Appeal to the Parliament, Evidence · Part 6
6. Position proved.
VVE have now to prove, that the loyalty of obedience to the Kings Majestie and his Laws, cannot possibly stand with the obedience to the Hierarchie.
Can a man serve two Masters or obey two Lords of opposite commands? As the Heavens contayne no Sunnes but one; nor a Kingdom no Kings but one: So a people cannot obey any Laws, but such as are at one and unitie with themselves. If the Prelats practise, and Injunctions extort or enjoyne one thing, and the laws of the Land, and the good of the King require another thing opposite to that, who can obey both? Yea who can obey the Prelats, but he maketh himself a Transgressor to the King and the Laws; As for instance, it is straightly forbidden by the laws of the Land (especially by that oath of allegeance) whereunto all the Kings subjects are sworne; either implicitlie or explicitlie) That no forraigne power, authoritie or jurisdiction (and more particularly of the Pope of Rome) shall be established, 1. Eliz. 1. 1. Iacobi R.countenanced by word, contenance, preaching, priviledge, or any other Deed, under the Payne of Proemunire. And if after conviction any person or persons thus againe offend, then he or they shall inicurre the paines, forfeitures, judgments and executions, due to high treason. Now that they derive their authoritie from the Pope; carry themselves as Popelinges; have all the power (if not more then they had under the Pope;) exercise a full Popish power over subjects in their meanes, persons and consciences; and plead for the derivation of their Episcop. authoritie in print from the Pope; It is as cleare as the light. As for the chāge of supremacie, it can not make a body that is naught in it selfe, and cōtinuing the same to be good. As for their writings and Sermons against the Pope and his usurped power, it may be answered, quid verba audiam, cum facta videam? Their words crosse their actions. Yea, it is to be feared, that the Popes supremacie, if it could be as gainefull, would please manie of their palats better then the Kings. Since then it is thus, it may invincibly be concluded, that a subject cannot both obey them and the Laws.
Further it is inacted (as we hauehave shewed by act of Parliament) That all the Prelates writts for exercise of their jurisdiction should runne (as hath bene shewed) not in their own names and with their own seales, 8. Edw. 6.but in the Kings name and under the Kings seale. But they in their owne names, and with their owne seales signe cite, attach, and imprison, laying the burthen of their tirannie upon the King: if at anie time they seeme to be affected with the miseries of the parties, whereof they are the onelie cause. It cannot stand with the clemencie of a roiall heart to vexe or imprison his loiall subjects for serving of the same God whom he serveth, and for denying obedience to the verie things that are contrarie to Gods lawes, the soveraigne power of the King and laws of the land. As it is then against all law, reason and equitie, that the subjects are thus vexed and wronged; so the serving of such writts and warrants by pursuivants, and the assistance by constables and others, is injurie to the subject, violence to the lawes, and an effront to the King. For the clearing whereof, Simsons Case is upon record, who was cleared by the law, because the Constable under the prelates warrant, was adjudged by law to be out of his place but of this more hereafter. And thus the point is cleared, that yealding obedience to such writts or warrants consisteth not with obedience to the King and his lawes.
It is further cleared by being flatlie opposite to the Kings prerogative,25. Henr. 8. that anie Courts should bee kept or jurisdiction exercised in his realm but in the Kings name, and by an especiall grant. Instance the Iudges Commissions of Oier and Terminer, and so of the rest: but the Bishops and their officers hold their Courts and exercise their jurisdictions not in the Kings name, nor by anie speciall grant, but in their owne name intruding upon his Majesties prerogative roiall, inforcing Churchwardens and Sidemen to serve as instruments against the same.
Further no subject can both obay the Kings laws: and the Prelats Courts: because they judge, or exercise jurisdiction by deputies as Chancellours Officials, Arcdeacons. This is first an intrenching upon the Kings prerogative: for none but the King can delegate or substitute a judge in his place especiallie if the place of judicature be of a high nature (as the Prelats is, if it were right) but these Prelats committ their counterfeit Keyes often to such Cerberean Porters: as shutt the gates upon Christs Freinds, and intertaine his foes.
2. This deputation is against the nature of an office of confidence or trust (as the Lord Verulam speaks verie learnedlie to this point) as it is personally inherent, so it must be personally discharged, & not transported to an other, as he instanceth in the office of the Lord Chancell. of England, or any other judge: who never made nor can make a deputie, except they have some speciall clause, contained in their original graunt; and then also it is verie doubtfull (saith he) that this is so, it is cleare from the statute of Henr. 8.26. Hen. 8. cap. 14. by which it is provided that the Archbishop cannot take to himself a suffragane or assistant Bishop (much lesse can he depute an inferiour judge) but by the Kings especiall graunt. Now whether are not all that submitt themselves to the judicature of such courts (kept by the Prelats deputies) transgressors against the true nature of jurisdiction, observed in all other courts of the Land, and also against the Kings sole prerogative? Further whosoever giveth his body to the Prelats imprisonment or yeelds his goods to their fineing (except it be upon irresistable violence) whereby he becoms a meer passive. 1. He nullifyeth many wholesom laws,Statut. Articul. cleri. c. 1. Fitz. Hanatur. brev. Fol. 51. 52. 15. Edw. 3. c. 6. whereby it is decreed that Ecclesiasticall jurisdiction may not imprison or sett any fines vponupon the Kings subjects, exept it be vponupon change of penance. Yea they loose not onelyonly their owne Priviledge, but they quitte the inheritance of all their fellow-subjects, so far as in them lyes, and keep still in force that cursed cruell statute, extorted from Henr. 4. against the people of God, which (as we have shewed) hath beene againe and againe repealed, as unjust and intollerable.1. King. 21. If Naboth would not yeeld his vineyard to his King, and that upon reasonable conditions, because, in so doing he should have broken a statute; or if the Kings subjects stood out in the matter of loane that they might obey the King in keeping of his laws intyre, (for they made it appeare to all that it was not want of love or unwillingnesse to part with their mony:) how far should subjects be from obeying such commands as countermand the laws, establishe an usurped jurisdiction, deprive the King of his loyall obedience, & the people of their right. As for the danger of resisting this usurped power there is none de jure, howsoever these men of usurpation make it their trade to afflict the Kings subjects de facto; but the laws which are the Priviledge of the subjects, the life of the Land, and true obedience to the King, should be more precious to a true harted subject, then liberty or life it self; and what a man would doe for the defence of his life, he should doe in the defence of these. For the lawfullnesse of this defence, we produce both the Laws of the Land, and the Counsell of the learned according to the Laws. For the former, if the lawes inacted & so often confirmed, do inhibitt all summons, assaults, attaching of the body, imprisoning or fineing but by due course of the law of the Land, then all the Prelats courses in the above-said particulars, may and must be resisted quoad posse (because they are not legall, but against the great Charter) but the former is true, therfore the latter. For further proofe hereof, we commend unto your Honours to review these noble acts amōgst many other decreed by that high Court of Parliament Anno 1610. For this very particular as followeth.
1. Whereas the temporall sword was never in the Prelats power till the 2. of Henr. 4. and then usurped by them without the consent of the commons (for say, they were truely Ecclesiasticall,) yet it is against the Lawes of God and of the Land, that they should meddle with civill jurisdiction, therefore is an act past against it, and the oath ex officio brought in at the same time.
2. That statute 1. Elizab. c. 1. giving power to the Queen to constitute and make a Commission in causes Ecclesiasticall is found inconvenient, because abusing that power given to one or more they wronge the subject.
3. Whereas by vertue of the statute power, onelyonly Ecclesiasticall is graunted; yet by Letters-Patents from the King, unsoundly grounded on the words of the statute, they fine, imprison &c. which is a great grief, and a wrong to the subject.
4. Where upon deprivation by the ordinarie jurisdiction an appeale lyeth; the words of the commission exclude it. For here is no traverse, nor writt of error after judgment.
5. They bind men not onelyonly to appeare from time to time, but also to perform what the Court shall appoint.
6. Whereas the Canons would charge body, goods, and Lands of the subiect, the howse inacted against it, except it should be confirmed by act of Parliament.
These evills and greivances were seriously pondered by that Honourable assembly, and provided against by the foresaide acts, but the Remora-Prelats & Logs of their laying, so blocked up the way, that the said acts could not passe: and rather then they would suffer the plague-soare of their oppressing pride to be burst by the maturating cataplasmes of wholesom laws, they made a shift to break the King and state into peeces, as they did indeed, to the no small griefe of all good subjects, to the vexation (yea allmost killing) of the two witnesses, the indemnifying & dishonouring of the state;Rev. 11.7. for since that time what hath prospered with us, or with those whom we have ayded.
These acts your Honours knowe to be law it self, though killed in the shell by the foot of pride, and therfore we humbly intreat justice upon these Legicidas or Law-killers.
Now come we to the latter peece of evidence in the behalf of this lawfull resistance, namely, the case avouched under the hand of learned counsell, as followeth in his owne words:
THe case is, vvhether the high commission of the North, have povver to send a pursuivant to arrest the bodie of any man, and hovv farreforth the Sheriffe or other of his Majesties Officers be bound to assist them, and vvhether each severall Bishop having a severall commission, may (calling to him 3. or moe commissioners) execute the commission.
This learning is not to be rubd upon too boldlie, yet in my opinion the high commission hath not sufficient vvarrant to send a pursuivant to arrest, because the statute of Magna Charta 5. 30. Nullus liber homo capiatur vel imprisonetur forbids (as I conceive) such arrests. It vvas Simsons case 42. Eliz. in vvhichwhich arrest the Constable in assisting the pursuivant vvas slaine, and the offender had his clergie, vvhereas if the arrest had beene lavvfull, it had beene murder vide 42. Ass. p. 5. and 24. Edvv. 3. Commissions Br. 3. Where a commission vvas granted to diverse to arrest the bodies of A. B. &c. vvho vvere slandred for felonie; it vvas ruled to be against the lavv: and by the common lavv the bodie of any man vvas free from imprisonment but onelyonly at the suit of the King.
2. The Sheriffe is vvise enough to informe himself vvhat is fitt to doe.
3. I conceive if a commission be directed to 20. or 30. of them at the least, and they sue a duplicate or severall commissions 3. of them cannot sitt in one place and 3. in another by vertue of the commission, vvithout adjourning the commission to time and place, as one commission and not to execute it as severall commissions.
I. C.
You see how in clearing of this case the smell of a goat maketh this honest coūseller somwhat agueish, but such is his ingenuity, & truth is so stronge that the case in our conceit is well cleared.
To proceede the people also (being inforced to wait upon them) become accessarie to their sinne of disobedience. If that clause of the statute be objected, where the King graunteth them authority in as ample manner as they had in the Popes time: it may be answered in the first place; that that proclaimeth to the world, their being to be Antichristian, and their power to be forreigne; for they remaine the same for matter and forme, that they did before; supremacie onelyonly changed. 2. Besides that generall; nullum tempus occurrit Regi, it is a lawe case, that generall words cannot carry away any part of the right of the Crowne: and such are these words, without any speciall warrant to leade them. 3. The grant is onelyonly to rule over their inferiour brethren (meaning the Ministrye.) Which rule (by the way) is directly against Gods statuts; howsoever with the laitie (as they call them) by this statute they have nothing to doe. It was truly averred by a Prime judge of the Land, that that, which binds all, should be assented to of all, or by the representative body of all, but what private men do the Prelats call to their convocation howse? or what voyce or assistance have they to or in the consultations or Canons of the Prelats?
The Prelacie, taking this to consideration, procured a statute 1. Edw. 6. enabling them (as they conceive) to keep their Courts & exercise jurisdiction; But first, that was to be done in the Kings name, and not in their owne.
Further, all such jurisdiction, is annexed to the Crowne 1. Eliz. 1. forbidding all exercise of spirituall power and jurisdiction, without a speciall warrant from the Crown, and all that doe the contrary, are declared to be intruders.
The last instance (though we might abound) is from the oathes urged by the Prelats, especially that oath ex officio. By the law of the Land, they are forbidden to put any to their oath,Crompton. 182. Fitz. de natura brev. p. 141. Regist. Pag. 36. Rastal. Prob. 5. except in cases matrimoniall and testamentary, witnesse the learned and judicious lawyers of the Land.
As to the oath ex officio, whereby both Ministers and people are vexed and insnared, what can be said, that hath not been said against it? Heaven and Earth is against it; It is against the law of God; the law of the nature; the common law; the Canon law, Counsells, and imperiall statuts. Though the vilenesse of it, and the evills ensuing are sufficientlie knowne to your Honours, and to all of understanding; yet we make bold (under favour) to detect the evills of it, for our owne and others information.
First then by that royall Law of God, Ier. 4.2. Iob. 29.16.it is quite casheired; thou shalt sweare in judgment &c. that is, advisedly. And how should a man doe that, when he knoweth not what he sweareth? Neyther can he sweare in righteousnes, because he is forced to betray others; which rather then an honest man should doe (as a Father witnesseth) he should loose his life.
Further, the matter is not of waight, nor of qualitie (for it should be Criminall;) not of necessitie (for it may be otherwise cleared;) nor maketh this oath the end of strife; and therefore it cannot be taken in judgmēt &c. A worthy gentlmā being pressed with an oath against himself in an other case, made answer by a pretty dilemma; if the thing supposed to be done, be a sinne, then must I not accuse my selfe; and if it be no sinne there is no ground of an oath.
2. It is against the law of nature registred in the Civill law, Nemo tenetur prodere seipsum; if a man must not betray another, much lesse himself.
3. The Canon law from the civill law taketh so much light, as to see and commend the equitie of the aforesaid maxime. Witnesse Gratian the Cannonist in the oath of Sixtus the 4.
4. As for the concourse of nations, they utterlie abhorre this oath and avoie it, onelyonly such excepted, as live under the Beast, groaning under the burthen of this bloodie oath: neither doe most of the Popish subject themselves to it, witnesse the State of Venice, and the rest of Italy and others. A blooddye oath the learned trulie call it.
Apud. Plin. Lib. 10. Epist. 98.5. Without an accuser (saith Trajane) there is no place for an accusation: for that is an evill example (saith he) and not heard of in our age.
9. How injurious it is to the laws of the lande and libertie of the subjects, master Fuller hath fullie discovered in the defence of his clients. The begining of it amongst us, was from a statute of Hen. 4. for vexing and punishing of the Lollards so called being the true christians indeed, the urging whereof is by a Statute. of H. 8. justly marked in the forehead thus: An examination upon captious interrogatories &c.2. Henr. 4. cap. 15.
Of the cōtinuance of the oath,25. Hen. 8. Cap. 14. the Lord Verulam late Chancellor of England did utterly dislike. It is contrary (saith he) to the laws of the Land, and custome of the Kingdome, that any man should be forced to accuse himself, especially being urged without the grounds of accusation, declared in ipso causae initio, Lib. 4. Tit. 1. Leg. 3.in the very entrance of the cause, according to the Canon; non est à quaestionibus inchoandum, they must not begin the plea with questions. This was the complaint of that holy Martyr M. Lambert, he greived to see them call for a booke upon his first appearance; as though a man should no sooner speake then sweare. Further the aforesaid nobleman averreth, that by the laws of the Land, a man is not bound to accuse himself in cases of treason. Questions and torments (saith he) be put and inflicted upon some persons, rather for safeguard of the King or state, then discovery of the Crime▪ In the other capitall cases, no oath is offered to the delinquent, nor yet permitted to him: As for Criminall causes, not capitall, or in cases of conscience and equitie; depending in the starre Chamber and Court of Chancery; there is an oath required, but how? by laying of a bill of complaint, wherein a legall accusation is framed against the partie, beyond the which the plaintif cannot goe, nor the defendant shall be urged. But first to give an oath, and then to examine upon flying fame or secrett wittnesses, carryeth no shew of the civill law; and is flatlie repugnant to the common Law. And thus farre that noble man. In a particular inquisition (saith Canitius) articles should be given to the defendant to be inquired of, In speciali inquisitione &c. Sum. Iur. Canon. Lib. 4. Titul. 19.and the names and evidences of the witnesses against him, permitting him to make replye for himself.
7. The imperiall statutes are cleare against it; no man is bound to give evidence against himselfe.Cod. lib. 4.
Consil. Bracha. Cens. 2. Canon. 8. Ambr. 1. Cor. cap. 5 Iohn 8.8. For Counsells and Fathers, they are copious; Christ (saith a Father) dealt not so with Iudas; for, not being accused, he did not cast him out. And with that woman in the Gospell, Christ did take a legall course; where are thine accusers? yea a Heathen judge, tooke this legall course with Paul; when thine accusers are come I will heare thee. Acts 23.No example for it in scripture, but that of Caiphas, Math. 26.43.adjuring Christ in the name of the living God: upon which Beza sheweth us how tyrannous and unjust such an adjuration is.
From all this, it is more then manifest, that the takeing of these oathes, and more particularlie of this oath ex officio, cannot possiblie stand with obedience to the Laws. Yea, though it be guilded and sugered with these daubing and deceiving termes, so farre as it is agreable to the law. For it is altogether (as hath beene shewed) repugnant to the Law, to offer it, or to take it. It hath so often been cast over the barre of the common law, that we thinke they should now be ashamed to offer it.
To conclude, we may answer being pressed with it, as the Miniesters of Affrick did in the like case;Victor. de persequ. Vandal. numquid bruta irrationalia putetis nos &c. What doe you thinke us to be savage and unreasonable Creatures, that we should sweare to a paper, not knowing what it contayneth? And so much for this point.