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<DATE>10-14-14</DATE>
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<NAME>John Latta</NAME>
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<FRONT>
<DIV1 TYPE="frontispiece">
<PB REF="1">
<P><FIGURE>
<FIGDESC>portrait of William Laud</FIGDESC>
<P>William Laud. Arch-B: of Canterbury Prymat of England.</P>
</FIGURE></P>
</DIV1>
<DIV1 TYPE="title page">
<PB REF="1" MS="y">
<P>THE ARGUMENT OF <HI>NICHOLAS F&V;LLER</HI> OF <HI>Grayes Inne</HI> E&s;quire, in the Ca&s;e of <HI>Tho. Lad,</HI> and <HI>Rich. Man&s;ell</HI> his Clients.</P>
<P>Wherein it is plainly proved, that the Eccle&s;ia&s;ticall Commi&s;&s;ioners have no power by their Commi&s;&s;ion, to impri&s;on, or to fine any of his Maje&s;ties &s;ubjects, or to put them to the Oath <HI>EX OFFICIO.</HI></P>
<P>LONDON, Printed for <HI>N. Vava&s;our.</HI> 1641.</P>
</DIV1>
<DIV1 TYPE="letter">
<PB REF="2">
<PB REF="2">
<HEAD>To my wor&s;hipfull friend, <HI>W.W.</HI></HEAD>
<P>WOr&s;hipfull Sir, I &s;end you here-inclo&s;ed the thing which you &s;ent for &s;o long &s;ince. What the drift of it is I under&s;tand in part, as having read it over. How well it is performed, I am not able to judge, becau&s;e it is out of my <HI>Element.</HI> The <HI>Gentleman</HI> arguing the Ca&s;e is knowne to many, but diver&s;ty both thought and reported of, upon occa&s;ion of his pre&s;ent troubles. His per&s;on and cau&s;e I leave to them, to whom it belongeth ju&s;tly to determine of &s;uch great mat|ters. But touching the point it &s;elfe, I hope that as you (out of the depth of your judgement and great experience) are able to &s;peake much, both for the matter and manner of it, &s;o you will not bee unwilling to declare your minde, as occa&s;ion &s;hall bee offered, either in the like or di&s;like of it. And &s;o having no more at this time to trouble your Wor&s;hip withall, but patiently waiting for your opinion herein (if you &s;o thinke it good) and wi&s;hing alwayes all manner of good unto you, I humbly take my leare.</P>
</DIV1>
<DIV1 TYPE="to the reader">
<HEAD>Gentle Reader, becau&s;e the <HI>French</HI> (quoted in this <HI>Ar|gument</HI>) is &s;omewhat mi&s;-printed, and the <HI>Latine</HI> (though it be not much) may yet notwith&s;tanding &s;tumble the &s;imple and &s;uch as be unlearned: I have thought it not ami&s;&s;e to Engli&s;h both the one and the other; refer|ring thee every where to the page, and line, where either of them is.</HEAD>
<P><HI>Pag. 5. line 9.</HI> Becau&s;e the Kings power ought not to bee Wanting to holy Church.</P>
<P><HI>Ibid. line. 19.</HI> but by the lawfull judgement of his Peeres, or the law of the land.</P>
<P><HI>Pag. 7. line 7.</HI> as before, pag. <HI>5.</HI> line <HI>9.</HI></P>
<P><HI>ibidem line 27. &amp;c.</HI> Supplication is made to the mo&s;t excellent and gra|cious Prince, our Lord the King, on the behalfe of your humble Orators, the Prelates and Clergie of your kingdome of England, that whereas the Catho|like faith founded upon Chri&s;t, and by his Apo&s;tles, and Church, &amp;c.</P>
<P>Which petitions of the Prelates and Clergie before expre&s;&s;ed, our Lord the King, with the con&s;ent of his Nobles and other Peeres of his Realme a&s;&s;em|bled in pre&s;ent Parliament, hath granted: and in every of them according to the forme, &amp;c.</P>
<PB REF="3">
<P> <HI>Pag. 8. line 8.</HI> Al&s;o the Commons pray, that &s;ith it is contained in the great Charter, that none &s;hould be arre&s;ted, or impri&s;oned, without an&s;wer, or due proce&s;&s;e of law, which Charter is confirmed in every Parliament, &amp;c. And be&s;ides they intreat, that if any bee arre&s;ted or impri&s;oned contrary to the forme of the Charter afore&s;aid, that hee may come and appeare to his an&s;wer, and take his judgement, even as the law requireth: al&s;o that no &s;uch Arre&s;t or Impri&s;onment may be drawne into cu&s;tome, to the de&s;truction of the law of the King.</P>
<P><HI>Ibid. line 16.</HI> Let the Statutes, and the common law be kept.</P>
<P><HI>Ibid. line 20 &amp;c.</HI> Al&s;o the Commons be&s;eech, that where as a &s;tatute was made in the la&s;t Parliament, in the&s;e words. It is ordained in this Parliament, that the Kings Commi&s;&s;ions be directed to the Sheriffes, and other officers of the King, or to other &s;ufficient per&s;ons, after and according as the certificates of the Prelates were wont to be in the Chancery, from time to time, and that &s;uch preachers, their favourers, abetiours, &amp;c.</P>
<P>Which was never a&s;&s;ented unto, nor granted by the commons, but that which was done therein was done without their a&s;&s;ent, and &s;o the Statute is of no force. For it was never their meaning to ju&s;tifie it, nor to binde them|&s;elves, nor their &s;ucce&s;&s;ors, to the Prelates any more then their Aunce&s;tors had done in times pa&s;t.</P>
<P>It plea&s;eth the King.</P>
<P><HI>Pag. 10. line 31.</HI> Becau&s;e no man is bound to betray him&s;elfe.</P>
<P><HI>Pag. 11. line 9</HI> An Oath in a mans owne cau&s;e is the devi&s;e of the Di|vell, to throw the &s;oules of poore men into Hell.</P>
<P><HI>Pag. 12. line 19.</HI> Nature is a pre&s;erver of it &s;elfe.</P>
<P><HI>Ibid. line 27.</HI> Without a certaine Author of the Bill exhibited no accu&s;a|tions ought to have place, for it is both a thing of very evill example, and not the manner of the&s;e times.</P>
<P><HI>Pag. 14. line 26. &amp;c.</HI> The King can doe nothing upon earth (&s;eeing hee is the &s;ervant and lieutenant of God) but that which he may lawfully doe: be|cau&s;e that power belongeth onely to God, but the power of doing wrong belon|geth to the Divell, and not to God, and the workes of which &s;oever of the&s;e the King &s;hall doe, his &s;ervant be is.</P>
<P><HI>Pag 15. line 12.</HI> Condemned for what cau&s;e &s;oever.</P>
<P><HI>Pag. 18. line 2.</HI> We will not have the lawes of England to be changed.</P>
</DIV1>
<DIV1 TYPE="errata">
<HEAD>Errata.</HEAD>
<P>Pag, 12. line 22. for <HI>nulli crimini</HI> reade <HI>nulla crimina.</HI> pag. 17. line 7. for <HI>exigent</HI> reade <HI>Exigenter.</HI> pa. 29. line 21. for <HI>peru&s;ed</HI> reade <HI>per&s;ued.</HI></P>
</DIV1>
</FRONT>
<BODY>
<DIV1 TYPE="proceedings">
<PB N="1" REF="3">
<HEAD><HI>THE ARGVMENT OF MASTER</HI> NI|CHOLAS FVLLER, IN THE CASE OF Thomas Lad, <HI>and</HI> Richard Maun&s;ell, <HI>his clients. Wher|in it is plainely proved, that the Eccle&s;ia&s;ticall</HI> Commi&s;sioners have no power, by vertue of their Commi&s;sion, to Impri&s;on, to put to the oath <HI>Ex Officio,</HI> or to fine any of his Ma|je&s;ties Subjects.</HEAD>
<HEAD>THE CASE.</HEAD>
<P><HI>THomas Lad,</HI> a marchant of <HI>Yarmouth,</HI> in <HI>Norfolke,</HI> was brought before the <HI>Chauncellor</HI> of <HI>Norwich,</HI> for a &s;uppo&s;ed <HI>Conventicle;</HI> becau&s;e that hee, on the Sabbath dayes after the Sermons ended, &s;ojourning in the hou&s;e of <HI>M. Iackler</HI> in <HI>Yarmouth,</HI> who was late Preacher of <HI>Yarmouth,</HI> joyned with him in repeating of the &s;ub&s;tance and heads of the &s;ermons that day made in the Church, at which <HI>Thomas Lad</HI> was u&s;ually pre&s;ent: and was forced upon his oath to an&s;wer certaine articles touching that meeting, which he could not &s;ee untill hee was &s;worne; and having an&s;vvered upon his oath tvvice before the <HI>Chauncelor</HI> there, he vvas brought to <HI>Lambeth</HI> before the <HI>Eccle&s;ia&s;ticall Commi&s;sioners,</HI> to make a further an&s;vver, upon a nevv oath, touching the &s;uppo&s;ed <HI>Con|venticle:</HI> vvhich he refu&s;ed to doe, vvithout &s;ight of his former an&s;vvers (becau&s;e he vvas charged vvith perjury) and therefore vvas impri&s;oned by the <HI>Commi&s;sioners</HI> a long time, and could not be bayled; vvhereupon the vvrit of <HI>Habeas Corpus</HI> vvas granted out of the <HI>Kings bench,</HI> to bring the pri&s;oner to the Bar.</P>
<PB N="2" REF="4">
<P> <HI>Richard Maun&s;ell,</HI> the other pri&s;oner, being a Preacher, was charged to have been a partaker in a <HI>Petition</HI> exhibi|ted to the Commons hou&s;e of <HI>Parliament:</HI> and for refu|&s;ing to take the oath <HI>ex officio,</HI> to an&s;wer to certaine arti|cles, which he could not be permitted to &s;ee, he was im|pri&s;oned by the <HI>Commi&s;sioners</HI> at <HI>Lambeth,</HI> where hee re|mayned very long, and could not be bayled, and was brought to the barr, upon the writ of <HI>habeas Corpus.</HI></P>
<P>The&s;e impri&s;onments of <HI>Thomas Lad,</HI> and <HI>Richard Maun&s;el</HI> by the <HI>Commi&s;sioners,</HI> for the &s;uppo&s;ed contempts afore&s;ayd, were unlawful (as the &s;aid <HI>Nicholas Fuller</HI> &s;aid) and therefore hee &s;aid that the pri&s;oners ought to be di&s;|charged; And, before he began his <HI>Argument,</HI> he the &s;aid <HI>Nicholas Fuller</HI> did confe&s;&s;e, that it was a ble&s;&s;ed thing, in all kingdomes, to have the <HI>Church,</HI> and <HI>Common wealth</HI> to agree together as <HI>Hippocrates twinnes:</HI> And the meanes to continue a perfect agreement between them was (as hee &s;aid (to give to <HI>Cae&s;ar</HI> that which is <HI>Cae&s;ars,</HI> and to <HI>God</HI> that which is <HI>Gods.</HI> Which right di&s;tribution of the Iuri&s;dicti|on of the Church in England, and Iuri&s;diction of the Common lawes in England, &s;et forth and proved vpon good grounds of the ancient lawes and &s;tatutes of the Realme, would (as he thought) continue a peace between the Church and Common wealth of England for ever; which he de&s;ired from his heart, and it was his labour to effect by this his <HI>Argument.</HI> Wherein, for the better under&s;tanding of his purpo&s;e and drift of his <HI>Argument,</HI> he did divide the &s;ame into 5 parts.</P>
<P N="1">1 And (fir&s;t becau&s;e the <HI>Eccle&s;ia&s;ticall Commi&s;sion</HI> is groun|ded upon the Statute of Anno 1. <HI>Eliz. cap.</HI> 1 the title and intent of which &s;tatute is, <HI>the re&s;toring to the Crowne the
<PB N="3" REF="4">ancient Iuri&s;diction over the Eccle&s;ia&s;ticall and &s;pirituall e&s;tate, and the aboli&s;hing of all forraine Iuri&s;diction repugnant to the &s;ame</HI>) hee declared what that ancient &s;pirituall Iuri&s;di|ction was, which was ment in that Act to be re&s;tored, and by the Commi&s;&s;ioners to be executed, and therin be pro|ved, that the power to impri&s;on &s;ubjects, to fine them, or to force them to accu&s;e them&s;elves upon their own en|forced oathes, there being no accu&s;er knowne, was no part of the ancient Eccle&s;ia&s;ticall juri&s;diction, nor u&s;ed in England by any &s;pirituall Iuri&s;diction, before the Sta|tute of 2 <HI>Hen.</HI> 4. <HI>cap.</HI> 15. which was procured by the <HI>Po|pi&s;h Prelats.</HI></P>
<P N="2">2 That the Statute of 2 <HI>Hen</HI> 4. <HI>cap.</HI> 15. which fir&s;t gave authority to the Bi&s;hops to impri&s;on &s;ubjects, fine them, and force them to accu&s;e them&s;elves, was procured by the <HI>Popi&s;h Prelats</HI> in the time of darkene&s;&s;e (if not without a full con&s;ent of the Commons, yet to their great mi&s;like) and that the &s;ayd Statute, and every thing in the &s;ame conteined, is revoked, as being again&s;t the rule of equi|ty and common ju&s;tice, and again&s;t the lawes of the land, and very hatefull to all the &s;ubjects of the Realme: and in the 2. part he proved, according to the words of the &s;tatute, that the <HI>Oath ex officio</HI> was again&s;t the law of <HI>England,</HI> and again&s;t the rule of equity and Iu&s;tice.</P>
<P N="3">3 That the lawes of <HI>England</HI> are the high inheritance of the Realme, by which both the King and the &s;ubjects are directed; And that &s;uch grants, Charters, and Com|mi&s;&s;ions, as tend to charge the body, lands, or goods of the &s;ubjects, otherwi&s;e then according to the due cour&s;e of the lawes of the Realme, are not lawfull, or of force, unle&s;&s;e the &s;ame Charters and Commi&s;&s;ions, doe receive life and &s;trength, from &s;ome <HI>Act of Parliament.</HI></P>
<P N="4"><PB N="4" REF="5">
<MILESTONE N="4"> 4 That, in this Commi&s;&s;ion Eccle&s;ia&s;ticall, there are &s;ome things tending to charge the body, lands, &amp; goods of the &s;ubjects, otherwi&s;e then according to the cour&s;e of the lawes of the Realme; and e&s;pecially in impri&s;o|ning them, fining them, &amp; forcing them to accu&s;e them|&s;elves (upon their owne oath) without any accu&s;er.</P>
<P N="5"><MILESTONE N="5"> 5. That the <HI>Act of Parliament</HI> of Anno. 1. <HI>Eliz. cap.</HI> 1. whereupon the Eccle&s;ia&s;ticall Commi&s;&s;ion is founded, doth not give life or &s;trength to &s;uch parts of the Com|mi&s;&s;ion, as concerne impri&s;onment of &s;ubjects, fining them, or forcing them to accu&s;e them&s;elves; but doth make voyd and aboli&s;h the &s;ame, as repugnant to the an|cient Eccle&s;ia&s;tical juri&s;diction which by the Statute was to be re&s;tored. And &s;o he &s;aid that the impri&s;onment of his clients was unlawfull &amp; the proceeding of the Com|mi&s;&s;ioners, upon the <HI>Oath ex officio,</HI> without an accu&s;er, not warranted by law, but erroneous and voyd.</P>
<P>Touching the fir&s;t part of the divi&s;ion, which was to prove, that, before the &s;tatute of 2. <HI>Hen.</HI> 4. <HI>cap.</HI> 15. the Or|dinaries had no power to impri&s;on the &s;ubjects, or to fine them, it appeareth both by the preamble of that Statute, where it is declared, that, before that time, they could not by their &s;pirituall Iuri&s;diction, without ayd of the royal Maje&s;ty, &s;ufficiently correct perver&s;e people, who did contemne their &s;pirituall juri&s;diction and Keyes of the Church (which was, at the uttermo&s;t, to lock them out of the Church by <HI>Excommunication</HI>) and al&s;o by the booke ca&s;e of 10. <HI>Hen.</HI> 7. arguing upon the point of the &s;ame &s;tatute, where it is &s;et forth, that the Ordinaries, be|fore the Statute of 2. <HI>Hen.</HI> 4. had no power to impri&s;on &s;ubjects, but the Keyes of the Church: and the like is al&s;o confe&s;&s;ed by the Statute of 1. and 2. of <HI>Philip</HI> and <HI>Mary</HI>
<PB N="5" REF="5">which was made after the former Statute of 2 <HI>Hen.</HI> 4. was revoked by 25. <HI>Hen.</HI> 8. <HI>c.</HI> 14. which do &s;hew as much, viz. that the <HI>Ordinaries</HI> had no power but the Keyes.</P>
<P>And by the Common law it is apparent, that when the Ordinary or Eccle&s;ia&s;ticall Iudge had proceeded &s;o far as they could, by Excommunicating the offendor to looke him out of the Church, then the common law, up|on <HI>&s;ignificavit,</HI> did a&s;&s;i&s;t them by the writ of <HI>Excommuni|cato Capiendo: Quia pote&s;tas regia &s;acro &s;anctae Eccle&s;iae dee&s;&s;e non debet,</HI> as is &s;aid in the Regi&s;ter. But in this ca&s;e the Common law &s;till retained power to di&s;charge the &s;ub|jects &s;o impri&s;oned (upo~ an <HI>Excommunicato capiendo</HI>) with|out a&s;&s;ent of the Ordinary,<NOTE PLACE="marg">Fitz. H. f. 42</NOTE> both by the writ of <HI>Cautione admittenda,</HI> and by the writ of <HI>&s;cirefacias,</HI> upon <HI>an appeale;</HI> where a <HI>&s;uper&s;edeas</HI> was u&s;ually awarded, to di&s;charge the per&s;on impri&s;oned, again&s;t the will of the Ordinary. For the lawes of England did &s;o much regard and pre&s;erve the liberty of the &s;ubjects, as that none &s;hould be impri|&s;oned, <HI>ni&s;i per legale judicium parium &s;uorum aut legem terrae,</HI> as it is &s;aid in <HI>Magna Charta cap</HI> 29. which Charter,<NOTE PLACE="marg">42. Edw. 3. cap. 3.</NOTE> by divers other &s;tatutes after, is confirmed, with &s;uch &s;trong inforcements in &s;ome of them, as to make voyd &s;uch &s;ta|tutes, as &s;hould be contrary to <HI>Magna Charta.</HI></P>
<P>And, in the 15. <HI>Ed.</HI> 3. the fir&s;t article of the commons Petition in Parliament, was,<NOTE PLACE="marg">In the Tower a|mong&s;t the Parliament Rolls. 15. E. 3.</NOTE> that the great charter may in all points be ob&s;erved, &s;o as &s;uch per&s;ons as are neither appealed, Indited, nor followed at the &s;ute of the party, and have their goods, lands, or po&s;&s;e&s;&s;ions taken away, may be re&s;tored thereunto againe.</P>
<P><HI>Whereunto the King an&s;wered thus.</HI></P>
<P>The King granteth for him &amp; his heires, that if any per|&s;on commit an act again&s;t the form of the great Charter,<NOTE PLACE="marg">Re&s;pon&s;io, Regis.</NOTE>
<PB N="6" REF="6">or any other good law, &amp; he &s;hall an&s;wer in Parliament or el&s;e where; he ought to an&s;wer according to law. And therefore if any free &s;ubject were wrongfully impri&s;o|ned, the Common law did not leave him to an action of fal&s;e impri&s;onment onely, but provided the writ <HI>De homine replegiando,</HI> to &s;et him free of his impri&s;onment, unle&s;&s;e he were impri&s;oned for &s;uch particular cau&s;e,<NOTE PLACE="marg">Fitzh. f. 40. Ed. 3. fo. 36</NOTE> as is expre&s;&s;ed in the &s;ame writ <HI>de homine replegiando:</HI> which writ is part of the &s;ubjects inheritance, and &s;hould not be denyed them. And this freedome of the &s;ubjects did make <HI>Markham</HI> the Iudge in the 4 <HI>Hen.</HI> 7. <HI>tit. prerog.</HI> 139. <HI>Brook:</HI> declare that the King could not arre&s;t a &s;ubject upon &s;u&s;pition of felony, as a common per&s;on might do; becau&s;e that again&s;t the one an action of fal&s;e impri&s;on|ment would lye, but not again&s;t the King <HI>(for the &s;ubjects liberty mu&s;t be pre&s;erved)</HI> and by the Statute of <HI>Win.</HI> 1. <HI>cap.</HI> 15. who&s;oever &s;hall detaine &s;ubjects in pri&s;on, who are bayleable by law, &s;hall be grievou&s;ly amerced.</P>
<P>And to &s;hew that it was thought an unmeete thing to leave power in the Ordinaries to commit &s;ubjects to pri&s;on, although they contemned their decrees never &s;o much, appeareth partly by the &s;tatutes of 27. <HI>Hen.</HI> 2. <HI>ca.</HI> 20 and 32. <HI>Hen.</HI> 8. <HI>ca.</HI> 7. which were made after the revocation of the former &s;tatute of 2. <HI>Hen.</HI> 4. by which latter &s;tatutes power is given to two Iu&s;tices of peace, or to &s;ome of the Honorable privie Coun&s;ell, upon certificate of the Or|dinary, to commit &s;uch offenders to pri&s;on, who &s;hould contemne the decrees of the Ordinary: denying to the Ordinary, that made the decree, that he &s;hould have any &s;uch power to commit the &s;ubjects to pri&s;on: &amp; in 5. <HI>E|liz. ca.</HI> 23. which &s;tatute, not allowing Excommunicate per&s;ons to be impri&s;oned by any Eccle&s;ia&s;ticall Iuri&s;di|ction,
<PB N="7" REF="6">limits by very &s;peciall manner, how they &s;hall bee apprehended by the temporall power. For although the Bi&s;hop of <HI>Rome</HI> u&s;eth two &s;words, the &s;piritual and tem|porall; yet the common lawes of England, and the Par|liament in divers ages, thought not &s;o meet, for the Bi|&s;hops or Eccle&s;ia&s;ticall Iuri&s;diction in England to u&s;e two &s;words, but according to the Regi&s;ter, <HI>Regia pote&s;tas &s;acro-&s;anctae Eccle&s;iae dee&s;&s;e non debet.</HI></P>
<P N="2">2 Touching the &s;econd part (wherein he was, to prove that the &s;tatute of 2. <HI>Hen.</HI> 4. <HI>cap.</HI> 15 which fir&s;t gave au|thority to the Ordinaries to impri&s;on &s;ubjects, or to &s;et fines on them, &amp; force them to accu&s;e them&s;elves upon their own oathes, was procured by the Popi&s;h Prelats in the time of darknes) he &s;aid that the very act it &s;elfe did very plainly &s;hew it; it being thus; <HI>And where it is &s;hewed to the King, on the behalfe of the Prelates and Clergy of Eng|land, &amp;c.</HI> And that the &s;ame was procured to &s;uppre&s;&s;e the go&s;pel, which then began to &s;pring or revive, both the body of the Act, and the book of <HI>Acts</HI> and <HI>Monuments</HI> written by <HI>M. Fox,</HI> &amp; other Chronicles do &s;hew it plain|ly; for that tho&s;e per&s;ons, whom they termed hereticks, preached in tho&s;e dayes again&s;t the Sacrament of the Church, which was their Ma&s;&s;e. And that the &s;aid Sta|tute of 2. <HI>Hen</HI> 4. <HI>cap.</HI> 15. was procured by the Prelats, without a&s;&s;ent of the commons, thus much appeareth by the records of the Parliament, remaining in the Tower.<NOTE PLACE="marg">Ex rotulo Parliamen|ti de an 2. H. 4. Peti|tio cleri contra he|retices. <HI>Re&s;p. Regis.</HI></NOTE> <HI>Excellenti&s;simo ac gratio&s;i&s;simo Principi, Domino no&s;tro Regi, &s;upplicatur, ex parte ve&s;trorum humilium oratorum, prelatorum, et cleriregni ve&s;tri Angliae, quod cum fides catholica &s;uper Chri|&s;tum fundata, et per Apo&s;tolos &s;uos, et Eccle&s;iam, &amp;c</HI> rehear&s;ing al the words of the Act. <HI>Quas quidem petitiones prelatorum et cleri &s;uperius expre&s;&s;atas dominus no&s;ter Rex, de con&s;en&s;u
<PB N="8" REF="7">magnatum, et aliorum procerum regni &s;ui in pre&s;enti parliamen|to exi&s;tentium conce&s;sit, et in &s;ingulis juxta formam &amp;c.</HI> Wherin the Commons are not mentioned. And it is the more likely that the Commons gave no a&s;&s;ent to this &s;tatute of 2. <HI>Hen.</HI> 4. both for that in the Parliament rolls of the &s;ame yeare of 2. <HI>Hen.</HI> 4. in the Tower, there is to be &s;eene the Petition of the Commons to the King, thus.</P>
<P><NOTE PLACE="marg">The Peti|tion of the commons.</NOTE><HI>Item prient les comens, depuis q' uill e&s;t contenu en la grande chartre, quenul &s;era are&s;te ne enpri&s;one &s;ans re&s;ponce, ou due pro|ce&s;&s;e de la ley, quell chartre e&s;t conferme en charmi perlement, et ore ils &s;upplient, que &s;i aucun &s;oit are&s;te ou enpri&s;one encontre la forme del charte avant dict q' ill veigne, et appierge a &s;a re&s;pon|ce, et preigne &s;on Iugement, &s;icome le ley demande, an&s;siq' nul tiel are&s;te ne impri&s;onement &s;oit trait en' cu&s;tome, en' de&s;truction de la ley du Roy.</HI> Whereto the King an&s;wered.</P>
<P><NOTE PLACE="marg">The an&s;wer of the King.</NOTE><HI>Soient les &s;tatutes etla comen ley tenus;</HI> As al&s;o for that the Prelats had not long before procured anothere act again&s;t the <HI>Lolards,</HI> in Anno 5. <HI>Rich.</HI> 2. <HI>cap.</HI> 5. without a&s;&s;ent of the Commons; as appeareth by the Parliament rolles, in the Tower, of anno 6. R. 2. which is thus. <HI>Item &s;upplient les comens, q' comen vn e&s;tatute fuit fait en darrein perlement, en ces paroles: Ordone e&s;t en ce&s;t perlement, q' Commi&s;sions du Roy &s;oient directes a vi&s;countes et autres mini&s;tres du roy, ou autres &s;uffi&s;antz per&s;ons, apres et &s;elon que les certificates des prelates eut affaire in chancellerie, du temps en temps, touts tiels preche|urs elour fautours mamtenours, &amp;c.</HI></P>
<P><HI>La quel ne fuit un&abque; a&s;&s;ente ne grante per les Comens, mes ce q' fuit par le de ce, fuit &s;ans a&s;sent de lour q' celi e&s;tatue &s;oit anea ati car il ne&s;toit mi lour entent ju&s;tifiez ne obliger lour ne lour &s;ucce&s;&s;orers as Prelates plus q' lour aunce&s;tres nont e&s;te en temps pa&s;&s;ez.</HI></P>
<P>Re&s;p: <HI>Il ple&s;t au Roy.</HI></P>
<PB N="9" REF="7">
<P> And it is al&s;o reported by <HI>M. Fox</HI> in the &s;ayd booke of Acts and Monuments,<NOTE PLACE="marg">Act. &amp; Mo. fol. 539.</NOTE> that the &s;ame Act of 2. <HI>Hen.</HI> 4. <HI>ca.</HI> 15. was procured without a&s;&s;ent of the Commons; and that the Commons did greatly repyne at it from time to time, many godly men writing again&s;t it, &s;ome of them ter|ming it a bloudie law, and a cruell law. And becau&s;e the Prelats (out of the words of that law which gave them power to impri&s;on &s;ome &s;u&s;pected of here&s;ie, untill they &s;hould canonically purge them&s;elves) did &s;treinedly force &s;ubjects without any accu&s;er to accu&s;e them&s;elves, there|fore the title of that act is &s;et downe in the booke of Acts and Monuments, the &s;tatute <HI>Ex officio;</HI><NOTE PLACE="marg">Act. &amp; Mo. fol. 481.</NOTE> at which time it was not commonly u&s;ed to giue titles to Acts of Par|liament.</P>
<P>And, to &s;hew how much the &s;ubjects mi&s;liked that kind of proceeding, appeareth by &s;everall Petitions of the &s;ubjects to the Kings of the Realme, and to the hou&s;e of Parliament, by the &s;tatute of 25. <HI>Hen.</HI> 8. <HI>cap.</HI> 14. by which &s;tatute it is &s;ayd, that the proceeding by the oath <HI>Ex offi|cio,</HI> to force a man to accu&s;e him&s;elfe, is contrary to the rule of right and good equity, and contrary to the lawes of England, and unrea&s;onable that, upon &s;u&s;pition con|ceived upon thefanta&s;ye of the Ordinaries, men &s;hould be forced to an&s;wer, &amp;c. And therefore they then revo|ked, and made voyd the &s;tatute of 2. <HI>Hen.</HI> 4. <HI>cap.</HI> 15.</P>
<P>And to prove, that, according to the opinion of that Parliament hou&s;e, the oath <HI>Ex officio</HI> is again&s;t the lawes of England both Eccle&s;ia&s;ticall &amp; temporall, and again&s;t the rule of Ju&s;tice and good equitie, he &s;ayd, that by the lawes of England (if a &s;ubject had been cyted, by the Or|dinary or Eccle&s;ia&s;ticall Judge, <HI>pro &s;alute aiae,</HI> which is the oath <HI>ex officio,</HI> to accu&s;e him&s;elfe) a <HI>Prohibition</HI> did lye at
<PB N="10" REF="8">the common law, and an attachment again&s;t the Ordina|ry, if he did proceed in that ca&s;e contrary to that prohibi|tion, as appeareth in <HI>Fitz. H. fol</HI> 42. and the &s;tatute of 2. <HI>H.</HI> 5. which was made &s;oone after the &s;ayd &s;tatute of 2. <HI>Hen.</HI> 4. (giving warrant to grant a prohibition to the Ordinary for default of a libell) doth cro&s;&s;e the proceeding by oath <HI>Ex officio;</HI> where he is forced to a libell, as appeareth 4. <HI>Ed.</HI> 4. <HI>fol.</HI> 37. and <HI>Fitz. H. fol.</HI> 43. &amp;c.</P>
<P>And by the words of the &s;tatute of 42. <HI>Edw</HI> 3. <HI>cap.</HI> 3. (which was made before tho&s;e &s;tatutes procured by the Prelates, when Ordinaries had no power to impri&s;on &s;ubjects) it is expre&s;&s;ed, in what manner the proceeding &s;hould be again&s;t &s;ubjects upon accu&s;ations, thus <HI>viz.</HI> It is a&s;&s;ented &amp; accorded, for the good government of the Commons, that no man be put to an&s;wer, without pre|&s;entment before Ju&s;tices, or thing of Record, by due pro|ces, and writ originall, according to the old law of the land; And if any thing be done from henceforth to the contrary, it &s;hall be voyd in law and holden for error; wherein it is worthy the noting, that it is &s;aid <HI>according to the old lawes of England.</HI></P>
<P>And to prove the old law of England to be &s;o, the or|dinary ca&s;e of daily experience, touching the challenge of <HI>Jurors,</HI> doth &s;ufficiently declare. For if the Juror be challenged for kindred to either of the parties, or for wa~t of free-hold, the Juror &s;hall an&s;wer upon his oath, to cleare that matter; becau&s;e it toucheth not the Juror in lo&s;&s;e or credit: but if the challenge doe tend to touch the Juror any way in his credit, or his lo&s;&s;e, he &s;hal not be for|ced, upon his oath,<NOTE PLACE="marg">49. Edw. 3. fol. 2.</NOTE> to an&s;wer, although his an&s;wer might tend to further Ju&s;tice; <HI>quia nemo tenetur prodere &s;eip&s;um,</HI> as is ruled 49. <HI>Edw.</HI> 3. <HI>fol.</HI> 2. And the ca&s;e of <HI>wager of law,</HI>
<PB N="11" REF="8">which is allowed to the defendant in no criminall ca&s;e, which might bring impri&s;onment to the partie by the cour&s;e of the common law as in tre&s;pas, &amp;c. but onely in debt and detinewe: and the &s;tatute of <HI>Magna Charta,</HI> cap. 28. inacting, that no Bailife &s;hall put a man to his open law, nor to an oath, upon his owne bare &s;aying, without faithfull witne&s;&s;es brought in for the &s;ame, tendeth to like effect: and <HI>S. Edward Cooke,</HI> in his argument made in <HI>Slades</HI> Ca&s;e, &s;aid well, that in criminall cau&s;es <HI>(juramentum in propria cau&s;a e&s;t inventio diaboli ad detrudendum animas mi|&s;erorum in infernum)</HI> according to who&s;e &s;aying it appear|eth, that when tho&s;e oathes were u&s;ed by the parties accu|&s;ed, by the border lawes betweene England and Scotland, tho&s;e oathes did bring no furtherance to the truth, but manife&s;t perjurie every day; as was confe&s;&s;ed by all that knew the practi&s;e there: and therefore that manner of tri|all was rejected.</P>
<P>And to prove it again&s;t Iu&s;tice and good equitie, hee &s;aid that this oath <HI>Ex officio,</HI> to force a man in a criminall cau&s;e to accu&s;e him&s;elfe, was (he thought) directly again&s;t the rule of the law of God. For it is &s;aid in <HI>Deut. cap.</HI> 19.15. that one witne&s;&s;e &s;hall not ari&s;e again&s;t a man for any tre&s;|pas, or for any &s;in, or for any fault that he offe~deth in; but at the mouth of two witne&s;&s;es, or 3. witne&s;&s;es &s;hall the matter be e&s;tabli&s;hed. Which rule is confirmed under the Go&s;pell, as appeareth <HI>Math.</HI> 18.16. 2 <HI>Cor.</HI> 13.1. where it is &s;aid, In the mouth of two or three witne&s;&s;es &s;hall every word &s;tand; and Chri&s;t &s;aid to the woman accu&s;ed of a|dultery, <HI>where be thine accu&s;ers? &amp;c.</HI> But without any wit|ne&s;&s;e or accu&s;er to e&s;tabli&s;h the matter, upon the inforced oath of the partie, hath no coherence with the rule of Gods law, which &s;hould be a direction to all Chri&s;tian
<PB N="12" REF="9">Princes in making of their lawes, we being now the peo|ple of God the Jewes being cut off; the Judgements being now the judgements of God, and not of men alone.</P>
<P>But here may be objected, that by the lawes of Eng|land one witne&s;&s;e is &s;ufficient: to which he an&s;wered, that the Jurors being all &s;worne to trie the particular matter in <HI>fact,</HI> wherewith the party defendant is charged, may well &s;upplie the want of one witnes, being 12. per&s;ons in|different, without any affinitie to either partie, who bet|ter know the witne&s;&s;es then the Judge, and may perhaps know the cau&s;e in que&s;tion, a&s;well as the witnes: which kind of triall is &s;o behovefull for the &s;ubjects, as it may prevent much wrong and oppre&s;&s;ion from high authori|tie, if the Jurors be ju&s;t &amp; faithfull per&s;ons, as they ought to be; and their verdit al&s;o may be redre&s;&s;ed by attaint, if they &s;hould doe wrong therein: which writs of <HI>attaint,</HI> and <HI>error,</HI> are part of the &s;ubjects inheritance.</P>
<P>Al&s;o this oath <HI>Ex officio</HI> hath no coherence with the law of nature. For, as <HI>Ari&s;totle</HI> &s;aith, <HI>natura e&s;t con&s;ervatrix &s;ui,</HI> as is &s;ayd in 49. <HI>Edw.</HI> 3. <HI>fol.</HI> 2. but this tendeth to a mans owne overthrow; &amp; it hath no coherence with the lawes of Nations, as he gathered by the writing of <HI>Traiane</HI> the Emperour, being a very wi&s;e &amp; ju&s;t man; who writing to <HI>Plinie</HI> the &s;econd, his lieutenant of &s;ome Provinces in <HI>A|&s;ia minor,</HI> for direction in his government, again&s;t tho&s;e, who at that time were oppo&s;ite to his religion, &s;aith thus, <HI>(Sine authore certo propo&s;iti libelli nulli crimini locum habere de|bent; nam &amp; pe&s;simi exempli, nec no&s;tri &s;eculi e&s;t.)</HI> According to which direction, <HI>Felix</HI> the governour of the Iewes un|der the Emperor,<NOTE PLACE="marg">Acts 23.35.</NOTE> when <HI>Paul</HI> the Apo&s;tle was brought be|fore him, &s;ayd to <HI>Paul,</HI> that he would heare him, when his accu&s;ers were come; holding it as unju&s;t, without an ac|cu&s;er, to charge him.</P>
<PB N="13" REF="9">
<P> And it is much wor&s;e then auricular confe&s;&s;ion; be|cau&s;e that is voluntary, this by con&s;treint; that to be con|cealed, this to be revealed to the parties &s;hame; that to in|duce pardon, this to induce puni&s;hment to him&s;elfe. And where an oath &s;hould be the end of &s;trife, this oath <HI>Ex of|ficio</HI> is often-times the beginning of &s;trife; yea it hath been &s;o hatefull as &s;ome <HI>Martyrs</HI> have written again&s;t it, as a bloudie law; and therefore not without ju&s;t cau&s;e, that the whole e&s;tate a&s;&s;embled in Parliament in an. 25. <HI>Hen.</HI> 8. held it not to be agreeing with the rule of right and e|quity, and to be contrary to the lawes of England, and therfore revoked the &s;ayd &s;tatute of 2. <HI>Hen.</HI> 4. and did ther|by limit another forme of proceeding again&s;t per&s;ons accu&s;ed or &s;u&s;pected, thus, <HI>viz.</HI> upon <HI>Inditement</HI> or two <HI>witne&s;&s;es</HI> at the lea&s;t (according to Gods law) with words of re&s;treint, <HI>not to proceed otherwi&s;e:</HI> &s;ince which time, no cu&s;tome, or colour of pre&s;cription in the Eccle&s;ia&s;ticall Courts, can take place again&s;t that law, to uphold the oath <HI>Ex officio</HI> in ca&s;e of here&s;ie.</P>
<P>And touching fines, by the &s;tatute of <HI>Articuli cleri, cap.</HI> 1. by the <HI>Regi&s;ter</HI> and by <HI>Fitzh. Natura brev. fo.</HI> 51. &amp; 52. and by the &s;tatute of 15. <HI>Edw.</HI> 3. <HI>cap.</HI> 6. it is &s;o &s;hewed, that, by ancient Eccle&s;ia&s;ticall juri&s;diction, they ought not to &s;et fines of money upon &s;ubjects, unle&s;&s;e it were upon co~|mutation of a penance; &s;o as it need no further proofe of that matter.</P>
<P>The third matter which he endevoured to prove, was, <MILESTONE N="3"> that the lawes of the kingdome of England, and the man|ner of proceeding in ca&s;es of law and ju&s;tice, are &s;etled in the Realme, as part of the inheritance of the &s;ubjects, and rightly termed by &s;ome Judges in 19. <HI>Hen.</HI> 6. <HI>fo.</HI> 62. to be the mo&s;t high inheritance of the Kingdome, by which
<PB N="14" REF="10">both King and &s;ubjects are guilded: &amp; that without lawes there would be neither King nor inheritance in England.<NOTE PLACE="marg">Bract. fol. 5. cap. 8.</NOTE> Which lawes, by long continuance of time and good in|devour of many wi&s;e men, are &s;o fitted to this people, and this people to them, as it doth make a &s;weet harmonie in the government; all things being as readily obeyed on the one part which are agreeing to law, as they are willingly commanded on the other part according to law: every officer, by the rule of the law, knowing the duties of their places, as <HI>Sheriffes, Bayliffes,</HI><NOTE N="a)" PLACE="marg">Stam. fol. 99.</NOTE> <HI>Con&s;tables, Coroners, E&s;chetors; &amp;c.</HI> the band of an oath, both for government and obedi|ence, being mutually made on each part.</P>
<P>For the lawes in a Common-wealth are like the &s;inewes in a naturall body, by which the hand, foot, and other parts of the body doe readily move, by the direction of the head; but if the hand, or foot, bee forced above the &s;trength of the &s;inew, it either taketh away the u&s;e of that part, or el&s;e it maketh it a weake or halting member: &s;o is it, if the lawes be &s;treyned again&s;t any part of the co~|mon-wealth, above it right, and naturall &s;trength, it will make that part weake, or halting: and therefore it is ex|cellently &s;aid in 8. <HI>Hen.</HI> 4. <HI>fol.</HI> 19. in the <HI>com. fol.</HI> 236. and in the Ca&s;e of <HI>Alton</HI> woods, that the law admea&s;ureth the Kings prerogative,<NOTE PLACE="marg">8. Hen. 4. fol. 19. com. fol. 236.</NOTE> &s;o as it &s;hall not extend to hurt the in|heritance of the &s;ubjects on the on part: and as <HI>Bracton</HI> &s;aith, <HI>nihil aliud pote&s;t rex in terris, cum &s;it Dei mini&s;ter &amp; vi|carius, quam quod de jure pote&s;t: quia illa pote&s;tas &s;olius Dei e&s;t; pote&s;tas autem injuriae diaboli e&s;t, &amp; non Dei; &amp; cujus horum o|pera fecerit rex, ejus mini&s;ter e&s;t.</HI></P>
<P>And the law doth re&s;traine the liberall words of the Kings grant, for the benefit both of the King and the &s;ub|jects, and to the great happine&s;&s;e of the Realme; e&s;pecially
<PB N="15" REF="10">when the Iudges are men of courage, fearing God; as is to be proved by many Ca&s;es adjudged in the&s;e Courts of <HI>Kings Bench,</HI> and <HI>Common-pleas;</HI> which Courts are the principall pre&s;ervers of this high inheritance of the law: whereof he rehear&s;ed &s;ome few ca&s;es on the part of the King, and on the part of the &s;ubjects divers Ca&s;es; as in 45. <HI>A&s;&s;.</HI> p. 15. where the King did grant to <HI>I.S.</HI> &amp; his heires, the Manour of Dale, and all the woods, and underwoods, and Mynes within the &s;aid Mannor; yet Mynes of gold and &s;ilver did not pa&s;&s;e: and in the 22. <HI>A&s;&s;</HI> 49. the King did grant to <HI>I.S.</HI> the goods and chattels of per&s;ons with|in Dale, <HI>qualitercunque damnatorum;</HI> yet the goods of per|&s;ons attainted of trea&s;on did not pa&s;&s;e, for the benefit of the King: becau&s;e the &s;ame are &s;o annexed to the Crowne, as by no generall words they may pa&s;&s;e fro~ the Crowne, by the rule of law. And of late yeares what great benefit hath growne to the Kings and Queenes of this Realme, upon con&s;truction, according to the rules of law, of the Kings grants, the ca&s;e of <HI>Alton</HI> woods, the &s;tatute lately made for confirmation of Charters granted to the Citi|zens of <HI>London,</HI> and the many ca&s;es preferred by <HI>Tipper</HI> and his fellowes, doe &s;ufficiently prove.</P>
<P>And, on the other &s;ide, if any graunt or Commi&s;&s;ion from the King doth tend to charge the body, lands, or goods of the &s;ubjects unlawfully, the Iudges will redre&s;&s;e the &s;ame. For if the King grant the lands or goods of <HI>I. S.</HI> that is &s;o manife&s;tly again&s;t law, as it needs no proofe.</P>
<P>But (he &s;aid) he would put &s;uch ca&s;es, as being groun|ded upon prerogative, have a &s;hew of good to the Com|mon-wealth, and yet are not allowable, becau&s;e they tend to charge the &s;ubject, without the a&s;&s;ent of the &s;ub|ject: as the Ca&s;e, 13. <HI>Hen.</HI> 4. where the King did grant
<PB N="16" REF="11">an office of mea&s;uring of cloath in <HI>London</HI> to <HI>I.S.</HI> with a Fee to be received for the &s;ame mea&s;uring: and although the office tend to further commutative Ju&s;tice, whereof the power is in the King for weight and mea&s;ure; yet be|cau&s;e this fee did tend to charge the &s;ubject, without his a&s;&s;ent, it was adjudged, by the learned Judges, upon long debate, to be voyd: and the ca&s;e of <HI>Protection,</HI> 39 <HI>Hen.</HI> 6. <HI>fol.</HI> 39. where the King did grant a protection to <HI>A.B.</HI> his &s;ervant, <HI>quia profecturus,</HI> for a voyage to <HI>Rome,</HI> for &s;ervice of the King and Common-wealth for weightie cau&s;es, to continue for three yeares; and yet it was di&s;allowed by the Judges, becau&s;e it was for three yeares, where, by the rules of the law, it &s;hould be but for one; &amp; becau&s;e there was no exceptio~ of dower, A&s;&s;i&s;e, and <HI>quare impedit</HI> which by law &s;hould have been excepted: and that protection did not barre the &s;ubjects right, but only delayed his &s;uit.</P>
<P>And in 3. <HI>Edw.</HI> 3.14. <HI>Nort. A&s;si&s;e.</HI> 445. <HI>com. fol.</HI> 48. the King did pardon <HI>I.S.</HI> the making of a bridge: and becau&s;e the &s;ubjects had intere&s;t in the pa&s;&s;age over that bridge; the Kings pardon was not &s;ufficient, to di&s;charge <HI>I.S.</HI> from the making thereof. In the ca&s;e of 42. <HI>A&s;&s;.</HI> 5. a Commi&s;&s;ion from the King, under the great Seale of England, was di|rected to A. and B. to take <HI>I. S.</HI> and him impri&s;on in the Ca&s;tle of P. and to take his goods; which was done ac|cordingly by the Co~mi&s;&s;ioners: and becau&s;e it was done without any inditement, or due cour&s;e of law, the procee|dings of the &s;ame Commi&s;&s;ioners were adjudged voyd.</P>
<P>The like ca&s;e was 42. <HI>A&s;&s;. p.</HI> 12. Where, upon the Kings Writ directed to the Ju&s;tices of labourers. <HI>I.S.</HI> was indited for &s;omething not perteyning to the Ju&s;tices of laborers, and therefore adjudged voyd, they having no Co~mi&s;&s;ion &s;o to doe. For although the Sheriffe, or officer, cannot
<PB N="17" REF="11">judge of the Kings writ, but mu&s;t execute it: yet the Iudge may refu&s;e to execute the &s;ame writ, when it is a|gain&s;t law, or impo&s;&s;ible to be done,<NOTE PLACE="marg">1. Ed. 3. fol. 26.</NOTE> according to 1. <HI>Edw.</HI> 3. <HI>fol.</HI> 26. and in the 1. &amp; 2. <HI>Eliz. Scrogges</HI> his Ca&s;e; where a Commi&s;&s;ion was awarded to &s;ome Iudges, and per&s;ons of credit, to heare the cau&s;e concerning the Office of exi|gent of <HI>London,</HI> which <HI>Scrogges</HI> did challenge; &amp; if <HI>Scrog|ges</HI> refu&s;ed to &s;ubmit him&s;elfe to their order, to commit him to pri&s;on: upon which Commi&s;&s;ion <HI>Scrogges</HI> was committed to pri&s;on &amp; he was di&s;charged, by the Iudges of his impri&s;onment, by writ of <HI>habeas Corpus,</HI> becau&s;e his impri&s;onment was not lawfull: which writs of <HI>habeas cor|pus</HI> are u&s;ually granted in the &s;aid Courts of <HI>Kings bench,</HI> and <HI>Common pleas,</HI> thereby to releeve the &s;ubjects, which are many times in other Courts, &amp; by &s;ome Commi&s;&s;io|ners, unlawfully impri&s;oned: yea many times, although the Commi&s;&s;ions be grounded upon acts of Parliament, as the Commi&s;&s;ion of <HI>Sewers,</HI> the Commi&s;&s;ion of <HI>Banck|rupts,</HI> and the <HI>Eccle&s;ia&s;ticall Commi&s;sion:</HI> and many times they grant <HI>Prohibitions</HI> to the <HI>Eccle&s;ia&s;ticall Court,</HI> to the <HI>Admirall Court,</HI> and to the Court of <HI>Reque&s;ts,</HI> and other inferiour Courts, when they exceed their authority.</P>
<P>And many other ca&s;es hee would have put to prove tho&s;e points, but that in a former argument made by him in the court of <HI>Kings bench,</HI> again&s;t <HI>Monopoly Patents</HI> of <HI>M. Darcie, Mich.</HI> 44. <HI>Eliz.</HI> all the Iudges then &s;eemed to yeeld the &s;ame to the law, without any doubt, as he conceived;<NOTE PLACE="marg">Fitz H. f. 31 H. 8. pro|hib.</NOTE> which high inheritance of the law the Common wealth hath alwayes &s;o pre&s;erved, as without Act of Parliament it cannot be changed, as appeareth by the an&s;wer of the <HI>Barons,</HI> when the <HI>Bi&s;hop</HI> &s;ought to have the law changed, touching children borne before mariage, although the
<PB N="18" REF="12">mariage after en&s;ued, to be held as ba&s;tards: the <HI>LL.</HI> &s;ayd, <HI>Nolumus leges Anglia mutari;</HI> and as is apparant by booke ca&s;es, where it is adjudged, that the <HI>King,</HI> by a <HI>non ob&s;tante</HI> may di&s;pence with a &s;tatute law, but not with the co~mon law, nor alter the &s;ame as is adjudged 49. <HI>A&s;s. p.</HI> 8. and <HI>Bo|&s;omes Ca&s;e;</HI> nor put the &s;ubjects from their inheritance of the law,<NOTE PLACE="marg">Bo&s;omes Ca&s;e Cooke fol. 35.</NOTE> as is 8. <HI>Hen.</HI> 4. <HI>fol.</HI> 19. which was alwayes accomp|ted one of the great ble&s;&s;ings of this land, to have the law the <HI>meat-yard,</HI> &amp; the Judges the <HI>mea&s;urers.</HI> For, in all well governed Common-wealths, <HI>Religion</HI> and <HI>Iu&s;tice</HI> are the two principall pillars, wherein the power of God appea|reth; and many times weake women doe rule, and com|mand many thou&s;and &s;trong men, touching their lives, lands, and goods, without re&s;i&s;tance; which the love and regard of Ju&s;tice procureth.</P>
<P><MILESTONE N="4"> For the better proofe of the fourth part, he did reade <HI>verbatim</HI> the parts of the <HI>Eccle&s;ia&s;ticall Commi&s;sion,</HI> which he thought to be again&s;t the lawes of England, and liber|ties of the &s;ubjects; remembring fir&s;t to marke and con&s;i|der, how, whereas the whole drift of the Act of Parlia|ment. 1. <HI>Eliz. cap.</HI> 1 was, to re&s;tore to the Crowne the <HI>aun|cient juri&s;diction over the Eccle&s;ia&s;ticall</HI> &amp; <HI>&s;pirituall e&s;tate,</HI> and, for that purpo&s;e, did give power to the Eccle&s;ia&s;tical Co~|mi&s;&s;ioners, <HI>to execute the premi&s;&s;es</HI> in the &s;ayd Act contey|ned, <HI>for the correcting, and amending, and reforming of &s;uch here&s;ies, errors, &s;chi&s;mes, contempts, and enormities, as by the Eccle&s;ia&s;ticall lawes might lawfully be reformed, according to the tenour and effect of the &s;ayd Letters Patents,</HI> this Comm&s;&s;ion is &s;ince enlarged, and how it giveth power to the <HI>Com|mi&s;sioners,</HI> to enquire not onely of the <HI>premi&s;ses,</HI> mentio|ned in the &s;tatute of 1. <HI>Eliz. cap.</HI> 1. but al&s;o of all offences, and contempts: again&s;t the &s;tatute of 1. <HI>Eliz. cap.</HI> 2. intitu|led,
<PB N="19" REF="12"><HI>an Act for uniformitie of Common prayer, and &s;ervice of the Church, and admini&s;tration of the &s;acraments,</HI> and of all offences, and contempts again&s;t the&s;e &s;tatutes following, which were all made &s;ince anno 1. <HI>Eliz.</HI> viz. the &s;tatute of 5. <HI>Eliz. ca.</HI> 1. intituled, <HI>an Act for the a&s;&s;urance of the Queenes Maje&s;ties power, over all &s;tates and &s;ubjects, within her domi|nions;</HI> the &s;tatute of 13. <HI>Eliz. cap.</HI> 12. intituled, <HI>an Act to re|forme certaine di&s;orders, touching the Mini&s;ters of the Church;</HI> the &s;tatute of 35. <HI>Eliz cap.</HI> 1. intituled, <HI>an Act to reteyne her maje&s;ties &s;ubjects in their due obedience;</HI> the &s;tatute of 35. <HI>Eliz. cap.</HI> 2. intituled, <HI>an Act to re&s;treyne &s;ome Popi&s;h recu&s;ants to &s;ome certaine places of aboad;</HI> the &s;tatute of anno. 1. <HI>Jacobi.</HI> intituled, <HI>an Act for the due execution of the &s;tatutes again&s;t Je&s;uits, Seminaries, Prie&s;ts, Recu&s;ants, &amp;c.</HI></P>
<P>Al&s;o power is given to the Co~mi&s;&s;ioners, or any three or more of them, not only upon the&s;e penall lawes and upon every offence therein contained, but al&s;o upon all <HI>&s;editious bookes, contempts, con&s;piracies, private conventicles, fal&s;e rumors or tales, &s;editious misbehaviours,</HI> and many other civill offences particularly named in the Letters patents, to call before them all and every offendor in any of the premi&s;&s;es, and all &s;uch, as, by them or any three or more of them, &s;hall &s;eeme to be &s;u&s;pected per&s;ons in any of the premi&s;&s;es; and every of them to examine, upon their cor|porall oathes, touching every or any of the premi&s;&s;es, which they &s;hall object again&s;t them; and to proceed a|gain&s;t them and every of them, as the nature and quality of the offence or &s;u&s;pition, in that behalfe, &s;hall require; And to inquire of <HI>adulteries, fornications, outragious misbe|haviours, &amp; di&s;orders in mariages,</HI> and of all other grievous and great crymes, and offences, within any part of the Realme, which are puni&s;hable or reformable by the Ec|cle&s;imariage
<GAP DESC="duplicate" EXTENT="1 page"><PB N="18" REF="13">
<GAP DESC="duplicate" EXTENT="1 page"><PB N="19" REF="13">
<PB N="20" REF="14">lawes of this Realme, according to the te|nor of the lawes on that behalfe, or according to their wi&s;edomes, and di&s;cretions, or the di&s;cretions of any three of them.</P>
<P>The <HI>commi&s;sioners,</HI> or any three of them, are further authorized, willed, and commanded to u&s;e and devi&s;e all &s;uch good; lawful, rea&s;onable, and convenient wayes, for the triall and &s;earching out of all the premi&s;&s;es and proceedings therin, as by any three or more of them &s;hall be thought mo&s;t expedient, and nece&s;&s;ary.</P>
<P>They, or any 3. or more of them, have authority to order and a ward &s;uch puni&s;hment to every &s;uch of|fender, by fine, impri&s;onment, cen&s;ures of the Church, or other lawfull way, or by all or any of the &s;aid wayes; and to take &s;uch order for the redre&s;&s;e of the &s;ame, as to the wi&s;domes and di&s;cretions of any three or more of them &s;hall be thought meet, and convenient.</P>
<P>For contempt in not appearance, or not obeying the decree of any three of them, they have power to fine them at their di&s;cretions, and to commit them to ward, there to remaine, untill, by any three of them, they &s;hall be enlarged, according to their di&s;cretions.</P>
<P>They have power to take recognizance of every of|fendor, and &s;u&s;pected per&s;on, a&s;well for their per&s;onall appearance, as for the performance of &s;uch order, and decrees, as to any three of them &s;hall &s;eeme rea&s;onable, and convenient in that behalfe.</P>
<P>They have al&s;o power to command all &amp; every &s;he|riffes, Iu&s;tices, and other officers, and &s;ubjects within this Realme, &amp; in all places, a&s;well exempt as not exempt, by their letters and other proces, to apprehend, or cau&s;e to be apprehended, any per&s;on or per&s;ons, which they &s;hall
<PB N="21" REF="14">thinke meet to be convented, and take &s;uch bonds for their appearance, as any three of them &s;hall pre&s;cribe, &amp;c. or to commit them to pri&s;on.</P>
<P>They have power to execute the premi&s;&s;es, notwith|&s;tanding any appellation, provocation, priviledge, or ex|emption; any laws, &s;tatutes, proclamations, other grants, priviledges, or other ordinances, which be or may &s;eeme contrary to the premi&s;&s;es, notwith&s;tanding.</P>
<P>Vpon which parts of the &s;aid Commi&s;&s;ion, being &s;o indefinite without limitation or re&s;traint, he noted, that if the Commi&s;&s;ion &s;hould bee executed according to the letter thereof; the &s;ubjects, notwith&s;tanding any lawes or cu&s;tomes to the contrary, might bee cited out of their owne Dioces, yea from the furthe&s;t part of the Realme, for any cau&s;e, or &s;u&s;pition conceived by the Commi&s;&s;io|ners, or any three of them, and forced to attend the com|mi&s;sioners, where they will appoint, in time of harve&s;t, or time of plague, with the danger of a mans life: as hee was forced to attend many weekes in danger of his life: they refu&s;ing to delay the cau&s;e, untill the tenne, upon any bayle or bond. And they may force any &s;ubject to appeare, at what dayes and houres any three of them &s;hall appoint, for &s;uch matters &s;ometimes; as are more proper to be heard in other Cours.</P>
<P>And although the penalties of the &s;tatutes be never &s;o great, as <HI>Premunire, Abjuration, forfeyture of lands &amp; goods,</HI> whereof &s;ome offences are by the &s;ame &s;tatute limited to be tryed only in the <HI>Kings bench,</HI> yet the party &s;u&s;pec|ted may be forced, by this commi&s;&s;ion, to accu&s;e him|&s;elfe upon his owne oath, upon &s;uch captious <HI>Interrogato|ries,</HI> as the wit of man can devi&s;e, when there is neither accu&s;er, nor libel of accu&s;ation: And that in many things
<PB N="22" REF="15">they may inflict what puni&s;hment any three of them &s;hal thinke meete in their di&s;cretions, and force men to per|forme &s;uch order as they &s;hall make, by the parties bond, before any order made: and that their judgements, or de|crees what&s;oever, &s;hould not be &s;ubject to any Writ of <HI>Error, attaint,</HI> or <HI>appeale</HI> and that they may devi&s;e meanes, at their owne di&s;cretion, for the triall and finding out of any the &s;aid offences. Which kind of proceedings how far they doe differ from the common lawes of England, which is the inheritance of the &s;ubjects, and what Jarres, and har&s;h tunes they make in the &s;weet harmony therof, &s;ettled by &s;o long continuance, with a mo&s;t happy &s;uc|ce&s;&s;e, any wi&s;e man may &s;ee, without any inforcement from him; and how much of this they doe daily execute, he did leave to &s;ee it.</P>
<P>Only &s;o much as came under his owne view, he &s;aid, that, the la&s;t day of <HI>Ea&s;ter terme,</HI> he moved at the <HI>Exche|quer</HI> barre, for 20. per&s;on, his <HI>Clients,</HI> dwelling in <HI>Yorke|&s;hire,</HI> wherof &s;om, as they told him, were very poore, who were fined by the <HI>Eccle&s;ia&s;ticall Co~mi&s;sioners</HI> for not appea|ring at their dayes appointed, many of them to 30. <HI>pounds</HI> a peece, one only at ten, and all the re&s;t at twenty a peece, which was not <HI>&s;alvo contenemento,</HI> according to the &s;tatute of <HI>Magna Charta</HI> cap. 14. And one client, being an hou&s;|holder in Fleet-&s;treet, named <HI>William Goulder,</HI> prayed ad|vi&s;e for his hard &amp; clo&s;e impri&s;onment many daies, with great Irons on him, by the <HI>Commi&s;sioners,</HI> upon &s;ome &s;u|&s;pition conceived by &s;ome of the Commi&s;&s;ioners, that &s;ome per&s;on was hid in his hou&s;e; and was after freed without any conviction of his &s;uppo&s;ed offence. And be|cau&s;e the &s;aid <HI>Nicholas Fuller</HI> did except again&s;t the <HI>Com|mi&s;sioners,</HI> as not competent Judges, in their owne cau&s;e,
<PB N="23" REF="15">of him and of his argument, made again&s;t them at the <HI>Kings bench</HI> barre, they threatned to &s;et 500. pounds fine on him, and to impri&s;on him. And when (he finding their proceeding by the oath <HI>Ex officio</HI> to vary from the Com|mon lawes, which he had long time practi&s;ed) he &s;aid to them, it &s;eemed to him, that he was in a new world, or other Common-wealth: thereupon they threatned to impri&s;on him, if he &s;pake one word more to the di&s;grace of the <HI>Commi&s;sion.</HI></P>
<P>Wherefore he held it &s;trong, in his opinion (becau&s;e his Maje&s;ties Commi&s;&s;ion, which they terme <HI>High,</HI> is, by the true intent of the &s;tatute, only a <HI>Commi&s;sion executorie,</HI> but for &s;o long time onely as &s;hall plea&s;e the King, and is no &s;ettled court of continuance for ever, as they would have it, comparing the authoritie thereof with the <HI>Kings bench,</HI> and preferring it above it) that, in all the parts and points above rehear&s;ed, the <HI>Commi&s;sion</HI> is not of force in law, nor warranted by law, except &s;ome Act of Parlia|ment doe give it life.</P>
<P>And now touching the la&s;t and principall part of his divi&s;ion, <HI>viz.</HI> that no Act of Parliament doth give life to the <HI>Commi&s;sion Eccle&s;ia&s;ticall,</HI> in the parts above mentio|ned, it is to be noted, that the Commi&s;&s;ion is founded only upon the &s;tatute of an. 1. <HI>Eliz. cap.</HI> 1. and that this Act of an. 1. <HI>Eliz.</HI> neither doth, nor can give life to this Com|mi&s;&s;ion, by any right con&s;truction, in the&s;e parts above rehear&s;ed, but contrariwi&s;e doth expre&s;ly aboli&s;h their Juri&s;diction to impri&s;on &s;ubjects, fyne them, and force them to accu&s;e them&s;elves, as repugnant to the <HI>Ancient Eccle&s;ia&s;ticall Juri&s;diction,</HI> which, by this Act, is re&s;tored to the Crowne: and hee hoped to make that point &s;o plaine and apparant to all the hearers, that would atten|tively
<PB N="24" REF="16">regard, it as that they might be fully &s;atisfied ther|in. For, be&s;ides the <HI>Booke Ca&s;es,</HI> which he meant to put, in that point, to prove his a&s;&s;ertion, he &s;aid, that the title in the <HI>Act</HI> of <HI>an.</HI> 1. <HI>Eliz.</HI> the preamble of the Act, and the mat|ter preceding the preamble in that Act, and the body of that Act, which giveth power to the Commi&s;&s;ioners to execute the premi&s;&s;es (by colour wherof they challenge this great power to impri&s;on &s;ubjects, &amp;c.) doe all con|curre, by their being rightly applyed, to condemne and overthrow the&s;e points of the Commi&s;&s;ion Eccle&s;ia&s;ti|call, before &s;poken of and rehear&s;ed by him, as unlawfull, and unju&s;t.</P>
<P>The title is, <HI>an Act, re&s;toring to the Crowne the auncient Iuri&s;diction over the Eccle&s;ia&s;ticall and &s;pirituall e&s;tate, and abo|li&s;hing all forren Iuri&s;diction, repugnant to the &s;ame.</HI> What the ancient Iuri&s;diction over the Eccle&s;ia&s;ticall and &s;pirituall e&s;tate is, he hath &s;ufficiently before declared, and proved it to be that Eccle&s;ia&s;ticall juri&s;diction (viz. <HI>Keyes</HI> or <HI>cen|&s;ures of the Church</HI>) which was lawfully u&s;ed in England, before the &s;tatute of 2. <HI>Hen.</HI> 4. the uttermo&s;t whereof was, to locke men out of the Church by <HI>excommanication,</HI> ter|med, <HI>the keyes of the Church.</HI> Which &s;tatute fir&s;t gave po|wer to the Ordinaries, to impri&s;on &s;ubjects, to fine them, and force them to accu&s;e them&s;elves by their own oathes, which was ever hatefull to the &s;ubjects of England.</P>
<P>And to prove plainely, that this Parliament of an. 1. <HI>Eliz</HI> meant to aboli&s;h that power to impri&s;on &s;ubjects, &amp; force them to accu&s;e them&s;elves, the matter precedent before the preamble doth fully prove; for that, in this ve|ry &s;tatute of an. 1. <HI>Eliz.</HI> the lawmakers, as wi&s;e farmers of a Common-wealth, before they goe about to annexe the ancient right Eccle&s;ia&s;ticall Iuri&s;diction to the Crowne,
<PB N="25" REF="16">doe by expre&s;&s;e words, at the reque&s;t of the &s;ubjects, e&s;t a|bli&s;h and inact, that the &s;tatute of 5. <HI>Rich.</HI> 2. <HI>cap.</HI> 5. and 2. <HI>H.</HI> 4. <HI>cap.</HI> 15. (which did give authority to the Ordinaries to impri&s;on, fine, and force the &s;ubjects to accu&s;e them&s;elves, as above) <HI>and all and every branches, articles, clau&s;es, and &s;en|tences contained in the &s;aid &s;everall &s;tatutes, and every of them, &s;hould, from the la&s;t day of that Parliament, be utterly repealed, voyd, and of none effect, any thing in the &s;ayd &s;everall Acts, or any of them, contained, or any other matter or cau&s;e to the con|trary notwith&s;tanding.</HI> So as the impri&s;onment of the &s;ub|jects, fining of them, and forcing of them to accu&s;e them|&s;elves, being the matters, branches, and articles of tho&s;e &s;tatutes, how&s;oever they came into the power of the Cler|gie of England, by the&s;e &s;tatutes or otherwi&s;e, being thought, by the Parliament, to bee repugnant to the an|cient Juri&s;diction Eccle&s;ia&s;ticall (as <HI>revera</HI> they are being a temporall &s;word) were repealed and made voyd by ex|pre&s;&s;e words of this &s;tatute of <HI>anno</HI> 1. <HI>Eliz.</HI> as repugnant to the ancient <HI>Spirituall Juri&s;diction.</HI></P>
<P>And to make the meaning of the law-makers more apparant, that they allowed not, that any offences &s;hould be tried by the parties owne oath, but by witne&s;&s;es; as in the beginning of this &s;tatute of <HI>an.</HI> 1. <HI>Eliz. ca.</HI> 1. it doth abo|li&s;h the oath <HI>Ex officio,</HI> by making voyd the &s;tatute of 2 <HI>H.</HI> 4. <HI>cap.</HI> 15. which fir&s;t gave life to that kind of proceeding; &s;o in the end of the &s;aid &s;tatute it addeth this clau&s;e, <HI>And be it further inacted by the authoritie afore&s;aid, that no per&s;on, or per&s;ons, &s;halbe hereafter indited, or arraigned for any the of|fences, made, or deined, revived or adjudged by this Act, unle&s;&s;e there be two &s;ufficient witne&s;&s;es, or more, to te&s;tifie and declare the &s;aid offence, whereof he &s;halbe indited, &amp;c. and the &s;ame wit|ne&s;&s;es, or &s;o many of them as &s;halbe living, and within the Realm,
<PB N="26" REF="17">at the time of the arraignement of &s;uch per&s;ons &s;o indited, &s;hall be brought forth in per&s;on, face to face, before the partie &s;o ar|raigned and there &s;hall te&s;tifie &amp; declare what they can, again&s;t the party &s;o arraigned, if he require the &s;ame.</HI></P>
<P>By which words fith it is plaine, that no offence, or|dained or revived by that &s;tatute, &s;hould receive triall, but by two witne&s;&s;es brought face to face; that they ment not to give power, by any <HI>Commi&s;sion</HI> grounded upon that &s;tatute, to have the offences of the &s;ubjects (which touch &s;o deepe as <HI>Premunire, abjuration,</HI> and <HI>forfeiture of lands and goods</HI>) &s;hould be tried by the parties owne for|ced oath, again&s;t his will, without any witne&s;&s;e or accu&s;er, as this Commi&s;&s;ion limits; and yet it is pretended to bee grounded upon this &s;tatute. And therefore it were a mo&s;t violent con&s;truction, and ab&s;urd, that the generall words in this &s;tatute, <HI>viz. to execute the premi&s;&s;es according to the te|nor and effect of the Letters Patents,</HI> &s;hould revive that by an intendment, which was, by &s;o plaine words of all the a&s;|&s;embly in Parliament, revoked and aboli&s;hed, as a mo&s;t hatefull thing to the &s;ubjects of England, and of which they meant to purge the Church &amp; Eccle&s;ia&s;ticall govern|ment. For that were to make one part of the &s;tatute con|trary to the other, and to con&s;true the words of the law, indefinitely &s;et downe, directly again&s;t the meaning of the law makers plainly expre&s;&s;ed by words; which Jud|ges never did, nor, as he hoped, ever would doe.</P>
<P>And the title and preamble of the &s;tatute doe further re&s;traine the over-large con&s;truction of tho&s;e generall words, <HI>to execute the premi&s;&s;es:</HI> becau&s;e the premi&s;&s;es, be|ing the ancient juri&s;diction Eccle&s;ia&s;ticall and &s;pirituall, purged from that temporal Juri&s;diction, as above, is meant to be re&s;tored onely over the Eccle&s;ia&s;ticall and &s;pirituall
<PB N="27" REF="17">e&s;tate, and not over all the &s;ubjects of the Realme; and be|cau&s;e, in the preamble, the Commi&s;&s;ioners, who are to be named, are inabled, touching Eccle&s;ia&s;ticall or &s;pirituall Juri&s;diction only, to <HI>reforme, correct, and amend all &s;uch here|&s;ies, errors, &s;chi&s;mes; contempts, &amp;c. which by any &s;pirituall or Eccle&s;ia&s;ticall power, authority, or Iuri&s;diction, might lawfully be reformed,</HI> and not all abu&s;es of the Common-wealth mentioned in their Commi&s;&s;ion, or any abu&s;e not proper to the Eccle&s;ia&s;ticall or &s;pirituall Juri&s;diction, whereof there are many named in their Commi&s;&s;ion, which are temporall Juri&s;dictions, <HI>viz.</HI> to impri&s;on and fine &s;ubjects, and to execute lawes upon them; for that the &s;pirituall law &s;hould not meddle with that, for which there was re|medie by common law, as is 22. <HI>Edw.</HI> 4 <HI>fol.</HI> 20. and the &s;ta|tute of 24. <HI>Edw.</HI> 1. <HI>cap.</HI> 1.</P>
<P>And to prove, that the titles and preambles of other &s;tatutes doe many times, in con&s;truction of &s;tatutes, re|&s;traine the generall words of the &s;ame &s;tatutes following, he put the ca&s;e upon the &s;tatute of perjurie, <HI>anno</HI> 5. <HI>Eliz.</HI> where the words of the &s;tatute are, that <HI>every per&s;on and per&s;ons who &s;hall commit voluntarie and corrupt perjurie, &s;hall forfeit twentie pounds.</HI> And becau&s;e the preamble and matter precedent touched witne&s;&s;es only, therefore that penaltie is re&s;trained, by con&s;truction, to charge witne&s;|&s;es onely therewith, and not &s;uch per&s;ons as &s;hall commit voluntary and corrupt perjurie, in their owne ca&s;es. And &s;o upon the &s;tatute of 7. <HI>Edward</HI> 6. again&s;t <HI>Receivers, Bay|liffs,</HI> &amp;c. although the words of that &s;tatute extend gene|rally, to lay a penaltie of 6. &s;hillings 8. pence for every pe|ny that receivers &s;hall take unlawfully; yet becau&s;e the preamble of that &s;tatute touched only the Kings officers, It is, in con&s;truction, re&s;trained to take force again&s;t the
<PB N="28" REF="18">Kings officers onely, and again&s;t none other receivers, or Bayliffes.</P>
<P>And to conclude this point of the expo&s;ition of the words of the &s;tatute, hee did demand, why the expo&s;iti|on and con&s;truction of all &s;tatutes is left to the Judges of the law, but for this cau&s;e, for that they are, and alwayes have beene thought the mo&s;t carefull, judicious, and jea|lous pre&s;ervers of the lawes of England? And is it not ap|parant, that, to uphold the right of the lawes of England, the Judges in ages pa&s;t have advi&s;edly con&s;trued &s;ome words of divers &s;tatutes contrary to the common &s;ence of the words of the &s;tatute, to uphold the meaning of the common lawes of the Realme? as in the &s;tatute of 25. <HI>Ed.</HI> 3. where it is &s;aid, that, <HI>non tenure</HI> of parcell &s;hall abate the Writ but for parcell; yet if by the Writ an entier ma|nour be demanded, <HI>non tenure</HI> of parcell &s;hall abate the whole Writ. And where, by the &s;tatute of <HI>Marlbrig. ca.</HI> 4. it is prohibited, that no di&s;tre&s;&s;e &s;halbe driven out of the County where it is taken, yet, if one manour extend into two Counties, there the di&s;tre&s;&s;e may be driven from one Countie into another Countie. And, upon the &s;tatute of <HI>Prerogative,</HI> which toucheth the King, although the words be generall, that the King &s;hall have the cu&s;todie of all the lands of his tenant where part is holden in <HI>Capite,</HI> yet if part of the lands of his tenant doe de&s;cend to &s;eve|rall heires, on the part of the Father, and on the part of the Mother, there the King &s;hall not have all the lands of his tenant, during the minoritie of the heire; for that, in all the&s;e Ca&s;es, the great regard of the rule and right of the common lawes doth controll the generall or common &s;ence of the words of tho&s;e &s;tatutes.</P>
<P>And why then &s;hould this &s;tatute receive con&s;tru|ction,
<PB N="29" REF="18">by the Judges of the law, contrary to the rule of all other &s;tatutes, to this effect that by an intendment gathe|red out of the generall words of the Act, <HI>according to the tenour of the &s;aid Letters Patents,</HI> there might bee erected, in this common wealth of England, a cour&s;e of an arbitrarie government at the di&s;cretion of the Commi&s;&s;ioners, di|rectly contrary to the happy long continued government and cour&s;e of the common lawes of the Realme, and di|rectly contrary to <HI>Magna Charta:</HI> which if the &s;tatute of 24. <HI>Edw.</HI> 3. did &s;o highly regard, as to make voyd Acts of Parliament contrary to the &s;ame, it would, a <HI>&s;ortiori,</HI> make void all con&s;truction of &s;tatutes contrary to <HI>Magna Charta,</HI> which have no expre&s;&s;e words, but an intendment or con&s;truction of words, with much violence to be wre&s;ted to that end. And for &s;uch as would make &s;uch con&s;tructi|on of the &s;tatute, as that what&s;oever &s;hould bee contained in the Letters Patents &s;hould be as a law; he would have them remember, that the <HI>King</HI> may make new letters Pa|tents for the&s;e matters (Eccle&s;ia&s;ticall cau&s;es every day al|tering the &s;ame in the penalties and manner of procoe|ding) and that, if the letter of the &s;tatute &s;hould be peru|&s;ed, the King may change the Commi&s;&s;ioners every day, and make any per&s;ons Commi&s;&s;ioners, being naturall borne &s;ubjects to the King, although not borne in Eng|land: which were again&s;t the meaning of the Act; which meaning of the Act is the life of the Act, and not the let|ter of the Act.</P>
<P>And, be&s;ides tho&s;e former errors of the Commi&s;&s;ion before remembred, he &s;aid, that he did not &s;ee, how, by colour of the &s;tature of 1. <HI>Eliz.</HI> which gave power to the Commi&s;&s;ioners <HI>to execute the promi&s;&s;es</HI> contained in that Act, they &s;hould inlarge their Patent to enquire of <GAP DESC="illegible" REASON="blotted" EXTENT="1 word">
<PB N="30" REF="19">contrary to other &s;tatutes, made thirty or forty yeares, and more, after <HI>an.</HI> 1. <HI>Eliz.</HI> which then were not dreamed of, nor meant to be any part of the premi&s;&s;es contained in the &s;aid &s;tatute of <HI>anno.</HI> 1. <HI>Eliz.</HI> and of other civill and temporall things, for which if the <HI>Eccle&s;ia&s;ticall</HI> court had held plea, a <HI>prohibition</HI> did lye at the common law, accor|ding to the &s;tatute of 24. <HI>Edw.</HI> 1. <HI>cap</HI> 1. and 22. <HI>Ed.</HI> 4. <HI>fol.</HI> 20. and in 13. <HI>Hen.</HI> 7. <HI>fol.</HI> 39. <HI>Brooke</HI> and <HI>Fitzh. fol.</HI> 43.22. <HI>Hen.</HI> 8. becau&s;e, for the &s;ame things, redre&s;&s;e may bee had at the common lawes and in 7. <HI>Hen.</HI> 8. <HI>fol.</HI> 181. the <HI>Bi&s;hops</HI> of the <HI>Convocation</HI> hou&s;e, for medling again&s;t <HI>Doctor Standi&s;h</HI> for a temporall cau&s;e by him di&s;puted before the LL. of the Councell, were adjudged, by all the Judges, to be in dan|ger of <HI>Premunire.</HI> But it wilbe objected, that u&s;e is the be&s;t expo&s;itor of the &s;tatute: and then the continuance of this Commi&s;&s;ion, &s;ince the &s;tatute of 1. <HI>Eliz.</HI> being above 40. yeares, will prevaile much; to which he an&s;wered, that long u&s;e, in a &s;etled court, maketh it the law of the court; and the judgements in one Court are not examinable in every other Court, or in any, but in the proper Court, by <HI>Writ of error, fal&s;e judgement,</HI> or <HI>appeale:</HI> unle&s;&s;e the inferi|our Court meddle with that which is not within their po|wer; and then in many ca&s;es their judgement is <HI>coram non Judice,</HI> and &s;o voyd.</P>
<P>But this Eccle&s;ia&s;ticall Commi&s;&s;ion is but a <HI>Commi&s;sion executorie,</HI> by the intent of the &s;tatute of 1. <HI>Eliz.</HI> to continue &s;o long as &s;hould plea&s;e the Queene, or King, and no &s;et|led Court: and was meant at the fir&s;t (as he thought) to have continuance for a &s;hort time, to &s;trengthen the au|thoritie of the <HI>Bi&s;hops,</HI> again&s;t who&s;e Ordination and in|&s;tallment the Papi&s;ts did at the fir&s;t except. In which ca&s;es of things done by Co~mi&s;&s;ions, what&s;oever the Co~mi&s;&s;io|ners doe, it is <HI>examinable</HI> in every Court where it &s;hall
<PB N="31" REF="19">come in que&s;tion, at any time after; whether that they have per&s;ued their Co~mi&s;&s;ion or authority, in due forme or no. For their Decrees and &s;entences are not pleadable in law, as Judgements in Courts of Record are: and the many yeares u&s;e of the Commi&s;&s;ioners, e&s;pecially being Eccle&s;ia&s;ticall men for the mo&s;t part, who know not the lawes of the Realme, will give no inforcement to their proceeding if it be contrary to law.</P>
<P>But as in this Commi&s;&s;ion (touching cau&s;es of <HI>Pre|munire, Abjuration,</HI> and other Ca&s;es where the <HI>forfeiture of lands and goods</HI> doe en&s;ue) the Commi&s;&s;ioners Eccle&s;ia|&s;ticall &s;ay, they u&s;e not in the&s;e ca&s;es to force any &s;ubject to accu&s;e them&s;elves although the words of their Com|mi&s;&s;ion doe extend &s;o farre; becau&s;e they &s;ee it apparantly contrary to law and right: &s;o the Judges may &s;ay the like, that, in other ca&s;es of le&s;&s;e penaltie (to their knowledge) untill of late yeares, the Commi&s;&s;ioners u&s;ed not either to force any to accu&s;e them&s;elves, or to impri&s;on them for refu&s;ing &s;o to doe. And he did further an&s;wer, accor|ding to the learning and difference which is taken in 44. <HI>Edw.</HI> 3. <HI>fol.</HI> 17. that albeit the allowance in <HI>Oier</HI> of &s;ome Commi&s;&s;ion may be of great force to give &s;trength unto the &s;ame Commi&s;&s;ion, yet the allowance, or toleration in &s;ome other Court of &s;uch Commi&s;&s;ions many times (if it after appeare to be contrary to law) bindeth neither the right of the King, nor &s;ubjects, but that the Judges of the law may judge thereof according to law.</P>
<P>Upon all which matters hee did conclude, that al|though the Commi&s;&s;ion bee of force to execute <HI>the an|cient Juri&s;diction over the Eccle&s;ia&s;ticall and &s;pirituall e&s;tate;</HI> yet becau&s;e this Commi&s;&s;ion, and the proceedings of the Commi&s;&s;ioners, did much vary from the cour&s;e of
<PB N="32" REF="20">the old Common lawes of England, expre&s;&s;ed in the &s;ta|tute of 42. <HI>Ed.</HI> 3. <HI>cap.</HI> 3. and from the <HI>ancient Juri&s;diction Eccle&s;ia&s;ticall;</HI> for that no pretended cu&s;tome, again&s;t tho&s;e &s;tatutes which prohibite &s;uch kind of proceeding, can be of force, and e&s;pecially for that the Act of Parliament of 1. <HI>Eliz.</HI> did not give life or &s;trength to the &s;aid Commi&s;&s;i|on, in tho&s;e parts &s;o varying, but the contrary: therefore he did hold the proceeding of the Eccle&s;ia&s;ticall Com|mi&s;&s;ioners again&s;t the &s;ubjects, by force of the &s;aid Com|mi&s;&s;ion, in the&s;e points, to be voyd, and erroneous, accor|ding to the words of the &s;aid &s;tatute 42. <HI>Edw.</HI> 3. and did humbly pray, that his <HI>Clients</HI> may bee di&s;|charged from their <HI>Impri&s;onment,</HI> and the &s;ubjects freed from &s;uch <HI>erroneous pro|ceedings,</HI> too too heavie and burden&s;ome to them.</P>
<TRAILER>FINIS.</TRAILER>
<EPIGRAPH>
<Q><BIBL><HI>Lev. 19.15.</HI></BIBL>
<P>Ye &s;hall not doe unju&s;tly in judgement. Thou &s;halt not favour the per&s;on of the poore, nor honour the per&s;on of the mightie; but thou &s;halt judge thy neighbour ju&s;tly.</P></Q>
</EPIGRAPH>
<EPIGRAPH>
<Q><BIBL><HI>Deut. 1.17.</HI></BIBL>
<P>Ye &s;hall have no re&s;pect of per&s;on in judgement, but &s;hall heare the &s;mall, as well as the great: ye &s;hall not feare the face of man; for the judgement is Gods.</P></Q>
</EPIGRAPH>
<PB REF="20">
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
