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 every Bishop might Fine and Imprison in his Diocess for Lollardy then counted Heresie and Schism which is now repealed by the Statute of 1 Eliz.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 Pâ—â—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
A JUST VINDICATION Of the Questioned Part of the READING OF EDWARD BAGSHAW Esq An Apprentice of the Common Law Had in the Middle Temple Hall the 24th day of February being Munday Anno Dom. 1639. upon the Statute of 25 E. 3. called Statutum pro Clero from all Scandalous Aspersions whatsoever With a True NARRATIVE of the Cause of Silencing the Reader by the then Archbishop of Canterbury With the ARGUMENTS at large of those POINTS in his Reading for which he was Questioned at the COUNCIL-BOARD LONDON Printed in the Year 1660. And are to be sold in Westminster-Hall and Fleet street A JUST VINDICATION Of the Questioned Part of the READING OF EDWARD BAGSHAW Esq An Apprentice of the Common Law Had in the Middle Temple Hall the 24th day of February being Munday Anno Dom. 1639 upon the Statute of 25 E. 3. called Statutum pro Clero from all Scandalous Aspersions whatsoever IT was a Wise and witty Saying of Tertullian That Truth never blusheth but when her face is hid And therefore the Egyptian Judges wore the Picture of Truth about their necks in a chain like as the Jews did their Philacteries as things which they greatly gloried in not only openly to weare but publickly defend when there should be cause The pulling off this mask from the face of Truth and the vindication of it from obloquy and reproach and of my owne name and reputation from scandal and detraction and to the intent no stayns of that nature might cleave to my Winding-sheet when I am dead are become the only Motives why I now yield after so long tract of time since my Reading to those strong importunities which I formerly neglected by publishing to the common view my Arguments upon foure Points of my Reading for the last of which only I was suspended and silenced by the means of the then Archbishop of Canterbury of whom being dead and suffering as he did I shall speak no ill and shall not so much blame him as that Accusator fratrum who to curry favour misreported my Reading to him and made me to speak things which I never thought and him to do things that were never done before as to silence a Reader of Law before he had committed an offence or was heard to speak for himself Si accusasse sat est quis erit innocens was a most just saying though of an unjust Emperor This sudden and uncouth act of his made a loud noise throughout the Cities of London and Westminster A great Peer of the Realm merrily told him at their next meeting That he had often heard of a Silenc't Preacher but never of a Silenc't Reader before And the vulgar people at that time Espousing a Scottish quarrel increased in their clamour and hatred against him This trouble he brought upon himself in medling with things wherein he had no skill and with persons over whom he had no Jurisdiction for Reading of Law in the Inns of Court and Chancery in both which I have been Reader are as they speak in Schools rather Problematae then Dogmata Mootes and Questions of Law though of the Prerogative it self the highest of things for the Ventilation of Truth and extricating the obscurities of Law for the benefit of the Students in those Societies then Resolutions and Judgments of Law in Westminster Hall And Readers if they do amiss are answerable to the Governours of that Society at their next Parliament where the Reader and his Assistants being alwayes Benchers do give an account of that Reading as I did as shall be declared hereafter and had thanks from them all And such acceptation my Reading found with the Gentlemen of that Society which I shall with thankfulness ever acknowledg that scarce any Reader before was ever attended out of Town with such a number of Gentlemen of the same House And as the Archbishop brought this trouble upon himself so did he thereby no small injury unto me for by his Complaint to the King and Councel That I read against Bishops occasioned by my Misreporter for I shall still lay the load on him it was by that means strongly infused into the heads of the people that I read against Bishops whom they then perfectly hated whereupon the year following without asking or seeking or stepping one foot out of my Chamber in the Middle-Temple to that intent I was by the unanimous vote of the people chosen Burgess of Southwark in the first place Presently after my choosing a Petition was brought to me by some of the chief of that Borough containing in it the total extirpation of Episcopacy Root and Branch as likewise of the Book of Common Prayer and that I would commend it to the Commons House I being their Senior Burgess and having the first choice By this Petition I understood them but they understood not me and therefore I dealt clearly with them That if the present Episcopacy which had so much exceeded the bounds of Law in the exercise of their Jurisdiction to the grievance of the people was reformed and regulated according to the Law of the Land it would be better accepted then in their utter abolition and this way I thought the Parliament would go and so convinced them with Reasons for the same that they seemed to me fully satisfied and the Petition stopped But they consulting afterward with Mr. John White my fellow Burgess he approved of the Petition and hereupon it was delivered into the hands of Alderman Pennington one of the Knights for London who brought the Petition into the House with sixteen thousand Hands which being read and debated in the House Mr. John Pym a Gentleman with whom I had familiar acquaintance and knew his mind in that point spake to this purpose That he thought it was not the intention of the House to abolish either Episcopacy or the Book of Common Prayer but to reform both wherein offence was given to the people And if that could be effected and assented to by them with the concurrence of the King and Lords they should do a very acceptable work to the people and such as had not been since the Reformation which was then about eighty years Divers Members of the Commons House agreed with him in a Reformation instancing in those famous and most Pious Bishops and Ministers of the Praelatical party in the dayes of Queen Mary which purchased to us that Reformed Religion we now enjoy with no less price then their own hearts blood As for example Cranmer Ridley Latimer Hooper and Ferrar were all of them Bishops John Philpott was Archdeacon of Winchester John Rogers and John Bradford were Prebends of Pauls and Laurence Sanders Prebend of Lichfield with divers more these were all of them very godly men and eminent Preachers and most gracious with the people For my own part being then at that debate a Member of the House I openly declared my opinion concerning Bishops for establishing them in their Function and Jurisdiction
agreeable to Law according to what I had done and held in my Reading without wavering or warping at all And told the House That by the Ancient Laws of the Land the Crown of England was founded in the state of Prelacy and ever since there was a Christian King of England there was a Bishop That it was so Incorporated into Monarchy that the ruine of one would hazard the ruine of the other That it was so interwoven with the Common Law in so many Original Writs that the destruction of it would take away one of the chiefest Peers of the Common Law for learning and Pleading in Ecclesiastical matters That as the Common Law was favourable to Clergy-men and gave them more priviledges then any Humane Law they could name so it was strict in correcting and punishing them of what rank soever if they transgressed that Law And had Judges done their duties according to their Oaths and Places by granting Prohibitions to the High Commission in causes wherein they had no power to hold Plea and Writs of Habeas Corpus to such persons whom they had fined and imprisoned without cause Bishops and Presbyters might for ought I know have been long since happily agreed who clashing together like two Flints and thereby striking fire some sparks of that fire falling against both their wils upon the black Tinder of Independency inflamed such a violent and furious party of unreasonable men quite of another shape as that by the just judgment of God for these their unnatural contentions joyned with the sins of the Nation they became instrumental quite to ruine the one and almost destroy the other And I was then and am still of opinion That the Crown of England being a Monarchy bound up by such apt Laws for the benefit and peace of Prince and People and so apted for the Order and Jurisdiction of Bishops that I hold it the fittest for this Nation of any in the Christian world And I think I am able within my Sphere and Profession to maintain it against any Adversary Et cedo mihi quemvis Arbitrum And here I have just occasion to profess to all the world as in truth I do That I was so far from the very thoughts of destroying Bishops that observing at the time of my Reading and divers years before the great invasions that were made by them upon the common Law of England and the Courts of Westminster Hall and the scorn and contempt at that time cast abroad upon Professors and the very Profession of the Law I knew no other way how to hold them up in their Functions and just jurisdictions and in esteem and Honour amongst the people which once they had as by Reading upon that Law which gave them their just bounds and limits which if once they should break down I ever feared their ruine and destruction That like Deare breaking the Pale they exposed themselves to the fury of the people to be by them hunted chased and at last destroyed and the whole Clergy of England from whom they received their Orders eminently endangered And in this opinion of my fear I had the concurrence of a most Honourable person whom I much honoured Living and lamented Dead Edward Lord Mountague of Boughton scarce then to be parallelled for Piety Wisdom and Gravity in the whole Nation And how sad experience hath brought to pass what I then feared I shall say no more but silence my self in the words of that Kingly Prophet Obmutui quia tu Domine fecisti And thus have I cleared my self from the aspersions and scandals of two opposite parties whom it was impossible for me to please The one accusing me of Faction that I set bounds and limits to Episcopacy the other of Apostacy that contrary to Law I would not take it quite away And my sticking close to this opinion abhorrency of taking the Scotch Covenant tending to the utter abolition of Episcopacy was the alone ground of that load of afflictions which lay long upon my Body and Estate which had quite overwhelmed me had not God been a most gracious Father then unto me by supporting and comforting me with his Staff under that Rod of his corrections giving me patience to suffer rather then to sin and to resolve in the words of Zuinglius Mallem mille mortes obire quam contra conscientiam attestari And in this my just Vindication I acknowledge my self much beholden to that Learned and Ingenious Gentleman who lately hath Printed the Life and Death of the late King Charles wherein he hath acquitted me from such Misreports and Scandals cast upon me for my Reading And hath truly for substance related those points of Law for which I was questioned in my Reading only he hath failed in some circumstances in that relation and in the causes of my Silencing by the Archbishop which I shall now rectifie that best can do it that in case that Gentleman shall have occasion hereafter to revise his History by a second Edition he may Correct the same according to that Narrative I shall now declare wherein I shall pursue his own Method from the beginning to the end touching that Relation and so conclude It is very true as he there saith That my Reading in the Middle Temple Hall was the 24 day of February Anno Dom. 1639. in that very year the troubles were in Scotland and the Scots were preparing an Army for England masking their misdeeds against their native Prince under specious pretences of Religion which mockery of Almighty God he hath since avenged on them with a witness which they both find and feel at this day But yet my Reading was Compiled two years before and so compleated as that I could not alter it finding no cause so to do in that my Reading had no manner of reference to the pretended matters of that impious Quarrel He proceedeth and saith thus Mr. Bagshawe intended to meddle with Prohibitions but not with Tacitus to follow Truth too near the Heeles for feare of his Teeth nor too far off least he loose it and so neither to offend nor to be offended This I confess was in substance much to the sense of what I spake though not in those words and therefore I will repeat that part of my Speech which I made to the Benchers Barresters and Gentlemen of the Middle Temple at the beginning of my Reading in these very words In the choice of my Statute I was much perplexed I first pitched upon the Stat. of Articuli Cleri 9 E. 2 the five first Chapters concerning Prohibitions an excellent but an angry Law especially to such men who love not to be restrained in their Jurisdiction and therefore I left it and fell upon a more pleasing Law the Statute of 13 E. 1 called Circumspectè agatis of Consultations which gave the Clergy such Jurisdiction that no Prohibition could take from them Herein I rested long I divided that Statute gathered many Cases upon it
6 R. 2 Rot. Parl. nu 5 that they had not to do with matters of the Peace The first Clergy-men that I find to be Justices of Peace by any Statutē are the Bishops of Ely and Durham for the I le of Ely and Durham and the Archbishop of Yorke for the Liberty of Hexam 27 H. 8 cap. 25. But then there is a provision by that Statute to make their Temporal Chancellers to be Justices for the excusing them as I conceive from their personal attendance at the Sessions Object But it will be objected They are made Justices of Peace by the Kings Commission and may be punished if they should refuse Answ. It is rara avis to heare of a Minister punished for refusing to be a Justice of Peace For by Law he may refuse By his Orders he may refuse as I conceive and by virtue of his Consecration For in the book of Ordination of Priests and Deacons confirmed by the Parliaments of 1 Ed. 6 and 1 Eliz. he is there charged by the Bishop To give himself wholly to his Spiritual Vocation and wholly to apply himself to that one thing and to draw all his cares and Studies that way and to that end And this not all but the Bishop doth require a promise of the Ordained Priest to that purpose for the Bishop asketh him If he will be diligent in Prayers and Reading Holy Scriptures c. laying aside the study of the World and the Flesh And the minister answers That he will endeavour himself so to do All which said together will amount to a good excuse of a Clergy-man from secular imployment As in truth it did of late to the Lord Keeper Coventry in the Case of one Mr. Samuel Johnson Clerk Son and heir of that Johnson that was the extraordinary kind Husband from whence was the Proverb of Drinking to Mr. Johnson This man was lately made High Sheriff of Rutland shire and pleading his Orders of a Clergy-man to the Lord Keeper he was forthwith discharged and another Sheriff chose in his place There is a Writ in the Register and in Fitz. Nat. brev. 175 b. named Breve quod Clerici non eligantur in officio Ballivi pro terris suis which lyeth in a stronger Case then this is As if a man holdeth divers Lands of a Lord of a Manor to be a Bailiff Bedel or Receiver if this man be once made a Clerk and afterward chosen unto such an office the Lord may Distrain in case the child should refuse yet this Writ will compel the Lord to let him alone and to dismiss him And the reason is given in the Writ it self Because the Law supposeth him to be so continually imployed in works of Piety and Hospitality that he is not at leisure to attend no secular affairs The same reason may be given for a Clerk made a Justice of Peace Object But it will be objected That my Statute is for the Clergy but I seem in this opinion to be against it Answ. I answer That in this I am for the honour and honesty of the Clergy For in those Provincial Constitutions which I mentioned before the Clergy are there enjoyned to abstain ab omnibus eis quae honestatem corum deformant And Linwood a principal Author of the Canon Law gives this instance of that deformity Deformatur haec honestas cum Clericus se immiscet in negotiis secularibus Linw. lib. 3. De vita Honestate Cler. fol. 87. So that by their Law it is a dishonest thing for Clergy-men to meddle in secular affairs The Readers Argument upon the Third Point being the Fourth Point of his Third Case upon the Third Division of his Statute WHether an Heretick may at this day be Convicted and Condemned for Heresie by his own Ordinary alone And I think he cannot It is a great Question and mainly concerns the life and liberty of the Subject and deserves a much larger debate then I can now afford it I being opposed herein by a learned Civilian sometimes Dean of the Arches in the first part of his Apology for Ecclesiastical proceedings fol. 81. who denies Fitz Herberts opinion Nat. brev. 269 D. to be Law who saith That a man cannot be convicted for Heresie but by the Archbishop and the whole Clergy of the Province in their general Council of Convocation But this Civilian with divers more of his mind doth hold That an Heretick both before the statute of 2 H. 4 c. 15 and now at this day may be both convicted and condemned to be burnt by his own proper Ordinary For the clearing this three Questions do naturally arise 1. What shall be said such an Heresie for which a man shall be condemned to the fire 2. Who shall be the Judge that shall Convict for Heresie 3. By what Law is it Common or Canon that an Heretick after conviction shall be burnt Quest 1. For the first it appears by the Canon Law Linw. cap. de Hereticis fol. 213. that there are no less then 88. sorts of Heresies which is the cause that the Canonists cannot agree about the definition of an Heretick I will name but two of their best definitions 1. The first is in the fourth book of the Institutes of the Canon Law cap. de Hereticis fol. 248. Hereticus est qui vanae gloriae principatus sui causa falsas opiniones gignit vel sequitur If this were Law how many Scholers would at this day be burnt for Hereticks 2. I come therefore to a second Definition given at home in our Provincial Constitutions cap. de Hereticis fol. 211. where Linwood having toil'd himself with about twenty Descriptions of an Heretick falls upon this as the best Omnin saith he censetur Hereticus qui non tenet id quod docet sequitur sancta Rom. Ecclesia Hence it was that by their Law a man was questioned for an Heretick for very small things viz. For eating flesh in Lent for standing out an Excommunication though it was perhaps for some extorted Fees of the Court Nay you shall find 1 H. 7. fol. 17. That a man was questioned for Heresie upon the Statute of 2 H. 4. c. 15. because he held an opinion That one might pay his Tythes where he pleased and not to his own Vicar when as by the Counsel of Lateran Tythes were only to be paid to Parsons and Vicars of the proper Parish and so he as an Heretick offended contra sanctiones Ecclesiae And I dare be bold to say That in that bloudy Roll of Martyrs which began from the first year of H. 4. to the là st year of Q. Mary there was not a man burnt for holding any thing contra Canonem Scripturae not an old Arrian which is the Socinian at this day nor an old Pelagian which is now the Arminian But for holding Opinions contra sanctiones Canonicas as saith the Writ De Haeretico comburendo founded upon that Statute of 2 H. 4. which was the