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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A67871	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.	Bagshaw, Edward, d. 1662.	1660 (1660)	Wing B396; ESTC R208288	31,311	44

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 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 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 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 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 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 Clergy-men 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 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

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 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 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 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 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

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 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 Free-holds 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 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 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 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 Clergy-men as the now Attorney General told Harrison at his Inditement 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 Nihil veritas crubescit nisi solummodò abscondi Julian Vid. Stat. of Carliel 25 E. 1 and Cawdryes Case 5. Rep. William Sanderson Esq. Part of the Speech Sir W. Raleigh Narrative Part of the Readers Speech in the Parliament Chamber in the Middle Temple May 15 following * Judge Nicoili Chief Birron Sanders Judge Morgan Judge Harvey An. Dom. 1296 Anno Dom. 1273. Stat de Marton cap. 9. 24 Ed. 1. Lamb P●●amb of Kent fol. 276. Chartim Stefhen Langhton Tem. Johan R. Const'tut Othobon Dr. Cosens Launcellot Vide Stat. 24 H. 8. c. 12. B. R. About 7 Car. Sir Jo. Banks