72 HARVARD LAW REVIEW. ence, was not to protect from answers in the king's court of justice, but to prevent a usurpation of jurisdiction on the part of the Court Christian (or ecclesiastical tribunals). 3d. That even as thus enforced the rule was but partial and limited in its appli- cation. 4th. That by gradual perversion of function the rule assumed its present form, but not earlier than the latter half of the seventeenth century. 1 These are the results in brief. Let us now turn to the evidence. We are taken back to the middle of the thirteenth century. It was an epoch marked by a stubborn antagonism between civil and ecclesiastical influences. The leaders of the church were of foreign culture, and through them was exerted the powerful in- fluence of the papal see. The barons were engaged in that defence of English liberties and so-called popular rights, which was char- acterized by repeated defeats on the part of kings and by the sign- ing of successive charters. Rather as an incident than otherwise of this general struggle, it came about that the canon law and the common law were placed in opposition. From the time of Henry III., and earlier, down to the days of the first James, it is apparent that there was a constant and irritating friction between the two systems. The proclamation of Stephen in proscribing the use of the civil law, 2 and the well-known order issued by Henry III., in 1235, in regard to the teaching of law in the city of London, are some of the earlier signs of the extent and importance of the conflict. When Henry married his French wife, in 1236, there came over with her to England her four uncles, one of whom, Boniface, was placed in the see of Canterbury, — according to one authority, — as archdeacon. In the same year, 1236 (Matthew Paris says 1237), there came over a Cardinal Otho (whose constitutions have always been regarded as of high authority), and in a conference (Conci- lium Pananglicanuni) held at Saint Paul's in the same year he promulgated a constitution ordaining that the oath against cal- umny (jusjurandum calumnies) be required in every ecclesiastical 1 Some interesting evidence, in a line with what will be here offered, may be found in Bentham's Judicial Evidence, vol. 5, book 9, c. 3, 4. In his brief account (to which I had not referred until the present material was quite collected) special attention is called to the absence of the privilege in common-law practice before the seventeenth century. 2 Probably 11 54. See Wilkin, Leg. Ang. Sax. 318. Joh. Sarisb., Policraticus, Lib. 8, c. 22 b.
