and pleasure with a proviso contained in the said Commission that the said Cannons should not be repugnant to the Rubricks in the booke of common-Prayer the 39. Articles nor to the Doctrine order and Ceremonies of the Church The like Commission went to the Arch-bishop of Yorke In which Commission of 12. May there was an expresse Revocation and making void of the Commission of 15o. Aprilis So that the Commission of 15. Aprilis being determined in Law by the Parliament to which it referred as likewise by the Commission of 12. May which absolutely revoked it All the Cannons that were made and now printed were made out of Parliament and so consequently out of Convocation and meerly by the Commission of 12. May. The 30. June following comes the Kings Letters Patents of Confirmation of these Canons made by the Commission of 12. Maij in which Letters Patents he doth in expresse words both give his Royall assent to the Cannons and ratifies and confirmes them according to that forme of the said Statute or Act of Parliament of 25. Hen. 8. Now that Statute doth only give power to the King to assent unto and confirm Cannons made in Convocation and therfore there being no Cannons made in Convocation but afterward the assent and confirmation of things not then in being must needs be void for in our Law confirmare is firmum facere which presupposeth an entity or being of the thing that is to be made firme for ex nihilo non fit quid saith the Philosopher And therefore the foundation failing on which the confirmation should worke doth cause it therby to be absolutely void according to that rule of Law Sublato fundamento destruitur opus And so I conclude this second point also that the Authority which should give life and being to these Cannons is void in Law The third and last point is this Point admitting that the Clergy had power and lawfull authority to make these Cannons whether the said Cannons be not void in Law for the matter contained in them and I thinke they are in that they are against the Lawes and Statutes of the Realme and so contrary to the laid proviso in the Statute of 25. Hen. 8. In the debate wherof I will first consider of the Cannons primae Classis 2. Of the Oath contained in the sixt Cannon 3. Of the Benevolence granted by the Clergy and contained in the second booke of Cannons all which I shall hold to be against the Laws and Statutes of the Realme Concerning the first I will only insist upon three Cannons for the rest have bin fully spoken too viz 1 12 and 13. Cannons For the first Cannon in making determinations concerning Royall power and property of goods they have done against Law and have medled with things of which they have no Conusans for the exposition of them belongs to the Judges of the Land and they have no more right to expound them then the Judges have to expound Texts of Scripture And therefore it was aptly spoken by the Atturney generall in Harrisons case who was indited in the Kings-Bench Trin. 14. Car. for calling Judge Hutton Traitor who there said that it was his opinion and the opinion of all Orthodox Divines that if the King thought he might with a safe conscience take my goods I was to let him have them and it was high Treason in me to deny him or make resistance To whom the Atturney generall replyed in these words that the Prerogative of the King and liberty of the Subject were given and defended by the Laws of the Realme and that the Judges were the expounders of that Prerogative And though the Clergy of England do seeme in this Cannon to maintaine this absolute power yet wee must know that the Kings of England never made Title to governe by it For though king James in his book of free Monarchies dives further in this point then any before him yet he determines it thus that this absolute power is onely between God and him not in relation to his people in point of their government for the same King saith in another place that a Subject of England may challenge the King in the same language as the poore widdow challenged Philip of Macedon Fac iustitiam aut ne sis Rex Par speech An. 1609. A booke condemned to the fire by both houses of Parliamēt 7 lac and then adds this That those Kings are either Tyrants or perjured that govern not according to their Law and those that perswade them otherwise are vipers and pests both to the King and Common-wealth And I have now in my hand that Kings Proclamation for the suppressing Dr. Cowels booke called The interpreter for advancing his absolute power to the overthrow of all Parliaments Concerning the 12. and 13. Cannons touching the freeing and discharging of Chancellours and Officials from executing any Excommunication in his own person or any censure against the Clergy because they are Lay-men I say that in doing and enacting this Stat 29 H 8. c 17. they have done quite contrary to an Act of Parliament still in force in taking from them this power of exercising the censures of the Church which that Statute gives them which I did looke when some Civilians now in the house should have maintained And although it were to be wished that only Clergy men should have this power of Excommunication and other Censures of the Church yet seeing an Act of Parliament hath given this power to Lay-men It is a high presumption in them to make Cannons against it Concerning the Oath mentioned in the 6 Cannon two things fall into question 1. Whether the Clergy can impose a new Oath I thinke they cannot For I hold it for a ground in Law that no Oath can be imposed upon the Subject but what is warranted either by the custome of the Realme which is no other then the common Law or els by some Act of Parliament to warrant it And herein the Clergy hath done more then the King doth at this day by his Prerogative Royall by which he governes his people and is part of the common Law and differs no more from it then pars à toto called by Bracton privilegium Regis by the Sta. of West 1. Droit du Roy by the Register Jus regium Coronae Now the King doth not by his Prerogative in any of his Commissions or Letters patents which are of greater force then Cannons impose an Oath without some Act of Parliament to warrant it As for example by the Commission of Sewers there is power to give an Oath but that is warranted by the Sta. of 23. Hen. 8. The Commission of Bankrupts gives an Oath but that is backed by the Statutes of 13. Elizab. Cap. 13. and 21. Jaco So the Commission of Charitable uses is warranted to give Oathes by the Stat. of 43. Eliz. many more instances might be given which I omit Nay the Oathes we take to the King
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.
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.
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
concerning his Supremacy and our own allegiance to which we are tied by a bond of nature as his Liege people yet for the imposing of these two Oathes there are two Acts of Parliament provided viz. 1. Eliz. c. 1. 3. Jaco c. 4. Besides the Clergy have no power by the Sta. of 25. Hen. 8. which gives them power to make Cannons and Constititutions to impose Oathes for an Oath is no Cannon or Constitution but a meere Collaterall thing just as if they should have enjoyned a man to have entred into a bond of a 1000. pound to have observed their Cannons this had beene void and a prohibition had lyen at the common Law for it because this is a Collaterall thing and a charge upon my goods and so is an Oath upon my conscience and therefore in pressing an Oath by vertue of their 6 Cannon they have exceeded their authority The second thing is whether the matter of the Cannons be good Concerning the matter of the Oath contained in the sixt Cannon divers exceptions have beene taken by those learned Gentlemen that have argued before which I will not remember but adde foure which have not beene yet spoken too 1. Exception is in these words That I will not indeavour by my selfe or any other to bring in any Popish Doctrine contrary to that which is so established now That and So being words of Relation do referre to the next Antecedent being Popish Doctrine not mentioned in any part of the Oath before So that reddendo singula singulis it runnes thus in sence and in Construction I will not indeavour my selfe to bring in any Popish Doctrine contrary to that Popish Doctrine which is so established Ergo some Popish Doctrine is established by the Church of England This construction was so evident and plaine to them that for the curing therof though this Oath with the word Popish in it and the rest of the Cannons were confirmed by the Kings letters Patents 30. Iunij 16. Car. yet 5 to Julij after they got a Commission from the King to give this Oath leaving out the word Popish whereby they have made the remedy worse then the disease by giving an Oath which was never confirmed by the King 2. The second Exception is in these words Nor will I ever give my consent to alter the government of this Church by Archbishops Bishops Deanes and Arch-Deacons c. which I may fitly call a Covenant against the Kings supremacy which I thus make good It is a part of my Oath of Supremacy Stat. 1o. Eliz. c. 1. that I shall assist the King in all preheminences and jurisdictions belonging to his Crowne Now it is a part of his jurisdiction to alter this government by his Parliament and to appoint and establish another which if he shall be so minded to doe I am by this Oath not to assist him in it I am not so much as to give my assent wherby I doe unavoidably fall upon this Rock that for the saving of my oath I must deny my obedience to the King Azor. de juramento or by obeying the King I must fall upon perjury For though it be true as the Cannonists say that when a Law is changed to which I am bound by oath Though I am thereby materially discharged yet formally I am bound in respect of my will For if ever I actually assent to the alteration I am really perjured 3. The third Exception is in these words I will not consent to alter the government of this Church by Arch-bishops c. as it stands now established and as by right it ought to stand now to speake properly there is no government of this Church of England by Arch-bishops Bishops Deanes Arch-Deacons c. but only by the King and they governe onely by and under him And why the King should be quite left out seems a thing strange to me unlesse they will say he is comprehended within the c. which is a most unworthy place for so great a Majesty And that the Clergy had some ill meaning in this omission of the King out of this Oath I have some reason more then to suspect when I cast my eye upon some dangerous passages that are in their writings about the Kings Supremacy advancing it higher then the King himselfe would have them touching the Subjects property of goods but depressing it too low concerning his Ecclesiasticall power And this appeared lately before us by a very dangerous speech of Dr. Vâ—d D. Cowels book verbo Par. liament supprâ—ssed by K Iams ProclamarioÌ„ lately printed without authority Cosins who said that the King ought not to be called Supreame head of the Church and seemed to colour it by Bishop Iewels opinion which is most false For the Act of 1o. Eliz. Revives all the Statutes of Hen. 8. touching Supreame head of the Church So that the King may as well be called Supreame head of the Church on Earth for so are the words of the Statute of 26. Hen. 8. cap. 1. 37. Hen. 8. cap. 17. as supreame governour Besides the distinction that he used in this place That Bishops had their jurisdiction from God ratione officij but ratione exercitij they had it from the King which is both absurd and erronious It is absurd for he will not allow that Bishops and Ministers should be all one but by this distinction they should for neither of them can exercise their functions but by permission from the King It is erronious for I doe not only say it but will proove it that Bishops have no jurisdiction here but from the King for it is a knowne distinction among the Cannonists as that learned Civilian that spake last doth well know That in a Bishop there is a double power Potestas ordinis Potestas Jurisdictionis 1. Potestas ordinis to preach to baptize to administer the Sacraments c. this power is iure divino agreeable with all other Ministers 2. Potestas Jurisdictionis as to admit institute and give mandates to induct into Church-livings to keepe Ecclesiasticall Courts to call Sinods to visit Churches For which two latter we pay Sinodals and procurations to this day and which if the ancient forme were observed would be of excellent use at this day for the depriving of Arminians D Bois Deane of Cant in a viâ—tation Sermon Socinians and other Hereticks but as a learned Prelate writes they are now become Nummorum non morum visitationes This power of Iurisdiction say the Cannonists is de iure humano and from the Pope for so is their rule Episcopi descendunt à Papa tanquam membra à capite we in our Law say that their jurisdiction is wholy from the King and so it is acknowledged by themselves in expresse words in the Act of Parliament of 37. Hen. 8. cap. 17. an act in force at this day That Arch-bishops Bishops c. and all other Ecclesiasticall persons have no manner of Ecclesiasticall
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