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
Chart. and the many liberties which he granted to his people by the Statutes of 25. Edw. 1.33 Edw. 1. and 34. Edw. 1. as likewise by the sharpe Laws which he made against the Popes exactions by the Statute of Carliel 35. of his Raigne he was for all these rightly stiled vindex Anglicanae libertatis in doing thus he strengthened mightily his Prerogative for Prerogative and liberty are inseperable 3. Caroli Petition of Right as King CHARLES truly observes in his answer to the Petition of Right that the Prerogative is to maintain the peoples liberty and their liberty strengtheneth the Prerogative In his Parliament speech 1607. And King James his father declaring that Kings were given for the welfare of their people hath this passage If you be rich I can never be poore and if you be happy I cannot choose but he fortunate c. And these observations proved true and were fulfilled in this King For never any Prince either before or after him was more victorious and successefull then himselfe through the riches and wellfare of his people who upon all occasions aided him in his warres with their purses and fought his battels in their persons Till the 13th yeare of this King the Clergy had no jurisdiction in Ecclesiasticall causes properly allowed to them but in causes of Matrimony and Testament as may appeare by Fitz. Nat. Bre. Fo. 41. and by divers Records which I have seen about the beginning of this Kings time But in the 13th year of this King came the statute of Circumspectè agatis wherin they had Conusans of many more things as may appeare by that Law and though before this time they did attempt to put in ure their owne Constitutions yet the Judges being at that time stout and resolute alwaies sent out Prohibitions as may appeare by the Preamble of the Statute Rex talibus Judicibus salutem circumspectè agatis de negotijs tangent Episcopum Norwici eius Clerum non puniendo eos si placitum tenuerint in Curia Christianitatis de his quae sunt merè spiritualia vix c. and there reckons the particular things they shall hold plea of and of no more and although it mentioneth only the Bishop of Norwich who was in those dayes the most pragmaticall Bishop for the power of the Church yet doth that Statute extend to all the Bishops of the land and is so resolved in Plats case Plo. Com. fol. 36. b. And although this be set downe in Lindwoods Provincials to be onely an ordinance of the Church which was the cause that the Gentleman under the Gallery said it was only an ordinance of the Church yet the truth is it was an Act of Parliament as may appeare by the Statute of 2. Edw. 6. Cap. 13. Where it is expressely called a Statute and so it is likewise resolved in the 4. rep Palmers case and in the 5. report Jefferies case In Edw. 2. time the Clergy by petition to the King but not otherwise got jurisdiction in many other Causes not specified in the Statute of Circumspectè agatis as you may see in the Statute of Articuli Cleri made 9◠Edw. 2. too long to remember These two Statutes were so pretious with the Clergy that they are inserted verbatim in the Provinciall Constitutions of Lindwood as the maine part of the Church law as in truth it is In King Edward 3. time the Clergy got further Jurisdiction in 9. particular points not formerly graunted to them as may appeare by the Parliament of 25. Edw. 3. called Statutum pro Clero a Statute which I have some cause to remember It appeares in the Parliament roll of that Statute upon what ground they demanded those priviledges which the King then graunted to them not out of right but by an humble supplication to the King in these words mentioned in the Roll being in French That pur breverence de dien de St. Esglis de sa benignity he would graunt them all those liberties they petitioned for In Henry 4th time the Clergy got some power with that King and made a Constitution called constitutio Tho. Arundel contra Hereticos but this Constitution they never durst put in ure till they had coloured it with that bloody Statute of 2. H. 4. Cap. 15. called Statutum ex officio which in truth was no Statute as may appeare by the Parliament Roll which I have 2. Hen. 4. tit 48. being stiled petitio Cleri contra Hereticos And where it is said in the Act praelati clerus supradicti ac etiam comunitates dicti regni supplicarunt these words ac etiam comunitutes dicti regni are not in the Parliament Roll and so was the truth that the Commons did never assent to that Act as may appeare likewise by the Latine Act printed in Linwood For whereas the Act runnes in this forme of words Qui quidem dominus Rex ex assensu Magnatum aliorum Procerum ejusdem regni c. concessit statuis c. there is no mention at all of the Commons and therefore to helpe this the words of aliorum procerum are thus rendred in the English Statute now in print and other discreet men of the kingdome whereby are implyed the Commons and whereby hundreds of Martyrs were cruelly put to death by mistaken law Vide N. Br. de Heret Comburend fo 170. of which greevance the Commons from time to time complained in sundry Parliaments and never rested till that bloody Statute was hereupon quite revoked by the Stat. of 25. Hen. 8. cap. 14. and the oath ex officio which had his originall from that cruell Statute quite taken away In the daies of Hen. 8. in that famous case of Dr. Horsey and George Hunne mentioned in 7. Hen. 8. Kelwayes rep 182. It was resolved by a kind of Committee of both houses of Parliament at Black-Friers at which the King and all his spirituall and temporall Councell were present as it seemes by that booke where it was resolved that no Ecclesiasticall lawes did bind the people but what they assented unto And now I come to the 5 th and last stage or tract of time viz. 25. Hen. 8. untill this very time The Stat. of 25. Hen. 8. cap. 19. I hold to be nothing els but a declaration of what the Common law was before and not introductive of a new law which is the reason as I conceive that the Statute is penned in negative words that they shall not make Constitutions and Cannons without the Kings assent which may be interpreted his assent in Parliament as well as his assent and confirmation by his letters Pattents 2. That they shall not make Cannons contrary to the Kings Prerogative the Lawes Customes and Statutes of the land now what can they tell what is the Kings Prerogative the Laws and Customes of the Realme unlesse the Laity who have more skill then they to judge of those things do give their assent And that
in exhaeredationis Coronae nostrae periculum manifestum which is in sence and meaning though not so strong and significant as praemonere facias For the expounders of the Civill and Cannon Lawes confound both words according to the Proverbe premoniti sunt premuniti But this Writ of praemu is better understood by the Statutes on which the same is founded viz. 25. Edw. 3. c. 22. 27. Edw. 3. cap. 1. de provisoribus 16 Rich. 2. cap. 5. which Statutes were made for the correction of the incroachment of the Pope and his Clergy upon the Crown and Laws of England Upon all which Statutes and bookes of Law I thus define a praemu A praemu Definition is a defence of the Crown and Laws of the Land from the tyrrany and oppression of spirituall Jurisdiction either forraine in the Pope taken away by the Stat. of 1. Eliz. or at home by the Clergy in the Ecclesiasticall Courts wherby is incurred this penalty of being put out of the Kings Protection losse of lands and goods and perpetuall imprisonment This may seeme a sharpe and severe punishment to be inflicted on Clergy men but when the reasons and grounds of Law are considered and how the Kings of England were necessitated to it the sharpnes of the punishment will not seem strange to any which is the second head of my division and which I now come unto 2. Concerning the originall cause and ground of the praemu it ariseth from the opposition and Antipathy betwixt the Common and the Cannon Law or the Law of God and the Law of the Pope the Common Law being derived from the one and the Cannon Law from the other which makes the opposition as great as betwixt CHRIST and Antichrist which hath in all ages as I could shew you caused a hatred of our Law and of the professours therof from the Clergy and professours of the Cannon Law And that this may not seeme strange I will very briefly in honour to the Common Law prove and maintaine that it is derived from the Law of GOD and is the nearest unto it of any Law in the world which King James hath largely prooved in a Parliament Speech of his 1607. but yet I will give 2 or 3. instances more It is thus said by Priset chiefe Justice of the Common-pleas 34 H. 6. f. 40. ley denglitre est foundu sur le ley de dieu which being translated out of our Law-French into better English is thus the Law of England is founded upon the Law of God Ley de tre ley de dieu sont 7. H. 8.191 Kell tout un per Fineux chiefe Justice of England that is the Law of God and the Law of the Land are all one Pollard to the same purpose But it will be said 12. H. 8 f. 2 that this was onely the opinion of Lawyers and every one will be ready to commend his own profession and therfore I shall go much higher In the yeare of CHRIST about 169. Lucius a King of England was the first Christian King and the first annointed in all the world and presently after he was converted to the Faith sought how to governe his people by good Lawes and finding that the Romane Lawes were then the most famous in all the world sent by his Letter to Elutherius then Bishop of Rome for a coppy of those Lawes that godly Bishop for so the Bishops of Rome then were and long after wrote an answer of his Letter to this effect Petistis à nobis leges Romanas vobis transmitti c. leges Romanas reprobare possumus legem Dei nequaquam c. Habetis penes vos in regno utramque paginam ex illis sume legem per illam rege vestrum Brittanniae Regnum vicarius enim Dei estis in regno c. as may appeare more at large in the Lawes of St. Ed. cap. 17. compiled by Lambert where the letters are set downe at large and therfore King James had good cause to say That the Lawes of England were framed as neare as could be to the Judiciall Lawes of Moses And this affinity which our Law hath to the Law of GOD hath beene the cause as I conceive of that contention betwixt our Law and the Canon Law which hath beene like to that of Hagar contending with her Mistris and hath received divers times the same doome Cast out the bond-woman and her sonne as I could proove by many presidents which for brevity I omit And as the contention and opposition increased so did the punishment as may appeare in these foure particulars The first punishment upon the Clergy was prohibition onely The second was a prohibition with a pain The third was by fine and imprisonment The fourth and last when none of the rest would do good was by a Premunire and there it ended 1. For the first It is observable that the first newes of the Canon Law here in England was Anno 1150. xvj Steph. Reg. compiled by Gratian and called the Popes Decrees but came to us here in England by a wile under another name called Rogationes and intreated to be received of us under the pretext of Holinesse because of the fasting and Ember-dayes tending to fasting and prayer which those Lawes seemingly contained and hence the Ember before Whit-suntide is called the Rogation weeke from that name But King Stephen finding them pernicious to the native Laws of England gave them this welcome and entertainment for faith Roger Bacon Rex Stephanus allatis legibus Italiae meaning the Cannon Lawes publico edicto prohibuit ne ab aliquo retinerentur 2. When this prohibition would doe no good but other Cannon Lawes were thrust upon us in the time of Hen. 2. as the Decretall Epistles under Pope Gregory the ninth from which that flaming Law of burning Hereticks was first hatched a sharper punishment was devised by Hen. 3.19 of his raigne against the Civill and Cannon Laws prohibiting the use of them here in England under a severe pain as Laws that were derogatory to the supreame Majesty and independancy of the Crowne of England 3. After these Decretals the Extravigants of Boneface the 8th were brought into this Kingdome which were so injurious to the Soveraignty of Kings that whosoever shall but reade one of those Lawes called unam Sanctam will say that either a King of England must lay downe his Crowne or quite abandon those Lawes Whereupon Edw. 1. taking care to preserve the Crowne and the liberties of his people did in the third and sixt yeare of his Raigne issue out divers Inquisitions to enquire of the Jurisdiction of the Clergy Fitz. N. B. 40. which at that time was limited chiefly to matters of Matrimony and Testament untill the Stat. of 13. Edw. 1. called Circumspectè agatis inlarged their power and Jurisdiction in many more particulars One of those Inquisitions Ao. 6. Edw. 1. I will only mention instead of many which was taken at