Monday, March 9, 2009

The Oath "Ex officio" and its consequences

It is a principal of the law which we inherit from 16th-century England that a witness must testify to the truth—all the truth—but he must not lie. The first part of that stricture does not, however, oblige the witness to testify against himself.
This principle, as Gardiner points out in pages 34-37, was respected to some degree in the King's courts. It was not observed, however, in the new Court of High Commission, where the oath ex officio required all men, on the fate of their souls, to say true about their actions and the actions of their friends.
A court may be established to dispense justice, or to punish the guilty. Superficially, these may seem to be the same thing. As a practical matter, justice depends on finding the approximate truth; punishment consists in establishing blame.
Gardiner states that Englishmen could not stomach the presumption of the Court of High Commission, because it insisted that a man must convict himself. Gardiner is wrong. Many an Elizabethan could easily stomach the high church court, and those that could not were more concerned with who was convicted than why.
What is true is that Englishmen considered freedom from self-incrimination to be one of their basic rights. The idea that such right could be abrogated by a Church court established at the whim of the Governor of the Church—the king—was frightening. Here, long before any overt hostility between the people and the Crown, is a seed (perhaps a root) of the troubles that will follow.

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