all probability this passage of his was levelled at those Bishops who did observe this 11. Constitution 3. We have a plain way to understand the meaning of this Constitution by what happen'd soon after in the Parlament at Northampton which was summon'd upon Becket's Obstinacy and Contempt of the King's Authority where Fitz-stephen saith he was accused of Treason and the Bishops sate together with other Barons and because it did not come to a sentence of Death after great debate between the other Lords and the Bishops about pronouncing the Sentence the Bishop of Winchester did it Wherein we have as plain evidence as can be desired that the Bishops did sit with the other Barons and vote with them in a case of Treason To this Precedent the Authour of the Letter answers several things 1. That none of the ancient Historians of those Times say any thing of his being accused of Treason and therefore he thinks one may modestly affirm that it was a mistake in Fitz-stephen to say so But what if H. II. and Becket himself both confess that he was charged with Treason H. II. in his Letter to Reginaldus saith that by consent of his Barons and Clergy he had sent Ambassadours to Pope Alexander with this Charge that if he did not free him from that Traitour Becket he and his Kingdom would renounce all Obedience to him And Becket did not think this a bare term of reproach for in one of his Letters he saith that defending the Liberties of the Church laesae Majestatis reatus sub persecutore nostro est was looked on as Treason by the King And even Gervase himself to whom the Authour of the Letter appeals saith some of his friends came to him at Northampton and told him if he did not submit to the King he would be proceeded against as a Traitour for breaking the Allegeance he had promised to the King when he did swear to observe the ancient Customs at Clarendon And Fitz-stephen saith the King's Council at Clarendon said it was Treason or taking the King's Crown from his head to deny him the Rights of his Ancestours 2. That it was a strange kind of Treason Becket was charged with at Northampton viz. for not coming when the King sent for him which at the most was onely a high Contempt and Fitz-stephen who was a Creature of the Archbishop's might represent it so to draw an odium on the King And therefore he looks on this as a weak precedent for the Bishops to lay any weight upon being at best out of a blind MS. of an Authour justly suspected of partiality against the tenour of all the ancient Writers that give an account of the same business What truth there is in this last suggestion appears in part already and will do more by what follows Must all the unprinted Records be answered with saying they are blind MSS I cannot but take notice how unreasonable a way of answering this is It is like turning of that pressing Instance of the Bishops making a Proctor in Capital Cases by saying it was Error temporis which because it will answer all Instances whatsoever as well as that is therefore an answer to none Just so it is equally an answer to all MSS to say they are blind and to all printed Books too because they were once MSS and for any thing that appears to the contrary as blind as Fitz-stephen's For surely no authority is added to a Book by its being printed unless in the opinion of the common people who are said to take all for true that is in Print I do not go about to parallel Fitz-stephen with Parlament-Rolls but I say his Authority is very good being present upon the place and the best we have of all the proceedings in the Parlament at Northampton And if the Authour of the Letter had taken the pains to peruse him he would not have contemned the Precedent drawn from thence which being so near the Parlament at Clarendon that as himself confesseth the one was in February the other in October following it gives the best Light into this matter of any thing in that Age and being not yet fully printed it will be worth our while to set it down Mr. Selden hath indeed printed very exactly the Proceedings of the first Iudgment upon Becket about the Cause of Contempt for not coming upon the King's Summons at the complaint of Iohn the Marshall wherein the Bishops did certainly sit in Iudgment upon him with the other Barons but there is a farther strength in this Precedent not yet taken notice of Which is that after this Iudgment passed Becket behaved himself with so great insolency towards the King and the Bishops upon the King's calling him to farther account for many other things laid to his Charge as diverting the King's Treasure and applying it to his own use and great Accounts to the King while he was Chancellour c. that the King required him to stand to the Iudgment of his Court Becket gave a dilatory Answer the King summons the Bishops and Earls and Barons to give Iudgment against him the Bishops tell the King Becket had appealed to the Pope and prohibited them to give any farther Judgment upon any Secular Complaint against him Whereupon the King sent some Earls and Barons to him to expostulate the matter since he was the King's Subject and had so lately sworn to the Constitutions at Clarendon and to know whether he would give Security to the King about making up his Accounts and stand to the Judgment of his Court Becket refuseth to give answer to any thing but the Cause of Iohn the Marshall for which he was summoned to appear slights his Oath as contrary to the Rights of the Church and confirms his Appeal to the Pope And such an owning of the Pope's Power in derogation to the Rights of the Crown Sir Edward Cook saith was Treason by the ancient Common Law before any Statutes were made However the King charges the Bishops by virtue of their Allegeance that together with the Barons they would give Iudgment upon the Archbishop They excused themselves on the account of the Archbishop's Prohibition The King replied That had no force against the Constitution of Clarendon so lately made and acknowledged by them The words of Fitz-stephen are these Rex responso Archiepiscopi accepto instat Episcopis praecipiens obtestans per homagium fidelitatem sibi debitam juratam ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam Illi se excusare coeperunt per interpositam Archiepiscopi Prohibitionem Rex non acquievit asserens quòd non teneat haec ejus simplex Prohibitio contra hoc quod Clarendonae factum initum fuerat So that H. II. in the Parlament at Northampton declared that Bishops were bound by virtue of the Constitution of Clarendon to be present and to give their Votes in cases of Treason
times These things I have laid together with all possible brevity and clearness that in one view we may see a consent of all these parts of the Christian World in calling Bishops to their publick Councils and most solemn Debates and how far they were from thinking such Imployments inconsistent with their Sacred Function and charging them that thereby they left the Word of God to serve Tables Neither can this be looked on as any part of the Degeneracy of the Church or the Policy of the Papacy since as the fore-cited Arumaeus saith they were admitted to this honour before the Papal Power was advanced and were so far from carrying on the Pope's designs that they were in most Countries the greatest Opposers of them And when the Popes began to set up their Monarchy their business was to draw them off from meeting in these Councils under several pretences of Cases of Bloud and other things the better to keep them in a sole Dependency on themselves As will appear by the following Discourse 2. The next thing suggested is that the Imperial Law doth forbid Clergy-men having any thing to doe with Secular matters And for this a Rescript of Honorius and Theodosius is mentioned and a Decree of Iustinian To which I answer 1. The Imperial Edicts are not the Law of England Our dispute is about a Right by our own Laws which a Rescript of Honorius and Theodosius can neither give nor take away What would become of the whole frame of our Government and of our just Rights and Properties if the producing of Imperial Edicts would be sufficient to overthrow them When the Bishops once pleaded hard in Parlament in behalf of an Imperial Constitution lately adopted into the Canon-Law the Answer given by all the Temporal Lords was Nolumus leges Angliae mutare quae huc usque usitatae sunt approbatae They did not mean they would make no alterations in Parlament for that very Parlament did so in several things but their meaning was as Mr. Selden observes that they owned neither Canon nor Imperial Laws here any farther then they were agreeable to the Laws of the Land 2. The Imperial Constitutions do give liberty to Church-men to have to doe in Secular Affairs The Emperour Constantine whose Constitutions deserve as great regard as those of Honorius and Theodosius to shew his respect to the Christian Religion permitted all men to bring their Causes before the Bishops without ever going to the other Tribunals as Sozomen a Lawyer of Constantinople relates And this is the true foundation of the Constitution De Episcopali Iudicio as Gothofred confesseth Which is at large inserted into the Capitulars with a more then usual introduction and made a Law to all the Subjects of the Empire Franks Saxons Lombards Britons c. and therefore is more considerable to these parts then a bare Rescript of Honorius and Theodosius And yet these very Emperours in a Constitution of theirs do so far ratifie the Judgment of Bishops upon Trial by consent before them that no Appeal doth lie from their Decree What Rescript then is this of theirs which so utterly forbids Clegy-men having any thing to doe with publick Functions or things appertaining to the Court I suppose that Constitution of Honorius is meant which confines the Bishops Power to what concerns Religion and leaves other Causes to the ordinary Judges and the Course of Law But two things are well observed by Iac. Gothofred concerning this Rescript of Honorius 1. that it is meant of absolute and peremptory Judgment without Appeal 2. that whatever is meant by it not many years after this Constitution was repealed by Honorius himself and the Bishops sentence made as absolute as before So that Honorius is clearly against him if a man's second judgment and thoughts be better 3. The practice of the best men in those Ages shews that they thought no Law in force to forbid Church-men to meddle in Secular Affairs as might be at large proved from the practice of Gregory Thaumaturgus and S. Basil in the East of Silvanus Bishop of Troas of S. Ambrose S. Augustine and others of the greatest and most devout Church-men of those times And S. Augustine was so far from thinking it unlawfull that in his opinion S. Paul commanded the Bishops to doe it Constituit enim talibus Causis Ecclesiasticos Apostolus Cognitores And the learned Gothofred of Geneva saith Mos hic frequens legitimus eundi ad Iudices Episcopos It was then a common and legal practice to go to Bishops as to their Iudges Which would never have been if there had been a Law in force to forbid Bishops meddling in Secular Affairs 4. The Emperours still reserved to themselves the power of dispensing with their own Rescripts and the Canons of the Church Therefore the Council of Sardica when it prohibits Bishops going to Court excepts the Princes calling them thither Upon which Balsamon hath this Note that although the Canons prohibit yet if the Emperour commands the Bishops are bound to obey and to doe what he commands them without any fault either in the Emperour or them And in other places he asserts the Emperour's power of dispensing with the strictest Canons against Church-mens meddling in Secular Affairs Thence he saith the Metropolitan of Side was chief Minister of State under Michael Ducas and the Bishop of Neocaesarea made the Laws of the Admiralty for Greece And the Glosse upon Iustinian's Novells observes that Bishops may meddle with the Affairs of the Commonwealth when their Prince calls them to it And this is the present Case for the Bishops are summon'd by the King 's Writ to serve him in the publick Council of the Nation and therefore no Imperial Rescript if it were of force in England could have any in this Case which was allowed by the Imperial Laws themselves 5. There is a great Mistake about Iustinian's Decree For the Bishops are not so much as mention'd in it but the Defensores Ecclesiarum who were Lawyers or Advocates of the Church as appears by a Constitution of Honorius where Gothofred proves they were not so much as in Orders It is true Iustinian doth appropriate the Probat of Wills to the Master of his Revenue but the Law and Custom of England as Lindwood observes hath alter'd that Constitution and which must we regard more Iustinian or our own Laws I find one thing more suggested by way of Prejudice to the Cause in hand viz. the Common Law of England which hath provided a Writ upon a Clergy-man's being chosen an Officer in a Mannor saying it was contra Legem Consuetudinem Regni non consonum The Argument had been altogether as good if it had been taken from a Minister of a Parish not being capable of the Office of Constable and it had as effectually proved that Clergy-men ought not to meddle in Secular
Affairs CHAP. II. The Right in point of Law debated Concerning the Constitution of Clarendon and the Protestation 11 R. 2. HAving removed these general Prejudices I now come to debate more closely the main Point For the Authour of the Letter undertakes to prove that Bishops cannot by Law give Votes in Capital Cases in Parlament Which he doth two ways 1. by Statute-Law 2. by Use and Custome which he saith is Parlament-Law and for this he produceth many Precedents I. For Statute-Law two Ratifications he saith there have been of it in Parlament by the Constitutions of Clarendon and the 11 R. 2. 1. The Constitutions of Clarendon which he looks on as the more considerable because they were not the enacting of new Laws but a declaration of what was before And for the same Reason I value them too and shall be content this Cause stand or fall by them The Constitution in debate is the 11 th which is thus repeated and translated in the Letter Archiepiscopi Episcopi universae Personae Regni qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam inde Respondeant Iusticiariis Ministris Regis sequantur faciant omnes consuetudines Regias Et sicut ceteri Barones debent interesse judiciis Curie Regis quousque perveniatur ad diminutionem membrorum vel ad mortem The Archbishops Bishops and all the dignified Clergy of the Land that hold of the King in Capite shall hold their possessions from the King as a Barony and answer for their estates unto the King's Iustices and Ministers and shall observe and obey all the King's Laws And together with the other Barons they are to be present at all Iudgments in the King's Courts till it come to require either losse of Member or Life The Argument from hence he enforceth from the solemn Recognition and publick confirmation of these Constitutions and the Oath taken to observe them from whence he concludes this to be Testimonium irrefragabile An irrefragable and invincible Testimony And so I foresee it will prove but to a quite contrary purpose from what he intended it The whole Question depends upon the meaning of the latter Clause of this Constitution The meaning he gives of it is this that the Prelats of the Church should not be present at the Iudgments given in the King's Courts when losse of Member or Life was in question The meaning of it I conceive to be this that the Bishops are required to be present in the King's Courts as other Barons are till they come to give Sentence as to Dismembring or loss of Life Whether of these is the true meaning is now to be considered and that will best be discovered these three ways 1. By the Occasion 2. By the plain Sense of the words according to their true Reading 3. By the subsequent Practice upon this Constitution in the Parlament at Northampton soon after 1. By the Occasion The Authour of the Letter assigns that Occasion for this Constitution for which there is not the least colour viz. That the Prelats of that time were ambitious of a kind of Omnipotency in Judicature I suppose he means and that to restrain their power of Judging Capital Cases this Constitution was made and because this seemed to be a diminution of their Power therefore Matt. Paris ranks it among the Consuetudines iniquas the wicked Customs of the former times For all which there is not the least shadow of Proof besides that it is so repugnant to the History of those Times that I can hardly believe a Person of so much Learning and Judgment as is commonly said to be the Authour of the Letter could betray so much unskilfulness in the Affairs of those Times For this is so far from being true that the Bishops did then affect such a Power of Iudging in all Secular Causes that they looked on their attendance in the King's Court in the Trial of Causes as a burthen which they would fain have been rid of because they accounted it a Mark of Subjection to the Civil Power and contrary to that Ecclesiastical Liberty or Independency on Princes which from the days of Gregory VII they had been endeavouring to set up Which H. II. being very sensible of resolved to tie them to the Service of their Baronies and to an attendance on the King's Courts together with other Barons But lest they should pretend any force on their Consciences as to the Canons of the Church this Constitution doth not require but suffers them to withdraw when they came to Sentence in matters of Bloud And that this was the true Occasion I prove by these two invincible Arguments 1. By the complaint which they made of the Baronies as too great a mark of Subjection to the Civil Power This is plain from Matt. Paris himself to whom the Authour of the Letter refers for when he speaks of William the Conquerour's bringing the Temporalties of the Bishops into the condition of Baronies i. e. forcing them to hold them of him in Chief upon certain Duties and Services he calls it Constitutionem pessimam a most wicked Constitution just as he calls the Customs of Clarendon Consuetudines iniquas wicked Customs And he adds that many were banished rather then they would submit to that Constitution For their Privileges were so great with the Frank-almoign they enjoy'd in the Saxon times and their desires so hearty especially among the Monks who from Edgar's time had gotten into most Cathedral Churches to advance the Papal Monarchy that they rather chose to quit all then to give up the Cause of the Churche's Liberty by accepting of Baronies Therefore Matt. Paris calls the Rolls that were made of the Services belonging to these Baronies Rotulas Ecclesiasticae Servitutis the Rolls of Ecclesiastical Slavery then which nothing could be more contrary to that Ecclesiastical Liberty which was then setting up by Pope Hildebrand And to put this out of all dispute Petrus Blesensis a Name well known in this dispute in that very Book where he complains of the Bishops Hypocrisy about Cases of Bloud in being present at hearing and trying Causes but going out at Sentence complains likewise of their Baronies as those which gave occasion to that Hypocrisy and as the marks of the vilest Slavery Et in occasione turpissimae Servitutis seipsos Barones appellant They may think it an honour to be called the King's Barons but he accounts it the greatest Slavery and applies that place of Scripture to them They have reigned but not by me they are become Princes and I know them not Now Pet. Blesensis lived in the time of H. II. and knew the whole proceedings of the Constitutions of Clarendon and was a zealous maintainer of Becket's Cause or which was all one of the Liberties of the Church as they call'd them against the Civil Power 2. By the fierce Contest between the Civil and Ecclesiastical
them with going against the Law or Custom of Parlament therein But the Authour of the Letter saith Whatever was done this Parlament signifies nothing because the whole Parlament stands repealed by 1 H. IV. and all done in it delcared null and void Yet to our comfort the same Authour tells us the three Henry's were Usurpers and therefore I desire to be satisfied whether an Vsurper by a Parlament of his calling can null and repeal what was done by a King and his Parlament If he may then the King lost his Title to the Crown by the late Vsurpers if not then the Parlament 21 R. II. could not be repealed by that 1 H. IV. If the Authour of the Letter had considered this he is a Person of too great Judgment and Loyalty to have mention'd more then once the Repeal of that Parlament by the subsequent Parlament 1 H. IV. From all this we see that by the Judgment of the whole Parlament both 11 R. II. and 21 R II. the Bishops had a right to sit so far that Iudgments were reversed where they were not present and therefore all the pretence they could have for withdrawing must be from the Canon-Law which although not sufficient to bind them if the matter had been contested yet it served them for a very colourable pretence of absenting themselves in such dangerous times as those of 11 R. II. Here the Authour of the Peerage and Iurisdiction of the Lords Spiritual thinks he brings seasonable relief to the Cause when he undertakes to prove that the Bishops withdrawing was not meerly on the account of the Canon-Law This I confess is home to the business If he can make it out 1. He saith there was an Act of Parlament before that did expresly prohibit them to excercise Iurisdiction in those Cases This we utterly deny And the Constitution of Clarendon to which he refers proves the contrary 2. The Bishops made bold with the Canons when they thought fit as 21 R. II. But how could they doe that unless they had a Parlamentary Right to be present He saith the Constituting a Proxy was as great a violation of the Canons as being personally present and what then therefore the Parlament would not have suffered them to doe that if there had been a Law to exclude them How doth this prove that the Bishops did not withdraw on the account of the Canons II R. II. because they made a Proxie 21 R. II But why did they not appear personally if they had no regard to the Canons when the receiving their Proxie shewed they had a legal Right to appear But he grievously mistakes the meaning of the Canon of Stephen Langton in Lyndwood when he interprets Literas pro poena sanquinis instigenda scribere vel dictare against making of Proxies which is onely meant of giving or writing the Sentence for Execution 3. He saith they were excluded by ancient Custom which by a very subtle way of reasoning he proves to have been part of the Fundamental Contract of the Nation as he speaks Seeing then saith he it is without doubt that there was such a Custom that the Prelats should not exercise Iurisdiction in Capital Cases not so altogether without doubt unless it were better proved then we have yet seen it and there is no Record that doth mention when it did begin nor any time when it could be said there never was such an Vsage yes before the Council of Toledo being published in Spain and receiv'd here it must of necessity be supposed that it is as ancient as the Government it self and part of the Fundamental Contract of the Nation Which looks so like a Iesuitical Argument that one would have thought he had been proving Transubstantiation by it For just thus the Argument runs at this day among that Party There was a time when it was reciev'd and no time can be instanced in wherein it was not therefore it was a part of the Fundamental Religion of Iesus Christ. the plain Answer in both cases is the same If we can produce unquestionable Authority to which a Doctrine or Practice is repugnant we are not obliged to assign any punctual time in which it must first come in But in this case we do assign the very time and occasion of the Bishops absenting themselves in Capital Iudgments and that was from the receiving the Canon of the Council of Toledo here For no such practice can ever be proved before And therefore this can never be proved to be any part of the ancient Common Law of England And that this came in by way of imitation of other Countries appears by the citing the Council of Toledo both by Lanfranc and Richard in the Council of Winchester 4. He saith the Practice is ancienter then any of the Canons of the Church But how doth that appear The eldest Canon he can find is that of Stephen Langton in Lyndwood which was made above 50 years after the Parlament at Clarendon But we have made it evident there was a Canon receiv'd here in Lanfranc's time long before the Constitution of Clarendon And so a full Answer is given to these Objections But we are told by the Authour of the Letter that the Bishops Protestation being receiv'd and enter'd in the Roll or Iournal-Book makes it to pass for a Law it being agreed to by the King and two Houses so as whatever was the Law before if it were onely the Canon-Law it is now come to be the Law and Rule of Parlament and the Law of the Land 2. This is therefore the second Point to be examined Whether the receiving this Protestation amounts to a Law of Exclusion which it can by no means do for these two Reasons 1. from the nature of Protestations in general 2. from the particular nature of this Protestation 1. From the nature of Protestations in general For a Protestation is onely a Declaration of their minds that make it and not of theirs who receive it or suffer it to be enter'd in the Acts or Records of the Court unless it be receiv'd in such a manner as implies their consent For the very next Parlament after this 13 R. II. the two Archbishops in the name of the whole Clergy enter a Protestation That they gave no assent to any Law or Statute made in restraint of the Pope's Authority and it is said in the Rolls of Parlament that at their requests these Protestations were enrolled Will any man hence inferre that these Protestations were made Acts of Parlament If the Cause would have born any better a Person of so much skill in proceedings of Parlament would never have used such an Argument as this Besides it is a Rule in Protestations Si Protestatio in Iudicio fiat semper per contrarium actum tollitur saith Hostiensis A Protestation although allowed in Court is taken off by a subsequent Act contrary to it Which shews that a Protestation can never have