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A29942 The clergy vindicated, or, The rights and privileges that belong to them, asserted according to the laws of England more particularly, touching the sitting of bishops in Parliament, and their making proxies in capital cases. Brydall, John, b. 1635? 1679 (1679) Wing B5255; ESTC R302 30,705 36

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f. 97. a 134. a. 344. a. Co. 2. Inst. f. 3. Stat. 25. E. 1. Carlisle that all Arch-Bishops and Bishops of England have been founded by the Kings of England and therefore it hath been declared in Parliament that the Holy Church of England was founded in the State of Prelacy within this Realm by the King and his Progenitors But here then may be queried who were the first Founders of the Bishopricks in Wales It is answered 10. H 4.6 b. Co. Litt. 97. ●●o 2. Inst. f. 195. On the Stat. of West 1. c. 17. That the Bishopricks in Wales were founded by the Princes of Wales and the Principality of Wales was holden of the King of England as of his Crown and when the Prince of Wales committed Treason Rebellion c. the Principality was forfeited and the Patronages of the Bishops annexed to the Crown of England So as the King is to have Pensions for his Chaplains and Corodies for his Vadelers of them as of Bishops founded by himself 2. To whom the Custody of the Spiritualties and Temporalties of Bishops do appertain Sede Vacante Co. 2. Inst 15. West 1. c 21. Magna Charta 5. Prerog Regis c. 14. Rolls Abr. 2. p. f. 223. THe Custody of the Temporalties of every Arch-Bishop and Bishop says Coke within the Realm and of such Abbies and Priories as were of the King's Foundation after the same became void belonged to the King during the Vacation thereof by his Prerogative For as the Spiritualties belonged during that time to the Dean and Chapter de Communi Jure or to some other Ecclesiastical Person by Prescription or Composition so the Temporalties came to the King as Founder And this doth belong to the King being Patronus Protector Ecclesiae in so high a Prerogative incident to his Crown as no Subject can claim the Temporalties of an Arch-Bishop or Bishop when they fall by Grant or Prescription 3. How Bishops were and how now made IT is apparented by our Books of Law and History Co. Lit. f. 134. a. 344. a. Co. Lib. 3 Dean and Chapt. of Norwich 's case Rolls Rep. 2. part f. 102. Davy's Rep. f. 46. a. de Capitulariter congregatis that at the first all the Bishopricks in England were Donative per Traditionem Baculi i. e. the Crosier which was the Pastoral Staff and Annuli the Ring whereby he was married to the Church King Henry the first being requested by the Bishop of Rome to make them elective refused it But King John by his Charter bearing Date Quinto Junti Anno Decimo Septimo granted that the Bishopricks should be Eligible which afterwards was confirmed by divers Acts of Parliament And afterward the manner and order as well of Election of Arch-Bishops and Bishops as for the Confirmation of the Election and Consecration is enacted and expressed in the Statute of the Twenty fifth of Henry the Eighth But by the Statute of the thirty first of Henry the Eighth and the first of Edward the Sixth they were made Donative by the King's Letters Patents Both which Statutes are repealed and the Statute of the twenty fifth of Henry the Eighth doth yet remain in full force and effect 4. Their Jurisdiction what and whence derived AS to the Jurisdiction and Authority that appertains to Bishops are considerable two Particulars 1. Whence this Jurisdiction is derived 2. The Extent and Subject Matters of this Jurisdiction 1. Whence derived The King of England is and of Right always was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his Dominions And this is evident our by Books The Right Reverend Prelate Matthew Parker Arch-Bishop of Canterbury a man very expert in matters of Antiquity affirms in his Book set forth in Latin Anno Domini Co. lib. 9. Hensloes Case 1573. Quod Rex Angliae olim erat Conciliorum Ecclesiasticorum praeses vindex temeritatis Romanae Propugnator Religionis nec ullam babebant Episcopi Authoritatem praeter eam quam a Rege acceptam referebant Jus testamenti probandi non habebant Administrationis potestatem cuique delegare non poterant It was resolved in the Tryal touching Legitimation Davy's Reports f. 51. b. 52. a. and Bastardy that although all Matrimonial Causes have been a long time determinable in the Ecclesiastical Courts and are now properly within the Jurisdiction and Cognisance of the Clergy Vide Davy's Reports Le Case de Premunire 97. b. 98. a. Yet Ab Initio non fuit sic For as well Causes of Matrimony as Causes Testamentary were Civil Causes and apertained to the Jurisdiction of the Civil Magistrate as it is well known to all Civilians until the Christian Emperors and Kings for the honouring of Prelates of the Clergy have granted or allowed to them the Cognizance and Jurisdiction in those Cases And therefore the Kings of England although they have allowed the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertained to their Cognizance yet by the Rules of the Common Law he hath a Superintendency upon their proceeding with power of Direction when and how they shall proceed and of Restraint and Correction if they proceed not duely and orderly in many Cases as it is manifested by the Writs of several natures directed to the Bishops whereby the King commands them to certifie Bastardy Excommunication Profession Accouplement in Loyal Matrimony Of Admitting Clerks De Cautione Admittenda c. And also by Writs of Prohibition Consultation and Attachments for Prohibition 2. What is their Jurisdiction For the deciding of Controversies says Sir Edward Coke and distribution of Justice there be two distinct Jurisdictions The one Secular and General for that it is guided by the common and general Law of the Realm Co. Lit. f. 96. a. The other Ecclesiastical limited to certain spiritual and particular Cases and the Court wherein the Causes are handled is called Forum Ecclesiasticum in which the Bishops are Judges and immediate Officers to the King's Courts of Justice in Causes Ecclesiastical Now the Spiritual or Ecclesiastical Causes accarding to the usage and custom of England are Blasphemy Apostacy from Christianity Heresies Schisms Holy Orders Admissions Institution of Clerks Celebration of Divine Service Rights of Matrimony Divorces General Bastardy Subtraction and Right of Tithes Oblations Obventions Dilapidations Excommunication Reparation of Churches Probate of Testaments Administrations and Accounts upon the same Symony Incest Fornications Adulteries Sollicitation of Chastity Pensions Procurations Appeals in Ecclesiastical Cases Commutation of Penance All which are determined by Ecclesiastical Judges That the Reader may the better know the Extent and Latitude of the Episcopal Jurisdiction and Authority let him take with him these Rules that I have met withal in our Books 1. Rule That where the Right is Spiritual Co. Lit. 96 a. and the Remedy therefore only by the Ecclesiastical Law the Cognisance thereof doth appertain to the
issue and success when they are grounded upon the fear of God the Root and Beginning of all true Wisdom And therefore our wise and Religious Ancestors called to their General Council or Witten A●mote or Court of Wisdom as they called it those chief and principal Persons of the Clergy which by their Place and Profession by their Gravities Learning and Wisdom might best advise what was the Law of God's acceptable Will and Pleasure that they might frame their Humane Laws answerable or at least not contrary and repugnant thereunto To Second Judge Dodridge in the Probation of our Bishops sitting in the Assembly of States or Wise Men before the Conquest I shall offer these Authorities following At a Parliament holden by King Inas Anno Domini 727. the Statutes began thus Ego Inas Dei beneficio Rex suasu Instituto Cenredi patris mei Hedda Erkenwaldi Episcoporum meorum omnium Senatorum meorum c. The Conclusion of the Parliament holden Ann. 940. by King Athelstan at Grately was thus All this was enacted in the great Synod whereat was the Arch-Bishop Wolfehelme with all the Noble Men and Wise men which King Athelstan called together Co. Lit. 110. a. Co. 2. Inst 268. King Edovard and Phlegmond Arch-Bishop of Canterbury assembled a great Council of Bishops and other faithful People c. Matth. Westm Lib. 1. sub Ann. 905. Ingulphus who died before 1109. saith Rex Eldvedus convocavit Magnates Episcopos Proceres Optimates ad tractandum de publicis negotiis Regni Co. 4. Inst f. 3. The Reader may see more of this matter in the Preface of the Ninth Part of Coke's Reports 13. Their Right of making Proxies whensoever Question is had of the Attainder of any Peer IT appears by our Books of Law that ever when Question is had of any Attainder of any Peer in Parliament they depart the Higher House and make their Procurators For by the Decrees of the Church they may not be Judges of Life and Death In the tenth Year of Edward the Fourth 10. E. 4.6 b. it is said by Littleton Quantum Seignior est indict c. Ceo serra mand en le Parliament la le Seignior Seneschall d'Anglete'rre luy mitta as Respons il dirra de Rieu culpable ceo serra trie per pares suos c. donques les Seignieurs Spirituels que ne poient consent al mort de home ferrount un Procurator en le Parliament When a Lord is indicted it shall be returned into Parliament and there the Steward of England shall put him to answer and he shall say Not Guilty and this shall be tried by his Peers and then the Lords Spiritual who may not consent to the death of any Man shall make their Procurators in Parliament Stamford Lib. 3. f. 153. A B. in his Pleas of the Crown informeth us Que Evesque ne ount lieu en Parliament en Respect de lour nobilitie mes en respect de lour Possession _____ L'antient Baronies annexes a lour Dignities And he further says that a Peer indicted of Treason or Felony may if the King please be arraigned of it in Parliament and then the Lords Spiritual shall make a Procurator for them Eo que per le Canonicall Leges ils mesmes ne doint condemner asuma Mort. Mr. Justice Dodridge on the Constitution of Clarenden of Henry the Second before-mentioned tells us thus Here we see says he the Presence of the Bishops in the Parliament in respect of their Baronies Quousque perveniatur ad diminutionem c. For ever unto our times when Question is had of any Attainder of any Peer in Parliament they depart the Higher House and make their Procurators Vide His Treatise of the Barons of the Realm A Peer of the Realm says Coke being indicted of Treason or Felony Co. 3 Inst f. ●1 or of Misprision and duly transmitted to the Lords may be arraigned thereof in the Upper House of Parliament but then there must be appointed a Steward of England who shall put him to answer And if he plead Not Guilty he shall be tryed per Pares suos and then the Lords Spiritual must withdraw and make their Proxies Again says Coke A Peer of the Realm being indicted of Treason Co. 4. Inst ● or Felony or Misprision of Treason may be arraigned thereof in Parliament a Lord Steward being appointed and then the Lords Spiritual shall make a Procurator for them By these four Authors Littleton Stamford Dodridge and Coke on whose Sleeve I should as soon pin my Faith as upon any four Lawyers famous in their Profession since my first Admittance into an Inns of Court It is asserted that the Prelates upon their withdrawing in Capital Cases have a Right to make their Procurators They depart the House not by vertue of any Rule at the Common Law but in vertue of an old Ecclesiastical Canon They make their Proxies not as they are Spiritual Persons but in respect of their Temporal Baronies To be short If I should hear that the Opinion of these four most eminent Lawyers is over-ruled by our Sages by vertue of that Spell called Error Temporis it will cast me undoubtedly not into an Admiration but an Extasie 14. Statutes where made without them ALthough the Bishops have a Right of sitting in Parliament and ought always to be called to that great Council yet Statutes have been good without their Lordships And that in three several Cases 1. If they voluntarily absent themselves then may the King the Nobles and Commons make an Act of Parliament without them As where any Offender is to be attainted of High Treason or Felony and the Bishops absent themselves and the Act proceed the Act is good and perfect 2. If they be present and refuse to give any Voices and the Act proceed the Act of Parliament is good without them 3. Where the Voices in Parliament ought to be absolute either in the Affirmative or Negative and they give their Voices with Limitation or Condition and the Act proceeds the Act is good for their Conditional Voices are no Voices Examples for these Particulars the Reader may find in Coke's 2. Inst f. 585 588. Note Albeit Statutes have been made without the Bishops yet they are accounted one of the Estates of Parliament as it appears by my Lord Coke in the very beginning of the fourth Part of his Institutes But it is pretended by some that they are not for if they were then should they discuss Matters separately by themselves from the other Lords as the Commons now do I deny the Consequence for our Books tell us That at the first both Houses sate together Pray how many Estates were they then if it be answered that there were but two why then this shews that two Estates may discuss Matters together both in one and the same House 15. Their Privileges as they are Lords of Parliament THe Bishops in the Right of their