twenty nine chapter of Magna Charta most fully and strongly confirmed 3. Caroli by the Kings Majesty in his answer to the Commons Petition of right in these wordes let right be done as is desired according to that twenty nine chapter of Magna Charta Now what saith that twenty nine Chapter of Magna Charta No freeman saith that chapter shal be taken or imprisoned or be disseised of his freehold or liberties or free customes or be outlawed or exiled or any otherwise destroyed neither will we passe upon him nor condemne him saith the King but by the lawfull iudgement of his Peeres or by the law of the land That is under your Lordships the Courts correction whose office it is to interpret statutes unlesse that party be first convicted found culpable of the breach of some law of this land by a legall proceeding either at the common law or else in some other court and whosoever shall either condemne or punish any freeborne subject of this kingdome either for his obedience to the lawes of this land or for that which is no breach of any law of this land he doth violate that twenty nine chapter of Magna Charta and for that he stands excommunicate by a double excommunication the one deliver'd publikely here in Westminster Hall (f) Tempore Bonifacii Archie◠regnante tunc in Anglia H. 3. videlicet anno Dom. 1253. Id ibus Maii. inaula Westmon 15. Epis leguntur sententiam de qua hic sit mentio fulminasse Lyndew Prov. lib. 5. tit de sententia excom cap. cum malum Parag. Item excom verbis ab omnibus Daniell in the life of H. 3. 37. Henry 3. by Bonifacius then Archbishop of Cant. assisted with 14. other Bishops all in their pontificalls and tapers in their hands which after the excommunication denounced they threw upon the ground and as they lay there smoaking they cried so let all them that incurre this sentence be extinct and stincke in hell and all this was done in the presence of the Commons Nobles yea and of the King himselfe who at the same time with a loud voyce said as God me helpe I will as I am a man a Christian a Knight a King crowned and anointed inviolably observe all these things and the excommunication it selfe is set downe at the end of the statutes made 52. H. 3. in the booke of statutes at large put out by judge Rastall the other is extant in the same booke at the end of the statutes made 25. Edward 1. and uttered by Robert Winchelsee Arch-bishop of Canterbury in his time both against the violaters of this renowned law of Magna Charta often confirmed not onely by the following Kings the successours of Henry the third and Edward the first but also by the Pope him selfe as appeares out of the fift booke of Lyndewodes provinciall titulo de sententia excommunicationis cap. Cum Malum parag Item excommunicatj And besides the former confirmations and excommunications the authority of Magna Charta was made sacred and inviolable as it were 25. Edward 1. first by decreeing that that charter under the Kings seale should be sent unto all the Cathedrall Churches throughout the Realme there to remaine and to bee read before the people twice a yeare And secondly by enacting that that Charter should ever after be propugnated and vindicated by the sentence of excommunication to be denounced twice a yeare by all Archbishops and Bishops in their Cathedralls against all those that by word deede or counsell did doe contrary to the foresaid charter or that in any point did breake or undoe it and if the same Bishops or any of them should be remisse in the denuntiation of the said sentence that then the Archbishops of Cant. and Yorke for the time being should compell and distraine them to the execution of their duties in forme aforesaid as appeares by the 3. and 4. chap. 25. Ed. 1. And surely my Lord those two former solemne excommunications were those other continuall semiannuall excommunications might have beene hitherto and may hereafter bee rightly and justly denounced against the violaters of this 29. chap. of Magna Charta for this 29. chapter that no free man is to be punished but for the breach of some law is good Divinity accords excellently with the word of God The Apostle Rom. 4.15 telles us 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the law causeth wrath that is punishment and how doth the Law cause wrath or punishment not simply singly of it selfe not observ'd but transgrest and therefore in the next words the Apostle saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where there is no Law there is no transgression And as where there is no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no law there there cannot bee any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any transgression of Law so where there is no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no transgression of law there there cannot be any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any fault or offence and where there is no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no fault or offence there there ought not to be any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any wrath or punishment Nay my Lord though there be a law yet if that law be not transgrest there cannot justly be any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any wrath or punishment At most though there may bee 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 proposita 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 denuntiata wrath proposed or denounced in the Law to terrifie all persons from sinne which is nothing but the binding power of the Law yet justly there cannot be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 imposita 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 inflicta wrath imposed or inflicted by the Judge upon any person to punish him for sinne untill the Law be transgrest and sinne committed by that person And this the Apostle Rom. 5.12 doth most acutely divinely shew by imputing the punishment partly to the Law and partly to the transgression of the law to the Law as to a just rule inflicting punishment upon the transgression to the transgression as to a meritorious cause deserving that punishment according to the just rule of the Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 By sin which is the transgression of the law Death the wrath punishment of the law entred into the world So then my Lord this is most certainely and most undoubtedly true wheresoever there is any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any wrath or punishment any fining or imprisonment any deprivation degradation excommunication or any other censure sentence mulct or punishment whatsoever rightly and justly inflicted There there must of necessity of necessity my Lord there there must be some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some fault or offence Wheresoever there is any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any fault or offence there there must of necessity of necessity my Lord there there must be some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some transgression of Law Wheresoever there is any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any transgression of Law there there must of
deputed to the Episcopall or ordinary jurisdiction and not reserved to the jurisdiction of the crowne or cognisance of the high commission Ratio 4 My fourth reason my Lord is taken from his Majesties commission granted to and pleaded by the commissioners which gives unto them onely a particular and a limited jurisdiction consisting in certaine Ecclesiasticall causes and certaine particuler offences against certaine particular lawes and not a generall jurisdiction in and over all Ecclesiasticall causes and offences as large and spatious as the canons and Ecclesiasticall lawes themselves And this will appeare my Lord by a particular enumeration of all the severall branches of the commission it selfe But this would bee a great labour and will be altogether needlesse whether the Defendants can shew any such branch of their commission or not for if they cannot shew any such branch of their Commission then doubtlesse the labour will bee needlesse seeing the proofe lies on their side no proofe being made sufficet neganti ut neget dummodo non probetur in contrariū And if they can shew any such branch of their commission then it shall suffice to confute that branch when the defendants or their counsell shal produce it I confesse my Lord that the Commission dated 11. Iacobi extends as far as the canons ecclesiasticall lawes themselues in cases concerning the reformation of Ministers for it gives in expresse termes power and authority to the commissioners to punish a Minister for any fault committed in his owne cure or else where that is punishable by the Ecclesiasticall lawes of the Land but I am sure my Lord that there is no such branch in the commission pleaded by the Defendants and therefore in that very respect if in no other an information lies good against the commissioners and this court hath rightly assigned me for a prosecutor in an information against the commissioners for going beyond their commission And if there were any such branch in their commission that branch under favour were void because it is contrary to the sence and meaning to the scope and drift to the very letter and text of the 1 of the 1 Eliz. the statute whereupon their commission is grounded as shall now appeare by my next and Ratio 5 Fifth reason which is taken from the 1 of the 1 Eliz. and from the 19 of the 25. of Hen. 8. reviv'd in the first of Eliz. and therefore whatsoever the 1 of the 1 Eliz. doth particularly and expressly establish by reviving the 19 of the 25. of Hen. the 8. It is to bee presumed that it doth not in the same statute afterwards by generall tearmes abrogate for that were to make that statute like the high commission sentence against me to be at variance with it selfe and to have our part contrary to another why then my Lord seeing the first of the first of Eliz. by reviving the 19 of the 25. of Hen. 8. doth particularly and expressly allow unto the ordinary with in his diocesse a generall jurisdiction in reference to the canons and Ecclesiasticall lawes of this land It is not to bee supposed that in the following parts of that statute the Parliament did afterwards by generall tearmes take that away from the ordinary and therefore those insuing generall words which enables the King to nominate commissioners and by his commissioners to reforme and correct all manner errors heresies schismes faults offences enormities which by any manner of power or authority may be reformed doe not make voide the the former statute and generall jurisdiction of the ordinary but only shew that be the fault never so great so that the ordinary by vertue of his subordinate jurisdiction cannot sufficiently punish it yet it may be sufficiently punished by the Kings supreame jurisdiction within the land without going to the Pope out of the land for by that paragraph that is invested in the crowne which by the former paragraph was abolished and extinguisht in others and in the former paragraph all forraigne usurped power onely and not the ordinary jurisdiction is extinguisht So that by those former generall wordes such grear grievous and enormous crimes onely as the ordinary by vertue of his subordinate jurisdiction cannot sufficiently punish may be brought to the high Commission court and there fully punisht and yet the former statute and generall jurisdiction of the ordinary remaine whole and intire namely that breaches of Cannons or of Canonicall obedience unto the Canons belong to the jurisdiction of the ordinary and that be within his diocesse hath power to punish any fault punishable by the Ecclesiasticall lawes of this land And this interpretation My Lord is warranted first by the very title of that statute which is an act to restore unto the crowne the ancient jurisdiction over the state Ecclesiasticall and for abolishing all forraigne power repugnant to the same not for abolishing the ordinary jurisdiction which is subordinate unto it but for abolishing all forraigne power repugnant to the same And the abolishing of the one and the restoring of the other is the whole and sole cause and occasion of that statute as is more fully exprest in the beginning of that statute where the Lords Spirituall and Temporall and the Commons do all acknowledge that from the 25. yeare of Henry the 8. at which time all forraigne usurped power was by divers good lawes and statutes abolisht and the ancient Ecclesiasticall jurisdiction fully restor'd and united unto the Crowne they were kept in good order and were disburdened of divers great and intollerable charges and axactions untill such time as the aforesaid good laws an Statutes made since the 20. yeare of Henry the eight by one act in the first and second of Philip and Mary were all cleerely repeal'd whereby as they there complaine they were againe brought under an usurped forraigne power and yet remaine in that bondage to their intolerable charges if some releife be not had and provided and thereupon they supplicate that both the foresaid statute of repeale may be repealed and the foresaid good laws and Statutes for abolishing all forraigne usurped power and for restoring the ancient Ecclesiasticall jurisdiction unto the Crowne may be revived In all which there is not any one word spoken against the Ordinary jurisdiction but onely against forraigne usurped power and this being the onely greivance and the totall occasion of that law must direct us in the interpretation of that law for occasio legis indicat mentem legislatoris sensum legis Secondly by the oath of Supremacy extant in the same statute and made for the same purpose namely to abolish all forraigne power repugnant to the jurisdiction of the Crowne not to abolish the ordinary jurisdiction which is subordinate unto it Thirdly by those generall wordes wherein the Kings jurisdiction is exprest namely by these wordes all errors heresies schismes faults offences enormities which last word doth and must qualifie all the rest and doth shew that by those wordes
the very Letter and text of some Commissions that I have seene have this power that they may punish a Minister for any fault committed in his owne cure or else where that is punishable by the Ecclesiasticall lawes of this land By which words my Lord it appeares that first there must bee some fault Secondly that that fault must be against some law Thirdly that it must bee against some Ecclesiasticall law of the land or else that Honorable Court by the very Letter and text of the largest commissions that I ever saw have no power to punish a Minister And though this their Commission my Lord doth much outstrip the first of the first of Eliz. the statute whereon it is grounded for that statute extends not to every fault punishable by the Ecclesiasticall lawes of this land for then it would swallow up all the ordinary jurisdictions over England but onely to greivous and enormous crimes punishable by the Ecclesiasticall lawes of the land as the Counsell on both sides in the speciall verdict betweene Allen and Nash have confest and the wordes of the statute as I before have shewed doe necessarily enforce Yet in this case of mine to shew mine owne innocency and the goodnesse of my cause not to make a precedent in other mens cases I will give the defendants free leave and liberty to exceed both the statute and their Commission I will not coope them up and confine them within the lists and limits of the Ecclesiasticall lawes as the most indulgent and munificent Commissions that ever I saw doe yea and must doe unlesse they will make their Commission as well Temporall as Ecclesiasticall no my Lord I will not require an Ecclesiasticall law let them produce an law canon civill common statute or divine nay my Lord I will once againe deale more Nobly and generously more heroically and munificently with that Honorable court with those Augustins Hieromes Gregories Ambroses with those Nazianzens Chrysostomes Origens Basils with those reverend right reverend most reverend Prelates and Patriarchs of our church I will not require a whole law noe not a full period of a law Let them onely produce some colon nay some comma of law onely nay my Lord I will once againe deale more Nobly and generously more heroically and munificently with that Honorable court I will not require a whole colon no nor a whole comma of law neither that were too too an Herculean labour for that Honorable Court for those Canonists Civilians and Divines for those commissaries chancellours Arch-deacons Deanes Bishops Arch-bishops let them onely produce 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some shaving some scraping some paring some shred peece particle or fragment of Law nay let them onely produce 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unum unum apicem one jot one apex one tittle one pricke or point of law of any law my Lord and I doe most willingly and most instantly submit And now my Lord as the defendants doe pretend a fault so likewise they doe pretend a law the pretended fault is my refusall to Preach the Archdeacons Visitation Sermon the pretended law is the Law of Canonicall obedience They say that my refusall to preach the Arch-deacons visitation sermon at the Arch-deacons command is a breach of Canonicall obedience And now my Lord we are come to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ad statum causae ad caput controversiae for this Canonicall obedience is the whole and sole ground and foundation and supportation of the whole sentence against mee and it cannot be understood and determined whether my refusall to preach the visitation sermon be a breach of canonicall obedience or not unlesse it be first knowne and understood what this Canonicall obedience is so that in the first place my Lord there is a necessity imposed upon mee breiflly to present unto your Lordship what this Canonicall obedience is The high Commissioners in the first part of their finall sentence as it was given in their owne Court make Law custome and Canonicall obedience three different and distinct thinges For therein they say that the Archdeacon in injoyning Huntley to preach his visitation sermon hath commanded him no more than the said Huntley was bound to doe by law custome and by his Canonicall obedience and herein by making Canonicall obedience a third and distinct thing from law and custome they shew that they onely use the name of Canonicall obedience but intend arbitrary or blind obedience that is a generall and universall obedience to all the Arch-deacons commandes though they swarve both from law custome whereby they make every Arch-deacon Bishop and Arch-bishop a law-maker within his owne jurisdiction and every of their commands binding and compulsive though fortified neither by law nor Custome But your Lordship as it seemes not content herewith steps a degree further and makes Canonicall obedience not onely a third and distinct thing from law and custome but also a thing opposite and contrary to law and custome for termino trinitatis 1637. when when your Lordship delivered your opinion in the speciall verdict betweene Allen and Nash your Lordship said that if the Arch-deacon did owe me an 100. pounds by bond he might by vertue of my Canonicall obedience command mee to deliver up that bond the money not being yet paid Or he might command me by vertue of my Canonicall obedience to send him a yoke of fat oxen a couple of good Coach-horses or a score of fat weathers which I am sure is not onely beyond but contrary to law and custome and more than either his Majesty or any of his royall predecessours did ever chalenge of any freeborne subject either by the oath of allegiance or oath of supremacy whether your Lordship have altered this your opinion or no I know not the high Commissioners I suppose have altered theirs For certaine it is that the former wordes of the first part of their first finall sentence as it was given in their owne Court are altered in the defendants plea wherein they make Canonicall obedience not a third and distinct thing from law and custome as before but a subordinate relative and a proportionable thing to law and custome by changing these their former wordes law custome and his canonicall obedience into these law and custome according to his Canonicall obedience And this alteration as I suppose proceeded from the acute and polite wit of you Master Justice Heath at that time the Kings Attourney Generall and Commissioners counsell who seeing that the Commissioners by the former wordes did make canonicall obedience a third and distinct thing from law and custome that thereby they did under the name of canonicall obedience chalenge arbitrary and blind obedience to and for every Arch-deacon Bishop and Arch-bishop that thereby they made themselves all lawmakers within their severall jurisdictions and that so at once by two wordes they gave two deadly woundes one to his Majesties supreame jurisdiction who under God is the onely lawmaker within this land
by that excommunication on the other side And as among the high Commissioners my Lord some are oftner or seldomer excommunicate according as they have had their fingers oftner or seldomer in my punishments so they that have beene actors and parties in all my six punishments are excommunicate full 13. times And whilst they stand and continue thus excommunicate without either pleading the Kings pardon or performing publicke penance I for my part shall account them fitter for Amsterdam and for Rome than for this orthodox Church of England out of which they have justly cast themselves by excommonicating me unjustly for my communion therewith and for my obedience thereto And this much my Lord concerning the principalls The Defendants 3. Arguments I should now proceed to the accessories but that their are three arguments first to be answered The first is taken from law the second from custome and the third from a title given to the Archdeacon in the canon law and alleaged in the defendants plea the third Article namely because the Archdeacon is oculus episcopi and therefore may enjoyne the incumbents within his Archdeaconry to preach his visitation sermon that thereby he may see and learne and know their sufficiency I will begin with the Argument taken from Law The law is the fift commandement of the decalogue Honour thy father and thy mother and from these wordes a right learned commissioner in giving the first part of the first finall sentence against me argued thus The first Argument You Sir saith he to me will doe nothing but what you are bound to doe by law will you and doth not the law bind you to preach the Arch-deacons visitation sermon doth not the fift Commandement bind you to honour your Father and is not the Arch-deacon your spirituall father and are not you his spirituall sonne and hath not a spirituall father power by the fift Commandement to command his spirituall sonne any spirituall worke and is not a spirituall sonne bound by the same commandement to obey the spirituall command of his spirituall father in doing the spirituall work commanded by him Ergo you Sir are bound by the fift commandement to doe this spirituall worke to preach the Arch-deacons visitation sermon at the Archdeacons command This was the argument my Lord Socratically drawne from law and this argument in and of it selfe is very weake and feeble all the strength of it depends upon the authority and credit of the argumentator and therefore unlesse I will be injurious to the argument it selfe and to the cause of my adversaries I must make known the Authour of this Argument that so the strength and validity thereof may the more appeare It was the right worthy and right worshipfull Sir Henry Martin vir cum cura dicendus a man not to be mentioned without singular reverence A man that hath a long time and did very lately Dominari in Curits Ecclesiasticis A man that deserved that Elogy which Eunapius gives to Longinus he was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A living Library and a walking study or as the same Eunapius saith of Plutarch that he was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The very Uenus and harpe of all Philosophy So wee may truely say of the eminently learned Sir Henry Martin that he was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Uenus the delicacy the musicall instrument the Harpe the Lute the Theorbo the Polyphon of all the law both Civill and Canon he was like Servius Sulpitius Iurisconsultorum eloquentissimus eloquentium iurisconsultissimus And as one said of Saint Augustine Deest theologiae quicquid Augustino deest Wherein so ever Augustine is defective Theology it selfe is defective so Deest legi quicquid martino deest Wherein soever sir Henry Martin was defective the very law it selfe is defective and then surely the former argument if it bee answerable to the Author of it must needes be of great force and vertue or else the Law it selfe must needes be defective But my Lord though the Authour of this Argument was so accomplished yet if we examine the argument it selfe we shall finde it very weake and feeble and being reduced into a syllogisme it runnes thus By the fift commandement every spirituall Father may command his spirituall sonne any spirituall worke and by the same commandement every spirituall sonne is bound to obey the spirituall command of his spirituall father in doing the spirituall worke commanded by him But the Archdeacon is my spirituall father and I am his spirituall son and he hath commanded me a spirituall worke namely to preach his visitation sermon Ergo. By the fift commandement I am bound to doe that spirituall worke to preach that visitation Sermon at the Archbishops command This syllogisme my Lord in respect of the forme is good and all the doubt is concerning the matter of the major or first proposition If that be true then the conclusion is true if that be false then the conclusion will faile And first my Lord I will confute the major or first proposition wherein the whole strength of the argument lies by granting it and by shewing what a multitude of errors absurdities and inconveniencies will follow and flow from it The major or first proposition is this By the fifth Commandement every spirituall father may command his spirituall sonne any spirituall worke and by the same commandement every spirituall sonne is bound to obey the spirituall command of his spirituall father in doing the spirituall worke commanded by him Confutatio 1 And if this proposition be good Divinity then the Archdeacon may command me or any other incumbent within his Archdeaconry not onely to Preach one Uisitation Sermon for him which is the utmost that the Archdeacon himselfe challengeth as appeares in his plea the third Article but he may also command me to preach at every Uisitation holden by him so long as we two live together And besides he may command me to preach for him alwaies at his prebend at his Donative at his two benefices and so he shall take his ease and have all the gaines and I take all the paines and discharge his cures and neglect mine owne Neither shall Sir Henry Martin si reviviscoret interpose any limitation qualification restriction or exception to overthrow any of these consequences or collections from his major proposition but I by the same will overthrow his major proposition and free my selfe from preaching the Uisitation Sermnn Secondly if the foresaid proposition be good Divinity then thereby I will free my selfe and all other incumbents from preaching both at the Uisitation and in our owne cures and put both those workes upon our Parishioners For if the Archdeacon may command mee because I am his spirituall sonne to doe any spirituall worke and therfore to preach his Uisitation Sermon then I likewise being a spirituall Father to my Parishoiners may command any of them to do any spirituall worke and therefore to preach that visitation Sermon And if I may command any of
true difference of christian subiection and unchristian rebellion 2. part pag. 23◠perjury and I am sure that perjury is transcendently unlawfull and propter unum illegitimum tota submissio fit illegitima especially seeing as it appeares upon Record in this Court that submission was framed by the Commissioners in conceptis verbis in a set forme of words and by their own order that set forme of words was to be uttered without addition or alteration and therefore any one part thereof being unlawfull the whole must needs be unlawfull And so my Lord it appears that in refusing to preach that Visitation Sermon I have not transgressed the order of the High-Commission Court because the Archdeacon sent no mandate as he should have done by that order neither if he had was I bound to performe either that mandate that order or the submission enjoyned because both that mandate that order and that submission enjoyned are contrary to the Canons to his Majesties Letters Patents and to his royall Prerogative and supreme Ecclesiasticall jurisdiction of the Crowne which by the oath of supremacie I am bound to the utmost of my power to defend and maintaine and against which no man that hath taken that oath can speake plead argue or give sentence without perjury neither can any Judge according to that his oath to the utmost of his power defend and maintaine all jurisdictions of the Crowne unlesse in this case of mine he doth speedily without delay without procrastination give judgment for the Canons his Majesties Letters Patents his royall Prerogative and mine obedience unto them against that apocryphall uncanonicall anticanonicall antidiplomaticall antiprerogative antisuprematicall postscript of the Archdeacon of Cant. Master Doctor Kingsley And so my Lord I do conclude and I do most instantly and most importunately sue and supplicate to your Lordship and to these my just Judges in the presence of a most just God for a just judgement as a just man should do both for my selfe and for my adversaries First for my adversaries if their Cause be better then mine and they can confute what I have said and if they cannot then for myselfe and for both speedily without all further delay without all further procrastination for it hath been fall twelve years three quarters since this action first began in this Court full twelve years three quarters before I could get this first hearing this one Argument A long and a tedious time in which divers interessed in this controversie have ended their lives and as Iulian the Emperour though an Apostata saies 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Epistola 35. It is a fearful a terrible thing that he that sues for justice shall sooner lay down his life at the judgement seat then procure judgement from the just Judges that sit upon the seat that he shall stand in need of two lives to determine one controversie and yet end them both before he can end that his one controversie What a blemish and disgrace is it that the justice of private men shall exceed and surpasse the justice of Judges and of Courts of justice and if private men do all that ever they can to have their Causes heard and determined and Judges do all that ever they can to delay procrastinate and stave off the hearing and determining of them doth not the justice of private men exceed and surmount the justice of judges and of Courts of justice And yet the justice of private men is but the private and particular justice of the Kingdome and if there be any question concerning that it must passe per libram per trutinam sub examine justitiae judicum Curiarum And therefore the justice of Iudges and of Courts of justice is the generall universall aecumenicall epidemicall justice of the Kingdom The light of the body saith our Saviour is the eye if that light be darknesse how great is that darknesse So the generall universall aecumenicall epidemicall justice of the Kingdome is the justice of Iudges and of Courts of justice If that justice be injustice how great is that injustice It is then the generall universall aecumenicall epidemicall plague pestilence consumption desolation and destruction of the whole Kingdome And though my Lord the difficulty to get justice and the danger to lose it is alwaies very great because there are so many things needfull even in an honest course to prevaile in a sute at Law as a good and a just cause a diligent faithfull and expert Solicitor an honest skilfull and incorrupt Attourney a learned faithfull and couragious Counsell and a just and an upright Iudge of which if any one faile to do his duty a good cause may have an ill successe Yet certainly amongst all the former next after a a good Cause a just and an upright Iudge is the principall and especiall And because even in a good Cause the three former cannot prevaile without this latter and this latter can and may correct and amend the faults and errors of the three former therefore Iulian the Emperour makes this latter the only necessary thing to prevaile in a good Cause His words are worthy to be ingraven in letters of gold on every Court of justice for a direction and caution to all Iudges Counsellours Atturnyes Solicitours and Clients 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Epistola praeallegata This is the only thing saith he for them that suffer wrong to get their right namely to get such a judge as both can and will judge rightly can and will do justice If the Iudge either cannot or will not if either through weaknesse he cannot apprehend the truth or else through wickednesse will not heare or will betray the truth there is then a necessity that right and justice most be subverted Wherefore my Honoured Lord Chiefe Iustice and Honoured Iudges to the intent that your Lordship and the Court may shew your selves such Iudges as men oppressed according to Iulians advise should seeke for such Iudges as both can and will judge rightly can and will do Iustice such Iudges as both can and will rectifie and reforme the faults and errors of Solicitours Atturneys and Counsellors nay such Iudges as in a good cause will supply the want of all these which is my case for I can get none of them Consider I beseech you by how many bonds you are tyed to do justice you tied by your places titles offices oathes by the Lawes of the Land by the Word of God and in these two particular cases of mine in this action of false imprisonment and in the speciall Verdict betweene Allen and Nash by his Majesties speciall mandate deliver'd to your Lordship with mine own hand here in open Court on the first day of Hilary Tearme 1635. All these binde you to do justice but none of these prove you to be just The only rule to prove you just is this of St. Iohn 1 Epist 3. cap. 7. vers He that doth righteousnesse is righteous The works of justice
power of the keies And though my Lord this question be no question if the high Commissioners by the first of the first of Elizabeth never had any power to fine or imprison for any crime within that statute and the cognisance of the high Commission as is declared by a statute made the first Session of this Parliament which statute makes wholely for me and against the high Commissioners and puts the former question out of question yet my Lord in favour of the high Commissioners and to my owne disadvantage I doe forbeare to take the benefit and advantage of the former statute and Declaration and granting to the high Commissioners a power to fine and imprison for crimes within the first of the first of Elizabeth according to the Commissioners practise before and at the time of my censure according to the wordes of their commission and the approbation both of the Exchequer who did imprison me for the 500. pounds fine estreated by the high Commissioners into the Exchequer and of this Court also which would not upon an habeas corpus deliver me from that imprisonement I doe in this sence and respect onely propose the former question whether for the breach of a Canon or Canonicall obedience unto the canons according to the lawes and customes of this land men are to be fetcht from the judgement and jurisdiction of the ordinary up to the high commission court and there to be fined and imprisoned or else whether they are to be left to the judgement and jurisdiction of the ordinary and he to proceed against them according to the power of the keys And though this question my Lord bee within the compasse and cognisance of the common Law and therefore ought to bee spoken unto by the worthy professors of this Honorab profession yet seeing it is in defence of the Episcopall or ordinary jurisdiction which the Bishops themselves have wrong'd and which at this time in this my case no common Lawyer will undertake to defend and that for this very reason as I conceive because they have mens persons in admiration for advantage sake Epist 16. as St. Iude speakes and do prefer the person of some Bishop before and above the Episcopall or Ordinary jurisdicton it self Therfore ut nequid detrementi capiat respublica Episcopalis vel ordinaria and to the intent that all men may know that I both truely love and reverence the Episcopall or Ordinary jurisdiction not onely above and beyond you the common Lawyers who will not according to your profession defend it but also above and beyond those Bishops who contrary to their callings have wrong'd it and also that I onely oppose the usurpation and presumption of some Bishops and not the Episcopall or ordinary jurisdiction it selfe I will endeavour to shew and that by seven reasons Thesis prima septem rationibus confirmaâ—a that the breaches of canons or of canonicall obedience unto the canons according to the Lawes custome of this land belong to the juridiction of the ordinary and not to the cognisance of the High commission court Ratio 1 My first reason my Lord is taken from the sence and meaning of this word Ordinary as it is expressed by Doctor Lyndewode in the first booke of his Prov. tit de constitut cap. Exterior habitus Verbo Ordinarij in these very words Nota quod haec dictio (c) Ordinarius dicitur quia habet ordinariam iurisdictionem in iure proprio non per deputationem Cokes institutes f. 96 Ordinarius principaliter habet locum de Episcopo aliis superioribus qui sunt universales in suis iurisdictionibus de iure communi solus Episcopus est ordinarius super omnes subditos suos sed sunt sub eo alij ordinarii hi vid. quibus competit iurisdictio ordinaria de iure privilegio vel consuetudine By which words my Lord it appeares though there be some other subordinate inferiour ordinaries under the Bishop in some parts of his Diocesse who have and hold under him in those parts an ordinary jurisdiction either iure privilegio vel consuetudine yet de iure communi over the whole Diocesse the Bishop only is Ordinary and onely hath a generall and an universall jurisdiction And this generall jurisdiction of the ordinary or Bishop extends not to all causes both Temporall and Ecclesiasticall but only to all causes meerely Spirituall so called not in respect of their owne nature but because they are assign'd to the Spirituall or Ecclesiasticall jurisdiction And those are of two sorts either civill Ecclesiasticall causes as Tithes Oblations Legacies Pentions and portions or else criminall causes and both these belong to the generall jurisdiction of the Ordinary for the former it appeares principally in two cap. of Lyndewodes Provinc and that in the very text first in his second booke tit de foro competenti cap. circumspecte agatis which though it be King Edw. 1. direction to his Judges or Justices or Commissioners concerning the Bishop of Norwich and other of the Clergy and bee extant among the Statutes 13. Edw. 1. yet seeing it treates of the spirituall jurisdiction of Ordinaries it is set downe by Lyndewode among the provinciall constitutions of our Archbishops of Cant. Secondly in his 5. booke tit de paenis cap. aeternae Sanctio voluntatis And for the latter namely criminall causes it appeares both in the two chapters before alleaged and more especially in the first booke of Lyndewodes Provinc tit de constitutionib c. exterior habitus ver Inquirant upon which word Lyndewode shewes that there is triplex inquisitio generalissima generalis specialis vel singularis and each of these is twofold either praeparatoria or Solemnis praeparatoria est fine exactione juramenti solemnis est cum juramento and the one of these makes way and worke for the other The preparatory inquisition findes out and starts the game and the solemne inquisition persues and takes it And the most generall inquisition both preparatory and solemne belongs to a generall councell or to a provinciall Synode but the inquisition generall and speciall both preparatory and solemne belongs to the jurisdiction of the Ordinary And this generall inquisition hath three degrees for it is generall either in respect both of persons and of crimes or it is generall onely in respect of persons and speciall or singular in respect of crimes or lastly it is generall in respect of crimes and speciall or singular in respect of persons as the Ordinary shall thinke fit and the matter require Now my Lord the High Commission hath nothing to doe with the first of these causes namely civill Ecclesiasticall causes no nor a generall jurisdiction in the latter namely criminall causes and both these are evident by divers judgements at the common Law Hilary 8. Iacobi In the common Pleas in the case of Huntley and Clifford it was resolved that the High Commission had not power to meddle with civill Ecclesiasticall
causes and therefore none might sue before them for Tythes Legacies Oblations Pentions or Portions First because this would bee a meanes to take away all Ecclesiasticall proceedings from the Ordinary Secondly because their sentences and Decrees are finall and no appeale lieth from them so that it might be very mischeivous if they should hold plea of all manner of Ecclesiasticall causes Thirdly because the first of Elizabeth giveth them power only in enormities 1. in hainous horrible and exorbitant crimes In the Exchequer in Ailemers case it was resolved that the High Commission might not meddle to punish one for working upon holy dayes 44 Eliz. rot 1255. in the Common Pleas in the case of Tailer and Masse a prohibition was granted where one was convented before the high Commission for giving irreverend speeches of a Minister for carrying his corne on holy daies and for not suffering the Parson and parishioners to goe through his yard upon Rogation weeke and for not giving them a repast in the perambulation as hee had used to doe and for whistling and knoeking upon the doore of the parson and saying hee did it to make the parson musick for the marriage of his Daughter for this ought to be before the Diocesan But my Lord there is one case at the common Law which I more esteeme than the three former because in this very point it conteines not only the resolution of all the reverend Judges then of this Court but also a reall confession of the High Commissioners themselves my very adversaries and that 's this mire owne case for the high Commissioners did at first Pasohae 1627. committ me to prison for breach of canonicall obedience in refusing to Preach the Archdeacons Uisitation Sermon after two yeares imprisonment when upon an habeas corpus I was set at liberty by the court paschae 1629. because that matter was coram non judice then trinitatis 1629 in their second finall sentence upon the same Articles wherein there is no crime objected against mee they charge me with grievous and enormous crimes mentioned in the Articles that so they might make the matter coram judice and within the cognisance of the High Commission So that by the canon and common Law and by the reall confession of my very adversaries the breaches of Canons or of Canonicall obedience unto the Canons belongs to the Jurisdiction of the Ordinary and onely grievous and enormous crimes to the cognisance of the High Commission court Ratio 2 My 2. reason my Lord is taken from the custome practise over England for it is the generall custome uniforme practise over all Eugl. for the Church wardens to make their presentments at the Ordinary or episcopall jurisdiction not at the High Commission Court therfore the breaches of Canons or of canonicall obedience unto the canons belongs to the jurisdiction of the Ordinary not to the cognisance of the high commission court And this reason being the generall custome uniforme practise over all England time out of minde both of all the Church-wardens in making their presentments of all the ordinaries in receiving them is the Common Law of the Land being in use nono Hen. 3. is confirmed by the 1. chap. of Magna Charta under the name of the Rights Liberties of the Church for as Lyndewode in the fifth booke of his provinc tit de sententia ex communicationis cap. cum saepius verbis Ecclesiasticae libertatis Saith Ecclesiastica libertas inter caetera consistit in libero exercitio Iurisdictionis Ecclesiasticae And this custome Ecclesiasticall liberty jurisdiction hath lately been cleer'd by the resolution of all the reverend Judges then of the 3. Honorable Courts of Common Law as appeares by his Majesties Proclamation dated at Lyndhurst 18. August 13. Caroli wherein they affirme that the Bishops Archdeacons other Ecclesiasticall persons may keepe their visitations as usually they have done then they may receive all presentations from the churc-wardens as usually they have done then they now have a generall jurisdiction as formerly they have had And this their resolution is fully warranted by the fift proviso of the 2. cha of the 1. of Eliz. for that proviso and paragraph gives power to all Archbishops Bishops to every of their Chancellours Commissaries Archdeacons and other ordinaries aswell to inquire in their visitations synods and elsewhere within their jurisdiction at any other time and place to take accusations and informations of all and every the things above mentioned done committed or perpetrated within the limits of their jurisdictions authority to punish the same by admonition excommunication sequestration or deprivation other censures and processe inlike forme as hath heretofore been used in like cases that is cases of Ecclsiasticall cognisance by the Queenes Ecclesiasticall lawes not by a commission as some would have it but by the Queenes Ecclesiasticall lawes Which last words doe approve of such a jurisdiction as the ordinaries at that time did exercise according to the Ecclesiasticall lawes of the land at that time both before and since that time the Ordinaries did do exercise a generall jurisdiction according to the Ecclesiasticall lawes of the land without a commission as appeares upon record in their owne Courts the Canons Ecclesiasticall lawes of the land doe approve of that generall jurisdiction of the Ordinaries as appeares by the body both of Lyndewodes provinciall of the legantine constitutions of Otho and Othobon and also by tenne of our last Canons made primo Iacobi namely by the 109. to the 119. so that in this second reason the Common and Canon and Statute Law doe concurre and all three shew that the breaches of Canons or of canonicall obedience unto the canons belong to the jurisdicton of the ordinary and not to the cognisance of the High Commision Court Ratio 3 My third reason my Lord is taken from his Majesties Letters Patents confirming the canons of our Church made primo Iacobi for therein after he hath in the first place confirmed those canons with his Letters Patents out of his supreme Ecclesiasticall jurisdiction and in the second place charged all his loving subjects of both Provinces to keepe and observe all those Canons in every point wherein they doe or may concerne every or any of them and in the third place charged all Archbishops Bishops and all others that exercise any Ecclesiasticall jurisdiction within this Realme to see and procure that all within their jurisdictions doe observe the foresaid canons in the former manner then in the fourth place he gives power to the said Archbishops Bishops and to all others that exercise any Ecclesiasticall jurisdiction within this Realme to inflict all the punishments mentioned in those canons upon the violators of those canons so that by his Majesties owne gift grant primo Iacobi The breaches of canons or of canonicall obedience unto the canons are assigned