Page:Harvard Law Review Volume 5.djvu/96

80 80 HARVARD LAW REVIEW. on his oath for preaching contrary to the prayer-book, " for clergymen are not within the statute." In 1610 the case of Clifford v. Huntley, probably in the same court, 1 held that where an answer might show the forfeiture of an obligation, one could not be compelled to answer on oath, and a prohibition would issue. A similar decision was rendered in Bradston's Case, in 1614. 2 In 1615, when the case of Dighton v. Holt came before the King's Bench for a prohibition to restrain the High Court of Commission from examining certain persons on oath as to their prayer-book practices, it seemed as though the statute of Henry VIII. was again to be disobeyed, and the rule of 1591 to be revived. For a year or more the case dragged on. Six adjourn- ments took place, on more than one occasion for the express purpose of conferring with the High Court and asking them to put an end to the cause of complaint. Coke (who had become Chief Justice in 1613) evidently dreaded to be forced to decide upon his convictions (which dated as far back as the case in 1590) and against the ecclesiastical powers; but it was finally decided that the High Court had no power to examine the accused persons on oath. 3 A similar decision was reached in Jenner's Case in 1620. 4 In 16 16 a prohibition was granted against the Court of the Arches, which was on the point of putting Sir William Smith to his oath concerning a transaction alleged to have involved covin and fraud. 5 Of these cases the most important was Dighton v. Holt, and we gather from it two results: (1) that the matter practically still hung in the balance, and (2) that the question was essentially one of the extent of the authority of the ecclesiastical courts. In this case, furthermore, we find Coke laying it down as one reason for granting the prohibition, that the petitioner was brought in danger of a penal law. It had already been said, variously, that the lia- bility to the forfeiture of an obligation, and the liability to be informed against, were reasons for the rule ; but this reason seems first to have appeared in this case. Coke's statement, that it was the ground for the decision in Hinde's Case, was entirely incorrect; 1 Rolle's Abr., Prohibition (J), 6; Jura Eccles. 427, 7. 2 K. B.; Rolle's Abr., Prqh. (J) 1 ; Jura Eccles. 355, 9. 8 3 Bulstr. 48 ; imperfectly reported in Moor. 840 ; 2 Cro. 388. 6 Spendlow v. Smith, Hob. 84; Jura Eccles. 428.
 * Probably K. B. ; Rolle's Abr., Proh. (J) 5; Jura Eccles. 427, 6.