Linguistic DNA - Concept Modelling Demonstrator

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	common_a	judge_n	law_n	3,008	5	4.7677	4	false

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A01338	The argument of Master Nicholas Fuller, in the case of Thomas Lad, and Richard Maunsell, his clients Wherein it is plainely proved, that the Ecclesiasticall Commissioners haue no power, by vertue of their commission, to imprison, to put to the Oath ex officio, or to fine any of his Maiesties subiects.	Fuller, Nicholas, 1543-1620.	1607 (1607)	STC 11460; ESTC S102744	22,550	38

en ces paroles Ordone est en cest ê‘lement qÌ„ Comissions du Roy soient directes a viscountes et autres ministres du roy ou autres suffisantz persons apreset selon que les certificates des prelates eut affaire in chancellerie du temps en tempÌ„s touts tiels precheurs câ—lour fautours mamtenours etc. La quel ne fuit unque assente ne grante ê‘ les Comens mes ce qÌ„ fuit parle de ce fuit sans assent de lour qÌ„ celi estatue soit anâ—a ati car il nestoit mi lour entent iustisiez ne obliger lour ne lour successorers as Prelates plus qÌ„ lour auncesstres nont este en temps passez Resp Il plest au Râ—â— And it is also reported by M. Fox in the sayd booke of Acts and Monuments that the same Act of 2. Hen. 4. ca. 1â— was procured without assent of the Commons and that the Commons did greatly repyne at it froÌ„ time to time many godly men writyng against it some of them terming it a bloodie law and a cruell law And because the Prelats out of the wordes of that law which gaue them power to imprison some suspected of heresie untill they should canonically purg themselues did streinedly force subjectes without any accuser to accuse themselues therfore the title of that Act is sett downe in the booke of Acts Monuments the statute Ex officio at which time it was not commonly used to giue titles to Acts of Parliament And to shew how much the subjectes misliked that kind of proceeding appeareth by severall Petitions of the subjectes to the Kings of the Realme and to the house of Parliament by the statute of 25. Hen. 8. cap. 14. by which statute it is sayd that the proceeding by the oath Ex officio to force a man to accuse himselfe is contrary to the rule of right and good equity and contrary to the lawes of England and unreasonable that upon suspition conceaved upon the fantasye of the Ordinaries men should be forced to answer c. And therefore they then revoked and made voyd the statute of 2. Hen. 4. cap 15. And to proue that according to the opinion of that Parliament house the oath Ex officio is against the lawes of England both Ecclesiasticall temporall and against the rule of Iustice and good equitie he sayd that by the lawes of England if a subject had been cyted by the Ordinary or Ecclesiasticall Iudge pro salute aiÌ„ae which is the oath Ex officio to accuse himselfe a Prohibition did lye at the coÌ„mon law and an attachment against the Ordinary if he did proceed in that case contrary to that prohibition as appeareth in Eliz. H. fol. 42. and the statute of 2. H. ã€ˆâ€¦ã€‰ made soone after the sayd statute of 2. Hen. 4. giving warrant to graunt a prohibition to the Ordinary for default of a libell doth crosse the proceeding by oath Ex offiâ—iâ— where he is forced to a libell as appeareth 4. â—d 4. fol. 3â— and Fitz. H. fol. 43. etc. And by the words of the statute of 42. Edw. 3. cap. 3. which was made before those statutes procured by the Prelates when Ordinaries had no power to imprison subjectes it is expressed in what manner the proceeding should be against subjectes upon accusations thus viz. It is assented accorded for the good governement of the Commons that no man be put to answer without presentment before Iustices or thing of Record by due proces and writt originall according to the ould law of the land And if any thing be done from henceforth to the contrary it shal be voyd in law holden for error wherin it is worthy the nothing that it is sayd according to the old lawes of England And to proue the old law of England to be so the ordinary case of dayly experience touching the challenge of Iurors doth sufficiently declare For if the Iuror be challenged for kindred to either of the parties or for waÌ„t of freehould the Iuror shall answer upon his oath to cleare that matter because it toucheth not the Iuror in losse or credit but if the challenge doe tend to touch the Iuror any way in his credit or his losse he shal not be forced upon his oath to answer although his answer might tend to further Iustice quia nemo tenetur prodere sâ—ipsum as is ruled 49. Edw. 3. fol. 2. And the case of wager of law which is allowed to the defendant in no criminall case which might bring imprisonment to the partie by the course of the common law as in trespas c but onely in debt and detinewe and the statute of Magna Charta ã€ˆâ—Šã€‰ 28. inacting that no Bailife shall put a man to his open law nor to an oath upon his owne bare saying without faithfull witnesses brought in for the same toÌ„doth to like effect and S. Edward Cooke in his argument made in Slades Case sayd well that in criminall causes iuramentuÌ„ in propria causa est inventio diaboli ad detrudendum animas miserorum in infernum according to whose saying it appeareth that when those oathes were used by the parties accused by the border lawes between England Scotland those oathes did bring no furtherance to the truth but manifest perjury every day as was confessed by all that knewe the practise there and therefore that manner of triall was soone rejected And to proue it against Iustice and good equity he sayd that this oath Ex officio to force a man in a criminall cause to accuse himselfe was he thought directly against the rule of the law of God For it is sayd in Deut. cap. 19. 15. that one witnes shall not arise against a man for any trespas or for any sin or for any fault that he offeÌ„deth in but at the mouth of two witnesses or .3 witnesses shall the matter be established Which rule is confirmed under the Gospell as appeareth Math 18.16 2. Cor. 13.1 where it is sayd In the mouth of two or three witnesses shall every word stand and Christ sayd to the woman accused of adultery where be thine accusers c. But without any witnes or accuser to establish the matter upon the inforced oath of the partie hath no coherence with the rule of Gods law which should be a direction to all Christian Princes in making of their lawes we being now the people of God the Iewes being cut of the Iudgments being now the iudgments of God and not of men alone But here may be objected that by the lawes of England one witnes is sufficient to which he answered that the Iurors being all sworne to trie the particuler matter in fact wherewith the party defendant is charged may well supplie the want of one witnes being 12 persons in different without any affinitie to either partie who better knowe the witnesses then the Iudge and may perhaps know the cause in question aswell as the witnes which kinde of triall is so

cloath in London to I. S. with a Fee to be receaved for the same measuring and although the office tend to further commutatiue Iustice whereof the power is in the King for weight and measure yet because this fee did tend to charge the subject without his assent it was adjudged by the learned Iudges upon long debate to be voyd and the case of Protection 39. Hen. 6. fol. 39. where the King did grant a protection to A. B. his servant quia prosecturus for a voyage to Rome for service of the King and Common wealth for weightie causes to continue for three yeares and yet it was disallowed by the Iudges because it was for three yeares where by the rules of the law it should be but for one because there was no exceptioÌ„ of dower Assise and quare impedit which by law should haue been excepted and that protection did not barr the subjects right but only delayed his suite And in 3. Edw. 3 14. Nort. Assise 445. com fol. 48. the King did pardon I.S. the making of a bridge and because the subjectes had interest in the passage over that bridge the Kings pardon was not sufficient to discharge I. S. froÌ„ the making therof In the case of 42. Ass 5. a Commission from the King under the great seale of England was directed to A. and B. to take I. S. and him imprison in the Castle of P. and to take his goodes which was done accordingly by the CoÌ„missioners and because it was done without any inditment or due course of law the proceedings of the same Commissioners were adjudged voyd The like case was 42. Ass p. 12. Where upon the Kings writt directed to the Iustices of laborers I.S. was indited for some thing not perteyning to the Iustices of laborers and therfore adjudged voyd they having no CoÌ„mission so to doe For although the Sheriffe or officer cannot judge of the Kings writt but must execute it yet the Iudge may refuse to execute the same writt when it is against law or impossible to be done according to 1. Edw. 3. fol. 26. and in the 1. 2. Eliz. Scrogges his Case where a CoÌ„mission was awarded to some Iudges and persons of credit to heare the cause concerning the Office of exigent of London which Scrogges did challenge if Scrogges refused to submit himselfe to their order to commit him to prison upon which Commission Scrogges was coÌ„mitted to prison and he was discharged by the Iudges of his imprisonment by writt of habeas corpus because his imprisonment was not lawfull which writs of habeas corpus are usually graunted in the sayd Courts of Kings bench and Common pleas thereby to releeue the subjectes which are many times in other Courtes and by some Commissioners unlawfully imprisoned yea many times although the Commissions be grounded upon Acts of ParliameÌ„t as the Commission of Sewers the Commission of Banckrupts and the Ecclessiasticall Commission and many times they graunt Prohibitions to the Ecclesiasticall Court to the Admirall Court and to the Court of Requests and other inferior Courts when they exceed their authority And many other Cases he would haue put to proue those poynts but that in a former argumeÌ„t made by him in the court of Kings bench against Monopolie Patents of M. Darcie Mich. 44. Eliz. all the Iudges then seemed to yeeld the same to the law without any doubt as he conceived which high inheritance of the law the Common wealth hath alwayes so preserved as without Act of Parliament it cannot be changed as appeareth by the answer of the Barons when the Bishops sought to haue the law changed touching children borne before mariage although the mariage after ensued to be held as bastards the LL. sayd Nolumus leges Angliae mutari and as is apparant by booke cases where it is adjudged that the King by a non obstante may dispence with a statute law but not with the coÌ„mon law nor alter the same as is adjudged 49. Ass p. 8. and Bosoms Case nor put the subjectes from their inheritance of the law as is 8. Hen. 4. fol. 19. which was alwayes accompted one of the great blessings of this land to haue the law the meat-yeard the Iudges the measurers For in all well governed Common wealthes Religion and Iustice are the two principall pillars wherein the power of God appeareth and many times weake weomen doe rule and command many thousand strong men touching their liues lands and goods without resistance which the loue and regard of Iustice procureth For the better proofe of the fourth part he did reade verbatim the partes of the Ecclesiasticall Commission which he thought to be against the lawes of England and liberties of the subjects remembring first to marke and consider how whereas the whole drift of the Act of Parliament 1. Eliz cap. 1. was to restore to the Crowne the auncient iurisdiction over the Ecclesiasticall spirituall estate and for that purpose did giue power to the Ecclesiastical CoÌ„missioners to execute the premisses in the sayd Act conteyned for the correcting and amending and reforming of such heresies errors schismes contempts and enormityes as by the Ecclesiasticall lawes might lawfully be reformed according to the tenour and effect of the sayd Letters Patents this CommissioÌ„ is since enlarged and how it giveth power to the Commissioners to enquire not onely of the permisses mentioned in the statute of 1. Eliz. cap. 1. but also of all offences and contemps against the statute of 1. Eliz. cap. 2. intituled an Act for uniformitie of Common prayer and service of the Church and administration of the sacraments and of all offences and contempts against these statuts following which were all made since anno 1. Eliz. viz. the statute of 5. Eliz ca 1. intituled an Act for the assurance of the Queenes Maiesties power over all states and subiectes within her dominions the statute of 13 Eliz cap 12. intituled an Act to reforme certayne disorders touching the Ministers of the Church the statute of 35. Eliz cap 1. intituled an Act to reteyne her maiesties subiects in their due obedience the statute of 35 Eliz. cap 2. intituled an Act to restreyne some Popish recusant to some certeyne places of aboad the statute of anno 1. Iacobi intituled an Act for the due execution of the statutes against Iesuits Seminaries priests recusants c. Also power is given to the CoÌ„missioners or any three or more of them not only upon these penall lawes and upon every offence therein conteyned but also upon all seditious bookes contempts conspiracies private conventicles false rumors or tales seditious misbehaviours and many other civill offences particulerly named in the letters pattens to call before them all and every offendor in any of the premisses and all such as by them or any three or more of them shall seeme to be suspected persons in any of the premisses and every of them to examine upon their corporall oathes touching every or any

the King shall doe his servant he is Pag. 15. line 12. condemned for what cause so ever Pag. 18. line 2. We will not haue the lawes of England to be changed Gentle Reader in pag. 29. line 21. there is gone purused for pursued the which I pray thee to amend THE ARGVMENT OF MASTER NICHOLAS FVLLER IN THE CASE OF THOmas Lad and Richard Maunsell his clients Wherein it is plainely proved that the Ecclesiasticall Commisioners haue no power by vertue of their Commission to Imprison to put to the oth Ex Officio or to fine any of his Maiesties Subiects THE CASE THomas Lad a marchant of Yarmouth in Norfolke was brought before the Chauncellor of Norwich for a supposed Conventicle because that he on the Sabbath dayes after the Sermons ended sojourning in the house of M. Iackler in Yarmouth who was late Preacher of Yarmouth joyned with him in repeating of the substance and heads of the sermons that day made in the Church at which Thomas Lad was usually present and was forced upon his oath to answer certaine articles touching that meeting which he could not see untill he was sworne and having answered vpon his oath twice before the Chauncelor there he was brought to Lambeth before the Ecclesiasticall Commissioners to make a further answer upon a newe oath touching the supposed Conventicle which he refused to doe without sight of his former answers because he was charged with perjury and therefore was imprisoned by the Commissioners a long time could not be bayled whereupon the writt of Habeas Corpus was granted out of the Kings bench to bring the prisoner to the Barr. Richard Maunsell the other prisoner being a Preacher was charged to haue been a partaker in a Petition exhibited to the Nether house of the Parliament and for refusing to take the Oth ex officio to answer to certayne articles which he could not be permitted to see he was imprisoned by the CoÌ„missioners at Lambeth where he remayned very long and could not be bayled and was brought to the barr upon the writt of habeas Corpus These imprisonments of Thomas Lad and Richard Maunsell by the CoÌ„missioners for the supposed contempts aforesayd were unlawfull as the said Nicholas Fuller said and therefore he sayd that the prisoners ought to be discharged And before he began his Argument he the sayd Nicholas Fuller did confesse that it was a blessed thing in all kingdomes to haue the Church and Common wealth to agree together as Hippocrates twinnes And the meanes to continue a perfect agreement betweene them was as he sayd to giue to Caesar that which is Caesars and to God that which is Gods Which right distribution of the Iurisdiction of the Church in England and Iurisdiction of the Common lawes in England sett forth and proved upon good groundes of the auncient lawes and statutes of the Realme would as he thought coÌ„tinue a peace between the Church and Common wealth of England for ever which he desired from his heart and it was his labour to effect by this his Argument Wherin for the better understanding of his purpose and drift of his Argument he did devide the same into 5. partes 1 And first because the Ecclesiasticall CoÌ„mission is grouÌ„ded upon the Statute of Anno 1. Eliz. cap. 1. the title and intent of which statute is the restoring to the Crowne the auncient Iurisdiction over the Ecclisiasticall spirituall office and the abolishing of all forreyne Iurisdiction repugnant to the same he declared what that auncient spirituall Iurisdiction was which was ment in that Act to be restored and by the CoÌ„missioners to be executed and therein he proved that the power to imprison subjects to fine them or to force them to accuse themselues upon their owne enforced oathes there being no accuser knowne was no parte of the auncient Ecclesiasticall jurisdiction nor used in England by any spirituall Iurisdiction before the Statute of 2. Hen. 4. cap. 15. which was procured by the Popish Prelats 2 That the Statute of 2. Hen. 4. cap. 15. which first gaue authority to the Bishopps to imprison subjects fine theÌ„ and force them to accuse themselues was procured by the Popish Prelates in the time of darknes if not without a full consent of the CoÌ„mons yet to their great mislike and that the sayd Statute and every thing in the same conteyned is revoked as being against the rule of equitie and common justice and against the lawes of the laÌ„d and very hatefull to all the subjectes of the Realme and in that 2. parte he proved according to the words of the statute that the Oath ex officio was against the law of England and against the rule of equitie and Iustice 3 That the lawes of England are the high inheritance of the Realme by which both the King and the subjects are directed And that such grants Charters and Commissions as tend to charge the body lands or goods of the subjects otherwise then according to the due course of the lawes of the Realme are not lawfull or of force unles the same Charters and Commissions doe receaue life and strength from some Act of Parliament 4 That in this Commission Ecclesiasticall there are some thinges tending to charge the body lands goods of the subjects otherwise then according to the course of the lawes of the Realme and especially in imprisoning them fyning them and forcing theÌ„ to accuse themselues upon their owne oath without any accuser 5. That the Act of Parliament of Anno. 1. Elizab. cap. 1. whereupon the Ecclesiasticall Commission is founded doth not giue life or strength to such partes of the Commission as concerne imprisonment of subjectes fyning them or forcing them to accuse themselues but doth make voyd and abolish the same as repugnant to the ancient Ecclesiastical jurisdiction which by the Statute was to be restored And so he sayd that the imprisonment of his clients was unlawfull the proceeding of the Commissioners upon the Oath ex officio without an accuser not warranted by law but erroneous and voyd Touching the first parte of the division which was to proue that before the statute of 2. Hen. 4. cap. 15. the Ordinaries had no power to imprison the subjects or to fine them it appeareth both by the preamble of that Statute where it is declared that before that time they could not by their spirituall Iurisdiction without ayd of the Royal Majestie sufficiently correct perverse people who did contemne their spirituall jurisdiction and Keyes of the Church which was at the uttermost to locke them out of the Church by Excomunication and also by the booke case of 10. Hen. 7. arguing upon that poynt of the same statute where it is set forth that the Ordinaries before the Statute of 2. Hen. 4. had no power to imprison subiects but the Keyes of the Church and the like is also confessed by the Statute of 1. and 2. of Philip and Mary which was made after the former Statute of

behouefull for the subjectes as it may prevent much wrong and oppression from high authoritie if the Iurors be iust faithfull persons as they ought to be and their verdit also may be redressed by attaint if they should doe wrong therein which writts of attaint and error are parte of the subjectes inheritance Also this oath Ex officio hath no coherence with the law of nature For as Aristotle saith natura est conservatrix sui as is sayd in 40. Edw 3. fol. 2 but this tendeth to a mans owne overthrowe it hath no coherence with the lawes of Nations as he gathered by the writing of Traiane the Emperour being a very wise just man who writing to Plinie the second his lievetenant of some Provinces in Asia minor for direction in his governement against those who at that time were opposite to his religion saith thus Sine authore certo propositi libelli nulli crimini locuÌ„ habere debent nam et pesâ—imi exempli nec nostri seculi est According to which direction Felix the governer of the Iewes under the Emperor when Paul the Apostle was brought before him sayd to Paul that he would heare him when his accusers were come holding it as unjust without an accuser to charge him And it is much worse then auricular confession because that is voluntary this by constreint that to be concealed this to be revealed to the parties shame that to induce pardon this to induce punishment to himselfe And where an oath should be the end of strife this oath Ex officio is often times the begining of strife yea it hath been so hatefull as some Martyrs haue written against it as a bloudie law and therefore not without just cause that the whole estate assembled in Parliament in an 25. Hen. 8. held it not to be agreeing with the rule of right and equity and to be contrary to the lawes of England and therfore revoked the sayd statute of 2. Hen. 4. and did therby limitt another forme of proceeding against persons accused or suspected thus viz. upon Inditement or two witnesses at the least according to Gods law with wordes of restreint not to proceed otherwise since which time no custome or colour of prescription in the Ecclesiasticall Courts can take place against that law to uphold the oth Ex officio in case of heresie And touching fines by the statute of Articuli cleri cap. 1. by the Register and by Fitzh Natura brev fo 51. 52. and by the statute of 15. Edw. 3. cap. 6. it is so shewed that by auncient Ecclesiasticall jurisdiction they ought not to set fines of mony upon subjectes unles it were upon coÌ„mutation of penaunce so as it need no further proofe of that matter The third matter which he endevored to proue was that the lawes of the kingdome of England and the manner of proceeding in cases of law and justice are setled in the Realme as parte of the inheritance of the subjectes and rightly termed by some Iudges in 10. Hen 6. fo 62. to be the most high inheritance of the Kingdome by which both King and subjects are guided that without lawes there would be nether King nor inheritance in England Which lawes by long continuance of time and good indeavor of many wise men are so fitted to this people and this people to them as it doth make a sweete harmony in the goverment all things being as readily obeyed on the one parte which are agreeing to law as they are willingly commanded on the other parte according to law every officer by the rule of the law knowing the duties of their places as Sheriffes Bayliffes Constables Coroners Eschetors c. the band of an oath both for goverment and obedience being mutually made on each parte For the lawes in a common wealth are like the sinewes in a naturall body by which the hand foote and other partes of the body doe readily moue by the direction of the head but if the hand or foote be forced aboue the strength of the sinewe it eyther taketh away the use of that parte or els it maketh it a weake or halting member so is it if the lawes be streyned against any part of the comon wealth aboue it right and naturall strength it will make that parte weake or halting and therefore it is excellently sayd in 8. Hen. 4. fol. 19. in the com fol. 236. and in the Case of Alton woodes that the law admeasureth the Kings prerogatiue so as it shall not extend to hurt the inheritance of the subjectes on the on parte and as Bracton saith nihil aliud potest rex in terris cum sit Dei minister et vicarius quam quod de iure potest quia illa potestas solius Dei est potestas autem iniuriae diaboli est et non Dei et cuius horum opera â—ecerit rex eius minister est And the law doth restrayne the liberall wordes of the Kings grant for the benefit both of the King and the subjects and to the great happines of the Realme especially when the Iudges are meÌ„ of courage fearing God as is to be proved by many Cases adjudged in these Courtes of Kings Bench and Common-Pleas which Courtes are the principall preservers of this high inheritance of the law whereof he rehearsed some few Cases on the parte of the King and on the part of the subjectes diverse Cases as in 45. Ass p. 15. where the King did grant to I.S. his heires the manour of Dale all the woodes and underwoods and Mynes within the sayd mannor yet Mynes of gold and silver did not passe and in the 22. Ass 40. the King did grant to I.S. the goods and chattells of persons with in Dale qualitercunque damnatorum yet the goodes of persons attainted of treason did not passe for the benefit of the King because the same are so annexed to the crowne as by no generall words they may passe froÌ„ the Crowne by the rule of law And of late yeares what great benefite hath growne to the Kings and Queenes of this Realme upon construction according to the rules of law of the Kings graunts the case of Alton woods the statute lately made for confirmation of Charters granted to the Citizens of London and the many cases preferred by Tipper his fellowes doe sufficiently proue And on the other side if any graunt or Commission from the King doth tend to charge the body landes or goods of the subjects unlawfully the Iudges will redresse the same For if the King graunt the lands or goods of I. S that is so manifestly against law as it needes no proofe But he said he would put such Cases as being grouÌ„ded upon prerogatiue haue a shew of good to the Common wealth and yet are not allowable because the tend to charge the subject without the assent of the subject as the Case 1â— Hen. 4. where the King did graunt an office of measuring of

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