Page:Harvard Law Review Volume 5.djvu/90

74 74 HARVARD LAW REVIEW. of an enormous opposition would have been a rich boon to him. It is hard to escape the belief that Coke was wilfully blind to the real meaning of the passage. Not only is there no evidence in favor of Coke's belief, but the absence of any previous practice of requiring this oath in the Court Christian in the class of cases which caused the controversy (cases of ecclesiastical offences) makes it almost impossible that any opportunity could have arisen for resistance to such a practice, and for the establishment of a custom to the contrary. That any rule against the imposi- tion of such an oath could have arisen of itself is not only con- trary to the mode of development of the common law, but is entirely unlikely to have sprung up among a people familiar with the system of compurgation oaths. Add to this that a negative custom, in the sense of a custom binding as law, is a rare thing, and that in this case the rule would much more probably have arisen, if at all, through a decision as a statute, and not as a cus- tom ; for custom develops by unanimous consent, not in the midst of hot controversy. Soon after this constitution of Otho came another, from Boni- face (1272), employing the same method of procedure. It recited that in the course of investigations by the prelates " de criminibus et excessibus subditorum suorum" the layman " suffulti potestate temporalium dominorum, in hujusmodi inquisitionibus citate, nolunt jurare de veritate diceda" it ordered an inquisition and the appli- cation of the oath to witnesses. 1 It does not appear that these decrees of Otho and Boniface met with any more opposition than other acts done in assertion of the ecclesiastical jurisdiction. The reign of Edward I. was apparently a time when the royal power favored the churchly claims, for by the statute 13 Ed. I., Circumspecte Agatis (1285), the jurisdiction of the Court Christian was materially enlarged. But in the statute known as " Prohibitio formata de statuto articidorum cleri " a change of policy occurred, and the foundation was laid of the privilege now under discussion. This statute enacted that the officers of the law should not permit " quod altiqui laid in ballione sua in aliqiribus locis conveniant ad aliqnas recognitiones per sacramenta sua facienda, nisi in causis matrimonialibus et testamejitariis." There can be no doubt that this was the earliest legal opposition which the prelates encountered in their imposition of the oath. 1 Lindwood, 109; 2 Co. 26.