Page:Harvard Law Review Volume 5.djvu/95

NEMO TENETUR SEIPSUM PROD ERE. 79 intervened, twenty years before. The crafty Whitgift then pro- tested that the noble lord was in error, " for if any Article did touch the Party in any way, either for Life, Liberty, or Scandal, he might refuse to answer," and that his own answer .to Burleigh would doubtless have satisfied the noble lord, but that as to a matter twenty years old his memory failed him. Now, in that letter to Burleigh he had, in fact, not only not made any such exception, but had vigorously defended each and every article as lawful. The new notion had, in 1603, begun to gain currency, and he realized it. One more example. When Cartwright's case came up in the Star Chamber, in 1600 or thereabouts, he made a strong defence on the ground of the unlawfulness of the oath. He was asked why he had not made the same defence twenty years before, when he was first apprehended, instead of saying merely, as he did, that such inquisitions were " contrary to the laws both of God and of the land," and that he did not wish to prejudice others by his answers. He answered that by the example of others in refusing he was induced to search farther, and had learned more than he knew twenty years before. Let us now review hastily the decisions of the seventeenth cen- tury, bearing in mind, first, that the only legal basis for them was the statute of Edward II., as revised by those of Henry VIII. and Elizabeth ; and, secondly, that the essence of the contest was a recoil against the power and methods of the ecclesiastical authori- ties, and that it resulted only by a kind of accident in abolishing inquisitional oaths altogether, and establishing a general privi- lege against self-crimination. Only sixteen years after the last solemn opinion rendered by the highest judicial authorities, the Commons asked the opinion of the justices upon the lawfulness of the oath administered in the ecclesiastical courts; and they, with Coke, Chief Justice of the Common Pleas (then recently appointed, in 1606), as their spokesman, answered 1 that the administering of any corporal oath was unlawful, by the statute of 25 H. VIII., except in causes matrimonial and testamentary. This was an official denial of the validity of the ecclesiastical rule, and it seems to have had speedy effect, for before long we find both the King's Bench and the Common Pleas upholding this policy, so foreign to the de- cisions of 1 591. In 1609, in Mansfield's Case, presumably in the King's Bench, 2 it was held that a clergyman could be examined 1 12 Co. 26. 2 Rolle's Abr., Prohibition (J), 4.