by which it became capital is not understood as he tells us in the place before cited I shall not trouble the Reader with unfolding the matter But why doth he trouble himself to make Kings Fathers of their Countries some cannot be so and some have no mind to be so and yet they ought to be Kings And some that have not been Kings have been so and so styled as the great M. Tully for defeating the Catiline Conspiracy He was by decree of the Senate call'd Pater Patriae Those are with reason truly called Patres patriae which either relieve their Country from miserable pressures which is the civil death of a Nation and for this reason our King hath the honor of being called Pater Patriae and we hope that he will wear that honorable Title upon a second deliverance of us from a most deplorable condition Or else such who bring the Nation to an exalted state of happiness so much beyond their old state of things that they seem to give the Nation a new civil Life Being and Birth For his etymological argument from the notation of the Word it is too putid to be insisted upon tho not more ridiculous than his Hypothesis But for that the reduction of our duty to our King to the fifth Commandment may seem to give some advantage to the Hypothesis with Fathers who know no bounds of their power over their Children It must be observed that the Decalogue is not a compleat Rule of Morality The decalogue comprised the Principal Laws of that common Wealth which God their Law giver by a most Solemn Act of his Legislation did more awfully oblige them to observe God that time was their King Rebellion was as Idolatry and the sin of Witchcraft and the Defection of one of their Cities to Idolatry was punished as a revolt and Rebellion Deut. 13. v. 15. He had provided for his honor and worship and their Allegiance in the first Table and did design by the 5th Commandment to lay the Foundation of all positive morality by providing for a Reciprocation of kindnesses by injoyning the gratitude and fitting returns of Children to their Parents and by putting Children under obligations to be taught and instructed by their Parents But our duty to Governors is more duly referred to all the other Commandments because Government secures the observation of those Laws to us by which we enjoy our selves and ours freed from the Violations of Lust Appetite Fraud and Violence We do not honor our King by relief in his fortune which is commanded to be done by our Parents in the precept of honoring them our subsidies and Aids are not to that purpose but contributions to the charges of the Government they are the just price of our immunity protection from fraud and violence for which cause pay we tribute But whosoever he be that hath more respect for this Knights works then I have may find him more gently treated by a very worthy Gentleman in a very candid and judicious book called Patriarcha non Monarcha But what is the meaning of these flattering Books they cannot but be nauseous to His Majesty who is a very wise Prince and knows how sensless such Books are and besides they make the People afraid and the Nation unquiet from the apprehensions they give that the Government will be changed Notwithstanding the King hath given such solemn assurance to the Nation by his late Declaration that we shall have frequent Parliaments and that he will govern by Law They would have had a better market for the Divinity they bestow upon Princes with Alexander after he had lost his Virtue and with those Vile Emperors whose Names are Regum opprobria for such the flatterers of antient times Deifyed those who had ceas'd to be men they made Gods and when they had left nothing about them that was tolerable they magnified their power which was already most intolerable If the Kings hereafter would but read the History of Kings under that conclusion that a wise observer of Humane Events made after a long observation and experience and would make experiments of the truth of it in their own reading Kings would be glorious and the Nations they govern happy and full of peace They would find therein so many effectual Documents to fear God and regard men and govern them righteously Si Vitam spectes hominum si denique Mores Artem vim fraudem cuncta putes agere Si propiùs spectes fortuna est arbitra Rerum Nescis quid dicis sed tamen esse putas At penitus si introspicias ultima primis Connectas solus rector in orbe Deus Alciat People can be no happyer than Government and Laws design to make them though they do not alwayes answer the good designments of the Government To what purpose then are these new Hypotheses fram'd and published Kings are exempted by their Office and the sacredness of their persons from all fears but the fears of Nature and these can never be discharg'd Those who do ill will fear ill Eternally tho their power were made little less than omnipotent for the frame of Humane Nature hath made it necessary to be so Besides God hath made one thing against another there is a Divine Nemesis interwoven in the Nature of things and God will always govern the World Omne sub regno duriore regnum The great Mogul at his inauguration swears that his People shall be at peace at home and victorious abroad afflicted neither with plague nor famine but enjoy Health and Plenty all his days This seems extraordinary Pompous and Arrogant but it means no more than this that he will govern them so vertuously that Gods Providence shall be always propitious to his People and is no more in plain English than what our Church offers up in her publick prayers for the King viz. That he may govern us in Wealth Peace and Godliness that he may live long and so govern us ought to be every honest mans Prayers But after all these vain Hypotheses contriv'd for making Kings absolute it will be more easie for Kings to make their reigns unquiet and turn their Kingdoms into Shambles But lastly to revive the Antient Zeal of the true members of the Church of England against Popery To rectify the mistakes of some Gentlemen of the Clergy about the Dissenters And of our late Parliaments and their proceedings in reference to them Let it be considered how unreasonable their apprehensions are of any danger to the Church of England from the desires of the House of Commons of some indulgence or toleration in favor of the Dissenters at this time especially when the Protestant Religion is so shrewdly beset she hath reason now sure to take all such for her friends that are heartily Enemies to Popery tho not so skillful as they should be to ward off its assaults Since the Papists presume to call them Fanaticks tho exactly conformable to the Church of England that
left this Author neither reason or Argument We have stript the Cause of all the Precedents that pretend to favour it and have left it Rara Avis indeed but not nigro simillima Cygno as the learned Author in Octavo hath it with which he reproaches the Right of the Bishops as assisted only with a single Precedent But to a Bird of no colour at all the bird in the Fable I mean furtivis nudata coloribus to be exposed to laughter with its naked Rump CHAP. IV. BUt if these Precedents had been all such as they pretend to be and the Bishops not present in Judgment in any of those Cases which the Octavo and Folio have produced and if they had been all Capital Causes that came in Judgment in that House and all determined judicially and not by the Legislative power of Parliament and no reason was to be assigned for the Prelates absence from the Nature of the Cause If they had had no inducements to withdraw from any dissatisfaction they had in the prosecution and the pretended Right of the Church-men in those days much insisted upon to be exempted from the jurisdiction of secular Courts had not been the Cause of their absence which suppositions are not so in fact And tho' the Bishops had never used the Authority and power in question as they have yet if we can prove they had once a Right those Omissions of theirs can be no prejudice to the meer-Right Though then I confess we should labour a-the gainst invincible prejudice in the Opinions of most 1. For that no man can lose a Right by not using of it but where that right can be usurpt by another and is so And that usurpation having been for immemorable time when no body can tell when it was otherwise shall in a matter prescriptible be intended to be acquired by good Right and that with great reason in favour of possession and the quieting of them for that Estates and Rights can last longer than the Grants and Evidences or Records themselves that first created them But where the nature of the Right is such as this of the Bishops in pretence is which no body can use for them For the Temporal Lords sit in Judgment in their own Right which is a plenary and compleat right and cannot be made more or less Secondly for that no Franchise from the Power and Authority upward of a Court Leet which can be neither more nor less by usuage than the Law hath establisht can be prescribed to And a Quo Warranto will fore-close and extinguish an immemorial usuage of any irregular and illegal Franchise A Right that can never be prejudged and fore-closed by non user and such is every Right that grows from the constitution of the Government though it should be discontinued for a long tract of time may be at any time rightfully and legally continued The happiness of our Case is that we can point to the time when the Right of the Prelates to sit in Judgment in Capital Causes in Parliament was established And which is more imposed upon them and they put under a Compulsory and obliged by the Tenure of their Lands to serve the Crown in that capacity And that was in the beginning of the Reign of William the Conquerour Mr. Selden in his Titles of honour with great probability hath fixed it in the 4 year of his Reign when he made the Bishopricks and Abbies subject to Knight service in chief by creation of new Tenures upon them and so first turned their possessions into Baronies and thereby made them Barons of the Kingdom by Tenure This he saith is justified by Mat. Paris and Roger of Windover out of whom Mat. Paris took this Relation Anno 1070. so are their words Rex Willielmus pessimo usus consilio Episcopatus Abbatias omnes quae Baronias that is by Anticipation for the Lands made Baronies tenebant in purâ perpetuâ eatenus ab omni servitute seculari libertatem habuerunt sub servitute statuit militari c. This he makes further probable for that in a Manuscript Copy which he used in a very antient hand these words are noted in the upper Margin over the year 1070. hoc anno servitium baroniae imponitur Ramesiae It seems saith he the volumn belonged to the Abby of Ramsey And some Monk of the House noted that in the Margin touching his own Abby which equally concerned the rest of the Abbies that were mentioned in that Relation by their Lands being put under the Tenure by Barony and they made Barons they had a Right to sit with the rest of the Barons in Councellor Courts of Judgment For saith Mr. Selden tenere de Rege in capite habere possessiones sicut Baroniam and to be a Baron and to have Right to sit with the rest of the Barons in Council or Courts of Judgment according to the Laws of that time are Synonymies So that there were no distinctions of Barons as to power and Authority or Jurisdiction but the Right of a Baron was the same whether he was a Temporal or Spiritual Baron for the Tenure of both is one and the same and therefore the Services must be the same The office that is the result of this Tenure is the same in the House of Lords and indeed no office can be less than what the Law appoints it The King cannot make a Peer a Judge or a Bishop and put any Restraint upon the exercise of the powers and the jura ordinaria that belongs by the appointment of the Law to a Peer Bishop or Judge And that it is an office by Tenure can make no difference for the Law declares the Power and Authority So that the Powers of all Barons are and must be equal and what is allowed to one Baron cannot be denyed to another William the Conqueror made the Bishops Barons by putting them to hold as by Barony did not intend only the Bishops more honour but himself also more service and better assured He cannot be intended especially to abate them their service in punitive or vindictive Justice which a Conquerour of all other performances cannot want I do not doubt and if it were not unnecessary to this question likewise to shew that before the Conquest the Bishops or Spiritual Lords had a great share with the Thanes or Temporal Lords in the Government and were then one of the three States agreeable to all the Gothish Saxon for the Saxons were Goths which we must not here insist upon and Modern Governments that have been planted in Europe which we shall speak to more hereafter But we will resort no higher than this of their becoming Barons by Tenure in time of the Conquerour for the clearing of the Prelates Right now in question And therefore we are not concerned to say any thing to the Case of E. Godwin mentioned in the Octavo in Edward the Confessor's time For Brevity sake and because we will
redigerent Quod cum factum fuisset praecepit Rex Archiepiscopis Episcopis ut sigilla sua apponerent scripto illi cum caeteri proni essent ad faciendum Archiepiscopus Cantuariensis juravit quod nunquam scripto illi sigillum suum apponeret nec leges illas confirmaret If this was not an encroaching Royall power there was never any such fault when he was grown so great that the King himself must supplicate that the great men of that time though passionataly interceding on the behalf of the King could obtain no peace for the King That an Ambassadour from the Pope and Cardinals must be sent to command him to be reconciled to the King That he did make a shew of being the Kings friend and did promise to be at peace with the King and keep his Laws at the Popes Command But of this too he soon repented and said he would sin no more Was not this man a Traytor at Common Law before the 25 of Ed. 3. doth not the reason of the Government declare and pronounce him so And doth the Octavo Author think that a Parliament would not use the declarative power by that Statute reserved to declare such offences as these Treason If the like case should happen would not he himself be the likelyest man to be formost in the impeachment But Gervasius Dorobernensis goes on and tells us that afterwards Becket did voluntary penance for the aforesaid promise made to the King and of his submission to his Laws and stood out in disobedience That the King did cast about and study quomodo vel qua arte constantiam Archiepiscopi conterere valeret vel elidere virtutem Col. 1388. But see in what respectful terms their Author in the meantime speaks of this Becket We may be sure we can have nothing from them that is true if it makes the Cause of this contumacious rebellious man bad But at last the Kings patience is turned into Anger For Gervasius goes on Col. 1388. and saith Timens autem Rex Angliae ne impune manus ejus Cantuariensis Episcopus evaderet jam edoctus multiplici Cogitatione pravorum Eruditione quibus eum pravitatis laqueis innodaret Praecepit Praesules Proceres Regni apud Northamptonian unà cum Archiepiscopo ipso convenire qui cum tertia die convenissent Archiepiscopus in multis est accusatus And no man can believe his accusation was less than Treason that will believe what is said by all Historians of Beckets Rebellious behaviour against the King and the Kings anger conceived his threatning him with death and the convening of this Parliament lest he should escape unpunisht And especially that will observe the partiality of this Gervasius against the King and in favour of Becket For he said as is before observed and cited that now the King was edoctus multiplici cogitatione that now the King with much thought and the Advice of wicked men was instructed how he might ensnare him with evil Arts and for that purpose this Parliament was convened And yet in particular this Gervasius and Fitz-Stephen his faithful friend who accompanied Becket in his troubles mentions only two faults whereof he is accused viz. of injustice in the Case of John the Marshall and of his own Contumacy in not obeying the Kings Summons Fitz-Stephen Hoveden and Gervasius tell us that to the two particulars Becket made his defence Gervasius and Hoveden tells us what defence he made which the Octavo hath faithfully transcribed to do him right I wish he had observed the whole story then he would have saved me this trouble of bringing it into the view of the World The Article wherein he is charged for not doing Justice to John Marshall is answered by laying the fault upon Marshall himself for abusing the Court bringing veterum Cantuum Codicillum to swear upon refusing to swear sub Evangelium ut moris est The other Article he answered proving by two sufficient Witnesses that it was sickness hindred him and not any contempt Very sufficient Answers to those two Articles and certainly the Parliament that was called only for to punish Becket might have well acquitted him and returned home and a weighty cause this was to convene a Parliament But these were but two of those many things for multis est accusatus saith Gervasius and of the least offence besides that they were fully answered in any mans judgment that hath read the Story of Becket of which he stood accused By what I have here transcribed it appears that he was certainly guilty of Treason That the Parliament was called to punish him The King was enraged and that justly and therefore he was most certainly accused of Treason Gervasius goes on and tells us that his rationibus meaning that he offered in excuse of himself in the business of Marshall and his own contempt Archiepiscous excusari non potuit sed Curiali judicio Assensa Episcoporum condemnatus est ita ut omnia ejus bona in misericordia Regis ponerentur And yet the prosecution went on The Bishops are consulted with by Becket how he should behave himself Thus Gervasius tells us Coll. 1398. You may best understand the Nature of the prosecution and Beckets danger by the advice of some of his Suffragan Bishops The Bishop of London thus adviseth Si pater inquit recolis unde te Dominus Rex sustulit quid tibi contulit consideratâ temporum malitiâ quam Ruinam Ecclesiae nobis omnibus paraveris si in his Regi resistere volueris non solum Archiepscopatui Cantuariae sed in decuplo si tanti fuerit cedere deberes Could all this danger grow from less than Treason Could a bare neglect to answer a Summons where he excused his default sufficiently or refusing to proceed in the Case of Marshall for that he did presumptuously trifle with the Court and prophanely offered to be Sworn upon a Song-book put the whole Church and himself in danger big enough to be redeemed with ten times the value of the Bishoprick of Canterbury The Bishop of Lincoln speaks in Gervasius these Words Patet inquam vitam istius hominis sanguinem quaeri necessario alterum horum erit aut Archiepiscopatui aut vitae cedendum The Bishop of Exeter thus Palam est quoniam dies mali sunt si possumus sub dissimulationis umbrâ hujus tempestatis impetum pertransire illaesos And after he saith satis est unum Caput in parte periclitari quam totam Anglicanam Ecclesiam inevitabili exponere discrimini The Bishop of Worcester saith Gervasius being asked what he thought ita temperavit Responsum ut negando palam secerit quid animi haberet The Bishop of Ely was sick The Bishop of Norwich the same Author saith excused himself secreto asserens Eliensem foeliciter adeò defensum quod ipse vellet simili plagâ percelli for he had heard saith our Author quid Rex conceperat contra Cantuariensem Becket not
unexceptionable Judge but renders them most fit and desirable For besides their Wisdom and Justice common with that of the Temporal Lords they are intended of the greatest tenderness and compassion and must be so if they comport themselves with agreeableness to their Character and Function They are not ordinarily engaged in the Factions of the Temporal Grandees and Religion being their business they are more under the powers of it that being their glory and their first greatness that which promoted them to their Secular Honour and Dignity and that which must support it Their Interest is Religion and therefore they are the more obliged in all their outward acts to comport with it They out of an universal charity understand that it is mercy and compassion to the innocent to punish the nocent person and yet they can in the administration of punitive Justice attemper the severities of Laws with the mercies of Religion and use Compassion to the Criminal when they do not depart from the unrelenting Rules of Law out of regard to the publick peace and by such demeanour they may reconcile the Office of a Judge with that of a Priest which some have thought incompatible 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Synes But they are no more inconsistent than Power and Authority which united makes a most venerable Magistrate and gives him the greatest advantage of serving the Community Peragit tranquilla potestas Quod violenta nequit mandataque fortiùs urget Imperiosa quies CHHP. XVIII AND such a Judge would I chuse but we we must take such a Judge as the Law appoints Magna Charta is objected against the Bishops right in the question which saith that Nullus liber homo capiatur c. nec super eum ibimus nec super eum mittemus nisi per judicium parium suorum The Objector omitted to add or consider what follows viz. Aut per legem terrae But the Statute of Magna Charta is no Literal Law as every body knows but intending to confirm the Common Law it is upon the matter Lex non scripta it alters nothing that was the Common Law before but that being found out declares what Magna Charta establisheth And therefore Peers shall be tried by Commoners in Appeals notwithstanding the Letter of Magna Charta for otherwise Peers could not be tried at all nor no Justice done in Appeals which is the Suit of the Party and not of the King Privilege must be always set aside rather than a faileur of Justice shall be allowed So that the Law before Magna Charta and since whatsoever it was must determine this matter The Provisions that the Law hath made that the Nobles and the Commonalty shall not intermeddle to judge any persons not of their Order is a most prudent Establishment without which neither Order Justice or Peace could be preserved The Envy of the Commons would render them unfit Judges of the Peers and the Animosities of the Peers would render them unapt to sit in Judgment upon a despised Commoner Besides that otherwise the Dignity of the Order of Peers would suffer for the Superiour can no more be judged with any congruity than blessed by the Inferiour This is a reason big and wise enough to be assigned and worthy of a wise Government and Polity And to this reason the words of the Statute of 25 E. 3. cap. 2. de Proditoribus do point De ceo soit probablement attaint de overt fait per gens de lour condition And therefore it seems to me that according to the Reason and Design of the Law which declares the Law in particular Cases that Bishops being Barons and of the Peerage of England and of that Rank and Order they ought to be tryed by those of their own Condition And the denial to them of this Priviledge which is annex'd to and is a resultance from the Dignity of their Order is a departure from Magna Charta and not agreable to the Provision of the 25 E. 3. c. 2. But it was never an allowable Exception to a Judge that the Judge hath not so good an Estate or other Advantages of Fortune equal to the man he Judges to forfeit in case the Judge be a Capital Offender upon which reason the Folio Gentleman grounds his Reasonings against the Bishops being Tryers of Peers He argues the Bishops incompetent to try a temporal Baron upon this reason because the Bishop hath only a Peerage for his Life to forfeit But who can be satisfied with such fine and slender Reasoning or entertain an Opinion that is not bettern grounded I would not be thought to argue or maintain that Prelates are so fit to be appointeed by the King's Commission to try a Temporal Peer in the Court of a Lord High Steward out of Parliament when a select Number of Peers are to be appointed for Tryal it is most convenient that those of the same Species of the Baronage should be chosen for that purpose for many reasons but for a Tryal of a Temporal Peer in Parliament which is the Establishment and Appointment of the Governmnt and not of the King 's special Designation notwithstanding the reason of the Folio for Reasons herein alleadged a Bishop is a most fit legal and competent Judge But I have taken too much notice already of the Errors and Mistakes of the Folio and his false Reasonings I am weary of such Animadversions I shall proceed now to the end of my Discourse without making any more Reflections It is already cleared that the Bishops are compleat Barons that they are of the State of the Baronage and it can have no Consideration how they came by it nor how they held it for the Modus tenendi doth not alter or diversifie the Honor. And for my part I cannot find reason to believe but that the Bishops had or might have had originally their Tryals by Peers and that it was their Right in Consequence of their being placed in that Order and State besides that they have a Precedency to the Temporal Baronage to be tried by the Baronage because the Law for the reason afore-mentioned appoints Tryals per Pares But the contrary practice is the Strength of our Adversaries in opposing the Peerage of Bishops which we shall therefore now consider of It is certain that in all Tryals wherein Bishops are concerned whether Plaintiffs or Defendants in Actions real as well as personal whether the Lands of the Church are concerned or not a Knight is to be returned upon the Jury that is to try the Issue I will not trouble the Reader with Law Cases any Gentleman that pleaseth may examine the Truth of what I say This priviledge therefore cannot be in respect of the Lands of the Bishoprick as the Folio would have it but of the persons of the Bishops a respect to the Order and Peerage of the Bishops It is the same Priviledge and as large as the Temporal Peers enjoy in this matter which is that the worthiest and best
and Officials to whom Custom hath given some Powers and Authoririty which cannot be check'd and controul'd by the Bishops themselves they are not to account neither are they answerable for the Lay-Zeal that hath made the Condition of Excommunicants so very afflictive For whatever some men please to think the Laity have out-done the Ecclesiasticks in the Excesses of intemperate Zeal as they are most apt and prone by their Ignorance to Superstition No man can pass under the Admonitions of the Church and be suspended from the Holy Mysteries until he hath made Satisfaction for his disorderly walking or Spiritual Pride in breaking Order but he is presently given up by the Laity to Satan I mean he suffers beyond the first Intention of the Church in her Discipline Severities enacted by the Law of the State which if reversed by that Authority that established them and a civil Process were enacted for the Ecclesiastical Courts in Causes of a Temporal Nature which are appointed by Law to their cognizance I persuade my self we should hear of no more Complaints against them in the Exercise of the Power of the Keys For we observe that they exercise the Power of the Keys with deference to the Secular Magistrates They never presume to excommunicate the Prince least they should thereby lessen his Authority and shock the Government For that all Government is established by the Honor and Reverence of the Governor according to that Saying of Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dissolution of Government doth easily follow the Contempt of the Governor As Kings are not subject to Penal Laws nor to be coerced by Penalties So true it is also what Balsamo hath noted ad 12 Canonem Synod Ancyranae Imperatoriâ unctione penitentiam tolli Neither do they presume in Reverence to the King to excommunicate his Counsellors and Ministers of State and Justice For so it was declared amongst other of the Avitae consuetudines of this Realm by the Assize of Clarendon Nullus qui de Rege teneat in Capite nec aliquis dominicorum ministrorum ejus excommunicetur nisi prius Dominus Rex conveniatur In which our Bishops are agreable to the Ancients Hildebert Cenoman after Bishop of Tours who lived about the eleventh Century says he Apud Serenissimum Regem opus est exhortatione potius quam increpatione Concilio quam praeceptis doctrinâ quam virgâ Ivo Bishop of Chartres in his Apology for communicating Gervasius saith thus Quos culpatorum Regia Potestas aut in gratiam benignitatis receperit aut mensae suae participes fecerit eos etiam Sacerdotum populorum conventus suscipere in Ecclesiastica Communione debebit ut quod principalis pietas recipit nec à Sacerdotibus Dei alienum habeatur Thus while the Bishops are not guilty of mean and unfaithful flatteries they do not participate of the pride of the Bishops of Rome or the irreverence and sawciness of a Presbyterian Consistory against their Princes and Governours Neither do they call up any criminal cause originally to their examination but pronounce the sentence of Excommunication on such onely as first are civilly convict of a crime save that matters of Incontinency are by the Common Law submitted to their Censure for that by the venerable gravity of the Judge and by the more private examination of such offences the modesty of the Nation is best preserved which is a surer defensative against the rifeness of such crimes perhaps than the sharpest punishments If they do excommunicate any man without a just cause or do not absolve the Excommunicate when he hath made his satisfactions the Bishop is compellable by the Authority of the Kings Courts to assoil the man under the pain of having his Temporalities seized into the Kings hands though he is not restored without the Episcopal Absolution For it is fit they should finally judge in their own proper Province and they must not they cannot relax the Laws of Christ nor administer the power of the Keys of binding and losing by any other measures for any power on earth But against this power of the Kings Courts they do not dispute or declare but have recognized it by their submission and they can submit to the penalties without complaining of this civil constitution Nay in the general order they approve it though in a particular case perhaps they do not because they cannot obey Our Bishops do not encroach any Temporal Authority in ordine ad spiritualia that stale pretence by which the Bishop of Rome hath arrived to his exorbitant power and by which the Scotch Presbyters would have acquired the like over Kings and Governours Their Authority always administers to and assists but never thwarts or contradicts the Temporal They have accommodated their power of the Keys to the vindication of our established Government against the attempts of Arbitrary Power to which their Allegeance to the King and the regard of the publick Peace did oblige them For such Attempts are mostly the ruin of those that make them always bring the Government it self into the greatest danger and sometimes prove the ruin both of the Government and the Nation This was required of them as an indispensible duty they being a principal part of the Government and the present Bishops Successours to all their Rights have no reason to decline their example if they have the like cause The Bishops anciently were sturdy opposers of King John when he designed to put this Kingdom into vassallage to the Pope and thereupon he writes to the Pope thus as followeth In conspectu paternitatis vestrae humiliamus ad gratias multiplices prout meliùs scimus possumus exhibendas pro cura sollicitudine quam ad desensionem nostram Regni nostri Angliae paterna vestra benevolentia indesinenter apponit licèt duritia Praelatorum Angliae inobedientia impediant vestrae provesionis effectum Pat. 17 Joannis R. M. 15. as I find it related by Mr. Petit in his book entituled The ancient Right of the Commons of England asserted About the 24 H. 3. Edmund then Archbishop of Canterbury at a Synod held at Westminster the King being present Candelis acceptis projectis ac extinctis Chartam Libertatum violantes vel sinistrè interpretantes excommunicantur Mat. Paris p. 151. About 13 years after viz. in 37 H. 3. Boniface then Archbishop of Canterbury the sentence of Excommunication is again repeated against those Qui Ecclesiasticas Libertates vel antiquas Regni Consuetudines in Chartis communium Libertatum de Foresta concessas quascunque arte vel ingenio violaverunt Fleta l. 2. c. 42. Dors Claus 37 H. 3. membr 9. Additament ad Mat. Paris p. 117. Which Sentence of Excommunication was ratified and confirmed in a Parliament held that year as followeth Noverint universi quòd Dominus Rex Angliae illustris Comes Norfolk Mareschallus Angliae H. Comes Hereford Essex J. Comes de Warewico Petrus à Sabaudia ceterÃque magnates Angliae
recommend to all ingenious Gentlemen that would be rightly instructed and informed neither deceive others nor would be deceived themselves as they love truth and virtue wisdom and sober thoughts to dispise this sort of wit in others and repress it in themselves And never allow it to be used but in the hours of mirth in the Relaxations of their minds from serious Contemplations and matters grave and weighty where this prophane thing wit ought always to be shut out with care Enough hath been said for rectifying the mistakes of any true Protestant especially any Clergy-man of the Church of England which you have objected against them about Government or Parliament dissenters from the Church of England and Popery Especially when it is made apparent that these mistakes are made serviceable to the Popish Plot and the means which that party prosecute to compass and bring about the ruine of our Church But that nothing may be wanting that lyes in my poor power for pulling their Foot out of the Snare I shall more distinctly consider them First I shall desire them to consider what our Government is and where the true knowledge of it is to be found And where can it be found but in our Statute Books the Commentaries of our Law the Histories of our Government and of the Kingdom Search them if you be at leisure if you are not consult those that have read them and whose business and employment it is to understand them and you cannot fail to be informed That the King hath no power to make Laws that both Houses of Parliament must joyn with the King in making a Law It can with no more reason be concluded that the King hath the Legislative power because his Assent makes the Bills in Parliament Laws than it can because the third Unit added to two makes a Triad that the other two do not go to the making of that number when a matter 's moved from the King in Parliament to pass into a Law the Commons consent last The Letters Patents of Ed. Sir E. Cook 8 R. 3. for making the Eldest Son of a King in Succession Prince of Wales and Duke of Cornwall was confirmed as there must have been otherwise they would have been void by the House of Commons And yet we will not say that the House of Commons can make a Prince of Wales or Duke of Cornwall And yet upon no better reason than this some men will talk as if they believed themselves that the Legislative power is in the King when no King of England yet ever pretended to it but by their process of Law have punished such officious and mischievous Knaves They will tell you that the Laws are the measures of our Allegiance and the Kings Prerogative and declare the terms of Obedience and Government That a Legislative authority is necessary to every Government and therefore we ought not to want it and therefore Parliaments in which our Government hath placed the making of Laws cannot be long discontinued nor their Conventions rendred illusory and in vain which is all one as to want them That to Govern by Laws implieth that great fundamental Law that new Laws shall be made upon new emergencies and for avoiding unsufferable mischiefs to the State By the Statutes of 4 Ed. 3. c. 14.36 Ed. 3. c. 10. it is provided that Parliaments be holden once every year The Statute of this King required a Parliament every three years which being an affirmatory Law doth not derogate from those of Ed. the 3. But if the King doth not call a Parliament once in a year He neglects these Laws and if he delays calling a Parliament three years he neglects the other Law of his own time to And for that he is by the Law intrusted with the calling of Parliaments He is at liberty to call them within the times appointed And that Laws ought to be made for Redress of mischiefs that may ensue appears by the Statute of provisors 25. E. 3. cap. 23. In which we have these words Whereupon the Commons have prayed our said Soveraign Lord the King that sith the right of the Crown of England and the Law of the said Realm is such that upon the mischiefs Dammage which happeneth to this Realm he ought and is bound of the Accord of his said People in his Parliament thereof to make Remedy and Law in avoiding the mischief and dammage which whereof cometh which that King agreed to by his Royal Assent thereto given I dare be bold to say that never any Bill in Parliament was lost and wanted the Royal Assent that was promoted by the general desires of the people If Popery therefore which is the greatest mischief to us that ever threatned this Kingdom can be kept out by a Law we ought to have such a Law and nothing can hinder such a Law to be past for that purpose but want of an universal desire to have it I desire these Gentlemen to consider how they will answer it to their Saviour at the last day if they suffer his true Religion and the professors of it to be destroyed and persecuted when nothing but their desires of a thing lawful to be had and of right due was requisite to prevent it Their sufferings will be just and righteous from God if their sin occasioneth it and very uncomfortable to themselves The extent of the Legislative authority is no where to be understood but by our Acts of Parliament in which it hath been exercised and used and by such Acts that declare the extent of its power by the 13. Eliz. cap. 1. it is made Treason during that Queens Life and forfeiture of Goods and Chattels afterwards To hold maintain and affirm that the Queen by the Authority of the Parliament of England is not able to make Laws and Statutes of sufficient force and validity to limit and bind the Crown of this Realm and the descent limitation inheritance and Government thereof And this authority was exercised by Entailing the Crown in Parliaments in the times of Richard the 2d Henry the 4th Henry the 6th Edward the 4th Richard the 3d. Henry the 7th thrice in the time of Henry the 8th and upon the Marriage of Queen Mary to King Philip of Spain both the Crowns of England and Spain were Entailed whereby it was provided that of the several Children to be begotten upon the Queen one was to have the Crown of England another Spain another the Low-Countries The Articles of Marriage to this purpose were confirmed by Act of Parliament Those that are truly Loyal to our present Sovereign have reason to recognize with high satisfaction that such a power of altering and limiting the descent of the Crown is duly lodged in the King and States of the Realm For under the authority of an Act of Parliament of the Kingdom of Scotland we derive our selves to the happiness of his Government and and He his title to the Crown of Scotland which drew to
him the Imperial Crown of England For Robert Steward first King of Scotland of that Family lived in concubinate with Elizabeth Mure and by her had three Sons John Robert and Alexander afterwards he Married Eufame Daughter to the Earl of Ross and after was Crowned King of Scotland He had by her Walter Earl of Athol and David Earl of Straherne When Eufame his Wife dyed he Married Elizabeth Mure. After that by one Act of Parliament he made them first Noble that is to say John Earl of Carrick Robert Earl of Menteith and Alexander Earl of Buchquhane And shortly after by another Parliament he limited the Crown in Tail Successively to John Robert and Alexander his Children by Elizabeth Mure in Concubinate and after to the Children of Elizabeth Ross his Legitimate Children who are to this day in their issue by this limitation by authority of an Act of Parliament in Scotland barr'd from the Crown and we hope ever will be by the continuance of the Line of our most Gracious King For note that though a subsequent Marriage by the civil Law which is the Law of Scotland in such cases doth Legitimate the Children born before Marriage of a Concubine yet it is with this exception that they shall not be Legitimated to the prejudice of Children born afterwards in Marriage and before the Marriage of the Concubine Besides the reason of the Civil Law in Legitimating the Children upon a subsequent Marriage is this viz. a presumption that they were begotten affectu maritali which presumption fails where the man proceeds to Marry another woman and abandons or neglects his Concubine But I desire these Gentlemen that are so unwilling to be safe in their Religion which I believe is most dear unto them That if any Law should exceed the declared measures of the Legislative authority though in such Case they may have leave to doubt of the lawfulness of such a Law yet if it be not against any express Law of God they will upon a little consideration determin it lawful if it be necessary to the Common-weal for that nothing can be the concerns of men united in any Polity but may be govern'd and ordered by the Laws of their Legislature for publick good for by the reason of all political societies For further satisfaction of the lawfulness of the bill of exclusion See a Book called The great and weighty Consideration considered there is a submission made of all Rights especially of the Common Rights of that community to the Government of its own Laws But all this and a hundred times as much will not satisfy some Gentlemen of the lawfulness of our Government the extent of the Legislative power of Parliaments since they have entertained a Notion that Monarchy is jure divino unalterable in its descent by any Law of man for that it is subject to none That all Kings are alike absolute that their Will is a Law to all their Subjects That Parliaments the states of the Realm in their Conventions can be no more than the Monarcks Ministers acting under and by his appointment which he may exauctorate and turn out of Office when he pleaseth For there can be say they under the Sun no obliging Authority but that of Kings to whom God hath given a plenitude of power and what is derived from them That this Divine Absoluteness may Govern and exercise Royal power immensely and that it is subject to nor to be abated or restrained by any humane inventions or contrivances of men however necessary and convenient Kings have thought them in former Ages by such methods and such offices and Officers of which number the States of the Realm may be or not be as Kings shall please as they shall by their absolute Will order or appoint Our Parliaments say they are Rebellious and an Usurpation upon the unbounded Power of Kings which belongs to every King as such jure ordinario and by Divine institution That a mixt Monarchy as ours is is an Anarchy and that we are at present without a Government at least such as we ought to have and which God hath appointed and ordained for us That we by adhering to the present Government are Rebels to God Almighty and the Kings unlimited Power and Authority under him which no humane constitution no not the Will and Pleasure of Kings themselves can limit or restrain For that jura ordinaria divina non recipiunt modum That the Legislative Power is solely in the King and that the business of a Parliament if they would think of being only what they ought to be is only to declare on the behalf of themselves and the people that send them for that purpose certainly the obedience that is due from them to such Laws as the K. shall make and that they may be laid aside wholly when he pleaseth And after all this what matter 's it with them what we say our Government is hath been or where the Legislative Authority of the Nation is placed or how used But I desire these Gentlemen to consider how they come to these Notions upon what reason they are grounded How a Government established by God and Nature for all Mankind should remain a secret to all the wise good just and peaceable men of all Ages That Kings should not before this have understood their Authority when no pretences are omitted for encrease of power and enlargement of Empire I desire them to consider that this secret was not discovered to the World before the last Age and was a forerunner of our late unnatural War and is now again revived by the republishing of Sir Robert Filmers Books since the Discovery of the Popish Plot. I wish they would consider that the reasons ought to be as clear and evident as Demonstration that will warrant them to discost from the sense of all Mankind in a matter of such weight and moment That to mistake with confidence and overweening in this matter will be an unpardonable affront to the Common sense of Mankind and the greatest Violation of the Laws of modesty I desire that they would consider and rate the mischiefs that will certainly ensue upon this opinion and whether a probable reason can therefore support it That they would throughly weigh ponder and examine the Reasons of these bold and new Dogmata For their enquiries ought to be in proportion diligent and strict as the matter is of moment and if they are not their error and mistake will be very culpable and the sin of the error aggravated to the measure of the mischief which it produceth and occasioneth Where is the Charter of Kings from God Almighty to be read or found for nothing but the declared Will of God can warrant us to destroy our Government or to give up the Rights and Liberties of our people If they are lawful I am sure it is villany to betray them since all political Societies are framed that all may assist the Common Rights of
all I cannot imagine they can pretend an umbrage from the Holy Scriptures for such unheard of opinions The Jews indeed had a Government and Laws of Gods framing and appointment and a King of their own choosing and such a King as they desired by God's permission they had But their form of Government ought with less reason to be the Rule of all kingly Governors because it was a Government chosen by themselves then the Laws of the Jews ought to be the Laws of all Nations which they are not though made and enacted by God himself Christ would not make himself a Judge in a private Right submitted to him He determined the right of the Roman Empire by the possession of Soveraign Authority and such as the whole world had made it his Disciples were obliged to acknowledge it by their Obedience and Submissions which is the summ of the Apostles Doctrin in this matter The Christian Religion instituted no form of Governments but enjoyns us to be obedient to those we have not only by express command in the case but by its general Rules of a most refined improved and extensive morality But though I said the Scriptures have not prescribed or directed any universal Form of Government yet the Scripture hath declared the falshood of this new Hypothesis of Kingly Government to be Jure Divino or by Divine Right For St. Peter 1 Peter 2.13 and 14. stiles Kings as well as the Governors under him the ordinance of man which cannot have any other sense but that men make them and give them their powers By St. Paul the power of Government indeed is called Gods Ordnance Rom. 13.2 but that is for this reason because in general God approves of Governments as necessary to the well being of Mankind for the improvement of humane nature for the punishing of Vice Encouragement and security of virtue without them it being impossible to live honestly and in peace And he hath made them the under Ministers of his providence and care over Mankind and expects of them that they should promote his true Honor and Worship in the World which will be always accompanied with the exercise of all civil Virtues These two different places must be so understood that they may be both true and by no other interpretation can they be reconciled and made consistent It is impossible that any thing can be of mans appointment which is of Gods Ordination there can be no such thing as a Co-legislative power of Men with their Maker Government therefore is from God as he hath made Governments necessary in the general order of things but the specification thereof is from Men and the best definition that can be made of Government is in the words of both the Apostles put together 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and such Governments which men make God approves and requires our obedience to them upon all those reasons which make Governments necessary The natural and easie consequence and result of these Scriptures is this which I desire those Gentlemen to observe That whatsoever is not lawfully established by men no Law of God not the Christian Law doth oblige us to obey The Christian Religion doth equally condemn in the reason of its Institutions Usurpation and Contumacy Where the Apostle admonisheth us that if we be free we should not become servants he hath by virtue of that Admonition made it commendable not to suffer the Encroachments of power over us Most certainly therefore as the Christian Religion doth not prejudice the Soveraign Rights of Princes such as they are in the several forms and Modells of Monarchical Governments non eripit terrestria qui regna dat coelestia as Sedulius so doth it not enlarge them when by the Gospel God made us free from his own positive Laws to the Jews he did not intend thereby de Jure to render us slaves to the Arbitrary pleasure of Men. No Man intends by any thing in the Scripture that all mankind is obliged to any one form of Government and therefore all Men are left to their own It hath not therefore altered the terms of Government and Obedience that every Nation hath Established for themselves but hath confirmed and strictly obliged the observance of them To Obedience to Government we are obliged by as many ties as there are Christian Virtues and he must disown his Christianity that departs from his due Allegiance And since our Saviour is declared King of Kings and Lord of Lords all Kings Christian Kings especially are to govern in Imitation of his mercy and goodness and in subserviency to the Interest of his Religion and Kingdom Regum timendorum in proprios greges Reges in ipsos imperium est Javis cuncta supercilio moventis Whence then is this absolute Authority of Kings if it come neither from God nor Man Give me leave now to inform you that these opinions render you all Traytors guilty of Treason of State perduellionis rei obnoxious to be punished as Traytors by an Authority lodged in Parliament In the Constitution of the Government You your selves must needs condemn your selves to have forfeited all your own who hold such Principles that tend to destroy every Mans Right by resolving all things into the absolute pleasure of a Monarch in which you mostly disserve the King and are contrary to His Majesties late Declaration The Men of these Principles the less of the Government they are entrusted with the better for the less they have to give up and betray I confess if I could believe that this Doctrin was become Orthodox among them and the prevailing opinion of the Clergy I should conclude us to be the most unhappy people under the Sun This is an Hypothesis indeed that will bring on new Heavens and a new Earth but such wherein no peace or Righteousness can ever dwell But I deem all such as are Defenders and Promoters of it do deserve a civil Excommunication more smarting then their Ecclesiastical and to be condemned to live upon and only feed themselves with their thin speculations and to be excluded from any share of that Government that they professedly in their Principles betray to be punished as seditious persons and most mischievous Schismaticks far more intolerable in this matter than the scrupulous brother-hood for their boglings at an indifferent and insignificant Ceremony For that to the ruin of our Religion and destruction of the publick peace they divide from that polity to which by drawing here their first breath they made Faith and to which the condition of their birth doth oblige them they falsify that which Arrian in his Epictetus calls the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 than which nothing is more sacred and inviolable By creating themselves a new Allegiance and obtruding it upon their fellow Citizens and Members of the same Kingdom they set up a Kingdom within a Kingdom more dangerous and mischievous than the Papal Imperium in Imperio which certainly will be introduced if this Modern and
AN ARGUMENT FOR THE Bishops Right In Judging in CAPITAL CAUSES IN PARLIAMENT For their RIGHT unalterable to that Place in the GOVERNMENT that they now enjoy With several Observations upon the Change of our English Government since the Conquest To which is added a Postscript being a Letter to a Friend for Vindicating the Clergy and rectifying some mistakes that are mischievous and dangerous to our Government and Religion By THO. HUNT Esquire In Turbas Discordias pessimo cuique plurima vis Pax quies bonis artibus indigent Tacit. Hist l. 4. LONDON Printed for Thomas Fox at the Angel and Star in Westminster-Hall 1682. THE PREFACE THis Argument for the Bishops Right of judging in Capital Causes in Parliament for their being one of the three States of the Realm and that their Right is unalterable by Law was written above two years since and prepared for the Press time enough to be made publick against an expected Session of Parliament in October 1679. But the Parliament being prorogued from that time until January the Author was willing to respite the Publication to advise with his second thoughts and again to review what he had written in a case of this weight and moment and the rather for that he had but a short time allowed him for its composure Since that there has been published by an excellent person a Book in vindication of their Right of judging called The Grand Question sufficient to give satisfaction if the world were just and impartial and disposed to make right Judgment in the Cause It may well be reasonably expected that Christian People should not be only just but favourable to any pretence of a Christian Bishop to any secular trust that does not lessen the dignity of the Office and seems unworthy of his Character which as it exempts him from mean and sordid offices and affairs of an inferior and more private concernment so it commends him to the Government of matters of a more publick and universal influence such as require the most improved wisdom and learning and a noble virtue It seems to me most unreasonable that those that are the great and principal Expounders of the Christian Law which gives Law to all Laws and instructs men to discharge their several Offices both publick and private that those who are the great Guides of our Consciences and by whose Directions and Institutions we form our Judgments in the greatest intricacies and doubts that perplex humane affairs that the Guides of a Religion which is formed all to life and practice for the making Governments equal and private men good and obedient which is little else but an Obligation to Justice and Charity and principally pursues that which is the end design and whole business of Government I say it seems to me most absurd and incongruous that this Order of men at any time ought to be shut out of that Council and Court where Laws are made and Rules given for the Government of a Christian Common-wealth where the most difficult and intricate causes are to be heard and determined and where an unlimited power remains of censuring the Actions of the greatest men and the administration of publick affairs and the safety of the Nation are consulted which cannot be long preserved but by pursuing the dictates of a wise Religion Such is the Christian Religion if any other we should dishonour it by comparing it to the best Paganism became despicable and abandoned soon after its publication Yet Tully in his Oration ad Pontifices magnifies the wisdom of the Romans as Divine in advancing the Pagan Priests to the highest places in their Common-wealth by which the Common-wealth he saith was preserved Cum multa Divinitùs Pontifices à Majoribus nostris inventa atque instituta sunt tum nihil praeclarius quam quod vos eosdem Religionibus Deorum immortalium summae Reipublicae praeesse voluerunt Vt amplissimi clarissimi Cives Rempublicam bene gerendo Religiones sapientèr interpretando Rempublicam conservarent Such an Opinion more duly and with better reason our Ancestors conceived of the advantage that might accrue to the Nation by advancing the Prelates of the Church into the Civil Government Thereupon they have made them necessary to it and framed the Government in a sort to depend upon them and left it scarce able to maintain it self without them in its present constitution The Temporal Barons will soon find themselves unable to maintain their own dignity and to sustain that province that is allotted to them in the Government unassisted with the Interest and authority of the Prelates the Spiritual Barons a mighty Power if they be as they ought to be of venerable esteem with the people If the present Bishops are not all so happy as to possess such an esteem we know what cause to assign for the same viz. the unhappy Schism that hath too long continued in our Church hath for its own Justification after they are almost sham'd out of the scruples which first caused the separation sought occasions against the Persons of the Bishops and rather than they will want faults to complain of the Order it self must be loaded with all the faults of all the Bishops in all Countries and Ages and they adventure now to disparage their persons for the sake of their office But sure it is a folly that can fall upon no people but such who by the evils they feel or fear are vext out of their understanding to suppress any Office that is necessary to any Common-wealth in any form of Government for the faults of the Officers for the time being But too true it is that a form of Government while established may be so utterly misunderstood by the most when it is not or not duly administred that a true and exact description of it and a discourse of the Offices and Functions of the several parts of the Government would be taken by them for some Vtopian Common wealth or no better please them than a description of the strength of an impregnable Fort once the Security of the Nation when invested by the Enemy A Lecture of a learned Physician of the Vsus Partium will not give sight to a blind Eye nor motion to a withered hand and no body is warmed or comforted by a painted fire But God be thanked we are not yet destitute of the benefits of a good Government Another cause I apprehend may much lessen the Bishops in the esteem of the People and make them want that Reputation that is necessary to every Governour in proportion to his Charge is their manner of promotion The Ministers of State whose business it ought to be to understand the true Characters of men that are preferred to that Office are often mistaken however in this Course they seem not to be promoted for their own Merit but at the pleasure of the great Courtiers and at best the Ministers of State can do no more than recommend to
Peer in Parliament Of what consideration decency can be Chap. XII Their Sitting in Judgment not so much against the reason of the Canon as their assent to Bills of Attainder which was never condemned And the Nature of an Act of Attainder Chap. XIII Over-ruling a Plea of pardon doth not condemn the Criminal and therefore they may judge of such Plea Though they are not to be present at the making of a Judgment of Condemnation Quousque perveniatur in Judicio further explain'd And that which follows upon another thing is not always caus'd by it XIV Bishops one of the three Estates of all the Realms of Christian Europe And how they came to be advanc't to that dignity and trust The convenience of their not being divided in a distinct house from Lay Peers They cannot be detruded from that dignity no more than the Government can be chang'd which no Law can do Six Bishops of the twelve Peers of France and their Aristocratical power That all Governments are lawful that are lawfully establish't Chap. XV. William the Conqueror agreeable to all the Princes of that time put Bishops under Tenure by Baronies and all Baronies at that time feudal with the reason of his Policy and the inconvenience it produced Of the Curia Regis which consisted of the Baronage in which the Capitalis Justitiarius Angliae did preside Of the administration of Justice in that time And that the Baronage of England upon special Writs of Summons became a Parliament An account how all our present Courts derived out of it Of the Court of the High Steward and of the Court of Chancery and the reasons of its rise and growth and how inconvenient it is And how we recovered out of the inconveniencies of that Constitution of Parliament by representatives in the time of H. 3. And that this it being allowed can give no countenance to those that are desirous to change our present and better Constitution That in all this Change the Bishops suffered no diminuion But when the ancient reason of Baronage failed they are after to be considered under the new reason of Baronage Chap. XVI The remembrance of the old reason of Baronage became a prejudice in the Judges upon which T. Furnival Plea allowed that he held not per Baroniam An Entail of Baronies with lands after allowed The reason of Nobility changed and no man now Noble by his Acres Many men Summoned to Parliament and yet not Noble No prejudice to the immovable Right of Bishops to have Summons to Parliament and that objection answered Kings may erect new successive Nobility in Clergy-men That Bishops are of a distinct sort of Nobility and under that and other reasons they are considered as a distinct State Chap. XVII Of the three States which make the Government under the King that he is none of them The Objections against this answered And the reasons of their being distinct and the several Offices and Expectances in the Government that make them so That the several Orders of Peers make but one Baronage and in that there is a great trust and honour greater belongs to Bishops than Lay Barons in our present constitution Their Character and qualifications commend them to the highest trust and render them fittest Judges Chap. XVIII The Reason of Tryals per Pares and that the Bishops are competent upon that reason in Parliament though not so fit to be of the High Stewards Court The Law of M. Charta not Lex scripta Bishops ought to be tryed by their Peers How that Right came to be discontinued and that in Parliament they ought still to be Tryed by their Peers Chap. XIX The unreasonableness of maintaining an Opinion upon a single Objection against a matter evidently proved that Questions of this nature should be considered with candor and not opposed with meer possibilities Chap. XX. Several alterations in the Government since the Conquest that the Alteration in what concerns the Baronage the Bishops Right is to be considered in analogy to the Change That changes of Government for the better cannot again be altered but our zeal is required to defend the Government made better and they deserve ill that go about to reduce us to our old mischiefs by their Antiquity Chap. XXI The advantage of the Change in the constitution of our Parliament in the change of granting Subsidies And how the Lords are bound by a Bill of Aids Chap. XXII The beneficial Change that hath been made by the clause praemunientes in the Bishops Writs of Summons to Parliament which gives Authority for the Convocation By this we are discharged of Provincial Councils and Canons of the Church kept distinct from Laws of the State The Church kept in peace from rending Questions and Religion is conducted not by Laws but by Canons not force but perswasion which commends our Episcopal Government Chap. XXIII The danger we avoided of having our Baronage of England ambulatory and fixing of it in Families and an indefectible Succession in which the Right of the Peer-age of Bishops is established Chap. XXIV The advantages the Adversaries seek to their cause by aspersing the Bishops Remembrance of all the faults in all times committed by any of the Order that many of those faults are principally due to the Papal Vsurpation and the neglect of Kings to defend the Rights of their own Bishops and are all the Vitia Temporum the times of Popery Chap. XXV How inculpably our Bishops have been in administration of their Ecclesiastical Authority how faithful in their Temporal Trust and Asserters of the Rights of the people They have not been irreverent to Kings nor have they encroached any power in Civil matters in ordine ad spiritualia That the power that they challenge is meerly spiritual and they challenge nothing of Divine Right but the exercise of their Ministry which they cannot lay aside Mr. Selden's Arguments for Erastianism answered The Church of England doth not tye her self always to think and enjoyn as she doth at present The moderation of the Church in opinions her apprehensions of Schism just and great They are not answerable for the ejectment of the Nonconformists nor for the scandalous Lives of their Clerks nor their Chancellors nor abuse of Excommunications Why matters of Incontinency are committed to their censures They have exercised the power of the Keys against the Infractors of M. Charta and how it hath been guarded with the denunciations of the Church we have reason to expect as much from our Bishops to support the Government of Laws Chap. XXVI We have as much reason that the Protestant Bishops should be as constant to the Reformed Religion as Popish Bishops obstinate for Popery An Apology for their Vnanimity in Voting Their dependance not so great upon the Crown as to oblige them to disserve their Prince The King bestows nothing upon them but what is the Churches the great expectation the Government hath of their fidelity and performances That which advanced them must
will take notice of nothing that is faulty in this Case but that this proceeding tends to abridge freedom of speech in Parliament which he loved from his youth which we do not blame in him As he did also to talk against Bishops which he cannot depart from when he is old But in the first of Hen. 4. this Judgment of Attainder was repealed and annull'd as he himself tells us Fol. 25. And here the Lords Spiritual were Judges which must be remark't for the honour of their Order that though they were the pars laesa by that fault such as it was yet notwithstanding they concurred readily to the repealing the Judgment But by this it appears that the Bishops did agreeable to their rightful Authority sit in Judgment in Parliament in capital Causes and therefore in consequence because it is a Case of his own production he ought to allow that the Bishops might have had Session in the Repeal of the Attainder of Roger Earl of March if it had been or could have been repealed by Judgment or a judicial Act of the Lords House For will this renownedly wise-man for avoiding of this his own testimony which he hath justly produced though it proves to testify against himself say that the Bishops can be present at repealing of a Judgment of Condemnation but not present at confirming any Doth not it in this proceeding come before them in Judgment and consideration Whether the sentence shall be repealed or affirmed and is not this with a witness a question of blood The Judgment being upon an appeal or review must be final peremptory and decretory and is more a question of blood than the Cause can be reckoned and deem'd to be upon the first Instance Or doth he think fit that there should be two sorts of Judges appointed a hanging Judge and a saving Judge if he doth I am sure he will not be able to find an employment for a just Judge So that I think to all men that can consider we have sufficiently vacated that testimony that the Cases of the Earl March and Haxey's seem'd to give against us and they are fairly come over to our side And we have provided herein sufficiently for the recovering of all men into an indifferency against the Prejudices this Octavo by its great Esteem hath done to their Judgments The Third Precedent is 15 E. 3. That Parliament was declared to be called for the Redress of the breach of the Laws and of the Peace of the Kingdom and as the Octavo hath it Fol. 8. because the Prelates were of opinion that it belonged not properly to them to give Councel about keeping the peace nor punishing such evils they went away by themselves and returned no more saith he but that is out of the Record so ready this Authour in Octavo is to shut them out of the House but I pray would not the Temporal Lords if the King had consulted the Parliament in matters Ecclesiastical have in like manner departed but would such departure of the Temporal Lords exclude them from having any thing to do in the Affairs of the Church Why then are the Bishops treated in their Right so unequally And this must serve for an Answer to the Folio p. 17. where he is very large in reciting Records of process and Proclamation against the Earl of Northumberland agreed only by Lords If a Liturgy or book of Canons were to be established by Law the Bishops certainly would have the forming of them The Octavo saith that Commissions were then framed by the Counts Barons and other Grants and brought into Parliament but no Bishop was present so much as to hear the Commissions read because they were to enquire into all Crimes as well Capital as others And for affirming this for all that can appear to us he only consulted his Will and pleasure like an honest man to the cause he defends for he hath not told us from any Record what the Nature of these Commissions were But we observe that though this Parliament was called for matters of the peace yet the Bishops had their Summons and it was not a Parliament excluso Clero The Bishops it seems upon the opening of the Parliament and the causes of convening modestly it seem'd declared that they were not competent as not perhaps studied in Pleas of the Crown or perhaps had not been so observant in fact of the matters of grievance What harm in all this they that cannot propound may judge of Expedients propounded and so did they for it doth appear by the Record 6 E. 3. N. 3. that the Results of the Temporal Lords were approved in full Parliament by the King Bishops Lords and Commons which the Folio agrees But it seems modesty is a dangerous thing and not to be forward to judge and determine though the matter be not understood may be a good Cause to turn a Judge out of his Office and forfeit his Judicature Besides the principal business of this Parliament was Legislation in which the Prelates have an undisputed Right of Session and may they not advise upon what they make into a Law May not they consider of the matter that is to pass into a Law in all the steps it makes But it is admirable what the Folio Book saith viz. that by this Record it is evident that the Prelates have no judicial power over any personal Crimes which are not Parliamentary I suppose he means Crimes not debated in Parliament This doth very much fortify the foundations and grounds of his discourse What are the grounds of his discourse I shall never be able to find out except it be an over-weening Opinion of himself to meddle with these matters which seem too high for him and to which the reading of my Lords Cooks Institutes and the broken Commentaries of the Law will never render any man competent It s true the Bishops have never any power and Cognizance of any Causes except they are commissionated thereto out of Parliament But as true it is of the Temporal Lords and therefore whatsoever advantage this will do his Cause with all my heart let him take it The next Case produced as a Precedent for them is the Case of Sir William de La Zouch and Sir John Gray for a quarrel in the Kings presence they were both committed to the Tower and after brought into Parliament no Bishops there It is a Case that could not be judged there neither was it but one of them was discharged because no probable matter of offence against him and the other remanded to the Tower I suppose to be proceeded against as the Law required Is this cause I pray to his purpose have not the Prelates judgment in causes of Trespass that properly come before that House by his own Confession And yet the Octavo remarks here that no Bishops were present to judge so much as of a Battery though the Record warrants him to say only an Assault But out of his great
not pass the Limits of our own Arguments otherwise we had much to say against the Authority of that Sory as it is by the Octavo mentioned But to this day neither in Record or History have we heard of any the least pretence of any special abatement made of any service due by the Tenures by Barony to any Bishops or other Spiritual Baron by the Conquerour at the time of the creating those Tenures neither did the Bishops when they would fain have been excused from judging in Blood ever pretend to it or make any such excuse that their Tenures did not oblige them thereto They have ever been esteemed to have power of Judgment in Capital Causes in Parliament and in a long tract of time it hath been several ways used and acknowledged Their Right is so far from being fore-judged that it never till of late was brought in question They have pretended sometimes that they ought not to use that Right in observation of the Canon Law and have made their protestation according whether of necessity or choice shall be considered They were upon the score of the Canon Law indulged in the Satute of Clarendon from being present and assisting in giving the Judgment of Death and mutilation of Limb yet their Right was not by that Statute destroyed or hurt it put them only at liberty to use it or not but put no obligation or legal restraint upon them not to use it That Law was in favour of their Liberty not a Restraint upon their Right The words of that Law that concern this question we shall here set down Archiepiscopi Episcopi universae personae Regni qui de Rege tenent in capite habeant possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis ministris Regis sequantur faciant omnes consuetudines regias sicut caeteri Barones debent interesse judiciis Curiae quousque perveniatur ad diminutionem membrorum vel ad mortem Whether these words are words of Liberty or Restraint of prohibition or indulgence and favour as also how far this favour Liberty or Indulgence did extend will appear clearly by the occasion of the Law and the History of those times for whose sake it was made and upon what inducements and how far they did use their Liberty afterwards It is notorious that the design and endeavour of some Bishops of that age and before from the days of Gregory the seventh was to establish an Ecclesiastical Monarchy in the Pope to make themselves the Grandees of another Kingdom they endeavoured to exempt themselves from all Civil subjection as also from being any part of the Civil Government over which their Church Empire was to rule and domineer They looked upon their Baronies to be marks of Slavery and inconsistent with their designed Church-empire by which they were kept in subjection to the Government and made a part of it which was designed by the Conquerour but most sharply complained of as may be seen in Mat. Paris Rex Willielmus pessimo usus consilio Episcopatus sub servitute statuit militari rotulas hujus Ecclesiasticae servitutis ponens in Thesauris multos viros Ecclesiasticos huic constitutioni pessimae reluctantes à Regno fugavit If the Bishops then had been ambitious and desirous that they might be as the rest of the Barons were Judges in the Kings Court then it is true that the word quousque must be a word of Exclusion and that their pretence of judging was fore-closed to all matters under the quousque For if I ask a thing which is not my right that which is not granted is denyed and by such denyall in case of a Law declared the more unlawful But this cannot possibly be for they were already Barons and Judges as other Barons This they reckon'd a servitude and was matter of grievance and complaint But the Assise of Clarendon did proceed from the King for the asserting his Soveraign Power to resist the design of the Papal Monarchy and to oblige the Bishops to continue part of the Government and to tye them to the duty of their Tenures Gervasius tells us Col. 1386. that the Bishops did not know what the Consuetudines Ecclesiasticae in the Assise of Clarendon were but they imagined them to be evil because the King did so much insist upon them Nesciebant saith he speaking of the Bishops hujusque quae essent illae consuetudines sed pravas esse suspicabantur eo quod tantâ instantiâ peterentur But the King commanded as followeth sapientiâ provectiores ite disquirite Avi mei consuetudines ut in scriptum redactae deducantur in medium publice recenseantur quas cum seorsum veteres actus pravitates so he calls the Statutes of Clarendon in scripta reduxissent haec tandem scripta modo Chirographi protulerunt which the Arch-Bishop was required to seal as the custom then was in passing of Laws It is likewise evident in the very Assise of Clarendon that the Bishops were then Barons and ought to do the office of a Baron and were by being Barons Judges and ought interesse sicut caeteri Barones Judiciis Curiae Domini Regis But how far they should by that Statute be bound hereafter this Law was to determine In consequence the Quousque is but a Clause of Liberty at most and the matter under it left to choice A priviledge indeed the Bishops might hereby obtain to judge or not to judge in Causes of blood which they used in all after-times as they pleased as they did more or less regard the Canons as either they did or were thought to intend No right was hereby fore-closed of judging but establisht for the words are debent interesse Quousque is a Clause of exception and leaves them in that matter at large and savours not at all of a prohibition But though the Bishops might have such a Liberty by the Letter of the Assise of Clarendon to judge or not to judge at all in capital Causes which doth not at all impair their Right but that notwithstanding they may use their rightful authority when they please Yet the Bishops did not intend themselves further priviledged by this Law than that they should not be obliged to be present at the pronouncing of the sentence which appears by the Canons that have been made about this matter in England which we shall mention hereafter which would have been most peremptory in their prohibitions and very severe in their denouncing Curses in a matter of this nature as far as they had the Laws on their side As also by the Practice of the Bishops in those times which appears by Peter Blesensis whose words are Principes sacerdotum seniores populi by which he means the Bishops who from the dignity and worthiness of their Order are called Seniores a note of dignity in all Countries in all Ages which I observe because some are so ignorant as not to know it and think the
resolved what to do desired of the Earls of Leicester and Cornwall that he might have time untill the morrow And the morrow being Sunday time was given until the Munday and then the Bishops came to Becket and advised him for avoiding danger and scandal to submit himself to the Kings Will which if he should do jam audierint in Curiâ Regis perjurii Crimen sibi imponi tanquam proditorem judicandum eò quod terreno Domino honorem terrenum non servaret cum avitas consuetudines Regni observaturum firmasset ad quas specialiter observare jurisjurandi nova se illos astrixerat Religione And now sure it will be believed that Becket was accused in this Parliament of Treason for Treason was his Crime not allowing the King with the consent of his States to make any Laws but such as he should approve aggravated with perjury for he had sworn himself to observe them After Becket had given the Bishops an obstinate and resolute Answer to adhere to his Treasonable Practices to disallow the Authority of the King and States in the Laws called the Assise of Clarendon and to oppose the observance of them Observe what Gervasius saith discesserunt Episcopi ad Curiam properantes By and by Becket comes too but the Bishops were there before him carrying the Cross himself which the King as well as the Bishops took to be a coming armed Upon which saith Gervasius vocatis Episcopis proceribus gravem grandem Rex deponit querimoniam quod Archiepiscopus sic armatus in Curiam veniens ipsum suos omnes inauditâ saeculis formâ naevo notaverit proditoris Whereupon the Bishops by the Mouth of Hilaris Cicestrensis a Bishop more eloquent than the rest thus said to Becket Quandoque ait fuisti Archiepiscopus tenebamur tibi obedire sed quia Domino Regi fidelitatem jurasti hoc est vitam membra terrenam dignitatem sibi per te salvam fore consuetudines quas ipse repetit conservandas tu niteris eas destruere cum praecipue spectant ad terrenam sui degnitatem honorem idcirco te reum perjurii dicimus perjuro Archiepiscopo de caetero obedire non habemus This I take to be a judging in Treason But this the Bishops did for their part as Bishops and Suffragans they did withdraw their obedience from their Metropolitan which was as much as in them lay to deprive him a conviction it was of the Guilt not indeed judicium sanguinis But this is not all for observe what our said Author saith further they going away the King saith to them discernite quid perjurus contumax proditor debeat sustinere Itur judicatur à quo vel qualiter judicium pronuntiandum esset informatur In which matter Stephanides as he is cited by Mr. Selden in his Titles of Honour in the Folio Edition fol. 705. tells us how it was consulted and debated between the Bishops the Spiritual Barons and the Temporal Barons for saith he de proferendo judicio distantia fuit inter Episcopos Barones utrisque alteri illud imponentibus utrisque se excusantibus Aiunt Barones vos Episcopi pronuntiare debetis sententiam ad nos non pertinet nos Laici sumus vos personae Ecclesiasticae sicut ille Consacerdotes ejus Coepiscopi ejus Ad haec aliquis Episcoporum Imo vestri potius est hoc officii non nostri non enim est hoc judicium Ecclesiasticum sed Seculare non sedemus hic Episcopi sed Barones Nos Barones vos Barones pares hic sumus Ordinis autem Nostri rationi frustra innitimini quia si in nobis ordinationem attenditis in ipso similiter attendere debetis eo autem ipso quod Episcopi sumus non possumus Archiepiscopum dominum nostrum judicare By which dispute by the way it doth appear that both the Bishops and Temporal Lords did take themselves to be equally constituted Judges and Peers by reason of their common Baronage in this Case of Becket a Cause of Treason the Bishops owned and avowed a Right of judging him as Barons They did not excuse themselves upon the score of the Canon alledged but from the indecency in respect of the relation that they stood in to the Criminal he being their Superiour and Metropolitan they seem'd willing to decline the making of the Sentence Whether any Judgment was pronounced by whom or what the Judgment was is not certain the Historians differing thereupon But when he went out of the Court he was call'd by the people as he past Traytor and perjured Traytor as the King before had called him And if this be not the clearest proof of Beckets being accused of Treason and the Bishops judging in a capital Cause in Parliament there can be nothing proved to satisfaction Besides that all that writ of his story are unwilling Witnesses they magnify excuse and justify the man all along extolling his virtues They call him Saint Pater Patriae so Gervasius does Coll. 1393. and Martyr Let the Reader consider what is here faithfully recited and then let him tell what Opinion he hath of the Candor of the Octavo Gentleman who could find no fault in Thomas Becket for he saith Folio 62. That Gervasius Dorobernensis saith that Becket was charged with two things Injustice to John Marshall and his own contempt in not appearing to the Kings Summons This Author had nothing of his own knowledge to charge upon him and saith that Stephanides is not to be regarded because he was Beckets friend and an obscure Author it may be not yet come into his Study The Author had reason to see no faults in Becket or to forget them all for the good service the insolencies of that man hath done towards the Scandal of the Order But we have not mispent our own time neither will the Reader regret our length in this matter for this single Case consider'd gives a Resolution to the Question and puts the Right of the Bishops to sit in capital Causes out of all doubt This Case will let in light for the true understanding of the Assise of Clarendon For it must be noted that the Great Parliament of Clarendon was held by Henry the 2. about the latter end of January in the tenth year of his Reign the Bishops and Lords were all Sworn to observe the Statutes there made called the Assise of Clarendon called the Avitae consuetudines Regni of which the Law aforementioned was one This Law therefore must be interpreted in such a sense for that the words will bear it and can be intended in no other than that which may consist with the proceedings in the Case of Arch-Bishop Becket and with the Oaths of all the Bishops and Peers and the great men taken but a short time before to observe the Statutes of Clarendon Now if the whole Order of capital Causes had been intended to be excepted by that Statute above
Regni Angliae pro tempore celebrandis necnon tractandi expediendi in eisdem quantum ad singula in instanti Parliamento pro statu honore Domini nostri Regis nec non Regalie ac quiete pace tranquillitate Regni judicialiter justificandi venerabili viro D. Thomae Peircy ..... Nostram plenariam committimus potestatem ita ut singula per ipsum facta in praemissis perpetuis temporibus rata habeantur The Commons of England knew what they said and could not be mistaken in fact we know of no Judgments reversed but those of the Spencers But we have no Records or very few of the times before Edward the Third transmitted to us through the injury of the times but they then had certainly whereupon they grounded their petition upon which the said procuratory Letters were made which petition here follows in terminis Mecredy prochein ensuant les Communes monstrerent au Roy coment avant ces Jeures plusieurs jugements Ordinances faitez en temps des progenitors nostre Senior le Roy en le Parliement eiant estre repelles adnulles pur ceo que l'estat de Clergie ne fust prest en Parliament a la faisaunce des dits jugements Ordenances pur ceo prierent au Roy que pur surete de sa personne salvation de son Royalme les Evesques le Clergie ferroient un Procurator aver poiar sufficient pur consentir en leur nosme as toutes choses ordinances a justifieis en cest Parliament que sur ceo chescun Signior espiritual dirroit pleinenent son advys Sur qui les dits Seigniors Espiritual severalment examines se consenterent de Comettre lour plein poiar grantant en les parts nosmerent on especial Tho. Peircy Chivaler sur ceo baillerent au Roy une Schedule contenant lour dit poiar le quelle nostre Seignior le Roy receust commanda la dite Mecredy estre enter de record en Rol de Parliament deque cela Schedule le form sensuit But it is remarkable that this Petition was made in 21 R. 2. for that in the 11 R. 2. the Bishops had made their Protestation that by reason of a Canon they could not be present The words of the protestation we shall here transcribe Per encheson certeins mattires feurent mouvez en cest present Parliament toucherent overtement Cryme L'archevesque de Canterbiry les autres Prelates de sa province fierent une protestation en la fourme paroles qui suent In Dei nomine Amen Cum de Jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non caeteros suos Suffraganeos Confratres Coepiscopos Abbates Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertinet in Parliamentis Regiis quibuscunque ut Pares Regni praedicti personaliter interesse ibidemque de Regni negotiis aliis ibi tractari consuetis cum caeteris Domini Regis Paribus aliis ibidem jus interessendi habentibus consulere tractare ordinare statuere definire ac caetera facere quae Parliamenti tempore ibidem invenerint faciend in quibus omnibus singulis nos Willielmus Cantuarien Archiepiscopus totius Angliae Primas Apostolicae sedis Legatus pro nobis nostrisque Suffraganeis Coepiscopis Confratribus necnon Abbatibus Prioribus ac Praelatis omnibus supradictis protestamur eorum quilibet protestatur qui per se vel procuratorem hic fuit modo praesens publicè expressè quod intendimus intendi volumus vult eorum quilibet in hoc presenti Parliamento aliis ut Pares Regni praedicti more solito interesse consulere tractare ordinare statuere definire ac caetera exercere cum caeteris jus interessendi habentibus in iisdem statu ordine nobis eorum cuilibet in omnibus semper salvis Verum quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet personaliter interesse ea propter pro nobis eorum quolibet protestamur eorum quilibet hic praesens etiam protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus intendit nec vult aliquis eorundem in praesenti Parliamento dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos nostrum quemlibet in ea parte penitus absentare Jure Paritatis nostrae cujuslibet eorum interessendi in dicto Parliamento quoad omnia singula inibi exercenda nostro eorum cujuslibet statui ordini congruentia in omnibus semper salvo Adhuc insuper protestamur eorum quilibet protestatur quod propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit vel vult quod processus habiti habendi in praesenti Parliamento super materiis auditis in quibus non possumus nec debemus ut praemittitur interesse quantum ad nos eorum quemlibet attinet futuris temporibus quomodolibet impugnentur infirmentur seu etiam revocentur Quelle protestation leu en plein Parliament al instance priere du dit L'archevesque les autres Prelates susditz inrollez ycy en rol du Parlement per Commandement du Roy assent des Signiors Temporeles Communes This the adversaries of the Bishops would have an Act of Parliament for that at the prayer of the Bishops by the Kings command with the assent of the Lords Temporal and Commons it was inrolled for that all the formalities that were used in these times in passing a Law was only to have the matter shortly entred in the Roll or Journal Book that such a thing was agreed upon by the King and two Houses which was drawn into the form of a Law afterwards by the Justices and Kings Councel when the Parliament was risen but this was never done in this Protestation and therefore we might say that it is not to be taken for a Law But we will admit it to be a Law yet it can be a Law only for that Case and can be extended no further Those Bishops protest but for whom For themselves only their own persons not their successors that by reason of the institution of the Canon they could not be present at certain matters to be treated of in the Parliament What those Canons were they do not tell us They had no other reason but the Canon to pretend at that time We hear not a word from them of the Assise of Clarendon And what was it that they protested Why only that they could not be present at what only at the matters aforesaid mentioned in the Petition and in that present Parliament But was this without any regard of their Right No they saved their Right their
Jus Paritatis pray mark it what then did they in effect depart from nothing They provided only that they might do nothing indecent or rather against their good liking and at the same time consulted likewise the safety of their Estate and Order and preservation of all their Rights But had they no care of the Authority of the Parliament in their absence yes for they very well knew that it was a probable opinion that nothing acted in their absence and during a recess of their whole Order could be rate and valid and therefore they provide propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit vel vult quod processus habiti habendi in praesenti Parliamento super materiis auditis quantum ad nos eorum quemlibet attinet futuris temporibus quomodolibet impugnentur infirmentur seu etiam revocentur Let the Impartial Reader Judge whether this be not a famous recognition of the Bishops Right of sitting what a solemn leave they had to be absent what provisions made that the proceedings in that Parliament should not be avoided and made null by their absence which implies a great probability that that time allowed to the opinion of their being necessary in all proceedings in Parliament Was there ever such a protestation entred on the behalf of the Absentees of Temporal Barons This leave given them to be absent is an allowance of Right to sit The proceedings they liked not and the Canon was pretended Admitting this protestation to be an Act of Parliament It is an Act of Parliament to give the Bishops leave to be absent pro hac vice and to make Laws good that should pass in their absence I appeal to the world whether there can be a more Solemn and Authentick Recognition of their Right than this protestation imports CHAP. VIII IT does appear by the whole tenor of this their protestation that the Canons of the Church which they pretend had not passed into Laws if they had what need of such a warm protestation only for the sake of decency and the honesty of their order to be rid of a troublesome business what means the saving of their right if by Law it had been discharged what means their further protestation that the validity of the proceedings in those Causes in which they withdrew should not be impeach't by their absence if their Right did not remain entire notwithstanding the Canon besides that they do not alledge the Law but the Canons of the Church for their excuse They well knew the nature of Canons the force and obligation of them and also that they were not under any obligation to the Canon Law that it was only a Law in the Popes Temporal principality and had no Controul upon the Laws of this Kingdom For the clearing this question it will not be unnecessary here to speak to the nature of Canons what they effect and how oblige Canons therefore are no more Laws than the authority of the Church is Empire no not in matters that are proper for their Canons But most certainly they can neither make nor annul a Civil Right nor do they pretend to alter or change Governments they exceed their proper bounds when they intermeddle in any matters of this nature But when they do extend themselves beyond their bounds and order and appoint in any matter of a Civil Government they intend only to counsel and direct the man how he shall behave himself in the use of his Right which every man may observe if he please Their Subjects are Populus voluntarius the Ecclesiastical Courts are Courts of audience in matters that belong to their cognisance and the Church's word is He that will hear let him hear The Canons of foreign Councils tho' General tho' we send thither our Delegates and Proxies authorized by publick Instruments and by consent of Parliament as has been sometimes done have not the consideration of Canons except received here and allowed by the same Authority that makes the Canons of our Church Canons here must have the Royal assent at least to make them Canons but with the Kings assent they are void if they alter or meddle with any Civil Right or Constitution If any man is proceeded against in the Ecclesiastical Courts for being contrary in any thing to such a Canon our Courts will grant him a prohibition if Excommunicate thereupon award Writs to assoil him to the Bishop and seise his Temporalties if he do not conform Nothing can alter Civil Rights or Civil Constitutions but Law and such never were any Canons or so reputed except the Decrees of Councils confirmed by the Imperial Rescripts of the Roman Emperors who by their Rescripts made Laws by the Authority of the Lex regia by which the people devolved their Right of Legislation to the Emperors but when such Canons were confirmed by the Emperor they remained but Canons still the Canons were to be exacted by the measures of the Church and by the Church-men the matters of such Canons did not employ the Forum no alteration was made in any Civil Right but the Church had Authority to require observance of them under the Censures of the Church About the 11th Century the Pope meditating the increase of his new Ecclesiastical Empire the Roman Empire being now extinct did design to give Laws to the World and to that purpose in imitation of the Imperial Roman Law Gratian was appointed to compile a body of Laws accomodated to that design out of the General Councils the sayings of the Fathers and some decrees of former Popes which made that part of the Canon Law which they call the Decreta to answer to the Digest which was made up of the Senatus consulta Responsa prudentum and the Edicta Praetorum to which another Book was added of Decretals and Clementines made up of the Popes Decretal Epistles which answered to the Codes and Novels which was made up of the Edicts Epistles and Decrees of the Emperors For by the Constitution of the Senate of Rome called Lex Regia by which they gave the power of making Laws to Augustus it was established that quicquid per Epistolam statuit cognoscens decrevit aut per edictum propalavit lex esto And now there was such a thing as a body of Canon Law The Pope had Power indeed to make these Decreta and Decretalia Laws in the Domains of the Church and the patrimony of St. Peter in which he was a Temporal Prince but it was further endeavoured by him to make them the Laws of the Christian World and thereby to advance his pretended Oecumencial Empire and he did so far prevail and advance in his design that it was thought that Rome had again recovered the Empire of the World and it was said with too much truth of her upon the growth of the Papal power Quicquid non possidet armis Religione tenet But tho' the Pontificial as well as the Justinian
as many of them as were most proper to judge or assist in the Judgment as the Case did require were appointed by the King or his Capitalis Justiciarius And that it was so in Fact appears by that Famous Cause wherein Arch-bishop Lanfranck recovered against Odo Bishop of Baieux Earl of Kent Eadmerus Hist Nov. l. 1. f. 9. tells us That there was Principum Conventus an Assembly of Barons at Pinneden in Kent and that the Kings Precept was Rex quatenus adunatis primoribus probis viris non solum de Comitatu Cantiae sed de aliis Comitatibus Angliae Querele Lanfranci in medium ducerentur examinarentur determinarentur disposito itaque saith he principum Conventus apud Pinneden Gaufridus Episcopus Constantiensis vir ea tempestate praedives in Anglia Vice Regis for Odo Bishop of Baieux one of the Litigants was at that time the Justiciarius Angliae justitiam de suis querelis strenuissimè jussus fecit where we see Godfrey at the King's Precept took so many Barons of that Country or of any other where any of the Lands lay as Assistants to him For our Historian saith that Lanfranck though Godfred pronounced the Judgment did recover judicio Baronum qui placita tenuerunt The probi homines were such by whom the truth of the matter might be better understood and did probably enquire of it who did accord and agree the Judgment to be right Lanfranc did recover ex communi omnium astipulatione judicio as our Historian also informs us I might cite many more Records of the Method of the Administration of Justice in this Curia Regis but I should be too long in this matter not being strictly necessary to the Question in hand though the understanding of the Nature of this Court and the Constitution of the Government at this time will many ways inserve to the clearing the Right thereof In this Court Peers were tryed all Pleas of the Crown heard and whatever is now the Business of the Courts of Common Pleas and Exchequer was dispatch'd in this Curia Regis Here Fines were levyed as appears by a Record furnished to us by Sir Hen. Spelman in his Gloss f. 279. the word Fines There men famous for their Skill in the Law did attend and by this Judicature some place was assigned them where they were to hear such Causes as were referred and sent down to them and it is very possible that Fines may be levyed i. e. Concord made of the thing in pretence that was referred to them and it may be true that in a Charter of a Grant of Conusance of Causes Words may be conteined for excluding the Intromissions of the Justices of the one Bench and the other For such Charters never want words These matters are produced by Sir Edward Coke in his Preface to the Eighth Report to prove that the Common Pleas was a Court before the Magna Charta of King John for that these matters are in time before that Charter but these Justices were no other than Ministers to the Curia Regis They were not such Justices as now make that Court all Common Pleas being now appropriated to their Judicature For the Writs before that Charter were returnable coram me vel Justitia mea Glanvil l. 1. cap 6. but after that Charter they were returnable coram Justiciariis meis apud Westmonasterium Bracton l. 2. cap. 32. But before this all Common Pleas were adjudged in the Curia Regis and that Court did send down the Cause to such as did attend that Court to receive its References By Magna Charta cap. 11. it was provided Communia placita non sequantur Curiam nostram sed teneantur in aliquo certo loco And now Writs were made returnable there the Common Pleas were taken out of the Jurisdiction of the Curia Regis one Judicature was appointed for all Causes between the Subjects and one place of Attendance for Litigants By this Provision Justice was administred without Noise and Tumult the Administration of it committed to men of Skill and to such who might be answerable for their Judgments and from whom it might be appealed But after Magna Charta made by King John and confirmed by H. 3 9. the Authority continued of the Justitia or capitalis Justiciarius to him was the resort for Writs from whence all Judicial Authority was still derived He did direct and bound the Justice of the Court of Common Pleas by such Formula's as were allowed in the Curia Regis where the Chancellor and his Colledge of Clerks did attend for the forming of Writs according to the nature of the Complaint with the Allowance of that Court but the Authority of this Court ceasing and the Office of this great Justiciary about the end of H. 3. we find in the Statutes of Glouc. 6 E. 1. c. 7. Laws for a Writ of Entry to be granted to the Reversioner where Tenant in Dower Aliens in Fee though her Alienation was a Forfeiture of that Estate at Common Law But it seems there had been no such Writ yet formed and the Chancellor had no such Power of forming a new Writ That Statute provides that in that Case there shall be a Writ of Entry thereof made in Chancery which is called A Writ of Entry in casu proviso And for that Power might not be wanting in the Chancellor to issue out new Writs where no Writs before formed were fitted to the Case So that Writs in Cases of like reason had been granted by W. 2. cap. 24. it was provided quotiescunque evenerit in Cancellaria quod in uno casu reperitur Breve in consimili casu cadente simili indigente remedio concordent Clerici de Cancellaria in Brevi faciendo Whereas in the full Authority of the Court of the Curia Regis no Right could have failed of a Remedy For Jura sunt matres Actionum But Derivative Authorities are always stricti Juris no Rights are now remediable but where they are in a Parity of Reason or Analogy with such Rights as had received relief in the time of that Great and Original Judicature So inconvenient are those Reformations that reform by pulling down Want of Authority to do Right is a greater Fault in Government than the allowance of a Power that may be abused to Wrong and Oppression But this is the true reason why we have so many Causes irremediable at Common Law petitioning for relief at this day in our Court of Chancery though if the Statute of Westm 2. before-mentioned were well improved the Defects of our Law would not be so shameful and notorious By what hath been said it appears that the Common Pleas was not an Original Court or a Court of ordinary Jurisdiction in the First Constitution of the Government and such it remains and continues to this time For that Court cannot proceed to Judgment in any Cause without an Original Writ out of Chancery though a late Statute makes their
like this was before attempted by King John by this Writ of King John the like of which is not found Rex vicecomiti Oxoniae salutem praecipimus tibi quod omnes milites Ballivae tuae qui summoniti fuerant esse apud Oxoniam ad nos à die omnium Sanctorum in 15 dies venire facias cum armis suis corpora vero Baronum sive Armis singulariter 4 discretos milites de comitatu tuo illuc venire facias ad nos ad eundem Terminum ad loquendum nobiscum de Negotiis Regni nostri teste meipso apud Written 11 die Novembris Dors Claus 15. Johannis Regis Part 2. M. 7. But that Hen. 3. in that Parliament had some notable Expedient for the Establishment of the publick Peace and Quiet His Hopes and Desires of accomplishng it will appear by the Stile of the fore-recited Writ if compared with another Writ of Summons in a Cursory Form in the 26th Year of his Reign which was thus Henricus c. Venerabili in Christo Patri Waltero Eboracensi Archiepiscopo salutem mandamus vobis qualenus sicut honorem nostrum pariter vestrum diligitis in fide qua Nobis tenemini omnibus aliis negotiis omissis sitis ad nos apud London à die Sancti Hillani in 14 dies ad tractandum nobiscum una cum caeteris magnatibus nostris statum nostrum totius Regni nostri specialiter tangentibus hoc nullatenus omittatis But shortly to deduce the History of this Change which is but conjectural under the Authority of Mr. Selden in which nothing is certain but that the Bishops continued in the Change of the Baronage in the same State of Greatness mentioned the same Order had their Writs of Summons continued to them as before and though many of the Regular Barons were after omitted to be summoned to Parliament yet not one Bishop ever wanted his Summons This Discrimination shews That they were now Barons by Writ as the Lay Barons were and for the same Reason that is because Tenures did not now make them Barons But such only were so who had the King's Writs sent to them of Summons to Parliament So that the Bishops are not now to be reckoned Barones feudales or Barons by Tenure but Barones rescriptitii as all Barons at this day except those by Patent which are so without any respect to Tenure The Feudal Baronage as we said was as large and as numerous as the Tenures by Knights Service in Chief which were capable of being multiplyed several ways for every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee The Feudal Baronies besides were ambulatory not fixed to Families but assignable as Estates and passed with the Lands Who sees not that by this Constitution and Nature of Baronage a great many mean persons not agreeable to that high Order must be entitled to it and so in truth it happen'd And hereupon a Distinction was made first between Barones Majores Barones Minores The Barones minores soon lost the Title of Barons altogether This is conjectured by Mr. Selden to be before the latter end of King John's Reign and their legal Stile became Milites or Libere Tenentes which some upon a mistake anticipating the Change of the Government made in H. 3. time think when they meet with Milites or Libere Tenentes in Parliament they have found Knights of the Shire chosen for Representatives in Parliament And if they reteined the Name and Stile of Barons it was now but abusively applyed to them for their Baronies were in Truth estimable but as Knights Fees only and of this sort of Barons there remains some to this day This appears by a Passage in the grand Charter of King John made in the latter end of his Reign as it is in Mat. Paris 343. Ad habendum commune concilium Regni de auxilio assidendo aliter quam in tribus casibus praedict these three Cases of Aid to make the Eldest Son a Knight of Aid to marry the Eldest Daughter and Aid of Ransome are understood Heir as is plain by the Charter Et de scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbates Comites majores Barones Angliae sigillatim per literas nostras Et praeterea faciemus summoneri in generali omnes alios qui in Capite tenent This was one Step to remove these Barones Minores from the Dignity of Barons which by H. 3. were quite discharged and never appeared after in Parliaments except chosen Knights of the Shire But because I find this great Charter of King John not well understood by several considerable Writers nor by Mr. Selden explained I will offer my Thoughts and the rather because it is not impertinent to our present purpose The first part to which the part before-recited doth refer is thus Nullum scutagium vel auxilium ponam in regno nostro nisi per commune concilium Regni nostri nisi ad corpus redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel maritandum ad hoc non fiet nisi rationabile auxilium and then follows ad habendum Concilium Regni aliter quam in tribus casibus praedictis scutagiis assidendis c. I conceive that by the first Commune Concilium he means the Curia Regis and that he did grant that out of that Court he would not impose Escuage or aid upon his Tenants except it were those three Cases of Aid mentioned For Escuage was then and after assessed in that Court and that properly as being due by their Tenure only the Opportionment there was to be made which was a proper Office for the King's Tenents amongst themselves until the Statute of 34 E. 1. de Tallagio non concedendo in which it was provided that no Tallage or Aid shall be put or levied without the Will and Assent of the Archbishops Bishops Earls Barons Knights Burgesses and other Free Commons of the Realm but for all matters other than those three mentioned Aids and Escuage which were due by Tenure it should be done by that Commune Concilium that is his Parliament and he there declares how he would have it summoned as to his Baronage who in that part of his Charter were to receive their Satisfaction and for the Liberties of sending Burgesses to Parliament they are likewise confirmed in the same Charter and therein provided for So that I am persuaded that the modus Parliamenti in King John's Time was in the said Charter declared It was probable that before this Charter there was some Law to declare who those Majores Barones were and who those Tenants in Chief were that should be accounted now no longer Barons and after the Tenants in chief had lost the Honor of a particular
but thence he offers a Reason which must needs be a Mistake too why Bishops shall not be tryed by Peers in Capital Crimes because these are personal and his being a Baron is Ratione tenurae and not of personal Nobility But this he wrote when he was young in his first Edition of Titles of Honour which was in the time of King James But can there be a harsher and more incongruous thing said than that there is any other Nobility than what is personal Can Land be noble This that I have said is to prove That the Spiritual Lords are of the Baronage of England such as it is now constituted and they do not cannot remain in any Reason or Understanding Feudal Barons after the Ratio Baronagii is changed and if they could remain Barons Ratione tenurae at this day yet they ought to have all Preheminencies and Priviledges of Barons But true it is that they are another sort of Nobility different from that of the secular Lords though equal in all the powers of Baronage and besides have precedency in Honour and therefore make a distinct State from them and one of the three Estates or Ordines Regni Besides that by the way we have destroyed the Force of the Arguments used by the Folio against the Jus Paritatis of Bishops and their Competency to try a Lay Peer which we shall speak to more by and by CHAP. XVII IN the King and in these three Estates is placed the Peoples Security and the Care of the whole Community from every of them they have distinct just and reasonable Expectations though the third State of the House of Commons hath carried away and almost ingrossed the name of the Peoples Representatives though they are only the Peoples Representatives to act for them in matters wherein the People are left at perfect Liberty and concerning which there is no Order taken in the Constitution of the Government This is truly Our Government a King and Three Estates the Lords Spiritual the Lords Temporal and the Commons by their Delegates and Representatives for the purpose only to treat about matters in which the People have Power to deliberate and are and ought to be redress'd This is the Forme of all the Modern and Gothick Governments planted in Christian Europe Guntherus expresseth three Estates thus Praelati Proceres missisque Potentibus Vrbes The great men of Estates Proceres were sufficient to take care of their Interests and Dependents which made the Body of the County But then there were Cities or great Towns in which were great Bodies of Freemen men of Wealth and Trade that were little concerned in Lands or Tenures which we call Liberi Burgi which our Neighbors call Hans Towns And our Kings seem to have by Prerogative a continuing Power to declare Towns when they arrive to be great peopled and rich Free Boroughs and thereupon they acquire a Right to send Delegates to Parliament And this appears for that many Boroughs that send Burgesses of to Parliament have no other Foundation Right but the King's Charter in which he grants Sit A. de Caetero liber Burgus I have seen some of these Charters as ancient as King John These Charters could have had no such Operation but by vertue of some Ancient Establishment in the Government We have no History of its Commencement King William I. that he might have the assistance of all the States in Parliament put the Boroughs under Tenure by Baronage How many of the Burgage Tenures were of that sort we know not but it is probable all that at that time sent Burgesses to the Parliamentary Conventions by what name soever they were then called the Burgesses of the Cinque-ports are still called Barons And we know that the Borough of St. Albans was put under that Tenure and in that Right challenged them to Burgesses to Parliament as Dr. Brady acknowledgeth But the reason why we have no remembrance of the Tenures of Boroughs to send Burgesses to Parliament is that which we have here proved viz. the ancient reason of Baronage viz. by Tenure did cease about the time of H. 3. And conformably the King might require Boroughs to send Members to Parliament without mentioning in his Writs the duty of their Tenure and by declaring them free Boroughs give them that Priviledge though not oblig'd thereto by any Tenure created upon them So that it is evident that before H. 3. our great Councils or Parliaments consisted of three Estates though they all pass'd under the general Stile of Baronagium Angliae which I thought fit to demonstrate that our Parliaments or great Council of the Realm always consisted of three States Corol. From this that the King's Prerogative being so viz. to have power to declare Free Boroughs which he useth by his Letters Patents The Rights of chosing their Burgesses to Parliament belongs to all of the Community and cannot be restrain'd to fewer Electors by their Charters For Jura ordinaria non recipiunt modum The Remainder at least of this Form of Government continued in all the Countries wherein the German Colonies made their Conquests and planted themselves as will appear to any body that will consult the Republicks and those plentiful Quotations that hath been made by a Learned Author in his Book published since this was written I cannot but wonder since this our Constitution hath been oftenmost authentickly declared and every one knows that the Government is materially so as we have said and it is agreed by all that the Government consists of three States that yet we know not where to find ' em There is much Art used to give Countenance to or rather to form an Opinion that the King is one of the three States It is now almost come to be an Opinion and insomuch as it is an Opinion it is an Error This Error such as it is is endeavored to be improved to the Destruction of the Government It is nurs'd up carefully and is to gain Reputation and Credit with the People by the Authority of great Names and when it is grown popular it is designed to take the least next Advantage against the Spiritual Lords to dismiss them from their Bench as no necessary or essential part of the Government There was it 's true an ill-pen'd and inconsiderate Address made by the House of Commons only to the the King in 2 Hen. 4. to desire him to make Peace between the Lords and therein they say that the three States of Parliament are the King the Lords Spiritual and Temporal and the Commons But this is the first time that an Address of a House of Commons was so nicely considered And that the Form and Letter of it should be the measure of Law and of the Government There was also a phantastick Letter written by Stephen Gardiner printed it seems in the Book of Martyrs wherein that Bishop talks of three States in which he must needs reckon the King for one For he could not leave
him out of the Government and he had no more Christian Graces than Faith Hope and Charity which he attributes to this Ternary of States of his own making But if he had four of those Graces there had been four States if six of those Graces to have match'd them in number he would have found three States in the House of Commons viz. Knights Citizens and Burgesses and have made six States It seems too King James made a Speech in Parliament wherein he was pleased to use his Logick and liked it seems the Ramistical way of Dichotomies The truth is he had more Logick than a wise King could tell how to bestow For in that Speech he saith The Parliament is composed of a Head and a Body himself and the Parliament This Body is sub-divided into two parts the upper House and the lower House The upper House into two Lords Spiritual and Temporal the lower House into two Knights and Burgesses The Citizens were left out for the sake of his Dithotomy His Method was to proceed by the way of two's and therefore 't was impossible we should here in this Speech of any three whatsoever yet this Speech too is produced against three States distinct from the King Besides they tell us that in one of the late King's Declarations drawn by then a young Gentleman but of great hopes and afterwards a very great Man the King is called one of the three States This Gentleman was very probably misled into that Mistake by a Book called Nomotechnia wherein it is said that the King Lords and Commons are the three States a Book of Institutions for young Students which was never yet allowed for Authority in the Law nor ever had the Honor to be cited in our Courts of Westminster These Mistakes or whatever you will call them with the Authority of the Octavo Author are united together to form an Opinion that the King is but the Bishops are not one of the three States which will be a very dishonorable Error For that it will lead us into a Mistake of our Government and which is much worse for that it hath a tendency to subvert it that is to depress the King and to suppress the Bishops It is an Indign thing and not to be suffer'd that we should lose our Government by Surreption and be made a Babel by dividing and confounding our Language To prevent this mischief we have declared our Government from the very Reason and Nature of the Structure thereof to consist of three States that is three different Orders which make the Great Council of the Kingdom whose End and Business is to administer Council and Auxiliaries to the King who is intrusted with the executive Power of the Government and Laws And besides now we will produce great Authorities to put this Mistake out of Countenance and to prevent its gaining any farther Authority with the People For Errors of this nature in process of time turn into Truth and things prove to be so at last as the Error and Mistake first bespake them and this our Lawyers know well enough with whom 't is a Maxime it belongs only to them and matters within their Province Communis Error facit Jus. And first for this purpose we will mention the Stile that the Parliament used which was convened by the Authority of Richard the Second he being then about to relinquish the Crown to H. 4. This Parliament in transacting so weighty an Office had reason to consider and know who they themselves were They without doubt in all their Proceedings in this High Matter used their true as well as biggest Stile which was that of States Walsingham tells us Sede Regali tunc vacua Procurators Regis Richardi Archiepiscop Eborac Hereford Renunciationem dicti Regis cessionem omnibus statibus Regni tunc adunatis ibi publice declararunt And again Quoniam videbatur cunctis Regni statibus super dictis Articulis singulatim ac etiam communiter interrogatis And again Ordinati sunt Comissarii ex parte statuum Communitatis ejusdem Regni Observe here that the King is none of these States that they are called all the States which signifies more than two that there is mention of States besides Community and therefore it was then understood that there were two States in the Lords House But afterwards he recites us the Form of a most important Instrument which follows In Dei nomine Amen Nos I. Episc Assavensis I. Abbas Glasconiensis Thomas Comes Glocestriae Thomas Dominus de Berkley Tho. de Epingham Tho. Gray Miles Willielmus Thirning Justiciarius per Pares Proceres Regni Angliae Spirituales Temporales ejusdem Regni Communitates omnes status ejusdem Regni Representantes Commissarii ad infra scripta specialiter deputati c. By which it is most clear that the Government was then understood to consist of three States of which the King was none as he cannot be with any Congruity 1 R. 3. Rot. Parl. apud Westm die Veneris 23 Jan. it appears that a Bill was exhibited coram Dom. Rege in Parl. Wherein is contained That several Articles on the behalf and in the name of the three States of the Realm viz. Lords Spiritual Temporal and Commons were delivered to the King And farther that the said three Estates were not assembled in form of Parliaments therefore be it ordained by this present Parliament that the Tenor of the said Articles delivered as aforesaid on the behalf of the said three Estates out of Parliament c. Now by the three Estates assembled in this present Parliament be the same ratified and approved Ac idem Dominus Rex de assensu dictorumtrium statuum Regni Authoritate praedicta omnia singula praemissa in billa praedicta contenta concedit ea pro vero indubio pronunciat decernit ac declarat This was in like manner an Act of Parliament for declaring the Right of the Crown to be in Rich. 3. In the Statute made 2 H. 4. the Word State is used plurally and for more than two of which the King was none to signifie the Parliament as appears cap 15. And so it is also in 4 Hen. 4. cap. 4. in which these words are Sith it is the desire of all the States of the Realm that nothing shall be so demanded of our Sovereign the King He will that all those who make any Demand c. So that hereby it is evident that in the Understanding of that time there were three States besides the King But to spare the Reader the trouble of the mentioning the Records at large that testifie the Parliament to consist of the King and the three Estates viz. Lords Spiritual Lords Temporal and Commons I will refer them that doubt to the Collection made in Mr. Pryn's Index to Sir Robert Cotton's Abridgment under that Title who himself was of this Opinion which nothing but the Evidence of the truth of the thing could have
the Lords and sate in one House they could not discharge that Office of a Representative so well as since they are divided from them and make a distinct House They could not well use that Freedom of Speech and Debate under the Observation of the great Lords upon whom the Principal Gentlemen had great Dependencies Their Consent was often very improperly such for he only truly and naturally consents who hath entire Freedom to dissent Si vis scire an velim effice ut possim nolle In the granting Aids for the Support of the Government and Defence of the Kingdom a Matter of the greatest Importance the Clergy Nobility and Commons stood divided and could not as the Ancient Constitution was by one Act of State be regularly and proportionably taxed according to the Exigency of the Affairs and their respective Abilities but those three Orders taxed themselves in such measures as they pleased which made the Kingdom Geryon-like a Monster of three Bodies Their several Concessions by this means not likely to be always equal and in the whole not competent to the instant necessity The Bishops Abbots and other Ecclesiastical persons of the Saxons time held their Lands free from all Secular Services besides Trinoda Necessitas viz. Expedition i. e. Supply for War pontium arcium extructio But King Ethelbald did grant that the Ecclesiasticks should be freed from all publick Charges except for the Building and Repairing of Castles and Bridges Ingulphus pag. 853. The like Immunity was allowed to the Clergy of the Empire by Honorius and Theodosius Lib. 4. Cod. Just de priv Dom. Aug. By the Great Charter their Priviledges were confirmed And for this reason the Clergy have taken themselves not of Right chargeable to Aids granted to the King by Parliament This Exemption hath been envied to them and made matter of Reproach though unduely in after Ages But notwithstanding this Exemption they have aided the Crown with Supplies frequently yet in such manner as asserted and saved their ancient Priviledge of being exempt that is they would not suffer themselves to be involved in a general Law but of their own Freedom and Will gave to the King which Concessions were notwithstanding not legal unless confirmed by Parliament to whom belonged always the power of judging of the Freedom and Ends of giving Aids and Benevolences and the necessity that required them But in the last Ages they have for their Commendation and Honor waved their pretences of Priviledge and Exemption and for the sake of Common Justice and the Publick Weal for avoiding being thought less in their Duty to the Publick than their Order required And for the better ascertaining and more equally adjusting the Parliamentary Aids they have submitted to be taxed by Acts of Parliament The Commons in Parliament we find as late as Henry 7. taxing only the Commons and that by Indenture between them and the King This Form of Grant is utterly exclusive of the Lords Power to charge the quantum times of Payment or ways of Levying of the Aids granted wherein they subject all Lands to the Levies thereof but the Lands of the Lords in Parliament or Land amortis'd to the Church Such an Indenture was made in Parliament held at Westminster 10 H. 7. and is pleaded at large in Rastals Entr. fol. 135. But of late our Government hath cleared it self from that grand inconveniency The Commons in Parliament and those whom they represent being far the greatest Proprietors they reasonably challenge it their Right to propound all Aids and appointing the Levies and Methods of raising them which because it must be agreed that the Commons in no congruity can tax the Lords authoritatively or impose upon them must have civilem intellectum that is the Commons in a Bill of Aids do propound that they will agree on the behalf of the Commonalty that they shall be taxed as the Bill propounds if the Lords for their part will agree the same CHAP. XXII NEither was our ancient Government without great faults and inconveniences in the conduct of Religion the principal care of all Governments on the one side by confounding Administrations which should have been kept distinct which was the fault of our Government in the Saxons time and by utterly disjoyning and severing the Church and State and not tying the Ecclesiasticks to a just dependency upon the State which was the Evil of after times that is to say the Ecclesiasticks were left to themselves to convene Councils and to make Canons without any dependence upon or relation to Parliaments The Constitution was such in the Saxons time that the Synods or Councils which govern'd in Religious matters were the same with their great Council or Parliament By these means all the Rules and Orders that were made in the matters of Religion were not Canons which are of the nature of Councils but Laws and obliged those that contravened them to temporal punishment The Church was thereby turned into a Dynasty and Religion was against its nature promoted by force which can onely truly obtain by persuasion And wheresoever this is in practice and use the Clergy to the great scandal of their Office will be entituled to all the Severities that shall be inflicted upon Dissenters Heretofore the Councils of the Church and the Authority of the State were unduly confounded After that we had Legatine Councils and Provincials convened by the Archbishops as they pleased not under the observation and controll of the Civil Power by which many inconveniences were occasioned many embroilments of the people happened the Authority of the Prince lessened and Civil Rights encroached upon the validity of several good Laws made in Parliament disputed clamoured against and sentenced as unlawful for want of a due subservience and dependence of the Ecclesiastical Conventions on Parliaments We had Imperium in Imperio or at least a Kingdom divided against it self This fault in our Government was help'd by Edward the Third our English Justinian he in the several Writs of Summons of the Bishops to Parliament made it a settled Rule that the clause of Praemunientes should be inserted requiring them therein to warn respectively Priorem Capitulum Ecclesiae vestrae C. ac Archidiaconos totúmque Clerum vestrae Diocesis quòd iidem Prior which if a Cathedral is the same as a Dean Archidiaconi totúsque Clerus vestrae Diocesis quòd iidem Prior Archidiaconi in propriis personis suis dictum Capitulum per unum idámque Clerus per duos Procuratores idoneos plenam ac sufficientem potestatem ab ipsis Capitulo Clero habentes praedictis die loco personaliter intersint ad consentiendum his quae tunc ibidem de communi concilio ipsius Regni nostri Divinâ favente Clementiâ contigerit ordinari And accordingly the several Bishops in obedience to such like Writs of Summons to Parliament to them directed summoned or warned their Deans or Priors Archdeacons and the Clergy by their Proxies
which have since made the Convocations or the Ecclesiastical Council of the Kingdom and are to meet at every Session of Parliament but to debate nothing but what is propounded and to publish nothing for Canons without the Royal Assent So that they are to act nothing but under the observation of Parliament This Convocation or Ecclesiastical Council other allowable Synods we have none ought not to convene but when a Parliament is sitting and continue no longer than the Parliament We ought to observe herein and applaud the excellent wisdom of our Government that in the very constituion of it hath provided for the peace of our Church by silencing Controversies which can never be determined with any effect such a wise expedient and course as the best instructed Christian Emperours did take by their Edicts prohibiting publick Disputations about subtil and nice Questions as Constantine Martianus Leo Anthemius Andronicus Heraclius to mention no more None but mad men and extravagantly presumptuous or utterly ignorant of Church History will ever hereafter go about by Acts of Councils to end Controversies but rather to shame the Dogmatizers out of their contentious zeal by shewing how little the ends and designs of Christianity are concerned one way or other in such Questions in which those that are most learned know least and a little learned ignorance would discharge most of them from any longer troubling the world And farther we must observe to the Honor of our Nation that it is so religiously wise as to commit the Care of conducting Devotions ordering the Decency of Publick Worship and censuring the Manners of Clerks to the Bishops and the Principal Clergy whereto their Religion Wisdom Devotion and Moderation bespeak them the fittest Persons No less remarkable is the Wisdom of our Government that it doth not make that which is properly the matter of Canons the Subject of their Legislation and thereby subject us to Temporal Punishments where the Admonitions of the Church and her Censures are more proportioned Remedies to the disobedient and froward Laws oblige us to punishments govern us by Fear and Awe oblige with Reason or without Reason because they are Laws They admit of no Ecclesiastical Relaxation or Dispensation and bind when the reason ceaseth In whatsoever thing relative to Religon a Law is made the matter is taken out of the Hands of the Church-men and no longer under their Government whose Government is a Ministry not Empire and Dominion They can institute nothing but what they may reasonably persuade Nihil tam voluntarium quam Religio Lact. We can have no more Religion or Truth than we can persuade Religion and Truth are to be promoted by moving the Will The Church rules by persuasion and her Canons oblige only for their Reason Religion for the sake of our own Edification and the Edification of others the Peace of the Church and Reverence of our Pastors and Teachers Canons in their own Nature are Temporary for the present necessity and convenience variable and mutable as the Edification of the Church shall require and the prudence of the Guides of the Church shall determine and therefore what is properly the Matter of Canons ought not to pass under Laws which are rigid and inflexible peremptory punitive and ungovernable And this magnifies the prudence and Christian Temper of our English Prelates CHAP. XXIII LAstly I observe what a dangerous Opinion our Judges sometimes had in reference to the Baronage of England viz. that it was in the Power of the King or in any Nobleman once summoned by Writ to Parliament as a Baron at the pleasure of the King to relinquish his place and determine the Nobility of his Family Which Opinion not being corrected would have made that State ambulatory and moveable upon which the whole Frame of the Government depends The Baronage of England is the Stabiliment of our Government and may be soon made too weak to support the other greater parts of the Building that rest upon it and are supported by it It is this that moderates between the two contending Interests of Prerogative and Liberty and prevents those violent Concussions which would otherwise unavoidably happen geminum gracilis Mare separat Isthmus Nec patitur conferre fretum si terra recedat Ionium Aegaeo frangat Mare Of what Importance therefore is it that we should be a Kingdom that cannot be shaken as much as Humane Wisdom can provide and frail Materials will admit That our Baronage should not hold their places precariously at the King's Pleasure and be deposed at his Will And yet our Judges after that Honor was fixed in the Families of those whom the King should appoint by Writ to hold that Honor and Place in the Commonwealth remembring that Baronage was at first a Service imposed ratione tenurae by Will the Conqueror Our Judges I say more able to judge of Private Rights than in Questions of State and Government being under a prejudice from the Consideration of the Original of our Baronies did allow the Plea of Thomas de Furnival who had been called to several Parliaments by Writ that he was no Baron for that he held not his Land per Baroniam vel partem Baroniae and therefore adjudged him no Baron Communia de Term. Sancti Hillarii Anno 19 E. 2. Rot. penes Remem Dom. Thes in Scaccario pro Thoma de Furnival Seniore exonerando But of this Cause they were not properly Judges the Lords themselves are the only Judges of the right Constitution of that House and they have anciently challenged a Writ of Summons de jure debito Justitiae for themselves and Descendents where they have been once summoned by Writ and answered that Writ and taken their place accordingly And the whole House doth constantly refuse to act until the Lord that complains of an Omission hath a Writ of Summons sent him What Apprehensions was had of this Honor by Thomas de Furnival and others in his time I know not But it might have been then and since it is well understood that that place which they sustain in the Government is of the highest Trust and the Benefits which redound therefrom to the Commonweal the greatest For they make the Government as well gentle and good as firm and stable These Noble Lords Marchers are placed between two great Contending Powers to preserve the due Boundaries and respective Limits and oblige them to Right and Reason by their Courage and Wisdom And for their Encouragement and Reward deserve the highest Honors and that they should be as they are immortal in their Families And accordingly it was resolved lately in the Case of the Honor of Purbeck in the Lords House that no Fine or Surrender of the Honor of a Baron can extinguish it But that notwithstanding it shall continue to his Heirs and Descendents And that upon the clearest and most important Reason for that the Constitution of the Government ought not as in its own Nature it cannot
to depend upon the Will of the Prince nor of Single Persons that bore a part in the Government for their time nor be prejudiced in Succession by their Lachesse The same Priviledge doth belong to the Spiritual Baronage the successive Nobility of this Realm and a Writ of Summons to Parliament can be no more refused any of them or any of their Successors than it can to any of the Temporal Baronage I cannot but upon a review of our Government applaud our happiness that we enjoy and were born to so excellent a Government without our Sweat and Contrivance which was arrived to by several slow Steps and beaten out by the long experience of former Ages But it is a portentous thing and of ill very ill Omen that a Government so Venerable and August so Wise Beneficial and desireable should be assaulted with peevish Dotages froward Petulances and childish Cavillations And that some Brain-sick foolish Antiquaries Rakers in the Rubbish of Time should imagine that they can barter away our Government for mouldy Bread and clouted Shoes But these we have before obviated Another sort we have before engaged to consider in their ill Treatment of the Bishops in their handling this Question of their Right we now defend To which I will now proceed CHAP. XXIV FOr I am not now insensible of the great Prejudices that lie against the Right of the question from those Calumnies that are thrown upon the Order And that no reason not the clearest Demonstration will be admitted to any Degree of satisfaction until this be removed Men's understandings are mingled with their interests and Passions It is a hard matter not to see the person in the Cause and if the person is dis-esteemed his Right cannot be equally favour'd Nay which is more if our Adversaries can persuade the World that the Bishops will abuse this their Right nothing will be able to keep off this Conclusion that they have none We most duly therefore here complain of the dishonest Artifice used by the Gentlemen that we have undertaken in this Cause viz. That they seek all occasions of lessening the esteem of the Bishops and of them they speak what they will He that can believe what he will is an Infidel and he that does what he will is a man of no Conscience and he that can speak what he will wants Truth and Candor But of a culpable sort of Wilfulness we finde these two Authors very blameable We must complain of these fierce disputants that they strive unlawfully they contend with passion and a keen Animosity they strike as well as argue they lay about them right or wrong to assault and wound the Persons whose Right they oppose A wound and Dishonour do they give to their own hurt Animosque in Vulnere ponunt The first and greatest Injustice they do to the Cause against all Right and Reason of which sure they must be self-condemned is an odious Remembrance of any thing culpable in the whole Succession of Bishops in the times of the lowest Degeneracy of the Christian Religion and of the heighth of Papal Usurpation and Tyranny which was more heavy in those times upon the Rights of the Bishops than upon those of the Crown When Princes thorough their own Weakness or to serve their Interest or to support their defective Titles to their Crowns or for obtaining dispensations from his Holiness for an unwarrantable Marriage or for other Ends and Reasons could not or would not defend the Bishops and their Rights The very order of Bishops in those times was attempted upon to be annulled by that Oecumecall Usurper It was disputed and boldly maintained in the Council of Trent that the Bishops were only jure Pontificio and had no Authority in the Church but such as his Holiness would vouchsafe them It was endeavoured to make them but his Substitutes He pretended Powers to create and translate them diminish or enlarge their Dioceses gave them more or less Authority did suspend them also and deprive them and pretended that they had only a vicarious and precarious Authority from him and in such Measures as he should think fit to limit and appoint Were not Provisions and Reservations first made by the Pope upon Benefices belonging to Churchmen The Statute of the 25 E. 3. gave their Presentations to the King when the Pope usurped upon them as a Fortification against his Usurpation and Invasion Did he not urge his Canon upon them that they should not agitare judicium sanguinis so much talk'd of in this Question that he might strip them out of their Secular Greatness that he might the better go over them and tread upon them and their Ecclesiastical Rights Is there no Consideration to be had by those Gentlemen in this Case of the Error temporis or Vitia Temporum They will snatch at this unduely when it seems for their turn but can they think that any Bishop under a Protestant Sovereign will ever return under the old Yoak And yet the business of Provisions Reservations and Dispensations and of Pluralties must be laid at the Bishops Door yea though Dispensation of Pluralties is now established by Statute Law with all the Usurpations exercised by the Pope the First-born of the Children of Pride to which they willingly-unwillingly were forced to submit But how unrighteous a thing is it to load the Order it self with all the Miscarriages of a long Course of Succession as if the Faults of the Bishops in all Ages did stick to their respective Chairs and had passed into the Office it self But it is no wonder that they remember the Faults of those Bishops unduely to the Disparagement and Dishonor of the Order and Succession When the Folio turns matter of Commendation into Reproach and calls their contending for due Administration of Justice and Laws Clamors for the Breach of Magna Charta Invisos seu bene seu male facta premunt By this he sems to argue them guilty of affecting Temporal Power and intermedling unduely in Secular Affairs CHAP. XXV BUT to discharge this Imputation we will shortly remember how modest they have always been in the exercise of their Ecclesiastical Office and how faithful they have always been in former Ages to that Temporal Trust which the Laws and Constitutions of this Government hath annexed to the Spiritual Office of a Bishop The Bishops challenge nothing to belong to them of Divine Right but the Exercise of their Ministry in the Cure of Souls They do not assume the Office of themselves but are appointed thereto by the Sovereign Power and therefore the Bench of Bishops are not answerable for every one of their Order They rightfully acknowledge the Right of Investiture and Collation of Bishopricks to be in the King subject to Royal Exemptions and Priviledges from their ordinary Right From which Exemptions Mr. Selden is too forward to conclude his Doctrine of Erastianism for that the Exercise of their Function may be restrained as well in reference
to Persons or Territories by the Civil Authority Their Convocations are convened by the King 's Writ they debate nothing without his Leave Their Results become Canons and receive Sanction by the Royal Authority and do not pretend to infringe any Temporal or Civil Right or Law And besides their Convocations are always to be held sittting Parliaments and no longer not at any other times And whatever they debate or resolve is under the Observation of Parliament Nequid detrimenti capiat Respublica The Bishops make no Laws about Religion apart by themselves neither have they any Negative against any that are propounded and therefore are not answerable for any that are made or not made They have not the definition of Heresie but the Law hath declared it since the Reformation And the Writ De Heretico comburendo is since abrogated by the Christian Temper of a Parliament principally consisting of such Members that were conformable to the Institutions of the Church of England that is the legal Establishments of this our Christian Commonwealth The Church of England is no more her own present Establishments than the present thoughts of any man is the man himself as the thoughts of a man are more refined and unreprovable as the man grows wiser so do the Laws and Constitutions the Orders and Rules of a Church or Christian Republick alter amend and improve as the Wisdom and Virtue Religion and Devotion of the Government and the principal parts thereof in Church or State increaseth or advanceth Our Bishops have had and that with the greatest reason greater apprehensions of Schism and Separation than of Errors in Opinion which occasioned it as of worse importance to the Christian Faith than the Errors themselves Besides that a man cannot help being mistaken in many things but it is in every mans power to be modest and peaceable and wise to sobriety and hold the unity of the faith in the bond of peace and charity and not to revile and deprave that which hath the publick approbation though he cannot thereto fully assent It is great iniquity and unrighteousness to pretend to Liberty of Conscience as their right and in the mean time not to tolerate the publick appointments and what is authoritatively allowed and approved If Controvertible Opinions are allowed a Warrant for making a Sect and separate Communion and Churches are denominated and distinguished by them and consequently such Opinions are advanced unduly unto the same necessity of belief as Articles of Faith what will become of the Christian Verity where will it be recognized and purely professed how distinguished how understood how ascertained amidst the number of Opinions contended for by the several dogmatizing Sectaries with more zele than the undoubted and uncontrovertible Articles of Faith Nay I will adventure to say further on their behalf that Schismatical Separations would not offend them so little do they affect to be Magisterial but for that if this Disease should grow Epidemical there would be no such thing as a Christian Church and the Christian Religion would perish from the earth without a miracle It is onely designed by our Church that those whose Subscriptions are required should thereby onely signifie their allowance of the Liturgy and Articles as fit to be used and allowable What Plea then can our Separatists have for a Toleration for themselves who by their Separation seem unwilling to tolerate the publick Establishment either from our Governours Civil or Ecclesiastical or from one another in their divided ways To reform or change to these mens pleasures is impossible for that they cannot they positively differing from each other be all pleased in any one possible Establishment Besides that untill we cease to be Schismaticks and to be of separate and divided Communions upon the score of any dislike or but probable exception to what is publickly received or allowed the altering any thing for our satisfaction will be but applying the Cure to the Symptoms a cutting off one head of the Hydra By this way to effect an union is as impossible as it would be to empty the Ocean without stopping the cur-of the Rivers The Bishops are as all men by how much they are better learned are of the greatest Moderation in Opinions and can tell how duely to rate and value them according to the Prejudice or Advantage they do to the Ends of our Religon those several Opinions that have been contended with furious and rending Zeal in the several Ages of the Church to the Scandal of that peaceable Institution They can have a better Opinion of that man who hath unhappily entertained the less probable side of the Questions controverted if he opines with Modesty than they have of him that holds the most probable part thereof with a Sectary-Zeal Seperation from Contempt and Disdain of those of a different persuasion Their Moderation is known unto all men of it their Opposers have had very sensible Experience the several Dissenters cannot disown it but must confess that they have had severally kinder Usage from the Episcopal Men than their several Parties have from one another By their Learning Wisdom and Moderation which is most eminently known and observed in many of them and hath recommended them to the highest Esteem they must be allowed their Enemies being Judges to be the fittest Arbiters of the Controversies and the most likely and probable Procurers of the Peace of Christendome All the Dissenting Parties have reason to look upon them as their Common Sanctuary and Defence against the Outrages of each other But in this they must be pardoned if they being under a Law or Rule of their Superiors made as they think in a matter lawful act accordingly and do not disobey for their sake who think otherwise though in the mean time they pity their Scruples Indeed the Terms of the Nonconforming Ministers have been made hard upon them But that hath been from Reasons of State which the late unhappy Wars occasioned and they were ejected out of their Livings by Statute-Law And on the other side it is true that many men not to fit for that Holy Function have enjoyed Church Benefices but neither this can the Bishops help For they cannot reject a Clerk presented to a Benefice or eject him but as the Law will so sacred is the Right of Patronage and so fixed by the Law are Ministers in their Livings which is not Nice in the manners of Clerks and the Bishops cannot be severer than the Laws So that if some men not of the most unblamable conversations have kept their Livings and some of very unexceptionable Lives have been ejected The unhappy Nonconformists are directed where to make their Complaint But as there is little Cause of complaint on this part of the Episcopal Authority and function viz. Their Superintendency over the Pastors of their Dioceses So we shall observe how they have behaved themselves in the Exercise of the Power of the Keys For what is done therein by their Chancellors
govern as he pleaseth that the power of the Laws is solely in him that he may if he please use the consent of Parliaments to assist the reason of his Laws when he shall give any but it is great condescention in Kings to give a reason for what they do and a diminution to their most unaccountable Prerogative You say That they are for a Popish Successor and no Parliament and do as much as in them lies give up our antient Government and the Protestant Religion the true Christian Faith to the absolute will of a Popish Successor giving him a Divine Right to extirpate God's true Religion established amongst us by Law and to evacuate our Government by his absolute pleasure Our Government by a King and Estates of Parliament is as antient as any thing can be remembred of the Nation The attempt of altering it in all ages accounted treason and the punishment thereof reserved to the Parliament by 25. Ed. 3. The conservancy of the Government being not safely to be lodg'd any where but with the government it self Offences of this kind not pardonable by the King because it is not in his power to change it This is our Government and thus it is established and for ages and immemorial time hath thus continued a long Succession of Kings have recognized it to be such And just now when we are under the dread of a Popish Successor some of our Clergy are illuminated into a mystery that hath been concealed from the beginning of Governments to this day from the wisdom of all Princes and Ministers of State That any authority in the Government not derived from the King and that is not to yield to his absolute Will was rebellious and against the Divine Right and Authority of Kings in the Establishment against which no usage or prescription to the contrary or in abatement of it is to be allowed That all Rights are ambulatory and depend for their continuance upon his pleasure So that though the Reformation was made here by the Government established by Law and hath acquired civil Rights not to be altered but by the King and the three Estates These men yet speak say you as if they envied the Rights of their own Religion and had a mind to reduce the Church back again into a state and condition of being persecuted and designed she should be stript of her Legal Immunities and Defensatives and brought back to the deplorable helpless condition of Prayers and Tears do utterly abandon and neglect all the Provisions that God 's providence hath made for her protection Nay by this their new Hypothesis they put it by Divine Right into the power of a Popish Successor when he pleaseth at once by a single indisputable and irresistable Edict to destroy our Religion and Government And these opinions you say they are the more inclined to entertain For That they believe no Plot but a Presbyterian Plot for of them they believe all ill and call whom they please by that hated name and boldly avow that Popery is more eligible than Presbytery for by that they shall have greater revenues and more Authority and Rule over the Lay-men This is a heavy charge if true but it is imputable I am sure but to a few and not so generally as some malevolent men of the Popish Faction are industriously busie to have it For if it were I confess it might choque the constancy Resolution and Zeal of the most addicted to the service of the Church men and make them at least very indifferent in their concerns For these mistakes are so gross and inexcusable that they ought to be permitted to suffer the smart of their own follies and to be corrected by the evils they are drawing down upon themselves with their own hands They deserve to suffer as betrayers of their own Country and to be prosecuted with greater shame and ignominy by all of the Reformed Religion than the Traditores were by the antient Christians These their diserting of the true Christian Faith being much less excusable then that of theirs and of greater mischief as of deeper malignity How many of the Clergy-men are thus misled we know not but they seem many more than they are because they are most in view and come often under observation frequent publick houses and talk loud because they want the Complement of their preferments But certainly Sir what you say to be the declared opinions of some Clergy-men is the business now of the Papists to propagate Hoc Ithacus velit magno mercantur Atridae These are agreeable to and indeed make up the most modern Project and Schem of the Popish Plot. Since the discovery of their first design of killing the King and massacring of the Protestants They have taken such courage by observing how little power we have to prevent their design that they have us in scorn and in the vilest contempt They now think that we are not worth destroying but by our own hands that we are not worthy of their trouble or the charge of Executioners of their providing How entertaining is it to his Holiness to find the Church of England the impregnable Bulwark of the Reformed Religion easily fall into his hands by the unpresidented folly of some of her Sons without the trouble of attacking her either by force or Argument which hath hitherto wanted success and the attempts always attended with dishonor and mischief to his See How pleasant will it be to him to see us perish and our destruction to be from our selves With this he will answer all the irrefragable Apologies of the Church of England for her departure from the Communion of the Romish Church Then he will say with triumph our Church destroyed her self and perished by a Divine Fate for her unwarrantable and Sacrilegious Schism for so he will call our follies and impute them to Divine infatuations The manner of our destruction will be a better Argument and of more force against the Doctrine of the Reformation than all the Arguments of all the Doctors of that Church to this day For this purpose since the Discovery of the Popish Plot it is that Sir Robert Filmers Books were Re-printed together and recommended by the Title Page and the publick Gazet to our reading Since the Discovery of the Plot we have had variety of Books Printed to the same purpose viz. To prove that all Kings as Kings are absolute by Divine Right Since the Discovery of the Popish Plot we have had men imployed to search all our antient Records and Histories to find out something more antient than our Parliaments as now constituted that it may serve as a pretence to take them away Since the Discovery of the Popish Plot we have the memory of our late calamitous War revived to raise a Pannick fear of another and to make the King believe that the genius of the Nation is Rebellious and that the Protestant Religion it self is to be apprehended by Kings It is
monstrously extravagant opinion can prevail by a general Credence It is criminal and no less dangerous to the being of any policy to restrain the legislative Authority and to entertain Principles that disables it to provide remedy against the greatest mischiefs that can happen to any Community No Government can support it self without an unlimited Power in providing for the happiness of the people No Civil establishment but is controlable and alterable to the publick Weale What ever is not of Divine Institution ought to yield and submit to this Power and Authority The Succession to the Crown is of a civil nature not established by any Divine Right Several Kingdoms have several Laws of Succession some are Elective others Haereditary under several Limitations All humane Constitutions are made tum sensu humanae imbecillitatis under reasonable exceptions of unforeseen accidents and Emergencies that may happen in humane Affairs and so they must be intended and so interpreted The several limitations of the descent of the Crown must be made by the people in conferring the Royal Dignitie and power which is more or less in several Kingdoms The descent of the Crown is governed according to the presumed will of the People and the presumption of the peoples will is made by measuring and considering what is most expedient to the publick good whereas private Estates are directed in their descent according to the descendents And this is the reason that the descent of the Crown is governed by other rules than private Estates Only one daughter and not all as in private Estates shall succeed to the Crown because the strength of the Kingdom is preserved when continueds united and the peace and concord of the people better Established A son of the second venter shall inherit which is not allowed in private Estates because a son of the second venter is equally of the blood of the great Ancestor upon whom the Crown was first conferred by the people or after he had got into the Throne obtain'd their Submissions may equally participate of his Virtues If the Royal Family be extinct it belongs to the people to make a new King under what limitations they please or to make none for the Polity is not destroyed if there be no King created and consequently in case of this cesser or discontinuance of the Regnum there may be Treason committed against the people By all which it is evident that the succession to the Crown is the peoples right And though the succession to the Crown is Hereditary because the people so appointed it would have it so or consented to have it so Yet in a particular case for the saving the Nation the whole line and Monarchy it self it may be altered by the unlimited Power of the Legislative Authority We have been more just to the Royal Succession than the wonderful Sir Robert Filmer for his Hypotheses will not allow at all of Hereditary rightful Succession For the establishing the right of the Universal Empire of the World in Adams right heir since this illuminato hath enlightned the world in this secret no Successor can derive any hereditary right from his Predecessor His Title can be only his own possession for no man can claim by descent the Usurpation of his Father but he that is not conscious to the wrong and is bonae fidei possessor under the presumed right and title of his Father I would be understood to speak as the matter can be considered in a free Reason not under the prejudice of any positive municipal law for to such laws the right of Crowns as the Renowned Knight will have it are not submitted So that here in this matter their Knight fails them and can give them no help Their other Friend the great Leviathan Maker is so far from establishing an Hereditary Succession that he leaves Kings to be rightfully assaulted deposed and destroyed by any person that can who stands in danger of being destroyed by the King though justly condemned to death Leviathan Part. 2. Cap. 21. Those saith he that have committed a Capital Crime for which they expect death have the liberty to defend themselves by Arms as well as the Innocent But I mention him only to render him detestable for I take his Books to be the dehonestamenta humani generis But I desire them to regard the sense of all Mankind in the words of Isiodorus Pelusiota 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This Governed the Judicious and Learned Dr. Falkner for when he had carried Christian Loyalty as high as he could to the honor of our Religion and the benefit of the World for which we are all extreamly beholden to him he concludes thus in his excellent Book called Christian Loyalty That if any Prince undertakes to alienate his Kingdom or to give it up into the hands of another Sovereign Power or that really acts the Destruction or the Universal calamity of his People he tells us Grotius thinks that in his utmost extremity the use of a defence as a last refuge ultimo necessitatis presidio is not to be condemned provided the care of the Common good be preserved And if this be true saith he it must be upon this ground that such attempts of ruining de ipso facto include a disclaiming the governing of these persons as Subjects and consequently of being their Prince or King what unreasonableness is there then in shutting the door upon him and making it fast against him by an act of State who hath excluded himself by his principles and designs For the truth of the fact I shall only refer you to Secretary Coleman his Letters wherein he saith that his Masters interest and the King of France his interest is one and the same and their design their glorious design the same viz the extirpating the Northern Heresie how far the King of France hath complied with the design the cruel Persecution and exils of his Protestant Subjects who at the time of that letter were under the security and protection of the Laws of that Kingdom the Faith of that Crown do declare to the world And by what secret influences I know no the is made so great his conquests so easie and expedite that he is like to do the work himself here in England and go away with all the Glory But if the work must lye upon our hands let no man think with himself that Popery is not to be introduced here because the numbers of Papists are few for that will not render the design impracticable but the execution of it were cruel and barbarous a whole Nation upon the matter must be corrupted from the Faith of the true Religion or destroy'd One single arm of an ordinary strength not resisted may assassinate a whole Nation Let no man betray his Country and Religion by pretending the example of the patience and sufferance of the Primitive Christians for our rule The Reformed Religion hath acquired a civil right and the protection of Laws if we
ought not to loose our Lives Liberties and Estates but where forfeited by Law we ought much rather not to loose them for the profession of the best Religion which by Law is made the publick national Religion And it is strange that some men of the same Religion in profession can think that notwithstanding it makes no matter what is done to a man if he be Religious but if he be not so the least publick injuries and injustice may be resisted vindicated remedyed and by right defended by old Laws or new ones to be made for that purpose The Christian Religion was publisht when the whole world was Pagan and therefore it was submitted to such usage as the Governments would give it But when the Christian Faith had by miracles of patience declared it self to be of Heaven and of a Divine Original According to the Prophecies on that behalf it took possession of the Empire and Crowns and Scepters became submitted to the Cross and the Christians acquir'd a civil right of Protection and Immunity which they ought not they cannot relinquish and abandon no more than they can destroy themselves or suffer violence and cruelty to destroy the Innocent Such as thus perish shall never wear a Martyrs Crown but perish in the next world for perishing in this This will be interpretatively Crucifying Christ afresh after he is received up into Glory i. e. After his Religion is exalted into dignity and honor and civil Authority If the senate of Rome had been Christians they would never have given up the Government to a Pagan Augustus with a power to him and his Successors to make laws for extirpating the Christian Faith what is said of the Christian Religion and Paganism holds between the Reformed Religion and Popery If any man is so vain as to say that an unalterable course of Succession is established amongst us by Divine Right I say he is a man fitted to believe transubstantiation and the infallibility of the Pope he is deeply lapsed into fanaticism he dreams when he is awake and his dreams are dreams of phrensie There are somethings so false that they cannot be disproved as somethings are so evidently true that they cannot be proved This proposition hath no color to ground it self upon no medium to prove it no argument for it which is to be answered nor nothing more absurd than it self to reduce it to But if any shall add that this Doctrin is the Doctrin of the Reformation and adventure to tell the people so they are the most impudent falsaries that ever any age produced when there is scarce a Child but hath heard what was done said and maintained by the Clergy of England in the case of Mary Queen of Scots a Popish Successor in the earliest time of our Reformation here in England Our Age is blessed with a Clergy renownedly Learned and Prudent by the Providence of God and the piety of our Ancestors they possess good though not to be envyed Revenues and Honors It is scarce possible they should have many among them that can countenance a proposition so wickedly impious and sacrilegious that we cannot have new Laws but must loose the old at the pleasure of a Popish Successor against not their own interest and the Rights of the Church but against the Rights and Liberty of Religion it self For she is capable of Franchises and Immunitys which ought above all things to be most zealously asserted and defended by her Ministers can they themselves with their own hands ever pull down her Hedg and destroy her Defensatives and expose her helpless to the rage of her implacable Enemies and suspend all the Legal security she hath for her preservation upon the Life of our present King whom God long preserve If Kings be admitted to have a power to make Laws One Proclamation may establish the Popish Religion amongst us which the Papal Bulls so long as that See continues will never be able to effect Next to Religion her self the Revenues of the Church challenge their faithful care for they are at best but Usu-fructuary Trustees of her Endowments for the Succession which they will wretchedly betray to an Arbitrary Successor if they do not repress such Opinions that pretend to change the Government into an absolute jure Divinity Monarchy which will leave nothing jure divino but it self and the Popedom Kings for their so doing have the authority of Sir Robert Filmer who affirms in his Treatise called the Power of Kings Fol. 1. That the Laws Ordinances Letters Patents Priviledges and Grants of Princes have no force but during their Life if they be not ratified by the express consent or at least by the sufferance of the Prince following who had a knowledge thereof This is but the necessary consequence and result from the Doctrine of the absolute power of a Prince for in such Government the Concessions of a Predecessor can no more oblige the Successor than he can Govern when he is dead and the Successor must be absolute in his time as the Predecessors were in theirs But in vain is the Net spread in the sight of any Bird this deceit is of so gross a thread that it cannot pass with the common people much less upon our Clergy but I will not dissemble what may be the true reason of the seduction of some young good natured Gentlemen of the Clergy They perswade themselves that if these principles and opinions of the Unlimited Power of Kings had been received the late Wars had been prevented Not rightly considering that if such opinions had never been broached or Universally rejected that War could never have ensued and we should together with peace have enjoyed our ancient Government which our Ancestors transmitted to us without that miserable inter-regnum I would not be perversely understood by any man as if I went about to justify our late War This is all I say that every Government once established will continue for ever if all the parts of it would unalterably consent to preserve it to which their narural Allegiance doth oblige them And never any Prince endeavored to change the Government but where part of the people were first willing or content to have it so Those false flatterers that go about to remove the boundaries of power and change the Government are the greatest enemies to the quiet and happy Reigns of the Kings and the peace and prosperity of Kingdoms And if they do adventure to call the ir fellow Subjects by any opprobrious names of disloyalty because they will not joyn with them in such change they are as absurdly impious and insolent as any Prince or State would be who should challenge another as free and absolute as himself for his Tributary and Vassal and traduce him for a troubler of the World because he would not Compose the Quarrel thus injuriously sought with the surrender of his Crown and dignity I desire these Gentlemen to consider that the happiness of a Nation is best
Son hath the Question the Father is taken to be confessed in tormentis filii But for a further instance to make it appear how imcompetent the duty of a Magistrate is with the Nature of a Father I will observe that notwithstanding a Law was given to Adam and all his Sons to establish judicatures according to the Tradition of the Jews as may be seen in Mr. Selden his Book de jure Gentium secundum Hebraeos which Law by the way had been supervacaneous if the Power of a Prince did belong to Adam in the right of his paternity and a Government had been provided for them by their Birth Yet I say notwithstanding that There was such a Relaxation of Justice in the World before the Flood because it could be only administred by a Father or such who participated of the stock of love lodg'd in the common Father from whom his Children did derive their tenderness one to another as they themselves sprang from him That the World was grown so wicked with in 2 ages as men then liv'd from the creation that a Universal deluge was brought upon the World by the Just Judgment of God for the outragious insufferable Wickedness that had spread it self universally over mankind 8 Persons only excepted The overflowing deluge of Wickedness that caus'd the deluge of waters can't be imputed to a more probable cause than to the indulgence and impunity that the observed and understood nearness of Kindred that all men stood then in to one another must naturally occasion This is a sad consequence of that natural Love in Parents towards their Children which was intended for the propagation and advancement of mankind But since that now we are estranged one from another in remote and unknown degrees that prejudice is over Here is a gentleman to destroy the World another way and to undo us by unreasonable and unbounded power which is a like apt to make the World fit for another Universal destruction if it be not without more destroyed by it doth endeavor to turn the exercise of such power into a Right and to give it warranty from the Reason and way of our propagation and by this means to destroy us faster then we can be born and bred and impare the Generations of Mankind or render them extreamly miserable or wicked which is much worse extinguish the light of the world which is Love and Amity and destroy the encouragement and reason of almost all relative Morality What a Saturnine Father have we got to make a golden Age who ever would have thought that the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the most moving kindest most tender pleasing and beneficent instinct in Nature planted by God the Father of us all for the propagating educating and improving humane Nature should ever be made use of to found a Right of Tyranny and Arbitrary domination the greatest destroyer and depraver of Mankind What Monster hath this last Age produced a Christian a Father seriously endeavoring to persuade all Mankind to offer up their Children to Moloch the Saturn of the Easterlings who was but the Devil of Tyranny as the name imports This 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the true origen and Fountain of Love and Amity and the sociable Virtues which render men humane from whence flows all the happiness of mankind will by this Doctrine be corrupted and rendred unsincere and self designing For when a Father performs an Act of Generation it seems now he designs to add a slave to his Retinue and when a Child is born there is another item added to the inventory of his Estate If this Fountain be corrupted there can be nothing sincerely kind after it in humane Nature The Leviathan is out-done by this Gentleman and hath not performed half so renownedly in the great Work of depraving Humane Nature as our Patriarchal Knight will do if his Admirers can bring him into vogue and esteem For the Author of the Leviathan allowed something good in Humane Nature several equal propensions which he terms her Counsels and sometimes adventures to call the Laws of Nature But he concludes they are not practicable and they are only fools who govern themselves by them But this Gentlemen will not allow Nature to be good in her first institution and designment tho in this I think they are near agreeable that Mr. Hobs made the Pourtraiture of Humane Nature in an agreeableness to his own evil Ingeny And this Knight did set himself when he made this his draught of a Father he could have no other Original but himself or the Idea of the moross and sower Dr. P.H. his admired friend but by his Character he had at least misfigured his understanding and made it his own Nature by liking it 2ly No more of authority belong'd to Adam over his Children then does to any of his Children over his for that this Authority proceeds from Nature and Nature is a like in all men the duty of their education and the Authority over them that is competent to that purpose is as much incumbent upon them as upon the Protoplast the duty is so personal consisting 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that it cannot be transferred or permitted absolutely to any other person by the Parents nor can any man challenge a right to it or discharge the Father from it or require the same affection submission and reverence that is due from a Child to his Father To expect relative duties without Relation is most unnatural it is as impossible as incongruous and we may as well love and hate rejoyce and grieve without the proper objects and incitements of those passions The fundamental Rule of all morality is that of Simplicius 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It is as certain as any proposition in Euclid as the Doctrin of proportionable triangles and received as such by all the Masters of Moral Philosophy there is no other foundation of our duty to God or Man or towards our selves this rule must declare it and what ever is measured and allowed by this Rule is commonly called which is comprehensive of all that is honest just and fit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the application of this rule is called by St. Paul 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which when a man observes he is perfectly moral a man may as well pay his debts by giving away his Money be grateful to his benefactor by being beneficent to Strangers as perform that duty he ows his Father to any but he that is so It is impossible to separate the shadow from the Substance as to make that subsist by it self which grows by resultance from the state and condition of the person Or that without that state of the person from which it doth arise it should ever accrew 3ly Admitting Adam had a Soveraign Authority over all his descendents which must grow if there was any such thing from some positive institution and not from his paternity yet the natural Authority and duty of Parents towards their Children
continues entire together with Sovereign Power and is not at all abated by it and therefore cannot be the same No Soveraign Power can extort the Children from their Fathers Authority and care This is a duty in Nature before Governments They cannot belong to the Government before they are filii precepti and capable of the Conscience of a Law It is a duty in Parents to Educate their Children and a right they have in consequence to govern them that cannot be taken from them It is the Parents duty to form their consciences They are appoint-by God the great Ministers of his Providence to the Children That they perform this Office he hath tyed them to it by the sweatest constraints and almost violences of Nature by an irresistable love and tyes of Endearment that cannot be broken this declares their Right of Authority over their Children against any interposings of Soveraign Authority to its prejudice let or hindrance Thomas Aquinas positively determines that it is not lawful for Christian Kings to baptize the Children of the Jews against the will of their Parents for that saith he it is against the course of natural justice 4ly There is no footsteps in the Records of the old World to verifie this Hypothesis That such Authority was so much as pretended to be used or exercised by Adam but we find instances against it in the short History before the Flood Cain received no sentence from Adam his Prince and Soveraign Judg but from God himself or rather from his Shecinah or some visible Representation of his presence Thence he obtained some degree of impunity and his life protected No mention here at all of Adam his taking the Tribunal or Cains arraignment or of any pardon or indulgence granted by King Adam Lamech that had Kill'd a man by mischance did not alledge his case at his Father Adams Court and the matter of extenuation of the Man-killing we hear of no pardon of Course to be allowed when the circumstances of fact had been first judicially considered How could a thing of such importance be omitted in the story of the old World tho so short It was of more concernment than to know that Tubal Cain was the first Smith and Jubal the first man that made a Musical instrument to know the original nature and reason of Government Besides we find all the grand Children of Noah becoming Princes of Countries and the Sons and grand sons of Esau alike Dukes and Princes that is at least absolute Fathers of their own Families and ruling over such as were their slaves and dependents And the 12 Sons of Jacob are all called Patriarchs When Nimrod played the Tyrant we find nothing said for his justification upon any Patriarchal right But if we consult the Traditions of the Jews they will inform us of another original of Government and that is this They say that God gave several Precepts to Adam and his Sons and Noah and his Sons and one amongst the rest that they should erect Governments which his Sons could not have performed without Rebellion against their King Father if Adam had been so as Sir Robert Filmer first dreamt Also besides that of making Governments there was a Precept given them of honoring their Parents Selden de jure Naturae secundum Hebraeos fol. 2792. And therefore the Precept of honoring Parents is a distinct duty from that of obedience to Governments By this Precept they had Authority in general to establish Governments amongst themselves in the specification of which they were left to rheir own liberty and discretion and therefore were not obliged to any single form of Government It must be understood that the Precept which required the Sons of Adam and Noah to establish Governments required also every mans Submission to their Orders Laws and Decrees when established Lastly We will consider of the instances he gives of the Exercise of Soveraign Power by Fathers of Families which are as impertinent to his purpose as his Doctrine is groundless and precarious but they are these Abrahams War and Judahs judgment upon Thamar As to the first of Abrahams making War We say we cannot allow that making War doth argue any Soveraign Authority It is sufficient that he who makes it is under none to make a vindicative War Lawful For an injured Person may in the State of Nature vindicate wrongs by an authority derived from God and Nature to a just satisfaction Because there is no competent judicature to appeal to for right and redress But see how unhappy the Gentleman is This very instance of his production is clearly against him for if Soveraign Power had been Patriarchal Abraham had been guilty of Treason in making War without a Commission from Melchizedech the King of Salem who as the Learned men conjecture was Shem his Patriarch and Chief and known by him for such But because Abraham the best man perhaps in any Age did not take a Commission from Melchizedech his Patriarchal chief And yet he was blessed by Melchizedech when he returned from the War We may conclude that neither Melchizedeeh nor Abraham knew of any such Patriarchal Soveraignty And also from this great example it appears that it is lawful for him that is not a Soveraign if he be not under any to make War I will not enter into a discourse whence and how is derived the Authority of making War and capital Sentences which must have the same reason to warrant both which hath pusled some great Divines Dr. Hammond that great man was at a loss in this enquiry and thinks that nothing but a Divine Authority can warrant them which hath put them upon strange extravagant Hypotheses of Government and sent this Knights brains a Wool-gathering But this may satisfie any man of sense that whatever is necessary for the general happiness of mankind and for preserving peace in the world and protecting the innocent and disinabling the mighty oppressors is more commendable to be done then the Killing a man in his own defence is simply lawful As to his second instance of Judah his Sentence pronounced upon his Daughter in Law Thamar which he would have an exercise of Patriarchal Soveraign Authority We say how could Judah do this by a Patriarchal Power when Jacob his Father was then alive and for all that appears Judah his Son was not extrafamiliated Besides which is very unlucky Thamar was then none of his Family or of the Subjects of his Domestick Empire for his Son her Husband being dead she was free from the Law of her Husband and ceased to be a Subject of his Paternal Kingdom But Mr. Selden under the Authority of some Rabbins which he cites in his excellent Book before mentioned Fol. 807. saith that Judah might have the Office of a Prince or Magistrate in a district in that Country and by that Authority might judge her according to the Laws of that Country But what the Law was and the Nature and reason of her offence
will not assist to bring on the Popish Plot by disbelieving it and put us in fear of the Fanaticks by taking all the courses imaginable to provoke and exasperate them and upon their discontents which they maliciously heighten and by falshood and forgeries misrepresent To graft thereupon a Pretens of a Protestant Plot for a pretext to extirpate Protestanism and introduce Popery which they impudently pretend to be of a more firm Allegiance to the Government than the Reformed Religion I pray let it be considered that that which is tolerated is put under disgrace even for that it is tolerated and that which tolerates even for that it tolerats hath the Governing Authority and in so much as it indulgeth it obligeth to modesty and reason and. if that indulgence should be abused it may and will be retracted It was never intended by the House of Commons that the Church of England should be altered or modelled to an agreeableness to any form or sect of the separation or prescrib'd to by any of the Dissenters or that she should be made subject to any of their rules or opinions or her Liturgy laid aside for directories or which is worse undervalued to the profane way of extemporizing For as generally used and exercised it deserves no milder a stile That the Church should always govern by her own Wisdom in her own Province and in those things that appertain to her can never be deny'd her No man hath reason to say tho he hath great cause to dislike the separation and to have a bad opinion of the Dissenters that he had rather submit to Popery than to any form of the Separation for he need do neither except he pleaseth No man that thus expresseth himself but will be suspected to seek an occasion and pretens to become a Papist and to make a defection from the Church of England But if these Gentlemen have such a displeasure against Schism and Separation which certainly is the worst disease any Church can labor under and at this time threatens the destruction as well of the Protestant Religion it self as it doth to the Professors of all denominations let this sharpen their zeal against Popery which by its unhallowed arts hath occasioned and exasperated our Schism and put them upon the use of all means to reconcile if possible the Schism that the Papists have already made and by all means endeavor to continue and take away if possible the occasion of it for the time to come And thus defeat the Arts of the Priests and Jesuits for supplanting our Church It is a most deplorable thing that our Church should be kept rent and divided in danger of being lost between Rituality and scrupulosity Though the Scruples of the Nonconformists which I always thought and do still think groundless and unreasonable have often moved me into some passion against them yet upon consideration I think this their Scrupulosity may be of God and that some Men are by him framed to it That he hath provided it as a bare and obstacle in the Natures and Complexions of some devout Men against any Innovations whatsoever that dangerous ones may not steal upon the Church for the better maintaining the simplicity and purity of the Christian Religion and Worship But in saying this I have said nothing that is apt to give them a conceit of themselves but rather to humble them For the best Men are not govern'd by their Temper and Constitution but correct them by their reason and determine themselves by a clear and firm Judgement What affrightment all this while either to Church or State from this weak and pittyable Scrupulosity Where lyes the Treason or Sacriledge nay or so much as contumacy against our Ecclesiastical Governors which is so much upbraided to them The Christian Religion may be prejudiced by addition to as well as substraction from her rule The Church of Rome by her additions hath almost evacuated the Christian faith Besides there may be a fineness in the outward mode of religious Worship in its self very justifiable which may be not congenial to men of a course make The Worship of God will always savor of the manners of the People Men of dull capacity can scarce admit of any Ceremonys without danger of falling into superstition or being vext with endless and incurable scruple until for ease of their minds they throw them off But the wisdom of the best Law-makers hath considered in giving Laws what the People would bare and not what is best to be enjoyned and many things have been tolerated by them which they did not approve ne majoribus mal is detur occasio aut etiam ne vilescant sine moribus leges There is nothing more exposeth the Authority of Government to contempt then a publick and an open neglect of its Injunctions But where obedience to Laws is exacted under severe penalties where it doth not greatly import the common good to have them observed that Government is unequal and useth its Authority unjustifiable Leges cupiunt ut jure regantur The consideration of the sad effects the Schism in our Church hath occasioned the contempt that it hath brought upon our Ecclesiastical Governors That Religion it self is thereby made the scorn of Atheists That the Papists are thereby furnished with matter of objection reproach and scandal to the Reformation That every Age since it begun hath heightned the malignity of the Schism that it seems now to despise the Cure of the greatest Cassanders These considerations make it infinitely desirable to have it utterly extinguished There seems to be now left but one way of accommodating our Divisions and that is that we do not hereafter make those things wherein we differ matter and reason of Division That the Children of the Light and Reformation be at length as wise in this matter as the Church of Rome which is at unity with itself under more and greater differences then those that have troubled the peace of our Church which is sufficiently known to all Learned men Had it not been happy that this Schism had been prevented by the use of the power of the Church in Ecclesiastical dispensations If no Law had been made touching the matters that gave the first occasion to the Schism it had been in the Power of the Church to have prevented it No good Bishop but would have relaxed the Canons that enjoyned these Ceremonies about whose lawfulness there hath been so much Zeal mispent and unwarrantable heat and contention raised for the sake of peace and preservation of the Unity of the Church to men peaceable and otherwise obedient to her injunctions So dangerous it is to make Laws in matters of Religion which takes the conduct of Religion in so much from the guides of the Church The beginning of contention is like the breaking out of waters saith the wise man and they are assoon as begun more easily ended Before the Contenders have exasperated one another with mutual severities