Page:Harvard Law Review Volume 5.djvu/94

78 78 HARVARD LAW REVIEW. tion of the oath, was brought up again, and an opinion was given upon it by the Chief Justices of the Common Pleas and the King's Bench, the Chief Baron of the Exchequer, Serjeant Puckring, and the Queen's Attorney-General and Solicitor-General, to the effect that the refusal of Cartwright and his followers to take the oath was wrong. 1 This was correct enough, from the point of view of the statute, as to Cartwright, who was a minister; but his com- panions in durance were chiefly laymen. The court evidently in- tended to adopt the ecclesiastical contention. Thus in 1591 we have the King's Bench and the highest legal personages pro- mulgating the church's rule and slighting the statute. Since Anderson, a judge of the King's Bench in 1590, afterwards (1592) filled the chief justiceship of the Common Pleas until Coke took it in 1606, this doctrine must have subsequently had a representa- tive in the Common Pleas also. But in 1603 James came to the throne, and the whole aspect of affairs seems now to change. In that interval of a dozen years much, apparently, had been done and said which had tipped the balance in the opposite direction. From this time the eccle- siastical cause begins gradually to decline. Before noting the decisions which mark this decline, let me call attention to two inci- dents which emphasize the change that had occurred. In 1583, Whitgift had prepared a list of interrogatories for certain ministers, touching their conformity, and they had appealed to Lord Bur- leigh to protect them. Burleigh mildly expostulated with the Archbishop, protesting that " this is not a charitable way." But the Archbishop answered firmly, and declared " it is so cleere by law that it was never hitherto called into doubt; " and mentioned a case (unreported, apparently) in Elizabeth's time where certain ones were committed to the Fleet for counselling J. S. and other papists not to answer upon their oaths. 2 Now, in 1603 3 the king called a conference of the clergy, " a famous Disputation and Examination into the Customs and Practices of this Church." In the course of a discussion about the granting of commissions by archbishops, one of the lords referred to the proceedings of these commissions, compared them to the Spanish Inquisition, and spoke of the oath ex officio, by which persons were forced to accuse themselves, and mentioned the case in which Burleigh had 1 Strype's Life of Whitgift, 360, App. 138. 2 Strype's Whitgift, p. 160. 8 lb. 568.