Court of High Commission

HIGH COMMISSION, COURT OF. The Act of Suprem acy (1534) recognized Henry VIII. as "Supreme Head in earth of the Church of England" and assigned to the Crown the power of ecclesiastical visitation. The Act of Supremacy (1559) recog nized Elizabeth as "Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal" and empowered the Crown to nominate persons by letters patent to exercise "all manner of jurisdictions . . . touching . . . any spiritual or ecclesiastical jurisdiction . . . and to . . . amend all such errors, heresies, schisms, abuses, offences, contempts and enormities whatsoever," which by any manner of spiritual authority ought to be reformed. But the act of 1559 purported explicitly (as did the act of 1534 implicitly) merely to "restore" to the Crown "the ancient jurisdictions" "usurped" by the bishop of Rome. It was, theref ore, "not a statute introductory of a new law, but declaratory of the old." The Crown, then, could with out statutory authority delegate to commissioners the fullest ecclesiastical jurisdiction; and thus, in Caudrey's Case (1591), "it was resolved by all the judges that the king or queen of England for the time being may make such an ecclesiastical corn mission as is before mentioned by the ancient prerogative and law of England." Heresy and Visitation.—The Reformation settlement called for a greater measure of supervision and discipline than the rather meagre authority of the bishops was able to provide; more over, the consequent deprivations and the like led to a mass of litigation with which the ordinary ecclesiastical courts were too ineffectual to cope adequately. What was the use of such penal ties as excommunication when "laymen cheerfully remained ex communicated for years" ? Hence, the origin of the later court of high commission is to be found "in the systematic attempt to suppress a peculiar type of heresy by the machinery of a com mission in which ecclesiastics, ministers of state and lawyers sat side by side, and whose procedure was a compound of the old heresy trial, the ordinary ecclesiastical procedure, and the judicial traditions of the privy council." This device of an ecclesiastical privy council "dealing with heresy and the visitation of the church" was first employed about 1535, when Thomas Cromwell was appointed vicegerent, invested with the plenitude of royal authority in ecclesiastical affairs, and directed to delegate part of it from time to time to such persons as he thought fit.

But "the first general commission of this nature directed to a number of men" was issued by Edward VI. in 1549, and the substance and form of the letters patent assumed final shape in the general commission issued by Mary in 1557, and were not essentially altered until Stuart times. Then, to meet the criti cism of opponents, considerable modifications took place. But, though framed more explicitly and at greater length, the later letters patent may be said to have confined the powers of the commissioners within narrower limits than the more vaguely drawn commissions of earlier days.

Evolution of the Court.

Until 1565 the work performed by these commissioners was mainly visitatorial. Granted for a specific purpose, their authority was regarded as temporary and was supposed to lapse as soon as the work was done ; and their activities were strictly controlled by the council. But the permanence of the Elizabethan settlement; the development of additional administrative functions by the commission itself, the gradual delegation to it by the overworked privy council of the routine ecclesiastical business hitherto transacted by the council itself, and finally the growing habit of referring petitions of an ecclesiastical nature to the commissioners, gave the latter "a sufficiently permanent tenure to enable them to establish those traditions and judicial forms which, in time, caused contempo raries to call the sessions of her majesty's commissioners in causes ecclesiastical `The court of high commission'." The term "high commission" begins to appear by 157o, the title "court" about ten years later. By then the organization, procedure and juris diction had been defined and delimited. This involved a relaxa tion of the privy council's control and "a lighter emphasis on the visitatorial functions which had been the original business of the commission." The total membership varied between 24 in 1549 and io8 in 1633, but of these any three were usually empowered to act, provided one of them was "of the quorum" (the quorum num bered i i in 1549, 68 in 1633). The lord chief justice, a colleague and the attorney general sat on the earlier commissions, but, as the latter developed into an ecclesiastical court, the common law judges, though more of them were appointed, ceased to attend. The commission originally sat anywhere in the province of Canterbury, but came later to sit only in London on certain fixed days and to keep the law terms. Its jurisdiction, best sum marized in connection with the other ecclesiastical courts as con current, appellate afid equitable, though vague, was by no means unlimited. The court could assume jurisdiction only in personam, in criminal matters (though here the interpretation was rather free and loose), and could not initiate cases of party and party. The chief point about its procedure, which statute and letters patent had left to its discretion, was the use of the oath ex officio, i.e., imposed by the judge himself by virtue of his office, and the penalties it inflicted were almost exclusively fine and imprison ment. There appears to be no authority whatsoever for the allega tions that the court resorted to torture, mutilation or the penalty of death.

Opposition.—Its functioning was sometimes beneficent, some times tyrannical, but always efficient. That it was widely popular is proved by the enormous number of suitors who flocked to it voluntarily even to the last. But with two sections of the com munity it could not fail to be unpopular. The Puritans resented its enforcement of vestments, ritual and ceremonies, and when in 1584 Whitgift's Twenty-four Articles, upon which the com missioners proposed to examine them after they had taken the oath ex officio, turned a visitatorial investigation into a judicial hearing they not unnaturally complained that a man was thereby compelled to convict himself. And they were encouraged in their opposition by the common lawyers and, more especially, by the common law judges. No doubt the latter were actuated to some extent by jealousy and self-interest, by the desire to extend their own jurisdiction in order to increase their fees, but they had nobler motives as well. The duality of judicial authority in Eng land, of a law temporal and of a law ecclesiastical, was in itself offensive to men who dreamt of a time when the common law should embrace all jurisdiction whatsoever.

Moreover, the two jurisdictions overlapped; the boundaries between them were vague; each was inclined to trespass on the other. And, lastly, but not least to a judicial mind, "the com mission was a hybrid, half ecclesiastical, half temporal in mem bership ; using ecclesiastical procedure, but inflicting temporal penalties ; a law court and a visitatorial commission at the same time." Led by the disgruntled Coke, who had himself in earlier days played a large part in building up the authority of the court, the common law judges by prohibitions and pronouncements first of all attempted to confine the commission within what they con sidered to be its proper limits, and then, encouraged by the popularity of their proceedings and the example of recalcitrant Puritans, embarked on a vigorous attack on its jurisdiction and procedure. They wrongly and contradictorily (since in 1591 in Caudrey's case the judges themselves had unanimously adopted another view) dated the "origin" of the commission from the act of 1559, allowed it no other authority for its existence, and inter preted the words of that statute in a ludicrously and indefensibly narrow fashion. They took exception to the penalties of fine and imprisonment, because these were not, strictly speaking, ecclesi astical penalties, and they challenged the legality of the ex officio oath, mainly because that procedure was so different from that of the common law as to appear necessarily illegal to common lawyers.

on legal and judicial grounds, h

ow ever, collapsed after 1611. The letter of the law was against the Puritans, the judges could not hope to enforce their views so long as the State supported the commission, and in 1616 Coke was dismissed from the bench. The struggle was henceforth not legal, but political. It was fought, not in the law courts, but in parliament. Already in 1607 and in 1609-10 bills on the sub ject had been brought in, read twice and dropped; and on July 7, 161o, a petition of grievances had declared the act of "inconvenient and of dangerous extent." In 1641, when the parliamentary cause at last triumphed, "the clause of the Act of Supremacy which gave the Crown power to exercise its supremacy through commissioners was repealed ; the court was abolished, and it was provided that no similar court should be again set up. . . . At the Restoration the criminal and corrective jurisdiction of the other ecclesiastical courts was re vived ; but the court of high commission was explicitly exempted from the act." Nevertheless, it was re-established by James II. in 1686 by virtue of the powers belonging to the king as supreme governor of the Church, to be finally condemned after the revolu tion in the Bill of Rights (1689) as "illegal and pernicious." BIBLIOGRAPHY.—G. W. Prothero, Statutes and Constitutional DocuBibliography.—G. W. Prothero, Statutes and Constitutional Docu- ments; R. G. Usher, The Rise and Fall of the High Commission (1913) ; J. R. Tanner, Tudor Constitutional Documents (5922) ; W. S. Holdsworth, A History of English Law, vols. i. and vi. (1922-24).

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L. B.)