Attainder are Laws and every Freeman is supposed to give his consent to every Law either by his Representative or in person if a Memer 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 Let. p. 71. yet the Constitutions of Clarendon enjoyned them to attend the Court quousque perveniatur ad diminutionem Membrorum vel ad Mortem till it comes to loss of Life or Member which the 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 sanguinis p. 1. whether according 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 p. 69 c. he saith was about the time of 10 H. 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 of an Oath p. 72. 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 not all the Dignified Clergy of the Land p. 71. 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 the 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 p. 73. Hereupon we may build our Faith that there was really such as 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. 2. upon the Protestation of the Archbishop p. 18 c. 71 c. 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
AN ANSWER TO THE GENTLEMANS Letter to his Friend SHEWING THAT BISHOPS MAY BE JUDGES IN Causes Capital PSAL. 82.1 Deus stat in Congregatione Dei in medio Deorum judicat LONDON Printed by Tho. Braddyll for Robert Clavell at the Peacock in S. Pauls Church-Yard 1680. AN ANSWER TO THE GENTLEMAN's Letter to his Friend SHEWING THAT BISHOPS MAY BE JUDGES IN CAUSES CAPITAL SIR I Thank you for the Gentleman's Letter you sent me touching the Right of Bishops sitting as Judges in Cases Capital This Order of Men is not Sacred enough it seems in the Constitution to secure it against the Iniquity of these last Times Attempts of Rage and Extirpation Not to mention Martin Mar-Prelates nor others of former Times within our own Memory Mr. Prym led up the Van against them 1640. in a Book of this Title viz. Lord-Bishops none of the Lords Bishops After their Divine or Apostolical Constitution they began to question their Right to Sit in Parliament This occasioned that Quodlibetical Question Whether the Bishops make a Fundamental and Essential part of the English Parliament The Rational and Solid Answer to which Question was Printed in 1661 and now Reprinted as then put forth at first for the Information of some the Confirmation of others and the satisfaction of all The Gentleman who wrote this Letter seems to grant the Bishops a large share of Power within this Kingdom yet as to Secular Matters he does insinuate some kind of Prohibition they are supposed to lie under though his Arguments are very inconsequent to prove it The Rescript of Honorius he saith Theodosius the Decree of Justinian forbid them to have to do in Secular Matters Therefore the Kings of England who are of another Mind upon good experience of their judgment and fidelity may not admit them to have any Communion with Publick Functions Nor is the Argument less inconsequent which the Gentleman insinuates from the Apostles Declaration and Practice The Argument must be this A few men are appointed by our Lord to propagate the Gospel and plant the Christian Church all the world over and they think it unreasonable they should neglect this generous Employment impos'd upon them immediately from Heaven to serve Tables that is to relieve the Temporal Needs of indigent Disciples therefore when the Church is generally established Bishops setled in every Diocess and Ministers in every Parish it is equally unreasonable that the King should intrust any of the Clergy with any Secular Employments But after these By-blows this Gentleman tells us This is none of his business which he had therefore done better to have let alone 'T is the Critical point he stands upon which he calls Vexata Quaestio what is to be done in Parliament that is in their Judicial way upon Trials not in their Legislative Capacity passing Acts of Attainder in which the Gentleman is pleased to confess I know that Bishops have born a part but saith he that is not now the Question but only this Whether the Lords Spiritual have a Right to stay and sit in Court till the Court proceeds to the Vote of Guilty or Not Guilty This Gentleman concludes They ought not But the Question truly and precisely stated is only this Whether of Right they may or may not And having diligently examined what hath been said on both sides as the Gentleman hath advised me I profess to differ from him finding no sufficient Reason to change my Opinion which is for the Affirmative But the better to carry on his Negative this Gentleman falls upon Two Questions more which may be thought preliminary to this other The First is touching the Peerage of the Lords Spiritual The Second Whether they make a Third Estate in Parliament These two fall in collaterally and must be considered before we fall upon his main Battalia mustered up for the Defence of the Opinion we oppugn 1. That the Bishops make a Third Estate in Parliament there is very much alledged in the Treatise forementioned from the Examples of all Christian Kingdoms of the Gothick Model from Titus Livius Sir Edward Cooke the Parliament Rolls of King Richard the Third and the Recognition of the Lords Spiritual and Temporal with the Commons 1 Eliz. 3. 8. and what is argued from thence p. 16 17. of the Rebels Plea Printed 1660. to which I shall add that Mr. Sheppard in his Grand Abridgment and the Word Parliament tells us That the Parliament in England is the Assembly of the King and the Three Estates of the Realm viz. the Lords Spiritual the Lords Temporal and the Commons And this Gentleman does acknowledge p. 86 that the Subjects of England are divided into Three Estates The Nobility the Clergy and the Commonalty These he saith are the several Estates of the Kingdom But if the Bishops be not One of these Estates then one of the Three Estates of the Kingdom is not Represented at all in Parliament for he saith p. 88. that the Convocation where all the Clergy are present in their Persons or their Representatives is no part of the Parliament which is absurd The Authority of Mr. Selden to the contraay is most consonant to Reason and the Practice at the Ratification of the Peace with the French King 9 H. 5. 11 H. 7. are further Confirmations of it But this Gentleman saith p. 88. The Three Estates of Parliament are clean another thing each must have a Negative Voice to all that passeth there I might take notice by the By of his Mistake herein for there is nothing passeth where use is made of the Negative Voice but I must observe that this is a cleanly begging of the Question As for the Bishops being intermingled with the Earls and Barons and so if they be an Estate it is an Estate within an Estate like a Nest of Boxes one within another there is no absurdity at all in it for when Christianity had prevail'd not to recur to the time when all the Members of Parliament sate in one House together the Piety and Prudence of those times thought the State of the Church with all its Rights and Interest safe enough among the Nobility without any peculiar Negative voice to secure it and yet the Bishops Right of Protesting upon just occasion serves very well instead of such a Negative But this Gentleman thinks it would be a great Disparagement to the Peerage of England that Two Estates must be put together to keep the Ballance even with the House of Commons who are but One Estate and that their Two should signifie no more than that One taking no notice how much more they signifie though they do very much To this I answer in the general That Numbers of persons add no Right or Priviledge to a Politick Estate The Peerage of England had the same Power arid Dignity when they were not half so Numerous But to be more particular Experience tells us and we have an Instance too fresh in memory That neither
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 it because they are Peers as Earls and Barons are The King grants their Petition and allows the Reason The King cannot err in Titles his Allowance therefore is a sufficient confirmation of their Peerage And this Gentleman p. 93 c. when he argues against their being a third Estate he tells us William the first erected the temporalties of Bishops into Baronies to hold in capite and upon account of those Baronies both the Temporal Lords and Spiritual had of right place in Parliament and were bound to serve him there They were all Foedal Barons all holding by one tenure and by that tenure sitting in Parliament And a little after he saith They are still qualifi'd to be Members of Parliament as before a Baron sate as a Baron an Earl as an Earl Being made by Patent or by Writ or by holding such a proportion of Land alters not the Case as to their sitting in Parliament for it is being of such a degree which makes them Peers of Parliament One would think this is cleer enough for the Bishops Peerage But besides either the Bishops sit in Parliament as Peers or as Commoners if as Commoners then his own Argument p. 90. will be return'd upon him Would it be for the Honour of the House of Lords that Commoners must be put to them to keep the Ballance even with the House of Commons And most clearly it would be a Disparagement to the Peerage of the Kingdom the Temporal Lords and would make them to be a poor Estate that a number of Commoners must be joyn'd to them to make up their Negative Voice and set them upon even ground with the House of Commons But the truth is the Bishops Sit and Vote in Parliament as we said afore by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in regard of their Baronies All the Lords are equal in respect of their Peerage and so they make up but one House but they are distinguish'd by their Nobility and Spirituality respectively and so they make up two Estates distinct and different But to prove that they are no Peers Pag. 85. Cap. 14. 29. this Gentheman fetches an Argument from Magna Charta it self I know it saith Every man that is tried at the King's Suit must be tried by his Peers whether he be Amerced or Imprisoned or Disseised or Outlaw'd c. it must be by his Peers But this Argument makes clear against him for he himself informs us p. 11 12. that the Lord Latimer who was the King's Chamberlain for Oppression in several places in Britain and in England was by the Bishops and Lords adjudged to be imprisoned and put to Fine and Ransom and the Lord John Nevil a Privy Counsellor for buying some Debts due by the King at easie Rates to make advantage to himself He mentions some others and concludes At all these Trials the Bishops were present and no body sayes but they might which makes it evident if the Law of Magna Charta were observed that the Bishops sate as Peers in giving Judgment upon those Culprit-Lords But for all this the Gentleman hath a very strong Objection out of Magna Charta against the Bishops Peerage and 't is this If any Bishop be tried for any Capital Offence Ibid. 85. he is tried by the Commoners and that is the Common Law and Practice of the Land then saith he must Commoners be his Peers and he and Commoners must be Pares p. 86. A Temporal Lord Duke Earl or Baron cannot be Judge in the case of a Bishop out of Parliament nor can any Bishop be their Judge how then can they be said to be Pares Fellow-Peers For my part saith he I see not But I will undertake to read the Riddle to him the King may restrain his Favours and limit his Grants as himself pleaseth the Dignities and Priviledges of the Lords Spiritual are not Hereditary like those of the Lords Temporal but only Personal and conferr'd upon them in regard of their Holy Function Hereupon when they are impeached for any heinous Crime which is supposed to desecrate their persons they are interpretatively though not formally degraded * Privilegium personale amittitur extincta persona cui id concessum est And such persons are reputed dead in Law and by a Fiction of Law not unusual dead in that capacity divested of their Peerage with their Spiritualities and so being in the sense of the Law reduced to that condition they come to be tried as Commoners And thus much for the Bishops Peerage 3. For their Right to Sit as Judges in Cases Capital as this Gentleman saith p. 3. It deserves a strict enquiry and we should do well to consider upon what ground the Prelates were prohibited having Votes in Cases of Blood Such a Prohibition indeed is extant but it is Authentical only in the Canon Law as we shall evince anon but this Law is Popish grounded upon Principles of Superstition Usurpation and Papal Tyranny and is very irrational and uncharitable according to the usual practice of it This I doubt not to make appear to the unprejudiced and impartial Reader In the Interim I think to remove a great mistake of this Gentleman who tells us that Mat. Paris a Monk one that would not be partial for the Lords Temporal in relating matters Let. p. 73. to give them more power in Judicature and less to the Lords Spiritual than of right belonged to each and looking upon this exclusion of the Prelates from the power of Judging in such cases to be some diminution of their Omnipotency which they were so ambitious of he therefore ranks it amongst the Consuetudines iniquas the wicked Customs of the former times I say herein the Gentleman has committed a great mistake 'T is true their presence in Parliaments at such Debates was debarr'd and the restraint was put upon them by this Law and none else but so far were the Clergie of those times from ranking this Canon-Laws amongst those wicked Customs that indeed they had it in too high a veneration and this the Gentleman himself observes in divers places of his Letters averring it to be that Law to which only the Clergy of those times would be subject conceiving themselves above and not bound by any other p. 68. And some Laws before that p. 22. He confesseth The Canon Law was to them
above all Laws and what was forbidden by that Law they could not have a thought that it could in any sort be Lawful for them to challenge as their right upon any account This Gentleman knew they did look upon it as sacred They appeal to it and plead it for their exemption and this he sets down with his own Hand at p. 20. in these words Quid in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis alicui eorum juxta sacrorum Canonum instituta quomodo libet personaliter interesse 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 Determ 11. for as the Reverend Davenant hath 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 the Maccabees See Numb 25.7 13. 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 Supermacy 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