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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A67871	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.	Bagshaw, Edward, d. 1662.	1660 (1660)	Wing B396; ESTC R208288	31,311	44

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

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

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