A JUST VINDICATION Of the Questioned Part of the READING OF EDWARD BAGSHAW, Esq An Apprentice of the Common Law.

Had in the Middle Temple Hall the 24th day of February, being Munday, Anno Dom. 1639. upon the Statute of 25 E. 3. cal­led, Statutum pro Clero, from all Scandalous Aspersions whatsoever.

With a True NARRATIVE of the Cause of Silencing the Reader by the then Arch­bishop of Canterbury: With the ARGUMENTS at large of those POINTS in his Reading, for which he was Questioned at the COUNCIL-BOARD.

LONDON, Printed in the Year 1660.

And are to be sold in Westminster-Hall and Fleet street.

A JUST VINDICATION Of the Questioned Part of the READING OF EDWARD BAGSHAW, Esq An Apprentice of the Common Law.

Had in the Middle Temple Hall the 24th day of February, being Munday, Anno Dom. 1639 upon the Statute of 25 E. 3. called, Statutum pro Clero, from all Scandalous Aspersions whatsoever.

IT was a Wise and witty Saying of Tertullian, That Nihil veritas, crubescit nisi solummodò ab­scondi. Truth never blusheth but when her face is hid: And therefore the Egyptian Judges wore the Picture of Truth about their necks in a chain, like as the Jews did their Philacteries, as things which they greatly gloried in, not only openly to weare, but publickly defend when there should be cause.

The pulling off this mask from the face of Truth, and the vindication of it from obloquy and reproach, and of my owne [Page 2] name and reputation from scandal and detraction; and to the intent no stayns of that nature might cleave to my Wind­ing-sheet when I am dead; are become the only Motives why I now yield, after so long tract of time since my Reading, to those strong importunities which I formerly neglected, by pub­lishing, to the common view, my Arguments upon foure Points of my Reading, for the last of which only I was suspended and silenced, by the means of the then Archbishop of Canter­bury, of whom, being dead, and suffering as he did, I shall speak no ill; and shall not so much blame him as that Accu­sator fratrum, who, to curry favour, misreported my Reading to him, and made me to speak things which I never thought, and him to do things that were never done before, as to si­lence a Reader of Law before he had committed an offence, or was heard to speak for himself: Si accusasse sat est, quis Julian. erit innocens, was a most just saying, though of an unjust Em­peror.

This sudden and uncouth act of his made a loud noise throughout the Cities of London and Westminster. A great Peer of the Realm merrily told him at their next meeting, That he had often heard of a Silenc't Preacher, but never of a Silenc't Reader before. And the vulgar people, at that time Espousing a Scottish quarrel increased in their clamour and hatred against him.

This trouble he brought upon himself in medling with things wherein he had no skill, and with persons over whom he had no Jurisdiction: for Reading of Law in the Inns of Court and Chancery (in both which I have been Reader) are, as they speak in Schools, rather Problematae then Dog­mata, Mootes and Questions of Law (though of the Preroga­tive it self, the highest of things) for the Ventilation of Truth, and extricating the obscurities of Law, for the bene­fit of the Students in those Societies, then Resolutions and Judgments of Law in Westminster Hall. And Readers, if they do amiss, are answerable to the Governours of that Society, at their next Parliament, where the Reader and his Assistants (being alwayes Benchers) do give an account of that Read­ing, as I did (as shall be declared hereafter) and had thanks [Page 3] from them all. And such acceptation my Reading found with the Gentlemen of that Society (which I shall with thank­fulness ever acknowledg) that scarce any Reader before was ever attended out of Town with such a number of Gentlemen of the same House.

And as the Archbishop brought this trouble upon himself, so did he thereby no small injury unto me: for by his Com­plaint to the King and Councel, That I read against Bi­shops (occasioned by my Misreporter, for I shall still lay the load on him;) it was by that means strongly infused into the heads of the people, that I read against Bishops, whom they then perfectly hated: whereupon, the year following, without asking, or seeking, or stepping one foot out of my Chamber in the Middle-Temple to that intent, I was by the unanimous vote of the people chosen Burgess of Southwark in the first place.

Presently after my choosing, a Petition was brought to me by some of the chief of that Borough, containing in it the total extirpation of Episcopacy, Root and Branch, as likewise of the Book of Common Prayer, and that I would commend it to the Commons House (I being their Senior Burgess, and having the first choice). By this Petition I understood them, but they understood not me, and therefore I dealt clearly with them, That if the present Episcopacy, which had so much exceeded the bounds of Law in the exercise of their Jurisdiction to the grievance of the people, was reformed and regulated according to the Law of the Land, it would be bet­ter accepted, then in their utter abolition; and this way, I thought the Parliament would go, and so convinced them with Reasons for the same, that they seemed to me fully sa­tisfied, and the Petition stopped. But they consulting after­ward with Mr. John White, my fellow Burgess, he approved of the Petition, and hereupon it was delivered into the hands of Alderman Pennington (one of the Knights for London) who brought the Petition into the House with sixteen thousand Hands, which being read and debated in the House, Mr. John Pym (a Gentleman with whom I had familiar acquaintance, and knew his mind in that point) spake to this purpose, That [Page 4] he thought it was not the intention of the House to abolish either Episcopacy or the Book of Common Prayer, but to reform both, wherein offence was given to the people. And if that could be effected, and assented to by them, with the concurrence of the King and Lords, they should do a very acceptable work to the people, and such as had not been since the Reforma­tion, which was then about eighty years. Divers Members of the Commons House agreed with him in a Reformation, instancing in those famous and most Pious Bishops and Mi­nisters of the Praelatical party in the dayes of Queen Mary, which purchased to us that Reformed Religion we now enjoy, with no less price then their own hearts blood.

As for example, Cranmer, Ridley, Latimer, Hooper and Ferrar were all of them Bishops. John Philpott was Arch­deacon of Winchester, John Rogers and John Bradford were Prebends of Pauls, and Laurence Sanders Prebend of Lich­field, with divers more; these were all of them very godly men, and eminent Preachers, and most gracious with the peo­ple.

For my own part, being then at that debate a Member of the House, I openly declared my opinion concerning Bishops, Vid. Stat. of Carliel 25 E. 1 and Caw­dryes Case. 5. Rep. for establishing them in their Function and Jurisdiction, agree­able to Law (according to what I had done and held in my Reading, without wavering or warping at all). And told the House, That by the Ancient Laws of the Land the Crown of England was founded in the state of Prelacy; and ever since there was a Christian King of England, there was a Bishop. That it was so Incorporated into Monarchy, that the ruine of one would hazard the ruine of the other: That it was so interwoven with the Common Law, in so many Original Writs, that the destruction of it would take away one of the chiefest, Peers of the Common Law for learning and Pleading in Ecclesiastical matters: That as the Common Law was favourable to Clergy-men, and gave them more priviledges then any Humane Law they could name, so it was strict in correcting and punishing them (of what rank soever) if they transgressed that Law. And had Judges done their duties according to their Oaths and Places, by granting Prohibiti­ons [Page 5] to the High Commission in causes wherein they had no power to hold Plea; and Writs of Habeas Corpus to such per­sons, whom they had fined and imprisoned without cause, Bi­shops and Presbyters might, for ought I know, have been long since happily agreed, who clashing together like two Flints, and thereby striking fire, some sparks of that fire fal­ling, against both their wils, upon the black Tinder of In­dependency, inflamed such a violent and furious party of un­reasonable men, quite of another shape, as that (by the just judgment of God for these their unnatural contentions, joyned with the sins of the Nation) they became instrumental quite to ruine the one, and almost destroy the other.

And I was then, and am still of opinion, That the Crown of England, being a Monarchy bound up by such apt Laws, for the benefit and peace of Prince and People, and so apted for the Order and Jurisdiction of Bishops, that I hold it the fittest for this Nation of any in the Christian world. And I think I am able, within my Sphere and Profession, to main­tain it against any Adversary: Et cedo mihi quemvis Arbi­trum.

And here I have just occasion to profess to all the world, as in truth I do, That I was so far from the very thoughts of destroying Bishops, that observing at the time of my Read­ing, and divers years before, the great invasions that were made by them upon the common Law of England, and the Courts of Westminster Hall, and the scorn and contempt at that time cast abroad upon Professors and the very Professi­on of the Law; I knew no other way how to hold them up in their Functions and just jurisdictions, and in esteem and Honour amongst the people (which once they had) as by Reading upon that Law which gave them their just bounds and limits, which if once they should break down, I ever feared their ruine and destruction; That, like Deare, break­ing the Pale, they exposed themselves to the fury of the peo­ple, to be by them hunted, chased, and at last destroyed; and the whole Clergy of England, from whom they received their Orders, eminently endangered. And in this opinion of my fear, I had the concurrence of a most Honourable person, [Page 6] whom I much honoured Living, and lamented Dead, Edward Lord Mountague of Boughton, scarce then to be parallelled for Piety, Wisdom and Gravity in the whole Nation. And how sad experience hath brought to pass what I then feared; I shall say no more, but silence my self in the words of that Kingly Prophet, Obmutui, quia tu Domine fecisti.

And thus have I cleared my self from the aspersions and scandals of two opposite parties whom it was impossible for me to please. The one accusing me of Faction, that I set bounds and limits to Episcopacy; the other of Apostacy, that, contrary to Law, I would not take it quite away. And my sticking close to this opinion, & abhorrency of taking the Scotch Covenant, tending to the utter abolition of Episcopacy, was the alone ground of that load of afflictions which lay long upon my Body and Estate, which had quite overwhelmed me, had not God been a most gracious Father then unto me, by supporting and comforting me with his Staff under that Rod of his corrections, giving me patience to suffer rather then to sin; and to resolve, in the words of Zuinglius, Mallem mille mortes obire: quam contra conscientiam attestari.

And in this my just Vindication, I acknowledge my self much beholden to that Learned and Ingenious Gentleman, William San­derson, Esq. who lately hath Printed the Life and Death of the late King Charles, wherein he hath acquitted me from such Misreports and Scandals cast upon me for my Reading; And hath truly, for substance, related those points of Law for which I was questioned in my Reading, only he hath failed in some cir­cumstances in that relation, and in the causes of my Silencing by the Archbishop, which I shall now rectifie, that best can do it, that in case that Gentleman shall have occasion, here­after, to revise his History, by a second Edition, he may Correct the same according to that Narrative I shall now de­clare; wherein I shall pursue his own Method from the be­ginning to the end, touching that Relation, and so con­clude.

It is very true, as he there saith, That my Reading in the Mid­dle Temple Hall was the 24 day of February, Anno Dom. 1639. in that very year the troubles were in Scotland, and the Scots [Page 7] were preparing an Army for England, masking their mis­deeds, against their native Prince, under specious pretences of Religion, which mockery of Almighty God, he hath since avenged on them with a witness, which they both find and feel at this day. But yet my Reading was Compiled two years before, and so compleated as that I could not alter it, finding no cause so to do, in that my Reading had no manner of reference to the pretended matters of that impious Quarrel.

He proceedeth, and saith thus, Mr. Bagshawe intended to meddle with Prohibitions, but not with Tacitus, to follow Truth too near the Heeles, for feare of his Teeth, nor too far off, least he loose it: and so neither to offend nor to be offended. This, I confess, was in substance much to the sense of what I spake, though not in those words; and therefore I will repeat that part of my Speech which I made to the Benchers, Barresters and Gentlemen of the Middle Temple, at the beginning of my Reading, in these very words:

In the choice of my Statute I was much perplexed, Part of the Speech. I first pitched upon the Stat. of Articuli Cleri, 9 E. 2 the five first Chapters, concerning Prohibitions, an excellent, but an angry Law, especially to such men who love not to be restrained in their Jurisdiction, and therefore I left it and fell upon a more pleasing Law, the Statute of 13 E. 1 called Circumspectè agatis, of Consultations, which gave the Clergy such Jurisdiction that no Prohibition could take from them: Herein I rested long; I divided that Statute, gathered many Cases upon it, fully determining to deliver the Law of the Land concerning all Ecclesiastical Jurisdi­ction in the Kingdom, not only in the Inferior Courts of Ordinaries, but in that great Court of the High Commission. The Common Law of England speaking to all those Courts in the language of the supreme Lawgiver, Hither shall you pass and no further: and here shall you stay your proud waves.

But I considered the Title of my Statute was Circumspectè Sir W. Raleigh agatis which put me in mind of the saying of an excellent Historian, That a man might follow Truth so neer the Heels, [Page 8] that it might at last dash out his Teeth. I do not say this was any Argument to me of parting with so good a Statute, for it had savoured of Fear and base Affection: Et viro cor­dato indigno.

The only reason why I waved those two former Statutes, and resolved upon this Law I have now chosen, was my respects to the Students of this Society, for whose benefit I had chiefly destinated these my poor labours, by reading upon such a Law as was larger in extent, comprehending in it self the two former more frequent in our books and in Westminster Hall, and of better learning and use: Et hic Ba­culum fixi, I never wavered more.

But finding the whole little for words, but a Volume for Learning and matter, I was forced to confine my thoughts only to the seventh Chapter of this Statute; and although I had not the happiness to have the help of other mens la­bours upon this Law (as not knowing it was ever Read on before) yet I have adventured to Read upon it, choosing rather to fall alone where I might happily find either your pardon or pity, then, through the arms of a Guide, where I could expect neither.

And because I talk of falling, I have no other course then to chuse such a Supporter as will never fail me, and that is your love, which is of such a Composition, that where it finds out desert it can make it like the Philosophers Stone, it can turn a base Mettal into perfect Gold. This I earnestly seek for, and hope to find at all your hands: Et sub hac spe ductus rem aggredior; And come to my Sta­tute.

After which I Expounded my whole Statute, being an an­cient Law, according as all ancient Readers were wont to do, being nine Chapters in the Printed Statute, but are twelve Chapters in the part Read, consisting upon Petitions of the Lords and Commons to the King, and his Answers thereup­on, whose Answers made the Law. Out of which Petitions and Answers entred in the Parliament Roll, the Judges, at the end of the Parliament, did in form of Law, frame an Act of Parliament, which was Proclaimed and published, [Page 9] and afterward Printed, when Printing came in use, which was about the time of H. 6. And this was the manner of Par­liaments in E. 3 time and long before.

After I had Expounded my whole Statute, according to the old manner, I thereof made Ten divisions, according to the then manner of Readers; upon every division put Ten Ca­ses, as the Historian truly relates; who goeth on and saith, That my first Case was this, Whether or no it be a good Act of Par­liament without the Lords Spiritual.

Here is some mistake, for this was not my first Case, for my first Case, upon my first division, consisted of fourteen points: but this was the first point of my first Case, and it was thus,

Whether an Act of Parliament may pass and be good by the Assent of the King, his temporal Lords and Commons (all the Spiritual being absent, or if present, wholly disassenting?) And I held it might. And here a man would wonder (that by a Clergy man especially) so clear a point, as the Law makes this to be, should be brought into question, when I had so great a Champion on my side, as that Famous, Learned and Pious man Bishop Jewell, in the defence of his Apology against Dr. Harding, who, with the rest of the Jesuits, held the Statute of 1 Eliz. for Uniformity in Religion, to be no act of Parliament, because no Bishop or Spiritual Lord assented to that Act; but it then passed only by the assent of the Queen, the Temporal Lords and Commons; Bishop Jewel stoutly maintains it to be a good Act, and gives divers Reasons and Authorities for the same, which in my Argument of this point herein after expressed, I shall cite at large. And I thought it a most needful point to be known to the Students of Law, when as the establishment of the Reformed Reli­gion of the Church of England lay at the stake upon it; for I read it only for the Middle Temple Hall, not for Lambeth, and could not imagine that any Charon could have been found that would have Ferryed it over the water.

The Historian goeth on and saith, the second Case thus,

If any benificed Clerk was capable of Temporal Jurisdiction at the making of that Law?

[Page 10] This was not a Case, but an other point of my first Case upon the first division, it was thus, Whether a Benificed Clerk may by my Statute exercise Civil Jurisdiction, and be a Justice of Peace? I put not this Case of a Bishop at all; as being of a higher Sphear then a Clark; but only of a benificed Clerk. A need­full point to be known to young Students, to whom alone I intended my Reading. For at the time of making my Statute, there was not in England a Beneficed Clerk, a Justice of Peace; but yet at the time of my Reading there were never more. In the Argument of which points, I did not at all (as I shall here­after make appear) speak against their being Justices of Peace, for that they might be so by Law, by virtue of the Kings Com­mission. Only by way of Caution, in that they might refuse, in respect of their Orders; and I only declared how the Law of the Land, and the Law of the Church stood heretofore in that point, and that according to the rule of our Saviour, Ab initio non fuit sic.

The Historian goeth on and saith, His Third Case thus,

Whether a Bishop, without calling a Synod, hath power as Di­ocesan, to convict an Heretick?

That which I put was the fourth Point of my third Case up­on the third division, and it was this,

Whether a Clerk that is an Heretick may, at this day, be convicted and condemned for Heresie, by his own Ordinary alone? And I thought he could not.

This was a most needful point to be known to the Students of Law, by reason of the obscurity of the Law in it, not only in respect of the definition of Heresie, and what it shall be said to be, wherein the Law was dark; but likewise how a Heretick should be convicted. And the Statutes concerning Heresie being repealed by King Edw. 6. and revived again by Q. Ma­ry, and afterwards all of them repealed again by Q. Elizabeth. But for none of these was I silenced, but upon another point, upon touching the Jurisdiction of the High Commission, my fourth division; which I shall after likewise mention, and set down the Argument of it at large, which puts me upon that Narrative of my silencing, which I shall, as briefly as I can, perform, and then conclude.

[Page 11] I Read three Lectures three several dayes, being the 25. the Narrative. 27. and the 29. of March, without any interruption, and with the approbation of the Students to whom I Read. But on Sa­turday following, being the 30 of March, the Lord Keeper Finch sent to speak with me, and in a very friendly manner told me what reports there were abroad touching the two for­mer points above mentioned, which I then related to him what they were, and how consonant to Law; for the manifestation whereof, I told him, I would give him the Arguments of both those points, and attest them under my hand: And present­ly went to my Chamber and brought him my Arguments to which I set my hand, which after he had read, he spake to me to this effect, Mr. Reader, I see you have been misreported, and have had wrong; and seeing you have dealt so freely and fair­ly with me, I will do you right to the King and Council: To whom that day he shewed the Notes I gave him, which were examined by them and approved: And that afternoon, to­wards night, the Lord Keeper sent for me again, and told me, That my Opinion concerning those two points were approved of by the King and Councel, only his Majesty desired, That I would declare my Opinion in one Question, which was this,

Quest. What if the King and Spiritual Lords, with the Commons, did pass an Act, all the Temporal Lords disassent­ing, or not being there, whether this be a good Act of Parli­ament?

Answ. I told him, That it was: and the Votes of the Tem­poral Lords were included in the Votes of the Spiritual. Why then, Mr. Reader, said he, you have given full satisfaction: And I am commanded to tell you, That you may go on in your Reading. Whereupon I went home and prepared to read on Monday following upon the fifth Case of my fourth Division.

But this Case was likewise carried to the Archbishop, in which there was this Point, wherein I held, That a Bene­ficed Clark Imprisoned, Deprived and Excommunicated by the High Commission for enormous offences (not naming the particular offence,) that this Clark; notwithstanding, was [Page 12] such a possessor of a Church as might Plead, Counter-plead and Defend his Right within my Law. This kind of learn­ing being not within the Conusance of the Archbishop, was so heightned to him by my misreporter, that the same afternoon, the King sitting in Council, my Case was brought by the Archbishop to the Council Board, and that point found in it, and much complained of. The Earl of Manchester being there, and formerly a Reader of the Middle Temple, and knows that it was the manner of Readers to lay the points of their Case so close, that what seemed strange to the hearers, when the Readers came to argue, he made those things so clear, that usually the Reader came off well; and then told the King, That he thought I grounded my point upon a Case in Law in the 5 Report, fol. 57 where one Spewit brought a Q. Imp. against the Bishop of Exceter for refusing his Clerk, to which the Bishop pleaded that he was Schismaticus invete­ratus, not naming the particular Schism; this was held by the Judges no good Plea. And thereupon Judgment was gi­ven against the Bishop for the Plaintiff, who thereupon had his Clerk admitted.

And because Readers were accountable to their Gover­nours, the Masters of the Bench, and if they did amiss, would severely punish them, he advised that no such thing might be done to a Reader, as to silence him from Reading, and there­by make a great noise and disturbance, but to let him go on, and if he did amiss, then to think of punishing him afterward; and to this the King and Council assented. But the Archbi­shop, fearing I would fall foul upon the High Commission (which I never intended, but in as fair and good terms as I could, deliver the Law, as will appear by my Argument of that point, which I have likewise hereunto annexed, as I have done the rest) made it his most earnest suit to the King, That I might be suspended from Reading; who at the rising of the Board, willed my Lord Keeper to tell me from him, That I should desist, which the Lord Keeper did the same day: But withal, advising me, as from himself, to go to the Arch­bishop and give him satisfaction.

After this Speech with the Lord Keeper, I returned home [Page 13] and acquainted my Masters of the Bench with the Kings plea­sure, who the next morning went to the Lord Keeper, who confir­ming the same, I was by them advised to desist from Reading.

And whereas the Historian saith, That after the Reader had been twice at Lambeth, without admittance, the third time he spake with the Archbishop.

Herein it a great mistake, and not without some wrong both to the Archbishop and me, which I shall thus make appear;

Readers of Law, during the time of their Reading, do hold up the ancient honour and dignity of a Reader, on whom, for that time, is devolved the Government of the House. They have four Cubbard men, ancient Barresters of the House to attend them in their Reading, and four Stewards to attend them in their Feasting, for the Inviting their Guests of No­ble Ranck, and ten or twelve men of his own to attend his person. In the maintenance of which dignity, on Tuesday the fourth of March (the natural course of my Reading not ending till Friday following) I sent two of my men to the Archbishop, to know his pleasure when I should wait on him, he sent me word by Mr. Dell his Secretary, on Thursday the 6 of March, that he did appoint eight a Clock in the morning; according to which hour I took with me Mr. Rog. Pepys (late Chief Justice in Ireland) the next Summer Reader, and other my Cubbard men, with my Servants, and went with them in a Barge to Lambeth: And so far was the Archbishop from making me dance attendance, that as soon as the Archbishop had notice I was come, he presently came out of his Chamber, with his Hat off, and met me in the great Chamber there, and walked with me in that posture from thence, almost to Lambeth Stairs.

The first Question he asked me was this,

Quest. Mr. Reader, Had you nothing else to do but to Read against the Clergy?

Answ. I answered, My Lord, my Statute was pro Clero, and I read not at all against them, but for them.

Well, saith the Archbishop, you shall answer it in the High Commission Court. My answer was this, That I knew the utmost power and Jurisdiction of that Court by Law, and that I had neither spake or done any thing that that [Page 14] Court had Jurisdiction to punish.

Quest. But had you no other time (saith he) to do it but in such a time?

Answ. My Reading was made long before the troubles in Scotland, and was not made for them but for England; and I was confident there was nothing in it that could have offended him, if his Lordship had been rightly infor­med.

After this Speech he was very silent, and walked with me without speaking a word until he came near Lambeth Stairs, and then I spake thus to him,

‘My Lord, if you have any thing else to say to me, I am ready to give you satisfaction, for I was sent to you by some of my Honourable friends for that purpose.’

His Answer to me was this,

‘Farewel, Mr. Reader, and much good do it you with your Honourable friends.’ And so we parted and never spake to­gether afterward: He taking water in his Barge to Whitehall, and I in mine to the Middle Temple.

I was sorry for the many troubles that fell upon him after­wards, though they were in no sort occasioned by me: for such was the malice and hatred then, and after, of the Scots against him, and such influence it had upon the people, that they never left prosecuting of him till he had quenched their fury with his Blood on Tower Hill.

On the 15 of May following, according to the manner of Readers before they are made Benchers, in the Parliament Chamber in the Middle Temple, when the Benchers of the House were there all assembled, and the Barresters called in (it being a Parliament of Attendance) I then, according to the manner of Readers, after my Assistant had made a Report of my Statute, of my Divisions upon it, and of my Cases upon those Divisions, and what acceptation it had in the House, I gave to their Masterships this account of my Reading, in manner following:

I chose for my Statute 25 E. 3 called, Statutum pro Clero, waving two former Statutes wherein I had much la­boured, Part of the Readers Speech in the Parlia­ment Cham­ber in the Mid­dle Temple May 15 fol­lowing. Articuli Cleri, made 9 E. 2 and Circumspectè A­gatis, [Page 15] made 13 E. 1 because I found the Statute of E. 3 late Law, and one of the best that ever was made for the Clergy. I gave divers reason of my choice, the main was this, The Honour I bare to my Profession of the Com­mon Law, by advancing it above the Civil and Canon Laws, and all other Ecclesiastical Laws exercised within this King­dome, from which they all have their being and Foundation, as the Lord Prisot truly notes, 34 H. 6 fol. 40.

To this performance I was invited by a Law of Grati­tude which I owed to my Education, being bred at the Feet of a Judge Ni­coili Gamaliel in the Law, that Married my Mother, and to my Alliance to three Judges more, all of them Readers of the Middle Temple, and all Northamptonshire men, where Chief Birron Sanders. from my Childhood I have lived.

Besides, in the choice of this Statute I thought I should Judge Morgan. Judge Harvey. deserve thanks from the Clergy, by the discovery to them of the many favours and priviledges they received, chiefly, and principally by the Common Law, to which Law, above all men in the Kingdome, they are most beholden. For I do not only speak it here, but I dare write it under my hand, That four of the nearest and dearest things Clergy men have at this day, viz. The blessing and happiness of true Reli­gion: The enjoyment of their Lives and Liberties: The Society of their Wives, and the benefit of their Church­livings in Glebe and Tythes (to speak in a Lawyers phrase, though, as the times are, I be jeered for it) they have, hold, and enjoy them all by, from, and under the Common Law.

Sed quanta de spe decidi: I little thought that by Expli­cating and unfolding the Priviledges and Liberties of the Clergy, I should tye a knot upon my own, which afterwards fell out: for upon the discovery of one of my Cases, touch­ing the High Commission, in the Points of Fine and Im­prisonment, proper for a Lawyer to handle (the Statute of 1 Eliz. and the Kings Commission upon it being both with­in the Verge of the Common Law) it so came to pass, that a Hercules Pillar was set upon my Reading, and a ne plus ultra Engraven on them. Whereupon I desisted, [Page 16] remembring that of Solomon, In the word of a King there is power, and who may say unto him, What dost thou? But yet that Hawley or Fonel that revealed my Case to my prejudice, and caused the first abortion to a Reader that ever was, Sit nigri Carboni notandus: and let that be hispunishment.

There ended my Reading, of which I may say as Lipsius said of one of his Works, That it was Omne meum, & ni­hil meum. It was omne meum, in respect of the frame and composition, having no help from any Reader upon that Law: and it was Nihil meum, in that I founded it upon Reasons and Authorities of Law, which saved me from ru­ine, and gave me a publick clearing for uttering any thing that was not according to Law.

But though I have done with my Reading, I have not done with my Speaking, for I was not silenced from that. I have something to speak, by way of thankfulness, to this Honourable Society, and so conclude.

And in this respect I am not ashamed to tell you of my debts, that I owe is much to this Society, as, in the relation of a Reader, I am really worth. For, consider a Reader in both his capacities, in his Reading, and in his Feasting, they were virtually, and in a manner both from you. My Read­ing was but a repeating a Lesson of Law which I have been learning in this House this 30 years, and my Feasting, in respect of the many Gifts I received from your Masterships, my Companions of the Cubbard, the Ancients of the Bar, and others of this Society, was but a kind of orderly and so­lemn distribution of all your Bounties.

And in dividing my Obligations per seperalia Capita, to your Masterships, to my Cubbardmen, to the Gentle­men of the Bar and under, my debts are rather increased then made less.

To your Masterships, for your free Choice and calling me to this place: For had you not called I had never come; and had you not encouraged after you had called, I should have fallen back.

To my Assistant and Companions of the Cubbard for their [Page 17] learned Arguments of my Cases, and defence of them after­wards from injury and misconstruction.

To all the Gentlemen, for their virtuous deportment in the Church of God, in the Hall, in the whole House, which was so orderly and generous, that I thought them so many Ancients; Juvenes aetate: sed senes moribus. And there­fore when a complaint came to me against any Gent. I knew not how to admit of any fault by my Eare, that could not see any by mine Eye. And that Honour they did me in their Ultimum Vale, beyond my desert, and as they well know, beyond my expectation, I shall never forget.

I will close up all in this one Period; I have rendred my thanks to you all Voce, my Conscience tells me I owe it much more Corde: and my Conversation shall teach me to do it Opere habent, & opera suam linguam. And though you have by these favours to me made me your Companion in Company, in Conference, and now in Council, yet my Love, my Duty, my Thanks shall make me a Servant to you, and to this whole Society for ever.

After this Speech I had thanks from them all Seriatim, and was made and confirmed a Bencher.

And now, having finished this Narrative, I shall, accord­ing to my promise, publish all my Arguments at large touching those four Points mentioned before in the Narrative.

The Readers Arguments upon the four Points mentioned before in his Vindication.
POINT I.

WHether an Act of Parliament may pass and be good by the Assent of the King, his Temporal Lords and Com­mons, and all the Spiritual Lords being absent, or if present, wholly disassenting? And I hold it may.

A Jove principium: This is a Point which mainly con­cerns our Religion, established by the Act of 1 Eliz. which [Page 18] passed by the assent of that Queen, her Temporal Lords and Commons (all the Spiritual Lords disagreeing) which, if no good Act, then is not our Religion confirmed by Parliament. This Point I framed from the opinion of as learned a Bishop as ever this Nation enjoyed since the hour it enjoyed him, I mean Bishop Jewel in the defence of his Apology against Dr. Harding, lib. 6. c. 2. divis. 1. where the said Act of 1 Eliz. for the Uniformity of Prayer and Sacraments is denyed to be a good Act for want of the concurrence of the Bishops. The Bishop affirms it to be a good Act: and his words are these Verbatim:

Where you would seem to say, That the Parliament holden in the first year of the Q. Majesties Raign was no Parliament, for that the Bishops wilfully refused to agree to the godly Laws there concluded, you seem therein to bewray some want of skill. The wise and learned could have told you, That in the Parliament of England, matters have evermore used to pass not of necessity by the special consent of the Bishops and Archbishops, as if without them no Statute might lawfully be Enacted, but only by the more part of Voices; yea, although all the Archbishops and Bi­shops were never so earnestly bent against it. And Statutes so passing in Parliament, only by the Voices of the Lords Temporal, without the consent and agreement of the Lords Spiritual, have nevertheless alwayes been confirmed and ratified by the Royal assent of the Prince, and have been Enacted and published under the names of the Lords Spiri­tual and Temporal.

Read the Statutes of King Edw. the First, there you shall find that a Parliament solemnly holden by him at St. Ed­mondsbury, the Archbishops and Bishops were shut forth, and yet the Parliament held good, and wholesome Laws were there enacted, the departing, or absence, or malice of the Lords Spiritual notwithstanding.

An. Dom. 1296 In the Records thereof it is written thus, Habito Rex cum suis Baronibus Parliamento & Clero excluso Statutum est &c.

[Page 19] Likewise in Provisione de Martona, in the time of King H. 3. Anno Dom. 1273. Stat de Marton. cap. 9. where matters were moved of Bastardy, touching the Legitima­tion of Bastards born before Marriage; the Statute past wholly with the Lords Temporal, whether the Lords Spiritual would or no; yea, and that against the express Acts and decrees of the Church of Rome. The like hereof, as I am informed, may be found Anno 11 R. 2. cap. 3. Howbeit in these Cases I walk somwhat without my Compass: Touching the Judgment here­of, I refer my self wholly to the Learned.

Thus far goeth that famous Bishop.

This Opinion of the Bishop I shall confirm by considering the Law in two Points.

Point 1. Whether an Act of Parliament may pass by the Tem­poral Lords onely, the Spiritual Lords being all present, but dis­agreeing ad disassenting to the Act.

And this was the very Case in passing of that Act of 1 Eliz. For in the Journal of that Parliament, it is said, That all those matters which in that Parliament concerning the Church Ser­vice and Sacrament, the Bills passed dissentientibus Episcopis, with a particular enumeration of their names which dissented; as likewise two Orations are recorded in the Journal to be made by Dr. Scot Bishop of Chester, and Dr. Fecknam Abbot of Westminster, against that Act.

Now that this was a good Act of Parliament, though all the Bishops disagreed, it is manifest by the course of all Parlia­ments; for the Bishops sit in Parliament, not as they are Spi­ritual men, but by reason of their Temporal Baronies annexed to their Dignities; Nonratione Nobilitatis, as Stamford speaks Pl. Coron. fol. 153. sed ratione Officit. And therefore if the voices of the greater number of temporal Lords exceed theirs, the Act shall pass as the Act of the whole Lords House, and their voices shall be involved in the greater number of the Temporal Lords; and so shall be the Act of all the Lords, as well Temporal as Spiritual: Andso is the Book of 11 H. 7. fol. 27. Bro. Parl. 107. And so is the Act-Roll of 1 Eliz. Ex assensu omnium Dominorum tam Spiritualium quam Tempo­ralium. And so is likewise the Printed Act, and so it ought to be. This will better appear, by considering the divers forms [Page 20] of Penning of Statutes from the time of Magna Charta to this day.

1. Rex statuit, as Magna Charta, and other old Statutes.

2. Statuimus & Ordinavimus, as 27 E. 1. Stat. de Finibus, And both these forms are good; for in them both are implied the Lords and Commons.

3. Be it enacted by the King, with the assent of the Lords and Commons, according to the Book in 11 H. 7.

4. But the best form of all is, Be it enacted by the Authority of Parliament: And so are the Books of 7 H. 7. fol. 14. Bro. Parl. 76. and Crompton, Jurisdict. of Court, f. 12.

The proofs of this Point will further appear in handling the second Point, which I now come to.

Point 2. Whether an Act of Parliament may pass, all the Spiritual Lords absenting themselves from the House of Peers? And I think it may.

That this may not seem strange, I will back it by Authority in Law, by Example, and Reasons.

1. For Authority in Law. It is the resolution of all the Judges of England, 7 H. 8. 184. Kelwayes Reports, in these words; Nostre Sur l'Roy port assets bien tener son Parliament per luy ses Surs temporall & Commons tout sans l'Spirituall Surs. i. e. Our Lord the King may well enough hold his Parliament by himself, his Lords temporal, and Commons, without the spiritual Lords at all.

According to this resolution, there are many Examples. The Parliament summoned at Edmonds-Bury, which the Bishop 24 Ed. 1. mentioneth, was a good Parliament, and yet all the Pre­lates were excluded, and upon very great Reasons; which is not mentioned by the Bishop. That K. E. 1. being exerci­sed in martial affairs, levied a great sum of money of Laity and Lamb. P [...]amb. of Kent, fol. 276. Chartim. Clergy for the supply of his wants, the whole Clergy refused, upon a Constitution of Pope Boniface the 8th. That if any Clerk gave to a Lay-man any part of his Spiritual Goods, he should forthwith stand Excommunicate: Whereupon at this Parlia­ment, by the King, the Temporal Lords and Commons, (all the Bishops and Clergy excluded) it was enacted, That their Persons should be out of the Kings Protection, and their Goods [Page 21] subject to Confiscation, till they submitted themselves to the Kings favour, and yielded their obedience

So in the Parliament of 11 Rich. 2. The Appeals, Judg­ments and Executions of that Parliament, were approved, not­withstanding all the Spiritual Lords were absent. And Rot. Parl. 11 R. 2. m. 6. Artic. 9. the cause of their absence is there at large set down by a notable Protestation of William Archbishop of Canterbury, in the behalf of him and his Clergy.

Stat. 38 E. 3. c. 1. Against Provisors and Provisions of the Pope, it is there said to be made by the King, with the assent of his Dukes, Earls, Barons, and Commons, without mention­ing the Prelates, which it seems did purposely absent them­selves. For Rot. Parl. 38 E. 3. m. 2. the Prelates make an ex­press Protestation of their disassent to the Ordinances made against the Church of Rome, which may turn to the prejudice of their Estate and Dignity.

So the Statutes of 3 R. 2. cap. 3. & 7 R. 2. cap. 12. were enacted and passed by the King, the Lords Temporal and Com­mons onely, without the Prelates.

The Reasons of this are these:

1. The first is given by the Judges, 7 H. 8. cited before: For that, say they, the Spiritual Lords have not a place in Par­liament by reason of their Spiritualties, but by reason of their Temporal Possessions; which is the reason that the Bishop of Man comes not to the Parliament, because he hath no Tempo­ral Barony annexed to his Bishoprick: And diver Abbots and Priors, to the number of 27. that had Baronies annexed to them, came to the Parliament, until the Statute of Dissolution of Monasteries. And the time when both Bishops and Abbots were first made Barons of this Realm, is said to be in the 4th. year of William the Conquerour, as appears by the late Irish Report, Case of Tenures, p. 34, 35.

2. It would be mischievous, if in some Cases Acts should not be made without the Bishops; for no Bishop is by his Order to come to the Parliament when Judgment of Death is given upon any man, as notably appears by the Statute of 11 R. 2. cap. 2. and the Parliament Roll I cited before. And at this time the Baronage is wholly in the Temporal Lords to [Page 22] pass such an Act: For no Bishop is a Baron in respect of his person, but of his Temporalties; which is the reason that he is not tried by his Peers, as the temporal Barons are, but by ordinary Juries, as fell out in the Case of Fisher Bishop of Ro­chester, temp. H. 8. And Cranmer Archbishop of Canterbury, 1 Mar. who were both tried by common Juries.

So Hill. 17 E. 2. Rot. 87. dors. Adam Bishop of Here­ford, being indicted for divers Felonies, and joyning with Ro­ger Mortimer, was arraigned in the Kings Bench. and tryed by a common Jury.

The like was of John de Ile Bishop of Ely, Trin. 30 E. 3. Rot. 11.

The Readers Argument upon the Second Point.

WHether at the time of making my Statute 25 E. 3. a. Be­neficed Clerk might by Law exercise Civil Jurisdiction, and be a Justice of Peace? And I think he could not.

I put the Case of a Beneficed Clerk, not of a Bishop; and how the Law was in this Point, at the time of my Statute.

Which, because the practise is otherwise at this day, I will fully and clearly prove it.

I will first begin with the Law of the Church, called in our Books, The Canon Law.

Look the Decrees of Gratian, caus. 21. q. 2. c. Pervenit & Distinct. 88. Extra. de vita & honestate Clericorum; and Ex­tra. Ne Clerici vel Monachi, &c. and you shall find these things expresly decreed, That they are not to take Lands to Farm, nor to traffique and trade, (with which agrees the Sta­tute of 21 H. 8. cap. 13. still in force,) nor to be Stewards and Bailiffs of great men, nor to be Sheriffs or Justices, nor to meddle in secular affairs, upon this ground of the Apostle Paul to Timothy, Nemo militans Dei implicat se in negotiis hujus se­culi: They are spiritual Souldiers, and may not meddle in worldly businesses.

Object. But it will be said, This is the Popes Law, which is now abrogated.

[Page 23] Answ. I will therefore prove it by much better Law. And first, by the Canons of the Apostles, Can. 6. Thus, Episcopus, aut, Presbyter, aut Diaconus seculares curas non suscincto aliter deponitur.

The Imperial Constitutions, Code lib. 1. tit. 3. Sect. 17 Pla­cet nostrae clementiae ut nihil commune Clerici cum publicis acti­onibus habeant vel ad Curiam pertinentibus cujus corpori non sunt annexi.

The Provincial Constitutions which in our Ecclesiastical Courts are of as much Authority as Aristotle in the Schools. In a Constitution of Stephen Langhton, Archbishop of Can­terbury, it is thus said, Praesenti decreto Statuimus ne Clerici Stefhen Langh­ton. Tem. Jo­han. R. Beneficiati sivè in sacris ordinibus, sint senescalti aut Balivi nec Jurisdictiones exerceant seculares praesertim illas quibus Judicium sanguinis sit annexum. Linwood de Immunitate Ec­clesiae, fol. 194.

Put more fully by the Legantine Constitutions of Othobon, which I will repeat Verbatim:

Grave ac sordidum reputamus: Quod Clerici quidem ter­rena Const'tut. Othobon. lucra foeda petulantia & avida voracitate jurisdictionem à laicis recipiunt secularem ut Justitiarii nuncupentur sivè Mi­nistri Justitiae quam non possunt sine clericalis ordinis injuria ministrare. Nos igitur horrendum hoc vitium extirpare vo­lentes, &c. And then provides that the man which com­mitteth such offence ipso facto, ab officio & Beneficio sit sus­pensus.

And that the Common Law of England excluded Clergy­men from being Justices of the Peace, at or about the time of making my Statute, it appears by the Stat. of 34 E. 3 cap. 1 In every County of England shall be assigned, for the keep­ing of the Peace, one Lord, and with him three or four of the most Valiant men of the County, with some learned in the Law: Not a word is here spoken of Clergy-men. And what is meant by Valiant men, is well expounded by the Statute of 13 R. 2 c. 7 That Justices of Peace shall be made in all the Counties of England of the most sufficient Knights, Esquires and Gentlemen of the Law of the said Counties. And it ap­pears Rot. Par. 13 R. 2 n. 13 that this Statute was made at [Page 24] the prayer of the Commons, and with the assent only of the King, the Lords Temporal and Commons, the Spiritual Lords having formerly protested in Parliament, 6 R. 2 Rot. Parl. nu. 5 that they had not to do with matters of the Peace.

The first Clergy-men that I find to be Justices of Peace by any Statutē, are the Bishops of Ely and Durham, for the Ile of Ely and Durham, and the Archbishop of Yorke, for the Liberty of Hexam, 27 H. 8 cap. 25. But then there is a pro­vision by that Statute, to make their Temporal Chancellers to be Justices, for the excusing them, as I conceive, from their personal attendance at the Sessions.

Object. But it will be objected, They are made Justices of Peace by the Kings Commission, and may be punished if they should refuse.

Answ. It is rara avis to heare of a Minister punished for refusing to be a Justice of Peace: For by Law he may refuse.

By his Orders he may refuse, as I conceive, and by vir­tue of his Consecration. For in the book of Ordination of Priests and Deacons, confirmed by the Parliaments of 1 Ed. 6 and 1 Eliz. he is there charged by the Bishop, To give himself wholly to his Spiritual Vocation, and wholly to apply himself to that one thing, and to draw all his cares and Studies that way, and to that end.

And this not all, but the Bishop doth require a promise of the Ordained Priest to that purpose; for the Bishop asketh him, If he will be diligent in Prayers, and Reading Holy Scrip­tures, &c. laying aside the study of the World and the Flesh: And the minister answers, That he will endeavour himself so to do.

All which said together, will amount to a good excuse of a Clergy-man from secular imployment.

As in truth it did of late to the Lord Keeper Coventry, in the Case of one Mr. Samuel Johnson, Clerk, Son and heir of that Johnson that was the extraordinary kind Husband, from whence was the Proverb of Drinking to Mr. Johnson. This man was lately made High Sheriff of Rutland shire, and plead­ing his Orders of a Clergy-man to the Lord Keeper, he was forthwith discharged, and another Sheriff chose in his place.

[Page 25] There is a Writ in the Register, and in Fitz. Nat. brev. 175 b. named, Breve quod Clerici non eligantur in officio Ballivi pro terris suis, which lyeth in a stronger Case then this is. As if a man holdeth divers Lands of a Lord of a Manor, to be a Bailiff, Bedel, or Receiver, if this man be once made a Clerk, and afterward chosen unto such an office, the Lord may Distrain, in case the child should refuse; yet this Writ will compel the Lord to let him alone and to dismiss him. And the reason is given in the Writ it self, Because the Law supposeth him to be so continually imployed in works of Piety and Hospitality, that he is not at leisure to attend no secular affairs.

The same reason may be given for a Clerk made a Justice of Peace.

Object. But it will be objected, That my Statute is for the Clergy, but I seem in this opinion to be against it.

Answ. I answer, That in this I am for the honour and ho­nesty of the Clergy: For in those Provincial Constitutions which I mentioned before, the Clergy are there enjoyned to abstain ab omnibus eis quae honestatem corum deformant. And Linwood, a principal Author of the Canon Law, gives this instance of that deformity, Deformatur haec honestas cum Clericus se immiscet in negotiis secularibus, Linw. lib. 3. De vita & Honestate Cler. fol. 87.

So that by their Law it is a dishonest thing for Clergy-men to meddle in secular affairs.

The Readers Argument upon the Third Point, being the Fourth Point of his Third Case, upon the Third Division of his Statute.

WHether an Heretick may, at this day, be Convicted and Condemned for Heresie by his own Ordinary alone? And I think he cannot.

It is a great Question and mainly concerns the life and li­berty of the Subject, and deserves a much larger debate then I can now afford it. I being opposed herein by a learned Dr. Cosens. Civilian, sometimes Dean of the Arches, in the first part of his Apology for Ecclesiastical proceedings, fol. 81. who de­nies Fitz Herberts opinion, Nat. brev. 269 D. to be Law, who saith, That a man cannot be convicted for Heresie but by the Archbishop and the whole Clergy of the Province in their general Council of Convocation. But this Civilian (with di­vers more of his mind) doth hold, That an Heretick, both be­fore the statute of 2 H. 4 c. 15 and now at this day, may be both convicted and condemned to be burnt by his own pro­per Ordinary.

For the clearing this, three Questions do naturally arise,

1. What shall be said such an Heresie for which a man shall be condemned to the fire?

2. Who shall be the Judge that shall Convict for He­resie?

3. By what Law is it, Common or Canon, that an Heretick, after conviction, shall be burnt?

Quest. 1. For the first, it appears by the Canon Law, Linw. cap. de Hereticis, fol. 213. that there are no less then 88. sorts of Heresies, which is the cause that the Canonists cannot agree about the definition of an Heretick. I will name but two of their best definitions.

1. The first is in the fourth book of the Institutes of the Ca­non Law, cap. de Hereticis, fol. 248.

Hereticus est qui vanae gloriae principatus sui causa falsas Launcellot. [Page 27] opiniones gignit vel sequitur. If this were Law, how many Scholers would at this day be burnt for Hereticks?

2. I come therefore to a second Definition, given at home in our Provincial Constitutions, cap. de Hereticis, fol. 211. where Linwood having toil'd himself with about twenty De­scriptions of an Heretick, falls upon this as the best, Omnin, (saith he) censetur Hereticus qui non tenet id quod docet & sequi­tur sancta Rom. Ecclesia. Hence it was, that by their Law a man was questioned for an Heretick for very small things, viz. For eating flesh in Lent; for standing out an Excommunicati­on, though it was perhaps for some extorted Fees of the Court. Nay, you shall find, 1 H. 7. fol. 17. That a man was question­ed for Heresie, upon the Statute of 2 H. 4. c. 15. because he held an opinion, That one might pay his Tythes where he pleased, and not to his own Vicar; when as by the Counsel of Lateran, Tythes were only to be paid to Parsons and Vicars of the proper Parish: and so he, as an Heretick, offended contra sanctiones Ecclesiae. And I dare be bold to say, That in that bloudy Roll of Martyrs, which began from the first year of H. 4. to the làst year of Q. Mary, there was not a man burnt for holding any thing contra Canonem Scripturae; not an old Arri­an, which is the Socinian at this day; nor an old Pelagian, which is now the Arminian: But for holding Opinions contra sanctiones Canonicas, as saith the Writ De Haeretico comburendo, founded upon that Statute of 2 H. 4. which was the reason that upon the grievous complaint of the Commons, 25 H. 8. cap. 14. That the cruel Statute of 2 H. 4. and a Proviso in the Act, That men should not be questioned for Heresie, for maintaining Opinions against the humane Laws and Policies of the Bishop of Rome; but for Opinions that were contrary to Holy Scripture.

And accordingly was the resolution of the Judges, Trin. 9. Jac. Rot. 2248. in a prohibition to the High Commission in Sir Henry Vinor & Pellings Case: That Heresie shall not be un­derstood all that which the Canon-Law makes Heresie; but that which is contrary to the Holy Scripture, and the four first General Councels, according to the Statute of 1 Eliz. cap. 1. And with this agreeth that true and ancient Definition of He­resie [Page 28] by old Grosted Bishop of Lincoln in H. 3. time; Haeresis (saith he) in Greek, is Electio in Latine; Et est sententia hu­mana sensu electa sacrae Scripturae contraria palam acta & perti­naciter defensa.

Quest. 2. The second Question, and which fully decides the point of my Case, is this, Who shall be Judge in the convi­ction of an Heretick? Whether the proper Diocesan, accord­ing to the opinion of this Civilian, and other Civilians agree­ing with him? or according to the opinion of Fitz Herbert, it must be by the Convocation of the Clergy of the Province.

And I hold, That the Bishop of the Diocess is not to be the onely Judge, but that it must be done by the Convocation of the Clergy of the Province. Which because of this oppositi­on against me, I will prove, first by Reason, secondly by Au­thority, thirdly by Example.

1. For the First. The ancient Ecclesiastical Laws of England never gave further power to the Bishop or Ordinary, but accord­ing to his Calling to proceed to Ecclesiastical Censure, not to fine and imprison, much less to kill or burn, which are temporal acts, not spiritual, until this power was given them by the Sta­tute of 2 H. 4. Onely I find, that before this time a Bishop had a greater priviledge over a Clergy-man, than over a Lay­man: For, by the Constitutions of Boniface Archbishop of Canterbury, temp. H. 3. Lind. fol. 141. a Clergy-man might be imprisoned by his own Ordinary in two cases; spiritual For­nication, as Heresie, and corporal Fornication, as Incontinen­cy, as appears by that Constitution, and the Statute of 1 H. 7. cap. 4. still in force.

But when as Heresie came to be punished with death, the Law would not trust the Ordinary alone in such a case, but re­ferred it to the whole Province of the Clergy, for these two Reasons.

1. The power which the Law gave to the proper Ordinaries, was that of the Master to the Servant, or rather of the Husband to the Wife, to admonish and correct, not to kill and burn.

2. For avoiding of partiality and ignorance, which might be in one man, but could not so easily be suspected to be in many; [Page 29] and therefore the condemnation of an Heretick was done with great solemnity, as the Writ supposeth, N. bre. 269. Thomas Archiepiscopus Cant. &c. de consilio & consen su omnium Coepisco­porum nec non totius Provinciae suae in concilio suo Provinciali con­gre gati, &c.

2. And according to these Reasons are, in the second place, the Authorities of Law. Fitz Herberts Opinion, fol. 269. D. the form of the Writ, mentioning it to be done by the Clergy of the Province. Neither is there any Writ to be found, which gave the power to the Bishop alone. It is the resolution in Cawdries Case, 5. Rep. fol. 23. and 2 Mar. Little Brooke, That the conviction of an Heretick must be by the Clergy in their Convocation; for all the while the Statute of 2 H. 4. was in force, this Writ was not used, by reason of the Act; for the Sheriff might, by that Act, meerly by the command of the Bishop, with­out the Kings Writ, burn Hereticks: Which was for that reason taken away by the Statute of 25 H. 8. and afterward revived by 1 Mar. whereupon, in her days, two cruel Bishops, Gardiner and Bonner, did burn more Hereticks then were burned from H. 4. time, till 1 Mar. And a very strange and lazie Reason is given by the Judges 2 Mar. Br [...]it. Heresie, why a Bishop should convict and burn an Heretick without a Writ, Purcee q. fuit troublesom de appellex Convocation de tout l' Province; Because it was troublesome to call a Convocation.

3. I will prove it by the aptest Example which can be na­med; viz. William Sawtree, so named in the Writ, who was burnt in the time of the Statute of 2 H. 4. and was the Proto­martyr, the first in England that was burnt for Heresie; who was convicted by the whole Convocation of the Clergy, as ap­pears by the Writ, Fitz. Nat. bre. 269. and the Acts of the Church at that time.

This William Sawtree was of Pembrook-Hall in Cambridge, which hath this Honour, that Martyrum primus Martyrum doctissimus, and Martyrum piissimus, were all of Pembrook-Hall: Martyrum primus was William Sawtree; Martyrum doctissimus was Bishop Ridley, Bishop of London; and Marty­rum piissimus was John Bradford, Prebend of Pauls, both burnt in Queen Maries days. William Sawtree was Parson of [Page 30] St. Margarets in Lynne, within Norwich Diocess. The Bishop of Norwich quickly met with him, before whom he did abjure; and afterward relapsing, upon the Certificate of his own Bishop, he was by Thomas Arundel, then Archbishop of Canterbury, (the framer and contriver of that Act of 2 H. 4. as I can prove,) and the whole Province of Canter­bury, convicted of Heresie: And although the Statute of 2 H. 4. was made ere he was burnt, yet the Prelates were fearfull to proceed according to the new form in that new Act; but pro­ceeded against him according to the ancient course of Law, by conviction in the Convocation.

His notorious Heresies were these.

  • 1. That he would sooner worship a temporal King, or any other man, rather then a wooden Crossor Crucisix.
  • 2. That a Priest or Deacon was more bound to preach the Word of God, then to say the Canonical hours.
  • 3. That after the words of Consecration, the Bread was bread us it was before, and not the Body of Christ.

The Objections against this my opinion by that learned Dr. of Law, are two Authorities cited by him, but no reason of them given at all.

Object. The first is 10 H. 7. fol. 17. b. to prove that a Bi­shop may convict for Heresie before the Act of 2 H. 4.

Answ. To which I answer, There is no such thing, but rather the contrary: For that which is there said, is onely the opinion of Frowick, viz. That a Bishop may, by the Statute, arrest for Heresie, whereas before he could but, for that or any other Ecclesiastical matter, send out onely a Citation. Certainly, if he could not arrest, which is the less, he could not condemn to the fire, which is the greater.

Object. That he heard in Queen Elizabeths time, the two Chief Justices, the Chief Baron, and divers Judges, with other of that Queens learned Councel, to be of opinion, That at this day the Bishop of the Diocess may convict for Heresie.

Answ. To which I answer, That it is but his Hear-say; and seeing he names not the time, nor the Judges, nor their Rea­sons, the old Rule may be applied to him, Quae sine ratione ob­jiciuntur pari facilitate rejiciuntur.

[Page 31] Quest. 3. By what Law is it that a man is burnt for He­resie, the Common Law, or by the Canon Law, called, in our books, the Law of the Church?

I answer, That it is by the Canon Law, not by the Com­mon Law.

Object. But it is said by Briton, lib. 1 cap. 17 and by 2 Mar. Littte Brook, That an Heretick shall be burnt b the Common Law.

Answ. To which I give this answer, The Common Law is taken two wayes,

  • 1. Strictly.
  • 2. Largely.

The Common Law strictly taken are those ancient grounds and Maxims of Law which agrees with the Fundamental Law of Reason: largely taken, it is the allowance and approba­tion of the grounds and customes of another Law. This de­stinction is warranted by Dr. and Student amongst his six Grounds of Law.

As for instance: It is said in our books, 9 E. 4 19 H. 6 21 1 E. 4 and divers other books, That such and such men shall not have their Clergy by the Common Law, as you may read at large, Stamf. pl. cor. lib. 2 cap. 42 And yet cap. 41 that Clergy was an ancient priviledge of holy Church, and had his beginning by the Canon Law, and not by the Com­mon Law, saith Stamford.

So I say in our Case, This burning for Heresie, being no­thing else in that Law but a breach of the Decrees of the Church, was a Brat of the Canon Law, and had its Original meerly from that Law, Anno Dom. 1184 by Pope Luoius the Third, and confirmed by Pope Gregory the Ninth, in the Fifth book of the Decretal Epistles, cap. 9 fol. 360 as you may reade there at large. And therefore for the honour of the Law of England, when at the time of the first hatching of this cruel Law many of the Paterini and Publicani who held the opinions of the Waldenses were by multitudes burnt in France; and the same course was much pressed upon King Henry the Second, then King of England: Rex Anglorum Henricus se­iundus (saith Roger Hovenden an ancient Historian) id nullo [Page 32] modo fieri permisit in terra sua, licet ibi essent quamplurimi. Neither was any burnt in England till the Statute of 2 H. 4 was made, if I may call it a Statute, for the truth is, both the Statute printed in English amongst the Statutes, and the Statute in Latine amongst the Provincial Constitutions of Tho. Arundel, differ much from the Parliament Roll; for the truth is, that Act of 2 H. 4 was never assented to by the Commons, as may appear by the Title of the Roll, which is, Petitio Cle­ri contra Hereticos, tit. 48. And whereas in the Act it self it is said, Praelati & Clerus supradicti ac & etiam communi­tates dicti Regni supplicarunt. These words, Ac etiam Com­munitates dicti Regni, are not in the Parliament Roll which I have seen; for both in that Roll, and in the Latine printed Act, when the Law comes to be Enacted, it runs in this form of words, Qui quidem Dominus Rex ex assensu Magnatum & aliorum Procerum ejusdem Regni concessit & statuit, &c. where there is no mention made at all of the Commons. And therefore to help this fault, the words of aliorum Proceruns are thus rendred in our English Statute, And other discreet men of the Realm, whereby is implyed the assent of the Commons; which word Proceres was never so Englished before, till the Clergy made this Construction of it.

And therefore by the grievous complaint of the Commons against the injustice and cruelty of that Law, it was upon their complaint, by the Statute of 25 H. 8. c. 14 quite repealed and annulled, as you may see in that printed Statute, and in Fitz. Nat. brev. fol. 269 D.

The Readers Argument of the Fourth Point, put in his Fifth Case, upon the Fourth Division of his Statute.

WHether the Fine, Imprisonment, Deprivation and Ex-communication of a Clerk for Enormous offences (and no particular offence named) be good or void in Law? And I think the sentence to be void and against Law.

This is a great and a high question, and much concerns the [Page 33] Liberty of the Subject (a most precious thing). Libertas est res inestimabilis, was the Motto of the Emperor Justin. upon the reverse of his Coyn. And in this point Magna Charta is broken in two Chapters, cap. 1 Habeat & Ecclesia Anglicanae libertates suas illaesas, and here is an English Clergy-man un­done: And cap. 29. Nullus liber homo imprisonetur nisi per le­gem terrae, and here is a free Subject quite destroyed in his Goods, by his Fine; in his Land and Living, by his Depri­vation; in his Body, by his Imprisonment, Take him Goaler; in his Soul, by his Excommunication, Take him Devil; For that is the meaning of that sentance, Tradatur Satanae.

In the discussion of this great Point there will arise four ma­terial Questions, needful to be handled.

1. Whether the High Commission can inflict this punishment, or any part of it, but for high and enormous offences? And I think it cannot.

2. Whether the High Commission can Fine and Imprison for all enormous offences, or only some? and what those are? And I think it can Fine and Imprison (being meer temporal acts) but only for some enormous offences.

3. Whether the High Commissioners in their Sentence of Fine and Imprisonment, &c. are to express the particular enormous of­fence, that the Kings Court may judge of it? And I think they are in their Sentence to express the particular offence, or else their sentence is void.

4. Whether the Construction of the Stat. of 1 Eliz. c. 1 for Fi­ning and Imprisoning for enormous offences, belongeth to the Kings Temporal Judges, or to the Judges Ecclesiastical? And I think the Exposition of that Statute belongs to the Kings temporal Judges.

There are five more questions concerning the High Commis­sion, which I will omit to speak of, as being not so pertinent to my point, and too long to be handled, though otherwise of great use to be known.

1. When the first Ecclesiastical Commissioners went forth? for at the time of making my Statute they were not used, all Ec­clesiastical Jurisdiction, being then in the Ordinaries Courts.

2. What was the nature of the Oath, Ex Officio, which was [Page 34] used upon some of those Ecclesiastical Commissions? and for what reason the Oath was taken away by the Stat. 25 H. 8 cap. 15.

3. What was the forme and manner of proceeding in those Ec­clesiastical Commissions? A needful question, and very useful to be known at this day: For, Misera est servitus ubi jus est vagum aut incognitum.

4. What Fees were due to Pursevants, Clerks, Registers, or other Officers imployed in such Ecclesiastical Commissions?

5. Because those Ecclesiastical Commissions were by the King granted sometimes to meer Laymen, as 31 H. 1 cap. 14 to Tho­mas Cromwel Earl of Essex, &c. Sometimes to Laymen and Clergy men, as at this day, Whether Common Lawyers did not then, and might not now plead at those Ecclesiastical Commissi­ons Vide Stat. 24 H. 8. c. 12. as they do now before the Judges Delegates?

But these are not so pertinent to my present point, and there­fore I will only speak of the first four.

Quest. 1. Whether the High Commission can inflict this grie­vous punishment, put in my Case, or any part of it, but for high and enormous offences, and not for all offences? And I think and do hold, That the High Commission cannot punish but for high and enormous offences, upon these words of the Statute of 1 Eliz. c. 1 (Errors, Heresies, Schismes, Abuses, Contempts and Enormities) and that for these Reasons:

Reas. 1. From the signification of the words High Com­mission, and Enormous offences, or Enormities.

It is called, High Commission, not that one Commission of the Kings is higher then an another, for the King is the same in all his Commissions. Neither is it called, High Commission, by reason of the greatness of the persons to whom it is direct­ed, for in the Commissions of Oyer and Terminer of the Peace, and of the Sewers, the persons are equally as high and as great: But it is called High Commission, as the late Bishop of Lon­don, Dr. King Expounded it in Mr. Fermers Case, Parson of Charwelton in our County, because they had jurisdiction of high and great offences, and not of petty and slight omissions, as he was then questioned for.

The word Enormity, or Enormous offence, is well Expound­ed by the Statute of 2 E. 3. c. 2. to be a great and horrible Tres­pass, [Page 35] as it is there called: For the Commissions issued forth up­on that Statute of Oyer and Terminer, were to be revoked when the trespass was but pettie and slight, and was not enormis seu horribilis transgressio. And this appears plainly in the Register, fol. 125. a. by the Writ there, De Revocatione brevis de audien­do & terminando; and the Reason is given in the Writ, Quia non est enormis laesio.

Reas. 2. The second Reason is taken from the Foundation of the High Commission, grounded upon the Statute of 1 Eliz. It appears by the main scope and intent of that Act, That the Com­mission founded upon that Act, was to issue forth principally for the Visitation of the Ecclesiastical Estates and Persons of that time, and for the correction, reformation and ordering of the same.

Now the Ecclesiastical Estate of that time stood thus.

Queen Mary died Novemb. 17. 1558. Queen Elizabeth cal­led her Parliament Jan. 23. following, with a full purpose to restore and establish the reformed Religion, happily begun by her Brother K. Edward the 6th. and to abolish the Jurisdiction of the Pope; all her Bishops at this time forsook her, but only Antho­ny Kitchin, Bishop of Landaff; Cardinal Pool, Archbishop of Canterbury, died the same day Q. Mary died; Heath, Archbi­shop of York, that should in that vacancy have set the Crown upon her Head, refused to do it, onely Owen Oglethorp Bishop of Carliel performed that Solemnity. Hereupon that Parliament, con­sisting of the Temporal Lords, provided for the good and safety of the Queen, and of true Religion, by petitioning her for this Ecclesiastical Commission. By which Commission which went out in the first year of her Reign, being but Twenty Sheets of Paper (but now above an Hundred) Fourteen Bishops were deposed, and many more of the Popish Clergy deprived: And in this first Commission, the chief persons named in it (if not all) were temporal men; and the offences and enormities which that Statute principally intended and enquired of, were the denying of the Queens Supremacy, and the withstanding the Reformed Religion then established, and other crimes in a second respect.

Reas. 3. The third Reason is taken ab Incommodo: For if the High Commission should have Jurisdiction of all Causes what­soever, [Page 36] great and small, then will the ordinary Jurisdiction of Bishops in their several Diocesses quickly vanish and be extin­guished, and the Subject grievously vexed, in being fetched up one hundred or two hundred miles, and more, from his abode, whereas he might have Justice in the Ordinaries Courts nearer home: For the High Commission hath its Jurisdiction all over England, and Ireland, (Scotland being not then united to the English Crown, and therefore not extending to it) which was never the intent and meaning of that Act of 1 Eliz. And for these Reasons, many Prohibitions have been granted to the High Commission, out of the Kings Courts of Westminster, when they have meddled with inferiour offences. As,

Mich. 44 & 45 Eliz. C. B. between Taylor and Massie, for carrying Corn on Holy-days, and giving irreverent speeches to the Minister, and whistling and knocking at his door, and saying, He made Musick for his Daughters wedding: A Prohibi­tion was granted for these things, as too light for the High Commission.

The like Prohibition was granted out of the Court of Com­mon-Pleas, Mich. 42 & 43 Eliz. Rot. 503.

Trin. 44 Eliz. C. B. between Robert Pool Clerk, and Tho­mas Guy; a Prohibition was granted to the High Commission for holding Plea for the assaulting and laying violent hands on the said Pool, being a Parson, upon this Reason, For that they were not offences proper for the High Commission, but for the Bi­shop of the Diocess to meddle with. And in all these Prohibitions, and many more that I could vouch, the words in the Record inducing the Prohibition are these: Licet omnia & singula pre­missa in articulis praedict. specificat non sunt laesiones enormes, nec offensa adeo gravia unde praedict. Commissionarii dicti Domini Re­gis virtute actus praedict. de Anno primo dicto Dominae Reginae Eliz. cognitionem habere possint seu debeant. As it appears in the Case between Vivers and Pellings in the Common-Pleas, Sexto Iacobi, Cok, Entry's fol. 465.

Quest. 2. Whether for all those enormous offences of which they have Cognisance and Iurisdiction by the Letters Patents, they can fine and imprison? And I think they cannot. My Reasons are these.

[Page 37] Reas. 1. The first Reason is this, The Ecclesiastical Juris­diction restored by the Statute of 1 Eliz. to the Crown, was that which was then usurped by the Pope: Now it is confessed to my hands by all the Civilians, That the Pope did not at that time, nor any time else, exercise any Ecclesiastical Juris­diction within this Kingdome by Fine and Imprisonment, which are temporal acts, belonging to the temporal Sword; but only by the spiritual Censures of the Church, belonging to the Keys, which are six in number, Suspension, Sequestration, Deprivation, Degradation, Interdiction, and Excommunication. And there­fore I do conclude, That the Law of Fining and Imprisoning was never given to any Clergy-man, by any Spiritual Law of this Realm, and used at the time of the Statute of 1 Eliz. was made; of which I will speak of anon.

Reas. 2. The second Reason is taken out of Dr. and Student, lib. 2. cap. 29. which is of singular Authority in this Case, he be­ing as well an excellent Canonist, as a Common Lawyer: Where he puts the Case, That if the Church should decree that an He­retick should forfeit his Goods, that Decree were void, because the Goods of men be Temporal, and belongs to the Kings Courts. And I think (saith he) that the Ordinary could not have set a Fine upon an Heretick, until it was so ordained by the Statute of 2 H. 4. c. 15. Whence I infer, That if an Ecclesiastical Court cannot Fine by their Law, A fortiori it cannot Imprison.

Now that the High Commission Court is a meer Ecclesiasti­cal Court, it appears by the form of the Prohibitions directed to them, by which it is called Curia Christianitatis Commissiona­riorum Dom. Regis in Causis Ecclesiasticis. Cok. Entries, f. 465.

We must therefore enquire, what the Law was of Fining and Imprisoning at the Common Law by the High Commission, at the time of the making of the Statute of 1 Eliz? For no Law or Statute since that Act hath given them that power. And I find but two Cases, in all my reading and study in it, wherein the High Commission have power to Fine and Imprison:

1. The one is by the Statute of 2 H. 4. cap. 15.

2. The other is by the Statute of 1 H. 7. cap. 4.

By the Statute of 2 H. 4. every Bishop might Fine and Im­prison in his Diocess for Lollardy, then counted Heresie and [Page 38] Schism, which is now repealed by the Statute of 1 Eliz. cap. 1. and therefore I will speak no more of it.

The other is the Statute of 1 H. 7. which is still in force; by which Clerks only, and not Lay-men, convicted before their Ordinaries of Adultery, Fornication and Incest, or other fleshly incontinency, shall be by them committed to Prison; and that no Bishop shall be chargeable by Action of false Imprisonment, for such commitment. Wherein this plainly appears, That an Action of false Imprisonment had lain at the Common Law, for imprisonment by the Ecclesiastical Court, though it had been of a Clergy-man only, who oweth subjection to his Ordinary. Out of these two Cases, I know no Law for Fining and Imprisoning by the High Commission. And of this opinion were all the Judges of the Common-Pleas, delivered under all their hands to King James, in answer to the Lord Hubbarts Argument for the High Commission, wherein he spake as much for their Juris­diction, as could possibly be spoken by man.

There are three strong Objections against me, which being answered, will make my opinion more clear.

Obj. 1. The Kings Commission by his Letters Patents, which reckons up all Ecclesiastical Causes, gives power to fine and im­prison without restriction.

Answ. 1. This I deny; for I have read the Commission over and over. It is 17 Decemb. 9 Car. 1 pars. in dorso num. 5. in the Rolls, it is directed to many temporal Lords, To all the Bishops, To all the Judges then in being (except Judge Crook.) I have seen the docket under the Attor. Gen. Noyes hand, with the large additions which never any High Commission had before. And yet where it speaks of punishment for crimes, it hath such restri­ctive words as these, viz. By lawfull ways and means, according to the tenor of the Laws, according to the Statutes aforesaid, &c.

Answ. 2. But admitting there were none of these restrictions by the Commission, yet the Law of the Land gives this exposi­tion to all the Kings Letters Patents, That if they be contrary to the Laws of the Land, the Letters Patents are void. And there­fore the express Book is 8 H. 6. 19. That Letters Patents contra legem & justitiam are void. And agreeable to this are the Books 11 H. 4. fol. 73. 7 H. 6. 27. 1 H. 7, 23. 3 H. 7. 15, 20. 1 E. 4. 11. [Page 39] 18 E. 4. 7. 10 H. 7 Cromp. Jur. f. 13, &c. Upon this Maxime in Law it directs Potest, quod de Jure potest. Now Fining and Impri­soning being though so penal to the Subject, as by the great Char­ter of Liberties, c. 29 provided to be per legem terrae, which is the Common Law; and therefore all the Commissions of the King, which give power to Fine and Imprison, are ever backed with some Maxime of Law or Act of Parliament to warrant them; as the Commission of Sewers, which gives power to Fine and Im­prison, is by the Stat. of 23 H. 8 c. 5 The Commission of Banck­rupts, which gives power to Fine and Imprison, is by the Statutes of 13 Eliz. c. 7. 1 Jac. c. 15. & 21 Jac. So are the Commissions of Oyre and Terminer, and of the Peace too long to remember: For if it should be otherwise the liberty of the Subject would soon be destroyed, in which the Prerogative of the King chiefly con­sisteth, according to the Kings own Declaration, in his answer to the Petition of Right, 3 Car.

Obj. 2. The High Commssion is an Ecclesiastical Court, where the Civilians are only admitted to be Pleaders; and in their Law it is a Rule, Quicquid placuit Principi Legis vigorem ha­bet. And it is true, There is such a Rule in their Law, upon the misunderstanding whereof Tho. Harrison, Clerk, who at Com­mon Pleas Bar called Judge Hutton Traytor, seems to excuse himself at his Arraignment in the Kings Bench, saying, The King when he saw cause, might, by his absolute power, dispose of our goods, &c. and we ought not to defend our selves by Law; and so, said he, was the opinion of the best Orthodox divines in the Kingdome.

Answ. To which I answer, That that Law hath no such sense, but the quite contrary; and that appears by Bracton an excellent Civilian, and Chief Justice of England, lib. 2 c. 9 and Stamf. pl. Cor. fol 99 & 100 Nihil Rex potest cum sit Dei Minister & Vicarius quam quod de jure potest: Nec obstat id quod dici­tur; Quod Principi placuit legis vigorem habet? Quia sequitur in fine legis Regiae quae de imperio ejus lataest? Non quicquid de voluntate Regis est praesumptunt: sed quicquid Magnatum suo­rum concilio & habita super hoc deliberatione & tractatu rectè fuerit definitum: And with Bracton agrees Vlpian a learned Civilian. And therefore I will conclude this Objection with [Page 40] King James, in a Parliament Speech of his 1609. They that shall perswade Kings not to bound themselves within the li­mits of their own Laws, are Vipers and Pests both against them and the Commonwealth.

Object. 3. The third Objection is, That there are many Pre­sidents of Fining and Imprisoning by the High Commission be­sides those Cases of Heresie, Schism and Incontinency.

Answ. 1. To which I answer, first, for 40 years the Law of the High Commission was not known to the Subject, by reason the Letters Patents were not inrolled. The first Inrollment of them was done in Chancellor Egertons time, and by his com­mand.

Answ. 2. it may be true, that Fines were imposed by the High Commission for Adultery, Fornication, Usury, &c. But it appears upon search, that in all Q. Elizabeths time none of these Fines were levyed upon any Judicial process out of the Ex­chequer.

Answ. 3. Many Writs of Habeas Corpus have been granted out of the Kings Courts, out of those Cases of Heresie and In­continency. As Mic. 9 & 10 Eliz. Rot. 1556 Thomas Lee, an At­turney of that Court, was Imprisoned for hearing Mass (a great Crime) by the High Commission, and delivered by Habeas Cor­pus by the Lord Dyer and the other Judges then living, and pre­sent at the making of the Act, because they had not authority to imprison. For to what purpose was the Statute of 23 Eliz. c. 1 made for Fining and Imprisoning those that heard Mass, and for 20. l. a month for absence from Church, if the High Commission had power to Fine or Imprison in either of those cases?

So Mic. 18 & 19 Eliz. C. B. one Hinde was imprisoned by the High Commission for refusing to answer Articles upon Usury, and delivered, by Habeas Corpus by my Lord Dyer and the rest, because that Court had no Jurisdiction in that Case so to do: both which Cases are reported in the first Edition of my Lord Dyer, though left out in the second Edition.

The like president of hearing Mass was Trin. 7 Jac. in Ban­co Regis, in Warringtons Case.

Mic. 42 Eliz. Simpsons Case, imprisoned by the High Com­mission for Adultery: but resolved by the Judges, That the High [Page 41] Commission could not imprison a Lay-man for Adultery, but on­ly proceed to Ecclesiastical Censure.

The like for Adultery was Pas. 8 Jac. Meltons Case.

12 Jac. B. R. Bradstons Case, adjudged that the High Commission could not, by the Statute of 1 Eliz. upon orders for Alimony be­tween husband and wife, Fine and Imprison men. 11 Jac. the like for Alimony in one Brocks Case, a Herald at Armes.

I could vouch many more Presidents, but these are sufficient; I come therefore shortly to the third and fourth questions.

Quest. 3. Whether the H. Commission ought not in their sentence to have expressed the particular offences, and not to say in general enor­mous offences?

Ans. I think they ought, or else their sentence is void. And the reason is, because it hath been resolved in that famous Case, 3 Car. in the Habeas Corpus, by Sr. Edmund Hampden, and upon further debate in Parliament upon the Petition of Right, that a general Cause is no Cause for an Imprisonment. For it is requisite when men are fined, deprived, imprisoned and cast out of their Free­holds, that the Judges of the Realm, who have Conusans of such punishments, should be certified of the particular cause, that they may consult with Divines whether the offences be enormous or no. And so is the resolution of the Judges in 5 rep. Specots Case. f. 58.

The general sentences of the Ecclesiastical Judges, have in all ages been found fault with. In 25 H. 8 c. 14. The Commons com­plained in Parliament, That men were condemned upon the Stat. of 2 H. 4 c. 15 to be burnt for Heresie in general, and not what He­resie, and so was the Writ De Heretico comburendo, without expres­sion of any particular Heresie, which was held to be a cruel and an unjust Law, and therefore repealed by the said Act of 25 H. 8. l

5 Jac. Fullers Case of Grayes Inne, who was imprisoned by the B. R. High Commission for Schism in general, without saying what Schism, and resolved upon the return in the Habeas Corpus, that it was void; and therefore they made a special return, that he said, The proceedings in the High Commission were Papistical.

The like Mic. 3. Jac. B. R. Berryes Case upon a Habeas Corpus; the return was, that he was committed by the H. Commission for certain causes Ecclesiastical. This was adjudged to be naught and too general, and then they make a second return, That he was Com­mitted [Page 42] for giving sawcy speeches to Dr. Newman, which was like­wise adjudged void, as too general.

But our very question, with which I will conclude, was Mr. George About 7 Car. Huntleys Case, a Kentish Minister, who was Fined, Imprisoned and Deprived by the H. Commission, for refusing to Preach a Visita­tion Sermon upon the command of the Archdeacon: and the sen­tence was for grievous and enormous offences. And upon an Eje­ctione firme, brought by the said Huntley against Austin in the Kings Bench for his Parsonage: All the Judges there, upon a solemn de­bate, and in my hearing, adjudged the sentence to be void for the generality and incertainty.

Quest. 4. Whether the Judges of the Realm, or the Ecclesiastical Judges have the power and authority of Expounding enormous offen­ces within the Stat. of 1 Eliz. c. 1.

Ans. And I think it clearly belongs to the Temporal Judges, as clearly as the Exposition of Texts of Scripture belong to Clergy­men, as the now Attorney General told Harrison at his Inditement Sir Jo. Banks 13 Car. in the Kings Bench for calling Judge Hutton Traytor.

It is very true, the Civilians grant this power to the Kings Judges for Expounding Statutes concerning Temporal things, but deny it concerning Spiritual things.

This thing Dr. Ridley in his View of Civil and Ecclesiastical Law (a book much cryed up amongst them) takes upon him to prove, but fails in it. For the truth is, only the Judges of the Common Law have this power: And to prove it is to prove a Principle. For from the beginning of Magna Charta to the end, all the Statutes and Laws, concerning the Clergy, are expounded by the Judges.

Nay, in 10 H. 7. f. 17. in the matter of Heresie, the highest Ec­clesiastical Cause, the Judges do adjudge, That the saying a man may pay his Tythes to other than his own Vicar, contrary to the De­cree of the Church by the Council of Lateran, was not Heresie. And therefore the imprisonment of the party for saying so was against Law.

So the Judges, 2 R. 3. decided a point of the Civil Law by the Common Law.

And in the Parliament of 3 Car. in the Petition of Right, concer­ning Ecclesiastical Liberty as well as Temporal, it is acknowledged by the King, That the Exposition of the Laws and Statutes of the Realm belongeth to the Kings Judges and to none else.

FINIS.

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal. The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission.