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curiæ commissionariorum regiorum ad causas ecclesiasticas facta diligenti collatione per nos

May it please your lordships.

STE. KNIGHT,

Jo. CROMPTON.

According to your lordships' order, made in his majesty's court of star-chamber the 12th of May last, we have taken consideration of the particulars, wherein our opinions are required by the said order, and we have all 10 agreed,

That process may issue out of the ecclesiastical courts in the names of the bishops, and that a patent under the great seal is not necessary for the keeping of the said ecclesiastical courts, or for the enabling of citations, sus15 pensions, excommunications, and other censures of the church, and that it is not necessary, that summons, citations, or other process ecclesiastical in the said courts, or institutions or inductions to benefices, or correction of ecclesiastical offences by censure in those courts be in 20 the king's name, or with the style of the king, or under

the king's seal, or that their seals of office have in them the king's arms, and that the statute of 1 Edward VI. chap. 2. which enacted the contrary, is not now in force.

courts of common law, had increased and embittered the other con25 tentions of the times, by placing the members of that powerful profession in constant opposition to the church; inducing them, as lord Clarendon observes, "to take all opportunities, uncharitably, to improve mistakes into crimes, and unreasonably transfer and impute the follies and faults of particular men to the malignity of their order and 30 function; and so to whet and sharpen the edge of the law, to wound the church in its jurisdiction, and at last to cut it up by the roots and demolish its foundation." Clarendon, Hist. vol. i. p. 400. See also Rushw. vol. ii. pp. 380. 450. Collier, vol. ii. p. 773. Neal, Purit. vol. i. p. 590. Hallam, vol. i. p. 504. Heylin's Laud, p. 341. 35 Clarendon, vol. i. p. 270. Lingard, vol. vi. p. 320.

We are also of opinion, that the bishops, archdeacons, and other ecclesiastical persons may keep their visitations, as usually they have done, without commission under the great seal of England so to do. Primo die Julii M.DC.XXXVII.

John Bramston.

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Geo. Croke.

Irrotulatur in memorand. scaccarii, etc. ut supra.

In camera stellata coram concilio ibidem quarto die Julii, anno decimo tertio Caroli regis.

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This day was read in court the certificate of the two 15 lords chief justices, the lord chief baron, and other the justices of the courts of king's bench, and common pleas, and barons of the exchequer, made according to an order of reference to them granted the twelfth of May last, upon a motion made in the cause, wherein his majesty's attorney general is plaintiff against John Bastwick, doctor in physic, and other defendants; in which certificate the said judges have declared their opinions in point of law touching the several matters to them referred by the aforesaid order; and the same being so read in court, his 25 majesty's attorney general humbly prayed, that the said certificate may be recorded in this court, and in all other the courts at Westm. and in the high commission and other ecclesiastical courts, for the satisfaction of all men, that the proceedings of the high commission and other 30 ecclesiastical courts are agreeable to the laws and statutes of the realm; which the court held reasonable, and hath ordered it shall be so, and that after the same is enrolled in this court and other the courts aforesaid, the

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original certificate of the said judges shall be delivered to the most reverend father in God the lord archbishop of Cant. his grace, to be kept and preserved amongst the records of his court.

King Charles' letter to the high commissioners to proceed against such as refuse to take the oath, etc.-Reg. Laud. fol. 287. a.

CHARLES REX.

MOST reverend father in God, right trusty and right

entirely beloved counsellors; right trusty and right well beloved cousins and counsellors; right reverend 10 father in God, right trusty and well beloved; right trusty

15

King Charles' letter] The oath ex officio' was an oath "whereby any person might be obliged to make any presentment of any crime or offence, or to confess or accuse himself of any criminal matter or thing, whereby he might be liable to any censure, penalty, or punishment whatsoever." This process, utterly unknown in the courts of common law, and irreconcilable with the spirit of English jurisprudence, had been employed in ecclesiastical courts on the authority of ancient canons, and was justified on the ground that such inquiries were not taken to be "pœnæ" but "medicinæ," tending to the reformation of the delin20 quent, and the satisfaction of the church. (Strype, Whitg. vol. iii. p. 235.) This process however, oppressive as it would be considered at all periods, was made most formidable in the year 1583, when queen Elizabeth, on issuing a new high commission, empowered the court to

and well beloved counsellors, and right and well beloved, we greet you well. Whereas we are given to understand, that divers disorderly and refractory persons have been seduced, or withdrawn themselves from their obedience to our ecclesiastical laws into several ways of separation, 5 sects, schisms, and heresies; and being convented for the same, or for other their misdemeanours and enormous offences before you our commissioners for causes ecclesiastical, are grown to that obstinacy and disobedience, that some of them refuse to take their oath, and others 10 being sworn refuse to answer to the articles and matters there objected unto them, or by equivocation, or other

administer the oath with penalties for obstinacy or disobedience, and archbishop Whitgift provided twenty-four articles of examination for the service of the court, so comprehensive as to embrace the whole 15 scope of clerical uniformity, and yet so precise and minute as to leave no room for evasion." The opinion entertained of them at that period may be expressed in the following words of lord Burghley, in a letter written by him to the archbishop, July 15, 1584. "I have read your twenty-four articles, and find them so curiously penned, so full of 20 branches and circumstances, as I think the inquisitors of Spain use not so many questions to comprehend and to trap their prey. It may be the canonists may maintain this proceeding by rules of their laws; but ' omnia licent,' yet omnia non expediunt.' I pray your grace though bear that one (perchance a) fault, that I have willed them not to answer these articles, except their conscience may suffer them." (Strype, Whitg. vol. iii. p. 106.) The period was a critical one, owing to the influence of Cartwright and the system of discipline newly established by the non-conformists; and although lord Burghley remonstrated, and the house of commons soon afterwards joined in the remonstrance, the 30 queen would not suffer any alteration to be made in the proceedings of the court. Fresh interrogatories were added, as the altered circumstances of dissent seemed to call for them, and more especially in the year 1590, when the discipline was established as a system in various parts of the kingdom. (Bancroft's Dangerous Positions, p. 91.)

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Another important epoch in the history of this oath was in the reign of James I., when archbishop Bancroft endeavoured to extend the authority of the ecclesiastical courts, and met with a powerful antagonist in the person of sir Edward Coke. That able judge in his Institutes, (P. iv. p. 324.) confines the powers of a high commission within very 40

undue evasions do not make full and plain answer to the same, as by law they ought; now forasmuch as you our said commissioners for causes ecclesiastical are authorized by our letters patents under our great seal, and that your 5 proceedings are not only and wholly according to the formal manner and terms of the civil or canon laws, but with some relation to the form of proceeding used in our courts of star-chamber, chancery, or courts of requests, and exchequer, wherein defendants and delinquents have 10 always used to answer upon their oaths in causes against themselves, and also to answer interrogatories touching their own contempts and crimes objected to them, which narrow limits; and in the actual warrant which he was directed to issue, he omitted the power of fining for refusal to take the oath, leaving the 15 commissioners, as lord keeper Williams expressed it, (Cabala, p. 306,) "nothing but the rusty sword of the church, excommunication, to vindicate the authority of the court." He ruled also in the king's bench in the year 1616, after three terms' deliberations, that two persons who had been committed by the commissioners for refusal to take the oath 20 must be delivered, because it was illegal to require any one to accuse himself of the breach of a penal law. (Croke's Reports, P. ii. p. 388. Comp. No. CXXIII.) The oath had originally been employed against Romanists as well as puritans, but with little success in the former case. For "the practice," says Dr. Lingard, " compelled some persons, chiefly 25 among the catholics, to adopt the doctrine of mental reservation." (Hist. vol. v. p. 519.) Dr. Bancroft had stated in the year 1593, (Dangerous Positions, p. 4,) that they "dallied with their oaths," sheltering themselves under the note given in the Rhemish Testament on the 23rd chap. of the Acts of the Apostles;" he also accused the puritans 30 (Survey, &c. p. 249.) of being infected with the same evil principle of the Jesuits.

The increased authority which king Charles conveyed to the court of high commission by his letter of February 1638 was of very short duration. The court was abolished by the long parliament in the year 35 1641 (Stat. 16. Car. I. c.11.) and immediately after the restoration of Charles II. it was enacted (Stat. 13 Car. II. c. 12.), that the oath ' ex officio' should never again be administered. Collier, vol. ii. pp. 602. 682. Neal, Purit. vol. i. pp. 271. 342. Strype, Whit. vol. ii. pp. 28–32. Hallam, vol. i. pp. 216. 227. Burn, Eccl. Law, art. Oaths. Blackst. 40 Com. vol. iii. p. 67. Barlow's Conference, 3rd day.