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
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.
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