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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