Page:Harvard Law Review Volume 5.djvu/89

NEMO TENETUR SEIPSUM PROD ERE. 73 suit, " obtenta consnetiidine in contrarium non obstante" notwith- standing the previous custom to the contrary. 1 This jusjurandnm calumnies was an oath which, according to ecclesiastical practice, each party might take at the beginning of a suit, affirming among other things that he would answer truly to every question that might be asked him. It was practically identical with the oath ex officio, which afterwards came into prominence in the course of the controversy. What is to be noted in particular is that the phrase, " obtenta consnetudine in contrarium non obstante" refers to the practice obtaining in the ecclesiastical courts before that time. So far as the accessible evidence indicates, this decree was the first instance of the employment of this oath in England. The passage rises into importance, because Coke 2 has endeav- ored to found upon it an argument that the custom and therefore the common law of England before this date forbade such oaths to be required, and that subsequent statutes, to which reference will be made, were therefore only declaratory of the common law. But nothing could be more wide of the mark. The only ground offered by Coke for his opinion was this clause, the mean- ing of which he entirely misapprehended. That it refers, not to a custom of the king's courts (of which the newly arrived cardinal could have had only the slightest knowledge), but to the previous practice in the Courts Christian, appears not only from the con- text of the constitution, 8 but from direct statements in the annota- tions of Athon as well. 4 This oath had always been administered, according to the canon law, in civil causes, but not in causes purely spiritual; 5 and in requiring it in the latter instances, Otho made an innovation which "per expertam considerationem" has ever since found a place in ecclesiastical practice. Possibly, in the case of Coke, his wish fathered his opinion, for in later days (1589), as we shall see, he held a brief on behalf of one who objected to the administration of this oath ; and as, between that time and the publication of his book, the highest judicial authorities had solemnly declared that this oath could be lawfully administered, the discovery of a common-law foundation for the statutory principle which he was supporting in the face 1 Lindwood, 60; 12 Co. 68 ; Gibson's Codex, 1010. 2 2 Inst. 667. 8 Lindwood, 6i, notes (b), (c). 4 Otho's constitutions were annotated by Actonus, known as Athon, Canon of Lincoln, who flourished about 1290, in the reign of Edward I. 6 Corp. Jur. Canon., De Juramento Calumince, 1, 2.