Front Page Titles (by Subject) Q. If High Commissioners Have Power to Imprison. - Selected Writings of Sir Edward Coke, vol. I
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Q. If High Commissioners Have Power to Imprison. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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Q. If High Commissioners Have Power to Imprison.
(1607) Hilary Term, 4 James I Conference in the Serjeants Inn.
First Published in the Reports, volume 12, page 19.
Ed.: In this note, Coke records a debate among the Judges and senior members of the bar over whether the church court, the High Commission, has the power to imprison. The Commission is limited only to hearing ecclesiastical offenses and only a limited power of incarceration.
Note, Mich. 4 Jac. post prandium,1 there was moved a question amongst the Judges and Serjeants at Serjeants Inne, if the high Commissioners in Ecclesiasticall causes, may by force of their Commission imprison any man or no?
First of all it was resolved, by all, that before the Statute of 1 Eliz. cap. 1. the King might have granted a Commission to hear and determine Ecclesiasticall causes; but then, notwithstanding any clause in their Commission, the Commissioners ought to proceed according to the Ecclesiasticall Law allowed within this Realm, for he cannot alter neither his temporal nor his Ecclesiasticall Laws within this Realm by his Grant or Commission; Vide Caudrey’s Case, Fifth Report. [And they could not in any case have punished any delinquent by fine or imprisonment unless they had authority so to do by Act of Parliament.]2 Then all the question rests upon the Act of 1 Eliz. which as to this purpose rests upon three branches.
1. Such Commissioners have power to exercise, use, occupy, execute all Jurisdiction Spirituall and Ecclesiasticall.
2. Such Commissioners by force of Letters Patents have power, to visit, reform, &c. all Heresies, &c. which by any manner of Spirituall or Ecclesiasticall power, &c. can, or lawfully may be reformed, &c. so that these branches limit the jurisdiction, and what offences shall be within the Jurisdiction of such Commissioners, by force of Letters Patent of the King; and this is all, and only such offences may lawfully be reformed by the Ecclesiasticall Law.
3. The third branch is, that such Commissioners, after such Commission delivered to them so authorised, shall have power and Lawful authority by | virtue of this act, and the said Letters Patent, to exercise, use, and execute all the premises according to the tenor and effect of the said Letters Patent. This branch gives them power to execute their Commission. But it was objected, that this branch doth not give the Queen power, by her Letters Patent, to alter the proceedings of the Ecclesiasticall Law, or gave to the Queen absolute power by her Letters Patent to prescribe what manner of proceedings, or punishment concerning the Lands, Goods, or bodies of the Subject; and this appears by the title of the Act restoring to the Crown the ancient Jurisdiction, so that the intent was to make restitution, and not any innovation in the proceeding or punishment: And it was observed that this last branch gave to them power to execute all the Premisses; according to the tenor and effect of the said letters patent, so that these words, “So authorised” in the said Letters Patents, hath relation only to the authority of the Letters Patent, before specified; Viz. such as gave to them power to visit, reform, redress, order, correct, and amend all Errors, Heresies, Scismes, Abuses, Contempts, and Enormities whatsoever; which, by any manner of Spirituall or Ecclesiasticall power, can or may lawfully be reformed, &c. These are the tenor and effect of the Letters Patent before remembered; and if any other construction shall be made;
1. It shall be against the express letters, scilicet,3 said Letters Patent.
2. It shall be full of great peril and inconvenience, for then not only imprisonment of body, but confiscation of lands, goods, &c. And some corporall punishment may be imposed for Heresie, Scisme, Incontinence, &c. Also power may be given to them to burn any man for Heresie; which would be against the Common Law of the Land.
[Vide a notable Case adjudged in this point, Hill. 42 El. fol. 389. as to imprisonment, Smith’s Case, for at the last Consultation was granted: And at last by the better opinion, as to things committed to them by Commission, they may put fine and imprisonment.]4
[1. ][Ed.: after dinner,]
[2. ][Ed.: Bracketed text omitted from 1656 edition.]
[3. ][Ed.: that is to say,]
[4. ][Ed.: The provenance of this paragraph, from the 1656 edition, is uncertain.]