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 [Page 2]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.

1 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 [Page 3]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.

1 The first is out of the decrees of the Cannon Law compi­led by Gratian, distinct. 95. cap. olim.

2 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 S ^t. 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. a [...]l Tit c. 3. these names are not found in all the Scriptures, This is the thing that we defend, S ^t. Jerome saith, Let Bishops understand [Page 4]that they are in authority over Priests more by custome then by order of GODS Truth; These be S ^t. 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 (M ^r. 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.

2 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, 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 5 ^t. yeare of King Ca­nutus, [Page 5]it is there said, Personaliter existentibus in eodem con­cilio duobus Archiepiscopis & alys Episcopis cum [...]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.

3 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, 1 [...]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 [Page 6]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 20 ^th. yeare of Hen. 3. against the Common Law, Sta [...]. 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 hucus (que) 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 4 ^th. stage or tract of time is from the daies of Edw. 1. 4. Time. to the 25 ^th. 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. 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 [Page 8]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 13 ^th. 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 13 ^th. 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 [Page 9]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 S ^t. Esglis & de sa benignity, he would graunt them all those liberties they petitioned for.

In Henry 4 ^th. 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, [Page 10]which had his originall from that cruell Statute quite taken away.

In the daies of Hen. 8. in that famous case of D ^r. 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.

5 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 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 [Page 11]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,

1 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.

2 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 [Page 12]libertatibus vel liberis consuetudinibus suis, And liberty of Con­science is the greatest liberty.

3 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 2 ^d. 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 [Page 13]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 13 ^th. 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 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 15 ^o. 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 [Page 14]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.

1 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. [Page 15]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 D ^r. 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 [Page 16]to Lay-men: It is a high presumption in them to make Can­nons against it.

2 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, 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 [Page 17]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.

2 The second thing is, whether the matter of the Cannons be good.

2 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. 1 ^o. 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 [Page 18]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 D ^r. V [...]d. D. Co­wels book verbo Par. liament suppr [...]ssed by K Iams Proclama­riō & 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 1 ^o. 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 vi [...]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 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 [Page 20]the Statutes of 24. H. 8. cap. 12. and 25. H. 8. cap; 19. O [...] 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 [...]ing the Clergy doe seem by this Oath to derive their [...] [...]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 i [...] 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 23 ^o. 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 8 ^th. 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.

3 Concerning the Benevolence of 6. subsidies granted by [Page 21]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 3 ^o. 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, Ʋid. 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.

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 pu [...]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 [Page 24]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. N [...]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 utram (que) 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 S ^t. 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.

1 The first punishment upon the Clergy was prohibition onely.

2 The second was, a prohibition with a pain.

3 The third was, by fine and imprisonment.

4 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 [Page 27]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 8 ^th. 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, A ^o. 6. Edw. 1. I will only menti­on instead of many, which was taken at 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 [Page 28]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 5 ^o. 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.

3 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: Ʋ. N. Br. 152.5. Edw. 4. fob. 6.11 ^o. Hen. 7. Bro. pram 12.44 ^o. Ed. 3. fo. 36 ^o. 15 ^o. 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, Trespass [...], &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 [Page 30]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 [Page 31]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,

1 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, D ^r. 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.

2 The second president is that of Cardinall Woolsey, which I first cited in Doctor Cosens his Case, and is full to this point, [Page 32]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, universum (que) 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 100000 ^lb. the Province of Yorke, 18840 ^lb. 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.

1 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, [Page 33]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.

2 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, [Page 34]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. ca. 20.

So by the Stat: of 1. Edw. 6. cap. 2. before the Stat. of 1. Queen Mary, which repealed that Sta. of Edw. 6. all Bish­ops were to keepe their Courts by Commission from the King, and not in their owne names, and the acts of the Court, to be under the Kings seale, and not under the Bishops, and if they did the contrary they were to incurre fine and imprisonment in nature of a Premunire.

To apply this to our case, the Kings Commission for the Clergy to make Cannons in their pretended Synod, did beare date 12. May last paste, being seven dayes after the dissolving of the last Parliament, in which Commission there was an expresse proviso, that no Cannons should be made,

1. Contrary to the Rubrick.

2. Contrary to the 39. Articles of Religion.

3. Contrary to the Orders and Ceremonies already establi­shed, and yet as if they would do things purposely against the Kings Commission, the Cannons that they made were contrary to all these.

First, They were contrary to the Rubrick, of which, because I will not be over-tedious, I will give but one instance, viz. the Rubrick before the Communion, confirmed by Act of Parliament; where it is expressely said, that the Communion Table shall stand in the body of the Church or Chancell, and the Priest shall officiate at the North-side of the Table, by these Cannons, viz. the 7. Cannon, the Table is to be at the East end of the Chancell, to stand Altar-wise, and the sides of the Table are to stand East and West, and not North and South, and it is there called Altar and not Table, and men are injoyned to kneele at the Table, so removed, all contrary to the said Rubrick; and though this may seem but a light matter, yet when I shall open to you the Reasons of this upon the first Reformation, it will appeare to be a mat­ter of great weight and consequence; for the people were in the time of Edw. 6. who began our Reformation of Religion, [Page 35]addicted to grosse Idolatry, by holding the opinion of tran­substantiation, and by upholding that abominable Idoll of the Masse, in the Adoration of the Hoast, and the way then de­vised to reduce them from Idolatry, was by this meanes.

1 First, King Edw. 6. did by his injunction cause all Altars to be pulled downe, and moveable Tables of wood to be in their Rooms.

2 Secondly, he did appoint that the Sacrament should be no more called the Sacrament of the Altar, but the Communi­on of the body and blood of CHRIST, and that the Table on which the bread and wine did stand, should be called a Table and not an Altar, as may appeare by the Stat. of 1. Edw. 6. Cap. 1.

3 Thirdly, He did appoint the Table to stand in the body of the Church by his Common-prayer Booke, 5 [...]. Edw. 6. to the end that the people might forget their adoration at the place where it stood before.

4 Fourthly and lastly, To take away all manner of Supersti­tion, he caused a declaration to be made of the sence and meaning of the Church of England, for the gesture of knee­ling at the Communion, which is set downe at large in the Common-prayer Book, which was set out, 5. Edw. 6. which because it hath given satisfaction to the Consciences of ma­ny hundreds, and is now left out of our Common-prayer Books, I will take the boldnesse to reade it to you word for word, as I find it in that Rubrick, because it is of singular use.

Although no order can be so perfectly devised, but it may be of some, either for their ignorance and infirmity, or els of malice and obstinacy misconstrued, depraved and interpreted in a wrong part, and yet because brotherly charity willeth, that so much as conveniently may be, offences should be taken a­way, therfore we willing to doe the same: Whereas it is ordained in the Book of Common-prayer, in the administra­tion of the Lords Supper, that the Communicants kneeling should receive the holy Communion; which thing being well meant for a signification of the humble and gratefull ac­knowledging [Page 36]of the benefits of CHRIST given unto the worthy receiver, and to avoid the prophanation and disorder, which about the holy Communion might els ensue, least the same kneeling might be thought or taken otherwise, we do declare that it is not meant therby, that any adoration is done, or ought to be done, either unto the Sacramentall Bread and Wine, there bodily received, or unto any reall and essentiall pre­sence there being of CHRISTS naturall flesh and bloud; for as concerning the Sacramentall Bread and Wine, they remaine still in their very naturall substances, and therfore may not be a­dored, for that were Idolatry to be abhorr'd of all faithfull Christians, and as concerning the naturall Body and Blood of our Saviour CHRIST, they are in Heaven and not here, for it is against the Truth of CHRISTS true naturall Body to be in moe places then in one at one time.

2 Secondly, the 7. Cannon (to name no more) is against the 39. Articles which are confirmed by the Parliament 13. Eliz. cap. 12. which I prove in this manner, the 35. Article doth maintaine the Books of Homilies to containe good and whol­some doctrine; now the seventh Cannon approoving of the bowing in Churches and at Communion Tables is expresly a­gainst 3 Homilies of the Church of Eng. viz. 1. The Homily of the right use of the Church.

2. The Homily of repairing the Church.

3. And the second and third Homilies of the perill of I­dolatry; In all which Homilies you shall finde these pas­sages,

1. That Images and I dols are all one.

2. That Altars and Images are one.

3. That Idolatry is to Images in Temples an inseperable ac­cident.

4. That in time of Common-prayer, private devotion is not to be used.

5. That the true ornaments of the Church, consist in prea­ching, prayer, due administration of the Sacraments, &c. and not by any outward Ceremonies, or costly and glorious decking of the House of GOD with gold, &c. oc­casioning men thereby to commit most horrible Idolatry.

[Page 37] 6. That the Church is called holy, not of it selfe, but be­cause GODS people resorting thereunto are holy, with di­vers more passages in those Homilies to that purpose, where­upon I inferre, that in asmuch as the 7. Cannon and other Cannons are opposite to these passages, they have made Can­nons against the 35. Article of Religion, and so have done con­trary to the Proviso in the Commission.

Thirdly, By the 7. Cannon, and other their new Cannons they have done against their Commission, in that they are against the Ceremonies of the Church of England now established since the Reformation. For by the 82. Cannon in the Cannons 1. Jaco. the Table is to stand in the body of the Church or Chancell, to the end that the greater number may commu­nicate at the Table, and the Minister may be the better heard and seene: But by the setting of the Table at the East end of the Chancell, the greater number cannot communicate, and the Minister in divers 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 quacun (que) 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 [Page 38]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 M ^r. 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 D ^r. 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 [Page 40]worse then an inferiour Court Baron, for there no Premunire doth lye, if the Lord doth hold plea of actions above 40 ^s.

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 1 ^o. 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 1 ^o. 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.

2 They cannot now make this Objection, because they keepe their ecclesiasticall Courts in their owne names, and not in the Kings, having procured a Proclamation, 1637. declaring the opinions of the Judges; that the Stat. of 1 ^o. Edw. 6. cap. 2. is repealed, and of no force at this day, and that Bishops may keepe Courts in their owne names.

ob. 5 It is objected by the Clergy, that these new Cannons were made by authority of the King, by his Commission dated 12 ^o. Maij last, and therefore they had a warrant for what they did.

answ. This is no excuse, for if the Cannons which they made be contrary to the proviso in their Commission, and con­trary to Law, which I have proved before, this is so farre [Page 41]from excusing, that it aggravates their offence, for hereby the King, which by Law can doe no wrong to his peo­ple, is by this Commission made by them an instrument of injury to his people. Divines say, simulata sanctitas duplex iniquitas, because to the outward breach of the Law, there is added an inward hypocrisie of the heart, which doubles the sinne. So in acts of Injustice countenanced by Law, there is added to the Injustice a deceipt to the King, which dou­bles the offence. Many examples may be given in this kind, I will only name three,

1. Cardinall Woolsey had a Commission from the King, for keeping his Legantine Courts, but yet this Commission was no excuse to preserve him from an attainder in a Premunire, as I said before.

2. Stephen Gardiner Bishop of Winchester, in his letter to the Lord Protector, mentioned in the first Edition of the Acts and Monuments of the Church, (but left out in the latter) doth cite the Lord Tiptofts case, who had a Commission from the King, to execute divers things, which being found in the ex­ecution to be against Law, he lost both his head and his Commis­sion at Tower Hill.

3. The third and last example is S ^r. Anthony Mildmayes case, 14 ^o, Jacob. in the Kings Bench, who was a Commissioner of the Sewers, which Commission is grounded upon the Statute of 23 ^o. Hen. 8. who by vertue of his Commission, did cause one to be distrained for a fine imposed upon him by vertue of the Commission of Sewers, who brought an a­ction of trespasse against the partie that distrained him, and had judgement to recover, S ^r. Anthony Mildmay by an or­der from the Sewers, caused him to be imprisoned till hee had released the judgement, for which offence, S ^r. Anthony Mildmay was sued in a Premunire in the Kings Bench, to which he pleaded, and was faine to procure a pardon from the King for his discharge.

ob. 6 The last and greatest Objection is this, The Bishop of Exceter, and divers Divines more, hold that the Juris­diction of Bishops is jure divino, whereupon it fol­owes, that neither prohibition nor Premunire, can [Page 42]restraine that Jurisdiction which derives from the Law of GOD.

answ. This indeed is true, if their Jurisdiction were of that nature, but I have proved before by divers Acts of Parlia­ment, that their Jurisdiction is acknowledged by the Law of England, onely to be jure humano, so are the Statutes of 35. Edw. 1. called the Statute of Carliel, 25 ^o. Edw. 3.25 ^o. Hen. 8.26. Hen. 8.37. Hen. 8. 1 ^o. Eliz. &c. and Co. 5. Rep. Cawdries case.

The Common Law doth agree with these Statutes, for the Canonists as heretofore I have told you, doe observe a double power to be in a Bishop,

Potestas ordinis, common with other Ministers, as to Preach, Baptize, &c. and

Potestas Jurisdictionis, as to admit, institute, deprive, ex­communicate, &c. The former they say, is de jure divino, the latter is, de jure Canonnico or positivo, which is agree­able to the Statutes I cited before, but what doe I speake of the Common Law, for the very Church of England seemes to be of this opinion, for in our Booke of Common prayer, no more is allowed to Bishops, in point of divine right, then what is common with Pastors, Ministers and Curats, for there are but three prayers for Bishops in all the Booke of Common prayer, and they all runne to the same pur­pose.

1 The first is in the Lettany, in these words, that it may please thee to illuminate all Bishops, Pastors and Ministers of the Church, with true knowledge and understanding of thy word, that both by their preaching and living, they may set it forth and shew it accordingly, wherein nothing is mentioned but their knowledge of GODS word, their good life and doctrine.

2 The next prayer for them, is after the prayer for the King and his Children in these wordes, That God would send downe upon all our Bishops and Curats, and all Congrega­tions committed to their charge, the helpefull spirit of his grace, that they may truly please him, &c. where the taking care of the cure of soules in Congregations committed [Page 43]to them, is the maine thing which we pray for them on their behalfe.

The last is in the prayer for the militant Church, in these words, Give grace (O heavenly Father,) to all Bishops, Pastors and Curats, that they may both by their life and doctrine, set forth thy true and lively word, and rightly and duely administer thy holy Sacraments, where there is not so much as a word men­tioned of their Jurisdiction, but of their true preaching, good living, and due administration of the Sacraments.

And so M ^r. Speaker, doe I conclude my whole Argument, touching the penalty incurred by the Clergy for their illegall Cannons, made in their Synod at Paules, concerning which, I will end all in these two Verses, which may be better applied to this Synod, then the Arminians applied them to the Synod at Dort,