Page:Harvard Law Review Volume 5.djvu/98

82 82 HARVARD LAW REVIEW. Only one more case seems to have occurred in which the rule was disputed with any vigor, but on this occasion its very foundations were assailed. The struggle to overthrow it was like the last great revolt of a once powerful idea, when the result hangs for a time in suspense, and the unsuccessful cause is at last crushed out forever. This was the case of Farmer v. Brown, in 1679. 1 The plaintiff raised the point that the Ecclesiastical Court could administer an oath only in causis matrimonialibiis et testamenlariis ; the defendant denied that the court was restricted to such causes. A prohibition was finally granted. It appears from the language in the case that the privilege of refusing to answer was already put forward as of general validity, that it rested no longer merely on the antagonism of two jurisdictions, but was a privilege to be claimed in any court whatever. The cases henceforward are occupied only with devel- oping the details of the principle. Meanwhile, however, and before the last five cases had occurred, two statutes had intervened to push the matter beyond the need of decisions. It is probable that the second of the two was the result of the discussion in Attorney-General v. Mico, in 1868. The first of these was 16 Car., I. c. 2 (1641), and provided that no one should impose any penalty in ecclesiastical matters, nor should "tender . . . to any . . . person whatsoever any corporal oath whereby he shall be obliged to confess or accuse himself of any crime or any . . . thing whereby he shall be exposed to any censure or penalty whatever." This probably applied to ecclesiastical courts alone. The second (13 Car. II., c. 12, 1662) is more general, providing that " no one shall administer to any person whatsoever the oath usually called ex officio, or any other oath, whereby such persons may be charged or compelled to confess any criminal matter." It would seem that these enactments should have settled the matter beyond all doubt in 1641, or at any rate in 1662; but in fact we find these last few cases in the King's Bench and the Exchequer mooting the question apart from the statutes, and seemingly in entire ignorance of them. The statute of 13 Car. II. is cited in Scurr's Case, but otherwise neither of them seems to have been mentioned ; nor do the text-books, as a rule, take any notice of them. Henceforward, however, no question arises in the courts as to the validity of the privilege against self-crimina- 1 2 Lev. 247; T. Jones, 122; 1 Vent. 339; Nelson's Abr., Prohibition, F. 20.