their ecclesiasticall Courts in their owne names and not in the Kings having procured a Proclamation 1637. declaring the opinions of the Judges that the Stat. of 1o. Edw. 6. cap. 2. is repealed and of no force at this day and that Bishops may keepe Courts in their owne names ob 5 It is objected by the Clergy that these new Cannons were made by authority of the King by his Commission dated 12o. Maij last and therefore they had a warrant for what they did answ This is no excuse for if the Cannons which they made be contrary to the proviso in their Commission and contrary to Law which I have proved before this is so farre from excusing that it aggravates their offence for hereby the King which by Law can doe no wrong to his people is by this Commission made by them an instrument of injury to his people Divines say simulata sanctitas duplex iniquitas because to the outward breach of the Law there is added an inward hypocrisie of the heart which doubles the sinne So in acts of Injustice countenanced by Law there is added to the Injustice a deceipt to the King which doubles the offence Many examples may be given in this kind I will only name three 1. Cardinall Woolsey had a Commission from the King for keeping his Legantine Courts but yet this Commission was no excuse to preserve him from an attainder in a Premunire as I said before 2. Stephen Gardiner Bishop of Winchester in his letter to the Lord Protector mentioned in the first Edition of the Acts and Monuments of the Church but left out in the latter doth cite the Lord Tiptofts case who had a Commission from the King to execute divers things which being found in the execution to be against Law he lost both his head and his Commission at Tower Hill 3. The third and last example is Sr. Anthony Mildmayes case 14º Jacob. in the Kings Bench who was a Commissioner of the Sewers which Commission is grounded upon the Statute of 23o. Hen. 8. who by vertue of his Commission did cause one to be distrained for a fine imposed upon him by vertue of the Commission of Sewers who brought an action of trespasse against the partie that distrained him and had judgement to recover Sr. Anthony Mildmay by an order from the Sewers caused him to be imprisoned till hee had released the judgement for which offence Sr. Anthony Mildmay was sued in a Premunire in the Kings Bench to which he pleaded and was faine to procure a pardon from the King for his discharge ob 6 The last and greatest Objection is this The Bishop of Exceter and divers Divines more hold that the Jurisdiction of Bishops is jure divino whereupon it folowes that neither prohibition nor Premunire can restraine that Jurisdiction which derives from the Law of GOD. answ This indeed is true if their Jurisdiction were of that nature but I have proved before by divers Acts of Parliament that their Jurisdiction is acknowledged by the Law of England onely to be jure humano so are the Statutes of 35. Edw. 1. called the Statute of Carliel 25o. Edw. 3.25o. Hen. 8.26 Hen. 8.37 Hen. 8. 1o. Eliz. c. and Co. 5. Rep. Cawdries case The Common Law doth agree with these Statutes for the Canonists as heretofore I have told you doe observe a double power to be in a Bishop Potestas ordinis common with other Ministers as to Preach Baptize c. and Potestas Jurisdictionis as to admit institute deprive excommunicate c. The former they say is de jure divino the latter is de jure Canonnico or positivo which is agreeable to the Statutes I cited before but what doe I speake of the Common Law for the very Church of England seemes to be of this opinion for in our Booke of Common prayer no more is allowed to Bishops in point of divine right then what is common with Pastors Ministers and Curats for there are but three prayers for Bishops in all the Booke of Common prayer and they all runne to the same purpose The first is in the Lettany in these words that it may please thee to illuminate all Bishops Pastors and Ministers of the Church with true knowledge and understanding of thy word that both by their preaching and living they may set it forth and shew it accordingly wherein nothing is mentioned but their knowledge of GODS word their good life and doctrine The next prayer for them is after the prayer for the King and his Children in these wordes That God would send downe upon all our Bishops and Curats and all Congregations committed to their charge the helpefull spirit of his grace that they may truly please him c. where the taking care of the cure of soules in Congregations committed to them is the maine thing which we pray for them on their behalfe The last is in the prayer for the militant Church in these words Give grace O heavenly Father to all Bishops Pastors and Curats that they may both by their life and doctrine set forth thy true and lively word and rightly and duely administer thy holy Sacraments where there is not so much as a word mentioned of their Jurisdiction but of their true preaching good living and due administration of the Sacraments And so Mr. Speaker doe I conclude my whole Argument touching the penalty incurred by the Clergy for their illegall Cannons made in their Synod at Paules concerning which I will end all in these two Verses which may be better applied to this Synod then the Arminians applied them to the Synod at Dort Paulinae Synodus nodus Chorus integer aeger Conventus ventus Sessio stramen Amen FINIS
TWO ARGUMENTS In PARLIAMENT THE FIRST CONCERNING THE CANNONS THE SECOND CONCERNING THE PREMVNIRE Vpon those CANNONS By EDWARD BAGSHAWE Esquire LONDON Printed by George Miller M.DC.XLI THE FIRST ARGVMENT CONCERNING THE CANNONS Mr. SPEAKER THE order this day is to debate the legality of the Cannons only and not the Premunire which divers have argued that the Clergy have encurred by making and publishing these Cannons but of that of the Praemunire I shall not now speake but when an order is made therof I shall declare my opinion I hold three illegallities 1. In the Cannons Primae Classis 2. In the Oath contained in the sixt Cannon 3. In the Cannons Secundae Classis 1. In that they are against Clergy and Laity without their common consent 2. That they were not well created by any of the Kings Writs or Commissions to inable them to make Cannons which were not made in a Convocation or in a new Synod derived out of an old Convocation as was wittily observed by a noble Lord but they were made in a meere convention of the Clergy who had no warrant or authority to do as they did 3. The matters contained in the said Cannons are against the fundamentall Laws and Statutes of the Realme In prooving all which I will not insist upon any thing that hath bin said before as fearing that I shall otherwise trouble you too long The first point that I shall endeavour to proove is that the Clergy neither since nor before the Sta. of 25. Hen. 8. cap. 19. could ever make Cannons and Constitutions that should bind the Clergy and Laiety without their common consent For the prooving whereof I must make use of a Rule put in the 1. Booke of the Pandects of Justinian Tit. De origine iuris Inconveniens est omissis principijs origine non repetita illotis manibus materiam tractare He doth not handle but slubbers a question who deduceth it not from the fountain And therefore I will cast the whole Clergy into five Stages of time from CHRIST to this very day and in them all I shall proove this point it being the maine thing and of the greatest concernement to the liberty of the people The first is from CHRISTS time till the dayes of Constantine above three hundred years after CHRIST in all which time there was no distinction betwixt causes civill and Ecclesiasticall but both were tryed before the temporall Judges of Emperours and Kings as appeares plainly in the Imperiall constitutions neither will any Civilian deny it for to speake properly no causes that come in Judgement are spirituall or temporall in respect of themselves For what reason can any man give me why murther tryed at this day by the temporall Judge should be lesse spirituall then Adultery tryed by the spirituall Judge when the truth is that Adultery is farre more carnall and sensuall then murther is But the true reason of the difference is from the graunt of Emperours and Kings who have given Conusans of this to the Ecclesiasticall Judge and of the former to the Temporall And the true Reason why Emperours and Kings in this first age had the Conusans of all causes whatsoever as belonging to their temporall Courts is For that in those times there was no difference betwixt Bishops and Priests in point of Jurisdiction but they were all one and had then no more to doe then to order the Churches by diligent and godly preaching administring the Sacraments beating down Heresies and Schismes c. And that this may not seeme strange because I say it though I could backe it with a multitude of Authorities both old and new Yet because I am loath to spend time I will onely cite two which are of good credit with the Clergy The first is out of the decrees of the Cannon Law compiled by Gratian distinct 95. cap. olim Rubricke Presbiter idem est qui Episcopus ac sola consuetudine praesunt Episcopi Presbiteris TEXT Olim idem erat Presbiter qui Episcopus antequam Diaboli instinctu studia vel schismata in Religione fierent disceretur in populis ego sum Pauli ego sum Apollo ego autem Cephae communi Presbiterorum concilio Ecclesiae gubernabantur postquam autem decretum est in toto orbe ut unus de Presbiteris supponerctur ut schismatum semina tollerentur Sicut ergo Presbiteri sciunt se ex Ecclesiae consuetudins esse subiectos Ita Episcopi noverint se magis consuetudine quam dispensationis Dominicae veritate Presbiteris esse maiores in communi debere Ecclesiam regere The second is out of Bishop Jewell in the defence of his Apology approoved by both Houses of Parliament and commanded to be in Churches 2 Par. ca. 3. Divis 5. In St. Jeroms time saith he there were Metropolitans Arch-bishops Arch-deacons and others but CHRIST appointed not these distinctions of orders from the beginning Epist aâ—l Tit c. 3. these names are not found in all the Scriptures This is the thing that we defend St. Jerome saith Let Bishops understand that they are in authority over Priests more by custome then by order of GODS Truth These be St. Ieromes words truly translated And Part. 6. cap. 9. Divis 1 2. he hath these words I grant there be many speciall priviledges granted upon great and just considerations of the meere favour of the Prince That a Priest being found negligent or otherwise offending in his Ministry should be convented and punished not by the Temporall or Civill Magistrate but by the discretion of the Bishop yet you must remember Mr. Harding that all these and other like priviledges passed unto the Clergy from the Prince and not from GOD and proceeded only of speciall favour and not of right for from the beginning you know it was not so The second Stage or Tract of time is from Constantines dayes untill the Conquest in which time the Emperours of Rome and the Kings here in England gave to Bishops divers Jurisdictions and Priviledges over the Priests which they had not before as you may see in the Code and Novels of Iustinian They had likewise Conusans graunted to them of all causes concerning Matrimony and Testaments which I could tell you by what meanes they first obtained these two were it directly pertinent to this Point But the Power and Right of making Ecclesiasticall Lawes were ever reserved to Emperours and Kings with the assent of the people and not to the Bishops and Clergy To omit the Imperiall Constitutions of Constantine Theodesius Put out by Lambert Iustinian and other Emperours it appeares plainly in our Saxon Lawes made long before the Conquest by these severall Kings Ina Alfred Edgar Canutus Edward the Confessor c. that all Ecclesiasticall Lawes both concerning Doctrine and Discipline were made by them Cum consensu Aldermannorum populi in their Michel Gimot or great Assembly which is all one with our Parliament Nay to their very Councels and Synods
this seems to be the meaning of that Act that the Parliament should have a power in establishing the Canons of the Clergie it appeares by that Act in the appointing of the 32. Commissioners for the making of Canons whereof 16. were to be taken from the Temporalitie out of the upper and nether House of Parliament and 16. more were to be taken from the Clergy So that the Clergie had not that power to do it alone without the Laity though they had the Kings Royall assent thereunto And that the practise was alwaies so that the Acts and Constitutions of the Clergy had their determination and conclusion in Parliament appeares by these examples The 6 Articles mentioned in the Stat. 31. Hen. 8. cap. 14. 31. H. 8. cap. 14. were debated in the Synod or Convocation of the Clergy but were not binding to the people without confirmation in Parliament as appeares clearly by that Act. 32. Hen. 8. cap. 26. The institution of a Christian man compiled in a book by all the Clergy of England containing matter of doctrine as likewise the Rites and Ceremonies of the Church were not binding to the people without the approbation and confirmation of the Parliament of 32. H. 8. c. 26. as appears by that Statute And whereas it was said under the Gallery that the Laietie have nothing to do to meddle with matter of Religion If he had pleased to have cast his eyes upon the Stat. of 1. Ed. 6. ca. 1. he would have found there a notable debate and dispute in Parliament by the Laitie onely against Transubstantiation m l. 5 In S Th. Cottons library and Communion in one kinde as may appeare in that Statute Besides I have seene the Diary of King Ed. 6. written with his owne hand wherein he hath this passage This day there was a notable debate in the Lower House of Parliament against the Communion in one kinde So the Statutes of 2. E. 6. cap. 21. and 5. E. 6. cap. 12. concerning marriage of Priests gave a finall determination to that point by a binding Law upon a debate had first in the Convocation The Canons and Constitutions made by the 32. Commissioners upon the Statutes of 27. H. 8. cap. 15.35 H. 8. cap. 16. and 3. Ed. 6. c. 11. were compiled 6. E. 6. and afterwards printed and published and all the Commissioners names I have seen under king E. 6. own hand and although they be singular good Laws and written in excellent language yet because they have not had the allowance of Parliament are not received as binding Laws at this day Lastly the 39. Articles of Religion made in the Convocation 1562. were not binding Laws to the whole Kingdome till they had their approbation and confirmation by the Stat. of 13. Eliz. cap. 12. Thus have I as briefly as I could run over the practise of all ages in making Ecclesiasticall Laws and the reasons of their practise are briefly these A comparatis by an argument a minori ad majus If property of goods cannot be taken from me without my assent in Parliament which is the fundamentall Law of the land and so declared in the petition of right why then property and liberty of Conscience which is much greater as much as bona animi are above bona fortunae cannot be taken from me without my assent Libertie of Religion and Conscience are as I take it within the words of magna Charta M Ch. cap. 29. graunted to me as mine Inheritance cap. 29. Nullus liber homo imprisonetur aut disseisetur de libertatibus vel liberis consuetudinibus suis And liberty of Conscience is the greatest liberty It is by a necessary Consequence and deduction within the words Imprisonetur for put the Case that the Clergy make Cannons to which I never assented and I breake these Cannons whereupon I am excommunicated and upon a significavit by the Bishop my body is taken and imprisoned by a writ de excommunicato capiendo now shall I lye in prison all the dayes of my life and shall never be delivered by a Cautione admittenda unlesse I will come in parere mandatis Ecclesiae which are point blank against my conscience And thus have I proved the first and chiefest point that no Cannons can bind the Laiety and Clergy without consent in Parliament and therfore these Cannons made against the Laiety as well as the Clergy without their assent cannot bind Point 2 I come now to the 2d. point which is this Admitting the Clergy have power to make Cannons without common assent The question is whether they had lawfull authority to make these by force of the Stat. of 25. Hen. 8. cap. 19. I thinke they had not The words of the Statute by which the Clergy have power to make Cannons 25. Hen. 8. cap. 19. are penned in the negative That they shall not enact promulge or execute any Cannons or Constitutions c. in their Convocations and which alwayes shall be assembled by authority of the Kings writ unlesse the same Clergy may have the Kings most royall assent to make promulge and execute such Cannons upon paine of imprisonment and to make fine at the Kings will By which it plainly appeares that the Clergy have no power to make Cannons but in their Convocation and that to the making of these Cannons there must be the Kings royall assent Whether this were so or no comes now to be examined wherin is to be observed the severall writs and Commissions which they had for the making of these Cannons The first writ that issued forth About the first of Feb. 1639. was the Parliament writ directed to every Bishop for calling them and their Clergy which had this clause in the latter end Ad consentiendum ijs quae tunc ibidem de communi concilio regni nostri divina favente clementia contigerint ordinari The 20. of February following went foorth two Writs more called the Convocation Writs directed to the severall Arch-bishops of Canterbury and Yorke for the election of Clerks to the severall Convocations which had these words in the writs Ad tractandum consentiendum concludendum super praemissis alijs quae sibi clarius exponentur tunc ex parte nostra The Parliament began the 13th of Aprill following and on the 15. of Aprill issued out a Commission to the Arch-bishop of Canterbury to alter amend and change the old Canons and to make new during the Parliament the like went to the Arch-bishop of Yorke On the fift of May following the Parliament was dissolved wherby as I conceive the Law to be the Convocation was likewise dissolved and determined which being so and no Cannons made by them all this time then could there be no Cannons made in the Convocation according to the words of the Statute And therfore the 12. of May following there went foorth another Commission to the Arch-bishop of Canterbury to make Cannons c. during the Kings will