Nicholas Fuller against the High Commission, the Ex Officio Oath and in Defence of the Priviledge not to Incriminate Oneself

This article describes the early seventeenth-century litigation of lawyer Nicholas Fuller against the ecclesiastical tribunal of the High Commission. Based on court records, parliamentary proceedings, and the treatise written by the counsel, the article attempts to reconstruct the arguments of the lawyer and common law judges. The author demonstrates that in his rhetoric, Fuller appealed to the ancient and unchanging common law, directly or indirectly reproducing certain articles of Magna Carta and parliamentary statutes. In his opinion, the High Commission should be deprived of the commission using ex officio oaths because “no one should be compelled to testify against himself”, and from imposing secular punishments, i.e. imprisons, fines, and confiscations. He insisted on the complete separation of the two branches of law not only in their areas of activity but also in the penalties imposed. According to Fuller, the royal prerogative is guided by common law, and common law courts have the right to interpret royal patent letters and reform them. Common law judges, for the most part, sought to build arguments based solely on the Act of Supremacy (1559). They held that the power to create commissions and determine their powers belonged to the absolute prerogative of the king. Therefore, the powers, procedures, and secular penalties imposed by the Great Commission were legitimate, for the king had put two swords in their hands. At the same time, the judges declared their “ancient” right to limit the activities of ecclesiastical courts and the High Commission, to check the validity of their decisions, especially with regard to secular persons, when they went beyond their powers.