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WHIT- The Nonconformists being somewhat severely handled by
To this purpose they framed objections against the authority
in the action true; but whether it was justifiable or not, this
The cause was argued at length by the counsel at the bar, Caudrey's
and by the bench; who, having consulted the judges of the of the judges other courts, came at last to this resolution : “ That the act of the king's
1 Eliz. cap. 1, concerning ecclesiastical jurisdiction, was not a ecclesiastical statute introductory of a new law, but declaratory of the old ;
that this act does not annex any jurisdiction to the crown, but
| A declaration singularly favourable to the doctrine of Filmer and Hooker.
wise he should not be a head of the whole body.” After this ELIZAthey come to a recital of the causes which by the laws of England are to be tried in ecclesiastical courts. In this list they reckon “blasphemy, apostacy from Christianity, heresies, schism, ordering admissions, institutions of clerks, celebration of divine service, rights of matrimony, divorces, general bastardy, subtraction and right of tithes, oblations, obventions, dilapidations, reparation of churches, probat of testaments, administration and accounts upon the same, simony, incests, fornications, adulteries, solicitation of chastity, pensions, procurations, appeals in ecclesiastical causes, commutation of penance. These, and such other causes as do not belong to the cognizance of the common laws of England, are to be determined and decided by ecclesiastical judges according to the - king's ecclesiastical laws of this realm.”
Coke, ibid. In this resolution there are several remarkable things main- fol. 9. tained by these reverend judges.
First. That an authority to assign such natural-born sub- Remarks jects as the king or queen shall think fit for the exercising all upon, manner of ecclesiastical jurisdiction, and for the reforming and correcting all manner of heresies, schisms, offences, &c., which by any spiritual or ecclesiastical power or authority can or may be lawfully reformed or ordered; that such an authority was, or of right ought to be, by the ancient laws of the realm, parcel of the king's jurisdiction, and united to his imperial crown; and which lawfully had been, or might be, exercised within the realm.
Now, by qualifying their assertion with this disjunctive, that all this “had lawfully been, or might be, exercised,” it is plain the judges were sensible the regale had not been always carried out to this extent. Unless they knew this, we must suppose them strangely unacquainted with the history of former times.
Secondly. It is resolved by all the judges, that if the statute of 1 Eliz.
1 had never been enacted, the crown might have Ibid. fol. 8. made such an ecclesiastical commission, and erected such a court as gave judgment against Caudrey. And if so, this act for restoring the ancient jurisdiction to the crown seems, as to this branch at least, altogether unnecessary. Upon the whole, it must be said this decision declares strongly for the prerogative.
Thirdly. The reverend judges founded this force and extent Ibid.
WHIT- of the regale upon the absoluteness of the English monarchy; Abp. Cant. they make it a crown jewel, and a quality essential to civil
sovereignty. Now, it is well known the Roman emperors were much more absolute than the kings of England have been,-at least, for some late centuries. Therefore, if the regale, with the compass above-mentioned, is a necessary branch of the prerogative royal, it will follow, by inevitable consequence, that all the heathen emperors, from Tiberius to Constantine the Great, had a right to exercise all manner of ecclesiastical jurisdiction,
and to visit, reform, and correct all heresies, schisms, offences, 635. &c., which by “any manner of spiritual or ecclesiastical power
or authority can or may be lawfully executed or redressed." And thus those princes who are no members of the spiritual society must be heads of it; and those who profess their disbelief of the Christian faith have the whole government and discipline of the Church lodged in their hands. And by this reasoning they may erect a court of Pagan commissioners to exert ecclesiastical censures, and pronounce in cases of heresy and schism. Now, whether this way of arguing can be reconciled to the commission granted by our Saviour to the Apostles and their successors, to the practice of the primitive Church, to the perpetuity of the Christian religion, the reader may
judge by what I have formerly observed upon this subject. Coke, from To fortify the resolution of these reverend judges, the learned sir Edward Coke cites several historical passages and law
But the pertinency and force of these authorities has See this Ch. been considered already, and therefore I shall add nothing and above,
The Nonconformists, miscarrying in Caudrey's case, made a
more direct attack upon the High Commission and the bishops A complaint courts. They complained in print, that the queen could not iligh Com- convey that authority which was exercised by the high commission, and other spi
missioners, and that they had no power to tender the oath ex officio, and that the spiritual courts were only to take cognizance of testamentary and matrimonial causes. To this the civilians replied, “that to contest the authority vested in the queen by act of parliament was downright invasion of the prerogative-royal, and subversive of the government. And as for the ordinary episcopal courts, they had not exceeded their bounds." From hence they proceeded to a defence of the oath ex officio, upon some of the grounds already mentioned.
fol. 9 to 40.
Hist. vol. 1.
In this controversy, Dr. Richard Cosins, dean of the Arches, ELIZAdistinguished himself in a learned tract, entitled, “ An Apology for Proceedings in Courts Ecclesiastical," &c.'
1 While on this topic I shall quote the following remarks from Tomlins's edition of “ Hume's History."
“ The most material article which the commons touched upon in their petition, was the court of ecclesiastical commiesion, and the oath ex officio, as it was called, exacted by that court. This is a subject of such importance as to merit some explanation.
“ The first primate after the queen's accession was Parker; a man rigid in exacting conformity to the established worship, and in punishing, by fine or deprivation, all the puritanical clergymen who attempted to innovate any thing in the habits, ceremonies, or liturgy of the Church. He died in 1575; and was succeeded by Grindal, who, as he himself was inclined to the new sect, was with great difficulty brought to execute the laws against them, or to punish the non-conforming clergy. He declined obeying the queen's orders for the suppression of prophesyings,' or the assemblies of the zealots in private houses, which she apprehended had become so many academies of fanaticism ; and for this offence she had, by an order of the Star-chamber, sequestered him from his archiepiscopal function, and confined him to his own honse. Upon his death, which happened in 1583, she determined not to fall into the same error in her next choice; and she named Whitgift, a zealous churchman, who had already signalized his pen in controversy, and who, having in vain attempted to convince the Puritans by argument, was now resolved to open their eyes by power, and by the execution of penal statutes. He informed the queen that all the spiritual authority lodged in the prelates was insignificant without the sanction of the crown; and as there was no ecclesiastical commission at that time in force, he engaged her to issue a new one; more arbitrary than any of the former, and conveying more unlimited authority. She appointed forty-four commissioners, twelve of whom were ecclesiastics ; three commissioners made a quorum; the jurisdiction of the court extended over the whole kingdom, and over all orders of men ; and every circumstance of its authority, and all its methods of proceeding, were contrary to the clearest principles of law and natural eqnity. The commissioners were empowered to visit and reform all errors, heresies, schisms; in a word, to regulate all opinions, as well as to punish all breach of uniformity in the exercise of public worship. They were directed to make inquiry, not only by the legal methods of juries and witnesses, but by all other means and ways which they could devise; that is, by the rack, by torture, by inquisition, by imprisonment. Where they found reason to suspect any person, they might administer to him an oath, called ex officio, by which he was bound to answer all questions, and might thereby be obliged to accuse himself or his most intimate friend. The fines which they levied were discretionary, and often occasioned the total ruin of the offender, contrary to the established laws of the kingdom. The imprisonment to which they condemned any delinquent was limited by no rule but their own pleasure. They assumed a power of imposing on the clergy what new articles of subscription, and conseqnently of faith, they thought proper. Though all other spiritnal courts were subject, since the Reformation, to inhibitions from the supreme courts of law, the ecclesiastical commissioners were exempted from that legal jurisdiction, and were liable to no control. And the more to enlarge their authority, they were empowered to punish all incests, adulteries, fornications; all outrages, misbehaviours, and disorders in marriage : and the punishments which they might inflict, were according to their wisdom, conscience, and discretion. In a word, this court was a real “inquisition ;' attended with all the iniquities, as well as cruelties, inseparable from that tribunal. And as the jurisdiction of the ecclesiastical court was destructive of all law, so its erection was deemed by many a mere usurpation of this imperionis princess; and bad no other foundation than a clause of a statute, restoring the supremacy to the crown, and empowering the sovereign to appoint commissioners for exercising that prerogative. But prerogative in general, especially the supremacy, was supposed in that age to involve powers which no law, precedent, or reason could limit and determine.
WHIT- Notwithstanding the misfortune of the combat, the Puritans Abp. Cant. rallied the cause in a book called “ A Petition to her Majesty.”
“ But though the commons, in their humble petition to the prelates, had touched so gently and submissively on the ecclesiastical grievances, the queen, in a speech from the throne at the end of the session, could not forbear taking notice of their presumption, and reproving them for those murmurs which, for fear of offending her, they had pronounced so low as not directly to reach the royal ears. After giving them some general thanks for their attachment to her, and making professions of affection to her subjects, she told them, that whoever found fault with the Church threw a slander upon her, since she was appointed by God' supreme ruler over it, and no heresies or schisms could prevail in the kingdom but by her permission and negligence : that some abuses must necessarily have place in every thing, but she warned the prelates to be watchful ; for if she found them careless of their charge, she was fully determined to depose them : that she was commonly supposed to have employed herself in many studies, particularly philosophical (by which we suppose she meant theological), and she would confess that few, whose leisure had not allowed them to make profession of science, had read or reflected more: that as she could discern the presumption of many, in curiously canvassing the Scriptures, and starting innovations, she would no longer endure this licentiousness; but meant to guide her people, by God's rule, in the just mean between the corruptions of Rome and the errors of modern sectaries : and that as the Romanists were the inveterate enemies of her person, so the other innovators were dangerous to all kingly government; and, under colour of preaching the word of God, presumed to exercise their private judgment, and to censure the actions of the prince'.
“ From the whole of this transaction we may observe, that the commons, in making their general application to the prelates, as well as in some particular articles of their petition, showed themselves wholly ignorant, no less than the queen, of the principles of liberty, and a legal constitution. And it may not be unworthy of remark, that Elizabeth, so far from yielding to the displeasure of the parliament against the ecclesiastical commission, granted, before the end of her reign, a new commission ; in which she enlarged, rather than restrained the powers of the commissioners.
“ As the establishment of this despotic court has been a subject of considerable contest amongst our best historians, we shall make a few remarks upon it. Those writers who have inclined to what is termed the popular side of politics have accused Hume (and apparently in many instances justly) of heightening the despotic conduct of the Tudor, in order, by contrast, to soften that of the Stuart princes. And his dissertation on the despotic powers of the court has particularly attracted attention.
“ On the disputed subject of the high commission, Mr. Brodie?, who has proved himself a worthy opponent of Hume, has made the following remarks :
“ • The next subject that demands attention is the court of High Commission, which was founded upon a clause of the act that restored the supremacy to the crown, in the Ist of Elizabeth. The words are these : “The queen and her successors shall have power, by their letters-patent under the great seal, to assign, name, and authorize, when and as often as they shall think meet and convenient, and for as long time as they shall please, persons, being natural-born subjects, to exercise, use, occupy, and execute, under
"I The puritanical sect had indeed gone so far, that a book of discipline was secretly subscribed by above five hundred clergymen; and the Presbyterian government thereby established in the midst of the Church, notwithstanding the rigour of the prelates and of the High Commission. So impossible is it by penal statutes, however severe, to suppress all religious innovation.
“ 2 A History of the British Empire, from the Accession of Charles I. to the Restoration.' By George Brodie, esq., Advocate. 4 vols. Bell and Bradfute, Edinburgh, 1822.
“ 3 The ancient courts of Delegates and Star-chamber seem to have formed the models out of which the High Commission sprung.