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cause_n	ecclesiastical_a	king_n	temporal_a	3,017	5	8.3913	4	true

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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

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 every Bishop might Fine and Imprison in his Diocess for Lollardy then counted Heresie and Schism which is now repealed by the Statute of 1 Eliz.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