know the Nature of a Protestation which some peradventure may mistake Protestatio est animi nostri declaratio juris acquirendi vel conservandi vel damnum depellendi causa facta saith Spigelius Calvin and all the Civilians No Protestation is made by any man in his Wits to destroy his own Right and much less another mans but to acquire or preserve some Right or to avoid and put off some Wrong that was like to happen to the party or Parties that make the Protestation As here in Courtneys Protestation the Prelates in the first place conceive a Right and Power they had voluntarily to absent themselves whilst some matters were treated of at that time in that House of Lords which by the Canon Law the breach whereof the Popes of Rome did in those times vindicate with far more severity than they did the transgressions of the Laws of God they were not permitted to be present at and all this not for want of Right to be there in all Causes but for honesty and preservation of their Estates as it is in the Act of Parliament 11 Rich. 2. In the second place they did preserve their former Right as Peers which they still had though voluntarily absenting of themselves More solito interessendi considerandi tractandi ordinandi definiendi all things without exception Acted and Executed in that Parliament And in the Last place they protest against any loss of Right of being or Voting in Parliament that could befal them for this voluntary absenting of themselves at this time And where in this Protestation is there one word to prejudice their Successors or to authorize any Peer to Command his fellow Peer called thither by more Antient prescription of time and by the same Writs of Summons that himself is to withdraw and go out from this Common Council of the Kingdom Thirdly we do not certainly know what these matters were whereat Arch-Bishop Courtney conceived the Prelates neither could nor ought to be present These matters are left in loose and general words in that Protestation Some conceive indeed it was at the Condemnation of Tressilian Brambre the Lord Beauchamp and others See Antiquit. Brit. pag. 286. But the notes of Priviledges belonging to the Lords collected by Mr. Selden do with more reason a great deal assign this going forth of the Prelates to be occasioned by certain Appeals of Treason advanced in that Parliament by the Duke of Glocester against Alexander Arch-Bishop of York whom the Popish Canons of those times as you know exempted as a Sacred Person from the cognisance of King or Parliament and therefore the rest of the Bishops as the squares went then neither could nor ought to be present and parties to break upon the Exemptions Immunities and Priviledges of that great Prelate But the Earl of Strafford is not the Arch-Bishop but the President of York and to challenge any such Exemptions and Immunities from the cognisance of the King or Parliament amounts at this time to little less than Treason and therefore is thâ—â— Protestation very unseasonably urged to thrust out any Protestant Prelate from Voting in Parliament Lastly a Protestation in the Civil or Canon Law for the Law of this Land knoweth it not is but a Testation or Witnessing before-hand of a mans own mind or Opinion whereby we that Protest provide to save and preserve our own Right for the time to come It concludes no man besides our selves no Stranger to this Act no Heir no Successor but if it be admitted sticks as inherent in the Singular and individual Person until either the Party dies or the Protestation be withdrawn and revoked And therefore what is a Protestation made by William Courtney to William Laud or by Thomas Arundel to bind Thomas Morton And what one Rule in the Common Law of the Land in the journal Book or in the Records of the Town can be produced to exclude the Lords Spiritual from sitting and Voting in Causes of Blood They were sometimes by the great favour of the King the Lords and the Commons not otherwise permitted to absent themselves never before this time Commanded by the Lay-Lords to forbear their Votes in any Cause whatsoever that was agitated in Parliament So our Law-Books say that the Prelates by the Canon Law may make a Procurator in Parliament when a Peer is to be Tryed which is enough to shew their Right thereunto 10 Edward the 4 th fol. 6. B. placit 17. And that it is only the Canon-Law that inhibits them to Vote in Sanguinary Causes Stamford pleas of the Crown fol. 59. The Canon Law saith Stamford in a distinct and separated Notion and therefore not grown in his Age to any such Usance or Custom as made it Common Law or the Law of this Land Objection But the Bishop of Lincoln and Bishop Andrews before him did alwayes forbear to Vote in Causes of Blood and did voluntarily retire out of the House when this Cause of the Earl of Strafford came to any serious Agitation Neither putting this withdrawing of the Prelates to any Vote nor offering to enter any Protestation Answer That Bishop had no opportunity to enter Protestations which you shall never find to have been offered by the Prelates but in Plein Parliaments when the three Bodies are together And his voluntary withdrawing of himself he may live to Repent him of if he shall hereafter be questioned for the same at the Kings-Bench or elsewhere He was called thither by his Writ which he did not so easily Obtain to sit and not to withdraw himself from Parliament when he pleased Besides his extraordinary Obligations to the Lords at this time whom he could not offend without great suspicion of high Ingratitude He is the first Prelate that ever was fetched out of the Tower and brought to sit in Parliament by the Black-Rod And therefore we are not so much to consider that Prelates Opinions or Actions in this kind as the reasons he gave for the same which as I have heard them Rehearsed are to speak modestly of them no Demonstrations His first and main Reason was that of the Record and Statute of 11 Rich. the 2 d. That it is the Honesty of that Calling not to intermeddle in matters of Blood The French word Honesteté signifies decency and Comliness as though it were a Butcherly and loathsome matter to be a Judge or to do Right upon a Malefactor to Death or loss of Members But this is an Imaginary decency never known in Nature or Scripture as I said before but begotten by Ignorance in the dark Fog and Mists of Popery Such an Honesty of the Clergy it was to have a Shaven Crown to depend upon their Holy Father the Pope to Plead Exemptions and to refuse to Answer for Felonies in the Kings Courts c. All these Particulars were esteemed in those dayes the Honesteté of the Clergy and such an Honesty it was in the Prelates of England in the loose Reign of Rich. the
Kingdom and therefore they are abolished by the Statute of 25 Henry the 8 th 2. So are they by the same Statute because the Lords have declared That the Bishops Vote here by the Laws and Statute of this Realm And all Canons that Cross with these are there abolished 3. So are they by the same Statute as thwarting the Kings Prerogative to call Bishops by Summons to Vote in Parliament 4. So are they by the Vote in the House of Commons 21 Maij. 1641 Because they are not Confirmed by Act of Parliament 5. This Argument was deserted by Mr. Perpoint and confest to be but an Argumentum ad hominem Arg. IIII. Because the twenty four Bishops have a dependancy upon the Arch-Bishops and because of their Oath of Canonical obedience to them Answer 1. They have no dependancy upon the Arch-Bishops but in points of Appeal and Visitation only and owe them no Obedience but in these two points None at all in Parliament where they are Pares they are equals and as Bracton tels us Par in Parem non habet imperium What hath Canonical Obedience to do with a Vote in Parliament declared in this Bill to be no Ecclesiastical but a Secular Affair 2. This Argument reacheth not the two Arch-Bishops discharged in the Rubrick from this Oath and therefore is no Reason for the passing of this Bill Arg. V. Because they are but for their Lives and therefore are not fit to have Legislative Power over the Honours Inheritances Persons and Liberties of others Ans. 1. Bishops are not for their Lives only but for their Successors also in their Land and Honour As the Earls and Barons also are for their Successors in their Lands and Honours and holding their Lands in Fee-Simple may with as good reason Vote in the Honour Inheritance Persons and Liberties of others as others may and do in theirs 2. Many Peers have been Created for their Lives only and the Earl of Surrey for the Life of his Father who yet Voted in this House 3. The Knights Citizens and Burgesses are chosen for one Parliament only and yet use their Legislative Power nor will their being Elected difference their Case for the Lords use that Power in a greater eminency who are not Elected 4. A Burgess that hath a free-hold but for term of Life only may Vote and assent to a Law in Parliament 5. No such exception ever heard of in the Diets of Germany the Corteses of Spain or the three Estates in France where the Prelates Vote in all these points with the Nobility and the Commons Arg. VI. Because of Bishops dependancy and expectancy of Translations to places of greater profit Answ. 1. This Argument supposeth all Kings and all Bishops to be very faulty if they take the time of their Votes in Parliament from these dependancies and expectancies 2. This may be said of all the Kings great Officers of all the Noble Members of both Houses who may be conceived as well as Bishops to have their Expectancies and consequently to be deprived by this Reason of Voting in Parliament 3. This Argument reacheth not at the two Arch-Bishops and so falls short of the Votes which are to be taken away by this Bill Arg. VII That several Bishops have of late much encroached upon the Consciences and properties of the Subjects and they and their Successors will be much encouraged still to encroach and the Subjects will be much discouraged from Complaining against such encroachments if 26 of that Order be to be Judges upon these Complaints The same Reason extends to their Legislative Power in any Bill to pass for the regulation of their Power upon any emergent inconveniency by it Answ. 1. This Argument fights not against Bishops Votes in Parliament but against their Votes in Convocation where if any where they have encroached upon the Consciences and Properties of the Subject Nor yet at the Votes of such Bishops there as are not guilty of this Offence Nor need the Subject to be discouraged in Complaining against the like Grievance though 26 of that Order continue Judges for they shall not Vote as Judges in their own Cause when they are Legally Charged And if they should Vote what were that to the purpose when the Lay-Peers are still four to one The Bishops Assisted with a double Number of Mitred Abbots and Priors could not hinder the Laws made against the Court of Rome the Alien Cardinals and Prelates the Provisors the Suiters to the Popes Consistory under Edw. 3 d Rich. 2 d and Hen. 4 th Much more may those emergent exhorbitances of the Ecclesiastical Jurisdiction be soon curbed and redressed in this inequality of Votes between the Temporal and Spiritual Lords So as this Argument doth not so much hurt the Votes as it quails the Courage of the Bishops who may justly fear by this and by the next Argument that the taking away of their Votes is but a kind of forerunner to the abolishing of their Jurisdiction Arg. VIII Because the whole Number of them is interessed to maintain the Jurisdiction of Bishops which hath been found so grievous to the three Kingdoms that Scotland hath utterly abolished it and Multitudes in England and Ireland have Petitioned against it Answ. 1. This Argument is not against the Vote of Bishops but against Episcopacy it self which must be removed because Scotland hath done so and some in England and Ireland would have it so and yet peradventure ten times as great a Number as these desire the contrary 2. There will be found Peers enough in the Upper-House to reform any thing that is amiss in the Ecclesiastical Jurisdiction although the twenty six Prelates should be so wicked as to oppose it as there were found Peers enough in that Noble House to curb the Court of Rome and the Revenues of the Cardinals under Edw. 3 d to meet with the Provisors under Ric. 2 d to put all the Clergy into a Praemunire under Hen. 8 and to Reform the Religion 1º Elizabeth notwithstanding the Opposition of all the Bishops Arg. IX Because the Bishops being Lords of Parliament it setteth too great a distance betweâ—â— them and the rest of their Brethren in the Ministry which occasioneth pride in them discontent in others and disquiet in the Church Answ. This is an Argument from Moral Philosophy which affords no Demonstrations All are not proud that vote in Parliament nor discontented that are not so imployed This Argument fights only against their title of being Lords which is not the Question at this time FINIS
2 d. to absent themselves when they listed from this Assembly of the Estate contrary to the Kings Commands in the Writs of Summons and to the duties of their places as Peers of Parliament Howbeit they shewed more Courtesie or more Wit at the least than our present Prelates for they never offered to retire themselves in those dayes before their Protestation was benignly received and suffered to be entred upon the Parliament Roll by the King and the Lords and the House of Commons The Second Reason of this Prelate is of the same Nature and built upon a Medium of Sands which is soon undermined and washed away That although he doubted not of the Legality or Comliness of an Ecclesiastical Peer of the Kingdom of England to Vote in a Judgment of Blood as they do continually in the passing of all Appeals and Attainders in Parliament yet because it is not the practice of Prelates in other parts of the Christian World so to do he thought it better to avoid Scandal and the talk of other Nations That there being in the High Courts of Parliament and Star-Chamber Judges enough besides the Prelates they might without any prejudice to King or Countrey forbear Voting in these Judicatures Somewhat the rather because all our Bishops in England are Divines and Preachers of the Gospel and consequently of mercy rather than of Judgment Who never touch upon the sharpness of the Law unless it be to prepare mens hearts to receive the Comfort of the Gospel But this Prelate cannot but know that these Canons that Oppose the Kings Prerogative are taken away in the Kingdom of England by the Statute of 25 Henry the 8 th which they are not elsewhere And this Bishop if he have not forgot it was taught all this in the Case of Irregularity pursued against Arch-Bishop Abbots when this Bishop fearing the Censure of the Sorbonists in Paris refused to be Consecrated by Abbots unless he the said Abbots would procure himself absolved from that Irregularity which he had Contracted in killing a man by Chance-medly which he was enforced at the last to do this other Prelate being then in his rising and warm Blood and liking better of many good Benefices than of one mean Bishoprick refusing stiffly to be made Bishop of Lincoln upon any other Condition For Bishops making of Procurators in Causes of Blood IT doth not appear that Bishops ever made Protestations or withdrew in Cases of this Nature before the 11th nor after the 21 st of Rich. the 2 d. And yet the Attainders in the 11 th year are afterwards ratified by the Consent of the Lords Spiritual 11 Rich. 2. as you see by their Act of consent Rott 11 Rich. 2. no. 38. And the Printed Statutes And in his twenty first year they made Procurators first Thomas Percy in Writing 21 Rich. 2. no. 9. where you have his Proxie set down in Latine and then Scrop Earl of Worcester by word of mouth As the Roll is 21 Rich. 2. no. 50. where Scrop gives Sentence in the like Causes by vertue of that Procuration as the Roll saith And that this Proxie of the Prelates was not left with a Lay-man for the dispatch of other Civil Causes only but for Judgments of Blood also it is appealed to all Histories and Law-Books that have been Written from that time to this present day Thomas of Walsingham Lived under Henry the 6 th and he saith that it was exacted of the Prelates for it was not their own seeking as you may see upon the Rolls that because they could not be present in Judgments of Blood their Procurator upon the like occasion might assent unto such a Business Walsing in Rich. 2. pag. 354. So likewise in his Hypodigma Neustria pag. 550. Littleton Lived under Edward the 4 th and he pronounceth for himself and all his fellow Judges That the Lords Spiritual who cannot consent to the Death of a man shall make a Procurator in the Parliament before the Steward is to proceed to gather Votes c. The Year-Book 10 Ed. the 4 th no. 17. Stamford Lived under Henry the 8th Edward the 6 th Queen Mary And he saith clearly That when a Peer is Indicted of Treason or Felonie in Parliament the Lords Spiritual shall make a Procurator for them Stam. Pleas of the Crown lib. 3. pag. 153. Mr. John Selden Lives still than whom peradventure there Lived not an abler Lawyer in both the Laws from the 21 st of Richard the 2 d to this day And he saith that the Clergy by reason of the Canon Laws not the Common Laws absented themselves sometimes from such Judgments and committed their whole Interest for the time to a Lay-Proxie Tit. of Honour 2 d part pag. 704. Lastly for the Canon-Law in this point it is not only dispensed withal by the Kings Summons to his Prelates but by the Lords themselves in this very Cause of the Earl of Strafford by their examining of the two Arch-Bishops and a Bishop for Witnesses in the said Cause which is no less forbidden in the Canon Law than to Judge in Causes of Blood Lyndwood Fol. 146. pag. 2. When the effect of this Paper was opened and the Records and all the Books produced by the Bishop of Lincoln who had been in the Tower to search the said Records the Lords declared and ordered that they would use no Proxies of their own in this Tryal with a Salvo of their Right against any other time And thereupon the said Bishop finding the Inclination of the House and Timidity of his Brethren offered the like Declaration with the like Salvo in point of Right for the Lords the Bishops which was accepted of and entered into the Book the Bishop of Lincoln dictating the same THE Bishop of Lincoln's ARGUMENTS That Bishops ought not to Vote in Parliament With the Answers thereunto Arg. I. BEcause it is a very great hindrance to the Exercise of their Ministerial Function Answer 1. It is not so much hindrance as their conveneing in General Councils Synods Convocations Assemblies Classes and the like in all the Churches Reformed or otherwise 2. It is propter majus bonum Ecclesiae 3. The Apostles unnecessarily put themselves to more hindrances to work for their livelyhood Acts 20.24 1 Thes. 2.9 2 Thes. 3.8 Arg. II. Because they do vow and undertake at their Ordination when they enter into Holy Orders that they will give themselves wholly to that Vocation Answer 1. This Vow and undertaking in Ministers Ordination is quite mistaken the words are in the Bishops exhortation not in the Ministers Answer 2. The Bishop hopes they will give themselves wholly to that and not to any other Trade or Vocation 3. Wholly in a Moral and not in a Mathematical sense that will admit of no Latitude Arg. III. Because Councils and Canons in several Ages do forbid them to meddle in Secular Affairs Answer 1. Councils and Canons against Bishops Votes in Parliament were never in use in this