Fortunes to their Children but what they themselves could deserve viz. Hate and Infamy All Usurpation and Encroachment of Power is to be opposed where it can be lawfully as the greatest Mischief and the Ministers to the Designs hated and detested as the most pernicious and loathsome Vermine CHHP. XV. BUt to return agreable to this Policy of Sovereign Princes who had the Donation of Bishopricks of advancing Bishops to the highest secular Dignities and Trust William the Conqueror did create Bishops into Barons and exacted the Services and Counsells of Barons in the Great Council of the Kingdom by putting their Lands under Tenure by Barony he gave them no new Endowments but as a Conqueror he confirmed their Ancient Possessions under a new reserv'd Tenure and annex'd to their Order a Secular Honor a successive Baronage Since the Conquerour the title of Baron took the place of that of Thane which was likewise a Feudal Honour in the Saxons time By William the Conquerour Baronies were feudal and in congruity to the State of the Lay Nobles he made the Bishops feudal Barons for there was no other than feudal Nobility at that time It will not be amiss nor time mispent here to give a short account of the Government in the Conquerours time of the Baronage by him introduced and the policy thereof and of the change made in the Baronage of England in after time Because from thence we must derive the Bishops Right now in question which is included and virtually contained in their Right of Baronage Hereby it will appear that the Bishops were of the Barones majores and of the Barones majores the first in Dignity that they became feudal Barons in the Conquerour's time and when the reason of our Baronage changed and no man continued a Baron ratione tenurae it cannot with reason be said that the Bishops are Barons onely for the sake of their Lands which our Adversaries do insist upon for that they think it is an abatement to the Honour of Peerage and a prejudice to their Right in question but because it has been said before by men of Authority in the Law and grown up to be a vulgar error we will now discharge the mistake by affixing here the History and Reason of the change It was the policy of the first William for some are so critical they will not call him Conquerour to create new Tenures upon all the great Possessions of the Realm and impose upon the principal men to hold their Lands of him in capite under such Services that were necessary in peace and war for State and Justice and by putting all the considerable men of the Realm under Oaths of Fealty incident to those Tenures besides the Oaths of Allegeance he provided for the establishment of his Conquest or his possession of the Crown without title The principal men of the Realm both Ecclesiastical and Lay hereby were not onely obliged to support but to become part of the Government and were obliged to be Ministers of Justice and also Members of the great Council of the Kingdom or Parliament which was now to be made up principally of his Dependents by which he changed the constitution of the great Council in the Saxons times in the balance of that equal sort of Government the consequent mischiefs whereof this Kingdom laboured under untill we recovered it again by an equal representative of the Commons in Parliament in the time of King Henry the Third The power of the Baronage proved equally oppressive to the people and came in that time to be reduced irreverent to the Crown By this policy the Conquerour intended to establish his Conquest to secure to himself and his posterity the Imperial Crown of England imagining that otherwise he should have been but a precarious King He had now turn'd the Kingdom upon the matter into one great Mannor and kept his Courts called the Curia Regis in the nature of a Sovereign Court Baron now become more frequented and solemn than that Court was before the Conquest thrice in every Year at stated Times and Places viz. at Easter at Winchester at Whitsuntide at Westminster and at Christmas at Gloucester at these times and places all his Tenants which were all the considerable Free-holders of England attended of course and upon a General Summons at any other time or place appointed by the King as his Affairs did require they were bound likewise to attend In these Courts the Suitors swore Fealty did renew and confirm their Obligations to the Crown and the King became more assured of their Allegiance by their Personal Attendance and by his Royal Entertainments of them at such times In these Courts they recognized their own Services and the Rights of the King their Lord and assessed Aids and Estuage Prestations due to the Crown by their Tenures upon themselves to which in general they were obliged by their Tenures In these Conventions the Right of the Suitors the King's Tenants were adjudged as Private Lords had Judgment of the Right of Lands in pretence held of them in Fee in their several Manors as they have to this day But if Right was not done by the Lord the Cause was to be removed to this Curia Regis the King being Lord Paramount of whom all Estates mediately or immediately were held Which appears by the Form of the Writ of Right now in use which we will transcribe N. B. precipimus tibi quod sine dilatione plenum Rectum teneas A. de B. de uno Messuagio L. in I quae clamat tenere de te per liberum Servitium unius denarii per annum pro omni servitio quod W. de T. ei deforciat nisi feceris Vicecomes faciatne amplius inde Clamorem audiamus pro defectu Recti The Common Pleas was not then a Court and at this time the Appeal and resort to the King was in this Court if Justice was not done by the Lord or Sheriff So that the greatest part of the Justice of the Nation was administred in those Assemblies But it must not be understood that this vast Convention was a Court of Judicature for every Cause neither that it was formally a Parliament without some farther Act of the King for erecting that Convention into the great Council of the Nation But in this Curia Regis they were obliged to answer the King's Writs of Summons Writs of Commission and obey his Appointments in the Ordinary Administration of Justice in which the Capitalis Justiciarius or Justitia was to preside That this was not a Judicature the vast numbers of those that made it the inequality of the Persons considered under the Common Reason of being Tenants in Capite and Barons whereby they became indifferently members of the Curia Regis besides the neglect that must necessarily be presumed in the greatest part of such a Body to the business of Jurisdiction and judging of Rights without particular Designation thereto do sufficiently argue and evince But
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
Authority or weight enough to perswade the contrary or an alteration therein notwithstanding that complaint which he tells us was made in the 45 of E. 3. fol. by the two Houses Counts Barons and Commons to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per cet grant mischiefs dammages sont avenuz en temps passe pluis purroit eschire en temps avenir al disherison de la Coronne grant prejudice du Royalme Whereby great mischiefs and damages have happened in times past and more may fall out in time to come to the disherison of the Crown and great prejudice to the Realm And therefore they humbly pray the King that he would imploy Laymen This they had too much reason to desire then when the Pope had advanced his Authority over them and put them under Oaths of Canonical obedience which rendred them less fit to be intrusted in the Government of this Kingdom who were become Subjects of another Empire usurping continually upon us which will never be our Case again if the Bishops can help it CHAP. III. ANd now we proceed to the Precedents of which the Octavo Book principally consists which seem as that Author and the other in Folio would have it to be not only a discontinuance of the Right of the Bishops to judge in Capital Causes but an argumentative proof that they never had any because it can as they say be never proved to be otherwise Immemorial time I confess is a great evidence of the right whether In non user or user and a fair reason to allow or deny the pretence and therefore we will now consider the Precedents As for the argumentative and discoursive parts of those books they will fall in to be answered by way of Objection when we are discoursing and proving the affirmative part of the Question and will best be reproved by being placed near the light of our reasons for establishing the Right of the Prelates If we do not give some satisfaction to these Precedents whatever we shall say I know can signifie no more than an Argument to prove a thing not true which is possible de facto testified by unexceptionable witnesses for such the Precedents will be taken until exceptions are made to their Testimony The Precedents produced by the two Authors are mostly the same only the Octavo hath more than what the Folio Book hath recited The first case that the Octavo produceth against the Lords Spiritual their Right of being Judges in Parliament in Capital Causes is that of Roger Mortimer Earl of March Simon Beresford and others who were no Peers and yet tryed in Parliament and no Bishops present and we agree it probable for his reason because there is mention made of Counts Barons and Peers and Peers being named after Barons could not comprehend the Bishops And because we think it reasonable when the orders of that House are particularly enumerated that the order omitted should be intended absent but we will not allow but that Peers is and so is Grants comprehensive of Bishops Nor will we when the entry is General intend the Bishops absent except he cannot otherwise prove them absent which we mention in the entry once for all as just and common measures between us in this dispute It will appear true what we affirm of the words Peers and Grants by what follows And if we should not insist upon their being present when nothing appears to the contrary we should do wrong to the Cause But to come to the consideration of this Precedent Is this a just Precedent Is not Magna Charta hereby violated Are not the proceedings altogether illegal Here are Commoners tryed by Peers in Parliament It is well known that the high displeasure of the King was concerned and that he did interpose with a plenitude of Power in this particular case against the fundamental constitutions of the Government the greatest crime of this Earl was too much familiarity with the Kings Mother Indignation and Revenge and not Justice formed the Process It was proceeded to condemn him Judicio Zeli upon pretence of the Notoriety of the fact Sir Robert Cotton in his abridgment tells us Anno 4. Ed. 3. That the King charged the Peers who as Judges of the Land by the Kings assent adjudged that the said Roger as a Traytor should be drawn and hanged The Bishops were not present certainly they were none of the Judges that gave Judgment as the King pronounced without Cognisance of the Cause The King had more Honour for their Order than to call then to such Drudgery and service of the Crown The iniquity of the sentence appears by the reversal thereof in Parliament 25 Ed. 3. in which the Original Record is recited Sir Robert Cotton in his Abridgment tells us That this Earl being condemned of certain points whereof he deserved commendation and for other altogether untrue surmises there was a Bill brought into the Lords House for the reversal of the Judgment and it was reverst by Act of Parliament indeed it could not be otherways reverst for no Court can judicially reverse their own Judgment for Error in Law and Judgment in the Lords House being the dernier Resort cannot be repealed but undone it may be by themselves in their legislative Capacity Here saith the Octavo the Bishops were not present at the passing of that Bill but yet the Octavo Gentleman will not pretend that the Bishops are to be excluded in any Acts of Legislation Why therefore was he so willing to impose upon the people so falsely and unrighteously and to produce this as a Precedent against the Bishops Right of Session in matters of that Nature by himself recognized There is nothing can excuse him herein for he is certainly self-condemned of undue Art in thiâ— matter In 20 R. 2. the Case of Sir Thomas Haxey happen'd which the Octavo book page 20 produceth against us He was forsooth condemned in Parliament for that he had preferred a Bill in the House of Commons for regulating the outragious Expences of the Kings House particularly of Bishops and Ladies Haxey was for this tryed and condemned to death for it in Parliament And here appears to be no Bishops and there ought not to have been any for these reasons First that the Bishops were the parties wronged and therefore could not in any fitness give sentence But Secondly if that was not in the Case that that caus'd the process was Royall anger upon a great faction of State in which I believe the Bishops were not engaged made for deposing of Rich. the 2d that was understood by the King to be in acting and promoted by Sir Thomas Haxey by his Bill It was this made the sentence altogether abhorrent from legal justice in matter and form Here was a Tryall of a Commoner by Peers a matter made Treason that did participate nothing of the nature of Treason But the discreet Gentleman
Law was publickly professed in England before the end of the 12th Century for Mat. Paris tells us of a Monk of Evesham Anno Dom. 1196. that suo tempore eorum quos Decretistas Legistas appellant peritissimus habebatur earum etiam facultatum auditores quamplurimos instituerat and from that time the study of the Caesarean and Pontificial Law did flourish amongst us until the beginning of E. 3. But in all that time saith Mr. Selden in his Fleta gens ipsa Anglicana ac qui in judiciis praeerant morum patriorum viz. Juris Communis Angliae per intervallum illud tenacissimi fuere A remarkable instance we have of this Nations steady aversion from admitting here either the Civil or Canon Law in the Parliament of Merton which rejected a Bill for Legitimation of Children born before marriage in Concubinate in these Terms Nolumus leges Angliae mutari meaning that they would not make Laws conformable to the Civil or Canon Law The great Policy that the Popes used to effect their Ambitious design of making themselves Monarchs of the Christian World were The assuming to themselves the entire rule and Government of Religion and endeavouring to make every where the Bishops and the whole Clergy together with the Regulars dependant upon them by pretending them to be exempt from all Civil Authority and Jurisdiction and by interdicting to them the exercise of any Civil Authority and shutting them out from all intromissions into the Civil Government and from any interest or dependance thereupon So far as he prevailed in these designs he acquired an Imperium in Imperio and if besides these he could have fixt a Spiritual handle to the Temporal Sword and have got the Government of secular affairs in ordine ad spiritualia his design had been compleated and he had arrived to a more absolute and extensive Empire than that of the Roman Caesars To these purposes the Canon Law provided that the Ecclesiasticks were neither to exercise nor be subject to any Civil Authority But this policy of the Pope had no success in England the endeavours of the Papalins herein met with constant opposition and at last they were made desperate by the Assise of Clarendon where it was declared and enacted accordingly agreeable to the Avitae Consuetudines Regni that the Bishops should be retained and continue to be a part of the Government and exercise Jurisdiction in all Causes in the Kings Court as other Barons as is before observed and that the Clergy should stand submitted to the Jurisdiction of the Kings Courts For this purpose it was also in that Parliament enacted as followeth Si controversia emerserit inter Laicos vel Laicos Clericos in Curia Domini Regis tractetur determinetur and also quod clerici rectati accusati de quacunque re summoniti à Justitia Regis venient in Curiam Domini Regis responsuri ibidem c. And so far were the Bishops and Clergy from observing that part of the Canon Law that was to detrude them from all secular Authority and Jurisdiction that they were from time to time Chancellors Treasurers Keepers of the Privy Seal and Judges and while that Ancient Office continued of Capitalis Justiciarius Angliae to whom was committed the Justice of the Kingdom who were called Custodes Regni Vice-Domini Angliae and sometimes the abstract Justitia He did preside in the Curia Regis which Office was afterwards divided for there were Justitiarii Angliae Boreales Justitiarii Angliae Australes this Office was often executed by Bishops as you may see in Sir Hen. Spelmans Glossary in the word Justitiarius Bishops and Church-men administred the greatest Offices of State and Justice this was matter of Envy to the Temporal Lords and they complain'd in Parliament 45 E. 3. as is before observed That the Government of the Kingdom had been a long time in the hand of the Clergy Mr. Selden in his Fleta tells us that in the times before and after the Assise of Clarendon Mos fuit Judices Regios ex genere hieratico veluti Episcopis Abbatibus Decanis id genus aliis constituendi And it is provided by 28 E. 1. Cap. 3. That if a Clergy-man was a Judge of Assise another should be joyned in Commission with him to deliver the Goals which was to the end that the Ecclesiastical Judge might use that liberty which was indulged to him by the Assise of Clarendon of not pronouncing the Sentence for it must be observed that by that Statute a Clergy-man might be a Judge in a Goal-delivery for that a Laick was by the provision of that Statute to be join'd to him in Commission and Pleas of the Crown are to be found purporting them to be held before two Judges whereof one a Clerk after this Law which could not possibly have been if the Clerk had not been in Commission Besides for after Ages it is well known that all the great Officers and Ministers of State and Justice have been always intrusted with the conservancy of the peace are in Commissions of the peace and Commissioners of Oyer and Terminer for judging capital Causes so that the constant practice in all times as well as the express declaration of the Assise of Clarendon doth assure us that the Canon Law that prohibits Clergy-men being Judges in capital Causes was never received here or became the common Law of England Besides what regard our Clergy had of the Canon Law what opinion they had of the Right in question and how far the Laws did intend to prohibit the exercise of it And that such right was used and exercised will appear by the Canon of Toledo Concil Toletan 11. Cap. 6. fo 553. and the Canon of Lanfrank Spelmans Concil 2 vol. fol. 11. these were made before the Assise of Clarendon That of Toledo is this His à quibus Domini Sacramenta tractanda sunt judicium sanguinis agitare non licet ideo magnopere talium excessibus prohibendum est ne qui praesumptionis motibus agitati aut quod morte plectendum est sententia propria judicandi mant aut truncationes quaslibet membrorum quibuslibet personis aut per se inferant aut inferendas precipiant This being a Foreign Council this Canon carries not with it the Authority of a Canon with us only we may observe whatever the Opinion of that Council was that it was not convenient for licet can have no ocher sence here for Clergy-men agitare judicium Sanguinis Yet this Canon prohibits only the pronouncing the Sentence by themselves or others I am sure that by a positive Law as this Canon must be so far as it participates of the nature of a Law nothing becomes unlawful but what is forbidden whatever the reason be of that Prohibition That of Lanfrank follows thus Vt nullus Episcopus vel Abbas seu quilibet ex Clero hominem occidendum vel membris truncandam judicet vel judicantibus suae authoritatis favorem
AN ARGUMENT FOR THE Bishops Right In Judging in CAPITAL CAUSES IN PARLIAMENT For their RIGHT unalterable to that Place in the GOVERNMENT that they now enjoy With several Observations upon the Change of our English Government since the Conquest To which is added a Postscript being a Letter to a Friend for Vindicating the Clergy and rectifying some mistakes that are mischievous and dangerous to our Government and Religion By THO. HUNT Esquire In Turbas Discordias pessimo cuique plurima vis Pax quies bonis artibus indigent Tacit. Hist l. 4. LONDON Printed for Thomas Fox at the Angel and Star in Westminster-Hall 1682. THE PREFACE THis Argument for the Bishops Right of judging in Capital Causes in Parliament for their being one of the three States of the Realm and that their Right is unalterable by Law was written above two years since and prepared for the Press time enough to be made publick against an expected Session of Parliament in October 1679. But the Parliament being prorogued from that time until January the Author was willing to respite the Publication to advise with his second thoughts and again to review what he had written in a case of this weight and moment and the rather for that he had but a short time allowed him for its composure Since that there has been published by an excellent person a Book in vindication of their Right of judging called The Grand Question sufficient to give satisfaction if the world were just and impartial and disposed to make right Judgment in the Cause It may well be reasonably expected that Christian People should not be only just but favourable to any pretence of a Christian Bishop to any secular trust that does not lessen the dignity of the Office and seems unworthy of his Character which as it exempts him from mean and sordid offices and affairs of an inferior and more private concernment so it commends him to the Government of matters of a more publick and universal influence such as require the most improved wisdom and learning and a noble virtue It seems to me most unreasonable that those that are the great and principal Expounders of the Christian Law which gives Law to all Laws and instructs men to discharge their several Offices both publick and private that those who are the great Guides of our Consciences and by whose Directions and Institutions we form our Judgments in the greatest intricacies and doubts that perplex humane affairs that the Guides of a Religion which is formed all to life and practice for the making Governments equal and private men good and obedient which is little else but an Obligation to Justice and Charity and principally pursues that which is the end design and whole business of Government I say it seems to me most absurd and incongruous that this Order of men at any time ought to be shut out of that Council and Court where Laws are made and Rules given for the Government of a Christian Common-wealth where the most difficult and intricate causes are to be heard and determined and where an unlimited power remains of censuring the Actions of the greatest men and the administration of publick affairs and the safety of the Nation are consulted which cannot be long preserved but by pursuing the dictates of a wise Religion Such is the Christian Religion if any other we should dishonour it by comparing it to the best Paganism became despicable and abandoned soon after its publication Yet Tully in his Oration ad Pontifices magnifies the wisdom of the Romans as Divine in advancing the Pagan Priests to the highest places in their Common-wealth by which the Common-wealth he saith was preserved Cum multa Divinitùs Pontifices à Majoribus nostris inventa atque instituta sunt tum nihil praeclarius quam quod vos eosdem Religionibus Deorum immortalium summae Reipublicae praeesse voluerunt Vt amplissimi clarissimi Cives Rempublicam bene gerendo Religiones sapientèr interpretando Rempublicam conservarent Such an Opinion more duly and with better reason our Ancestors conceived of the advantage that might accrue to the Nation by advancing the Prelates of the Church into the Civil Government Thereupon they have made them necessary to it and framed the Government in a sort to depend upon them and left it scarce able to maintain it self without them in its present constitution The Temporal Barons will soon find themselves unable to maintain their own dignity and to sustain that province that is allotted to them in the Government unassisted with the Interest and authority of the Prelates the Spiritual Barons a mighty Power if they be as they ought to be of venerable esteem with the people If the present Bishops are not all so happy as to possess such an esteem we know what cause to assign for the same viz. the unhappy Schism that hath too long continued in our Church hath for its own Justification after they are almost sham'd out of the scruples which first caused the separation sought occasions against the Persons of the Bishops and rather than they will want faults to complain of the Order it self must be loaded with all the faults of all the Bishops in all Countries and Ages and they adventure now to disparage their persons for the sake of their office But sure it is a folly that can fall upon no people but such who by the evils they feel or fear are vext out of their understanding to suppress any Office that is necessary to any Common-wealth in any form of Government for the faults of the Officers for the time being But too true it is that a form of Government while established may be so utterly misunderstood by the most when it is not or not duly administred that a true and exact description of it and a discourse of the Offices and Functions of the several parts of the Government would be taken by them for some Vtopian Common wealth or no better please them than a description of the strength of an impregnable Fort once the Security of the Nation when invested by the Enemy A Lecture of a learned Physician of the Vsus Partium will not give sight to a blind Eye nor motion to a withered hand and no body is warmed or comforted by a painted fire But God be thanked we are not yet destitute of the benefits of a good Government Another cause I apprehend may much lessen the Bishops in the esteem of the People and make them want that Reputation that is necessary to every Governour in proportion to his Charge is their manner of promotion The Ministers of State whose business it ought to be to understand the true Characters of men that are preferred to that Office are often mistaken however in this Course they seem not to be promoted for their own Merit but at the pleasure of the great Courtiers and at best the Ministers of State can do no more than recommend to
it not be with as much fairness concluded that the Bishops were present because the addition of Temporal is not made to Seigniors and Grants in the said Cases of Sir Ralph Ferrers and Sir Wil. Thorp as it can be that they were absent in the hearing of the said Cases because the word Prelate or Bishop is not in those Entries expressed If he will be just and change the Tables He must yield us the Argument for he knows that there is no establishment in the Modus tenendi Parliamentum directing the Forms of Entries or any solemnes formulae whose import and value is ascertained and made indisputable but are to be expounded by an easy interpretation such as we use when we make fair constructions in common speech But to give this another Answer The Arguer is herein guilty of that fallacy which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or non causa pro causa And his Witness doth not speak ad idem The Bishop was an Ecclesiastical person and though the Bishops might try a Temporal Lord for the same offence yet they would not consent to try a Bishop and forgo that great priviledge of the Clergy with so much earnestness defended in that Age to be exempt from secular Judicatures They would not be present to try because of the person of the Defendant which cannot be drawn into Argument to prove that they had no cognizance of the Cause with any fairness But further the Octavo doth afterwards produce a Testimony that doth contradict this last Testimony in the point for which he produc'd it It is the Case of Thomas Arundel Arch-Bishop of Canterbury 21 R. 2. The Bishops pronounced Judgment against him in Treason by their Proxy They can it seems upon great Reasons wave that priviledge and submit a great Malefactor of their own Order to Justice as they did in the Case of Becket heretofore So that you see here they used a Jurisdiction in a Cause of Treason in the Case of Thomas Arundel which the Bishops could not have used without a Right And the Case of the Bishop of Norwich is only an omission consistent with a Right The Case of Sir William Rikehill is next in order who was sent by R. 2. to Calais to take the Confession of the Duke of Glocester who soon after was Murdered The Judge was arrested and brought into Parliament before the King Lords Spiritual and Temporal and Commons the whole matter was examined and the Judge was examined Here is likewise a clear Case for the Bishops an Instance wherein they did take cognizance of a Capital Cause in Parliament But the Octavo hath a Shift for us and says that there was no impeachment or charge against the Judge and so the Bishops might be present at his Examination Let the Reader here observe the sleights wriglings and prevarications of this Octavo Author Whatever the World thinks of this Author I am much dissatisfyed about him and cannot believe him a man indifferent and impartial in this Enquiry In his observations of the Parliament of the 15 E. 3. the Bishops he saith vanished like lightning they went away immediately at the opening That matters of the Peace in general were to be treated of wherein Blood and Member might not at all be concerned for all that appears They went away and as he would have it they returned no more and they must not hear so much as a Commission of the Peace read But here in this Case of Rikehill they may examine a Murder He will say I am sure that though the Bishops did examine it they could make no judgment of the matter But who will believe him In the Case of de la Zouch and Gray he observes that Bishops could not be present so much as at a Battery though there was no Battery in the Case and yet he allows them to judge of all misdemeanors in the same little Book I observe but these things of many more of like nature which the Reader may observe of himself in that little Octavo that the World may judge how unjustly he deals in this Cause with what iniquity and prevarication he manages a noble question of Right concerning the Government of the Kingdom With what petulancy spight and inveterate displeasure he useth the Bishops That he is grinning at them whetting his teeth and squinting upon them perpetually with an evil Eye He oppugns their Right with Cavillations upon the Clerks Entries with what is in the Record and what is not and what he is pleased to add of his own upon them and with Precedents that reprove one another Had it not been more fair for him to have stated the Right upon a probable result of all the Records considered together than to make their Right sometimes more sometimes less sometimes to affirm sometimes to deny their Right in the same little Octavo He cannot sure think that every Judgment that hath been given upon deliberation in the greatest Judicature can uncontroulably make the Law much less a Fact much less an Omission a Negative that can operate nothing If nothing be Law but what hath always and constantly been done in the same manner and form and all circumstances the same as this Author it seems would have it and nothing true Theology according to Vincentius Lirinensis his Rule but what hath been received ab omnibus ubique semper We can have no Law nor no Theology Vain and idle opinions must be discharged such as can have no consideration with wise men and the Law must be declared by the Nature of Government reason and the general order of things But we have made too long an Excursion We must return to a further consideration of Rikehil his Case And now I submit it to any impartial man whether the Judge could be arrested and brought under an Arrest into the Parliament and be examined and not accused The very next Case he recites is that of John Hall in which we find nothing but an Examination and confessal upon which he was condemned as a Traytor And so would it have fared with Sir William Rikehil without doubt if he had been guilty and had confessed Neither the Octavo nor Sir Robert Cotton mentions any formality more against the one than the other The House of Lords are not tyed to Formalities in their proceedings like other inferior Judicatures and the more inferior any Court is the more regular forms are exacted and that with great reason which we will not hear treat of Besides in the Case of the Earl of Northumberland recited in the Octavo Book Fol. 34. in 5 H. 4. a Judgment was given against him for an offence upon a petition which he exhibited for a pardon of the same offence But in the Case of the Earl of Northumberland I pray observe what the Octavo saith in reference to our question After he hath recited part of the Record in these words The petition being read and understood the Lords as Peers of Parliament
the great convulsions of State and the simultates amongst the Great men and extravagant excesses of injustice to the glory and honour of the Bishops it must ever be remembred that they did preserve themselves from being ingaged in such violences as were committed against the last mentioned Lords But that the Author of the Octavo should produce the Case of Sir John Mortimer against us who was condemned upon a bare Indictment without Arraignment or due Tryal a good reason why the Bishops were not there when he immediately after produceth the Case of the Duke of Suffolk wherein the Bishops were present and will have it stand for nothing because in that it was irregularly proceeded is monstrous partiality and iniquity But in what I pray was the irregularity in the Case of the Duke of Suffolk Why because the Commons desired he might be committed upon a general Accusation But he was not And the second irregularity was that some Prelates and some Lords should be sent down to the House of Commons which is often done But it is not the Prelates that he is thus concerned for but that the Lords lessened their Estate This to excuse him might make him very angry with that Case and quarrelsome And yet after all there is a fallacy in the Case of Sir John Mortimer which he would put upon us for Sir John Mortimer was condemned by Act of Parliament and therefore the Bishops might have been there if they had pleased and that with his leave For it was by the Duke of Glocester who in the Kings absence was commissionated to call and hold that Parliament by the Advice of the Lords Temporal at the prayer of the whole Commonalty in this present Parliament and by the Authority thereof ordered and decreed that he should be led to the Tower and from thence drawn to Tyburn I cannot therefore but observe how by the pretence of the Canon a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes and by other prudent Arts and Recesses from tumultuations the Bishops kept themselves often from being engaged in the Animosities of Great men against one another A matter remarkable for the commendation of their Exemplary Wisdom and Justice and a Recommendation of the men of that Order to be continued in the greatest trusts that the Government hath committed to them But now shortly and summarily to review what we have offered in the matter of Precedents and together to consider what true value and weight they are of in the Cases of Roger Mortimer and Haxey and of Sir John Mortimer 2 H. 6. every body may see a reason why the Bishops should not act if they had Authority and therefore without wilfulness it cannot be concluded they had none Who sees not that these Cases are Precedents for us for that the Bishops judged in the Reversal of the sentence against Haxey which if they had reason for it they ought to have affirmed And the Bishops might have been present rightfully at the undoing the Attainder of Roger Mortimer by the Confessions of these Authors The Proceedings in the Parliament of 15 E. 3. is a true argument of the Bishops modesty But it proves more than he is willing to prove if true viz. that the Bishops cannot joyn in making Laws to punish publick Crimes and therefore logically concludes nothing besides that the matter is false in fact as it is alledged The Cases of Sir William Thorpe and Sir Ralph Ferrers taken at best for him are but militant and have as much to say for as against the Bishops being there present But to be true to the cause of the Bishops We have this advantage against him that the Bishops were always in the possession of their Right because never fore-judged and it was once theirs as we shall prove by and by And this makes a presumption that they always used it when there is nothing to the contrary The Bishops were not present in the Bishop of Norwich's Case but the Bishops may be at any time absent upon a sontica Causa The defendant was a Bishop which was a very allowable one in those times But this must be considered with the Case of Thomas Arundel Bishop of Canterbury in whose judgment they were present virtually by their Proxy and therefore had a Right to be there The Case of John de Gomets and William de Weston is unduely and against the faith of the Record produced against us for upon the truth of the Record the Bishops were present notwithstanding any thing that can be from thence deduced to the contrary The Case of Sir William Rikehil 1 H. 4. is for us so is the Case of the Earl of Northumberland 5 H. 4. The Case of John Hall who murdered the Duke of Glocester and of the two Merchants that killed John Imperial the Genoua Ambassadour 3 R. 2. are foreign to this question and so is the Case of Sir John Mortimer except Judicial Authority and Legislative Authority in Blood are of the same consideration as I think they are and shall hereafter make out to be probable and then those Cases are for our Right They confess that the Bishops might have been present if they pleased and their absence at the passing of those Bills doth not conclude against their Right themselves being Judges The Writ de haeretico comburendo is of another consideration and doth not fall in with the present question There was no Judgment given or to be given in the Cases of the Earl of Huntingdon Kent Salisbury Lord Le Despencer Sir Ralph Lumley the Earl of Northumberland and Lord Bardolph All these Precedents such as they are happened in no long Tract of time but very tumultuous Not one of them pretends to be an exclusion of the Bishops upon Judgment or positive declaration of State They pretend to be only instances of Omission or non user which may well consist with a Right And yet contrary to the true import of these Precedents and the true Nature of them being only of Omission and absence of the Prelates which as they are can make no induction or establish any proposition whereupon to frame an Argument or conclude a prescription Besides that a prescription is not possible in a meer negative and to and of nothing And where no body can use or possess that Authority in pretence in the defailance of the party to use it whose Right it was Besides that it is not a prescriptible matter which we shall further explain hereafter it being in a matter of the Government and a Right arising from its constitution Contrary I say to the whole nature of the matter He makes this Argument à saepe facto ad jus valet argumentum His Argument should have been if agreeable at all to the matter this That where a Right is sometimes not used there can be no Right But if this had been said in English every body would have condemned his reasoning and disallowed if not laughed at the Argument So that we have
left this Author neither reason or Argument We have stript the Cause of all the Precedents that pretend to favour it and have left it Rara Avis indeed but not nigro simillima Cygno as the learned Author in Octavo hath it with which he reproaches the Right of the Bishops as assisted only with a single Precedent But to a Bird of no colour at all the bird in the Fable I mean furtivis nudata coloribus to be exposed to laughter with its naked Rump CHAP. IV. BUt if these Precedents had been all such as they pretend to be and the Bishops not present in Judgment in any of those Cases which the Octavo and Folio have produced and if they had been all Capital Causes that came in Judgment in that House and all determined judicially and not by the Legislative power of Parliament and no reason was to be assigned for the Prelates absence from the Nature of the Cause If they had had no inducements to withdraw from any dissatisfaction they had in the prosecution and the pretended Right of the Church-men in those days much insisted upon to be exempted from the jurisdiction of secular Courts had not been the Cause of their absence which suppositions are not so in fact And tho' the Bishops had never used the Authority and power in question as they have yet if we can prove they had once a Right those Omissions of theirs can be no prejudice to the meer-Right Though then I confess we should labour a-the gainst invincible prejudice in the Opinions of most 1. For that no man can lose a Right by not using of it but where that right can be usurpt by another and is so And that usurpation having been for immemorable time when no body can tell when it was otherwise shall in a matter prescriptible be intended to be acquired by good Right and that with great reason in favour of possession and the quieting of them for that Estates and Rights can last longer than the Grants and Evidences or Records themselves that first created them But where the nature of the Right is such as this of the Bishops in pretence is which no body can use for them For the Temporal Lords sit in Judgment in their own Right which is a plenary and compleat right and cannot be made more or less Secondly for that no Franchise from the Power and Authority upward of a Court Leet which can be neither more nor less by usuage than the Law hath establisht can be prescribed to And a Quo Warranto will fore-close and extinguish an immemorial usuage of any irregular and illegal Franchise A Right that can never be prejudged and fore-closed by non user and such is every Right that grows from the constitution of the Government though it should be discontinued for a long tract of time may be at any time rightfully and legally continued The happiness of our Case is that we can point to the time when the Right of the Prelates to sit in Judgment in Capital Causes in Parliament was established And which is more imposed upon them and they put under a Compulsory and obliged by the Tenure of their Lands to serve the Crown in that capacity And that was in the beginning of the Reign of William the Conquerour Mr. Selden in his Titles of honour with great probability hath fixed it in the 4 year of his Reign when he made the Bishopricks and Abbies subject to Knight service in chief by creation of new Tenures upon them and so first turned their possessions into Baronies and thereby made them Barons of the Kingdom by Tenure This he saith is justified by Mat. Paris and Roger of Windover out of whom Mat. Paris took this Relation Anno 1070. so are their words Rex Willielmus pessimo usus consilio Episcopatus Abbatias omnes quae Baronias that is by Anticipation for the Lands made Baronies tenebant in purâ perpetuâ eatenus ab omni servitute seculari libertatem habuerunt sub servitute statuit militari c. This he makes further probable for that in a Manuscript Copy which he used in a very antient hand these words are noted in the upper Margin over the year 1070. hoc anno servitium baroniae imponitur Ramesiae It seems saith he the volumn belonged to the Abby of Ramsey And some Monk of the House noted that in the Margin touching his own Abby which equally concerned the rest of the Abbies that were mentioned in that Relation by their Lands being put under the Tenure by Barony and they made Barons they had a Right to sit with the rest of the Barons in Councellor Courts of Judgment For saith Mr. Selden tenere de Rege in capite habere possessiones sicut Baroniam and to be a Baron and to have Right to sit with the rest of the Barons in Council or Courts of Judgment according to the Laws of that time are Synonymies So that there were no distinctions of Barons as to power and Authority or Jurisdiction but the Right of a Baron was the same whether he was a Temporal or Spiritual Baron for the Tenure of both is one and the same and therefore the Services must be the same The office that is the result of this Tenure is the same in the House of Lords and indeed no office can be less than what the Law appoints it The King cannot make a Peer a Judge or a Bishop and put any Restraint upon the exercise of the powers and the jura ordinaria that belongs by the appointment of the Law to a Peer Bishop or Judge And that it is an office by Tenure can make no difference for the Law declares the Power and Authority So that the Powers of all Barons are and must be equal and what is allowed to one Baron cannot be denyed to another William the Conqueror made the Bishops Barons by putting them to hold as by Barony did not intend only the Bishops more honour but himself also more service and better assured He cannot be intended especially to abate them their service in punitive or vindictive Justice which a Conquerour of all other performances cannot want I do not doubt and if it were not unnecessary to this question likewise to shew that before the Conquest the Bishops or Spiritual Lords had a great share with the Thanes or Temporal Lords in the Government and were then one of the three States agreeable to all the Gothish Saxon for the Saxons were Goths which we must not here insist upon and Modern Governments that have been planted in Europe which we shall speak to more hereafter But we will resort no higher than this of their becoming Barons by Tenure in time of the Conquerour for the clearing of the Prelates Right now in question And therefore we are not concerned to say any thing to the Case of E. Godwin mentioned in the Octavo in Edward the Confessor's time For Brevity sake and because we will
accomodet This may be a Canon for all that I know but I suspect it had never the Royal Assent to make it so it not being likely that the Conqueror would discharge the Bishops from those Services of the Crown which he had so lately obliged them to by his tenure but surely it was never intended by this Canon that the Prelates and great Abbots should or that they did depart from their Royal Franchises and not make their Officers for administring Justice according to their Authorities in their Charters of Liberties and Priviledges For the words of the Canon Vel judicantibus tuae authoritatis favorem accomodet if they signifie any thing more than what weallow must sound to that purpose But I suppose the Gentlemen that appear'd against the Bishops had rather than affirm so against the known practice of all Ages be content to agree that this Canon did only intend to prohibit their pronouncing or encouraging or promoting the Sentence of Death or Mutilation and indeed this was all that truly could be pretended to from them in comporting themselves decently with respect as the Opinion of those times was to their Function which is expressed to be the Inducement to that Canon of Toledo as it was the only avowed Reason of all others that is that it did not become as they thought those that administred the Sacraments which were the Seals of God's Pardon to pronounce an exterminating Sentence of Life and Member though they might have a farther Secret purpose therein of carrying on the Design of a Church-Sovereignty by imbodying the Clergy and dividing them from all Secular Dependencies but this was nor always to be owned neither is it an agreable Employment to any person who pretends himself a Protestant to urge these ill-designing Canons as a pretence to divest the Bishops of those their Legal Rights which were so prejudicial to the high Growth of the Papal Power upon any pretence whatsoever or to go about to deprave the Reformation as if the true Christian Religion would not allow to the Bishops Honors and Trusts as great as they now enjoy by the Constitution of the Government who are the Chief Ministers of it which is a Religion that makes men wise and good the Religion of the State and is the greatest Support of it and reciprocally this Religion it self is honored assisted and greatly advantaged for obtaining its ends by those Honors and the place at present appointed to them in the Government But it is deplorable to find any man so madly set upon so bad a Design that he should be thereby transported from Common Sence and think to displace them and degrade them by Popish Canons that when they were made did not oblige were never observed and can no more bind our present Church to observe them than the Fathers of Toledo or Lanfrank and his Suffragans and Clerks can be blam'd for not being agreable to the Canons that have been made since the Reformation or hereafter shall be made by our Church in any after Age of the World But there are two Canons yet behind which have been mentioned in this Controversie which we will likewise take notice of or we shall have said nothing though I almost despair that any thing will be a Satisfaction to such Opposers as this Right hath met withall The first whereof was made by Richard Archbishop of Canterbury Anno Domini 1175. in 21 H. 2. about Eleven Years after the Assize of Clarendon in these Words as Hoveden p. 310. ac Gervase Dorob relates them His qui in sacris Ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut per se membrorum truncationes faciant aut inferendas judicent quod si quis tale fecerit concessi Ordinis privetur officio loco inhibemus etiam sub interminatione Anathematis ne quis Sacerdos habeat Vicecomitum aut praepositi secularis officium The other was made Anno 1222 about 47 years after the first which is to be found in Linwood p. 146. among the Constitutions of Stephen Arch-bishop of Canterbury as follows Praesenti Decreto statuimus ne Clerici beneficiati aut in sacris ordinibus constituti villarum procuratores admittantur viz. ut sint Seneschalli aut Ballivi talium administrationum occasione quarum laicis in reddendis ratiociniis obligentur veljurisdictiones exerceant seculares presertim illas quibus sanguinis judicium in locis sacris tractetur in Ecclesia viz. aut in Coemiterio Authoritate quoque Concilii districtiùs inhibemus ne quis Clericus beneficiatus vel in Sacris Ordinibus constitutus literas pro poena sanguinis infligenda scribere vel dictare presumat vel ubi judicium sanguinis tractatur vel exercetur intersit Noverint enim hujusmodi se Ecclesiastica indignos protectione cum per eos in Ecclesia Dei per talia presumpta scandalum generetur Upon both these Canons we observe first that the Pope's Canon-Law had not obtained in England For then there had been no need of these Canons or however their Denunciations and Censures would have been the same That the Inhibition is repeated by a Second Council but in milder Terms signifies to me the Continuance of the thing prohibited and that it was so much in use after the first Canon that the second Council thought fit rather to direct and admonish by their Canon than to pronounce either Anathema's or Privation against those that break that Canon Secondly That neither of these Canons extend to Bishops not the first not only for that I question whether Bishops can be intended in such general words In Sacris Ordinibus constituti But because the Denunciation of the Canon cannot have effect as to them no Ecclesiastical Authority can depose a Metropolitan and also because the Second cannot by any Construction extend to them for Clerici beneficiali does not mean them and that which comes after aut in Sacris Ordinibus constituti cannot ascend in meaning and intend the Bishops especially in a Canon Law which we must suppose penn'd with special Care and Observance of Decency and Reverence to that Order Now to consider them apart I find the first agreable to and to prohibit no more than what the Bishops if here meant are licenced and priviledged from in the Assize of Clarendon And to intend more is unreasonable when it was made in time so near to Thomas of Becket that his Fate could not be forgotten And farther we must distinguish between the Preamble which contains the Reason and Inducement of a Law and what is for that reason prohibited For let the Reason be as large as it will yet the Law is no other than what is enjoyned Reason makes no Law but the Legislators for Reasons which they may tell us if they please though the Nature of Canons requires that they should The Preamble of this Canon was an opinion taken up amongst some of the Clergy viz Non licet
to the Encroachment of the Papal Power and in this matter to declare how far the Bishops might if they pleased observe the Canon Law or rather themselves and what was thought then decent to their Order So according to the Print in Gervasius and therein he differs from Matth. Paris it is Quousque judicio perveniatur ad mutilationem membrorum vel mortem which further clears the meaning of that Law to be that the Bishops were thereby excused not altogether from Capital Causes but onely when it was proceeded so far in such like Cause that Judgment was to be pronounced which when the Bishops had nothing to gainsay they might depart and leave Sentence to be pronounced by the House But we cannot after all this allow the Author of the Folio to have so little sense as with a good conscience to say that he who cannot perhaps by reason of his circumstance and some consideration of Indecency execute a thing in his own person therefore cannot do it by another no more than he can authorise one man to murther another Thus he saith fol. 20. when surely this Gentleman cannot think it as fit for a Judge to be a Hang-man as to sign a Kalendar for the Execution of the Condemned Prisoners But the Octavo is somewhat surprizing in this matter For he doth affirm That it is not lawful for Bishops to vote in any Question preliminary and preparatory to the Sentence of Condemnation when such Sentence follows and the matter preliminary is necessary to the Process This he proves by a Logick Rule Causa Causae est Causa Causati one of Sthalius his Axioms hath turn'd round the Head of this Gentleman I find few men can bear Axioms Maxims and Sentences There are none speak so much unnatural Non-sence as they that use them most May not several men I pray do several parts of an affair and yet he that doth the first part is no ways the Cause of what another man doth in the second and third place Is the acting the first part of the Play the cause of acting the last Or is the laying the Foundation the Cause that lays on the Roof Is the Jury the Cause of any more than their Verdict And doth not the Court give Judgment by their own Authority and Causality If men would speak by Nature and according to first Notions and were not so full of second Notions and Universals we should not have so many Errors Mistakes and Confounding Opinions in the Work But this we complain of as too severe in the Octavo that when he had confounded us with his Causa Causae Causati he would render us ridiculous with a Story of a Friar out of Chaucer That would of a Capon the Liver of a Pig the Head But would that nothing for him should be dead This indeed was a fine piece of Wit in the Poet but translated hither by our Author is an insipid piece of Malice His Design sure in this was to enter the Bishops amongst Chaucer's Friars and then the Learned Readers of Chaucer would be very conceited upon them and apply all his pleasant Satyrs against the Friars to the Bishops But for the farther Evidence of the Bishops Baronage and their Jus paritatis it would not be impertinent here to add That the Names of Barons Peers Seniors Grants have been attributed to the Lords Spiritual in all times in Authentick Histories and Records Forasmuch as a Nominal Argument is not a very inartificial Topick in such a Cause as this Besides that this will destroy the very strength of our Adversaries which lies in this that they will not allow Prelates to be comprehended in the Name of Peers Grants and Barons And that where the Records doth not expresly mention Prelates they will conclude they were not meant or intended to be present But the Collection which was made for this purpose shall not trouble the Reader because in two Books since Printed in Defence of the Bishops Right in question this is abundantly performed Besides that it is a very precarious Conclusion that our Adversaries make and without argument For they ground themselves herein upon a most unreasonable Postulatum viz. That Titles do not belong to persons for whom they were made and to whose Character they agree and that Words do not design the things which they were made and imposed to signifie CHAP. XIV NOw we shall proceed to perform a necessary piece of Justice to the Prelates as well as a Right to the Government to recover its true Constitution from the Prejudice of Modern Ignorance to declare and manifest that our Gvernment doth consist of three States the Lords Spiritual and Temporal and Commons of England These do make the Great Council of the Kingdom and minister to the King Council and Auxiliaries over which the King doth preside as the Great Superintendent and mover of this mighty Machin The consequence of which is that the Bishops cannot be detruded from that place they bear in the Constitution of the Government for that no Government can be legally or by any lawful power changed but must remain for ever once established And it cannot be no less than Treason of State to attempt a change no Authority in the world is competent to make any alteration The Princes of Christendom after they took to themselves the Election of Bishops which is a natural right of the Sovereign Power become Christian they soon observed the advantage that they might make by advancing them to the greatest Secular Dignities Governments and Trusts and did accordingly advance them to an equality if not to a superiority to the highest of the Secular Nobility gave them Dutchies Marquisates Baronies and rich Endowments and erected that Order into a successive Nobility Another sort of Nobility from that of the Lay Princes concluding that they should be better served by men of their own choice and approved worthiness who had also other advantages over the People than those that the Temporal Princes and Lords had by that Reverence they paid to their Bishops and the Authority and Power that they had over them in the virtue of Religion than by the Hereditary Princes and Nobility who did not always answer to the virtue of the original Ancestors and the first stock Besides that Religious Kings and Sovereign Princes did by advancing Bishops intend to do great advantages and honour to Religion but withall they did not divide the Bishops thus advanced from the Secular Princes and Noblemen in Councils for then they had lost their design The Bishops could not have had any direct influence upon the Councils of the Nobles and Secular Princes nor have tempered their Debates with an excellent Charity and firm Loyalty and other Vertues which belong to their Character It would have made trouble distraction and impediment in the Affairs of Princes and emulation and strife and faction between the Ecclesiastical and Secular Orders and several mischiefs and great inconveniencies would have
pleaded in Bar upon which the Defendant will be certainly relieved in Chancery may notwithstanding it hath not heretofore be hereafter allowed in our Law-Courts we should be in a great measure restored to our easie expedite cheap and certain Justice which the Methods of our Common Law-Courts hath most excellently provided until a Parliament sometime or other may consider whether it be not fit to take it quite down by inabling Courts of Law to do true Right in all Causes that shall come before them For nothing renders the Chancery tolerable but the mo exemplary Virtue and Great Endowments of our present Lord Chancellor in which he is not like to have a Successor But to return to the Curia Regis it was not only the great Judicature of the Nation formally but it was also materially our Parliament too That this Curia Regis was not without any more the Parliament of these times is evident first that the Curia Regis was summoned by a general Writ of Summons directed to the Sheriffs in this Form viz. Rex Vicecomiti Northamptoniae c. praecipimus tibi quod summoneri facias Archiepiscopos Episcopos Comites Barones Abbates Priores Milites Liberos homines qui de nobis tenent in Capite c. Rot. Claus 26 H. 3 M. 7. Dorso This must necessarily be this Curia Regis in Distinction to a Parliament For that in the Grand Charter of King John made in the last year of his Reign it was granted that Ad habendum Commune Concilium Regni de auxilio assidendo aliter quà m in tribus praedictis casibus i. e. Those cases of Aid to make the eldest Son a Knight to marry the eldest Daughter and of Ransom and de Scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per Literas nostras Et praeterea faciemus summoneri in generali per Vicecomites Ballivos nostros omnes alios qui in capite tenent de nobis At present we make no other use of this Grand Charter than to prove it a distinctive mark of a Parliament where the Summons are personal to the Bishops Earls and the greater Barons This Charter of King Johns declares the ancient usage of summoning the greater Barons by special Summons to them severally directed for that the Kings before him as Sir Henry Spelman in his Glossary p. 80. Propter crebra bella simultates quas aliquando habuêre cum his ipsis majoribus suis Baronibus alios etiam eorum interdum omitterent aegrè hoc ferentes Proceres Johannem adegêre sub magno sigillo Angliae pacisci ut Archiepiscopos Episcopos Comites majores Barones Regni sigillatim per Literas summoneri faceret By which it was provided that all the Barons should have pro more Summons to the Parliament that non of those great Barons should want his several Summons and they had anciently several Summons for in a general Summons no body was excluded By which it doth appear that the Council at Northampton wherein Thomas of Becket was brought in judgment was a Parliament and not the Curia Regis for that the Bishops had their several Writs of Summons which appears in that Fitz Stephens tells us as matter of observation that Thomas of Canterbury had not his Writ of Summons but was cited as a Criminal to answer which we before observed And this was but necessary that when the Tenents in capite or Barons which principally at least made the Parliament were to be consulted about some arduous Affairs that they should have notice and a solemn intimation thereof and their presence required and enjoyned by Writs to them particularly and personally directed Besides that it was agreeable to all the forms of Government then in use to have their ordinary and extraordinary Council For Omnes Germanicae Originis Reges atque Imperatores duplici Concilio antiquitùs utebantur altero statario qui Senatus dicitur ad res quotidianas altero evocato concilium aut conventus ordinum ad res momenti majoris as Grotius assures us Neither can it be denied by any man of modesty who hath heard any thing of the state of our Government before the Conquest and that knows that many ancient Burroughs send Burgesses to Parliament by Prescription and will consider the Records produced by Mr. Petit in his very learned and elaborate Book called The Ancient Right of the Commons of England to prove the Right of ancient Burroughs to send Members to Parliament who represent them but that such though not Suiters to the Curia Regis were Members de jure of the great Council of Parliament But the truth is they are not mentioned in any Record or History of any Parliament from the beginning of the Conquerours Reign to the end of Henry 3. as a distinct part of the Parliament of England their Numbers and Qualities were little and mean of no consideration in comparison to that great Body of the Baronage that constituted our Parliaments in that time but our Parliaments seem by the style used in Histories and Records to be onely the Baronage of England William the First in the fourth year of his Reign Consilio Baronum suorum saith Hoveden pag. 343. fecit summoneri per universos Consulatus Angliae Anglos nobiles sapientes sua lege eruditos ut eorum jura consuetudines ab ipsis audiret Those who were returned shewed what the Customs of the Kingdom were which with the assent of the same Barons were for the most part confirmed in that Assembly which was a Parliament of that time saith Mr. Selden Titles of Honour pag. 701. Amongst the Laws of Hen. 1. published by Mr. Abraham Whelock cap. 2. I find thus Forestas communi consensu Baronum in manu mea retinui sicut pater meus eas habuit And after Lagam Regis Edwardi vobis reddo cum illis emendationibus quibus pater meus emendavit consilio Baronum suorum The Parliament is styled Commune Concilium gentis Anglorum and at the same time Commune Concilium Baronum and also Clerus Populus Matth. Paris fol. 52 53 54. And this is sometimes called Communitas for that it represents the whole people and involves their consent Which appears by 48 H. 3. Pars unica M. 8. D. Haec est forma pacis à Domino Rege Domino Edwardo filio suo Praelatis Proceribus omnibus Communitate Regni Angliae communiter concorditer approbata And that Communitas Regni hath no other sense than commune concilium Regni and used as a comprehensive term of them that made it is evident for that it is said in the second Record Si videntur communitati Praelatorum Baronum And again Per consilium communitatis Praelatorum Baronum Further Magnates Vniversitas Regni sometimes used for the Parliament Matth Paris 659,666 And after King John's Charter wherein it was
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
wherewith shall it be Seasoned And if our Light be darkened how great is our Darkness The Bishops know that the World will not be kept in Order by meer Designations of Trust but by Execution of their Trusts not by abstract of Characters unless they are put on and effectively worn The World will not be put off that there is no Provision made in the Government for reasonable Expectancies of all that can make a People happy if we are disappointed in our just Expectations They know for what high Ends they are advanced to their Secular Dignities what was it that hath thus advanced them Was it not the reasonable Expectation that Christian Princes and Governors conceived of their excellent Virtues that they would out-doe all mankind in firm Constancy a vast and extensive Charity unrelenting Fortitude inflexible Justice unmoveable Faith and Loyalty and unbyassed Sincerity What Temptations can their Lordships have that they should not or we Reasons to believe that they will not put forth all those Christian Vertues in Heroical Degrees which the World will not give them leave to exert only in common measures They will find it necessary sure to be now Confessors for the Support and Happiness of a poor distracted Nation a vast and great People They will no doubt subdue the Greatest Potentate to Justice if there be any such who hath unhing'd the Government and sap'd the very Foundations of our Constitution and will never consent to the Pardon of such Sins that are not to be pardoned in this World nor in the World to come Can they suffer the true Christian Religion of which they are the chief Ministers and Curators to perish by their timidity and cowardise Can they suffer a great People committed to their charge to be destroyed into an Anarchy and desert that Prince whose Beneficiaries they are and not interpose for the saving of him and his Government by faithful and wise Counsel To suppose such things as are morally impossible is unreasonable and to fear where no fear is For they if they were wholly secular and were guided by nothing but a secular Interest can consider that the world is impatient of disappointments That they hate nothing more than deceits and abuse of trusts and that he that falls short and goes less than a just expectation falls into the lowest and vilest contempt and deepest scorn But this is not a time sure to lessen the Prelates to take from the Bishops any just advantage or honour when that the contempt in this later age thrown upon them and the whole Order Ecclesiastical and the mischiefs that have naturally ensued thereupon have brought our Nation Religion and Government to a most miserable state a most desperate plunge out of which I pray God we may be able to emerge The Contempt of the Bishops and Clergy made the People despise the publick Establishment chuse Teachers not much wiser than themselves And they have thereupon multiplied vain Opinions and Divisions and true Christianity is scarce had in any Consideration Atheism and Profaneness upon this Stock is come to an enormous Growth which thrives the faster by the vain Opinions and Immoralities of the mistaken Religionists by which the Atheists take the Measures of true Christianity and in Consequence of this Popery is arrived to a vast Increase in Power and Interest and threatens us and the little Remains of true Reformed Christianity with an utter Overthrow The true Christian Religion is not generally understood and hath lost almost all Credit and Belief in a Christian Nation So that it seems to me upon the Consideration of our present State almost necessary that the Truth of the Christian Faith should be again demonstrated in Flames to this Infidel flagitious and degenerate Age that the Stains of the Christian Religion must be washed off by the Blood of the Sincere Professors That the true Faith should be better understood as it will be by dying Thoughts and vain Opinions be destroyed and burn up like Hay and Stubble in the Fire of Persecution For then we shall understand what it is that is worth dying for and that which is not worth dying for is not worth disputing and dividing for in our Christian Communions with breach of Charity Then our Guides the Holy Order of Bishops and other Faithful Pastors of the Church may shew their Sincerity and appear of what Value they are of in the Conduct of Souls by their wise Apologies and Noble Confessions and Martyrdoms for the true Christian Faith and recover a due place in the Peoples Reverence and Esteem for their Successors And if God in all his wise Providence and Care which will never be wanting to his true Religion shall think it necessary by this means to recover and restore it let this Fiery Tryal come let it come And then I doubt not but we shall have our 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 used in Scrripture for the Prelates of the Church to signifie the high Esteem they had of them and are the same with Leaders Captains and Commanders many Cranmers Ridleys and Latimers leading up their Troops of Confessors and a Noble Army of Martyrs who will again seal the Christan Religion with their Blood and a more Glorious Church shall recover out of the Ashes of this But God grant that we may dispose our selves by more easie Methods to recover out of our sickly Estate when we know our Disease and may be cured by more gentle Remedies But I am sure that nothing can save our Nation and Religion but an excellent Clergy and a high Esteem of them amongst the Laity And for this Reason I have earnestly concerned my self for the Bishops Right of judging in Capital Causes in Parliament that they may want no Capacity of making a gasping Nation live and thereby of recovering themselves and their Order into a high Veneration that they may more effectually administer to the Advancement of God's True Religion and Vertue and making this Kingdom happy for Succeeding Generations THE POSTSCIPT The POSTSCRIPT SIR I Now render you my hearty thanks for your free advise you gave me concerning the publishing of the Argument for the Bishops Right of Judging in Capital Causes in Parliament and for asserting their civil Honors and Rights in the Government Because it hath given me an occasion both of vindicating the most of the Inferiour Clergy from those Imputations which you have remembred to me and are commonly discoursed to their disadvantage whereby they have lost their Esteem with the People and also of rectifying the mistakes of some for their number is not great who have given too much cause therein of publick complaints You diswade me from giving any assistance to the Rights of the present Bishops for that the Clergy out of whom the Bishops must be made have entertained Principles that are destructive to the Government They affirm you say That it is in the power of a Prince by Divine Right to
difficult to tell how that late unhappy War began or how it came to issue so Tragically in the Death of the Late King though we know how it ended viz. The Nation recovered within twelve years after the most deplored Death of that excellent King into a renowned Loyalty and in spight of a great Armed Power never before foil'd ever victorious then kept on foot for the interest of a very few men restored our present King may his Reign be long and happy to the Government of his Kingdoms without the least assistance of any of the Cavalier party and oblig'd a wary General in the head of a factious and republican army to Loyalty Nay within that time also the Nation had recovered out of their partial Lapse into Fanaticisme bread up great numbers of excellent Schollars who masterd the prejudices of those times were reverenced by the chief of the Presbyterian party and are the beauty and strength of the Church of England at this time The Presbyterians themselves were grown reconcileable to the Church of England and had learnt by woful experience the mischievousness of Schisme upon no better pretences than what then might have been satisfied and accommodated When the King and Church were restored Fanaticisme had expired if some old peevish and stiff Church-men had not studied obstacles against a universal accommodation and some crafty Statesmen had not projected that the continuance of the Schisme would be of great service some time or other to destroy the Church of England and change our antient Government which is now apparently the Popish Plot and if ever it be effected it will be with this trick of affrighting the Church of England with the apprehension of Fanaticisme and making them suspicious of Parliaments As many of them as are drawn into an opinion of the disloyalty of our late Parliaments the illusions of the Popish Plot hath passed upon them and they are under the power of its fascinations But both the Loyalty of the late Parliaments and also how much it imports the Plotters to have it believed that they design upon the present Government will at once be clearly understood if it be considered what hath been done for the forging of a Protestant Plot which was intended at the first opening to extend to the House of Commons Things so wicked as would make a virtuous man ashamed of the age he lives in But after all endeavors to find witnesses for their purpose powerful encouragements and great rewards they have drawn none into their assistance but who are publickly known for Rogues or who wanted Bread or had no Reputation to loose If the falshood of this forged Plot had not been utterly improbable they might have procured better seeming and more credible witnesses They might sure have found in this age men bad enough not already infamous to have testified a probable Lye But so necessary it is to the Popish design that a Protestant Plot be believed that they are not discouraged at the manifest detection of their conspiracies perjuries and subornations but will still go on as if they had a power to work miracles of villany for their Religion which is no better Our modern Politicians have been most observant agreeably to their virtuous make how frauds perjuries and violence have prospered and succeeded in some particular cases and have brought about some designs imagine such means throughly multiplied to be able to conquer all things which they design But these Arts which have had success by the permission of God when one Villain hath been to destroy another will not pass upon the Protestant Religion Let them seriously in time despair and give over such enterprises For there is no Enchantment against Jacob nor Divination against Israel the Lot of Gods inheritance and his peculiar Care If Mordecai be of the Seed of the Jews Haman shall fall before him It is matter of comfort to us and dispair to the Plotters that not one of their Plots yet but hath proved Abortive or they have been defeated by their very success Besides pray let it be observed how this Design of lessening our just confidence in Parliaments is otherwise carried on and promoted It is now become the principal business of the Mercenary Writers for the Plot to pick up and cull out all the enormities and irregularities of those times the Vitia temporum and stories of wild pranks of some beastly Fanatical people that exceeded the common degeneracy of those ill times into which the Nation by undicernable degrees so fouly lapsed to make thereof an ugly Vizard and this they clap unduly upon four fifths of the Nation upon all that love and adhere to our Government and Religion to render them suspected of destroying again the English Monarchy and the Protestant Religion even for those very proceedings that they make for preserving both For the service of Popery requires that whosoever opposes it must be branded with Treason and Fanaticisme that such delicate persons as are fond of the name of Loyalty though they understand not in what it consists that hate the name of Fanatick since it is become as common a name of reproach as the Son of a Whore though they understand not so well what it means will be sure so to behave themselves as to be reckoned for Loyal and not Fanatical by taking the measures of the one and the other according to the new notion of the Plot Writers may become theirs with all their idle prattle But let them make their best of this foolish sort of men if that was all they could effect by this project But they design further upon the Nation viz. to match the fears of Popery with a fear as great of the like Evils to those of Forty one as if these Plotters had power by their interest to raise a new War when we have power and authority in our Government if it were exerted to destroy them by Justice But these State Mountebanks think it convenient because the Nation was cast into a Frenzy in Forty one therefore now when in perfect health we are to be cast into a Lethargy to prevent our relapse and in the mean time they intend we should perish insensibly and quietly that way they design to destroy us It is since the Discovery of the Popish Plot that Popish Mercenaries have been hired to write virulent Libels against the Church and bitter invectives against Fanaticks Out of the same Mint came a villanous Libel called Omnia Comesta a Belo against the Church apt to render the Church-men suspicious of another detestable Sacriledge designed And that loathsome Print entitled the Committee or Popery in Masquerade Many parts whereof hath no other reason of belief but that they have been the Subject of some drunken Rhimes in former times but it is in the whole an insufferable Libel against the Nation by its application to this age These Mercenaries are the Authors as well of treasonable Libels against the King which they