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
jurisdiction but by from and under the King Nay this power in Bishops to excommunicate is a power of jurisdiction and derived to them from the Pope say the Canonists Azorua Lanelot Instit Iuris can We say in our Law that they have this power from the King for though Kings cannot excommunicate ministerialiter by reason they are Lay-persons as saith Bracton l. 1. c. 8. yet they may do it authoritative by reason of their office by Commission from them Otherwise let any man tell me how Judges Delegate do at this day excommunicate but by Commission from the King grounded upon the Statutes of 24. H. 8. cap. 12. and 25. H. 8. cap 19. Oâ— how doth the high Commission at this day excommunicate but by the like authority grounded upon the Statute of 1. Eliz. And therefore I do conclude this third exception that â—â—â—ing the Clergy doe seem by this Oath to derive their 〈◊〉 â—on by any other right then from the King they have hereby mightily intrenched upon the Kings Prerogative 4. The fourth and last exception to the Oath iâ— in these words Nor shall you ever subject it meaning the Church of England to the usurpations and superstitions of the Sea of Rome and doth not say the Church of Rome wherby it containes a negative Pregnant That is to say you may not subject the Church of England to the superstitions and usurpations of the Sea of Rome but you may subject it to the usurpations and superstitions of the Church of Rome Now there is as much difference betwixt the Sea of Rome and the Church of Rome as betwixt Treason and Trespasse and this appears plainly by the Statute of 23o. Eliza. cap. 1. where it is said that to be reconciled to the Sea of Rome is Treason but to be reconciled to the Church of Rome is not Treason for then every Papist in England should be a Traitour being a member of that Church and therfore reconciled to it Now the Sea of Rome is nothing else but the Papacy or Supremacy of the Pope wherby by vertue of the Cannon unam sanctam made by Pope Boneface the 8th he challengeth a superiority of Jurisdiction and correction over all Kings and Princes upon Earth and those persons which take the Iuramentum fidei contained in the end of some of the editions that I have seen of the Councell of Trent which acknowledgeth this Supremacy are said to be reconciled to the Sea of Rome The Church of Rome is nothing else but a number of men within the Popes dominions or else where professing the religion of Popery and that the Clergy had an ill meaning in leaving this clause in the Oath thus loose I have some reason to imagine when I finde in their late books that they say the Church of Rome is a true Church and Salvation is to be had in it Concerning the Benevolence of 6. subsidies granted by the Clergy I will speake but a word because I have troubled you too long It is not a Subsidy for then it should have bin by the Convocation during Parliament as the books are 1. Hen. 7.21 Edw. 4. 28. Hen. 8. and as the use is at this day to passe in the Acts of Subsidy But it is called a Benevolence or free gift and yet if any refuse to pay it he shall be deprived which is a very Bull for if men be compelled to pay it how can it be said to be a free gift Besides the King was not well dealt with as I conceive in passing his letters Patents of confirmation of this Benevolence dated 3o. August 16. Carol. For upon a signification of his Majesties pleasure by the Arch-bishop of Canterbury the Docket is to this effect drawn up May it please your Majesty this doth contain your acceptance of this benevolence and your confirmation of the same and yet there is a clause in the letters Patents not mentioned to the King in the Docket Vid the Dock wherby the Clergy have power to make Cannons and decrees compelling the payment of the same upon paine of deprivation and so they did against all Law to annex deprivation to offences of such a nature De Minist Ecclesitit 8. when as by the late excellent Lawes of Reformation leg Ecclesiast tit de Deprivatione Ministers are not to be deprived but propter horrenda flagitia and so saith Duarenus an excellent Civilian And so M. Speaker I have done with the Cannons and conclude that they are illegall 1. In point of originall Jurisdiction 2. In point of Derivative authority 3. In the matter and form of them or more briefly in the language of the Schooles they are illegall and void in toto in qualibet parte FINIS THE SECOND ARGVMENT CONCERNING THE PREMVNIRE March 2. 1640. Mr. SPEAKER I Am by the order of the House to speak this day of the penalty which the Clergy by making their late Cannons in their late convention rather then Synod have forfeited and encurred The time before I debated the illegallity of those Cannons that was de culpâ this dispute is de panâ Illegall faults draw after them legall punishments For there are no veniall sinnes at the common Law I was long in the debate of the Cannons and I feare that the weightinesse of this dispute concerning the puâ—ishment will make me runne into the same errour I was doubtfull at first what punishment I should fixe upon the Clergy but considering the vote of this House that the late Cannons were against the Kings Prerogative royall the Fundamentall Lawes of the Land the liberty of the Subject and divers Acts of Parliament I setled my resolutions There is a rule in the Schooles that potentes potenter punientan great offenders shall receive great punishments The English in short is this I hold they have encurred a Premunire viz. All Arch-hishops Bishops Deanes Arch-deacons c. which consented to the making of them which that I may distinctly and clearly prove I will divide all that I have to say upon this matter into 4. parts 1. What a Premunire is 2. The originall ground and cause of a Premunire 3. The grounds and reasons in Law why the Clergy have in this case incurred a Premunire 4. An Answer to the Objections that are made against a Premunire especially by three Civilians now in print 1. Concerning the first it is a rule taken by that excellent Oratour Cic. 1. offic that omnis rei institutio à definitione proficiscitur hee that would handle a thing fully must define it truely Now a Premunire takes its name from the words of the Writ called Premu V. Nâ—br 152. facias about the end of the Writ videlicet Praecipimus tibi quod per bonos legales homines de balliva tua premu facias J. D. Abettores suos c. qd sint coram nobis à die pasche in quindecim dies c. ad respondend nobis de contemptu c.