Tilghman C. J.
This is a writ of error to the court of Common Pleas of the county of Philadelphia, and it appears that judgment was entered under a rule of that court, because the defendant did not, before the third term from the commencement of the action, make an affidavit, that “ to the ic best of his knowledge and belief, there was a just cause of “ defence in the said action.” It is contended on behalf of the plaintiff in error, that the court of Common Pleas had no power to make this rule, because it is not within the general power which every court of record possesses, to make, rules for the regulation of the practice, and because it is contrary to the constitution of the commonwealth, by which it is provided, that the trial by jury shall be as heretofore.
As to the objection on the ground of the constitution, it does not appear to me to be well founded. The rule makes no alteration in the trial by jury, but only provides that previous to the trial, the defendant shall swear or affirm, that to the best of his knowledge and belief, he has a just cause of defence. There has been a rule of long standing, that a dilatory plea, shall not be put in without oath. This rule is not complained of; and yet, as far as the constitution is concerned, it is as much a violation of the trial by jury, as the other; for the defendant has as much right to insist on the trial of a dilatory plea, without oath, as a plea to the merits. The constitution makes no difference between them, nor docs it make any mention either of one or the other.
The second and more difficult point, is whether this rule falls within the general power of the court to make such regulations as shall facilitate the transaction and despatch of business. Much has been said concerning the policy and effects of the rule. I have no doubt but it was intended to do good, and has done good, by expediting judgments in cases where there was no ground for dispute. Nor have I any doubt, but that in some cases it has produced perjury. [423]*423There will be perjury, where there are oaths, but this does not prove that all oaths are useless. The first rule of this na-" ture, in any of our courts, originated in this court, in September 1795, when all the attorneys except two, signed an agreement, that they would confess judgment, unless the defendant made an affidavit of defence, similar to that prescribed in the rule of the Common Pleas. This agreement has been frequently inforced, except against those who refused to sign it, and who never gave or took any judgment under it. Some years after the making of this agreement, with full experience of its effects, the judges of this court made a similar rule for the Circuit Court, which was held by them, and it was practised under for many years without, objection. It is true, that this court is expressly authorized by the sixth section of the act of 25th September 1786, to make such rules for regulating the practice and expediting the determination of suits, as the judges shall think necessary. I do not know that the Common Pleas have such power by act of assembly; but yet it is not denied that they have power from the nature of their constitution, to make rules for the regulation of their practice. They have always done it, it seems necessary that they should do it, and it would disturb the property and peace of the country to deny it. But is this properly a rule for regulating the practice? It is not very easy to mark the line, where the regulation of the practice ends. But certainly this court have conceived it to fall within that description, otherwise they ought not to have inforced the agreement of the attorneys, nor to have made the rule for the Circuit Court which I have mentioned. Considerable deference also, is due to the almost unanimous opinion of the bar. To regulate the practice, is to prescribe the manner of conducting the proceedings in courts of justice, the time of putting in the several pleadings, &c. Regularity, justice and despatch, are the great objects of the rules, and it is certain that in some cases oaths have been thought necessary. The case of dilatory pleas has been mentioned. By the twenty-fifth rule for regulating the practice made by the presidents of the several courts of Common Pleas, soon after their organization under the present constitution, if a warrant of attorney to confess judg[424]*424ment be above ten years old, judgment cannot be entered ' without an affidavit of the due execution of the warrant, the nonpayment of the debt, and the life of the party. The oath of the plaintiff is necessary for holding the defendant to special bail; and so it is, for supporting a foreign attachment, although there is no act of assembly requiring such oaths. In matters which fall within their jurisdiction, the power of the court of Common Pleas is as full, as the power of this court. It is remarkable that many regulations of the practice, with respect to bail, dilatory pleas &c., which were introduced into England by statute, have been the objects of rules of court in this country. They have been generally acquiesced in. Should any of them be found inconvenient, it is in the power of the legislature to annul them. But it will rarely happen, that a court should persist in keeping a rule in force, after experience of its ill effects. The consequences of declaring this rule to be against law are not to be disregarded. Hundreds, nay perhaps thousands of judgments would be pliable to reversal. If the rule was clearly void, we should have no right to consider consequences; but if the question is doubtful, it is our duty to do so. If the matter was to be now proposed for the first time, if this court were deliberating whether they should make a rule of this kind, I should have great hesitation. But after all that has passed, I cannot say that the rule is void. I am therefore of opinion, that the judgment should be affirmed.
Yeates J. concurred with the Chief Justice.
Brackenridge J.
A delay of the plaintiff’s suit is given by the common law to a certain extent. This, with an eye to an accommodation with the adverse party, by giving time to make terms or satisfy. This is called an imparlance, or opportunity of speaking with him. An appearance being made, declaration filed, and an imparlance prayed and allowed, a plea can be demandable at the next term; which plea, unless dilatory, as to the jurisdiction of the court from the place where, or the thing which, or in disability of the person of the plaintiff, or in abatement for misnomer &c., need not be on oath, which is not enjoined or imposed, or caEed for, unless to matters of fact short of the merits; and [425]*425this exception as to dilatory pleas, and which goes merely to the putting off the trial of the merits, and gaining time, is by act of parliament. Under this act of parliament extended here before the revolution, or depending solely on the rule of the Supreme Court, an oath in the case of a dilatory plea has been demandable from an early period; and it may be proper that it should be so, from whatever authority derived. But farther than what respects a dilatory plea, I am not clear that it has been expedient to go. Nor do I think the act of the legislature impowering the court to make rules and regulations, ought to be construed as extending to matters that require an oath of the party respecting the merits; but rather to the practice with respect to the preparatory steps of compelling an appearance, obtaining a plea, and trial of the issue.
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Tilghman C. J.
This is a writ of error to the court of Common Pleas of the county of Philadelphia, and it appears that judgment was entered under a rule of that court, because the defendant did not, before the third term from the commencement of the action, make an affidavit, that “ to the ic best of his knowledge and belief, there was a just cause of “ defence in the said action.” It is contended on behalf of the plaintiff in error, that the court of Common Pleas had no power to make this rule, because it is not within the general power which every court of record possesses, to make, rules for the regulation of the practice, and because it is contrary to the constitution of the commonwealth, by which it is provided, that the trial by jury shall be as heretofore.
As to the objection on the ground of the constitution, it does not appear to me to be well founded. The rule makes no alteration in the trial by jury, but only provides that previous to the trial, the defendant shall swear or affirm, that to the best of his knowledge and belief, he has a just cause of defence. There has been a rule of long standing, that a dilatory plea, shall not be put in without oath. This rule is not complained of; and yet, as far as the constitution is concerned, it is as much a violation of the trial by jury, as the other; for the defendant has as much right to insist on the trial of a dilatory plea, without oath, as a plea to the merits. The constitution makes no difference between them, nor docs it make any mention either of one or the other.
The second and more difficult point, is whether this rule falls within the general power of the court to make such regulations as shall facilitate the transaction and despatch of business. Much has been said concerning the policy and effects of the rule. I have no doubt but it was intended to do good, and has done good, by expediting judgments in cases where there was no ground for dispute. Nor have I any doubt, but that in some cases it has produced perjury. [423]*423There will be perjury, where there are oaths, but this does not prove that all oaths are useless. The first rule of this na-" ture, in any of our courts, originated in this court, in September 1795, when all the attorneys except two, signed an agreement, that they would confess judgment, unless the defendant made an affidavit of defence, similar to that prescribed in the rule of the Common Pleas. This agreement has been frequently inforced, except against those who refused to sign it, and who never gave or took any judgment under it. Some years after the making of this agreement, with full experience of its effects, the judges of this court made a similar rule for the Circuit Court, which was held by them, and it was practised under for many years without, objection. It is true, that this court is expressly authorized by the sixth section of the act of 25th September 1786, to make such rules for regulating the practice and expediting the determination of suits, as the judges shall think necessary. I do not know that the Common Pleas have such power by act of assembly; but yet it is not denied that they have power from the nature of their constitution, to make rules for the regulation of their practice. They have always done it, it seems necessary that they should do it, and it would disturb the property and peace of the country to deny it. But is this properly a rule for regulating the practice? It is not very easy to mark the line, where the regulation of the practice ends. But certainly this court have conceived it to fall within that description, otherwise they ought not to have inforced the agreement of the attorneys, nor to have made the rule for the Circuit Court which I have mentioned. Considerable deference also, is due to the almost unanimous opinion of the bar. To regulate the practice, is to prescribe the manner of conducting the proceedings in courts of justice, the time of putting in the several pleadings, &c. Regularity, justice and despatch, are the great objects of the rules, and it is certain that in some cases oaths have been thought necessary. The case of dilatory pleas has been mentioned. By the twenty-fifth rule for regulating the practice made by the presidents of the several courts of Common Pleas, soon after their organization under the present constitution, if a warrant of attorney to confess judg[424]*424ment be above ten years old, judgment cannot be entered ' without an affidavit of the due execution of the warrant, the nonpayment of the debt, and the life of the party. The oath of the plaintiff is necessary for holding the defendant to special bail; and so it is, for supporting a foreign attachment, although there is no act of assembly requiring such oaths. In matters which fall within their jurisdiction, the power of the court of Common Pleas is as full, as the power of this court. It is remarkable that many regulations of the practice, with respect to bail, dilatory pleas &c., which were introduced into England by statute, have been the objects of rules of court in this country. They have been generally acquiesced in. Should any of them be found inconvenient, it is in the power of the legislature to annul them. But it will rarely happen, that a court should persist in keeping a rule in force, after experience of its ill effects. The consequences of declaring this rule to be against law are not to be disregarded. Hundreds, nay perhaps thousands of judgments would be pliable to reversal. If the rule was clearly void, we should have no right to consider consequences; but if the question is doubtful, it is our duty to do so. If the matter was to be now proposed for the first time, if this court were deliberating whether they should make a rule of this kind, I should have great hesitation. But after all that has passed, I cannot say that the rule is void. I am therefore of opinion, that the judgment should be affirmed.
Yeates J. concurred with the Chief Justice.
Brackenridge J.
A delay of the plaintiff’s suit is given by the common law to a certain extent. This, with an eye to an accommodation with the adverse party, by giving time to make terms or satisfy. This is called an imparlance, or opportunity of speaking with him. An appearance being made, declaration filed, and an imparlance prayed and allowed, a plea can be demandable at the next term; which plea, unless dilatory, as to the jurisdiction of the court from the place where, or the thing which, or in disability of the person of the plaintiff, or in abatement for misnomer &c., need not be on oath, which is not enjoined or imposed, or caEed for, unless to matters of fact short of the merits; and [425]*425this exception as to dilatory pleas, and which goes merely to the putting off the trial of the merits, and gaining time, is by act of parliament. Under this act of parliament extended here before the revolution, or depending solely on the rule of the Supreme Court, an oath in the case of a dilatory plea has been demandable from an early period; and it may be proper that it should be so, from whatever authority derived. But farther than what respects a dilatory plea, I am not clear that it has been expedient to go. Nor do I think the act of the legislature impowering the court to make rules and regulations, ought to be construed as extending to matters that require an oath of the party respecting the merits; but rather to the practice with respect to the preparatory steps of compelling an appearance, obtaining a plea, and trial of the issue. But the construction put upon it by the courts, has been different; and under such circumstances as render such construction acceptable, and in which there seems to have been for a great length of time an acquiescence. The mischief that would follow on declaring what has been done under those rules void, would amount to a general inconvenience, to which consideration, mischief in a particular case must give way.
As to what has passed therefore under these regulations, there must be silence; more especially as it must be understood, that the power of the court to make such rules is considered as questionable only, not as clearly unfounded. But if common right is against the rule, may it not be advisable for the bar, under a due regard to the weakness or wickedness of human nature, to consider the expediency of withdrawing that agreement which would seem to have given rise to the rule. Notwithstanding a precedent of such continuance, may not a revision of the rule by the courts themselves be considered as still open? Certain it is that the makirfg an affidavit of defence, is embarrassing to a tender, and insnaring to a hardy conscience. For though it is to a belief of a defence that a defendant swears, yet in many cases it may be difficult to know what to believe; and he will always be disposed to deceive himself into a belief for the sake of procuring a delay. This is a leading into temptation.
[426]*426A distinction seems to be made in some of tbe rules, between swearing to .the belief, and swearing positively; a distinction which has no foundation in common sense, or in common law. For when a man swears positively, all he means to say, is that he positively believes it; and on a prosecution for perjury, the only question can be, whether there is reason to suppose that he did believe it. The effect of this mode of expression, goes no farther than to the ' certainty or uncertainty of the persuasion of his own mind as to the truth of what he swears.
The appeal to the conscience in this way took its rise in the inadequacy of the judiciary establishment to reach the trial of a cause, by the common rules, in a reasonable time; and was a substitute to a certain extent, for what the legislature ought to have done, by the constitution of the courts, rendering it possible to reach the trial of causes in a reasonable time; and it might be advisable to leave it to this natural and proper remedy. The multiplication of oaths is an argument against laws that require them, and so it ought to be against rules in the administration of the laws. The frequency of oaths detracts from their solemnity. They become a matter of course. Customhouse oaths are proverbial. Undei the Circuit Court law, and the rules introduced to supply the hardship of delaying a judgment, there was a great deal of this affidavit making; and it was a good reason amongst others why that court should be abolished.
Judgment affirmed.