THomas Lad, a marchant of Yarmouth, in Norfolke, was brought before the Chauncellor of Norwich, for a supposed Conventicle; because that hee, 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 hee was sworne; and having ansvvered upon his oath tvvice before the Chauncelor there, he vvas brought to Lambeth before the Ecclesiasticall Commissioners, to make a further ansvver, upon a nevv oath, touching the supposed Con­venticle: vvhich he refused to doe, vvithout sight of his former ansvvers (because he vvas charged vvith perjury) and therefore vvas imprisoned by the Commissioners a long time, and could not be bayled; vvhereupon the vvrit of Habeas Corpus vvas granted out of the Kings bench, to bring the prisoner to the Bar.

Richard Maunsell, the other prisoner, being a Preacher, was charged to have been a partaker in a Petition exhibi­ted to the Commons house of Parliament: and for refu­sing to take the oath ex officio, to answer to certaine arti­cles, which he could not be permitted to see, he was im­prisoned by the Commissioners at Lambeth, where hee re­mayned very long, and could not be bayled, and was brought to the barr, upon the writ of habeas Corpus.

These imprisonments of Thomas Lad, and Richard Maunsel by the Commissioners, for the supposed contempts aforesayd, were unlawful (as the said Nicholas Fuller said) and therefore hee said that the prisoners ought to be dis­charged; And, before he began his Argument, he the said Nicholas Fuller did confesse, that it was a blessed thing, in all kingdomes, to have the Church, and Common wealth to agree together as Hippocrates twinnes: And the meanes to continue a perfect agreement between them was (as hee said (to give 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, set forth and proved vpon good grounds of the ancient lawes and statutes of the Realme, would (as he thought) continue 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. Wherein, for the better understanding of his purpose and drift of his Argument, he did divide the same into 5 parts.

1 And (first because the Ecclesiasticall Commission is groun­ded upon the Statute of Anno 1. Eliz. cap. 1 the title and intent of which statute is, the restoring to the Crowne the [Page 3]ancient Iurisdiction over the Ecclesiasticall and spirituall estate, and the abolishing of all forraine Iurisdiction repugnant to the same) hee declared what that ancient spirituall Iurisdi­ction was, which was ment in that Act to be restored, and by the Commissioners to be executed, and therin be pro­ved, that the power to imprison subjects, to fine them, or to force them to accuse themselves upon their own en­forced oathes, there being no accuser knowne, was no part of the ancient 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 gave authority to the Bishops to imprison subjects, fine them, and force them to accuse themselves, was procured by the Popish Prelats in the time of darkenesse (if not without a full consent of the Commons, yet to their great mislike) and that the sayd Statute, and every thing in the same conteined, is revoked, as being against the rule of equi­ty and common justice, and against the lawes of the land, and very hatefull to all the subjects of the Realme: and in the 2. part 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 equity 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, unlesse the same Charters and Commissions, doe receive life and strength, from some Act of Parliament.

[Page 4] 4 4 That, in this Commission Ecclesiasticall, there are some things 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, fining them, & forcing them to accuse them­selves (upon their owne oath) without any accuser.

5 5. That the Act of Parliament of Anno. 1. Eliz. cap. 1. whereupon the Ecclesiasticall Commission is founded, doth not give life or strength to such parts of the Com­mission, as concerne imprisonment of subjects, fining them, or forcing them to accuse themselves; 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 said 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 part of the division, which was to prove, 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 Majesty, sufficiently correct perverse people, who did contemne their spirituall jurisdiction and Keyes of the Church (which was, at the uttermost, to lock them out of the Church by Excommunication) and also by the booke case of 10. Hen. 7. arguing upon the point of the same statute, where it is set forth, that the Ordinaries, be­fore the Statute of 2. Hen. 4. had no power to imprison subjects, but the Keyes of the Church: and the like is also confessed by the Statute of 1. and 2. of Philip and Mary [Page 5]which was made after the former Statute of 2 Hen. 4. was revoked by 25. Hen. 8. c. 14. which do shew as much, viz. that the Ordinaries had no power but the Keyes.

And by the Common law it is apparent, that when the Ordinary or Ecclesiasticall Iudge had proceeded so far as they could, by Excommunicating the offendor to looke him out of the Church, then the common law, up­on significavit, did assist them by the writ of Excommuni­cato Capiendo: Quia potestas regia sacro sanctae Ecclesiae deesse non debet, as is said in the Register. But in this case the Common law still retained power to discharge the sub­jects so imprisoned (upō an Excommunicato capiendo) with­out assent of the Ordinary,Fitz. H. f. 42 both by the writ of Cautione admittenda, and by the writ of scirefacias, upon an appeale; where a supersedeas was usually awarded, to discharge the person imprisoned, against the will of the Ordinary. For the lawes of England did so much regard and preserve the liberty of the subjects, as that none should be impri­soned, nisi per legale judicium parium suorum aut legem terrae, as it is said in Magna Charta cap 29. which Charter,42. Edw. 3. cap. 3. by divers other statutes after, is confirmed, with such strong inforcements in some of them, as to make voyd such sta­tutes, as should be contrary to Magna Charta.

And, in the 15. Ed. 3. the first article of the commons Petition in Parliament, was,In the Tower a­mongst the Parliament Rolls. 15. E. 3. that the great charter may in all points be observed, so as such persons as are neither appealed, Indited, nor followed at the sute of the party, and have their goods, lands, or possessions taken away, may be restored thereunto againe.

Whereunto the King answered thus.

The King granteth for him & his heires, that if any per­son commit an act against the form of the great Charter,Responsio, Regis. [Page 6]or any other good law, & he shall answer in Parliament or else where; he ought to answer according to law. And therefore if any free subject were wrongfully impriso­ned, the Common law did not leave him to an action of false imprisonment onely, but provided the writ De homine replegiando, to set him free of his imprisonment, unlesse he were imprisoned for such particular cause,Fitzh. f. 40. Ed. 3. fo. 36 as is expressed in the same writ de homine replegiando: which writ is part of the subjects inheritance, and should not be denyed them. And this freedome of the subjects did make Markham the Iudge in the 4 Hen. 7. tit. prerog. 139. Brook: declare that the King could not arrest a subject upon suspition of felony, as a common person might do; because that against the one an action of false imprison­ment would lye, but not against the King (for the subjects liberty must be preserved) and by the Statute of Win. 1. cap. 15. whosoever shall detaine subjects in prison, who are bayleable by law, shall be grievously amerced.

And to shew that it was thought an unmeete thing to leave power in the Ordinaries to commit subjects to prison, although they contemned their decrees never so much, appeareth partly by the statutes of 27. Hen. 2. ca. 20 and 32. Hen. 8. ca. 7. which were made after the revocation of the former statute of 2. Hen. 4. by which latter statutes power is given to two Iustices of peace, or to some of the Honorable privie Counsell, upon certificate of the Or­dinary, to commit such offenders to prison, who should contemne the decrees of the Ordinary: denying to the Ordinary, that made the decree, that he should have any such power to commit the subjects to prison: & in 5. E­liz. ca. 23. which statute, not allowing Excommunicate persons to be imprisoned by any Ecclesiasticall Iurisdi­ction, [Page 7]limits by very speciall manner, how they shall bee apprehended by the temporall power. For although the Bishop of Rome useth two swords, the spiritual and tem­porall; yet the common lawes of England, and the Par­liament in divers ages, thought not so meet, for the Bi­shops or Ecclesiasticall Iurisdiction in England to use two swords, but according to the Register, Regia potestas sacro-sanctae Ecclesiae deesse non debet.

2 Touching the second part (wherein he was, to prove that the statute of 2. Hen. 4. cap. 15 which first gave au­thority to the Ordinaries to imprison subjects, or to set fines on them, & force them to accuse themselves upon their own oathes, was procured by the Popish Prelats in the time of darknes) he said that the very act it selfe did very plainly shew it; it being thus; And where it is shewed to the King, on the behalfe of the Prelates and Clergy of Eng­land, &c. And that the same was procured to suppresse the gospel, which then began to spring or revive, both the body of the Act, and the book of Acts and Monuments written by M. Fox, & other Chronicles do shew it plain­ly; for that those persons, whom they termed hereticks, preached in those dayes against the Sacrament of the Church, which was their Masse. And that the said Sta­tute of 2. Hen 4. cap. 15. was procured by the Prelats, without assent of the commons, thus much appeareth by the records of the Parliament, remaining in the Tower.Ex rotulo Parliamen­ti de an 2. H. 4. Peti­tio cleri contra he­retices. Resp. Regis. Excellentissimo ac gratiosissimo Principi, Domino nostro Regi, supplicatur, ex parte vestrorum humilium oratorum, prelatorum, et cleriregni vestri Angliae, quod cum fides catholica super Chri­stum fundata, et per Apostolos suos, et Ecclesiam, &c rehearsing al the words of the Act. Quas quidem petitiones prelatorum et cleri superius expressatas dominus noster Rex, de consensu [Page 8]magnatum, et aliorum procerum regni sui in presenti parliamen­to existentium concessit, et in singulis juxta formam &c. Wherin the Commons are not mentioned. And it is the more likely that the Commons gave no assent to this statute of 2. Hen. 4. both for that in the Parliament rolls of the same yeare of 2. Hen. 4. in the Tower, there is to be seene the Petition of the Commons to the King, thus.

The Peti­tion of the commons. Item prient les comens, depuis q' uill est contenu en la grande chartre, quenul sera areste ne enprisone sans responce, ou due pro­cesse de la ley, quell chartre est conferme en charmi perlement, et ore ils supplient, que si aucun soit areste ou enprisone encontre la forme del charte avant dict q' ill veigne, et appierge a sa respon­ce, et preigne son Iugement, sicome le ley demande, anssiq' nul tiel areste ne imprisonement soit trait en' custome, en' destruction de la ley du Roy. Whereto the King answered.

The answer of the King. Soient les statutes etla comen ley tenus; As also for that the Prelats had not long before procured anothere act against the Lolards, in Anno 5. Rich. 2. cap. 5. without assent of the Commons; as appeareth by the Parliament rolles, in the Tower, of anno 6. R. 2. which is thus. Item supplient les comens, q' comen vn estatute fuit fait en darrein perlement, en ces paroles: Ordone est en cest perlement, q' Commissions du Roy soient directes a viscountes et autres ministres du roy, ou autres suffisantz persons, apres et selon que les certificates des prelates eut affaire in chancellerie, du temps en temps, touts tiels preche­urs elour fautours mamtenours, &c.

La quel ne fuit un{que} assente ne grante per les Comens, mes ce q' fuit par le de ce, fuit sans assent de lour q' celi estatue soit anea ati car il nestoit mi lour entent justifiez ne obliger lour ne lour successorers as Prelates plus q' lour auncestres nont este en temps passez.

Resp: Il plest au Roy.

And it is also reported by M. Fox in the sayd booke of Acts and Monuments,Act. & Mo. fol. 539. that the same Act of 2. Hen. 4. ca. 15. was procured without assent of the Commons; and that the Commons did greatly repyne at it from time to time, many godly men writing against it, some of them ter­ming it a bloudie law, and a cruell law. And because the Prelats (out of the words of that law which gave them power to imprison some suspected of heresie, untill they should canonically purge themselves) did streinedly force subjects without any accuser to accuse themselves, there­fore the title of that act is set downe in the booke of Acts and Monuments, the statute Ex officio; Act. & Mo. fol. 481. at which time it was not commonly used to giue titles to Acts of Par­liament.

And, to shew how much the subjects misliked that kind of proceeding, appeareth by severall Petitions of the subjects 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 con­ceived upon thefantasye 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 prove, 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 Justice and good equitie, he sayd, that by the lawes of England (if a subject had been cyted, by the Or­dinary or Ecclesiasticall Judge, pro salute aiae, which is the oath ex officio, to accuse himselfe) a Prohibition did lye at [Page 10]the common law, and an attachment against the Ordina­ry, if he did proceed in that case contrary to that prohibi­tion, as appeareth in Fitz. H. fol 42. and the statute of 2. H. 5. which was made soone after the sayd statute of 2. Hen. 4. (giving warrant to grant a prohibition to the Ordinary for default of a libell) doth crosse the proceeding by oath Ex officio; where he is forced to a libell, as appeareth 4. Ed. 4. fol. 37. and Fitz. H. fol. 43. &c.

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 subjects) it is expressed, in what manner the proceeding should be against subjects upon accusations, thus viz. It is assented & accorded, for the good government of the Commons, that no man be put to answer, without pre­sentment before Justices, or thing of Record, by due pro­ces, and writ originall, according to the old law of the land; And if any thing be done from henceforth to the contrary, it shall be voyd in law and holden for error; wherein it is worthy the noting, that it is said according to the old lawes of England.

And to prove the old law of England to be so, the or­dinary case of daily experience, touching the challenge of Jurors, doth sufficiently declare. For if the Juror be challenged for kindred to either of the parties, or for wāt of free-hold, the Juror shall answer upon his oath, to cleare that matter; because it toucheth not the Juror in losse or credit: but if the challenge doe tend to touch the Juror any way in his credit, or his losse, he shal not be for­ced, upon his oath,49. Edw. 3. fol. 2. to answer, although his answer might tend to further Justice; quia nemo tenetur prodere seipsum, as is ruled 49. Edw. 3. fol. 2. And the case of wager of law, [Page 11]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, cap. 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, tendeth to like effect: and S. Edward Cooke, in his argument made in Slades Case, said well, that in criminall causes (juramentum 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 betweene England and Scotland, those oathes did bring no furtherance to the truth, but manifest perjurie every day; as was confessed by all that knew the practise there: and therefore that manner of tri­all was rejected.

And to prove it against Iustice and good equitie, hee said 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 said in Deut. cap. 19.15. that one witnesse shall not arise against a man for any tres­pas, or for any sin, or for any fault that he offēdeth 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 said, In the mouth of two or three witnesses shall every word stand; and Christ said to the woman accused of a­dultery, where be thine accusers? &c. But without any wit­nesse 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 [Page 12]Princes in making of their lawes, we being now the peo­ple of God the Jewes being cut off; the Judgements being now the judgements of God, and not of men alone.

But here may be objected, that by the lawes of Eng­land one witnesse is sufficient: to which he answered, that the Jurors being all sworne to trie the particular matter in fact, wherewith the party defendant is charged, may well supplie the want of one witnes, being 12. persons in­different, without any affinitie to either partie, who bet­ter know the witnesses then the Judge, and may perhaps know the cause in question, aswell as the witnes: which kind of triall is so behovefull for the subjects, as it may prevent much wrong and oppression from high authori­tie, if the Jurors be just & faithfull persons, as they ought to be; and their verdit also may be redressed by attaint, if they should doe wrong therein: which writs of attaint, and error, are part of the subjects 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 49. Edw. 3. fol. 2. but this tendeth to a mans owne overthrow; & 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 lieutenant of some Provinces in A­sia minor, for direction in his government, against those, who at that time were opposite to his religion, saith thus, (Sine authore certo propositi libelli nulli crimini locum habere de­bent; nam & pessimi exempli, nec nostri seculi est.) According to which direction, Felix the governour of the Iewes un­der the Emperor,Acts 23.35. 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 beginning of strife; yea it hath been so hatefull as some Martyrs have 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 limit another forme of proceeding against persons accused or suspected, thus, viz. upon Inditement or two witnesses at the least (according to Gods law) with words 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 oath 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 ancient Ecclesiasticall jurisdiction, they ought not to set fines of money upon subjects, unlesse it were upon cō­mutation of a penance; so as it need no further proofe of that matter.

The third matter which he endevoured to prove, was, 3 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 part of the inheritance of the subjects, and rightly termed by some Judges in 19. Hen. 6. fo. 62. to be the most high inheritance of the Kingdome, by which [Page 14]both King and subjects are guilded: & that without lawes there would be neither King nor inheritance in England.Bract. fol. 5. cap. 8. Which lawes, by long continuance of time and good in­devour of many wise men, are so fitted to this people, and this people to them, as it doth make a sweet 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 Sheriffes, Bayliffes, Stam. fol. 99. Constables, Coroners, Eschetors; &c. the band of an oath, both for government and obedi­ence, being mutually made on each part.

For the lawes in a Common-wealth are like the sinewes 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 strength of the sinew, it either taketh away the use of that part, or else it maketh it a weake or halting member: so is it, if the lawes be streyned against any part of the cō­mon-wealth, above it right, and naturall strength, it will make that part weake, or halting: and therefore it is ex­cellently said in 8. Hen. 4. fol. 19. in the com. fol. 236. and in the Case of Alton woods, that the law admeasureth the Kings prerogative,8. Hen. 4. fol. 19. com. fol. 236. so as it shall not extend to hurt the in­heritance of the subjects on the on part: and as Bracton saith, nihil aliud potest rex in terris, cum sit Dei minister & vi­carius, quam quod de jure potest: quia illa potestas solius Dei est; potestas autem injuriae diaboli est, & non Dei; & cujus horum o­pera fecerit rex, ejus minister est.

And the law doth restraine the liberall words of the Kings grant, for the benefit both of the King and the sub­jects, and to the great happinesse of the Realme; especially [Page 15]when the Iudges are men of courage, fearing God; as is to be proved by many Cases adjudged in these Courts of Kings Bench, and Common-pleas; which Courts are the principall preservers of this high inheritance of the law: whereof he rehearsed some few cases on the part of the King, and on the part of the subjects divers Cases; as in 45. Ass. p. 15. where the King did grant to I.S. & his heires, the Manour of Dale, and all the woods, and underwoods, and Mynes within the said Mannor; yet Mynes of gold and silver did not passe: and in the 22. Ass 49. the King did grant to I.S. the goods and chattels of persons with­in Dale, qualitercunque damnatorum; yet the goods 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 frō 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 construction, according to the rules of law, of the Kings grants, 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 and his fellowes, doe sufficiently prove.

And, on the other side, if any graunt or Commission from the King doth tend to charge the body, lands, or goods of the subjects unlawfully, the Iudges will redresse the same. For if the King grant the lands or goods of I. S. that is so manifestly against law, as it needs no proofe.

But (he said) he would put such cases, as being groun­ded upon prerogative, have a shew of good to the Com­mon-wealth, and yet are not allowable, because they tend to charge the subject, without the assent of the sub­ject: as the Case, 13. Hen. 4. where the King did grant [Page 16]an office of measuring of cloath in London to I.S. with a Fee to be received for the same measuring: and although the office tend to further commutative Justice, 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 Judges, 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 profecturus, 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 Judges, because it was for three yeares, where, by the rules of the law, it should be but for one; & because there was no exceptiō of dower, Assise, and quare impedit which by law should have been excepted: and that protection did not barre the subjects right, but only delayed his suit.

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 subjects had interest in the passage over that bridge; the Kings pardon was not sufficient, to discharge I.S. from the making thereof. 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 goods; which was done ac­cordingly by the Cōmissioners: and because it was done without any inditement, 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 Writ directed to the Justices of labourers. I.S. was indited for something not perteyning to the Justices of laborers, and therefore adjudged voyd, they having no Cōmission so to doe. For although the Sheriffe, or officer, cannot [Page 17]judge of the Kings writ, but must execute it: yet the Iudge may refuse to execute the same writ, when it is a­gainst law, or impossible to be done,1. Ed. 3. fol. 26. according to 1. Edw. 3. fol. 26. and in the 1. & 2. Eliz. Scrogges his Case; where a Commission 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 committed to prison & he was discharged, by the Iudges of his imprisonment, by writ of habeas Corpus, because his imprisonment was not lawfull: which writs of habeas cor­pus are usually granted in the said Courts of Kings bench, and Common pleas, thereby to releeve the subjects, which are many times in other Courts, & by some Commissio­ners, unlawfully imprisoned: yea many times, although the Commissions be grounded upon acts of Parliament, as the Commission of Sewers, the Commission of Banck­rupts, and the Ecclesiasticall Commission: and many times they grant Prohibitions to the Ecclesiasticall Court, to the Admirall Court, and to the Court of Requests, and other inferiour Courts, when they exceed their authority.

And many other cases hee would have put to prove those points, but that in a former argument made by him in the court of Kings bench, against Monopoly 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;Fitz H. f. 31 H. 8. pro­hib. 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 Bishop sought to have the law changed, touching children borne before mariage, although the [Page 18]mariage after ensued, to be held as bastards: the LL. sayd, Nolumus leges Anglia 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 cōmon law, nor alter the same as is adjudged 49. Ass. p. 8. and Bo­somes Case; nor put the subjects from their inheritance of the law,Bosomes Case Cooke fol. 35. as is 8. Hen. 4. fol. 19. which was alwayes accomp­ted one of the great blessings of this land, to have the law the meat-yard, & the Judges the measurers. For, in all well governed Common-wealths, Religion and Iustice are the two principall pillars, wherein the power of God appea­reth; and many times weake women doe rule, and com­mand many thousand strong men, touching their lives, lands, and goods, without resistance; which the love and regard of Justice procureth.

4 For the better proofe of the fourth part, he did reade verbatim the parts 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 jurisdiction over the Ecclesiasticall & spirituall estate, and, for that purpose, did give power to the Ecclesiastical Cō­missioners, to execute the premisses in the sayd Act contey­ned, for the correcting, and amending, and reforming of such heresies, errors, schismes, contempts, and enormities, as by the Ecclesiasticall lawes might lawfully be reformed, according to the tenour and effect of the sayd Letters Patents, this Commssion is since enlarged, and how it giveth power to the Com­missioners, to enquire not onely of the premisses, mentio­ned in the statute of 1. Eliz. cap. 1. but also of all offences, and contempts: against the statute of 1. Eliz. cap. 2. intitu­led, [Page 19] 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 statutes 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 Majesties power, over all states and subjects, within her domi­nions; the statute of 13. Eliz. cap. 12. intituled, an Act to re­forme certaine disorders, touching the Ministers of the Church; the statute of 35. Eliz cap. 1. intituled, an Act to reteyne her majesties subjects in their due obedience; the statute of 35. Eliz. cap. 2. intituled, an Act to restreyne some Popish recusants to some certaine places of aboad; the statute of anno. 1. Jacobi. intituled, an Act for the due execution of the statutes against Jesuits, Seminaries, Priests, Recusants, &c.

Also power is given to the Cōmissioners, or any three or more of them, not only upon these penall lawes and upon every offence therein contained, but also upon all seditious bookes, contempts, conspiracies, private conventicles, false rumors or tales, seditious misbehaviours, and many other civill offences particularly named in the Letters patents, 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 of the premisses, which they shall object against them; and to proceed a­gainst them and every of them, as the nature and quality of the offence or suspition, in that behalfe, shall require; And to inquire of adulteries, fornications, outragious misbe­haviours, & disorders in mariages, and of all other grievous and great crymes, and offences, within any part of the Realme, which are punishable or reformable by the Ec­clesimariage [...] [Page 18] [...] [Page 19] [Page 20]lawes of this Realme, according to the te­nor of the lawes on that behalfe, or according to their wisedomes, and discretions, or the discretions of any three of them.

The commissioners, or any three of them, are further authorized, willed, and commanded to use and devise all such good; lawful, reasonable, and convenient wayes, for the triall and searching out of all the premisses and proceedings therin, as by any three or more of them shall be thought most expedient, and necessary.

They, or any 3. or more of them, have authority to order and a ward such punishment to every such of­fender, by fine, imprisonment, censures of the Church, or other lawfull way, or by all or any of the said wayes; and to take such order for the redresse of the same, as to the wisdomes and discretions of any three or more of them shall be thought meet, and convenient.

For contempt in not appearance, or not obeying the decree of any three of them, they have power to fine them at their discretions, and to commit them to ward, there to remaine, untill, by any three of them, they shall be enlarged, according to their discretions.

They have power to take recognizance of every of­fendor, and suspected person, aswell for their personall appearance, as for the performance of such order, and decrees, as to any three of them shall seeme reasonable, and convenient in that behalfe.

They have also power to command all & every she­riffes, Iustices, and other officers, and subjects within this Realme, & in all places, aswell exempt as not exempt, by their letters and other proces, to apprehend, or cause to be apprehended, any person or persons, which they shall [Page 21]thinke meet to be convented, and take such bonds for their appearance, as any three of them shall prescribe, &c. or to commit them to prison.

They have power to execute the premisses, notwith­standing any appellation, provocation, priviledge, or ex­emption; any laws, statutes, proclamations, other grants, priviledges, or other ordinances, which be or may seeme contrary to the premisses, notwithstanding.

Vpon which parts of the said Commission, being so indefinite without limitation or restraint, he noted, that if the Commission should bee executed according to the letter thereof; the subjects, notwithstanding any lawes or customes to the contrary, might bee cited out of their owne Dioces, yea from the furthest part of the Realme, for any cause, or suspition conceived by the Commissio­ners, or any three of them, and forced to attend the com­missioners, where they will appoint, in time of harvest, 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 refusing to delay the cause, untill the tenne, upon any bayle or bond. And they may force any subject to appeare, at what dayes and houres any three of them shall appoint, for such matters sometimes; as are more proper to be heard in other Cours.

And although the penalties of the statutes be never so great, as Premunire, Abjuration, forfeyture of lands & goods, whereof some offences are by the same statute limited to be tryed only in the Kings bench, yet the party suspec­ted may be forced, by this commission, to accuse him­selfe upon his owne oath, upon such captious Interrogato­ries, as the wit of man can devise, when there is neither accuser, nor libel of accusation: And that in many things [Page 22]they may inflict what punishment any three of them shal thinke meete in their discretions, and force men to per­forme such order as they shall make, by the parties bond, before any order made: and that their judgements, or de­crees whatsoever, should not be subject to any Writ of Error, attaint, or appeale and that they may devise meanes, at their owne discretion, for the triall and finding out of any the said offences. Which kind of proceedings how far they doe differ from the common lawes of England, which is the inheritance of the subjects, and what Jarres, and harsh tunes they make in the sweet harmony therof, settled by so long continuance, with a most happy suc­cesse, any wise man may see, without any inforcement from him; and how much of this they doe daily execute, he did leave to see it.

Only so much as came under his owne view, he said, that, the last day of Easter terme, he moved at the Exche­quer barre, for 20. person, his Clients, dwelling in Yorke­shire, wherof som, as they told him, were very poore, who were fined by the Ecclesiasticall Cōmissioners for not appea­ring at their dayes appointed, many of them to 30. pounds a peece, one only at ten, and all the rest at twenty a peece, which was not salvo contenemento, according to the statute of Magna Charta cap. 14. And one client, being an hous­holder in Fleet-street, named William Goulder, prayed ad­vise for his hard & close imprisonment many daies, with great Irons on him, by the Commissioners, upon some su­spition conceived by some of the Commissioners, that some person was hid in his house; and was after freed without any conviction of his supposed offence. And be­cause the said Nicholas Fuller did except against the Com­missioners, as not competent Judges, in their owne cause, [Page 23]of him and of his argument, made against them at the Kings bench barre, they threatned to set 500. pounds fine on him, and to imprison him. And when (he finding their proceeding by the oath Ex officio to vary from the Com­mon lawes, which he had long time practised) he said to them, it seemed to him, that he was in a new world, or other Common-wealth: thereupon they threatned to imprison him, if he spake one word more to the disgrace of the Commission.

Wherefore he held it strong, in his opinion (because his Majesties Commission, which they terme High, is, by the true intent of the statute, only a Commission executorie, but for so long time onely as shall please the King, and is no settled court of continuance for ever, as they would have it, comparing the authoritie thereof with the Kings bench, and preferring it above it) that, in all the parts and points above rehearsed, the Commission is not of force in law, nor warranted by law, except some Act of Parlia­ment doe give it life.

And now touching the last and principall part of his division, viz. that no Act of Parliament doth give life to the Commission Ecclesiasticall, in the parts above mentio­ned, it is to be noted, that the Commission is founded only upon the statute of an. 1. Eliz. cap. 1. and that this Act of an. 1. Eliz. neither doth, nor can give life to this Com­mission, by any right construction, in these parts above rehearsed, but contrariwise doth expresly abolish their Jurisdiction to imprison subjects, fyne them, and force them to accuse themselves, as repugnant to the Ancient Ecclesiasticall Jurisdiction, which, by this Act, is restored to the Crowne: and hee hoped to make that point so plaine and apparant to all the hearers, that would atten­tively [Page 24]regard, it as that they might be fully satisfied ther­in. For, besides the Booke Cases, which he meant to put, in that point, to prove his assertion, he said, that the title in the Act of an. 1. Eliz. the preamble of the Act, and the mat­ter preceding the preamble in that Act, and the body of that Act, which giveth power to the Commissioners to execute the premisses (by colour wherof they challenge this great power to imprison subjects, &c.) doe all con­curre, by their being rightly applyed, to condemne and overthrow these points of the Commission Ecclesiasti­call, before spoken of and rehearsed by him, as unlawfull, and unjust.

The title is, an Act, restoring to the Crowne the auncient Iurisdiction over the Ecclesiasticall and spirituall estate, and abo­lishing all forren Iurisdiction, repugnant to the same. What the ancient Iurisdiction over the Ecclesiasticall and spirituall estate is, he hath sufficiently before declared, and proved it to be that Ecclesiasticall jurisdiction (viz. Keyes or cen­sures of the Church) which was lawfully used in England, before the statute of 2. Hen. 4. the uttermost whereof was, to locke men out of the Church by excommanication, ter­med, the keyes of the Church. Which statute first gave po­wer to the Ordinaries, to imprison subjects, to fine them, and force them to accuse themselves by their own oathes, which was ever hatefull to the subjects of England.

And to prove plainely, that this Parliament of an. 1. Eliz meant to abolish that power to imprison subjects, & force them to accuse themselves, the matter precedent before the preamble doth fully prove; for that, in this ve­ry statute of an. 1. Eliz. the lawmakers, as wise farmers of a Common-wealth, before they goe about to annexe the ancient right Ecclesiasticall Iurisdiction to the Crowne, [Page 25]doe by expresse words, at the request of the subjects, est a­blish and inact, that the statute of 5. Rich. 2. cap. 5. and 2. H. 4. cap. 15. (which did give authority to the Ordinaries to imprison, fine, and force the subjects to accuse themselves, as above) and all and every branches, articles, clauses, and sen­tences contained in the said severall statutes, and every of them, should, from the last day of that Parliament, be utterly repealed, voyd, and of none effect, any thing in the sayd severall Acts, or any of them, contained, or any other matter or cause to the con­trary notwithstanding. So as the imprisonment of the sub­jects, fining of them, and forcing of them to accuse them­selves, being the matters, branches, and articles of those statutes, howsoever they came into the power of the Cler­gie of England, by these statutes or otherwise, being thought, by the Parliament, to bee repugnant to the an­cient Jurisdiction Ecclesiasticall (as revera they are being a temporall sword) were repealed and made voyd by ex­presse words of this statute of anno 1. Eliz. as repugnant to the ancient Spirituall Jurisdiction.

And to make the meaning of the law-makers more apparant, that they allowed not, that any offences should be tried by the parties owne oath, but by witnesses; as in the beginning of this statute of an. 1. Eliz. ca. 1. it doth abo­lish the oath Ex officio, by making voyd the statute of 2 H. 4. cap. 15. which first gave life to that kind of proceeding; so in the end of the said statute it addeth this clause, And be it further inacted by the authoritie aforesaid, that no person, or persons, shalbe hereafter indited, or arraigned for any the of­fences, made, or deined, revived or adjudged by this Act, unlesse there be two sufficient witnesses, or more, to testifie and declare the said offence, whereof he shalbe indited, &c. and the same wit­nesses, or so many of them as shalbe living, and within the Realm, [Page 26]at the time of the arraignement of such persons so indited, shall be brought forth in person, face to face, before the partie so ar­raigned and there shall testifie & declare what they can, against the party so arraigned, if he require the same.

By which words fith it is plaine, that no offence, or­dained or revived by that statute, should receive triall, but by two witnesses brought face to face; that they ment not to give power, by any Commission grounded upon that statute, to have the offences of the subjects (which touch so deepe as Premunire, abjuration, and forfeiture of lands and goods) should be tried by the parties owne for­ced oath, against his will, without any witnesse or accuser, as this Commission limits; and yet it is pretended to bee grounded upon this statute. And therefore it were a most violent construction, and absurd, that the generall words in this statute, viz. to execute the premisses according to the te­nor and effect of the Letters Patents, should revive that by an intendment, which was, by so plaine words of all the as­sembly in Parliament, revoked and abolished, as a most hatefull thing to the subjects of England, and of which they meant to purge the Church & Ecclesiasticall govern­ment. For that were to make one part of the statute con­trary to the other, and to construe the words of the law, indefinitely set downe, directly against the meaning of the law makers plainly expressed by words; which Jud­ges never did, nor, as he hoped, ever would doe.

And the title and preamble of the statute doe further restraine the over-large construction of those generall words, to execute the premisses: because the premisses, be­ing the ancient jurisdiction Ecclesiasticall and spirituall, purged from that temporal Jurisdiction, as above, is meant to be restored onely over the Ecclesiasticall and spirituall [Page 27]estate, and not over all the subjects of the Realme; and be­cause, in the preamble, the Commissioners, who are to be named, are inabled, touching Ecclesiasticall or spirituall Jurisdiction only, to reforme, correct, and amend all such here­sies, errors, schismes; contempts, &c. which by any spirituall or Ecclesiasticall power, authority, or Iurisdiction, might lawfully be reformed, and not all abuses of the Common-wealth mentioned in their Commission, or any abuse not proper to the Ecclesiasticall or spirituall Jurisdiction, whereof there are many named in their Commission, which are temporall Jurisdictions, viz. to imprison and fine subjects, and to execute lawes upon them; for that the spirituall law should not meddle with that, for which there was re­medie by common law, as is 22. Edw. 4 fol. 20. and the sta­tute of 24. Edw. 1. cap. 1.

And to prove, that the titles and preambles of other statutes doe many times, in construction of statutes, re­straine the generall words of the same statutes following, he put the case upon the statute of perjurie, anno 5. Eliz. where the words of the statute are, that every person and persons who shall commit voluntarie and corrupt perjurie, shall forfeit twentie pounds. And because the preamble and matter precedent touched witnesses only, therefore that penaltie is restrained, by construction, to charge witnes­ses onely therewith, and not such persons as shall commit voluntary and corrupt perjurie, in their owne cases. And so upon the statute of 7. Edward 6. against Receivers, Bay­liffs, &c. although the words of that statute extend gene­rally, to lay a penaltie of 6. shillings 8. pence for every pe­ny that receivers shall take unlawfully; yet because the preamble of that statute touched only the Kings officers, It is, in construction, restrained to take force against the [Page 28]Kings officers onely, and against none other receivers, or Bayliffes.

And to conclude this point of the exposition of the words of the statute, hee did demand, why the expositi­on and construction of all statutes is left to the Judges of the law, but for this cause, for that they are, and alwayes have beene thought the most carefull, judicious, and jea­lous preservers of the lawes of England? And is it not ap­parant, that, to uphold the right of the lawes of England, the Judges in ages past have advisedly construed some words of divers statutes contrary to the common sence of the words of the statute, to uphold the meaning of the common lawes of the Realme? as in the statute of 25. Ed. 3. where it is said, that, non tenure of parcell shall abate the Writ but for parcell; yet if by the Writ an entier ma­nour be demanded, non tenure of parcell shall abate the whole Writ. And where, by the statute of Marlbrig. ca. 4. it is prohibited, that no distresse shalbe driven out of the County where it is taken, yet, if one manour extend into two Counties, there the distresse may be driven from one Countie into another Countie. And, upon the statute of Prerogative, which toucheth the King, although the words be generall, that the King shall have the custodie of all the lands of his tenant where part is holden in Capite, yet if part of the lands of his tenant doe descend to seve­rall heires, on the part of the Father, and on the part of the Mother, there the King shall not have all the lands of his tenant, during the minoritie of the heire; for that, in all these Cases, the great regard of the rule and right of the common lawes doth controll the generall or common sence of the words of those statutes.

And why then should this statute receive constru­ction, [Page 29]by the Judges of the law, contrary to the rule of all other statutes, to this effect that by an intendment gathe­red out of the generall words of the Act, according to the tenour of the said Letters Patents, there might bee erected, in this common wealth of England, a course of an arbitrarie government at the discretion of the Commissioners, di­rectly contrary to the happy long continued government and course of the common lawes of the Realme, and di­rectly contrary to Magna Charta: which if the statute of 24. Edw. 3. did so highly regard, as to make voyd Acts of Parliament contrary to the same, it would, a sortiori, make void all construction of statutes contrary to Magna Charta, which have no expresse words, but an intendment or construction of words, with much violence to be wrested to that end. And for such as would make such constructi­on of the statute, as that whatsoever should bee contained in the Letters Patents should be as a law; he would have them remember, that the King may make new letters Pa­tents for these matters (Ecclesiasticall causes every day al­tering the same in the penalties and manner of procoe­ding) and that, if the letter of the statute should be peru­sed, the King may change the Commissioners every day, and make any persons Commissioners, being naturall borne subjects to the King, although not borne in Eng­land: which were against the meaning of the Act; which meaning of the Act is the life of the Act, and not the let­ter of the Act.

And, besides those former errors of the Commission before remembred, he said, that he did not see, how, by colour of the stature of 1. Eliz. which gave power to the Commissioners to execute the promisses contained in that Act, they should inlarge their Patent to enquire of [...] [Page 30]contrary to other statutes, made thirty or forty yeares, and more, after an. 1. Eliz. which then were not dreamed of, nor meant to be any part of the premisses contained in the said statute of anno. 1. Eliz. and of other civill and temporall things, for which if the Ecclesiasticall court had held plea, a prohibition did lye at the common law, accor­ding to the statute of 24. Edw. 1. cap 1. and 22. Ed. 4. fol. 20. and in 13. Hen. 7. fol. 39. Brooke and Fitzh. fol. 43.22. Hen. 8. because, for the same things, redresse may bee had at the common lawes and in 7. Hen. 8. fol. 181. the Bishops of the Convocation house, for medling against Doctor Standish for a temporall cause by him disputed before the LL. of the Councell, were adjudged, by all the Judges, to be in dan­ger of Premunire. But it wilbe objected, that use is the best expositor of the statute: and then the continuance of this Commission, since the statute of 1. Eliz. being above 40. yeares, will prevaile much; to which he answered, that long use, in a setled 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 Writ of error, false judgement, or appeale: unlesse the inferi­our Court meddle with that which is not within their po­wer; and then in many cases their judgement is coram non Judice, and so voyd.

But this Ecclesiasticall Commission is but a Commission executorie, by the intent of the statute of 1. Eliz. to continue so long as should please the Queene, or King, and no set­led Court: and was meant at the first (as he thought) to have continuance for a short time, to strengthen the au­thoritie of the Bishops, against whose Ordination and in­stallment the Papists did at the first except. In which cases of things done by Cōmissions, whatsoever the Cōmissio­ners doe, it is examinable in every Court where it shall [Page 31]come in question, at any time after; whether that they have persued their Cōmission or authority, in due forme or no. For their Decrees and sentences are not pleadable in law, as Judgements in Courts of Record are: and the many yeares use of the Commissioners, especially being Ecclesiasticall men for the most part, who know not the lawes of the Realme, will give no inforcement to their proceeding if it be contrary to law.

But as in this Commission (touching causes of Pre­munire, Abjuration, and other Cases where the forfeiture of lands and goods doe ensue) the Commissioners Ecclesia­sticall say, they use not in these cases to force any subject to accuse themselves although the words of their Com­mission doe extend so farre; because they see it apparantly contrary to law and right: so the Judges may say the like, that, in other cases of lesse penaltie (to their knowledge) untill of late yeares, the Commissioners used not either to force any to accuse themselves, or to imprison them for refusing so to doe. And he did further answer, accor­ding to the learning and difference which is taken in 44. Edw. 3. fol. 17. that albeit the allowance in Oier of some Commission may be of great force to give strength unto the same Commission, yet the allowance, or toleration in some other Court of such Commissions many times (if it after appeare to be contrary to law) bindeth neither the right of the King, nor subjects, but that the Judges of the law may judge thereof according to law.

Upon all which matters hee did conclude, that al­though the Commission bee of force to execute the an­cient Jurisdiction over the Ecclesiasticall and spirituall estate; yet because this Commission, and the proceedings of the Commissioners, did much vary from the course of [Page 32]the old Common lawes of England, expressed in the sta­tute of 42. Ed. 3. cap. 3. and from the ancient Jurisdiction Ecclesiasticall; for that no pretended custome, against those statutes which prohibite such kind of proceeding, can be of force, and especially for that the Act of Parliament of 1. Eliz. did not give life or strength to the said Commissi­on, in those parts so varying, but the contrary: therefore he did hold the proceeding of the Ecclesiasticall Com­missioners against the subjects, by force of the said Com­mission, in these points, to be voyd, and erroneous, accor­ding to the words of the said statute 42. Edw. 3. and did humbly pray, that his Clients may bee dis­charged from their Imprisonment, and the subjects freed from such erroneous pro­ceedings, too too heavie and burdensome to them.