Page:American Historical Review, Volume 12.djvu/765

Nicholas Fuller 755 to have lawyers on his behalf. After a good deal of hesitation, the judges granted the request, expressing at length their surprise at his continued intractability and their hopes that when he returned he would make a complete submission instead of aggravating his offence by new obstinacy. The judges' apprehension of further insolence from Fuller was shared by James and Salisbury, both of whom believed that too much consideration had already been shown so graceless a rogue. To them, the writs of habeas corpus to Ladd and Mansel, the prohi- bition and consultation, and then the habeas corpus to Fuller himself, seemed to point either to an opinion among the judges that the High Commission was illegal, or to the judges' desire to expand their jurisdiction regardless alike of the character of the cause they espoused or of the effects of their acts upon the safety of the state. When, therefore, after refusing to maintain three such writs in succession, the judges allowed Fuller a new hearing and gave him, contrary to all common-law precedent, the privilege of counsel, James was frankly puzzled. He strongly suspected them of some purpose of their own which boded ill to him and his prerogative and which they would stick at nothing to accomplish. For the nonce, however, he found scant confirmation of his fears. The second hearing took place on Thursday, November 26} Quick to appreciate the legal situation. Fuller saw that he must attack not the substance but the form of the warrant whose validity was the present issue, and he was keen enough to direct his counsel to cling fast to their legal exception and say nothing about the il- legality of the Commission or the substance of his case before that court. His lawyers therefore argued that the warrant, to be good, must show on its face that the Commission possessed from the King sufficient authority to fine and imprison Fuller. According to the return the Commission had imprisoned Fuller because of schism and heresy and had left it to be assumed that it possessed sufifi- cient authority for its action. Although there could be no doubt, continued the lawyers, that it had the authority, and although the judges themselves might know it, they could not take legal cogni- zance of it unless that fact was expressed in the return. The judges were visibly impressed with this argument, which was at least specious. In his reply, Hobart met the objection by stating that the contents of royal letters patent and of the statutes of the realm were public and did not need to be pleaded specially and mentioned in every act performed under their authority, for it was part of ' Our sole authority is again Salisbury to the King. Draft corrected by Salisbury himself. Hatfield MSS., 123, f. 59. November j8. 1607.