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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

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 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 In the Records thereof it is written thus Habito Rex cum suis Baronibus Parliamento Clero excluso Statutum est c. Likewise in Provisione de Martona in the time of King H. 3. 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 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 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

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

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 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. 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 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 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