cloath in London to I. S. with a Fee to be receaved for the same measuring and although the office tend to further commutatiue Iustice whereof the power is in the King for weight and measure yet because this fee did tend to charge the subject without his assent it was adjudged by the learned Iudges upon long debate to be voyd and the case of Protection 39. Hen. 6. fol. 39. where the King did grant a protection to A. B. his servant quia prosecturus for a voyage to Rome for service of the King and Common wealth for weightie causes to continue for three yeares and yet it was disallowed by the Iudges because it was for three yeares where by the rules of the law it should be but for one because there was no exceptiō of dower Assise and quare impedit which by law should haue been excepted and that protection did not barr the subjects right but only delayed his suite And in 3. Edw. 3 14. Nort. Assise 445. com fol. 48. the King did pardon I.S. the making of a bridge and because the subjectes had interest in the passage over that bridge the Kings pardon was not sufficient to discharge I. S. frō the making therof In the case of 42. Ass 5. a Commission from the King under the great seale of England was directed to A. and B. to take I. S. and him imprison in the Castle of P. and to take his goodes which was done accordingly by the Cōmissioners and because it was done without any inditment or due course of law the proceedings of the same Commissioners were adjudged voyd The like case was 42. Ass p. 12. Where upon the Kings writt directed to the Iustices of laborers I.S. was indited for some thing not perteyning to the Iustices of laborers and therfore adjudged voyd they having no Cōmission so to doe For although the Sheriffe or officer cannot judge of the Kings writt but must execute it yet the Iudge may refuse to execute the same writt when it is against law or impossible to be done according to 1. Edw. 3. fol. 26. and in the 1. 2. Eliz. Scrogges his Case where a Cōmission was awarded to some Iudges and persons of credit to heare the cause concerning the Office of exigent of London which Scrogges did challenge if Scrogges refused to submit himselfe to their order to commit him to prison upon which Commission Scrogges was cōmitted to prison and he was discharged by the Iudges of his imprisonment by writt of habeas corpus because his imprisonment was not lawfull which writs of habeas corpus are usually graunted in the sayd Courts of Kings bench and Common pleas thereby to releeue the subjectes which are many times in other Courtes and by some Commissioners unlawfully imprisoned yea many times although the Commissions be grounded upon Acts of Parliamēt as the Commission of Sewers the Commission of Banckrupts and the Ecclessiasticall Commission and many times they graunt Prohibitions to the Ecclesiasticall Court to the Admirall Court and to the Court of Requests and other inferior Courts when they exceed their authority And many other Cases he would haue put to proue those poynts but that in a former argumēt made by him in the court of Kings bench against Monopolie Patents of M. Darcie Mich. 44. Eliz. all the Iudges then seemed to yeeld the same to the law without any doubt as he conceived which high inheritance of the law the Common wealth hath alwayes so preserved as without Act of Parliament it cannot be changed as appeareth by the answer of the Barons when the Bishops sought to haue the law changed touching children borne before mariage although the mariage after ensued to be held as bastards the LL. sayd Nolumus leges Angliae mutari and as is apparant by booke cases where it is adjudged that the King by a non obstante may dispence with a statute law but not with the cōmon law nor alter the same as is adjudged 49. Ass p. 8. and Bosoms Case nor put the subjectes from their inheritance of the law as is 8. Hen. 4. fol. 19. which was alwayes accompted one of the great blessings of this land to haue the law the meat-yeard the Iudges the measurers For in all well governed Common wealthes Religion and Iustice are the two principall pillars wherein the power of God appeareth and many times weake weomen doe rule and command many thousand strong men touching their liues lands and goods without resistance which the loue and regard of Iustice procureth For the better proofe of the fourth part he did reade verbatim the partes of the Ecclesiasticall Commission which he thought to be against the lawes of England and liberties of the subjects remembring first to marke and consider how whereas the whole drift of the Act of Parliament 1. Eliz cap. 1. was to restore to the Crowne the auncient iurisdiction over the Ecclesiasticall spirituall estate and for that purpose did giue power to the Ecclesiastical Cōmissioners to execute the premisses in the sayd Act conteyned for the correcting and amending and reforming of such heresies errors schismes contempts and enormityes as by the Ecclesiasticall lawes might lawfully be reformed according to the tenour and effect of the sayd Letters Patents this Commissiō is since enlarged and how it giveth power to the Commissioners to enquire not onely of the permisses mentioned in the statute of 1. Eliz. cap. 1. but also of all offences and contemps against the statute of 1. Eliz. cap. 2. intituled an Act for uniformitie of Common prayer and service of the Church and administration of the sacraments and of all offences and contempts against these statuts following which were all made since anno 1. Eliz. viz. the statute of 5. Eliz ca 1. intituled an Act for the assurance of the Queenes Maiesties power over all states and subiectes within her dominions the statute of 13 Eliz cap 12. intituled an Act to reforme certayne disorders touching the Ministers of the Church the statute of 35. Eliz cap 1. intituled an Act to reteyne her maiesties subiects in their due obedience the statute of 35 Eliz. cap 2. intituled an Act to restreyne some Popish recusant to some certeyne places of aboad the statute of anno 1. Iacobi intituled an Act for the due execution of the statutes against Iesuits Seminaries priests recusants c. Also power is given to the Cōmissioners or any three or more of them not only upon these penall lawes and upon every offence therein conteyned but also upon all seditious bookes contempts conspiracies private conventicles false rumors or tales seditious misbehaviours and many other civill offences particulerly named in the letters pattens to call before them all and every offendor in any of the premisses and all such as by them or any three or more of them shall seeme to be suspected persons in any of the premisses and every of them to examine upon their corporall oathes touching every or any
2. Hen. 4. was revoked by 25. Hen. 8. cap. 14 which doe shew as much viz. that the Ordinaries had no power but the Keyes And by the Common law it is apparant that when the Ordinary or Ecclesiasticall Judge had proceeded so farr as they could by Excomunicating the offendor to locke him out of the Church then the CoÌ„mon law upon significavit did assist them by the writt of ExcoÌ„municato Capiendo Quia potestas regâ—â— sacro sanctae Ecclesiae dâ—â—sse non debet as is sayd in the Register But in this case the ComoÌ„ law still reteyned power to discharge the subjectes so imprisoned upon an ExcoÌ„municato capiendo without assent of the Ordinary both by the writt of Cautione admittenda and by the writt of scire facias upon an appeale where a supersedeas was usually awarded to discharge the person imprisoned against the will of the Ordinary For the lawes of England did so much regard and preserue the liberty of the subjects as that none should be imprisoned nisi per legale iudicium parium suorum aut legem terrae as it is sayd in Magna Charta cap. 29. which Charter by divers other statutes after is confirmed with such strong inforcements in some of them as to make voyd such statutes as should be contrary to Magna Charta And in the 15. Ed. 3. the first article of the Commons Petition in Parliament was that the great Charter may in all poynts be observed so as such persons as are neither appealed Indited nor followed at the sute of the party and haue their goodes landes or possessions taken away may be restored thereunto agayne Whereunto the King answered thus The King granteth for him his heires that if any person coÌ„mit an act against the forme of the great Charter or any other good lawe and he shall answer in ParliameÌ„t or else where he ought to answer according to law And therfore if any free subject were wrongfully imprisoned the Common law did not leaue him to an action of false imprisonment onely but provided the writt De homine replegiando to set him free of his imprisonment vnles he were imprisoned for such particular cause as is expressed in the same writt de homine replegiando which writt is part of the subjectes inheritance and should not be denyed them And this freedome of the subjectes did make Markham the Iudge in the 4. Hen. 7. tit prerog 139. Brook declare that the King could not arrest a subject upon suspicion of felony as a common person might doe because that against the one an action of false imprisonment would lye but not against the King for the subiects liberty must be preserved and by the Statute of Win 1. cap. 15. whosoever shall deteyne subjects in prison who are bayleable by law shal be grievously amerced And to shew that it was thought an unmeete thing to leave power in the Ordinaries to commit subjectes to prison although they contemned their decrees never so much appeareth partly by the statutes of 27. Hen. 8. ca. 20. and 32. Hen. 8. ca. 7. which were made after the revocation of the former statute of 2. Hen. 4 by which latter statutes power is given to two Iustices of peace or to some of the Honorable privie Counsell uppon certificate of the Ordinary to commit such offenders to prison who should contemne the decrees of the Ordinary denying to the Ordinary that made the decree that he should haue any such power to commit the subjects to prison in 5. Eliz. ca. 23. which statute not allowing ExcoÌ„municate persons to be imprisoned by any Ecclesiastical Iurisdiction limits by very speciall manner how they shall be apprehended by the teÌ„porall power For although the Bishop of Rome useth two swordes the spirituall and temporall yet the common lawes of England and the Parliament in divers ages thought not so meete for the Bishopps or Ecclesiasticall Iurisdiction in England to use two swordes but according to the Register Regia potestas sacro-sanclae Ecclesiae dâ—â—sse non debâ—t 2 Touching the second part wherin he was to proue that the statute of 2. Hen. 4. cap 15 which first gaue authority to the Ordinaries to imprison subjects or to set fines on them and force them to accuse themselues upon their owne oathes was procured by the Popish Prelates in the time of darknes he sayd that the very Act it selfe did very playnely shew it it being thus And where it is shewed to the King on the behalfe of the Prelates and Clergie of England etc. And that the same was procured to suppresse the gospell which then began to spring or revive both the body of the Act and the booke of Acts and Monuments written by M. Fox and other Chronicles doe shew it playnly for that those persons whom they tearmed heretickes preached in those dayes against the Sacrament of the Church which was their Masse And that the sayd Statute of 2. Hen 4. cap. 15. was procured by the Prelats with out assent of the Commons thus much appeareth by the Records of the Parliament remayning in the Tower Excellentissimo ac gratiosissimo Principi Domino nostro Regi supplicatur ex parte vâ—stroruÌ„ humilium oratorum prelatorum et cleri regni veslrâ— Angliae quod cuÌ„ fides catholica super ChristuÌ„ sundata et per Apostolos suos et Ecclesiam etc. rehearsing all the words of the Act. Quâ—s quidem petitiones prelatorum et cleri superius expressâ—tas dominus uâ—ster Rex de consâ—nsu magnatum et alioruÌ„ proceruÌ„ râ—gni sui in presenti ê‘liamento existeÌ„tiuÌ„ concessit et in singulis iuxta forma etc wherin the Commons are not mentioned And it is the more likely that the CoÌ„mons gaue no assent to this statute of 2. Hen 4. both for that in the Parliament rolls of the same yeare of 2. Hen. 4. in the Tower there is to be seene the Petition of the Commons to the King thus Item prient les comens depuis q'uill est contenu en la grande chartre quenul sera areste ne enprisone sans responce ou due processe de la ley quell chartre est conferme en charmi ê‘lement et ore ils supplient que si aucun soit areste ou enprisone encontre la forme dâ—l charte avant dict qÌ„ ill veigne et appierge a sa responce et preigne son Iugement sicome le ley demande anssi qÌ„ null tiel areste ne imprisonement soit trait enÌ„ custome enÌ„ destruction de la ley du Roy. Wherto the King answered Soient les statutes eila comen ley tenus As also for that the Prelats had not long before procured an other act against the Lolards in Anno 5. Rich 2. cap 5. without assent of the Commons as appeareth by the Parliament Rolles in the Tower of anno 6. R. 2. which is thus Item supplient les comens qÌ„ comeÌ„ vn estatute suit sait en darrein ê‘lement
partes aboue rehearsed but contrarywise doth expresly abolish their Iurisdiction to imprison subjectes fyne them and force them to accuse themselues as repugnant to the Auncient Ecclesiasticall Iurisdiction which by this Act is restored to the Crowne and he hoped to make that poynt so playne and apparant to all the hearers that would attentiuely regard it as that they might be fully satisfied therin For besides the Booke Cases which he ment to put in that poynt to proue his assertion he sayd that the title in the Act of an 1. Eliz. the preamble of the Act and the matter preceding the preamble in that Act and the body of that Act which giveth power to the Commissioners to execute the premisses by colour wherof they challenge this great power to imprison subjectes etc. doe all concurre by their being rightly applyed to condemne and overthrowe these poynts of the Commission Ecclesiasticall before spoken of and rehearsed by him as unlawfull and unjust The title is an Act restoring to the Crowne the auncient Iurisdiction over the Ecclesiasticall and spirituall estate and abolishing all forren Iurisdiction repugnant to the same What the auncient Iurisdiction over the Ecclesiasticall and spirituall estate is he hath sufficiently before declared and proved it to be that Ecclesiasticall jurisdiction viz. Keyes or censures of the Church which was lawfully vsed in EnglaÌ„d before the statute of 2. Hen. 4. the uttermost whereof was to locke men out of the Church by excommunication termed the keyes of the Church Which statute first gaue power to the Ordinaries to imprison subjects to fine them and force theÌ„ to accuse theÌ„selues by their owne oathes which was ever hatefull to the subjects of England And to proue plainely that this Parliament of an 1. Eliz. ment to abolish that power to imprison subjectes force them to accuse themselues the matter precedent before the preamble doth fully proue for that in this very statute of an 1. Eliz. the law makers as wise framers of a Common wealth before they goe about to annexe the auncient right Ecclesiastical Iurisdiction to the Crowne doe by expresse words at the request of the subjects establish and inact that the statute of 5. Rich 2 câ—p 5 and 2. H. 4. cap. 15. which did giue authority to the Ordinaries to imprison fine and force the subjects to accuse theÌ„selues as aboue and all and every branches articles clauses and sentences conteyned in the sayd several statutes and every of theÌ„ should from the last day of that Parliament he utterly repealed voyd and of none effect any thing in the sayd severall Acts or any of them conteyned or any other matter or cause to the contrary notwithstanding So as the imprisonment of the subjects finyng of them and forcing of them to accuse themselues being the matters branches and articles of those statuts howsoever they came into the power of the Clergie of England by these statutes or otherwise being thought by the Parliament to be repugnant to the auncient Iurisdiction Ecclesiasticall as revera they are being a temporall sword were repealed and made voyd by expresse words of this statute of anno 1. Eliz as repugnant to the auncient Spirituall Iurisdiction And to make the meaning of the law-makers more apparant that they allowed not that any offences should be tried by the parties owne oath but by witnesses as in the begiÌ„ning of this statute of an 1. Eliz. cap. 1. it doth abolish the oath Ex officio by making voyd the statute of 2. H. 4. cap. 15. which first gaue life to that kind of proceeding so in the end of the sayd statute it addeth this clause And be it further inacted by the authoritie aforesayd that no person or persons shal be hereafter indited or arraigned for any the offences made ordeyned revived or adiudged by this Act unlesse there be two sufficient witnesses or more to testifie and declare the sayd offence whereof he shal be indited etc. and the same witnesses or so many of theÌ„ as shal be living and within the Realme at the time of the arraignement of such persons so indited shall be brought forth in person face to face before the partie so arraigned and there shall testifie declare what they can against the party so arraigned if he require the same By which words sith it is playne that no offence ordeyned or revived by that statute should receaue triall but by two witnesses brought face to face that they meÌ„t not to giue power by any Commission grounded upon that statute to haue the offences of the subjectes which touch so deepe as Premunire abiuration and forfeiture of lands and goodes should be tried by the parties owne forced oath against his will without any witnes or accuser as this Commission limitts and yet it is pretended to be grounded upon this statute And therfore it were a most violent construction and absurd that the generall words in this statute viz. to execute the premisses according to the tenor and effect of the letters patents should reviue that by an intendment which was by so playne wordes of all the assemblie in Parliament revoked and abolished as a most hatefull thing to the subjectes of England and of which they ment to purge the Church and Ecclesiasticall goverment For that were to make one parte of the statute contrary to the other and to construe the wordes of the law indefinitely sett downe directly against the meaning of the law makers plainely expressed by wordes which Iudges never did nor as he hoped ever would doe And the title and preamble of the statute doe further restrayne the overlarge construction of those generall wordes to execute the premisses because the premisses being the auncient jurisdiction Ecclesiasticall and spirituall purged from that temporall Iurisdiction as aboue is meÌ„t to be restored onely over the Ecclesiasticall and spirituall estate and not over all the subjects of the Realme and because in the preamble the Commissioners who are to be named are inabled touching Ecclesiasticall or spirituall Iurisdiction only to reforme correct and amend all such heresies errors schismes contempts etc which by any spirituall or Ecclesiasticall power authoritie or Iurisdiction might lawfully be reformed and not all abuses of the common wealth meÌ„tioned in their Commssion or any abuse not proper to the Ecclesiasticall or spirituall Iurisdiction whereof there are many named in their Commission which are temporall Iurisdictions viz. to imprison and fine subjects and to execute lawes upon theÌ„ for that the spirituall law should not meddle with that for which there was remedye by common law as is 22. Edw. 4. fol. 20. and the statute of 24. Edw. 1. cap 1. And to proue that the titles and preambles of other statutes doe many times in construction of statutes restrayne the generall words of the same statuts following he put the case upon the statute of perjurie anno 5. Eliz. where the wordes of the statute are that every person and persons who shall commit voluntarie and
corrupt periurie shall forfeit twentie poundes And because the preamble and matter precedent touched witnesses only therefore that penaltie is restreyned by construction to charge witnesses onely therwith and not such persons as shall commit voluntary and corrupt periurie in their owne cases And so upon the statute of 7. Edward 6. against Receivers Bayliffs etc. although the wordes of that statute extend generally to lay a penaltie of 6. shillings 8. pence for every peny that receivours shall take unlawfully yet because the preamble of that statute touched only the Kings officers It is in construction restrayned to take force against the Kinges officers onely and against none other receivers or bayliffes And to conclude this poynt of the exposition of the wordes of the statute he did demaund why the exposition and construction of all statutes is left to the Iudges of the law but for this cause for that they are and alwayes haue been thought the most carefull iudicious and jelous preservers of the lawes of England And is it not apparant that to uphold the right of the lawes of England the Iudges in ages past haue advisedly construed some wordes of divers statutes contrary to the common sence of the words of the statute to uphold the meaning of the common lawes of the Realme as in the statute of 25. Ed. 3. where it is sayd that non tenure of parcell shall abate the writt but for parcell yet if by the writt an entier manour be demaunded non tenure of parcell shall abate the whole writt And where by the statute of Marlbridg ca. 4. it is prohibited that no distresse shal be driven out of the County where it is taken yet if one manour extend into two Counties there the distresse may be driveÌ„ from one County into another Countie And upon the statute of Prerogatiue which toucheth the King although the wordes be generall that the King shall haue the custodie of all the landes of his tenaunt where parte is holden in Capite yet if part of the landes of his tenaunt doe descend to severall heyres on the parte of the Father and on the parte of the Mother there the King shall not haue all the landes of his tenaunt during the minoritie of the heire for that in all these Cases the great regard of the rule and right of the common lawes doth controll the generall or common sence of the wordes of those statutes And why then should this statute receiue construction by the Iudges of the law contrary to the rule of all other statutes to this effect that by in intendment gathered out of the generall wordes of the Act according to the tenor of the sayâ— letters Paâ—ents there might be erected in this common wealth of England a course of an arbitrarie governement at the discretion of the Commissioners directly contrary to the happie long continued goverment and course of the common lawes of the Realme and directly contrary to Magna Charta which if the statute of 24. Edw. 3. did so highly regard as to make voyd Acts of Parliament contrary to the same it would a fortiori make voyd all construction of statuts contrary to Magna Charta which haue no expresse wordes but an intendement or construction of words with much violence to be wrested to that end And for such as would make such construction of the statute as that whatsoever should be conteyned in the letters Pattents should be as a law he would haue them remember that the King may make new letters Patents for these matters Ecclesiasticall causes every day altering the same in the penalties and manner of proceeding and that if the letter of the statute should be purused the King may change the Commissioners every day and make any persons Commissioners being naturall borne subjectes to the King although not borne in England which were against the meaning of the Act which meaning of the Act is the life of the Act and not the letter of the Act. And besides those former errors of the Commission before remembred he sayd that he did not see how by colour of the statute of 1. Eliz. which gaue power to the Commissioners to execute the premisses conteyned in that Act they should inlarge their Patent to enquire of offences coÌ„trary to other statuts made thirtie or fortie yeares and more after an 1. Eliz. which then were not dreamed of nor meant to be any part of the premisses conteyned in the sayd statute of anno 1. Eliz. and of other civill and temporall thinges for which if the Ecclesiasticall court had held plea a prohibition did lye at the common law according to the statute of 24. Edw. 1. cap 1. and 22. Ed. 4. fol 20. and in 13. Hen. 7 fol 39. Brooke and Fitzh fol. 43. 22. Hen. 8. because for the same thinges redresse may be had at the common lawes and in 7. Hen. 8. fol. 181. the Bishops of the Convocation house for medling against Doctor Standish for a temporall cause by him disputed before the LL. of the Councell were adiudged by all the Iudges to be in danger of Premunire But it wil be objected that use is the best expositor of the statute and then the continuance of this Commission since the statute of 1. Eliz. being aboue 40. yeares will prevaile much to which he answered that long use in a setled court maketh it the law of the court and the iudgments in one Court are not examinable in every other Court or in any but in the proper Court by writt of error false iudgement or appeale vnles the inferior Court meddle with that which is not within their power and then in many cases their iudgment is coram non Iudice and so voyd But this Ecclesiasticall Commission is but a Commission executorie by the intent of the statute of 1. Eliz. to continue so long as should please the Queene or King no setled Court and was meaÌ„t at the first as he thought to haue continuance for a short time to strengthen the authoritie of the Bishops against whose Ordination and installmeÌ„t the Papists did at the first except In which cases of things done by CoÌ„missions whatsoever the CoÌ„missioners doe it is examinable in every Court where it shall come in question at any time after whether that they haue pursued their CoÌ„mission or authority in due forme or no. For their Decrees and sentences are not pleadable in law as Iudgments in Courts of Record are and the many yeares use of the Commissioners especially being Ecclesissticall men for the most parte who know not the lawes of the Realme will giue no enforcement to their proceeding if it be contrary to law But as in this Commission touching causes of Premunire Abiuration and other Cases where the forfeiture of landes and goods doe ensue the Commissioners Ecclesiasticall say they use not in these cases to force any subject to accuse themselues although the words of their Commission doe extend so farr because they see it apparantly contrary to law and right so the Iudges may say the like that in other cases of lesse penaltie to their knowledge untill of late yeares the Commissioners used not either to force any to accuse themselues or to imprison them for refusing so to doe And he did further answer according to the learning and difference which is taken in 44. Edw 3. fol 17. that albeit the allowance in Oier of some Commssion may be of great force to giue strength unto the same Commission yet the allowance or toleration in some other Court of such Commissions many times if it after appeare to be contrary to law bindeth neither the right of the King nor subjects but that the Iudges of the law may judge thereof according to law Vpon all which matters he did conclude that although the Commission be of force to execute the auncient Iurisdiction over the Ecclesiasticall and spirituall estate yet because this Commission and the proceedings of the Commissioners did much vary from the course of It is in construction restrayned to take force against the the ould Common lawes of England expressed in the statute of 42. Edw 3. cap. 3. and from the auncient Iurisdiction Ecclesiasticall for that no pretended custome against those statutes which prohibite such kind of proceeding can be of force and especially for that the Act of Parliament of 1. Eliz. did not giue life or strength to the sayd Commission in those parts so varying but the contrary therefore he did hold the proceeding of the Ecclesiasticall Commissioners against the subjectes by force of the sayd Commission in these poyntes to be voyd and erroneous according to the wordes of the sayd statute 42. Edw. 3. and did humblie pray that his Clients may be discharged from their Imprisonment and the subjects freed from such erroneous proceedings too too heavie and burdensome to them FINIS Lev. 19.15 Ye shall not doe uniustly in iudgment Thou shalt not favor the person of the poore nor honor the person of the mightie but thou shalt iudge thy neighbour iustly Deut. 1.17 Ye shall haue no respect of person in iudgment but shall heare the small as well as the great ye shall not feare the face of man for the iudgment is Gods Fitz H. f. 4â— 4â— Edw. â— cap. 3. In the Tower amoÌ„gst the Parliament 〈◊〉 15 â—◠◠〈…〉 Fitâ—â— fo 40 Eâ— â— fo 36. Ex-rotulo Parliamenti de an 2. H. 4. Petitio cleri câ—ntra heretiâ—â—s 〈…〉 The Petition of the Commons The answer of the King Act. Mo fol 539. Act. MoÌ„ fol. 481. 〈◊〉 Edw. 3. fol. 2. Acts 23.35 Braâ—â— fol. 5. cap. â—â— a) Stamf. fol. â—â— 8. Hen. 4. fo 19. com fol. 236. 1. Ed. â— â—â— 26 Fitz H.f. 31. H. 8. prohib Bosomes Case Cooke fol. 35.
THE ARGVMENT OF MASTER NICHOLAS FVLLER IN THE CASE OF THOMAS LAD AND RICHARD MAVNsell his Clients Wherein it is plainely proved that the Ecclesiasticall Commissioners haue no power by vertue of their Commission to Imprison to put to the Oath Ex Officio or to fine any of his Maiesties Subiects Psal 2.10 Be wise now therefore ye Kings be learned ye Iudges of the earth 2. Chron. 19.6 Take heede what ye doe for ye execute not the iudgments of man but of the Lord and he will be with you in the cause and iudgment Prov. 24.11.12 Deliver them that are drawne to death and wilt thou not preserue them that are led to be slayne If thou say Behold we knew not of it he that pondereth the heartes doth not he understand it and he that keepeth thy soule knoweth he it not will not he also recompense every man according to his workes Imprinted 1607. THE PRINTER TO THE READER CHristian Reader there came to my hands by the good providence of God this Argument of M. Fullers accompanied with some few lines wherin as it should seeme it was sent inclosed to a Gentleman of good worth and worship on this side the Seaes Having read it over perceiving it to be of very necessarie use for my Countrimen whose good I desire from my heart and whose welfare I take my selfe bound to procure as I may though now I be in a part farre remote from them I haue adventured to publish it to the view of the world the rather because therein both the uniust usurpation of the Prelates over his Maiesties Subiects is notably discovered and the lawes and liberties of the land the high Inheritance of the subjects are worthily stood for and maintained maugre the malice of the Prelates who as I heare studie and striue even with might and maine to beare downe all before them to the ruine of that sometime-flourishing Church and Common-wealth How the publishing of it wil be liked I cannot tell how ever I send it abroad to thy view even as it came to my handes which I doe I professe in the presence of that great God altogither without the privitie either of the Gentleman himselfe whose bandes I would be loth any maner of way to increase or of the silenced Ministers who haue felt the weight of these lawles proceedings too too long in the handes of the Prelates Reade it and consider well of it and if thou reape any benefite by it giue all the glorie to God alone who can if it seeme so good unto him by weake meanes bring great matters to passe Farewell To my worshipfull frend W.W. WOrshipfull Sir I send you here-inclosed the thing which you sent for so long since What the drift of it is I understand in part as having read it over How well it is performed I am not able to iudge because it is out of my Element The Gentleman arguing the Case is knowne to many but diversly both thought and reported of upon occasion of his present troubles His perâ—on and cause I leaue to them to whom it belongeth iustly to determine of such great matters But touching the poynt it selfe I hope that as you out of the depth of your iudgment great experience are able to speake much both for the matter and manner of it so you will not be unwilling to declare your minde as occasion shal be offered either in the like or dislike of it And so having no more at this time to trouble your Worship withall but patiently waiting for your opinion herein if you so thinke it good and wishing alwayes all maner of good unto you I humblie take my leaue Gentle Reader because the French quoted in this Argument is somewhat mis-printed and the Latine though it be not much may yet notwithstanding stumble the simple and such as be unlearned I haue thought it not amisse to english both the one and the other referring thee every where to the page and line where either of them is Pag. 5. line 9. Because the Kings power ought not to be wanting to holy Church Ibid. line 19. but by the lawful iudgment of his Peeres or the law of the land Pag. 7. line 7. as before pag 5. line 9. ibidem line 27. c. Supplication is made to the most excellent and gratious Prince our Lord the King on the behalfe of your humble Orators the Prelats and Clergie of your kingdome of England that whereas the Catholike faith founded upon Christ and by his Apostles and Church c. Which petitions of the Prelates Clergie before expressed our Lord the King with the consent of his Nobles and other Peeres of his Realme assembled in present Parliament hath graunted and in every of them according to the forme c. Pag. 8. line 8. Also the Commons pray that sith it is conteyned in the great Charter that none should be arrested or imprisoned without answer or due processe of law which Charter is confirmed in every Parliament c. And besides they intreat that if any be arrested or imprisoned contrary to the forme of the Charter aforesayd that he may come and appeare to his answer and take his iudgment even as the law requireth also that no such Arrest or Imprisonment may be drawne into custome to the destruction of the law of the King Ibidem line 16. Let the Statutes and the common law be kept Ibid. line 20. c. Also the commons beseech that whereas a statute was made in the last Parliament in these words It is ordeined in this Parliament that the Kings Commissions be directed to the Sheriffes and other officers of the King or to other sufficient persons after and according as the certificates of the Prelates were wont to be in the Chauncery from time to time and that such preachers their favourers abettours c. Which was never assented unto nor graunted by the commons but that which was done therein was done without their assent and so the statute is of no force For it was never their meaning to iustifie it nor to binde themselues nor their successors to the Prelates any more then their Auncestors had done in times past It pleaseth the King Pag. 10. line 31. Because no man is bound to betray himselfe Pag. 11. line 9. An Oath in a mans owne cause is the devise of the Devill to throw the soules of poore men into Hell Pag. 12. line 19. Nature is a preserver of it selfe Ibidem line 27. Without a certaine Author of the Bill exhibited no accusations ought to haue place for it is both a thing of very evill example and not the manner of these times Pag. 14. line 26. c. The King can doe nothing upon earth seeing he is the servant and lieuetenant of God but that which he may lawfully doe because that power belongeth onely to God but the power of doing wrong belongeth to the Devill and not to God and the workes of which so ever of these
the King shall doe his servant he is Pag. 15. line 12. condemned for what cause so ever Pag. 18. line 2. We will not haue the lawes of England to be changed Gentle Reader in pag. 29. line 21. there is gone purused for pursued the which I pray thee to amend THE ARGVMENT OF MASTER NICHOLAS FVLLER IN THE CASE OF THOmas Lad and Richard Maunsell his clients Wherein it is plainely proved that the Ecclesiasticall Commisioners haue no power by vertue of their Commission to Imprison to put to the oth Ex Officio or to fine any of his Maiesties Subiects THE CASE THomas Lad a marchant of Yarmouth in Norfolke was brought before the Chauncellor of Norwich for a supposed Conventicle because that he on the Sabbath dayes after the Sermons ended sojourning in the house of M. Iackler in Yarmouth who was late Preacher of Yarmouth joyned with him in repeating of the substance and heads of the sermons that day made in the Church at which Thomas Lad was usually present and was forced upon his oath to answer certaine articles touching that meeting which he could not see untill he was sworne and having answered vpon his oath twice before the Chauncelor there he was brought to Lambeth before the Ecclesiasticall Commissioners to make a further answer upon a newe oath touching the supposed Conventicle which he refused to doe without sight of his former answers because he was charged with perjury and therefore was imprisoned by the Commissioners a long time could not be bayled whereupon the writt of Habeas Corpus was granted out of the Kings bench to bring the prisoner to the Barr. Richard Maunsell the other prisoner being a Preacher was charged to haue been a partaker in a Petition exhibited to the Nether house of the Parliament and for refusing to take the Oth ex officio to answer to certayne articles which he could not be permitted to see he was imprisoned by the Cōmissioners at Lambeth where he remayned very long and could not be bayled and was brought to the barr upon the writt of habeas Corpus These imprisonments of Thomas Lad and Richard Maunsell by the Cōmissioners for the supposed contempts aforesayd were unlawfull as the said Nicholas Fuller said and therefore he sayd that the prisoners ought to be discharged And before he began his Argument he the sayd Nicholas Fuller did confesse that it was a blessed thing in all kingdomes to haue the Church and Common wealth to agree together as Hippocrates twinnes And the meanes to continue a perfect agreement betweene them was as he sayd to giue to Caesar that which is Caesars and to God that which is Gods Which right distribution of the Iurisdiction of the Church in England and Iurisdiction of the Common lawes in England sett forth and proved upon good groundes of the auncient lawes and statutes of the Realme would as he thought cōtinue a peace between the Church and Common wealth of England for ever which he desired from his heart and it was his labour to effect by this his Argument Wherin for the better understanding of his purpose and drift of his Argument he did devide the same into 5. partes 1 And first because the Ecclesiasticall Cōmission is groūded upon the Statute of Anno 1. Eliz. cap. 1. the title and intent of which statute is the restoring to the Crowne the auncient Iurisdiction over the Ecclisiasticall spirituall office and the abolishing of all forreyne Iurisdiction repugnant to the same he declared what that auncient spirituall Iurisdiction was which was ment in that Act to be restored and by the Cōmissioners to be executed and therein he proved that the power to imprison subjects to fine them or to force them to accuse themselues upon their owne enforced oathes there being no accuser knowne was no parte of the auncient Ecclesiasticall jurisdiction nor used in England by any spirituall Iurisdiction before the Statute of 2. Hen. 4. cap. 15. which was procured by the Popish Prelats 2 That the Statute of 2. Hen. 4. cap. 15. which first gaue authority to the Bishopps to imprison subjects fine thē and force them to accuse themselues was procured by the Popish Prelates in the time of darknes if not without a full consent of the Cōmons yet to their great mislike and that the sayd Statute and every thing in the same conteyned is revoked as being against the rule of equitie and common justice and against the lawes of the lād and very hatefull to all the subjectes of the Realme and in that 2. parte he proved according to the words of the statute that the Oath ex officio was against the law of England and against the rule of equitie and Iustice 3 That the lawes of England are the high inheritance of the Realme by which both the King and the subjects are directed And that such grants Charters and Commissions as tend to charge the body lands or goods of the subjects otherwise then according to the due course of the lawes of the Realme are not lawfull or of force unles the same Charters and Commissions doe receaue life and strength from some Act of Parliament 4 That in this Commission Ecclesiasticall there are some thinges tending to charge the body lands goods of the subjects otherwise then according to the course of the lawes of the Realme and especially in imprisoning them fyning them and forcing thē to accuse themselues upon their owne oath without any accuser 5. That the Act of Parliament of Anno. 1. Elizab. cap. 1. whereupon the Ecclesiasticall Commission is founded doth not giue life or strength to such partes of the Commission as concerne imprisonment of subjectes fyning them or forcing them to accuse themselues but doth make voyd and abolish the same as repugnant to the ancient Ecclesiastical jurisdiction which by the Statute was to be restored And so he sayd that the imprisonment of his clients was unlawfull the proceeding of the Commissioners upon the Oath ex officio without an accuser not warranted by law but erroneous and voyd Touching the first parte of the division which was to proue that before the statute of 2. Hen. 4. cap. 15. the Ordinaries had no power to imprison the subjects or to fine them it appeareth both by the preamble of that Statute where it is declared that before that time they could not by their spirituall Iurisdiction without ayd of the Royal Majestie sufficiently correct perverse people who did contemne their spirituall jurisdiction and Keyes of the Church which was at the uttermost to locke them out of the Church by Excomunication and also by the booke case of 10. Hen. 7. arguing upon that poynt of the same statute where it is set forth that the Ordinaries before the Statute of 2. Hen. 4. had no power to imprison subiects but the Keyes of the Church and the like is also confessed by the Statute of 1. and 2. of Philip and Mary which was made after the former Statute of