times These things I have laid together with all possible brevity and clearness that in one view we may see a consent of all these parts of the Christian World in calling Bishops to their publick Councils and most solemn Debates and how far they were from thinking such Imployments inconsistent with their Sacred Function and charging them that thereby they left the Word of God to serve Tables Neither can this be looked on as any part of the Degeneracy of the Church or the Policy of the Papacy since as the fore-cited Arumaeus saith they were admitted to this honour before the Papal Power was advanced and were so far from carrying on the Pope's designs that they were in most Countries the greatest Opposers of them And when the Popes began to set up their Monarchy their business was to draw them off from meeting in these Councils under several pretences of Cases of Bloud and other things the better to keep them in a sole Dependency on themselves As will appear by the following Discourse 2. The next thing suggested is that the Imperial Law doth forbid Clergy-men having any thing to doe with Secular matters And for this a Rescript of Honorius and Theodosius is mentioned and a Decree of Iustinian To which I answer 1. The Imperial Edicts are not the Law of England Our dispute is about a Right by our own Laws which a Rescript of Honorius and Theodosius can neither give nor take away What would become of the whole frame of our Government and of our just Rights and Properties if the producing of Imperial Edicts would be sufficient to overthrow them When the Bishops once pleaded hard in Parlament in behalf of an Imperial Constitution lately adopted into the canon-Canon-Law the Answer given by all the Temporal Lords was Nolumus leges Angliae mutare quae huc usque usitatae sunt approbatae They did not mean they would make no alterations in Parlament for that very Parlament did so in several things but their meaning was as Mr. Selden observes that they owned neither Canon nor Imperial Laws here any farther then they were agreeable to the Laws of the Land 2. The Imperial Constitutions do give liberty to Church-men to have to doe in Secular Affairs The Emperour Constantine whose Constitutions deserve as great regard as those of Honorius and Theodosius to shew his respect to the Christian Religion permitted all men to bring their Causes before the Bishops without ever going to the other Tribunals as Sozomen a Lawyer of Constantinople relates And this is the true foundation of the Constitution De Episcopali Iudicio as Gothofred confesseth Which is at large inserted into the Capitulars with a more then usual introduction and made a Law to all the Subjects of the Empire Franks Saxons Lombards Britons c. and therefore is more considerable to these parts then a bare Rescript of Honorius and Theodosius And yet these very Emperours in a Constitution of theirs do so far ratifie the Judgment of Bishops upon Trial by consent before them that no Appeal doth lie from their Decree What Rescript then is this of theirs which so utterly forbids Clegy-men having any thing to doe with publick Functions or things appertaining to the Court I suppose that Constitution of Honorius is meant which confines the Bishops Power to what concerns Religion and leaves other Causes to the ordinary Judges and the Course of Law But two things are well observed by Iac. Gothofred concerning this Rescript of Honorius 1. that it is meant of absolute and peremptory Judgment without Appeal 2. that whatever is meant by it not many years after this Constitution was repealed by Honorius himself and the Bishops sentence made as absolute as before So that Honorius is clearly against him if a man's second judgment and thoughts be better 3. The practice of the best men in those Ages shews that they thought no Law in force to forbid Church-men to meddle in Secular Affairs as might be at large proved from the practice of Gregory Thaumaturgus and S. Basil in the East of Silvanus Bishop of Troas of S. Ambrose S. Augustine and others of the greatest and most devout Church-men of those times And S. Augustine was so far from thinking it unlawfull that in his opinion S. Paul commanded the Bishops to doe it Constituit enim talibus Causis Ecclesiasticos Apostolus Cognitores And the learned Gothofred of Geneva saith Mos hic frequens legitimus eundi ad Iudices Episcopos It was then a common and legal practice to go to Bishops as to their Iudges Which would never have been if there had been a Law in force to forbid Bishops meddling in Secular Affairs 4. The Emperours still reserved to themselves the power of dispensing with their own Rescripts and the Canons of the Church Therefore the Council of Sardica when it prohibits Bishops going to Court excepts the Princes calling them thither Upon which Balsamon hath this Note that although the Canons prohibit yet if the Emperour commands the Bishops are bound to obey and to doe what he commands them without any fault either in the Emperour or them And in other places he asserts the Emperour's power of dispensing with the strictest Canons against Church-mens meddling in Secular Affairs Thence he saith the Metropolitan of Side was chief Minister of State under Michael Ducas and the Bishop of Neocaesarea made the Laws of the Admiralty for Greece And the Glosse upon Iustinian's Novells observes that Bishops may meddle with the Affairs of the Commonwealth when their Prince calls them to it And this is the present Case for the Bishops are summon'd by the King 's Writ to serve him in the publick Council of the Nation and therefore no Imperial Rescript if it were of force in England could have any in this Case which was allowed by the Imperial Laws themselves 5. There is a great Mistake about Iustinian's Decree For the Bishops are not so much as mention'd in it but the Defensores Ecclesiarum who were Lawyers or Advocates of the Church as appears by a Constitution of Honorius where Gothofred proves they were not so much as in Orders It is true Iustinian doth appropriate the Probat of Wills to the Master of his Revenue but the Law and Custom of England as Lindwood observes hath alter'd that Constitution and which must we regard more Iustinian or our own Laws I find one thing more suggested by way of Prejudice to the Cause in hand viz. the Common Law of England which hath provided a Writ upon a Clergy-man's being chosen an Officer in a Mannor saying it was contra Legem Consuetudinem Regni non consonum The Argument had been altogether as good if it had been taken from a Minister of a Parish not being capable of the Office of Constable and it had as effectually proved that Clergy-men ought not to meddle in Secular
And the Bishops ' did not deny this but used prudential arguments to disswade the King from proceeding any farther the Appeal being made and that it was for the good of King and Kingdom for them to submit to the Prohibition And the Bishop of Chichester told Becket he made them go against the Constitutions of Clarendon which they had so lately sworn to observe in these remarkable words Quo contra nos venire compellitis interdicendo nè ei quod de nobis exigit adesse possumus Iudicio By which we see this Constitution is indeed an irrefragable Testimony but it is to prove that Bishops are bound to be present even in Cases of Treason when the King summons them And as to the case of Becket's Treason the same Bishop told him it lay in breaking his Oath about those Constitutions wherein the Rights of the Crown were declared And if this be not Treason by the Common Law Sir Edward Cook 's Preface to his fifth Book of Reports signifies nothing The late Authour of the Peerage and Iurisdiction of the Lords Spirituall takes it for granted that by the Constitution of Clarendon the Iurisdiction of Bishops was limited that it should not extend ad diminutionem membrorum vel ad mortem But the foregoing discourse hath I suppose made it evident that those words contain no Limitation but a Privilege or Indulgence to them with respect to the canon-Canon-Law And he takes very needless pains to prove this to be declarative of the Common Law and that the Meeting at Clarendon was a full Parlament which are very much besides the business All that looks towards this matter is that he saith this Statute was confirmed by a Council at Westminster for which he cites Rog. Hoveden's Authority But I wish he had produced the Canon entire as he there found it for then the sense of it would have been better understood In this Synod at Westminster Richard Archbishop of Canterbury produceth several ancient Canons which he thought fit to be observed here Among the rest he mentions that of the Council of Toledo The words are these His qui in Sacris Ordinibus constituti sunt judicium sanguinis agitare non licet here he makes his c. and leaves out the Prohibition which declares the meaning and extent of this Canon Vnde prohibemus nè aut per se membrorum truncationes faciant aut inferendas judicent Wherefore we forbid them either to dismember any persons themselves or to give Iudgment for the doing of it Both which were practised in Spain in the time of the Council of Toledo which was the occasion of this Canon And then follows the Sanction of Deprivation if men did otherwise And what now doth this signifie more to the Constitution of Clarendon then that the same Canons were now revived which gave the occasion to that permission of withdrawing when the Sentence came to be pronounced as to dismembring or loss of Life But he urges farther about this Constitution that it must be so understood as to exclude the Bishops from all antecedent and praeliminary things which do relate or tend ad diminutionem c. or else saith he it must be onely the exemption of the Prelats from doing the Office of Executioners which is Non-sense Why so though it be not the whole sense of the Canon yet surely it is sense But he might have thought of giving Sentence which the Canons forbid and is different from Execution and doth not exclude the Bishops presence at Praeliminaries The Constitution of Westminster he saith is plainer Non debent agitare judicium sanguinis which he saith excludes the exercise of any Judicial Power in Cases of Bloud Whereas it appears by the Prohibition there extant nothing is forbidden but giving Sentence at which the Constitution of Clarendon allows them to withdraw 2. The second time we are told that the Exclusion of the Bishops in Cases Capital rereived a Confirmation in Parlament was the 11. of R. II. When the Archbishop and the other Bishops upon their withdrawing then from the Parlament in regard matters of Bloud were there to be agitated and determined in quibus non licet alicui eorum personaliter interesse as they say in which it was not lawfull for any of them to be present in person did therefore enter a Protestation with a Salvo to their Right of Sitting and Voting in that and all other Parlaments when such matters were not in Question which Protestation of theirs was at their desire enrolled in full Parlament by the King's Command with the Assent of the Lords Temporal and Commons So that it is here said to be a perfect and compleat Act of Parlament and if it had not been a Law before would then have been made one This is the substance of what is more largely insisted on in another place and what strength is there added shall be duely considered To understand this business aright it will be necessary to set down the Protestation it self at large as it is taken out of Courtney's Register and the Parlament-Rolls and then examine the Points that do arise from thence The Protestation runs thus In Dei nomine Amen Cùm de jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit necnon caeteros suos Suffraganeos Confratres Coëpiscopos Abbatésque Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertineat in Parlamentis Regis quibuscunque ut Pares Regni praedicti personaliter interesse ibidémque de Regni Negotiis aliis ibidem tractari consuetis cum caeteris dicti Regni Paribus aliis ibidem jus interessendi habentibus consulere tractare ordinare statuere diffinire ac caetera facere quae Parlamenti tempore ibidem imminent facienda in quibus omnibus singulis Nos Willielmus Cantuar. Archiepiscopus totius Angliae Primas Apostolicae sedis Legatus pro nobis nostrisque Suffraganeis Coëpiscopis Confratribus bus nec non Abbatibus Prioribus ac Praelatis omnibus supradictis protestamur eorum quilibet protestatur qui per se vel per Procuratorem hîc fuerit modò praesens publicè expressè quòd intendimus intendit volumus ac vult quilibet eorum in hoc praesenti Parlamento aliis ut Pares Regni praedicti more solito interesse consulere tractare ordinare statuere diffinire accaetera exercere cum caeteris jus interessendi habentibus in eisdem statu ordine nostris eorum cujuslibet in omnibus semper salvis Verùm quia in praesenti Parlamento 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 hîc praesens etiam protestatur quòd non intendimus nec volumus sicuti de jure non
possumus nec debemus intendit nec vult aliquis eorundem in praesenti Parlamento dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos eorum quemlibet in ea parte penitùs absentare jure Paritatis cujuslibet eorundem interessendi in dicto Parlamento quoad omnia singula mihi exercenda nostris eorum cujuslibet statu ordine congruentia in omnibus semper salvo Ad haec insuper protestamur eorum quilibet protestatur quòd propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit vel vult quòd processus habiti habendi in praesenti Parlamento super materiis antedictis in quibus non possumus nec debemus ut premittitur interesse quantum ad nos eorum quemlibet attinet futuris temporibus quomodolibet impugnentur infirmentur seu etiam infringentur This Protestation setting aside the legal Formalities of it consists of 3 parts 1. A Declaration of their undoubted Right as Peers of the Realm by virtue of their Baronies to Sit and Vote in all Debates of Parlament 2. Of their intention to withdraw this Parlament because several matters were to be handled at which it was not lawfull for them according to the Canons to be present 3. That by this absenting themselves they did not intend as far as concerned them to null the proceedings of that Parlament Here now arise three main Points to be discussed 1. Upon what Grounds the Prelats declared it was not lawfull for them to be present in Parlament at such matters 2. How far the Parlament's receiving that Protestation makes it a Law 3. Whether on supposition it were a part of canon-Canon-Law then in force it continues so still since the Reformation 1. Upon what Grounds they declared it unlawfull for them to be present in Parlament at such matters One would think the very reading the Protestation were sufficient to convince any man for the Bishops declare as plainly as men could do that it was out of regard to the Canons of the Church and not from any Law of the Land For how was it possible that the same men should declare that by reason of their Baronies they had full Right to be personally present in all Debates of Parlament if there were some Law in force which made it unlawfull for them to be personally present The greater force there is in the Protestation 's being receiv'd in Parlament the greater strength there is in this Argument For if the Protestation 's being allowed by King Lords and Commons make it as the Authour of the Letter affirms a perfect and compleat Law then their Right to be present in all Debates of Parlament is a Law and so much the more considerable because it is no enacting Law making that to be so which was not before but declarative of what was confessed to be their undoubted Right by King Lords and Commons And therefore I do not wonder that the Authour of the Letter so conveniently to his purpose left out all the beginning of the Protestation which so fully clears the sense of the rest For the very same thing which afterwards the Bishops say they are forbid to doe by the Canons that is personaliter interesse to give their personal attendance they say at first by Right of their Peerage as Barons by tenure did belong to them for there the words are personaliter interesse too Therefore that personal attendance in such matters which they said was unlawfull to them by the Canons they challenge to themselves as their just Right by virtue of their Baronies But is it possible to imagine if they had been precluded from sitting by any antecedent Law that ever such a publick avowing their Right would have passed the King and both Houses So unsuccessfull hath the Authour of the Letter been in his statute-Statute-Laws that there can be no stronger evidence of the Bishops Right to sit in such Cases then those which he produceth against them But he goes about to prove this Prohibition cannot be understood onely of the Canon-Law for the Canon-Law saith he was to them above all Laws and what was forbidden by that Law they could not have a thought that it could in any sort be lawfull for them to challenge as their Right upon any account I confess I can see no force in this Reasoning For when a thing is forbidden to men meerly by a positive Law of the Church and the penalty of it is bare Irregularity by the Canons why may not such men challenge their own Right notwithstanding those Canons because the Irregularity might be dispensed with when the Pope saw convenient And by the Constitutions of Oâ—hobon which were made in the time of H. III. we find that if an Inferiour Clergy-man transgressed this Canon it was in the power of the Diocesan to absolve him from his Irregularity And this Canon was receiv'd and inforc'd most here in England on the inferiour Clergy as appears by the Canons of Stephen Langton in the Council of Oxford and other Synodall Constitutions here For it is a Rule in Lyndwood Clericus ex vi verbi non comprehendit Episcopum sed cum adjuncto sic in quantum illud adjunctum potest concernere Episcopum That by Clerici we are not to understand Bishops unless there be some adjunct that implieth it And among the Decretals there is one from Alexander III. to the Archbishop of Canterbury under the Title Nè Clerici to the same purpose Where the Glosse I grant comprehends Prelats therefore I will not deny but they were to be irregular by the canon-Canon-Law as well as others But then we are to consider how far the Legatine Power vested in the Archbishop of Canterbury might extend in such a Case and that there was the same severity in the Canons against Clergy-men's taking upon them any Secular Office and yet in this very Parlament Thomas Arundell Bishop of Ely was Lord Chancellour and after him William of Wickham Bishop of Winchester and before them R. Baybroke Bishop of London and the Bishops of Durham and Exceter were Lords Treasurers under R. II. and in H. III's time we find 3 Clergy-men Lords Chief Iustices Pateshull Lovell and Mansell notwithstanding these Canons and in Edward III's time almost all the great Offices of the Court were executed by Clergy-men By which we see they did not think themselves so strictly bound to observe those Canons or it was so easy to be dispensed with that they had great Reason to insist upon the challenge of their own Right notwithstanding the Canon-Law The truth is the Canon-Law as it was managed in those days was one of the most mysterious pieces of Ecclesiasticall Policy it was an Engine which the artificial Church-men could screw up or let down as they pleased If it were in a matter likely to be prejudicial to their interest as it was most apparently the case in
Concerning their Peerage To prove this two Statutes had been alledged 25 Ed. III. c. 6. and 4 H. V. c. 6. and the opinion of Iudges and Lawyers out of the Year-Books But although these had been very significant if they had been against them they have the hard fortune to signify nothing when they are for them A meer Protestation becomes good Law very substantial Law if it be supposed to make against the Bishops and yet in that very Protestation the Right of Peerage is expresly challenged as well as it is asserted and taken for granted in the Statutes mention'd Is that part of the Protestation invalid and must nothing pass for Law but what is against them Is it credible that a Right of Peerage should be owned and received in Acts of Parlament in Protestations in Year-Books time after time and no opposition made against it by the Temporal Lords all that time in case they believed the Bishops had challenged that which by no means did belong to them Did not the Temporal Lords understand their own Privileges or were they willing to suffer the Bishops to assume their Titles to themselves without the least check or contradiction and let their Protestations be enter'd in the Rolls of Parlament without any contrary Protestation I do not question but the Authour of the Letter did reade the Bishops Protestation at large in the Parlament-Rolls 11 R. II. And can any thing be plainer then that therein they challenge a Right of Peerage to themselves ut Pares Regni cum caeteris Regni Paribus c. And this Protestation he saith was enter'd by consent of the King Lords Temporal and Commons as is expressed in the Rolls Were the Temporal Lords awake or were they mean and low-spirited men No they were never higher then at this time when the King himself durst not withstand them What could it be then but meer conviction of their just Right of Peerage which made them suffer such a Protestation as that to pass after so solemn and unusual a manner and to be enrolled par Commandment du Roy assent des Seigneurs Temporels Communs as it is in the Rolls Was all this onely a Complement to the Potent Clergy at that time But who can imagine that King Lords and Commons should complement at that rate as to suffer the Bishops to challenge a Peerage to themselves in Parlament if they had not an undoubted Right to it This one argument is sufficient to convince any reasonable man Especially when we consider that in the same Parlament before the Protestation was brought in a motion was made n. 7. by all the Lords Spiritual and Temporal which they claimed come leur libertez franchise as their Liberty and Privilege that all weighty matters moved in this Parlament or to be moved in any to come touchant Pieres de la Terre concerning the Peers of the Realm should be determin'd adjudged and discussed by the course of Parlament and not by the Civil nor by the Common Law of the Land used in inferiour Courts of the Realm The which Claim Liberty and Franchise the King most willingly allowed and granted in full Parlament From whence it is evident that the King and Parlament did allow the Right of Peerage in the Lords Spiritual for it is said expresly in the Record that all the Spiritual as well as Temporal Lords joyned in this Claim which being allowed them in full Parlament is an evidence beyond contradiction of their Right of Peerage But against this no less is pretended then Magna Charta viz. that every man who is tried at the King's Suit must be tried by his Peers Now if a Bishop be tried for any Capital offence he is tried by the Commoners and that is the Common Law of England it hath ever been so never otherwise then must Commoners be his Peers and he and Commoners must be Pares To this Argument how strong soever it appears these two things may be justly answer'd 1. That the matter of Fact cannot be made out that a Bishop hath always been tried by Commoners 2. That if it could it doth not overthrow their Peerage in Parlament 1. That the matter of Fact cannot be made out viz. that if a Bishop be tried for a Capital Offence he is tried by the Commoners that it hath ever been so never otherwise For in 15 Ed. III. Iohn Stratford Archbishop of Canterbury was at the King's Suit accused of Capital Crimes viz. of no less then Treason and Conspiracy with the French King He put himself upon his Trial in Parlament A Parlament was called and he at first refused admission into the House which he challenged tanquam major Par Regni post Regem Uocem primam in Parlamento habere debens as the First Peer of the Realm after the King and having the first Uote in Parlament Upon which and the intercession of his Friends he is admitted into the House and there he put himself upon the Triall of his Peers At which time a great Debate arose in the House which continued a whole Week and it was resolved that the Peers should be tried onely by Peers in Parlament Whereupon the Archbishop had 12 Peers appointed to examine the Articles against him 4 Bishops viz. London Hereford Bath and Exceter 4 Earls Arundel Salisbury Huntingdon and Suffolk and 4 Barons Percy Wake Basset and Nevil Here we have all that can be desired in the case Here is a Bishop tried at the King's Suit and for a Capital Crime and yet not tried by Commoners but by his Peers and that after long debate in the House concerning it If it be said that he was tried by the Lords as Iudges in Parlament and not as his Peers it is answer'd 1. Then Bishops are Iudges in Parlament in Cases Capital for so this was and 4 Bishops appointed to examine it 2. The Debate in the House was about Trial of Peers by their Peers and upon that it was resolved that the Archbishop should be tried by the House For the King designed to have him tried in the Exchequer for the matters objected against him and the Steward of the King's House and Lord Chamberlain would not suffer him to enter into the House of Lords till he had put in his Answer in the Exchequer Upon which the great Debate arose and therefore the Resolution of the House is as full a Precedent in this Case as can be desired I do not deny that the Rolls of Parlament of that year seem to represent the 12 Peers as Birchington calls them not as appointed to examine the particular Case of Stratford but to draw up in form the desire of the Peers as to a Trial by their Peers in Parlament the which is extant in the Record 15 Ed. III. n. 7. However this Argument doth not lose its force as to the Peerage of the Bishops but it is rather confirmed by it For there they pray the King by the Assent of
Judge then bare Inheritance of Honour can do But to give a full Answer to this Argument on which that Authour lays so much weight and challenges any Person to give a rational account wherein the advantage of a man's being tried by his Peers doth consist I shall 1 shew that this was not the Reason of Trial by Peers 2 give a brief account of the true and original Reason of it 1. That this was not the Reason 1. Not in the Judgment of the Peers themselves as that Authour hath himself sufficiently proved when he takes so much pains to prove p. 3. that a Writ of Summons to Parlament doth not ennoble the Bloud and consequently doth not put persons into equality of Circumstances with those whose Bloud is ennobled and yet he grants that those who sate in the House of Peers by virtue of their Summons did judge as Peers as is manifest from his own Precedents p. 15. from the 4 Edw. 3. From whence it follows that this was not thought to be the Reason by the Peers themselves in Parlament 2. That this was not the Reason in the Judgment of our greatest Lawyers because they tell us that where this Reason holds yet it doth not make men Judges As for instance those who are ennobled by Bloud if they be not Lords of Parlament are not to be Judges in the case of one ennobled by Bloud Onely a Lord of the Parlament of England saith Coke shall be tried by his Peers being Lords of Parlament and neither Noblemen of any other Country nor others that are called Lords and are no Lords of Parlament are accounted Pares Peers within this Statute Therefore the Parity is not of Bloud but of Privilege in Parlament 3. The Practice it self shews that this was not the Reason For this Reason would equally hold whether the Trial be at the King's Suit or the Suit of the party but in the latter case as in an appeal for Murther a man whose bloud is ennobled must be tried by those whose bloud is not ennobled even by an Ordinary Iury of 12 men And I desire our Authour to consider what becomes of the inheritable quality of Bloud in this case when Life and Fortune lies at the mercy of 12 substantial Free-holders who it is likely do not set such a value upon Nobility as Noble-men themselves do and yet our Law which surely is not against Magna Charta allows an Ordinary Iury at the Suit of the party to sit in Judgment upon the greatest Noble-men Therefore this Reason can signifie nothing against the Bishops who are Lords in Parlament as I have already proved 2. I shall give a brief account of the true and original Reason of this Trial by Peers without which that Authour it seems is resolved to conclude that the Iurisdiction of the Bishops in Capital Cases is an abuse of Magna Charta and a Violation offer'd to the Liberties of English Subjects As to the general Reason of the Trial by Peers it is easie to conceive it to have risen from the care that was taken to prevent any unfair proceedings in what did concern the Lives and Fortunes of men From hence Tacitus observes of the old Germans that their Princes who were chosen in their great Councils to doe justice in the several Provinces had some of the People joyned with them both for Advice and Authority These were Assessours to the Judges that mens lives and fortunes might not depend on the pleasure of one man and they were chosen out of the chief of the People none but those who were born free being capable of this honour In the latter times of the German State before the subduing it by Charlemagn some learned men say their Iudges were chosen out of the Colleges of Priests especially among the Saxons After their being conquer'd by him there were 2 Courts of Judicature established among them as in other parts of the German Empire 1. One ordinary and Popular viz. by the Comites or great Officers sent by the Emperour into the several Districts and the Scabini who were Assistants to the other and were generally chosen by the People The number of these at first was uncertain but in the Capitulars they are required to be seven who were always to assist the Comes in passing Judgments But Ludovicus Pius in his second Capitular A. D. 819. c. 2. enlarged their number to 12. And if they did not come along with him they were to be chosen out of the most substantial Free-holders of the County for the words are De melioribus illius Comitatûs suppleat numerum duodenarium This I take to be the true Original of our Juries For our Saxon Laws were taken very much from the Laws of the Christian Emperours of the Caroline Race as I could at large prove if it were not impertinent to our business and thence discover a great mistake of our Lawyers who make our ancient Laws and Customs peculiar to our selves As in this very case of Trial by Peers which was the common practice of these parts of the World Therefore Otto Frisingensis takes notice of it as an unusual thing in Hungary Nulla sententia à Principe sicut apud nos moris est per pares suos exposcitur sola sed Principis voluntas apud omnes pro ratione habetur that they were not judged by their Peers but by the Will of their Prince Which shews that this way of Trial was looked on as the practice of the Empire and as preventing the inconveniences of arbitrary Government And it was established in the Laws of the Lombards and the Constitutions of Sicily In the one it is said to be Iudicium Parium in the other proborum virorum In the Saxon Laws of King Ethelred at Wanting c. 4. 12 Freemen are appointed to be sworn to doe Iustice among their neighbours in every Hundred Those in the Laws of Alfred are rather 12 Compurgators then Iudges however some make him the Authour of the Trial by Peers in England But by whomsoever it was brought into request here it was no other way of Trial then what was ordinary in other parts of Europe and was a great instance of the moderation of the Government of the Northern Kingdoms 2. There was an extraordinary or Royal Court of Iudicature and that either by way of Appeal which was allowed from inferiour Courts or in the Causes of Great men which were reserved to this Supreme Court. In which either the King himself was present or the Comes Palatii who was Lord High Steward and all the Great persons were Assessours to him In such a Court Brunichildis was condemned in France and Tassilo Duke of Bavaria in the Empire and Ernestus and other Great men A. D. 861 and Erchingerus and Bartoldus under Conradus the last of the French Race And among the Causes expresly reserved for this Supreme Court were those which concerned the Prelats as well as the
Nobles Vt Episcopi Abbates Comites potentiores quique si causam inter se habuerint ac se pacificare noluerint ad nostram jubeantur venire praesentiam neque illorum contentio aliubi judicetur But in this Court they challenged that as their privilege to be tried by their Peers who were called Pares Curiae So the Emperour Sigismund in his Protestation before the States of the Empire Cùm secundùm juris communis dispositionem nec non usum morem stylum consuetudinem sacri Romani Imperii feudalis contentio per Dominum feudi ac Pares Curiae terminanda sit c. And again nisi Parium nostrae Curiae arbitrio So likewise in France as Tilius saith Haec judiciorum ratio ut de causis feudalibus judicent Feudales Pares in Gallia est perantiqua So in Fulbertus one Count sends word to another that their Cause should not be determin'd nisi in Conventu Parium suorum And many other examples might be produced but these are sufficient to make us understand the true Original of this Right of Peerage which was from the Feodal Laws and all those who held of the same Lord and by the same Tenure were said to be Pares Peers And therefore since the Bishops in England were Barons by Tenure ever since William I. by consequence they were Peers to other Barons and had the same original Right of Trial by other Barons as their Peers holding by the same Tenure and sitting in the same Court. And thus I hope I have given what that Authour so impatiently desired viz. a rational account of the Trial by Peers and have thereby shewed that this is so far from being any disadvantage to the Bishops Cause that it adds very much to the Iustice of it And that this is so far from being a violation of Magna Charta that it is within the intention and meaning of it I thus prove In the 14. ch of Magna Charta we read Comites Barones non amercientur nisi per Pares suos but by the Common Law the Amerciament of a Bishop is the same with that of a Lay-Baron and therefore in the sense of the Law they are looked on as Peers And all the Parlamentary Barons whether Bishops or Abbots were amerced as Barons Thence 15 Edw. 2. a Writ was directed to the Justices of the Common Pleas that they should not amerce the Abbot of Crowland tanquam Baro because he did not hold per Baroniam aut partem Baroniae And it is confessed by the most learned Lawyers that the Lords Spiritual do enjoy the same legal Privileges in other respects which the Temporal Barons do as in real Actions to have a Knight returned in their Iury as to a day of Grace hunting in the King's Forests Scandalum Magnatum c. Now since the Law of England allows onely a double Parity viz. as to Lords of Parlament and Commons whether Knights Esquires Gentlemen or Yeomen without any consideration of the great inequality of circumstances among them Yeomen having as little sense of Gentility as Commons can have of the privileges of Nobles it is apparent that this Trial by Peers was not founded upon equality of circumstances and that in all reason those who do enjoy the legal Privileges of Peers are to be looked on as such by Magna Charta But the great Objection is that the Lawyers are of another opinion as to this Trial by Peers and not onely the common sort who take all upon Trust which they find in the modern Law-Books but those who have searched most into Antiquity such as Mr. Selden and Sir Edw. Coke To this therefore I answer 1. The Authour of the Peerage c. proves the Bishops are not Peers because not to be tried by Peers This consequence Mr. Selden utterly denies for he saith it is true and plain that the Bishops have been Peers For which he quotes the Bishop of Winchester's Case who was question'd in the King's Bench for leaving the Parlament at Salisbury in the beginning of Ed. III. and he pleaded to the declaration quod ipse est unus e Paribus Regni that he was one of the Peers of the Realm which he saith was allowed in Court And from other Book-cases and Parlament-Rolls he there evidently proves that the Bishops were Peers which he not onely asserts in that confused Rhapsodie which went abroad under his name but in his elaborate Work of the last Edition of his Titles of Honour in which he corrected and left out the false or doubtfull passages of his first Edition And among the rest that passage wherein this Authour triumphs A Bishop shall not be tried by Peers in Capital Crimes The same thing I confess is said in the Privileges of the Baronage which he there calls a point of Common Law as it is distinguished from Acts of Parlament i. e. the custom and practice hath been so And the onely evasion he hath for Magna Charta is this that it is now to be interpreted according to the current practice and not by the literal interpretation of the Words Which is an admirable answer if one well considers it and justifies all violations of Magna Charta if once they obtain and grow into Custom For then no matter for the express words of Magna Charta if the contrary practice hath been received and allowed in legal proceedings This is to doe by Magna Charta as the Papists doe by the Scriptures viz. make it a meer Nose of Wax and say it is to be interpreted according to the Practice of the Church 2. Some things are affirmed about this matter with as great assurance as this is which have not been the constant practice Coke is positive that Bishops are not to be tried by their Peers but so he is in the same page that a Nobleman cannot wave his Trial by his Peers and put himself upon the Trial of the Countrey Whereas it is said in the Record 4 Ed. III. that Thomas Lord Berkely ponit se super Patriam put himself upon his Countrey and was tried by a Jury of 12 Knights And 28 H. VI. the Duke of Suffolk declined the Trial of his Peers and submitted to the King's mercy By which it appears that this was a Privilege which was not to be denied them if they challenged it but at least before 15 Ed. III. they might wave it if they pleased and after that too if they were tried out of Parlament For this Trial by Peers was intended for a security against arbitrary Power in taking away mens Lives and therefore it was allowed at the King's Suit but not at the Suit of the Party But if Bishops were tried out of Parlament and did voluntarily decline the challenge of this Privilege this is no argument at all against their Right of Peerage and so I find some say it was in the Case of Fisher Bishop of
In his absence the People refuse to pay the Taxes and the Lords combine together and all things tend to an open Rebellion His Son Ed. II. calls a Parlament at London and promises a Confirmation of the Charter and that no Taxes should hereafter be raised either on Clergy or Laiety without their consent Which being sent over Edw. I. confirmed it with his own Seal which was all done within the compass of this year But he again ratified it in the Parlament 27 Ed. I. So that nothing was done in that Parlament at S. Edmondsbury but granting a 12 th of the Laiety to the King And when the great Laws were passed the King and Clergy were reconciled and they sate in Parlament And the Archbishop of Canterbury fell into the King's displeasure afterwards for being so active a promoter of them The summe then of this mighty argument is that the Lords and Commons once granted their own Subsidies without the concurrence of the Clergy therefore the Clergy are no essential part of the parlament 3. The Reason assigned in Keilway's Reports why the King may hold a Parlament without the Bishops is very insufficient viz. because they have no place in Parlament by reason of their Spiritualty but by reason of their Temporal possessions The insufficiency of which Reason will appear by two things 1. That it is not true as appears by this that the Clergy are one of the Estates of the Kingdom and all the Estates of the Kingdom must be represented in Parlament 2. Were it true it is no good Reason For why may they be excluded because they sit on the account of their Baronies Where lies the force of this Reason Is it because there will be Number enough without them That was the Rump's Argument against the Secluded Members And I hope the Authour of the Letter will not justify their Cause Or is it because they hold their Baronies by Tenure So did all the ancient Barons of England and why may the King hold his Parlament with the other Barons without the Bishops and not as well with the Bishops without the other Barons Which I do not see how it can be answer'd upon those grounds Suppose the Question had been thus put Since all the ancient Lords of Parlament were Barons by Tenure and Parlaments were held for many Ages without any Barons by Patent or by Writ why may not the King hold his Parlament after the ancient way onely with Barons by Tenure I do not see but as good a Reason may be given for this as that in Keilway's Reports All that I plead for is that our good ancient and legal Constitution of Parlament may not be changed for the sake of any single Precedents and rare Cases and obscure Reports built upon weak and insufficient Reasons For as the Authour of the Letter very well saith Consuetudo Parlamenti est Lex Parlamenti The constant Practice of Parlaments and not one single Instance is the Law of Parlaments And suppose that Precedent of 25 Ed. I. as full as could be wished in this case yet I return the answer of the Authour of the Letter in a like case This is but one single Precedent of a Parlament without Bishops against multitudes wherein they were present it was once so and never but once And can that be thought sufficient to alter and change the constant course and practice of Parlaments which hath been otherwise Nothing now remains but a severe reflexion on the Popish Bishops for opposing the Statute of Provisors and the several good Acts for the Reformation But what this makes against the Votes of Protestant Bishops is hard to understand If he thinks those could not make a good Third Estate in Parlament who took Oaths to the Pope contrary to their Allegeance and the interest of the Nation so do we If he have a great zeal for the Reformation so have all true Members of the Church of England who we doubt not will heartily maintain the Cause of our Church against the Vsurpations of Rome though the heat of others should abate For did not our Protestant Bishops seal the Reformation with their Bloud and defend it by their admirable Writings What Champions hath the Protestant Religion ever had to be compared in all respects with our Cranmer â—idley Iewel Bilson Morton Hall Davenant and many other Bishops of the Church of England And notwithstanding the hard fortune Archbishop Laud had in other respects not to be well understood in the Age he lived in yet his enemies cannot deny his Book to be written with as much strength and judgment against the Church of Rome as any other whatsoever I shall conclude with saying that the Clergy of the Church of England have done incomparably more Service against Popery from the Reformatition to this day then all the other Parties among us put together And that the Papists at this time wish for nothing more then to see men under a pretence of Zeal against Popery to destroy our Church and while they cry up Magna Charta to invade the legal Rights thereof and thereby break the first Chapter of it and from disputing the Bishops presence in Cases Capital to proceed to others and so by degrees to alter the ancient Constitution of our Parlaments which will unavoidably bring Anarchy and Confusion upon us from which as well as Popery Good Lord deliver us THE END Letter p. 1. Lett. p. 93. Lett. p. 3. 118. Lett. p. 66. P. 21. Lett. p. 2 3. Lett. p. 5. Lett. p. 86. Hincmar Epist de Ordine lalatii Concil Franc. c. 3. 9. Marculph Form l. 1. c. 25. Not. in Marc. p. 287. Concil Tolet 4. c. 75. 5. c. 7. 6. c. 17. 8. in Praef. 12. c. 1. 17. c. 1. 17. c. 1. Cont l. Tolet 13. c. 2. Rer. Aleman To. 2. Cod. Leg. Antiq. B. 362. Arumae de Comitiis â— 35. c. 4. â— 98. Goldast Bohem l. 5. c. 1. Bonfin dec 2. l. 1. Decret Ladiss p. 12. Starovolse â—olon p. 2â—5 Herburt Stat. Regni Pol. p. 263. Adam Brem de situ Dan. n. 85. Loccen Antiq Sâ—eco Goth. c. 8. Ius Aulicum Nâ—rveg c. 3. c. 36. Lett. p. 3 4. Stat. Merton c. 9. 20 H. 3. Dissert ad Flet. c. 9. § 2. Soz. hist. l. 1. c. 9. Capitul Carol Ludov l. 6. c. 281. ed. Lindenb c. 366. ed. Baluz Cod. Just. de Epise Audient l. 1. tit 4. c. 8. Cod. Theodos l. 16. tit 11. c. 1. Greg. NysS vit Greg. Basil. in ep Socr. l. 7. c. 37. Ambros. de Offic. l. 2. c. 24. Aug. ep 147. in Ps. 118. conc 24. Jac. Goth. in cod Theod. ad Extrav de Episc. judicio Concil Sardic c. 7. Balsam in Can. 4. Concil Chalced. Auth. Collat 1. tit 6. Novell 6. c. 2. Justin. Cod. l. 1. tit 3. c. 41. Cod. Theod. l. 16. tit 2. n. 38. Lindwood l. 3. de Testam Lett. p. 4. Lett. p. 68. Lett. p. 69. Lett. p.
THE GRAND QUESTION Concerning the Bishops Right To VOTE in PARLAMENT In Cases Capital STATED and ARGUED FROM The Parlament-Rolls and the History of former Times WITH An Enquiry into their Peerage and the Three Estates in Parlament LONDON Printed for M. P. and sold by Richard Rumball Book-binder at the Ball and Coffin in the Old Change 1680. THE CONTENTS CHAP. I. THE Question stated and general Prejudices removed CHAP. II. The Right in point of Law debated Concerning the Constitution of Clarendon and the Protestation 11. R. 2. CHAP. III. The Precedents on both sides laid down those against the Bishops examined and answered CHAP. IV. The Peerage of the Bishops cleared how far they make a third Estate in Parlament Objections against it answered CHAP. 1. The Question stated and general Prejudices removed THE Question in debate as it is stated by the Authour of the Letter is Whether the Bishops may be present and Vote Iudicially in Capital Cases which come to be judged in Parlament either in giving the Iudgment it self or in resolving and determining any circumstance preparatory and leading to that Iudgment For our better proceeding towards a Resolution of this Question it will be necessary to take notice of some things granted on both sides which may prevent needless disputes and be of great use in the following Debate 1. It is granted That the Bishops do sit in Parlament by virtue of their Baronies and are bound to serve the King there And one part of the Service due to the King there is to sit in Iudgment for the Authour of the Book entitled The Iurisdiction of the House of Peers asserted proves at large that the Right of Iudicature belongs to the Barons in Parlament and that the Lords Spiritual have a considerable share therein appears by this passage in the Title-page of that Book translated into English The Iudgment of the Lords Spiritual and Temporal is according to the Vse and Custom of Parlament The Vse and Custom of Parlament is the Law of Parlament The Law of Parlament is the Law of England The Law of England is the Law of the Land The Law of the Land is according to Magna Charta Therefore the Iudgment of the Lords Spiritual and Temporal is according to Magna Charta Some Right then of Iudicature in Parlament the Bishops have by Magna Charta which whatever it be is as much theirs by that Charter as any Right of Temporal Persons and cannot be invaded or taken from them without breach of that Charter any more then the Rights of the Lords Temporal or of any other Persons whatsoever But how far that Right doth extend is now the thing in Question 2. It is not denied that the Bishops do sit in Parlament by the same kind of Writs that other Barons do They are summon'd to advise and debate about the great and difficult Affairs of the Kingdom cum Praelatis Magnatibus Proceribus dicti Regni nostri Angliae colloquium habere tractatum i. e. to joyn therein with the Bishops and other Lords of the Kingdom So that by the King 's Writ of Summons they are impower'd and requir'd to confer and treat of all the weighty Affairs that shall be brought before them And no Instance is so much as offer'd to be produced of any Writ wherein the King doth limit and restrain the Bishops any more then any other Lords of Parlament as to any matter of Consultation or Point of Judicature belonging to that House They have then by their Writ of Summons as good right to sit in all Cases as in any and since the other Lords by their Writs are summoned to advise with the Prelates in all matters that shall come before them without limitation it is not to be conceived how this can be done if the Bishops in some of the most important Debates be excluded 3. It is yielded That if the House proceeds in a Legislative way by passing Bills of Attainder the Bishops have a Right to sit and Vote therein as well as other Lords at these it is said that the Bishops are or should be all present at the passing of them for then they act as Members of the House of Lords in their Legislative capacity But men do as certainly die that are condemned in the Legislative as in the Iudicial Way Is not this then really as much a Case of Bloud as the other If the Bishops should give their Votes in the Legislative way to condemn a Person for Treason and yet think they had not Voted in a Case of Bloud they would then indeed be like Chaucer's Frier mention'd by the Authour of the Letter that would have of a Capon the Liver and of a Pig the Head yet would that nothing for him should be dead Doth a Bill of Attainder cut of a man's Head without making it a Case of Bloud There can be then no objection now made against the Bishops Right from any Canons of the Church for those allow no such distinction of proceeding in the Legislative or Iudicial Way And the late Authour of the Peerage and Iurisdiction of the Lords Spiritual doth grant that the Canons do prohibit the Bishops voting in Bills of Attainder as much as in any Case whatsoever But we are not to suppose a Person of such abilities as the Authour of the Letter would go about to exclude the Bishops from their Right of Voting in a Iudicial way in Cases Capital unless there were some great appearance of Law on his side because he professes so great a Desire that Right may prevail and that his design in writing was to satisfy himself and others where that Right is The discovery whereof is our present business Yet before the Authour of the Letter comes to a close debate of the matter of Right he lets fall some general Insinuations to create a prejudice in the Reader 's mind as to the Bishops meddling at all in Secular Affairs as though it were inconsistent with their Function and with some passages in the Imperial Law And because men may sometimes doe more harm by what they tell us they will not say then by what they do say it will be fit to prevent the danger of such Insinuations before we come to consider his Arguments 1. The first is that meddling at all in Secular Affairs seems to be the doing that which the Apostles declared they would not doe viz. leave the Word of God and serve Tables But are all Persons of Estates now bound to part with them as the Christians then did The serving of Tables was a full employment and they who attended that Office were the Treasurers of the Church to distribute to every one as they judged fit out of the common Stock Is it no Service to God to doe Justice and to shew Mercy to attend upon the publick Affairs of the Kingdom when they are called to it by their Sovereign Or are all Bishops now
Affairs CHAP. II. The Right in point of Law debated Concerning the Constitution of Clarendon and the Protestation 11 R. 2. HAving removed these general Prejudices I now come to debate more closely the main Point For the Authour of the Letter undertakes to prove that Bishops cannot by Law give Votes in Capital Cases in Parlament Which he doth two ways 1. by statute-Statute-Law 2. by Use and Custome which he saith is parlament-Parlament-Law and for this he produceth many Precedents I. For statute-Statute-Law two Ratifications he saith there have been of it in Parlament by the Constitutions of Clarendon and the 11 R. 2. 1. The Constitutions of Clarendon which he looks on as the more considerable because they were not the enacting of new Laws but a declaration of what was before And for the same Reason I value them too and shall be content this Cause stand or fall by them The Constitution in debate is the 11 th which is thus repeated and translated in the Letter Archiepiscopi Episcopi universae Personae Regni qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam inde Respondeant Iusticiariis Ministris Regis sequantur faciant omnes consuetudines Regias Et sicut ceteri Barones debent interesse judiciis Curie Regis quousque perveniatur ad diminutionem membrorum vel ad mortem The Archbishops Bishops and all the dignified Clergy of the Land that hold of the King in Capite shall hold their possessions from the King as a Barony and answer for their estates unto the King's Iustices and Ministers and shall observe and obey all the King's Laws And together with the other Barons they are to be present at all Iudgments in the King's Courts till it come to require either losse of Member or Life The Argument from hence he enforceth from the solemn Recognition and publick confirmation of these Constitutions and the Oath taken to observe them from whence he concludes this to be Testimonium irrefragabile An irrefragable and invincible Testimony And so I foresee it will prove but to a quite contrary purpose from what he intended it The whole Question depends upon the meaning of the latter Clause of this Constitution The meaning he gives of it is this that the Prelats of the Church should not be present at the Iudgments given in the King's Courts when losse of Member or Life was in question The meaning of it I conceive to be this that the Bishops are required to be present in the King's Courts as other Barons are till they come to give Sentence as to Dismembring or loss of Life Whether of these is the true meaning is now to be considered and that will best be discovered these three ways 1. By the Occasion 2. By the plain Sense of the words according to their true Reading 3. By the subsequent Practice upon this Constitution in the Parlament at Northampton soon after 1. By the Occasion The Authour of the Letter assigns that Occasion for this Constitution for which there is not the least colour viz. That the Prelats of that time were ambitious of a kind of Omnipotency in Judicature I suppose he means and that to restrain their power of Judging Capital Cases this Constitution was made and because this seemed to be a diminution of their Power therefore Matt. Paris ranks it among the Consuetudines iniquas the wicked Customs of the former times For all which there is not the least shadow of Proof besides that it is so repugnant to the History of those Times that I can hardly believe a Person of so much Learning and Judgment as is commonly said to be the Authour of the Letter could betray so much unskilfulness in the Affairs of those Times For this is so far from being true that the Bishops did then affect such a Power of Iudging in all Secular Causes that they looked on their attendance in the King's Court in the Trial of Causes as a burthen which they would fain have been rid of because they accounted it a Mark of Subjection to the Civil Power and contrary to that Ecclesiastical Liberty or Independency on Princes which from the days of Gregory VII they had been endeavouring to set up Which H. II. being very sensible of resolved to tie them to the Service of their Baronies and to an attendance on the King's Courts together with other Barons But lest they should pretend any force on their Consciences as to the Canons of the Church this Constitution doth not require but suffers them to withdraw when they came to Sentence in matters of Bloud And that this was the true Occasion I prove by these two invincible Arguments 1. By the complaint which they made of the Baronies as too great a mark of Subjection to the Civil Power This is plain from Matt. Paris himself to whom the Authour of the Letter refers for when he speaks of William the Conquerour's bringing the Temporalties of the Bishops into the condition of Baronies i. e. forcing them to hold them of him in Chief upon certain Duties and Services he calls it Constitutionem pessimam a most wicked Constitution just as he calls the Customs of Clarendon Consuetudines iniquas wicked Customs And he adds that many were banished rather then they would submit to that Constitution For their Privileges were so great with the Frank-almoign they enjoy'd in the Saxon times and their desires so hearty especially among the Monks who from Edgar's time had gotten into most Cathedral Churches to advance the Papal Monarchy that they rather chose to quit all then to give up the Cause of the Churche's Liberty by accepting of Baronies Therefore Matt. Paris calls the Rolls that were made of the Services belonging to these Baronies Rotulas Ecclesiasticae Servitutis the Rolls of Ecclesiastical Slavery then which nothing could be more contrary to that Ecclesiastical Liberty which was then setting up by Pope Hildebrand And to put this out of all dispute Petrus Blesensis a Name well known in this dispute in that very Book where he complains of the Bishops Hypocrisy about Cases of Bloud in being present at hearing and trying Causes but going out at Sentence complains likewise of their Baronies as those which gave occasion to that Hypocrisy and as the marks of the vilest Slavery Et in occasione turpissimae Servitutis seipsos Barones appellant They may think it an honour to be called the King's Barons but he accounts it the greatest Slavery and applies that place of Scripture to them They have reigned but not by me they are become Princes and I know them not Now Pet. Blesensis lived in the time of H. II. and knew the whole proceedings of the Constitutions of Clarendon and was a zealous maintainer of Becket's Cause or which was all one of the Liberties of the Church as they call'd them against the Civil Power 2. By the fierce Contest between the Civil and Ecclesiastical
11 R. II. when matters grew so high between R. II. and the powerfull Lords and so many Favourites were to be impeached and among them Alexander Archbishop of York then it was a time to quote the Canons and to enter a Protestation and to withdraw If the Times were calmer and more settled or some great Reason moved them then they could stick to their Right of Peerage and make use of it either in Person or by Proxy as they thought convenient Nor was it so easy a matter to resolve what was canon-Canon-Law in England but they might with some colour make use of either of these Pleas. For in this very Parlament 11 R. II. the Commons desire that those may be reputed Traitours who brought in the Pope's Bulls of Volumus Imponimus which shews that they did not think all Canon-Law that passed for such at Rome And 15 R. II. Sir Will. Brian was sent to the Tower for bringing a Bull from Rome which was judged prejudicial to the King and derogatory to his Laws And in 16 R. II. Will. Courtney Archbishop of Canterbury the same who enter'd the Protestation before mentioned makes another of a different kind owning the Rights of the Crown in opposition to the Pope's Encroachments Now by the same Reason no Canon made at Rome no Legatine or Synodal Constitutions could have any force against the King's Authority But the King himself being under a force at that time as he alwaies declared afterwards and that being as Knighton saith it was called Parlamentum sine Misericordia the King having tied himself up not to pardon any without consent of the Lords he might be willing to let the Bishops excuse themselves because that might give some colour to call in question the Proceedings then as it did 21 R. II. when all the Acts of this Parlament were nulled and the Lords and Commons might be very willing to let the Bishops withdraw that their business might proceed with less difficulty against all the King's Ministers So that here was a concurrence of many circumstances which made the Bishops think fit not to appear in the House this Parlament and the King Lords and Commons to be willing to receive their Protestation But in the Anti-Parlament to this that I mean 21 R. II. the Commons pray the King that since divers Iudgments were undone heretofore for that the Clergy were not present they might appoint some Common Proctor with sufficient Authority to that purpose This is a Passage which deserves consideration and tends very much to clear the whole matter For the House of Commons declare that divers Iudgments had been undone for want of the Presence of the Clergy Therefore their Concurrence in the judgment of the House of Commons was thought necessary to make a Iudgment valid A very late Authour finds himself so perplexed with this that he knows not how to get off from it He cannot deny this to be in the Rolls of Parlament and to be the first Petition of the Commons but then he blames them for rashness and errour and want of due Examination of Precedents As though it were possible for any man now to understand the Law and Practice better then the whole House of Commons then did He saith they were mistaken palpably de facto in saying that divers Iudgments have been heretofore undone and yet presently confesseth that the two Iudgments against the two Spencers were reversed for this Cause but he saith there are no more to be found Where doth he mean in his Study or not now extant in the Parlament-Rolls But have we all the Rolls of Parlament that were then in being or must men so boldly charge the House of Commons with Ignorance Errour breaking the Laws because they speak against their fancies But this Gentleman very peremptorily concludes the House of Commons then guilty of a very strange and unaccountable Oversight It is great pity a certain Gentleman had not been there to have searched Records for them and to have informed them better But we think a Iudgment of the whole House of Commons in such a Case declared in so solemn a manner without the least contradiction from the King or the Lords might deserve a little more respect and it had certainly had it if it had made for the other side But we see the House of Commons it self is reverenced or not as the Judgment of it serves mens purposes And yet this was more then the bare Iudgment of the House of Commons for a Petition was made upon it and that Petition granted and consequently a Common Proctor appointed and that Proctor allowed by King Lords and Commons So that this was a Judgment ratified by consent of the King and the whole Parlament For if a Petition were made on a false ground what had been more proper then for the Lords to have open'd this to the Commons and to have told them how unadvised and false their Iudgment was whereas the Lords consented and the Proctor was admitted and gave his Vote in the name of the Clergy But there is something more to confirm this Iudgment of the Commons and that is the Parlament 11 R. II. making Petition to the King that all Iudgments then given might be approved affirmed and stablished as a thing duely made for the Weal and Profit of the King our Sovereign Lord notwithstanding that the Lords Spiritual and their Procurators were absent at the time of the said Iudgments given What means this Petition if there had been no doubt at that time that these Judgments might be reversed as not duely made by reason of the absence of the Prelats The onely answer in my mind is that it was Error Temporis they were of that mind then but some are resolved to be of another now But from hence we plainly see that even in R. II ' s time the Concurrence of the Bishops was thought so necessary that one Parlament declared Iudgments had been reversed for want of it and that very Parlament wherein they absented themselves got a Clause inserted on purpose to prevent the nulling of those Iudgments which signified nothing to the Parlament 21 R. II. which reversed them all There is something more considerable to our purpose in this Parlament viz. that the same Authour produceth the Testimony of a MS. Chronicle which largely handles the Affairs of that Parlament wherein it is confessed that the Bishops by concurring with the Lords in the Revocation of the Earl of Arundel's Pardon did give Vote in a Case Capital for so the words are there cited Dederunt ergo locum Praelati judicio Sanguinis in hoc facto Which shews that the Bishops did then give their Votes about the validity of the Pardon which the Authour of that Chronicle indeed condemns them for and tells us some thought they incurred Irregularity by it From whence it follows that all the Penalty supposed to be incurred was onely Canonical but he never charges
them with going against the Law or Custom of Parlament therein But the Authour of the Letter saith Whatever was done this Parlament signifies nothing because the whole Parlament stands repealed by 1 H. IV. and all done in it delcared null and void Yet to our comfort the same Authour tells us the three Henry's were Usurpers and therefore I desire to be satisfied whether an Vsurper by a Parlament of his calling can null and repeal what was done by a King and his Parlament If he may then the King lost his Title to the Crown by the late Vsurpers if not then the Parlament 21 R. II. could not be repealed by that 1 H. IV. If the Authour of the Letter had considered this he is a Person of too great Judgment and Loyalty to have mention'd more then once the Repeal of that Parlament by the subsequent Parlament 1 H. IV. From all this we see that by the Judgment of the whole Parlament both 11 R. II. and 21 R II. the Bishops had a right to sit so far that Iudgments were reversed where they were not present and therefore all the pretence they could have for withdrawing must be from the Canon-Law which although not sufficient to bind them if the matter had been contested yet it served them for a very colourable pretence of absenting themselves in such dangerous times as those of 11 R. II. Here the Authour of the Peerage and Iurisdiction of the Lords Spiritual thinks he brings seasonable relief to the Cause when he undertakes to prove that the Bishops withdrawing was not meerly on the account of the canon-Canon-Law This I confess is home to the business If he can make it out 1. He saith there was an Act of Parlament before that did expresly prohibit them to excercise Iurisdiction in those Cases This we utterly deny And the Constitution of Clarendon to which he refers proves the contrary 2. The Bishops made bold with the Canons when they thought fit as 21 R. II. But how could they doe that unless they had a Parlamentary Right to be present He saith the Constituting a Proxy was as great a violation of the Canons as being personally present and what then therefore the Parlament would not have suffered them to doe that if there had been a Law to exclude them How doth this prove that the Bishops did not withdraw on the account of the Canons II R. II. because they made a Proxie 21 R. II But why did they not appear personally if they had no regard to the Canons when the receiving their Proxie shewed they had a legal Right to appear But he grievously mistakes the meaning of the Canon of Stephen Langton in Lyndwood when he interprets Literas pro poena sanquinis instigenda scribere vel dictare against making of Proxies which is onely meant of giving or writing the Sentence for Execution 3. He saith they were excluded by ancient Custom which by a very subtle way of reasoning he proves to have been part of the Fundamental Contract of the Nation as he speaks Seeing then saith he it is without doubt that there was such a Custom that the Prelats should not exercise Iurisdiction in Capital Cases not so altogether without doubt unless it were better proved then we have yet seen it and there is no Record that doth mention when it did begin nor any time when it could be said there never was such an Vsage yes before the Council of Toledo being published in Spain and receiv'd here it must of necessity be supposed that it is as ancient as the Government it self and part of the Fundamental Contract of the Nation Which looks so like a Iesuitical Argument that one would have thought he had been proving Transubstantiation by it For just thus the Argument runs at this day among that Party There was a time when it was reciev'd and no time can be instanced in wherein it was not therefore it was a part of the Fundamental Religion of Iesus Christ. the plain Answer in both cases is the same If we can produce unquestionable Authority to which a Doctrine or Practice is repugnant we are not obliged to assign any punctual time in which it must first come in But in this case we do assign the very time and occasion of the Bishops absenting themselves in Capital Iudgments and that was from the receiving the Canon of the Council of Toledo here For no such practice can ever be proved before And therefore this can never be proved to be any part of the ancient Common Law of England And that this came in by way of imitation of other Countries appears by the citing the Council of Toledo both by Lanfranc and Richard in the Council of Winchester 4. He saith the Practice is ancienter then any of the Canons of the Church But how doth that appear The eldest Canon he can find is that of Stephen Langton in Lyndwood which was made above 50 years after the Parlament at Clarendon But we have made it evident there was a Canon receiv'd here in Lanfranc's time long before the Constitution of Clarendon And so a full Answer is given to these Objections But we are told by the Authour of the Letter that the Bishops Protestation being receiv'd and enter'd in the Roll or Iournal-Book makes it to pass for a Law it being agreed to by the King and two Houses so as whatever was the Law before if it were onely the canon-Canon-Law it is now come to be the Law and Rule of Parlament and the Law of the Land 2. This is therefore the second Point to be examined Whether the receiving this Protestation amounts to a Law of Exclusion which it can by no means do for these two Reasons 1. from the nature of Protestations in general 2. from the particular nature of this Protestation 1. From the nature of Protestations in general For a Protestation is onely a Declaration of their minds that make it and not of theirs who receive it or suffer it to be enter'd in the Acts or Records of the Court unless it be receiv'd in such a manner as implies their consent For the very next Parlament after this 13 R. II. the two Archbishops in the name of the whole Clergy enter a Protestation That they gave no assent to any Law or Statute made in restraint of the Pope's Authority and it is said in the Rolls of Parlament that at their requests these Protestations were enrolled Will any man hence inferre that these Protestations were made Acts of Parlament If the Cause would have born any better a Person of so much skill in proceedings of Parlament would never have used such an Argument as this Besides it is a Rule in Protestations Si Protestatio in Iudicio fiat semper per contrarium actum tollitur saith Hostiensis A Protestation although allowed in Court is taken off by a subsequent Act contrary to it Which shews that a Protestation can never have
in the same circumstances the Apostles were when the Christian Church was to be planted in the World and so few persons as the 12 Apostles made choice of for that Work Is there no difference to be made between a Church constituted and settled and incorporated into the Commonwealth and one not yet formed but labouring under great difficulties and making its way through constant persecutions May it not be as well argued that Bishops are not to stay in one Countrey nor to have any fixed habitation because the Apostles passed from place to place preaching the Word of God Doth not the Authour of the Letter himself confesse that the Clergy are one of the Three Estates of the Kingdom and by the Act 8 Eliz. 1. the Clergy are called one of the greatest States of this Realm And is there not then great Reason that those who are the chief part of it as he confesseth the Bishops to be should have a share in affairs that concern the whole Nation And would it not seem strange to the Christian World that we alone of all the Kingdoms of Europe should exclude the Bishops from having an equal Interest with the other Estates in Parlament For it were easy to prove from unquestionable Testimonies that as soon as the Christian Religion was well settled in any of these Northern Kingdoms the Bishops were admitted into all the publick Councils and have so continued to this day where the Convention of the Estates hath been kept up Bohemia onely excepted since the days of Sigismond I begin with France where Hincmarus saith there were two great Councils every year one of the States of the Kingdom for ordering the Affairs of the ensuing year and redressing of Grievances and in these the Bishops were always present and the other of the King's Council which managed the intervening Affairs and into this the chief of the Bishops were chosen It were endless to repeat the several Parlaments in France in the time of the Merovingian and Caroline Race wherein Laws were passed and the great Affairs of the Kingdom managed by the Bishops Noblemen and others Those who have looked into the ancient Annals and Capitulars of France cannot be ignorant of this There is one thing remarkable to our purpose in the famous Council of Frankford which opposed the Worship of Images so stoutly viz. that after the matters of Religion were agreed then according to the Custom of that Age the other Estates being present they proceeded to other matters and then Tassilo Duke of Bavaria was brought upon his Knees for Treason and the Cause of Peter Bishop of Verdun was heard who was likewise accused of Treason and there purged himself Concerning both which Cases there are 2 Canons still extant among the Canons of that Council and in another the Bishops are appointed by consent of the King to doe Justice in their several Dioceses And that they had not onely a share in the Legislative but in the Iudiciary part appears by one of the ancient Formulae in Marculphus where it is said that the King sate in Judgment unà cum Dominis Patribus nostris Episcopis vel cum plurimis Optimatibus nostris vel in the language of that Age is the same with This was the Palatine Court where Bignonius saith the greater Causes were heard the King himself being present or the Comes Palatii Episcopis Proceribus adsidentibus the Bishops and Lords sitting in Iudicature together with him And this was not onely the Original of the Parlament of Paris as a standing Court of Iudicature but the like in England was the true foundation of the Supreme Court of Iudicature in the House of Peers So that in the eldest and best times of France after Christianity had prevailed there neither consultation about publick Affairs nor administration of Justice were thought inconsistent with the Function of Bishops In Spain during the Gothick Power all the great Affairs of the Kingdom and even the Rights of their Princes were debated and transacted by the greatest of the Clergy and Nobility together as may be seen in the several Councils of Toledo in that time in the case of Suintilas Sisenandus and others And in one of them it is said that after they had dispatched matters of Religion they proceeded ad caeterarum Causarum negotia to the handling of other Causes In the 13. Council of Toledo the Case of Impeachments of Treason is brought in and Rules set down for due proceedings therein And yet from one of these Councils of Toledo it is that all the stir hath been made in the Canon-Law about Bishops not being present in cases of bloud In Germany the first Laws that were ever published were those by Lotharius II. in Comitiis Regni saith Goldastus and there were present 33 Bishops 34 Dukes 72 Counts besides the People And by the Matriculation-Roll of the States of the Empire it appears what a great Interest the Clergy have preserved ther in from the first times of the prevalecy of Christianity there And Arumaeus a considerable Protestant Lawyer of the Empire saith the Bishops of Germany sit in a double capacity in the Diets both as Bishops and as Princes of the Empire And he commends the prudence of that Constitution with respect both to Iustice and the Honour and Safety of Religion For the Kingdom of Bohemia Goldastus a learned Protestant saith that there as in all other well-constituted Kingdoms among Christians there were 3 Estates of Prelats Nobles and Commons and this continued he saith from the time Christianity was received till the days of Sigismond No sooner was Christianity received in Hungary but their Princes Stephanus and Ladislaus called their great Councils of their Prelats and Nobles and the Laws made in the Concilium Zabolchianum were passed by the King with all his Bishops and Nobles and with the consent of the whole Clergy and People In Poland Starovolscius saith that their Ancestours after they received Christianity out of regard to Religion gave the Bishops the first place in the Senate and admitted the Clergy to the great Offices of the Kingdom And Sigismond in his Constitution saith the States of Poland consist of the Bishops Barons and Delegates called Nuntii terrestres In the Northern Kingdoms Adamus Bremensis saith that the Bishops after the People received Christianity were receiv'd into their publick Councils And Loccenius reckons up among the several Estates the Bishops Nobles Knights and Deputies of the Country and Cities And it appears by the Hirdstraa or the ancient Laws of Norway the Bishops as well as Nobility were present in the Convention of the States and all publick Councils The like might be proved here in the Saxon times from the Conversion of Ethelbert downward This is so very evident that he must blind his eyes that doth not see it if he doth but cast them on the History of those
Power about the Liberties of Church-men This was carried on from the time that William I. brought them into Subjection by their Baronies his Sons stood upon the Rights of the Crown whilst Anselm and his Brethren struggled all they could but to little purpose till after the death of H. I. Then Stephen to gratifie the great Prelates by whose favour he came to the Crown yielded all they desired but he soon repented and they were even with him for it Malmsbury takes particular notice that he yielded they should have their Possessions free and absolute and they promised onely a conditional Allegeance to him as long as he maintained the Liberties of the Church When K. Stephen broke the Canons as they said by imprisoning 2 Bishops the Bishop of Winchester and his Brethren summon'd him to answer it before them in Council and there declared that the King had nothing to doe with Church-men till the Cause was first heard and determined by themselves All his time they had no regard to his Authority when it contradicted their Wills and when the Peace was made between Him and H. II. Radulphus de Diceto takes notice that the Power of the Clergy increased by it In this state H. II. found things when Gul. Neuburgensis saith the great business of the Church-men was to preserve their Liberties Upon this the great Quarrel between Him and Becket began this made the King search what the Rights of the Crown were which his Ancestours challenged to these he was resolved to make Becket and his Brethren submit For this purpose the Parlament was called at Clarendon and after great debates the 16 Constitutions were produced which were those the King was resolved to maintain and he made the Bishops as well as others swear to observe them Now when the rest of them relate to some Exemptions and Privileges which the Church-men challenged to themselves about their Courts Excommunications Appeals and such like and which the King thought fit to restrain them in From whence in Becket's Epistles it is said those Constitutions were framed ad ancillandam Ecclesiam to bring the Church in subjection as Baronius shews out of the Vatican Copy And Fitz-Stephen saith All the Constitutions of Clarendon were for suppressing the Liberty of the Church and oppressing the Clergy I say considering this is there not then great Reason to understand this 11 th Constitution after the same manner viz. that notwithstanding K. Stephen's Grant H. II. would make them hold by Baronies and doe all the Service of Barons in the King's Courts as other Barons did and he would allow them no other Privilege but that of withdrawing when they came to Sentence in a Case of Bloud What is there in this sense but what is easy and natural and fully agreeable to the state of those Times whereas there is not the least foundation for the pretence of the Bishops affecting to be present in all Causes which the King must restrain by this Constitution This sense of it is not onely without ground but is absolutely repugnant to all the History of that Age. For if this Constitution was intended to restrain the Bishops from trying Causes of Bloud then the Bishops did desire to be present in those Causes and the King would not suffer them Whereas it is evident that the Bishops pretended scruple of Conscience from the Canons that they could not be present but in truth stood upon their Exemption from the Service of Barons which they call'd Ecclesiastical Slavery And therefore that could not be the sense of the Constitution to restrain them in that which they desired to be freed from and which by this Constitution of Clarendon was plainly forced upon them against their wills For Lanfranc had brought the Canon of the 11 th Council of Toledo into England That no Bishop or Clergy-man should condemn a man to death or give vote in the Sentence of Condemnation at which Council were present 2 Archbishops 12 Bishops and 21 Abbots And before H. II ' s time this Canon of Toledo was received into the Body of the Canon-Law made by Ivo Burchardus Regino and Gratian who lived in the time of K. Stephen and when they saw such a Canon so generally received is there not far greater Reason to think they desired to withdraw then that they should press to be present and the King restrain them But the Constitution is so framed on purpose to let them understand that the King expected in all Iudgments they should doe their Duty as other Barons but lest they should think he purposely designed to make them break the Canons he leaves them at liberty to withdraw when Sentence was to be given So that I can hardly doubt but the Authour of the Letter if he please calmly to reflect upon the whole matter will see reason to acknowledge his mistake and that this Constitution was so far from intending to restrain the Bishops from all Iudicature in Cases of Bloud that on the contrary it was purposely framed to oblige them to be present and to act in such Causes as the other Barons did at least till the Cause was ripe for Sentence which last Point the King was content to yield to them out of regard and reverence to the Canons of the Church For the words of the Law are not words of Prohibition and restraint from any thing but of Obligation to a Duty which was to be present and serve in the King's Courts of Iudicature in like manner as the other Barons did From all which it is evident I think beyond contradiction that the Occasion of this Law was not the Ambition of the Prelates as the Authour of the Letter suggests to thrust themselves into this kind of Iudicature but an Ambition of a worse kind though quite contrary viz. under a pretence of Ecclesiastical Liberty and Privilege to exempt themselves from the Service of the King and Kingdom to which by virtue of their Baronies they were bound sicut caeteri Barones as well as the other Barons And therefore it is so far from being true that the Bishops exercise of this Iurisdiction together with the Temporal Lords is a Relique of Popery and one of the Encroachments of the Clergy in those Times of Ignorance and Usurpation as some well-meaning Protestants are now made to believe that on the contrary the Exemption of the Clergy from this kind of Secular Iudicature was one of the highest Points of Popery and that which the Pope and his Adherents contested for with more zeal then for any Article of the Creed This was one of those Privileges which Thomas Becket said Christ purchased for his Church with his bloud and in the obstinate defence whereof against the King he himself at last lost his life And now to put the matter beyond all doubt I appeal to any man skill'd in the History of those Times whether Thomas Becket opposed the Constitutions of Clarendon to the
death and broke the Oath he had taken to observe them because by them among other things the Bishops were excluded from Iudicature in Cases of Bloud or for the quite contrary reason among others because this Service of the King in his Courts impos'd on them by virtue of their Baronies was look'd upon by him as a violation of the Privileges of the Church and a badge of Ecclesiastical Slavery which by all means he desir'd to cast off And if the latter be the true Reason I leave it to the impartial Reader and even to the Authour of the Letter himself upon second thoughts whether he have not widely mistaken both the Occasion and Meaning of this Law 2. Let us consider the plain Sense of the words according to the true reading of them The Authour of the Letter hath made use of the most imperfect Copy viz. that in Matt. Paris I cannot tell for what reason unless it be that in the last Clause in Iudicio is there left out which is put in in the Copy extant in Gervase and in the Vatican Copy and in several MSS. in all which it runs thus Et sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus usque perveniatur in judicio ad diminutionem membrorum vel ad mortem Now here are two things to be distinguished 1. Something expresly required of the Bishops as to their presence in the King's Courts viz. that they must attend as other Barons and sit together with them and therefore it is expressed twice Et sicut caeteri Barones in the beginning of that Clause and cum Baronibus again after and debent interesse in the middle And can any one soberly think that the meaning of all this is they must not be present in cases of Bloud No the Constitution saith they ought to be present as other Barons and sit with other Barons in the Trials of the King's Courts And yet the Authour of the Letter doth to speak mildly very unfairly represent this Constitution as if it did forbid the Prelats to be at all present in the Iudgments of the King's Courts in Cases of Bloud and that in express words For speaking of the Constitutions of Clarendon he hath this passage And one of these Constitutions was that the Prelats of the Church should not interesse Iudiciis Curie Regis be present at the Iudgments given in the Kings Courts Whereas this Constitution as he himself cites it afterwards runs thus debent interesse Iudiciis Curie Regis quousque c. they ought to be present in the Iudgments of the King's Courts till it come to loss of Members or Life So that this Law expresly says that they ought to be present in the Iudgments of the King's Courts till it come c. And when it comes to loss of Members or Life it doth not say as the Authour of the Letter affirms that they should not be present then nor do the words of the Constitution imply any such thing but only require as I shall evidently make appear their presence so far and when it should come to Sentence leaves them at liberty to withdraw in obedience to the Canons of the Church which they pretended themselves bound in Conscience to observe And this is the true Reason why among the 16 Constitutions of Clarendon whereof 10 were condemned 6 tolerated but none approv'd by Pope Alex. III. this 11. was one of the 6 which escaped with an Hoc toleravit this the Pope was content to tolerate because in the last Clause of it there was regard had to the Canons of the Church Of this misrepresentation of the Constitution under debate though it might have deserved a more severe animadversion I shall say no more because I have no design to provoke the Authour or any body else but onely to convince them 2. Something allowed to the Bishops as peculiar to themselves viz. That when the Court hath proceeded so far in judicio in a particular Trial for before it is Iudiciis in general that Sentence was to be given either as to dismembring or loss of life then they are at liberty but till then they are required As suppose Charles V. had required the Protestant Princes to attend him to Masse as other Princes did onely when the Mass-Bell tinckled they might withdraw would not any reasonable man understand by this that they were obliged to their Attendance till then So it is here the King commands their Attendance till it comes to such a point therefore before it comes thither their presence is plainly required by this Constitution And so in stead of there being a statute-Statute-Law to exclude the Bishops at such Trials there is one to require their presence in judicio in the proceedings of such a Trial till it comes to Sentence All that can be said in this case is that the last Clause is not to be understood of the Sentence but of the Kind or quality of the Cause i. e. they are to be present in the King's Courts till they come to a Cause wherein a man's Life or Members are concerned But that this cannot be the meaning will appear 1. There is a great deal of difference between quousque perveniatur ad judicium mutilationis membrorum vel mortis that might have been understood of a Cause of Bloud and quousque perveniatur in judicio ad mutilationem membrorum vel ad mortem for this supposeth a Trial already begun and the Bishops present so far in it but when it comes to the point of mutilation or death then they have leave to withdraw So that this last Clause must either be understood of Execution which no one can think proper for the King's Courts or for the Sentence given by the Court which is most agreeable 2. The Sense is best understood by the Practice of that Age. For if the meaning of the Constitution had been they must not be present in any Cause of Bloud and the Bishops had all sworn to observe it can we imagine we should find them practising the contrary so soon after And for this I appeal to Petrus Blesensis whose words are so material to this purpose that I shall set them down Principes Sacerdotum Seniores Populi licèt non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis séque ideo immunes à culpa reputant quòd mortis aut truncationis membrorum judÃcium decernentes à pronuntiatione duntaxat executione poenalis sententiae se absentent Whereby it is evident that the Bishops were present at all Debates and gave Votes in Causes of Bloud but they absented themselves from the Sentence and the Execution of it It is true Pet. Blesensis finds fault with them for this But what is that to the Law or to the practice of that Age I do not question but Pet. Blesensis condemned the observation of the other Constitutions of Clarendon as well as this and in
the force of a Law because it may be destroy'd by the Act of the Parties themselves If therefore the Bishops did afterwards act contrary to this Protestation they took away all the force of it 2. The particular nature of this Protestation is such as doth most evidently preserve their Right to be personally present on the account of their Peerage and Baronies and the great design of a Protestation is to preserve a Right notwithstanding some Act which seems to destroy it as thier absenting themselves on the account of the Canons might seem to doe But of this already 3. We are now to consider the third Point Whether on supposition that on the account of the Canon-Law the Bishops had always withdrawn in the time of Popery that had continued in force still since the Reformation I think not upon these Reasons 1. Because the Canon-Law was founded upon a Superstitious fancy viz. that if Clergy-men be present in Causes of Bloud they contract Irregularity ex defectu perfectae Lenitatis as the excellent Canonist Navarr saith because it argues a want of perfect Lenity But if we consider the cases they allow which do not incurre Irregularity and those they do not allow which do incurre it we shall find all this stir in the Canon-Law about this matter to be onely a Superstitious kind of Hypocrisy 1. If a man in Orders gives another man Weapons without which he could not defend himself and by those weapons he maims him that assaulted him this doth not make him irregular but if he kills him it doth and yet the Canons make the case of Dismembring and Death the same 2. It makes a man act against the Law or Nature to prevent Irregularity For they say if it be for the defence of Father or Mother or preventing the ruin of his Country although the Cause be never so just a Clergy-man that dismembers or takes away another's life is irregular 3. If a Clergy-man discovers Treason or accuses another for Treason without a Protestation that he doth not doe it with a design to have him punished he is irregular but if he makes that Protestation although death follows he is not 4. If a Clergy-man be in an Army and perswades the Souldiers to fight manfully and kill as many as they can this doth not make him irregular ny although he beats them if they will not fight but if he happens to kill an enemy himself then he is 5. If he gives a Souldier a Sword or a Gun by which he dispatches his enemies if he did it with a particular intention that he should slay or maim them he is irregular if onely with a general intention that he should overcome he is not This being somewhat a nice Case the Canonists take more then usual pains to prove it And from hence they defend their Priests and Iesuits in the Indies who carry the Cross before their Armies into the Field and encourage them to kill all they can and yet Navarr saith they are so far from being irregular that they are regularissimi as his word is 6. If a man to gain an Indulgence carries a faggot to burn an Heretick if it be with a design to take away his life he is irregular but if he be hanged first or dead before it be thrown into the fire then he is not 7. If a man in Orders helps a Chirurgeon in cutting off a man's Leg he is not irregular but if a man be justly condemned to have his Leg cut off if he then gives any assistence he is irregular because the one is moved out of Mercy and the other out of Justice 8. If the Bishops sit and condemn a man for Heresy and deliver him over to the Secular Power for Execution yet they free this from Irregularity or else the practice of the Inquisition were lost This seems a very difficult Case but the Canonists salve this by saying that the Inquisitours when they deliver them over to the Secular Power do pray that they may not be hurt either Wind or Lim as it appears by the Forms used in the Directorium Inquisitorum And if this be not the height of Hypocrisie let the World judge And therefore this part of the Canon-Law is not consistent with the Sincerity of the Reformation 2. This part of Canon-Law is inconsistent with the King's Power over Ecclesiastical Persons For it supposeth them liable to the penalty of a Law which he hath no cognisance of and derives no force or authority from him which tends to the diminution of the King's Prerogative Royal and therefore it is nulled by the Stat. 25 H. VIII c. 19. I do very much question whether this ever were any part of the canon-Canon-Law of England notwithstanding the Pope's Decretals i. e. whether these Canons ever received confirmation by the Royal Authority either in Synodal Constitutions or elsewhere And it would be a very hard case if our Kings had not the same Privileges which are allow'd in Popish Countries viz. that nothing passes for canon-Canon-Law within their Territories till it pass the examination of the King's Council and approbation by his Authority Thence in France nothing passes without the King's Pareatis nor in Spain or Flanders without the King of Spain's Placet no nor in the Kingdom of Naples without the Royal Exequatur It is well known that the 6. Book of Decretals was not allowed in France because of the quarrel between the King and Boniface VIII and that even the Council of Trent it self was not allowed by Philip II. till it had been strictly examined by the King's Council that nothing might be allowed which tended to the diminution of his Prerogative How then will men justifie the making that a part of the canon-Canon-Law of England which was repugnant to the Rights of the Crown and deprives the King of the Power of taking advice of those of his Subjects whom he hath summon'd for that end 3. The Sanction of this Law is ceased which was Irregularity And some of our most Learned Iudges have declared that is taken away by the Reformation But in case any be of another opinion I shall urge them with this inconveniency viz. that the great Instrument of discovering the Plot falls under Irregularity by it For it is most certain by the Canon-Law that a man in Orders accusing others of Treason without making his due Protestation in Court is Irregular But if this be now thought unreasonable as it is in the person of an Accuser why should it not be so in the case of Iudges And if the Irregularity be taken away then the Sanction is gone and if the Sanction be taken off in a meer positive Law the force of the Law is gone too And therefore this Canon-Law which forbids Clergy-men being present in Capital Cases and giving Votes therein is wholly taken away by the Reformation And we do not find any mention of it for 80 years and more after the Reformation till about the
time of the Earl of Strafford's Trial a Book being printed about the Privilege of Peers wherein this Protestation was mention'd hold was presently taken of it by Men who thought they could not compass their ends without removing the Bishops out of the House and when the Bishops insisted on their Right and could not be heard but at last were willing to salve their Right by Proxies the Lords of the Cabal prevailed with their friends to declare they would use no Proxies themselves and so by that artifice shut the Bishops out of Doors 4. The practice hath been so contrary since the Reformation that I find no manner of regard hath been shewed to it For the Archbishop of Canterbury was the first nominated in the Commission for the Trial of the Queen of Scots as appears by the Commission it self in Camden which is directly contrary to the canon-Canon-Law Some distinguish the Bishops acting by Commission from their being Iudges in Parlament For which there is no manner of Reason with respect to the Canon-Law which is rather more express against any kind of Commissions in Cases of Bloud as appears by the Council of Toledo the Synodal Constitution and the Pope's Decretals And there hath never been any scruple about Divines sitting on the Crown-side as Iustices of the Peace when Sentence of death is pronounced nor in the Ordinary's declaring Legit or Non legit when a man's life depends upon it But which is yet more to our present purpose in the Parlament 22. May 1626. upon the Impeachment of the Earl of Bristol of high Treason 10 Bishops 10 Earls 10 Barons were appointed to examine the Evidence and upon their Report he was sent to the Tower by the whole House All which shews that there hath been no regard had to the force of the Canon-Law in this matter since the Reformation That being a Spirit lay'd long since by the Principles of our Church and it would be strange if some mens zeal against Popery should raise it again CHAP. III. The Precedents on both sides laid down those against the Bishops examined and answered II. I Now come to examine the Precedents and shall proceed therein according to due Order of Time And so the first is taken from the Saxon times viz. from Brompton's Relation about Edward the Confessour's appealing to the Earls and Barons about Earl Godwin's murthering of his Brother Alfred Here we see saith the Authour of the Letter it was onely ad Comites Barones that he appealed and they were onely to judge of it and not Bishops or Prelates I have 2 things to answer to this Precedent 1. That we have great reason to suspect the truth of it 2. That if it were true we have no reason to suspect the Bishops to be excluded 1. For the truth of the Story That there is great reason to suspect it appears in that it is the single relation of Brompton against the consent of the other Historians and some of them much ancienter and nearer to that time who mention K. Edward's charging Earl Godwin with the Death of his Brother not in Parlament but as they were at Table together at Winchester upon the occasion of a saying of Earl Godwin's upon the King 's Cup-bearer's stumbling with one foot and recovering with another See saith he how one Brother helps another Upon which Matt. Westminster Knighton and others say that the King charged him about the Death of his Brother Alfred Whatever the occasion was our best Historians of that time Malmsbury and Ingulphus say it was at an Entertainment at Winchester and that Earl Godwin died upon the place being choaked as they say with a Morsel of Bread he took with a great Execration upon himself if he were not innocent Knighton saith he was question'd for the Death of his Brother by Hardecnute and that he cleared himself by saying he did nothing but by the King's command But suppose Edward to be never so weak a Prince is it likely this should be done by an Appeal in Parlament by the King himself and that afterwards by the Judgment of his Earls and Barons he and his Sons and 12 Kinsmen should make the King amends by as much Gold and Silver as they could carry between their Arms Besides Brompton saith this was done by Godwin when he returned to England after King Edward's coming to the Throne whereas Malmsbury shews that it was through Earl Godwin's interest that ever he came to it and so the marrying his Daughter would make any one believe 2. But suppose it true What reason is there to conclude the Bishops not present who were never absent through all the Saxon times after Ethelbert's Conversion in any publick Councils of the Nation They had no Canon then to be afraid of for that of the Council of Toledo was brought in by Lanfranc And it was not against the practice of those Times For if we believe as true a Story as this of Brompton the Archbishop of Canterbury himself condemned King Edward's Mother Emma to a Trial by hot Irons which was present death without a Miracle and this it is said was done by the consent of the King and the Bishops which is as good a Precedent against Temporal Lords as the other is against the Bishops However this is certain that the Bishops then sate in the County-Court at all Iudgments And whereas the Authour of the Letter would avoid this by saying that no Capital Crimes were tried there the contrary is most certainly true For the Laws of King Edward as they were set forth by H. I. c. 31. mention the Capitalia Placita that were there held And the Authour of the MS. Life of S. Cuthbert saith that when one of Earl Godwin's Sons was Earl of Northumberland and one Hamel a very bad man was imprison'd by him his Friends interceded earnestly with him nè capite plecteretur that he should not lose his head By which it appears that Cases Capital were heard and determin'd in those Courts the Bishop and Earl sitting together in Iudgment And here the Point is plainly gain'd because the Authour of the Letter grants that the Bishops sate in all Iudgments in the County-Courts and then puts the matter upon this Issue whether Capital Crimes were there tried or not which I have clearly proved that they were But I shall make another advantage of this against the Authour of the Peerage c. for it plainly overthrows that confident Assertion of his That without doubt there was a Negative Custom that the Prelates should not exercise Iurisdiction in Capital Cases so ancient as to be part of the Fundamental Contract of the Nation It were a thousand pities that such well-sounding words so handsomely put together should signifie nothing I dare not be so positive as he is but am of opinion that if he could be perswaded to produce this Fundamental Contract of the Nation which I perceive he hath lying by him
Answer was given yet both were condemned to die The Bishop of Norwich was charged with several Miscarriages and Misdemeanours saith he why might not the Bishops be present at this Trial To that he saith he was charged with one Capital Crime viz. betraying Graveling to the French but he confesseth he cleared himself of this before they came to Iudgment and yet he would have the Bishops excluded at this Iudgment and that of Sir William Elmham Sir Thomas Trivet and others but confesses they were present at the Trial and Iudgment of Mich. de la Pool Let us then see what kind of Trial this was He was impeached in the name of the Commons of England and 6 Articles were exhibited against him The main were concerning defrauding the King and misimploying the Aids granted to the King last Parlament whereby much mischief happen'd to the Kingdom as may appear by the Rolls and the Articles printed in Knighton Upon these Articles the Record saith that the Commons prayed that Iudgment of Death might pass upon him as it did upon Sir William de Thorp for receiving 20 li. by way of Bribery And yet this Iudgment of Sir William de Thorp is one of the Precedents against the Bishops being present when he allows that they were present at the whole Trial of this Mich. de la Pool when a great Minister of State was so hotly charged by the Commons for offences of so great a nature and which in their Judgment deserved no less then Death From whence it follows by his own confession that the Bishops may be present when the Ministers of State are impeached by the Commons of such Crimes which in their Iudgment deserve no less then Death 2. In Acts of Attainder when the Houses proceed in a Legislative way he grants the Bishops may be present and yet if some of his Precedents signifie any thing they prove they ought not to be present at the passing of them As 1. In the Case of Roger Mortimer and others accused and tried in Parlament 4 Ed. III. He confesseth the Roll cannot be read and therefore referrs to 28 Ed. III. where Roger of Wigmore desires that the Attainder may be examin'd which was reversed by Act of Parlament and therefore we may justly suppose the Iudgment given against him was ratified in Parlament And some of our Historians say he was condemned judicio Parlamenti And in the Petition of Roger Wigmore he prays that the said Statute and Iudgment may be reversed and annulled If therefore the Prelats could not be present here then they are not to be present in the Legislative way If they were present in Acts of Attainder then this general Negative way of arguing proves nothing for then the Bishops were comprehended under the name of Peers which without any Reason he saith the Bishops cannot pretend to be when it is notorious that they challenged it in Parlament 11 R. II. and it was then allowed as well as their Protestation 2. In the case of the Murther of Iohn Imperial 3 R. II. an Act of Parlament passed to make it Treason and he proves the Bishops had no Vote in it nor were present at the preparing it And yet he confesses that the Bishops have a right to sit in all Acts of Attainder because they sit then in their Legislative capacity Therefore these Negative Precedents prove nothing 2. The insufficiency of these Negative Precedents appears by this that we can make it appear by good Testimonies that the Bishops have been often comprehended under the general Titles of Grantz Peers and Lords of Parlament without any express mention made of them And because the great force of many of his Testimonies lies wholly in this that the Bishops are not comprehended under the names of Grantz Seigneurs and Peers I shall endeavour to make it clear beyond exception that if the Precedents must be determined by the general words all the advantage lies on the Bishops side It is certain that in elder times the Baronagium Anglie did take in all the Lords of Parlament both Spiritual and Temporal But I betake my self to the expressions used in the Records and because the matter of the debate is confined within the times of Ed. II. and IV. I shall take notice of the language of Parlament within that time reserving that of their Peerage to the proper place for it I begin as the Authour of the Letter doth with 4 Edw. III. and in that year n. 6. the Record runs thus Et est assentu accorde per nostre Seigneur le Roi tout le Grantz en plcyn Parlement where a Law was passed concerning Trial by Peers and in the passing of a Law our Authour allows the Bishops to be present But it is more plain n. 12. Accorde per nostre Seigneur le Roi les Grantz de mesinme le Parlement It is agreed by the King and the Great ones in Parlament But that the Bishops are comprehended under theseGrantzis evident for it is there said that the Petitions of Edmund Earl of Kent and Margaret Countess of Kent to which that Agreement referrs were read before the King the Prelats the Counts the Barons and other Grantz of the Parlament In the same year n. 14. we meet with les Preres des Prielatz autres Grantz the Petition of the Bishops and other Great men and then it follows Nostre Seigneur le Roi en pleyn Parlement per assent accord prieres conseal des ditz Prelatz autres Grantz Our Lord the King in full Parlament by the assent accord petition and advice of the said Prelats and other Grantz Which shews that they are some of the Grantz of Parlament 5 Ed. III. n. 3. Touz les Prelatz autres Grantz n. 13. Grantz in general is used in the Debate between the Abbot of Crowland and Sir Thomas Wake and n. 15. le Roi as autres Grantz en pleyn Parlement n. 16. Item fu accorde per le Roi touz le Grantz en mesme le Parlement auxibien per Prelatz come per autres It was agreed by the King and the Great men of the Parlament as well by the Prelats as others Nothing can be plainer then that here the Bishops are called Grantz as well as the other Lords of Parlament 6 Ed. III. n. 1. Devant nostre Seigneur le Roi touz le Prelatz autres Grantz The Articles were read before the King the Prelats and other Great men If the Bishops had not been comprehended under Grantz the Record would have onely used Grantz and not autres Grantz But the same expression is again used n. 5. In the second part of the Rolls of that year n. 1. we find three several ways of expressing the Persons then present the first les Prelatz Countes Baronns autres Grantz du Parlement the next is queux Prelatz autres Grantz the third is touz le Grantz en mesme
contrary For it expresly saith that the Orders for keeping of the Peace agreed on by the Committee of Lords were read before the King the Bishops the Knights of Counties and the Commons and did please them all per nostre Seigneur le Roi Prelatz Countes Baronns autres Grantz auxint per les Chivalers de Countez gentz de Commun furent pleynment assentuz accordez And the same is immediately said of the Censures brought in by the Bishops Which made me extremely wonder at his saying that the Bishops returned no more whereas it is very plain they did not onely return but the Orders were read before them and they did give their assent to the Passing of them In the Parlament 11 R. II. that it was onely a voluntary withdrawing I prove from the concessions of the Authour of the Letter viz. that they might be present in all Acts of Attainder For it is evident from the printed Statutes that they proceeded by way of Attainder against the Ministers of State and therefore they might have been present if they pleased upon the Authour 's own grounds How is it then possible for him to understand de Iure non possumus in their Protestation 11 R. II. of the Law of the Land when he grants that in all Acts of Attainder they may de jure be present and give their Votes 2. When they did solemnly withdraw they took care to preserve their Right two ways 1. by Protestation 2. by Proxie 1. By Protestation saving their Right which was receiv'd by the House and enter'd of which before The late Authour of the Peerage and Iurisdiction of the Lords Spiritual will not allow the Protestation to be an argument of any Right neither saith he doth the permission or allowance of any Protestation yield the Right which the Protester is desirous to save but onely saves the Right which he had before if he had any Whereas the Authour of the Letter makes it as good as a Law being entred in the Iournal-Book that such a thing was agreed by the King and the two Houses I will not deny that the former Authour speaks more reasonably in this matter when he saith that the utmost a Protestation can doe is to anticipate a Conclusion or Estoppell i.e. to provide that the doing of any such Act as is contained in the Protestation shall not be construed to the prejudice of the Party so as to bar or conclude him from claiming afterwards that which in truth is his Right It is true this Protestation passed with greater solemnity then usually for it was with the consent of the King and both Houses but however it retained the nature of a Protestation And there was no distinction at that time between a Iournal-Book and the Rolls of Parlament For a good Authour assures us the Iournals of the Vpper House began 1 H. VIII and therefore the Authour of the Peerage c. deserved no such severe reproof on that account But this is all I plead for viz. that this Protestation was a Salvo to their Right which meeting with no contest or opposition in the Houses but passing with unanimous consent is a certain argument the Houses did not think there was any Law to exclude them And therefore the Authour of the Iudicature very well saith That had it not been for the canon-Canon-Law for which he referrs to the Synodal Constitutions at Westminster 21 H. II. which is onely reviving the Council of Toledo's Canon they might have been present both by Common Law and by the Law of God 2. By Proxie or one common Procurator to appear in Parlament for them and to vote in the name of the whole Body This was receiv'd and allow'd 21 R. II. upon the Petition of the House of Commons because Iudgments had been reversed without their concurrence Against this the Authour of the Letter objects many things which are easily answer'd 1. That hence it appears they could not be personally present On the contrary from hence it follows they had a Parlamentary Right to be present although they said by canon-Canon-Law they could not 2. That it was never practised but in this one Parlament That is strange when himself confesseth that it passed for good Law 10 Ed. IV. Term. Pasch. n. 35. and the same is cited by Stamford Placit Cor. l. 3. f. 153. To which judgment of the Lawyers and the greatest of their time for Littleton was then Judge 10 Ed. IV. we have a very extraordinary Answer called Error Temporis which will equally make void the Law or Iudgment of any Age. But is it possible that should pass for Law 10 Ed. IV. which was never practised but once 21 R. II. and the contrary practice had been onely allowed all the intermediate times Thus a short answer may be given to the Constitution of Clarendon it was Error Temporis to the allowing the Protestation 11 R. II. it was Error Temporis and so on to the end of the Chapter If there were any Error Temporis in this matter it lay in this that they took this Precedent 21 R. II. for a sufficient Ground that the Bishops should onely appear by Proxy in such Cases whereas the canon-Canon-Law being taken away since the Reformation as to these matters their Right of Personal appearing doth return to them of course 3. That this Parlament was repealed 1 H. IV. But this I have answer'd already from his own words wherein he acknowledges him to be an Vsurper and consequently the Repeal not made by a legal Parlament And this Repeal was again taken off 1 Ed. IV. 4. That it is not at all Parlamentary for one or two men to represent a whole Body The consequence then is that they ought to enjoy their own Personal Right All that we urge from hence is that the Bishops kept up their Right still by their Proxies when they thought the Canons would not allow voting in their own Persons IV. Some of his Precedents do prove that after the Protestations and Proxies they did assert their own Personal Right and were present both at Examinations and at the whole Proceedings 1. At Examinations As in the Case of Sir William Rickill 1 H. IV. who was brought to Parlament before the King and the two Houses the Lords Spiritual and Temporal and the Commons then assembled together And he grants the Bishops were present at his Examination 2. At the whole Proceedings 28 H. VI. where he confesseth the Bishops were not onely personally present but did act and bear a principal part in aIudicialproceeding in Parlament in a Case that was in it self Capital viz. of William de la Pole Duke of Suffolk Which is very fully related by the Authour and needs no repetition All that he hath to say to this is that the whole Proceedings were irregular and not to be drawn into Precedent Whereas a great Lawyer in his time Sir E. C. made use of
the Examination of a Case Capital What the importance of this phrase of full Parlament is will best appear by the use of it in the Records of that time 4 Ed. III. n. 6. Et est assentu accorde per nostre Seigneur le Roi touz les Grantz en pleyn Parlement Where it was agreed that the procedings at that time by the Lords against those who were not Peers should not be drawn into consequence and that the Peers should be charged onely to try Peers Which hath all the formality of an Act of Parlament and therefore all the Estates were present n. 8. Accorde est per nostre Seigneur le Roi son Conseil en pleyn Parlement Which was an Act of Pardon concerning those who followed the Earl of Lancaster 5 Ed. III. n. 10. we have the particular mention of the Bishops as some of those who do make a full Parlament Accorde est per nostre Seigneur le Roi Prelatz Countes Barons autres Grantz du Roialm en pleyn Parlement and n. 17. En pleyn Parlement si prierent les Prelatz Countes Barons autres Grantz de mesme le Parlement a nostre Seigneur le Roi c. 6 Ed. III. n. 5. the Archbishop of Canterbury made his Oration en pleyn Parlement which is explained by en la presence nostre Seigneur le Roi de touz les Prelatz autres Grantz n. 9. Si est accorde assentu per touz en pleyn Parlement who those were we are told before in the same number viz. les Prelatz Countes Baronns touz les autres somons a mesme le Parlement Which is the clearest explication of full Parlament in the presence of all those who were summon'd to Parlament From whence it follows that where a full Parlament was mention'd at that time the Bishops were certainly present and consequently did assist at the Trial of Thomas Lord Berkely who appeared before the King in full Parlament as Nich. de Segrave did 33 Ed. I. and there the Bishops are expresly mention'd as present as appears by what hath been said before concerning his Case 5 H. IV. Henry Hotspur Son to the Earl of Northumberland was declared a Traitour by the King and Lords in full Parlament and the same day the Father was upon examination acquitted of Treason by the Peers It is not said that this was done in full Parlament as the other was but there are several circumstances which make it very probable the Bishops were then present 1. When the Earl of Northumberland took his Oath of Fidelity to the King he did it saith the Record upon the Cross of the Archbishop which was to be carried before him if he went out of the House 2. The Archbishop of Canterbury pray'd the King that forasmuch as himself and other Bishops were suspected to be in Piercie's Conspiracy that the Earl might upon his Oath declare the truth who thereupon did clear them all Which shews that the Archbishop was then present in the House And for the same reason that he was present we may justly suppose the other Bishops to have been so too 3. The Earl of Northumberland beseeched the Lords and Earls and Commoners that if he brake this Oath they would intercede no more with the King for him Now the better to understand this we are to consider that H. IV. takes notice in his declaration upon the Rebellion of Sir Henry Piercy that the Earl of Northumberland and his Son gave out that they could have no access to the King but by the Mediation of the Bishops and Earls and therefore did beseech them to intercede with the King for them It is not then probable that those should be now left out when the words are large enough to comprehend them and no one circumstance is brought to exclude them For that general one of their not being Peers will be fully refuted afterwards But that which puts this out of dispute is 4. that the Record saith n. 17. the Commons not onely gave the King thanks for the pardon of the Earl of Northumberland but the Lords Spiritual and Temporal in these remarkable words Et auâ—i mesmes les CoÌ„es remercierment les Seigneurs Espirituelx Temporelx de lour bon droiturell judgment quils avoient fait come Piers du Parlement And likewise the Commons gave thanks to the Lords Spiritual and Temporal for the good and right Iudgment which they had given in this case as Peers of Parlament Which is a clear Precedent of the Bishops judging in a Capital Case and that as Peers 2 H. VI. n. 9. Iohn Lord Talbott had accused Iames Boteler Earl of Ormond of sundry Treasons before the King and his great Council and after before Iohn Duke of Bedford Constable of England The King takes advice of his Parlament about it and then it is expresly said in the Record De avisamento assensit Dominorum Spiritualium Temporalium ac Communitatis Regni Anglie in eodem Parlamento existent ' facta fuit quedam abolitio delationis nuntiationis detectionis predict c. Here the King adviseth with the Lords Spiritual in an accusation of Treason and therefore they must be present in the debates concerning it I leave now any considerate person to judge impartially on which side the Right lies For on the one side 1. There is the Constitution of Clarendon interpreted by H. II. and the Bishops at Northampton 2. A Protestation of their Right enter'd and allowed by King Lords and Commons 11 R. II. 3. A Reversing of Iudgments owned by Parlament for want of their presence 21 R. II. 4. A Preserving of their Right by Proxie when they thought their Personal attendance contrary to the Canons 5. A Bar to a total discontinuance of their personal Right by an allowed Precedent 28 H. VI. 6. A Restoring them to their former Right by removing of the force of the Canon-Law upon the Reformation 7. No one Law or Precedent produced for excluding them even in those Times when they thought the Canons did forbid their presence 8. Several Precedents upon Record wherein they were present at Examinations and Debates about Cases Capital On the other side 1. The Precedents are General and Negative 2. Or relating to such Cases wherein they are allowed to be present 3. Or of Iudgments condemned as erroneous by Parlament 4. Or of voluntary Withdrawing with Protestation of their Right and making of Proxies 5. Or of not being present at the passing of Iudgment out of regard to the canon-Canon-Law And now on which side the Right lies let the Authour of the Letter himself judge CHAP. IV. The Peerage of the Bishops cleared how far they make a third Estate in Parlament Objections against it answered THERE remain Two things to be considered which are put in by way of Postscript by the Authour of the Letter the one concerns the Peerage of the Bishops the other their Being a Third Estate in Parlament 1.
the Prelats Counts and Barons that the Peers of the Realm may not be judged but in Parlament per lour Piers and by their Peers and after it follows that they may not lose their Temporalties Lands Goods and Chattels c. Who were capable of losing their Temporalties but the Prelats Therefore this Law must respect them as well as others As farther appears not onely by the Occasion but by the Consequent of it For it follows n. 8. that the Archbishop of Canterbury was admitted into the King's Presence and to answer for himself in Parlamentdevant les Piers before his Peers which the King granted So that the Rolls of Parlament put this matter beyond contradiction In 21 R. II. Thomas Arundel Archbishop of Canterbury was impeached of High Treason before the King and Lords in Parlament The King ' s answer was That forasmuch as this Impeachment did concern so high a Person Pier de son Roialm it is in the Record but left out in the Abridgment and a Peer of the Realm the King would be advised But soon after he was condemned for Treason by the House theProxie of the Bishops Sir Tho. Percy giving his Vote The force of this doth not lie barely in his being impeached before the House of Peers in time of Parlament but that the King called him in his Answer a Peer of the Realm And because two Laws were already passed the one that Peers were to try none but Peers 4 Ed. III. n. 6. the other that Peers were to be tried onely by their Peers 15 Ed. III. n. 7. the former of these the Authour of the Iurisdiction of the House of Peers asserted one well known to the Authour of the Letter would have onely looked on as a Temporary Order of the House But our greatest Lawyers are of another opinion And an eminent Lawyer still living urged this as an Act of Parlament because it is said that the King in full Parlament assented to it and he added that the words are both Affirmative and Negative they shall not be bound or charged to try any other then Peers but be thereof discharged and that therein they declare it to be against Law for them to exercise Iurisdiction on those who were not their Peers From whence it follows that since Stratford and Arundel Archbishops of Canterbury were allowed to be tried by the House of Peers without Impeachment from the Commons they were looked on as Peers by the whole House The latter Act the same Authour cannot deny to be a binding Law but he hath a strange fetch to avoid the force of it viz. that this Law was made with respect to the Case of Roger Mortimer 4 Ed. III. and not to the Case of Stratford then in Agitation which is without all colour of Reason For the Case then was of a different nature viz. about the Peers trying those who were not Peers as Sir Simon Bereford c but here the case was whether Peers should be tried by any others then their Peers and the King granted they should not Now upon this Stratford was allowed to be tried by his Peers in Parlament and therefore this Trial upon these Acts is an invincible Argument of the Peerage of the Bishops In 28 H. VI. when William de la Pole Duke of Suffolk waved being tried by his Peers and submitted to the King's Mercy the Record saith as the Authour of the Letter himself confesseth that Viscount Beaumont on the behalf of the LordsSpiritualand Temporal and by their advice assent and desire moved the King that a Protestation might be enter'd in the Parlament-Roll that this should not be nor turn in prejudice nor derogation of them their Heirs ne of their Successours in time coming but that they may have and enjoy their Liberties and Freedoms as largely as ever their Ancestours and Predecessours had or enjoy'd them before this time Which Sir R. Cotton more briefly expresseth n. 52. that neither they nor their Heirs should by this example be barred of their Peerage The Authour of the Letter more fully puts in Successours as well as Heirs for this Protestation was made in behalf of the Lords Spiritual as well as Temporal But very unfairly leaves out the most material words in the Record viz. after Freedoms in case of their Peerage And I appeal to the Authour himself whether these words be not in the Record and with what ingenuity they are left out I cannot understand I do not charge the Authour of the Letter himself with this but whosoever searched the Records for him hath dealt very unfaithfully with him And I suppose if he had seen this passage himself he would never have so peremptorily denied the Peerage of the Bishops nor asserted with so much assurance that they are onely to be tried by Commoners and that it was always so and never otherwise 2. Suppose the Bishops have been tried by Commoners out of Parlament this doth not take away their Right of Peerage in Parlament For all our dispute is concerning the Right of their Peerage in Parlament and if that be allowed we are not to dispute concerning the difference that in some respects may arise by Custom or practice of Common Law between Peers by Descent and Peers by Tenure in Right of their Baronies And therefore the Authour of the Peerage of the Lords Spiritual might have spared all the needless pains he takes about this for we do not contend that they have an Inheritable Peerage but that they are Peers in Parlament having a Right to sit and judge there by virtue of their Baronies But from hence he undertakes to prove that by Magna Charta they cannot be Iudges of such who are ennobled in Bloud This comes home to our present business and therefore must be considered 1. He saith that he who hath onely a Praedial or Feudal and not Personal Peerage can have no Iurisdiction but such as is suitable to the nature of his Peerage and therefore can onely extend to matters of property and possession and not to matters of Bloud But that this is a very trifling and ill-consider'd argument appears by this that he grants a Lord Keeper Lord Privy Seal Lord Treasurer to be Peers by their Offices for as he speaks after Regradation their Peerage is ended and he will not deny that these may sit as Iudges in Capital Cases although they be Peers onely by their Offices Those that are Peers in Parlament have Right to judge in all Cases that belong to the Iudicature of Parlament 2. He saith that the Reason of Magna Charta is that the Iudges and Prisoner may be under the same Circumstances But this kind of arguing as well excludes a Lord Keeper who is no Baron as a Bishop and supposes that mens capacity for Judgment depends upon perfect equality of Circumstances whereas Knowledge and Integrity go farther towards constituting one that is a Peer but in one respect a just
Rochester in H. VIII ' s time which is the great Precedent in the Law-Books 3. The method of Proceeding as to the Trial of Bishops by Common Iuries while the Pope's Power continued in England is not so clear that any forcible Argument can be drawn from thence Because the Bishops then looked on themselves as having no Peers out of Parlament in point of Judgment but Bishops As in the famous Case of Adam Bishop of Hereford under Edw. II. who was rescued from the King's Bench by his Brethren the Bishops because they looked on his appearing there as a Violation of the Liberties of the Church I do not go about to defend these Proceedings but I am sure the Authour of the Peerage c. very much misrepresents this business for he makes it as if the Bishop were legally convicted in Court by a common Iury and that after conviction he was deliver'd to the Archbishop to the intent as he supposes that he should be degraded Whereas in truth the Bishops carried him out of the Court without his giving any Answer to the Endictment and when he was absent the King commanded the Iury to bring in their Verdict and without ever being heard to make any Defence for himself they found him guilty in all the Articles laid to his Charge That Authour very freely bestows the terms of Impudence on the Bishops of that time and Ignorance on those who go about to defend them but I desire to know whether of these two makes a man thus misrepresent a matter of fact For it was so far from being true that upon Conviction he was deliver'd to the Archbishop to be degraded that he never appeared in Court after but continued under the Archbishop's care till after a while he fully reconciled him to the King notwithstanding the Jury found him guilty of Treason I desire to be informed whether we are to understand Magna Charta by such a Trial as this Whether he were judged by his Peers I know not but I am sure he was not by the Law of the Land which I think is as good a part of Magna Charta as the other And this our Historians tell us is the First Instance of any Trial of this kind of any Bishop in England which hath too much of force and violence in it to be a good Interpreter of Magna Charta The Second Precedent is verbatim out of Mr. Selden concerning Iohn de Isle and the Bishop of Ely his Brother which concerns such matters wherein himself confesses the Privilegium Clericale was allowed and the Record saith the Archbishop entering his plea that he was to be deliver'd to him as a member of his Church he was accordingly deliver'd after the Jury had given in their Verdict Which shews indeed the good will that was then used to take away even the allowed Privileges of the Clergy by common Juries And this is another stout Interpreter of Magna Charta when Bracton Briton Fleta Stat. West 1. Articuli Cleri c. 15. are confessed even by Sir Edw. Coke to be so clear in the Clergie's behalf in these matters The Third Precedent which is likewise out of the same Authour is of Thomas Merks Bishop of Carlisle who for his fidelity to R. II. and the true Heirs of the Crown against the Usurpation of H. IV. was found guilty of Treason by a common Iury. But Mr. Selden is so ingenuous as to take notice that the Writ directed to the Justices had in it a Non obstante to a Statute lately made at Westminster Licèt in Stat. apud Westm. nuper edito inter caetera continetur quòd nullus Archiep. nec Episcopus coram Iusticiariis nostris occasione alicujus criminis impetatur absque speciali praecepto nostro quousque c. Which was read in Court but the Judges urging that the Liberties of the Church did not extend to high Treason then it is said he did ponere se super Patriam just as Thomas Lord Berkely did 4 Ed. III. This is the onely Precedent that proves that a Bishop before the time of H. VIII did put himself upon a common Iury and yet we find as good a Precedent of this sort concerning an allowed Peer of the Realm And whether this single Precedent be sufficient to interpret Magna Charta against the plain sense of the words and to make a constant practice I leave any rational man to judge But if this were yielded in Cases of high Treason wherein the Privilege of Clergy holds not especially since the Statutes 25 Ed. III. c. 4. and 4 H. IV. c. 2 3. Mr. Selden tells them that there is no consequence from hence because they are not to be tried by Peers therefore they are not Peers since the Common Law may limit this Privilege of Peers in one particular case which may hold in all others As it is no diminution to the Peerage of the Temporal Lords to be tried by a common Iury at the Suit of the Party I conclude the Answer to this Argument as Mr. Camden doth his Discourse about this subject who having proved that the Bishops do enjoy all other Privileges of Peers except this of being tried by them which he seems to attribute to a kind of Revenge upon them for pleading such exemptions by the Canon-Law after all he leaves it to the Lawyers to determine whether this be juris explorati The meaning of which I am sure is not as the Authour of the Letter expresseth it that it was always so and never otherwise But the great difficulty to some is that a Praedial or Feudal Barony doth not ennoble the Bloud and therefore can give no Right of Peerage Whereas it is well known that all the Baronies of England were such from the Conquerour's time till after the Barons Wars when for Reason of State it was thought necessary to make the Nobility more dependant on the Crown And all that were Barons were Pares i. e. Peers So du Fresn quotes an old Poem of the Common Laws of England Barons nous appellons les Piers del Realm In France from whence our Baronies first came Ecclesiastical Persons with praedial Baronies are thought as capable of Peerage as any For there at first all the Barones Regni who both in France and England were the same with the Barones Regis however some of late have distinguished them sate in the great Council and all publick Affairs passed through them and they were judged by their own Order and these were called Pares Regni among whom the Bishops were comprehended At last Lewis VII A. D. 1179. as most Authours agree chose Twelve out of the great number of the Peers of France of which half the number were Bishops who held feudal Baronies of the King and the Archbishop of Rheims is the First of the whole Number And because these enjoy'd greater Privileges then other Peers their number was increased by particular Favour but the ancient
and fundamental Policy of that is the same with England and he that believed the Subjects made the Three Estates there could never believe the King to be one of them here The next Authority is of King Charles I. in his Answer to the 19 Propositions Iune 2. 1642. wherein he tells the two Houses that neither one Estate should transact what is proper for two nor two what is proper for three To which I answer that the Penner of that Answer was so intent upon the main business viz. that the two Houses could doe nothing without the King that he did not go about to dispute this matter with them whether the King were one of the Three Estates or not but taking their supposition for granted he shews that they could have no Authority to act without the King's concurrence But the unwary Concessions in that Answer were found of dangerous consequence afterwards when the King's enemies framed the Political Catechism out of them which is lately reprinted no doubt for the good of the People In 2 H. IV. n. 32. he makes the House of Commons to declare to the King and Lords that the Three Estates of the Parlament are the King the Lords Spiritual and Temporal Whereas the truth of that matter is this A difference had happen'd in the House of Lords between the Earl of Rutland and Lord Fitz-Walter whereupon the House of Commons go up to the King and the Lords and having it seems an Eloquent Speaker who ventured upon dangerous Metaphors he makes bold with the Similitude of the Trinity because that would help him to perswade them to Vnity but if he had left the King out he might have been suspected to have set up an Independent Power in the Three Estates therefore lest he should lose his Similitude which goes a great way with an eloquent man he strains another point and draws the King into his Trinity And is such an expression to be mention'd in comparison with the express Declaration but the year before 1 H. IV. of both Houses concerning the Three Estates in Parlament Next to this Similitude that of Stephen Gardiner ought to be mention'd who compared Faith Hope and Charity concurring to Iustification to the concurrence of the Three Estates in Parlament i.e. the King and two Houses to the making of Laws But I wonder the Authour of the Letter who expresseth so much dislike of his Divinity would take his Iudgment in Politicks But this notion of making the King one of the Three Estates how valuable soever it be to some men is it seems onely to be met with in some grave ancient Similitudes But of what Authority these are against the constant sense of Parlaments so fully declared I leave any man of understanding to judge For the judgment of eminent Lawyers he quotes but one in King Iames his time viz. Finch in his Book of Law l. 2. ch 1. who doth indeed in the words quoted by him make the King Lords and Commons to be the Three Estates But I can hardly imagine how a learned Lawyer could fall into such a gross mistake unless the Modus tenendi Parlamentum should give the occasion to it which was accounted no blind MS. in those days but a very great Treasure as appears by Sir E. Coke who cites it on all occasions And very few Lawyers had the judgment in Antiquity which Mr. Selden had who first discovered the just Age and Value of that MS. This Authour indeed towards the conclusion of his Treatise makes the King the first of the Estates but then he makes Six Estates in Parlament or Degrees as he calls them and delivers this for good doctrine at the very end of his Treatise that if any one of all these be summon'd and do not appear yet with him it is notwithstanding a full Parlament nay he expresly saith the King may hold a Parlament without a House of Lords But there are so many other such Positions discover'd by others in that Treatise that I need to say no more of it And as to this point of the King 's being one of the Estates in Parlament Sir Ed. Coke who otherwise too much admired that Treatise declares against it in the very beginning of his Treatise of the Parlament This Court saith he consisteth of the King's Majesty sitting there as in his Royal Politick capacity and of the Three Estates of the Realm viz. of the Lords Spiritual Archbishops and Bishops the Lords Temporal and the Commons of the Realm And however the Authour of the Letter may slight Mr. Selden's Judgment in this matter yet these two may be sufficient to weigh down the Scales against any one Lawyer 's Authority to the contrary especially since they were never suspected I dare say for any partiality towards the Clergy 3. But the Authour of the Letter thinks to carry this point by meer strength of Reason We must therefore diligently consider the force of his Arguments 1. If Bishops were one of the Estates in Parlament Reason would they should vote by themselves separately from other Lords which would make another Estate But they do not onely not vote apart by themselves the whole Body of them together but that Body is divided and separated within it self one part from another If both Houses ever sate together as some imagine and as they do in a neighbour Kingdom this way of Reasoning will make but one Estate in Parlament all that time But to give a clear answer to this objection I distinguish two things in the Bishops their Spiritual Capacity by which they represent and their Civil Capacity as Barons in which they vote according to the Rules of the House For the manner of giving their Votes is a thing under the Regulation of the House and depends upon Custom but their Spiritual Capacity as Bishops in which they represent doth not And the Reason of their sitting together with other Lords is upon the account of their Writs of Summons which as Mr. Selden confesseth ever since the latter end of Edw. III. hath been for the Bishops cum ceteris Prelatis Magnatibus Proceribus colloquium habere tractatum and therefore they are bound to sit together in the same place with the Temporal Lords or else they cannot advise and confer together And I leave the Authour of the Letter to consider whether his Reason or the King 's Writ ought to take place 2. If the Bishops were a Third Estate they must have a Negative voice to all that passeth there But the Bishops are intermingled with the Temporal Lords in making up the Majority as a part of it Since I have evidently proved the Clergy to be one of the Three Estates in Parlament if he be sure that every Estate ought to have a Negative voice then I am sure that this Objection lies more upon him to answer then upon the Bishops But to prevent any new disputes I shall return this Answer to
it Since it is agreed on both sides that the Bishops do sit in the House as Temporal Barons and in that respect do make up the Majority of Votes in the House of Lords it could not but seem unreasonable that they who voted as Barons in the House should have a Negative voice in another capacity and by this means they lost their distinct Negative voice because by the King's Writs they were to sit and vote with the Temporal Lords Just as it is in the Diets of Germany Since the distribution of that Assembly of the Estates of the Empire into the several Chambers the Prelates vote according to their Ranks the Three Electors in the Electoral College the other Bishops that are Princes of the Empire in the Chamber of Princes and those who are not Princes with the Counts and Barons So that here the Votes of the Bishops are mingled with the rest without a distinct Negative voice and yet no one questions but the Bishops do represent a distinct Estate of the Empire 3. This is a disparagement to the House of Lords that another Estate must be joyned with them to make up their Negative No more then to the Princes of the Empire to have the Bishops joyned with them when the Imperial Cities vote by themselves But what disparagement is this for those to make up the Majority of the Votes of the Baronage who sit there as Barons by Tenure by a Right as ancient as Will. the Conquerour by the Authour 's own confession 4. If the Bishops make a Third Estate then a Parlament could not be held without them But a Parlament hath sate excluso Clero as that of Ed. I and that it may do so in point of Law appears by the Resolution of the Iudges in Keilway's Reports because the Bishops sit in Parlament by reason of their Baronies This is the great Objection to which I shall give a full Answer 1. It is dangerous arguing from extraordinary Cases to the excluding any one of the Estates of the Kingdom from being represented in Parlament because no one can tell where this way of arguing will stop If a Parlament may be good without one Estate why not without another And we have seen an House of Lords excluded as unnecessary upon such kind of arguments because they sit in their own Persons and represent none but themselves If we once depart from the ancient and legal Constitution of Parlaments there will be no end of Alterations Every new Modeller of Government hath something to offer that looks like Reason at least to those whose interest it is to carry it on And if no Precedents can be found then they appeal to a certain invisible thing called the Fundamental Contract of the Nation which being a thing no where to be found may signify what any one pleaseth Suppose one extraordinary case happens through the disorder of Times that the Clergy have been left out in a Parlament what doth this signify towards altering the legal Constitution and constant Course of Parlaments which from the beginning of Parlaments in this Nation have had the Estate of the Clergy represented in them as sufficiently appears by Mr. Petyt's learned Preface to his late Discourse of the ancient Right of the Commons The first after King Ethelbert's Conversion was Commune Concilium tam Cleri quà m Populi That under Ina was omnium Episcoporum Principum Procerum Comitum omnium Sapientum Seniorum Populorum totius Regni That under Edmund the Elder was Concilium magnum Episcoporum Abbatum Fidelium Procerum Populorum I might adde many more as that at Becanceld under King Withred A. D. 694. Episcopis c. Ducibus Satrapis in unum glomeratis At Clovesho under Kenulphus of Mercia at Calecyth at London at Kingston Nay not one can be found by me in the Saxon times wherein the Bishops are not expresly mention'd So that if there be such a thing to be found as the Fundamental Contract of the Nation about the Constitution of Parlaments I do not question but they have their share in it Insomuch that Sir H. Spelman makes it his description of the Wittena-Gemot that in it as Mr. Petyt observes Convenêre Regni Principes tam Episcopi quà m Magistratus liberique homines i.e. it was an Assembly of the Three Estates So that before there were any such things as Baronies they were an essential part of the English Parlament And must all this clear and undoubted evidence from the first mention of Parlaments be rejected because once upon a time a certain King called a certain Parlament wherein upon some Distast between the King and the Clergy the other Estates continued sitting without them 2. This single Instance about the Parlament under Ed. I. is much misunderstood as will appear by these considerations 1. That the Clergy excluded themselves and were not shut out by the Act of the King and the other Estates For upon the Bull of Pope Boniface VIII forbidding the Clergy giving any more Subsidies which was procured by Archbishop Winchelsee as our Historians relate a Parlament being called by Ed. I. at Saint Edmondsbury on purpose for Subsidies the Clergy refuse upon the Pope's prohibition till they had consulted the Court of Rome and go away every one to their own homes notwithstanding which the King proceeds with the other two Estates and gets Subsidies from the Laiety So that the exclusion of the Clergy came from their own voluntary Act when the King desired no such thing nor the other two Estates but were all extremely provoked at this withdrawing of the Clergy That this Parlament was called purposely for the Subsidy appears by the Writ still upon Record wherein the Archbishop is summon'd to appear ad ordinandum de quantitate modo subsidii memorati 2. Whereas it is insinuated that great matters were done and good Laws passed when the Clergy were excluded I find no such thing It is true the confirmation of Magna Charta by Ed. I. which was a great thing indeed is said in the Statute-Books to be done the same year viz. 25 Ed. I. But that it could not be done in that Parlament I thus prove That Parlament was called crast Animarum the King appoints another at London crast Hilarii where the difference still continuing he appoints a new Parlament on the day of S. Peter ad Vincula or Lammas-day wherein he was reconciled to the Archbishop and Clergy Then Fealty is sworn to his Son before his going into Flanders and the King excused himself as to the great Taxes and Subsidies on the account of his Wars While he was about Winchelsea a Remonstrance is sent to him of the Grievances of the Nation in the name of the Archbishops Bishops Earls Barons and the whole Commons of England wherein they complain of illegal Taxes and the breach of Magna Charta The King gives a dilatory answer and passes over into Flanders