The Altar of Damascus, Chapter 2
CHAP. 2. Of the High Commission.
THE High Commission is called commission of jurisdiction in causes Ecclesiastical, it is called the high commission by the favourers of it, to strike a greater terrour in the hearts of subjects.
The commissioners are partly civil, partly Ecclesiasticall persons, as the Archbishops, certaine other Bishops, Deanes, Archdeacons, Chancellours, some of the secret counsell, and of the chief Iudges, Courtiers, Aldermen, sometime the Lieutenant of the Tower, the Postmaster, and others making up a great number. But it is not requisite that all these, whose names are set down in the kings letters patents, should be present at every Session, to make up a full judicature, but power is given to any three of the number, the Archbishop being alwayes one. As with us are nominated and appoynted by the Kings letters patents to the number of fortie or fiftie persons, Bishops, Counsellors, Noble men, Barons, Commissaries, Ministers, yet power is given to any five of them to make up the full judicature, the Archbishops of Saintandros, and Glasgow, or any one of them being of the number of the five alwayes. And as with us, so there also, graue Counsellours, and Iudges, and other of honorable respect, may well be desired to be present when an incestuous person, or some other ma…efactor is brought before them, that their countenance at one time or other may bring credit to their great authority. But when a minister, or any other godly professour is to bee troubled for nonconformity, or writing against crossing and kneeling, or having, or spreading of bookes touching reformation of abuses, and corruptions in the Church; then are they not desired, lest being present, they should perceive the mysteries of their iniquitie, by which they uphold their pompe, and Lordly Domination. If there be a courtier, or new upstart that favoureth them, or dare not controll them, hee may well be advertised to be present.
The Archbishop hath power to associate unto himselfe any two nominated in the Kings letters parents, whether they bee Ecclesiasticall or civill persons, as for example, the Lieutenant of the Tower, and the Postmaster: as with us the Archbishop may assume any foure of the number to be his assessours; as for example, Mr. Thomas Henderson comissarie of Edinburgh, M. Iohn Weemes commissarie of Saintandros, M. Iames Hammilton commissarie of Glasgow, and the Chauntour of Glasgow Mr. David Sharpe, or any other foure Ecclesiasticall persons, or civill enrolled in the letters patents.
These three, as for example, the Archbishop, Postmaster, and Lieutenant of the Tower, have power to inquire in all heresies, errours, schismes, contempts and enormities whatsoever, which were wont to be reformed by Ecclesiasticall lawes, and jurisdiction, in all offences and contempts committed against the forme of their service, and common prayers, and other late statutes made anent Ecclesiasticall matters, as also seditious bookes, private conventicles, adulteries, fornications, outragious misbehaviours, disorders in marriages, and other offences particularly expressed in the letters patents, and all other grievous offences punishable by the Ecclesiasticall lawes of the Realme. So with us the five, as for example, the five abovenamed, have power to take triall of all offenders in life, and doctrine, or religion, or scandalous in any of these, intercommoners and recepters of Iesuites, Seminarie and Masse Priests, hearers of Masse, and excommunicate Papists, (so like) recusants, or not communicants, (so like) incestuous or adulterous persous, obstinate contemners of the discipline of of the Kirke, and excommunicate for the same: all ministers, preachers, Doctors, or masters of Schooles, Colledges and universities, all exhorting and lecturing Readers, for preaching, or speaking in publicke, against the present established order of the kirk, (truth) or estate, against any of the conclusions of the bypast generall assemblies of the Kirk (truth) specially of the acts of generall Assembly holden at Perth in the monethmonth of August 1618, (truth) and all disobeyers of the sayd acts (truth) likewise writers of Pamphlets contrary to any of the constitutions of the Kirke, or Printers of the sayd bookes and pamphlets (truth) or of any other bookes without licence.
These three commissioners may authorize their drunken pursevant to breake open mens studies, chambers, coffers, letternes, and search if there be any bookes, or writs against their Hierarchie, and the orders of their Kirke, and to spoile at their pleasure.
These three commissioners may convent before them, any subject of whatsoever degree, or calling, civill or Ecclesiasticall, in whatsoever season of the yeare, earing time or harvest, from whatsoever part of the kingdome, even the remotest, for whatsoever offence reputed Ecclesiasticall, even the lightest, to the great detriment and domage of the subjects. So with us, may these or any other five in the number, the Archbishop, or any one of them being alwayes present, summon and call before them, at the times and places they shall thinke most convenient, any person dwelling within the kingdom of Scotland, and provinces of Saintandros, and Glasgow.
These three commissioners have power to command the Shireffes, Iustices, and other officers, and subjects to apprehend, or cause to be apprehended, such persons as they shal think good, and take such bonds for their appearance, as they shall prescrive, or to commit them to prison. So may the five with us direct their warrant to the Captaine and Lieutenant of the Kings guard, the Provost and Bailies of the Burgh, where they shall happen to sit, Shiriffes and Bailies of Regalities, to search, take, and apprehend, whom they please, and to present them before them.
The three commissioners have power to force any person convented before them, whom they suspect, to accuse himselfe upon his own oath, to answer to their interrogatories, when there is no accuser, nor article of accusation libelled against him. He must sweare to answer to that, which he doth not as yet understand, not so much as in generall. And to grace this oath, they call it the oath ex officio. If any person refuse to take this oath, hee is forthwith committed to prison. The manner of taking the oath, is by laying their hand, or three fingers on the book, to sweare by God, and the contents of the booke, that they shall answer truely to such things as shall bee demanded of them; and when the book is kissed, the oath is accepted,Pag. 249. as Barow reporteth in his Discovery. And although the penalties of the statutes bee never so great, as Premunire, abjuration, forfeiture of lands and goods, and some of the offences are limited to bee tried onelyonly in the Kings Bench, yet the partie suspected shall be forced by this commission, to accuse himselfe, upon his owne oath, upon such captious interrogatories, as the wit of man can devise, when there is neither accuser, nor libell of accusation, sayth Nicholas Fuller in his arguments and defence of his Clients. This oath was set on foot under King Henry the 4. at the instant sute of the Prelates, for detecting and suppressing of those, whom that blind age called Lollards, that is, for suppressing of the Gospell, which was peeping out of corners. The Commons repined against that Statute ex officio, and the godly wrote against it, as a bloodie Maximinian law: They were first ordeined to accuse themselves, and then to be burnt. See Fox in Henry 4. The same oath doe the Prelates, now make a meanes to suppresse a due reformation of their Church, Worthy Vdal, and many more have ended their daies in the prison, for refusall of this unjust, and superstitious oath.
The three Commissioners have power to fine at their discretions, to commit to prison for non compearance, or for contumacie in refusing to obey their decrees, or reputed desert of their offence, and all the Iayles, Wards, and Prisons in the land, are at their command to receive the person committed, and sent by them to prison. So with us the Captaines and Constables of the Kings Wardes, and Castles, jaylors & keepers of prisons, in burgh, or land, are charged to receive, and deteyne all persons directed to them, in such forme, as shall be prescribed in the warrant subscribed by any five of them, one of the Archbishops being alwayes of the number. Neither may the imprisoned be set at libertie, but at their pleasures. And with us also the Lords of his Ma: privie Councell, are required upon the sight of any certificate subscribed by any 5. of the sayd Cōmissioners, one of the sayd Archbishops being alwayes one, either of fine, imposed upō any party, or upon the refusing to compeir before the sayd Cōmissioners, to direct a summar charge of horning upō ten dayes for payment of the fine that shall be imposed upon them, and to direct others letters for denouncing persons that shall refuse to compeir before the sayd Commissioners, of the which letters no suspension or relaxation shall be granted, without a testimony under one of the Archbishops hands, of the parties obedience and satisfaction. Howbeit with them they bee thus authorized by the Kings letters patents, to fine, ward, and imprison; yet are they not so authorised by the statute, whereupon the Commission is founded, which I have set down in the beginning of the first chapter. For it was ancient jurisdiction Ecclesiasticall, which was restored to the Crown in that act, and meant to be executed by the Commissioners, as Nicholas Fuller avowed in the defence of his Clients. But to fine, imprison, and force any person to accuse themselves upon their own enforced othes, their being no accuser known, nor accusation libelled, he proved, was not ancient jurisdiction Ecclesiasticall, but brought in, in the second yeere of …. Hen. the 4. In the record of the worthy proceedings of the House of the Commons, at the Parliam. holden 1610, we have this greivance. Secondly, for that whereas by the intention and words of the sayd statute, Ecclesiasticall jurisdiction is restored to the Crowne, and your highnessly that statute inabled to give onelyonly such power Ecclesiasticall to the sayd Commissioners, yet under colour of some words in that statute, whereby the Commissioners are authorized to execute their commission, according to the tenour and effect of your …ighnesse letters patents, and by letters patents grounded therupon, the sayd Commissioners do fine and imprison, and exercise other authority, not belonging to the Ecclesiasticall jurisdiction restored by that statute, which wee conceive to bee a great …rong to the subjects. Aud that these Commissioners might as well by colour of these words, if they were so authorized by your Highnesse letters patents, fine without stint, and imprison without limitation of time, as also according to will and discretion, without any rules of law, spirituall or temporall, adiudge and impose utter confiscation of goods, forfeiture of lands, yea & the taking away of limme and of life it selfe, and this for any matter whatsoever pertaining to spirituall jurisdiction. Which never was, nor could bee meant by the makers of that law. To fine and imprison at pleasure, are punishments belonging to the temporall sword, which Christ hath forbidden his Apostles, and all Pastors their successors to use. The weapons of their warfare are not carnall, but spirituall. Christ committed unto them keyes, not swords. In very deed, there is no crueller beast, nor more tyrannous, then a degenerate Churchman. Hee is more insolent and outragious with the Dative sword, then Princes are with the Native. Why should they not be like their eldest brother, that bloody beast of Rome. Degenerate Clergimen will either usurpe the power of the temporall sword, or take it when it is offered, but …ver abuse it.
The three commissioners may inflict spirituall censures and punishments, as suspension, deprivation, deposition, excommunication. They may call for a Priest, comand him to denounce and declare in some Cathedrall Church, or other publick place, the offender to bee excommunicated, but they enquire, cognosce, decerne, and pronouuce the sentence of excommunication in their Court; and the excommunicate may be denounced long after: and howbeit the Priest should pronounce the sentence in judgement, yet he should bee onelyonly like the dempster, that pronounceth the doome, or like the hangman, or poore slave directed by the judge: hee neither inquireth, cognosceth, nor decerneth. Yet, if ye think the cōmissioners may excommunicate, because the Archbishop is present, ye are deceived: for his power in the high commission is not Episcopall, nor Archiepiscopall, but delegate onelyonly from the Prince, which other assessours not Bishops, have as well as he; and by this delegate power he with his two associates, as I have sayd, may inflict this censure upon any subject within England or Ireland, which hee cannot doe as Bishop or Archbishop, for their jurisdiction ordinary is limited within the bounds of their Diocie, or Province. When Spottiswood, pretended Archbishop of Saintandros, was but a rurall minister in Calder; and Law of Glasgow, a rural minister at Kirkliston, possessing onelyonly the rents of Bishoprickes, not authorized as yet with the office of Bishops (for that pretended Assembly of Glasgow was not yet convocated) yet were they armed with power to decern excommunication against any subject within our Realm, & to command the minister of the offender to proceed against him: and if he refused, to suspend, deprive, or ward him. They were thus armed immediatly before that pretended assembly, with power of warding, …ining, imprisoning, suspending, degrading, and decerning excommunication, without the consent of the Church, or approbation of the Estates, that they might wring out of the hands of the Kirke at that corrupt, and pretended Assembly, EpisEpiscopall jurisdiction, which many times they protested never to usurp, before and without the free consent of the Church obtained thereunto. O perfidious violence! What we have said of excommunication, may be likewise said of suspension, deprivation, and deposition: The Archbishop doth not suspend or deprive, as Archbishop, but as the Kings Delegate, Iudge, and Commissioner, by which power he may suspend or deprive Ministers out of the bounds of his ordinarie jurisdiction, which no Bishops or Archbishops may doe by their ordinarie power. We had a late example in our own Archbishops about two yeares since: for when Mr. Spotiswood was at Court, Mr. Law pretended Archbishop of Glasgow, suspended Mr. Blyth, and Mr. Forrester from their ministerie, which he could not doe as Archbishop, for they were neither within his Diocie, nor his province. He did it then as head of the Commission sitting for the time, that is, by a delegate power from the King. To let passe, that at that same vile Assembly, no mention was made of Archbishops: and paction was onelyonly made with these men who had the benefices, for which vulgarly they were called Bishops, that excommunication, suspension, deprivation, and deposition, should not be cōcluded without thē, not that they might suspend, deprive, excommunicate by themselves, and at their pleasures in the high Commission, or any where else, but according to the damnable Canons made by that wofull, but pretended and null Assembly. Farther, the Prince may inable one or mo… lay men with this same commission, wihout mixture of Ecclesiasticall persons. It is then an extraordinary power, wherewith they are inabled by the Prince to suspend, depose, and excommunicate. But the Prince hath not this power himselfe, and therfore by no right of Gods law may he communicate this power unto them, and it is a proud usurpation over the Church to them to receive it, or exercise it. In the Parliament holden 1592. some acts, which were made in that turbulent time of the 1584 yeare, were repealed as followeth. Item, our Soveraigne Lord, and Estates of Parliament foresayd, abrogates, cassis, and annulls the act of the same Parliament holden at Edinburgh the sayd yeare 1584. granting commission to Bishops, and other iudges constitute in Ecclesiasticall causes, to receive his highnesse presentations to benefices, to give collation thereupon: and to put order in all causes Ecclesiasticall, which his Maiesty and estates foresayd, declares to be expired in the selfe, and to be null in time comming, and of none availe, force, nor effect. Not withstanding of this repealed commission, our perfidious Prelats hauehave resumed the same again without any law reviving it. But let us proceed, and heare what is recorded in the worthy proceedings of the Parliament above mentioned. The Act is found to be inconvenient, P. 27, 28.and of dangerous extent in divers respects: 4. for that every pettie offence, pertaining to spirituall jurisdiction, is by the colour of the said words, and letters patents grounded therupon, made snbject to excommunications, and punishment, by that strange and exorhitant power, and commission, whereby the least offenders, not committing any thing of any enormous or high nature, may be drawn from the most remote places of the kingdome, to London, or yorke; which is very grievous, and inconvenient,
These three Commissioners being armed with double vengeance, and power of both swords, temporall and spirituall, may strike a man at one strike, in one sentence, for one and the selfe same fault, both with temporall and Ecclesiasticall censures, and punishments. They may depose and imprison a minister at one time for one offence: they may fine and excommunicate at one time, &c. Againe, they may punish the same offence in one person with a fine, in another with imprisonment, in the third with excommunication, in the fourth with deprivation. For their owne pleasures and discretions, and not the lawes, ar the rules of their censures and punishments. Let us see what is recorded in the grievances. Therein (to wit in the Commission grounded upon the statute) is grievance apprehended thus. …. 28.First, for that therby the same men have both spirituall and temporall i…risdiction, and may both force the partie by oath to accuse himselfe of an offence, and also inquire thereof by a jurie: and l…stly may inflict for the same offence, at the same time, and by one and the same sentence, both spirituall and temporall punishments. 2. wheras upon sentences of deprivation, or other spirituall censures given by force of ordinarie jurisdiction, any appeale lyeth for the party grieved, that is heere excluded by expresse words of the commission. Also heere is to be a tryall by Iurie, yet no remedie by traverse not attaint. Neither can a man have any writ of errour, though a judgement or sentence, be given against him, …unting to the taking away of all his goods, and imprisoning him during life; yea, to the adjudging him in the case of premumire, whereby his lan…s are forfeited, and he out of the protection of the Law.
3. That wheras penall lawes and offences against the same, cannot be determined in other Courts, or by other persons, then by those trusted by Parliament with the execution therof, yet the execution of many such Statutes (divers whereof were made since 1. Eliz.) are commended and committed to these Commissioners Ecclesiasticall, who are either to inflict the punishments contained in the Statutes, being Premunire, and other high nature; and so to inforce a man upon his owne oath, to accuse and expose himselfe to these punishments, or else to inflict other temporall punishment at their pleasure. And yet besides, and after that done, the parties shall bee subiect in Courts mentioned in the acts, to punishment by the same acts appointed, and inflicted: which we thinke were unreasonable.
The three Commissioners may not onelyonly enquire, and try, but also judge in all causes Ecclesiasticall, in causes of heresie, simonie, idolatry, &c. It is, I grant, provided in the statute 1. Elizabeth, that they shall not in any wise have authoritie, or power, to order, determine, or adiudge, any matter or cause to he heresie, but onelyonly such, as heretofore have been determined, ordered, or adiuged to be heresie, by the authoritie of the Canonicall Scripture; or by the first 4. generall Councels, or any of them; or by any other generall Councell, wherein the same was declared heresie, by the expresse and plaine words of the said Canonicall Scriptures, or such as heereafter shall be ordered, iudged, or determined to be heresie by the high Court of Parliament of this Realme, with the assent of the Clergie in their Convocation. This provision is no limitation, unlesse wee will say, that without the limits of the Canonicall Scripture there are some heresies determined, which are not determined within the bounds of the Canonicall Scripture. Seeing then they may determine in all he resies determined in the Scripture, they may determine in all herefies whatsoever, and may affirme that to bee determined for heresie in the Scripture which is orthodoxall. If the commissioners, the Princes delegates, may be judges in all causes of herefie, farre more is the Prince himselfe by their lawes, and that without the provision foresayd, wherwith the delegate commissioners are circumscribed.
These three Commissioners have power to receive appellations from other inferiour courts Ecclesiasticall, like as the five with us have power by the Kings letters patents, to receive, and disusse, all appellations made to them from any inferiour Ecclesiasticall Judges, and to inhibite the said Ecclesiasticall judges to proceed iu any matter, which they shall hold to be improper for them, wherin they shall perceiue the said Iudges to have behaved themselves partially, advocating the said matters is their own judgment. See the commission renewed Anno 1618. So they may draw to themselves any cause whatsoever, agitated in inferiour courts, not onelyonly at the appellation of any notorious villaine pretending grievance, but also by advocation, when they shall construe the cause to be unproper, or the proceedings of the infe…iour Court to be partiall. In the narrative of the proclamation it was pretended, that this high commission is erected to stay advocation of causes granted by the Lords of Councell and Session. That forasmuch, as it hath bene compleaened by the Archbishops, Bishops, and other Ministers of that his Maiesties Kingdome, that advocations and suspensions, are frequently granted by the Lords of Councell and Session unto such, as bee in processe before them, and their Ecclesiasticall Courts, for offences committed, whereby offenders are imboldned continuing in their wickednesse, and …ing the said, advocations and suspensions, or meanes to delay their tryall and punishment, Therfore &c. Complaint hath been made sometime by ministers, and suit to stay advocations, that the ordinarie indicatures Ecclesiasticall might proceed to their censures without stop, but not to change advocations. Are the Archbishops and Bishops with their associates, honester and more conscientions men, then the Lord of Councel and Session? An ambitious and covetous Clergieman, is of all men the most vile and prophane. Did the Bishops complaine? why do they then advocate causes from inferiour Courts Ecclesiasticall, seeing they have usurped the sway of proceedings in Courts Ecclesiasticall to themselves. Doe they accuse themselves of partialitiall proceeding in inferiour courts, or handling improper causes, and will these same men bee lesse partiall, and more conscientious in the high Commission? If no censure can take effect without their approbation, and appellations should ascend from inferiour courts to superiour courts and Synods, wherefore will they rather advocate causes to this extraordinary court of high commission? In England if a man stand wilfully fourty daies together excommunicate, P. ….and be accordingly certified by the Bishop into the Chancerie, that then▪ he is to be committed to prison, by vertue of a Writ directed to the Shriefe: as it is sayd in the Apologie of certaine proceedings in courts Ecclesiasticall. And in a wr… de excommunicato capiendo, it is sayd: quod potestas regia sacrosanctae Ecclesiae in querelis suis deess… non debet. The ordinarie lawfull courts Ecclesiasticall farre more then should be aided, and assisted by the secular power, and not molested or stopped. The truth is, that this high commission is erected to suppresse the libertie of the Kirk, to maintain the usurped power, and tyrannous domination of our perfidious Prelates over Synods generall & Provinciall, Presbyteries & sessions, & to effectuate the intended conformity, which they know they will never get done in Synods and Presbyteries, unlesse the terrour of this high commission were standing above their heads. And therfore when they urge conformity, they hauehave their recourse to this weapon, or in Synods and Presbyteries men are terrified with the feare of it. This is their strong castell, out of which they command, and hold in slavery & bondage the whole citie. Here the Bonifacian Prelats stoutly draw the two swords, fine, consine, suspend, deprive, imprison, &c. But the couragious souldier fighting the Lords battell, will not bee borne downe with any such outrages, and terrours. Now as they receive appellations from inferiour courts, no appellation can bee made from these three, or our five, suppose their injustice and tyranny cry never so loud. I wonder if the heart of any faithfull Patriot, let be conscientious professour, can digest this.
These three Commissioners may appoynt inferiour Commissioners, from whom also as subdelegates, they may receive appellation.
I will add out of the record of the grievances of the house of Commons these considerations. First, out of the statute, that the said act is found to be inconvenient, and of dangerous extent in divers respects: for that it inableth the making of such a commission, as well to any one subiect borne, as to more. Item, for that by the sayd Statute, the King and his successors may (howsoever your Maiestie hath beene pleased, out of your gracious disposition otherwise to order) make and direct such commission, into all the Countries and Diocesses, yea, into every parish of England, and therby all causes may be taken from ordinary jurisdiction of Bishops, Chancellers, and Arch-deacons, and Lay-men solely be inabled to excommunicate, and exercise all other spirituall censures: For that limit touching causes subiect to this commission being onelyonly with these words, viz. (such as perteine to spirituall, or ecclesiasticall jurisdiction) it is very hard to know, what matters or offences are included in that number. And the rather because it is unknown what ancient Canons, or lawes spirituall are in force, and what not: from whence ariseth great uncertainty, and occasion of contention. Out of the commission grounded upon the statute. That the commisson giveth authoritie to inforce men called into question, to enter into recognisance, not onelyonly for appearance from time to time, but also for performance of whatsoever shall be, by the Commissioners ordered. And also that it giveth power to enjoyn parties defendant, or accused to pay such fees to ministers of the Court, as by the Commissioners shall be thought fit. As for the execution of the commission, it is found grievous these wayes among other. 1. For that lay men are by the commissioners punished for speaking (otherwise then in iudiciall places and courtes) of the simonie, and other misdemeanours of spirituall men, though the thing spoken be true, and the speech tending to the inducing of some condigne punishment. 2. In that these commissioners usually appoynt and allot to women discontented at, and unwilling to live with their husbands, such portions & allowances for present maintenance, as to them shall seem fit: to the great encouragement of wives to be disobedient, and contemptuous against their husbands. 3: In that their pursevants, or other ministers imployed in the apprehension of suspected offenders in any things spirituall, and in the searching for any supposed scandalous bookes, use to breake open mens houses, closets and deskes, rifling all corners, and secret… custodies, as in cases of high treason, or suspition therof.
Their commission is grounded upon a statute and act of Parliament, howbeit it agreeth not with the statute. Wee have not so much as a shew of a statute for commission of jurisdiction in causes Ecclesiasticall, and yet our usurping Prelates tyrannize over loyall subjects, faithfull Patriots, conscientious professours, deserted by these, who will be counted fathers of the Common wealth, left open and naked to their violent rage, without any protection of the law, as if they were but the vile off scourings of the land. Will not the estate in Parliament redresse this proud usurpation? Shall the house of Commons in their Parliament bee grieved not onelyonly at the exorbitant power of this high commission, but also at the statute it selfe, and shall our nobles, and inferiour estates not be grieved at our usurped commission? Or will they suffer the like statute, and make the countrey mourn and groane for it the next day, as our neighbours have done? Can Princes or estates give power of spirituall censures either to lay or spiritual men? Or may they lawfully put the temporall sword in the hand of Pastors? Or may spirituall men as they call them, accept it: If neither can be done, how can the estates erect, ratifie, or suffer such a commission? What is this but the Spanish inquisition? Set me up this throne, Satan shall set up Papistry, or any other religion whatsoever in short processe of time. For they sit at the rudder, and may turn religion as it pleaseth them, and when they see fit occasions, and themselves to have able power.