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
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
therefore I do conclude That the Law of Fining and Imprisoning was never given to any Clergy-man by any Spiritual Law of this Realm and used at the time of the Statute of 1 Eliz. was made of which I will speak of anon Reas. 2. The second Reason is taken out of Dr. and Student lib. 2. cap. 29. which is of singular Authority in this Case he being as well an excellent Canonist as a Common Lawyer Where he puts the Case That if the Church should decree that an Heretick should forfeit his Goods that Decree were void because the Goods of men be Temporal and belongs to the Kings Courts And I think saith he that the Ordinary could not have set a Fine upon an Heretick until it was so ordained by the Statute of 2 H. 4. c. 15. Whence I infer That if an Ecclesiastical Court cannot Fine by their Law A fortiori it cannot Imprison Now that the High Commission Court is a meer Ecclesiastical Court it appears by the form of the Prohibitions directed to them by which it is called Curia Christianitatis Commissionariorum Dom. Regis in Causis Ecclesiasticis Cok. Entries f. 465. We must therefore enquire what the Law was of Fining and Imprisoning at the Common Law by the High Commission at the time of the making of the Statute of 1 Eliz For no Law or Statute since that Act hath given them that power And I find but two Cases in all my reading and study in it wherein the High Commission have power to Fine and Imprison 1. The one is by the Statute of 2 H. 4. cap. 15. 2. The other is by the Statute of 1 H. 7. cap. 4. By the Statute of 2 H. 4. every Bishop might Fine and Imprison in his Diocess for Lollardy then counted Heresie and Schism which is now repealed by the Statute of 1 Eliz. cap. 1. and therefore I will speak no more of it The other is the Statute of 1 H. 7. which is still in force by which Clerks only and not Lay-men convicted before their Ordinaries of Adultery Fornication and Incest or other fleshly incontinency shall be by them committed to Prison and that no Bishop shall be chargeable by Action of false Imprisonment for such commitment Wherein this plainly appears That an Action of false Imprisonment had lain at the Common Law for imprisonment by the Ecclesiastical Court though it had been of a Clergy-man only who oweth subjection to his Ordinary Out of these two Cases I know no Law for Fining and Imprisoning by the High Commission And of this opinion were all the Judges of the Common-Pleas delivered under all their hands to King James in answer to the Lord Hubbarts Argument for the High Commission wherein he spake as much for their Jurisdiction as could possibly be spoken by man There are three strong Objections against me which being answered will make my opinion more clear Obj. 1. The Kings Commission by his Letters Patents which reckons up all Ecclesiastical Causes gives power to fine and imprison without restriction Answ. 1. This I deny for I have read the Commission over and over It is 17 Decemb. 9 Car. 1 pars in dorso num 5. in the Rolls it is directed to many temporal Lords To all the Bishops To all the Judges then in being except Judge Crook I have seen the docket under the attor. Gen. Noyes hand with the large additions which never any High Commission had before And yet where it speaks of punishment for crimes it hath such restrictive words as these viz. By lawfull ways and means according to the tenor of the Laws according to the Statutes aforesaid c. Answ. 2. But admitting there were none of these restrictions by the Commission yet the Law of the Land gives this exposition to all the Kings Letters Patents That if they be contrary to the Laws of the Land the Letters Patents are void And therefore the express Book is 8 H. 6. 19. That Letters Patents contra legem justitiam are void And agreeable to this are the Books 11 H. 4. fol. 73. 7 H. 6. 27. 1 H. 7 23. 3 H. 7. 15 20. 1 E. 4. 11. 18 E. 4. 7. 10 H. 7 Cromp. Jur. f. 13 c. Upon this Maxime in Law it directs Potest quod de Jure potest Now Fining and Imprisoning being though so penal to the Subject as by the great Charter of Liberties c. 29 provided to be per legem terrae which is the Common Law and therefore all the Commissions of the King which give power to Fine and Imprison are ever backed with some Maxime of Law or Act of Parliament to warrant them as the Commission of Sewers which gives power to Fine and Imprison is by the Stat. of 23 H. 8 c. 5 The Commission of Banckrupts which gives power to Fine and Imprison is by the Statutes of 13 Eliz. c. 7. 1 Jac. c. 15. 21 Jac. So are the Commissions of Oyre and Terminer and of the Peace too long to remember For if it should be otherwise the liberty of the Subject would soon be destroyed in which the Prerogative of the King chiefly consisteth according to the Kings own Declaration in his answer to the Petition of Right 3 Car. Obj. 2. The High Commssion is an Ecclesiastical Court where the Civilians are only admitted to be Pleaders and in their Law it is a Rule Quicquid placuit Principi Legis vigorem habet And it is true There is such a Rule in their Law upon the misunderstanding whereof Tho. Harrison Clerk who at Common Pleas Bar called Judge Hutton Traytor seems to excuse himself at his Arraignment in the Kings Bench saying The King when he saw cause might by his absolute power dispose of our goods c. and we ought not to defend our selves by Law and so said he was the opinion of the best Orthodox divines in the Kingdome Answ. To which I answer That that Law hath no such sense but the quite contrary and that appears by Bracton an excellent Civilian and Chief Justice of England lib. 2 c. 9 and Stamf. pl. Cor. fol 99 100 Nihil Rex potest cum sit Dei Minister Vicarius quam quod de jure potest Nec obstat id quod dicitur Quod Principi placuit legis vigorem habet Quia sequitur in fine legis Regiae quae de imperio ejus lataest Non quicquid de voluntate Regis est praesumptunt sed quicquid Magnatum suorum concilio habita super hoc deliberatione tractatu rectè fuerit definitum And with Bracton agrees Vlpian a learned Civilian And therefore I will conclude this Objection with King James in a Parliament Speech of his 1609. They that shall perswade Kings not to bound themselves within the limits of their own Laws are Vipers and Pests both against them and the Commonwealth Object 3. The third Objection is That there are many Presidents of Fining and Imprisoning by the High Commission besides
those Cases of Heresie Schism and Incontinency Answ. 1. To which I answer first for 40 years the Law of the High Commission was not known to the Subject by reason the Letters Patents were not inrolled The first Inrollment of them was done in Chancellor Egertons time and by his command Answ. 2. it may be true that Fines were imposed by the High Commission for Adultery Fornication Usury c. But it appears upon search that in all Q. Elizabeths time none of these Fines were levyed upon any Judicial process out of the Exchequer Answ. 3. Many Writs of Habeas Corpus have been granted out of the Kings Courts out of those Cases of Heresie and Incontinency As Mic. 9 10 Eliz. Rot. 1556 Thomas Lee an Atturney of that Court was Imprisoned for hearing Mass a great Crime by the High Commission and delivered by Habeas Corpus by the Lord Dyer and the other Judges then living and present at the making of the Act because they had not authority to imprison For to what purpose was the Statute of 23 Eliz. c. 1 made for Fining and Imprisoning those that heard Mass and for 20. l. a month for absence from Church if the High Commission had power to Fine or Imprison in either of those cases So Mic. 18 19 Eliz. C. B. one Hinde was imprisoned by the High Commission for refusing to answer Articles upon Usury and delivered by Habeas Corpus by my Lord Dyer and the rest because that Court had no Jurisdiction in that Case so to do both which Cases are reported in the first Edition of my Lord Dyer though left out in the second Edition The like president of hearing Mass was Trin. 7 Jac. in Banco Regis in Warringtons Case Mic. 42 Eliz. Simpsons Case imprisoned by the High Commission for Adultery but resolved by the Judges That the High Commission could not imprison a Lay-man for Adultery but only proceed to Ecclesiastical Censure The like for Adultery was Pas. 8 Jac. Meltons Case 12 Jac. B. R. Bradstons Case adjudged that the High Commission could not by the Statute of 1 Eliz. upon orders for Alimony between husband and wife Fine and Imprison men 11 Jac. the like for Alimony in one Brocks Case a Herald at Armes I could vouch many more Presidents but these are sufficient I come therefore shortly to the third and fourth questions Quest 3. Whether the H. Commission ought not in their sentence to have expressed the particular offences and not to say in general enormous offences Ans. I think they ought or else their sentence is void And the reason is because it hath been resolved in that famous Case 3 Car. in the Habeas Corpus by Sr. Edmund Hampden and upon further debate in Parliament upon the Petition of Right that a general Cause is no Cause for an Imprisonment For it is requisite when men are fined deprived imprisoned and cast out of their Free-holds that the Judges of the Realm who have Conusans of such punishments should be certified of the particular cause that they may consult with Divines whether the offences be enormous or no And so is the resolution of the Judges in 5 rep. Specots Case f. 58. The general sentences of the Ecclesiastical Judges have in all ages been found fault with In 25 H. 8 c. 14. The Commons complained in Parliament That men were condemned upon the Stat. of 2 H. 4 c. 15 to be burnt for Heresie in general and not what Heresie and so was the Writ De Heretico comburendo without expression of any particular Heresie which was held to be a cruel and an unjust Law and therefore repealed by the said Act of 25 H. 8. l 5 Jac. Fullers Case of Grayes Inne who was imprisoned by the High Commission for Schism in general without saying what Schism and resolved upon the return in the Habeas Corpus that it was void and therefore they made a special return that he said The proceedings in the High Commission were Papistical The like Mic. 3. Jac. B. R. Berryes Case upon a Habeas Corpus the return was that he was committed by the H. Commission for certain causes Ecclesiastical This was adjudged to be naught and too general and then they make a second return That he was Committed for giving sawcy speeches to Dr. Newman which was likewise adjudged void as too general But our very question with which I will conclude was Mr. George Huntleys Case a Kentish Minister who was Fined Imprisoned and Deprived by the H. Commission for refusing to Preach a Visitation Sermon upon the command of the Archdeacon and the sentence was for grievous and enormous offences And upon an Ejectione firme brought by the said Huntley against Austin in the Kings Bench for his Parsonage All the Judges there upon a solemn debate and in my hearing adjudged the sentence to be void for the generality and incertainty Quest 4. Whether the Judges of the Realm or the Ecclesiastical Judges have the power and authority of Expounding enormous offences within the Stat. of 1 Eliz. c. 1. Ans. And I think it clearly belongs to the Temporal Judges as clearly as the Exposition of Texts of Scripture belong to Clergy-men as the now Attorney General told Harrison at his Inditement 13 Car. in the Kings Bench for calling Judge Hutton Traytor It is very true the Civilians grant this power to the Kings Judges for Expounding Statutes concerning Temporal things but deny it concerning Spiritual things This thing Dr. Ridley in his View of Civil and Ecclesiastical Law a book much cryed up amongst them takes upon him to prove but fails in it For the truth is only the Judges of the Common Law have this power And to prove it is to prove a Principle For from the beginning of Magna Charta to the end all the Statutes and Laws concerning the Clergy are expounded by the Judges Nay in 10 H. 7. f. 17. in the matter of Heresie the highest Ecclesiastical Cause the Judges do adjudge That the saying a man may pay his Tythes to other than his own Vicar contrary to the Decree of the Church by the Council of Lateran was not Heresie And therefore the imprisonment of the party for saying so was against Law So the Judges 2 R. 3. decided a point of the Civil Law by the Common Law And in the Parliament of 3 Car. in the Petition of Right concerning Ecclesiastical Liberty as well as Temporal it is acknowledged by the King That the Exposition of the Laws and Statutes of the Realm belongeth to the Kings Judges and to none else FINIS Nihil veritas crubescit nisi solummodò abscondi Julian Vid. Stat. of Carliel 25 E. 1 and Cawdryes Case 5. Rep. William Sanderson Esq. Part of the Speech Sir W. Raleigh Narrative Part of the Readers Speech in the Parliament Chamber in the Middle Temple May 15 following * Judge Nicoili Chief Birron Sanders Judge Morgan Judge Harvey An. Dom. 1296 Anno Dom. 1273. Stat de Marton cap. 9. 24 Ed. 1. Lamb Pâ—â—amb of Kent fol. 276. Chartim Stefhen Langhton Tem. Johan R. Const'tut Othobon Dr. Cosens Launcellot Vide Stat. 24 H. 8. c. 12. B. R. About 7 Car. Sir Jo. Banks
A JUST VINDICATION Of the Questioned Part of the READING OF EDWARD BAGSHAW Esq An Apprentice of the Common Law Had in the Middle Temple Hall the 24th day of February being Munday Anno Dom. 1639. upon the Statute of 25 E. 3. called Statutum pro Clero from all Scandalous Aspersions whatsoever With a True NARRATIVE of the Cause of Silencing the Reader by the then Archbishop of Canterbury With the ARGUMENTS at large of those POINTS in his Reading for which he was Questioned at the COUNCIL-BOARD LONDON Printed in the Year 1660. And are to be sold in Westminster-Hall and Fleet street A JUST VINDICATION Of the Questioned Part of the READING OF EDWARD BAGSHAW Esq An Apprentice of the Common Law Had in the Middle Temple Hall the 24th day of February being Munday Anno Dom. 1639 upon the Statute of 25 E. 3. called Statutum pro Clero from all Scandalous Aspersions whatsoever IT was a Wise and witty Saying of Tertullian That Truth never blusheth but when her face is hid And therefore the Egyptian Judges wore the Picture of Truth about their necks in a chain like as the Jews did their Philacteries as things which they greatly gloried in not only openly to weare but publickly defend when there should be cause The pulling off this mask from the face of Truth and the vindication of it from obloquy and reproach and of my owne name and reputation from scandal and detraction and to the intent no stayns of that nature might cleave to my Winding-sheet when I am dead are become the only Motives why I now yield after so long tract of time since my Reading to those strong importunities which I formerly neglected by publishing to the common view my Arguments upon foure Points of my Reading for the last of which only I was suspended and silenced by the means of the then Archbishop of Canterbury of whom being dead and suffering as he did I shall speak no ill and shall not so much blame him as that Accusator fratrum who to curry favour misreported my Reading to him and made me to speak things which I never thought and him to do things that were never done before as to silence a Reader of Law before he had committed an offence or was heard to speak for himself Si accusasse sat est quis erit innocens was a most just saying though of an unjust Emperor This sudden and uncouth act of his made a loud noise throughout the Cities of London and Westminster A great Peer of the Realm merrily told him at their next meeting That he had often heard of a Silenc't Preacher but never of a Silenc't Reader before And the vulgar people at that time Espousing a Scottish quarrel increased in their clamour and hatred against him This trouble he brought upon himself in medling with things wherein he had no skill and with persons over whom he had no Jurisdiction for Reading of Law in the Inns of Court and Chancery in both which I have been Reader are as they speak in Schools rather Problematae then Dogmata Mootes and Questions of Law though of the Prerogative it self the highest of things for the Ventilation of Truth and extricating the obscurities of Law for the benefit of the Students in those Societies then Resolutions and Judgments of Law in Westminster Hall And Readers if they do amiss are answerable to the Governours of that Society at their next Parliament where the Reader and his Assistants being alwayes Benchers do give an account of that Reading as I did as shall be declared hereafter and had thanks from them all And such acceptation my Reading found with the Gentlemen of that Society which I shall with thankfulness ever acknowledg that scarce any Reader before was ever attended out of Town with such a number of Gentlemen of the same House And as the Archbishop brought this trouble upon himself so did he thereby no small injury unto me for by his Complaint to the King and Councel That I read against Bishops occasioned by my Misreporter for I shall still lay the load on him it was by that means strongly infused into the heads of the people that I read against Bishops whom they then perfectly hated whereupon the year following without asking or seeking or stepping one foot out of my Chamber in the Middle-Temple to that intent I was by the unanimous vote of the people chosen Burgess of Southwark in the first place Presently after my choosing a Petition was brought to me by some of the chief of that Borough containing in it the total extirpation of Episcopacy Root and Branch as likewise of the Book of Common Prayer and that I would commend it to the Commons House I being their Senior Burgess and having the first choice By this Petition I understood them but they understood not me and therefore I dealt clearly with them That if the present Episcopacy which had so much exceeded the bounds of Law in the exercise of their Jurisdiction to the grievance of the people was reformed and regulated according to the Law of the Land it would be better accepted then in their utter abolition and this way I thought the Parliament would go and so convinced them with Reasons for the same that they seemed to me fully satisfied and the Petition stopped But they consulting afterward with Mr. John White my fellow Burgess he approved of the Petition and hereupon it was delivered into the hands of Alderman Pennington one of the Knights for London who brought the Petition into the House with sixteen thousand Hands which being read and debated in the House Mr. John Pym a Gentleman with whom I had familiar acquaintance and knew his mind in that point spake to this purpose That he thought it was not the intention of the House to abolish either Episcopacy or the Book of Common Prayer but to reform both wherein offence was given to the people And if that could be effected and assented to by them with the concurrence of the King and Lords they should do a very acceptable work to the people and such as had not been since the Reformation which was then about eighty years Divers Members of the Commons House agreed with him in a Reformation instancing in those famous and most Pious Bishops and Ministers of the Praelatical party in the dayes of Queen Mary which purchased to us that Reformed Religion we now enjoy with no less price then their own hearts blood As for example Cranmer Ridley Latimer Hooper and Ferrar were all of them Bishops John Philpott was Archdeacon of Winchester John Rogers and John Bradford were Prebends of Pauls and Laurence Sanders Prebend of Lichfield with divers more these were all of them very godly men and eminent Preachers and most gracious with the people For my own part being then at that debate a Member of the House I openly declared my opinion concerning Bishops for establishing them in their Function and Jurisdiction
agreeable to Law according to what I had done and held in my Reading without wavering or warping at all And told the House That by the Ancient Laws of the Land the Crown of England was founded in the state of Prelacy and ever since there was a Christian King of England there was a Bishop That it was so Incorporated into Monarchy that the ruine of one would hazard the ruine of the other That it was so interwoven with the Common Law in so many Original Writs that the destruction of it would take away one of the chiefest Peers of the Common Law for learning and Pleading in Ecclesiastical matters That as the Common Law was favourable to Clergy-men and gave them more priviledges then any Humane Law they could name so it was strict in correcting and punishing them of what rank soever if they transgressed that Law And had Judges done their duties according to their Oaths and Places by granting Prohibitions to the High Commission in causes wherein they had no power to hold Plea and Writs of Habeas Corpus to such persons whom they had fined and imprisoned without cause Bishops and Presbyters might for ought I know have been long since happily agreed who clashing together like two Flints and thereby striking fire some sparks of that fire falling against both their wils upon the black Tinder of Independency inflamed such a violent and furious party of unreasonable men quite of another shape as that by the just judgment of God for these their unnatural contentions joyned with the sins of the Nation they became instrumental quite to ruine the one and almost destroy the other And I was then and am still of opinion That the Crown of England being a Monarchy bound up by such apt Laws for the benefit and peace of Prince and People and so apted for the Order and Jurisdiction of Bishops that I hold it the fittest for this Nation of any in the Christian world And I think I am able within my Sphere and Profession to maintain it against any Adversary Et cedo mihi quemvis Arbitrum And here I have just occasion to profess to all the world as in truth I do That I was so far from the very thoughts of destroying Bishops that observing at the time of my Reading and divers years before the great invasions that were made by them upon the common Law of England and the Courts of Westminster Hall and the scorn and contempt at that time cast abroad upon Professors and the very Profession of the Law I knew no other way how to hold them up in their Functions and just jurisdictions and in esteem and Honour amongst the people which once they had as by Reading upon that Law which gave them their just bounds and limits which if once they should break down I ever feared their ruine and destruction That like Deare breaking the Pale they exposed themselves to the fury of the people to be by them hunted chased and at last destroyed and the whole Clergy of England from whom they received their Orders eminently endangered And in this opinion of my fear I had the concurrence of a most Honourable person whom I much honoured Living and lamented Dead Edward Lord Mountague of Boughton scarce then to be parallelled for Piety Wisdom and Gravity in the whole Nation And how sad experience hath brought to pass what I then feared I shall say no more but silence my self in the words of that Kingly Prophet Obmutui quia tu Domine fecisti And thus have I cleared my self from the aspersions and scandals of two opposite parties whom it was impossible for me to please The one accusing me of Faction that I set bounds and limits to Episcopacy the other of Apostacy that contrary to Law I would not take it quite away And my sticking close to this opinion abhorrency of taking the Scotch Covenant tending to the utter abolition of Episcopacy was the alone ground of that load of afflictions which lay long upon my Body and Estate which had quite overwhelmed me had not God been a most gracious Father then unto me by supporting and comforting me with his Staff under that Rod of his corrections giving me patience to suffer rather then to sin and to resolve in the words of Zuinglius Mallem mille mortes obire quam contra conscientiam attestari And in this my just Vindication I acknowledge my self much beholden to that Learned and Ingenious Gentleman who lately hath Printed the Life and Death of the late King Charles wherein he hath acquitted me from such Misreports and Scandals cast upon me for my Reading And hath truly for substance related those points of Law for which I was questioned in my Reading only he hath failed in some circumstances in that relation and in the causes of my Silencing by the Archbishop which I shall now rectifie that best can do it that in case that Gentleman shall have occasion hereafter to revise his History by a second Edition he may Correct the same according to that Narrative I shall now declare wherein I shall pursue his own Method from the beginning to the end touching that Relation and so conclude It is very true as he there saith That my Reading in the Middle Temple Hall was the 24 day of February Anno Dom. 1639. in that very year the troubles were in Scotland and the Scots were preparing an Army for England masking their misdeeds against their native Prince under specious pretences of Religion which mockery of Almighty God he hath since avenged on them with a witness which they both find and feel at this day But yet my Reading was Compiled two years before and so compleated as that I could not alter it finding no cause so to do in that my Reading had no manner of reference to the pretended matters of that impious Quarrel He proceedeth and saith thus Mr. Bagshawe intended to meddle with Prohibitions but not with Tacitus to follow Truth too near the Heeles for feare of his Teeth nor too far off least he loose it and so neither to offend nor to be offended This I confess was in substance much to the sense of what I spake though not in those words and therefore I will repeat that part of my Speech which I made to the Benchers Barresters and Gentlemen of the Middle Temple at the beginning of my Reading in these very words In the choice of my Statute I was much perplexed I first pitched upon the Stat. of Articuli Cleri 9 E. 2 the five first Chapters concerning Prohibitions an excellent but an angry Law especially to such men who love not to be restrained in their Jurisdiction and therefore I left it and fell upon a more pleasing Law the Statute of 13 E. 1 called Circumspectè agatis of Consultations which gave the Clergy such Jurisdiction that no Prohibition could take from them Herein I rested long I divided that Statute gathered many Cases upon it
of the High Commission my fourth division which I shall after likewise mention and set down the Argument of it at large which puts me upon that Narrative of my silencing which I shall as briefly as I can perform and then conclude I Read three Lectures three several dayes being the 25. the 27. and the 29. of March without any interruption and with the approbation of the Students to whom I Read But on Saturday following being the 30 of March the Lord Keeper Finch sent to speak with me and in a very friendly manner told me what reports there were abroad touching the two former points above mentioned which I then related to him what they were and how consonant to Law for the manifestation whereof I told him I would give him the Arguments of both those points and attest them under my hand And presently went to my Chamber and brought him my Arguments to which I set my hand which after he had read he spake to me to this effect Mr. Reader I see you have been misreported and have had wrong and seeing you have dealt so freely and fairly with me I will do you right to the King and Council To whom that day he shewed the Notes I gave him which were examined by them and approved And that afternoon towards night the Lord Keeper sent for me again and told me That my Opinion concerning those two points were approved of by the King and Councel only his Majesty desired That I would declare my Opinion in one Question which was this Quest What if the King and Spiritual Lords with the Commons did pass an Act all the Temporal Lords disassenting or not being there whether this be a good Act of Parliament Answ. I told him That it was and the Votes of the Temporal Lords were included in the Votes of the Spiritual Why then Mr. Reader said he you have given full satisfaction And I am commanded to tell you That you may go on in your Reading Whereupon I went home and prepared to read on Monday following upon the fifth Case of my fourth Division But this Case was likewise carried to the Archbishop in which there was this Point wherein I held That a Beneficed Clark Imprisoned Deprived and Excommunicated by the High Commission for enormous offences not naming the particular offence that this Clark notwithstanding was such a possessor of a Church as might Plead Counter-plead and Defend his Right within my Law This kind of learning being not within the Conusance of the Archbishop was so heightned to him by my misreporter that the same afternoon the King sitting in Council my Case was brought by the Archbishop to the Council Board and that point found in it and much complained of The Earl of Manchester being there and formerly a Reader of the Middle Temple and knows that it was the manner of Readers to lay the points of their Case so close that what seemed strange to the hearers when the Readers came to argue he made those things so clear that usually the Reader came off well and then told the King That he thought I grounded my point upon a Case in Law in the 5 Report fol. 57 where one Spewit brought a Q. Imp. against the Bishop of Exceter for refusing his Clerk to which the Bishop pleaded that he was Schismaticus inveteratus not naming the particular Schism this was held by the Judges no good Plea And thereupon Judgment was given against the Bishop for the Plaintiff who thereupon had his Clerk admitted And because Readers were accountable to their Governours the Masters of the Bench and if they did amiss would severely punish them he advised that no such thing might be done to a Reader as to silence him from Reading and thereby make a great noise and disturbance but to let him go on and if he did amiss then to think of punishing him afterward and to this the King and Council assented But the Archbishop fearing I would fall foul upon the High Commission which I never intended but in as fair and good terms as I could deliver the Law as will appear by my Argument of that point which I have likewise hereunto annexed as I have done the rest made it his most earnest suit to the King That I might be suspended from Reading who at the rising of the Board willed my Lord Keeper to tell me from him That I should desist which the Lord Keeper did the same day But withal advising me as from himself to go to the Archbishop and give him satisfaction After this Speech with the Lord Keeper I returned home and acquainted my Masters of the Bench with the Kings pleasure who the next morning went to the Lord Keeper who confirming the same I was by them advised to desist from Reading And whereas the Historian saith That after the Reader had been twice at Lambeth without admittance the third time he spake with the Archbishop Herein it a great mistake and not without some wrong both to the Archbishop and me which I shall thus make appear Readers of Law during the time of their Reading do hold up the ancient honour and dignity of a Reader on whom for that time is devolved the Government of the House They have four Cubbard men ancient Barresters of the House to attend them in their Reading and four Stewards to attend them in their Feasting for the Inviting their Guests of Noble Ranck and ten or twelve men of his own to attend his person In the maintenance of which dignity on Tuesday the fourth of March the natural course of my Reading not ending till Friday following I sent two of my men to the Archbishop to know his pleasure when I should wait on him he sent me word by Mr. Dell his Secretary on Thursday the 6 of March that he did appoint eight a Clock in the morning according to which hour I took with me Mr. Rog. Pepys late Chief Justice in Ireland the next Summer Reader and other my Cubbard men with my Servants and went with them in a Barge to Lambeth And so far was the Archbishop from making me dance attendance that as soon as the Archbishop had notice I was come he presently came out of his Chamber with his Hat off and met me in the great Chamber there and walked with me in that posture from thence almost to Lambeth Stairs The first Question he asked me was this Quest Mr. Reader Had you nothing else to do but to Read against the Clergy Answ. I answered My Lord my Statute was pro Clero and I read not at all against them but for them Well saith the Archbishop you shall answer it in the High Commission Court My answer was this That I knew the utmost power and Jurisdiction of that Court by Law and that I had neither spake or done any thing that that Court had Jurisdiction to punish Quest But had you no other time saith he to do it but in such a time Answ. My
Reading was made long before the troubles in Scotland and was not made for them but for England and I was confident there was nothing in it that could have offended him if his Lordship had been rightly informed After this Speech he was very silent and walked with me without speaking a word until he came near Lambeth Stairs and then I spake thus to him My Lord if you have any thing else to say to me I am ready to give you satisfaction for I was sent to you by some of my Honourable friends for that purpose His Answer to me was this Farewel Mr. Reader and much good do it you with your Honourable friends And so we parted and never spake together afterward He taking water in his Barge to Whitehall and I in mine to the Middle Temple I was sorry for the many troubles that fell upon him afterwards though they were in no sort occasioned by me for such was the malice and hatred then and after of the Scots against him and such influence it had upon the people that they never left prosecuting of him till he had quenched their fury with his Blood on Tower Hill On the 15 of May following according to the manner of Readers before they are made Benchers in the Parliament Chamber in the Middle Temple when the Benchers of the House were there all assembled and the Barresters called in it being a Parliament of Attendance I then according to the manner of Readers after my Assistant had made a Report of my Statute of my Divisions upon it and of my Cases upon those Divisions and what acceptation it had in the House I gave to their Masterships this account of my Reading in manner following I chose for my Statute 25 E. 3 called Statutum pro Clero waving two former Statutes wherein I had much laboured Articuli Cleri made 9 E. 2 and Circumspectè Agatis made 13 E. 1 because I found the Statute of E. 3 late Law and one of the best that ever was made for the Clergy I gave divers reason of my choice the main was this The Honour I bare to my Profession of the Common Law by advancing it above the Civil and Canon Laws and all other Ecclesiastical Laws exercised within this Kingdome from which they all have their being and Foundation as the Lord Prisot truly notes 34 H. 6 fol. 40. To this performance I was invited by a Law of Gratitude which I owed to my Education being bred at the Feet of a * Gamaliel in the Law that Married my Mother and to my Alliance to three Judges more all of them Readers of the Middle Temple and all Northamptonshire men where from my Childhood I have lived Besides in the choice of this Statute I thought I should deserve thanks from the Clergy by the discovery to them of the many favours and priviledges they received chiefly and principally by the Common Law to which Law above all men in the Kingdome they are most beholden For I do not only speak it here but I dare write it under my hand That four of the nearest and dearest things Clergy men have at this day viz. The blessing and happiness of true Religion The enjoyment of their Lives and Liberties The Society of their Wives and the benefit of their Church-livings in Glebe and Tythes to speak in a Lawyers phrase though as the times are I be jeered for it they have hold and enjoy them all by from and under the Common Law Sed quanta de spe decidi I little thought that by Explicating and unfolding the Priviledges and Liberties of the Clergy I should tye a knot upon my own which afterwards fell out for upon the discovery of one of my Cases touching the High Commission in the Points of Fine and Imprisonment proper for a Lawyer to handle the Statute of 1 Eliz. and the Kings Commission upon it being both within the Verge of the Common Law it so came to pass that a Hercules Pillar was set upon my Reading and a ne plus ultra Engraven on them Whereupon I desisted remembring that of Solomon In the word of a King there is power and who may say unto him What dost thou But yet that Hawley or Fonel that revealed my Case to my prejudice and caused the first abortion to a Reader that ever was Sit nigri Carboni notandus and let that be hispunishment There ended my Reading of which I may say as Lipsius said of one of his Works That it was Omne meum nihil meum It was omne meum in respect of the frame and composition having no help from any Reader upon that Law and it was Nihil meum in that I founded it upon Reasons and Authorities of Law which saved me from ruine and gave me a publick clearing for uttering any thing that was not according to Law But though I have done with my Reading I have not done with my Speaking for I was not silenced from that I have something to speak by way of thankfulness to this Honourable Society and so conclude And in this respect I am not ashamed to tell you of my debts that I owe is much to this Society as in the relation of a Reader I am really worth For consider a Reader in both his capacities in his Reading and in his Feasting they were virtually and in a manner both from you My Reading was but a repeating a Lesson of Law which I have been learning in this House this 30 years and my Feasting in respect of the many Gifts I received from your Masterships my Companions of the Cubbard the Ancients of the Bar and others of this Society was but a kind of orderly and solemn distribution of all your Bounties And in dividing my Obligations per seperalia Capita to your Masterships to my Cubbardmen to the Gentlemen of the Bar and under my debts are rather increased then made less To your Masterships for your free Choice and calling me to this place For had you not called I had never come and had you not encouraged after you had called I should have fallen back To my Assistant and Companions of the Cubbard for their learned Arguments of my Cases and defence of them afterwards from injury and misconstruction To all the Gentlemen for their virtuous deportment in the Church of God in the Hall in the whole House which was so orderly and generous that I thought them so many Ancients Juvenes aetate sed senes moribus And therefore when a complaint came to me against any Gent. I knew not how to admit of any fault by my Eare that could not see any by mine Eye And that Honour they did me in their Ultimum Vale beyond my desert and as they well know beyond my expectation I shall never forget I will close up all in this one Period I have rendred my thanks to you all Voce my Conscience tells me I owe it much more Corde and my
6 R. 2 Rot. Parl. nu 5 that they had not to do with matters of the Peace The first Clergy-men that I find to be Justices of Peace by any Statutē are the Bishops of Ely and Durham for the I le of Ely and Durham and the Archbishop of Yorke for the Liberty of Hexam 27 H. 8 cap. 25. But then there is a provision by that Statute to make their Temporal Chancellers to be Justices for the excusing them as I conceive from their personal attendance at the Sessions Object But it will be objected They are made Justices of Peace by the Kings Commission and may be punished if they should refuse Answ. It is rara avis to heare of a Minister punished for refusing to be a Justice of Peace For by Law he may refuse By his Orders he may refuse as I conceive and by virtue of his Consecration For in the book of Ordination of Priests and Deacons confirmed by the Parliaments of 1 Ed. 6 and 1 Eliz. he is there charged by the Bishop To give himself wholly to his Spiritual Vocation and wholly to apply himself to that one thing and to draw all his cares and Studies that way and to that end And this not all but the Bishop doth require a promise of the Ordained Priest to that purpose for the Bishop asketh him If he will be diligent in Prayers and Reading Holy Scriptures c. laying aside the study of the World and the Flesh And the minister answers That he will endeavour himself so to do All which said together will amount to a good excuse of a Clergy-man from secular imployment As in truth it did of late to the Lord Keeper Coventry in the Case of one Mr. Samuel Johnson Clerk Son and heir of that Johnson that was the extraordinary kind Husband from whence was the Proverb of Drinking to Mr. Johnson This man was lately made High Sheriff of Rutland shire and pleading his Orders of a Clergy-man to the Lord Keeper he was forthwith discharged and another Sheriff chose in his place There is a Writ in the Register and in Fitz. Nat. brev. 175 b. named Breve quod Clerici non eligantur in officio Ballivi pro terris suis which lyeth in a stronger Case then this is As if a man holdeth divers Lands of a Lord of a Manor to be a Bailiff Bedel or Receiver if this man be once made a Clerk and afterward chosen unto such an office the Lord may Distrain in case the child should refuse yet this Writ will compel the Lord to let him alone and to dismiss him And the reason is given in the Writ it self Because the Law supposeth him to be so continually imployed in works of Piety and Hospitality that he is not at leisure to attend no secular affairs The same reason may be given for a Clerk made a Justice of Peace Object But it will be objected That my Statute is for the Clergy but I seem in this opinion to be against it Answ. I answer That in this I am for the honour and honesty of the Clergy For in those Provincial Constitutions which I mentioned before the Clergy are there enjoyned to abstain ab omnibus eis quae honestatem corum deformant And Linwood a principal Author of the Canon Law gives this instance of that deformity Deformatur haec honestas cum Clericus se immiscet in negotiis secularibus Linw. lib. 3. De vita Honestate Cler. fol. 87. So that by their Law it is a dishonest thing for Clergy-men to meddle in secular affairs The Readers Argument upon the Third Point being the Fourth Point of his Third Case upon the Third Division of his Statute WHether an Heretick may at this day be Convicted and Condemned for Heresie by his own Ordinary alone And I think he cannot It is a great Question and mainly concerns the life and liberty of the Subject and deserves a much larger debate then I can now afford it I being opposed herein by a learned Civilian sometimes Dean of the Arches in the first part of his Apology for Ecclesiastical proceedings fol. 81. who denies Fitz Herberts opinion Nat. brev. 269 D. to be Law who saith That a man cannot be convicted for Heresie but by the Archbishop and the whole Clergy of the Province in their general Council of Convocation But this Civilian with divers more of his mind doth hold That an Heretick both before the statute of 2 H. 4 c. 15 and now at this day may be both convicted and condemned to be burnt by his own proper Ordinary For the clearing this three Questions do naturally arise 1. What shall be said such an Heresie for which a man shall be condemned to the fire 2. Who shall be the Judge that shall Convict for Heresie 3. By what Law is it Common or Canon that an Heretick after conviction shall be burnt Quest 1. For the first it appears by the Canon Law Linw. cap. de Hereticis fol. 213. that there are no less then 88. sorts of Heresies which is the cause that the Canonists cannot agree about the definition of an Heretick I will name but two of their best definitions 1. The first is in the fourth book of the Institutes of the Canon Law cap. de Hereticis fol. 248. Hereticus est qui vanae gloriae principatus sui causa falsas opiniones gignit vel sequitur If this were Law how many Scholers would at this day be burnt for Hereticks 2. I come therefore to a second Definition given at home in our Provincial Constitutions cap. de Hereticis fol. 211. where Linwood having toil'd himself with about twenty Descriptions of an Heretick falls upon this as the best Omnin saith he censetur Hereticus qui non tenet id quod docet sequitur sancta Rom. Ecclesia Hence it was that by their Law a man was questioned for an Heretick for very small things viz. For eating flesh in Lent for standing out an Excommunication though it was perhaps for some extorted Fees of the Court Nay you shall find 1 H. 7. fol. 17. That a man was questioned for Heresie upon the Statute of 2 H. 4. c. 15. because he held an opinion That one might pay his Tythes where he pleased and not to his own Vicar when as by the Counsel of Lateran Tythes were only to be paid to Parsons and Vicars of the proper Parish and so he as an Heretick offended contra sanctiones Ecclesiae And I dare be bold to say That in that bloudy Roll of Martyrs which began from the first year of H. 4. to the là st year of Q. Mary there was not a man burnt for holding any thing contra Canonem Scripturae not an old Arrian which is the Socinian at this day nor an old Pelagian which is now the Arminian But for holding Opinions contra sanctiones Canonicas as saith the Writ De Haeretico comburendo founded upon that Statute of 2 H. 4. which was the