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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A67871	A just vindication of the questioned part of the reading of Edward Bagshaw, Esq; an apprentice of the common law. Had in the Middle Temple Hall the 24th day of February, being Munday, anno Dom. 1639. upon the statute of 25 E.3. called, Statutum pro clero, from all scandalous aspersions whatsoever. With a true narrative of the cause of silencing the reader by the then Archbishop of Canterbury: with the arguments at large of those points in his reading, for which he was questioned at the Council-Board.	Bagshaw, Edward, d. 1662.	1660 (1660)	Wing B396; ESTC R208288	31,311	44

reason that upon the grievous complaint of the Commons 25 H. 8. cap. 14. That the cruel Statute of 2 H. 4. and a Proviso in the Act That men should not be questioned for Heresie for maintaining Opinions against the humane Laws and Policies of the Bishop of Rome but for Opinions that were contrary to Holy Scripture And accordingly was the resolution of the Judges Trin. 9. Jac. Rot. 2248. in a prohibition to the High Commission in Sir Henry Vinor Pellings Case That Heresie shall not be understood all that which the Canon-Law makes Heresie but that which is contrary to the Holy Scripture and the four first General Councels according to the Statute of 1 Eliz. cap. 1. And with this agreeth that true and ancient Definition of Heresie by old Grosted Bishop of Lincoln in H. 3. time Haeresis saith he in Greek is Electio in Latine Et est sententia humana sensu electa sacrae Scripturae contraria palam acta pertinaciter defensa Quest 2. The second Question and which fully decides the point of my Case is this Who shall be Judge in the conviction of an Heretick Whether the proper Diocesan according to the opinion of this Civilian and other Civilians agreeing with him or according to the opinion of Fitz Herbert it must be by the Convocation of the Clergy of the Province And I hold That the Bishop of the Diocess is not to be the onely Judge but that it must be done by the Convocation of the Clergy of the Province Which because of this opposition against me I will prove first by Reason secondly by Authority thirdly by Example 1. For the First The ancient Ecclesiastical Laws of England never gave further power to the Bishop or Ordinary but according to his Calling to proceed to Ecclesiastical Censure not to fine and imprison much less to kill or burn which are temporal acts not spiritual until this power was given them by the Statute of 2 H. 4. Onely I find that before this time a Bishop had a greater priviledge over a Clergy-man than over a Lay-man For by the Constitutions of Boniface Archbishop of Canterbury temp. H. 3. Lind. fol. 141. a Clergy-man might be imprisoned by his own Ordinary in two cases spiritual Fornication as Heresie and corporal Fornication as Incontinency as appears by that Constitution and the Statute of 1 H. 7. cap. 4. still in force But when as Heresie came to be punished with death the Law would not trust the Ordinary alone in such a case but referred it to the whole Province of the Clergy for these two Reasons 1. The power which the Law gave to the proper Ordinaries was that of the Master to the Servant or rather of the Husband to the Wife to admonish and correct not to kill and burn 2. For avoiding of partiality and ignorance which might be in one man but could not so easily be suspected to be in many and therefore the condemnation of an Heretick was done with great solemnity as the Writ supposeth N. bre 269. Thomas Archiepiscopus Cant. c. de consilio consen su omnium Coepiscoporum nec non totius Provinciae suae in concilio suo Provinciali congre gati c. 2. And according to these Reasons are in the second place the Authorities of Law Fitz Herberts Opinion fol. 269. D. the form of the Writ mentioning it to be done by the Clergy of the Province Neither is there any Writ to be found which gave the power to the Bishop alone It is the resolution in Cawdries Case 5. Rep. fol. 23. and 2 Mar. Little Brooke That the conviction of an Heretick must be by the Clergy in their Convocation for all the while the Statute of 2 H. 4. was in force this Writ was not used by reason of the Act for the Sheriff might by that Act meerly by the command of the Bishop without the Kings Writ burn Hereticks Which was for that reason taken away by the Statute of 25 H. 8. and afterward revived by 1 Mar. whereupon in her days two cruel Bishops Gardiner and Bonner did burn more Hereticks then were burned from H. 4. time till 1 Mar. And a very strange and lazie Reason is given by the Judges 2 Mar. Br●●●it Heresie why a Bishop should convict and burn an Heretick without a Writ Purcee q. fuit troublesom de appellex Convocation de tout l' Province Because it was troublesome to call a Convocation 3. I will prove it by the aptest Example which can be named viz. William Sawtree so named in the Writ who was burnt in the time of the Statute of 2 H. 4. and was the Protomartyr the first in England that was burnt for Heresie who was convicted by the whole Convocation of the Clergy as appears by the Writ Fitz. Nat. bre 269. and the Acts of the Church at that time This William Sawtree was of Pembrook-Hall in Cambridge which hath this Honour that Martyrum primus Martyrum doctissimus and Martyrum piissimus were all of Pembrook-Hall Martyrum primus was William Sawtree Martyrum doctissimus was Bishop Ridley Bishop of London and Martyrum piissimus was John Bradford Prebend of Pauls both burnt in Queen Maries days William Sawtree was Parson of St. Margarets in Lynne within Norwich Diocess The Bishop of Norwich quickly met with him before whom he did abjure and afterward relapsing upon the Certificate of his own Bishop he was by Thomas Arundel then Archbishop of Canterbury the framer and contriver of that Act of 2 H. 4. as I can prove and the whole Province of Canterbury convicted of Heresie And although the Statute of 2 H. 4. was made ere he was burnt yet the Prelates were fearfull to proceed according to the new form in that new Act but proceeded against him according to the ancient course of Law by conviction in the Convocation His notorious Heresies were these 1. That he would sooner worship a temporal King or any other man rather then a wooden Crossor Crucisix 2. That a Priest or Deacon was more bound to preach the Word of God then to say the Canonical hours 3. That after the words of Consecration the Bread was bread us it was before and not the Body of Christ The Objections against this my opinion by that learned Dr. of Law are two Authorities cited by him but no reason of them given at all Object The first is 10 H. 7. fol. 17. b. to prove that a Bishop may convict for Heresie before the Act of 2 H. 4. Answ. To which I answer There is no such thing but rather the contrary For that which is there said is onely the opinion of Frowick viz. That a Bishop may by the Statute arrest for Heresie whereas before he could but for that or any other Ecclesiastical matter send out onely a Citation Certainly if he could not arrest which is the less he could not condemn to the fire which is the greater Object That he heard in Queen

of the High Commission my fourth division which I shall after likewise mention and set down the Argument of it at large which puts me upon that Narrative of my silencing which I shall as briefly as I can perform and then conclude I Read three Lectures three several dayes being the 25. the 27. and the 29. of March without any interruption and with the approbation of the Students to whom I Read But on Saturday following being the 30 of March the Lord Keeper Finch sent to speak with me and in a very friendly manner told me what reports there were abroad touching the two former points above mentioned which I then related to him what they were and how consonant to Law for the manifestation whereof I told him I would give him the Arguments of both those points and attest them under my hand And presently went to my Chamber and brought him my Arguments to which I set my hand which after he had read he spake to me to this effect Mr. Reader I see you have been misreported and have had wrong and seeing you have dealt so freely and fairly with me I will do you right to the King and Council To whom that day he shewed the Notes I gave him which were examined by them and approved And that afternoon towards night the Lord Keeper sent for me again and told me That my Opinion concerning those two points were approved of by the King and Councel only his Majesty desired That I would declare my Opinion in one Question which was this Quest What if the King and Spiritual Lords with the Commons did pass an Act all the Temporal Lords disassenting or not being there whether this be a good Act of Parliament Answ. I told him That it was and the Votes of the Temporal Lords were included in the Votes of the Spiritual Why then Mr. Reader said he you have given full satisfaction And I am commanded to tell you That you may go on in your Reading Whereupon I went home and prepared to read on Monday following upon the fifth Case of my fourth Division But this Case was likewise carried to the Archbishop in which there was this Point wherein I held That a Beneficed Clark Imprisoned Deprived and Excommunicated by the High Commission for enormous offences not naming the particular offence that this Clark notwithstanding was such a possessor of a Church as might Plead Counter-plead and Defend his Right within my Law This kind of learning being not within the Conusance of the Archbishop was so heightned to him by my misreporter that the same afternoon the King sitting in Council my Case was brought by the Archbishop to the Council Board and that point found in it and much complained of The Earl of Manchester being there and formerly a Reader of the Middle Temple and knows that it was the manner of Readers to lay the points of their Case so close that what seemed strange to the hearers when the Readers came to argue he made those things so clear that usually the Reader came off well and then told the King That he thought I grounded my point upon a Case in Law in the 5 Report fol. 57 where one Spewit brought a Q. Imp. against the Bishop of Exceter for refusing his Clerk to which the Bishop pleaded that he was Schismaticus inveteratus not naming the particular Schism this was held by the Judges no good Plea And thereupon Judgment was given against the Bishop for the Plaintiff who thereupon had his Clerk admitted And because Readers were accountable to their Governours the Masters of the Bench and if they did amiss would severely punish them he advised that no such thing might be done to a Reader as to silence him from Reading and thereby make a great noise and disturbance but to let him go on and if he did amiss then to think of punishing him afterward and to this the King and Council assented But the Archbishop fearing I would fall foul upon the High Commission which I never intended but in as fair and good terms as I could deliver the Law as will appear by my Argument of that point which I have likewise hereunto annexed as I have done the rest made it his most earnest suit to the King That I might be suspended from Reading who at the rising of the Board willed my Lord Keeper to tell me from him That I should desist which the Lord Keeper did the same day But withal advising me as from himself to go to the Archbishop and give him satisfaction After this Speech with the Lord Keeper I returned home and acquainted my Masters of the Bench with the Kings pleasure who the next morning went to the Lord Keeper who confirming the same I was by them advised to desist from Reading And whereas the Historian saith That after the Reader had been twice at Lambeth without admittance the third time he spake with the Archbishop Herein it a great mistake and not without some wrong both to the Archbishop and me which I shall thus make appear Readers of Law during the time of their Reading do hold up the ancient honour and dignity of a Reader on whom for that time is devolved the Government of the House They have four Cubbard men ancient Barresters of the House to attend them in their Reading and four Stewards to attend them in their Feasting for the Inviting their Guests of Noble Ranck and ten or twelve men of his own to attend his person In the maintenance of which dignity on Tuesday the fourth of March the natural course of my Reading not ending till Friday following I sent two of my men to the Archbishop to know his pleasure when I should wait on him he sent me word by Mr. Dell his Secretary on Thursday the 6 of March that he did appoint eight a Clock in the morning according to which hour I took with me Mr. Rog. Pepys late Chief Justice in Ireland the next Summer Reader and other my Cubbard men with my Servants and went with them in a Barge to Lambeth And so far was the Archbishop from making me dance attendance that as soon as the Archbishop had notice I was come he presently came out of his Chamber with his Hat off and met me in the great Chamber there and walked with me in that posture from thence almost to Lambeth Stairs The first Question he asked me was this Quest Mr. Reader Had you nothing else to do but to Read against the Clergy Answ. I answered My Lord my Statute was pro Clero and I read not at all against them but for them Well saith the Archbishop you shall answer it in the High Commission Court My answer was this That I knew the utmost power and Jurisdiction of that Court by Law and that I had neither spake or done any thing that that Court had Jurisdiction to punish Quest But had you no other time saith he to do it but in such a time Answ. My

those Cases of Heresie Schism and Incontinency Answ. 1. To which I answer first for 40 years the Law of the High Commission was not known to the Subject by reason the Letters Patents were not inrolled The first Inrollment of them was done in Chancellor Egertons time and by his command Answ. 2. it may be true that Fines were imposed by the High Commission for Adultery Fornication Usury c. But it appears upon search that in all Q. Elizabeths time none of these Fines were levyed upon any Judicial process out of the Exchequer Answ. 3. Many Writs of Habeas Corpus have been granted out of the Kings Courts out of those Cases of Heresie and Incontinency As Mic. 9 10 Eliz. Rot. 1556 Thomas Lee an Atturney of that Court was Imprisoned for hearing Mass a great Crime by the High Commission and delivered by Habeas Corpus by the Lord Dyer and the other Judges then living and present at the making of the Act because they had not authority to imprison For to what purpose was the Statute of 23 Eliz. c. 1 made for Fining and Imprisoning those that heard Mass and for 20. l. a month for absence from Church if the High Commission had power to Fine or Imprison in either of those cases So Mic. 18 19 Eliz. C. B. one Hinde was imprisoned by the High Commission for refusing to answer Articles upon Usury and delivered by Habeas Corpus by my Lord Dyer and the rest because that Court had no Jurisdiction in that Case so to do both which Cases are reported in the first Edition of my Lord Dyer though left out in the second Edition The like president of hearing Mass was Trin. 7 Jac. in Banco Regis in Warringtons Case Mic. 42 Eliz. Simpsons Case imprisoned by the High Commission for Adultery but resolved by the Judges That the High Commission could not imprison a Lay-man for Adultery but only proceed to Ecclesiastical Censure The like for Adultery was Pas. 8 Jac. Meltons Case 12 Jac. B. R. Bradstons Case adjudged that the High Commission could not by the Statute of 1 Eliz. upon orders for Alimony between husband and wife Fine and Imprison men 11 Jac. the like for Alimony in one Brocks Case a Herald at Armes I could vouch many more Presidents but these are sufficient I come therefore shortly to the third and fourth questions Quest 3. Whether the H. Commission ought not in their sentence to have expressed the particular offences and not to say in general enormous offences Ans. I think they ought or else their sentence is void And the reason is because it hath been resolved in that famous Case 3 Car. in the Habeas Corpus by Sr. Edmund Hampden and upon further debate in Parliament upon the Petition of Right that a general Cause is no Cause for an Imprisonment For it is requisite when men are fined deprived imprisoned and cast out of their Free-holds that the Judges of the Realm who have Conusans of such punishments should be certified of the particular cause that they may consult with Divines whether the offences be enormous or no And so is the resolution of the Judges in 5 rep. Specots Case f. 58. The general sentences of the Ecclesiastical Judges have in all ages been found fault with In 25 H. 8 c. 14. The Commons complained in Parliament That men were condemned upon the Stat. of 2 H. 4 c. 15 to be burnt for Heresie in general and not what Heresie and so was the Writ De Heretico comburendo without expression of any particular Heresie which was held to be a cruel and an unjust Law and therefore repealed by the said Act of 25 H. 8. l 5 Jac. Fullers Case of Grayes Inne who was imprisoned by the High Commission for Schism in general without saying what Schism and resolved upon the return in the Habeas Corpus that it was void and therefore they made a special return that he said The proceedings in the High Commission were Papistical The like Mic. 3. Jac. B. R. Berryes Case upon a Habeas Corpus the return was that he was committed by the H. Commission for certain causes Ecclesiastical This was adjudged to be naught and too general and then they make a second return That he was Committed for giving sawcy speeches to Dr. Newman which was likewise adjudged void as too general But our very question with which I will conclude was Mr. George Huntleys Case a Kentish Minister who was Fined Imprisoned and Deprived by the H. Commission for refusing to Preach a Visitation Sermon upon the command of the Archdeacon and the sentence was for grievous and enormous offences And upon an Ejectione firme brought by the said Huntley against Austin in the Kings Bench for his Parsonage All the Judges there upon a solemn debate and in my hearing adjudged the sentence to be void for the generality and incertainty Quest 4. Whether the Judges of the Realm or the Ecclesiastical Judges have the power and authority of Expounding enormous offences within the Stat. of 1 Eliz. c. 1. Ans. And I think it clearly belongs to the Temporal Judges as clearly as the Exposition of Texts of Scripture belong to Clergy-men as the now Attorney General told Harrison at his Inditement 13 Car. in the Kings Bench for calling Judge Hutton Traytor It is very true the Civilians grant this power to the Kings Judges for Expounding Statutes concerning Temporal things but deny it concerning Spiritual things This thing Dr. Ridley in his View of Civil and Ecclesiastical Law a book much cryed up amongst them takes upon him to prove but fails in it For the truth is only the Judges of the Common Law have this power And to prove it is to prove a Principle For from the beginning of Magna Charta to the end all the Statutes and Laws concerning the Clergy are expounded by the Judges Nay in 10 H. 7. f. 17. in the matter of Heresie the highest Ecclesiastical Cause the Judges do adjudge That the saying a man may pay his Tythes to other than his own Vicar contrary to the Decree of the Church by the Council of Lateran was not Heresie And therefore the imprisonment of the party for saying so was against Law So the Judges 2 R. 3. decided a point of the Civil Law by the Common Law And in the Parliament of 3 Car. in the Petition of Right concerning Ecclesiastical Liberty as well as Temporal it is acknowledged by the King That the Exposition of the Laws and Statutes of the Realm belongeth to the Kings Judges and to none else FINIS Nihil veritas crubescit nisi solummodò abscondi Julian Vid. Stat. of Carliel 25 E. 1 and Cawdryes Case 5. Rep. William Sanderson Esq. Part of the Speech Sir W. Raleigh Narrative Part of the Readers Speech in the Parliament Chamber in the Middle Temple May 15 following * Judge Nicoili Chief Birron Sanders Judge Morgan Judge Harvey An. Dom. 1296 Anno Dom. 1273. Stat de Marton cap. 9. 24 Ed. 1. Lamb P●●amb of Kent fol. 276. Chartim Stefhen Langhton Tem. Johan R. Const'tut Othobon Dr. Cosens Launcellot Vide Stat. 24 H. 8. c. 12. B. R. About 7 Car. Sir Jo. Banks