The court of HIGH COMMISSION was so called, because it claimed a larger jurisdiction, and higher powers than the ordinary courts of the bishops; its jurisdiction extended over the whole kingdom, and was the same in a manner with that which had been vested in the single person of lord Cromwel, vicar-general to King Henry VIII. though or divine service established by law, by the censures of the church, or any other lawful ways and means, by the act of uniformity, or any laws ecclesiastical of this realm limited and appointed; and to take ' order, of your discretions, that the penalties and forfeitures limited by the said act of uniformity against the offenders in that behalf may be duly levied, according to the forms prescribed in the said act, to the use of us and the poor, upon the goods, lands and tenements of such offenders, by way of distress, according to the true meaning and limitation of the statute.

"And we do further empower you; or any three of you, during our pleasure, to visit and reform all errors, heresies, schisms, &c. which may lawfully be reformed or restrained by censures ecclesiastical, de'privation or otherwise, according to the power and authority limited and appointed by the laws, ordinances and statutes of this realm.

"And we do hereby further empower you, or any three of you, to call 'before you such persons as have ecclesiastical livings, and to deprive 'such of them as wilfully and advisedly maintain any doctrine contrary 'to such articles of religion of the synod of 1562, which only concern the confession of the true faith and doctrine of the sacraments, and will

not revoke the same.

"And we do further empower you, or any three of you, to punish all incests, adulteries, fornications, outrages, misbehaviors and disorders in marriage; and all grievous offences punishable by the ecclesiasti'cal laws, according to the tenor of the laws in that behalf, and accord'ing to your wisdoms, consciences, and discretions, commanding you, or 6 any three of you, to devise all such lawful ways and means for the 'searching out the premises, as by you shall be thought necessary: And 6 upon due proof thereof had, by confession of the party, or lawful wit6 nesses, or by any other due means, to order and award such punish'ment by fine, imprisonment, censures of the church, or by all or any of the said ways, as to your wisdom and discretions shall appear most 'meet and convenient.

"And further we do empower you, or any three of you, to call before 'you all persons suspected of any of the premises, and to proceed 6 against them, as the quality of the offence and suspicion shall require, to examine them on their corporal oaths, for the better trial and opening ' of the truth; and if any persons are obstinate and disobedient, either ' in not appearing at your command, or not obeying your orders and decrees, then to punish them by excommunication, or other censures ec"elesiastical, or by fine according to your discretions; or to commit the 'said offenders to ward, there to remain, till he or they shall be by you, ' or three of you, enlarged or delivered; and shall pay such costs and exVOL. I.

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now put into commission. The court was erected upon the authority of the acts mentioned in the preamble, and therefore its powers must be limited by those statutes; but the council for Mr. Caudrey, whose case was argued before all the judges in Trinity term 1591, questioned whether the court had any foundation at all in law; it being doubtful whether the Queen could delegate her ecclesiastical authority, or the commissaries act by virtue of such delegation.

But admitting the court to be legal, it will appear that both the Queen and her commissioners exceeded the powers granted them by law; for it was not the intendment of the act of supremacy, to vest any new powers in the crown, but only to restore those which were supposed to be its ancient and natural right. Nor do the acts above recited authorize the Queen to dispense with the laws of the realm, or act contrary to them; or to set aside the ordinary legal course of proceeding in other courts of judicature, by indictments, witnesses, and a jury of twelve men; nor do they empower her to levy fines, and inflict what corporal punishments she pleases upon offenders; but in all criminal cases, where 'pences of suit as the cause shall require, and you in justice shall think ' reasonable.

"And further we give full power and authority to you, or three of you as aforesaid, to command all our sheriffs, justices, and other officers, by your letters, to apprehend, or cause to be apprehended, such 6 persons as you shall think meet to be convened before you; and to take such bond as you shall think fit, for their personal appearance ; ❝ and in case of refusal, to commit them to safe custody, till you shalf 'give order for their enlargement: And further, to take such securities for their performance of your decrees as you shall think reasonable. And further, you shall keep a register of your decrees, and of your fines, and appoint receivers, messengers, and other officers, with such 'salaries as you shall think fit; the receiver to certify into the Exchequer, every Easter and Michaelmas term, an account of the fines taxed and received, under the hands of three of the commissioners.

“And we do further empower you, or any six of you, whereof some to be bishops, to examine, alter, review, and amend the statutes of colleges, cathedrals, grammar-schools, and other public foundations, and to present them to us to be confirmed.

"And we do further empower you, to tender the oath of supremacy to all ministers, and others compellable by act of parliament, and to certify the names of such as refuse it into the King's-Bench.

"And lastly, we do appoint a seal for your office, having a crown and a rose over it, and the letter E before, and R after the same; and round about the seal these words, Sigil. commiss, regiæ maj. ad causes ecclesiasticas."

the precise punishment is not determined by the statute, her commissioners were to be directed and governed by the common law of the land.

Yet contrary to the proceedings in other courts, and to the essential freedom of the English constitution, the Queen empowered her commissioners, to enquire into all misdemeanors, not only by the oaths of twelve men, and witnesses, but by ALL OTHER MEANS AND WAYS THEY COULD DEVISE; that is, by inquisition, by the rack, by torture, or by any ways and means, that forty-four sovereign judges should devise. Surely this should have been limited to ways and means warranted by the laws and customs of the realm.

Further, her majesty empowers her commissioners, to examine such persons as they suspected upon their CORPORAL OATHS, for the better trial and opening of the truth, and to punish those that refused the oath, by fine or imprisonment, acCORDING TO THEIR DISCRETION. This refers to the oath ex officio mero, and was not in the five first

commissions.

It was said in behalf of this oath, by Dr. Aubrey,§ that though it was not warrantable by the letter of the statute of the 1st of Elizabeth, yet the canon law being in force, before the making of that statute, and the commission warranting the commissioners to proceed according to the law ecclesiastical, they might lawfully administer it according to ancient custom.* To which it was answered, That such an oath was never allowed by any canon of the church, or general council, for a thousand years after Christ; that when it was used against the primitive christians, the pagan emperors countermanded it; that it was against the pope's law in the decretals, which admits of such an inquisition ONLY in cases of heresy; nor was it ever used in England, till the reign of King Henry IVth, and then it was enforced as law, only by a haughty archbishop, without consent of the commons of England, till the 25th of Henry the VIIIth, when it was utterly abrogated. This pretended law was again revived by Queen Mary, but repealed again by the 1st of Queen Elizabeth, and so remained.t § And nine others, learned civilians, and most of them, Strype says, judges in the civil and ecclesiastical courts. Ed. ↑ Ibid, p. 393, 394.

*Life of Whitgift, p. 340.

Besides, as this purging men by oath has no foundation in the law of the land, it is undoubtedly contrary to the law of nature and nations, where this is a received maxim, Nema tenetur seipsum accusare: No man is bound to accuse himself. The Queen therefore had no power to authorize her commissioners to set up an inquisition, and administer an oath to the suspected person, to answer all questions the court should put to him, and to convict him upon those answers; or if they could confront his declarations, to punish him as perjured.

If any persons disobeyed the orders and decrees of the court, by not appearing at their summons, &c. the commissioners, were empowered to punish them by FINE OR IMPRISONMENT, AT THEIR DISCRETIONS. This also was contrary to law, for the body of a subject is to be dealt with secundum legem terræ, according to the law of the land, as Magna Charta and the law saith. The clerk felon in the bishop's prison is the King's prisoner, and not the bishop's, and therefore by the 1st of Henry the VIIth, cap. 4, "The bishop of the diocese is empowered to im'prison such priests, or other religious persons within his 'jurisdiction, as shall by examination, and other lawful 'proofs requisite by the law of the church, be convicted of fornication, incest, or any fleshly incontinency, and there to detain them for such time as shall be thought by their discretions convenient, according to the quality of the of fence; and that none of the said archbishops or bishops shall be chargeable with an action of false imprisonment 'for so doing."* Which plainly implies, that a bishop cannot by law commit a man to prison, except in the cases above-mentioned; and that in all others, the law remains in force as before. If then the Queen, by her ecclesiastical commission, could not dispense with the laws of the land, it is evident that the long and arbitrary imprisonments of the puritan clergy, before they had been legally convicted, and all their confinements afterwards, beyond the time limited by the statutes, were so many acts of oppression; and every acting bishop or commissioner, was liable to be sued in an action of false imprisonment.

Life of Aylmer, p. 145,

The law says, no man shall be fined ultra tenementum, beyond his estate or ability. But the fines raised by this court, in the two next reigns, were so exorbitant, that no man was secure in his property or estate; though, according to lord Clarendon, their power of levying any fines at all was very doubtful. Some for speaking an unmannerly word, or writing what the court was pleased to construe a libel, were fined from five hundred to ten thousand pounds, and perpetual imprisonment; some had their ears cut off and their noses slit, after they had been exposed several days in the pillory; and many families were driven into banishment; till in process of time the court became such a general nuisance, that it was dissolved by parliament, with a clause that no such court should be erected for the future.

Further, the commission gives no authority to the court to frame articles, and oblige the clergy to subscribe them. It empowers them to reform all errors, heresies and schisms, which may lawfully be reformed, according to the power and authority, limited and appointed by the laws and statutes of the realm. But there never was a clause in any of the commissions, empowering them to enforce subscription to articles of their own devising,* Therefore their doing this, without a special ratification under the great seal, was no doubt an usurpation of the supremacy, and brought them within the compass of a præmunire, according to the statutes of the 25th of Henry VIII. cap. 20, and 1 Eliz. cap. 3.

Lastly, Though all spiritual courts (and consequently the high commission) are and ought to be subject to prohibitions from the supreme courts of law, yet the commissioners would seldom or never admit them, and at length terrified the judges from granting them: So that, upon the whole, their proceedings were for the most part contrary to the act of submission of the clergy, contrary to the statute laws of the realm, and no better than a spiritual inquisition.†

* MS. p. 573.

+ In this view it was considered by the Lord Treasurer Burleigh"According to my simple judgment," says he, in a letter to the archbishop, "this kind of proceeding is too much savoring the Romish inquisition, "and is rather a device to seek for offenders, than reform any." Fuller's Church History, b. ix. p. 155. Mr. Hume stigmatizes this court not only as a real INQUISITION; but attended with all the INIQUITIES, as well as cruelties, inseparable from that horrid tribunal. ED.