the Laiety did come if any matter was there handled which concerned them Of this I could give likewise many instances I will only name one the Councell or Synod at Winchester called in the 5t. yeare of King Canutus it is there said Personaliter existentibus in eodem concilio duobus Archiepiscopis alys Episcopis cum â—orundem suffraganijs septem ducibus cum tot comitibus non-nullis Abatibus cum quam plurimis gregarijs militibus ac cum populi multitudine copiosa in eodem existentibus votis regis unanimiter consentientibus praeceptum Decretum est c. And this was no other then was usuall in other places for the Layty to be at Councels and Princes to send their Ambassadours to be there and to assent for them if they could not be present themselvs The third Stage or Tract of time was from the Conquest till the dayes of King Edward the first in all which time there was a great conflict betwixt the Common Law and the Popes Cannon Law For the Conquerour comming in under the Popes Banner and under it winning that battell of Hastings in Sussex wherin he obtained the Kingdome did suffer the Popes Cannon Law to be brought into the Land which caused the Common Law untill the dayes of Edw. 1. to suffer the fits of an ague for in the raigne of a stout and valiant King the Common Law prevailed but in the Raigne of a weak King the Cannon Law prevailed In the Conquerours time though he admitted the Popes Law yet saith Roger of Chester Nullam Pontificis authoritatem in hoc regno admitti voluit nisi quatenus ipse assensum praeberet nil de rebus Ecclesiasticis discerni voluit nisi ipse non solum interesset sed praefuisset In K. William Rufus time the Cannon Law prevailed more for that K. making Anselme Arch-bishop of Canterbury whom the Arch-bishop that now is and other of the Clergy call S. Anselme though the Records of that time make him a Traytour He cals a Synod at London takes away the investure of Bishops from the Crown and brings in a Canonicall Institution and Confirmation of them from the Pope takes away the marriage of Priests ipse saith Matthew Paris sacerdotibus uxores prohibuit antea non prohibitas Vide Antiquit ' Britan. p. 116 117 1â—8 c. and maketh other constitutions much prejudiciall to the Crown and people And no marvell for this proud Prelate at his first being Arch-bishop of Canterbury thus thanks the King for that favour Domino Papae debeo obedientiam tibi consilium King Hen. 1. his Successor though he strugled long with Anselme and wrote sharpely to Pope Pascall yet he could not prevaile all the dayes of Anselme to undoe those decrees at that Synod but yet after the death of Anselme to manifest his claime to the Investure of Bishops given to him by the Cannon Law hee gave the Arch-bishopricke of Canterbury to Rodolph Bishop of London Et illum per annulum Pastoralem Baculum investivit contra novi concilij statuta saith Mat. Paris King Hen. 2. to the end he might revive the antient Lawes and customes of the Kingdome called his common Councell of all his Nobility and Bishops at Claringdon in Wiltshiere where he made divers Constitutions in Reversall of those made by Anselme these Tho. Becket whom this King had made Arch-bishop of Canterbury from the meane sonne of a Jew traiterously opposed which bred great dissention in the Kingdome All the Barons of that councell crying out against Becket in these words saith Hovenden quo progrederis proditor expecta audi judicium tuum But that valiant King by the unhappy killing of Becket was quite defeated and stript of the fruit and benefit of that Councell and himselfe put to a miserable pennance as it is at large described by Mat. Paris and briefly touched in the case of premunire in the Irish reports Paris Rep. so 91 192 and Becket shortly after Canonized by the Pope for a Saint viz. 19. Hen. 2. In all King Johns time the sonne of Hen. 2. the waters of strife betwixt the King and his Clergy grew to a full sea his Kingdome interdited by the Pope and himselfe at length forced to surrender his Kingdome to the Pope and his own Clergy joyning with the Pope against him So that all his Raigne the Common Law was under hatches But in Hen. 3. time his sonne came the good Statute of Magna Charta and then those waters mightily abated and the Clergie were glad to receive all their liberties and Jurisdictions from the Crowne as by graunt from that act of Parliament as appeares in the first Chapter of that Stat. 9 H. 3. c. 1. Concessimus Deo hac praesenti charta confirmavimus pro nobis haeredibus nostris in perpetuum quod Ecclesia Anglicana libera sit habeat omnia jura sua integra libertates suas illaesas And though it is penned in forme of a Charter as the manner of penning Acts of Parliament was in those times yet it was a Statute of the Realme made in full Parliament by the consent of the Lords and Commons And although the Clergy of England were again nibling in the 20th yeare of Hen. 3. against the Common Law Staâ— Merton 20 H. 3. cap. 9. and would fain have brought in that part of the Canon Law concerning the legitimation of children borne out of wedlocke telling the Peeres of the Realme in the Parliament of Merton that Quantum ad successionem haereditariam Ecclesia tales habet pro legitimis yet the Earles and Barons would not hearken to them but as saith that Statute Omnes Comites Barones una voce responderunt quod nolunt leges Angliae mutare quae hucusque usitatae sunt approbatae In the latter end of the Raigne of this King the Clergy by helpe of the Pope got head againe and the Popes exactions upon the Crowne and the peoples liberties for they alwaies goe together were growne intollerable and divers Legantine Constitutions of Otho and Othobon burthensome to the people were introduced insomuch that Matth. Paris a poore Monke that lived in those dayes and the Popes Creature yet by reason of the great oppressions which he then saw upon this Kingdome called it Balaams Asse Mat. Paris And when all the Peeres and Barons of the Realme perswaded this King to resist those incrochments upon him and his people he out of the poverty and weakenesse of his spirit makes them this answer Nec volo nec audeo domino Papae in aliquibus contradicere The 4th stage or tract of time is from the daies of Edw. 1. 4. Time to the 25th yeare of Hen. 8. in which time the common Law began to Recover and get strength in all which time the Clergy could make no Lawes Cannons or Constitutions but what the common Law did allow King Edw. 1. by the many confirmations which he made of M.
Lawneston in Cornewall before Roger Loveday and Walter de Wyburne These two were to enquire of Walter Bishop of Exeter for drawing the Kings Subjects into his Court and holding plea de debitis catallis quae non sunt de Testamento Matrimonio and for making them enter into bond and a new Oath quod sibi in omnibus adharebunt per omnia such another new fangled Oath as was in the late Cannons and this is in the Record alledged to be in lasionem Coronae exhaeredationem depauperationem manifestam quae ulterius sustinere nolumus nec debemus and it was adjudged that the Bishop should for this offence make satisfaction to the King 21. Edw. 1. Par. Rolls pl. 17. m. 3. indors Jo Archbishop of Yorke excommunicated two of the Bishops of Durhams servants named William Willicon and John Rowman for keeping possession of some of the lands of the Bishops of Durham to which the Archbishop pretended a title This being a high offence against the Stat. of Circumspecte agatis newly granted to the Clergy but a little before received this Judgement in Parliament First That the Bishop should be imprisoned Secondly Should make a submission to the King and Thirdly Should pay 4000. Marks fine which was a mighty summe whenas in those dayes the price of an Oxe was but 5. sh as appeares in the end of the 25. cap. of the Stat. of Westm ' 2. made 13. Edw. 1. tit assize Fourthly When the Clergy would take warning by none of these examples the Kings of England were forced to make these sharpe Lawes of Premunire that I mentioned before and to say to them in the language of Salomon to rayling Shimei for so was the Cannon Law to the Kings of England * 2 Kin. 2. keepe at home in your owne place if once you passe over the brooke Kidron your blood be upon your owne head So the Kings of England spake by their Lawes to the Clergy Keepe within your owne bounds given you by the Lawes of England if once you passe those bounds and trench upon the prerogative of the Crowne and liberties of the people your blood be upon your owne heads For that was the price of a premunire in those daies for untill 5o. Eliz. it was lawfull for any man to kill one that was attainted in a Premunire as it was to kill a Wolfe or a wild Dog for saith our Law a man attainted in a Premunire did caput gerere lupinum but now by that mercifull Stat. of 5. Eliz. cap. 1. it is unlawfull for any to kill a man attainted in a Premunire and so I conclude the second part of the division I come now to the third which is the maine and principall point of this Case namely to shew the ground and reasons of Law why the Clergy have in this particular case in making Cannons and forcing the execution of them upon the people by the censures of the Church incurred a Premunire which Grounds of Law are three First Ground is this Clergie-men which only by Law have a spirituall Jurisdiction if they shall exercise a Jurisdiction within the Kingdome which only belongs to the Kings temporall Courts and not to their ecclesiasticall Courts they doe an act herein against the Kings Supremacy and Royall Prerogative and so incurre a Premunire The Bookes in our Law to prove this ground are many which for brevity sake I will only quote the authorities of Law without putting the Cases at large because I have much more to say V. N. Br. 152.5 Edw. 4. fob 6.11o. Hen. 7. Bro. pram 12.44o. Ed. 3. fo 36o. 15o. Hen. 7. per Fineux 9. Edw. 4. D. St. lib. 2. cap. 24. cap. 32. The Reasons of this ground are three reason 1 By this meanes an act is done against Royall Majesty that is saith the Booke 5. Edw. 4. fol. 6. against the Common Law wherein is to be noted that there is a mutuall dependance betweene the Kings Prerogative and the Common Law that to violate the Common Law is to doe an act against the Kings prerogative and to violate the Prerogative is to doe an act against the Common Law with this agrees King James in an excellent Parliament speech of his Anno 1609. Wherein he takes an occasion to magnifie the Common Law as most beneficiall to his Prerogative and to despise it saith he is to despise the Crowne 2. Reason is given by D. St. lib. 2. cap. 32 that when debts and trespasses and such other temporall matters are handled in the spirituall Courts the King looseth his fines and amercements and such other duties due to him upon originall writs of Debt Trespassâ— c. 3. Reason is given by the Stat. of 25. Edw. 1. cap. 4.34 Ean 1. cap. 6. by which Stat. Magna Charta is appointed to be read in all Cathedrall Churches twice every yeare and excommunications are then solemnly to be denounced against all infringers of the same now there is no such infringment of liberty as to draw the subject into the Spirituall Courts by Cannons made by them contrary to Law and the liberty of the Subject graunted to them by that great Charter But the Rule is longum iter per praecepta breve per exempla I will therefore give you some examples and presidents Three against Bishops and two against Convocations themselves in the point of Praemuniries presi 1 The first is Hill 25. Hen. 8. Rot. 15. Cor. Rege Richard Nix his Case the blind Bishop of Norwich who for citing ex officio Richard Cockerall Major of Thetford into his Court for taking a presentment of a Jury in the Majors Court who found that by an antient custome and usage none ought to be sued out of the Deanary of Thetford for any ecclesiasticall matter and that if any did sue any Citations elsewhere he was to pay a noble For receiving this presentment the Major was sued in the Bishops Court for which Hales then the Kings Atturney did prosecute the Bishop in a premunire of which he was attainted part of whose fine did goe to the glasing of the windowes of the Kings Colledge Chappell in Cambridge 2. President is Trin. 36. Hen. 8. Rot. 9. Cor ' Rege Anthony Buckley Bishop of Bangor was prosecuted in a Premunire by Whorewood the Kings Atturney generall for holding plea of right of Patronage and of the sale of Corne and graine sold to Rice Ween John ap Hugh and Tho. ap Hoell and divers others for 21 lb. upon severall specialties which are matters only triable in the Kings Temporall Courts did likewise incurre a Premunire and was thereupon attainted and his lands and goods forfeited 3. President was likewise in the Case of another Bishop of Norwich called William Bateman who meerely for visiting the Abbey of S. Edmundsbury discharged antiently by divers Charters of Episcopall visitations the Abbot thereof being mitratus Abbas was for this offence fined to the King in 30. talents of gold which amounted to
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.