Front Page Titles (by Subject) Of Oaths Before an Ecclesiasticall Judge Ex Officio. - Selected Writings of Sir Edward Coke, vol. I
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Of Oaths Before an Ecclesiasticall Judge Ex Officio. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Of Oaths Before an Ecclesiasticall Judge Ex Officio.
(1606) Easter Term, 4 James I.
First Published in the Reports, volume 12, page 26.
Ed.: In these notes Coke records the consultation between himself and the Chief Justice Popham of the King’s Bench regarding a bill then in Parliament about the procedures for investigations by an ordinary, that is a bishop hearing ecclesiastical Cases in his diocese. Their most important conclusion was that no one may be punished for crimes of thought. There is also important language regarding the Law, that it is the inheritance of the subject and cannot be deprived in any way but by an act of Parliament.
The Ordinary cannot enforce a man to answer generall Articles Ex Officio.Note, Pasch. 4 Jacobi, In the time of the Parliament, the Lords of the Councell of Whitehall demanded of Popham, Chief Justice and myself, upon motion made by the Commons in Parliament, in what cases the Ordinary may examine any person Ex officio1 upon oath; and, upon good consideration and view of our Books, We answered to the Lords of the Council at another day in the Councell Chamber.
“1. That the Ordinary cannot constrain any man, Ecclesiasticall or Temporall, to swear generally to answer to such interrogatories as shall be administered unto him; But ought to deliver to him the Articles upon which he is to be examined, to the intent that he may know whether he ought by the Law to answer to them: and so is the course of the Star-chamber and Chancery; the defendant hath the Copy of the Bill delivered unto him, or otherwise he need not to answer to it.
“2. No man Ecclesiasticall or Temporall shall be examined upon secret thoughts of his heart, or of his secret opinion: But somthing ought to be objected against him what he hath spoken or done. No Lay-man may be examined Ex officio, except in two Causes, and that was grounded upon great reason; for Lay-men for the most part are not lettered, wherefore they may easily be inveigled and entrapped, and principally in Heresie and Errors: And this appears by an Ordinance made in the time of Edward I. tit. Prohibition, Rastal.”
The words of which Ordinance are, And Quod non permittant quod alioqui laici in balliva sua in aliquibus locis conveniant, ad aliquas recognitiones per juramenta sua faciendas, nisi in causis matrimonialibus et testamentariis.2 And the reason that the Ecclesiasticall Judge shall examine them in these two Cases, is for this; that Contracts of Matrimony, and the Estates of the dead, are many times secret; and they do not concern the shame and infamy of the party, as Adultery, Incontinency, Usury, Simony, Hearing of Mass, Heresie, &c.
And for this cause in these cases, and such like, the Ecclesiasticall Judge ought not to examine Partem ream,3 upon their Oath: for as a civilian said, that this was inventio diaboli ad destruendas miserorum animas ad infernum:4 and in the Register, fol. 36. 6. there is a Prohibition in this form, Praecipimus tibi quod non permittas quod aliqui laici ad citationem talis Episc’ aliquo loco conveniant de caetero ad aliquas recognitiones factas vel sacramenta praestanda, (the one is the exposition of the other) nisi in casibus matrimonialibus et testamentariis: and there is an attachment upon it, pone per vad’ talem Episc’: quod sit coram Justiciariis nostris, &c. ostensurum quare fecit summoneri, et per censuras eccles’ distringi laicas personas vel laicos homines et foeminas ad comparendum coram eo ad praestandum juramentum pro voluntate sua ipsis invitis in grave coronae praejudicium | et dignitatis nostrae Regiae, necnon contra consuetudinem regni nostri; et habeas ibi nomina plegiorum, &c. teste, &c.5 by which it doth appear, that this was not only against the said Ordinance, but also against the custome of the Realm, which had been time out of mind, and also in prejudice of the Crown and Dignity of the King: and with this agrees F. N. B. fol. 41. And vide the Case reported by the Lord Dyer, (but the Case is not printed,) Trin. 10 Eliz. one Leigh, an Attorney of the Common Pleas, was committed to the Fleet by the High Commissioners in a case Ecclesiasticall, for this, that he had been at Masse, and refused to swear to certain Articles to be proposed to him. And held, that although in such case, Ecclesiasticall Jurisdiction is saved by the Statute of 10 Eliz. yet they ought not in such case to examine upon his Oath: and hereupon he was delivered by all the Court of Common Pleas [upon the return of the matter upon a habeas corpus.6 ]
And in Mich. 18 Eliz. Dyer, fol. 175. in Hind’s case, who would not swear Commissionariis Eccles’ super articulos pro usura, et ea de causa commissus est Gaolae de le Fleet.7 He was delivered by Habeas corpus per totam Curiam.8 This was also because they could not imprison.
Vide le Statute 25 H. 8. cap. 14. Which is declaratory as to this point: It standeth not with the right order of Justice nor good equity, that any person should be convict, and put to the losse of his life, good name, or goods, unless it were by due accusation, and Witnesses, or by presentment, verdict, confession, or processe of Out-lawry, &c. And it is not reasonable that any Ordinary upon suspition conceived of his own fancy, without due accusation or presentment, should put any Subject of this Realm in infamy and slander of Heresie, to the perill of life, losse of good name, or goods; (et Paulo antea)9 the most expert and learned man of this Realm, diligently laying wait upon himself, cannot eschew and avoid penalty and danger, &c. if he should be examined upon such captious interrogatories, as is and hath been accustomed to be ministred by the Ordinaries of this Realm, in Case where they willsuspect any man of Heresie: and this was the Judgment of all the said Parliament. See F. N. B. Justice of Peace 72. Lamb, in his Justice of Peace 338. Crompt. in his Justice of Peace 36. 6. In all which it appears, that if any be compelled to answer upon his Oath, where he ought not by the Law, thatthisisoppression and punishable before a Justice of Peace, a Justice of Assise, &c. for this is an Article of charge, to enquire of all Oppressions: And as to that which was objected, that for a very long time, divers had been examined upon Oath in Ecclesiasticall Courts; as to this it was answered, that it might very well be, and not against Law, for the words of the Treatise or Ordinance, and of the Register, are, Contra voluntatem eorum, &c.10 So that if any assent to it, and take it without exception, that is not Contra voluntatem eorum, But to enforce any to take it, who ought not to take it by the Law, is a great oppression; but if any person Ecclesiasticall be charged with any thing which is punishable by our Law, as for usury, &c. there he shall not be examined upon Oath, for this, that his oath is evidence against him at the Common Law, and to do it incurs the penalty of the Statute: but witnesses may be cited to testifie.Register, tit. Consult. F. N. B. 53d. Also by the Statute 2 Hen. 4. cap. 15. it is provided, that Dictus Diocessanus per se vel per Commissarios suos contra hujusmodi personas, &c. Et ad omne juris effectum, publice et judicialiter procedat et negotium hujusmodi, &c. terminet juxta canonicas sanctiones, which words, Juxta Canonicas sanctiones,11 give them power to proceed according to their Cannons, and excludes the Common Law; and by pretext of this in the cases mentioned in the said act, they examined as well Lay-people as | Clerks, upon their Oaths concerning Heresie, erroneous Opinions, &c. mentioned in the said act in the Reign of Henry the fourth, Henry the fifth, Henry the sixth, Edward the fourth, Richard the third, Henry the seventh unto the time of the said Act of 25 Hen. 8. And for this in the reign of Henry the eighth nor in the reign of Edward the sixth no layman was examined upon his Oath, except in the said two Cases of Matrimony and Wills: but in the Raign of Queen Mary, this Act of 2 Hen. 4. was revived; and then all the Martyrs who were burnt were examined upon their Oaths: and afterwards by the 10th Eliz. the said Act of 2 Hen. 4. is repealed, by which the Common-Law is in full force and effect: And for this cause all the pretence of possession and practice which the Ecclesiasticall Courts have had is strongly answered by this which hath been said, that the words of the said Treatise and Register are, Contra voluntatem eorum, &c. And those who have so taken it have assented to it, and that stands with Law.
Note, that King John12 after he had murthered his Nephew Arthur, and Neice Ellenor, the Issue of his elder Brother Geffrey, after he had lost Normandy, Aquitain, and Anjowe, after that his Commons for unjust vexation disobeyed him, his Nobles revolted from him, the Clergy oppressed by him, and that he stood excommunicated by the Pope, and his Kingdom interdicted, he for his protection, granted by his Charter of 13 Maii, anno regni 14. submitted himself to the obedience of the Pope: And after in the fourteenth year of his Raign, as one destitute of all succour and safety, and from day to day in fear to lose his Crown, by another charter he resigned his Crown and Realm to the Pope Innocent and his Successors, by the hands of Pandolph his Legate, and took it of him again to hold of the Pope, which was utterly void, for this, that the Dignity is an inherent, inseparable to the Royall blood of the King, and descendable to the next of blood of the King, and cannot be transferred to another, no more then a Duke, or Earl, or Baron, or other Dignity, may transfer over their Dignity, for these are incidents inseparable; also the Pope was an Alien born, and therefore was not capable of Inheritance within England:
By colour of which submission and resignation, the Pope and his Successors exacted great summs of the Clergy and Layity of England, Pro commutandis poenitentiis,13 to maintain the height and dignity of the Pope: And for the better inriching of the Coffers of the Pope, Pope Gregory the ninth sent Otho Cardinalis de Carcere Tulliano, into this Realm, when there was indignation betwixt Henry the third and his Nobles, to collect money for the Pope, who did collect infinite summs of money, so that it was said of him, Quod legatus saginatur bonis Angliae,14 which Legate held his Councell at London, anno Domini 1237, and 22 Hen. 3. And for the better findingout Offences which should be redeemed with money, he, with the assent of the Bishops of England there assembled, made divers Cannons, amongst which one was, Jus jurandi Calumniae in causis ecclesiasticis cujuslibet, et de veritate dicendi in spiritualibus quoque, ut veritas facilius aperiatur et Causae celerius determinentur, Statuimus de Caetero prestari in Regno Angliae secundum Canonicas et legitimas Sanctiones, obtenta in contrarium Consuetudine non obstante, &c.15
By which Cannon it appears that the Law and Custom of England was against this examination of the party Defendant upon his Oath, for it is said, Statuimus de Caetero prestari in regno Angliae,16 so that this was a new Law, and took its effect De caetero.17
2. Obtenta in contrarium Consuetudine non obstante.18 And this very well agrees with the Register and the said Treatise De Regia prohibitione, And the other Authorities, That the Law and Custom of England | was, that Lay-people in criminall causes, be they Ecclesiastical or Temporall, shall not be examined upon their Oath (only in causes matrimoniall and testamentary) otherwise it is of Clerks, as is aforesaid: And for this, that it appears by the said Cannon it self, that this was against the Law and Custom of England; whence it follows that this Cannon shall not bind, for that the Law and Customs of England cannot be changed without an Act of Parliament, for this, that the Law and Custom of England is the Inheritance of [the subject,]19 which he cannot be deprived of without his assent in Parliament: And it appears in Linwood, cap. Jure jurandi, fol. 8. 6. That Boniface, Bishop of Canterbury, anno 1272. and 57 Hen. 3. a little before the death of that King made this Cannon, Statuimus quod Laici de subditorum peccatis et excessibus corrigendis per praelatos et judices ecclesiasticas inquiratur ad praestandum de veritate dicenda sacramentum per excommunicationis sententias. Si opus fuerit compellantur impedientes, vero ne hujusmodi juramentum praestetur per interdicae est excommunicatio sententia arceantur.20 In which Cannon it is to be observed, that this extends to Lay-people; for, as appears, the Ecclesiastical Judge mayexamine those of the Clergy upon their Oathes; and note, Linwood, cap. Jure jurando, fol. 6. litera E. saith so. Hic dicitur causa editionis hujus statuti, viz. Praelati Ecclesiastici procedebant ad inquirendum de criminibus et excessibus subditorum suorum et laïci (nota hic) suffulti potestate dominorum temporalium in hujusmodi inquisitionibus noluerunt jurare de veritate dicenda.21
Note well what the cause was, why Lay-people refused to be examined for Crimes and Excess.
2. It appears, that the Judges of the Common Law by their Prohibition did interdict, &c. as it appears by the Register and the other Authorities; in the time of Edward I. and other Kings, Incroachments were made upon the Subjects, which are here called Impedimentes, but now the canon saith Impellat.22
3. That where by the Law they may examine Lay-people upon their Oath, In Causis matrimonialibus et testamentariis,23 here Boniface makes this Cannon to extend to Peccata et excessus,24 which Cannon was utterly against the Law and Custome of England. In like manner another was made by him at the same time, Linwood, cap. De benef. fol. 231. which Cannon being made directly against the Judges, who did award processe against them, if they did impose any pecuniary pain: And prohibites them the Judges with fear of excommunication, the Cannon being against Law, [the Judges]25 prohibitesthem notwithstanding this thundering of Excommunication in all ages. And the scope and purpose of the said Cannon was to perplex the Subjects, and to enrich themselves by punishment pecuniary; And this is declared by Act of Parliament made 9 Ed. 2. called Articuli Cleri. Si praelati imponant Paenam pecuniariam alicui pro peccato, &c. Regia prohibitio locum habet.26 [Note this.]27
[1. ][Ed.: Of the office.]
[2. ][Ed.: That they should not permit any laymen in their bailiwick to be convented in any places to make any recognitions by their oaths, except in matrimonial and testamentary causes.]
[3. ][Ed.: The guilty (i.e. accused) party.]
[4. ][Ed.: an invention of the Devil to drag the souls of the wretched down to Hell:]
[5. ][Ed.: We command youthat youshould not permitanylaymenatthecitationofanybishophenceforth to be convented to make any recognizances or take any oaths . . . except in matrimonial and testamentary causes. (and there is an attachment upon it) Put by gage such and such a bishop that he be before our Justices, etc. to show why he caused lay persons (or lay men and women) to be summoned and to be distrained by the censures of the Church to appear before him to take an oath at his pleasure, against their will, to the grave prejudice of the crown and of our royal dignity, and also against the custom of our realm. And have their the names of the pledges, etc. Witness, etc.]
[6. ][Ed.: Writ to determine the legality of an incarceration. Note also, the bracketed text was omitted from the 1656 edition.]
[7. ][Ed.: Before the ecclesiastical commissioners upon articles for usury, and for that causewascommitted to the Fleet gaol.]
[8. ][Ed.: by the whole court.]
[9. ][Ed.: and Paul before, an apparent reference to the trials of St. Paul. Acts 22–28.]
[10. ][Ed.: against their will, etc.]
[11. ][Ed.: the diocesan, by himself or by his commissaries, should proceed publicly and judicially against such persons, etc. to the full effect of the Law, and determine such business, etc. in accordance with the canonical rules.]
[12. ]Math. Paris, 225, 226, 227, &c.
[13. ][Ed.: For commuting penances,]
[14. ][Ed.: That the legate grew fat on the plenty of England,]
[15. ][Ed.: We have enacted that an oath of accusation in ecclesiastical causes, and also for saying the truth in spiritual matters, so that the truth may more readily appear, and causesbemorespeedilydetermined, shall from henceforth be taken in the realm of England in accordance with the canonical and Lawful rules, any custom obtaining to the contrary notwithstanding, etc.]
[16. ][Ed.: We have enacted that from henceforth it shall be taken in England.]
[17. ][Ed.: From henceforth.]
[18. ][Ed.: Any custom obtaining to the contrary notwithstanding.]
[19. ][Ed.: Bracketed text omitted from the 1656 edition.]
[20. ][Ed.: We have enacted that laymen (who enquire) of the offences and excesses of subjects, which are to be corrected by bishops and ecclesiastical Judges, may take an oath to speak the truth under sentence of excommunication. If need be hinderers may be compelled . . .]
[21. ][Ed.: Here is stated the reason for the promulgation of this Statute, that is to say, that prelates of the Church proceeded to enquire of the crimes and excesses of their subjects, and laymen (note this), supporting the power of temporal lords, would not swear to say the truth in such inquisitions.]
[22. ][Ed.: Compel.]
[23. ][Ed.: In matrimonial and testamentary causes,]
[24. ][Ed.: Wrongs and excess,]
[25. ][Ed.: Bracketed text omitted in the 1656 edition.]
[26. ][Ed.: If prelates impose a pecuniary penalty on anyone for an offence, etc. a royal prohibition shall be available.]
[27. ][Ed.: Bracketed text omitted in the 1656 edition.]