‛ ΑΝΤΙΠΡΟΒΑΑΗ, OR A DEFENCE OF THE Minister OF PENSHERST, In a Case between him and the Earl of Leycester in Michaelmas Term, 1657.  
LONDON, Printed by T. R. for the Author, 1660.   

〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. OR A DEFENCE OF THE Minister of Pensherst in a case between him and the Earl of Leycester in Michaelmas Term, 1657.  
THE Minister of Pensherst being settled in that Rectory by the Authority of the Committee of Parliament, April 5. 1650. endeavoured in much faithfulness a holy Reformation there, that he might prepare a people for the Lord; in which work he found no encouragement from the Earl of Leycester, but was put to much grief of heart by the Earls opposition: who began a quarrel upon the Minister's denial of letting his Lordship the Gleab land, (as sometime Ahab fell out with Naboth about the Vineyard) taking occasion thereupon many ways to oppress him and his afflicted family. The Lord giving the Minister patience to bear much hard usage, he made many Christian private Addresses to his Lordship to give his Lordship a right understanding of the ways of God he proceeded in in his Ministrations, and likewise entreating him to be sensible of his many great surferings; but no redress being given, and the cause of God suffering much by his Lordships contests, and doing year after year worse and worse, the Minister was pressed in conscience, at length to apply the Word of God against the Earl by name for many public offences in the public congregation, praying also for him that God would reduce him from the evil of his ways, whereby he had offended him and his chosen ones. This the Minister did upon conscience of duty, respecting that of Saint Paul, Those that sin reprove before all, 
1 Tim 5.2  that others may fear. And wholesome pious rule of holy Augustine, Si quid vitii in amico deprehender is (saith that Father) corripe occulte, si te non audierit, corripe palam, sunt enimbonae correptiones & plerunque meliores quam tacita amicitia: & si laedi se putet amicus, tu tamen corripe; tollerabiliora emm sunt amici vulnera quam adulantium oscula. If thou find (saith that Father) any fault in thy friend, blame him secretly, if he will not hear thee, blame him openly; for reproofs are good, and for the most part better than friendship that holds its peace; If thy friend complains thou wrongest him, yet notwithstanding reprove him still, for more tolerable are the wounds of a friend then the kisses of a flatterer.  
Indeed it fell out so, according to that word the Earl thinks himself wronged in his honour by the Minister, who by a christian admonition endeavoured to repair it; for what could make more truly for his honour then to turn him from sin to God, and to wash away that stain which was a blot, no badge of honour. The Earl therefore commences a suit against the Minister, and being subtle in Lawsuits surprises the Minister at a time when he expected no trouble, and easily runs him down because he made little or no resistance, but commended himself to him that judgeth righteously, the Lord knowing both his work, and the integrity of his heart therein.  
The words the Earl lay to the Ministers charge, were these, that he should say of the said Earl, That he was a wicked man, a cruel Oppressor, and an enemy to Reformation.  
If the Minist had spoke these very words, might he not sufficiently have proved the crime? let us scan the words, A cruel Oppressor; does his Lordship call these a horrid scandal, let it be a scandal worthy to be punished by the Judges, and let my Lord for ever be guiltless of so horrid a crime; but what then dorh he say for himself for keeping back the Ministers deuce more or less from year to year for eight years together? For a year or two his Lordship allows a small part for tithes, for other years nothing: if tithes were not the Ministers right, why did his Lordship pay any? if they were his right, why did he not pay all? Is it not oppression to withhold 12 li. per an. for eight or ten years together from a Minister.  
Again, Is it not oppression to plant a Warren next to a Ministers Gleab-land, and fence it on every side but where it lies to the gleab, whereby the Minister was damaged for eight years together by the gain of his Lordship's Warren ten pound a year without any satisfaction or commiseration. This was the way indeed to have the Vineyard when it was denied, and rend free too.  
Again, Was it not oppression to seize upon part of the Ministers Gleab, to dig up and carry away trees from the Gleab at his Lordship's pleasure, contrary to all right and common justice, to arrest the Minister and his servants causelessly (unless it were because the Minister had too much patience, and would not be provoked to begin Law with the Oppressor) to vex, and worry, and disquiet him in the work of the Ministry. If the common Law of England (alas too much corrupted) will not account this Oppression, will not God declare against it as horrible oppression and violence? yea, and will not all good men's consciences condemn and detest it, if the like were done to themselves? What is this man's conscience made of, if it sleep and acquit him as righteous after all this?  

And for an enemy to Reformation.  
If the Earl of Leycestor were not an enemy to the good work of Reformation endeavoured by the Minister, why drew he off, seeing that our Lord Christ declares, That he that is not for him, is against him? and why were those that shunned the purifying of God's ordinances admitted to the Table of the Lord so freely at his Lordship's chapel? if his Lordship had to object against the way of the Gospel offered to the Church by the Minister in writing, why did he not disprove it? if his mouth was stopped, was he not then an enemy to that holy Reformation which he discouraged? yea, was not he an enemy to Reformation that sent a Copy of the Ministers way and discipline to his Lawyers to see if their subtlety could pick our a Praemunire of it? Will not the stones and the timber cry out of the wall and witness against such repugnancy and enmity to Christ and the precious unblamable way of Gospel worship? if these things do not evidence the crime which are but lightly touched, worse than these if God please to give time for inquiry may be made to appear, before the great day of the Lord come when he must look to be discovered before the world. But the Minister because he applied the word of God in the Congregation against the Earls sin in other expressions, not these, therefore he pleaded not guilty; but the Earl having got witness, and a Jury after his heart at Lent Assizes 1656. in Kent, Verdict was given for the plaintiff, 500 li. damages: See yet more cruelty, cruel man, and yet more cruel Law! why? what did the words deserve that a Jury of men should give such damages upon them? The Lord chief Justice Glin professed upon the Bench they were not so much as actionable at Common Law, and so not worth two pence, and must they be judged at 500 l. that were not worth two pence? In Queen Mary's days the Statute allowed but 100 li. upon those that had spoken horrid forgeries and scandals against the King or Queen, and is 500 li. given for words against the Earl of Leyecster, shall I say not scandalous? to the quick subversion of an innocent Minister and family indeed, but who would judge those words (of no public concernment) to amount to the quick subversion of the Realm, as the Earl prerends in his declaration? see how sin grows till it be fully ripe; from Enmity to open contests, from open contests to open bloodshed, and devouring of God's innocent people, as the Prophet Micah observes, Ye heads of Jacob and Peers of the house of Israel, 
Mic. 3.1, 2, 3  is it not for you to know judgement? who hate the good, and love the evil, who pluck off their skin from off them, and their flesh from off their bones, who so eat the flesh of my people, and flay the skin from off them, and they break their bones, and chop them in pieces as for the pot, and as flesh within the Cauldron, as if rage could never be satisfied.  〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. 
The just God saw all this, and records it against a day of vengeance, and says, v. 4. Then shall they cry unto the Lord, but he will not hear them: he will even bide his face from them at that time, as they have behaved themselves ill in their do.  
When the case was pondered before the Judges of the Upper Bench for an Arrest of Judgement, the two Judges were divided upon the case, one for the plaintiff, the others for the Defendant: so that there was an Arrest for two terms, then at length is Justice Newdigate put upon the bench, and the scales were turned, but the Judges having perused the cause, and seeing in their consciences the grievousness of it, sent three messages to the Earl to stop him from taking out Execution, or molesting the Minister upon the case: nevertheless the Earl that drove on so furiously hitherto, could not be persuaded by the Judges to stop his course, but took out execution upon Execution, three Writs of Fieri facias within the space of one year, and another Writ in the year following, sezing at several times the Ministers Corn, and Kine, and Horses, Wood, Hay, Wagons, Bed and Bedding from under him and his Children, and servants, and all the household furniture he could light on, even to the poultry about the house, and things of the smallest consequence that could add a groat to the Inventory, and that in the bitterest time of Winter, and yet all this is done by the Earl who would not be accounted cruel. This was an hour of darkness, but yet the Lord ordered it with such unexpected unseen, and admirable recompense of his love, as that though we walked in darkness, and saw no light of relief, yet we could trust in the name of the Lord, and stay upon our God. We are troubled on every side, yet not distressed, we are perplexed, but not in despair, persecuted, but not forsaken, cast down, but not destroyed, always bearing about in the body the dying of the Lord Jesus, that the Life also of Jesus might be made manifest in our body, for we which live are always delivered unto death for Jesus sake, that the life also of Jesus might be made manifest in our mortal flesh.  
This was the first case wherein the Peerage enjoyed their privileges after the act of the Commonwealth which took away the house of Peers; and must this be the first case whereupon those privileges are built again that were in so many Precedents laid aside? Must a Minister for reproveing of sin, and his whole family also, be plundered and destroyed to bear up the unsupportable burden of this unprofitable greatness; there was cruelty enough before without Law, and must there be much more mischief framed by a Law? For ever let the plaintiff be acquitted, and his cruelty not made mention of in regard of the transcendent cruelty of such Law. O ye Courts of Justice, ye Thrones of them that are called Gods, is this to do like God? God saith, Relieve the oppressed, judge the Fatherless, plead for the widow; and do you crush the oppressed, condemn and destroy the innocent, & outvie in cruelty the man that is blemished before you for cruelty?  
Ye Jurats upon whose account God will set these damages, how could you think in your consciences 500 li. a just proportion for words; for words not so much as actionable in the opinion of the Judges? would you think it just that others should mere the the measure to you again? can you look upon your Verdict, and hear what hath been done upon a spoilt Family, and not say, we are verily more guilty than the cruel Oppressor.  
Ye Honourable Judges, professed Patrons of the afflicted, who should have been afflicted in the afflictions of Joseph, and as Judah have rescued him; you that could not imagine any cruelty under a title of honour, or think that your messages would be of less acceptance and power with the plaintiff than your sentence; have not you cause also to say, as joseph's brethren, Verily we are guilty concerning our brother in that we saw the Anguish of his soul, when he besought us, and we would not hear.  
The Lord give you to know, and to have true remorse for what you have done, that it may not be laid to your charge in the great day of the Lord.  
You had little reason for what you have done, let us come closer to the matter, and prove it, that you had no Law neither.  
I shall reason it logically and plainly thus,  
That Judgement is unjust where there is no Law to warrant it,  
But this Judgement hath no Law to warrant it,  
Ergo, This Judgement is unjust:  
If there were any Law transgressed that could give occasion for such a Judgement, than it must be either the Common Law or Statute Law (for no other Law is pretended to by the plaintiff) but neither of these is transgressed, therefore there is no Law transgressed to ground the judgement upon, and so it must be confessed to be unjust.  
The Common Law can be no ground for this judgement, for it was yielded by the Judges (the Lord Chief Justice Glin acknowledging it in open Court) that the words alleged would not bear action at Common Law.  
If the Statute Law be transgressed (which were most absurd to say, that words which by the Common Law are not actionable, should be counted by the Statute Law to be horrible forgeries, subverting the Commonwealth; by common Law not worth a farthing, and by Statute Law set up to 500 li.) but I say, if any Statute of this Nation be violated, the honourable plaintiff ought to have mentioned it, and concluded his Declaration Sub forma Statuti; but the plaintiff doth not mention any Statute Law transgressed, hereupon the Judges of the Upper Bench were divided in their opinions: Judge Warberton judging the Declaration void upon this default, though the Lord chief Justice Glin allowed it.  
But let this fault pass, and let it be supposed that the Action be intended upon the Statute of Richard the second: we shall through God's help prove that the words alleged by the honourable plaintiff cannot be concluded within that Statute, and thererefore there is no Law to warrant it.  

The Statute runs thus.  
Anno secundo Rich secundi, Cap. 5.  
FOR Devisors of false News, and of horrible and false lies, of Prelates, Dukes, Earls, Barons, and other Nobles, and great men of the Realm, and also of the Chancellor Treasurer, Clark of the privy seal, Steward of the King's house, Justice of the one Bench, or of the other, and of other great Officers of the Realm; of things which by the said Prelates, Lords, Nobles and Officers aforesaid were never spoken, done nor thought, in great slander of the said Prelates, Lords and Officers, whereby Debates and Discords might arise between the said Lord, or betwixt the Lords and Commons, (which God forbidden) and whereof great peril and mischief might come to all the Realm, and quick subversion and destruction of the said Realm, if due remedy be not provided.  
It is straight defended upon grievous pain for to eschew the said damages and perils, that from henceforth none be so hardy, to devise, speak or tell any false news, lies, or other such false things of Prelates, Lords, and of other aforesaid, whereof discord, or any slander might arise within the same Realm: and he that doth the same shall incur and have the pain another time ordained thereof by the Statute of Westminster, etc.   
Now the Argument we draw to prove that this Statute cannot warrant the judgement, bears three parts, first to prove that the words are not concluded Sub subjecto Statuti, within the Subject of that Statute.  
Secondly, That the words are not concluded Sub materia Statuti, within the Matter of the Statute.  
Thirdly, That the words are not concluded Sub fine Statuti, within the End of the Statute.  
That we may not carry forth this dispute into a volume, we shall insist only upon the first of these, That the words are not comprehended within the Subject of that Statute, and contract all into five Arguments:  
It's proved thus, if the honourable plaintiff be not a person comprehended under the Subject of that Statute, then are not the words comprehended under the Subject of that Statute: now that the plaintiff is not a person comprehended under the Subject of that Statute, I crave leave to argue thus,  
If he be not qualified as the Statute supposes, then is not he a person comprehended under the Subject of that Statute: here therefore is the main point, Whether the Earl be qualified, so as that Statute doth suppose to make him Subjestum capax, a Subject capable of the privilege of that Statute; for if he be not, he cannot have a privilege by this Statute: Let us therefore fairly debate the point, and we reason thus;  
The persons specified in the Statute are Barons of the Realm, as the first words import, Barons, Nobles, and great men of the Realm: Now those that were Barons of the Realm, were not titulary Barons, but Parliamentary Barons.  
But the Earl of Leycester is no such Parliamentary Baron, as the Act of the Commonwealth for abolishing the house of Lords intimates; therefore by what right can his Lordship claim the privilege of this Statute?  

The Act for abolishing the House of Peers.  
THe Commons of England assembled in Parliament, finding by too long experienee, that the House of Lords is useless and dangeruus to the people of England to be continued, have thought fit to ordain and enact; and be it ordained and enacted by this present Parliament, and by the Authority of the same, that from hence forth the House of Lords in Parliament, shall be, and is hereby wholly abolished, and taken away. And that the Lords shall not from hence forth meet or sit in the said house, called the Lords house, or in any other house or place whatsoever, as a house of Lords, nor shall sit, vote, advice, adjudge, or determine of any matter or thing whatsoever as a house of Lords in Parliament.  
Nevertheless it is hereby declared, that neither such Lords as have demeaned themselves with Honour, Courage and Fidelity to the Commen-wealth, nor their Posterities who shall continue so, shall be excluded from the Public Counsels of the Nation, but shall be admitted hereunto, and have their free vote in Parliament if they shall be thereunto elected as other Persons of interest, elected and qualified thereunto, aught to have. And be it further ordained and enacted by the authority aforesaid, that no Peer of this Land, not being elected, qualified and sitting in Parliament as aforesaid, shall claim have or make use of any privileges of Parliament either in relation to his person, quality, or Estate, any Law, usage or custom to the contrary notwithstanding:  
Die Lunae 19 Martii 1648.   
If any will be so perverse and so much opposite to sense, as to say, the Earl may claim the privilege of this Statute, though he have nothing but an empty Title (if any such be left him whose Creation stands not in a Title, but in a work and capacity to serve the State) against this we shall argue from the very original Creation of Parliamentary Barons, which it recorded thus,  
Henry the third out of the multitude of those Barons that were in his time, whereof some were seditieus, chose out a certain number of good men, and by Writ called them to Parliamentary Counsels: This Rule Edward the first and his Successors kept to, and thereupon they alone were accounted Barones regni or Barons of the Realm. Afterwards Richard the second, and some Kings after him created Barons by their patent and putting on of Robes, and both these forms were in use whiles that order and constitution held, and those that are thus created Barons, are called Barones Parliamenti or Barones Regni, to difference them from others that were only nominal or titulary Barons.  
These Parliamentary Barons had not only a mere Title or name, but were all of them by birth Peers of the Realm, Et Consiliarii nati, and were created by the Kings Writ Ad tractandum de arduis regni negotiis & consilium de iis impendendum. Now to these belonged the privilege to be judged by their Peers, to judge upon their Faith and honour, not upon oath to be beheaded for crimes deserving death, to be free from Arrests and the privilege granted by the Statute of Richard the second, Now hence the Argument holds firm; that if not titulary Barons but Parliamentary Barons only, according to the first constitution were honoured with these Privileges, when any Baron ceases to be Parliamentary, his privildges must cease.  
To say therefore that merely titular Barons are capable of this privilege, were to say, that Henry the third when he instituted this Order of Parliamentary Baons', in contradistiction to other Barons gave both alike privileges, and so as amply honoured the seditious as the most trusty and faithful, which were the greatest absurdity that could be imposed; a thing contrary to the Rules and grounds of true honour.  
The second Argument to prove that the Earl is not a Subject qualified, as that Statute imports, may be offered from well grounded reason; thus,  
When the ground of a Privilege is taken away, needs must it be conceived the privilege itself is therewith taken away; but the ground of this privilege is taken away, Ergo.  
For the minor proposition. The privilege conferred by Statute upon Nobles, Barons and Peers above ordinary sort of men, must needs have its ground in that high capacity and native right the Nobles were invested with to serve the Commonwealth in more eminent manner then ordinary men; and to evince this, that this was indeed the ground of that privilege, therefore great Officers of state about the King, who were no Peers, yet of great usefulness, are privileged also by this Statute as well as Lords and Nobles of the Land; it being thought meet that men of eminent service above other men should be endowed with privileges above the common sort of men: but now this ground fails upon the abolishing the house of Lords, their high capacity for public service being taken away, how can it be therefore but the privilege also must fail with it?  
Shall my Lord the Plaintiff be in a capacity by a privilege to undo his poor neighbours, and not in a capacity to preserve them? or can it be imagined that the Parliament have took away from Peerage its chief power and capacity to do good, and left nothing but a power to do hurt, a sting to wound, but no balm to heal? God forbidden: till then the plaintiff be reinstated in such a capacity for public high service, as is meet to be a ground for so high a privilege, let him forbear to assume it, for I think no man will see reason for it.  
Can there be heat in a Chimney when the fire is put out? or water in the Channel when the fountain is dried up; or light in the horizon, when the Sun is gone down? or a house remain standing when the foundation is took away? no more can a privilege remain when the reason or ground thereof is abolished.  
The third Argument, A causa finali, from the final cause or end specified in the Statute, whereupon this privilege was given the Nobles, I reason thus, If the end or final cause for which this privilege was granted the Peers be frustrated, the privilege must be also frustrated, but the end for which this privilege was granted, the Peers seems to be frustrated; Ergo, this privilege itself must fall, and be frustrated also. Let us then examine the end wherefore this privilege was given the Nobles, and 'tis expressed plainly in the Statute, To prevent disturbance and quick subversion of the Commonwealth. Scandals of a high nature and horrible forgeries that tend Per see to make Divisions between Nobles, being laid upon any one of the Nobles of the Realm, it was thought thereby the whole Commonwealth might quickly be disturbed and distracted; and therefore such an Offence was to be severely punished.  
It's true indeed, as Aristotle observes, it fell out in Syracuse contests between two chief Magistrates, there endangered the ruin of the whole Commonwealth: and so it was supposed by this Statute, that contests between the Nobles and persons in great office, might haply endanger the Commonwealth by civil wars, and therefore to prevent such differences apt to be fomented by false reports, carried to and fro to incense the spirits of great men one against the other: therefore I say was this Statute made.  
But now that the house of Lords is abolished, and the Peers cease to be chief Senators and Officers of State, and have no such public trust as then, the danger is not now as then; and therefore no ground for the privilege to be now as then.  
The fourth Argument from want of Precedents in the case.  
Was there ever any commonwealth, or any age of the world wherein men of great Titles, and little or no use in public administrations enjoyed, such a privilege as this is above those that in virtue, wealth and serviceableness to the State, do far exceed them.  
Or is there any one precedent upon Engish Records, since the Act of the Commonwealth, for abolishing the house of Lords, to prove that any one of the Nobles had their privileges allowed them before this case? The Lord Arundel, Lord Shandois, and others it seems had not their privilege (though desired) granted them, and what reason that the Earl of Leycester only should have his privilege granted him? If the old privileges belong to all Peers, why were they not granted others? If they belong to none, why are they given the Earl of Leycester? Surely either other of the Nobles, have had much wrong, or this man hath more than his right.  
The fifth Argument, to prove that one that ceases to be a Parliamentary Baron, is no meet subject for the privilege which the Statute of Richard the second allows, may be drawn from the Act of the Commonwealth in this manner.  
THE giving Privileges to the Peers by sitting in Parliament, argues they had not them before upon account of their Title; for what need hath a man to have that given him, which he hath already of his own? Or what privileges doth the Act give the Lords by sitting in Parliament, if they had better without sitting?  
Now by the Act of March 19 1648. it is granted that Peers qualified and elected to sit in Parliameent, shall have the privileges of Parliament, both to their Person, Quality, and Estate, and not otherwise.  
What are those privileges? If the ordinary privileges of Parliament, than they had no more privilege than the rest of the Commons of England; if they were extraordinary privileges belonging to them as Lords, it argues than they had them not without this grant, upon the score of their dignity and Title, which is as much as we expect to have granted us, and then it must needs follow, that their privileges are grounded upon a parliamentary capacity, and not upon a mere Title.  
In the last words therefore of the Act this is clearly expressed, That no Peer of this land not being elested, qualified, and sitting in Pariiament, shall claim, have or make use of any privilege of Parliament, either in relation to his person, quality or Estate, any Law, Usage or custom to the contrary notwithstanding.  
The Objections were so frivolous, that were made in this case, that men even of ordinary capacity and reason would nauseat them as slight, and too light to weigh a grain in the scales that Justice holds in her hands, and I purposely omit them as not worthy to trouble the READER farther.  
As likewise I wave other Arguments copious and strong, upon the Subject, and upon the matter, and upon the end of the Statute of Ric. the second, to prove that these pretended words, (if they had been spoken) yet could not be comprehended under that Statute.  
But these perhaps will be thought clear and sufficient enough to convince that this Judgement was unjustly given, and cruelly executed; which I leave to the Lord to redress in his time, beseeching him of his wont grace to give us all joy and patience in suffering.   
FINIS