Page:Harvard Law Review Volume 5.djvu/91

NEMO TENETUR SEIPSUM PROBERS. 7$ It was the starting-point of to-day's rule. It is with the fortunes of this statute and its successors that we are now chiefly concerned. The date of the act is placed by Cay and other editors as of tempore incerto before the end of Edward II. 's reign (1326), while Coke attributes it to the first few years of Edward I.'s time. 1 No reasons are given by the latter, however, and it seems unlikely that the administration which enacted Circumspecte Agatis could also have passed so stringent a law as the Prohibitio Formata. It is more probable that it belongs in the reign of Edward II. (1307-1326). It is noticeable that the exception peculiar to this statute, " nisi in cansis matrimonialibus et testamentariis ," appears again and again, in the succeeding years, alike in the vehement protests of the clergy and in the various royal prohibitions issued to curb the zeal of ecclesiastical officers. But the significant point about the statute is that its object was the general one of restricting the ecclesiastical jurisdiction, and the prohibition of citations to take oaths was incidental only, and was simply a means to the chief end. Just as the surest bar to a plaintiff's recovery in a common- law suit was the non-existence of a writ covering his case, so the best method of curtailing the ecclesiastical jurisdiction was to cut off that power to summon and examine which was the strength of their procedure. That a repugnance to the oath itself did not exist, is shown by the exception in favor of cansis matrimonialibus et testamentariis. Moreover, the statute begins by forbidding the ecclesiastical courts to take cognizance of various " matters and causes of money, and of other Chattels and Debts which are not of Testa- ment or Matrimony," thus revealing that its real point of attack was the scope of the ecclesiastical jurisdiction. Such, too, has been the accepted significance of the law in later times. Britton understood it as preventing the ecclesiastical courts from enter- taining any pleas — that is, suits — other than matrimonial and testamentary. 2 In the annals of later ecclesiastical practice, this statute is remembered chiefly, if not solely, as the origin of the limited jurisdiction of Courts Christian. 3 Furthermore, the prohibition applied only to laymen, which suggests, on the one 1 Cay, Statutes of the Realm, I. 209 ; 2 Co. 600. 2 Nichol's Britton, 35. 8 See also the forms of the prohibitions in F. N. B., 41 A, and Reg. Brev. 346.