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A69617 Two arguments in Parliament the first concerning the cannons, the second concerning the premunire vpon those cannons / by Edward Bagshawe, Esquire. Bagshaw, Edward, d. 1662. 1641 (1641) Wing B401; ESTC R16597 30,559 46

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places cannot be heard or scarcely seene whereupon I conclude this second ground of Law that because the Clergy have done so directly against their Commission from the King they have thereby incurred a Premunire The third Ground of Law wherewith I will conclude the third part of my division is this 3 Ground The Common Law of England which as King James saith is in its own principalls the justest Law in the world should not in our case be just the Clergy themselvs being Judges if they of the Convocation should not incurre a Premunire As it is a rule in Art Contrariorum contrariaest ratio in respect of the Subject so there is another rule in Art Contrariorum eadem est ratio in respect of the Analogy and proportion for doe but observe what they doe against us in the Provinc Constitut cap. de sententia excom which is good Law with the Clergy you shall find these words Excommunicantur omnes illi qui literas impetrant à quacunque curia laicali ad impediend processum Ecclesiast Judicum in causis qua per sacros Canones ad forum Eccles pertinent Nay so high they go in their advancement of their Ecclesiasticall Jurisdiction that in the said Constitutions capite de panis it doth appeare that if the King do by writ or other command call a Bishop to answer in his temporall Court and the Sheriff● execute those writs by distresse or attachment c. The King indeed is in point of good manners admonished by them 1 2 3. according to forme but if he will not then desist but in sua duritia perseverare for such rebellious words they have the King his Officers and Ministers his Mannors Castles Cities Burrows c. are hereby exposed to excommunication and interdiction which how terrible it was to the Kingdome of England may appeare in the example of King Iohn who was excommunicated and his Kingdome interdicted by his owne Bishops all the Church doores in the Realme locked up and marriages christnings and burialls denied to all his people To apply this to our case If the King and his people are thus used by the Clergy for the maintenance of their own Lawes as to exclude them from Heaven from the Church and from Salvation for so are excommunicated persons tanquam Ethnici publicani it is then most just for the King to exclude the Clergy from the protection and benefit of his Laws when they so incroach and intrench upon them according to that ancient rule of Law Frustra legis auxilium invocat qui in legem committit And so Mr. SPEAKER I have done with the third and maine part of my Diuision and come to the fourth and last which is the answer of Objections mooved principally by three learned Civilians for so I must account them Doct. Cowell in his Interpreter verbo praemunire a booke suppressed by Parliament and King Iames Proclamation but of late reprinted Doct. Cosins Deane of the Arches in the time of Queene Elizabeth in his Apology for Ecclesiasticall proceedings and Doct. Ridley vicar generall in the time of King Iames in his view of the Civill and Cannon Laws The Objections are six Fourth part ob 1 The first Objection is this the Law of England sayth Civilians doth not impute Premunire to any spirituall Judge dealing in a temporall matter but onely prohibition answ To this I answer that it is a fallacy ex ignoratione Elenchi as Logitians call it that is a meere mistake of the Question for the difference in our Law is this where the spirituall Court hath jurisdiction and where not as for example The spirituall Court hath jurisdiction of Tithes and yet if it hold plea de grossis arboribus that is of Timber-trees above 20. yeares growth contrary to the Stat. of silva caedua 45. Edw. 3. cap. 3. there a prohibition onely doth lye because the Court hath jurisdiction of Tythes but when the spirituall Court hath no jurisdiction at all as in debt trespasse c. there a premunire doth lye So is Dr. and St. which I quoted before and 24. Hen. 8. B. Prem 16. and divers other authorities in Law ob 2 It is said by the Civilians that Curia Romana aut alibi mentioned in the Statutes of Premunires which I cited before must not be meant of any Courts here in England but of the Popes Courts which he kept sometimes at Rome sometimes at Avignion in France and sometimes at Bonony in Italy and therefore must be ment of those Courts which the Pope kept beyond Sea and not at Rome answ It is a vain Objection for alibi doth not referre to the place but to the Court for whersoever the Pope is let him be at Rome at Avignion at Bonony or in England c. There is Curia Romana whersoever he is and therfore alibi must needs be ment of some other Ecclesiasticall Court then the Popes Court and so is it expounded in old N. B. fol. 152. 5. Edw. 4. fol. 6. and divers other books of Law and therefore in some of the Records which I cited before the word alibi is thus interpreted In Curia Romana aut aliqua alia Curia Christianitatis and that is certainly the meaning of the word alibi as may appeare by the pleading in the old booke of Entries 430. Praedict I. R. machinans Dominum Regem nunc coronam dignitatem suam exhaeredare cognitionem quae ad curiam Domini Regis pertinet ad aliud examen trahere for that indeed was the only mischief to draw the Kings Subjects for temporall matters to a tryall in the Ecclesiasticall Courts of which they had no cognizance ob 3 The spirituall Courts should in this case say they bee worse then an inferiour Court Baron for there no Premunire doth lye if the Lord doth hold plea of actions above 40s. answ This is another fallacy which Logicians call petitio principij a begging of the question for old Nat. B. fo 153. is to the contrary 2. Besides if the Law were otherwise yet a Court Baron is a Court of Common Law and antient and the spirituall Court is a Court of the Cannon Law and not antient ob 4 The Ecclesiasticall Courts say they are now become the Kings Courts by the Statute of 1o. Eliz. Cap. 1. as other Courts in Westminster Hall and therfore the King cannot have a Premunire against himselfe answ I deny this For they are the Kings Courts now no more then they were before for the Stat. of 1o. Eliz. did not give the King any new power but only restored the old which hee had before and this answer did Chancellour Audley give to Stephen Gardiner Bishop of Winchester who made this objection telling him withall that the Premunire was a Rod that the Common Law had to keepe the Bishops in awe and to reduce them to good order otherwise men would have no quiet for them They cannot now make this Objection because they keepe
the summe of 3000 lb. and here by the way being upon the president of a Bishop of Norwich I crave leave before I goe to other presidents to observe this one note I doe finde that in all ages the Bishops of Norwich above all other Bishops in the Kingdome were most active and pragmaticall in advancing the ecclesiasticall Jurisdiction and persecuting the Ministers of GOD To give you one instance instead of many it was a Bishop of Norwich that was the first author of spilling the blood of the first Martyr we had here in England named William Sawtree that was burnt to death by the Writ de Heretico cumburendo mentioned in the Register in Fitz. N. B. fo 170. Where the very Name of William Sawtree is expressed in the Writ who was Parson of S. Margarets in Linne in the Diocesse of Norwich and was convicted before the Bishop for the Doctrine of CHRIST which was then counted Heresie and by him delivered over to Thomas Arundell Archbishop of Canterbury who caused him to be burnt to ashes and if the Bishops of Norwich doe thinke this any praise to them let them rejoyce in it I shall only say this for the honour of that William Sawtree and of Pembrook-Hall in Cambridge above any Colledge either in Oxford or Cambridge that Martyrum primus which was this William Sawtree Martyrum doctissimus which was Bishop Ridley and Martyrum pijssimus which was John Bradford were all of Pembrook Hall I come now to give presidents wherein the whole Convocation were attainted in a Premunire which are two The first is 7. Hen. 8. Kell Rep. fo 181. The Abbot of Winscombs case which hath beene so often cited in this House but I shall only urge it to this one point That the Convocation for meere citing ex officio Dr. Standish for maintaining the Kings Prerogative and the Lawes of the land that Priests ought to answer before temporall Judges contrary to the tenent of the Clergy and the Abbots Sermon at Paules-Crosse The whole Convocation for this very act incurr'd a Premunire by the resolution of all the Judges of England assembled together by the King for their opinions in that Case The second president is that of Cardinall Woolsey which I first cited in Doctor Cosens his Case and is full to this point it is Mich. 21. Hen. 8. B. Roy. and the maine point of the Premunire was this Quia ipse intendebat antiquissimas Ang. leges penitus subvertere enervare universumque regnum Angl. legibus Civilibus earundum legum Canonibus in perpetuum subjugare This was found against him and he was attainted in a Premunire though he had the Kings Commission for what he did and the King made meanes to the Pope to make him a Cardinall and gave way that two Crosses should be carried before him one as Cardinall and the other as Archbishop of Yorke These Leges Civiles mentioned in that Record were the Legantine Constitutions exercised by the Cardinall and all the Bishops of England in all their severall Diocesse which though it had the countenance of the Kings Commission to warrant yet that was found no excuse for so unjust an act for both Cardinall and all the Bishops of the land were adjudged to have incurr'd a Premunire and therefore all the Bishops did for their pardon of the said Premunire in their Convocation being then assembled and in time of Parliament pay the King a huge masse of money namely the Province of Canterbury paid the King 100000lb. the Province of Yorke 18840lb. and the Cardinall himselfe forfeited to the King all his goods and Chattles and all his lands and tenements as Whitehall Hampton Court Christ Colledge in Oxford c. This case doth justly agree with this Case before us for here the Convocation have made Cannons and added severe punishments to them contrary to the Kings Prerogative and the Lawes and Statutes of the Realme which I made appeare in my Argument concerning the Cannons and therefore I will not speake of them now but will give you two instances which I did not mention then The first is in the first Cannon by decreeing men to be punished in the High Commission for teaching contrary to their explanations of Royall power and propertie of goods being two things of which the interpretation doth not belong to them but to the Common Law and to the Judges which are the expounders thereof Besides they had no authority in the world to punish men in the High Commission for such things for the last Letters Pattens of the High Commission were Mich. 9. Car. in which are conteined all things wherein the Commissioners were to meddle And therefore it was impossible that these new Cannons being made not a yeare agoe should be comprehended in those Letters Pattents of which the Framers thereof could not possibly take notice unlesse they had the Spirit of prophesie which is not to be imagined and therefore it was a bold attempt upon the Kings Prerogative to order men to be punished by vertue of his Comimssion which gave them no such authority The second Instance is in the Cannons which they made for the payment of the Benevolence of the 6. Subsedies which they ordered Clergy men to pay upon the severest censures of the Church as suspension deprivation excommunication c. with this clause added omni appellatione semota that is without any manner of appeale to be allowed which is a flat deniall of the Kings Subjects to have the benefit of Law for in their owne Law appeales are to be allowed from the Ordinaries Court to the Metropolitan from the Metropolitan to the Pope and such authority in appeales as the Pope had is now given to the King and his Judges Deligats by the Statutes of 24. Hen. 8. cap. 12.25 Hen. 8. cap. 19. But in this case all appeales to the King are denied and his Subjects must not only be excommunicated but deprived of their free holds and denied all benefit of appeale to helpe them which is a high point of Usurpation upon the Crowne and the Lawes of the land and an exercising of an Arbitrary power of their owne above and against Law The Second ground of Law 2 Ground why the Clergy in the Convocation have incurr'd a Premunire is this If the King by his Commission gives power to spirituall Judges to doe such and such acts qualified by a proviso to be done in such and such a manner and with such restrictions and limitations as are contained in that proviso and those Judges will by colour of such Commission doe acts contrary to such provisoes and limitations they do hereby incurre a Premunire As for example the King by his Letters Pattents appoints one to be a Bishop and limits the Deane and Chapter to Chuse and the Arch-bishop to consecrate him within 12. dayes and they do contrary to this limitation they do hereby incur a Premunire as may appeare by the Stat. of 25. Hen. 8.