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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A30986	That the bishops in England may and ought to vote in cases of blood written in the late times upon occasion of the Earl of Straffords case / by [a] learned pen ; with some answers to the objections of the then Bishop of Lincoln, against bishops voting in Parliament.	Barlow, Thomas, 1607-1691.	1680 (1680)	Wing W2677C; Wing B845; ESTC R17167	16,504	22

That the BISHOPS IN ENGLAND May and Ought to Vote in Cases of Blood Written in the Late Times upon occasion of the Earl of Straffords Case By Learned Pen With some ANSWERS to the OBJECTIONS of the then Bishop of Lincoln AGAINST Bishops Voting in PARLIAMENT LONDON Printed for Walter Davis 1680. TO THE READER Reader THis Discourse was Written by a Learned Gentleman of the Long-Robe at the beginning of the late troubles in the Case of the Earl of Strafford but never Printed The same Question being started afresh and the consideration of it revived upon the like Occasion it is thought fit to be Published now If it minister any satisfaction to the Reader in the Case the Publisher has his end That Bishops in England may and ought to Vote in Causa Sanguinis and that they were never Inhibited by any Law of this Land or the Lay-Peers so to do before this time and that their voluntary forbearance heretofore to sentence in this Case proceeded from their own Fears of the Canons and Court of Rome and some private ends they then had And by the special leave of the King and both Houses in plein Parliament who were gratiously pleased to allow of their Protestations for their Indemnity as Church-men when they might have rejected their said Protestations if they had pleased With some Answers to the Objections of the Bishop of Lincoln 1. IT is not Prohibitum quia malum nor any way evil in it self no more than it is an evil thing in it self to do Justice 2. It was in use before the Law when the eldest of the Family was King Priest and Prophet 3. It was in use under the Law and so continued in the Priests and Levites down to Annas and Caiphas Nay after the Death of Christ as appears by the Scourging of the Apostles the Stoning of Stephen the directing of St. Paul to be smitten on the mouth c. It was in use in the persons of the Apostles themselves as in that Judgment given upon Ananias and Saphira in the first of the Acts In the Tradition to Sathan as most of the Antient Fathers expound that Censure And generally in all the Word of God there is no one Text that Inhibits Church-men more than Lay-men to use this kind of Judicature For that Precept to be no striker 1 Tim. 3.3 is no more to be appropriated unto a Bishop from the rest of Christian men than that not given to Wine or Roaring which immediately precedes the same In this Island it was in use before the Romans entered the same when the Druyds Si caedes factae poenas constituunt gave all Sentences in Causes of Blood Caes. de bello Gallico lib. 6. see Mr. Selden's Epinomis Cap. 2. Nor is it like the Romans should forbid it in Church-men whose Pontifical Colledge after the entertaining of the 12 Tables medled in all matters of this kind Strabo Geograph lib. 4. And it is not like that the Christian Religion excluded Bishops in this Island from Secular Judicatures considering that King Lucius is directed by the advice of his Council to take out his Laws for the reigling of this Kingdom Ex utraque Pagina that is out of the Old and New Testament which could not be done in that Age without the help of his Bishops See Sir Hen. Spelmans Councils pag. 34. ad Annum Domini 185. And how the great Prelates amongst the Antient Britains were wholly imployed in these kind of Secular Agitations you may see by the Ecclesiastical Laws of Howel Dha set forth by Sir Henry Spelman in his Councils pag. 408. ad Annum Domini 940. 4. And a little before this Howel Dha lived King Aethelstan In the 2 Cap. of whose Ecclesiastical Laws we have it peremptorily set down hinc debent Episcopi cum seculi Judicibus interesse judiciis and particularly in all Judgments of the Ordals which no man that understandeth the word can make any doubt to have been extended to the mutilation of Humane members Sir Spelman's Councils pag. 405. ad Annum Domini 928. 5. And that the Bishops joyned alwayes with the Secular Lords in all these Judiciary Laws and Acts under the whole Reign of the Saxons and Danes within this Island we may see by those Saxon and Danish Laws or rather Capitularies which amongst the French and Germans do signifie a mixture of Laws made by the Prince the Bishops and the Barons to reigle both Church and Common-wealth set forth by Mr. Lambert Anno 1568. see particularly the 9th Chap. of King Edwards Laws de his qui ad judicium ferri vel aquae judicati sunt per Justitiam Regis It is in Mr. Lamberts Laws fol. 128. And thus it continued in this Kingdom long after the Conquest to wit in Henry Beauclarks time after whose Reign it began first of all to be a little limited and restrained For at Clarindon Anno Dom. 1164. the 8th of the Calends of February in the 11th year of Henry the 2. a general Record is agreed upon by that Kings special Command of all the Customs and Liberties of this Kingdom ever sithence Henry the first that Kings Grand-Father as you may see in Matthew Paris pag. 96. of the first Edition where amongst other Customs agreed upon this is one Arch-Bishops Bishops and all other Persons of this Kingdom which hold of the King in Capite are to enjoy their Possessions of the King as a Baronie and by reason thereof are to answer before the Judges and Officers of the King and to observe and perform all the Kings Customs And just as the rest of the Barons ought for it was a duty the King then required from them as the King now by his Summons doth from us to be present in the Judgments of the Kings Courts together with the rest of the Barons until such time as they shall there proceed to the mangling of members or Sentence of Death And here in the last words is a diversity of reading For Matthew Paris a young Monk that lived long after reads this Custom thus Quousque perveniatur ad diminutionem membrorum vel ad mortem Which may be wrested to the first agitation of any Charge tending that way But Quadrilogus a Book written in that very Age and the Copy of the Articles of Clarindon which Becket sent to Rome extant at this day in the Vatican Library and out of the which Baronius in his Annals ad Annum 1164 transcribes it reads the Custom thus Vsque perveniatur in Judicio ad diminutionem membrorum c. which leaves the Bishops to sit there until the Judgement come to be pronounced amounting to Death or mutilation of members And as this was agreed to be the Custom so was it the Practise also after the 11th year to wit in the 15th year of Henry the 2. At what time the Lay-Peers are so far from requiring the Bishops to withdraw that they endeavour to force them alone to hear and determine a matter

they backed with one of the Canons of the Apostles as they call them the 7th in Number yet is it clear their main Authority is fetch'd from this obscure Synod of Toledo where 18 Bishops only were convened under Bamba the Goth who of a Plow-man was made a King and of a King a cloistred Monk as you may see in the History of Rodericus Santius par 2. cap. 32. This is all the goodly ground that either Gratian in his Decrees or Innocentius the 3d in the Decretals or Roger Hoveden in his History alledge against the Ecclesiastical Peers and their sitting as Judges in Causes of Blood to wit this famous Gothish Council of Toledo The first that openly planted this Canon here in England was Stephen Langton a Cardinal the Popes Creature as his Holyness was pleased to stile him in his Bull and thrust upon the See of Canterbury by a Papal Provision where he continued in Rebellion against his Soveraign as long as King John lived This Arch-Bishop under Colour of Ecclesiastical Immunity as this Canon is Marshalled by Lindwood at Osney neer Oxford did Ordain Ne quis Clericus beneficiatus vel in sacris ordinibus constitutus that no Clergy-man having a Benefice or otherwise in Holy Orders should presume to be present in that place Vbi judicium sanguinis tractatur vel exerceatur And this is the first Canon Broached in this Kingdom to this Effect That of Othobon being subsequent in time and a meer Forraign or Legatine Constitution See it at large in Lyndwoods Constitu lib. 3. at the end of the Book And by Vertue of a branch of this very Constitution the now Arch-Bishop 2 years sithence Fined the Bishop of Glocester in the High Commission because he had given way in time of Pestilence only that a Sessions or Judgment of Blood might be kept in a Sacred place which was likewise Inhibited in this Canon But this admits of a Multitude of Answers 1. Quod haec Dictio Clericus ex vi verbi non comprehendit Episcopum This word Clerk in the Canon Law reacheth not to a Bishop or a Peer of the Realm saith Lyndwood in his third Book cap. de Locatis Conductis 2. The Irregularity incurred by Judicature in Causes of Blood is only Jure positivo and therefore dispensable by the Pope saith Covarruvias in Clem. Si furiosus Par. 2. § 5. no 1. And here in England it is Dispenced with in Bishops by the King who in his Writs or Summons to the Parliament Commands the Lords Spiritual without any exception of Causes of Blood to joyn in all Matters and Consultations whatsoever with the Temporal Peers of the Kingdom these Summons being unto them a sufficient Dispensation so to do And Othobon himself Inhibiting other Clerks to use these Secular Judicatures hath a Salvo to preserve the Priviledges of our Lord the King whereby he may use any of their Services in that kind when he shall see Cause in the Title called Ne Clerici jurisdictionem saecularem exerceant A Lyndwood in his Gloss upon that Text doth instance in the Clerks of the Chancery and others Nor are these Writs of the Bishops Dispensations only but Mandates also and Bishops have been Fined at the Kings-Bench and elsewhere for Absenting themselves from Counsels in Parliament as now they are required to do without the Kings special leave and Licence first Obtained 3. When they are forbidden Interesse to be present the meaning is not in the very Canons themselves that they should go out of the Room but only that they should not be present to add Authority Help or Advice to any Sentence Pronounced against a particular individual Person in a Cause of Blood or mutilation of Members If he be present Authorizando consilium opem vel operam dando then he Contracts an Irregularity and not otherwise saith our Lyndwood out of Innocentius And the Canon reacheth no further than to him that shall Pronounce Sentence of Death or mutilation upon a particular Person For Prelates that are of Council with the King in Parliament or otherwise being demanded the Law in such and such a Case without naming any individual Person may Answer generaliter loquendo as that Treason is to be punished with Death and a Counterfeiter of the Kings Coyn is to be Burned c. Cardinal Hostiensis lib. 2. cap. de fals monet Allowed by John Montague de Collatione Parliamentorum in Tractat. Docto● vol. 10. pag. 121. 4. These Canons are not in Force in England to bind the Subjects of this Kingdom for several reasons 1. Because they are against his Majesties Prerogative as you may see it clearly in the Articles of Clarendon and the Writ of Summons and therefore abolished by the Statute of 25º of Henry the 8 th It is his Majesties Prerogative declared at Claredon that all such Ecclesiastical Peers as hold of him by Barony should Assist in the Kings Judicatures until the very actual pronouncing of a Sentence of Blood And this holdeth all along from Henry the first down to the latter end of Queen Elizabeth who imployed Arch-Bishop Whitguift as a Commissioner upon the Life of a Personage not to be named without Horror and as the first keeper and examiner of Robert the most Noble Earl of Essex after that Commotion in London And to say that this Canon is Confirmed by Common Law in this Kingdom is a very Tale there being nothing in all the Common Law that tends that way 2. It hath been Voted in the House of Commons this very Sessions of Parliament that no Canons sithence the Conquest either Introduced from Rome by Legatine Power or made in our Synods never had in any Age nor yet have at this Instant any Power to bind the Subjects of this Realm unless they be Confirmed by Act of Parliament Now these Canons which Inhibit the presence of Church-men in Causes that concern Life and Member were never Confirmed by any but seem to be Impeached by diverse and sundry Acts of Parliament 3. The whole House of Peers have this very Session despised and set aside this Canon Law which some of the young Lords cry up again in the same Session and in the very same Cause to take away the Votes of the Bishops in the Case of the Earl of Strafford For by the same Canon-Law that forbids Clergy-men to Sentence they of that Coat are more strictly Inhibited to give Testimony in Causes of Blood Nec etiam potest esse Testis vel Tabellio in Causa Sanguinis saith my Lyndwood fol. 146. pag. 2. For no man co-operates more to a Sentence of Death than the Witness upon whose attestation the Sentence is principally Founded saith Lopez in his Practica Criminalis Cap. 98. Dist. 21. And yet have these Lords admitted as Witnesses produced by the Commons against the Earl of Strafford the Arch-Bishops of Canterbury and Armache together with the Bishop of London the which Lords now Command all Bishops to withdraw in the