Rights of the Church in special cannot may not by any power be violated or taken away doe they yet grant such a power to Parliaments to take those Rights away and so expresly contradict themselves And can you conceive that King Henry the Third who first granted that Charter and gave the right Power to Parliaments would have suffered the two Houses yea or that himselfe would after that Grant made to the Church have decreed that he might justly use the power of Parliament to sell those Lands Or can you conceive that those Kings who gave the Bishops Lands for so it is said that the Kings of England gave them and that with such curses on their Successours or any who should dare to alienate or sell them ever meant they should be sold And tell me I pray for I am to learne where ever good and lawful Parliament did ever take away any single mans whole estate though it were to pay the Publike debt or for Publike use except it were in a legal course And can you conceive that the two Houses may doe that to the inheritance of God the Patronage of the King and the Rights of the Church which they cannot do to him who hath yeelded up his assent by giving his Vote to his Proxie in Parliament which neither God the King nor the Church hath done Pag. 700. in this Parliament I pray you consider that in the Book of your Declarations it is said That the Rights of Publike trust are not to the prejudice of any mans particular interest Argum. 8 And if it be yet urged that Parliaments may change the municipal Lawes of this Kingdom and therefore much more this of the Title or Tenure of Bishops Lands Resp I think I may rightly answer that the King and all the people of England by a mutual assent may change the general Laws or such Laws as they hold sitting and convenient to be altered for their better good for here is neither injury nor injustice to any but yet special Laws which concerne the good of some in speciall I conceive with humble submission may not justly be changed except it be by the assent personal Vote or Proxie of those interessed none of which can here be said of the Church or Bishops or unlesse some offence liable to such a penalty hath demerited such a sentence or change of that special Law and that no such offence hath been committed deserving such a penalty I presume to be true for that the Bishops have not been legally accused heard and tried which was ever the ordinary and right course used by the Hebrewes Romans and all Religious good and Civil Nations and which is the Law of this Kingdome Ch. 14. 29. as is expressed in the great Charter But I feare these two last Arguments and many more such are built on sands which washed or driven away with a little wind all the building fals to the ground for they take it for granted that the two Houses or rather that some Lords Temporal and Commons make the Parliament for the discovery whereof I pray consider 1. The conception 2. The birth 3. The growth and strength of Parliaments In the Saxon times when the seed or conception of Parliaments was at the making consirming or witnessing Laws seldome is there any mention but of the King and the Lords Spiritual and Temporal except the Kings Servants Aldermen Spelm. Concil some wise men c. Nay when our Parliaments first were borne in the nineth and twentieth of Henry the Third there is no mention then but of the King and the Lords Spiritual and Temporal Yea at the Grant of the great Charter there is only mention of one and thirty Lords Spiritual and two and thirty Lords Temporal Coke Proâ—m to 2 Instit Mat. Par. p. 435 Id. pag. 580. 581. Id. p. 636. in the one and twentieth of King Henry the Third in Parliament at Westminster And in the one and thirtieth of Henry the Third at London which were for the relief of the distressed Kingdome yet there were only mentioned the King and the whole Nobility of the Kingdome viz. the Bishops Prelates Earles and Barons But in the two and fiftieth of Henry the Third say our printed Statutes The King providing for the Estate of this Realm the more discreet men of the Kingdome being called as well of the higher as the lower estate the King hath made these Acts Ordinances and Statutes which he willeth to be observed of all for ever And so the formes of Acts in Parliament ran The King willeth provideth ordaineth granteth In the 31 Henry 6.1 The King ordaines by the advice and assent of the Lords Spiritual and Temporal and the Commons being in the said Parliament In 1 Rich. 3.6 The Commons prayeth that it may please the King to ordaine 1. Eliz. 3. We the Lords Spiritual and Temporal and Commons representing the three Estates of the Realme of England make our humble petition to your Highnesse Ch. of Parl. fol. 1 Whereupon saith Sr Edward Coke Without these three Lords Spiritual and Temporal and Commons no Act of Parliament can be good and rightly for as all the Freemen in England have Votes so the Bishops vote for themselves and all the Church-men in England And thereupon if they have no Votes in Parliament then either they are the onely slaves and no Free-men or else those Church-men are not bound by these Lawes it being a Maxime in our Law that no man is bound to that Law wherein he had no Vote in person or by Proxie which no Bishop and I think no Church-man hath now in this Parliament But not to dispute this though agreeable to all Law Justice and Reason yet sure it cannot be rightly called a Parliament or any Act therein binding without the Kings Royal assent for as in a natural body so in this no life nor motion without a Head which is the King yea therefore he is called Principium 4 Part Instit. s 3 4. Caput Finis Parliamenti because without the King or his Royal assent it is no binding Act. See but one Act for many 1 Jac. 1. where it is thus said We the Lords Spiritual and Temporal and Commons beseech your Majesty c. which if your Majesty shall be pleased to adorne with your Majesties Royal assent without which it can neither be complete and perfect In answer to Judge Jenkin nor remaine to posterity And 1. Câ—r 7. the two Houses beseech the King to give his Royal assent to such Bils as they then passed and H. P. confesses which was never denied till of late and that but by some that no Acts of Parliament can be complete or formally binding without the Kings â—â—ent And so Mr Prynne affirmes Power of Parl. f. 47. Ib. fol. 104. In his Vindication p. 6. that the Kings assent is generally requisite to passe Lawes and ratifie them And Judge Jenkins that undanted Champion of our
verbum Baâ—on Sr Henry Spelman informe me right then it cannot hold that all Bishops in England hold their lands by or in the right of their Baronies for he affirmes that the title of Baron was not known in England till the time of William the Conqueror whereas most I dare say of some Bishops lands were given some one some two some three some foure hundred years before the Conquerors time and then judg whether those lands were given to hold per Baroniam Againe the same Author sayes that in England there were three sorts of Barons the first who were made by William the Conqueror and these hold their Honors and Places in all Courts by Prescription rather then by Tenure and were therefore called Barones Praescriptitii The second sort were called Rescriptitii who in the time of Henry the Third were called by Writ to the Kings Courts The third sort called Diplomatici who by the Kings Patents were first created in the time of Henry the Second and in that right had their places Now can any say but that ever since there have been great Councils in England the Bishops had their places there and so were to hold them by Prescription rather then by Tenure And if by the great Charter the Rights and Liberties of the Church be inviolable i. e. such as rightly cannot be broken then this Right Custome or Privilege cannot justly be taken away I conceive this true that the two Kings Williams Father and Son and after them King Henry the Second out of spleen ambition or avarice have impaired the first antient Dignity of Bishops in England and may have changed some of their Lands to be held per Baroâ—iam which at first were granted in puram perpâ—tuam Elâ—emosynam Whereupon Sr Henry Spelman cals the now Bishops Barones Elâ—emosynaries yet doth it follow that if some have unjustly changed their Tenure therefore others more unjustly may take away their Lands Had it been ill in David to have cut off the lap of Sauls garment might he therefore have killed the King The case then as I conceive it is briefly this The Saxon Kings first chief Donors of much if not of the most of the Bishops Lands in England gave and confirmed them to be held either in Franc-Almoigue free from all Service or for Divine Service and they to hold them as Gods Almes-men and Servants and this continued to King Edward the Confessor after which time some Kings how justly judg you as Conquerors of this Land altered the Tenure making some or most of their Lands yet not all for two are excepted Carble and Rochoster so an antient Register to hold per Baroniam After which King Henry the Third whether moved in conscience or upon some other good causes restored the Lands to their antient just Rights for his Charter could intend no lesse to the Church it looking back to the time of Edward the Confessor at least So that the Question is whether the Lands of Bishops in England should now hold per Baroniam as changed by the Conqueror or his Successors or as at first they were granted and after restored by the great Charter to their first Rights and Liberties 1 Part Instit p. 94. 2. Instit c. 1. Ibid. which was either in Franc-Almeigne or for Divine Service Sr Edward Coke affirmes this later and further saith By the great Charter all the Rights are confirmed to the Church and Church-men which they had before or at their first Grant And in the same place more fully saith The Church shall be fres i. e. freed By which saith he a restitution is graved of all such Immunities and Freedomes as they enjoyed before and to free them from all such changes as have been usurped and encroached upon by any power whatsoever And I believe that if the case were put concerning your own Lands you would soon resolve that they shouldhold as by the first Donors grant and after by the great Charter confirmed rather then by that imposition of a Conqueror And why the same judgment should not be given on Bishope Lands as on the Lands of other Free-men of England I see not Argum. 14 But some to take a shorter course will perswade that to take and sell these Lands of the Bishops is not Sacrilege because theft is onely in things moveable in which condition or acceptation Lands cannot be understood Resp Sr Edward Coke cites the Canon Law and approves of this as agreeable to our Law which saith Whâ—â— things are giâ—â—â— to the Church 2 Instit. p. 489. are holy Offerings whether they beres solide or mobiles whether they be moveable or immoveable Now doth our law say there is no theft in things 〈◊〉 〈◊〉 〈◊〉 only saith it theft is in moveables If this and not that then why for the honor of our Law that it may not appeare to cross Gods may we not say that our Law hath onely made theft in moveables punishable because it doth not conceive how land in the proper and strict sense of robbing can be taken away and stoln But because Sacrilege or taking things immoveable is not by our Law punishable doth it therefore follow that it is no sin or punishable by Gods Law Suppose we have no Law to punish an Atheist an Idoater one that takes Gods Name in vaine who prophanes the Lords day who dishonoureth his Parents who tels or makes lies are therefore these no sins punishable by the Law of God And that by Gods Law defrauding God or man of immoveables be it of Lands is a sin be pleased first to bethink your self 1 King 21. whether King Ahah sinned in taking away Naboths Vineyard an immoveable I conceive in your sense and acceptation and if he sinned in this then what Commandement brake he Was it not the eighth which saith Thou shalt not steale And then doth it not plainly follow that theft may be in immoveables And that God may be robbed of immoveables which is Sacrilege And doth not God by his Prophet Ezekiel speaking not only of Tithes and Offerings but of the holy Lands say Ezek. 48.14 Thou shale not sell nor alienate them which to doe is Sacrilege Argum. 15 But now followes the Argument which will admit no Answer There is a necessity lies upon the State to sell the Bishops Lands for without it the publike debts cannot be paid and without yeelding to this the Church and State are in hazard to be utterly ruined for till this be done there will be no peace in the Land Resp Indeed we say necessity hath no law and it is a sad oase that without or against Law divine or humane nedessity must sweep all before it but before I answer fully will you give me leave to ask you a Question or two 1. How and by whom is this necessity brought on 2. If not by Bishops but others why not the Trespassers in stricter language the Debters to discharge the debt rather then the Bishops 3. If
the Land they bring not in absolute and partial trials by discretion CHAP. VIII That it is against the Prudence and Justice of the King and against his lawful Oath AS the selling Bishops Lands is against our Lawes which the two Houses and Kingdome by their severall Declarations Protestations and Covenants have solemnly bound themselves to maintain so it is against the Kings Prudence against his Justice and against his lawfull and just Oath It is against the Kings Prudence to devest and rob himself of those Immunities 25 Hen. 8.20 26 Hen. 8.3 and 1 Eliz. 4. 14 Ed. 3.4 5 Rights Profits and Revenues which the Law of this Land hath settled in the Crown as Collation of Bishopricks First-fruits and Tenths It is against the Kings Justice to take or make that away from his Heires and Successours which by our Lawes are justly and rightly granted unto them and these Rights the two Kingdomes of England and Scotland have sworn to maintain It is against his Justice to doe or suffer it to be done in respect of the Bishops to whom the King as the fountaine of Justice is bound to see Justice done as to his Subjects in general 2. Institut 1. but then considering from Sr Edward Coke that by our old Law-books the Church is ever under age and in the custody or guardian-ship of the King who is bound to maintaine and defend the Rights and Inheritances of the Church and that it cannot be agreeable to Right and Justice that Pupils under age through the negligence or default of the Guardians should suffer losse or disinheritance I pray well weigh whether it wil not amount even to a crying sinne in the King to doe or suffer such an injustice to be done to his Pupil the Church destitute of all help on earth save onely what she may justly expect from the King Solomon the wisest King on earth from the Spirit of God hath spoken it Enter not into the fields of the Fatherlesse for their Redeemer is mighty and he shal plead their cause with thee Prov. 23.10 11 And when you wel consider and weigh what an Oath the King hath taken at his Coronation you cannot I beleeve acquit the King of a flat perjury if hee shall assent to the selling away of the Bishops Lands But what I shal urge in this point is not so much to inform the King who I am verily perswaded by the illumination of Gods Spirit his frequent reading the holy Scriptures and by the Principles received from his most religious and learned Father of ever blessed memory is so fully satisfied and resolved that neither height nor depth nor any creature shall be able to separate or deterr him from the just defence of the Church as to let the world see that it was not as some ignorantly and uncharitably may term it pertinacity in the King not to assent to the destruction of the Church established but the dictate of a good conscience rightly informed And that it may well be so be pleased to hear and consider what how to whom where when the King swears For being to be Crowned King of England in the convention or presence of his Nobles Clergy and People in the Church the Bishop askes the King Sir will you grant and keep and by your Oath confirm the Lawes Customes and Franchises granted to the Clergy according to the Lawes of God The King answers I grant and promise to keep them Then the Bishop speakes to the King Our Lord and King we beseech you to grant and preserve to us and to the Churches committed to our charge all Canonical Privileges and due Lawes and Justice and that you would protect and defend us as every good King ought to be a Protector and Defender of the Bishops and Churches under his Government The King answers with a willing and devout heart I promise and grant that I will preserve and maintaine to you and the Churches committed to your charge all Canonical Privileges and due Law and Justice and that I wil be your Protector and Defender to my power by the assistance of God as every good King in his Kingdome by right ought to protect and defend the Bishops and Churches under his government Then the King at the Communion Table makes a solemn Oath in the sight of all the people laying his hand upon the holy Book and saith The things that I have before promised I shall perform and keep So help me God and the contents of this Booke Now I beseech you all good Christians judge whether this be not an Oath able with feare and reverence to bind the King to the performance For 1. it is taken by the King Gods Anointed 2. In Gods House the holy Church 3. At Gods holy Table 4. Upon Gods holy Book 5. Tendered by Gods Ministers the Bishops 6. In the presence sight and hearing of Gods people 7. To defend Gods servants the Bishops and the Church 8. With the imprecation of Gods curses and forfeiture of Gods blessings in case of not performance so that if ever Oath could truely be called the Oath of God this is it And yet if I mistake not there is somewhat more that adds strength to the Obligation of this Oath and that is That it is upon a contract betwixt the King and the Bishops for so the Oath is tendered to the King by and for the Bishops and from such a Contract and Oath if just and lawfull as this is who can absolve but he alone who is concerned and to and for whom the Oath and Contract is made which are onely God and the Bishops I have cast mine eye upon a Treatise touching the Kings Oath published by Order and written by Mr Geree Preacher of Gods Word at Saint Albans wherein hee goes about to perswade that the King without impeachment of his Oath at his Coronation may assent to the abolishing of Episcopacy I cannot without a great digression answer his Arguments which might easily be done from his own words and grounds but in stead thereof I shall set down his own words whence I hope it will appeare clearly that the King cannot saving that his Oath assent to the selling away the Church Lands His words are these The intention of that Oath is not against Legal wayes of change but against invasion of the Rights of the Clergy So that if selling the Lands of the Church be such an invasion then he professeth that the King by his Oath is bound from it and whether it be so or no in his sense and judgement heare himselfe speake in the same Treatise where he expresly saith To abolish Prelacy and to seize the lands of Prelates to any private or civil interest undoubtedly could neither want staine nor guilt So that by the plaine expresse verdict of this Preacher of Gods Word the King is proclaimed before hand to be a man of a stained and guilty conscience if he assent to the selling Church-Lands according
Lawes affirmes that in all ages without any controversie this hath held so that no Act of Parliament bindes the Subject of this Land without the assent of the King either for person lands goods or same and refers you to Sr Edward Coke where many Law-books are cited to that purpose 1 part Insâ—it sect 234. The ignorant or wilful mistake of divers holding the two Houses and their Ordinances to be truly called Parliaments and Acts of Parliaments as it hath deceived many in their consciences and of their lives so may it in this of their moneys if not timely foreseen and prevented Argum. 9 But though the King in his natural capacity and power be personally absent from the two Houses yet his Politick power and capacity is virtually in them and therefore what the two Houses ordain must as necessarily bind as if the King were personally present with them Resp In answer to this I pray consider what that great Lawyer Mr Plowden and Sr Edward Coke have determined for Law Comment f. 21â— 242. In Calv. Case and they say that the Natural and the Politick body of the King make but one body for as long as the Natural body lives the Politick is inherent in it this being a thing imaginary and invisible And I pray consider how well our Law may be called Holy in that it agrees so well with Gods own holy Law Rom. 13.1 2. for so Saint Paul speaking of the Politick power not to be resisted settles this power in the person of the King to whom it belongeth when he saith Ver. 3. Ver. 4. Wilt thou not feare the power then doe that which is good for He not they is the Ruler and He not they it the Minister of God And Saint Peter differs not but rather declares the same when he thus speakes 1 Pet. 2.13 14. Submit your selves to the King as supreme and honour the King and what can hence be lesse inferred then this that the power whereby he is a King and his Supremacy whereby he is above all naturally resteth in the person of the King and therefore he is to be honoured for his power and he to be submitted unto because he is King and Supreme Now can any man reasonably conceive that this power being an essential accident inhering in the King shoulâ— without the Kings consent and will vanish from its own proper subject and be of it selfe truly inherent in another subject which is not capable of such an accident I say not capable for the two Houses being and remaining Subjects witnesse their owne usual stile We Your Majesties humble Subjects are not a subject capable of Supremacie in that Supremacie and Subjection are opposite Relatives and therefore cannot be at one and the same time in one and the same subject The King I grant though bodily absent yet may be present representatively in the two Houses speaking either by his great Seal or by his Commissioners by himself appointed which hath been often used in our Parliaments but to say that his power is in the two Houses without his will or grant is all one as if we should say the influence of the Sun should be inherent in the earth without the natural inclination or motion of the Sun seeing that as no body can be the proper subject wherein that influence doth naturally inhere but the Sun so no body nor persons can be the proper subject to containe and hold Royal Power and Supremacie but the person of the King or they to whom he will as the Sun dispense the rayes or influence thereof And if it hath been or now may otherwise be why I pray both now as heretofore have and doe the two Houses supplicate desire crave and beseech the King to give his Royal assent which naturally ariseth from that his Politick capacity and power thereby to make that Law without which Royal assent no man worthy the name of a Lawyer ever held that any Bill Decree or Ordinance was of force to bind the Subject as to a standing and continuing Law which is plainly shewed in Answer to the Argument next before But notwithstanding that an Act made by the King Lords and Commons doth bind yet if that Act be as I before have proved this Ordinance of selling the Church-Lands to be against Gods and mans Laws it is to be repealed because it is unlawful and unjust so to ordain or enact and the Parliament should do nothing against Law and Justice Argum. 10 I have read this Argument in print that God no where commands such Lands to be given or Bishops to hold them and therefore where no breach of a Commandement is there is no sin Resp It appears that King David intended to build an house to the Lord but the Lord would not that David should build it and yet the Lord said David did well 1 Reg 8.17 18 19. that it was in his heart to doe it God commended and accepted of Davids act although that act were no where commanded to King David And in Ezra mention is made of the free-will-offerings of those who offered willingly for the House of the Lord Ezra 1.3 7. whereas elsewhere under the Law the general precept for Free-will-offerings to God his House and Servants is avowed to be a part of Gods Service although the particular offerings of what how much is left un-commanded to every mans liberty to give this or that more or lesse as God shall put into his heart And although there be no particular command to this or that man to give this or that to Gods Service and Honour yet under the general Precepts Prov. 3.9 Luke 6.38 Honour the Lord with thy substance and Give and it shall be given unto you there is warrant enough if not Precept according to every mans ability freely to give and offer to God for his Honour and Service whether by money lands or other goods Let me aâ—â— Where doth Christ command the Jewes and Gentiles to feed and clothe his Disciples and Apostles What then Were they not to do it And Saint Paul cals the Corinthians Offerings 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1 Cor. 16.3 Luke 22.1 liberality and the Corban of the Jewes as before cited was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 gifts now gifts and liberalities are free-offerings and not duties of command And saith not Christ Luke 17.9 10. Doth he thanke that servant that did the things commanded I trow not He who will allow God no more then what commanded shall in this robb God of his offerings the Donors of their reward and his servants of their relief and it would prove a pestilent Jewish opinion and too great an enemy to Christianity which consists as in voluntary sufferings so in voluntary offerings above that which is in special commanded To conclude the Ministers under the Gospel hold not their lands by any special command or Precept from God but by free-gift of the Donor man