who has published them cannot avail himself of their frivolity if they were frivolous. But it is certain that no works have done more service to mankind than those which have appeared in this shape upon familiar subjects, and which, perhaps, were never intended to be published. This it is which renders them so valuable; for I must confess, for my own part, that letters which are very elaborately written, and originally intended for the press, are generally the most insignificant, and very little worth any person's reading. However, as for the letters in this volume written to Mr. Pope, I think that he cannot be heard to complain. They may possibly be published with the authority of the writers of them, and from copies taken before they were sent to him."

The injunction was granted as to the one set of letters, and refused as to the other.d

This decision seems very reasonable, but I must own, that I much question another rule he laid down with respect to literary property, although it has not yet been upset. The question arose whether, within the period for which copyright is secured to the author, an Abridgment of the work may be published without his consent?

Lord Chancellor. "When books are only colourably shortened, the statute is evaded, and the law will give redress. But this must not be

d 2 Atk. 342.

A.D. 1741.

HIS JUDGMENTS.

203

carried so far as to restrain persons from making a real and fair abridgment. An abridgment may, with great propriety, be called a new book. Not only are the paper and printing the abridger's, but in his task he may show invention, learning, and judgment. In many cases, abridgments are extremely useful, though sometimes they are prejudicial, by curtailing and mistaking the sense of the author."

Before the passing of the Marriage Act, Lord Hardwicke had much trouble with his female wards, for their marriage April 6, without his consent was valid, and he could only 1741. punish those concerned in contriving it. Mr. Charles, a clergyman, who married Miss Sophia More, a ward of Chancery, without leave, to John Peck, and others who were present when she was married, appeared to answer the contempt of the Court. -Lord Chancellor. "These are mischiefs which want the correction and reformation of the legislature. John Ubank must, in the first place, stand committed, who assisted in conducting Miss More out of her guardian's house, and gave her away at the wedding. The giving away a woman as her father, though not essential, is a custom or ceremony which clergymen always require." Having dealt with others upon the consideration whether they were concerned in the marriage, knowing the infant to be a ward of Court, he comes to Mr. Charles. "Next comes the priest. It is surprising that the canons of the Church, with respect to marriage, are so little regarded by the clergy; but for a violation of them I have no right to pronounce sentence, and Mr. Charles does not seem to me to have been at all concerned in the contrivance or design of doing this wrongful act: therefore he is not guilty of a contempt of the Court; but I would recommend him to be more cautious for the future." f

On another occasion he severely punished persons concerned in clandestinely marrying a girl of fifteen with a large fortune to the son of a nobleman's steward, who was under twenty, although they were ignorant of her being a ward of Court:

Lord Chancellor. "Lord Ossulston, by his affidavit, admits, that at the request of Pearson he procured Barry, the parson, to celebrate this marriage, and he denies knowledge of any orders of the Court. It is positively sworn by the petitioner that the match was made by the con

e Gyles v. Wilcock, 2 Atk. 142; and see Lofft, 775; 1 Bro. C. C. 451. I confess I do not understand why an abridgment, tending to injure the reputation and to lessen the

profits of the author, should not be considered an invasion of his property.

f 2 Atk. 157.

trivance of Pearson with Lord Ossulston; that Lord Ossulston went to London and fetched the parson from the Fleet for a fee of one hundred guineas, and that Lord Ossulston being present at the marriage gave away the lady as a father, in a room at Up Park. Barry, the parson, having been committed by a former order, let Pearson, Mary Tench the maid servant, and Lord Ossulston be now committed to the Fleet for their contempt."

One of the nicest points which ever came before Lord Hardwicke, was how a widow is affected by her husband in his lifetime having pledged her paraphernalia. Lord Londonderry had given Lady Londonderry a diamond necklace, and afterwards pledged it as a collateral security for 1000l., with a power to sell it for 15007. After his death the question arose whether the necklace ought not to be redeemed out of his personal estate for her benefit:

Lord Chancellor. "The necklace is not to be considered as given for the separate use of the wife. I have admitted that a husband may make such a gift, but where he expressly gives jewels to a wife to be worn as ornaments of her person, they are to be considered only as paraphernalia; and it would be of bad consequence to consider them otherwise, for if they were a gift to her separate use, she might dispose of them absolutely in his lifetime, which would be contrary to his intention. But in this case it will be the same to Lady Londonderry, if she can prove that she wore the necklace as an ornament of her person on birthdays and other public occasions,-which it has been proved she did. The question arises whether there was an alienation of it by the husband in his lifetime, the husband having a right to alienate his wife's paraphernalia in his lifetime, although he cannot deprive her of them by his will?' Here there was a pledge with a power of sale, and at the

husband's death the necklace remained unredeemed and unsold. I am of opinion that this was not an alienation, and that his personal estate being sufficient to redeem the pledge, and pay all his debts, she shall be entitled to have it redeemed and delivered to her." h

This decision in favour of the female sex was supposed to be overbalanced by the alleged harshness of another, whereby a lady was compelled, in answer to a bill of discovery, to disclose a fact which subjected her to a forfeiture. A husband left the whole of his personal estate to his wife, "but if she married again, his brother to have a moiety of it." The brother filed a bill against her for an account of the moiety, and for a discovery whether she was married again. She

8 Edes v. Brenton, West, 348. The Marriage Act was not passed till 1753.

h 3 Atk. 393.