In his absence the People refuse to pay the Taxes and the Lords combine together and all things tend to an open Rebellion His Son Ed. II. calls a Parlament at London and promises a Confirmation of the Charter and that no Taxes should hereafter be raised either on Clergy or Laiety without their consent Which being sent over Edw. I. confirmed it with his own Seal which was all done within the compass of this year But he again ratified it in the Parlament 27 Ed. I. So that nothing was done in that Parlament at S. Edmondsbury but granting a 12 th of the Laiety to the King And when the great Laws were passed the King and Clergy were reconciled and they sate in Parlament And the Archbishop of Canterbury fell into the King's displeasure afterwards for being so active a promoter of them The summe then of this mighty argument is that the Lords and Commons once granted their own Subsidies without the concurrence of the Clergy therefore the Clergy are no essential part of the parlament 3. The Reason assigned in Keilway's Reports why the King may hold a Parlament without the Bishops is very insufficient viz. because they have no place in Parlament by reason of their Spiritualty but by reason of their Temporal possessions The insufficiency of which Reason will appear by two things 1. That it is not true as appears by this that the Clergy are one of the Estates of the Kingdom and all the Estates of the Kingdom must be represented in Parlament 2. Were it true it is no good Reason For why may they be excluded because they sit on the account of their Baronies Where lies the force of this Reason Is it because there will be Number enough without them That was the Rump's Argument against the Secluded Members And I hope the Authour of the Letter will not justify their Cause Or is it because they hold their Baronies by Tenure So did all the ancient Barons of England and why may the King hold his Parlament with the other Barons without the Bishops and not as well with the Bishops without the other Barons Which I do not see how it can be answer'd upon those grounds Suppose the Question had been thus put Since all the ancient Lords of Parlament were Barons by Tenure and Parlaments were held for many Ages without any Barons by Patent or by Writ why may not the King hold his Parlament after the ancient way onely with Barons by Tenure I do not see but as good a Reason may be given for this as that in Keilway's Reports All that I plead for is that our good ancient and legal Constitution of Parlament may not be changed for the sake of any single Precedents and rare Cases and obscure Reports built upon weak and insufficient Reasons For as the Authour of the Letter very well saith Consuetudo Parlamenti est Lex Parlamenti The constant Practice of Parlaments and not one single Instance is the Law of Parlaments And suppose that Precedent of 25 Ed. I. as full as could be wished in this case yet I return the answer of the Authour of the Letter in a like case This is but one single Precedent of a Parlament without Bishops against multitudes wherein they were present it was once so and never but once And can that be thought sufficient to alter and change the constant course and practice of Parlaments which hath been otherwise Nothing now remains but a severe reflexion on the Popish Bishops for opposing the Statute of Provisors and the several good Acts for the Reformation But what this makes against the Votes of Protestant Bishops is hard to understand If he thinks those could not make a good Third Estate in Parlament who took Oaths to the Pope contrary to their Allegeance and the interest of the Nation so do we If he have a great zeal for the Reformation so have all true Members of the Church of England who we doubt not will heartily maintain the Cause of our Church against the Vsurpations of Rome though the heat of others should abate For did not our Protestant Bishops seal the Reformation with their Bloud and defend it by their admirable Writings What Champions hath the Protestant Religion ever had to be compared in all respects with our Cranmer â—idley Iewel Bilson Morton Hall Davenant and many other Bishops of the Church of England And notwithstanding the hard fortune Archbishop Laud had in other respects not to be well understood in the Age he lived in yet his enemies cannot deny his Book to be written with as much strength and judgment against the Church of Rome as any other whatsoever I shall conclude with saying that the Clergy of the Church of England have done incomparably more Service against Popery from the Reformatition to this day then all the other Parties among us put together And that the Papists at this time wish for nothing more then to see men under a pretence of Zeal against Popery to destroy our Church and while they cry up Magna Charta to invade the legal Rights thereof and thereby break the first Chapter of it and from disputing the Bishops presence in Cases Capital to proceed to others and so by degrees to alter the ancient Constitution of our Parlaments which will unavoidably bring Anarchy and Confusion upon us from which as well as Popery Good Lord deliver us THE END Letter p. 1. Lett. p. 93. Lett. p. 3. 118. Lett. p. 66. P. 21. Lett. p. 2 3. Lett. p. 5. Lett. p. 86. Hincmar Epist de Ordine lalatii Concil Franc. c. 3. 9. Marculph Form l. 1. c. 25. Not. in Marc. p. 287. Concil Tolet 4. c. 75. 5. c. 7. 6. c. 17. 8. in Praef. 12. c. 1. 17. c. 1. 17. c. 1. Cont l. Tolet 13. c. 2. Rer. Aleman To. 2. Cod. Leg. Antiq. B. 362. Arumae de Comitiis â— 35. c. 4. â— 98. Goldast Bohem l. 5. c. 1. Bonfin dec 2. l. 1. Decret Ladiss p. 12. Starovolse â—olon p. 2â—5 Herburt Stat. Regni Pol. p. 263. Adam Brem de situ Dan. n. 85. Loccen Antiq Sâ—eco Goth. c. 8. Ius Aulicum Nâ—rveg c. 3. c. 36. Lett. p. 3 4. Stat. Merton c. 9. 20 H. 3. Dissert ad Flet. c. 9. § 2. Soz. hist. l. 1. c. 9. Capitul Carol Ludov l. 6. c. 281. ed. Lindenb c. 366. ed. Baluz Cod. Just. de Epise Audient l. 1. tit 4. c. 8. Cod. Theodos l. 16. tit 11. c. 1. Greg. NysS vit Greg. Basil. in ep Socr. l. 7. c. 37. Ambros. de Offic. l. 2. c. 24. Aug. ep 147. in Ps. 118. conc 24. Jac. Goth. in cod Theod. ad Extrav de Episc. judicio Concil Sardic c. 7. Balsam in Can. 4. Concil Chalced. Auth. Collat 1. tit 6. Novell 6. c. 2. Justin. Cod. l. 1. tit 3. c. 41. Cod. Theod. l. 16. tit 2. n. 38. Lindwood l. 3. de Testam Lett. p. 4. Lett. p. 68. Lett. p. 69. Lett. p.
THE GRAND QUESTION Concerning the Bishops Right To VOTE in PARLAMENT In Cases Capital STATED and ARGUED FROM The Parlament-Rolls and the History of former Times WITH An Enquiry into their Peerage and the Three Estates in Parlament LONDON Printed for M. P. and sold by Richard Rumball Book-binder at the Ball and Coffin in the Old Change 1680. THE CONTENTS CHAP. I. THE Question stated and general Prejudices removed CHAP. II. The Right in point of Law debated Concerning the Constitution of Clarendon and the Protestation 11. R. 2. CHAP. III. The Precedents on both sides laid down those against the Bishops examined and answered CHAP. IV. The Peerage of the Bishops cleared how far they make a third Estate in Parlament Objections against it answered CHAP. 1. The Question stated and general Prejudices removed THE Question in debate as it is stated by the Authour of the Letter is Whether the Bishops may be present and Vote Iudicially in Capital Cases which come to be judged in Parlament either in giving the Iudgment it self or in resolving and determining any circumstance preparatory and leading to that Iudgment For our better proceeding towards a Resolution of this Question it will be necessary to take notice of some things granted on both sides which may prevent needless disputes and be of great use in the following Debate 1. It is granted That the Bishops do sit in Parlament by virtue of their Baronies and are bound to serve the King there And one part of the Service due to the King there is to sit in Iudgment for the Authour of the Book entitled The Iurisdiction of the House of Peers asserted proves at large that the Right of Iudicature belongs to the Barons in Parlament and that the Lords Spiritual have a considerable share therein appears by this passage in the Title-page of that Book translated into English The Iudgment of the Lords Spiritual and Temporal is according to the Vse and Custom of Parlament The Vse and Custom of Parlament is the Law of Parlament The Law of Parlament is the Law of England The Law of England is the Law of the Land The Law of the Land is according to Magna Charta Therefore the Iudgment of the Lords Spiritual and Temporal is according to Magna Charta Some Right then of Iudicature in Parlament the Bishops have by Magna Charta which whatever it be is as much theirs by that Charter as any Right of Temporal Persons and cannot be invaded or taken from them without breach of that Charter any more then the Rights of the Lords Temporal or of any other Persons whatsoever But how far that Right doth extend is now the thing in Question 2. It is not denied that the Bishops do sit in Parlament by the same kind of Writs that other Barons do They are summon'd to advise and debate about the great and difficult Affairs of the Kingdom cum Praelatis Magnatibus Proceribus dicti Regni nostri Angliae colloquium habere tractatum i. e. to joyn therein with the Bishops and other Lords of the Kingdom So that by the King 's Writ of Summons they are impower'd and requir'd to confer and treat of all the weighty Affairs that shall be brought before them And no Instance is so much as offer'd to be produced of any Writ wherein the King doth limit and restrain the Bishops any more then any other Lords of Parlament as to any matter of Consultation or Point of Judicature belonging to that House They have then by their Writ of Summons as good right to sit in all Cases as in any and since the other Lords by their Writs are summoned to advise with the Prelates in all matters that shall come before them without limitation it is not to be conceived how this can be done if the Bishops in some of the most important Debates be excluded 3. It is yielded That if the House proceeds in a Legislative way by passing Bills of Attainder the Bishops have a Right to sit and Vote therein as well as other Lords at these it is said that the Bishops are or should be all present at the passing of them for then they act as Members of the House of Lords in their Legislative capacity But men do as certainly die that are condemned in the Legislative as in the Iudicial Way Is not this then really as much a Case of Bloud as the other If the Bishops should give their Votes in the Legislative way to condemn a Person for Treason and yet think they had not Voted in a Case of Bloud they would then indeed be like Chaucer's Frier mention'd by the Authour of the Letter that would have of a Capon the Liver and of a Pig the Head yet would that nothing for him should be dead Doth a Bill of Attainder cut of a man's Head without making it a Case of Bloud There can be then no objection now made against the Bishops Right from any Canons of the Church for those allow no such distinction of proceeding in the Legislative or Iudicial Way And the late Authour of the Peerage and Iurisdiction of the Lords Spiritual doth grant that the Canons do prohibit the Bishops voting in Bills of Attainder as much as in any Case whatsoever But we are not to suppose a Person of such abilities as the Authour of the Letter would go about to exclude the Bishops from their Right of Voting in a Iudicial way in Cases Capital unless there were some great appearance of Law on his side because he professes so great a Desire that Right may prevail and that his design in writing was to satisfy himself and others where that Right is The discovery whereof is our present business Yet before the Authour of the Letter comes to a close debate of the matter of Right he lets fall some general Insinuations to create a prejudice in the Reader 's mind as to the Bishops meddling at all in Secular Affairs as though it were inconsistent with their Function and with some passages in the Imperial Law And because men may sometimes doe more harm by what they tell us they will not say then by what they do say it will be fit to prevent the danger of such Insinuations before we come to consider his Arguments 1. The first is that meddling at all in Secular Affairs seems to be the doing that which the Apostles declared they would not doe viz. leave the Word of God and serve Tables But are all Persons of Estates now bound to part with them as the Christians then did The serving of Tables was a full employment and they who attended that Office were the Treasurers of the Church to distribute to every one as they judged fit out of the common Stock Is it no Service to God to doe Justice and to shew Mercy to attend upon the publick Affairs of the Kingdom when they are called to it by their Sovereign Or are all Bishops now
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
Rochester in H. VIII ' s time which is the great Precedent in the law-Law-Books 3. The method of Proceeding as to the Trial of Bishops by Common Iuries while the Pope's Power continued in England is not so clear that any forcible Argument can be drawn from thence Because the Bishops then looked on themselves as having no Peers out of Parlament in point of Judgment but Bishops As in the famous Case of Adam Bishop of Hereford under Edw. II. who was rescued from the King's Bench by his Brethren the Bishops because they looked on his appearing there as a Violation of the Liberties of the Church I do not go about to defend these Proceedings but I am sure the Authour of the Peerage c. very much misrepresents this business for he makes it as if the Bishop were legally convicted in Court by a common Iury and that after conviction he was deliver'd to the Archbishop to the intent as he supposes that he should be degraded Whereas in truth the Bishops carried him out of the Court without his giving any Answer to the Endictment and when he was absent the King commanded the Iury to bring in their Verdict and without ever being heard to make any Defence for himself they found him guilty in all the Articles laid to his Charge That Authour very freely bestows the terms of Impudence on the Bishops of that time and Ignorance on those who go about to defend them but I desire to know whether of these two makes a man thus misrepresent a matter of fact For it was so far from being true that upon Conviction he was deliver'd to the Archbishop to be degraded that he never appeared in Court after but continued under the Archbishop's care till after a while he fully reconciled him to the King notwithstanding the Jury found him guilty of Treason I desire to be informed whether we are to understand Magna Charta by such a Trial as this Whether he were judged by his Peers I know not but I am sure he was not by the Law of the Land which I think is as good a part of Magna Charta as the other And this our Historians tell us is the First Instance of any Trial of this kind of any Bishop in England which hath too much of force and violence in it to be a good Interpreter of Magna Charta The Second Precedent is verbatim out of Mr. Selden concerning Iohn de Isle and the Bishop of Ely his Brother which concerns such matters wherein himself confesses the Privilegium Clericale was allowed and the Record saith the Archbishop entering his plea that he was to be deliver'd to him as a member of his Church he was accordingly deliver'd after the Jury had given in their Verdict Which shews indeed the good will that was then used to take away even the allowed Privileges of the Clergy by common Juries And this is another stout Interpreter of Magna Charta when Bracton Briton Fleta Stat. West 1. Articuli Cleri c. 15. are confessed even by Sir Edw. Coke to be so clear in the Clergie's behalf in these matters The Third Precedent which is likewise out of the same Authour is of Thomas Merks Bishop of Carlisle who for his fidelity to R. II. and the true Heirs of the Crown against the Usurpation of H. IV. was found guilty of Treason by a common Iury. But Mr. Selden is so ingenuous as to take notice that the Writ directed to the Justices had in it a Non obstante to a Statute lately made at Westminster Licèt in Stat. apud Westm. nuper edito inter caetera continetur quòd nullus Archiep. nec Episcopus coram Iusticiariis nostris occasione alicujus criminis impetatur absque speciali praecepto nostro quousque c. Which was read in Court but the Judges urging that the Liberties of the Church did not extend to high Treason then it is said he did ponere se super Patriam just as Thomas Lord Berkely did 4 Ed. III. This is the onely Precedent that proves that a Bishop before the time of H. VIII did put himself upon a common Iury and yet we find as good a Precedent of this sort concerning an allowed Peer of the Realm And whether this single Precedent be sufficient to interpret Magna Charta against the plain sense of the words and to make a constant practice I leave any rational man to judge But if this were yielded in Cases of high Treason wherein the Privilege of Clergy holds not especially since the Statutes 25 Ed. III. c. 4. and 4 H. IV. c. 2 3. Mr. Selden tells them that there is no consequence from hence because they are not to be tried by Peers therefore they are not Peers since the Common Law may limit this Privilege of Peers in one particular case which may hold in all others As it is no diminution to the Peerage of the Temporal Lords to be tried by a common Iury at the Suit of the Party I conclude the Answer to this Argument as Mr. Camden doth his Discourse about this subject who having proved that the Bishops do enjoy all other Privileges of Peers except this of being tried by them which he seems to attribute to a kind of Revenge upon them for pleading such exemptions by the Canon-Law after all he leaves it to the Lawyers to determine whether this be juris explorati The meaning of which I am sure is not as the Authour of the Letter expresseth it that it was always so and never otherwise But the great difficulty to some is that a Praedial or Feudal Barony doth not ennoble the Bloud and therefore can give no Right of Peerage Whereas it is well known that all the Baronies of England were such from the Conquerour's time till after the Barons Wars when for Reason of State it was thought necessary to make the Nobility more dependant on the Crown And all that were Barons were Pares i. e. Peers So du Fresn quotes an old Poem of the Common Laws of England Barons nous appellons les Piers del Realm In France from whence our Baronies first came Ecclesiastical Persons with praedial Baronies are thought as capable of Peerage as any For there at first all the Barones Regni who both in France and England were the same with the Barones Regis however some of late have distinguished them sate in the great Council and all publick Affairs passed through them and they were judged by their own Order and these were called Pares Regni among whom the Bishops were comprehended At last Lewis VII A. D. 1179. as most Authours agree chose Twelve out of the great number of the Peers of France of which half the number were Bishops who held feudal Baronies of the King and the Archbishop of Rheims is the First of the whole Number And because these enjoy'd greater Privileges then other Peers their number was increased by particular Favour but the ancient