'ΑΝΤΙΠΡΟΒΑΑΗ, OR A DEFENCE OF THE Minister OF PENSHERST, In a Case between him and the Earl of Leycester in Michaelmas Term, 1657.

LONDON, Printed by T. R. for the Au­thor, 1660.

[...]

[...]. OR A DEFENCE OF THE Minister of Pensherst in a case between him and the Earl of Leycester in Michael­mas Term, 1657.

THE Minister of Pensherst being set­led in that Recto­ry by the Authori­ty of the Committee of Par­liament, April 5. 1650. en­deavoured [Page 2]in much faithful­ness a holy Reformation there, that he might prepare a people for the Lord; in which work he found no en­couragement from the Earl of Leycester, but was put to much grief of heart by the Earls opposition: who be­gan a quarrel upon the Mi­nisters denyal of letting his Lordship the Gleab land, (as sometime Ahab fell out with Naboth about the Vi­neyard) taking occasion thereupon many wayes to oppress him and his afflicted family. The Lord giving the Minister patience to bear much hard usage, he made many Christian private Addresses to his Lord-ship to give his Lordship a right understanding of the wayes [Page 3]of God he proceeded in in his Ministrations, and likewise entreating him to be sensible of his many great surferings; but no redress being given, and the cause of God suffer­ing much by his Lordships contests, and doing year af­ter year worse and worse, the Minister was prest in con­science, at length to apply the Word of God against the Earl by name for many pub­lick offences in the publick congregation, praying also for him that God would re­duce him from the evil of his wayes, whereby he had offended him and his chosen ones. This the Minister did upon conscience of duty, re­specting that of Saint Paul, Those that sin reprove before all, 1 Tim 5.2 that others may fear. And [Page 2] [...] [Page 3] [...] [Page 4]wholesome pious rule of ho­ly Augustine, Si quid vitii in amico deprehender is (saith that Father) corripe occulte, si te non audierit, corripe pa­lam, sunt enimbonae correpti­ones & plerunque meliores quam tacita amicitia: & si laedi se putet amicus, tu tamen corripe; tollerabiliora emm sunt amici vulnera quam adu­lantium oscula. If thou find (saith that Father) any fault in thy friend, blame him se­cretly, if he will not hear thee, blame him openly; for reproofes are good, and for the most part better then friendship that holds its peace; If thy friend com­plains thou wrongest him, yet notwithstanding reprove him still, for more tolera­ble are the wounds of a [Page 5]friend then the kisses of a flatterer.

Indeed it fell out so, ac­cording to that word the Earl thinks himself wronged in his honour by the Minister, who by a christian admonition endeavoured to repair it; for what could make more tru­ly for his honour then to turn him from sin to God, and to wash away that stain which was a blot, no badge of honour. The Earl there­fore commences a suit a­gainst the Minister, and be­ing subtile in Law-suits sur­prises the Minister at a time when he expected no trou­ble, and easily runs him down because he made little or no resistance, but commended himself to him that judgeth righteously, the Lord know­ing [Page 6]both his work, and the integrity of his heart there­in.

The words the Earl lay to the Ministers charge, were these, that he should say of the said Earl, That he was a wicked man, a cruel Oppressor, and an enemie to Reformati­on.

If the Minist had spoke these very words, might he not sufficiently have proved the crime? let us scan the words, A cruel Oppressor; does his Lordship call these a horrid scandal, let it be a scandal worthy to be punished by the Judges, and let my Lord for ever be guiltless of so horrid a crime; but what then dorh he say for him­self for keeping back the Ministers dues more or less [Page 7]from year to year for eight years together? For a year or two his Lordship allows a small part for tithes, for other years nothing: if tithes were not the Ministers right, why did his Lordship pay a­ny? if they were his right, why did he not pay all? Is it not oppression to with­hold 12 li. per an. for eight or ten years together from a Minister.

Again, Is it not oppressi­on to plant a Warren next to a Ministers Gleab-land, and fence it on every side but where it lies to the gleab, whereby the Minister was damaged for eight years together by the gain of his Lordships Warren ten pound a year without any satisfaction or commisera­tion. [Page 8]This was the way in­deed to have the Vineyard when it was denyed, and rent free too.

Again, Was it not oppres­sion to seize upon part of the Ministers Gleab, to dig up and carry away trees from the Gleab at his Lordships pleasure, contrary to all right and common justice, to arrest the Minister and his servants causlesly (unless it were because the Minister had too much patience, and would not be provoked to begin Law with the Op­pressor) to vex, and worrie, and disquiet him in the work of the Ministry. If the common Law of England (alas to much corrupted) will not account this Oppres­sion, will not God declare [Page 9]against it as horrible oppressi­on and violence? yea, and will not all good mens con­sciences condemn and de­test it, if the like were done to themselves? What is this mans conscience made of, if it sleep and acquit him as righteous after all this?

And for an enemy to Re­formation.

If the Earl of Leycestor were not an enemy to the good work of Reformation endeavoured by the Mini­ster, why drew he off, seeing that our Lord Christ declares, That he that is not for him, is against him? and why were those that shunned the purifying of Gods or­dinances [Page 10]admitted to the Table of the Lord so freely at his Lordships chappel? if his Lordship had to object against the way of the Gos­pel offered to the Church by the Minister in writing, why did he not disprove it? if his mouth was stopped, was he not then an enemy to that holy Reformation which he discouraged? yea, was not he an enemy to Reformation that sent a Co­py of the Ministers way and discipline to his Lawyers to see if their subtilty could pick our a Premunire of it? Will not the stones and the timber cry out of the wall and witness against such re­pugnancy and enmity to Christ and the precious un­blamable way of Gospel [Page 11]worship? if these things do not evidence the crime which are but lightly touch­ed, worse then these if God please to give time for in­quiry may be made to ap­pear, before the great day of the Lord come when he must look to be discovered before the world. But the Minister because he applyed the word of God in the Congregation against the Earls sin in other expressions, not these, therefore he plea­ded not guilty; but the Earl having got witness, and a Jury after his heart at Lent Assizes 1656. in Kent, Ver­dict was given for the Plan­tiffe, 500 li. damages: See yet more cruelty, cruel man, and yet more cruel Law! why? what did the [Page 12]words deserve that a Jury of men should give such damages upon them? The Lord chief Justice Glin pro­fessed upon the Bench they were not so much as actio­nable at Common Law, and so not worth two pence, and must they be judged at 500 l. that were not worth two pence? In Queen Maries days the Statute allowed but 100 li. upon those that had spoken horrid forgeries and scandals against the King or Queen, and is 500 li. gi­ven for words against the Earl of Leyecster, shall I say not scandalous? to the quick subversion of an in­nocent Minister and family indeed, but who would judge those words (of no pub­lick concernment) to a­mount [Page 13]to the quick sub­version of the Realm, as the Earl prerends in his de­claration? see how sin grows till it be fully ripe; from Enmity to open contests, from open contests to open blood-shed, and devouring of Gods innocent people, as the Prophet Micah observes, Ye heads of Jacob and Peers of the house of Israel,Mic. 3.1, 2, 3 is it not for you to know judge­ment? who hate the good, and love the evil, who pluck off their skin from off them, and their flesh from off their bones, who so eat the flesh of my peo­ple, and flay the skin from off them, and they break their bones, and chop them in pieces as for the pot, and as flesh within the Caldron, as if rage could never be satisfied.

[...].

The just God saw all this, and records it against a day of vengeance, and says, v. 4. Then shall they cry unto the Lord, but he will not hear them: he will even bide his face from them at that time, as they have behaved them­selves ill in their doings.

When the case was pon­dered before the Judges of the Upper Bench for an Ar­rest of Judgement, the two Judges were divided upon the case, one for the Plan­tiffe, the others for the Defendant: so that there was an Arrest for two terms, then at length is Justice Newdigate put upon the [Page 15]bench, and the scales were turned, but the Judges ha­ving perused the cause, and seeing in their consciences the grievousness of it, sent three messages to the Earl to stop him from taking out Execution, or molesting the Minister upon the case: ne­vertheless the Earl that drove on so furiously hither­to, could not be perswaded by the Judges to stop his course, but took out execution upon Execution, three Writs of Fieri facias within the space of one year, and another Writ in the year following, sezing at several times the Ministers Corn, and Kine, and Horses, Wood, Hay, Waggons, Bed and Bedding from under him and his Children, and servants, and [Page 16]all the houshold furniture he could light on, even to the poultry about the house, and things of the smallest consequence that could adde a groat to the Inventory, and that in the bitterest time of Winter, and yet all this is done by the Earl who would not be accounted cruel. This was an hour of darkness, but yet the Lord ordered it with such unexpected unseen, and admirable recompence of his love, as that though we walked in darkness, and saw no light of relief, yet we could trust in the name of the Lord, and stay upon our God. We are troubled on every side, yet not distressed, we are perplexed, but not in despair, persecuted, but not forsaken, cast down, but [Page 17]not destroyed, alwayes bear­ing about in the body the dy­ing of the Lord Jesus, that the Life also of Jesus might be made manifest in our bo­dy, for we which live are alwayes delivered unto death for Jesus sake, that the life also of Jesus might be made manifest in our mortal flesh.

This was the first case wherein the Peerage en­joyed their priviledges after the act of the Common-wealth which took away the house of Peers; and must this be the first case where­upon those priviledges are built again that were in so many Presidents laid aside? Must a Minister for reprove­ing of sin, and his whole fa­mily also, be plundred and [Page 18]destroyed to bear up the un­supportable burthen of this unprofitable greatness; there was cruelty enough before without Law, and must there be much more mischief framed by a Law? For ever let the Plantiffe be acquitted, and his cruelty not made mention of in regard of the transcendent cruelty of such Law. O ye Courts of Ju­stice, ye Thrones of them that are called Gods, is this to do like God? God saith, Relieve the oppressed, judge the Fatherless, plead for the widdow; and do you crush the oppressed, condemn and destroy the innocent, & out­vie in cruelty the man that is blemished before you for cruelty?

Ye Jurats upon whose ac­count [Page 19]God will set these da­mages, how could you think in your consciences 500 li. a just proportion for words; for words not so much as ac­tionable in the opinion of the Judges? would you think it just that others should mere the the measure to you again? can you look upon your Verdict, and hear what hath been done upon a spoil­ed Family, and not say, we are verily more guilty then the cruel Oppressor.

Ye Honourable Judges, professed Patrons of the afflicted, who should have been afflicted in the afflicti­ons of Joseph, and as Judah have rescued him; you that could not imagine any cru­elty under a title of honor, or think that your messages [Page 20]would be of less acceptance and power with the Plan­tiffe then your sentence; have not you cause also to say, as Josephs brethren, Verily we are guilty con­cerning our brother in that we saw the Anguish of his soul, when he besought us, and we would not hear.

The Lord give you to know, and to have true re­morse for what you have done, that it may not be laid to your charge in the great day of the Lord.

You had little reason for what you have done, let us come closer to the matter, and prove it, that you had no Law neither.

I shall reason it logically and plainly thus,

That Judgement is unjust [Page 21]where there is no Law to warrant it,

But this Judgement hath no Law to warrant it,

Ergo, This Judgement is unjust:

If there were any Law transgressed that could give occasion for such a Judge­ment, then it must be ei­ther the Common Law or Statute Law (for no other Law is pretended to by the Plantiffe) but neither of these is transgressed, there­fore there is no Law trans­gressed to ground the judge­ment upon, and so it must be confessed to be unjust.

The Common Law can be no ground for this judge­ment, for it was yielded by the Judges (the Lord Chief Justice Glin acknowledging [Page 22]it in open Court) that the words alledged would not bear action at Common Law.

If the Statute Law be transgressed (which were most absurd to say, that words which by the Com­mon Law are not actionable, should be counted by the Statute Law to be horrible forgeries, subverting the Common-wealth; by com­mon Law not worth a far­thing, and by Statute Law set up to 500 li.) but I say, if any Statute of this Na­tion be violated, the ho­nourable Plantiffe ought to have mentioned it, and con­cluded his Declaration Sub forma Statuti; but the Plan­tiffe doth not mention any Statute Law transgressed, [Page 23]hereupon the Judges of the Upper Bench were divided in their opinions: Judge Warberton judging the De­claration void upon this de­fault, though the Lord chief Justice Glin allowed it.

But let this fault pass, and let it be supposed that the Action be intended upon the Statute of Richard the second: we shall through Gods help prove that the words alledged by the ho­nourable Plantiffe cannot be concluded within that Sta­tute, and thererefore there is no Law to warrant it.

The Statute runnes thus.
Anno secundo Rich secundi, Cap. 5.

FOR Devisors of false News, and of horri­ble and false lyes, of Pre­lates, Dukes, Earls, Ba­rons, and other Nobles, and great men of the Realm, and also of the Chancellour Treasurer, Clark of the privy seal, Steward of the Kings house, [Page 25]Justice of the one Bench, or of the other, and of o­ther great Officers of the Realm; of things which by the said Prelates, Lords, Nobles and Officers afore­said were never spoken, done nor thought, in great slander of the said Prelates, Lords and Officers, whereby De­bates and Discords might arise between the said Lord, or betwixt the Lords and Commons, (which God for­bid) and whereof great pe­ril and mischief might come to all the Realm, and quick subversion and destruction of the said Realm, if due remedy be not provided.

It is straitly defended [Page 26]upon grievous pain for to eschew the said damages and perils, that from henceforth none be so hardy, to devise, speak or tell any false news, lyes, or other such false things of Prelates, Lords, and of other aforesaid, whereof discord, or any slander might arise within the same Realm: and he that doth the same shall incurre and have the pain another time ordained thereof by the Statute of Westmin­ster, &c.

Now the Argument we draw to prove that this Statute can­not warrant the judgement, bears three parts, first to prove that the words are not concluded Sub subjecto Statuti, within the Subject of that Statute.

Secondly, That the words are not concluded Sub ma­teria Statuti, within the Mat­ter of the Statute.

Thirdly, That the words are not concluded Sub fine Statuti, within the End of the Statute.

That we may not carrie forth this dispute into a vo­lumne, we shall insist only upon the first of these, That the words are not compre­hended within the Subject of that Statute, and con­tract all into five Argu­ments:

Its proved thus, if the honourable Plantiffe be not a person comprehended un­der the Subject of that Sta­tute, then are not the words comprehended under the Subject of that Statute: now that the Plantiffe is not a per­son comprehended under the Subject of that Statute, I crave leave to argue thus,

If he be not qualified as the Statute supposes, then is not he a person compre­hended under the Subject of that Statute: here therefore is the main point, Whether the Earl be qualified, so as that Statute doth suppose to make him Subjestum capax, a Subject capable of the pri­viledge of that Statute; for if he be not, he cannot have a priviledge by this Statute: [Page 29]Let us therefore fairly de­bate the point, and we rea­son thus;

The persons specified in the Statute are Barons of the Realm, as the first words import, Barons, Nobles, and great men of the Realm: Now those that were Ba­rons of the Realm, were not titulary Barons, but Par­lamentary Barons.

But the Earl of Leycester is no such Parliamentary Ba­ron, as the Act of the Com­mon-wealth for abolishing the house of Lords inti­mates; therefore by what right can his Lordship claim the priviledge of this Sta­tute?

The Act for abolish­ing the House of Peers.

THe Commons of En­gland assembled in Parliament, finding by too long experienee, that the House of Lords is useless and dangeruus to the people of England to be continu­ed, have thought fit to or­dain and enact; and be it ordained and enacted by this present Parliament, and by the Authority of the [Page 31]same, that from hence forth the House of Lords in Par­liament, shall be, and is hereby wholly abolished, and taken away. And that the Lords shall not from hence forth meet or sit in the said house, called the Lords house, or in any other house or place whatsoever, as a house of Lords, nor shall sit, vote, advice, adjudge, or determine of any matter or thing whatsoever as a house of Lords in Parlia­ment.

Nevertheless it is here­by declared, that neither such Lords as have de­meaned themselves with [Page 32]Honour, Courage and Fide­lity to the Commen-wealth, nor their Posterities who shall continue so, shall be excluded from the Publicke Councells of the Nation, but shall be admitted hereunto, and have their free vote in Parliament if they shall be thereunto elected as other Persons of interest, elected and qualified thereunto, ought to have. And be it further ordained and ena­cted by the authority afore­said, that no Peer of this Land, not being elected, qualified and sitting in Par­liament as aforesaid, shall claim have or make use of a­ny priviledges of Parliament [Page 33]either in relation to his per­son, quality, or Estate, any Law, usage or custome to the contrary notwithstanding:

Die Lunae 19. Martii 1648.

If any will be so perverse and so much opposite to sense, as to say, the Earl may claim the priviledge of this Statute, though he have nothing but an empty Title (if any such be left him whose Creation stands not in a Title, but in a work and capacity to serve the State) against this we shall argue from the verie origi­nal Creation of Parliamen­tary Barons, which it recor­ded thus,

Henry the third out of the multitude of those Ba­rons that were in his time, whereof some were sediti­eus, chose out a certain number of good men, and by Writ called them to Parliamentary Councels: [Page 35]This Rule Edward the first and his Successors kept to, and thereupon they alone were accounted Barones reg­ni or Barons of the Realm. Afterwards Richard the se­cond, and some Kings after him created Barons by their patent and putting on of Robes, and both these forms were in use whiles that or­der and constitution held, and those that are thus cre­ated Barons, are called Baro­nes Parliamenti or Barones Regni, to difference them from others that were only nominal or titulary Barons.

These Parliamentary Ba­rons had not only a meer Title or name, but were all of them by birth Peers of the Realm, Et Consili­arii nati, and were created [Page 36]by the Kings Writ Ad tra­ctandum de arduis regni ne­gotiis & consilium de iis im­pendendum. Now to these belonged the priviledge to be judged by their Peers, to judge upon their Faith and honour, not upon oath to be beheaded for crimes de­serving death, to be free from Arrests and the pri­viledge granted by the Sta­tute of Richard the second, Now hence the Argu­ment holds firm; that if not titulary Barons but Par­liamentary Barons only, ac­cording to the first constitu­tion were honoured with these Priviledges, when any Baron ceases to be Parlia­mentary, his privildges must cease.

To say therefore that [Page 37]meerly titular Barons are capable of this priviledge, were to say, that Henry the third when he instituted this Order of Parliamentary Ba­ons, in contradistiction to o­ther Barons gave both alike priviledges, and so as amply honoured the seditious as the most trusty and faithfull, which were the greatest ab­surdity that could be impo­sed; a thing contrary to the Rules and grounds of true honour.

The second Argument to prove that the Earl is not a Subject qualified, as that Statute imports, may be of­fered from well grounded reason; thus,

When the ground of a [Page 38]Priviledge is taken away, needs must it be conceived the priviledge it self is there­with taken away; but the ground of this priviledge is taken away, Ergo.

For the minor proposition. The priviledge conferred by Statute upon Nobles, Barons and Peers above ordinary sort of men, must needs have its ground in that high capa­city and native right the No­bles were invested with to serve the Common-wealth in more eminent manner then or­dinary men; and to evince this, that this was indeed the ground of that privi­ledge, therefore great Offi­cers of state about the King, who were no Peers, yet of great usefulness, are privi­ledged also by this Statute as [Page 39]well as Lords and Nobles of the Land; it being thought meet that men of eminent service above other men should be endowed with priviledges above the com­mon sort of men: but now this ground fails upon the a­bolishing the house of Lords, their high capacity for pub­lick service being taken a­way, how can it be there­fore but the priviledge also must fail with it?

Shall my Lord the Plain­tiffe be in a capacity by a priviledge to undoe his poor neighbours, and not in a ca­pacity to preserve them? or can it be imagined that the Parliament have took a­way from Peerage its chief power and capacity to do good, and left nothing but [Page 40]a power to do hurt, a sting to wound, but no balm to heal? God forbid: till then the plantiffe be re-instated in such a capacity for pub­lick high service, as is meet to be a ground for so high a priviledge, let him forbear to assume it, for I think no man will see reason for it.

Can there be heat in a Chimny when the fire is put out? or water in the Channel when the fountain is dried up; or light in the horizon, when the Sun is gone down? or a house re­main standing when the foundation is took away? no more can a priviledge remain when the reason or ground thereof is abolish­ed.

The third Argument, A causa finali, from the final cause or end specified in the Statute, whereupon this priviledge was given the Nobles, I reason thus, If the end or final cause for which this priviledge was granted the Peers be fru­strated, the priviledge must be also frustrated, but the end for which this privi­ledge was granted, the Peers seems to be frustrated; Ergo, this priviledge it self must fall, and be frustrated also. Let us then examine the end wherefore this pri­viledge was given the No­bles, and 'tis exprest plainly in the Statute, To prevent disturbance and quick sub­version of the Common-wealth. Scandals of a high nature [Page 42]and horrible forgeries that tend Per se to make Divisions between Nobles, being laid upon any one of the Nobles of the Realm, it was thought thereby the whole Com­mon-wealth might quickly be disturbed and distracted; and therefore such an Of­fence was to be severely punished.

Its true indeed, as Ari­stotle observes, it fell out in Syracuse contests between two chief Magistrates, there endangered the ruine of the whole Common-wealth: and so it was sup­posed by this Statute, that contests between the No­bles and persons in great office, might haply en­danger the Common-wealth by civil wars, and [Page 43]therefore to prevent such differences apt to be fo­mented by false reports, carried to and fro to incense the spirits of great men one against the other: there­fore I say was this Statute made.

But now that the house of Lords is abolished, and the Peers cease to be chief Senators and Officers of State, and have no such publick trust as then, the danger is not now as then; and therefore no ground for the priviledge to be now as then.

The fourth Argument from want of Presidents in the case.

Was there ever any com­mon-wealth, [Page 44]or any age of the world wherein men of great Titles, and little or no use in publick admini­strations enjoyed, such a priviledge as this is above those that in vertue, wealth and serviceableness to the State, do far exceed them.

Or is there any one pre­sident upon Engish Re­cords, since the Act of the Common-wealth, for abolishing the house of Lords, to prove that any one of the Nobles had their priviledges allowed them before this case? The Lord Arundel, Lord Shandois, and others it seems had not their priviledge (though desired) granted them, and what reason that the Earl of Leycester only should have [Page 45]his priviledge granted him? If the old priviledges be­long to all Peers, why were they not granted o­thers? If they belong to none, why are they given the Earl of Leycester? Surely either other of the Nobles, have had much wrong, or this man hath more then his right.

The fifth Argument, to prove that one that ceases to be a Parliamentary Ba­ron, is no meet subject for the priviledge which the Statute of Richard the se­cond allows, may be drawn from the Act of the Com­mon-wealth in this man­ner.

THE giving Privi­ledges to the Peers by sitting in Par­liament, argues they had not them before up­on account of their Ti­tle; for what need hath a man to have that gi­ven him, which he hath already of his own? Or what priviledges doth the Act give the Lords by sitting in Parliament, if they had better with­out sitting?

Now by the Act of March 19. 1648. it is granted that Peers quali­fied and elected to sit in [Page 47]Parliameent, shall have the priviledges of Par­liament, both to their Person, Quality, and E­state, and not otherwise.

What are those pri­viledges? If the ordi­nary priviledges of Par­liament, then they had no more priviledge then the rest of the Com­mons of England; if they were extraordinary priviledges belonging to them as Lords, it ar­gues then they had them not without this grant, upon the score of their dignity and Title, which is as much as we expect [Page 48]to have granted us, and then it must needs fol­low, that their priviled­ges are grounded upon a parliamentary capaci­ty, and not upon a meer Title.

In the last words there­fore of the Act this is clearly exprest, That no Peer of this land not be­ing elested, qualified, and sitting in Pariiament, shall claim, have or make use of any priviledge of Parliament, either in re­lation to his person, qua­lity or Estate, any Law, Ʋsage or custome to the [Page 49]contrary notwithstanding.

The Objections were so frivolous, that were made in this case, that men even of ordinary capacity and reason would nauseat them as slight, and too light to weigh a grain in the scales that Justice holds in her hands, and I purposely omit them as not worthy to trou­ble the READER far­ther.

As likewise I wave o­ther Arguments copi­ous and strong, upon the Subject, and upon [Page 50]the matter, and upon the end of the Statute of Ric. the second, to prove that these pretended words, (if they had been spoken) yet could not be comprehended under that Statute.

[...]

But these perhaps will be thought clear and sufficient enough to con­vince that this Judge­ment was unjustly given, and cruelly executed; which I leave to the Lord to redress in his time, be­seeching him of his won­ted grace to give us all joy and patience in suf­fering.

FINIS

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