Parliamentary History, Vol. 25, p t . 2 (20061, p p . 176-213

Nicholas Fuller and the Liberties of the Subject*

S T E P H E N W R I G H T

Nicholas Fuller was a radical puritan M.P. in the parliaments of 1593, 1604 and 1614, and a successful lawyer of Gray’s Inn.’ His work as an attorney led in 1607 to his imprisonment by the court of high commission and to a conflict between it and the judges of king’s bench which raised the question of whether parliamentary statute or the king was the ultimate source of legal authority. His arguments on these matters were taken up and made famous by other theorists.’ But Fuller’s own life and work have remained largely ignored. The local historian, Samuel Barfield provided a useful sketch, and printed valuable documentary material relating to him. R.G. Usher contributed work on Fuller’s wider role, but was scarcely able to conceal his antipathy to his ~ u b j e c t . ~ Perhaps the breadth of Fuller’s interests, in religion and the economic life of London, as a parliamentarian, and as a common lawyer of almost 50 years standing, may have deterred historical specialists. Marxists may have thought his activities too bound up with constitutionalism; to w h i p and liberals, he may have appeared too disreputable to warrant canonisation as a pioneer of liberty; S.R. Gardiner dismissed Fuller as ‘rash and headlong’, and ‘a hasty and, in some respects, an unwise man’. In the original D.N.B. space was found for squadrons of obscure country parsons, but not for Fuller; bizarrely, he was unable to secure entry even through the back door of the ‘Missing Persons’ volume. In the late 1960s, Wallace Notestein lamented the continuing lack of a satisfactory a c c o ~ n t . ~ It is hoped that the following may help ffi the gap.

*An earlier version of this paper was read in November 2000 to the ‘Britain in the Seventeenth Century’ seminar at the Institute of Historical Research. I a m grateful to Dr Andrew Thrush for kindly allowing me to see his own research on Fuller undertaken for the History of Parliament Trust.

’ P.W. Hasler, T h e House of Commons, 1558-1603 (3 vols, 1981), (hereafter H.P., 1558-1603);

J.P. Sommerville’s Politics and Ideology in England, 1603- 1640 (1986) has outlined some of Fuller’s ideas. Samuel Barfield, Thatcham, Berks and its Manors (2 vols, 1901); R.G. Usher, The Reconstruction ofthe

English Church (2 vols, 1969), 11, 136-53; idem, ‘Nicholas Fuller: A Forgotten Exponent ofEnglish Liberty’, Americari Historical Review, XI1 (1907), 743-60.

‘S.R. Gardiner, History $England (10 vols, 1899-1901), I, 329, 165; W. Notestein, House $Commons (1971), pp. 557-8; Fuller achieves passing mention in W. Holdsworth, A History ofEnglish Law (17 vols, 1922-72), V, 350, 429, but not in A. Simpson, Biographical Dictionary of the Common Law (1984); his omission from D.N.B. is rectified in the new edition.

O.D.N.B., XXI, 151-4.

Nicholas Fuller 177

1. Early Lij2 and Work

Fuller was born in 1543, the son a London mercer, also named Nicholas, of Neat’s Hall in the Isle of Sheppey.’ He attended Christ’s College, Cambridge, matriculating in December 1560, and took his B.A. in 1563 having completed 11 terms.‘ Following his admission to Gray’s Inn in 1563, his progress was no less glacial than that of other would-be lawyers, and neither was it trouble free: on 26 May 1579, we read that ‘Mr Fuller, Reader of Staple Inn, is discharged for negligence, and fined L15’.’ But on 23 November 1584, Fuller was elected pensioner of Gray’s Inn, and on 26 May 1587, reader. O n 8 February 1588 he was made dean of the chapel of the inn, and in 1591 elected to the powerful position of treasurer.8 The first manifestations of the religious commitment which would later draw him into conflict with the authorities seem conventional enough. In April 1577, the vestry of St Christopher-le-Stocks delegated him to consult with the churchwardens in finding, appointing and arranging for the payment of a lecturer for the parish.’ Before 1585 he married Sarah, daughter of Nicholas Backhouse, sheriff (1577-8) and alderman of London. In that year, Fuller was offered the position of queen’s solicitor in Ireland, but, on 8 December, he wrote to Lord Burghley asking to be spared the duty, chiefly on the grounds of ill-health, of himself, his wife, and young children.’” These included Elizabeth, the eldest known daughter, aged 20 at her marriage on 2 January 1605. If there were then boys, they did not live long, for Fuller’s eldest surviving son, also Nicholas, was baptized on 17 December 1592. (He was admitted to Gray’s Inn in November 1601, knighted by James I in 1619, and died the following year, just after his father.)” In November 1586, Fuller completed the purchase, initiated in May 1583, of the manor of Chamberhouse, at Thatcham, Berkshire, title being confirmed by a chancery decision of 1590.12

His legal career was prospering. From December 1588, he was several times employed by the privy council to examine witnesses in cases which bore on public

’ Pedigree in Barfield, Thatcham, I, 269; Fuller’s father was made free of the Mercers’ Company in I532 (Mercer’s Hall, London, ‘Lists of Members of the Mercers Company’, p. 174). ‘ J. Venn, Alumni Cantabrigensis (10 vols, 1922-54); John Peile, Biographiial Register of Christ’s College

Cambridge (2 vols, 1910-15), I, 73; Fuller left books to Einmanuel (will printed, Barfield, Thafrkani, 11, 294) but did not apparently attend it. ’ Thr Pension Book $Gray’s Inn, Records 4th Honourable Society, 1569- 1669, ed. R.J. Fletcher (1901),

p. 36; control over the ‘ancients’ of Staple Inn appears to have been vested in Gray’s Inn authonties, who in 1596 asserted their right to remove a principal of Staple Inn (Grays Inn Pension Book, 25 June 1596, cited in T. Worsfold, Sfapie Inn and Its Sfory (1903), pp. 56-7).

Pmsion Book, ed. Fletcher, pp. 64, 76, 78, 500. ‘ E. Freshfield. Thc, Register Buok ofthe Parish ofst Christopher L.e Storks (n.d.), (‘Minutes of the vestry’ 6th

pagination, 18951, pp. 7-8; Fuller’s father-in-law had been treasurer of the hospital in 1572 (A. Beaven, Aldermen o f f h r City ofLondon (2 vols, 1908), II,40).

“’Beaven, A/dermrn, I, 157; 11, 40, 41, 179; Visitation o f Londun /568, ed. S. Rawlins (Harleian Soc., CIX-CX, 1963), p. 119; Visitafions offBerkshirr, ed. W. Rylands (Harleian Soc., LVII, 1908), p. 128; B. L., Lansdowne MS 46, K 57-8.

l 1 College of Amis, Funeral Certificate, 1. 19, f. 79, printed in Barfield, Thatrknrti , 11, 256; ihid., I, 269; J. Foster, Rqyisfer of Admissions to Gray’s Inn (1889), p. 102; Allyafioris.for Marr iqc Lirencrs Issrcrd b y the Bishop (ffLondorr, 1520- 1610, ed. J. Chester (Harleian Soc., XXV, 1887), p. 293.

Barfield, Thatcham, I , 292-3.

178 Stephen Wright

order or which involved government servants.13 In 1589, he was one of two lawyers to interrogate the seminary priests, Miles Gerard and Francis Dickenson. In December 1590 he and others were charged to examine Sir Thomas Fitzherbert on ‘certain matters of great importance that concerned Her Majesty and the State’. In 1592, he was called to examine the riotous authors of ‘great disorder and outrage’ committed in Southwark.14 It must have seemed that advancement towards a judgeship, and perhaps further, was within his grasp. However, Fuller began to find himself at odds with the state authorities. As early as 1586, he took on a case against Francis Flower of the Stationers’ Company, who brought to star chamber a suit against printers who had infringed his patent.15 In 1590, the puritan minister, John Udall, was charged with having written A Discovery of the Disctjdine, a book alleged to be seditious. At Croydon assize, on 24 July 1590, Udall was denied counsel, but Nicholas Fuller seems to have acted unofficially for him. When Judge Clarke instructed the jury to find Udall guilty on the fact of his authorship and ‘leave the felony to us’, Fuller remarked caustically against the ruling, provoking indignant protests from the prosecutor, James Nalton. There were noisy scenes as the court ordered Udall from the charnber.l6

In 1591, Fuller appeared as counsel for Thomas Cartwright and other ministers, whose earlier attendance at synods and classes was said to have amounted to a seditious attempt to undermine the queen’s authority. The case was heard in star chamber following the failure of the court of high commission, under the bishop of London, Richard Bancroft, to enforce upon the ministers the oath ex oficio, by which the accused could be compelled to testify in his own cause. Perhaps, on this issue, Fuller clashed with the bishop (who attended with the lords in star chamber), in a rehearsal for their battles of the next reign. Sir Francis Knollys tells us that he was interrupted by the lord chancellor, who was seeking to secure Bancroft’s own legal representation in the court.” The case was dramatically altered when, at Cheapside on 16 July 1591, Edmund Copinger and Henry Arthington proclaimed Elizabeth deposed, and William Hacket the new messiah and king of Europe. This was sedition indeed! Four days later, Fuller was committed to the Fleet by the same warrant which ordered Hacket’s arrest, perhaps because, or on the pretext that, he had offered to represent the accused.I8 Still, the authorities failed to secure the conviction of Cartwright and the other ministers. The historian of Elizabethan puritanism attributes this to ‘the highly professional resistance of the puritan lawyers’, which ‘perhaps owed much to Nicholas Fuller’. He remained close prisoner in the Fleet until an order of 15 August instructed the warden to grant him ‘his liberty at large’.’’

l3 Acts ofthe Privy Council, ed. J. Dasent ef al. (46 vols, 1890-1964) (hereafter A.P.C.), XVI (1588), 38;

l 4 C.S.P.D., XIX (1581-90), 633-4; A.P.C. , XX (1590-l), 349; XXIII (1592), 28-9: 15 July. l5 E. Arber, A Transcript ofthe Registers ofthe Stationers Company (5 vols, 1875-94), 11, 802-4 for Flower

case February 1586; this partly reflected government anxiety to control the press: see C. Blagden, The Stationers Company (1960). pp. 67, 69, 71-2.

XVII (1588-9), 486; XVIII (1589-90), 260; XIX (1590), 425.

l6 T.B. Howell, A Complete Collection ofstate Trials (34 vols, 1816-28), I, 1271-96 at 1289. l 7 B.L., Lansdowne MS 1172, f. 190; J. Strype, Lij and Acts o f Wbigiji (3 vols, 1822), 11, 71. l 8 P. Collinson, Elizabethan Puritan Movement (1967), pp. 424-5; A.F. Scott Pearson, Thomas Cartwright

and Elizabethan Puritanism 1535- 1603 (1925). 463-4; A.P.C. , X X I (1591), 299, 300, 343. Collinson, Elizabethan Puritan Movement, pp. 420-1; A.P.C. , XXI (1591), 393: 15 Aug.

Nicholas Fuller 179

In 1593, probably through the influence of Burghley, Fuller was elected one of the members for St Mawes, Cornwall.2” Lawyers often attained parliamentary prominence because of their expertise in drafting laws. But Fuller’s early reputation arose from his opposition on principle to two bills, by which the government sought to bring protestant separatists within the scope of the recusancy laws of 1581. Fuller, and other puritan lawyers such as Robert Beale and James Morrice, feared that the measure might also be used against puritans within the Church of England. In the debate on 5 April 1593 Fuller denounced the second ofthese bills, sent from the Lords following the rejection of the first, as ‘dangerous to good subjects’: it made ‘schisms to be equal with seditions and treasons, which is against the equity of the former law’. ‘Upon a motion of Mr Fuller’s, the whole committee assented to the striking out of the title and the whole preamble. No man spake for it.’21 After further hostile scrutiny by Fuller and others, the bill passed in heavily amended form. It was to apply only to those who openly rejected the Church of England as a false church, and the sanctions available against offenders were rendered less draconian. Fuller’s parliamen- tary debut is unlikely to have won approval in official circles, and his reputation was not improved by being accused in star chamber in May 1596 of having furthered a libel concerning the patriotic loyalty of Lord Howard, the lord admiral. In November 1597, he was asked to help investigate the murder of his fellow Gray’s Inn reader, Richard Auger, whose body was found floating in the Thames.22 But in this case, the co-operation of the benchers could not be avoided, since the inn was self-policing: Fuller’s enlistment was no mark of favour.23 Given no other commissions, his puritan views were increasingly at odds with an increasingly conservative establishment. His activities as a common lawyer, the principles he brought to it, and the clients he chose and who chose him, brought renewed conflict with courtiers and ministers, impinging on the power and prerogatives of the crown itself.

Probably whilst an M.P., Fuller was retained as counsel in suits involving patents of monopoly, both by the pewterers, in their unsuccessful campaign to restrict the export of raw tin, and by the Leathersellers’ Company.24 In 1592 Sir Edward Darcy obtained a patent to search for and seal leather types not specified in the 1563 statute. By 28 October, the Leathersellers had begun a legal suit against him.25 A petition, perhaps drawn up by Fuller, argued for the company against Darcy’s patent that ‘hir niajestie

’” H.P., 1558-1601, 11, 161; five ofthe six nien returned in the 1584, 1586 and 1589 parliainents had Burghley connexions ( ibid., I, 136); Fuller had written to Burghley and acted for the government. All this wggesa he had Burghley’s support.

” Proceedinfs in the Parliaments qffElizabeth I , ed. T.E. Hartley (3 vols, Leicester, 1981-95), 111, 162, 167; J.E. Neale, Elizabeth I and her Parliaments ( 2 vols, 1965), 11, 288, 290.

22 W. Baildon, Les Reportes del Cases in Camera Stellafa (1894), pp. 44-5; A.P.C., XXVIII (1597), 187: 17 Nov. 1597. ’’ Pension Book, ed. Fletcher, p. xli; W. Prest, T h e Intis of C o w l CJnde Elizabeth I and thv Early Srmrts

24 I . Archer, ‘The London Lobbies in the Later 16th Century’, HistoriralJonmal, XXX (198X), 17-44, esp. 21, 28; even earlicr, on 6 Mar. 1589, Fuller was paid 20s. by the Curriers, who were trying to recover their right to act as leather industry middlemen (V. Dean, ‘Public or Private? London, Leather and Legislation in Elizabethan England’, Histun’calJoumal, XXXI (1989), 525-48).

25 Leathersellers’ Company, London, Wardens’ Accounts, ACC/1/2, f. 50; 1 am very grateful to Wendy Hawke, archivist to the Leathersellers, for locating this and the other references cited below, and for

(1971), pp. 71-4, 95-100.

180 Stephen Wright

rules hir subjects onelie by the laws of the realm and will not deal with any contrarie to justice’. This was accompanied by action ofa more direct kind. O n 18 March 1593, the privy council was told that Darcy’s grant was ‘impugned and withstood by diver leather dressers and leathersellers in the city of London, who have procured multitudes of people to complain in clamorous sort of the inconveniences of the said grant’. They were ordered to examine the miscreants, and it seems that some were imprisoned, for, also in 1593, Fuller was paid 10s. ‘for a motion to the court of aldermen for the releasing of our brethren at that time in prison upon commandment of the queen’s majesty’s privy counsel’.26 In 1595, three leathersellers were committed to the Marshalsea for contempt of the grant, and that year Fuller was paid for advice about petitioning the aldermen against a privy council ‘request to give Master Darcy money’ (presumably as compensation for breaches of the grant). In struggles over patents, Ian Archer notes ‘the recurrent involvement of Nicholas Fuller, the puritan lawyer . . . he was doubtless responsible for the injecting the controversies with the strong strain of constitutional argument that we have observed running through the opposition to these patent^'.^' In late 1597, crowds assembled at Westminster to lobby against the abuse of patents, and it is possible that Fuller was in some way involved in this.28

O n 28 November 1601, following renewed protests against the excessive profits of the patentees, the queen issued a proclamation promising aggrieved parties the right to seek redress at common law for abuses which had arisen from the patents of several commodities, including that for playing cards, granted fiom 13 June 1600 to Edward Darcy. Soon, Darcy initiated proceedings against one Allen for breach of his patent. Great legal minds were engaged in the contest of 1602. Sir Edward Coke urged that the crown could restrain games of pleasure for the common good even to the loss of private individuals; for Allen, James Dyer and George Croke argued in favour of free trade by custom of London and John Dodderidge gave reasons why the patent was invalid.29 It was Fuller, however, who stole the show. He urged the principle

25 (continued) photocopying and sending me material. I also thank the company for pemiitting the reproduction of its records.

26A.P.C., XXIV (1592-3), 123; petition quoted by Archer, ‘London Lobbies’, p. 31, from B.L., Lansdowne MS 74 (no. 48), ff. 136v-137r. ” A.P.C., XXVI (1595-6), 106-7; Leathersellers’ Co., ACC/1/2, fL 54,65; Archer, ‘London Lobbies’,

pp. 34-5; on 8 Oct. 1594 the aldermen ‘ordered that Mr Recorder, Mr Fuller, Mr White and Mr Altham shall be learned counsellors with the company of Leathenellers’: Corporation of London R.O., Repertory 23, f. 296v.

28 Sir Robert Cecil complained in the House that, whilst in his coach, he had heard someone declaiming, ‘God prosper those that further the overthrow of these monopolies. God send the prerogative touch not our libertie’, remarking acidly that he would not ‘wrong any so much as to imagine he was of this house’, but many ‘would be glad that all sovereignty were converted into popularity, we being here are but the popular branch and our liberty the liberty of the subject.’ (Proceedings, ed. Hartley, 111, 398). This might imply that the orator (if such he was) was connected with the Commons; his language suggests a godly lawyer. Fuller was a former M.P. active in suits against patentees.

29 Account of the case conveniently printed in M.B. Donald, Elizabethan Monopolies. The History ofthe Company ofMineral and Battery Worksfrom 1565 to 1604 (1961). pp. 231-49, including edited versions of the reports of Francis Moore (F. Moore, Cases Collect and Report (1688), pp. 671-5; 7’he English Reports, LXXII, 830-2), ofCoke (Coke, Report XI, pp. 84b-88b; The English Reports, LXXVII, 1 2 6 0 4 , and most importantly, of Fuller’s submission, to be found in W. Noy, Reports and Cases d Noy (1656), pp. 174-85 ( T h e English Reports, LXIV, 1131-41). Noy also printed Fuller’s initial plea on hehalf ofhis client. An MS

Nicholas Fuller 181 that only in the case of a new trade or ‘a new engine tending to the furtherance of a trade that never was used before; and that for the good of the realm, the King may grant him a monopoly patent for some reasonable time until the subjects may learn the same, in consideration of the good that he doth bring by his invention, otherwise not’. M.B. Donald comments that Fuller ‘saw, more clearly than the rest of his colleagues the direction which new legislation should take, and did take, in the statute ofmonopolies of 1623-4’.30 But Fuller also knew that the effectiveness oflaws depended on the judges’ propensity to enforce them. Had he lived to see the act, it may be that its failure to curb the abuses of the patentees would not have surprised him.

2. Opposition: Economics and Politics in the Parliament of 1604- 10

Fuller seems not to have sought re-election in 1597-8, but appeared once more in the first parliament of James I, as a member for the city of London.31 In this parlia- ment, Fuller was a most active member, involved in all the issues which divided the commons and the government. Moderate critics such as Sir Edwin Sandys achieved greater eminence. But so consistently did Fuller find fault with official policy, that he may be justly thought of as the ‘leader of the opposition’ in the first two parliaments of James I. In the year 1606 alone, for example, he attacked the impositions on currants, and the patent on blue starch; he presented to the House (on 10 May) a consolidated statement of chiefly economic grievances concerning purveyance, patents, impositions and the farming of fines, which resulted in delay to the subsidy bill; he joined in the effort to bring to account the government agent Tipper, charged with taking bribes and extracting money under false pretences whilst in service of the revenue; he was one of those pressing for the recusancy articles and bill; he was involved in the defence of ejected ministers; he attacked the powers of high commission; and he was involved in a joint conference which gave rise to friction between the two houses.32

Fuller was a member of the Mercers’ Company.33 He continued to act for the Leathersellers in 1603-4 in legal matters, including their application for a new

29 (continued) variant of Noy’s account of Fuller’s argument, adding eight short paragraphs at the end, appears in Harvard Law School Reports, Harvard University, Cambridge, Mass. (hereafter H.L.S.), MS 105a, ff. 3-10. For other speeches, a more detailed account than that in Moore’s Report IS given in B.L., MS Add. 25203, ff. 570v-588r. It includes the speeches ofDodderidge, Fleming, Fuller (E 580r-84r) and Coke; but the version of Fuller’s speech here is less full than in Noy’s report. The fullest record of Darcy- Allen is probably The National Archives (Public Record Oftice), hereafter T.N.A., SP 14/286/46-7. For a discussion of the case, part of an analysis of the political connotations of monopoly in Early Stuart England, see D. Sachs, ‘Parliament, Liberty and the Commonweal’, in Parliament and Liberty, ed. J . Hexter (1992), pp. 85-121, esp. pp. 95-8 and the citation from Fuller (ihid., pp. 117-18); Sachs points out (ibid., pp. 293-4) that the version in Coke’s Eleventh Report was published iiiany years later and I F probably less reliable than other accounts.

30 Quoted in Donald, Elizabefhan Monopolies, p. 198; Fuller recakd his own role on 23 June 1610, E.R. Foster, Proceeding3 in Parliament, 1610 (New Haven, 1966) [hereafter, PPlO], 11, 158; Donald, Elizabethan M o n o p o h , p. 199.

31 Neale, Parliamencx, 11, 326; H.P., 1538-1602, 111, 162. 32 Notestein, Commons, pp. 163, 168, 175-6, 159, 168, 173-4. ” Admitted by patrimony in 1572 (Mercers’ Hall, ‘Lists of Members’, p. 175); Fuller niay have acted

for them at some time, but in this parliament it appears that the company looked to the influence of Sir Baptist Hickes (Acts of the Court of the Mercers Company IV, 1595-1629, f. 58r.). Fuller is given as ‘Mercer’ on a list ofmembers and constituencies for the 1614 parliament in Procecdinsqs in Puravliarnrrit, 1614,

182 Stephen Wright

charter, and he also advised the Coopers. By December 1604 he was engaged by the Grocers to give advice upon the strengthening of their charter.34 O n 23 October 1605 he was one of those named by the aldermen to a committee of 12, including Sir Henry Billington, Sir John Garrard, Sir Thomas Bennett, and the recorder Sir Henry Montague, charged to meet periodically to ‘consider what matters are fit to be preferred this present parliament for the good and benefit of this city’.35 He was also a ‘common pleader’ of London, one of four men retained to act as counsel in the City’s courts. In February 1606, ‘Mr Fuller of Gray’s Inn, a prime man in the council of London’ commended a bill for woollens; a week later, an ‘act for the true making of linnen cloths’ was brought in by ‘Mr Fuller for London’.36

Such matters often involved more than the interplay of sectional interests. O n 7 April 1606, Fuller complained against unwarrantable impositions on currants. This was the substance of Bate’s case, in which the court of exchequer pronounced for the king in what was essentially a political dispute over his right to raise customs rates in peacetime. There were general principles involved also in purveyance, a practice whereby agents were commissioned by the court of green cloth to buy crown supplies at less than the market rate. These officials disposed of great powers, which they often abused, and the court also acted to punish those who resisted them. The system generated much resentment. In March 1604, Fuller and three others were appointed to a sub-committee to consider grievances against the purveyors and to draft a bill restraining them. The Commons decided instead to proceed by petition to the king, but rejected various schemes for ‘composition’, that is the buying out of all or part of the practice for a fixed sum or an annual tax. Fuller opposed purveyance in principle, as parasitic upon crown and country, and argued that if a deal could be made to end it, ‘the King may have L60,OOO yearly which now others take’. But did parliament have the power to curb the purveyors? When in March 1606, partial composition was mooted again, Fuller explained that he had favoured such a bargain ‘but I am now of another mind’, because Chief Justice Popham had ruled: ‘that the statutes for purveyors do not bind the king . . . Therefore until we may be satisfied that we may have assurance and that the judges do directly affirm we may have security let us not talk of comp~sition.’~’ The point had even wider implications: ‘The judges’ refusal to accept statutory curbs on purveyance raised doubt about the value of any legal safeguard. In the debates of 1607, both Henry Yelverton and Fuller pointed starkly to the problem of safeguarding the terms of the union, since ‘the judges, intent on preserving the position of the crown, had broken down the possibility

33 (continued) ed. M. Jansson (1988), pp. 449-70, compiled from the Huntington Library, San Marino, California, Hastings MS, Llx3.

34 Leathersellers Co., Wardens’ Accounts, ACC/1/2, ff. 104, 111; Dean, ‘Public or Private!’, p. 545; appointed adviser to Grocers, 14 Dec. 1604: W. Le Hardy, ‘Calendar of the Minutes of the Grocers’ Company’ [Guildhall Library typescript], 11, part 2 , 294, and see ibid., 308-9, 314-5.

35 Corporation of London K.O., Repertory 27, f. 108v; and see Repertories 26(1), f. 170v; 26(2), E. 362r; 27, f. 253v.

36 The Parliamentary Diary .f Robert Bowyer, 1606-7, ed. D.H. Willson (1931), [hereafter Bowyer],

37 Notestein, Commons, pp. 96-101, 163; Bowyer, pp. 60-1, 105. pp. 33-4, 47.

Nicholas Fuller 183

of secure agreements between the King and his subjects’.3R On 8 November 1610, Fuller pointed again to the dangers, remarking pointedly that ‘I would willingly give somewhat out of my estate, so as I might be assured to know what the rest were and enjoy it safely. But before those fears be cleared I cannot for my part have any comfort in the bargain.’ Here, as Notestein remarked, he was expressing gentry fears that ‘the king might call in leases and bestow them on his friends’, and then frighten the judges into pronouncing such steps legal.3y

Meanwhile, on 12 April 1606, there was a further joint conference upon the bill. For many in the Lords, the proposed curbs upon the court of green cloth impinged upon the royal prerogative. John Chamberlain reported that the judges denied the bill’s legality; they ‘overruled all on the prerogative side, and gave it out for law that the king had both prising and preemption’ and even declared ‘that the prerogative was not subject to law, but that it was a transcendant, beyond the reach of ~arliament’.~” Fuller objected that such views did not have the force of law; there was

a great difference between the words of a judge sitting judicially in a court of judgment and speaking in that place, and his speech in any other place, for in judgment I know he speaketh sworn, and the best subject is to stand before him uncovered, but elsewhere he is another kind of man . . . wherefore I moved that if their lordships would hear the judges opinions, we might be licensed in the mean time to withdraw ourselves, for I saw no reason the judges opinions in that place should bind us . . .

He had been rebuked: ‘a great one told me, I had spoken that which had been better unspoken’. But ‘now said he, I desire witness, and that it be remembered, that I have spoken nothing offensively: And all the house with a general acclamation and approbation of his speech, did clear him of all fault and allow his speech to the lords.’41

Behind this friction a certain resentment is visible. The Lords, thought some M.P.s, were too keen to proclaim their own superiority within parliament. O n 13 May 1606, Fuller reported complaints over joint conferences, of which the first he noted laconically ‘We stand long.’ It is clear that while M.P.s awaited the pleasure of the upper House, they were required to remove their hats, and were denied the courtesy of a seat. O n 14 March 1607, he recommended on behalf of the committee of privileges that the Lords be requested to provide for ‘niore ease of such persons as this house shall from time to time send to confer with their lordships’, noting that when in the past a few lords had visited the Commons for consultation, ‘it is not likely the whole commons did stand or were bare in reverence of so few sent down to them’.42 Protocol in these matters was politically charged. In the Speaker’s absence on 23 March 1607, Fuller argued: ‘that we have an entyer body and may do of ourselves. The Speaker is not our head but one of ourselves; he is only to moderate. That for that purpose we might appoint any other [who] hath a voice amongst us.’ When

’* P. Croft, ‘Parliament, Purveyance and the City of London 1589-1608’, anfe, IV (1985), 9-34. 39 Foster, PPIO, 11, 321; Notestein, Cummons, p. 412. 4” Bowyer, p. 13411, citing Chamberlain from T.N.A., SP 34/20/36. 41 CJ., I, 297; Bowyer, pp. 121, 134; for Sandys, see Bowyer, p. 218. 42 Buwyer, pp. 158, 233.

184 Stephen Wright

James was determined to prevent the House discussing his prerogative in impositions in 1610, he conveyed his views through the Speaker. Friction in these matters did not stem from a breakdown in communication. It was partly about communication, for each had views about the protocols of intercourse with the other. FuUer was a member of the committee of privileges which reflected feeling amongst M.P.s that the Speaker was acting too much as a conduit from the king and that he should not take messages from him unless asked to by the House.43

3. Union with Scotland

In the Commons, ministerial plans for union with Scotland aroused widespread suspicion, and it has been suggested that parliamentary concern over laws and liberties were excited more by this issue than by celebrated causes such as that of the Goodwin case.44 But opposition has also been ascribed to prejudice against the Scots, and ‘conservative, immemorialist beliefs about the place and function of the law’. These elements were certainly present. Fuller undeniably sought at times to mobilize members’ nationalistic sentiment against the Scots. The report that in December 1606 he described ‘the Scots in other countries as more like pedlars than merchants’ is not very attractive even as it stands, and has been misquoted to even worse effect.45 Some of his references to the Scots involved language which the modern reader finds repugnant.46 In November 1606 he urged: ‘Before we receive them in, let us seek for places to put them in; London can receive no more; no more can the trade towns of England; all occupations are so overburthened with artificiers. If we bring in noblemen, see how many must be removed to give them place.’47 This appeal connected with the fears of artisans and traders, and with resentment at newly arrived Scottish courtiers, now prominent in the privy council, who, it was widely felt, were showered disproportionately with offices and honours.

Two points should be made in mitigation. First, Fuller did not base his argument chiefly on anti-immigration sentiment; and second, he is not reported as articulating

43 Quoted in M. Keeler, ‘The Committee for Privileges of the House of Commons, 1604-10 and 1614’, ante, XI11 (1994), 147-69 at 158; CJ., I , 353-4; Notestein, Commons, pp. 311-12; Fuller wanted a committee to consider the speech (CJ . , I, 430); on the politics ofsuch procedural matters see G.A. Harrison, ‘Abuses of Power and Power Itself, ante, VII (1988), 1-23, especially 4-6 and S. Lambert ‘The Clerks and Records of the House of Commons 1600-1640’, B.I.H.R., XLIII (1970), 214-31.

44 C. Russell ‘English Parliaments 1593-1606: One Epoch or Two?’, in The Parliaments qfElizabethan England, ed. D.M. Dean and M.L. Jones (1990), pp. 191-213, esp. pp. 207-13.

45 The phrase originates from Carleton (Dudley Carleton to John Chamberlain, 1603- 1624. Jacobean Letters, ed. M. Lee (New Brunswick, N. J., 1972), p. 94). Gardiner, History, I, 329 omits the qualifying phrase and gives Scots as ‘Scotch’: ‘said that the Scotch were pedlars rather than merchants’, remarking also that Fuller was ‘rash and headlong’, a reprise of the earlier ‘hasty’ and sometimes ‘unwise’ characterization (ibid., 165). Fuller may have said the words reported, though Carleton’s hostility invites caution. Carleton also says Fuller was ‘shrewdly chidden’ by the Lords for his remarks at the joint conference (15-17 Dec.). There is no confirmation of this in the available records (B.L., Cotton Titus MS FII, ff. 77-8, printed C J . , I, 332; LJ., 11, 466-8).

46E.g. speeches on 14 Feb. and 29 Apr. 1607, respectively to be found in B.L., Harleian MS 6850, fX 44-5 (variant copy in Harleian MS 8642, ff. 1-2), and in Bowyer, pp. 263-6, 266n.

47 27 Nov. 1606, ‘Debate on the Hostile Laws’, B.L., Harleian MS 6850, printed in Bowyer, pp. 195n-7x1.

Nicholas Fuller 185

anything like the invective vented at times by others, notably Richard James who, on 9 December made ‘a long and violent speech’ in which he portrayed the Scots as successively ‘infidels and pagans’, ‘fugitives’ and ‘idolatrous peasants’.48 O n 13 February 1607, a speech by the Buckingharnshire knight, Charles Piggott, spoke of ‘murderers, thieves and the roguish Scots’; as a result, by order of 16 February, he was expelled from the House and sent to the Tower. Fuller welcomed better relations with the Scots, and thought that to ‘abolish hostile laws is a just work, so we do all; but if we leave anything which is not fit, we shall leave still a memory of the old enmity’. For one correspondent, even, the old enemies now enjoyed ‘a brotherly friendship as Mr Fuller has often said in divers of his speeches’ though here, perhaps, irony is intended.4v

But it was the legal and constitutional dangers to which Fuller repeatedly turned. He was a leading supporter of Sandys’s proposal for full legislative union with Scotland. This was aimed to delay or deflect the government’s own plans, but it proceeded from the premise that whilst two legal systems prevailed, the executive disposed of extra discretionary powers which bypassed the statutes of either country, powers which appeared at odds with parliamentary ‘liberties’. Fuller’s thinking on union was set out in a speech on 14 February 1607, when he sought ‘to prove that this union is dangerous to both nations’. He expressed fears that impoverished Scottish artisans would descend on English commerce, giving an analogy with the farmer ‘who hath two pastures divided by a hedge and to the north cold and less fruitful, the other to the south warm and more rich. Generally, it was ‘fit that we seek room to place them in before we admit them’. He spoke of ‘the greatness of our ships as in 1588’, whose captains’ exploits compared with the inaction of the Scots; and for whom commercial prosperity and state support had served to ‘better arm themselves to the comfort of their friends and terror of their enemies’. However, there were no racial slurs. Fuller worried about government complacency as to the larger interests of England, whose merchants were being undercut by Scottish rivals. Despite the allusion to 1588, the tone was not one of nostalgia or of national triumphalism, but of sober anxiety for the future. In urging that the state should take a more active and systematic role, the speaker looked not backward, to the time of privateering heroics, but forward to the Navigation Acts: to Robert Blake rather than Francis Drake.

Even in his role as spokesman for the merchants of London, Fuller sought to connect their economic interests with constitutional principle: in November 1606 he argued that ‘it may be prejudicial; as to have the king by his prerogative to make the mayors or offices of towns corporate, of that nation and therefore it is fit that for this branch, we sent for the merchants to hear their objections’. And on 14 February: ‘as the lord cannot from the tenants take away their common, so cannot the king the right of trade from his subjects. And as the subject is bound by oath to obey the king in all loyalty, so is the king by oath bound to rule in laws and equity’; further, ‘this union cannot be but by assent of parliament, if other way it is injurious’. Wales,

48 Carleton, ed. Lee, p. 94; CJ., I, 328-9, 1009. Fuller’s speech of 14 Feb. (CJ., I , 334-5, 1013) against naturalization contained arguments against immigration and stressed the poverty of Scotland, but even here, no open abuse is recorded; Piggott was expelled 16 Feb. 1607 (CJ., 1, 333-4, 1014).

49 Bowyer, p. 19711.: 27 Nov 1606; H.M.C., Salisbury, XIX, 443.

186 Stephen Wright

despite its early conquest, had been united with England only by the parliamentary statutes of the reign of Henry VIII. He also touched on the controversial question of naturalization. The government had proposed that those Scots born both before and after the accession of King James could be naturalized as English subjects. Both legally and politically it was hard to oppose this right for the post nati. But how many of the king’s Scottish courtiers would attain to state positions if it were to be extended to the ante nati? James had claimed the power to naturalize them by prerogative, and sought by a collusive action of 1605 to obtain judicial sanction for it.

Fuller’s detailed views on this question are not extant, but he was reported to think the proposals ‘hurtful to both realms, especially to England, and that things of this nature could not pass or bind the subjects without an act of parliament’. In the speech of 14 February he evoked the consequences of naturalization by prerogative 50 years earlier. For the naturalization of a son born to Philip and Mary would have led to the uniting of England and Spain. This powerful argument, more than any other, was proof against co~n te r - a t t ack .~~ Its chief official opponent was Sir Edward Coke, who strained unavailingly to prove to the House that in this area, the judges of the common law had always favoured the claims of the prerogative: kings could naturalize the ante nati, on the basis of their new allegiance. But Sir Edward Sandys urged the House to assert its own competence in the matter, despite common law precedent. Thus, the cause of international enlightenment bound up (as we are advised) with the union, found its advocate in the high priest of insularity and immemorialism, and the leading spokesman of the backwoods of the lower House spoke on the side of inn~vation.’~ This line-up may suggest that much more was involved than the patriotic sentiments shared by M.P.s on both sides of the debate.

For Fuller, the liberties of the subject were at risk. The power of naturalization seemed also to imply the extension of the king’s right to issue pardons under the prerogative, to the potential undermining of statute. It was argued that whereas he might dispense with the penalties of a statute, he could not void in any instance the statute itsell; and that where a law was enacted without a money penalty, the king could not grant a non obstante. This argument is not recorded as Fuller’s but it reappeared in his pamphlet. Borough charters which included laws against the Scots could not be abolished, for ‘No act of Parliament could take away that which was not established by Act of Parliament.’52 Such considerations also underlay Fuller’s attitude to escuage and wardship, and the conduct of trials in border areas. It has been suggested that he argued that ‘witnesses for the prosecution would frequently be sworn enemies of the defendant, or worse still, be Scots’, suggesting his views were driven by national prejudice. The record does not support this. He defended, though in patriotic terms, the right of Scots to call their own witnesses before the jury in English courts: ‘All witnesses are to be heard, otherwise the mischief will be this, we must expect the like law in Scotland, and this will follow, a Scottishman when he

50B.L., Harleian MS 8642, ff: 1-2 and Harleian MS 6580, ff. 44-5, slightly variant, here collated;

’’ Gardiner, History, I, 344-6; K. Kim, ‘Calvin’s Case and the Law ofEngland’,journal ofLegal History,

52Notestein, Commons, pp. 231, 219 and 530 n. 21, citing CJ., I , 1006; Gardiner, History, I, 325-7,

Bowyer, pp. 195n-7n: 27 Nov. 1606; Sir Edward Montague’s report, in H.M.C., Buccleuck, IV, 110-11.

XVII (1996), 155-71.

333-5; Bowyer, p. 220.

Nicholas Fullev 187

shall be once here rejected and not heard, will say at his return, why should we go into England to accuse, we cannot be heard, and then we may not expect to be heard there, by which means justice will Fuller pressed successfully for defendants in border cases, on both sides of the border, to be allowed witnesses, on oath, whom juries might not disregard. Government proposals in this area also aroused the opposition of Edwin Sandys who urged that Scots tried in England should be allowed counsel, a liberty he wished ‘permitted all over England’; Sir Henry Hobart regarded this as ‘too radical’, and James I attacked such views not as anti-Scottish, but as an ‘encouragement to malefactors’. Clearly, Fuller and Sandys were worried about the rights of the accused, and, equally clearly, the government was seeking to strengthen the hand of the prosecutors. O n 23 June, Fuller opposed a Lords amendment granting juries on either side of the border the right to refuse witnesses they did not like the look of: ‘here you will have the jurors try the truth of a testimony before they hear it’. In this he was less chauvinistic than the Commons majority, which (over his continuing opposition) combined with the Lords, on 29-30 June, to allow the bill to pass ~namended. ’~ Fuller was driven chiefly not by national animus, but by unwillingness to allow prosecuting authorities to obtain convictions against those who displeased them, by restricting the evidence admissible, by curtailing the rights of defendants, or by appeals to the prejudices ofjuries.

Generally, attitudes to the union were not determined solely or mainly by national prejudice. For Fuller especially, the plan compounded dangers inherent in the union of crowns; it promised a further expansion in the powers at the disposal of the state against individual subjects, to which were already added those of unaccountable bodies such as the court of green cloth, or ecclesiastical commissions. In 1610, Fuller saw in the council in the marches of Wales which local forces were trying hard, though unavailingly, to abolish, another rival to the common law courts and therefore to the local liberties of which parliament was the ultimate guarantor.55 Fuller’s training and experience as a common lawyer increased his awareness of prerogative power, but his suspicions were not unique in the Commons. There was disquiet over the rights of the House in the Goodwin and Shirley cases, over the power to levy customs in Bate’s case, and in the continuing dispute over purveyance. It seems perverse to assume that M.P.s were unable to see any thematic unity between these sources of anxiety. The union raised them in more generalized form. Fuller appealed to patriotic sentiment against it, in the cause of pointing up what he saw as a threat to liberty - not vice versu. There were strong traditionalist emotions in the House, but he did not appeal to antiquity in general. Against the rights and liberties of protestant England, he thought, powerful enemies were gathering, not only in counter-reformation Europe, but at home, both in the backward and superstitious depths of society, and at its summits in the prelacy and the court, often consumed in self-interest and popishly

53 B. Galloway, The Union o/Egiand with Scoffand, 1603- 1608 (1986), p. 124; Bowye‘, pp. 195n-7n: 27 Nov. 1606; ibid. , p. 360.

54 BowyPr, p. 353; government supporters included those who denied ‘the dissolute borderers the benefit of witnesses who by reason of situation and custom have theft and murther alniost for nature and therefore ought to have a more severe law’ (T.N.A., SP 14/27/44), scarcely a declaration of internationalist principle; Bowyer, pp. 358-63.

Foster, PPIO, 11. 9, 396; C.A. Skeel, The Council in tkc Marrkes of Wales (1904), pp. 133-40. 55

188 Stephen WrQht

affected. The authorities did not criticize him for his ‘conservatism’ but as a dangerous radical, whose activities and views threatened the very fabric of the social, religious and political order. Certainly Fuller’s views reflected the training and attitudes of the legal mind, not much celebrated for its radicalism, and the centrality of precedent in the entire structure and conception of common law. But ‘conservatism’ in this period was an outlook more identifiable with the civil lawyers, whose work in such areas as canon and maritime law tended to align them with the ecclesiastical establishment in cases involving jurisdictional uncertainty. For common lawyers, this tendency gave rise to the equal and opposite effect, and led sometimes to a practical alignment with puritans and even separatists in conflicts with the hierarchy. Indeed, Fuller’s own career is a particularly clear demonstration of this pattern.

4. Religion and the Law

Fuller was very active in his parish at Thatcham. Often present at the vestry meetings, he seems to have encouraged greater participation in its affairs by other leading laymen, who now began to appear as signatories to key decisions of the vestry. The churchwardens were made to record their accounts more fully, and on 17 May 1607 were forbidden to lease parish property at their own discretion. O n Fuller’s initiative, perhaps, in May 1608, charges for communion bread and wine were fixed according to the circumstances of parishioners; all had to pay, according to the vestry records, except those ‘knowne to be verie poore by the judgment of the vicar and churchwardens’. Fuller was a trustee of two local charities, the ‘Church Estate’ and the ‘Loundes Charity’. It was almost certainly on his initiative that, on 12 October 1610, following an enquiry at Abingdon, commissioners acting under the great seal issued orders placing these charities under closer control and supervision, so that they might operate solely and effectively for the relief of the There is, in short, nothing from the parish records to suggest that Fuller was anything other than a zealous and loyal member of the Church of England and his parliamentary speeches reflect a conventional, if militant, patriotic Protestantism. Yet he was soon to be charged with heresy and schism.

It would not be unreasonable to suppose that he felt some affinity with the religion practised north of the border, but the indications are that he opposed presbyterian g~vernment.~’ In 1604, a bill passed by the lower House placed jurisdiction over scandalous ministers not in any synod or presbytery but in the hands of J.P.s; Fuller may have initiated and certainly supported both this measure and efforts to deal with pluralism and n~n- re s idence .~~ His support for action against recusants in February 1606 was reflected in proposals to strengthen the powers of magistrates to deal with

” Barfield, Thatcham, I, 132; 11, Appendix, 46, 108; ibid., I , 199. ’’ Cf. Sommerville, Politics, p. 192.

CJ., I , 237, 990: 12 June 1604; Sommerville (Politics, p. 215) reports that the bill was regularly reintroduced; in 1610 Abbott was moved to characterize it as ‘so vile that 1 think your Lordships shall do well to cast it out of the House’. Their Lordships obliged, and obliged again, in 1614, 1621, 1624 and 1628. ‘An Act against pluralities of benefices and non residence’ was one of several ‘to be considered of the next parliament’ (T.N.A., SP 14/6/99).

Nicholas Fuller 189

them.s9 This Erastian tendency to favour secular powers (especially local justices) against the bishops is in contrast with the hierarchy of clergy-dominated courts to be found in Presbyterianism. Of course, Fuller’s approach to godly reform found profane friends. Erastian ideas fitted well with the self-interest of lay impropriators who imposed cheap curates on their parishes; some M.P.s probably looked forward to the redeployment of the episcopate as salaried superintendents firmly under their own control. Feeling against the bishops had material as well as ideological roots. But many zealous members opposed Bancroft’s attempts to impose clerical conformity to his new canons. And the most influential amongst them were Erastians, seeking to press lay claims in the sphere of church government.”)

Already in the 1590s, Fuller had personified the triple alliance, of puritans, lawyers and parliamentarians, against the bishops. From 1604 he re-engaged himself; on both the political and legal fronts of the resistance. Melanchton Jewel, arrested in late 1604, contacted him to ‘show Mr Nicholas Fuller what the Bishop proclaimeth for him, and to require his very best’. Fuller was evidently seen as a key adviser of those who hoped to use the common law courts as a means to resist deprivation for breach of the canons.6’ By the end of 1605, over 50 beneficed clergy had been deprived, and many others with no freehold found themselves suspended or silenced. But legal and literary resistance continued. In defiance of the censorship, a series of pamphlets was printed on William Jones’s secret press, and distributed by a network of activists. These included two suspended ministers, Josiah Horne of Orwell in Cambridgeshire, and Mr Lewis of St Helen Bishopsgate, London. There were two Hampshire men, Stephen Bachiler, a deprived minister,62 and Anthony Erbury, one of Henry Jacob’s most prominent colleagues in the puritans’ Sussex campaign of 1603 and presenter with William Jones on 15 May 1604 of a bill of attainder against Bancroft. Another deprived minister, Richard Mansell, soon became Fuller’s client after his imprisonment for presenting a ‘petition’ to parliament. In star chamber proceedings in 1608, Mansell appeared with Bachiler and Fuller, charged with helping William Jones publish Fuller’s own pamphlet.63 These connexions make it likely that Mansell’s ‘petition’ to parliament was the text, also issued by Jones,

s9 Recusants were to swear an oath of loyalty to the king, to be administered by bishops or two justices of the peace (Notestein, Communs, pp. 145-6, 159); Fuller had sat on a single committee on religion whose article on recusants was one of the most important; he brought in from it 16 articles, read on 1 Feb. 1606 (CJ., I , 279; Bowyer, p. 21).

“’See e.g., Sir Edward Montague’s bill seeking to restrict the ministry to graduates of good character; the admission of any person not so qualified ‘by any Archbishop, Bishop or ordinary . . . shall be utterly void, and it shall be lawful for every person or persons to detain and withhold all manner of tithes arising within the said parish and all other duties from such a minister, any Law statute common or constitution to the contrary notwithstanding’ (T.N.A., SP 14/8/66).

‘’ T.N.A., SP 14/10/81, extracts in S.B. Babbage, Richard Bancrqji and Puritanism (1962), pp. 105-7; Usher, Reconstruction, I, 410-11.

62 K. Fincham, Pastor and Prelufe (1990), p. 324. It seems very likely that this Stephen Bachilor was the man reported by Winthrop to have ‘suffered much at the hands of the Bishops’, who emigrated to New England in June 1632, was ejected from Lynn and Hanipton, returned to England after 1650 and died in Hackney in 1660 at a very advanced age, for which see ‘Letters of Stephen Bachiller’ in The Winthrop Papers (Collections of the Massachusetts Historical Society. 4th ser., VII (1865)), pp. 88-109, eTp. 8811.

H.M.C., Bucrkuch, 111, 88; CJ. I , 210; M. Curtis, ‘William Jones: Puritan Printer & Propagandist’, 7?w Library, 5th ser., XIX (1964), 38-66, at 46-7; Manrell drprivcd, 28 Oct. 1605, Fincham, Pastor and Prelate, p. 326; T.N.A., STAC 8/19/7.

63

190 Stephen Wright as Certaine Avguments to Persuade and Provoke this present high court of Parliament to zeal,for the Ministers now silenced, described by Gabriel Powell not as a petition but as ‘a late supplicatory pamphlet’.64 Its petulant tone suggested that the petitioners were disappointed, and perhaps surprised, that there was not more sympathy for the ministers in the commons.

O n 26 February 1606 Sir Francis Hastings brought in a bill to restore deprived ministers; yet on 15 March, in response to a proposal for conference with the bishops, Hastings made a motion to petition to the king on the ministers’ behalf. Some were certainly concerned. Nathaniel Bacon complained that 260 had been silenced and asked that ‘they may be suffered to preach again and that there may be no more any such course be taken by the Bishops hereafter’. O n 27 March, Hastings brought in ‘a bill, twice committed, touching suspended and deprived ministers, with amendments; and being twice read; upon the question to be engro~sed’ .~~ It seems that this was the bill which re-emerged in the Lords as an ‘Act to enable suspended and deprived ministers to sue and prosecute their appeals’, a much less ambitious course than Bacon had urged. Now, Notestein noted, on 13 May, ‘Fuller moved that the matter of the deprived ministers be orally presented to the King. This I do not fully understand’.66 Why was Fuller, of all people, leading this important retreat? It seems that even the emasculated bill was too much for the Lords, and that Fuller and his co-thinkers now despaired of parliamentary action in the cause. Some of the evidence for this also helps explain it.

Early in January 1606, those M.P.s most interested in religious causes had drafted a strategy document. In the wake of the Gunpowder Plot, widespread revulsion against Catholicism provided opportunities for them. So when the authors drew attention to ‘the discountenancing of the sincere preachers and professors whom the recusants know to be their strong opposites’, they were swimming with the tide. But the circumstances also powerfully reinforced a desire for national unity behind the official state church. The strategists had to bend to this. They proposed that ‘sincere preachers be settled and countenanced’, but did not call for the reinstatement of the deprived, urging-much more ambiguously-an end to dissension in the church.67 Fuller had sat on a single committee on religion whose brief included the ministers, and on 1 February 1606 he brought in from it 16 articles which were read immediately. But when on 7 March, a bill for the restoring of deprived ministers was committed, it was dealt with by the first of four sub-committees; the other three discussed several

64 G. Powell, A consideration ofthe deprived and silenced ministers (1606), title page; this work was entered on 4 Apr. 1606, after the submission of the ‘supplicatory pamphlet’, whose ‘author is not affraide to persuade and provoke your Honourable court’ (epistle dedlcatory), positively identifylng it as Certaine Arguments to Persuade and Provoke. The texts o f Certaine Arguments and B.L., Cotton Cleopatra MS FII, ftl 274-81 are the same, but the MS has an elaborate preamble; I t seems clear that it was a copy of the petition. Probably it was presented some time after the House met, for it demands action before the last day of the session. In spring 1607, the likely author or presenter, Mansell, had been imprisoned for nine months, so he must have been arrested in summer 1606.

65 CJ., I , 274, 285, 290; Notestein, Commons, pp. 176-7. Text in H.M.C., House o f l o r b , XI, 101-2 argues for the right of appeal to be restored Notestein,

67 ‘Remembrances for our next session of parliament’ endorsed at the top ‘parliament session after the Commons, p. 176.

powder treason’, B.L., Cotton Cleopatra MS FII, f. 266 (undated but clearly c. January 1606).

Nicholas Firller 191 proposals for reforming and restricting ecclesiastical commissions. Fuller was named only to the third, and not the first.68 A document which seems to sum up members’ response to these questions was sympathetic to the three meawres aimed to reform high commission. It commented on Fuller’s proposal to restrict to two the numbers of commissions with special legal powers, that it ‘is not without good ground desired that there should be but one in each province’. But it took violent exception to the deprived ministers, whose restoration was impossible since they are ‘men censured for schism or suspicion of schism’.69 Now the sub-committee charged to consider the deprived ministers consisted of Sir Francis Bacon, Hastings, Sandys, Sir John Higham, Morns Barclay, Sir Christopher Perkins, Yelverton and James Perrot. It does not seem that it was particularly unrepresentative, and its view was accepted. Why did M.P.s combine retreat over this issue with support for Fuller’s efforts to restrict the powers of the high commission and to reform its procedure^?'^) Many would not perhaps, in ‘normal’ times, have been hostile to the silenced ministers. But the weeks after 5 November 1605 were not normal times, and the discredit of catholicism encouraged the closure of protestant ranks behind the head of church and state whom God’s providence had spared: opinion hardened against holders of views seen to be divisive, even amongst M.P.s sympathetic with the dissident ministers. Fuller’s puzzling motion to petition the king may therefore reflect his awareness that the mood in the Commons had turned, and now favoured their abandonment. But it is equally significant that about this time, as Kenneth Fincham has shown, much of the steam also ran out of Bancroft’s campaign against his old enemies. The ‘powder treason’ tended to strengthen official Calvinist conformist sentiment both against the radical puritans and the most zealous of their enemies.

5. The Legal Battle: 1607-8

For the deprived ministers, and for their leading parliamentary advocate and counsellor, their abandonment by the Commons ensured that the focus would now move towards the courts. Their legal campaign brought the common law judges into conflict with the high commission. And this in turn raised at the highest level the question of how jurisdiction should finally be determined, and therefore that of the ultimate source of legal power.

The conflict developed out of two cases which had originated in Bancroft’s campaign and the resistance to it.71 Thomas Ladd of Yarmouth had attended a

68 The four sub-committees considered 1) the ‘restitution of the ministers deprived', 2) ‘the multiplicity of commissions’, 3) whether ‘all citations should express the cause and the parties naine who is the accuser’ and 4) ‘that excommunications be not used for small trifling causes’: CJ, , I, 279; B.L., MS Cotton Cleopatra FII, f. 239.

h9B.L., Cotton Titus MS FIV, ff. 176r-v: Fuller had on 17 Mar. 1606 brought in as a grievance the multiplicity of commissions (CJ., 1, 286); the brief of the second commttee suggest5 it was set up soon after. This might be a sununary report of the deliberations of the four sub-committees.

’” CJ., I, 285a; B.L. Cotton Cleopatra MS FII, f. 23Yr; the bill was lost in the Lords (LJ , , 11, 546; H.M.C., House o f l o r d s , XI, 108-9). ” The account by Gardiner in his History, 11, 36-41 is corrected in point of chronolo&y by Usher,

Keronsfruction, 11, 136-53, though Usher wrongly gives the date of Fuller’s first release (5 January) as the

192 Stephen Wright

religious meeting at the house of the deprived rector of Beetley, Thomas Jackler. He had been persuaded to take the oath ex officio in the court of the chancellor of the diocese of Norwich, where his evidence conflicted with other information; summoned to Lambeth on charges of perjury, he then refused a new oath, unless shown his earlier answers given under the old. Richard Mansell of Gloucester had presented to the lower House a petition in support of the deprived ministers. To the fury of Archbishop Bancroft, this petition, or an expanded argument in support of it, was soon circulating in printed form. It is possible that the text was written with Fuller’s help; it argued that ‘all the late proceedings against the ministers, in repressing of their ministry, and in depriving them of their free holds, is contrary to the laws of this kingdom, both to Charta Magna and to many statute^'.^' This was probably sufficient on its own to get the presenter arrested (along with an associate, Edward Omer, a London merchant), though the extant law reports do not reveal the exact charges against him.73 When, in April 1607, Fuller obtained a writ of habeas corpus for his delivery to the bar of the court of king’s bench, Mansell had lain in the Clink for nine months. Some time during the spring term (22 April - 18 May) he and Omer were brought before ChiefJustice Popham, sitting with Fenner, Williams, Yelverton and Tanfield. Fuller and Henry Finch, also of Gray’s Inn, appeared for the prisoners. Popham was supportive of the commissioners’ claims, but the other judges were to varying degrees hostile. Failing to agree, the bench sought advice from other judges (and perhaps from the law officers), notably on the implications of Omer’s being a layman. An argument against Mansell was that he was a clerk who had taken oaths of canonical obedience; it may be that the commissioners were persuaded to abandon their pursuit of Omer; at any rate his name does not appear in accounts of the new hearing, convened during Trinity term.74

Ladd, meanwhile, had been held in the White Lion, Southwark, since 29 March; on 30 April, Fuller was able to secure a habeas corpus, and the prisoner and his counsel appeared at the bar on 6 May.75 Here, Fuller’s main argument was that the court of

71 ( c o n f i n d ) 8th (the date of the report of it); Usher, The Rise and Fall ofHigh Commission (1913) gives a shorter account of the case; idem., ‘Nicholas Fuller, a Forgotten Exponent’ adds nothing of substance. The exact sequence of events is hard to reconstiuct, not least because of the extremely challenging scripts of some key law reports; the following two paragraphs must be regarded as provisional.

72 Rexisfrum Vagum .f Anthony Harison (Norfolk Records Society, Publications, XXXII, Norwich, 1963), pp. 94, 1Y5; The Argument of Nicholas FuNer in the Case of Thomas h d d and Richard Manseli (1607), p. 1; no reports of the Ladd case have been found; Certuine Arguments, pp. 10-11.

73 Judge Williams’s reluctance to allow the commissioners jurisdiction in the case rested partly on the involvement in the charges of a mixture of spiritual and temporal causes; this was to cause difficulties for the judges in Fuller’s own case; still, it is hard to agree with Usher (Reconstruction, p. 144) that Bancroft‘s inclusion of such a mixture in indictments was an ‘accident’: it exerted jurisdictional claims but also provided a fallback position should they be rejected.

74 There are at least five MS reports (all 1607) of the Mansell case, but only one covers both sessions. This is in H.L.S., MS 118c, R25. For the first Fession (Easter term) there are two different accounts: 1) ‘Manse11 and Onon’: H.L.S., MS 1058, R37, case 69, copy in MS 105d, R11, fE 86-7; and 2) ‘Mansell and Omer’: MS 118c, R25, ff. 187-92, copy in Y[ale] L[aw] S[chool], Yale University, New Haven, Conn. (Hale MSS), G R 29.18, R121, case 43. For the second (Trinity) session, one account appears in Y.L.S., GR 29.15, R l l 6 , unnumbered; a second is Y.L.S., G R 29.18, R121, case 32.

75 ‘An exact copy of the record of Nicholas Fuller’s case’, B.L., Lansdowne MS 1172, fE 97r-l06v, slightly variant copy in B.L., Hargrave MS 33, fX 117-31; for simplicity’s sake only the former will be cited here. The text is in three parts: 1) a Latin memorandum dated Thursday, fourth week of Trinity

Nicholas Fuller 193

high commission had no powers ofarrest under statute. But it is clear that he described their court and its procedures, as ‘popish and antichristian’ and attacked the tendency of diocesan officers, when ‘granted an ynch’ to ‘take an ell’. O n 13 June, perhaps on the occasion of the reconvened hearing of Mansell’s case, Fuller implied that many lay church officials were corrupt, a charge which (in the matter of fees) was widely believed.” It is hard to identify the ‘offensive words’ for which he was later forced to apologise. But it is clear that the commissioners found offensive any questioning of their powers. Their indictment alleged that he had accused them of imprisoning men ‘without showing them any cause’ and of keeping them there ‘as long as they list’ without bail, adding heated (and much lengthier) analysis of his supposed motives: ‘you uttered these untruths to make both themselves and their proceedings odious, thereby rather satisfying your schismatical and factious humour’ etc. The indictment argued that Fuller’s opposition to the powers of the high commission revealed his opposition to the king’s authority in religion, and therefore his ‘rebellious and lewd heart towards his majesty’; his subversive political ideas dominate the indictment.” Fuller’s Argument claimed that when he appeared before them and ‘did except against the commissioners, as not competent judges, in their own cause, of him and of his argument, made against them at the king’s bench bar, they threatened to set A500 fine on him and to imprison him. And when (finding their proceeding by oath ex o$lcio to vary from the common laws, which he had long time practised) he said to them, it seemed to him that he was in a new world, or other common wealth: thereupon they threatened to imprison him, if he spake one word more to the disgrace of the Commission.’

All in all, it may be doubted if Fuller’s manners during his representations on behalf of Mansell and Ladd were the real cause of his own incar~eration.’~ The ecclesiastical

75 (contirzned) (presumably on the basis of the ecclesiastical calendar, for this would be 2 July - after the legal term ended), probably made by one of Bancroft’s men apparently briefed by a common lawyer. This included background to the Ladd case, personal information about Fuller and a conspectus of his speech in that case; it formed the chief basis for 2) the high commission’s indictment in English; 3) the consultation on the case (Latin) sent to the commissioners by the conference ofjudges and law officers.

“The indlctment (B.L., Lansdowne MS 1172, tfl 101r-105r) refers to speeches of Fuller on 6 May and 13 June. But the memorandum of the Ladd case (ibid., ff. 97v-101r) mentions only 30 April and 6 May; we know Mansell won a second hearing dunng Tnnity term (5-24 June): probably this was on 13 June. This would explain how the two cases became connected: they were linked by the decision of the commissioners to combine charges, based on Fuller’s speeches in each case, into a single indictment against him (dated 2 July, just before parliament rose). And hence the title of The Argument ofMaster Nicholas Fullev in the Case 14 Thomas Ladd and Richard Mansell (1607). Further citations of this work are from the 1641 edition, though the main body of text and its pagination are identical.

”B.L., Lansdowne MS 1172, f. 97, quoted in Usher, Reconstruction, 11, 140-1; B.L., Lansdowne MS 1172, ff. 1021, 104v; Fuller statement c. Feb. 1608, in Cecil MS (the marquess ofSalisbury, Hatfield House, Hatfield, Herts.) 124/59 (H.M.C., Salisbury, XIX, 349).

78 77wArgument ofNicholas Fuller, pp. 22-3; Usher, Reconstruction, 11, 142. Noy reported the case briefly, noting that Fuller ‘said and objected many things contrary to the proceedings of the High Commission; for which he was convented before them and committed’ ( T h e English Reports, LXXIV, 1091; Noy, Reports a n d Cases, p. 127). For Usher, Fuller deserved his fate: he had introduced ‘objectionable puritan measures’, made ‘highly offensive statements’, posed arguments which ‘smelled to heaven’, was guilty of ‘reprehensible conduct’ and ‘was treated with much leniency’ (Reconstruction, 11, 137, 151, 140, 152); yet h a pamphlet was also ‘among the first enunciations of that great theory which HakewiU was to use against impositions in 1610’ (ihid. , p. 152); even stranger, Fuller was ‘one of the earliest of those great men who freed Parliament

194 Stephen Wr&ht

judges had reason to react violently to the argument of their prisoners’ counsel.79 For though it is unclear whether a prohbition was issued in respect of Ladd, this was certainly the outcome when the judges reconvened to reconsider Mansell’s case, probably on 13 June.” Fuller was also threatening the commission on a second front. In December 1606, he had drawn a bill ‘to direct some proceeding in causes and courts ecclesiastical’ which sought sharply to curtail, though not completely to abolish, the power of the court to require defendants to take the oath ex o$lcio. O n 20 June 1607, he charged in the House that ‘the commission at every renewing increaseth and encroacheth more power and more, is such as by the Law is not warrantable nor can be granted’; the Speaker ‘interrupted him, contrary as some conceived, to order’. On 25 June he presented a bill to excise from the Act of Supremacy key words which allowed its powers to be defined ‘According to the tenor and effect of the said Letters patents.’** Such proposals, if passed and enforced, would have emasculated the high commission. The Commons were surely aware of his personal embroilment with that body. Yet on 26 June 1607, the day after Fuller presented his bill, when M.P.s had to appoint a chairman of the committee of the whole house, ‘The voice, as I and others conceived, was for Mr Fuller to take the Chair, and some on Mr Attorney [Sir Henry Hobart]. Mr Fuller modestly refusing . . . Mr Attorney offered himself to it.’ The Commons’ high opinion was not shared by Bancroft and the commissioners. In the courts, and in parliament, Fuller’s actions threatened them. The high commission could not defend its powers in theory whilst failing to assert them in practice. Whilst the House sat, Fuller could hope to claim privilege against arrest. But, soon after the prorogation on 4 July, he was arraigned by the high commission, which ‘pitifully trounced’ him, as it was reported on 27 August: their opponent found himself its prisoner for the second time.*’

He was quick to appeal to the common law judges. Fenner and Croke held that his case lay within their own jurisdiction and issued an inhibition against the commissioners pursuing it; the court of king’s bench was in recess, but would hear the case when it reconvened in September. Fuller may also have won early release

’* (continued) from the yoke of the Crown’! (Usher, ‘Nicholas Fuller, a Forgotten Exponent’, p. 760). Thus, Usher drives us to the conclusion that great freedoms were won thanks to men and behaviour objectionable, reprehensible and offensive to those in charge. The Argument ofNicholas Fuller itself sets out a summary of five arguments, purportedly given by Fuller at these hearings. Only the fourth and fifth were specifically directed against the high commission, and chiefly seek to show that the powers it exercised were not grounded in statute.

79 M. Maguire, ‘Attack ofthe Common Lawyers on the Oath Ex Ofticio’, in Essays in History and Politirul Theory, in Honour o f Charles Howurd Mcllwain, ed. C. Wittke (Cambridge, Mass., 1936), pp. 199-229, says in Parson Mansfield’s case ‘King’s Bench held that a clergyman could be examined on his oath for preaching contrary to the prayer book‘; there is little doubt that this is the case of Richard Manrell, which eventually resumed in king’s bench in 1610: H.L.S., MS 2069 (Phillips MS 7039), R73, 52: ‘Parson Manfield for subscribing against the book of common prayer’.

‘“Justice Tanfield was outspoken in his rejection of the claims of the commissioners; but the arguments of Henry Finch, more moderately phrased and reliant more on legal technicalities than Fuller’s frontal assault, were apparently influential in the decision: Reports ‘Mansell and Omer’: H.L.S., MS 1 1 8 ~ . R25, fE 187-92, copy Y.L.S. (Hale MSS), G R 29.18, R121, case 43.

‘I H.M.C., House o f l o r d s , X I , 108-9; CJ I, 387; Bowyer, pp. 345, 349. *’ Bowyer, p. 351; Carleton to Chamberlain, Curleton, ed. Lee, pp, 96-8 at 98

Nicholar Fuller 195

from prisong3 and this may have provoked the commissioners to seek a writ of consultation during the vacation, which was ref~sed.’~ The government, law o6cers and judges were acutely aware of the high significance of the case. In late September, a conference was held between the barons of the exchequer and the judges of the king’s bench and common pleas, at which, it seems, Fuller attended and re-presented his argument, perhaps in more moderate terms.’5 This gathering issued a ‘consultation’, in which the high commission was held not competent to judge in issues relating to slander, contempt and scandal - broad areas traditionally claimed as within the jurisdiction of the common law-but which did enable it to proceed against Fuller on charges of heresy and schism.86 The printed report records an extraordinary promise: ‘if they convict Fuller of heresy, schism, or erroneous opinion, etc that if he recant the said heresy, schism or erroneous opinion, that he shall never be punished by ecclesiastical law’: according to Coke, then, Fuller had been offered a means to save both the high commission’s face and his own skin. (This confirms that the judgment had to do with political horse-trading as well as legal precedent, and fatally undermines any idea that Coke’s report of it was invented posthumously by an enthusiast for constitutional principle.) He declined the offer. Between 20 and 22 October, he was convicted, fined 4200, and sentenced to imprisonment during plea~ure.~’ But through his counsel, Fuller now secured a second writ of habeas corpus, which compelled his gaoler to appear, and to state the authority by which he had been detained. The disputed ground had therefore shifted from the competence of high commission to judge Fuller, to its power to imprison him as a result of that judgment.

In practice, Fuller’s argument, had it been accepted, would have meant the sharp curtailment of the commission’s powers even in those areas where its jurisdiction

83 Usher (Recorrstrurtion, 11, 142) says he was confined at the White Lion, Southwark for the summer, but this may rest on a confusion with Ladd (B.L., MS Lansdowne 1172, f 98v). Fuller himself claiined in early 1608 (Cecil MS 124159; H.M.C., Salisbury, XIX, 349) to have been imprisoned for only nine weeks, (not nine months as Usher has it), and that this was in the Fleet. Fuller would surely not have sought to rnininike his own sufferings at the bishop’s hands; it was about nine weeks from his sentencing by king’s bench c. 21 Oct. to the year’s end.

R4 Requests for consultations out of term were deemed impermissible by the conference: Edward Coke, 7% TweFh Part ofthe Reports o/Sir Edward Coke (1677), pp. 41-5. *’ Cecil MS 124159 (H.M.C., Salisbury, XIX, 349): Fuller states that he set out ‘to argue the same cause

for the same persons before all the judges (for that it was so ordered by the judges of King’s Bench)’. “ Usher (Reconstruction, 11, 141), corrected Gardiner (Himry , 11, 37) by establishing that the writ of

consultation was issued in respect not of Ladd or Mansell but of Fuller himself, and showing that such a writ was not a ‘modified prohibition’ but an order setting aside a prohibition. For Usher (Reconstruction, 11, 144-5) the judges’ attitude, as reported by Coke, was self-contradictory, since in strict law, the writ should have done no more than annul the Fenner1Croke prohibition. He seems to have regarded Coke with contempt, unjustifiably pretending ( ibid. , p. 144) that Coke, TweBfth Report, pp. 41-5 was a description of the writ rather than a report of the case, and discounting it as incoherent and worthless. Coke’s account is perfectly intelligible. He reports the key provision of the consultation: if anyone, includiug Fuller, ‘slander the authority or power ofthe High Cotnmissioners, this is to be punished before the judges ofthe common law’. Coke himself was keen to invest the decision with declaratory significance. But it was so taken, justifiably or not, even by the commissioners: the historical result of the consultation was to prevent them from judging the slander alleged in Fuller’s case, and this was Gardiner’s point. ” Coke, Twe& Report, p. 44; fine later given to John Patten, clerk of the king’s closet (C.S.P.D.,

1603-8, p. 382; T.N.A., SP 38/8, 14 Nov.: the docquet notes that this was imposed for ‘causes ecclesiastical’).

196 Stephen Wright

had just been confirmed by the common law judges. In theory, it depended on the proposition that the king could only delegate powers whose limits had been set out by statute law: the letters patent, under which the high commission operated, issued and amended under Elizabeth and renewed in 1605, gave the commission powers beyond those set out in the Act of Supremacy. Fuller’s position therefore called into question the very existence of the high commission as defined under the prerogative. Ministers became alarmed. Hobart, to whom Fuller had politely deferred in June, was drafted in to argue against him on behalf of the high commission. On 24 November, Fuller was brought to king’s bench by his keeper ‘where the assembly had never been greater’. He began by attempting to argue that he had not said the words set out in the commissioners’ return, which also omitted to explain that he had been speaking on behalf ofa client. But Hobart urged the judges to mark ‘with what decorum and punctual respect the high commission had proceeded’, which was in line with the restrictions set out in the consultation. In framing this, the judges had taken ‘great care to diminish no part of that eminent authority which the Commission received from his supreme power to whom they were both subordinate’. The court followed his advice, accepting that having conceded jurisdiction in the determination of guilt, they had no right to pronounce on sentence: they remanded Fuller to prison. Imme&ately, he secured a second hearing, set for 26 November, on the grounds that he had lacked counsel at the first, and the arguments were re-rehearsed.

King James had by now become convinced that the common lawyers were determined to undermine his leading ecclesiastical servants. He had been active in pressing the case, having early visited Lambeth ‘to hearten the Archbishop in his conflict with Nick. Fuller’.88 O n 19 October he wrote to the 1st earl of Salisbury urging that ‘the ecclesiastical commission may not be suffered to sink besides the evil deserts of that villain [i.e. Fuller], for this far dare I prophesy unto you, that whensoever the ecclesiastical dignity together with the King’s government thereof shall be turned in contempt and begin to vanish in this kingdom, the kings hereof shall not long prosper in their government and the monarchy shall fall to ruin’.89 James kept the case under continuous review, repeatedly chivvying his ministers about it and urging expedition.” O n 22 November Bancroft was reported to have threatened the king’s bench justices with imprisonment ‘if they would not grant a consultation’. It is not known whether it was these threats, or Salisbury’s patience in face of the king’s importunity, or a combination of the two, which led the justices to their decisions of 24 and 26 November. O n hearing the news, reported Sir Thomas Lake, James thanked them through gritted teeth: ‘the judges had done well for themselves as they had for him’: for had they ‘maintained their habeas corpus, he would have committed

H.M.C., Salisbury, XIX, 463-4 (Cecil MS 1241137): Salisbury to Lake: 24(?) Nov. 1607; Carleton, ed. Lee, pp. 99-100: Carleton to Chamberlain, 16 Sept. 1607.

89 H.M.C., Salirbury, XIX, 285-6: 19 Oct. 1607, quoted in Usher, Reconstrucfion. 11, 143. 9” H.M.C., Salisbury, XIX, 275, 283-4, 285-6, 338, 342, 343, 344-6, 347, 351-3, 355: letters to,

from and reports of, Roger Wilbraham, Thomas Lake, Lord Salisbury.

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them’!’’ He congratulated Salisbury on his ‘discreet handling of the Judges in Fuller’s matter’ and Bancroft also sent thanks.92

Fuller, returned to the Fleet prison at pleasure, was placed under heavy and conflicting pressures. Now in his sixty-fifth year, a prosperous lawyer and member of parliament, with valuable properties, he had pursued his case with such consistency that the authorities were forced to the view that defending the powers of the court of high commission depended on his committal. We cannot know how parliament might have reacted had it reconvened during these events. Probably many M.P.s, though supporting Fuller’s stand on principle, would have felt that his immoderate language had played into Bancroft’s hands, though for one at least, Fuller had been ‘committed for seditious and disgraceful speeches against the authority of the clergy’.93 Now, however, he vacillated, first signing a document to which James referred on 3 December as ‘a humble submission’ and to which Lake also alluded,94 then withdrawing it at the behest of his wife Sarah and his friends, a reversal attributed by the gossip Chamberlain to his ‘weakness and want ofjudgment’. The authorities were unimpressed, and proceeded to ‘tender him such a submission as he cannot digest’, as it was reported on 30 De~ember .~ ’ But on 5 January 1608, having ‘kissed the rod and made his submission modo et foma’, ‘Mr Fuller came forth of the Fleet on Monday, very frolic, and so joyful that he would not lose so much time from home as to go about but would needs cross the river on foot’ [the Thames was frozen at the time].96

The matter might have ended there. But a month earlier, in December 1607, in an effort to continue what they considered a battle of principle, friends of Fuller (perhaps against his advice), had already issued a pamphlet explaining the significance of the case, printed on the secret press of William Jones.97 Later, at star chamber, Richard

91 H.M.C., Salisbury, XIX, 463-4: Salisbury to Lake: 24(?) Nov. 1607; report of Bancroft‘s threat (T.N.A., SP 14/28/94) cited in Usher, Reconstrucrion, pp. 146-711; it is inconceivable that he should so threaten the judges without the king’s explicit sanction; the king’s own threat is reported in H.M.C., Salisbury, XIX, 343-4: Lake to Salisbury, 27 Nov.

92 H.M.C., Salisbury, XIX, 351-3: KingJames to Salisbury, 1 Dec., and ibid., pp. 347-8: king to Lake, 30 Nov. Salisbury reported to the king (H.M.C., Salisbury, XIX, 344-6). that tbejudges acknowledged in their ruling that ‘they ought to respect the dignity’ of ‘the Bishops or pnnciple Commissioners’ who did not intend ‘any encroachment to the blemish of the temporal dignity’: but ‘such inferior Commissioners as might err often out of ignorance . . . to the disgrace of their authority’ could expect prohibitions from the secular courts.

lJ3 ‘The Journal of Sir Roger Wilbraham’, ed. H. Scott, Camden Miscellany, X (Caindcn SOC., 3rd ser., IV, 1902), 96.

94 H.M.C., Salisbury, XIX, 355: King James to Salisbury 3 Dec. 1607; ibid., 360: Lake to Salisbury, 5 Drc. 1607. ’’ Letters $John Chamberiain, ed. M. McClure (2 vols, Philadelphia, 1939), I , 248-9.

96 C.S.P.D. 1603-8, p. 394; Chamberlain, ed. McClure, I, 252-4 (8 Jan. 1608); The Works ufFrancis Bacon, ed. C. Spedding (14 vols, 1857-74), XI, 51; unfortunately for this credibility of this charming seasonal vignette, both the Fleet prison and Fuller’s chambers were on the north Fide of the Thames. Had he been moved to the Clink, or did he have a house on the south side? ’’ Arpnent OfNicholas Fuller ‘caused to be printed by hini the said William Jones in the year of our Lord

1607’ (T.N.A., STAC 8/11/18, endorsed 4 July 1609); it contained an anonymous preface ‘The pnnter to the reader’ (title page verso -omitted from the 1641 edition) claiming that the work had been sent to ‘a gentleman ofgood worth and worship on this side the sea%’. Bacon suspected that Yelverton was involved, and resolved in suiiinier 1608 ‘to fynd that owt silently’ (Bucon, ed. Spedding, XI, 95).

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Mansell testified that he had visited Fuller in the Fleet prison. Fuller confirmed that whilst prisoner there, perhaps in late October, he had allowed a copy of his argument ‘out of his hands four or five days’, and this enabled the group to publish it without his permission. Nevertheless, in his apology, in which he might have disowned the pamphlet, Fuller explicitly owned it: the text was a reworking of his original submission: ‘with greater study and care than before . . . he did to help his weak memory and to avoid all words of offence write the same argument at large . . . with a full intent only to utter it openly at the bar, and not to print it’. In prison, and unable to plead for his client, he had released the text for the information of another counsellor assigned to the case. Mansell, the recipient, had been freed, so it is likely that the client concerned was Ladd. It seems inconceivable that Fuller was unaware of the publishing enterprise, though as Hobart ruefully noted, ‘I find nothing proof against Mr Fuller, neither out of himself, nor any other.’ The seizure of The Argument of Nicholas Fuller, almost wrecked the organisation: several members were arrested.98

Fundamental to Fuller’s stand was the proposition that ‘the laws of England are the high inheritance of the realm, by which both King and subjects are directed’. In early 1608, however, he himself was accused of law-breaking - by having encouraged the illegal publication of his own arguments. Re-arrested soon after his release, before 26 January Fuller was ‘close prisoner with the Dean of Pauls’.’’ The facts emerging about the illegal press and his known connexions with its printers and distributors confronted the champion of law with a dilemma. His argument that ‘without laws there would neither be King nor inheritance in England’ had been published on an underground press; yet further, the laws ‘by long continuance of time and good indeavour of many wise men, are so fitted to the people, and this people to them, as it doth make a sweet harmony in the government’.’’’ Should he now seek to argue that some laws were so oppressive as to be worthy only of contempt, and could be broken with impunity? Short of an attempt to enlist the support of the Commons, recantation was the only alternative, a heavy price, he may have thought, for the resumption of his liberty and the restoration of ‘sweet harmony’ between government and subject. With parliament in recess, Fuller chose to pay it. He had ‘in his speech at the bar’ used ‘some offensive words for which he was very sorry immediately after they were spoken’. Whilst not specifically repudiating any of the views urged in his Argument, he protested that he so far deplored the pamphlet’s publication that he had written to Bancroft urging its suppression! Fuller also recorded that his attacks upon the commissioners’ authority had been deemed schismatic, and had therefore earned him the sentence of excommunication.’”’

98 T.N.A., STAC 8/19/7, fE lr-v, 6r-v; Cecil MS 124/59 (H.M.C., Salisbury, XIX, 349), endorsed ‘Fuller: in punishment for speaking of certain words’; H.M.C., Salisbury, XIX, 437 (MS 124/81): Hobart to Salisbury: c. October 1607; Jones was able to conceal his press for some time, as he notes in Infomations and a Protestation (1608) cited, Curtis, ‘William Jones’, pp. 38-9.

99 Illustrations o f British History, ed. Edmund Lodge (3 vols, 1838), 111, 221-6: Rowland White to Shrewsbury, quoted at p. 225.

’On Argument of Nicholas Fuller, p. 13: Fuller’s most Cokeian formulation, perhaps reflecting anxiety to please the judges.

lo’ Cecil MS 124/59 (H.M.C., Salisbury, XIX, 349); this recalls his stay in the Fleet, his release on 5 January following the second submission and also his re-confinement with the dean of St Paul’s, and was therefore written after those events.

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On 7 February, the dean was instructed that Fuller was to be taken by a messenger to the attorney general, who in turn was ‘by direction from their Lordships to send him to his own house’ -evidently after his case was heard. For Fuller certainly gave evidence before star chamber on that date; the other witnesses also testified on the 27th and 28th.Io2 The outcome is unknown; on 4 March the king was reported to have been ‘satisfied, only marvels that it should fall out so clear for Mr Fuller, considering the information had been given him; and yet speaks not passionately of him’.lo3 A minute of the privy council dated 10 April 1608 states that Fuller was now ‘licensed to practice at the bar until his cause be heard in star chamber but to remain still restrained’. Apparently he was to be confined to Gray’s Inn, either because the February case was continuing or a new charge had been laid. Further action in star chamber was initiated against William Jones on 4 July 1609, but Fuller did not feature in it.’”4

6. Fuller’s AEument, the Common Law and the Prerogative

Bancroft identified his puritan opponents with sedition. This carried weight with many, but also helped convince a few of its obverse: that the high commission was tyrannical, depending as it did upon unconstitutional powers which could only be challenged politically. Willingly or not, Fuller was a spokesman for this viewpoint. Citing John Foxe’s Acts and Monuments and legal precedent, he argued that the power of bishops to imprison had been ‘procured by the popish prelates in the time of darkness’ to the ‘great dislike’ of the Commons. Together with the oath ex officio,

this power affronted both the law of the land and ‘the rule of equity and common justice’.’05 And according to this rule, ‘the laws of England are the high inheritance of the realm, by which both the King and the subjects are drected’.’”‘ The law ‘admeasureth the King’s prerogative so as it doth not extend to hurt the inheritance of the subject’. It followed that ‘such grants, charters, and commissions, as tend to charge the body, lands, or goods of the subjects, otherwise than according to the due course of the laws of the realm are not lawful, or of force, unless the same charters and

“” B.L., Add. MS 11402, f. 135r; T.N.A., STAC 8/19/7, ff. 6v-r, 8r, 9r. ’03 O n 28 Feb., Lake reported the lung’s hope that two cases in Star Chamber, of a Brian Gunter and

a ‘Mr Fuller’, should not delay consideration by the court of the problem of depopulation. This is clearly a reference to Nicholas Fuller, whose case was heard in star chamber on that day, and not, as the index says, to a Mr Fuller, auditor of Wiltshire (H.M.C., Salisbury, XX, 87); in this context the overwhelming likelihood is that the king’s further remarks reported on 4 March also concerned Nicholas, not the auditor as the index has it (H.M.C., Salisbury, XX, 98).

‘“4B.L., Add. MS 11402, f. 137v; T.N.A., STAC8/11/18.

lo6 Fuller (Argument OfNicholas Fuller, p. 3) prints this and other maxims as his own. But he had quoted similar words from Bracton in the Darcy-Allen case: ‘the law IS the most high inhentance of the Realm by which the King and all his subjects are governed and that ifthe law were not, there would be nelther King nor inheritance’; this appears in the Yearbook, La Premiere part des ans du R o y Henry le V1 (1679), Paschal, 19 Henry VI, p. 63, and was delivered in 1441 by John Fray, chiefbaron of the exchequer 1436-48, for whom see E. Foss, Thejudges ofErqylund (9 vols, 1848-64), IV, 316-18, and J.S. Roskell, L. Clark and C. Rawcliffe, The House ofCommons 1386-1421 (4 vols, Stroud, 1992), 111, 123-6.

1(15 Ar gumenr qfNicholas Fuller, pp. 3, 9, 11.

200 Stephen Wright

commissions, do receive life and strength from some Act ofParliament’.’”’ And, ‘That the parliament consisting of these three estates was the armamentary or storehouse wherein these things were safely reposed and preserved, as well the laws of the land as the rights and proprieties of the subjects to their lands and goods.’“’’

Fuller called on other sources of authority. It has rightly been pointed out that neither common lawyers nor puritans were necessarily hostile to natural law thinking. Fuller, who stood in the common space of these overlapping circles, illustrates the point. His argument in the Darcy case of 1602 contained statements which reveal the subversive potential of religion: ‘arts and skill of manual occupations rise not from the King but from the labour and industry of men, and by the gifts of God to them, tending to the good of the commonwealth and the King, the head thereof, and yet more baldly ‘kings are made for commonwealths and not commonwealths for kings’. But it would be quite wrong to think that Fuller bent religion to the service of politics. Indeed the opposite could be drawn from his statement that: ‘it is as unlawful to prohibit a man not to live by the labour of his own trade . . . as to prohibit him not to live by labour. Which, if it were by an Act of Parliament, it were a void act. For if an Act of Parliament against the law of God directly is void . . . much more letters patents against the laws of God are void.’’09 This should not be treated as a definitive statement in favour of theological or judicial review. But it is clear that for this leading parliamentarian, statute was not necessarily supreme. And neither was antiquity. Fuller’s Argument and the other pronouncements which have come down to us, were the work of a common lawyer, for whom attachment to precedent was part of the job-description. But antiquity was merely a means to the defence of those fundamental principles which he took to be derived from God’s creation. He unearthed precedents in order to underpin both the liberty of the subject and the principles of a godly magistracy. The final appeal was not to law immemorial, but to concepts of good and evil, order and disorder, justice and injustice. For Fuller and others found both in the gospels, in the martyrology of Foxe, and in the authorities and precedents absorbed in the course of their interminable legal apprenticeship, the rudiments of an understanding in which the historical struggle between these antitheses unfolded.

This assertion that there were politicized attitudes to history in Jacobean England may seem surprising. It has been remarked that until the days of John Speed there existed a regrettable tendency amongst historical writers to tell the story of ‘one damned king after another’, and that historiographical debate was non-existent. Would-be career historians in this period needed to seek court or aristocratic patronage, and it seems likely that the piper had some influence on the tunes

lo’ Argument ofNicholas Fuller, p. 3; Foster, PPIO, 11, 152: 23 June; this maxim was not original either: Fuller traced it to Plowden Commentaries; Coke cited it in 1628 (L.J., 111, 762); it seems likely that such maxims were in general circulation amongst common lawyers. Thus for Sir Wikam Lee, the king’s prerogative ‘cannot prejudice the property of the subject’, or be ‘extended to the injury of any subject’ or ‘grant power to any person to act contrary to common or statute law’ (cited in M. Judson, 7’he Crisis o f the Constitution (1964), p. 38).

Parliamentary Debates in 1610, ed. S.R. Gardiner (Camden SOC., 1st ser., LXXXI, 1862), p. 37: 22 May.

‘09 Donald, Elizabethan Monopolies, pp. 242-3, 244; H.L.S., MS 105a, f. 5v.

Nicholas Fullev 201

selected.’10 But, then as now, non-historians also had ideas about the history and traditions of their country, ideas which arose, in the case of lawyers, chiefly from their training, and knowledge of statutes and precedents. Despite the survival of mountainous deposits of legal paper, our access to the outlook of lawyers is more restricted than might be thought. Law reports typically confine themselves to the pronouncements of the judges and omit the arguments of counsel. We cannot assume the former to be representative of the latter, any more than we can assume that Coke was representative of the judges. Coke, it is now accepted, was atypical in his attachment to immemorialism as a touchstone of the law.”’ Since many ancient practices deeply offended the puritan common lawyers, they were often suspicious of the argument from antiquity. In his days as a radical parliamentarian, Henry Finch approvingly quoted a sneer against it: ‘Thieves on Shooter’s Hill used to take purses there; ergo it was lawful.’li2 Thus, Fuller did not hesitate to criticize the behaviour of earlier kings or the former leaders of his own church. He saw English lollards as protestant pioneers, and their tormentors, the catholic bishops, as ancestors of the ecclesiastical commissioners of his own day. The right of bishops to imprison had been ‘procured by the prelates’ in 1401, ‘to suppress the gospel, which then began to spring or revive’, and ‘the Prelates had not long before procured an other act against the Lollards’. In this version of history the bishops appear as the agents of an alien oppression, and both Edward 111 and Henry IV, at least, are represented as accommodating to the pressures of two opposed forces. The Commons appear as patriots, true to the traditions of English liberty, ready, if not always eager, to grasp the truth of the gospel - and even, apparently, as an elect nation. For Fuller also suggested that Darcy’s patent was against ‘the laws of God . . . because that now we are the house of God and people of God, the Jews being cut off to whom the laws were given, and we being engrafted in their stead’: judgments in such cases must reflect an awareness of this privilege and responsibility.’ l3

One source of these ideas was the alliance between puritans and common lawyers, forged in the time that the powers of the high commission were confirmed and

“(’D.R. Woolf, The Idea o j f f i s f o r y in Early Stuart En&nd (1990), pp. 70, 141-2; but views which connected with a more radical approach were certainly extant when puritanism had been fashionable in high circles: see B.L., Add. MS 48101, f. 303 (questions directed to Robert Beale by Burleigh dated 2 Nov. 1594 concerning the encroachments of popes upon the jurisdiction of English and other monarchs). P. Collinson (Elizabethan Essays (1994), p. 82) draws attention to Beale’s answer (B.L., Add. MS 48101, K 304-26), ‘of prodigious legal, historical and political learning’, and Burleigh’s letter of hearty thanks noting that ‘few or non others could so amply answer same’, ihid., f. 328.

‘‘I J.G.A. Pocock, Tne Ancient Constitution and the Feudal Law (1986), pp. 30-7, 43-5, 264; G. Burgess, i71e Politics of the Ancient Constitution 1603-42 (1992), pp. 20-3; Coke’s peculiarity might pcrhaps be thought to stem from his long career at the margins of government and justice, mediating conflicts in which royal authority and the liberty of subjeccs lodged rival claims to juridical precedence, claims (as in speeches of James I, or in Fuller’s A y u m m t ) sometimes grounded partly upon rival historiographical assertions. Such matters could be resolved if the fundamentals of the law had originated during times out of mind, before the reign of Richard I . Coke’s skills did not impress Thorne, who remarked that ‘sentences beginning “For it is an ancient maxim of the common law”, followed by one of Coke’s spurious Latin maxiins’, and his references to ‘doubts and diversities in the books well resolved’, both tended to betoken new law (S.E. Thorne, Essays in Enflish Legal History (1985), p. 227). ”’ Quoted in Neale, Parliaments, 11, 273.

Thp Acqument .f Nicholas Fuller, pp. 7-8; Nay, Reports and Cases, quoted in Donald, Elizabethan Monopolies, p. 232; H.L.S., MS 105a, f. 3v.

202 Stephen Wright

extended, and its focus shfted from Roman catholic recusancy to puritan dissent. Patrick Collinson believes of Robert Beale that in the mid 1580s 'it is possible to trace in voluminous detail a process of progressive radicalisation as he engaged in noisy wrangles with Whitgifi face to face in his gallery at Lambeth, on paper, in parlia~nent'."~ For such men as Beale the ecclesiastical jurisdiction and its procedures were renmants of the jurisdiction of Rome, a threat to the subject and an affront to the sovereign. He was therefore able to denounce excommunication and absolution as 'relics of the encroachments of that arch-traitor Thomas Becket against the crown and dignity of the king'. (James Morrice too wrote scathingly of Becket, and of Wolsey, as agents of a foreign and popish jurisdiction.)"5 O n this view, it was the bishops, not the puritans, who stood opposed to the queen's prerogative, for the unity of the nation was identified with royal justice, as embodied in the secular courts, and especially the common law courts, and with the estates in parliament.

It seems likely that other common lawyers shared these views. But even the ideas of such influential men as Beale, clerk of the privy council, and Morrice, clerk of the court of wards, usually remained in manuscript, or were published unlicensed.'16 Any success in reaching a wider public was met with official responses such as that of Richard Cosin, dean of the court of arches and himself a high commi~sioner."~ Of course, his master, Richard Bancroft, was not an Elizabethan Zhdanov; the censors did not aim to impose a monolithic orthodoxy but to prevent the discussion of ideas held to be politically dangerous. Despite all Whig historiography, the common law judges were reluctant champions of what later seemed to be essential liberties. In the 1590s, the judges of king's bench and common pleas sometimes granted prohibitions against ecclesiastical courts, but their general standpoint was conservative. Powerfd forces were gradually undermining the pre-reformation powers of the church courts; when common lawyers and their clients pressed for jurisdiction in such matters as tithes, they were cutting with this grain.'18 In response, the judges were generally protective of ecclesiastical jurisdiction, as essential to stability. This applies in full measure to Coke, despite his celebrated later encounters with James I."' He, and they, acquiesced in marginal encroachments upon the ecclesiastical jurisdiction, but confirmed not only that ecclesiastical courts could exercise jurisdiction in the chief

Collinson, Elizabethan Essays, p. 80; and see M.A.R. Graves: 'The Common Lawyers and the Privy Council's Parliamentary Men of Business, 1584-1601', ante, VIII (1989), 189-215.

'15B.L., Add. MS 48064, f. 112v; u. Morrice], A Treatise ofOathes (1593), pp. 40-1. R. Cosin, A n Apologie OJ andfor sundrie proceedings by lttrirdiction ecclesiastical (1593). Its Epistle to the

Reader attacks two works directed primarily against the oath ex o@cio, 'The Notegatherer' [Beale?], and Momce's Treatise of Oathes (1593) printed at Middleburg probably by Richard Schilders. The fact that Morrice could not hope to get a licence to print his views did not prevent Cosin from attacking (ibid., Bv) a work 'so precious, that copies thereof (though desired) were made very rare', as if this were the author's disgraceful and deliberate ploy to restrict free debate! See also Beale's 'The unlawful Practises of Prelates against godly ministers', A Parte ofa Register (Middleburg, 1593), pp. 280-303.

' I 7 For the apparatus of the Stationers' Company, its publishing monopoly, and the role ofthe bishop see e.g. Usher, Reconstruction, I , 119-20; f. Siebert, Freedom ofthe Press in England (Urbana, 1952). pp. 138-43; Blagden, Stationers, pp. 70-2, 92.

'I* C. Hill, Economic Problems o f t h e Church. From Archbishop LV7tigiJ to the Long Parliament (1956), e.g. pp. 90-5, 135-45; the historicity of such changes was first explored by Selden, on which see Woolf, The Idea oftlistory, ch. 7.

Coke also endorsed a high view of the royal prerogative in the matter of the post nati (see above).

Nicholar Fuller 203

areas claimed; but that in such areas, their procedures were legal.’20 In the important test case of Robert Cawdry (1591), deprived by the high commission for his refusal to conduct services according to the book of common prayer, judgment was given (against the submissions of, amongst others, Fuller and Morrice) for the commissioners, confirming their right to act in the case according to their own procedures.121

Opponents who sought to curb the powers of ecclesiastical courts and commissions, to question the limits of the royal prerogative, even indirectly, or to advocate reform of church government, faced suppression of their views. Morrice will serve as an example. He accepted that the crown had prerogatives not strictly prescribed or policed by the law, but stressed the extent to which the law supplied general guidance, outlining his approach before the commons in 1593:

Behold with us the sovereign authority of one, an absolute prince, great in majesty, ruling and reigning, yet guided by principles and precepts of reason, which we term the law. No Spartan king or Venetian duke, but free from account and coercion of any either equal or superior; yet firmly bound to the common wealth by the faithful oath of a Christian prince, bearing alone the sharp sword of justice and correction, yet tempered with mercy and compassion; requiring tax and tribute of the people yet not causeless nor without common assent. W e again the subjects of this kingdom are born and brought up in due obedience, but far from servitude and bondage, subject to lawful authority and commandment, but freed from licentious will and tyranny, enjoying by limits of law and justice our lives, lands, goods and liberties in great peace and security,lZ2 this our happy and blessed estate if we may continue the same daily purchased in a great part not many years past by our ancestors, yea with an effusion of their blood and loss of their lives.

The following day Momce was summoned by the council and spent March and April under house arrest.123

There are many instances in which even the detailed statements of Beale and Morrice, and those of Fuller, coincide closely, but could not have been made by someone Like Coke. AIso in the passage quoted above Morrice referred to the Act of Supremacy of 1559 which originally provided for the appointment of commissioners as ‘only a restoring act to the crown of the ancient jurisdiction over the state

12(’ Maguire, ‘Attack of the Common Lawyers’, pp. 199-229. Coninion law judges were uncomfortable with some high commission procedures, notably the practlce of requiring the oath before informing the accused of the charges against him, and sometimes ordered the release of defendants in ruch cayer. They often ruled that it was not legal to require the oath ex oficio at all in criminal offencer tryable in the coninion law courts, and 2s tiiiie passed they seem to have sought to restrict its impositlon further, to matrimonial or testamentary causes.

’” Coke, Tweljh Rcporf, pp. 1-41 (The English Repurfs, LXXVII. 1-46); B.L., Lansdowne MS 68, no. 45 (f. 104).

lZ2 Quoted up to this point in Judson, Crisis, pp. 61-2, where Morrice is said to paint a ‘picture of the happy balance prevailing between king and Subject in England; but the continuation given recalls a less happy time, when protestant subjects suffered under Mary; Judson omits to mention that the speech led next day to his imprisonment.

Proceedrnp, ed. Hartley, 111, 35; Morrice’s chief offence war in pressing the bill against the high commission, and this issue was probably also the trigger for the arrest of Beale: see Neale, Parlianients, 11, 267-77, and Collinson, Elizabethan E s q s , p. 81.

204 Stephes Wtight

ecclesiastical’ and Fuller argued in almost identical words. In the Cartwright case, Beale argued that since Henry VIII (in the Act for the Submission of the Clergy) had abrogated all ecclesiastical law which conflicted with the common laws of England, and since the commission for canon law revision had never formulated its work in statute, ‘there is as yet no certain ecclesiastical law for the government of the church of this realm’.124 For Beale and Morrice, as for Fuller, the oath ex ojicio and the right of bishops to imprison was a popish and alien import. For Beale, the oath was ‘never exercised in England’ until 1401 (2 Hen. IV, c. 15) and then ‘enforced as law without the consent of the commons’, through ‘the pride and malice of Thomas Arundel, Archbishop of Canterbury and his successors’. Morrice referred to this as ‘the bloody and broyling law’, ‘made upon the sinister suggestion of the clergy’; for Fuller, it ‘was procured by the prelates, without the assent of the commons’, and he pointed to the subsequent petition of the Commons against imprisonment without due process: the statute was revoked (in sharp contrast with the manner of its passage) by ‘the whole estate assembled in Parliament’, in early 1534, as not ‘agreeing with the rule of right and equity’. (Interestingly, he says the Commons’ failure to assent in 1401 ‘appeareth by the records of the Parliament remaining in the Tower’, suggesting that he had consulted them.)125 These passages reflect a willingness to counterpose the Commons’ defence of the liberties of those it represented, with the monarch’s failure so to do. They contain also a strong sense of the ebb and flow of history, as godly men, led by the Commons, do battle with popes and proud prelates, with monarchs taking one side or the other.

It is clear that most of the ideas pressed by Fuller were not invented by him. It will be recalled that Morrice and Fuller were both engaged both in the Cawdry case and, with Beale, in the defence of Thomas Cartwright; Morrice’s Treatise of Oathes, of course, was not an academic treatise but originated, along with his parliamentary bill, out of the battle to force Cartwright and the other ministers to g v e evidence under the oath ex o$lcio.’26 It was in the legal and religious training and experience of such men that their views took shape. The puritan lawyers saw the apparatus of proctors, commissaries, apparitors and commissioners, both as limbs of antichrist and as agents of the oppression of the subject. Thus for Morrice, ‘these extorted oaths and examinations (for all I can learn or understand) are unholy and unjust, invented and brought in first for none other purpose but to maintain a Romish hierarchy’, but they were also ‘derogatory to the laws and liberties of England; the common order of public justice requiring in all judcial actions an accusor, an accused and a judge’.’27

In late Elizabethan and early Jacobean England, then, the ‘common law mind’ sometimes shared its thoughts with the puritan conscience. In the tradition of Beale, Morrice, Finch and Fuller, godliness and good law travelled arm in arm. And because

124 Quoted in Collinson, Elizabethan Puritan Movement, pp. 420-1. lZ5 Beale in B.L., Add. MS 48064, f. l l l r ; Morrice, Treatise of Oathes, p. 33; me Argument ufNicholas

Fuller, p. 7. 126 ‘Touching the proceeding against the ministers’, B.L., Add. MS 48064, ff. 134-43; and see Collinson,

Elizabefhan Puritan Movement, p. 421; the Leathersellers’ Company, wardens’ accounts (ACC/1/2, f. 54). just above the entry for Fuiler’s payment in 1593, record 20s. for ‘Mr Moryce the Queene’s attorney in the Court of Wards . . . envyted to our dinner to our hall’.

12’ Proceedinp, ed. Hanley, 111, 30-44.

Nicholas Fuller 205

this was so, the long days of England’s subordination to the Roman antichrist could not be trawled for precedents without subjecting them to critical scrutiny and rejecting many. Critical elements are obviously important in Coke, for whom English law was the embodiment of custom and practice, only as refined by the reason and experience of judge-made law. But in the writings and extant speeches of Fuller, there is a complete absence of the static notions often said to define the common law mind. For him, law does not become ever more perfect with the passing of the ages. It is an arena for contest, in which the forces of good are sometimes beaten. The harmony of past times does not stretch back uninterruptedly into a golden age of Angevin kings or Saxon liberties, but is often undermined by evil forces; the political harmony of the present appears in his work only as a conventional affirmation of national unity. Like Momce, he was willing to challenge authorities for the pursuit of ideals not yet won. Fuller elaborated no resistance theory and issued no call to rebellion. But it is clear he stood for a political struggle for the principles of the common law, of individual conscience, and of godly administration.

Bancroft’s attack on the puritans helped enmesh the continuing contest for the church with controversy over constitutional principle. He appeared in his court as policeman, plaintif, accuser, judge and executioner. This combination of roles, and especially those of plaintiff and judge, worried the common law judges, as their decision in Bonham’s famous case signaled.’28 By it, the right of the college of physicians to judge and imprison in its own cause was denied, despite its having been confirmed by two statutes. Bancroft’s offensive set the tone for John Cowell’s Interpreter, which sought to define the royal prerogative in such a way as to occupy ground of which neither Tudor monarchs nor their parliaments had claimed exclusive possession. Fuller pressed in the opposite direction. He thought that the ‘king by a non obstante may dispense with statute law, but not with the common law nor alter the same’; ‘any grant or commission from the King doth tend to charge the body, lands or goods of the subjects unlawfully, the Judges will redress the same’.129 Great faith was here manifested in judicial independence, but the author also helped make sure that the proposition would be tested. For in his own case, the consultation issued by the judges and barons of exchequer, in acting to restrict the purview of the commissioners, was taken to be of declaratory significance. Coke and other common lawjudges followed its lead in cases such as Roper’s: as R.G. Usher gloomily remarked, they rested ‘upon such excellent grounds as Fuller suggested’; soon, ‘the Commission was fairly overwhelmed by prohibitions’, and a large number were granted from 1608-10.’30

12’ Martin, advocate for the high conimission against Burrowes ff al (1616) urged that the commission had the right to impose the oath on schismatics without showing them the charges: this was ‘against the policy of the state’, for the accused would ‘grow bold and factious, and spoil all in the end’. Coke retotted, ‘Here you have taken upon you three persons, a statesman, ajudge, and an advocate’, icily complimenting his efforts in the third role, but casting doubt on his fitness for the other two (3 Bulstrode, 53, in ‘fir English Reports, L X X X I , 45).

la’ Argument uJNicholas Fuller, p. 18, quoted in Somnierville, Politics, p. 178; Argumerat of Nicholas Firller,

13” Usher, Rise and Fall, pp. 180, 183-4, 203; Sommerville notes (Politics, p. 213) that tension between the judges and the high commission eased after 1610 partly because under Abbot the court acted lesc aggressively.

pp. 14-15.

206 Stephen Wright

7 . A Leader ofthe Opposition?

By 1610, Fuller was an elder statesman in the House and although his influence may have been somewhat weakened by the bruising encounters with high commission and star chamber, he certainly continued to play a very active and prominent role in the Commons, especially in defence of its ‘liberties’. He had been a member (and sometimes reporter) of the (variously named) committees of privilege in the second and third sessions of the parliament, and continued as such in the fourth and fifth.’31 His positions on commerce and taxation were unchanged. In principle, he continued to stand for the abolition of wardship, which would both remove a burden from many subjects and agree better with the laws of God. The king, for his part, would get a yearly income from rent ‘without charging the poorer sort who have no lands’.

Highly critical of the customs farmers, Fuller proposed to annul their patents ‘which are very profitable to the farmers’ and ‘alleged the EOng’s advice in his book to his son, that he should be careful not to impoverish his subjects’.132 The central argument was simple: the king ‘cannot lawfully lay any impositions on the subjects goods still remaining within the realm without the consent in parliament’; for, as James himself had argued, ‘The riches of the subjects is the best treasure of the King’ but such riches could be secured for the subject only by a guarantee of ‘an absolute property in his goods by the rule of law’. It has convincingly been argued that this defence of the subject’s absolute legal right to his property, and therefore the illegality of non-parliamentary taxation, was both novel and highly dubious. It expressed great unease at what were seen as increasingly onerous impositions and was reflected in the Commons’ petition on temporal grievances of 7 July. The ‘absolute’ defence may appear as a mirror of James’s own absolute claim, that justice and the liberties of both his subjects and of his subjects’ representative assembly, stemmed from him

There were occasions now when Fuller seems to have spoken and acted more cautiously, commenting on Sir Francis Bacon’s moderate speech of 19 May 1610 that there was ‘some good substance in it’. But he continued to warn against the abuse of judicial power, introducing two bills, to reform ecclesiastical commissions and to outlaw the oath ex oficio. Each passed the Commons on 21 May and 20 June respectively, and both were rejected by the Lords.134 In his speech before parliament on 21 March 1610, James stated that kings in mature, or ‘settled’, kingdoms ought to rule within the law, a sentiment which won great acclaim. But whose law was referred to? Could the king be held to this obligation? Exactly two months later, James made it clear to the houses that God’s law, of which he was the fount, was the

done.133

1 3 ’ Keeler ‘The Committee for Privileges’, pp. 147-69, who believes it probable that he served as

13’ Parliamentary Debates 1610, ed. Gardiner, p. 11; James had referred to Basilikon Dorm in his speech

133 Foster, PP10, 11, 159, 157, 257; C. Holmes, ‘Parliament, Liberty and Taxation’, in Parliament and

134 Notestein, Commons, pp. 261, 320; C J . I, 409, 429-30, 441; H.M.C., Houseoflords, XI, 102-3.

chairman in 1614.

of 21 May (Foster, PPIO, I , 46).

Liberty, ed. Hexter, pp. 138-40.

Nicholas Fuller 207

framework for his action, and that his conscience alone stood as a bulwark against tyranny.13j

Fuller returned to constitutional issues on 3 November 1610; again he urged that customs duties be brought within a statutory framework. His opposition earlier in the year to the council in the marches of Wales has already been noted.136 The high commission, he asserted once more, exceeded the authority vested in it by statute, and routinely breached in its practices the fundamental law. Parliament should not trust verbal promises that agencies unaccountable to it would not abuse their powers in the future. Here, as Notestein suggests, ‘He was admitting that distrust of his majesty which many felt but dared not men t i~n .”~’ In a speech on 23 June 1610 he had restated the central Argument of Nicholas Fuller in almost identical words: ‘the laws of England are the most high inheritance of the land, whereby both king and subjects are directed and guided’. Customs were ‘not at the king’s pleasure to be increased without the consent of the subjects’; he concluded that ‘impositions and customs laid on subjects’ goods and merchandise . . . was always done by several acts of parliament’ until Queen Mary had transgressed ‘the laws of the realm and liberty of the subjects and not to be made a precedent’.”* The Commons Journal records the impact: not bored restiveness, nor roars of agreement, nor a chorus of disapproval, but ‘a great silence’ greeted him, which may recall the great silence which had greeted Morrice’s speech 17 years earlier. Many agreed that the liberties of which Fuller spoke had been eroded; but they may also have felt that to seek to reclaim them now risked a dangerous struggle. The famous Apology of 1604, though not a document of the whole House, conveys something of its continuingly defensive, complaining mood: ‘the prerogatives of princes may easily and do daily grow. The privileges of subjects are for the most part a t an everlasting stand.”39

It is not possible to discuss here the attitudes of others to these issues, or the extent to which there existed a shared attachment to something called the ancient constitution. But it may be that though English parliamentarians talked about such matters in the same language, they placed very different degrees of emphasis on the rights of the king and the Iiberties of the subject, despite Bacon’s attempts to prove there was no conflict between them. Here is just one example. At the conference of Lords and Commons of 12 April 1606, Chamberlain reported that Chief Justice Popham, had ‘overruled all on the prerogative side’ arguing ‘that the prerogative was not subject to law, but that i t was a transcendant, beyond the reach of parliament’ -a very ‘absolutist’ formulation indeed. O n the 15th the conference reconvened, and Henry Montague reports Popham as arguing very differently, that ‘Acts of Parliament

135 Sominerville, Pulifics, pp. 133-4; James argued on 21 May 1610 that other kings, of Denmark, Sweden, etc, ‘have power to lay impositions’, that ‘no act of Parliament deludes the king of the right to impose’, that ‘You ought not to question what the king may do’. ‘If a king be resolute to be a tyrant, all you can do will not hinder him. ?ou may pray to God that h e niay be good and thank God if he be’, threatening that ‘the more wayward you shall be I shall be the more unwilling to call you to parliament’ (Foster, PPIO, 11, 102-5); even Chamberlain was dinconcerted: ‘we are not like to leave to our xxcewxs that freedom we received from our forefathers’, Churnbeduin, ed. McClure, I, 301.

136 Foster, PP10, 11, 396; Skeel, The Council in the Marches ($’Wales, pp. 133-40. 13’ Notestein, Commons, pp. 404-5; speech given in Foster, PP10, 11, 3Y6. 13’ Foster, PP10, 11, 152-65 3t 152, 164. 139 c ,J., I, 443; Constitutioml Dorlrmenfs o f f h e R+p . f ~ u w i e s I, ed. J. R. Tanner (1961), p. 222

208 Stephen Wright

may expound, and limit the prerogative, but not take it away absolutely without recompense’. This suggests that the king had few powers, and what remained of them was saleable at auction. Did a hostile response to the high view of the prerogative pressed on the 12th lead to a softer position being urged at the second conference? It is impossible to say. Sir Roger Wilbraham reported that Popham had actually argued on 12th that ‘all the king’s prerogatives are allowed on behalf of the law for the public good’, a third, intermediate, p~sition!’~’ It seems from this that either the lord chief justice was not sure what he thought about the prerogative, or his hearers wrote down what they wanted to hear (or what they thought their audiences wanted to hear). In any case, the results corresponded to three quite contrary positions. From this, the notion that everyone understood and agreed the basic constitutional principles on which England was governed does not emerge with much credit. It seems clear that there were members trying to push the front-line between subjects’ liberties and monarchs’ rights in one direction, and others pushing in another, and that almost everyone claimed to be trying to keep those boundaries in the same place, evoking precedents for their own interpretation of what that place was.

Fuller offered no summary theoretical statement comparable with that of Morrice, cited earlier. His own contributions, like the interventions of William Hakewill, Thomas Hedley and James Whitelocke in 1610, were concerned not so much with setting out theories, but with trying, within a consensus which accepted the need for a powerful monarchy, towards setting the limits of that power more clearly and more narrowly. It is clear that Fuller’s very consistency in seeking to curtail the prerogative powers of the church, admiralty and regional conciliar courts, led him further towards permanent opposition than the vast majority. Not surprisingly his uncompromising stance did not command universal appr0va1.l~~ But it should not be concluded on this basis that he was isolated. Even in June 1607, after news of his intemperate attack on the high commission must have become known in the Commons, the majority preferred him to the attorney general to chair the committee of the whole House. In Robert Bower’s diary, he features as or more largely (on committees, as a reporter from committees and fiom joint conferences with the Lords) as any other M.P., including Hobart, Sandys and Montague, and no one was more active than Fuller in 1614.’42

140 c J., I, 297-8; Bowyer p. 134 and n., citing Chamberlain from T.N.A., SP14/20/36; ‘The Journal of Sir Roger Wilbraham’, ed. Scott, pp. 82-6 at 83.

There exists (in many versions) a scatological verse in which he appears as ‘Fuller, fuller of devocion than eloquence’; see e.g., B.L., MSS Harleian 5191, ff. 17-18, Harleian 4931, f. 10 and Stowe 354, f. 43; the author(s) must have been an M.P., but has not been identified: L. Osbom, The Life Letters and Writing3 ofJDhn Hosbyns (1937), p. 300. A version is printed in Musarum Deliciae. O r the Muses Recreation, ed. Sir J[ohn] M[ennes] and J[ames] S[mith] (1655 (E1672/1) and 1656 (E1649/2), pp. 65-71), where the lines on Fuller omit his name. Bowyer refers to the incident that occasioned this work; see Bowyer, p. 214 and n. I am grateful to Dr Andrew Thrush for drawing it to my attention.

14’ He made at least 34 speeches in that short parliament; named at the outset to the committees on privileges, for search of precedents, and for statutes, he sat on other committees, notably that for the preparation of the conference with the Lords on impositions; he reported from five committees; he introduced bills on sabbath observance, pluralism and non-residency, abuses of excommunication and powers of chancery, he reintroduced six bills chiefly directed against the ecclesiastical powers; overall, based on these measures, his recorded level of activity in this parliament was higher than that of any other M.P. including Sir Edwin Sandys, Thomas Digges, Edward Duncombe, Sir Henry Montague or Sir

Nicholas Fuller 209

The end of the October-December 1610 session casts further doubt on any attempt to see Fuller as part of a Jacobean lunatic fringe. O n 23 November 1610, as dissolution neared, he returned to the attack against the ecclesiastical commissioners, who acted ‘as if they would turn their chair into a throne, an abuse contrary to the laws of this kingdom, and (I verily think), the law of God’. He reviewed the efforts of the Commons (in which he had been active) to reform ecclesiastical commissions in consonance with the common law, to restore deprived ministers, to end non- residency, to enforce the sabbath, and to reform wardship, customs and purveyance: ‘there were never wiser gentlemen in the House and never less done’. Their efforts had failed. But ‘if all those well intended laws by me spoken of, had passed for law by joint assent of the other house and his Majesty’ it would have made England the happiest in the world. With these acidic comments on king and Lords, Fuller came close to blaming them openly for the condition of the commonwealth and church.’43 Lake wrote that whilst the king ‘hath now had patience with this assembly these seven years’, this was now exhausted, and that he thought some of the speeches were treasonable or ‘at least so scandalous (as his majesty is informed), that he thinketh he shall have just ground to call the speakers to account for them’. After the dissolution, Chancellor Ellesmere wrote that some members had not genuinely desired remedy for their grievances, but had sought ‘to quarrel and impeach his Majesty’s prerogative’ in respect of proclamations, impositions, the high commission and the councils in the marches of Wales and in the north and even ‘touching the courts of Star Chamber, the courts of equity, which they termed courts of arbitrary discretion . . . the courts of admiralty and all eccelsiastical courts’. (This is the earliest report I have found of principled objections to the court of star chamber.) Fuller is also known to have attacked the council in the marches of Wales on 3 November, and his opposition to the high commission was known to all. His preoccupations during the sitting follow the agenda of Ellesmere’s complaints. 144

Ellesmere also remarked of the malcontents that the ‘irregular and insolent course of their proceeding was hotly and eagerly pursued in the last session’. He thought they had:

kept secret and privy conventicles and conferences, wherein they devised and set down special plots, for the carrying of business in the house, according to their own humour and drift, and that in the weightiest and most important causes, as namely touching the great and royal contract which was then intended and in handling, and for the staying of granting any subsidies and fifteenths. To which purpose it was devised that six of them who had great countenance and did bear great sway in the house should be prepared to speak at large against the granting of any subsidy at all.

‘42 (continued) George More: Jansson, Proreedinys in Parliament (1614), pp. 393, 33-5, 151, 97, 101, 109,

lJ3 The 1607 bill on the high commission was reintroduced and passed the Commons in March 1610

144 Foster, PPIO, 11, 396; T.N.A., SP 14/58/35: Lake to Salisbury, 25 Nov. 1610.

89, n.6, 11 5, 388, 396, 127.

but was rejected in the Lords, Foster, PPIO, 11, 405-10; H.M.C., House of Lords, XI, 108-9, 125-6.

210 Stephen Wright

Fuller was one of these; he had spoken against granting supply and was summoned, along with Sir Edward Lewknor, Thomas Wentworth and John Hoskyns, for interview by the earl of Salisbury, who presumably informed them of the king’s displea~ure.’~~

Can we count this as evidence of the existence of a ‘parliamentary opposition’? Clearly the government’s influence in the House was rooted in more than the cogency of official ideas. Many years ago D.H. Wilson compiled a list of the place-holders of the 1604-10 parliament, together with the dependants of the chief officers of state and others, on whose support he thought the government could probably count. Some were certainly not afraid to vote against ministerial proposals, but it is clear that ministers were well aware that (despite the existence of many moderates and pragmatists) there were some who could usually be relied on to be friendly to ministerial aims, and a group of their ‘opposites’ from whom a critical response could be expected. Sir Francis Bacon had his own ideas on the determinants of the house’s intellectual complexion. About 1613, he wrote of his hopes for a new parliament that ‘The opposite party heretofore is now dissolved and broken. Yelverton is won; Sans [i.e. Sandys] is fallen off, Crew and Hide stand to be Sergeants, Nevel hath his hopes; Martin hath money in his purse; Brock is dead.’ He sent these thoughts to the king, with a note on two other members: ‘Dudley Digges and Holles are yours.’ But what of Fuller, Whitelocke, Hedley and the rest? Bacon was not confident that the recalcitrants had given up, and found it prudent to plan ‘what course may be taken for the drawing of that combined body of the house . . . which made the popular party last Parliament, for the severing of them, intimidating of them, or holding them in hopes or the like, they may be dissolved, weakened or W O ~ ’ . ~ ~ ~

8. Fuller’s Last Years and his Historical Signijcance

Bacon warned against attempts to pack the House at the elections of 1614, and intervention was rejected. Fuller’s own re-election as a member for London seems to have involved conflict and controversy. Chamberlain reported ‘much bustling’ over parliamentary seats there. Without demur, the City chose Sir Thomas Low, but refused ‘to admit Master Recorder [Henry Montague], alledging only that he is the King’s sergeant. Master Fuller is their first burgess’, a choice, as Chamberlain rightly remarked, which was ‘as much subject to interpretation as the refusal of the other’.’47 Fuller chaired the committee of investigation into the election at Stockbridge, which found that Sir Thomas Parry, chancellor of the duchy of Lancaster and one of only four privy councillors in the lower House, had interfered corruptly. He was expelled

145 B.L., Egerton MS 2599, printed in Foster, PP10, I, 280; H.M.C., Rutland, I, 425; Parliamentary Debates in 1610, ed. Gardiner, p. 143, citing T.N.A., SP 14/58/35: Lake to Salisbury 25 Nov. 1610.

14‘ D. Willson, The Privy Councillors in the House qj’ Commons, 1604-29 (Oxford, 1940); Bacon, ed. Spedding, XI, 365,367,370.

14’ C.S.P.D., 1611-18, p. 225; Chamberlain, ed. McClure, 11, 515-16: Chamberlain to Carleton, 3 Mar. 1614; Marsham wrote on 4 March that Montague was rejected ‘because he is the King’s sergeant’, but Brownlowe (12 March) listed Montaye as one of the chosen burgesses, H.M.C., Downshire, IV, 325, 333.

Nicholas Fuller 21 1

as a result. Generally, however, it was less through open abuse than by patronage and indirect influence that the government sought to influence the House. Fuller was sceptical of reform proposals tabled on 12 April 1614 by Sir Henry Neville, by which bills of ‘grace and favour’ were to be granted by the king in return for supply.’48 The proposals were associated with efforts to build a bloc of M.P.s who would comply with royal wishes in these matters. Fuller had heard that ‘one great Man [i.e. the 1st earl of Northampton] had, by letters, procured sixty voices’ in the Commons. When Bishop Neile of London accused the House of sedition in questioning the right of the king to make impositions there were violent attacks on him in the Commons. O n 27 May, Fuller charged that he discriminated against ministers who ‘preached twice in one day’, and suppressed lectures; he had heard that Neile ‘hath great access to the King and that he is most unworthy of it’. Thomas Moir notes ‘a continuity of leadership in the opposition. Sir Edwin Sandys, Nicholas Fuller, Sir Roger Owen, and others took a leading part in the parliament of 1604’ and indeed, Fuller’s career as one of the leading parliamentarians had extended back even into the reign of Eli~abeth.’~’ With the Addled Parliament it came to a close.

Now in his 70s, Fuller still kept up a busy schedule - he remained active in parish affairs, auditing the churchwardens accounts from April 1616 until his death, and his name also appears as one of five signatories of the almshouse accounts for 1613-14. Even after 1614 he attended many of the meetings of the Gray’s Inn benchers, the last occasion being on 19 November 1619.*” Nicholas Fuller died on 23 February 1620 at Chamberhouse and was buried at Thatcham church on 2 March. Soon after, on 5 July, his eldest son Sir Nicholas was also buried at Thatcham.’” In his will Fuller left many properties, notably in Berkshire at Speen, Creenham and Newbury as well as in Essex, Wanvickshire and Hampshire; there were inessuages at Whitecross Street and Smithfield, and St Ciles Cripplegate, London; most of the estate passed to his wife Sarah and his eldest son Sir Nicholas; there was provision for the poor a t Newbury and bequests to puritan preachers, such as Stephen Egerton, John Dod, Humphrey Fenn and others.’52

It seems appropriate to assess his wider legacy. Nicholas Fuller was undoubtedly a champion of parliamentary and common law liberties against prerogative power. But it may be objected that the liberties here engaged for were of a highly selective nature. Fuller’s religion was of an austere and aggressive stamp, forged in the military, patriotic and ideological struggle against counter-reformation Spain. He stood for the zealous harassment of recusants and the expulsion of jesuits, and would extend religious liberty only as far as protestant nonconformist allies in that struggle. Yet we should not assume that commitment to godliness necessarily outweighed attachment to liberty. In 1601, citing Magna Carta on the liberties of freemen, he had indignantly

148 T.L. Moir, T h e Addled Parliameiit cf 1614 (1958), p. 92. ‘49 Ibid., pp. 98, 126; CJ., I, 499: 27 May 1614; Moir, Addled Parliamnt, p. 159. ‘5”Barfield, Thatcham, I , 298; ibid., Appendix, 111, 110; Demion Book, ed. Fletcher, pp. 236-7. ”’ Barfield, Thatcham, I , 300; Wood’s assertion (Athenae Oxonierisiz (4 vols, 1813-20), 11, 327) that

Fuller died in prison has often been corrected, notably by Gardiner, History, 11, 41. Barfield, Thatcham, 11, 259-63: 19 Feb. 1620.

212 Stephen Wright

asked whether one monopolist, Darcy, had ‘a patent to restrain cards, another to restrain tennis play, another hawking and hunting etc. Is this not to make freemen bondmen?’ And he defends the right of the subject to ‘moderate recreation’. Such sentiments may partly have reflected the interests of his client, but Fuller’s words are hardly those of the fanatic.’53

There is no doubt that Fuller was concerned with the interests of propertied men, such as the merchants who stood to gain most from the agitation, in which he figured prominently, to open up the Spanish trade. But it was the small independent traders who suffered most from such royal policies as purveyance. W e should also recall Fuller’s engagement on several fronts against patentees, who enjoyed their privileges chiefly at the expense of the lesser men. He argued against Darcy that the victims of the patentees greed ‘will rob and steal and become thieves and traitors. For extremity breeds nothing but thefts.’ God had ordained the order of the society ‘whereby we may have the mutual help of each other and all governed in due order by the wardens and governors of the same society and fellowship’. Part of his complaint against government policy on commerce and the union was that lack of state support threatened the ability of merchants to finance soldiers and sailors in sufficient numbers without inflicting on them greater miseries which their Scottish counterparts were used to: ‘it is a miserable state where the rich men are exceeding rich and the poor man exceeding poor’. It was on his initiative that action was taken in 1599 under the Statute of Charitable Uses to enforce the will of a gentleman, John Winchcombe of Bucklebury, that his son should apply the rents of his property in Newbury for the benefit of the Thatcham p 0 0 r . l ~ ~

Opposition to non-parliamentary taxation certainly reflected the narrow self- interest of gentlemen and merchants, laymen of property, men whom Fuller represented in the Commons. But there was much more to it than that. He knew that impositions by prerogative were often felt deeply by far lesser men, and this must be set alongside his outspoken defence of the liberty to labour, set out in the case of Darcy, his remarks on the importance ofjuries as bulwarks against arbitrary power, and his championing of the victims of the purveyors. These were liberties of many citizens rather than the privileges of a few wealthy men. The privileges or ‘liberties’ of parliament, in such matters as the role of the speaker or control of elections, were essential to its role as an effective representative chamber. Fuller’s attachment to them surely reflected his desire to defend the liberties of those many subjects he thought the institution represented. At the outset of his speech on the Union on 14 February 1607 he stressed that: ‘we came not hither by chance but by God’s providence. And the people that by that election have laid their trust upon us do look for very much at our hands.’ His Argument is, from first to last, a thoroughgoing defence of the liberties of the subject-as-citizen, protected by common-law rights and statute law; it does not speak for the privileges of a few holders of private franchises.

lS3 Noy, Kepons and Cases, quoted in Faith Thompson, M a p a Carfa. Its Role in the Makin2 .f the

154Quoted in Donald, Elizabethan Monopolies, p. 242; B.L., Harleian MS 6842, A: 1-2; Barfield, English Constitution (1948), p. 230.

“hatcham, I , 133-4, 222-3, 199.

Nicholas Fuller 213

If he was not in any sense a ‘leader of the opposition’ in parliament, then it is hard to see how we can describe Fuller’s politics.155 Certainly, there existed no formally organized parliamentary party, prepared to fight for the principles so pugnaciously set out in his Argument. For him, far more than for others, the claims of the liberties of the subject almost always outweighed those of centralizing efficiency or ministerial convenience, especially when these involved the accretion of prelatical or prerogative power. Furiously and often, Fuller protested his loyalty, to concepts which still bound together the propertied men of England; to the common law, to parliament itself and to the crown, as pillars of a peculiarly English system of law and liberties. Of course, the king and his ministers claimed to stand for the very same traditions, but for Fuller, ministers, and even kings, appeared often to pay only lip-service to these ideas; their practical efforts often seemed to be guided by quite other considerations. They knew his standpoint very well, and did not shrink from marking him out as a radical and dangerous opponent. This suggests what has already been conceded: that Fuller was not a ‘typical’ member for whom the claims of loyalty to the king’s government and distaste for individual policies were finely balanced. His ‘leadership’ was not consensual. O n this basis, some might be tempted to dismiss him as an unrepresentative and isolated fanatic, a shouter at deaf ears. But the record will not sustain this view. Despite his record of persistent opposition, culminating in the extraordinary conflict with Archbishop Bancroft and King James, the government felt unable to silence him for long.

It was the very strength of Fuller’s political views, and his outspokenness and consistency in their advocacy, which laid the basis for his considerable reputation and following in the House. Others declined to travel too far or too often with him. But most respected and to a greater or lesser degree identified with his standpoint, which was defined not only or mainly in theory, but in his record of opposition in practice. Fuller lost or drew almost all the main battles in which he was engaged. In 1624, statutes against monopolies and the penal laws attempted, with varying success, to curb prerogative power, and its delegation to private patentees, in economic life. When Fuller’s pamphlet was printed legally for the first time in 1641, John Lilburne had already read the unlicensed version.’56 The abolition of institutions against which he had campaigned, wardship, purveyance, and prerogative jurisdictions such as that of the high commission, followed soon afterwards. It is for his practical and theoretical contributions to the struggle for these important reforms that he deserves to be remembered.

’” J. Sommerville, ‘Parliament, Privilege and the Liberties of the Subject’, in Parliament, ed. Hexter, 56-7; B.L., Harleian MS 8642, f 1. Spedding (Bacon, X. 30711) suggested that Fuller ‘seems to have been recognised as leader o f the opposition, in so far as that office can be said to have been recognlsed in those days’; the doubt here concerns not Fuller’s politics or pre-eminence, but his title to what Speddiiig thought of as necessarily an ‘office’.

l5‘J. Lilburne, Work* ofthe Beast (l638), p. 13.