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A45188 An argument for the bishops right in judging capital causes in parliament for their right unalterable to that place in the government that they now enjoy : with several observations upon the change of our English government since the Conquest : to which is added a postscript, being a letter to a friend, for vindicating the clergy and rectifying some mistakes that are mischievous and dangerous to our government and religion / by Tho. Hunt ... Hunt, Thomas, 1627?-1688. 1682 (1682) Wing H3749; ESTC R31657 178,256 388

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recited upon which our Adversaries do so much ground themselves from the Cognisance of the Lords Spiritual and they could not be present when any such Case was agitated or moved all the Grandees were Notoriously Willfully and Knowingly and in the face of the whole World perjured to the Eternal infamy of our Nation Could the whole Nation be ignorant of its own Laws and Constitutions made and sworn to but a few months before and neither the King Lords Spiritual or Temporal or Commons understand them 120 men at least for about that number were the Bishops and regular Barons in H. the 2ds time and not less now come into the highest Judicature in the greatest Cause that ever was agitated It was in the Case of Becket disputed whether we should have a Civil or Ecclesiastical Soveraignty and there sit Judges and no body except against them in October if excluded by the Statute made in February before though the King and the Nobles had reason to suspect them on Becket's side and they unwilling themselves to Judge and they under an Oath not to sit and the Temporal Lords under an Oath not to admit them or allow them to be there And yet not a word of this matter in all the Historians of that time Thomas of Canterbury his friends to a man who were forward enough to reproach the Judges sure when they condemned the Sentence and applauded the Criminal and made a Pater patriae a Martyr and Saint of this Notorious Church Rebel He therefore that can believe that the Bishops were not rightful and unexceptionable Judges in capital Causes in Parliament in the time of H. 2. may believe that a whole Nation may become of insane Memory at once go to bed a Monarchy and wake into a Common-wealth without any notice or observation of a Change And now that the Assise of Clarendon is of our side I hope will be admitted and that the Bishops not only may but ought to be present in capital Causes in Parliament for the words of the Statutes are That the Archiepiscopi Episcopi universi personae qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam sicut caeteri Barones debent interesse Judiciis Curiae Domini Regis cum Baronibus So that now they were declared to be Judges as the other Barons in that they ought to be present in all Causes Only they were favoured so much in decent regard to their Order that they were not required to be present at the Sentence of Death and multilation of Member for as much as they are the Ministers of Gods pardon and the Publishers of the Doctrine of Faith and Repentance they ought to comport with their office and express their Commiseration to the greatest Sinner and to have some reluctancy against the Sentence of Condemnation and to that purpose is that Indulgence given them in the quousque perveniatur ad mutilationem membrorum vel mortem But the Assise of Clarendon having I will not say left them but required them to be Judges this exception of Quousque c. being only an Indulgence as aforesaid upon the Reasons aforesaid they remain entire Judges in Capital Causes and may depart from that Indulgence and ought so to do when Justice is necessary and the offences more than ordinarily Publick and will be pardoned and escape with impunity to the hazard of the Government except they interpose For if the Assise of Clarendon had not left them entire Judges of Right only at liberty as to the pronouncing of Sentence they had not remain'd Judges for the office of a Judge cannot be divided he that hath not an Authority to judge the Cause can be reckoned and accounted no other than a ministerial assistant to the process in such matters as the Court shall award Therefore Bishops in that they have intermedled as Judges in such Causes they have continued and avowed their Right of judging and in that they have withdrawn at the Sentence they have used that Liberty But to leave nothing for an after objection Evasion or Cavillation it shall be in our Adversary's choice Whether this Curia Regis mentioned in the Assise of Clarendon as also the Court that tryed Thomas Becket was the Curia Regis wherein the ordinary Justice of the Nation was at that time administred or the Parliament If it was the Curia Regis and not the Parliament was intended in the Assise of Clarendon in which the Priviledge and Indulgence under the Quousque was allowed to Bishops Then the Assise of Clarendon is unduly urged against the Bishops judging in Cases of blood in Parliament for that all Laws of Priviledge and exemption are stricti Juris and not to be extended beyond the Letter of the Law the single instance or the enumerated Cases and consequently by the Assise of Clarendon the Bishops have no leave to withdraw in Cases of blood in Parliament If the Court wherein Thomas Becket was tryed was the Curia Regis then the Bishops judging in that Court in that Cause doth most clearly declare that being a Case in point that the quousque in the Assise of Clarendon was an Indulgence and Priviledge which they might use or wave as they then did But this cannot be denyed that the Bishops are and were Barons ever since the Conqueror of which and of the Curia Regis we shall hereafter give an account and whatever was the business and office of Baron was consequently the office and business of a Bishop of Common Right and still is except any Legal restraint was put upon them by any Law which was not done by the Assise of Clarendon as we have proved by the reason of the making of that Law the Interpretation of that Law at that time Nor was that Law or any other Law hitherto pretended but only the Canons of the Church against the Right and Duty of Bishops in Capital Causes in Parliament or if they will have it in the Curia Regis CHAP. VI. AND now we proceed further to shew how this Right and Authority of the Prelates hath been used and acknowledged in after-times Roger de Hovedon hath remembred in the Life of Richard the First who succeeded Henry the 2. That before the arrival of Richard the First in England who had been in Captivity in the Empire that one Adam de St. Edmond Agent to John Earl of Morton returned into England being sent to fortifie the Castle of Earl John against the King his Brother and was apprehended by the Lord Mayor of London with several papers of instructions and Commissions of Earl Johns for that purpose Hoveden tells us That the Mayor cepit omnia brevia sua in quibus mandata Comitis Johannis continebantur tradidit ea Cantuariensi Episcopo qui in crastino convocatis coram eo Episcopis Comitibus Baronibus Regni ostendit eis literas Comitis Johannis earum tenorem statim per commune Concilium
the King for that office the best of those they know which are many times most unfit But this may be remedied when his Majesty shall please to give leave to the Clergy of the Diocess to choose their own Diocesan their Choice notwithstanding submitted to the Kings approbation and Confirmation which was permitted by Justinian the Emperor and was in use in several of the best Ages of the Church or by some other method which may be advised by his great Council whereby the greatest assurance may be given that the best and fittest persons be preferred to Bishopricks for the Common people are envious and suspicious and what ever may be done by bad means they always think is so But if Bishops were promoted to their Sees with the gratulations and applauses of the whole body of the Clergy of the respective Diocesses all that passeth under their advice and consent would likely meet with the general satisfactions of the people as it would well deserve as long as the Clergy can have any Authority with them That is as long as the Nation continues Christian But the general Corruption of Manners and decay of Piety is the great and truest cause why the Bishops unenvied enjoy no part of that honour that our Ancestors Wisdome and Piety conferred upon their order conformably to all other the Ancient Christian Governments But when Virtue and Piety shall recover their esteem the reverence of the Clergy will return We are not like long to expect this happy Change for Vice is now arrived to a Plethora and like to burst by its own excesses And we well hope that the mischiefs which we suffer will cure that evil from whence they spring and prevent the greater Calamities that it further threatens However it becomes all good men to assist to support the present Government which is the cheapest the surest and the next way to arrive at a happy constitution of things This was the design of the Author of the Grand Question After the publication of that Book I laid by all thoughts of publishing this Treatise But perceiving that notwithstanding what he hath said the Right yet remains controverted and a Book is since printed wherein several things are objected in prejudice of this Right and more is expected I did review these Papers wherein I found I had prevented those objections and with a little application they would appear insignificant I did resolve to make this publick And besides that I apprehended some things material to the Question were omitted by the Grand Question that a several way of speaking things to the same purpose hath its advantage Our great Courts affect to have several arguments on the same side in great Causes and our Reporters publish them Besides herein several things are occasionally discourst of which makes it of further usefulness to the publick Our adversaries also were treated too kindly by him and had deserved sharper reflections than he makes upon them for their false and perverse Reasonings and ought to lose that reputation which they abuse to the hurt of the Government And further I thought it not for the honour of our faculty that never fails to supply the worst cause with Advocates That a question of this Nature wherein both Church and State Religion and our Civil Policy is concerned and the Right thereof not only clear and evident in it self but also useful to the State should have not one of the Robe to plead for it The friends of the Cause will not grudge to read two Books for the Right as well as several against it and the Adversaries of our Cause ought to suffer the like trouble themselves which they occasion to others These Considerations did induce me to publish this Treatise I am well pleased that I am ingaged in a good Cause that was suited to one of my slender Abilities Right is so strong an Argument for it self that it wants only light to discover it Whereas an unrighteous cause stands in need of disguisings and shadowings and all the Artifices and fetches of the Wit of abler men to give that a Colour at least which is destitute of Law and Right THE CONTENTS CHAP. I. THe Nature of the Right the obligation to use it the obvious indications of it and the benefit which may be reasonably expected in the exercise of it How it came to be drawn into question and how it can be fairly determined how it hath been opposed and upon what Reasons and Evidence the Right doth rely Chap. II. The general prejudice against this Right from an Opinion conceived that the Clergy ought not to intermeddle in Secular Affairs remov'd That Bishops have been employed in the greatest trusts by Emperors not hindred by the Church but this hath been envy'd to them by the Pope Chap. III. The Precedents that are produc'd from the Parliament Rolls against this Right are considered They prove not pertinent at most but bare Neglects not Argumentative or concluding against the Right Chap. IV. This Right cannot be prejudic'd by non user The Nature of Prescription that the Right in question is not prescriptible The Original of this Right that it is incident to Baronage The Bishops when made Barons and for what reason That all Offices whether by Tenure or Creation are Indivisable Chap. V. Bishops never pretended the Assise of Clarendon when said to be absent Bishops sat in Judgment upon Becket and his Crime and Charge Treason by which it is demonstrated that the Assise of Clarendon only put them at liberty but not under restraint from using their Right of Judging in Capital Causes Chap. VI. Bishops sat in Judgment upon John Earl of Moreton after King John the Bishop of Coventry c. for Treason Chap. VII An Opinion prevail'd and continued long that no Judgment in Parliament where the Bishops were absent was good and their absence assigned for Error to reverse Judgment in Treason in Parliament prov'd by the Petition of the Commons 21 R. 2. upon their protestation made 11 R. 2. And by that protestation it is evident they had a Right and that they saved it by that protestation They pretended they could not attend the matters then treated of by reason of the Canon But alledged no Law for their absence Chap. VIII Of Canons Canon law What effect Canons can have upon a Civil Right The Canons prohibiting the use proves the Right Chap. IX Bishops made their Proxies in Capital Causes which proves their Right and their thereby being virtually present and the lawfulness of making Proxies and such as they made Chap. X. A Repeal of the Parliament 21 R. 2. No prejudice to what the Bishops did in making their Proxies The Opinion of Bishops presence being necessary in Parliament continued in time of H. 5. Chap. XI Bishops actually exercised this Authority in 28 H. 6. in the Case of William de la Pool Duke of Suffolk Opinion of the Judges that Bishops ought to make Proxies in the Tryal of a
not pass the Limits of our own Arguments otherwise we had much to say against the Authority of that Sory as it is by the Octavo mentioned But to this day neither in Record or History have we heard of any the least pretence of any special abatement made of any service due by the Tenures by Barony to any Bishops or other Spiritual Baron by the Conquerour at the time of the creating those Tenures neither did the Bishops when they would fain have been excused from judging in Blood ever pretend to it or make any such excuse that their Tenures did not oblige them thereto They have ever been esteemed to have power of Judgment in Capital Causes in Parliament and in a long tract of time it hath been several ways used and acknowledged Their Right is so far from being fore-judged that it never till of late was brought in question They have pretended sometimes that they ought not to use that Right in observation of the Canon Law and have made their protestation according whether of necessity or choice shall be considered They were upon the score of the Canon Law indulged in the Satute of Clarendon from being present and assisting in giving the Judgment of Death and mutilation of Limb yet their Right was not by that Statute destroyed or hurt it put them only at liberty to use it or not but put no obligation or legal restraint upon them not to use it That Law was in favour of their Liberty not a Restraint upon their Right The words of that Law that concern this question we shall here set down Archiepiscopi Episcopi universae personae Regni qui de Rege tenent in capite habeant possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis ministris Regis sequantur faciant omnes consuetudines regias sicut caeteri Barones debent interesse judiciis Curiae quousque perveniatur ad diminutionem membrorum vel ad mortem Whether these words are words of Liberty or Restraint of prohibition or indulgence and favour as also how far this favour Liberty or Indulgence did extend will appear clearly by the occasion of the Law and the History of those times for whose sake it was made and upon what inducements and how far they did use their Liberty afterwards It is notorious that the design and endeavour of some Bishops of that age and before from the days of Gregory the seventh was to establish an Ecclesiastical Monarchy in the Pope to make themselves the Grandees of another Kingdom they endeavoured to exempt themselves from all Civil subjection as also from being any part of the Civil Government over which their Church Empire was to rule and domineer They looked upon their Baronies to be marks of Slavery and inconsistent with their designed Church-empire by which they were kept in subjection to the Government and made a part of it which was designed by the Conquerour but most sharply complained of as may be seen in Mat. Paris Rex Willielmus pessimo usus consilio Episcopatus sub servitute statuit militari rotulas hujus Ecclesiasticae servitutis ponens in Thesauris multos viros Ecclesiasticos huic constitutioni pessimae reluctantes à Regno fugavit If the Bishops then had been ambitious and desirous that they might be as the rest of the Barons were Judges in the Kings Court then it is true that the word quousque must be a word of Exclusion and that their pretence of judging was fore-closed to all matters under the quousque For if I ask a thing which is not my right that which is not granted is denyed and by such denyall in case of a Law declared the more unlawful But this cannot possibly be for they were already Barons and Judges as other Barons This they reckon'd a servitude and was matter of grievance and complaint But the Assise of Clarendon did proceed from the King for the asserting his Soveraign Power to resist the design of the Papal Monarchy and to oblige the Bishops to continue part of the Government and to tye them to the duty of their Tenures Gervasius tells us Col. 1386. that the Bishops did not know what the Consuetudines Ecclesiasticae in the Assise of Clarendon were but they imagined them to be evil because the King did so much insist upon them Nesciebant saith he speaking of the Bishops hujusque quae essent illae consuetudines sed pravas esse suspicabantur eo quod tantâ instantiâ peterentur But the King commanded as followeth sapientiâ provectiores ite disquirite Avi mei consuetudines ut in scriptum redactae deducantur in medium publice recenseantur quas cum seorsum veteres actus pravitates so he calls the Statutes of Clarendon in scripta reduxissent haec tandem scripta modo Chirographi protulerunt which the Arch-Bishop was required to seal as the custom then was in passing of Laws It is likewise evident in the very Assise of Clarendon that the Bishops were then Barons and ought to do the office of a Baron and were by being Barons Judges and ought interesse sicut caeteri Barones Judiciis Curiae Domini Regis But how far they should by that Statute be bound hereafter this Law was to determine In consequence the Quousque is but a Clause of Liberty at most and the matter under it left to choice A priviledge indeed the Bishops might hereby obtain to judge or not to judge in Causes of blood which they used in all after-times as they pleased as they did more or less regard the Canons as either they did or were thought to intend No right was hereby fore-closed of judging but establisht for the words are debent interesse Quousque is a Clause of exception and leaves them in that matter at large and savours not at all of a prohibition But though the Bishops might have such a Liberty by the Letter of the Assise of Clarendon to judge or not to judge at all in capital Causes which doth not at all impair their Right but that notwithstanding they may use their rightful authority when they please Yet the Bishops did not intend themselves further priviledged by this Law than that they should not be obliged to be present at the pronouncing of the sentence which appears by the Canons that have been made about this matter in England which we shall mention hereafter which would have been most peremptory in their prohibitions and very severe in their denouncing Curses in a matter of this nature as far as they had the Laws on their side As also by the Practice of the Bishops in those times which appears by Peter Blesensis whose words are Principes sacerdotum seniores populi by which he means the Bishops who from the dignity and worthiness of their Order are called Seniores a note of dignity in all Countries in all Ages which I observe because some are so ignorant as not to know it and think the
Laity is meant by seniores populi but if the Lay Barons had been guilty of that which he there complains of as well as the Bishops he would instead of this complaint declaim'd against the folly and madness of the Age for want of justice Licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis seque ideo immunes à culpà reputant quod mortis aut truncationis membrorum judicium decernentes à pronuntiatione duntaxat executione poenalis sententiae se absentent And it is most observable that the Bishops did never excuse themselves from Session in Criminal Causes by virtue of the Assise of Clarendon but from the inhibition of the Canon and the use of the Liberty will best declare the Nature of it CHAP. V. IT 's most remarkable for the understanding aright the true meaning of this Law that the Bishops were admitted Judges in Parliament without exception of the Temporal Lords in the Case of Thomas Becket accused of Treason though the King and Temporal Barons had reason to believe that the Bishops would not do right to the Crown against that unruly and rebellious Prelate and when the Bishops themselves would have been glad of that pretence to have withdrawn themselves And this was about eight Months after the making the Statutes of Clarendon And in a short time after the swearing the observance of them by all the Grants of the Kingdom But the Law was then so well understood however the Letter of the Statute makes matter of dispute now that it was by no body in the least pretended that it was to be understood to such a sence as it is now drawn to viz. to exclude the Bishops the Spiritual Barons from judging in capital Causes in Parliament In those times they had only such an understanding as we have here before offer'd We shall therefore now proceed to give you an account how in the course of time the Right of the Prelates hath been used and recognized We will begin with the Case of Becket Arch-Bishop of Canterbury at a Parliament held in October in the 11 H. 2. Anno Domini 1165 at the Castle of Northampton To this Parliament Arch-Bishop Becket was cited as a Criminal and had not his Summons as Arch-Bishop so that that Parliament seem'd to be conven'd for doing him Justice the offence must therefore be very great so Stephanides tells us as he is cited by Mr. Selden 707. Though he was wont of custome to have the first Summons by the Kings Writ Nec tunc enim saith he nec diu ante ei scribere voluerat qui eum salutare nolebat Nec aliam per literas sibi directas solennem ac primam ut antiquis moris erat habuerat Archiepiscopus ad Concilium citationem Becket was there accused of Treason laesae majestatis coronae saith Fitz-Stephen a Monk of Canterbury that attended Thomas Becket the Arch-Bishop in his troubles Bishop Godwin in his Book de Praesulibus tells us that Arch-Bishop Becket Omnia sibi cernens infesta Naviculâ apud Rumenegam conscensâ in Galliam profugere conatus ventis adversantibus in littus repertus ac deprehensus ad Regem Conventus Northamptoniae agentem adductus est Ibi repentundarum peculiatûs perjurii proditionis falsi nescio quot aliorum Criminum cum à caeteris proceribus tum Episcopis ipsis suffraganeis reus factus This Court is called a Parliament by Mr. Selden and magnum Concilium by Roger of Hoveden and by others as Mr. Selden saith But that it was a Parliament and not the Curia Regis which we shall speak about hereafter doth appear by this certain diagnostick viz. that the Bishops were Summoned hereto by personal Writ of Summons to them directed immediately at that time which appears by what is before cited out of Fitz-Stephen and what is after taken out of Gervasius But to the Curia Regis they were Summoned by the Sheriff by a general Writ to him for that purpose directed which is a distinctive Note and Character of a Parliament as will hereafter appear But Fitz-Stephen saith as Mr. Selden quotes him Titles of honour Fol. 705. that secunda die consulentibus Episcopis Baronibus Angliae omnibus Nay he is so exact in his observation that he tells us who was not there of the Bishops viz. Roffensis Episcopus quidam alias nondum venenat Hoveden tells us how Becket had before behaved himself towards the King that notwithstanding great endeavours used on the Kings part to reconcile Becket to himself He would not be reconciled to the King Post multum tempus saith Hoveden Ernulphus Lexoviensis Episcopus venit in Angliam sollicite laboravit die ac nocte ut pax fieret inter Regem Archiepiscopum sed ad plenum fieri non potuit Deinde per consilium Lexoviensis Episcopi Rex separavit Rogerum Archiepiscopum Eboracensem Robertum de Welun Episcopum Herefordiensem Robertum Lincolniensem Episcopum alios quosdam Ecclesiae Praelatos à Consortio Consilio Cantuariensis Archiepiscopi ut per illos praefatum Cantuariensem Archiepiscopum in suos Conatus facilius alliceret Deinde venit in Angliam quidam vir Religiosus dictus Philippus de Eleemosyna missus à latere Alexandri Summi Pontificis Cardinalium omnium ad pacem faciendam inter Regem Archiepiscopum Cantuariensem Per quem summus Pontifex omnes Cardinales mandaverunt Cantuariensi Episcopo ut ipse pacem cum domino suo Rege Angliae faceret Leges suas sine aliquâ exceptione custodiendas promitteret his igitur aliis magnorum virorum Consiliis acquiescens Thomas Cantuariensis venit ad Regem apud Woodstock ibi promisit Regi concessit se bonâ fide sine malo ingenio leges suas servanturum Et paulo post congregato Clero populo Regni apud Clarendon poenituit Archiepiscopum quod ipse Concessionem illam fecerat Regi volens resilire à pacto dixit se in illa Concessione graviter peccasse quod in hoc amplius non peccaret Rex plurimum in irâ adversus eum commotus minatus est ei suis Exitum Mortem Venerunt ergo ad Archiepiscopum Salisburiensis Norwicensis Episcopi Robertus Leicestriae Reginaldus Cornubiae Comites lachrymantes provoluti ad pedes Archiepiscopi petebant ut saltem propter honorem Regis veniret ad eum coram populo diceret se Leges suas recepisse Precibus igitur tantorum virorum Archiepiscopus vectus venit ad Regem ●oram Clero populo dixit se Leges illas quas Rex avitas vocabat suscepisse concessit ut Episcopi Leges illas susciperent ut illas custodire promitterent Tunc praecepit Rex universis Comitibus Baronibus Regni ut irent foras recordarentur Legum Henrici Regis Avi sui eas in scripto
the Jurisdiction of Bishops Novel 83. he decrees the like for Clerks as well for matters Civil as for Ecclesiastical Crimes reserving others to his officers and furthermore in case the Bishops cannot or will not take cognisance of them he refers them to his Magistrates Nay the Emperours proceeded further and did give Jurisdiction to Bishops not only over Clerks but also over Laymen Constantine the Great whose Law the Canonists ascribe to Theodosius made a very favourable constitution in behalf of Bishops whereupon he gives them the Cognisance of all civil Causes betwixt Lay-men upon the bare demand of one of the Parties albeit the other did not consent unto it in such sort as the Magistrates are bound to desist from the Cognisance of it as soon as one of the parties shall require to be dismist and sent thither whether it be at the beginning or middle or end of the suit Arcadius and Honorius derogating from this Law will have it to be by the joint consent of both parties and that by way of Arbitrement The same Emperours together with Theodosius do ordain That there shall be no appeal from the Episcopal Judgment and that their sentence shall be put in execution by the Serjeants and Officers of the Judges The two last Justinian would have to be observed for as for that of Constantine he did not insert it in his Books which Gratian hath confest in his decrees and whereas in the Code of Theodosius the inscription of the Title runs thus De Episcopali Judicio Justinian instead of it hath put De Episcopali audientia to shew that it is not properly any Jurisdiction that is bestowed upon them but a friendly and arbitrary composition to abridge process After this the Emperor Charles the Great in his Capitulary renewed the Law of Constantine and gave the same jurisdiction therein contained unto all the Bishops repeating the same Law word for word which the Popes have not forgot in their Decrees where they have inserted the Constitution of Constantine under the name of Theodosius just as Justinian did in his Books the Responses and Commentaries of Lawyers to give them the strength of a Law But I know there is a Question made by very Learned men Whether that Law of Constantine is not supposititious But whether it be or be not we have alledged enough without it to prove that Christian Emperors and the ancient Christian Church was not of the opinion of this Author and that his Citations so much as they are true are nothing to his purpose The cause or reason of those two Laws expressed in the Laws are For that the authority of Sacred Religion invents and finds out many means of allaying Suits which the Tyes and Forms of captious Pleadings will not admit of That the judgments of Bishops are true and uncorrupted That this is the choaking of those malicious seeds of Suits To the intent that poor men intangled in the long and lasting snares of tedious Actions may see how to put a speedy end to those unjust demands which were proposed to them But the Pope his Decretals the Court of Rome and other Ecclesiastical Courts are of old complained of as the source of Iniquity and injustice and of all the shufflings and tricks that ever could be invented in matter of pleading and that all Papal Christendome hath groaned miserably under them and I wish that we may never hear duly of any such complaints of our Ecclesiastical Courts It is worth observing how the Church and Common-wealth did Actions contrary to each other in pursuance of their several interests The Common-wealth endeavour'd to engage Bishops in the highest secular affairs and in their supream Judicatures and so the people would have it not doubting of such administrations as they might fairly expect from the Bishops ability Authority and Religion But on the other side the Church did as much decline them as she could and so far as she might she used her Restraint only in prohibiting them from medling for their own private gain in Temporal affairs Can. 14. Arles clericus turpis lucri gratia aliquid genus negotii non admittat but they did not take from them all opportunities both of doing good to their people and securing the Secular power of which they became part to their own assistance and without refusing their services to the Prince when required from which practice of the Church the Pope took advantage to put his peremptory restraints upon the Bishops and Clergy from intermedling in Secular affairs to make them the more submitted and dependent upon himself the better to arrive to his Ecclesiastical Monarchy The Dignities and favours that Bishops received at the Courts of Princes was the envy of the Pope and matter of quarrel against them and Petrus Blissensis upon such an occasion makes an Apologie to Pope Alexander the Third in an Epistle writ in the Name of the Arch-Bishop of Canterbury in defence of the Bishops of Ely Worcester and Norwich who attended then at Court upon the service of the King which because he hath been an Author produced by the other side in this Cause and because what he says for their being admitted into the Councels of Princes contains so many advantages to the Church and State I shall here transcribe Non est novum quod Regum Conciliis intersint Episcopi sicut enim honestate sapientia caeteros antecedunt sic expeditiores efficaciores in Reipub. administratione censentur quia sicut scriptum est minus salubriter disponitur regnum quod non regitur consilio Sapientum in quo notatur eos consiliis regum debere assistere qui sciant velint possint patientibus compati terrae ac populi saluti prospicere erudire adjustitiam Reges imminentibus occursare periculis vitaeque maturioris exemplis informare subditos quadam Authoritate potestativa praesumptionem malignantium cohibere He proceeds in his discourse and brings the examples of Samuel Isaiah Elisha Jehojada Zachary who were Priests and Prophets respectively and yet imployed in Princes Courts and Councels of Kings and adds Vnum noveritis quia nisi familiares Consiliarii Regis essent Episcopi supra dorsum Ecclesiae hodie fabricarent peccatores immaniter intolerabiliter opprimeret Clerum praesumptio laicalis then he adds advantages to Religion and policy hereby Istis mediantibus mansuescit circa simplices judicarius rigor admittitur clamor pauperum Ecclesiarum Dignitas erigitu relevatur pauperum indigentia firmatur in Clero libertas pax in populis justitia libere exercetur superbia opprimitur augetur laicorum devotio religio fovetur diriguntur judicia It is well known and I will not be so impertinent as to go about to prove that the chief Ministers of Religion have been the greatest men in Civil Government in all Nations and in all Religions as well as in ours and as certain it is this Author will never find reason or precedent of
it not be with as much fairness concluded that the Bishops were present because the addition of Temporal is not made to Seigniors and Grants in the said Cases of Sir Ralph Ferrers and Sir Wil. Thorp as it can be that they were absent in the hearing of the said Cases because the word Prelate or Bishop is not in those Entries expressed If he will be just and change the Tables He must yield us the Argument for he knows that there is no establishment in the Modus tenendi Parliamentum directing the Forms of Entries or any solemnes formulae whose import and value is ascertained and made indisputable but are to be expounded by an easy interpretation such as we use when we make fair constructions in common speech But to give this another Answer The Arguer is herein guilty of that fallacy which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or non causa pro causa And his Witness doth not speak ad idem The Bishop was an Ecclesiastical person and though the Bishops might try a Temporal Lord for the same offence yet they would not consent to try a Bishop and forgo that great priviledge of the Clergy with so much earnestness defended in that Age to be exempt from secular Judicatures They would not be present to try because of the person of the Defendant which cannot be drawn into Argument to prove that they had no cognizance of the Cause with any fairness But further the Octavo doth afterwards produce a Testimony that doth contradict this last Testimony in the point for which he produc'd it It is the Case of Thomas Arundel Arch-Bishop of Canterbury 21 R. 2. The Bishops pronounced Judgment against him in Treason by their Proxy They can it seems upon great Reasons wave that priviledge and submit a great Malefactor of their own Order to Justice as they did in the Case of Becket heretofore So that you see here they used a Jurisdiction in a Cause of Treason in the Case of Thomas Arundel which the Bishops could not have used without a Right And the Case of the Bishop of Norwich is only an omission consistent with a Right The Case of Sir William Rikehill is next in order who was sent by R. 2. to Calais to take the Confession of the Duke of Glocester who soon after was Murdered The Judge was arrested and brought into Parliament before the King Lords Spiritual and Temporal and Commons the whole matter was examined and the Judge was examined Here is likewise a clear Case for the Bishops an Instance wherein they did take cognizance of a Capital Cause in Parliament But the Octavo hath a Shift for us and says that there was no impeachment or charge against the Judge and so the Bishops might be present at his Examination Let the Reader here observe the sleights wriglings and prevarications of this Octavo Author Whatever the World thinks of this Author I am much dissatisfyed about him and cannot believe him a man indifferent and impartial in this Enquiry In his observations of the Parliament of the 15 E. 3. the Bishops he saith vanished like lightning they went away immediately at the opening That matters of the Peace in general were to be treated of wherein Blood and Member might not at all be concerned for all that appears They went away and as he would have it they returned no more and they must not hear so much as a Commission of the Peace read But here in this Case of Rikehill they may examine a Murder He will say I am sure that though the Bishops did examine it they could make no judgment of the matter But who will believe him In the Case of de la Zouch and Gray he observes that Bishops could not be present so much as at a Battery though there was no Battery in the Case and yet he allows them to judge of all misdemeanors in the same little Book I observe but these things of many more of like nature which the Reader may observe of himself in that little Octavo that the World may judge how unjustly he deals in this Cause with what iniquity and prevarication he manages a noble question of Right concerning the Government of the Kingdom With what petulancy spight and inveterate displeasure he useth the Bishops That he is grinning at them whetting his teeth and squinting upon them perpetually with an evil Eye He oppugns their Right with Cavillations upon the Clerks Entries with what is in the Record and what is not and what he is pleased to add of his own upon them and with Precedents that reprove one another Had it not been more fair for him to have stated the Right upon a probable result of all the Records considered together than to make their Right sometimes more sometimes less sometimes to affirm sometimes to deny their Right in the same little Octavo He cannot sure think that every Judgment that hath been given upon deliberation in the greatest Judicature can uncontroulably make the Law much less a Fact much less an Omission a Negative that can operate nothing If nothing be Law but what hath always and constantly been done in the same manner and form and all circumstances the same as this Author it seems would have it and nothing true Theology according to Vincentius Lirinensis his Rule but what hath been received ab omnibus ubique semper We can have no Law nor no Theology Vain and idle opinions must be discharged such as can have no consideration with wise men and the Law must be declared by the Nature of Government reason and the general order of things But we have made too long an Excursion We must return to a further consideration of Rikehil his Case And now I submit it to any impartial man whether the Judge could be arrested and brought under an Arrest into the Parliament and be examined and not accused The very next Case he recites is that of John Hall in which we find nothing but an Examination and confessal upon which he was condemned as a Traytor And so would it have fared with Sir William Rikehil without doubt if he had been guilty and had confessed Neither the Octavo nor Sir Robert Cotton mentions any formality more against the one than the other The House of Lords are not tyed to Formalities in their proceedings like other inferior Judicatures and the more inferior any Court is the more regular forms are exacted and that with great reason which we will not hear treat of Besides in the Case of the Earl of Northumberland recited in the Octavo Book Fol. 34. in 5 H. 4. a Judgment was given against him for an offence upon a petition which he exhibited for a pardon of the same offence But in the Case of the Earl of Northumberland I pray observe what the Octavo saith in reference to our question After he hath recited part of the Record in these words The petition being read and understood the Lords as Peers of Parliament
the great convulsions of State and the simultates amongst the Great men and extravagant excesses of injustice to the glory and honour of the Bishops it must ever be remembred that they did preserve themselves from being ingaged in such violences as were committed against the last mentioned Lords But that the Author of the Octavo should produce the Case of Sir John Mortimer against us who was condemned upon a bare Indictment without Arraignment or due Tryal a good reason why the Bishops were not there when he immediately after produceth the Case of the Duke of Suffolk wherein the Bishops were present and will have it stand for nothing because in that it was irregularly proceeded is monstrous partiality and iniquity But in what I pray was the irregularity in the Case of the Duke of Suffolk Why because the Commons desired he might be committed upon a general Accusation But he was not And the second irregularity was that some Prelates and some Lords should be sent down to the House of Commons which is often done But it is not the Prelates that he is thus concerned for but that the Lords lessened their Estate This to excuse him might make him very angry with that Case and quarrelsome And yet after all there is a fallacy in the Case of Sir John Mortimer which he would put upon us for Sir John Mortimer was condemned by Act of Parliament and therefore the Bishops might have been there if they had pleased and that with his leave For it was by the Duke of Glocester who in the Kings absence was commissionated to call and hold that Parliament by the Advice of the Lords Temporal at the prayer of the whole Commonalty in this present Parliament and by the Authority thereof ordered and decreed that he should be led to the Tower and from thence drawn to Tyburn I cannot therefore but observe how by the pretence of the Canon a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes and by other prudent Arts and Recesses from tumultuations the Bishops kept themselves often from being engaged in the Animosities of Great men against one another A matter remarkable for the commendation of their Exemplary Wisdom and Justice and a Recommendation of the men of that Order to be continued in the greatest trusts that the Government hath committed to them But now shortly and summarily to review what we have offered in the matter of Precedents and together to consider what true value and weight they are of in the Cases of Roger Mortimer and Haxey and of Sir John Mortimer 2 H. 6. every body may see a reason why the Bishops should not act if they had Authority and therefore without wilfulness it cannot be concluded they had none Who sees not that these Cases are Precedents for us for that the Bishops judged in the Reversal of the sentence against Haxey which if they had reason for it they ought to have affirmed And the Bishops might have been present rightfully at the undoing the Attainder of Roger Mortimer by the Confessions of these Authors The Proceedings in the Parliament of 15 E. 3. is a true argument of the Bishops modesty But it proves more than he is willing to prove if true viz. that the Bishops cannot joyn in making Laws to punish publick Crimes and therefore logically concludes nothing besides that the matter is false in fact as it is alledged The Cases of Sir William Thorpe and Sir Ralph Ferrers taken at best for him are but militant and have as much to say for as against the Bishops being there present But to be true to the cause of the Bishops We have this advantage against him that the Bishops were always in the possession of their Right because never fore-judged and it was once theirs as we shall prove by and by And this makes a presumption that they always used it when there is nothing to the contrary The Bishops were not present in the Bishop of Norwich's Case but the Bishops may be at any time absent upon a sontica Causa The defendant was a Bishop which was a very allowable one in those times But this must be considered with the Case of Thomas Arundel Bishop of Canterbury in whose judgment they were present virtually by their Proxy and therefore had a Right to be there The Case of John de Gomets and William de Weston is unduely and against the faith of the Record produced against us for upon the truth of the Record the Bishops were present notwithstanding any thing that can be from thence deduced to the contrary The Case of Sir William Rikehil 1 H. 4. is for us so is the Case of the Earl of Northumberland 5 H. 4. The Case of John Hall who murdered the Duke of Glocester and of the two Merchants that killed John Imperial the Genoua Ambassadour 3 R. 2. are foreign to this question and so is the Case of Sir John Mortimer except Judicial Authority and Legislative Authority in Blood are of the same consideration as I think they are and shall hereafter make out to be probable and then those Cases are for our Right They confess that the Bishops might have been present if they pleased and their absence at the passing of those Bills doth not conclude against their Right themselves being Judges The Writ de haeretico comburendo is of another consideration and doth not fall in with the present question There was no Judgment given or to be given in the Cases of the Earl of Huntingdon Kent Salisbury Lord Le Despencer Sir Ralph Lumley the Earl of Northumberland and Lord Bardolph All these Precedents such as they are happened in no long Tract of time but very tumultuous Not one of them pretends to be an exclusion of the Bishops upon Judgment or positive declaration of State They pretend to be only instances of Omission or non user which may well consist with a Right And yet contrary to the true import of these Precedents and the true Nature of them being only of Omission and absence of the Prelates which as they are can make no induction or establish any proposition whereupon to frame an Argument or conclude a prescription Besides that a prescription is not possible in a meer negative and to and of nothing And where no body can use or possess that Authority in pretence in the defailance of the party to use it whose Right it was Besides that it is not a prescriptible matter which we shall further explain hereafter it being in a matter of the Government and a Right arising from its constitution Contrary I say to the whole nature of the matter He makes this Argument à saepe facto ad jus valet argumentum His Argument should have been if agreeable at all to the matter this That where a Right is sometimes not used there can be no Right But if this had been said in English every body would have condemned his reasoning and disallowed if not laughed at the Argument So that we have
left this Author neither reason or Argument We have stript the Cause of all the Precedents that pretend to favour it and have left it Rara Avis indeed but not nigro simillima Cygno as the learned Author in Octavo hath it with which he reproaches the Right of the Bishops as assisted only with a single Precedent But to a Bird of no colour at all the bird in the Fable I mean furtivis nudata coloribus to be exposed to laughter with its naked Rump CHAP. IV. BUt if these Precedents had been all such as they pretend to be and the Bishops not present in Judgment in any of those Cases which the Octavo and Folio have produced and if they had been all Capital Causes that came in Judgment in that House and all determined judicially and not by the Legislative power of Parliament and no reason was to be assigned for the Prelates absence from the Nature of the Cause If they had had no inducements to withdraw from any dissatisfaction they had in the prosecution and the pretended Right of the Church-men in those days much insisted upon to be exempted from the jurisdiction of secular Courts had not been the Cause of their absence which suppositions are not so in fact And tho' the Bishops had never used the Authority and power in question as they have yet if we can prove they had once a Right those Omissions of theirs can be no prejudice to the meer-Right Though then I confess we should labour a-the gainst invincible prejudice in the Opinions of most 1. For that no man can lose a Right by not using of it but where that right can be usurpt by another and is so And that usurpation having been for immemorable time when no body can tell when it was otherwise shall in a matter prescriptible be intended to be acquired by good Right and that with great reason in favour of possession and the quieting of them for that Estates and Rights can last longer than the Grants and Evidences or Records themselves that first created them But where the nature of the Right is such as this of the Bishops in pretence is which no body can use for them For the Temporal Lords sit in Judgment in their own Right which is a plenary and compleat right and cannot be made more or less Secondly for that no Franchise from the Power and Authority upward of a Court Leet which can be neither more nor less by usuage than the Law hath establisht can be prescribed to And a Quo Warranto will fore-close and extinguish an immemorial usuage of any irregular and illegal Franchise A Right that can never be prejudged and fore-closed by non user and such is every Right that grows from the constitution of the Government though it should be discontinued for a long tract of time may be at any time rightfully and legally continued The happiness of our Case is that we can point to the time when the Right of the Prelates to sit in Judgment in Capital Causes in Parliament was established And which is more imposed upon them and they put under a Compulsory and obliged by the Tenure of their Lands to serve the Crown in that capacity And that was in the beginning of the Reign of William the Conquerour Mr. Selden in his Titles of honour with great probability hath fixed it in the 4 year of his Reign when he made the Bishopricks and Abbies subject to Knight service in chief by creation of new Tenures upon them and so first turned their possessions into Baronies and thereby made them Barons of the Kingdom by Tenure This he saith is justified by Mat. Paris and Roger of Windover out of whom Mat. Paris took this Relation Anno 1070. so are their words Rex Willielmus pessimo usus consilio Episcopatus Abbatias omnes quae Baronias that is by Anticipation for the Lands made Baronies tenebant in purâ perpetuâ eatenus ab omni servitute seculari libertatem habuerunt sub servitute statuit militari c. This he makes further probable for that in a Manuscript Copy which he used in a very antient hand these words are noted in the upper Margin over the year 1070. hoc anno servitium baroniae imponitur Ramesiae It seems saith he the volumn belonged to the Abby of Ramsey And some Monk of the House noted that in the Margin touching his own Abby which equally concerned the rest of the Abbies that were mentioned in that Relation by their Lands being put under the Tenure by Barony and they made Barons they had a Right to sit with the rest of the Barons in Councellor Courts of Judgment For saith Mr. Selden tenere de Rege in capite habere possessiones sicut Baroniam and to be a Baron and to have Right to sit with the rest of the Barons in Council or Courts of Judgment according to the Laws of that time are Synonymies So that there were no distinctions of Barons as to power and Authority or Jurisdiction but the Right of a Baron was the same whether he was a Temporal or Spiritual Baron for the Tenure of both is one and the same and therefore the Services must be the same The office that is the result of this Tenure is the same in the House of Lords and indeed no office can be less than what the Law appoints it The King cannot make a Peer a Judge or a Bishop and put any Restraint upon the exercise of the powers and the jura ordinaria that belongs by the appointment of the Law to a Peer Bishop or Judge And that it is an office by Tenure can make no difference for the Law declares the Power and Authority So that the Powers of all Barons are and must be equal and what is allowed to one Baron cannot be denyed to another William the Conqueror made the Bishops Barons by putting them to hold as by Barony did not intend only the Bishops more honour but himself also more service and better assured He cannot be intended especially to abate them their service in punitive or vindictive Justice which a Conquerour of all other performances cannot want I do not doubt and if it were not unnecessary to this question likewise to shew that before the Conquest the Bishops or Spiritual Lords had a great share with the Thanes or Temporal Lords in the Government and were then one of the three States agreeable to all the Gothish Saxon for the Saxons were Goths which we must not here insist upon and Modern Governments that have been planted in Europe which we shall speak to more hereafter But we will resort no higher than this of their becoming Barons by Tenure in time of the Conquerour for the clearing of the Prelates Right now in question And therefore we are not concerned to say any thing to the Case of E. Godwin mentioned in the Octavo in Edward the Confessor's time For Brevity sake and because we will
Law was publickly professed in England before the end of the 12th Century for Mat. Paris tells us of a Monk of Evesham Anno Dom. 1196. that suo tempore eorum quos Decretistas Legistas appellant peritissimus habebatur earum etiam facultatum auditores quamplurimos instituerat and from that time the study of the Caesarean and Pontificial Law did flourish amongst us until the beginning of E. 3. But in all that time saith Mr. Selden in his Fleta gens ipsa Anglicana ac qui in judiciis praeerant morum patriorum viz. Juris Communis Angliae per intervallum illud tenacissimi fuere A remarkable instance we have of this Nations steady aversion from admitting here either the Civil or Canon Law in the Parliament of Merton which rejected a Bill for Legitimation of Children born before marriage in Concubinate in these Terms Nolumus leges Angliae mutari meaning that they would not make Laws conformable to the Civil or Canon Law The great Policy that the Popes used to effect their Ambitious design of making themselves Monarchs of the Christian World were The assuming to themselves the entire rule and Government of Religion and endeavouring to make every where the Bishops and the whole Clergy together with the Regulars dependant upon them by pretending them to be exempt from all Civil Authority and Jurisdiction and by interdicting to them the exercise of any Civil Authority and shutting them out from all intromissions into the Civil Government and from any interest or dependance thereupon So far as he prevailed in these designs he acquired an Imperium in Imperio and if besides these he could have fixt a Spiritual handle to the Temporal Sword and have got the Government of secular affairs in ordine ad spiritualia his design had been compleated and he had arrived to a more absolute and extensive Empire than that of the Roman Caesars To these purposes the Canon Law provided that the Ecclesiasticks were neither to exercise nor be subject to any Civil Authority But this policy of the Pope had no success in England the endeavours of the Papalins herein met with constant opposition and at last they were made desperate by the Assise of Clarendon where it was declared and enacted accordingly agreeable to the Avitae Consuetudines Regni that the Bishops should be retained and continue to be a part of the Government and exercise Jurisdiction in all Causes in the Kings Court as other Barons as is before observed and that the Clergy should stand submitted to the Jurisdiction of the Kings Courts For this purpose it was also in that Parliament enacted as followeth Si controversia emerserit inter Laicos vel Laicos Clericos in Curia Domini Regis tractetur determinetur and also quod clerici rectati accusati de quacunque re summoniti à Justitia Regis venient in Curiam Domini Regis responsuri ibidem c. And so far were the Bishops and Clergy from observing that part of the Canon Law that was to detrude them from all secular Authority and Jurisdiction that they were from time to time Chancellors Treasurers Keepers of the Privy Seal and Judges and while that Ancient Office continued of Capitalis Justiciarius Angliae to whom was committed the Justice of the Kingdom who were called Custodes Regni Vice-Domini Angliae and sometimes the abstract Justitia He did preside in the Curia Regis which Office was afterwards divided for there were Justitiarii Angliae Boreales Justitiarii Angliae Australes this Office was often executed by Bishops as you may see in Sir Hen. Spelmans Glossary in the word Justitiarius Bishops and Church-men administred the greatest Offices of State and Justice this was matter of Envy to the Temporal Lords and they complain'd in Parliament 45 E. 3. as is before observed That the Government of the Kingdom had been a long time in the hand of the Clergy Mr. Selden in his Fleta tells us that in the times before and after the Assise of Clarendon Mos fuit Judices Regios ex genere hieratico veluti Episcopis Abbatibus Decanis id genus aliis constituendi And it is provided by 28 E. 1. Cap. 3. That if a Clergy-man was a Judge of Assise another should be joyned in Commission with him to deliver the Goals which was to the end that the Ecclesiastical Judge might use that liberty which was indulged to him by the Assise of Clarendon of not pronouncing the Sentence for it must be observed that by that Statute a Clergy-man might be a Judge in a Goal-delivery for that a Laick was by the provision of that Statute to be join'd to him in Commission and Pleas of the Crown are to be found purporting them to be held before two Judges whereof one a Clerk after this Law which could not possibly have been if the Clerk had not been in Commission Besides for after Ages it is well known that all the great Officers and Ministers of State and Justice have been always intrusted with the conservancy of the peace are in Commissions of the peace and Commissioners of Oyer and Terminer for judging capital Causes so that the constant practice in all times as well as the express declaration of the Assise of Clarendon doth assure us that the Canon Law that prohibits Clergy-men being Judges in capital Causes was never received here or became the common Law of England Besides what regard our Clergy had of the Canon Law what opinion they had of the Right in question and how far the Laws did intend to prohibit the exercise of it And that such right was used and exercised will appear by the Canon of Toledo Concil Toletan 11. Cap. 6. fo 553. and the Canon of Lanfrank Spelmans Concil 2 vol. fol. 11. these were made before the Assise of Clarendon That of Toledo is this His à quibus Domini Sacramenta tractanda sunt judicium sanguinis agitare non licet ideo magnopere talium excessibus prohibendum est ne qui praesumptionis motibus agitati aut quod morte plectendum est sententia propria judicandi mant aut truncationes quaslibet membrorum quibuslibet personis aut per se inferant aut inferendas precipiant This being a Foreign Council this Canon carries not with it the Authority of a Canon with us only we may observe whatever the Opinion of that Council was that it was not convenient for licet can have no ocher sence here for Clergy-men agitare judicium Sanguinis Yet this Canon prohibits only the pronouncing the Sentence by themselves or others I am sure that by a positive Law as this Canon must be so far as it participates of the nature of a Law nothing becomes unlawful but what is forbidden whatever the reason be of that Prohibition That of Lanfrank follows thus Vt nullus Episcopus vel Abbas seu quilibet ex Clero hominem occidendum vel membris truncandam judicet vel judicantibus suae authoritatis favorem
and Officials to whom Custom hath given some Powers and Authoririty which cannot be check'd and controul'd by the Bishops themselves they are not to account neither are they answerable for the Lay-Zeal that hath made the Condition of Excommunicants so very afflictive For whatever some men please to think the Laity have out-done the Ecclesiasticks in the Excesses of intemperate Zeal as they are most apt and prone by their Ignorance to Superstition No man can pass under the Admonitions of the Church and be suspended from the Holy Mysteries until he hath made Satisfaction for his disorderly walking or Spiritual Pride in breaking Order but he is presently given up by the Laity to Satan I mean he suffers beyond the first Intention of the Church in her Discipline Severities enacted by the Law of the State which if reversed by that Authority that established them and a civil Process were enacted for the Ecclesiastical Courts in Causes of a Temporal Nature which are appointed by Law to their cognizance I persuade my self we should hear of no more Complaints against them in the Exercise of the Power of the Keys For we observe that they exercise the Power of the Keys with deference to the Secular Magistrates They never presume to excommunicate the Prince least they should thereby lessen his Authority and shock the Government For that all Government is established by the Honor and Reverence of the Governor according to that Saying of Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dissolution of Government doth easily follow the Contempt of the Governor As Kings are not subject to Penal Laws nor to be coerced by Penalties So true it is also what Balsamo hath noted ad 12 Canonem Synod Ancyranae Imperatoriâ unctione penitentiam tolli Neither do they presume in Reverence to the King to excommunicate his Counsellors and Ministers of State and Justice For so it was declared amongst other of the Avitae consuetudines of this Realm by the Assize of Clarendon Nullus qui de Rege teneat in Capite nec aliquis dominicorum ministrorum ejus excommunicetur nisi prius Dominus Rex conveniatur In which our Bishops are agreable to the Ancients Hildebert Cenoman after Bishop of Tours who lived about the eleventh Century says he Apud Serenissimum Regem opus est exhortatione potius quam increpatione Concilio quam praeceptis doctrinâ quam virgâ Ivo Bishop of Chartres in his Apology for communicating Gervasius saith thus Quos culpatorum Regia Potestas aut in gratiam benignitatis receperit aut mensae suae participes fecerit eos etiam Sacerdotum populorum conventus suscipere in Ecclesiastica Communione debebit ut quod principalis pietas recipit nec à Sacerdotibus Dei alienum habeatur Thus while the Bishops are not guilty of mean and unfaithful flatteries they do not participate of the pride of the Bishops of Rome or the irreverence and sawciness of a Presbyterian Consistory against their Princes and Governours Neither do they call up any criminal cause originally to their examination but pronounce the sentence of Excommunication on such onely as first are civilly convict of a crime save that matters of Incontinency are by the Common Law submitted to their Censure for that by the venerable gravity of the Judge and by the more private examination of such offences the modesty of the Nation is best preserved which is a surer defensative against the rifeness of such crimes perhaps than the sharpest punishments If they do excommunicate any man without a just cause or do not absolve the Excommunicate when he hath made his satisfactions the Bishop is compellable by the Authority of the Kings Courts to assoil the man under the pain of having his Temporalities seized into the Kings hands though he is not restored without the Episcopal Absolution For it is fit they should finally judge in their own proper Province and they must not they cannot relax the Laws of Christ nor administer the power of the Keys of binding and losing by any other measures for any power on earth But against this power of the Kings Courts they do not dispute or declare but have recognized it by their submission and they can submit to the penalties without complaining of this civil constitution Nay in the general order they approve it though in a particular case perhaps they do not because they cannot obey Our Bishops do not encroach any Temporal Authority in ordine ad spiritualia that stale pretence by which the Bishop of Rome hath arrived to his exorbitant power and by which the Scotch Presbyters would have acquired the like over Kings and Governours Their Authority always administers to and assists but never thwarts or contradicts the Temporal They have accommodated their power of the Keys to the vindication of our established Government against the attempts of Arbitrary Power to which their Allegeance to the King and the regard of the publick Peace did oblige them For such Attempts are mostly the ruin of those that make them always bring the Government it self into the greatest danger and sometimes prove the ruin both of the Government and the Nation This was required of them as an indispensible duty they being a principal part of the Government and the present Bishops Successours to all their Rights have no reason to decline their example if they have the like cause The Bishops anciently were sturdy opposers of King John when he designed to put this Kingdom into vassallage to the Pope and thereupon he writes to the Pope thus as followeth In conspectu paternitatis vestrae humiliamus ad gratias multiplices prout meliùs scimus possumus exhibendas pro cura sollicitudine quam ad desensionem nostram Regni nostri Angliae paterna vestra benevolentia indesinenter apponit licèt duritia Praelatorum Angliae inobedientia impediant vestrae provesionis effectum Pat. 17 Joannis R. M. 15. as I find it related by Mr. Petit in his book entituled The ancient Right of the Commons of England asserted About the 24 H. 3. Edmund then Archbishop of Canterbury at a Synod held at Westminster the King being present Candelis acceptis projectis ac extinctis Chartam Libertatum violantes vel sinistrè interpretantes excommunicantur Mat. Paris p. 151. About 13 years after viz. in 37 H. 3. Boniface then Archbishop of Canterbury the sentence of Excommunication is again repeated against those Qui Ecclesiasticas Libertates vel antiquas Regni Consuetudines in Chartis communium Libertatum de Foresta concessas quascunque arte vel ingenio violaverunt Fleta l. 2. c. 42. Dors Claus 37 H. 3. membr 9. Additament ad Mat. Paris p. 117. Which Sentence of Excommunication was ratified and confirmed in a Parliament held that year as followeth Noverint universi quòd Dominus Rex Angliae illustris Comes Norfolk Mareschallus Angliae H. Comes Hereford Essex J. Comes de Warewico Petrus à Sabaudia ceteríque magnates Angliae
will not assist to bring on the Popish Plot by disbelieving it and put us in fear of the Fanaticks by taking all the courses imaginable to provoke and exasperate them and upon their discontents which they maliciously heighten and by falshood and forgeries misrepresent To graft thereupon a Pretens of a Protestant Plot for a pretext to extirpate Protestanism and introduce Popery which they impudently pretend to be of a more firm Allegiance to the Government than the Reformed Religion I pray let it be considered that that which is tolerated is put under disgrace even for that it is tolerated and that which tolerates even for that it tolerats hath the Governing Authority and in so much as it indulgeth it obligeth to modesty and reason and. if that indulgence should be abused it may and will be retracted It was never intended by the House of Commons that the Church of England should be altered or modelled to an agreeableness to any form or sect of the separation or prescrib'd to by any of the Dissenters or that she should be made subject to any of their rules or opinions or her Liturgy laid aside for directories or which is worse undervalued to the profane way of extemporizing For as generally used and exercised it deserves no milder a stile That the Church should always govern by her own Wisdom in her own Province and in those things that appertain to her can never be deny'd her No man hath reason to say tho he hath great cause to dislike the separation and to have a bad opinion of the Dissenters that he had rather submit to Popery than to any form of the Separation for he need do neither except he pleaseth No man that thus expresseth himself but will be suspected to seek an occasion and pretens to become a Papist and to make a defection from the Church of England But if these Gentlemen have such a displeasure against Schism and Separation which certainly is the worst disease any Church can labor under and at this time threatens the destruction as well of the Protestant Religion it self as it doth to the Professors of all denominations let this sharpen their zeal against Popery which by its unhallowed arts hath occasioned and exasperated our Schism and put them upon the use of all means to reconcile if possible the Schism that the Papists have already made and by all means endeavor to continue and take away if possible the occasion of it for the time to come And thus defeat the Arts of the Priests and Jesuits for supplanting our Church It is a most deplorable thing that our Church should be kept rent and divided in danger of being lost between Rituality and scrupulosity Though the Scruples of the Nonconformists which I always thought and do still think groundless and unreasonable have often moved me into some passion against them yet upon consideration I think this their Scrupulosity may be of God and that some Men are by him framed to it That he hath provided it as a bare and obstacle in the Natures and Complexions of some devout Men against any Innovations whatsoever that dangerous ones may not steal upon the Church for the better maintaining the simplicity and purity of the Christian Religion and Worship But in saying this I have said nothing that is apt to give them a conceit of themselves but rather to humble them For the best Men are not govern'd by their Temper and Constitution but correct them by their reason and determine themselves by a clear and firm Judgement What affrightment all this while either to Church or State from this weak and pittyable Scrupulosity Where lyes the Treason or Sacriledge nay or so much as contumacy against our Ecclesiastical Governors which is so much upbraided to them The Christian Religion may be prejudiced by addition to as well as substraction from her rule The Church of Rome by her additions hath almost evacuated the Christian faith Besides there may be a fineness in the outward mode of religious Worship in its self very justifiable which may be not congenial to men of a course make The Worship of God will always savor of the manners of the People Men of dull capacity can scarce admit of any Ceremonys without danger of falling into superstition or being vext with endless and incurable scruple until for ease of their minds they throw them off But the wisdom of the best Law-makers hath considered in giving Laws what the People would bare and not what is best to be enjoyned and many things have been tolerated by them which they did not approve ne majoribus mal is detur occasio aut etiam ne vilescant sine moribus leges There is nothing more exposeth the Authority of Government to contempt then a publick and an open neglect of its Injunctions But where obedience to Laws is exacted under severe penalties where it doth not greatly import the common good to have them observed that Government is unequal and useth its Authority unjustifiable Leges cupiunt ut jure regantur The consideration of the sad effects the Schism in our Church hath occasioned the contempt that it hath brought upon our Ecclesiastical Governors That Religion it self is thereby made the scorn of Atheists That the Papists are thereby furnished with matter of objection reproach and scandal to the Reformation That every Age since it begun hath heightned the malignity of the Schism that it seems now to despise the Cure of the greatest Cassanders These considerations make it infinitely desirable to have it utterly extinguished There seems to be now left but one way of accommodating our Divisions and that is that we do not hereafter make those things wherein we differ matter and reason of Division That the Children of the Light and Reformation be at length as wise in this matter as the Church of Rome which is at unity with itself under more and greater differences then those that have troubled the peace of our Church which is sufficiently known to all Learned men Had it not been happy that this Schism had been prevented by the use of the power of the Church in Ecclesiastical dispensations If no Law had been made touching the matters that gave the first occasion to the Schism it had been in the Power of the Church to have prevented it No good Bishop but would have relaxed the Canons that enjoyned these Ceremonies about whose lawfulness there hath been so much Zeal mispent and unwarrantable heat and contention raised for the sake of peace and preservation of the Unity of the Church to men peaceable and otherwise obedient to her injunctions So dangerous it is to make Laws in matters of Religion which takes the conduct of Religion in so much from the guides of the Church The beginning of contention is like the breaking out of waters saith the wise man and they are assoon as begun more easily ended Before the Contenders have exasperated one another with mutual severities
Peer in Parliament Of what consideration decency can be Chap. XII Their Sitting in Judgment not so much against the reason of the Canon as their assent to Bills of Attainder which was never condemned And the Nature of an Act of Attainder Chap. XIII Over-ruling a Plea of pardon doth not condemn the Criminal and therefore they may judge of such Plea Though they are not to be present at the making of a Judgment of Condemnation Quousque perveniatur in Judicio further explain'd And that which follows upon another thing is not always caus'd by it XIV Bishops one of the three Estates of all the Realms of Christian Europe And how they came to be advanc't to that dignity and trust The convenience of their not being divided in a distinct house from Lay Peers They cannot be detruded from that dignity no more than the Government can be chang'd which no Law can do Six Bishops of the twelve Peers of France and their Aristocratical power That all Governments are lawful that are lawfully establish't Chap. XV. William the Conqueror agreeable to all the Princes of that time put Bishops under Tenure by Baronies and all Baronies at that time feudal with the reason of his Policy and the inconvenience it produced Of the Curia Regis which consisted of the Baronage in which the Capitalis Justitiarius Angliae did preside Of the administration of Justice in that time And that the Baronage of England upon special Writs of Summons became a Parliament An account how all our present Courts derived out of it Of the Court of the High Steward and of the Court of Chancery and the reasons of its rise and growth and how inconvenient it is And how we recovered out of the inconveniencies of that Constitution of Parliament by representatives in the time of H. 3. And that this it being allowed can give no countenance to those that are desirous to change our present and better Constitution That in all this Change the Bishops suffered no diminuion But when the ancient reason of Baronage failed they are after to be considered under the new reason of Baronage Chap. XVI The remembrance of the old reason of Baronage became a prejudice in the Judges upon which T. Furnival Plea allowed that he held not per Baroniam An Entail of Baronies with lands after allowed The reason of Nobility changed and no man now Noble by his Acres Many men Summoned to Parliament and yet not Noble No prejudice to the immovable Right of Bishops to have Summons to Parliament and that objection answered Kings may erect new successive Nobility in Clergy-men That Bishops are of a distinct sort of Nobility and under that and other reasons they are considered as a distinct State Chap. XVII Of the three States which make the Government under the King that he is none of them The Objections against this answered And the reasons of their being distinct and the several Offices and Expectances in the Government that make them so That the several Orders of Peers make but one Baronage and in that there is a great trust and honour greater belongs to Bishops than Lay Barons in our present constitution Their Character and qualifications commend them to the highest trust and render them fittest Judges Chap. XVIII The Reason of Tryals per Pares and that the Bishops are competent upon that reason in Parliament though not so fit to be of the High Stewards Court The Law of M. Charta not Lex scripta Bishops ought to be tryed by their Peers How that Right came to be discontinued and that in Parliament they ought still to be Tryed by their Peers Chap. XIX The unreasonableness of maintaining an Opinion upon a single Objection against a matter evidently proved that Questions of this nature should be considered with candor and not opposed with meer possibilities Chap. XX. Several alterations in the Government since the Conquest that the Alteration in what concerns the Baronage the Bishops Right is to be considered in analogy to the Change That changes of Government for the better cannot again be altered but our zeal is required to defend the Government made better and they deserve ill that go about to reduce us to our old mischiefs by their Antiquity Chap. XXI The advantage of the Change in the constitution of our Parliament in the change of granting Subsidies And how the Lords are bound by a Bill of Aids Chap. XXII The beneficial Change that hath been made by the clause praemunientes in the Bishops Writs of Summons to Parliament which gives Authority for the Convocation By this we are discharged of Provincial Councils and Canons of the Church kept distinct from Laws of the State The Church kept in peace from rending Questions and Religion is conducted not by Laws but by Canons not force but perswasion which commends our Episcopal Government Chap. XXIII The danger we avoided of having our Baronage of England ambulatory and fixing of it in Families and an indefectible Succession in which the Right of the Peer-age of Bishops is established Chap. XXIV The advantages the Adversaries seek to their cause by aspersing the Bishops Remembrance of all the faults in all times committed by any of the Order that many of those faults are principally due to the Papal Vsurpation and the neglect of Kings to defend the Rights of their own Bishops and are all the Vitia Temporum the times of Popery Chap. XXV How inculpably our Bishops have been in administration of their Ecclesiastical Authority how faithful in their Temporal Trust and Asserters of the Rights of the people They have not been irreverent to Kings nor have they encroached any power in Civil matters in ordine ad spiritualia That the power that they challenge is meerly spiritual and they challenge nothing of Divine Right but the exercise of their Ministry which they cannot lay aside Mr. Selden's Arguments for Erastianism answered The Church of England doth not tye her self always to think and enjoyn as she doth at present The moderation of the Church in opinions her apprehensions of Schism just and great They are not answerable for the ejectment of the Nonconformists nor for the scandalous Lives of their Clerks nor their Chancellors nor abuse of Excommunications Why matters of Incontinency are committed to their censures They have exercised the power of the Keys against the Infractors of M. Charta and how it hath been guarded with the denunciations of the Church we have reason to expect as much from our Bishops to support the Government of Laws Chap. XXVI We have as much reason that the Protestant Bishops should be as constant to the Reformed Religion as Popish Bishops obstinate for Popery An Apology for their Vnanimity in Voting Their dependance not so great upon the Crown as to oblige them to disserve their Prince The King bestows nothing upon them but what is the Churches the great expectation the Government hath of their fidelity and performances That which advanced them must
continue them great The contempt of the Bishops and Clergy the great cause of our evil State at present out of which we cannot recover but by an excellent Clergy and a high esteem of them with the people The Postscript ERRATA PAge 13. Line 18. read they p. 15. l. 15. r. Taxeotam Buleutam p. 19. l. 9. r. Blaesensis p. 23. l. 4. r. can p. 44. l. ult dele as p. 51. l. 22. to but add not l. ult to usage add other p. 57. l. 29. r. hucusque p. 130. dele in p. 165. l. 8. r. here p. 167. r. interpolatis p. 180. l. 3. dele them to r. send l. 29. to fit add to mention p. 206. l. 29. r. injurious p 240. l. ult dele near POSTSCRIPT P. 32. l. 1. r. he made his natural Sons first noble l. 7. r. Eufame p. 34. l. 1. r. is not subject p. 42. l. 25. r. decedents p. 45. l. 30. r. he p. 46. l. 8. r. more cruel p. 58. l. 18. r. futility p. 59. l 26. r. being What else is escaped the Reader is desired to correct by reason of the Authors absence from the Press The Argument CHAP. I. IN this question the Constitution of the Government is concerned and the Right of a most principal constituent part and that in a matter of the highest Trust which if truly a Right can be no more relinquished as the Nature of this Right is than a trust can be betrayed a duty and a Right denyed to be paid and performed or the Constitution of the Government changed For of such a Nature doth appear to be the Right in pretence and Controversy of the Lords the Bishops to have judgment in the House of Lords in Capital Causes For by their being made Barons they owed their judgments in such Causes as a service to the King at first by their Tenures in Baronage for though since they are become Barones Rescriptitii or Barons by Writ their duty is not abated And besides the Cognisance of such Causes become their own Right being a part of and belonging to the dignity and office of a Baron And it likewise became an appointment in the Government in which the whole Community have their Interest for that is principally provided for and procured in all Governments whose greatest concern it is to have Justice done against all Criminals and to have great and wise just and good men in the Administrations of Justice and other great offices of the Government The people of England did anciently understand the benefit of this Constitution when nothing but the Baronage of England the Lords Spiritual and Temporal could resist the Torrent of Arbitrary Government And it may be easily understood too that nothing but the Baronage of England is able to support the Throne For that Monarchy unless so supported is the weakest and most precarious and dependent Government in the World except it be supported with an Army and turned into a Tyranny That the Throne should be established by Natural and gentle provisions and the Government fixed is every mans greatest interest If the Lords Temporal have more under command and a larger Potestas jubendi yet the Lords Spiritual out-did them Authoritate suadendi and had more voluntary obedience The Lords Spiritual have several Advantages as they are Novi homines men chosen out of Thousands for an excellent Character and Spirit and need not want any accomplishments if duely chosen and preferred for the discharge of the greatest Provinces that are to be managed by wisdome and integrity and therefore they cannot be well wanted in any Ministries in the Government to which they are bespoken and have a legal designation Since this Authority by the very opening of the Cause doth appear probably belonging to the Bishops and if so that it cannot without breach of their duty that they owe to all the parts of the Government and the whole Community depart from it it may surely be insisted upon disputed and maintained by them without blame or imputation But so unhappily it falls out that the very disputing and contending of this Matter by reason of the unseasonableness of the dispute and the delays that were thereby given to the most important business of the Nation to the great hazard as some think of the summ of Affairs was very mischievous to the publick And now both parties are charging one another with all the mischiefs and the delays that this Controversy hath given to publick proceeding or can with any probability be thought to have occasioned And there are not men wanting on either side within doors and without that are forward enough to charge all those mischiefs as deserved by their oppoposite party which may eventually happen hereupon Who sees not how fatal this Controversy is like to prove to one or other of the Litigants and to the Government in consequence if this Cause cannot be duely heard and considered and be determined upon its own Merits without undue Censures and Reflections on either side Since at last the contenders themselves must be the Judges and give judgment in the Cause or it can never be quieted and have an end I am sure passion is no equal Judge and Arbiter and men angred and provoked have not the same sentiments of the same things as when calm and serene And because there is no common Judicature it ought to be considered by both parties with all equality of judgment and an exact pondering and weighing of the reasons offered on either side for that otherwise it can never be fairly decided but must for ever remain a Controversy to the immediate overthrow and destruction of the Government or over-ruled by the force and Power of a most dangerous consequence in the course of time to the Government and will be a laying of the Axe to the very root of the Tree and will put the Government it self into a State of War between the several constituent parts of it and given an occasion for one part to usurp upon another until the tone and frame of Goverment become changed and at last fall into ruine I am very well aware of the gravity of the Question and its importance the high honour and regard that is due to the House of Commons in Parliament what commendations are due to them in their persons for their zeal and endeavour by all means if it be possible to save the Nation Religion and Government And what a great Capacity that House in its very constitution in the first designation of the Government and by their mighty growth in power and interest in the Course of time have in procuring the publick good and that they cannot have any interest divided from the common Weal I must do them right and with the greatest clearness and satisfaction I determine with my self that their zeal for public Justice against unpardonable offences in their judgment and a prejudicate opinion they had conceived of the Spiritual Lords unindifferency how duely will appear by