day For Misera est servitus ubi jus est vagum aut incognitum 4. What Fees were due to Pursevants Clerks Registers or other Officers imployed in such Ecclesiastical Commissions 5. Because those Ecclesiastical Commissions were by the King granted sometimes to meer Laymen as 31 H. 1 cap. 14 to Thomas Cromwel Earl of Essex c. Sometimes to Laymen and Clergy men as at this day Whether Common Lawyers did not then and might not now plead at those Ecclesiastical Commissions as they do now before the Judges Delegates But these are not so pertinent to my present point and therefore I will only speak of the first four Quest 1. Whether the High Commission can inflict this grievous punishment put in my Case or any part of it but for high and enormous offences and not for all offences And I think and do hold That the High Commission cannot punish but for high and enormous offences upon these words of the Statute of 1 Eliz. c. 1 Errors Heresies Schismes Abuses Contempts and Enormities and that for these Reasons Reas. 1. From the signification of the words High Commission and Enormous offences or Enormities It is called High Commission not that one Commission of the Kings is higher then an another for the King is the same in all his Commissions Neither is it called High Commission by reason of the greatness of the persons to whom it is directed for in the Commissions of Oyer and Terminer of the Peace and of the Sewers the persons are equally as high and as great But it is called High Commission as the late Bishop of London Dr. King Expounded it in Mr. Fermers Case Parson of Charwelton in our County because they had jurisdiction of high and great offences and not of petty and slight omissions as he was then questioned for The word Enormity or Enormous offence is well Expounded by the Statute of 2 E. 3. c. 2. to be a great and horrible Trespass as it is there called For the Commissions issued forth upon that Statute of Oyer and Terminer were to be revoked when the trespass was but pettie and slight and was not enormis seu horribilis transgressio And this appears plainly in the Register fol. 125. a. by the Writ there De Revocatione brevis de audiendo terminando and the Reason is given in the Writ Quia non est enormis laesio Reas. 2. The second Reason is taken from the Foundation of the High Commission grounded upon the Statute of 1 Eliz. It appears by the main scope and intent of that Act That the Commission founded upon that Act was to issue forth principally for the Visitation of the Ecclesiastical Estates and Persons of that time and for the correction reformation and ordering of the same Now the Ecclesiastical Estate of that time stood thus Queen Mary died Novemb. 17. 1558. Queen Elizabeth called her Parliament Jan. 23. following with a full purpose to restore and establish the reformed Religion happily begun by her Brother K. Edward the 6th and to abolish the Jurisdiction of the Pope all her Bishops at this time forsook her but only Anthony Kitchin Bishop of Landaff Cardinal Pool Archbishop of Canterbury died the same day Q. Mary died Heath Archbishop of York that should in that vacancy have set the Crown upon her Head refused to do it onely Owen Oglethorp Bishop of Carliel performed that Solemnity Hereupon that Parliament consisting of the Temporal Lords provided for the good and safety of the Queen and of true Religion by petitioning her for this Ecclesiastical Commission By which Commission which went out in the first year of her Reign being but Twenty Sheets of Paper but now above an Hundred Fourteen Bishops were deposed and many more of the Popish Clergy deprived And in this first Commission the chief persons named in it if not all were temporal men and the offences and enormities which that Statute principally intended and enquired of were the denying of the Queens Supremacy and the withstanding the Reformed Religion then established and other crimes in a second respect Reas. 3. The third Reason is taken ab Incommodo For if the High Commission should have Jurisdiction of all Causes whatsoever great and small then will the ordinary Jurisdiction of Bishops in their several Diocesses quickly vanish and be extinguished and the Subject grievously vexed in being fetched up one hundred or two hundred miles and more from his abode whereas he might have Justice in the Ordinaries Courts nearer home For the High Commission hath its Jurisdiction all over England and Ireland Scotland being not then united to the English Crown and therefore not extending to it which was never the intent and meaning of that Act of 1 Eliz. And for these Reasons many Prohibitions have been granted to the High Commission out of the Kings Courts of Westminster when they have meddled with inferiour offences As Mich. 44 45 Eliz. C. B. between Taylor and Massie for carrying Corn on Holy-days and giving irreverent speeches to the Minister and whistling and knocking at his door and saying He made Musick for his Daughters wedding A Prohibition was granted for these things as too light for the High Commission The like Prohibition was granted out of the Court of Common-Pleas Mich. 42 43 Eliz. Rot. 503. Trin. 44 Eliz. C. B. between Robert Pool Clerk and Thomas Guy a Prohibition was granted to the High Commission for holding Plea for the assaulting and laying violent hands on the said Pool being a Parson upon this Reason For that they were not offences proper for the High Commission but for the Bishop of the Diocess to meddle with And in all these Prohibitions and many more that I could vouch the words in the Record inducing the Prohibition are these Licet omnia singula premissa in articulis praedict. specificat non sunt laesiones enormes nec offensa adeo gravia unde praedict. Commissionarii dicti Domini Regis virtute actus praedict. de Anno primo dicto Dominae Reginae Eliz. cognitionem habere possint seu debeant As it appears in the Case between Vivers and Pellings in the Common-Pleas Sexto Iacobi Cok Entry's fol. 465. Quest 2. Whether for all those enormous offences of which they have Cognisance and Iurisdiction by the Letters Patents they can fine and imprison And I think they cannot My Reasons are these Reas. 1. The first Reason is this The Ecclesiastical Jurisdiction restored by the Statute of 1 Eliz. to the Crown was that which was then usurped by the Pope Now it is confessed to my hands by all the Civilians That the Pope did not at that time nor any time else exercise any Ecclesiastical Jurisdiction within this Kingdome by Fine and Imprisonment which are temporal acts belonging to the temporal Sword but only by the spiritual Censures of the Church belonging to the Keys which are six in number Suspension Sequestration Deprivation Degradation Interdiction and Excommunication And
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
Conversation shall teach me to do it Opere habent opera suam linguam And though you have by these favours to me made me your Companion in Company in Conference and now in Council yet my Love my Duty my Thanks shall make me a Servant to you and to this whole Society for ever After this Speech I had thanks from them all Seriatim and was made and confirmed a Bencher And now having finished this Narrative I shall according to my promise publish all my Arguments at large touching those four Points mentioned before in the Narrative The Readers Arguments upon the four Points mentioned before in his Vindication POINT I. WHether an Act of Parliament may pass and be good by the Assent of the King his Temporal Lords and Commons and all the Spiritual Lords being absent or if present wholly disassenting And I hold it may A Jove principium This is a Point which mainly concerns our Religion established by the Act of 1 Eliz. which passed by the assent of that Queen her Temporal Lords and Commons all the Spiritual Lords disagreeing which if no good Act then is not our Religion confirmed by Parliament This Point I framed from the opinion of as learned a Bishop as ever this Nation enjoyed since the hour it enjoyed him I mean Bishop Jewel in the defence of his Apology against Dr. Harding lib. 6. c. 2. divis 1. where the said Act of 1 Eliz. for the Uniformity of Prayer and Sacraments is denyed to be a good Act for want of the concurrence of the Bishops The Bishop affirms it to be a good Act and his words are these Verbatim Where you would seem to say That the Parliament holden in the first year of the Q. Majesties Raign was no Parliament for that the Bishops wilfully refused to agree to the godly Laws there concluded you seem therein to bewray some want of skill The wise and learned could have told you That in the Parliament of England matters have evermore used to pass not of necessity by the special consent of the Bishops and Archbishops as if without them no Statute might lawfully be Enacted but only by the more part of Voices yea although all the Archbishops and Bishops were never so earnestly bent against it And Statutes so passing in Parliament only by the Voices of the Lords Temporal without the consent and agreement of the Lords Spiritual have nevertheless alwayes been confirmed and ratified by the Royal assent of the Prince and have been Enacted and published under the names of the Lords Spiritual and Temporal Read the Statutes of King Edw. the First there you shall find that a Parliament solemnly holden by him at St. Edmondsbury the Archbishops and Bishops were shut forth and yet the Parliament held good and wholesome Laws were there enacted the departing or absence or malice of the Lords Spiritual notwithstanding In the Records thereof it is written thus Habito Rex cum suis Baronibus Parliamento Clero excluso Statutum est c. Likewise in Provisione de Martona in the time of King H. 3. where matters were moved of Bastardy touching the Legitimation of Bastards born before Marriage the Statute past wholly with the Lords Temporal whether the Lords Spiritual would or no yea and that against the express Acts and decrees of the Church of Rome The like hereof as I am informed may be found Anno 11 R. 2. cap. 3. Howbeit in these Cases I walk somwhat without my Compass Touching the Judgment hereof I refer my self wholly to the Learned Thus far goeth that famous Bishop This Opinion of the Bishop I shall confirm by considering the Law in two Points Point 1. Whether an Act of Parliament may pass by the Temporal Lords onely the Spiritual Lords being all present but disagreeing ad disassenting to the Act And this was the very Case in passing of that Act of 1 Eliz. For in the Journal of that Parliament it is said That all those matters which in that Parliament concerning the Church Service and Sacrament the Bills passed dissentientibus Episcopis with a particular enumeration of their names which dissented as likewise two Orations are recorded in the Journal to be made by Dr. Scot Bishop of Chester and Dr. Fecknam Abbot of Westminster against that Act Now that this was a good Act of Parliament though all the Bishops disagreed it is manifest by the course of all Parliaments for the Bishops sit in Parliament not as they are Spiritual men but by reason of their Temporal Baronies annexed to their Dignities Nonratione Nobilitatis as Stamford speaks Pl. Coron fol. 153. sed ratione Officit And therefore if the voices of the greater number of temporal Lords exceed theirs the Act shall pass as the Act of the whole Lords House and their voices shall be involved in the greater number of the Temporal Lords and so shall be the Act of all the Lords as well Temporal as Spiritual Andso is the Book of 11 H. 7. fol. 27. Bro. Parl. 107. And so is the Act-Roll of 1 Eliz. Ex assensu omnium Dominorum tam Spiritualium quam Temporalium And so is likewise the Printed Act and so it ought to be This will better appear by considering the divers forms of Penning of Statutes from the time of Magna Charta to this day 1. Rex statuit as Magna Charta and other old Statutes 2. Statuimus Ordinavimus as 27 E. 1. Stat. de Finibus And both these forms are good for in them both are implied the Lords and Commons 3. Be it enacted by the King with the assent of the Lords and Commons according to the Book in 11 H. 7. 4. But the best form of all is Be it enacted by the Authority of Parliament And so are the Books of 7 H. 7. fol. 14. Bro. Parl. 76. and Crompton jurisdict. of Court f. 12. The proofs of this Point will further appear in handling the second Point which I now come to Point 2. Whether an Act of Parliament may pass all the Spiritual Lords absenting themselves from the House of Peers And I think it may That this may not seem strange I will back it by Authority in Law by Example and Reasons 1. For Authority in Law It is the resolution of all the Judges of England 7 H. 8. 184. Kelwayes Reports in these words Nostre Sur l'Roy port assets bien tener son Parliament per luy ses Surs temporall Commons tout sans l'Spirituall Surs i. e. Our Lord the King may well enough hold his Parliament by himself his Lords temporal and Commons without the spiritual Lords at all According to this resolution there are many Examples The Parliament summoned at Edmonds-Bury which the Bishop mentioneth was a good Parliament and yet all the Prelates were excluded and upon very great Reasons which is not mentioned by the Bishop That K. E. 1. being exercised in martial affairs levied a great sum of money of Laity and
fully determining to deliver the Law of the Land concerning all Ecclesiastical Jurisdiction in the Kingdom not only in the Inferior Courts of Ordinaries but in that great Court of the High Commission The Common Law of England speaking to all those Courts in the language of the supreme Lawgiver Hither shall you pass and no further and here shall you stay your proud waves But I considered the Title of my Statute was Circumspectè agatis which put me in mind of the saying of an excellent Historian That a man might follow Truth so neer the Heels that it might at last dash out his Teeth I do not say this was any Argument to me of parting with so good a Statute for it had savoured of Fear and base Affection Et viro cordato indigno The only reason why I waved those two former Statutes and resolved upon this Law I have now chosen was my respects to the Students of this Society for whose benefit I had chiefly destinated these my poor labours by reading upon such a Law as was larger in extent comprehending in it self the two former more frequent in our books and in Westminster Hall and of better learning and use Et hic Baculum fixi I never wavered more But finding the whole little for words but a Volume for Learning and matter I was forced to confine my thoughts only to the seventh Chapter of this Statute and although I had not the happiness to have the help of other mens labours upon this Law as not knowing it was ever Read on before yet I have adventured to Read upon it choosing rather to fall alone where I might happily find either your pardon or pity then through the arms of a Guide where I could expect neither And because I talk of falling I have no other course then to chuse such a Supporter as will never fail me and that is your love which is of such a Composition that where it finds out desert it can make it like the Philosophers Stone it can turn a base Mettal into perfect Gold This I earnestly seek for and hope to find at all your hands Et sub hac spe ductus rem aggredior And come to my Statute After which I Expounded my whole Statute being an ancient Law according as all ancient Readers were wont to do being nine Chapters in the Printed Statute but are twelve Chapters in the part Read consisting upon Petitions of the Lords and Commons to the King and his Answers thereupon whose Answers made the Law Out of which Petitions and Answers entred in the Parliament Roll the Judges at the end of the Parliament did in form of Law frame an Act of Parliament which was Proclaimed and published and afterward Printed when Printing came in use which was about the time of H. 6. And this was the manner of Parliaments in E. 3 time and long before After I had Expounded my whole Statute according to the old manner I thereof made Ten divisions according to the then manner of Readers upon every division put Ten Cases as the Historian truly relates who goeth on and saith That my first Case was this Whether or no it be a good Act of Parliament without the Lords Spiritual Here is some mistake for this was not my first Case for my first Case upon my first division consisted of fourteen points but this was the first point of my first Case and it was thus Whether an Act of Parliament may pass and be good by the Assent of the King his temporal Lords and Commons all the Spiritual being absent or if present wholly disassenting And I held it might And here a man would wonder that by a Clergy man especially so clear a point as the Law makes this to be should be brought into question when I had so great a Champion on my side as that Famous Learned and Pious man Bishop Jewell in the defence of his Apology against Dr. Harding who with the rest of the Jesuits held the Statute of 1 Eliz. for Uniformity in Religion to be no act of Parliament because no Bishop or Spiritual Lord assented to that Act but it then passed only by the assent of the Queen the Temporal Lords and Commons Bishop Jewel stoutly maintains it to be a good Act and gives divers Reasons and Authorities for the same which in my Argument of this point herein after expressed I shall cite at large And I thought it a most needful point to be known to the Students of Law when as the establishment of the Reformed Religion of the Church of England lay at the stake upon it for I read it only for the Middle Temple Hall not for Lambeth and could not imagine that any Charon could have been found that would have Ferryed it over the water The Historian goeth on and saith the second Case thus If any benificed Clerk was capable of Temporal Jurisdiction at the making of that Law This was not a Case but an other point of my first Case upon the first division it was thus Whether a Benificed Clerk may by my Statute exercise Civil Jurisdiction and be a Justice of Peace I put not this Case of a Bishop at all as being of a higher Sphear then a Clark but only of a benificed Clerk A needfull point to be known to young Students to whom alone I intended my Reading For at the time of making my Statute there was not in England a Beneficed Clerk a Justice of Peace but yet at the time of my Reading there were never more In the Argument of which points I did not at all as I shall hereafter make appear speak against their being Justices of Peace for that they might be so by Law by virtue of the Kings Commission Only by way of Caution in that they might refuse in respect of their Orders and I only declared how the Law of the Land and the Law of the Church stood heretofore in that point and that according to the rule of our Saviour Ab initio non fuit sic The Historian goeth on and saith His Third Case thus Whether a Bishop without calling a Synod hath power as Diocesan to convict an Heretick That which I put was the fourth Point of my third Case upon the third division and it was this Whether a Clerk that is an Heretick may at this day be convicted and condemned for Heresie by his own Ordinary alone And I thought he could not This was a most needful point to be known to the Students of Law by reason of the obscurity of the Law in it not only in respect of the definition of Heresie and what it shall be said to be wherein the Law was dark but likewise how a Heretick should be convicted And the Statutes concerning Heresie being repealed by King Edw. 6. and revived again by Q. Mary and afterwards all of them repealed again by Q. Elizabeth But for none of these was I silenced but upon another point upon touching the Jurisdiction
Clergy for the supply of his wants the whole Clergy refused upon a Constitution of Pope Boniface the 8th That if any Clerk gave to a Lay-man any part of his Spiritual Goods he should forthwith stand Excommunicate Whereupon at this Parliament by the King the Temporal Lords and Commons all the Bishops and Clergy excluded it was enacted That their Persons should be out of the Kings Protection and their Goods subject to Confiscation till they submitted themselves to the Kings favour and yielded their obedience So in the Parliament of 11 Rich. 2. The Appeals Judgments and Executions of that Parliament were approved notwithstanding all the Spiritual Lords were absent And Rot. Parl. 11 R. 2. m. 6. Artic. 9. the cause of their absence is there at large set down by a notable Protestation of William Archbishop of Canterbury in the behalf of him and his Clergy Stat. 38 E. 3. c. 1. Against Provisors and Provisions of the Pope it is there said to be made by the King with the assent of his Dukes Earls Barons and Commons without mentioning the Prelates which it seems did purposely absent themselves For Rot. Parl. 38 E. 3. m. 2. the Prelates make an express Protestation of their disassent to the Ordinances made against the Church of Rome which may turn to the prejudice of their Estate and Dignity So the Statutes of 3 R. 2. cap. 3. 7 R. 2. cap. 12. were enacted and passed by the King the Lords Temporal and Commons onely without the Prelates The Reasons of this are these 1. The first is given by the Judges 7 H. 8. cited before For that say they the Spiritual Lords have not a place in Parliament by reason of their Spiritualties but by reason of their Temporal Possessions which is the reason that the Bishop of Man comes not to the Parliament because he hath no Temporal Barony annexed to his Bishoprick And diver Abbots and Priors to the number of 27. that had Baronies annexed to them came to the Parliament until the Statute of Dissolution of Monasteries And the time when both Bishops and Abbots were first made Barons of this Realm is said to be in the 4th year of William the Conquerour as appears by the late Irish Report Case of Tenures p. 34 35. 2. It would be mischievous if in some Cases Acts should not be made without the Bishops for no Bishop is by his Order to come to the Parliament when Judgment of Death is given upon any man as notably appears by the Statute of 11 R. 2. cap. 2. and the Parliament Roll I cited before And at this time the Baronage is wholly in the Temporal Lords to pass such an Act For no Bishop is a Baron in respect of his person but of his Temporalties which is the reason that he is not tried by his Peers as the temporal Barons are but by ordinary Juries as fell out in the Case of Fisher Bishop of Rochester temp. H. 8. And Cranmer Archbishop of Canterbury 1 Mar. who were both tried by common Juries So Hill 17 E. 2. Rot. 87. dors Adam Bishop of Hereford being indicted for divers Felonies and joyning with Roger Mortimer was arraigned in the Kings Bench and tryed by a common Jury The like was of John de Ile Bishop of Ely Trin. 30 E. 3. Rot. 11. The Readers Argument upon the Second Point WHether at the time of making my Statute 25 E. 3. a. Beneficed Clerk might by Law exercise Civil Jurisdiction and be a Justice of Peace And I think he could not I put the Case of a Beneficed Clerk not of a Bishop and how the Law was in this Point at the time of my Statute Which because the practise is otherwise at this day I will fully and clearly prove it I will first begin with the Law of the Church called in our Books The Canon Law Look the Decrees of Gratian caus. 21. q. 2. c. Pervenit Distinct 88. Extra de vita honestate Clericorum and Extra Ne Clerici vel Monachi c. and you shall find these things expresly decreed That they are not to take Lands to Farm nor to traffique and trade with which agrees the Statute of 21 H. 8. cap. 13. still in force nor to be Stewards and Bailiffs of great men nor to be Sheriffs or Justices nor to meddle in secular affairs upon this ground of the Apostle Paul to Timothy Nemo militans Dei implicat se in negotiis hujus seculi They are spiritual Souldiers and may not meddle in worldly businesses Object But it will be said This is the Popes Law which is now abrogated Answ. I will therefore prove it by much better Law And first by the Canons of the Apostles Can. 6. Thus Episcopus aut Presbyter aut Diaconus seculares curas non suscincto aliter deponitur The Imperial Constitutions Code lib. 1. tit. 3. Sect. 17 Placet nostrae clementiae ut nihil commune Clerici cum publicis actionibus habeant vel ad Curiam pertinentibus cujus corpori non sunt annexi The Provincial Constitutions which in our Ecclesiastical Courts are of as much Authority as Aristotle in the Schools In a Constitution of Stephen Langhton Archbishop of Canterbury it is thus said Praesenti decreto Statuimus ne Clerici Beneficiati sivè in sacris ordinibus sint senescalti aut Balivi nec Jurisdictiones exerceant seculares praesertim illas quibus Judicium sanguinis sit annexum Linwood de Immunitate Ecclesiae fol. 194. Put more fully by the Legantine Constitutions of Othobon which I will repeat Verbatim Grave ac sordidum reputamus Quod Clerici quidem terrena lucra foeda petulantia avida voracitate jurisdictionem à laicis recipiunt secularem ut Justitiarii nuncupentur sivè Ministri Justitiae quam non possunt sine clericalis ordinis injuria ministrare Nos igitur horrendum hoc vitium extirpare volentes c. And then provides that the man which committeth such offence ipso facto ab officio Beneficio sit suspensus And that the Common Law of England excluded Clergy-men from being Justices of the Peace at or about the time of making my Statute it appears by the Stat. of 34 E. 3 cap. 1 In every County of England shall be assigned for the keeping of the Peace one Lord and with him three or four of the most Valiant men of the County with some learned in the Law Not a word is here spoken of Clergy-men And what is meant by Valiant men is well expounded by the Statute of 13 R. 2 c. 7 That Justices of Peace shall be made in all the Counties of England of the most sufficient Knights Esquires and Gentlemen of the Law of the said Counties And it appears Rot. Par. 13 R. 2 n. 13 that this Statute was made at the prayer of the Commons and with the assent only of the King the Lords Temporal and Commons the Spiritual Lords having formerly protested in Parliament
Elizabeths time the two Chief Justices the Chief Baron and divers Judges with other of that Queens learned Councel to be of opinion That at this day the Bishop of the Diocess may convict for Heresie Answ. To which I answer That it is but his Hear-say and seeing he names not the time nor the Judges nor their Reasons the old Rule may be applied to him Quae sine ratione objiciuntur pari facilitate rejiciuntur Quest 3. By what Law is it that a man is burnt for Heresie the Common Law or by the Canon Law called in our books the Law of the Church I answer That it is by the Canon Law not by the Common Law Object But it is said by Briton lib. 1 cap. 17 and by 2 Mar. Littte Brook That an Heretick shall be burnt b the Common Law Answ. To which I give this answer The Common Law is taken two wayes 1. Strictly 2. Largely The Common Law strictly taken are those ancient grounds and Maxims of Law which agrees with the Fundamental Law of Reason largely taken it is the allowance and approbation of the grounds and customes of another Law This destinction is warranted by Dr. and Student amongst his six Grounds of Law As for instance It is said in our books 9 E. 4 19 H. 6 21 1 E. 4 and divers other books That such and such men shall not have their Clergy by the Common Law as you may read at large Stamf. pl. cor. lib. 2 cap. 42 And yet cap. 41 that Clergy was an ancient priviledge of holy Church and had his beginning by the Canon Law and not by the Common Law saith Stamford So I say in our Case This burning for Heresie being nothing else in that Law but a breach of the Decrees of the Church was a Brat of the Canon Law and had its Original meerly from that Law Anno Dom. 1184 by Pope Luoius the Third and confirmed by Pope Gregory the Ninth in the Fifth book of the Decretal Epistles cap. 9 fol. 360 as you may reade there at large And therefore for the honour of the Law of England when at the time of the first hatching of this cruel Law many of the Paterini and Publicani who held the opinions of the Waldenses were by multitudes burnt in France and the same course was much pressed upon King Henry the Second then King of England Rex Anglorum Henricus seiundus saith Roger Hovenden an ancient Historian id nullo modo fieri permisit in terra sua licet ibi essent quamplurimi Neither was any burnt in England till the Statute of 2 H. 4 was made if I may call it a Statute for the truth is both the Statute printed in English amongst the Statutes and the Statute in Latine amongst the Provincial Constitutions of Tho. Arundel differ much from the Parliament Roll for the truth is that Act of 2 H. 4 was never assented to by the Commons as may appear by the Title of the Roll which is Petitio Cleri contra Hereticos tit. 48. And whereas in the Act it self it is said Praelati Clerus supradicti ac etiam communitates dicti Regni supplicarunt These words Ac etiam Communitates dicti Regni are not in the Parliament Roll which I have seen for both in that Roll and in the Latine printed Act when the Law comes to be Enacted it runs in this form of words Qui quidem Dominus Rex ex assensu Magnatum aliorum Procerum ejusdem Regni concessit statuit c. where there is no mention made at all of the Commons And therefore to help this fault the words of aliorum Proceruns are thus rendred in our English Statute And other discreet men of the Realm whereby is implyed the assent of the Commons which word Proceres was never so Englished before till the Clergy made this Construction of it And therefore by the grievous complaint of the Commons against the injustice and cruelty of that Law it was upon their complaint by the Statute of 25 H. 8. c. 14 quite repealed and annulled as you may see in that printed Statute and in Fitz. Nat. brev. fol. 269 D. The Readers Argument of the Fourth Point put in his Fifth Case upon the Fourth Division of his Statute WHether the Fine Imprisonment Deprivation and Ex-communication of a Clerk for Enormous offences and no particular offence named be good or void in Law And I think the sentence to be void and against Law This is a great and a high question and much concerns the Liberty of the Subject a most precious thing Libertas est res inestimabilis was the Motto of the Emperor Justin. upon the reverse of his Coyn. And in this point Magna Charta is broken in two Chapters cap. 1 Habeat Ecclesia Anglicanae libertates suas illaesas and here is an English Clergy-man undone And cap. 29. Nullus liber homo imprisonetur nisi per legem terrae and here is a free Subject quite destroyed in his Goods by his Fine in his Land and Living by his Deprivation in his Body by his Imprisonment Take him Goaler in his Soul by his Excommunication Take him Devil For that is the meaning of that sentance Tradatur Satanae In the discussion of this great Point there will arise four material Questions needful to be handled 1. Whether the High Commission can inflict this punishment or any part of it but for high and enormous offences And I think it cannot 2. Whether the High Commission can Fine and Imprison for all enormous offences or only some and what those are And I think it can Fine and Imprison being meer temporal acts but only for some enormous offences 3. Whether the High Commissioners in their Sentence of Fine and Imprisonment c. are to express the particular enormous offence that the Kings Court may judge of it And I think they are in their Sentence to express the particular offence or else their sentence is void 4. Whether the Construction of the Stat. of 1 Eliz. c. 1 for Fining and Imprisoning for enormous offences belongeth to the Kings Temporal Judges or to the Judges Ecclesiastical And I think the Exposition of that Statute belongs to the Kings temporal Judges There are five more questions concerning the High Commission which I will omit to speak of as being not so pertinent to my point and too long to be handled though otherwise of great use to be known 1. When the first Ecclesiastical Commissioners went forth for at the time of making my Statute they were not used all Ecclesiastical Jurisdiction being then in the Ordinaries Courts 2. What was the nature of the Oath Ex Officio which was used upon some of those Ecclesiastical Commissions and for what reason the Oath was taken away by the Stat. 25 H. 8 cap. 15. 3. What was the forme and manner of proceeding in those Ecclesiastical Commissions A needful question and very useful to be known at this
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