cloath in London to I. S. with a Fee to be receaved for the same measuring and although the office tend to further commutatiue Iustice whereof the power is in the King for weight and measure yet because this fee did tend to charge the subject without his assent it was adjudged by the learned Iudges upon long debate to be voyd and the case of Protection 39. Hen. 6. fol. 39. where the King did grant a protection to A. B. his servant quia prosecturus for a voyage to Rome for service of the King and Common wealth for weightie causes to continue for three yeares and yet it was disallowed by the Iudges because it was for three yeares where by the rules of the law it should be but for one because there was no exceptiō of dower Assise and quare impedit which by law should haue been excepted and that protection did not barr the subjects right but only delayed his suite And in 3. Edw. 3 14. Nort. Assise 445. com fol. 48. the King did pardon I.S. the making of a bridge and because the subjectes had interest in the passage over that bridge the Kings pardon was not sufficient to discharge I. S. frō the making therof In the case of 42. Ass 5. a Commission from the King under the great seale of England was directed to A. and B. to take I. S. and him imprison in the Castle of P. and to take his goodes which was done accordingly by the Cōmissioners and because it was done without any inditment or due course of law the proceedings of the same Commissioners were adjudged voyd The like case was 42. Ass p. 12. Where upon the Kings writt directed to the Iustices of laborers I.S. was indited for some thing not perteyning to the Iustices of laborers and therfore adjudged voyd they having no Cōmission so to doe For although the Sheriffe or officer cannot judge of the Kings writt but must execute it yet the Iudge may refuse to execute the same writt when it is against law or impossible to be done according to 1. Edw. 3. fol. 26. and in the 1. 2. Eliz. Scrogges his Case where a Cōmission was awarded to some Iudges and persons of credit to heare the cause concerning the Office of exigent of London which Scrogges did challenge if Scrogges refused to submit himselfe to their order to commit him to prison upon which Commission Scrogges was cōmitted to prison and he was discharged by the Iudges of his imprisonment by writt of habeas corpus because his imprisonment was not lawfull which writs of habeas corpus are usually graunted in the sayd Courts of Kings bench and Common pleas thereby to releeue the subjectes which are many times in other Courtes and by some Commissioners unlawfully imprisoned yea many times although the Commissions be grounded upon Acts of Parliamēt as the Commission of Sewers the Commission of Banckrupts and the Ecclessiasticall Commission and many times they graunt Prohibitions to the Ecclesiasticall Court to the Admirall Court and to the Court of Requests and other inferior Courts when they exceed their authority And many other Cases he would haue put to proue those poynts but that in a former argumēt made by him in the court of Kings bench against Monopolie Patents of M. Darcie Mich. 44. Eliz. all the Iudges then seemed to yeeld the same to the law without any doubt as he conceived which high inheritance of the law the Common wealth hath alwayes so preserved as without Act of Parliament it cannot be changed as appeareth by the answer of the Barons when the Bishops sought to haue the law changed touching children borne before mariage although the mariage after ensued to be held as bastards the LL. sayd Nolumus leges Angliae mutari and as is apparant by booke cases where it is adjudged that the King by a non obstante may dispence with a statute law but not with the cōmon law nor alter the same as is adjudged 49. Ass p. 8. and Bosoms Case nor put the subjectes from their inheritance of the law as is 8. Hen. 4. fol. 19. which was alwayes accompted one of the great blessings of this land to haue the law the meat-yeard the Iudges the measurers For in all well governed Common wealthes Religion and Iustice are the two principall pillars wherein the power of God appeareth and many times weake weomen doe rule and command many thousand strong men touching their liues lands and goods without resistance which the loue and regard of Iustice procureth For the better proofe of the fourth part he did reade verbatim the partes of the Ecclesiasticall Commission which he thought to be against the lawes of England and liberties of the subjects remembring first to marke and consider how whereas the whole drift of the Act of Parliament 1. Eliz cap. 1. was to restore to the Crowne the auncient iurisdiction over the Ecclesiasticall spirituall estate and for that purpose did giue power to the Ecclesiastical Cōmissioners to execute the premisses in the sayd Act conteyned for the correcting and amending and reforming of such heresies errors schismes contempts and enormityes as by the Ecclesiasticall lawes might lawfully be reformed according to the tenour and effect of the sayd Letters Patents this Commissiō is since enlarged and how it giveth power to the Commissioners to enquire not onely of the permisses mentioned in the statute of 1. Eliz. cap. 1. but also of all offences and contemps against the statute of 1. Eliz. cap. 2. intituled an Act for uniformitie of Common prayer and service of the Church and administration of the sacraments and of all offences and contempts against these statuts following which were all made since anno 1. Eliz. viz. the statute of 5. Eliz ca 1. intituled an Act for the assurance of the Queenes Maiesties power over all states and subiectes within her dominions the statute of 13 Eliz cap 12. intituled an Act to reforme certayne disorders touching the Ministers of the Church the statute of 35. Eliz cap 1. intituled an Act to reteyne her maiesties subiects in their due obedience the statute of 35 Eliz. cap 2. intituled an Act to restreyne some Popish recusant to some certeyne places of aboad the statute of anno 1. Iacobi intituled an Act for the due execution of the statutes against Iesuits Seminaries priests recusants c. Also power is given to the Cōmissioners or any three or more of them not only upon these penall lawes and upon every offence therein conteyned but also upon all seditious bookes contempts conspiracies private conventicles false rumors or tales seditious misbehaviours and many other civill offences particulerly named in the letters pattens to call before them all and every offendor in any of the premisses and all such as by them or any three or more of them shall seeme to be suspected persons in any of the premisses and every of them to examine upon their corporall oathes touching every or any
of the premisses which they shall object against them and to proceede against them and every of them as the nature and quality of the offence or suspicion in that behalfe shall require And to inquire of adulteries fornications outragious misbehaviours and disorders in mariages and of al other grievous and great crymes and offences within any parte of the Realme which are punishable or reformable by the Ecclesiasticall lawes of this Realme according to the tenor of the lawes on that behalfe or according to their wisedomes and discretions or the discretions of any three of them The Commissioners or any three of them are further authorized willed and commaunded to use and devise all such good lawfull reasonable and convenient wayes for the triall and searching out of all the premisses and proceedings therin as by any three or more of them shall be thought most expedient and necessary They or any .3 or more of them haue authority to order award such punishment to every such offender by fine imprisonment censures of the Church or other lawfull way or by all or any of the sayd wayes and to take such order for the redresse of the same as to the wisdomes and discretions of any three or more of them shall be thought meete and convenient For contempt in not appearance or not obeying the decree of any three of them they haue power to fine thē at their discretiōs and to commit them to ward there to remayne untill by any three of them they shal be inlarged according to their discretions They haue power to take recognizance of every offendor and suspected person aswell for their personall appearance as for the performance of such orders decrees as to any three of them shall seeme reasonable and convenient in that behelfe They haue also power to commaund all every sheriffes Iustices and other officers and subjects within this Realme in all places aswell exempt as not exempt by their letters and other proces to apprehend or cause to be apprehended any person or persons which they shall thinke meete to be convented and take such bonds for their appearance as any three of them shall prescribe c. or to committ them to prison They haue power to execute the premisses notwithstanding any appellation provocation priviledge or exemption any lawes statutes proclamations other grants priviledges or other ordinances which be or may seeme contrary to the premisses notwithstanding Vpon which parts of the sayd Commission being so indefinite without limitation or restraynt he noted that if the Commission should be executed according to the letter thereof the subjects notwithstanding any lawes or customes to the contrary might be cited out of their owne Dioces yea from the furthest parte of the Realme for any cause or suspicion conceaved by the Commissioners or any three of them and forced to attend the Commissioners where they will appoynt in time of harvest or time of plague with the danger of a mans life as he was forced to attend many weekes in daunger of his life they refusing to delay the cause untill the terme upon any bayle or bond And they may force any subject to appeare at what dayes and howers any three of them shall appoynt for such matters sometimes as are more proper to be heard in other Courts And although the penalties of the statuts be never so great as Premunire Abiuration forfeyture of lands goodes whereof some offences are by the same statute limitted to be tryed onely in the Kings bench yet the party suspected may be forced by this Commission to accuse himselfe upon his owne oath upon such captious Interrogatories as the witt of man can devise when there is neyther accuser nor libell of accusation And that in many things they may inflict what punishment any three of them shal thinke meete in their discretions and force men to performe such order as they shall make by the parties bond before any order made and that their judgments or decrees whatsoever should not be subject to any writt of Error attaint or appeale and that they may devise meanes at their owne discretion for the triall and finding out of any the sayd offences Which kind of proceedinges how farr they doe differ from the common lawes of England which is the inheritāce of the subjects and what Iarres harsh tunes they make in the sweete harmony therof setled by so long continuance with a most happy successe any wiseman may see without any inforcement frō him and how much of this they doe dayly execute he did leaue to see it Only so much as came under his owne viewe he said that the last day of Easter terme he moved at the Exchequer barre for 20. persons his Clients dwelling in Yorkeshyre wherof som as they told him were very poore who were fined by the Ecclesiasticall Cōmissioners for not appearing at their dayes appoynted many of them to 30. pounds a peece one only at ten and all the rest at twenty a peece which was not salvo contenemento according to the statute of Magna Charta cap. 14. And one client being an housholder in Fleetestreete named William Goulder prayed advise for his hard close imprisonment many dayes with great Irons on him by the Commissioners upon some suspition conceaved by some of the Commissioners that some person was hid in his house and was after freed without any conviction of his supposed offence And because the sayd Nicholas Fuller did except against the Commissioners as not competent Iudges in their owne cause of him and of his argument made against them at the Kings bench barre they threatned to sett 500. pounds fine on him and to imprison him And when he finding their proceeding by the oath Ex officio to vary from the Common lawes which he had long tyme practised he said to them it seemed to him that he was in a new world or other Common wealth thereupon they threatned to imprison him if he spake one word more to the disgrace of the Commission Wherefore he held it strong in his opinion because his Majesties Commission which they terme High is by the true intent of the statute only a Commission executorie but for so long time onely as shall please the King and is no setled court for continuance for ever as they would haue it comparing the authority thereof with the Kings bench and preferring it aboue it that in all the partes and poynts aboue rehearsed the Commission is not of force in law nor warranted by law except some Act of Parliamēt doe giue it life And now touching the last and principall parte of his division viz that no Act of Parliament doth giue life to the Commission Ecclesiasticall in the parts aboue mentioned it is to be noted that the Commission is founded only upon the statute of an 1. Eliz. cap. 1. and that this Act of an 1. Eliz. neyther doth nor can giue life to this Commission by any right construction in these
corrupt periurie shall forfeit twentie poundes And because the preamble and matter precedent touched witnesses only therefore that penaltie is restreyned by construction to charge witnesses onely therwith and not such persons as shall commit voluntary and corrupt periurie in their owne cases And so upon the statute of 7. Edward 6. against Receivers Bayliffs etc. although the wordes of that statute extend generally to lay a penaltie of 6. shillings 8. pence for every peny that receivours shall take unlawfully yet because the preamble of that statute touched only the Kings officers It is in construction restrayned to take force against the Kinges officers onely and against none other receivers or bayliffes And to conclude this poynt of the exposition of the wordes of the statute he did demaund why the exposition and construction of all statutes is left to the Iudges of the law but for this cause for that they are and alwayes haue been thought the most carefull iudicious and jelous preservers of the lawes of England And is it not apparant that to uphold the right of the lawes of England the Iudges in ages past haue advisedly construed some wordes of divers statutes contrary to the common sence of the words of the statute to uphold the meaning of the common lawes of the Realme as in the statute of 25. Ed. 3. where it is sayd that non tenure of parcell shall abate the writt but for parcell yet if by the writt an entier manour be demaunded non tenure of parcell shall abate the whole writt And where by the statute of Marlbridg ca. 4. it is prohibited that no distresse shal be driven out of the County where it is taken yet if one manour extend into two Counties there the distresse may be driveÌ„ from one County into another Countie And upon the statute of Prerogatiue which toucheth the King although the wordes be generall that the King shall haue the custodie of all the landes of his tenaunt where parte is holden in Capite yet if part of the landes of his tenaunt doe descend to severall heyres on the parte of the Father and on the parte of the Mother there the King shall not haue all the landes of his tenaunt during the minoritie of the heire for that in all these Cases the great regard of the rule and right of the common lawes doth controll the generall or common sence of the wordes of those statutes And why then should this statute receiue construction by the Iudges of the law contrary to the rule of all other statutes to this effect that by in intendment gathered out of the generall wordes of the Act according to the tenor of the sayâ— letters Paâ—ents there might be erected in this common wealth of England a course of an arbitrarie governement at the discretion of the Commissioners directly contrary to the happie long continued goverment and course of the common lawes of the Realme and directly contrary to Magna Charta which if the statute of 24. Edw. 3. did so highly regard as to make voyd Acts of Parliament contrary to the same it would a fortiori make voyd all construction of statuts contrary to Magna Charta which haue no expresse wordes but an intendement or construction of words with much violence to be wrested to that end And for such as would make such construction of the statute as that whatsoever should be conteyned in the letters Pattents should be as a law he would haue them remember that the King may make new letters Patents for these matters Ecclesiasticall causes every day altering the same in the penalties and manner of proceeding and that if the letter of the statute should be purused the King may change the Commissioners every day and make any persons Commissioners being naturall borne subjectes to the King although not borne in England which were against the meaning of the Act which meaning of the Act is the life of the Act and not the letter of the Act. And besides those former errors of the Commission before remembred he sayd that he did not see how by colour of the statute of 1. Eliz. which gaue power to the Commissioners to execute the premisses conteyned in that Act they should inlarge their Patent to enquire of offences coÌ„trary to other statuts made thirtie or fortie yeares and more after an 1. Eliz. which then were not dreamed of nor meant to be any part of the premisses conteyned in the sayd statute of anno 1. Eliz. and of other civill and temporall thinges for which if the Ecclesiasticall court had held plea a prohibition did lye at the common law according to the statute of 24. Edw. 1. cap 1. and 22. Ed. 4. fol 20. and in 13. Hen. 7 fol 39. Brooke and Fitzh fol. 43. 22. Hen. 8. because for the same thinges redresse may be had at the common lawes and in 7. Hen. 8. fol. 181. the Bishops of the Convocation house for medling against Doctor Standish for a temporall cause by him disputed before the LL. of the Councell were adiudged by all the Iudges to be in danger of Premunire But it wil be objected that use is the best expositor of the statute and then the continuance of this Commission since the statute of 1. Eliz. being aboue 40. yeares will prevaile much to which he answered that long use in a setled court maketh it the law of the court and the iudgments in one Court are not examinable in every other Court or in any but in the proper Court by writt of error false iudgement or appeale vnles the inferior Court meddle with that which is not within their power and then in many cases their iudgment is coram non Iudice and so voyd But this Ecclesiasticall Commission is but a Commission executorie by the intent of the statute of 1. Eliz. to continue so long as should please the Queene or King no setled Court and was meaÌ„t at the first as he thought to haue continuance for a short time to strengthen the authoritie of the Bishops against whose Ordination and installmeÌ„t the Papists did at the first except In which cases of things done by CoÌ„missions whatsoever the CoÌ„missioners doe it is examinable in every Court where it shall come in question at any time after whether that they haue pursued their CoÌ„mission or authority in due forme or no. For their Decrees and sentences are not pleadable in law as Iudgments in Courts of Record are and the many yeares use of the Commissioners especially being Ecclesissticall men for the most parte who know not the lawes of the Realme will giue no enforcement to their proceeding if it be contrary to law But as in this Commission touching causes of Premunire Abiuration and other Cases where the forfeiture of landes and goods doe ensue the Commissioners Ecclesiasticall say they use not in these cases to force any subject to accuse themselues although the words of their Commission doe extend so farr because they see it apparantly contrary to law and right so the Iudges may say the like that in other cases of lesse penaltie to their knowledge untill of late yeares the Commissioners used not either to force any to accuse themselues or to imprison them for refusing so to doe And he did further answer according to the learning and difference which is taken in 44. Edw 3. fol 17. that albeit the allowance in Oier of some Commssion may be of great force to giue strength unto the same Commission yet the allowance or toleration in some other Court of such Commissions many times if it after appeare to be contrary to law bindeth neither the right of the King nor subjects but that the Iudges of the law may judge thereof according to law Vpon all which matters he did conclude that although the Commission be of force to execute the auncient Iurisdiction over the Ecclesiasticall and spirituall estate yet because this Commission and the proceedings of the Commissioners did much vary from the course of It is in construction restrayned to take force against the the ould Common lawes of England expressed in the statute of 42. Edw 3. cap. 3. and from the auncient Iurisdiction Ecclesiasticall for that no pretended custome against those statutes which prohibite such kind of proceeding can be of force and especially for that the Act of Parliament of 1. Eliz. did not giue life or strength to the sayd Commission in those parts so varying but the contrary therefore he did hold the proceeding of the Ecclesiasticall Commissioners against the subjectes by force of the sayd Commission in these poyntes to be voyd and erroneous according to the wordes of the sayd statute 42. Edw. 3. and did humblie pray that his Clients may be discharged from their Imprisonment and the subjects freed from such erroneous proceedings too too heavie and burdensome to them FINIS Lev. 19.15 Ye shall not doe uniustly in iudgment Thou shalt not favor the person of the poore nor honor the person of the mightie but thou shalt iudge thy neighbour iustly Deut. 1.17 Ye shall haue no respect of person in iudgment but shall heare the small as well as the great ye shall not feare the face of man for the iudgment is Gods Fitz H. f. 4â— 4â— Edw. â— cap. 3. In the Tower amoÌ„gst the Parliament 〈◊〉 15 â—◠◠〈…〉 Fitâ—â— fo 40 Eâ— â— fo 36. Ex-rotulo Parliamenti de an 2. H. 4. Petitio cleri câ—ntra heretiâ—â—s 〈…〉 The Petition of the Commons The answer of the King Act. Mo fol 539. Act. MoÌ„ fol. 481. 〈◊〉 Edw. 3. fol. 2. Acts 23.35 Braâ—â— fol. 5. cap. â—â— a) Stamf. fol. â—â— 8. Hen. 4. fo 19. com fol. 236. 1. Ed. â— â—â— 26 Fitz H.f. 31. H. 8. prohib Bosomes Case Cooke fol. 35.
the King shall doe his servant he is Pag. 15. line 12. condemned for what cause so ever Pag. 18. line 2. We will not haue the lawes of England to be changed Gentle Reader in pag. 29. line 21. there is gone purused for pursued the which I pray thee to amend THE ARGVMENT OF MASTER NICHOLAS FVLLER IN THE CASE OF THOmas Lad and Richard Maunsell his clients Wherein it is plainely proved that the Ecclesiasticall Commisioners haue no power by vertue of their Commission to Imprison to put to the oth Ex Officio or to fine any of his Maiesties Subiects THE CASE THomas Lad a marchant of Yarmouth in Norfolke was brought before the Chauncellor of Norwich for a supposed Conventicle because that he on the Sabbath dayes after the Sermons ended sojourning in the house of M. Iackler in Yarmouth who was late Preacher of Yarmouth joyned with him in repeating of the substance and heads of the sermons that day made in the Church at which Thomas Lad was usually present and was forced upon his oath to answer certaine articles touching that meeting which he could not see untill he was sworne and having answered vpon his oath twice before the Chauncelor there he was brought to Lambeth before the Ecclesiasticall Commissioners to make a further answer upon a newe oath touching the supposed Conventicle which he refused to doe without sight of his former answers because he was charged with perjury and therefore was imprisoned by the Commissioners a long time could not be bayled whereupon the writt of Habeas Corpus was granted out of the Kings bench to bring the prisoner to the Barr. Richard Maunsell the other prisoner being a Preacher was charged to haue been a partaker in a Petition exhibited to the Nether house of the Parliament and for refusing to take the Oth ex officio to answer to certayne articles which he could not be permitted to see he was imprisoned by the Cōmissioners at Lambeth where he remayned very long and could not be bayled and was brought to the barr upon the writt of habeas Corpus These imprisonments of Thomas Lad and Richard Maunsell by the Cōmissioners for the supposed contempts aforesayd were unlawfull as the said Nicholas Fuller said and therefore he sayd that the prisoners ought to be discharged And before he began his Argument he the sayd Nicholas Fuller did confesse that it was a blessed thing in all kingdomes to haue the Church and Common wealth to agree together as Hippocrates twinnes And the meanes to continue a perfect agreement betweene them was as he sayd to giue to Caesar that which is Caesars and to God that which is Gods Which right distribution of the Iurisdiction of the Church in England and Iurisdiction of the Common lawes in England sett forth and proved upon good groundes of the auncient lawes and statutes of the Realme would as he thought cōtinue a peace between the Church and Common wealth of England for ever which he desired from his heart and it was his labour to effect by this his Argument Wherin for the better understanding of his purpose and drift of his Argument he did devide the same into 5. partes 1 And first because the Ecclesiasticall Cōmission is groūded upon the Statute of Anno 1. Eliz. cap. 1. the title and intent of which statute is the restoring to the Crowne the auncient Iurisdiction over the Ecclisiasticall spirituall office and the abolishing of all forreyne Iurisdiction repugnant to the same he declared what that auncient spirituall Iurisdiction was which was ment in that Act to be restored and by the Cōmissioners to be executed and therein he proved that the power to imprison subjects to fine them or to force them to accuse themselues upon their owne enforced oathes there being no accuser knowne was no parte of the auncient Ecclesiasticall jurisdiction nor used in England by any spirituall Iurisdiction before the Statute of 2. Hen. 4. cap. 15. which was procured by the Popish Prelats 2 That the Statute of 2. Hen. 4. cap. 15. which first gaue authority to the Bishopps to imprison subjects fine thē and force them to accuse themselues was procured by the Popish Prelates in the time of darknes if not without a full consent of the Cōmons yet to their great mislike and that the sayd Statute and every thing in the same conteyned is revoked as being against the rule of equitie and common justice and against the lawes of the lād and very hatefull to all the subjectes of the Realme and in that 2. parte he proved according to the words of the statute that the Oath ex officio was against the law of England and against the rule of equitie and Iustice 3 That the lawes of England are the high inheritance of the Realme by which both the King and the subjects are directed And that such grants Charters and Commissions as tend to charge the body lands or goods of the subjects otherwise then according to the due course of the lawes of the Realme are not lawfull or of force unles the same Charters and Commissions doe receaue life and strength from some Act of Parliament 4 That in this Commission Ecclesiasticall there are some thinges tending to charge the body lands goods of the subjects otherwise then according to the course of the lawes of the Realme and especially in imprisoning them fyning them and forcing thē to accuse themselues upon their owne oath without any accuser 5. That the Act of Parliament of Anno. 1. Elizab. cap. 1. whereupon the Ecclesiasticall Commission is founded doth not giue life or strength to such partes of the Commission as concerne imprisonment of subjectes fyning them or forcing them to accuse themselues but doth make voyd and abolish the same as repugnant to the ancient Ecclesiastical jurisdiction which by the Statute was to be restored And so he sayd that the imprisonment of his clients was unlawfull the proceeding of the Commissioners upon the Oath ex officio without an accuser not warranted by law but erroneous and voyd Touching the first parte of the division which was to proue that before the statute of 2. Hen. 4. cap. 15. the Ordinaries had no power to imprison the subjects or to fine them it appeareth both by the preamble of that Statute where it is declared that before that time they could not by their spirituall Iurisdiction without ayd of the Royal Majestie sufficiently correct perverse people who did contemne their spirituall jurisdiction and Keyes of the Church which was at the uttermost to locke them out of the Church by Excomunication and also by the booke case of 10. Hen. 7. arguing upon that poynt of the same statute where it is set forth that the Ordinaries before the Statute of 2. Hen. 4. had no power to imprison subiects but the Keyes of the Church and the like is also confessed by the Statute of 1. and 2. of Philip and Mary which was made after the former Statute of
2. Hen. 4. was revoked by 25. Hen. 8. cap. 14 which doe shew as much viz. that the Ordinaries had no power but the Keyes And by the Common law it is apparant that when the Ordinary or Ecclesiasticall Judge had proceeded so farr as they could by Excomunicating the offendor to locke him out of the Church then the CoÌ„mon law upon significavit did assist them by the writt of ExcoÌ„municato Capiendo Quia potestas regâ—â— sacro sanctae Ecclesiae dâ—â—sse non debet as is sayd in the Register But in this case the ComoÌ„ law still reteyned power to discharge the subjectes so imprisoned upon an ExcoÌ„municato capiendo without assent of the Ordinary both by the writt of Cautione admittenda and by the writt of scire facias upon an appeale where a supersedeas was usually awarded to discharge the person imprisoned against the will of the Ordinary For the lawes of England did so much regard and preserue the liberty of the subjects as that none should be imprisoned nisi per legale iudicium parium suorum aut legem terrae as it is sayd in Magna Charta cap. 29. which Charter by divers other statutes after is confirmed with such strong inforcements in some of them as to make voyd such statutes as should be contrary to Magna Charta And in the 15. Ed. 3. the first article of the Commons Petition in Parliament was that the great Charter may in all poynts be observed so as such persons as are neither appealed Indited nor followed at the sute of the party and haue their goodes landes or possessions taken away may be restored thereunto agayne Whereunto the King answered thus The King granteth for him his heires that if any person coÌ„mit an act against the forme of the great Charter or any other good lawe and he shall answer in ParliameÌ„t or else where he ought to answer according to law And therfore if any free subject were wrongfully imprisoned the Common law did not leaue him to an action of false imprisonment onely but provided the writt De homine replegiando to set him free of his imprisonment vnles he were imprisoned for such particular cause as is expressed in the same writt de homine replegiando which writt is part of the subjectes inheritance and should not be denyed them And this freedome of the subjectes did make Markham the Iudge in the 4. Hen. 7. tit prerog 139. Brook declare that the King could not arrest a subject upon suspicion of felony as a common person might doe because that against the one an action of false imprisonment would lye but not against the King for the subiects liberty must be preserved and by the Statute of Win 1. cap. 15. whosoever shall deteyne subjects in prison who are bayleable by law shal be grievously amerced And to shew that it was thought an unmeete thing to leave power in the Ordinaries to commit subjectes to prison although they contemned their decrees never so much appeareth partly by the statutes of 27. Hen. 8. ca. 20. and 32. Hen. 8. ca. 7. which were made after the revocation of the former statute of 2. Hen. 4 by which latter statutes power is given to two Iustices of peace or to some of the Honorable privie Counsell uppon certificate of the Ordinary to commit such offenders to prison who should contemne the decrees of the Ordinary denying to the Ordinary that made the decree that he should haue any such power to commit the subjects to prison in 5. Eliz. ca. 23. which statute not allowing ExcoÌ„municate persons to be imprisoned by any Ecclesiastical Iurisdiction limits by very speciall manner how they shall be apprehended by the teÌ„porall power For although the Bishop of Rome useth two swordes the spirituall and temporall yet the common lawes of England and the Parliament in divers ages thought not so meete for the Bishopps or Ecclesiasticall Iurisdiction in England to use two swordes but according to the Register Regia potestas sacro-sanclae Ecclesiae dâ—â—sse non debâ—t 2 Touching the second part wherin he was to proue that the statute of 2. Hen. 4. cap 15 which first gaue authority to the Ordinaries to imprison subjects or to set fines on them and force them to accuse themselues upon their owne oathes was procured by the Popish Prelates in the time of darknes he sayd that the very Act it selfe did very playnely shew it it being thus And where it is shewed to the King on the behalfe of the Prelates and Clergie of England etc. And that the same was procured to suppresse the gospell which then began to spring or revive both the body of the Act and the booke of Acts and Monuments written by M. Fox and other Chronicles doe shew it playnly for that those persons whom they tearmed heretickes preached in those dayes against the Sacrament of the Church which was their Masse And that the sayd Statute of 2. Hen 4. cap. 15. was procured by the Prelats with out assent of the Commons thus much appeareth by the Records of the Parliament remayning in the Tower Excellentissimo ac gratiosissimo Principi Domino nostro Regi supplicatur ex parte vâ—stroruÌ„ humilium oratorum prelatorum et cleri regni veslrâ— Angliae quod cuÌ„ fides catholica super ChristuÌ„ sundata et per Apostolos suos et Ecclesiam etc. rehearsing all the words of the Act. Quâ—s quidem petitiones prelatorum et cleri superius expressâ—tas dominus uâ—ster Rex de consâ—nsu magnatum et alioruÌ„ proceruÌ„ râ—gni sui in presenti ê‘liamento existeÌ„tiuÌ„ concessit et in singulis iuxta forma etc wherin the Commons are not mentioned And it is the more likely that the CoÌ„mons gaue no assent to this statute of 2. Hen 4. both for that in the Parliament rolls of the same yeare of 2. Hen. 4. in the Tower there is to be seene the Petition of the Commons to the King thus Item prient les comens depuis q'uill est contenu en la grande chartre quenul sera areste ne enprisone sans responce ou due processe de la ley quell chartre est conferme en charmi ê‘lement et ore ils supplient que si aucun soit areste ou enprisone encontre la forme dâ—l charte avant dict qÌ„ ill veigne et appierge a sa responce et preigne son Iugement sicome le ley demande anssi qÌ„ null tiel areste ne imprisonement soit trait enÌ„ custome enÌ„ destruction de la ley du Roy. Wherto the King answered Soient les statutes eila comen ley tenus As also for that the Prelats had not long before procured an other act against the Lolards in Anno 5. Rich 2. cap 5. without assent of the Commons as appeareth by the Parliament Rolles in the Tower of anno 6. R. 2. which is thus Item supplient les comens qÌ„ comeÌ„ vn estatute suit sait en darrein ê‘lement
en ces paroles Ordone est en cest ê‘lement qÌ„ Comissions du Roy soient directes a viscountes et autres ministres du roy ou autres suffisantz persons apreset selon que les certificates des prelates eut affaire in chancellerie du temps en tempÌ„s touts tiels precheurs câ—lour fautours mamtenours etc. La quel ne fuit unque assente ne grante ê‘ les Comens mes ce qÌ„ fuit parle de ce fuit sans assent de lour qÌ„ celi estatue soit anâ—a ati car il nestoit mi lour entent iustisiez ne obliger lour ne lour successorers as Prelates plus qÌ„ lour auncesstres nont este en temps passez Resp Il plest au Râ—â— And it is also reported by M. Fox in the sayd booke of Acts and Monuments that the same Act of 2. Hen. 4. ca. 1â— was procured without assent of the Commons and that the Commons did greatly repyne at it froÌ„ time to time many godly men writyng against it some of them terming it a bloodie law and a cruell law And because the Prelats out of the wordes of that law which gaue them power to imprison some suspected of heresie untill they should canonically purg themselues did streinedly force subjectes without any accuser to accuse themselues therfore the title of that Act is sett downe in the booke of Acts Monuments the statute Ex officio at which time it was not commonly used to giue titles to Acts of Parliament And to shew how much the subjectes misliked that kind of proceeding appeareth by severall Petitions of the subjectes to the Kings of the Realme and to the house of Parliament by the statute of 25. Hen. 8. cap. 14. by which statute it is sayd that the proceeding by the oath Ex officio to force a man to accuse himselfe is contrary to the rule of right and good equity and contrary to the lawes of England and unreasonable that upon suspition conceaved upon the fantasye of the Ordinaries men should be forced to answer c. And therefore they then revoked and made voyd the statute of 2. Hen. 4. cap 15. And to proue that according to the opinion of that Parliament house the oath Ex officio is against the lawes of England both Ecclesiasticall temporall and against the rule of Iustice and good equitie he sayd that by the lawes of England if a subject had been cyted by the Ordinary or Ecclesiasticall Iudge pro salute aiÌ„ae which is the oath Ex officio to accuse himselfe a Prohibition did lye at the coÌ„mon law and an attachment against the Ordinary if he did proceed in that case contrary to that prohibition as appeareth in Eliz. H. fol. 42. and the statute of 2. H. 〈…〉 made soone after the sayd statute of 2. Hen. 4. giving warrant to graunt a prohibition to the Ordinary for default of a libell doth crosse the proceeding by oath Ex offiâ—iâ— where he is forced to a libell as appeareth 4. â—d 4. fol. 3â— and Fitz. H. fol. 43. etc. And by the words of the statute of 42. Edw. 3. cap. 3. which was made before those statutes procured by the Prelates when Ordinaries had no power to imprison subjectes it is expressed in what manner the proceeding should be against subjectes upon accusations thus viz. It is assented accorded for the good governement of the Commons that no man be put to answer without presentment before Iustices or thing of Record by due proces and writt originall according to the ould law of the land And if any thing be done from henceforth to the contrary it shal be voyd in law holden for error wherin it is worthy the nothing that it is sayd according to the old lawes of England And to proue the old law of England to be so the ordinary case of dayly experience touching the challenge of Iurors doth sufficiently declare For if the Iuror be challenged for kindred to either of the parties or for waÌ„t of freehould the Iuror shall answer upon his oath to cleare that matter because it toucheth not the Iuror in losse or credit but if the challenge doe tend to touch the Iuror any way in his credit or his losse he shal not be forced upon his oath to answer although his answer might tend to further Iustice quia nemo tenetur prodere sâ—ipsum as is ruled 49. Edw. 3. fol. 2. And the case of wager of law which is allowed to the defendant in no criminall case which might bring imprisonment to the partie by the course of the common law as in trespas c but onely in debt and detinewe and the statute of Magna Charta 〈◊〉 28. inacting that no Bailife shall put a man to his open law nor to an oath upon his owne bare saying without faithfull witnesses brought in for the same toÌ„doth to like effect and S. Edward Cooke in his argument made in Slades Case sayd well that in criminall causes iuramentuÌ„ in propria causa est inventio diaboli ad detrudendum animas miserorum in infernum according to whose saying it appeareth that when those oathes were used by the parties accused by the border lawes between England Scotland those oathes did bring no furtherance to the truth but manifest perjury every day as was confessed by all that knewe the practise there and therefore that manner of triall was soone rejected And to proue it against Iustice and good equity he sayd that this oath Ex officio to force a man in a criminall cause to accuse himselfe was he thought directly against the rule of the law of God For it is sayd in Deut. cap. 19. 15. that one witnes shall not arise against a man for any trespas or for any sin or for any fault that he offeÌ„deth in but at the mouth of two witnesses or .3 witnesses shall the matter be established Which rule is confirmed under the Gospell as appeareth Math 18.16 2. Cor. 13.1 where it is sayd In the mouth of two or three witnesses shall every word stand and Christ sayd to the woman accused of adultery where be thine accusers c. But without any witnes or accuser to establish the matter upon the inforced oath of the partie hath no coherence with the rule of Gods law which should be a direction to all Christian Princes in making of their lawes we being now the people of God the Iewes being cut of the Iudgments being now the iudgments of God and not of men alone But here may be objected that by the lawes of England one witnes is sufficient to which he answered that the Iurors being all sworne to trie the particuler matter in fact wherewith the party defendant is charged may well supplie the want of one witnes being 12 persons in different without any affinitie to either partie who better knowe the witnesses then the Iudge and may perhaps know the cause in question aswell as the witnes which kinde of triall is so
behouefull for the subjectes as it may prevent much wrong and oppression from high authoritie if the Iurors be iust faithfull persons as they ought to be and their verdit also may be redressed by attaint if they should doe wrong therein which writts of attaint and error are parte of the subjectes inheritance Also this oath Ex officio hath no coherence with the law of nature For as Aristotle saith natura est conservatrix sui as is sayd in 40. Edw 3. fol. 2 but this tendeth to a mans owne overthrowe it hath no coherence with the lawes of Nations as he gathered by the writing of Traiane the Emperour being a very wise just man who writing to Plinie the second his lievetenant of some Provinces in Asia minor for direction in his governement against those who at that time were opposite to his religion saith thus Sine authore certo propositi libelli nulli crimini locuÌ„ habere debent nam et pesâ—imi exempli nec nostri seculi est According to which direction Felix the governer of the Iewes under the Emperor when Paul the Apostle was brought before him sayd to Paul that he would heare him when his accusers were come holding it as unjust without an accuser to charge him And it is much worse then auricular confession because that is voluntary this by constreint that to be concealed this to be revealed to the parties shame that to induce pardon this to induce punishment to himselfe And where an oath should be the end of strife this oath Ex officio is often times the begining of strife yea it hath been so hatefull as some Martyrs haue written against it as a bloudie law and therefore not without just cause that the whole estate assembled in Parliament in an 25. Hen. 8. held it not to be agreeing with the rule of right and equity and to be contrary to the lawes of England and therfore revoked the sayd statute of 2. Hen. 4. and did therby limitt another forme of proceeding against persons accused or suspected thus viz. upon Inditement or two witnesses at the least according to Gods law with wordes of restreint not to proceed otherwise since which time no custome or colour of prescription in the Ecclesiasticall Courts can take place against that law to uphold the oth Ex officio in case of heresie And touching fines by the statute of Articuli cleri cap. 1. by the Register and by Fitzh Natura brev fo 51. 52. and by the statute of 15. Edw. 3. cap. 6. it is so shewed that by auncient Ecclesiasticall jurisdiction they ought not to set fines of mony upon subjectes unles it were upon coÌ„mutation of penaunce so as it need no further proofe of that matter The third matter which he endevored to proue was that the lawes of the kingdome of England and the manner of proceeding in cases of law and justice are setled in the Realme as parte of the inheritance of the subjectes and rightly termed by some Iudges in 10. Hen 6. fo 62. to be the most high inheritance of the Kingdome by which both King and subjects are guided that without lawes there would be nether King nor inheritance in England Which lawes by long continuance of time and good indeavor of many wise men are so fitted to this people and this people to them as it doth make a sweete harmony in the goverment all things being as readily obeyed on the one parte which are agreeing to law as they are willingly commanded on the other parte according to law every officer by the rule of the law knowing the duties of their places as Sheriffes Bayliffes Constables Coroners Eschetors c. the band of an oath both for goverment and obedience being mutually made on each parte For the lawes in a common wealth are like the sinewes in a naturall body by which the hand foote and other partes of the body doe readily moue by the direction of the head but if the hand or foote be forced aboue the strength of the sinewe it eyther taketh away the use of that parte or els it maketh it a weake or halting member so is it if the lawes be streyned against any part of the comon wealth aboue it right and naturall strength it will make that parte weake or halting and therefore it is excellently sayd in 8. Hen. 4. fol. 19. in the com fol. 236. and in the Case of Alton woodes that the law admeasureth the Kings prerogatiue so as it shall not extend to hurt the inheritance of the subjectes on the on parte and as Bracton saith nihil aliud potest rex in terris cum sit Dei minister et vicarius quam quod de iure potest quia illa potestas solius Dei est potestas autem iniuriae diaboli est et non Dei et cuius horum opera â—ecerit rex eius minister est And the law doth restrayne the liberall wordes of the Kings grant for the benefit both of the King and the subjects and to the great happines of the Realme especially when the Iudges are meÌ„ of courage fearing God as is to be proved by many Cases adjudged in these Courtes of Kings Bench and Common-Pleas which Courtes are the principall preservers of this high inheritance of the law whereof he rehearsed some few Cases on the parte of the King and on the part of the subjectes diverse Cases as in 45. Ass p. 15. where the King did grant to I.S. his heires the manour of Dale all the woodes and underwoods and Mynes within the sayd mannor yet Mynes of gold and silver did not passe and in the 22. Ass 40. the King did grant to I.S. the goods and chattells of persons with in Dale qualitercunque damnatorum yet the goodes of persons attainted of treason did not passe for the benefit of the King because the same are so annexed to the crowne as by no generall words they may passe froÌ„ the Crowne by the rule of law And of late yeares what great benefite hath growne to the Kings and Queenes of this Realme upon construction according to the rules of law of the Kings graunts the case of Alton woods the statute lately made for confirmation of Charters granted to the Citizens of London and the many cases preferred by Tipper his fellowes doe sufficiently proue And on the other side if any graunt or Commission from the King doth tend to charge the body landes or goods of the subjects unlawfully the Iudges will redresse the same For if the King graunt the lands or goods of I. S that is so manifestly against law as it needes no proofe But he said he would put such Cases as being grouÌ„ded upon prerogatiue haue a shew of good to the Common wealth and yet are not allowable because the tend to charge the subject without the assent of the subject as the Case 1â— Hen. 4. where the King did graunt an office of measuring of