church re the adhe moderate Catholics; tended to overturn the constitution of the church and the religious supremacy of the queen; and upon that general theory it was that convictions were obtained against1 Udal in 1591, and against Greenwood, Barrow, and Penry, in 1593. By that time, as a result of the defeat of the Spanish Armada, the state church had been strongly reinforced by the adhesion of the state a large body of moderate Roman Catholics, who, in the hope inforced by of another reaction, had until then withheld their allegiance. the adh Thus strengthened, the queen was able to direct a final blow many against each of the extreme factions which stood out against Roman the establishment through two acts passed in the parliament that met in 1593. The one, entitled "An act for restraining fresh aspopish recusants to some certain places of abode," has been upon recuexplained already; 2 the other, entitled "An act to retain the sants and queen's majesty's subjects in their due obedience," 3 put pro- formists testant non-conformists in the same category with "popish passed in recusants," by providing that any person over sixteen who 1593. resisted the queen's supremacy, who refused to go to church or persuaded others not to go to church, or who should go to any unlawful conventicle, should be imprisoned until he conformed. If he failed to conform for three months, he was to abjure the realm, and, after abjuration, if he did not leave, or returned without a license, he was to be guilty of felony without benefit of clergy.1 sault made non-con by two acts ecclesias 5. The great mass of powers and duties cast upon the crown Court of by Elizabeth's assumption of the royal supremacy in matters mission of religion was materially increased by the enactment of the in causes persecuting statutes just enumerated, through which she at- tical: tempted to force with equal severity on "popish recusants" and protestant "non-conformists" an acceptance of her ecclesiastical compromise which rested on parliamentary authority. When her father assumed the supremacy, he, in accordance 1 I St. Tr. 1271. This case has an important connection with the beginnings of the law of libel. "Side by side with prosecutions of this kind under special statutes, there were in progress the prosecutions before the star chamber of which I have already given specimens. It was upon these that Sir E. Coke founded his report of the case de famosis libellis." Stephen, Hist. of the Crim. Law, vol. ii. p. 304, citing Coke's Reports, pt. v. fol. 125; pt. ix. 8 35 Eliz. c. I. 4 The law relating to protestant dissenters stood thus till the Civil War, being enforced with various degrees of rigour according to the circumstances of the time."- Stephen, Hist. of the Crim. Law, vol. ii. p. 478. Henry VIII. the church first through his vicargeneral; and then by means of royal proclama with papal ideas, had appointed Cromwell as his legate or vicargoverned general, and in that way exercised his visitorial and reforming down to Cromwell's death,1 after which time every powers special assertion of the supremacy was executed through commissions. The general statement may be made that from the humiliation of the clergy through the Act of Submission (1532-33), the actual government of the church passed from convocation to the crown, which asserted its authority by means of injunctions, proclamations, and royal commissions, that for a time superseded synodical canons.2 That system superseded of church government carried on by Henry, Edward, and for synodical a time by Mary,3 was resumed by Elizabeth under the Act of canons; Supremacy, which, after recognizing her as "the only Supreme authorized Governor, as well in all spiritual or ecclesiastical things by the Act of or causes as temporal," provided that she and her successors Supremacy should exercise all ecclesiastical jurisdiction, and specially tions and commissions, which for a time Elizabeth to govern through commis sions; nent Court of High Commission created in 1583; ecclesiastical criminal jurisdiction, through commissioners appointed from time to time under the great seal. Under that power five high commissions were issued during the first twenty years of the queen's reign, and then in December, the perma- 1583, another followed, creating the permanent body afterwards known as "The Court of High Commission in Causes Ecclesiastical." By the terms of the instrument last named, the forty-four commissioners appointed by it, twelve being bishops, and three a quorum, were authorized "to inquire from time to time during our pleasure, as well by the oaths of twelve good and lawful men, as also by witnesses and all other ways and means you can devise, of all offences" against the acts of Supremacy and Uniformity, and specially as to "all heretical opinions, seditious books, contempts, conspiracies, false rumors a statutory or talks, slanderous words and sayings," and the like. The in cases of power to try cases of heresy was limited, however, by a negative provision or definition, which provided that the commis its jurisdic tion as defined mission; limitation heresy ; ex officio oath; sioners "shall not in any wise have authority or power to order, determine, or adjudge any matter or cause to be heresy, but only such as heretofore have been determined, ordered, or adjudged to be heresy by the authority of the canonical scriptures, or by the first four general councils, or any of them, or by any other general council wherein the same was declared heresy by the express and plain words of the said canonical scriptures, or such as hereafter shall be ordered, judged, or determined to be heresy by parliament, with the assent of the clergy in their convocations." By the terms of the commission the commissioners were authorized to administer the authorized to adminhated ex officio oath, the special weapon of the older eccle- ister the siastical courts, whose jurisdiction remained nominally concurrent,1- and to punish offenders "by fine, imprisonment, censures of the church, or by all or any of said ways." The commissioners could not, however, inflict the penalty of death, but could not impose and for that reason Archbishop Whitgift contended that "they the death ought not to be compared to the inquisition," when Lord Bur- penalty; leigh expressed his disapproval of their procedure as "too much savoring of the popish inquisition." The court thus organized extended its jurisdiction not only to the enforcement punished of conformity upon all persons, clerical and lay, and to the not only punishment of clerical improprieties, but also to the punish- formity ment of lay immorality. The enforcement of such vast pow- improprieers through inquisitorial means naturally excited resistance, immorality; and an appeal to the courts of common law to restrain the commissioners within bounds. In the course of the legal contest recorded in Coke's Reports, the general nature of the the conflict ecclesiastical law, the right of the commissioners to administer courts of the ex officio oath,5 and the right of the law courts to restrain common by prohibition and to deliver by habeas corpus persons illegally imprisoned by the high commission, were learnedly expounded. And yet, in spite of such opposition, the powers found in Gardiner, Hist of Eng., vol. i. pp. 34, 35. 1 "The two jurisdictions were concurrent, but the Court of High Commission had, or at all events used, powers which the inferior courts had never claimed."- Stephen, Hist. of the Crim. Law, vol. ii. p. 414. 2 See Burleigh's letter, Neal, Hist. of the Puritans, vol. i. p. 339. A good general statement may be 2 6 4 See the great case of Cawdrey, with the heading De jure regis ecclesiastico, 5 Rep. 1, vol. iii. p. xv, ed. of 1826. 5 12 Rep. 19, vol. iii. p. 217; 12 Rep. 26, vol. vi. p. 227. Roper's Case, 12 Rep. 47, vol. vi. p. 258; Charnley's Case, 12 Rep. 82, vol. vi. p. 309; Fullers' Case, 12 Rep. p. 750. non-con and clerical ties, but lay with the law; abolished by an act of the Long Parliament. Constitu council in Elizabeth: system of drew its strength from the moral force of the royal authority; of the court continued practically unimpaired during the reigns of Elizabeth and James, and down to the 16th of Charles I., when it was abolished by the Long Parliament in an act 1 which declared that it had exercised throughout a jurisdiction never conferred by the statute creating it. 6. However distinct and potent an entity the high commistion of the sion may have been during the eighty years of its existence, the days of it must not be forgotten that it was simply an agency of the conciliar system, to whose supervision it was subject. The fact has already been emphasized that, despotic and powerful Tudor as was the Tudor system of government, the source of its government strength was not in a standing army, but in the moral force of the royal authority, which exercised a supervising and directing power over every branch of the administration through the council, whose functions were to a limited extent legislative as well as judicial and political.2 In order to render its influence the council all-pervading, the powers of the council were applied to particular subjects through such agencies as the star chamber, the high commission, the court of requests, a minor court of equity supposed to have had its origin in an order made in the 13th of Richard II.,3- the court of the president and council of the north, erected by Henry VIII. after the suppression of the great insurrection of 1536, and which-together with the courts of the president of the council of Wales and the Welsh marches, of the duchy of Lancaster, and of the counties palatine of Chester and Durham - is said to have Guernsey finally deprived one third of England of the privileges of the controlled common law.5 By Poyning's Act of 1494 the Irish parliament council; was brought under the control of the council, and in the same the great organ of administration; its agen cies; Ireland, Jersey, and by the 1 16 Chas. I. c. II, A. D. 1640. The nature of the proceedings of the high commission during the last seven years of its existence can best be understood from its act, Books lately printed under the authority of the Master of the Rolls, in the Calendar of State Papers, Domestic series, 1633-1640. 2 See above, pp. 35-37. 8 Requiring certain members of the council to hear " particular petitions offered by poor persons and those of the king's household."- -Reeves' Hist. of the Eng. Law, vol. iii. p. 401, Finlason ed. This court, virtually abolished by a decision of the court of queen's bench in the reign of Elizabeth, was finally dissolved with others of its class by 16 Car. I. c. 10. See Spence, Eq. Juris., vol. i. p. 351; Palgrave, Original Authority of the King's Council, pp. 79, 99. The best and most recent history of these courts may be found in Sir J. F. Stephen's Hist. of the Crim. Law, vol. i. pp. 126-135, 138-144, 166, 167, where the fate of each one is fully detailed. 5 Hallam, Const. Hist., vol. ii. p. 99. martial as agents of reign Jersey and Guernsey were made subject to its rule.1 On grave occasions the crown, through the council, also appointed temporary courts or commissions for the trial of particular offenders, and among them should be noted the courtsmartial, by whose creation the common law could be suspended courtsby the law martial, an authority originally exercised by the constable and marshal over troops in actual service, and specially the council; in foreign service. This system, which could be legitimately used only in actual war, or in cases of foreign service, was improperly gradually employed by the crown, and specially by Elizabeth, in times of employed in sudden emergencies in times of peace, and often for the peace; suppression of mere breaches of the peace. The execution of the vast and far-reaching powers thus cast upon the council as the Tudor period advanced necessarily involved changes in its internal constitution which should be noted here. With the the council decline of the influence of the nobles as leaders of the nation, gradually the council, without any change in its outward form, was gradu- formed ally transformed from an independent body, which stood as a independ bridle upon the royal authority, into a mere corps of officials into a corps subject to the king's will and direction. While the nobles still of royal retained their hereditary offices, whose diminishing duties were, as a rule, performed by deputies, the council was continually reinforced by commoners, who assumed the more active reinforced duties; and thus it was that, during the reigns of Henry VIII. ers, who and Elizabeth, "England was governed, not through peers of assumed ancient lineage, but through the Cromwells, the Sadlers, the active Petres, and the Cecils, who constituted the glory of the Tudors' rule." From the picture of the council contained in the regulations drawn up by Edward VI. ino 1553, it appears 5 1 Dicey, The Privy Council, p. 90. 2 See Black Book of Admiralty, vol. i. p. 282 et seq., as to "Statutes and Ordinances to be kept in time of Warre;" and essay as to the "Laws of War," by Professor M. Bernard, Oxford Essays for 1856. For modern expositions of the law as it now exists, see Wright v. Fitzgerald, 27 St. Tr. 765; R. v. Eyre, case and opinion, in Forsyth's Const. Law, p. 551; Stephen, Hist. of the Crim. Law, vol. i. pp. 207-216. 3 For such a commission issued in July, 1595, to Wyllford, authorizing him as provost-marshal to proceed by martial law, see Fadera, vol. xvi. p. 279. As to the case of Burchell, which 4 Vol. i. pp. 542-546. 5 Dicey, The Privy Council, p. 86. trans from an ent body officials; ers, the more duties; |