was of no legal effect; and, if it had been, the two preceding clauses completely nullified it, inasmuch as they declared valid the Letters Patent and the Commissioners' exposition of the statute of 1, Elizabeth, both of which contained ample authority to try slanders of all descriptions, whether against the Commission or not. In fact, the consultation contained so many mutually contradictory phrases, and so many antagonistic claims, that it could hardly be considered to have placed a limitation upon the Commission's powers. By refusing to support Fuller's "appeal" and thus assume jurisdiction of the case themselves, the judges had abandoned him to the discretion of the High Commission. Despite the confused phrasing of the writ, the ecclesiastical authorities attempted to follow its very letter and spirit, in order to give Fuller and the judges themselves no cause for complaint. They therefore arraigned him for schism and erroneous opinions and probably on October 20 or 21 convicted him, fined him £200, and sentenced him to imprisonment during pleasure.2 3 But Fuller had by no means exhausted the resources of the common law, and found the judges ready to assist him in pushing the matter still further. His counsel applied to the King's Bench for a Habeas Corpus, which should force the keeper of the prison. where Fuller lay to produce him at the King's Bench bar and state his authority for detaining him. The Habeas Corpus, issued in the first week of November, raised a new question for the judges to decide: was the unquestionably regular process of commitment used by the High Commission legal? The argument over the prohibition had debated the respective rights of the Commission and the King's Bench to punish Fuller for his slander of the former court, which he had uttered in a pleading before the latter. Now, however, Fuller brought to the fore, the precise question he had 1 Just at this time, the common law courts were trying to draw all cases of slander before their Own tribunals. 2 XII, Reports, 44. This happened before November 14, because on that date Fuller's fine was granted to John Patten of the King's Closet. State Papers Domestic, Docquet, November 14, 1607. On October 19 the King wrote to Salisbury to bear in mind Fuller's Case (Hatfield MSS. 134 f. 126) and on October 23 Lake wrote to Salisbury that the King was "exceedingly well pleased" about the "prohibition.'' (Hatfield MSS. 122, f. 150.) When Fuller's Case came up again it was on a Habeas Corpus, hence this trial would seem to have come on October 20 or 21. 3 Dr. Gardiner here inserts the famous altercation between Coke and the King. This, however, seems to belong elsewhere. See infra, Book III, Chapter IX. already argued in the objectionable speeches which had first embroiled him with the Commission-the right of the court to commit him to prison at all. He made no charge that the process used was irregular, that he was committed for a crime for which others were not detained, or that the Commission possessed no such authority in its Letters Patent. He virtually declared it illegal and asked confirmation of his opinions from the King's Bench. This movement brought him into collision with the State. Hitherto, James and Salisbury had been interested observers of the case, concerned lest it should take a dangerous turn. They were now perfectly satisfied that the affair had gone far enough, and felt that it was high time they took a hand in the matter, if they were to prevent the discrediting of the Commission by so "euil a uillaine" as Fuller. James considered his prerogative threatened and, in fact, there could be no question of the truth of his belief. Stripped of its legal technicality, Fuller's argument said nothing less than that the Letters Patent gave the Commission a power which the statute of 1 Elizabeth did not confer upon the King, and which, therefore, he could not delegate to a Commission. Both Elizabeth and James had issued such Letters Patent, and, if they had done so, as Fuller claimed, without authority either from their prerogative or from statute, they had committed a grave breach of the law, and, what was more, if the contention was true, the Crown did not possess an important ecclesiastical prerogative which it had long exercised. James was therefore literally right in asserting that his prerogative was at stake. While apparently arguing merely that the High Commission had illegally imprisoned one Nicholas Fuller, the lawyers would be, in reality, debating whether or not the King possessed the power to create such a High Commission as his Letters Patent of 1605 specifically sanctioned. It was James's steadfast opinion that "the absolute prerogative of the Crown" was "no subject for the tongue of a lawyer," nor was "lawful to be disputed." He, therefore, directed Salisbury to 1 Works of James I, (London, 1616) p. 550. The case was duly ap preciated and followed outside the court. On November 22, William Walton met George Knight at Pauls: "Howe nowe Mr. Walton, said Knight, do you thinke to carry away the cause between you and Mr. Ponde in this manner from my Lorde of Canterburie round before the judges of the King's Bench . . . the Lord Archbyshopp I warrant you will bring the same therethence againe in spight of their teethes. . . . His Grace had allready committed one Fuller to the Fleete and so would them (i. e. the take charge of the defence of "his honour," and see that no argument took place over his prerogative; Hobart, the Attorney General, was ordered to argue against Fuller in support of the High Commission, and to prevent any dispute over its legality or illegality. 66 On Tuesday, November 24, 1607, the warden of the Fleet Prison brought Fuller to the King's Bench bar as the Habeas Corpus required. The court room was thronged with an interested audience, for the case had by this time attained a certain amount of notoriety. When the warden had presented the warrant for Fuller's commitment and when the document had been read, Fuller declared that he wished to except to it, "both in matter and forme." In the first place, he had not spoken the words with which it charged him: secondly, that, if he had, he uttered them merely by way of an argument" for his client, a fact which he thought ought to be taken into account, and of which he found no mention in the return. It seemed essential to him, he said, that the return should state the truth and that it should do so in proper form. He therefore excepted to it as insufficient. Hobart, the Attorney General, argued on the other hand, that the King's Bench had no authority to examine the facts of the case, in order to determine whether or not they justified any action at all, for that court had recognised, in its own consultation, that it had no right to try the substance of the charge against Fuller, and therefore no jurisdiction to decide whether or not the facts of the case supported the warrant. If the warrant alleged a good prima facie cause of imprisonment and had been made out in due form, it was sufficient in law, he declared, to keep Fuller in the Fleet. In fact, unless it showed on its face that the Commission had proceeded against him in a manner forbidden by the consultation, the judges must declare it valid. He then compared the return with the consultation and showed beyond doubt that the two agreed. With this argument, which was in truth good law, the judges were satisfied, and remanded Fuller to prison. In their opinions, wrote Salisbury to James, they added "larg profeshions how much it became them in Judges of the King's Bench) if they 1 Hatfield MSS. 124, f. 137 b, 138 a. Salisbury to the King. Holograph draft, corrected. This was the report sent off that evening to James, who was outside London, hunting. duty to eschew any blemishe to such a commission," and declared that they believed he had uttered all the words charged against him, and that he ought to be punished for such an offence. Fuller was completely defeated, but he was not yet overwhelmed. He said that he had been without counsel to defend him and begged for a new hearing, where he might be privileged to have lawyers to speak on his behalf. After a good deal of hesitation, the judges granted the request, expressing however their surprise at his continued intractability and their hopes that, when he returned, he would make a complete submission, instead of aggravating his offence by continued obstinacy. The judicial apprehension of further trouble from Fuller was shared by James and Salisbury, both of whom believed that too much consideration had already been shown so graceless a rogue. To them, the writs of Habeas Corpus to Ladd and Mansel, the prohibition and consultation, and then the Habeas Corpus to Fuller himself, seemed to point either to an opinion among the judges that the High Commission was illegal, or to the judges' desire to expand their jurisdiction regardless alike of the character of the cause they espoused or of the effect of their acts upon the welfare of the Church and the safety of the State. When, therefore, after refusing to maintain three such writs in succession, the judges allowed Fuller a new hearing and gave him, contrary to all common law precedent, the privilege of counsel, James was frankly puzzled. He strongly suspected them of some purpose of their own which boded ill to him and his prerogative, and which they would stick at nothing to accomplish. For the nonce, however, he found scant confirmation of his fears. The second hearing took place on Thursday, November 26.1 Quick to appreciate the legal situation, Fuller saw that he must attack not the substance but the form of the warrant whose validity was the present issue; and he was keen enough to direct his counsel to cling fast to their legal exception and say nothing about the illegality of the Commission or the substance of his case before that court. His lawyers therefore argued that the warrant, to be good, must show on its face that the Commission possessed from the King sufficient authority to fine and imprison Fuller. According to the 1 Our sole authority is again Salisbury to the King. Draft corrected by Salisbury himself. Hatfield MSS. 123, f. 59. November 28, 1607. return, the Commission had imprisoned Fuller because of schism and heresy and had left it to be assumed that it possessed sufficient authority for the action. Although there could be no doubt, continued the lawyers, that it had the authority, and although the judges themselves might know it, they could not take legal cognisance of it unless that fact were expressed in the return. With this argument, which was certainly specious, the judges were visibly impressed. In his reply, Hobart met the objection by stating, that the contents of royal letters patent and of the statutes of the realm were public and did not need to be pleaded specially in court or mentioned in every act performed under their authority, for it was part of the judges' duty to keep themselves informed of the contents of such documents. This argument won the day and the judges remanded Fuller to prison for good. But they wove into their speeches various statements of political theory which, with Fuller's pamphlet later published, mark the case as important in the annals of English constitutional history. They declared that "they were one of the King's strongest armes,' "' and dilated upon their own importance and dignity. They hoped, they said, that all men who had spoken disrespectfully of their authority would "learn and understand" that the temporal courts possessed a perfect right to grant prohibitions, and intended to continue issuing them whenever they saw fit. Their intention to grant them, in instances like Fuller's, was expressed in the declaration that all prohibitions issued in the past had been properly granted. When the news reached James, who was hunting outside London, he was at once pleased and displeased. So satisfactory was the settlement of the case to him that he sent quite profuse thanks to all who had laboured to bring it about, especially to Chief Justice Coke of the Common Pleas, who had been playing the mediator between the Commission and the King's Bench. But he declared and "bownd it with an oath that the judges had don well for themselfes as well as for him for that he was resolued if they had don otherwise and mainteyned their Habeas Corpus he wold haue committed them. And uppon that point which your lo: mentioneth of their declaration that they wold grant prohibitions he spake angrily that by their leaves they should not use their libertie therein but be prescribed."" 1 Hatfield MSS. 123, f. 55. November 27, 1607. Lake to Salisbury, holograph; and Hatfield MSS. 123, f. 66, November 30, 1607, same to same. |