Page:Harvard Law Review Volume 5.djvu/93

77 NEMO TENETUR SEIPSUM PROD ERE. 77 suspected persons upon oath. From this time forward there is much concerning the oath. But the course of past practice had by no means been changed, in obedience to the statute of H. VIII. The temper of Elizabeth and of the zealous Whitgift inclined to a strong, ecclesiastical administration. The law of Henry was there on the books, but it took nearly one hundred years to win the struggle against ecclesiasticism and to put life into the statute. There is abundant evidence of the fact that the statute of H. VIII. had by no means become generally known and carried out in ecclesiastical practice. Even as late as 1610 it seems that the Commons conceived that there was no good remedy by law against the inquisitional proceedings of the High Commission, and they remonstrated and tried to pass bills. But the clearest proof is found in the very law reports themselves, where the in- terpreters of the law were found ignoring the claims of this statute. The subject came up in most of the courts, though at different times in each. The earliest discoverable case in the reports is Collier v. Collier, in the Court of Common Pleas, in 1589. A suit for incontinence had been begun, and the defendant prayed for a prohibition, citing the writ upon the statute of E. II., as found in Fitzherbert and in the Register. According to one report, " the court would advise of it," and no decision was readied. 1 Ac- cording to another report, the prohibition was granted. 2 Coke was the petitioner's attorney, and his claim was that " nemo tenetur ■ seipsitm. prodere in such cases, but only in cansis mater, et test." " where," he added, " no discredit can be to the party by his oath." In Moor, 906, this appears as the ground of the decision. But in 1 591 the King's Bench (Wray, C. J., Gawdy and Ander- son, JJ.) refused to sustain an indictment for administering the oath against incontinence, on the ground that the oath could be lawfully administered where the offence was first presented (that is, informed of) by two men, and in this case there had been a proper presentment. 3 Thus, as we shall see, the court sustained the strict ecclesiastical rule, but ignored the statute. Finally, in 1 59 1, the case of Cartwright, who had been for some time lan- guishing in the hands of Whitgift, protesting against the imposi- 1 4 Leon. 194; Nelson, Prohibition, E. 5. 2 Cro. El. 201. 8 Dr. Hunt's Case, Cro. El. 262.