TWO TREATISES The FIRST Proving both by HISTORY RECORD THAT THE BISHOPS ARE A Fundamental Essential Part OF OUR English Parliament The SECOND That they may be JUDGES IN Capital Cases LONDON Printed by Tho. Braddyll for Robert Clavell at the Peacock in S. Pauls Church-Yard 1680. THAT THE BISHOPS MAKE A FUNDAMENTAL ESSENTIAL PART OF THE English Parliament THough the Demerits of this Sacred Order of men is sufficiently known and acknowledged though their Sufferings in the late ill times are notorious to the whole world and no less a Scandal to this Nation I speak of those who then traiterously usurped the Name and Title of the Supreme Authority of England yet there are not still wanting those of the old Leaven who endeavour to embroil us again who still raise and maintain the old Scruples and Jealousies and endeavour as much as in them lies to put us again into the old and preternatural Ferments of 42 't is strange you will say that a Nation should be twice undone by the same ways and method that the evil success we all of us felt save those of the Independent Faction should not deter us from endeavouring the like unsetlements for the future I wish our Fears and Jealousies were groundless but so long as the old and baffled Arguments are rallied by such men so long as they proceed to make ill use of the Indulgence of their Prince and his Government under whom they live in peace and endeavour to unravel the Constitutions of our Parliaments hereby to bring us into the Disorders under which we so lately groaned and out of which by the goodness of God we are now in safety escaped it will not I hope be thought unseasonable to any person who is a Friend to his Prince or Country or to himself in his own quiet and settlement which he now enjoyes to mind and to advise him I hope 't is no ill counsel stare super vias antiquas to tread in and keep to the old paths Regia via est tuta via the Kings way is the safest and best of ways Let us then in the Name of God see what were the ancient usages the old Constitutions under which we and our Forefathers were happy our ancient Kingdom so famous throughout the whole Civiliz'd World hath flourished and become so renown'd as erst it hath been And seeing a great Question hath of late and is now again raised concerning the Sacred Order of Bishops as to their Right of being and voting in our Parliaments we shall endeavour to evince and prove this great Point which 't is hoped may in a good measure contribute to the allaying the heats of this sort of men amongst us and who seem to be the most busie and forward in these Embroylments And that we may the more orderly and methodically proceed to evince what we have undertaken and in regard this Question is about the very Constitution of our Government we can I think do no better than to make use herein of the good old Maxim and Rule de Legibus longa consuetudine Si de interpretatione Legis quaeritur inprimis inspiciendum est quo jure Civitas retro in hujusmodi casibus usa fuerit Consuetudo enim optima interpretatio Legis est If you would know the true sence and interpretation of any Law you must especially look to the practice and usage of the Law for that Custom is the best interpretation of the Law We now seem at least some party amongst us to question whether our Bishops are an Essential part of the Parliament which together with His Majesty as to the Enacting of Laws and giving of Aids and Subsidies is the old Government under which England hath heretofore to the envy of our Neighbours flourish'd and been happy Foelices nimium bona si sua norant Angli That we may then I say put this Question out of question we shall endeavour to prove by two sorts of Arguments of which one shall be De Jure and the other De Facto the one derived from that Original Right which is vested in them the other from the constant Exercise and continual practice by which that Right hath been enjoyed in all times foregoing And first we shall begin with the proofs de jure and therein first with that which doth occur in the Laws of King Athelston one of the first Monarchs of the English Saxons Among which there is a Chapter it is chap. 11. entituled De officio Episcopi quid pertinet ad officium ejus that is to say Touching the office of a Bishop and that which doth of right belong unto it In which Chapter it is thus declared viz. Episcopo jure pertinet omnem rectitudinem promovere Dei scilicet seculi c. (†) Spelm. Couns p. 402. convenit ut per consilium testimonium ejus omne Legis scitum Burgi mensura omne pondus sit secundum dictionem ejus institutum that is to say it belongeth of right unto the Bishop to promote Justice in matters which concern both the Church and State and unto him it appertaineth that by his Counsel and Award all Laws and Weights and Measures be ordained throughout the Kingdom 2. Next we will have recourse to the old Record entituled Modus tenendi Parliamentum In which it is affirmed Ad Parliamentum Summoniri venire debere Archiepiscopos Episcopos Abbates Priores alios majores Cleri qui tenent per Comitatum aut Baroniam ratione hujus modi tenurae (*) Modus tenendi Parliamentum That all the Archbishops Bishops Abbats Priors and other Prelates of the Church who hold their Lands either by an Earls Fee or a Barons Fee were to be summoned and come to Parliament in regard of their Tenure 3. Next look we on the Chartularies of King Henry the first recognized in full Parliament at Clarendon under Henry the second where they are called Avitas consuetudines which declare it thus Archiepiscopi Episcopi universae Personae qui de Rege tenent in capite habeant possessiones suas de Rege sic ut Baroniam c. Et sicut caeteri Barones debent interesse judiciis Curiae Regis cum Baronibus quousque pervenerit ad diminutionem membrorum vel ad mortem (*) Math. Paris in H. 2. The meaning is in brief that Archbishops Bishops and all other Ecclesiastical Persons which hold in Capite of the King are to have and hold their Lands in Barony and that they ought as Barons to be present in all Judgments with the other Barons in the Court of Parl. untill the very Sentence of Death or Mutilation which was very common in those times was to be pronounced And then they commonly did use to withdraw themselves not out of any incapacity supposed to be in them by the Law of Engl. but out of a restraint impos'd upon them by the Can. of the Church of Rome 4. In the Great
Because in this present Parliament some things are to be transacted at which it is not lawful for us by the Decrees of the Holy Canons to be personally present This is the ground and reason of their protestation The wicked Customs therefore which that Monk inveighs against and which cost Becket so severe a Penance must be sought for elsewhere amongst the rest of those Sixteen Constitutions of Clarendon But whatever Opinion the Clergy of those times had of this Canon I doubt not to make it evident that it is grounded upon Principles of Superstition for as the Reverend Davenant hath Determ 11. it Quid impium quid illicitum What is in it that is impious What that is unlawful What that is contrary to the Office or Sacredness of a Priest where there is a just authority for it to bridle and restrain such as are notoriously wicked and disturbers of the Christian Commonwealth by civil penalties and corporal inflictions The Angels of Heaven think it no way disagreeable at Gods command to inflict corporal punishments upon the wicked And why should the Angels of the Church at the appointment of the King who is Gods Image upon Earth think it unlawful to adjudge the same wicked persons to deserve punishment The Act and Exercise of civil Jurisdiction of its own nature is not disagreeable to the most holy person nor any way opposite to the Sacerdotal Function We have the Authority of God himself in the practice of his most Ancient Church to justifie this Jurisdiction Under the Law God himself joyn'd it to the Sacerdotal Office it is not strange therefore nor forbidden by Divine Law that the Priest should obtain a Civil Jurisdiction We find it exemplified in Eli and Samuel and See Numb 25. 7 13. the Maccabees and all that were invested with the Office of High Priest This could not be expected amongst the Apostles because then the Civil Magistrates were not Christians yet S. Peter had once a supply of Civil Authority by a Miracle and to shew that it was not unlawful for an Apostle to give Sentence in Cases Capital He pronounc'd Saphira's Doom for Sacriledge and Lying Acts 5. 9. Behold the feet of them which buried thy Husband are at the Door and shall carry thee out But these New Masters of Israel were afraid a Sentence of Justice should defile them with the Blood of a Malefactor like the Priests and Elders among the Jews John 18. 28. when they had bought and sold the Life of our Blessed Lord and used all the Tricks that Craft and Malice could suborn to destroy him so precise they were for all that they would not go into Pilates Judgment Hall least they should be defiled and unfit to eat the Passover 'T was the Superstition of those Men to think they could render the Priests Office more Sacred and put more veneration upon his person then Gods own Institution had done They would not have him interess or concern himself in a Case of Blood least it should desecrate and unhallow his Person and stain his Function But we know that all Virtue is Ornamental and 't is as well an Act of Justice to condemn the Guilty as to acquit the Innocent 2. Here is Usurpation in this Canon and it is flatly against the King's Supremacy By this means a Foreign Power restrains the Sovereign Authority of the Kingdom from commanding the Service or making use of the Duty of his Subjects in such Cases The Force of this Canon divided the Prelates of those times between the Prince and the Pope either they did not understand or they did wilfully neglect their Duty and some Instances of the mischievous effects hereof this Gentleman gives us in his Letter He tells us p. 7 8. 5 E. 3. The Parliament was declared to be called for the redress of the Breach of the Laws and of the Peace of the Kingdom And because the Prelates were of opinion that it belonged not properly to them to give counsel about keeping the Peace nor punishing such Evils they went away by themselves and they returned no more Nor did their Disobedience stop here but the Gentleman tells us further at p. 96. That 20 R. 2. the Bishops upon occasion of the Statute of Provisors enter a Protestation against whatsoever should be done in derogation or restriction of the Power of their Holy Father the Pope saying they were sworn to his Holiness and to the Court of Rome These and the like Insolencies were the Fruits of those Immunities which the Prelates of those times received by the Decrees of those Holy Canons And as this Canon was grounded upon Superstition and did confront the Kings Supremacy so the Practice of it in those times was irrational and uncharitable First Irrational for 1. Why were the Prelates debarr'd the liberty of sitting Judges in such Cases Was it because they wanted Knowledge Reason or Discretion I suppose not If it were not because they had too little but too much of these Qualifications That was Irrational 2. That the Prelates have been and may be Judges of Misdemeanors this Gentleman does grant at p. 18. But there may be an Impeachment for sundry Offences under the name of Treason which really according to the Rule of Law are no more than Misdemeanors Why may not the Bishops sit as Judges in such Cases Must the Culprit be delivered up to Justice upon such Impeachments without any further Trial or Examination what will it amount unto This would be a kind of Hallifax-Law and that 's Irrational 3. In the Case of Sir John Oldcastle this Gentleman tells us Pag. 38 39. The Popish Bishops did excommunicate and condemn him for an Heretick and so turn'd him over to the Secular Judgment for execution yet certainly saith this Gentlem. p. 39. those good men I mean those Popish Bishops would have no more to do with him as to his further Execution that the World might see they were not men of Blood So that 't is pretended at least that this Holy Canon as they call it was design'd for Caution that the Prelates might have no hand in Blood and yet the practice is so irrational it does not sufficiently prevent it For in their Legislative capacity this Gentleman grants p. 3. that they may Sit and Vote and pass Bills of Attainder * He saith p. 51 the E. of Straffords Trial was compleated that way And p. 104. Acts of Attainder are Laws and every Freeman is supposed to give his consent to every Law either by his Representative or in person if a Member of Parliament and Bishops being Members may I think saith he claim to do it personally And though there be a great stir about such things as are preliminary and preparatory to Condemnation yet the Constitutions of Clarendon enjoyned them Let. p. 71. to attend the Court quousque perveniatur ad diminutionem Membrorum vel ad Mortem till it comes to loss of Life or Member which the
Charter made by King John in the last of his Reign we have the form of summoning a Parliament and calling those together who have Votes therein thus expressed at large Ad habendum commune concilium Regni de auxilio assidendo c. Et de scutagiis assidendis faciemus summoneri Archiepisc Abbates Comites majores Barones Regni sigillatim per literas nostras praeterea summoneri faciemus in generali per Vice-Com Ballivos nostros omnes alios qui in Capite tenent ad certum diem scil ad terminum 40 dierum ad minus ad certum locum c. (†) Id. in Job In which we have not only a most evident Proof that the Bishops are of right to be called to Parliament for granting Subsidies and Escuage and treating of the great Affairs which concern the Kingdom but that they are to be summoned by particular Letters as well as the Earls Barons or either of them A form or copy of which Summons issued in the time of the said King John is extant on Record and put in Print not many * P. 1. 20. 5. years since in the Titles of Honour 5. We have it thus in the Magna Charta of King Henry the 3 d. the Birthright of the English Subject according as it stands translated in the Book of Statutes First we have granted to God and by this our present Charters have confirmed for us and our Heirs for ever That the Church of England shall be free and shall enjoy all her whole Rights and Liberties inviolable (†) Magna Charta c. 1. But it is a known Right and Liberty of the Church of England that all the Bishops and many of the greater Clergy and peradventure also the Inferior Clergy in the said Kings time had their Votes in Parliament and therefore is to be preserved inviolable by the Kings of England their Heirs and Successors for ever Which Charter as it was confirmed by a Curse denounced on all the Infringers of it by Boniface Arch-Bishop of Canterbury (*) Math. Par. in H. 3. and ratified in no fewer than 80. suceedings Parliaments So was it Enacted in the Reign of Hdward the first That it should be sent under the great Seal of England to all the Cathedral Churches of the Kingdom to be read twice a year before the People †That they should be ready four times a year in a full County Court (*) 28 E. 1. c. 1. and finally that all Judgments given against it should be void and null (†) 28 E. 1. c. 2. the Application of which last Clause I refer to those to whom the rectifiing of the Error which to the contrary thereof hath been committed doth of right belong * 28 E. 1. c. 3. 6. We have the Protestation of John Stratford Arch Bishop of Canterbury in the time of King Edward the 3 d. who being in disfavour with the King and denied entrance into the House of Peers challenged his Place and Suffrage there as the first Peer of the Realm and One that ought to have the first voice in Parliament in right of his See But hear him speak his own words which are these that follow Amici for he spake to those that took witness of it Rex me ad hoc Parliamentum scripto suo vocavit ego tanquam major par Regni post Regem primam voce habere debens in Parliamento jura Ecclesiae meae Cantuariensis vendico ideo ingressum in Parliamento peto (†) Antiqui Brit. in Gati Stratford which makes it plain enough that the Arch-Bishop did not challenge a place in Parliament as the first Peer of the Realm either by way of favour or custom only but as a power and priviledge as he ought to have habere debent are the words in the Right of his See 7. And lastly there is the protestation on Record of all the Bishops in the Reign of King Richard the 2 d. at what time William Courtney was Arch-Bishop of Canterbury who being to withdraw themselves from the House of Peers at the pronouncing of the Sentence of Death on some guilty Lords first made their Procurators to supply their rooms and then put up their Protestations to preserve their Rights the sum whereof for as much as doth concern this business in their own words thus De jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non caeteros Suffraganos confratres compatres Abbates Priores aliosque Prelalatos quoscunque per Baroniam de Domino Rege tenentes Pertinet in Parliamentis Regis quibuscunque ut Pares Regni praedicti personaliter interesse ibidemque de Regni negotiis ac aliis tractari consuetis cum caeteris dicti Regni paribus aliis ibidem jus interessendi habentibus Consulere Tractare Ordinare Statuere Definire ac caetera facere quae Parliamento ibidem imminent facienda (†) In vita Gu. Courtney It appertains say they both by Right and Custom to the Arch-Bishop of Canterbury for the time being as also unto all the rest of his Compeers as well as the Suffragan Bishops as to the Abbots Priors and other Prelates whatsoever which hold their Land by Barony of our Lord the King to be personally present at all Parliaments as Peers of the Realm and there together with the rest of the Peers and all other which have Right to be therein present to Consult treat of and Ordain and finally to determine and establish all such things and matters as are accustomably handled and ordained in Parliaments Which sets the matter as I take it beyond all dispute as to the first of these two heads or sorts of Arguments whereby I was to prove this point which were those de jure Let us next see whether this Right of theirs be confirmed and countenanced by continual practice and that they have not lost it by Discontinuance which is my second kind of Argument those I mean de facto And in this way of proof we can go as high as the first preaching of the Gospel to the English Saxons and so descend unto those last times without interruption By which it will appear that Christianity in this Nation and the Bishops Votes in Parliaments and Common Councils are of like Antiquity For first no sooner had King Ethelbert received the Gospel but presently we read that as well the Clergy as the Laity were summoned to the Common Council which the Saxons sometimes called Mycell Synoth the great Assembly and sometimes Witennegemote the Councel or Assembly of the Wise men of the Realm Anno 605. Ethelbertus Rex in fide corroboratus Catholica c. Cantuariae convocavit Commune Consilium tam Cleri quam Populi King (†) H. Spelman in Conc. p. 116. Ethelbert as my Author hath it being confirmed in the Faith in the year 605. which was but nine years after his Conversion
together with Berha his Queen their Son Thalbald the Reverend Archbishop Augustine and all the rest of the Nobility did solemnize the Feast of Christs Nativity in the City of Canterbury and did there cause to be assembled on the 9th of January the Common Council of his Kingdom as well the Clergy as the Lay-Subject by whose Consent and Approbation he caused the Monastery by him built to be dedicated to the honour of God Almighty by the hand of Augustine And though no question other Examples of this kind may be found amongst the Saxon Heptarchies yet being the West Saxon Kingdom did in fine prevail and united all the rest into one Monarchy we shall apply our selves unto that more punctually and with greater care I. And first we read of Egbert who first united the seven Kingdoms of the Saxons under the common name of England that he caused to be convened at London his Bishops and the Peers of the highest Rank pro consilio capiendo adversus Danicos Pyratas (*) Charta Whitlagii Mercyorum Regis ap Ingulph to advise upon some course against the Danish Pyrates who infested the Sea-coast of England II. Another Parliament or Council call it which you will called at Kingbury Anno 855 in the time of Ethelwolph the Son of Egbert pro negotiis Regni (†) Charta Bertult mer. Regis ap Ingulf to treat of the Affairs of the Kingdom the Acts whereof are ratified and subscribed by the Bishops Abbots and other great men of the Realm III. We find that the same King Ethelwolph in a Parliament or Assembly of his States at Winchester Anno 855. Cum consilio Episcoporum Principum (*) Ingulf Croyland hist by the Advice and Counsel of the Bishops and Nobility confirmed unto the Clergy the tenth part of all mens Goods and ordered that the Tythe so confirmed unto them should be free ab omnibus secularibus Servitutibus from all secular Services and Impositions IV. The two Charters were issued out by Athelstone above-mentioned Consilio Wifelmi Archiepiscopi mei aliorum Episcoporum meorum (†) Ap. eund p. 402 403. by the advice of Wiselme his Archbishop and his other Bishops And V. That Ina in the year 902. caused the great Council of his Realm to be Assembled consisting ex Episcopis Principibus Proceribus c. of Bishops Princes Nobles Earls and of all the wise men Elders and people of the whole Kingdom and there Enacted divers Laws for the weal of this Realm (*) Ap. eund p 219. We also read this in the Reign of Edrid Anno 948. viz. in festo igitur Nativitatis Beatae Mariae cum universi Magnates Regni per Regium Edictum summoniti tam Archiepiscopi Episcopi ac Abbates quam caeteri totius Regni Proceres Optimates Londini convenissent ad tractandum de negotiis publicis totius Regni (†) Id. ibid. p. 497. edit Lond. That in the Feast of the Nativity of the Blessed Virgin the great men of the Realm that is to say Archbishops Bishops Abbots Nobles Peers were summoned by the Kings Writ to appear at London to handle and conclude about the publick Affairs of the Kingdom Mention of which Assembly is made again at the Foundation and Endowment of the Abbey of Crowland (†) Mad p. 500. and afterwards a Confirmation of the same by Edgar Anno 966. Praesentibus Archiepiscopis Episcopis Abbatibus Optimatibus Regni (*) Id. p. 5. p. 1. 50. In the presence of Archbishops Bishops Abbots and Peers of the Realm The like Convention of Estates we find to have been called by Canutus the Dane after the death of Edm. Ironside for the setling of the Crown on his own head of which thus the Author (†) Rog. Hoved. Annal pag. prior p. 250. Cujus post mortem Rex Canutus omnes Episcopos Duces nec non Principes cunctosque Optimates gentis Angliae Londini congregari jussit Where we still find the Bishops to be called to Parliament as well as the Dukes Princes and the rest of the Nobility and to be ranked and marshalled first which clearly shews that they were always reckoned for the first Estate before the greatest and most eminent of the Secular Peers And so we find it also in a Charter of King Edward the Confessor the last King of the Saxon Race by which he granted certain Lands and Priviledges to the Church of Westminster An. 1066. Cum Concilio Decreto Archiepiscoporum Episcoporum Comitum aliorumque Optimatum (*) ap H. Spel. in Concil p. 630. with the Counsel and Decree of the Arch-bishops Bishops Earls and others of his Nobles And all this while the Bishops and other Prelates of the Church did hold by no other Tenure than in pura perpetua Eleemosyna (†) Camden in Brit. or frank Almoygne as our Lawyers call it and therefore sate in Parliament in no other capacity than as Spiritual persons meerly who by their extraorinary knowledge in the Word of God and in such other parts of Learning as the world then knew were thought best able to direct and advise their Princes in all points of difficulty But when the Norman Conqueror had possest the State then the case was altered The Prelates of the Church were no longer suffered to hold their Land in Frank Almoigne as before they did or to be free from Secular Services and Commands as before they were Although they kept their Lands yet they changed their Tenure and by the Conqueror were ordained to hold their Lands sub militari servitute (*) Mat. Paris in Will 1. An. 1070. either in Capite or by Baronage or some such military hold and thereby were compellable to aid the King in all times of War with Men Arms and Horses as the Lay-Subjects of the same Tenures were required to do Which though it were conceived to be a great Disfranchisement at first and an heavy burden to the Prelacy yet it conduced at last to their greater honour in giving them a further Title to their Place in Parliament than that which formerly they could pretend to Before they claimed a place therein ratione Officii only by reason of their Offices or Spiritual Dignities but after this by reason also of those Baronies which were erected and annexed to their several Dignities En respect de leur possessions l'antient Baronies annexes a leur Dignities (†) Stratford Pleas. l. 3. as our Lawyers have it From this time forwards we must look upon them in the House of Parliament not as Bishops only but as Peers and Barons of the Realm also and so themselves affirmed to the Temporal Lords in the Parliament holden at Northampton under Henry the Second Non sedemus hic Episcopi sed Barones Pares hic sumus (*) Selden titles of hon p 2. 18. We sit not here say they as Bishops only but as Barons we are Barons and you are
and is the very and undoubted Heir of this Realm of England c. And 3ly So it is acknowledged in a †Statute of 1 El. c. 3. where 1 Eliz. c. 3 the Lords Spiritual and Temporal and the Commons in that Parliament assembled being said expresly and in terminis to represent the three Estates of the Realm of England did recognize the Queens Majesty to be their True Lawful and undoubted Sovereign Lieg'd Lady and Queen And in a Statute of the 8th year of the said Queens Reign the Bishops and Clergy are declared to be the greatest Estates of the Realm and called the High Estate of Prelacy in another place It may perhaps be thought unnecessary or impertinent to add the Testimony and Authority of a private person to that which hath been said by our Laws and Statutes But being it is such a Person as was accounted for the Oracle of the Law when he served in Parliament his Judgment may be taken for a creditable and sufficient Evidence in the present Case It is the Testimony and Authority of Sir Edward Coke successively Chief Justice of either Bench who in his Book Concerning the Jurisdiction of Courts speaks thus of Parliaments (†) Coke of Parl. fol. 1. This Court saith he consisteth of the Kings Majesty sitting there as in his Royal Politick Capacity and of the Three Estates of the Realm viz. of the Lords Spiritual Archbishops and Bishops who sit there by Succession in respect of their Counties Baronies parcel of their Bishopricks which they hold also in their Politick Capacity and every one of these when any Parliament is to be holden ought ex debito Justitiae to have a Writ of Summons Secondly The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Descent or Creation and likewise every one of these being of full age ought to have a Writ of Summons ex debito Justitiae The Third Estate is the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Burghs All which are respectively Elected by the Shires or Counties Cities and Burroughs by force of the Kings Writ ex debito Justitiae and none of them ought to be omitted And these represent all the Commons of the whole Realm and are trusted for them So He and this is plain enough beyond exception Add hereunto ex abundanti that in all Christian Kingdoms of the Gothick Model there are no more nor fewer than three Estates convented at the Will and Pleasure of the Supreme Prince for their assistance and advice in Affairs of consequence that is to say the Bishops and other Ecclesiastical persons who are alwayes one the Nobles for themselves and the Commissioners for the Commons of their several Provinces for so we find it in the Constitutions of the Roman Empire and the Realms of Spain the Kingdoms of France Poland Hungary together with those of Denmark Sweden and the Realm of Scotland And it were strange if in the Constitution of the English Parliaments or Conventus Ordinum the Bishops should have been left out and none at all elected to present the Clergy But being admitted with the rest in those publick Meetings and being looked on as the First Estate in the Stile of that Court it must needs be that their Exclusion shakes the very Fundamentals of the said Assemblies and makes the whole Body to be maimed and mutilated for want of such a principal Member so necessary to the making up of the whole Compositum But against all this it is objected first that some Acts have passed in Parliament to which the Prelates did not Vote nor could be present in the House when the Bill was passed as in the sentencing to death or mutilation of a guilty Person as doth appear by the Laws and Constitutions recognized at Clarendon and the following practice This hath been touched on before and we told you then that this restraint was laid upon them not by the common Law of England or any Act or Ordinance of the House of Peers by which they were disabled to attend that service It was their own voluntary Act none compelled them to it but only out of a conformity to some former Canons ad Sanctorum Canonum instituta (†) Antiqui Brit. in Gul. Courtney as their own words are by which it was not lawful for the Clergy Men to be either Judges or Assessors in causa sanguinis (*) Constitut Othob Fol. 45. And yet they took such care to preserve their Interest that they did not only give their Proxies for there presenting of their Persons but did put up their protestations with a salvo jure for the preserving of their Rights for the time to come Jure Paritatis interessendi in dicto Parliamento (†) Antiqu. Brit. in Gul. Courtney quoad omnia singula ibi exercendi in omnibus semper salvo as the manner was Examples of which are as full and frequent as their withdrawing themselves on the said occasions But then the main Objection is that as some Acts have passed in Parliament absentibus Prelatis when the Bishops did absent themselves of their own accord so many things have been transacted in the Parliament Excluso Clero when the Clergy had been excluded or put out of the House by some Act or Ordinance A President for this hath been found and published by such as envied that poor remnant of the Churches honour though possibly they will find themselves deceived in their greatest hopes and yet the evidence will not serve to evince the cause The Author of the Pamphlet entituled the Prerogative and practice of Parliaments first lays this Tenet for his ground That many good Acts of Parliament may be made though the Archbishops and Bishops should not consent unto them †which is a point * Printed at Lond 1628 p. 31. that no man doubts of considering how easily their Negative may be over-ruled by the far greater number of the Secular Peers Then he adds that in a Parliament held at St. Edmundsbury 1196. in the Reign of Edward the first a Statute was made by the King the Barons and the Commons excluso Clero and for the proof hereof refers us unto Bishop Jewel Now Bishop Jewill saith indeed That in a Parliament held at St. Edmundsbury by King Edward the first Anno 1296. the Archbishops and Bishops were quite shut forth and yet the Parliament held and good and wholsome Laws were there Enacted the departing or absence of the Lords Spiritual notwithstanding (†) Defence of the Apol. part 6. c. 2. S. 1. In the Records whereof it is written thus Habito Rex cum Baronibus suis Parliamento Clero excluso statutum est c. The King keeping the Parliament with his Barons the Clergy that is to say the Archbishops and Bishops being shut forth it was enacted c. Wherein who doth
the King's Council which the King granted yet afterwards 51 E. 3. at the Request of the Commons themselves he was restored to all and declared innocent This Gentleman was so sensible of this their Prejudice and Rashness attended with so much Levity that he could not pass it by without setting some Remark upon it p. 12. But when Justice Loyalty and Honour governs their Debates and Resolutions we may put the King and to use his own Illustration all the Three Estates of Parliament into the same Nest of Boxes and yet their respective Interests which is the Interest of the whole Kingdom interwoven will be secure and preserv'd inviolate But the Gentleman tells us further That if the Bishops be one of the Three Estates nothing can pass in Parliament without them This may be generally true among States coordinate without a Sovereign Head over them and when a Rival is set up to give Check-mate to the Sovereign Authority as it was in the time of Hen. 8. mentioned by this Gentleman at p. 92. when the Question was To whom the Supream Jurisdiction did belong to the King or to the Pope In the time of such a Competition the Crown is obliged to secure it self against such an Usurpation and does most justly abandon the Clergy that sides with it But 2. If Acts have passed without the Bishops they have likewise done so as by him is said sometimes without the Commons Egbert who first united the Seven Kingdoms of the Saxons under the common Name of England he caus'd to be conven'd at London His Bishops and Peers of the highest Rank to advise upon some course against the Danish Pyrates this was a Military Business and Bloud-shed might have ensued upon the Stubbornness of those Pyrates who infested the Sea-Coast of England And King Ethelwolph in Parliament or Assembly of his States at Winchester Anno 855. by the Advice These Great Councils were the Parliaments of those Times Let. p. 72. and Counsel of the Bishops and Nobility confirm'd unto the Clergy the Tenth Part of all mens Goods and Ordered that the Tythe so confirmed unto them should be free from all Secular Services and Impositions And Wingate in his Abridgment and the Word Parliament tells us out of the Mirrour of Justices of an Act in Aelfred's Time That Parliaments should be held twice a year and oftner if need requir'd But note saith he This was by the King and Lords only And I believe we may observe the like practice among some of this Gentleman's Precedents But it is much more satisfactory when the Laws are Enacted by the Sovereign Authority at the Request of the Commons with the consent of the Lords Spiritual and Temporal that is by the King with the joint Assent of the Three Estates of Parliament let us not therefore dissolve or drive them away when we have them That which is alledged out of Bishop Jewel and Crompton I refer you to the Answer of the Quodlibetical Question for your p. 93. to 98. satisfaction That King James was of this Judgment is evident from the very Words and Speech produced by this Gentleman to the contrary The Parliament saith he is composed of a Head and a Body The Head is the King the Body are the Members of the Parliament This Body again is subdivided into two parts the Upper and the Lower House the Upper House compounded partly of Nobility Temporal men who are Hereditable Counsellors to the High Court of Parliament by the Honour of their Creation and Lands and partly of Bishops Spiritual men who are likewise by virtue of their Place and Dignity Counsellors ad vitam Life-Renters of this Court. The other House is compos'd of Knights for the Shires and Gentry and Burgesses for the Towns Here we see though the King makes but Two Houses yet he does clearly distinguish them into Three Estates though he does not call them so To what is said by Stephen Gardiner and Finch I oppose the Testimonies of Livy Selden Cooke and Sheppard To the Expressions of the Late King of B. Memory in his Answer to the 19 Propos when he was fluctuating in the midst of a Storm gathering round about him and to the Declaration of the Commons 2 H. 4. n. 32. I might Answer That the Upper House in a large sense consisting of Lords Spiritual and Temporal sitting and voting together may be taken for One Estate But taken precisely and in a strict sense as their Concerns and Interests are distinct so they are clearly Two But to those Authorities I shall rather oppose the Act of Recognition 1 Eliz. 3. Where the Lords Spiritual and Temporal and the Commons in that Parliament Assembled do Recognize the Queens Majesty to be their true lawful and undoubted Sovereign Lieged Lady and Queen in these words We Your most Faithful Loving and Obedient Subjects representing the Three Estates of this Realm which evidently sheweth the Queen was not there esteemed one So when the Funerals of Hen. 5. were ended the Three Estates did Assemble and Acknowledge his Son King To think to elude such Evidence by saying as this Gentleman does in the like case that such Expressions are delivered obiter upon the By is to make what we fancy not in any Statute utterly void and of none effect The next Question concerns the Bishops Peerage For the Affirmative we have these things to say 1. That the Prelates are called by the same Writ for Form and Manner with that directed to the Temporal Barons so the Answer to the Quodlibetical Question That they Sit and Vote there by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in respect of their Baronies Hereupon they affirm to the Lords Temporal in Parliament holden at Northampton Hen. 2. as Selden reports We sit not here as Bishops only but as Barons we are Barons and you are Barons here we sit as Peers And some Statutes call them Peers of the Land in terminis 2. 'T is his Grace of Canterbury's Title Primus Par Angliae That the first Peer should be no Peer is an unheard of Solecism If he be a Peer the rest of the Bishops are his Com-peers what ever they are to the Lords Temporal John Stratford Archbishop of that place in the time of Ed. 3 claim'd this Priviledge in the Right of his See And the Protestat of W. Courtney elsewhere mentioned with the rest of the Bishops is another pregnant Evidence to this purpose And 25 Edw. 3. The Prelates put up this Petition to the King as the Gentleman himself relates it p. 83. Seeing Archbishops and Bishops hold their Temporalties of the King in capite and therefore are Peers of the Land as other Earls and Barons are that you will be pleased to grant unto them that no Judge may henceforward for meer contempts cause their Temporalties to be seized Here we have a Prayer that their Temporalties may not be seized and the Reason of
Lawyers understand to be the Sentence of Guilty or Not Guilty Now I would fain be resolved whether these proceedings be not in agitatione causae sanguims whether accoording p. 1. to this practice a Case of Blood be not all the while in agitation And then reflecting upon the Gentlemans Rule in Logick Causa causae est causa causati and upon the Story of Chaucer's Frier let the Reader please to peruse p. 64 65 66 of the Letter and then judge whether the practice be not as I said Irrational And then Secondly This practice of those Popish times was uncharitable for if the Bishops were debarr'd sitting as Judges in such Cases Capital out of a suspition of their Integrity it was uncharitable to the Bishops if out of a jealousie they might be too soft and yielding in their clemency it were uncharitable to the Delinquent if out of fear they might be too severe in point of Justice it is uncharitable to the Commonwealth for Discretion ought to take her Rules from Charity when Pity and when Severity are to be used for the advantage of the Publick Sometimes Justice may be provoked into Severity and when Impeachments are preferr'd with rigour 't is possible the Prudence and Piety of such grave and holy persons intervening a rash and unadvisable Sentence may be stopt and prevent a Deluge of Mischiefs which might otherwise ensue †See the Case p. 26 27 28. of the Letter Had the Bishops been present at Haxeye's Trial they might as well have prevented his Condemnation as obtained his Pardon The Canon-Law then gave the first rise and beginning to this Usage as this Gentleman seems to acknowledge p. 68. But the Ground of that Canon was Superstition and it did confront the Kings Supremacy and was irrational and uncharitable in the practice of it Let us therefore examine what Force it had and by what Authority That this was in use while the Pope had a concurrent Jurisdiction here cannot be denied but whether ever it received a Civil Sanction and an express Ratification and had the stamp of Parliament-Authority set upon it is the matter now in question And this I do stedfastly deny and the Gentleman as earnestly affirm and contend for To prove this he does alledge a double confirmation and to give it the more Credit he carries it up as high as the dayes of Edward the Confessor But I desire the Reader to observe that in the management of his Evidence he turns an Indulgence into a Prohibition a Priviledge into a compleat Act of Parliament and a Protestation into a Statute He does alledge the Year-Book of 10 E. 4. Term. Pasch n. 35. Let. p. 78. Where we have set down the manner of their Trials in Parliament When a Lord is indicted c. he shall plead Not Guilty and this shall be tried by his Peers and then the Lords Spiritual who may not consent to the Death of any man shall make their Proctor c. This saith he I alledge to shew that even by the Law of the Land the Bishops cannot be Judges in a Case Capital Here the Gentleman says Their making a Proctor was Error Temporis the Error of those Times Why Because that practise was not for his purpose But if by the Law of the Land he means the Statute-Law as he seems to do I must have a Writ of Error to reverse his Judgment For the Pope having then a concurrent Jurisdiction here in England the Canon-Law was in force amongst them and in declaring that the Lords Spiritual might not consent to the Death of any man they have respect to the Prohibition of the Canon-Law but this is not any the least confirmation of it But this Gentleman will needs have it confirmed by a Civil Sanction and so become the Law of the Kingdom The first Confirmation he saith was about the time of 10 H. p. 69 c. 2. amongst the sixteen Constitutions of Clarendon which besides the Authority of Parliament to make the Observation of them the more inviolable were established by the Solemnity p. 72. of an Oath which is the greatest Obligation that Mankind is capable of making even God a Party to it to see it obeyed and punish the Transgressors Here is a fair Plea for a solemn Confirmation if the Gentleman were not partial or mistaken in the Business But the Case was this upon the account of their Immunities the Prelates especially grew very remiss and careless of their Duties as was noted formerly Hereupon in that Great Council which was then their Parliament amongst the rest the King made this the 11th of those Constitutions The Archbishops Bishops universae personae Regni p. 71. not all the Dignified Clergy of the Land as this Gentleman renders it but all persons whatsoever who have a Tenure in capite shall hold their possessions from the King as a Barony and shall answer for their Estates unto the Kings Justices and Ministers and shall observe and obey all the Kings Laws and together with other Barons they are to be present in all Judgments in the Kings Courts This is the Duty they are obliged and solemnly sworn to and then follows an Indulgence or Priviledge till the Sentence comes to the loss of Life or Member and here they are left to their Liberty to observe the Decree of the Holy Canon Hereupon we may p. 73. build our Faith that there was really such an Usage as this Gentleman infers in ancient times and that a liberty was left to continue it according to the Canon and in veneration of it but that 't was ratified and confirmed we have not one Syllable to prove it The Second Confirmation this Gentleman finds was in 11 R. p. 18 c. 71 c. 2. upon the Protestation of the Archbishop for himself and the other Bishops And here after some fluctuation and unsteadiness p. 75. to make it a Law he tells us The subject matter enacted did consist of two Particulars the one That the Prelates had a Right to sit and vote in all other Businesses the other That they had no Right nor was it lawful for them to be present in Parliament when such Businesses were in question But the Tenour of their Protestation is That they intend to be present to consult to treat of and to determine in omnibus in all things saving their Rights their State and Dignity But because some things were to be transacted in that Parliament at which by the Decrees of the Sacred Canons it was not lawful for them to be personally present therefore they protested that while such things were in agitation they would absent themselves Which Protestation being read in Full Parliament at the instance and prayer of the Archbishop and other Prelates was entred upon the Parliament-Roll by the Kings Command with the Assent of the Lords Temporal and Commons This the Gentleman will needs contend to be a Law of Parliament or a Law