yet when the business of the Parliament was extraordinary the Writs of Summons both to the Prelates and Barons had a Premonition that a Proxy should not be allowed unless they could not possibly be present dors claus 6 E. 3. m. 36. claus 1 R. 2. m. 37. 2 R. 2. m. 29. Nor was it unusual with the Prelates to make such their Procurators who were no Members of that House In that Parliament of Carlisle under E. 1. the Bishop of Exeter sends to the Parliament Henry de Pinkney Parson of Haughton as his Proxy The Bishop of Bath and Wells sends William of Charleton a Canon of his Church In the Parliament 17 R. 2. the Bishop of Norwich made Michael Cergeaux Dean of the Arches and others his Procurators In the same year the Bishop of Durham his Proxies are John of Burton Canon of Beudly and others In the Statute of Praemunire 16 R. 2. cap. 5. it is said that the advice of the Lords Spiritual being present and of the Procurators of them that were absent was demanded This making of others then Barons of Parliament Proxies is not without President likewise in the case of Temporal Lords Lit. Procurator Parl. 4 H. 5. Thomas de la War gave his Procuratory Letters to John Frank and Richard Hulme Clerks So that it appears that by the Law of Parliament the Proxies of the Bishops in the 21th of R. 2. were legal Proxies and consequently the Bishops there virtually Besides that the lawfulness thereof doth appear for that it was required of them by the Parliament that they should make their Proxies and be present by their Procurators for this reason lest otherwise the Proceedings in that Parliament should be void CHAP. X. IT is true that the Parliament 21 R. 2. was wholly repealed by 1 H. 4. but that was for a good reason indeed because that Parliament of 21 R. 2. had delegated their whole power to a few of their number who finally without any resort back to the House made and past Laws But did ever any man before the Octavo argue at this rate that because there is one error in a case for which the Judgment is reversed that therefore there was nothing in the case legal and well considered And therefore how unreasonable and false this way of arguing is and that it is disputing against fact we shall further shew and prove For a probable Opinion still continued of the necessity of the Bishops sitting which implies a clear Recognition of a Right for in the 2 H. 5 the Earl of Salisbury petitioned the House to reverse a Judgment given against the Earl his Father Anno 2 H. 4. the Error assigned was the Absence of the Spiritual Lords The Case was much debated but the Judgment affirmed as we allow it ought to be but we produce it as an irrefragable Testimony of the Bishops Right to sit for if that had not been allowed there could not have been the least colour in the case nor matter of debate CHHP. XI BUt tho' the Actual Exercise of the Bishops Right in their own Persons though whatsoever is done by a Deputy is done in the Right of him that makes the Deputation as every body knows was for some time discontinued tho' their Right in that time was most solemnly owned and recognized yet in 28 H. 6. we find them re-continuing the Exercise of that Right and Authority and in their own Persons sitting in Judgment upon William de la Pool Duke of Suffolk who was impeach'd of Treason by the Commons for that he had sold the Realm to the French King and had fortified Wallingford Castle for a place of Refuge The Impeachment of High Treason was brought from the House of Commons by several Lords Spiritual and Temporal sent thither by the King's Command the Ninth of March the Duke was brought from the Tower into the Presence of the King the Lords Spiritual and Temporal The Impeachment was read unto him The Thirteenth of March he was sent for to come before the King the Lords Spiritual and Temporal to answer to his Charge which he did On Tuesday the Seventeenth of March the King sent for all the Lords Spiritual and Temporal who were in Town They are named two arch-Arch-Bishops and thirteen Bishops besides the Temporal Lords who being assembled the King sent for the Duke There was no Judgment given by the Parliament but he submitted to the King and the King gave him Penance which was that he should be absent for Five Years out of England The Lords Spiritual and Temporal by Viscount Beaumont declared to the King that this that was so decreed and done against the Person of the Duke proceeded not by their Advice and Council with this Protestation that it should not be nor turn in Prejudice nor Derogation of them their Heirs ne of their Successors in time coming but that they may have and enjoy their Liberty and Freedom as largely as ever their Ancestors or Predecessors had and enjoyed before this time Observe here that the Lords Spiritual were present at every Motion of this Cause This Cause was thrice before them no Exception taken to the Bishops being Judges They could not sit by Permission without Right if the Bishops had no Right to sit the Proceedings had been certainly erroneous For though one Judge's Absence if there be a Quorum will not vacate a Judgment yet if one sit in Judgment that is not an Authorized Judge the Proceeding is certainly erroneous and void Can any man believe that the Government should lose it self forget it s own Establishments in the highest concerns We may as soon believe that a man may forget his own name One positive Act of Session signifies more than 100 Omissions for if it had not been well understood that the Bishops had a Right to sit in Judgment in Capital Causes in Parliament they could never have been admitted they would never have presumed to endeavour it But with false Logick and absurd Reasonings and dislike to the Order it is become an Opinion in this Age because sometimes the Bishops absented that they have no Right But we have one thing further to add that declares an inherent Right in the Lords Spiritual to the Authority in question and that is an Opinion of the Judges 10 E. 4. 35. which says that the Lords Spiritual in case of a Tryal of a Temporal Peer in Parliament shall make a Procurator for then it seems an Opinion was received which was error temporis That it was indecent for Bishops to sit in their own persons in Judgment in such cases But they themselves are best Judges of what is indecent and unbecoming their Order for no man is obliged to any man but himself in the matters of Decency and the measures that make things decent or indecent is very mutable as changable and mutable as Customs Fashions and Opinions Besides that there is nothing that is very valuable and is of great concernment but can and
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
form'd His great Knowledge in Records and that he is known not to be partial for the Bishops make him of great Authority pages 10 11 12 13 14 17 329 384 325 281 392 567 607 710 712 713 714. And farther in the Time of Queen Elizabeth in an Act of Parliament in the first Year of her Reign made for the Recognition of Her Queen of England which was an Act of State and of the whole Community and therefore most requisite it was that that Parliament should give themselves their right Stile It is said We your said the Lords Spiritual Temporal and Commons in Parliament assembled was said before to which this doth relate most loving Subjects representing the three States of your Realm of England The Nature of the Government came directly at their Times under Consideration of the Parliament which is an Assembly that cannot be mistaken in the Constitution of the Kingdom in any Question of such a Nature when they will deliberate and consider This mighty Affair required them to consider who they were and what was their Constitution Now if at any time they are to use that Stile that denotes their Power and declares the Government The Stile of the three Estates of the Realm it seems is so sacred and great and not for ordinary use but that it is used upon such occasions as the Recognition of the Sovereign Princes and in declaring Kings This Stile is most certain declarative of the true Constitution and the great Stile and Title of the Lords Spiritual Lords Temporal and Commons of England A Misnomer now would be as great a Solecism as to see the Nobles and Prelates without their Robes and proper Cognizances at the Solemnities of a Coronation By the due comparing the Statutes aforementiond wherein the Lords Spiritual and Temporal and Commons are called the States and also the Representatives of all the Estates of the Kingdom We may be enlightened into a great Mistery of State for that the Lords Spiritual and the Lords Temporal and Commons are called the three States and also the Representatives of the States give us to understand that every one of them is entrusted for the other and with the Conservancy of the whole Community and are all in their proper Ministries designed to the Common Good and each of them have Dependencies and Expectancies from the other in the due Discharge of their proper and distinct Offices And that the Lords Spiritual and the Lords Temporal are Representatives and Trustees for the Peoples Good and the Common-weal as well as their own In like manner as every Parliament man for a particular Borough is a Representative of all the Commons of England To which we will adjoyn another great Authority and that is of Sir Edward Coke 4 Inst fol. 2. who tells us that the King and three Estates viz. Lords Spiritual and Lords Temporal and Commons are the great Corporation and Body Politick of this Nation This was the Opinion of his Old Age when he was most improved in Knowledge and when he did not flatter the Prerogative Besides to clear this point we may observe that the Stile of Acts of Parliament that hath mostly obtained is this viz Be it enacted c. and by and with the Advice and Consent of the Lords Spiritual and Lords Temporal and Commons This distinct mention of the Lords Spiritual and Temporal is Cognizance of their being distinct States For observe there is no particular mention of Knights Citizens and Burgesses in Acts of Parliament because they are all of the Commonalty which is but one State They are all involved under the general Name of Commons And so would certainly the Lords both Spiritual and Temporal have been in the general Name of Lords if they had not been distinct States and so accounted The Stile of Acts of Parliament would have been by the Advice and Assent of the Lords and Commons assembled in Parliament And the ancient Stile of Parliament before the House of Commons was divided and constituted apart from the Lords House was Clerus Populus Clerus Magnates as may be seen by Eadmerus and Matth. Paris and the Writers of those Times So that the Clerus or Bishops were always a distinct State in Parliament For the letting in Light upon all that hath been said in this matter and for farther clearing it and to reconcile the Differences in the Stiles of the Parliament and that they may unite in their Evidence and not seem to thwart one another It must be remembred that that which is most express and particular is most scientifical and more exactly instructive most distinct and true and intends to inform us exactly in the very Nature of the thing and therefore cannot be derogated from nor prejudiced by what is more general or less distinct It is hence therefore evident that the Lords Spiritual and Temporal are taken for distinct States as they are For they have their distinct Interests and for several ends and purposes became parts in the Government They have their several Ministries and Advantages to the Government apart and come into that House by several ways of Designation and Appointment The Prelates care besides that which is common between them and the Temporal Lords is that of Religion and the Affairs of the Church and the whole Order Ecclesiastical by which the People are to be ministred to in their highest Concernments which are Reasons very sufficient to reckon and account them a distinct State And now we have asserted to the Prelates a Jus Paritatis in the House of Lords for that they are complete Barons as we have likewise proved them a distinct State The Baronage of England is the House of Lords Additions of Title give Precedency but no Superiority or addition of Power The Baronage is one Order and Rank and the highest in the Census of the Government the manner of the Promotion the Ends and Interests of the Government in the advancement of the Bishops though several from those that advanced the Temporal Lords to their State and Honour yet to the same degree they are promoted they are both Members of the same great Council of the same great Judicature and are therefore by their long continuance most duely styled Pares Regni And moreover the Bishops are considered as to their Order and Office Ecclesiastical and another care incumbent upon them besides that of the Baronage and the Orders that belong to the consideration of Heralds do signifie that their Office of a Bishop doth not lessen the Dignity of their Peerage What is it then that makes this present Question The Bishops have the reason and nature of the Government of their side they have used such a power when they have pleased it was never denied to them and their right hath had the most solemn Recognition that can be made The Canon could not abridge and restrain their right and their true Character qualifies them not onely to the degree of an
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
either not against us or for us And all along observe the candor and integrity of the Author We shall further shew how absurd his Reasonings are to make those Precedents to conclude any thing for his purpose We will also with the clearest demonstration prove That the Assize of Clarendon establisheth the Bishops Authority and right to judge in capital Causes in Parliament And likewise that the protestation made by the Bishops 11. R. 2. is a most solemn Recognition of their Right that the Bishops have sate in Judgment in the greatest capital Causes in Parliament that ever happened that this their Authority hath been exercised in their own Persons and by their Proxies and recognized by Parliaments and other great Courts of Judicature but never before this time brought into Question That no Canon could lessen the Right at most it is but a Councel for their guidance in the exercise of their Authority which they might observe as they please That the Popes Canon Law was never received into England that prohibits Bishops to judge in capital Causes That the Bishops have declined to assist in pronounceing the Sentence of death sometimes as undecent for their Order but notwithstanding and without being contrary to the example and practice of their Predecessors the Bishops may judge upon the Plea of the Earl of Danby's Pardon For that if they do judge the Pardon not good the Earl is not therefore to be condemned And for the better clearing the Bishops Right and for the establishing the Government we shall prove that the Spiritual Lords are Peers of the Realm and one of the three States and an essential part of the Government which no legal power can charge or alter Lastly we shall repel the calumnies of the Adversaries in this cause by which they indeavour to render the Prelates unworthy of their Right and to put them amongst the prodigi furiosi that are scarce allowed to be Proprietors of their own And conclude our Discourse with a just Apology for the Lords the Bishops CHAP. II. ANd First I begin with the Octavo which in the Introduction to his Precedents saith That he will not meddle with the General Question How far forth Clergy-men in Orders are forbidden having any thing to do with secular matters nor what in that particular the Imperial Law requires as that Rescript of the Emperor Honorous and Theodosius which Enacts that Clergy-men shall have no communion with publick Functions or things appertaining to the Court or the Decree of Justinian That Bishops should not take upon them so much as the Oversight of an Orphan nor the proving of Wills saying It was a filthy thing crept in amongst them which appertained to the Master of his Revenue Nor what our common Law of England seems to allow or disallow having provided a special Writ in the Register upon occasion of a Master of an Hospital being it seems a Clergy-man and chosen an Officer in a Mannor to which that Hospital did belong saying it was Contra Legem consuetudinem Regni non consonum It was contrary to the Law and Custom of the Kingdom and not agreeable to reason That he who had cure of Souls and should spend his time in Prayer and Church duties should be made to attend upon Secular imployments I meddle not neither saith he with what seems to be the Divine Law as having been the practice of the Apostles and by them declared to be grounded upon reason and to be what in reason ought to be which was this That they should not leave the word of God and serve Tables though that was a Church Office and yet they say it is not reason we should do that for their work was the Ministry of the Word and Prayer much less then were they to be employed in secular affairs This with great skill he prefixes to his precedents which make the Law of Parliament which is the Law of the Land he saith and after he had said all that he could to make the very pretence it self unlawful and to perswade the shutting of the Bishops out of the House for altogether he subjoyns his Precedents he thought certainly that when he had placed the Precedents in such a light they must look all of that colour and have that appearance which he indeavours too by other arts to give them But we shall spoil his design in a very few words which the observant Reader will apprehend how pertinent it is and satisfactory to what is objected in the recited Preface though we do not for brevity sake apply our answer to every particular of his Discourse We say therefore we can't think the Clergy fit for Proctors Publick Notaries and Scriveners or Ushers of Court or other subservient offices nor fit to make Constables Tythingmen and Scavengers nor to keep watch and ward and to be a Hayward or Bayliff of his Worships Mannors and Townships Or that they should be Merchants or Farmers or interpose in a-any Secular affairs for gain That it was declined by the Pastors and Teachers of the Church as an indignity for them to administer to Tables i. e. to the Provisions of Charity in their Church-feast and they ought to keep far off from a suspition of filthy Lucre nay not to preach principally for gain or make a gain of Godliness By the Imperial Law accordingly they were discharged from the trouble of being Tutors and Curators of Orphans nay where the Law had designed them that care by their relation to the Orphans out of respect to their dignity they were discharged by the Law that they might not incur unkindness to the neglect of their relations nor yet be incumbred with such private attendances to divert them from their great Cure Though the Presbytery might be admitted ad Tutelam Legitimam by their own consent and this was made Law by Justinian Cod. L. 1. By which Law it appears not a Judgment of Incompetency in Clergy-men to intermedle in Secular affairs but an honourable exemption of the Bishops from such private concernments was the reason of that Law It was further provided by a Law of Justinian Cod. L. 1. That Priests should not be made of Court-Officers but those that were so made might continue the reason of the Law is contained in it because that such a man was Enutritus in Executionibus vehementibus seu asperis his quae ex ea re accidunt peccatis Non utique aequum fuerit modo quidem illico esse Taxeatam Buleatam facere omnium acerbissima mox autem Sacerdotem ordinari humanitate innocentia exponentem dogmata In all this the honour of the Church was consulted But business of weight and trust was committed to them Valent. Valens appointed Bishops to set the price of goods sold with this reason Negotiatores ne modum mercandi videantur excedere Episcopi Christiani quibus verus cultus est adjuvare pauperes provideant Justin 79. Novel submits Monks to
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
Regni definitum est quod Comes Johannes disseiseretur de omnibus Tenementis suis in Anglia Castella sua obsiderentur This is a Cause of Treason for that Richard the First immediately upon the demise of the Crown was King It can be no objection that this was not a formal Parliament for whether it was or no it seems the Bishops power in that Cause was allowed That it was Commune Concilium Regni and had the Nature of a Parliament And that the Bishops therein had a parity of Authority with the Temporal Lords But soon after his return King Richard held a Parliament at Notingham Hoveden mentions the Bishops that were present by Name In which Parliament our Historian tells us That the King Petiit sibi Judicium fieri de Comite Johanne fratre suo qui contra fidelitatem quam ei juraverat Castella sua occupaverat terras suas transmarinas destruxerat foedus contra eum cum inimico suo Rege Franciae contra eum inierat And the like Justice he required against the Bishop of Coventry for that he had adher'd Regi Franciae Comiti Johanni inimicis suis and it was thereupon adjudged Judicatum saith Hoveden quod Comes Johannes Episcopus Coventrensis peremptoriè citarentur si intra quadraginta dies non venerint nec Juri steterint Judicaverunt Comitem demeruisse regnum Episcopum Coventrensem subjacere judicio Episcoporum in eo quod Episcopus erat Judicio Laicorum in eo quod ipse Vicecomes Regis extiterat You see here the Bishops zeal and Loyalty that they adjoyn'd the censure of the Church which they had power of as Bishops to a Civil punishment which they with the Temporal Barons had Authority to pronounce against One of their own Order who was guilty of a design to engage a Nation in a War by opposing the lawful Successour to the Crown and this being so great a Cause We hear nothing here of any scruple the Canon gave them nor mention of any Priviledge of an Ecclesiastick to be exempt from the Judgment of the secular Court In the same Parliament Giraldus de Canavilla was accus'd of harbouring of Pirats and Praeterea saith Hoveden appellaverunt eum de Laesurâ Regiae Majestatis in eo quod ipse ad vocationem Justitiariorum Regis venire noluit nec juri stare de praedictâ receptatione raptorum neque eos ad Justitiam Regis producere sed respondet se esse hominem Comitis Johannis velle in Curiâ suâ Juri stare Hoveden tells us all that were present at this great Council Hubert Arch-Bishop of Canterbury Galfridus Arch-Bishop of York Hugh Bishop of Durham Hugh Bishop of Lincoln William Bishop of Ely William Bishop of Hereford Henry Bishop of Worcester Henry Bishop of Exeter and John Bishop of Carlisle Earl David Brother of the King of Scots Hamelinus Earl de Warrenna Ranulfus Earl of Chester William Earl of Feriers William Earl of Salisbury and Roger Bigot Let any one judge if it was likely that the Bishops did withdraw in the Case of Earl John or the said Bishop when besides them there were but six Barons present at that Parliament What manner of great Council would this Parliament have been that had consisted but of six Barons of what Authority would such a Parliament have been in the absence of the King and a troubled Estate of the Kingdom CHAP. VII IN the time of Edward the Second in the two Judgments against the Spencers the Right of the Bishops to judge in capital Causes in Parliament was carried so high in opinion that their presence was thought necessary to give Authority and validity to the Judgment of the House of Lords in such Cases and their absence was assigned for Error for Reversal of those Judgments for an Error that appears in the irregularity of the Proceedings is an allowable Cause for vacating the Judgment by the same Court that gave it And so far did that Opinion prevail that the presence of the Lords Spiritual was necessary to give Authority to a Judgment of that House that for this Cause because the Prelates were absent that Judgment was reversed Which opinion did arise upon this mistake that because the Lords Spiritual was one of the two States that made the House of Lords nothing could be done without their concurrence But though they are a distinct State from the Temporal Lords they make but one House and they are both there under one Notion and Reason viz. as they are both Lords Spiritual and Temporal the Baronage of England But let any man tell me that can whether if the Lords Spiritual had not been understood Judges in Parliament in Capital Causes it could have been a question whether their absence could avoid the Judgment in the Case of the Spencers much less that such an opinion should prevail that the Judgment should be as it was for that reason reversed And tho' the Reversal of that Judgment was set aside and the Judgment affirmed in 1 E. 3. Yet the publick Recognition of the Bishops Right in the Reversal remains an undeniable Testimony to their Right of sitting Tho' the Reversal of that Judgment was not warrantable for the reason of the Bishops absence as it could not have been reversed by reason of the absence of as many Temporal Barons if there remained enough besides to make a House to give the Judgment And yet we find the Reversal of the Reversal reversed in 21 R. 2. and the Family of the Spencers restored in the person of the Earl of Glocester So prevalent was the opinion that the Bishops Concurrence was necessary in all capital Judgments in Parliament at that time For this see Sir Robert Cottons Abridgment fol. 373. Yet it is observable that the consequence from the Bishops being a third State and an Essential constituent part of that House to a necessity of their presence in all judicial matters even of Capital Offences and Treason did so stick with that Age for they then in that Age did no more know what three States served for or that they both made but one House than some in our time can tell how to find them For that very Reason in 21 R. 2. the first Petition that the Commons made in that Parliament to the King was for that diverse Judgments were heretofore undone for that the Clergy were not present The Commons prayed the King that the Clergy would appoint some to be their Common Proctor with sufficient Authority thereunto The Prelates therefore being severally examined appointed Sir Thomas de la Piercy to assent The words of which Petition and the procuratory Letters for greater Authority and more satisfaction I have thought fit to transcribe Nos Thomas Cantuar. Robertus Eborac Archiepiscopi ac Praelati Clerus utriusque Provinciae Cantuar. Ebor. jure Ecclesiarum nostrarum Temporalium earundem habentes jus interessendi in singulis Parliamentis Domini nostri Regis
his qui in sacris ordinibus constituti judicium sanguinis agitare unde saith the Canon Prolibemus ne aut per se membrorum truncationes faciant a very fitting Employment for a Bishop aut inferendas judicent and after all this we have still our old Answer upon which we will ever insist it is but a Canon and can make no Alteration in the Rights of Government For tho' Gervasius Dorob tells us In hoc Concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula yet the Canons of this Council are not Laws For that our Historian does not tell us of any Parliament then held or that they were confirmed in Parliament and the good liking of Great Men out of Parliament will not confirm nay not justifie the Canons if they cannot justifie themselves in Parliament Besides that these Canons were not made into Laws we will offer two Reasons 1st For that amongst these Canons there is one that disposeth of the Right of Patronage against the Law as it hath been before and since taken and that is this Nulli liceat Ecclesiam nomine dotalitii ad aliquem transferre vel pro presentatatione alicui personae pecuniam vel aliquod emolumentum pacto interveniente recipere quod si quis fecerit in jure convictus vel confessus fuerit ipsum tam Regia quam nostra freti autoritate patricinio ejusdem Ecclesiae in perpetuum privari statuimus which was never most certainly Law Secondly If this had been a Law the other Canon before-mentioned made by Stephen Arch-bishop of Canterbury was idle nay presumptuous for offering to derogate from a Canon made a Law about 47 years before But however Canons confirmed by Law remain but Canons still and the Breach of them not punished as the Breach of Laws nor no Innovation made thereby upon a civil Right of which before and after more As to the Second Canon we observe how dutiful this Canon in the Stile of it behaves it self towards the Civil Government in that Clerks should not exercise Jurisdiction where Judgment of Blood is to be given under the soft word Statuimus that they should not Literas pro poena sanguinis infligenda scribere that is sign an Order for the Execution of a Condemned Man or be present at the Sentence is under the districtiùs inhibemus but the doing of this is not declared to be a Sin he that is contravenient to the Canon is not thereby to become irregular to be punished by his Superior or to incurr Excommunication or any Censure the Clergy are not declared by this Canon to be incompetent Judges it only declares them unworthy of the Protection of the Church the meaning of it is Judge not least ye be judged If you judge the Laicks they will judge you This is the Scandal for which the Privilegium Clericale will be lost So that upon the whole matter this Canon is but Advice and Counsel and offers reasons to the Choice and Approbation rather than a Command under the Authority of the Church in a Council But let it be what it will if the Canon had been most peremptory in its Prohibition and had lighten'd and thunder'd in its Denunciatiations it would have been of no force to alter the Government or discharge a Judge from doing his Duty but this is farther to be duely observed that this Canon could not be broken if the Law had not been otherwise than these Canons direct and therefore these Canons produced by our Adversaries are the greatest Testimonies to the Right we defend and a practice agreeable thereto Doth not the Canon suppose that a Beneficed Clerk or one in Holy Orders was sometimes in Commission for judging in Capital Causes For certainly the Canon did not prohibit them to murder or enjoyn them not to write Letters to subborn men to kill What can be the meaning of the Canon but this supposing a Beneficed Clerk to be made a Judge of Life and Death to assist in a Commission of Oyer Terminer or Goal-delivery that he should be enjoyned not to pronounce the Sentence or to sign the Order or Calendar for Execution But if he were not a Judge how possibly could he sign an Order for Execution By the other words of the Canon Nec intersit ubi judicium sanguinis tractatur he can be forbidden onely to be present and assisting as a Judge or Officer at the pronouncing of Sentence for it can be no fault sure nor ever was intended by any Canon to be made one for any Clerk to hear a Court pronounce a Judgment of Death or Mutilation or to see a Malefactor executed What therefore can be more evident than that the Bishops did withdraw not for want of Right of Session but they pretended the Canon because they did not like the Causes But further that nothing more than what we have shewed was understood to be done in that Protestation by those times they must be allowed at least to know their own Opinions doth appear for that notwithstanding the Protestation of the Bishops aforementioned the great Council of the Kingdom did not think the Authority of a Parliament when the Bishops were absent unquestionable This Opinion we do not go about to maintain but this we conclude that there could never have been such an Opinion if the Bishops had been denied Right of Session in Capital Causes in that time CHAP. IX THE Commons of England in the 21 R. 2 pray that the Bishops might make their Proxy which they did thrice in that Parliament once by Procuratory Letters to Sir Thomas Percy as is before recited and afterwards William la Scroop Earl of Wilts was made their Procurator and a third time the Earls of Worcester and Wilts were made their Procurators in the matter between the two Dukes of Hereford and Norfolk That it may the better appear that the Bishops were virtually present by their Proxy it ought to appear that they were allowed to make Proxies and that the Lords Spiritual did so as well as the Temporal Lords The first mention of Proxies that occurs in the memory of our Parliaments is in the Parliament of Carlisle under E. 1. and that is of the Bishops Proxies The words are these Quia omnes Praelati tunc plenariè non venerunt receptis quibusdam procurationibus Praelator qui venire non poterant adjornantur And in a Parliament held at Westminster under Ed. 2. dors clauso Ed. 2. m. 11. the Bishops of Durham and Carlisle remaining upon the Defence of the Marches of Scotland are severally commanded to stay there and in the Writ this Clause was added to both of them Sed Procurat vestrum sufficienter instructum ad dictum diem locum mittatis ad consentiendum his quae tunc ibidem praedictos Praelatos Proceres contigerit ordinari Though generally Proxies were admitted to both Spiritual and Temporal Lords
Summons to Parliament and the Stile of Barons it was less difficult for those Great Barons to procure a Law to exclude the rest wholly from having any Right to sit in the Parliaments under the name of Tenant in Chief only And to this purpose doubtless saith Mr. Selden some Law was afterwards made that none should come to Parliament as a Baron that is by vertue of his Tenure but such as should have several Writs of Summons directed to them in which number not only all those of the Ancient and Greater Barons were comprehended but others to whom Writs should be directed which is in effect that no Tenure should any longer make a Baron of the Kingdom but that the Writ of Summons only should make a Baron It is not improbable for the reasons aforementioned that such Law was made the 49 H. 3. and farther for that we find that the Abbot of Leicester in the 26 E. 3. was discharged from being summoned to Parliament amongst other reasons that he was not summoned to Parliament before 49th year of H. 3. and after that Interpotalis vicibus as if part of the Constitution had been that those of the Ecclesiasticks who at that time were accounted the Barones Majores so declared by having Writs of Summons to Parliament should have Writs of Summons to Parliament thence after in Succession And herewith agreeth Mr. Cambden Brit. fo Henricus tertius ex tantâ multitudine quae seditiosa turbulenta fuit optimos quosque rescripto ad Comitia Parliamentaria evocaverit ille enim ex satis antiquo scriptore loquor post magnas perturbationes enormes vexationes inter ipsum Regem Simonem de Montfort alios Barones motas sopitas statuit ordinavit quod omnes illi Comites Barones Regni Angliae quibus ipse Rex dignatus est brevia summonitionum dirigere venierent ad Parliamentum CHAP. XVI SO that it appears clearly that the Feudal Baronies about this time were quite discharged so far that no man by a feudal Barony had any Right to sit in Parliament and those that were feudal Barons before this time by the Alienation of their Baronies afterwards did not cease to be Barons But for that the Majores Barones and such as had then Writs of Summons and were appointed to make the House of Lords for after time were then Barons by Tenure It continued an Opinion some time that no man was bound to answer such Writs of Summons but those that were bound thereto by their Tenures thence it was that after this Constitution many that were feudal Barons before have taken a Liberty to entail their Baronies with the Lands that were held per Baroniam upon the Heirs Males whereby the Heirs general or next Heir Female were excluded and an Heir of the half Blood hath enjoyed the Honor with the Lands by vertue of the Entail We will trouble the Reader with one Instance of this kind and that is as late as Q. E. William Lord Paget of Beaudesert entailed the Baronies of Longdon and Haywood by Fine which descended to Henry his Son and Heir who had Elizabeth his Daughter and Heir died 11 Eliz. after whose Death Thomas Brother and Heir Male of Henry entered into the Baronies aforesaid and was summoned to Parliament This was allowable because the Honor of the Name and Family was thereby better supported and the Office of a Baron continued in the Family and the Duty of it better performed by such direction of the Descent And we do also observe that after the reason of being a Baron from Tenure did cease the following times kept the Old Form of Speech tenere per Baroniam was used commonly to denote a man a Baron That the Law is as we have said appears for that an Issue at Law whether Baron or not ought to be tried by the Parliament Records of his Summons and Session there as a Baron and not by the Records of the Exchequer to prove the Tenure I will not therefore trouble the Reader with what is reported to us in our Year-books nor my self in reconciling the seeming disagreements there about this matter onely thus that the Judges have sometimes spoken cum vulgo and not agreeable to the true notion of the Law and that they did not judge according to Law in the case of Thomas de Furnival But the Barons being anciently first so by Tenure did so stick with the Judges that they allowed Thomas de Furnivals Plea that he did not hold per Baroniam to discharge him from being a Baron though he had been summoned as a Baron and sate in several Parliaments as such But of this more hereafter For that which now made Parliamentary Barons was the receiving of a Writ of Summons to Parliament Before the 49 H. 3. The Bishops were of the number of those that were majores Barones and had Writs of Summons to Parliament among the rest of the great men before the making of the Law aforesaid and they by this new Constitution became Barons for them and their Successors not by Tenure any longer no more than the great Lay Barons but by virtue of the Writ of Summons and by the afore remember'd Constitution and Law made some time about the 49 H. 3. And though the Lands of the Bishops in the time of the Conquerour which were put under that Tenure be alienated or exchanged as they might have been I am sure if they are not before the Statute of Queen Elizabeth put a restraint upon them yet the Succession of the Bishops to their Baronies remains It is a question I know whether a Bishop can demand his Writ to Parliament before the restitution of the Temporalities upon his Consecration there are valuable Opinions on both sides but if the restitution of the Temporalities must be first made it is I conceive upon no other reason than that he is not completely Bishop before that is done no more than a Rector is a complete Rector after Institution before Induction be made though he ought I conceive to have his Writ upon Consecration because upon vacancy of the See the Guardian of the Spiritualities used anciently to have a Writ of Summons to Parliaments as Diocesans themselves And now the Baronage Secular is affixed to Families and the Spiritual Baronage to the Office and Succession And now Birth designs the Temporal Baron and Consecration of the Bishop designs the Spiritual Baron nay single Election without Confirmation or Consecration If elected onely they were summoned to Parliament by the addition of Electi if confirmed and not consecrated then they are in the Writ of Summons styled Electi Confirmati And Mr. Selden further tells us that there never was any that had the Title of a Bishop in England and of the Kings Creation since the Normans but was a Baron of Parliament and though the Regular Barons and such of them who had Writs were discharged upon their Prayer and omitted to be
unexceptionable Judge but renders them most fit and desirable For besides their Wisdom and Justice common with that of the Temporal Lords they are intended of the greatest tenderness and compassion and must be so if they comport themselves with agreeableness to their Character and Function They are not ordinarily engaged in the Factions of the Temporal Grandees and Religion being their business they are more under the powers of it that being their glory and their first greatness that which promoted them to their Secular Honour and Dignity and that which must support it Their Interest is Religion and therefore they are the more obliged in all their outward acts to comport with it They out of an universal charity understand that it is mercy and compassion to the innocent to punish the nocent person and yet they can in the administration of punitive Justice attemper the severities of Laws with the mercies of Religion and use Compassion to the Criminal when they do not depart from the unrelenting Rules of Law out of regard to the publick peace and by such demeanour they may reconcile the Office of a Judge with that of a Priest which some have thought incompatible 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Synes But they are no more inconsistent than Power and Authority which united makes a most venerable Magistrate and gives him the greatest advantage of serving the Community Peragit tranquilla potestas Quod violenta nequit mandataque fortiùs urget Imperiosa quies CHHP. XVIII AND such a Judge would I chuse but we we must take such a Judge as the Law appoints Magna Charta is objected against the Bishops right in the question which saith that Nullus liber homo capiatur c. nec super eum ibimus nec super eum mittemus nisi per judicium parium suorum The Objector omitted to add or consider what follows viz. Aut per legem terrae But the Statute of Magna Charta is no Literal Law as every body knows but intending to confirm the Common Law it is upon the matter Lex non scripta it alters nothing that was the Common Law before but that being found out declares what Magna Charta establisheth And therefore Peers shall be tried by Commoners in Appeals notwithstanding the Letter of Magna Charta for otherwise Peers could not be tried at all nor no Justice done in Appeals which is the Suit of the Party and not of the King Privilege must be always set aside rather than a faileur of Justice shall be allowed So that the Law before Magna Charta and since whatsoever it was must determine this matter The Provisions that the Law hath made that the Nobles and the Commonalty shall not intermeddle to judge any persons not of their Order is a most prudent Establishment without which neither Order Justice or Peace could be preserved The Envy of the Commons would render them unfit Judges of the Peers and the Animosities of the Peers would render them unapt to sit in Judgment upon a despised Commoner Besides that otherwise the Dignity of the Order of Peers would suffer for the Superiour can no more be judged with any congruity than blessed by the Inferiour This is a reason big and wise enough to be assigned and worthy of a wise Government and Polity And to this reason the words of the Statute of 25 E. 3. cap. 2. de Proditoribus do point De ceo soit probablement attaint de overt fait per gens de lour condition And therefore it seems to me that according to the Reason and Design of the Law which declares the Law in particular Cases that Bishops being Barons and of the Peerage of England and of that Rank and Order they ought to be tryed by those of their own Condition And the denial to them of this Priviledge which is annex'd to and is a resultance from the Dignity of their Order is a departure from Magna Charta and not agreable to the Provision of the 25 E. 3. c. 2. But it was never an allowable Exception to a Judge that the Judge hath not so good an Estate or other Advantages of Fortune equal to the man he Judges to forfeit in case the Judge be a Capital Offender upon which reason the Folio Gentleman grounds his Reasonings against the Bishops being Tryers of Peers He argues the Bishops incompetent to try a temporal Baron upon this reason because the Bishop hath only a Peerage for his Life to forfeit But who can be satisfied with such fine and slender Reasoning or entertain an Opinion that is not bettern grounded I would not be thought to argue or maintain that Prelates are so fit to be appointeed by the King's Commission to try a Temporal Peer in the Court of a Lord High Steward out of Parliament when a select Number of Peers are to be appointed for Tryal it is most convenient that those of the same Species of the Baronage should be chosen for that purpose for many reasons but for a Tryal of a Temporal Peer in Parliament which is the Establishment and Appointment of the Governmnt and not of the King 's special Designation notwithstanding the reason of the Folio for Reasons herein alleadged a Bishop is a most fit legal and competent Judge But I have taken too much notice already of the Errors and Mistakes of the Folio and his false Reasonings I am weary of such Animadversions I shall proceed now to the end of my Discourse without making any more Reflections It is already cleared that the Bishops are compleat Barons that they are of the State of the Baronage and it can have no Consideration how they came by it nor how they held it for the Modus tenendi doth not alter or diversifie the Honor. And for my part I cannot find reason to believe but that the Bishops had or might have had originally their Tryals by Peers and that it was their Right in Consequence of their being placed in that Order and State besides that they have a Precedency to the Temporal Baronage to be tried by the Baronage because the Law for the reason afore-mentioned appoints Tryals per Pares But the contrary practice is the Strength of our Adversaries in opposing the Peerage of Bishops which we shall therefore now consider of It is certain that in all Tryals wherein Bishops are concerned whether Plaintiffs or Defendants in Actions real as well as personal whether the Lands of the Church are concerned or not a Knight is to be returned upon the Jury that is to try the Issue I will not trouble the Reader with Law Cases any Gentleman that pleaseth may examine the Truth of what I say This priviledge therefore cannot be in respect of the Lands of the Bishoprick as the Folio would have it but of the persons of the Bishops a respect to the Order and Peerage of the Bishops It is the same Priviledge and as large as the Temporal Peers enjoy in this matter which is that the worthiest and best
of the Commoners which are Knights should be impannelled upon a Jury where either a Spiritual or Temporal Baron is concern'd besides that I find a single Remembrance as high as 13 E. 3. in Brooks Tryal 142. the Reports of that year are not printed of the Bishops Right of Peerage in a Capital Cause the Book is Evesque est Peere de Realme serva try per Peres in Crime But how this Right came to be discontinued and to lose remembrance we shall presently account for but I cannot think it Sence which some of our Lawyers have said for this purpose that a Bishop his being a Baron is Ratione Tenurae and not personal which is all one as to say that the Bishop is a Baron but his Person is not a Baron but his Peerage and Baronage is no other in truth than an Honor accumulated upon the Person of a Bishop together with his Office But to excuse them they thought themselves obliged to give a reason why Bishops are not as the Law is taken to be tryed by Peers but by a Common Jury which grew into practice by accident and was not ever so in probability but certainly is very irregular and extream incongruous and therefore to give a good reason for it is too hard a task to be undertaken and he that will undertake to give a reason of that which is unreasonable and go about to prove a thing fit which is incongruous must likely speak things equally incongruous absurd and unreasonable But to speak what the truth is in this matter the Bishops and the whole Order of Clergy did challenge to be exempt from the Jurisdiction of Secular Courts but the Bishops as is objected never waved their jus paritatis upon Arraignment in inferior Courts They only never insisted upon it For they had a better way to escape by setting up the pretended Rights and Priviledges of their Order and that Church for exempting themselves from the Jurisdiction of the Temporal Courts and by this means they did escape unpunished for the most part Though there were several Abatements made by the provision of the Laws and the Wisdom of the Judges to their unreasonable pretences therein yet they always got off by their pretended priviledge if not with impunity yet with some protection at least from Justice and farther they thought perhaps they might at least avoid being thought guilty of the Crimes objected whilst they used this pretence for a reason why they would not make a Defence And sure in all Offences but Treason they escaped with their Lives before the Statutes that took away the benefit of Clergy in some Cases of the greatest Guilt and even in the Case of Treason the Criminal ever had the Advocation and Intercession of the Church-power and Interest because the priviledge they contended for was so great and valuable a Concernment as they esteem'd it to the Order of the Clergy But by this means the memory of the Use of this Right and Priviledge was lost and the Detestation of a Crime in a Prelate provided him a speedy and ready Justice such as was at hand and at length Bishops themselves unadvisedly and being born down by the Common Opinion thus grounded and occasioned did submit to Tryals by Juries It is enough to have given an account how this Anamolous piece of Law came about But Anamolous Cases never make Rules nor destroy any Nor is it to be drawn into consequence whatever is a departure from the Establishment to destroy it quite Positive Constitutions of which no Reasons can be given why they are so can infer or argue nothing Reason cannot make Law though it is a fair inducement but our Reason is most perversly imployed when it proceeds from the Irregularities that happen in Human Affairs and are shuffled upon us by length of time by violence and iniquity and a heap of Accidents to argue us into more and to refix that which is regular and remains firm In quo quis peccat in eo punietur Is it not enough that the Order now suffers a diminution of their dignity by reason of the contumacy of the Popish Prelates their Predecessors and that their Refusals to submit to Temporal Justice are visited upon the Succession Severe enough this is in it self But why should any man expect that this Age in consequence of this should be persuaded and reasoned to exclude the Bishops out of their remaining right 'T is no more to be expected than that a man that hath one hand withered and mortified with the Palsie should be persuaded to cut off the other for conformity We know how the Prelates fell from their primitive Dignity of being tried by those of their own Order and were submitted to be tried by Juries of Commoners It would be therefore consonant and agreeable to the Dignity of Barons and Lords of Parliament for such the Bishops are that they be restored to their ancient right in the matters of Trials as mistaken Law is rectified by an Act of Parliament A wise Act of State it would be to redintegrate the Honour of the Baronage of England the whole Baronage suffering dishonour by a mutilation of so Honourable a Privilege in one of the membra dividentia of that body whilest the Bishops are thrown to common Jurors Especially since the incongruity thereof hath given occasion to some men to question one another of the jura paritatis which belongs to the Prelates and to dispute their right of Session in that House in one of the most important Concerns of the Government But however this Irregularity is discoursed it doth not affect the Right of the Prelates now in dispute for though Bishops are tried by Commoners out of Parliament as the Law is now generally taken yet that they are to be tried by Peers in Parliament our Adversaries do not deny And that they may and ought to sit in judgment upon Temporal Lords in Parliament in Capital Causes we have clearly proved So that the Reciprocal of a Bishops being judged and judging in Capital Causes in Parliament is intire and in this they continue duly pares But that it may not depend upon our Adversaries Concessions that Bishops may be tried by Peers in Parliament for he is not always constant to himself and may take back what he hath yielded we shall here subjoyn a short demonstrative proof that the Bishops ought to be tried by Peers in Parliament And that they have been declared and taken for Peers and under that Character tried when if they had not been reckoned and deemed Peers they could not have received Tryal in Parliament and it is thus Edward the Third had prevailed with the Lords against their good will to condemn the Earl of March Sir Simon Beresford John Matrevers Boys de Boyons John Devard Thomas de Gowrney William Ogle for the Murder of Edward the Second his Father and the Earl of Kent all of them Commoners but the Earl of March The Lords were
the Church of Rome the source whence all our divisions spring To which we owe the first separations that were made in our Chutch which appears by undenyable Records published by Dr. Stillingfleet in his Book called the Unreasonableness of Separation How they have propagated multiplyed exasperated and promoted our divisions to tell you would make a Volume besides no Protestant is now to know it I have only this further to observe that the Church of Rome at first only design'd by the Arts of dividing us and breaking us into several Communions to disgrace the Reformation to make our Spiritual Governors Pastors and Teachers lose their Authority with the People To deprave our Religion with licentious opiniastre and absurd dogmatizing to load our departure from that Church with the mischief of innumerable Schismes and to make us reconcileable to the Tyranny and impostures of that Church from the vain opinions and licentiousness of the Sectaries who have been seduced managed inflamed and made wild by their imposturous Arts and Deceits This I believe was only at first designed by the Priests but now they apparently design by the Dissenters to destroy the Church or by the Church to destroy the Dissenters that they more easily come to rights with her They imagine the Dissenters are very numerous and that the Nation is fallen into two great parts that the Dissenters numbers are vast But God be thanked they neither make our grand Jury men nor the common Halls of the City of London for choosing the Lord Majors or Sheriffs And I challeng any man to give me a List of all the Names of Dissenters that were of the House of Commons in our two last Parliaments I am sure they will not make an Number but they reckon the Numbers of Dissenters by the care they have taken to encrease it They used great art to continue the Separation when His Majesty was restored Since Laws have been made to raise the Animosities of Dissenters but scarce ever executed for repressing them If for any reason of state the Laws here and there and for a spurt have been exacted secret comforts and supports have been given to their Preachers of greatest Authority with them And when they have seem'd to preach with the courage and zeal of confessors to their Auditors they have been assured not only of indemnity but have received rewards How prosperously did the work of separation go on by these Councils of our Achtlophels by these means they concluded it would be heightned that it would admit of no terms of an accommodation How insolent were their Harangues more taking with their deluded Auditors while they apprehended them acted with an invincible zeal of Religion What Animations did their People receive to defy the Church and her Authority when their Preachers despised Fines and Imprisonment to their seeming out of pure zeal against her Order It is well known several of them were in Pension and no men have been better received by the D. than J. J. J. O. E. B. and W. P. c. Ringleaders of the Separation Besides that Popish Priests have been taken and executed for preaching in Field meetings in Scotland They have raised there a sort of Euthusiasts more wild and mischievous than any we had amongst us in the times of licentiousness They have had notwithstanding great Lords that have patronis'd them who were always well received in their applications in their favor at St. James's and several of their Preachers who were not Priests have received exhibitions and pensions for their Encouragement It was necessary that the Fanaticism planted in Scotland should be very loathsome to make that Nation abate any of their zeal for the Protestant Religion or to neglect their fears and apprehensions of Popery or to make the least step towards it Awake you drowsie Sleepers open your Eyes the Sun is risen there is light enough to fill your sight if you would look up and were wiling to see Could any thing be conceiv'd more apt to bring the Church of England into contempt and scorn with those of the separation then to have Laws made in her favor penal Laws which are thought to be of her procurement and not executed Vain and Ineffective anger is always returned with contumely scorn and hatred Cupide conculcatur nimis ante metitum And so it hath succeeded in this case nothing hath been more passable than the basest Scurrility upon the Church the Bishops and the Clergy The Atheist the impious and profane have listed themselves Fanaticks that they might have the greater Liberty of reviling Religion it self with impunity Consider how the Church of England is used which is truly the Bulwark of the Protestant Religion About ten years since they designed to slight her works and demolish her by a general indulgence and toleration And now they intend to destroy her Garrison those that can and will defend her against Popery By one of their Pamphleteers the separation is called an usurpation upon the Government and all the Dissenters as such only Rebels and Traitors to the King The same Gentleman would perswade the World that the ready way to extirpate Popery is by rooting out of Fanaticism whither saith he the Fanaticks bring on the Jesuits plot or the Jesuits the Fanaticks is not a farthing matter But in the mean time that the Papists have a plot on foot needs no proof That any sort of Protestants are engaged in a plot cannot be proved But all honest Protestants of the Church of England think it more righteous to punish the Deceivers and pitty the Deceived and wish them only cut off that make divisions It is one way of curing or rather of extinguishing the disease to Kill the Patient But no Prince did ever yet provide Cut-Throats for his People in epidemical diseases instead of Physitians But if the Papists could arm other Protestants against Dissenters there would be the less work for Papists to do And they will be sure to requite them for this favor with Polyphemus his curtesie For to give the Devil his due they are not themselves so fond of Massacres and destruction of Hereticks as to envy that employment to any other that will undertake it They had rather any other party of Men should do the Drudgery for them Besides what one sort of Protestants shall execute upon another will give them better pretence and more hardiness if they wanted either Pretence or Resolution to destroy such as they call Hereticks to execute the like destruction upon the Church Protestants who certainly differ more from the Papists then the Separatists do from our Church Sure there is good Reason they should be more sharply treated by the Papists than they treated the Dissenters And if they are in such sort us'd they must lay their hands upon their mouths and be silent before their Persecutors and acknowledg the righteous judgment of God in bringing such tribulation upon them from their Enemies wherewith they troubled their own Brethren