Causes shall belong to the Ecclesiastical Courts CHAP. VIII Some Observations out of the Civil Law in the Empire concerning the separation of Courts and some also out of the ancient Statutes as Selden hath recited them Lord Cokes defence of the Bishops being in Parliament and of the Convocation and High Commission and other Ecclesiastical Courts CHAP. IX The example of the late wars in Bohemia and Germany and France with the ill successes thereof to the Protestants might well have forewarned us in England The goodly Covenant of Bohemia might well have given us Caution to take heed of a Covenant without the Kings consent The Church Lands taken anay formerly are restored by the Emperor in many parts of Germany The Censure of Grotius upon the Presbyterians for their raising of armes CHAP. X. The Division of the Courts in the Empire and the manner of proceeding in them by the Bishops and the Ecclesiastical Lawyers under them AN APOLOGIE FOR The BISHOPS To Sit and Vote in PARLIAMENTS CHAP. I. Concerning Government Ecclesiastical and Civil in the State of Nature from Adam till Moses which was about 2500 years The same person was both cheif Magistrate and also Priest unto God GOD had a Priesthood alwayes from the Beginning of the World to perform the duties of his Worship and the â—â—ites thereof Adam was a Priest unto God to offer Sacrifice and to execute such duties as God required in his Service But Adam was also a King or Chief Ruler over all his Children and Posterity So after Adam Seth and the tighteous Patriarchs Enoch and others were Priests unto God as well as Princes and Magistrates and they taught Noah how to call upon God and how to serve him So Noah was also a Prince and also a Preacher of righteousnesse as the Apostle saith of him so that it was not incompatible or inconsistent for the same man to be a Magistrate Prince or Governour and also a Priest Melchisedech after the Flood was the first that was called a King and a Priest and so Christ is a King and a Priest after his order So that under the Law of Nature Kings were invested with a power Ecclesiasticall both of Order and Jurisdiction Therefore these things are not incompatible by Nature and thus it continued for the space of 2500. years from Adam till Moses Princes and Priests were formerly the same both Functions residing in the same person Majorum haec erat consuetudo saith Servius ut Rex esset etiam Sacerdos vel Pontifex unde hodie quoque Imperatoresâ—Pontifices-dicimus They that had the managing of affairs of State had also the executing of Divine offices and so received divine and holy duties and oblations which use obtained in the Families of the old Patriarchs Thus the Learned Montague against Selden cap. 3. p. 537. Ante Legem datam ad primogenitos pertinebat-offerre sacrificia Levitae successerant loco eorum And again to the same purpose Cultus divinus ante legem datam pertinebat ad Primogenitos Israel And again Sacerdotium fuit annexum primogenitur â— usque ad legem datam per Mosem As Lyra says reporting the received judgements of the best Interpreters Lyra in Numb 3. 12. 8. 16. in Gen. 14. Veteribus ordinarium perpetuum fuit ut qui Reges essent iidem etiam sacerdotio fungerentur as Bertram says cap. â— De politia Iudaica The Priviledges which in the Law of Nature followed the Birth-right were these three First the Government or Principality Secondly the Priesthood Thirdly a Portion answerable to maintain these dignities The same light may appear though much darkned in the ancient Government of the Heathen for Heathen Kings are witnessed in old times to have been Priests of such Gods as they served which ancient combining of these two offices in one person came from the ancienâ— practise in the time of the Law of Nature and from the light of Nature was received among the Heathens Abraham was a Priest in his own Family and in several places of his Peregrination he built Altars and places where he did call upon God and perform all duties of Gods Worship then requisite Abraham did offer Sacrifice as appears Gen. 15 9. 22 7. 2 7 8. Abraham was a Prophet Gen. 20. 7. and received many promises from God especially concerning Christ to descend of him and God gave him the Sacrament of Circumcision and established his Covenant with him God saith of him Gen 18. 19. I know him that he will command his Children and his Houshold after him and they shall keep the way of the Lord to do justice and judgement c. And as Abraham did so likewise did Isaac and Iacob after him who built Altars unto God which was as much then as to build a Church in these dayes and to provide a Minister to preach and pray and administer the Sacraments and perform all other duties of a Pastor Hence it appears fully that in the time of Nature there was not two several jurisdictions one Ecclesiastical the other Civil as is now among us But the same persons discharged both Offices and all Duties belonging to them And further it appears that the priests being the first-born and chief men had such honourable respect and maintenance that they were not reckoned among the lowest of the people and made the off-scowring of all things as now they are If the Clergy may not enjoy any temporal office or dignity they will be crushed down and oppressed in all publick occasions as they find it manifestly in these troublesome times when the neighbours of every parish do impose all Taxes Burdens and Charges upon Ministers more then they formerly used to do or in reason can be allowed But the Clergy have no means to help themselves having none of their own tribe in authority power or place of judicature as formerly they had whereby they could help themselves and restrain the Lay-men from imposing Burdens and charges upon them in excessive manner It is easie to shew particular instances and one of many shall be mentioned When all the Judges of the Land about 20. years agoe had given their opinions and directions in writing upon particular doubts to Justices of peace incident to their offices one doubt was how much and in what proportion a Minister should be charged for Levies to the poor The Justices in the Country and the Neighbours of the parish would taxe the Glebes severally from the Tithes and so augment the Levy to a great proportion both for Glebe and Tythes But the Judges appointed in their answer that Glebe and Tithes should be both taxed together at a tenth part of the Levy in regard Tythes are abated much by small rares and much Land is discharged of Tythes in kind But now in these troubles the Committee-men and such like impose Taxes upon the Glebes severally and Tythes also imposing a sixth or seventh part of the Taxe upon the Tithes which is contrary to the resolution of
the Union of Courts in England continued till the time of William the Conquerour as the learned Antiquâ—ry Spelman sheweth in his Glossary in Cotes pag. 3. Munâ—s comitis judiciarium fuit vim injuriam prohibere latrocinia compescere pacem regiam non solum legum tramite sed armis etiam promovere jura regia vectigalia curare colligere fisco inferre Praesidebat autem foro comitatus non solus sed adjunctus Episcopo hic ut jus divinum ille ut humanum dicâ—ret alter que alteri auxiliâ— esset consilio presertim Episcopus comiti 〈◊〉 in hunc illi animadvertere saepe licuit erranteâ—â— cohibere Idem igitur â—trique territorium jurisdictionis terminus Hereby it appears that the Bishop and Earl of the Counâ—y were joint governours but the Bishop was principal for he had power to restrain the Earl if he did do amisse the Bishop being learned but the Laity in those days altogether destitute of Learning and Knowledge So that it is certain that the Bishop and the Earl or Aldermen sate both together in the same Court together with their Assistants and Surrogates and so 〈◊〉 assist each other with Counsel and authority and in the forenoon they heard Church causes and in the Afternoon temporal business This manner did preserve amity between the Clergy and the Laity that they did not clash for jurisdiction by sending prohibitions Injunctions and cross orders as in our times which do occasion great vexation to the people and prolonging of Suits and doth multiply charges extreamly It is therefore certain that the Bishops and principal Clergy were always of great authority in our Kingdome especially for making of Laws and Constitutions of all kinds and executing of them which is manifest by all the Laws themselves of the Svxon Kings for about 500. years before the Conquest Wherein they first testifie that the Laws were made by the consent suffrage and approbation of the Bishops First Ethelbert the first Christian King of the Saxons made Laws which are entituled thus Haec sunt Decreta seu Iudicia quâ— Ethelbeâ—â—us Ren conslituâ— Tempore Augustini As Sir Henry Spelman hath recorded them in his Comments pag. 127. All the Laws then made are not recited by Spelman but they are extant in the old Book called Textus Roffensis Written by Ernulph a Bishop of Rochester Beda de his scribit lib. 2. cap. 5. Mortem sepulturam Ethelberti referens Inter â—aetera iniquit bona quae genti suae cansulendo conferebat etiam decreta illi Iudiciorum juxta exempla Romanorum cum Consilio sapientum constituit Quae conscripta Anglorum sermone hactenus habentur observantur ab ea In quibus primitus posuit qualiter id emendare deberet qui aliquid rerum Episcopi vel reliquorum ordinem auferret volens scilicet tuitionemâ—â—is quorum doctrinam successerat praestare Sequuntur multa ad vitae probitatem morum Correctionem pertinentia saith Spelman in his Notes Which Laws were casually omitted by my absence from the Presse at that instant but shall be added if ever a second edition be made But certainly Augustin was the principal Bishop that did make these Laws though other names are not put down but his only being the principal Yet in other Councils following divers Bishops are mentioned as in the Laws made by King Ina. Anno 693. Ego Ina Dei gratia West-Saxonum Rex exhortatione doctrina Cennedes patris mei Heddes Episcopi mei Erkenwaldes Episcopi mei omnium Aldermanorum meorum seniorum sapientum Regni mei Constitui c. So in the beginning of King Aethelstan Ego Adelstanus Rex Consilio Wulfelmi Archiepiscopi mei aliorum Episcoporum meorum mando praepositis meis omnibus Likewise in the lawes of King Edmund Edmundus Rex congregavit magnam Synodum Dei ordinis seculi apud London Civitatem in Sancto Paschae solennis â—ui interfuit Odo Wulstanus Archiepiscopi alii plures Episcopi c. The same appears by the Subscriptions to the laws made by the Bishops and principal Clergy and Abbots of their several times which are so frequent to be observed in all ancient Charters and laws in the first Tome of our English Councils that I will forbear many particulars only one for example sake being the Custome then to testifie their approbations not by voting but by subscribing their names to approve and grant the laws made in Parliament and not to refer all to a Register or Clerk to take notice of what is granted and by what persons present The Subscriptions to a Charter of King Edgar to The Monastery of Glasten Ego Edgar Rex totius Britanniae praefatam libertatem cum sigillo sanctae Crucis confirmavi Ego Elfgina ejusdem Regis Mater cum gaudio consensi Ego Edward clito Patris mei donum cum Triumpho sanctae crucis impressi Ego Kinedrius Rex Albaniae adquievi Ego Mascusius Archipirata confortavi Ego Dunstanus Dorobernensis Ecclesiae Archiepiscopus cum Trophaeo sanctae Crucis cum suffrâ—ganeis praesulibus Regis donum corroboravi Ego Oswald Eboracensis Ecclesiae primas consentioni subscripsi Ego Ethelnoldo Wintoniensis Ecclesiae Minister Glasten Monachus signum sanctae crucis impressi Ego Britchtelm Fontarensis Episcopns consentiens corroboravi Ego Ellslam Episcopus confirmavi Ego Oswald Episcopus adquievi Ego Elfnolde Episcopus concessi Ego Winsige Episcopus cum signo sanctae Crucis conclusi Ego Segegar abbas vexillum sanctae crucis impressi Ego Escui abbas confirmavi Ego Ordgar abbas corroboravi Ego Ethelgar abbas concessi Ego Kinword abas Concessi Ego Fideman abbas consolidavi Ego Elphets Abbas subscripsi Ego Adulf Herefordensis Ecclesiae Catascopus corroboravi Ego Elphene Dux Dominae meae sanctae Mariae Glasteniensis Ecclesiae libertatem omni devotione cum sigillo sanctae crucis confirmavi Ego Oslâ—ck dux consensi Ego Ethelwine dux hoc donum triumphale hagiae crucis propriae manus depictione impressi Ego Osnald minister confirmavi Ego Elfwurde minister corroboravi Ego Elthesie minister consensi Ego Elâ—kie minister consensi Thus first the King Queen and Prince do subscribe then the Bishops afterward the Abbots and lastly the Noble-men howsoever they were then called The Bishops in all other Christian Kingdomes as in the Empire of Germany France Spain Portugal Poland Hungary and all others as Denmark and Sweden since the Change of Religion there have place and power in all their Parliaments and publick Assembies The Bishops Electors of Germany Ments Triers and Colen have place and precedency of the Temporal Electors the Duke of Bavaria Saxony and Brandenburgh as our Bishops had place sitting on the right hand of the King in the House of Lords and the Temporal Lords on the left hand And also out of the House the Bishops had precedency of all Barons
And the two Arch-bishops of Canterbury and York had place of any great Temporal Lords Dukes Earls and Marquesses or great Officers as appears by the Statute of 31. Hen. 8. câ—p 10. and Lord Cooke 4. Instit. pag. 361. and to what end should they hold such priviledges and places of Honour in Parliament unlesse they had the right and power of voting in all Cases unlesse in cases of blood and all our ancient Parliaments and Statutes do fully reckon the Lords Spiritual in the first place and then the Lords Temporal and lastly the House of Commons These being the three estates in Parliament but the Kings person doth not make one of the three estates as some of late have affirmed but Lord Cook the great Oracle of our common-Common-Law doth otherwise account 4. Instit. cap. 1. Shewing of what persons the Parliament consisteth This Court consisteth of the Kings Majesty sitting there as in his Royal politick capacity and of the three estates of the Realm viz. First Are the Lords Spiritual Arch-bishops and Bishops being in number 26. who sit there by Succession in respect of their Counties or Baronies parcel of their Bishopricks which they hold also in their politick Capacity And every one of these when any Parliament is to be holden ought ex debito justitiae to have a Writ of Summons 2. The Lords Temporal Dukes Marquesses Earls Uiscounts and Barons who sit there by reason of their dignities which they hold by Descent or Creation in number at this time 106. and likewise every one of these being of full age ought to have a Writ of Summons ex debito justitiae 3. The third estate is the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Burroughs All which are respectively elected by the Shires or Counties Cities and Burroughs by force of the Kings Writ ex debito justitiae And none of them ought to be omitted and these represent all the Commons of the whole Realm and trusted for them and are in number at this day 493. In the beginning Romulus ordained a hundred Senators for the good Government of the Common-wealth afterwards they grew to 300. and so many were of the House of Commons in Fortescues time cap 18 fol. 40. as Lord Coke alledgeth him How the number of the Commons is increased to 500. or more let them inquire that please perhaps the number of Burgesses of Corporation and some Towns which the Kings have lately allowed to come unto the Parliaments may be a reason of their great increase Lord Coke saith that anciently when the Parliaments were holden at Westminster the Commons â—ate in the Chapter-House of the Abbot of Westminster and the Common Chronicles do mention that heretofore in the time of H. 8. The Commons sate in the Black Friers where there were many large Chambers and Rooms But since the distinction of Cottages and free-Chappells 1. Ed 6. c. 14. The Commons sit in the ancient and beautiful Chappel of St. Stephens Abbey founded by King Stephen so that they now sit in the Temple of God The learned Montague against Selden cap. 1. pag. 290 saith that Sedet in Templo Dei may be understood either Materiraliter as the great Turk doth whose palace is that which sometimes was the chief patriarchal Church built by Iustinian the Emperor the Church of sancta Sophia or spiritualiter taking it for contra Ecclesiam Dei by persecuting Christians in quantum Christians for that they profess the name of Christ Jesus who are the living Temples of the Holy Ghost c. The Bishops presence and voting in the Parliaments may well seem necessary in these times when the Parliament doth undertake to determine Controversies of Religion of the greatest difficulty as of predestination absolute Reprobation universal Grace Free-will and final perseverance Sir Iohn Eliott and Iohn Pym zealous men in Religion would not yield to the King 40 Caroli Tunnage and Poundage till they had first setled Religion touching the points of Ariminianisme they accounting that Arminius was an upstart Heretick very dangerous to the truth as Rushworth relateth in his Collections p. 659. Now if Parliaments will undertake to dispute and determine such great and difficult points of Religion as of Predestination absolute Reprobation universal Grace Free-will and final perseverance It is fit that the learned Bishops should have power to vote in such difficult matters of so great Concernment as well as any Members of the House of Lords or Commons for it is well known that many of the Bishops are men of excellent Learning judgement and abilities as being long trained up in the Universities and some of them publick professors reading Lectures in Diuinity and Heads of Colledges that they might be well informed concerning these points or any other better then Sir Iohn Eliott or Iohn Pym or any other Member of the House of Commons whosoever he be or of the House of Lords whereof very few are learned or expert in the difficult points of Gods Decrees And whosoever is wise and sober will be willing to refer these matters to the Convocation who are a part of the Parliament and have the same priviledges as other Parliament men have as Lord Cook sheweth 4. Instit. cap. 74. pap 322. c. And their proper office and duty is to debate of matters of Religion of Heresies Schismes and other like matters as Lord Cook sheweth very fully The Bishops being the principal men that Reformed our Religion made the 39 Articles both the lesser and greater Catechism Common Prayer Book and the Book of Ordination the Homilies and whatsoever else hath been setled in Religion so that they are most necessary and fit to be present in all Parliaments Dr. Burgesse having written an examination of the reasons asserted by Bishop Hall and Archbishop Williams of York And this Author having written against his examination of the reasons the Doctor made a further Reply Wherein he saith pag. 5. that if it can be made good that in the * Wetten-Gem of the Saxons the Bishops exercised a legislative power in voting of laws as our Biâ—hops have done in Parliaments the Examiner must provide him another Advocate for my part I must yeild the cause I hope it appears clearly by that is here alledged out of good Authority that the Bishop had a legislative power in voting and therefore by his own confession he must yeild the cause and contend no farther about it There is one reason further to be considered why the Bishops might well be of great Authority in all Parliaments and publick Assemblies and that is by reason of their Learning and Knowledge in languages and matters of Law and policy which they got by travail into forraign parts for most of them in their youth were bred in the English Colledge at Rome which was built and endowed by the Kings of England Ina and many others after him for the education of Learned Scholars sent
thither out of England there being then no Universities neither Paris nor Padua nor Oxon nor Cambridge Only Rome was the principal place for Learning in these Western parts and therefore our Saxon Kings built the Colledge there for English Scholars and purchased Lands in Italy for the maintenance thereof and also gave the Peter-pence for their better allowance and encouragement which as Mr. Fuller accounteth in his late History was the sum of seven thousand and Five hundred pounds The Peter-pence was given not as a Tribute to the Pope as our Common-Chronicles do grant it and Polydor Virgilius and Baronius but as a stipend to maintain the English Colledge As Spelman sheweth clearly upon the word Denarius St. Petri which Doctor Burgesse might have observed better and not have yeilded it to the Tribute paid to the Pope as he doth grant it pag. 18. of his Reply King Henry the eighth and those about him had forgotten the true use of them and therefore in the Tempest of his Indignation swept them away among other superstitious things in a Statute but it might have been justly continued for the first intention and purpose to educate learned men beyond Seas to learn the Civil and Common Law and forraign languages also matters of State who upon their return home after some seven or eight years would deserve best to be preferred to publick places in Church or State The Kings of England well knowing the necessity of such learned men did anciently and of late send some choice Scholars out of either Universities to forraign Countries as Cambden observeth speaking of Sir Thomas Smith Anno 1577. Annis maturior selectus ut in Italiam Regiis impensis mitteretur ad nostra enim tempora nonnulli adolescentes optimae spei ex utraque Academia ad uberiorem ingenii cultum Regum sumptibus in exteris Regionibus alebantur So was Cardinal Pool in his younger years sent abroad by Henry the eighth Sir William Paget Sir Thomas Smith Sir William Peters and Sir Iohn Mason these two having been fellows of All-Souls Colledge in Oxon but being further bred abroad in forraign Countries they gained great experience and wisdome and were made either principal Officers or Secretaries of State at their return home and were principal men about the King for Counsel and disputes of businesse and guided the Kings Counsels in affairs of most importance Education in our own Universities at home is not sufficient to enable men for all publick places and offices under a King It is well known that learned young men of the best sort in the Universities being sent abroad to travail when they come home are commonly men of far better abilities then such as have only stayed at home as of late years Sir Edwin Sandys Sir Isaac Wake Sir Iohn Digby Sir Clement Edmond and Dr. Bryan Duppa now Bishop of Salisbury both these having been fellows of All-Souls Colledge and Docter Duppa specially chosen to be the Princes Tutor having been bred a Civilian in his Colledge and eminent besides for all polite Literature and proctor of the University and afterwards travailing into France and Spain upon his return home it was not long before King Charles took special notice and made choice of him for the instruction of his three Sons who are now the most accomplished Princes in Christendome notwithstanding the late disturbance and Rebellion of these present times and are likely to prove the most renowned when the present troubles shall be composed Education goes beyond nature as Aristotle sheweth 1. Ethic. Good instruction and learned Education doth add those perfections which cannot be obtained with ordinary helps and by such men as know only their own native Country and Climat The opposition that some men make against the Votes and presence of the Bishops in Parliaments and other places of Office and imployment under the King doth arise from that false principle that jurisdiction Ecclesiastical and civil ought to be distinct and separate both for persons and their imployments Which is already here confuted it being one grand error of Calvin and Beza with divers others that follow them too closely in all opinions as if they had been men free from error Our Bishops in ancient times were most part Lawyers learned in the Civil and Canon Laws and thereby also knowing much in the Canon Law and therefore they were the chiefest Judges of the Land in all Courts of Justice as Spelman sheweth in his learned Glossary for 200 years after the Conquest reckoning the Catalogue of the great Lord cheif Justices being most part men of the Church pag. 409. 410 c. and so pag. 131. Fungebantur antique cancellariatus dignitate viri tantum Ecclesiastici Episcopi qui praeterea Curam gerebant Regiae capâ—llae repositaque illic Monumenta Rotulos Recorda vocant sacra custodia tuebantur c. And so also Lord Cook sheweth 1. Instit. lib. 3. pag. 304. B. In ancient time the Lord Chancellour and Treasurer were most part men of the Church yet were they expert and learned in the Laws of the Realm as for example in the time of the Conquerour Egelricus Episcopus Cicestrousis viz. Antiquissimus in legibus sapientissimus Nigellus Episcopus Eliensis Hen. 1. The saurarius in temporibus suis incomparabilem habuit Scacarii scientiam de eadem scripsit optime Henricus Cant. Episcopus H. Dunelm Episcopus Willielmus Episcopus Eliensis G. Roffensis Episcopus Martinus de Pateshall Clericus Decanus divi Pauli London constitutus fuit capitalis Iusticiarius de Banco c. Willielmus de Raleash Clericus Iusticiarius Domini Regiâ— Iohannes Episcopus Caliolensis temp H. 3. Robertus Passelew Episcopus Cicestrensis temp H. 3. Robertus de Lexinton Clericus constitutus sapitalis Iusticiarius de Banco Iohannes Briton Episcopus Hereford Henricus de Stanton Clericus constitutus fuit capitalis Iustic ad placita With many others So also Selden affirmeth in his Notes upon Fleta Sir Iohn Eliott in his Speech in Parliament confesseth that there are among our Bishops whose profession I honour saith he such as are fit to be made example for all ages who shine in vertue and are firm for our Religion c. as Rushworth relateth in his Collections pag. 661. If Bishops be so eminent that they shine in vertue certainly they are fit men to be present in Parliaments for Parliaments ought to consist of such men as shine in vertue as are firm for Religion A Learned Knight and Courtier writing an answer to Sir Anth. Welden his Pamphlet entituled the Court and Character of King Iames pag. 178. where he speaketh of the preferment of Doctor Williams to be Lord Keeper of the great Seal sheweth That former ages held it more consonant to reason to trust the Conscience of the Clergy with the case of the Lay-men they best knowing a case of Conscience And anciently the civil Law was always judged by the Ministers of the Church and
the Chancery and Courts of Equity in charge of a Divine Minister So ran that Channel till Sir Francis Bacons Father had it from a Bishop and now a Bishop had it again from Bacon And had King Iames lived to have effected his desires the Clergy had fixed firm footing in Courts of Judicature out of the road of Common Law and this was the true cause of Williams Invitation thither To prevent many Complaints and Mischiefs there can be no better way then to follow the Example of Gods own chosen people of Israel where the chief fathers of the priests and Levites were Judges in all Courts both high and low sitting together with some chief men of the other Tribes of the Laity as they are now called And though our Law be otherwise of late years and the jurisdiction of Courts divided yet it was not so anciently and the King may put some of the Clergy in some places and Courts at least of Equity as King Iames did design if he had lived longer and that without any prejudice to the Law or Courts of Justice CHAP. IV. Concerning the Honour and Dignity of the Bishops in the time of the Saxons and so continued to these times FOr the Dignity Order and Estimation of the Clergy they were from the beginning reckoned and accounted equal with the best as appears by the Laws of divers Kings as first of the first Christian King Ethelbert who in his Laws doth provide in the first place for their rights and priviledges and what Satisfaction shall be made for any wrong done to the Church or Bishops or Clergy Quicunque res Dei vel Ecclesiae abstulerit duodecima componat solutione Episcopi res undecima solutione Sacerdotis res nona solutione Diaconi res sexta solutione Clerici res trina solutione Pax Ecclesiae Violata duplici emendetur solutione Volens scilicet tuitionem eis quos quorum doctrinam susceperat praestare saith Bede These being the first Laws of our first Christian King of the Saxons they ought to be reverenced for their Antiquity piety and Christian Justice in rendering to every man his own due though some men talk not only of taking away superfluities but of cutting up both root and branches O Tempora O Mores And afterwards about the time of King VVithred there were laws made Quomodo damna injuriae sacris ordinibus illata sunt compensanda And often elsewhere in the Councils many Laws do ordain what satisfaction shall be given to the Church and Bishops for several offences committed for then the Bishops had a great part in all fines and shared in forfeitures and penalties with the King Furthermore for point of Honour and Dignity it appears by the Laws of King Athelstan that every Archbishop was equal to a Duke of a Province Every Bishop to an Earl and so esteemed in their valuations Vide K. Athelstani Regis apud Lambardum p. 71. Concil Britannica pag. 405. cap. 13. de Weregeldis 1. capitum aestimationibus The Title of Baron was not then known or used among the Saxons but they called the Nobility Thanes Vid. K. Inae pag. 187. Sect. 9. and the Bishops were equal or rather superiour to the Thanus Major and the priest to the Thanus minor The Bishop and Earl are valued at eight thousand Theynses Messe-Theynes and Worald-Theynes id est Presbyteri secularis Thani jusjur andum in Anglorum lege reputatur aeque sacrum cùm Sacerdos Thani rectitudine dignus est The Priest was then accounted equal to a Knight or Lord of the Town and was commonly styled by the name of Sir as a Knight was though now it be derided and out of use Out of these Laws and some others doth the learned Antiquary who is so well versed in the Antiquities and Monuments of our Laws and Kingdome fully set down the ancient dignity and order of the Clergy Magno sane in honore fuit Universus clerus cum apud Populum Proceres tum apud ipsos Reges Angliae Saxonicos nec precaria hoc quidem concessione sed ipsis confirmatum legibus Sacerdos ad altare Celebrans minori Thano i. e. Villae Domino atque militi aequiparabatur in censu capitis pariter aestimatus pariterque alias honorandus quia Thani rectitudine dignus est Inquit Lex Abbas sine Câ—nobiarcha inter Thanos majores quos Barones Regis appellarunt posteri primicerius fuit Episcopus similiter inter Comites ipsos majores qui integro fruebantur comitatu juribusque Comitivis Archiepiscopus Duci satratrapae amplissimae Provinciae pluribus gaudenti comitatibus praeficiebatur Vt caeteri omnes Ecclesiastici comparibus suis omnibus secularibus Amplectebantur Reges universum clerum laeta fronte ex eo semper sibi legebant primos a consisiis primos ad officia Reipublicae obeunda Quippe sub his seculis apud ipsos solum erat literarum clavis scientiae dum militiae prorsus indulgerent laici factumque est interea ut os sacerdotis oraculum esset plebis Episcopi oraculum Regis Reipuâ— Primi igiâ—ur sedebant in omnibus Regni comitiis tribunalibus Episcopi in Regali quidem palatio cum Regni magnatibus in comitatu una cum comite Iusticiaerio comitatus in Turno Vicecomitis cum Viceâ—omite in Hundredo cum Domino Hundredi sic ut in promovenda justitia usquequaque gladius gladium adjuvaret nihil inconsulto sacerdote qui velut saburra in navi fuit ageretur Mutavit priscam hanc consuetudinem Gulielmus primus c. After the Conquest William the first divided the Ecclesiastical Courts from the secular not with a purpose to diminish the Ecclesiastical authority Imo jurejâ—rando confirmavit leges sanctae matris Ecclesiae quoniam per cam Rex Regnum solidum habent subsistendi firmamentum Yet the Bishops and Clergy do not now expect or desire to enjoy their ancient splendor amplitude and dignities seeing the greatnesse of their Revenue which should uphold the dignity is long since taken away So that well might Bishop Latimer in his Sermon before King Edward say We of the Clergy have had too much but that is taken away and now we have too little For there was no lesse in the whole taken away from them then many hundred thousands sterling too incredible to be here briefly expressed I will only mention one for example the Arch-bishoprick of York from which was taken 72. mannors and Lordships at one instant by one of the last statutes of Hen. 8. and the like happened to Canterbury London Lincoln and all the rest which me thinks should be enough to satisfie that men should not go about to strip them of these poor pittances that are left unto them being but small fragments in comparison of their ancient patrimony which the liberality and piety of the primitive times haâ— conferred on them when Charity
and Piety was fervent and abounded with good works of all kinds insomuch that they thought no honour or respect too much to be given to the Clergy especially to the reverend Fathers and Bishops of the prime order From what hath been said it is manifest that the Bishops were equal to the greatest persons and estates of the Kingdome and had their votes and suffrages for making laws and Constitutions for the first 500. years before the Conquest Whereby it appears that it is a very rash and ignorant assertion of the Examiner Dr. Burgesse That Bishops at first were but casually mounted to that height of extent and power by William the Conquerour the more to endear and oblige them And that it is onely of Grace that Bishops were first allowed place in Parliament And that they crept in by favour to serve a Conquerours turn and can derive no higher for sitting as now they do in the House of Peers then an Act of Parliament if so high Whereby it is manifest by all the Laws of the Saxon Kings both in the edition of Lambard and of the English Councels by Sir Henry Spelman that the Bishops were the principal men in all ages for ordaining of Laws and Consulâ—ations in all the great Assemblies of the Kingdome then in use And when matters in question were only Ecclesiasticall concerning the Church and Religion the Clergy sate by themselves but when there was any thing to be given and confirmed to the Church then the Kings and Nobles did afford their presence and assistance as appears by divers Councils Vide Concil Glocestriensiae pag. 230. CHAP. V. Concerning Barons and the Title thereof and how the Bishops became Barons being no addition of Honour to them but inforced upon them by the Conquerour and since continued to this day AS for the Title and Original of Barons and the old signification of the Word Selden in his Titles of Honor 2. part cap. 7. Especially Sir Henry Spelman in his learned Glossary upon the word Baro hath so accurately shewed divers particulars that I need not here repeat them But touching the Title and Name as it is now commonly used I will say something as it is now understood it came among us since the Conquest as the Glossary sheweth pag. 81. Ad Anglos pervenisse videtur vocabulum Baro vel cum ipsis Normanis vel cum Edwardus Confessor auras moresque imbibisset Normannicos Huntingtoniensis aevi sui vocabulum usurpans Histor. lib. 5. Adolwaldum qui occisus est An. Dom. 903 Baronem Regis Edwardi senioris vocat sed Author antiquior Florentius Wigorniensis eundem Ministrum Regis appellat quo etiam vocabulo scriptores ipsi Saxonici passim usi sunt So in the Saxon Councils and Charters divers great men who were no lesse then Thanes do style and subscribe themselves Ministros Regis as in the Charter of Edgar p. 486. Ego Oswald minister confirmavi Ego Elfwurde minister corroboravi And the like frequently occure These being the same in degree and substance as Barons are now whereof the Learned Glossary maketh three sorts Hodiernos itaque nostros Barones è triplici fonte triplices faciamus 1. Feodales seu praescriptitios qui a priscis feodalibus Baronibus oriundi suam hodie praescriptione tuentur dignitatem 2. Evocatos seu rescriptitios qui brevi Regio ad Parliamentum evocantur 3. Diplomaticos qui Regio Diplomate hoc fastigium ascendunt Feodalium originem inter eos collocavero quibus Willielmus senior Angliam totam dispertitus est de se tenendam quorumque nomina in Domesdei paginis recognovit Rescriptitios ab aevo Regum Iohannis Henrici tertii caput extulisse censeo Diplomaticos initium sumpsisse perhibent sub Richardo secundo qui anno Regni sui 8. 1. Christi 1387 Iohannem Beauchamp de Hall in Baronem de Kinderminster suo evexit diplomate Now the Bishops may be reckoned both as Feudal Barons in regard of their estates and Baronies annexed to their Bishopricks and also they are Evocati summoned by Writ as Barons and principal persons by the Kings to come unto Parliaments and also they are created by Patent which is presented to the Arch-bishop at their consecration But all the Feudal Barons were not summoned to Parliaments Quorum ingens erat multitudo quae plus minus 30000. nullo tecto convocari poterat William the Conquerour brought in Tenures inforcing all men of estates to hold by one Tenure or other and having made 30 thousand to hold by Barony yet he never called so many to a Parliament seeing no Houses could hold so many and as not all the Feudal Barons were called so not all the Abbots or Priors though they had great estates but a convenient number sometimes more and sometimes lesse as in 49. Hen. 3. Which is the first Parliament upon Record there were called to Parliament of the Clergy 102. besides five Deans saith Spelman Glossary pag. 4. Anno. 1. Edw. 2. there were 36. Abbots Anno. 4. Edw. 3. about 33. and all other times more or lesse Yet not so few as the Examiner relateth out of Sir Edward Cook pag. 33. who though he were a great Master of law yet in matters of Antiquity must yeild to the Author of the Glossary whom in private he would call his Tutor as well he might Cambden writing of the Degrees of States in England pag. 170. speaking of the Bishops by right and custome it appertained to them as to Peers of the Kingdome to be with the rest of the Peers personally present at all Parliaments whatsoever there to consult to handle to ordain decree and determine in regard of the Baronies which they hold of the King For William the first a thing which the Church-men of that time complained of but these in the age ensuing counted their greatest honour ordained Bishopricks and Abbeys which held Baronies in pure and perpetual almes and until that time were free from all secular service to be under Military or Knights Service enrolling every Bishoprick and Abbey at his will and pleasure and appointed how many Soldiers he would have every of them to find for him and his Successours in the time of Hostility and War Thus William the Conquerour being very rigorous imposed upon the Bishops and Abbots that held their estates by Barony great impositions to maintain arms horses and furniture for War enrolling them as he thought them able but it seems the lesser Abbeys that did not hold by that Tenure of Barony and Parish priests were not taxed as now they are But under the Saxons when the grievous imposition of Dangelt was imposed and raised from ten thousand pounds yearly to thirty thousand pounds and in the year 1012. to forty eight thousand pounds which was a great sum for that age when mony did not abound as it doth now yet the Church was then free De hoc Dangeldo libera quieta erat omnis Ecclesia quiâ— magis in Ecclesiae
Parliament assembled and by the authority of the same ordaineth establisheth and enacteth that from henceforth the same evection and making of the same Duke and all the Names of dignity to the said George or to Iohn Nevil befor henceforth void and of none effect c. And much more the Lord Cook addeth to the same purpose as also York the Herald pag. 223. The late Lord Brook who was slain at Lichfield when he was ready to batter the Cathedral Church in his book against Bishops speaking much against them and magnifying the Temporal Barons saith that though their Honours are derived from the King yet being once made Lord their Honour is vested in their blood and cannot be taken away but his Lordship was not learned in Law or Herauldry He might have taken notice what Lord Bacon saith in his Apopthegmes That blood is no better then the blood of a black Pudding that wants Fat and Suet Honour is vested in the lands Mannors and Revenues which when they are lost and gone farewell Honour and Title Edward Lord Cromwell Grandchild to him that spoyl'd the Church sold the head of his Barony Oukham in Rutland and wasting his whole estate left himself as little land in England as his Grandfather left to the Monasteries by the Feudal Law his Barony is lost The last Edward Lord Zouch who dyed 1. Caroli who was a very great Baron anciently sold the Head of his Barony Haringworth in Northampton-shire and all the Lands which he had insomuch that Henry Howard Earl of Northampton said He was a Baron sans terre Whereupon he bought again some other lands but having no Sons his Barony his extinct Henry Daubeny Earl of Bridgewater created 20. Iuly 30. H. 8. dyed without Issue Anno ... Edw. 6. and so his Name Family and Dignity extinct This Earl was reduced to that extream poverty that he had not a servant to wait on him in his last sicknesse nor means to buy Fire or Candles or to bury him but all was done for him in Charity of his Sister Cicely married to Iohn Bourchier the first of that name Earl of Bath Many more might be alleadged but these are enough to shew that when Lords have lost their Lands and Revenues then they are not fit men to fit and vote in Parliament and many there are who though noâ— wholly impoverished yet so decayed that they are not so fit as the Bishops to be present in Parliaments who if they might have enjoyed their ancient Lands and Mannors were indeed the most able and worthy to be Members in Parliament both in regard of their great estates and their Knowledge and Learning in all kinds far beyond the Temporal Lords Lastly Whereas Dr. Burgesse saith the Bishops are Barones Eleâ—mosynarii and would thence infer that they are but as Arbitrary Almsmen like the poor Knights of Windsor who may be abated or taken away at pleasure This is but a spightful inference upon the bare word Eleemosyna without the true sense of it For as the Learned Glossary sheweth Barones Eleemosynarii apud Stanfordum in jure nostro dicuntur Archiepiscopi Episcopi Abbates Priores qui praedia suae Ecclesia a Rege tenent per Baroniam Baronias etiam suas ex Eleemosyna Regum perhibentur accepisse licet ipsa praedia aliorum saepe munificentia consequuti fuerint And sometimes not only by the gift of other noble persons but also themselves did buy and purchase many Mannors and Lands conferring them on their Successours and being so bought they cannot in justice be taken away as if all had been given by the King and others as meer Alms. Lanfranck Arch-bishop of Canterbury bought and recovered 25. Mannors and left them to his Successors Harvey the first Bishop of Ely in the time of Hen. 7. bought and left many Mannors to his Successors and so likewise did many other Bishops enriching much their Bishopricks and leaving besides many testimonies of their piety by building Colledges and Hospitals And other good works to the benefit of all men They founded also almost all the Colledges in both Universities to their eternal honor so long as Learning shall flourish in this Kingdome CHAP. VI. Concerning the Legislative power and Votes of the Bishops in making Laws Concerning the Statute 11. H. 7. Whereby Empson and Dudley proceeded and what great Treasures they brought to the King Calvin and Beza at Geneva were Members of their Chief Council of State consisting of 60. and so many Bishops in England be Members in Parliament King David appointed Priests and Levites in all Courts of Iustice. The Clergy had many priviledges as Lord Cooke sheweth upon Magna Charta 2. Instit. pag. 2 3. Ambition and Covetousnesse of the Presbyterians the principal cause of all our Troubles BUt concerning the Legislative power and Votes of Bishops in making Laws to regulate the Kingdome and to preserve peace and justice among all sorts of men there is not to be forgotten an ancient Law of King Athelstan Concil pag. 402. c. 11. That worthy King in his Laws hath one De Officio Episcopi quid pertinet ad Officium ejus Episcopo jure pertinet omnem rectitudinem promovere Dei scilicet ac seculi imprimis debet omnem ordinatum Dei instruere quid ei jure sit agendum quid secularibus judicare debeat Debet enim sedulo pacem concordiam operari cum seculi judicâ—bus qui rectum velle diligunt in compellationum adlegationem docere ne quis alii perperam agat in jurejurando vel in â—rdalio Nec pati debet aliquam circumventionem injustae mensurae vel injusti ponderis sed convenit ut per Consilium Testimonium ejus omne legis scitum Burgi mensura omne pondus ponderis sit secundum ejus institutum valde rectum Ne quis proximum suum seducat pro quo decidat in peccatum Et semper debet Christianus providere contra â—mnia quae praedicta sunt ideo debet se magis de pluribus intromittere ut sciat quomodo grex agat quem ad Dei manum custodire suscept ne diabolus eum laniet nee malum aliquid super seminet c. Christianis omnibus necessarium est ut rectum diligant iniqua condemnent saltem sacris ordinibus evecti justum semper erigant prava deponant Hinc debent Episcopi cum secularibus judicibus interesse judiciis ne permittant si pessint ut illius culpa aliqua pravitatum germina pullulaverint Et sacerdotibus pertinet in sua diocaesi ut ad rectum sedulo quemcumque juvent nee patiantur si possint ut Christianus aliquis alii noceat non potens impotenti non summus infimo non praelatus subditis non dominus hominibus suis vel servis aut liberis molestus existat secundum Episcopi dictionem per suam mensuram convenit ut servi testamentales operentur super omnem
the Councel of Clarendon under Hen. 2. Wherein the Clergy were inforced to appear in the Temporal Courts one Canon thereof being Clerici accusati de quacunque re summoniti a Iusticiario Regis veniant in Curiam responsuri ibidem de hoc unde videbitur Curiae Regis quid ibi sit respondendum in Curia Eeclesiastica unde videbitur quod ibi sit respondendum It a quod Regis Iusticiarius mittet in Curiam sanctae Ecclesia ad videndum quomodo res ibi tractabitur si Clericus vel confessus vel convictus fuerit non debet eum de caetero Ecclesia tueri But touching this and the rest of the Constitutions in that Council Math. Paris doth sharply inveigh against them Hanc Recognitionem five Recordationem de Consuetudinibus libertatibus iniquis dignitatibus Deo detestabilibus Archiepiscopi Episcopi clerus cum Comitibus Baronibus proceribus juraverunt And as he addeth His itaque gestis potestas laica in res personas Ecclesiasticas omnia pro libitu Ecclesiastico jure contempto tacentibus aut vix murmur antibus Episcopis potius quam resistentibus usurpabat And this appeareth also by that which Selden relateth in his notes upon Eadner pag. 268. that long after in Edward the seconds time the Clergy had so many oppositions and hinderances in their proceedings from the Temporal Courts that they exhibited a petition in Parliament wherein they recite the grant and constitution of Will 2. allowing them their own Courts by themselves and specify their complaints particularly which he calleth Gravamina Ecclesiae Anglicanae and saith they are those mentioned in the proem of Artiâ—uli Cleri And in this age we have great cause to complain of Prohibitions but thereof I will say no more now as for the Temporal Courts the Conquerour appointed them to follow his Court royal which Custome continued for many years till under King Iohn at the instant request of the nobility it was granted Ut Communia placita non sequerentur Curiam i. e. Regis sed in loco certo tenerentur That the Court of Justice for Common Pleas should not follow the Kings Court Royal but be held in a place certain as now commonly they are in Westminster-Hall Whereas before the Kings appointed one Grand Lord Chief Justice of all England who for his authority and power was a greater officer both of State and Justice then any in these last ages and ever since that the greatness of that office was abated by King Edw. 1. most of those great Justices were Bishops as Sir Henry Spelman sheweth in his Caralogue of them Glossar pag. 401. Dignitate omnes Reges proceres potestate omnes superabat Magistratus De potestate valde inter alia claret quod quatuor summorum judicum hodiernorum muneribus solus aliquando fungeretur scilicet Capitalis Iustitiarii Banci Regis id est plâ—citorum Coronae seu criminalium Capitalis Iusticiarii Banci Communis id est placitorum Civilium Capitalis Baronis Scacarii hoc est Curiae ad sâ—crum patrimonium fiscum pertinentis c. Most of these great Justices were Bishops as appears by the Catalogue of them they being the principal men for Knowledge and Learning in those dayes and had no doubt power of voting in all Parliaments Councils and assemblies of State And so in these later times Lord Coke sheweth their abilities and rights 4. Instit. pag. 321. The King is well apprised of all his Judges which he hath within his realm as well spiritual as temporal as Arch-bishops Bishops and their officers Deanes and other Ministers who have spiritual jurisdiction It is declared by the King the Lords Spiritual and Temporal and the Commons in full Parliament That the spiritualty now being called the English Church always hath been reputed and also found of that sort that both for knowledge integrity and sufficiency of number it hath been alwayes thought and is also at this hour sufficient and meet of it self without the intermedling of any exterior person or persons to declare and determine of such doubts and to administer all such offices and duties as to their rooms spiritual doth appertain The Adversaries have made divers objections against our Arch-bishops and Bishops Ever since saith Coke But these pretences being in truth but meer Cavils tending to the scandal of the Clergy being one of the greatest States of the realm as it is said in the Statute of 8. Eliz. cap. 1. are fully answered by the said Statute and Provision made by authority of that Parliament for the establishing of the Arch-bishops and Bishops both in praesenti in futuro in their Bishopricks By the Statute also of 39 Eliz. cap. 8. the Arch-bishops and Bishops are adjudged lawful as by the said Act appeareth And by these two Statutes these and all other objections against our Bishops one hath answered which we have thought good to remember seeing we are to treat of their jurisdiction Ut obstruatur os iniquae loquentium saith Lord Coke Yet the fury and rage of these times have stirred up more anger which in the issue will turn to the Confusion and Dishonour of them that began these wars and broyles against the Church and Bishops and fundamental Laws and Statutes which have so fully asserted their rights and authority Thus the Lord Coke premiseth being to treat of the Ecclesiastical Courts and all the jurisdiction belonging to the Clergy and established by the fundamental Laws of the Land against both Papists and Puritans and first he beginneth with the Court of Convocation and of the high Commission in Causes Ecclesiastical which is absolutely necessary for the suppression of all manner of Errots Heresies Schismes abuses offences Contempts and enormities But upon suppression of this Court by the late long Parliament there hath broken forth such an infinite number of heresies schismes sectaries and a rascal rabble of factions as is prodigious to relate and intolerable to be suffered For as it is in the Common Law if there were not Assises and Sessions to punish Malefactors Theeves Cuâ—purses Offenders and Rogues of all sorts the Land would be so Oppressed with the Multitudes of them no man could enjoy his house or goods freehold or life therefore in London they have every moneth a publick sessions to punish Condemn and Execute all sorts of Malefactors And Corporations in principal Cities have the like authority by Commission and Patent from the King But for the high Commission to punish Offenders against Religion and the Church Lord Coke saith pag. 331. That the Kings Majesty hath and Queen Elizabeth had before him as great and ample Supremacy and jurisdiction Ecclesiastical as ever King of England had before them and that had justly and rightly pertained to them by divers other Acts and by the ancient Laws of England if the said clause of annexation in the said Statute of 1. Eliz. had never been inserted That it was a gâ—osse Error
which is all I shall say of the duty of ministers in point of divinity Now I come to the second duty of men in holy orders in point of conveniency or policy and am clearly of opinion that even in this regard and reflexion they ought not to be debarred from modestly intermedling in secular affairs For if there be any such inconveniency it must needs arise from this that to exercise some secular jurisdiction must be evil in it self or evil to a person in holy orders Which is neither so nor so For the whole office of a subordinate civil Magistrate is most exactly described in Rom. 13. 3 4. and no man can add or detract from the same The civil power is a divine ordinance set up to be a Terror to the evil and an incouragement to good works This is the whole compass of the civil power And therefore I do here demand with that most learned Bishop Davenant that within a few dayes did sit by my side in the eleventh Question of his Determinations What is there of impiety what of unlawfulnesse what unbecoming either the holynesse or calling of a priest in terrifying the bad or comforting the good Subject in repressing of sin and punishing of sinners For this is the whole and intire Act of civil jurisdiction It is in its own nature repugnant to no person to no function to no sort or condition of men let them hold themselves never so holy never so seraphical it becomes them very well to repress sin and punish sinners that is to say to exercise in a moderate manner civil jurisdiction if the Soveraign shall require it And you shall find that this doctrine of debarring persons in holy orders from secular imployments is no doctrine of the Reformed but the Popish Church and first brought into this Kingdome by the Popes of Rome and Lambiths Lanfranc Anselme Stephen Langton and the test together with Otho and Othobon and to this only end that the man of Rome might withdraw all the Clergy of this Kingdome from their obligations to the King and Nobility who were most of them great Princes in those times and thereby might establish and create as in a great part he did regnum in regno a Kingdome of Shaâ—elings in the midst of this Kingdome of England And hence came those Canons of mighty consequence able to shoot up a priest at one shot into heaven as that he must not meddle with matters of blood that he must not exercise civil jurisdiction not be a Steward to a Noble man in his house and all the rest of this Palea and Garbage That is in plain English the Priest must no longer receive obligations from either King or Lords but wholly depend upon his holy Fathers the Pope of Rome and the Pope of Lambeth or at least wise pay him soundly for their Dis ensations and Absolutions when they presume to do the contrary In the mean time here is not one word or shew of Reason to inform an understanding man that persons in holy orders ought not to terrifie the bad and comfort the good to repress sin and chastise sinners which is the summa totalis of the civil Magistracy and consequently so fat forth at the least to intermeddle with secular affairs And this is all that I shall say touching the motive and ground of this Bill and that persons in holy orders ought not to be inhibited from intermedling in secular affairs either in point of divinity or in point of conveniency and policy The second point consists of the persons reflected upon in this Bill which are Archbishops Bishops Parsons Vicars and all others in holy orders of which point I shall say little only finding these names hudled up in an heap made me conceive at first that it might have some relation to Mr. Bagshawes reading in the middle Temple which I ever esteemed to have been very inoffensively delivered by that learned Gentleman and with little discretion questioned by a great Ecclesiastick then in place For all that he said was this That when the Temporal Lords are more in voices then the Spiritual they may passe a Bill without consent of the Bishops which is an assertion so clear in reason and so often practised upon the Records and Rolls of Parliament that no man any way vers'd in either of these can make any doubt of it nor do I Though I humbly conceive no President will be ever found that the Prelates were ever excluded otherwise then by their own folly fear or headinesse For the point of being Justices of peace the Gentleman confesseth he never medled with Arch-bishops nor Bishops nor with any Clergy man made a Justice by his Majesties Commission In the Statute made 34. Ed. 3. c. 1. He finds assignees for the keeping of the Peace one Lord and with him 3. or 4. of the most valiant men of the County the troublesome times did then so require it and if God do not bless us with the riddance of these two armies the like provision will be now as necessary He finds these men included but doth not find Church-men excluded no not in the Statute 13. Rich. 2. cap. 7. that requires Justices of peace to be made of Knights Esquires and Gentlemen of the Law of the most sufficient of each County In which words the Gentleman thinks Clerks were not included and I clearly say by his favour they are not excluded Nor do the learned Sages of the Law conceive them to be excluded by that Statute If the King shall command the Lord Keeper to fill up the Commissions of each County with the most sufficient Knights Esquires and Gentlemen of the Law shall the Lord Keeper thereupon exclude the Noble-men and the Prelates I have often in my dayes received this Command but never heard of this interpretation before this time So that I cannot conceive from what ground this general sweep-stake of Arch-bishops Bishops Parsons Vicars and all others in holy orders should proceed I have heard since the beginning of my sicknesse that it hath been alledged in this House that the Clergy in the sixth of Edw. the third did disavow that the custody of the peace did belong to them at all and I beleive that such a thing is to be found amongst the Notes of the priviledges of this House But first you must remember that it was in a great storm and when the waters were much troubled and the wild people unapt to be kept in orders by Miters and Crosiersstaves But yet if that noble Lord shall be pleased to cast his eye upon the Roll it self he shall find that this poor excuse did not serve the Prelates turns Fot they were compelled with a witnesse to defend their parts of the preservation of the peace of the Kingdome as well as the Noble men and Gentry And you shall find the ordinance to this effect set down upon that Roll. I conclude therefore with that Noble Lords favour that the sweeping
as Lord Coke saith it may be done without the help of a Parliament as the King appointeth Judges and great Officers in all the Courts in Westminster-hall without consent of Parliaments The Learned Lord Herbert in his History of Hen. 8. relating some passages of the Kings Reformation of some abuses affirmeth that the first fatal blow the English Church received was when the Redress of her was referred to the House of Commons Complaint was made for probate of testaments and mortuaries of pluralities non-residence and priests that were farmers of Lands c. But the King lost or let go for the present a principal point of his Supremacy whereby he might have reformed what was fit to be done in these and many the like businesses without referring to the House of Commons and we find that they never left off reforming till they have utterly deformed all and wholly suppressed all Ecclesiastical Law Courts and Jurisdictions The King by his Supremacy might have reformed and prescribed Laws for probate of Wills non-residence pluralities and many more such matters the Concurrence of the Metropolitan had been sufficient to regulate such matters according to the Laws Ecclesiastical for there are Laws Ecclesiastical in this Kingdome as well as Temporal and as ancient and fundamental as any part of the Common Law and therefore fit to be duly kept and observed Linwood doth gloss upon the Constitutions made by the Archbishops of Canterbury which are accepted for good Laws by the Common Lawyers in Ecclesiastical matters and so there are also Constitutions for the province of York and the Northern parts all which are allowed for good Laws Ecclesiastical by those that are truely learned in the Laws Two SPEECHES spoken in the House of Lords by the Lord Viscount Newarke The first concerning the right of BISHOPS to sit and vote in Parliament May 21. 1641. MY LORDS I Shall take the boldness to speak a word or two upon this subject first as it is in it self then as it is in the consequence For the former I think he is a great stranger in Antiquity that is not well acquainted with that of their sitting here they have done thus and in this manner almost since the conquest and by the same power and the same right as the other Peers did and your Lordships now do and to be put from this their due so much their due by so many hundred years strengthened and confirmed and that without any offence nay pretence of any seems to me to be very severe if it be jus I dare boldly say it is summum That this hinders their Ecclesiasticall vocation an argument I hear much of hath in my apprehension more of shadow then substance in itâ— if this be a reason sure I am it might have been one six hundred years ago A Bishop my Lords is not so circumscribed within the circumference of his Diocesse that his sometimes absence can be termed no not in the most strict sense a neglect or hindrance of his duty no more then that of a Leiutenant from his County they both have their subordinate Ministers upon which their influences fall though the distance be remote Besides my Lords the lesser must yield to the greater good to make wholsome and good Laws for the happy and well regulating of Church and Common-wealth is certainly more advantagious to both then the want of the personal execution of their office and that but once in three years and then peradventure but a moneth or two can be prejudicial to either I will go no further to prove this which so long experience hath done so fully so demonstratively And now my Lords by your Lordships good leave I shall speak to the consequence as it reflects both on your Lordships and my Lords the Bishops Dangers and inconveniences are ever best prevented elonginquâ— this precedent come near to your Lordships and such a one that mutato nomine de vobis Pretences are never wanting nay sometimes the greatest evils appear in the most fair and specious outsides witness the Shipmony the most abominable the most illegal thing that ever was and yet this was painted over with colour of the Law what Bench is secure if to alleage be to convince and which of your Lordships can say then he shall continue a member of this House when at one blow twenty six are cut off It then behoves the Neighbour to look about him cum proximus ardet Ucalegon And for the Bishops my Lords in what condition will you leave them The House of Commons represents the meanest person so did the Master his Slave but they have none to do so much for them and what justice can tie them to the observation of those laws to whose constitution they give no consent the wisdome of former times gave proxies unto this House meerly upon this ground that every one might have a hand in the making of that which he had an obligation to obey This House could not represent therefore proxies in room of persons were most justly allowed And now my Lords before I conclude I beseech your Lordships to cast your eyes upon the Church which I know is most dear and tender to your Lordships you will see her suffer in her most principal members and deprived of that honour which here and throughout all the Christian world ever since Christianity she constantly hath enjoyed for what Nation or Kingdome is there in whose great and publick Assemblies and that from her beginning she had not some of hers if I may not say as essential I am sure I may say as integral parts thereof And truly my Lords Christianity cannot alone boast of this or challenge it onely as hers even Heathenisme claims an equal share I never read of any of them Civil or Baâ—barous that gave not thus much to their Religion so that it seems to me to have no other original to flow from no other spring than Nature her self But I have done and will trouble your Lordships no longer how it may stand with the honour and justice of this House to pass this Bill I most humbly submit unto your Lordships the most proper and only Judges of them both The Second SPEECH about the Lawfulness and Conveniency of their intermedling in Temporal Affairs MY LORDS I Shall not speak to the preamble of the Bill that Bishops and Clergy men ought not to intermeddle in temporal Affairs For truly My Lords I cannot bring it under any respect to be spoken of Ought is a word of Relation and must either refer to humane or divine Law To prove the lawfulnesse of their intermedling by the former would be to no more purpose then to labour to convince that by reason which is evident to sense It is by all acknowledged The unlawfulnesse by the latter the Bill by no means admits of for it excepts Universities and such persons as shall have honour descend upon them And your Lordships know that circumstance and chance alter not the
the Judges But Ministers have no remedy to help themselves there being none of the Clergy upon the Bench in any authority CHAP. II. Of the Government of the Church and State of Israel by Moses and Aaron and their Successors until Christ about 1500 years That there were not two several Iurisdictions one Ecclesiastical the other Civil WHen God delivered his chosen people out of Aegypt and conducted them through the Wildernesse towards the promised Land of Canaan He began first to publish his Law And by Moses delivered them many Laws in Five Books Whatsoever Lawes he gave either moral ceremonial or Judicial they are all contained in the Five books of Moses and no man could better understand them then the Priests and Levites For God made his Covenant with Levy of Life and Peace The Law of Truth was in his mouth The Priests Lips should preserve knowledge and they should seek the Law at his Mouth Mal. 2. 5 6 7. and so Ezekiel 44. 23. They shall teach my people the difference between the Holy and prophane and cause them to discern between the unclean and the clean and in Controversie they shall stand in judgement and they shall judge according to my Iudgements and they shall keep my Lawes and my Statutes in all mine Assemblies They being the principal Judges and Lawyers in that Common-wealth of Gods own Constitution And whereas it is now granted on all hands that there were three Courts of Justice in that Kingdome 1. The great Council of the 70. Elders 2. The Court of Judgement which was in in every good Town where there were many families 3. The Court of three or some few more The Priests and Levites were principal men both Judges and Officers in all Courts Scophtim Scoterim as 1. Chron. 23. 4. both to give sentence and judgement and also to execute the same So the Divines do affirm in their late Annotations upon 1. Chron. 26. 29 30. 2. Chron. 19. 8. 11. They did study the Judicial and politick Laws and had power to see the Law of God and Injunctions of the King to be observed and to order divine and humane affairs And they held also other honourable offices for we read that Zechariah a Levite was a wise Counsellour and Benjah a Priest Son of Iehojadah was one of Davids twelve Captains being the third Captain of the Host for the third month and in his course consisting of 24000. was his Son Amizabad Benjah also was one of Davids principal worthies having the name of the three mighties He was also Captain of the guard to David and after the Death of Ioab he was made Lord General of the Army by King Salomon in Ioabs room 1. K. 2. 35. It is recored 1 Chron. 26. 30. That of the Family of the Hebronists Levites there were a thousand and seven hundred Officers on this side Iordan westward in all businesses of the Lord and in the service of the King and two thousand and seven hundred chief Fathers and men of valour whom King David made Rulers over the Reâ—bonists the Gaditeâ—s and the half Tribe of Manasses for every matter pertaining to God and affairs of the King v. 31. 32. Whereby it manifestly appears that the same Judges and Officers being Priests and Levites most of them did hear and determine all sorts of causes pertaining to God and affairs of the King both Ecclesiastical and Temporal so that there was not several Courts the one Ecclesiastical and the other Civil as in these times some do affirm too peremptorily according to the Common practise and usage of these days as Godwin in his Moses and Aaron lib. 5. Beza Iunius and divers others with the Kirkmen of Scotland lately Rutherford Gillespie Baily and others So also the Papists generally who that they may establish the Popes Supremacy above Kings and their common-Common-laws do affirm that Regimen Ecclesiasticum est distinctum a politico as Bellarmine de Romano pontifice lib. 1. cap. 5. so our zealous party for the like ends and reasons would maintain a Government in the Clergy seperate from and independent upon the Civill Magistrate and such as ought to be directed and ruled only by the word of God and his Spirit ruling as they suppose in their classical Assemblies where they think the Throne of Christ is only to be advanced and all his holy Ordinances put in execution Whereas the King is Custos utriusqne tabulae and the Supremacy in causes Ecclesiastical as well as Temporal is acknowledged by our Statutes and annexed to the Crown For Execution thereof an Act was made 1. Eliz. cap. 1. But if the Statute had not been made to annexe the Supremacy to the Crown yet as the Lord Cook saith 4. Instit. p. 331. King Iames hath and Queen Elizabeth had before him as great and ample Supremacy and Jurisdiction Ecclesiastical ase ver King of England had before them and that had justly and rightly pertained to them by divers other Acts and by the ancient Law of England if the said clause of annexation in the said Statute 1. Eliz. had never been inserted But Iohn Pym in his Speech in Parliament 4. Caroli as Rushworth hath it in his late Collections saith that the high Commission was derived from the Parliament As if the Parliament gave the King the Supremacy as a gift of their own and that it was not vested in the Crown but as they gave it so they may take it away when they please and suppresse the Court of high Commission as they have done The duty of the Court was to reform and correct all Heresies Schismes Abuses Offences Contempts and Enormities But now upon Suppression of the Court all Heresies and Schismes in the world are broke out and such abominable abuses offences and enormities as never were known in this Kingdome with allowance and toleration This follow 's upon the new light and doctrine of Iohn Pym and all the rest of the Presbyterians who have stirred up all these troubles and of late they called the House of Commons the Supream power of the Nation in all Addresses and Petitions made unto them It was a great Error of Calvin and Beza and many others that follow them to affirm that there was one Court Ecclesiastical and another Civil in Israel Calvin upon Ieremiah 19. 1. pag. 152. saith Scimus duos fuisse ordines publicos vel duplex regimen ut loquuntur sacerdotes erant praefecti Ecclesiae nempe quoad legem ita ut spiritualis esset eorum gubernatio erant seniores populi qui prae erant rebus politicis utriusque vero quaedam inter se communio Calvin understood only the plain Hebrew not the Rabbins and Talmud nor the Jewish Antiquities Therefore in several places he is mistaken as upon Numb 11. 17. Where God appointed first the 70. Elders to be joyned as Assistants to Moses He doth interpret the Text I will take off the Spirit that is upon thee and put
confidebant orationibus quam armorum defenâ—ionibus The Prince and People did rely more upon the prayers of the Church for their deliverance and help then upon any arms that they could raise though the necessity of those times was very urgent burdensome and desperate But there is no such Piety Mercy or favour now shewed to the Churcâ— or any part of the Clergy But their Estates Lands and Revenues are the first that are seised on sequestred sold and disposed to raise money for the maintenance of War and paiment of Souldiers Gothes and Vandals Scots and Redâ—hanks as errand Philistines as ever came out of Gath and Askelon And all particular ministers of every Parish though they loose not all their Tythes yet they are taxed in a greater proportion then any Lay men and many Shires petitioned the Parliament to take away Tithes and it was debated also in the Rump-Parliament to take away Tythes and the Lands of both Universities to maintain Soldiers and their Charges which are so excessive and outragious Hanc libertatem teâ—uit Anglorum Ecclesia usque ad tempus VVillielmi junioris c. VVilliam Rufus was the first that inforced this payment on the Barons and the Clergy Concessum est ei non lege statutum neque firmatum sed habuit necessitatis causa ex unaquâ—que hyda quatuor solidos Ecclesia non excepta quorum dum fiereâ— collectio proclamabat Ecclesia libertatem suam reposcens sed nihil prâ—fecit Thus the Religious and Learned Spelman being the greatest Patron and Defender of the Church and the rights and priviledges thereof that this age hath afforded Glossar pag. 200. on the word Dangeldum Dr. Burgesse the Examiner might have observed what Cambden and Spelman have written of the distinction and difference of Barons both Authors having written long before he had taken the boldnesse to talk so poorly of the Baronies of Bishops to whom William the Conquerour did not add much to endear them but imposed many burdens upon them He restrained them in many things using the power of a Conquerour and clipped the Wings of their Temporal power and confined them within the Limits of their Ecclesiastical Jurisdiction He procured Stigand Archbishop of Canterbury Agelrieus Bishop of East-Angles and certain other Bishops and Abbots to be depâ—ived by authority from Rome and detained them in prison that strangers might enjoy their places As Sir Iohn Hayward sheweth in his History of the three Norman Kings pag. 87. before time they had part in fines and Mulcts and power of coyning money as appears by the Laws of King Athelstan De Monolariis pag. 399. and many other places But these were soon after reserved to the Crown as principal prerogatives And till the Council of Clarendon under Hen. 2. the Clergy and Bishops enjoyed many more freedoms and priviledges which were abated oftentimes and much diminished about which there was great contention when Thomas Becket opposed the King which the learned Glâ—ssary sheweth pag. 82. Episcopi autem Barones dici videantur propter nominis dignitatem non quod vassallagium pendebant aut seculare servitium Hoc enim nostratibus jugum injecit omnium primus Willielmus senior Anno 1070 ut in eodem tradit Matth Paris Auxit magnopere Willielmus junior ut in Historiola Ducum Normaniae in lib. Edwardi Confess C. 11. Sed post varias colluctationes aeterno robore domum confirmavit Hen. 2. Anno Dom. 1164. in magno Concilio Clarendoniae habito Praesidente eidem ex ipsius mandato sacellano suo Iohanne de Oxonia praesentibusque Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Regni in hunc tenorem Archiepiscopi Episcopi Vniversae personae Regni qui de Rege tenent in capite habeant possessiones suas de Rege sicut Baroniam inde respondeant Iusticiariis ministris Regis sicut Caeteri Barones debeant interesse judiciis curiae Regis cum Baronibus quousque perveniatur ad diminutionem Membrorum vel ad mortem So that the Bishops besides that they are called by the Kings Writ to Parliament and thereby have the same right that other Lords have yet since the Conquest they may be accounted also among the Feudal Barons Qui nomen dignitatemque suam ratione fundi obtinuerint transferri autem olim aliquando videatur dignitas cum ipso fundo ut Episcopi suas sortâ—untur Baronias sola fundorum investiâ—ra Nam ut inquit Stamfordus lib 3. cap 62. Ne ont lieu en Parliament ejus in respect de leur possessions S. L' ancient Barones annexees a leur dignites Whereas therefore Dr. Burgesse saith pag. 45. albeit the Bishops are usually said to hold of the King per Bâ—roniam yet this happily may be meant rather of the honour affixed to their places which works it up into a dignity then of the Land pertaining to them This is but fustian nonsence and gross ignorance for like Feudal Barons suas sortiuntur Baronias sola fundorum investitura In like manner I take it as the Earls of Arundel both formerly and of late being possessed of the Castle of Arundel Honour and Signory without other consideration or creation to be an Earl became Earls of Arundel and the name State and Honour of the Earl of Arundel peaceably enjoyed as appeareth by a definitive judgement given in Parliament as Cambden relateth out of the Parliament Rolls of Hen. 6. out of which Cambden copied out what he saith Further Dr. Burgesse saith That the Bishops ought not to have the same legislative power as the Temporal Barons because these are for their Sons and Heirs and the others for their Successors only This Objection is frivolous because the Bishops being men of great Integrity and Learning are as careful for the preservation of the publick wherein standeth the Safety of themselves and their Successors as any Temporal Lords â—an be and perhaps the more because Temporal Lords do often fall into great want and poverty selling sometimes the very head of their Baronies and so oftentimes become very obnoxious and some of them growing poor have been degraded of their Titles and Honour Whereof Lord Cook giveth an instance 4. Instit. pag. 355. How Nevil both Father and Son Dukes of Bedford were degraded by the King and Parliament 17. Edw. 4. And for so much as it is openly known that George Nevil Duke of Bedford hath not nor by Inheritance may have any livelyhood to support the said Name Estate and Dignity or any name of estate as oftentimes it is seen that when any Lord is called to high estate and have not Livelyhood convenient to support the same dignity it induceth great poverty and indigence and causeth oftentimes great Extortion Imbrolery and maintenance to be had to the great trouble of all such Countries where such estate shall happen to be inhabited wherefore the King by the advice of his Lords Spiritual and Temporal and the Commons in this present
So Dr. Burgesse termeth the Learned Dr. Davenant Bishop of Salisbury only a speculative Divine He being an eminent and principal Divine Head of Queens Colledge in Cambridge and publick Professor and chosen by King Iames to be sent to the Synod of Dort and by his Learned works publickly famous and renowned Such malapert language against such Honourable and eminent Bishops from an inferiour Doctor is not to be endured without sharp censures Now though some Canons may seem to forbid the Bishops and Clergy to intermeddle with secular affairs yet that is not absolutely forbidden but in a qualified sense as in the famous Council of Clâ—veshoe under Cuthbert Archbishop of Canterbury Anno 747. Can. 1. Negotiis secularibus plusquà m Dei servitiis quod absit subditus existit To attend secular affairs more then spiritual and to be wholly imployed and conversant in Temporal matters without due regard to the better part But it will not hinder sacred studies nor the diligent preaching of the Gospel that some principal men at convenient times have a charge and over-sight of Temporal affairs and the carriage of publick businesse And concerning this see more in Bishop Davenants Determinations at Cambridge Quest. 11. Civilis jurisdictio jure conceditur personis Ecclesiasticis Thus much might serve for Reply to the Examiner Dr. Burgesse especially upon the fifth reason which I hold to be the only thing material in the whole Discourse for the rest will appear to be needlesse if this be clear'd But if he would look back to former times he shall find that our Kingdome and Government followed the ancient manner of Gods own people of Israel whose Ceremonies and Rituals though they be now abolished yet the general rules of Justice Equity Government and Order do still remain And as God made the priesthood then honourable in the Kingdome of Israel and committed a great part of the Government unto them so doubtlesse now under the Gospel the priesthood ought to be Honourable and to have a principal part in the ruling and governing of the Kingdome To be a Priest in Israel was to be a cheif man Levit 21. 4. and therefore in all their Courts of Justice the priests and Levites were cheif men in authority for deciding all causes both in the great Court of Sanedrim at Ierusalem which was a Continuation of the 70. Elders appointed by God himself Numb 11. and was answerable in authority to our Parliaments it being the highest Court of Judicature in that Kingdome and so in the second Court of Judgement as our Saviour calleth it Mat. 5. 22. where there were 23 Judges whereof 7. were of the Laity as we now call them Elders of the Cities and every good City consisted of _____ Families unto which 7. of the Elders there were added 14 Priests and Levites as Iosephus sheweth lib. 4. cap. 8. where though he seem to say that the number of the Judges was seven yet if his next words following be well observed he sheweth the addition of two priests and Levites to each of the other Magistrates of the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intellig it singulos magistratum gerentes quibus singulis bini erant additi adsessores periti juris quos Iosephus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vocat Septem ergo municipes loci erant judices praeterea adsessores quatuordecim qui ex Levitis maxime sumebantur his supernumer arii accessisse videntur unus alter So Grotius in Mat. 5. 21. and so also the English Translation doth render the place In every City or Township let there be seven Governours such as are approved in vertue and famous for their Justice and let each of these Magistrates have two Ministers of the Tribe of Levi. In this Court of Judgement all manner of causes were heard of Life and Death whatsoever matters of Controversie within their gates Ecclesiastical or Temporal Yet excepting some weighty businesses concerning a whole Tribe or the high priest or a false Prophet which belonged only to the great Council at Ierusalem Whether also they might appeal in any doubtful cause which was too difficult for the inferiour Courts Iudices in portis cujusque Civitatis jus super causis majoribus reddebant in homicidas lege agere solebant de quibus agitur Deutr. 16 18. 21 22. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 autem paena erat gladius quia de homicidis inibi cognoscebatur ut Moses nos docet Christus Grotius in Mat. 5. 21. When King David was old and neet his Death he appointed Salomon to be King after him and caused a Parliament of all Israel to be assembled wherein he gathered together all the Princes of Israel with the Priests and Levites 1 Chr 24 1. 2. In this great Parliament the priests and Levites were not omitted not in any Court of Justice in that Kingdome For as it is p. 4. There were six thousand of them appointed Officers and Judges throughout the land of Israel which is the thing that now many of our Common people do much dislike not well induring a few Justices of Peace to be of the Clergy whereas we have the example of David guided and directed by the Spirit of God as the Text saith 1 Chron. 28 12 13 19. So disposing and ordering the Levites that he appointed some for the outward businesse over Israel for Officers and Judges a thousand and seven hundred were Officers of Israel on this side Iordan in all businesses of the Lord and in the service of the King This Text is very plain to prove that the same man may be employed in Ecclesiastical matters of the Church as also in the Kings Service So pag. 32. David appointed two thousand and seven hundred cheif Fathers to be Rulers over the Reubenites Gadites and the half Tribe of Manasses who were beyond Iordan for every matter pertaining to God and affairs of the King and c. 26. 14. Zecharias a Levite is commended for a wise Counsellour But that now any of the Clergy should be Councellours Judges or Officers unto Princes is accounted by some an unlawful thing or at least not very commendable Whereas we see by this very law and direction of King David that the Levites might attend businesse belonging to the worship and service of God and instruction of the people as also of the publick service and affairs of King and State So the Divines in their late Annotations on the Bible do acknowledge that the Levites did study the Judicial and politick Laws and had power to see the law of God and injunctions of the King to be observed and to order divine and humane affairs 1 Chron. 26. 29 30. 2 Chron. 19. 8 11. So the Learned Grotius Sicut lex erat uan praeptrix divini omnis humanique juris ita apud Hebraeos penes eosdem erat juris utriusque interpretatio Upon Mal. 2. 4. and so other Commentaries do affirm as Lavater in cap. 23. Per
now there is a generation of men who do not think the Clergy necessary Men to be consulted that will interpret Scriptures remove the Ark of God as it were and do things without the presence vote and suffrage of the Chief Fathers of the Levites which how it agreeth with this pious Example of King David and King Iames's Meditations upon it I leave to be Considered CHAP. VII I◠the first frame of our English Common-wealth the Bishops in every Diocess were the principal Iudges The Charter of William the Conquerour for the dividing the Courts The Statute of Circumspectè agatis 13. Ed. 1. and Articuli Cleri 9 Ed. 2. appointing what Cause shall belong to the Ecclesiastical Courts THe first frame of our English Common-wealth was so setled and ordered by the Saxon Kings when once they became Christians That the Bishop of the Diocess together with the Aldermen of the County and so their Deputies in-inferior Courts under them should be equal Judges together upon the same Bench in the same Courts and there determine all Causes in the forenoon Church-matters and in the afternoon secular business as Selden sheweth in his notes upon Eadner p. 166. and Bishop Iewel in part observes in his Defence of the Apology Part 6. p. 522. This Course continued till William the Conquerour and perhaps it had been very happy for our Kingdome if the frame of our Laws and Courts had so still continued joyned together for many reasons that I will not now further insist upon Gulielmus primus sacrum à Civili discriminavit forum etenim florente Saxonum imperio mutuas injure dicundo veluti tradebant operas atque eodem utebantur his quotannis for◠Dioeceseos Episcopus simul provinciae Praeses seu vice-Comes quem Sheriffe nunc dicimus interdum Ealderman nominabant c. The Conquerour first separated the Temporal Courts from the Ecclesiastical yet not diminishing the authority of the Churches Jurisdiction which by his oath he confirmed and promised to preserve affirming Quod per Ecclesiam Rex regnum solidum habent subsistendi fundamentum So that he subverted rather Ecclesiastical power and jurisdiction but as formerly in the County or in the Hundred so now in the Bishops Court all Ecclesiastical Causes were heard and determined For the old manner the Laws of King Edgar do shew it Cap. 5. Intersit unusquisque Hundredi Gemoto ut superius est praescriptum habeantur burgemottitres quotannis duo vero scire-gemotti de istis adsunto loci Episcopus Aldermannus doceatque alter jus divinum alter saeculare In Hundredo aderant Thani quos Barones vocant posteri ut patet e. L. Ethelredi Cap. 1. ipsique judices Ecclesiastici cum partis illius Clero in Hundredo enim non minus quà m in Comitatu unà haec agebantur quae ad forum pertinent Ecclesiasticum quae ad saeculare donec Gulielmus Conquestor divisis jurisdictionibus hanc ab illa separavit For the Division of the Courts and the Erection of the Ecclesiastical to sit by themseves under the Bishop and Arch-deacon it appears by the Charter of King William to the Dean and Chapter of Lincoln And though it be sent in the direction by name to them only yet it seems it grew after to be a general law no otherwise then the Statute of Circumspecte agatis that hath a special reference onely to the Bishop of Norwich as Lord Coke saith 2 Instit. 487. The Bishop of Norwich is there put but for example but it extendeth to all the Bishops within the Realm And so Selden telateth in his History of Tithes Cap. 14. Sect. 1. and in his Ianus Lib. 2. Sect. 14. And in his notes upon Eadner p. 167. The words of it as they are recorded are Willielmus gratia Dei Rex Anglorum Comitibus vice comitibus omnibus Francigenis Anglis qui in Episcopatu Remigii Episcopi terras habent salutem Sciatis vos omnes coeteri mei fideles qui in Anglia manent quod Episcopales leges quae non bene nec secundum sanctorum Canonum praecepta usque ad mea tempora in regno Anglorum fuerunt Communi Consilio Cousilio Episcoporum Abbatum omnium principum regni mei emendandas judicavi Propterea mando regia authoritate Praecipio ut nullus Episcopus vel Archidiaconus de Legibus Episeopalibus amplius in Hundret placita teneant nec causam quae ad regimen animarum pertinet ad judicium secularium hominum adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum Hundret sed seeundum Canones Episcopales leges rectum Deo Episcopo suo faciat Which I the rather transcribe saith Selden because also it seems to give the Original of the Bishops consistory as it sits with us divided from the Hundred or County Court wherewith in the Saxon times it was joyned And in the same Law it is added further Hoc etiam defendo ut nullus laicus homo de legibus quae ad Episcopum pertinent se intromittat Thus Selden Only the words of the Charter are more fully recited out of the Records by another Learned Author Si vero aliquis per superbiam elatus ad justitiam Episcopalem venire noluerit vocetur semel secundo tertio Quod si nec ad emendationem venerit excommunicetur Et si opus fuerit ad hoc vindicandum fortitudo justitia Regis vel vicecomitis adhibeatur Ille autem qui vocatus ad justitiam Episcopi veniro noluerit pro unaquaque vocatione legem Episcopalem emendabit Hoc etiam defendo mea authoritate interdico ne ullus Viceeomes aut praepositus aut minister Regis nec aliquis laicus homo de legibus quae ad Episcopum pertinent se intromittat nec aliquis laicus homo alium hominem sine justitia Episcopi ad judicium adducat Iudicium vero in nullum locum portetur nisi in Episcopali sede aut in illo loco quem ad hoc Episcopus constituerit And the punishment for disobedience to the Ecclesiastical Judges was much alike as formerly was enacted under the Saxon Kings as by King Alured Si quis Dei rectitudines aliquas deforciot reddat Lathlite cum Dacis Witam cum Anglis And the same Law is afterwards confirmed and renewed by King Canutus and by other Kings Whereby it appeareth how before the Conquest and likewise after for a long time the authority and jurisdiction of the Church was maintained and upheld by the setled Laws of the Kingdome How they had power in their Courts to excommunicate and further by the help of the King and the Sheriffe to proceed against stubborn offenders and such as opposed or contemned their authority so that here is
the present practise and Law confirmed by the continual practise of many hundred years The Law being thus made by the Conquerour to separate the Ecclesiastical Court from the Temporal there followed after in succeeding times Statutes to direct and appoint what causes shall belong to the Bishops Jurisdiction As the Statute called Circumspecte agatis made 13. Edw. 1. and Articuli Cleri 9. Edw. 2. which besides others Coke doth expound in the 2. Instit. at large pag. 489. 599. So that the Ecclesiastical Laws and Courts being thus setled by ancient Statutes and Magna Charta and besides long use and Custome the Laws are Fundamental and necessary as well as any part of the Common-law and cannot be wholly taken away without great injustice confusion and great disorder in the Kingdome and Church as it happen'd most pitifully in these troublesome times But Parliaments are obliged to maintain the Fundamental Laws of the Land as they have often professed solemnly in many of their Declarations Protestations and Remonstrances But in conclusion they have overthrown all Ecclesiastical Courts and Laws though never so ancient and Fundamental and now they would pretend to set up new laws and orders which they call Presbyterian Government by Lay Elders in every Parish a fond and foolish project contrary to the Laws of God and Man such as they have heard to be at Geneva and some other places beyond Sea where there are no Lords Knights Esquires or Gentlemen as with us in England But their new States are popular without degrees of Honour and distinction of Gentry They do as their Neighbours at Strasborough and the Switzers of whom Bodin saith lib. 6. c. 4. Argentinenses Caesa prostrata nobilitate cum imperium populare invasissent legem communibus suffragiis tulerant ne quis summos in Civitate Magistratus adipisceretur nisi a cerdonibus aut coriariis aut id genus sordidis opificibus stirpem traxisset idenim veteribus Grâ—cis usit atum erat ut in iis civitatibus quae popularia imperia stabilire ac tueri vellent cives omnes quantum quidem fieri posset opibus honoribus imperiis ac vitae conditione exaequarent ac si quis prudentia justitia fortitudine aut ulla virtute caeteris praeluceret ac emineret hunc ostracismo exterminabant aut ne virtutitam aperte bellum indicere viderentur accusationibus calumniis opprimebant atque id unum efficere conabantur ut singuli Cives non magis sui similes essent quam omnes omnium They either banished or put to death all their Nobility and so made themselves a popular state and further made a law that no man should bear any publick office among them but such as would derive their Discent and Pedegree from some base Trade a Cobler or Carrior or such like Among such people Presbyterian Government may be better allowed then in a Kingdome flourishing with all degrees of Honour Dukes Marquesses Earls Barons Knights c. But where only Tradesmen are chapmen Pedâ—ars and Artificers as they are at Geneva there any government in the Church may better be tolerated then in a Monarchy The Glossary sheweth to that purpose that Tradesmen are base fellows in Herauldry and among base fellows any base government may serve the turn Burgenses Mercatores sunt sordidum hominum genus as Tully said Burgenses dum cauponandis mercibus rei Mechanicae navarent generosae turbae militiam omnino admiranti despectui erant adeo ut cum illis nec connubia jungerent nec Martis aleam experirentur and so also the Civil law saith patritii cum Plebeis conjugia ne contrahunto And in our law it is reputed a disparagement for a Ward in Chivalry which in old time was as much as to say a Gentleman to be married to the Daughter of one that dwelt in a Burrough as Lambard sheweth in his perambulation of Kent pag. 504. So the old Statute of Merton Anno Dom. 1235. cap. 7. De Dominis qui maritaverint illos quos habent in custodia sua Villanis aliis sicut Burgensibus ubi disparagentur c. Lord Coke sheweth what causes belong to the Court Christian viz. Probate of Wills and Testaments Legacies Reparation of Churches and Church-yards Tyths Oblations Mortuaries and such like duties Matrimonial causes degrees of Affinity or Consanguinity Divorces and what else belongeth thereunto And divers other particulars as appears in divers statutes and the Books of the Civil Lawyers as punishment of Adultery Fornication and Incontinency Incest with many other the like as Heresies Schismes Errors Abuses Offences Contempts and enormities as Lord Coke saith 4. Instit. pag. 325. and so also the excellently learned Lawyer Dr. Cosin Dean of the Arches in his Apology for Ecclesiastical Courts and their proceedings against Simony Usury Defamation Sacriledge Disapidations c. But now the Presbyterians neglect and cast off most of these particulars that there is no punishment for those gross offences and sins which are not fit to be mentioned among Christians saith the Apostle There is of late an infinite number of bastards gotten and the Justices of peace only take care for keeping the Bastard But there is no punishment or correction for the scandal to Religion and the vulgar people go together like Dogs and Bitches without licence or publication of banes in any parish The Holy Communion is cast aside and neglected in most parishes most shamefully The Common-people in most parishes will rather be without the Sacrament then give one penny to buy Bread and Wine for it that they are become Atheists in most places and many Sectaries professe publickly that they will not have Churches or Stone-houses nor Ministers or Magistrates And yet the Parliament pretended to reform all according to the word of God in all things to advance the Throne of Christ and the Tribunal of Christ with all his holy ordinances in full force and power as the Language is of the Presbyterian Ministers CHAP. VIII Some Observations out of the Civil Law in the Empire concerning the separation of Courts and some also out of the ancient Statutes as Selden hath related them Lord Cooks Defence of the Bishops being in Parliament and of the Convocation and High Commission and other Ecclesiastical Courts AS the Courts Ecclesiastical and Temporal were separated in our Kingdome so anciently there was some such division in the Empire yet the Emperour gave great power and authority to the Ecclesiastical Judges according to that which Iustinian saith of spiritual Causes in the Novell 123. si pro Criminal si Ecclesiasticum negotium sit â—ullam Communionem habento Civiles Magistratus cum ea disceptatione sed religiosissimi Episcopi finem imponunto If it be an Ecclesiastical Suit let the Civil Magistrates have nothing to do there with that plea but let the Bishops end it Whereby it appears that prohibitions from the Temporal Courts were not then allowable which certainly came not into use till after
and a notorious offence of I. Pym to affirm as he did in his Speech in Parliament 4. Caroli That the high Commission was derived from the Parliament An impudent ignorant and seditious speech which if it had been spoken in the time of Henry the eighth when he recovered his Supremacy from the Pope the King would quickly have hanged or burnt him as he did many in his Reign upon that point of his Supremacy For though Parliaments may submit and acknowledge the Kings Supremacy yet they are not the Donors or Authors of it it is originally vested in the Crown and is a principal Flower thereof that cannot be denyed ot taken away from the King by any of their Votings or Ordinances And the King may again restore the Court of High Commission without the help of a Parliament and appoint such Judges and Commissioners as he shall think fit without direction or assistance from the House of Commons as the King doth appoint Judges in all other Courts without their consent and so may doe still in this Court Which is absolutely necessary to be done to suppresse the abominable and detestable increase of Sectaries and Schismaticks that are now risen up in this Inter-Regnum of the Kings Authority CHAP. IX The Example of the late warrs in Bohemia Germany France might well have forewarned us in England The Godly Covenant of Bohemia might well have given us Caution to take heed of a Covenant without the Kings consent The Church Lands taken away formerly are restored by the Emperour Grotius his Censure of the Presbyterians for raising Wars TO return again to our former matter of the separation of the Courts it is to be considered that the Courts being now divided in the Kingdome many hundred years since the ancient manner of their union is forgotten and unknown save only to the Learned and the scars of the Norman Conquest are so overgrown that few men are sensible what reliques of Slavery do still remain upon us by changing the order of the Courts the Language of the Law in great part with other things that I will not now mention But being so setled by the Conquerour and continued by his Successors the Temporal Courts in process of time grew too powerful for the Ecclesiastical and by their injunctions and prohibitions stopt many proceedings especially after the Councel of Clarendon under Hen. 2. Wherein the power of the Clergy was much abated and all Ecclesiastical Jurisdiction so crushed that it continued lame ever after Though the Clergy by appeals to Rome and the Popes Legats that were often sent hither did oftentimes help themselves and much molest their Adversaries At length under Hen. 8. upon his breach with the Pope the Ecclesiastical Jurisdiction was much abridged and restrained in many particulars and reduced to a narrow compass becoming much more subject and obnoxious to the Injunctions Orders and prohibitions of all the Temporal Courts that now I mervail that any should complain and envy at their power and greatness there being no cause of any value or moment but by one order or other is drawn from them to the Temporal Courts And now at last there want not some that would have all Ecclesiastical authority and jurisdiction either wholly suppressed from the first Court to the last or at least so abated mingled or changed that what form or force of Government shall be left remaining seems very uncertain But if Presbyteries and such like Consistories of the forraign and new fangled devising were erected there will follow great confusion and disorder to the infinite disturbance of peace and quietnesse in the Kingdome by alteration of so many laws and customes and of the Common Law it self whereby the Kingdome hath been governed so many years and setled in peace and all mens estates and Lands held in certain possession For such great and universal changes as will follow upon the dissolution of the Hierarchy and taking away the Votes of Bishops in Parliament and other eminent parts of Government will produce such ill events and troublesome distractions as will not be pacified and composed within the compass of any mans life now living And what further mischeif may follow is uncertain but surely great troubles are like to ensue as indeed it hath happened in a most lamentable manner But if our Nation could have taken warning by the example of the late wars that happened these last 40. years in France Germany and Bohemia they might have prevented much evil for there the Wars began by men of the same spirit and humours as our Presbyterians are among us and had the same ends and purposes as ours had which is to take away the Honours Lands and Revenues of Bishops and all that belonged to them The ill sâ—ccesse of their names might well have forewarned us if there had been men among us wise and knowing of the Histories of the present age When we saw the Flame and Smoke of â—he Bohemian War ascend to heaven in our sight in most hideous manner And in the end all the zealous party were utterly undone and confounded that began the war against the Emperor to take away the lands of all the Clergy Bishops Deans and Chapters c. Which they account to be the flesh of the Whore of Babylon and the bones of the old Whore that is of the Pope So Brightman and Pareus and other zealous men do interpret the Text Revel 17. 16. All the Lands of the Church and Revenues among which they reckon Tythes are the flesh of the Pope which they must eâ—â—e and devour not Physice but Mystice saith Pareus in his Commentary For otherwise to eat the flesh of the Pope naturally being commonly an old man and perhaps full of Diseases would be no good meat or pleasing Diet But mystically to eat him that is to take away the lands revenues and riches of the Church will bring in profit and money that will provide better diet to feed upon then the body and flesh of an old Pope This Sacrilegious appetite and outragious covetousness to get the lands of the Church and Bishops proved very tragical to Bohemia and most parts of Germany And to shew a little their manner of proceeding I will digresse a little because it is so remarkable and fresh a Case within these last 40. years First therefore the Bohemians in the year 1619. assembled a Parliament without the Emperors Consent They raised a great army and put Garrisons also in all the best Towns and Castles They made a Godly Covenant consisting of an 100 articles just the same in Substance with our late Scottish Covenant they raised great Taxes and excise to maintain their armies and garrisons For two years they prevailed much and brought in a new King the Palsgrave but at the end of two years the Emperors great armies came upon them and fought the great Battle of Prague 8. Novemb. 1620. The Duke of Bavaria came with twelve thousand men and other great
Commanders joyned as the Count of Bucquoy the Count of Tilly the Count of Papenheim the Count of Maradas Besides other great Captains of note having an Army of 40. thousand men and fought the great Battle neer Prague and prevailed powerfully Next day the City of Prague was surrendered the Palsgrave fled away and of 30. Committee-men in Prague which directed all businesse twenty seven were apprehended and the next year after they had been tryed and condemned by the Common-law of the land for rebellion and raising armies and Committees they were put to death upon one stage the same day Not long after ten thousand protestant Ministers and Churches were suppressed and the Ministers banished out of the Kingdome and the provinces annexed of Moravia Silesia Lusatia and other Countties of the Emperor The Covenanters who had seised on the Lands and Revenues of the Bishops and Deans aud other societies by way of Sequestration first which word they used in one article of their Covenant were forced to yield up those lands and to restore them to the former owners and so also in many other parts of Germany Lands and Houses of the Clergy which were taken away an hundred years before were restored to the right owners And for the Godly Covenant they renounced it aâ—d would have been glad to have enjoyed the favours which the Emperors formerly permitted them out of his Clemency But since they raised such a bloody War he would not suffer them longer to enjoy his former favours So that the Bohemians and most parts of Germany who enjoyed peace and great happinesse in all respects lost all by striving to overthrow the Bishops and the Ecclesiastical Laws and to take their Lands This miserable event might well have forewarned us in England not to offend in the same kind as they did to overthrow Bishops and all the preferments of the Church to bring in Preâ—byterian purity and lay elders and to impose a godly Covenant wich was indeed a wicked combination and Conspiracy far worse then the Covenant of the low Countries or that of France against Hen. 3. Hen. 4. which had almost confounded all France and was at length the destruction of those two great Kings who were both miserably murdered and put to death as our King Charles was in most abominable manner and in many respects more horribly then those two Kings for they were stabbed on a suddain by two villaines and without the consent of the people and severe punishments were inflicted upon them speedily But King Charles in a deliberate manner by men that pretended Justice and upright dealing who called an high Court of Justice never heard of before no Judges of the Land consenting or approving and so openly in the face of the sun and of all the world with an high hand and professed malice and outragious fiery zeal that the Emperor Maximilian did justly say that the Kings of England were Kings of Devils And though the Presbyterians would excuse themselves that they never intended the Kings destruction yet that is a frivolous and foolish excuse for as Sir Walter Raleigh saith truely Our law doth Construe all levying of war without the Kings Commission and all force raised to be intended for the Death and Destruction of the King not attending â—he sequel and so it is judged upon good reason for every unlawful and ill action is supposed to be accompanied with an ill intent Lord Coke 3. Instit. pag. 12. speaking fully of all kinds and degrees of treason saith Preparation by some overt Act to depose the King or take the King by force and strong hand and to imprison him until he hath yeilded to certain demands this is a sufficient overt Act to prove the compassing and imagination of the death of the King for this upon the matter is to make the King a subject and to despoile him of his kingly office of royal government And so it was resolved by all the Judges of England Hill 1. Iac. Regis in the Case of the Lord Cobham Lord Gray and Watson and Clark seminary Priests and so it had been resolved by the Justices Hill 43. Eliz. in the Case of the Earls of Essex and Southampton who intended to go to the Court where the Queen was and to have taken her into their power and to have removed divers of her Councel and for that end did assemble a multitude of people this being raised to the end aforesaid was a sufficient overt Act for compassing the death of the Queen and so by woful experience in former times it hath fallen out in the Cases of King E. 2. H. 6. E. 5. that were taken and imprisoned by their subjects The Presbyterians did offend in this kind notoriously and therefore committed Treason manifesty for they imprisoned the King in divers places and at length in a remote place in the Ifle of Wight and what followed after is well known And all this done by them that were for the most part Presbyterians out of their design to compell the King to yeild to their projects to overthrow the Bishops and to take their Lands and Revenues which they account to be the flesh and bones of the whore of Babylon which they must devour and make the old whore naked bare and desolate The excellently learned Grotius who did perfectly understand and discover the practices of the Presbyterians as appears in many places of his works hath one remarkable passage in his treatise de Anti-Christo pag. 65. which shall here follow Iam vero fi illi qui dicuntur Dii intelligendi sunt Reges liber flagitiosissimus Boneherii de abdicatione Hen. 3. Galliarum Regis non argumentis tantum sed verbis desumptus est non ex Mariana aut Santarillo se ex Iunio Bruto quis is sit sat scio sed quia latere voluit lateat ex viris doctis quidem at factionis ejusdem Dictis facta congruunt haec est illa mica salis de qua infra aget Borborita quae facta est in mare salsum faetens apud Reges omnia circumsata corrumpens Circumferamus oculos per omnem historiam quod unquam saeculum tot vidit subditorum in principes bella sub Religionis titulo horum Concitores ubique reperiuntur ministri Evangelii ut quidem se vocant quod genus hominum in quae pericula etiam nuper optimos Civitatis Amstelodamensis Magistratus conjecerit nihil hic narrari opus est sapientibus dictum sat est Laudanda omnino est Regis Christianissimi prudentia virtus qui suos paris sententiae subditos tam solennia insanire vetuit Videat si cui libet de Presbyteriornm in Reges audacia librum Iacobi Britanniarum Regis cui nomen Donum Regium videbit eum ut erat magni judicii ea praedixisse quae nunc cum dolore horrore conspicimus Peter Moulin who was well versed in the Controversies of the times and suffered much in the late wars
Statute Law as Lord Coke sheweth fully 2. Instit. pag. 693. upon the Statute of 18. Edw. 3. and 2 Edw. 6. and if the Presbyterians would not loose and foregoe Tythes they must maintain and uphold those statutes for better Laws for the true payment of Tythes and all Duties cannot be made But the Presbyterians account all humane laws but trash of humane Iuvention They will reform all according to the word of God in all points Their position is We must do nothing not so much as take up a rush or a straw without warrant from the Word of God As Cartwright affirmed and Hooker confuteth him accurately lib. 2. lib. 3. 8. 2. 3. c. He sheweth that in Scripture there is not a particular form of Church Government contained So the learned Francis Mason in his Sermon upon 1. Cor. 14. 40. Also the Learned Dr. Sanderson in the Preface to his 14. Sermons and in his 4. Sermon ad Clerum upon Rom 14. besides many others But though Hooker hath written with singular Wisdome Learning Godlinesse and Moderation yet the Puritans will not read him as Dr. Sanderson complaineth of them But what Bancroft did foresee and foretel so fully is now come to pass in our times to the great ruin and desolation of the Church King Iames in the conference at Hampton Court did something to pacifie the Puritans But in the conclusion he passed them over only with admonitions to be quiet and accepted their promise to be obedient for the time to come not to oppose the Bishops nor the Ecclesiastical Laws but to behave themselves as dutiful Subjects And the King with the Lords of his Council appointed Bancroft to write unto all the Bishops to deal moderately wiâ—h the Puritans which Letter is extant in print as full of moderation and gentle cautions as possibly could be expected But that mild proceeding of Bancroft and the Bishops and forbearing to bring them to obedience and submission by Ecclesiastical censures and other courses which might have been taken to put a final end to their wrangling humours gave the Puritans hope to find the like favour always in succeeding times as they did under Arch-bishop Abbot which Levity and forbearance occasioned the present troubles of these times in great part But the Puritans are an implacable generation who did only forbear till they had a further opportunity to promote their designs Which now they have in great part effected and verified the praediction of Bancroft and Hooker Who did foresee plainly their restless disposition and endlesse contentions not caring to set fire on the whole Kingdome as they have done these last 40. years in Germany Bohemia and France upon the same grounds and principles as our Puritans have done among us Being indeed secretly displeased because the Puritans were not preferred to the best offices and dignities in Church and Common-wealth which now they have invaded by open force and violence in most outragious manner especially the Puritan Ministers without any regard to the Laws of God or man thrusting themselves into the best preferments by way of Sequestration and then getting Acts and Orders to be continued in for their lives without any respect to the Title of the lawful patrons whose rights they set aside and suspend as well as the Incumbents most unjustly Whereas they are neither by desert for Learning nor education in the Universities capable of the best preferments they being only such as have been only poor Lecturers poor Vicars poor Schoolmasters and poor new lights such as are not qualified as the Statute requires to enjoy the best Livings of Value 13. Elizab. cap. 12. CHAP. X. The Division of the Courts in the Empire and the manner of proceeding in them by the Bishops and Ecclesiastical Lawyers under them NOw because what I have formerly said touching the uniting of the Ecclesiastical and Iemporal Courts may seem strange to many I desire not to be mistaken as if I perswaded any innovation or change of setled Laws and Courts of Justice Which would be a thing of dangerous consequence that no wise man would advise but leave all to the wisdome of Superiours to whom it properly belongeth Only I will add a few lines touching the ancient form and manner of Government in the Empire after that the Emperors became Christians from whom it is likely the example was taken both among us and in other Kingdomes Touching the division of the Courts Temporal from the Spiritual though William the Conquerour began the Separation with us in England yet there was the like done long before even by Constantine the great and first Christian Emperor who first gave leave to the Christian Bishops to meet in Councels and to make Canons to govern the Church Canones ut generalium Conciliorum ut Isidorus ait l. 6. Elym c. 16. a temporibus Constantini coeperant in praecedentibus namque annis persecutione fervente docendarum plebium minime dabatur facultas Inde Christianitas in diversas haereses scissa est quia non erat licentia Eiscopis in unam conveniendi nisi tempore supradicto Imperatoris Although ever since the Apostles held their first Council in Ierusalem Act. 15. where they made certain Canons for the pacification of the Church of Antioch there were also some provincial Councels held by the Bishops as the violence of persecutions would permit and suffer them to assemble and the necessity of the times did require as may be seen in the first Tome of the Councels before the great Nicene Councel was assembled by Constantine who being the first Christian Emperor did greatly labour to settle and advance the dignity of Episcopal government And because he knew well that superiority in the Church without power and jurisdiction was to little purpose Therefore the good Emperor in his Christian Zeal Enacted Etsi Praecipuum Pontificis sen Episcopi munus est doctrina verbi populum moderari tamen quia non omnes dicto audientes sunt nec ejusmodi persuasione ad disciplinam perduci vel in efficio retineri possunt superioritas in qua sunt Ecclesiastici atsâ—abdue imperio jurisdictione non satis habet nervorum authoritatis denique quoniam Ecclesia mater â—ultrix est Iustitiae Ideo Epâ—scopis peculiaris quaedam jurisdictio Ecclesiastica Civili dignior in personas causas legibus Imper est attributa c. Ut jus dicant Clericis c. And lest the Emperor in his Constitution in these words Ut jus dicant Clericis should seem to keep short and restrain the Bishops in their Audience or Consistories to Clergy men onely there follows a praeterea in the same title in the Code De Episcop audient Not long after this praeterea saith the Emperor there juâ— dicant laicis And as before the age of Constantine for want of power in the Church and the assistance of a Christian magistrate the Bishops could not restrain nor suppresse the many haeresies and schismes that did
Divine Institution But in this our Church Christian princes have further allowed the Clergy authority by virtue whereof they inflict civil punishments on Hereticks Schismaticks and other despisers of the Church As also many sage and grave Divines are in divers places endowed with the publick power of Justices of peace Concerning this jurisdiction let us inquire whether it may lawfully be granted to Churchmen which that it may lawfully be done these following reasons have induced me to beleive It is first to be considered that both these jurisdictions tend to the same end of promoting justice and brideling Vice but with this difference That that power which is meerly Spiritual makes use only of Spiritual means whereas the weapons of Civil authority be coactive and external as Imprisonment Fines and corporal punishments Here therefore would I know why it should be esteemed a wicked and unlawful Act not suiting to the holy function of a priest to correct Hereticks Schismaticks and other like and notorious disturbers of the Christian Common-wealths peace as well with civil and bodily Chastisements as those of the Spirit where power is given so to do to resist and pull down Vices c. To resist and pul down Vices by either way is a good and plausible action and of it self misbeseeming no person though never so holy The blessed Angels of heaven deem it a thing in no wise contrary to their Sanctity in the name and command of God to smite the prophane with corporal punishments why then should the Angels of the Church think it not lawful to adjudge the same Delinquents to any deserved punishments when by the Decree of their Soveraign Gods Vicegerent here upon earth it is so determined For the execution of Civil authority is not of it self repugnant to any person how holy soever nor disagreeing to the office of priesthood Again the high and absolute power of the giver perswades me that Church-men do by good right exercise this Jurisdiction For the King being by Gods appointment the Fountain of all Civil authority may without offence derive some rivolets thereof to what persons he shall think fit whether Lay or Ecclesiastical I said but some rivolets because though no Temporal office by Gods Laws are forbidden the Clergy Wisdome and Equity permit not Kings so far to burthen with State affairs as wholly to divert them from their spiritual function This power therefore is so to be intrusted to them as it may be an ornament or furtherance to the Church-Government no hinderance or obstacle thereunto But it is not for every vulgar judgement or envious piece to determine how far this Jurisdiction is to be granted to the Clergy so that it may help and not trouble them in their Ministry But what Aristotle the Life of Philosophers said concerning the mean in virtues that it is to be ordered 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the wise man shall think fit may be applied to this Temporal Jurisdiction that it is so far to be communicated to Churchmen as a judicious and wise prince shall think convenient Seeing then that it hath pleased christian Kings to arm the Clergy with some civil jurisdiction and ordain that to the greater improvement of Christianity and casting down of wickednesse they should exercise both Ecclesiastical and civil jurisdiction it is most apparently lawful and pious and plainly necessary by the aid of both Jurisdictions as with a two-edged sword to preserve piety and the peace of the Church and cut off its opposers Thirdly because to many it seems unfitting the Successours of the Apostles should exercise an authority which the Apostles themselves had nothing to do with Let us observe the difference of times and thence gather that this civil Jurisdiction is as expedient and necessary to the Divines of our time as it was altogether unnecessary and unprofitable to the Apostles Civil Jurisdiction is by the cheif Magistrate to be conferred on those that are subordinate and according to his Laws to be administred As long therefore as the Rulers of the earth waged war against the truth of the Gospel neither could they assign nor the Apostles without scandal to Christ and the downfall of Religion have received any temporal power from their hands But since Kings and their Laws began to subject themselves to Christ civil Authority by them given to the Ministers of Christ might have been a great furtherance to the advancement of the Gospel and more happy Government of the Church Furthermore the Apostles and Fathers of the primitive Church were from heaven endowed with an extraordinary and miraculous power which did more avail to the confirmation of Christians in faith and obedience then any civil authority But now the government of the Church is in the hands of ordinary ministers who being disarmed of that divine and miraculous power are conveniently guarded with this Temporal and ordinary Jurisdiction Lastly When the Christian Church was in her infancy piety was more deeply rooted in the breasts of the Disciples and if they would have resisted the Discipline of the Church their rebellious minds were soon quelled by the cruelty of persecution and hourly imminent danger of violent death But now the Christian world wholly possessed and carried away with pride and Luxury hath so clean layed aside all respects of piety and modesty that all the spiritual power of the Clergy and Church-discipline if not seconded by civil jurisdiction breeds rather scorn and contempt then amendment in the malicious remorse of this present age Think then what rash and incompetent Judges they are who from the Apostles and their days conclude temporal Authority not requisite to our ordinary ministers A fourth argument may be drawn from Gods own institution and the most ancient practise of the Church God himself did annex civil jurisdiction to the office of Priesthood it is therefore no strange thing nor against the divine Law that a Clergy-man should bear sway in temporal affairs As appears fully in the former Treatise here before cap. 1. and 2. Where it is shewed that in all Courts of Iustic◠in Israel the priests and Levites were the principal Iudges both in the great Councel sitting in the Temple at Ierusalem and in the second Court of Iudgement residing in principal Cities Eli Samuel the Macchabees together with all the High-priests in the Old Testament did exercise this kind of authority But why it continued not for some hun-hundred years after the Gospel is made evident by reasons above alleadged But since Constantine the great submitted his Imperial Scepter to Christ you shall in all ages find the godly Bishops and Fathers of the Church administring Civil Jurisdiction by Religious Emperours to them imparted which if time would serve might be clearly testified out of Ecclesiastical Histories and Councels and out of the Emperours own laws but these are so sufficiently known to the learned that the citation thereof would prove an unnecessary
of all the Clergy out of Temporal offices is a motion of the first impression and was never heard of in the English Common-wealth before this Bill I come in the third place to the main part of this cause the things to be severed from all men in holy orders which are as I told you of three kinds First matters of Freehold as the Bishops votes in parliament and Legislative power Secondly matters of favour as to be a Judge in Star-chamber to be a privy Counsellour to be a Justice of peace or a Commissioner in any Temporal affairs Thirdly and mixt matters of Freehold and Favour too as the Charters of some Bishops and many of the ancient Cathedrals of this Kingdome who allow them a Justice or two within themselves or their Close as they call it and exempt those grave and learned men from the rudenesse and insolency of Tapsters Brewers Inn-keepers Tailours and Shoomakers which do integrate and make up the bodies of our Country Cities and Incorporations And now is the Axe laid to the very root of the Ecclesiastical tree and without your Lordships justice and favour all the branches are to be lopt off quite with those later clauses and the Stock and root it self to be quite grâ—bb'd and digged up by that first point of abolishing all Vote and Legislative power in all Clergy men leaving them to be no longer any part of the people of Rome but meer Slaves and Bondmen to all intents and purposes And the priests of England one degree inferiour to the priests of Ieroboam being to be accounted worse then the Tayle of the people Now I hope no English man will doubt but this Vote and Representation in Parliament is not only a freehold but the greatest freehold that any Subject in England or in all the Christian world can brag of at this day that we live under a King and are to be governed by his Laws that is not by his arbitrary Edicts or Rescripts but by such Laws confirmed by him and assented to by us either in our proper persons or in our Assignees and Representations This is the very Soul and Genius of Magna Charta and without this one spirit that great Statute is little lesse then Littera occidens a dead and uselesse peice of paper You heard it most truly opened unto you by a wise and judicious Peer of this House that legem patere quam ipse tuleris was a Motto wherein Alexander Severus had not more interest then every true born English man No forty shillings man in England but doth in person or Representation enjoy his freedome and liberty The prelates of this Kingdome as a Looking-glass and Representation of the Clergy have been in possession hereof these thousand years and upwards The princes of the Norman race for their own ends and to strengthen themselves with men and money erected the Bishopricks soon after the Conquest into Baronies and left them to sit in that House with their double capacities about them the later invented for the profit of the prince not excluding the former remaining always from the beginning for the profit and concernment of the poor Clergy Which appears not only by the Saxon Laws set forth by Mr. Lambard and Sir Henry Spelman but also by the Bishops Writs and Summons to parliament in use to this very day We have many preceedents upon the Rolls that in Vacancy of Episcopal Seas the Guardian of the Spirituals though but a simple priest hath been called to sit in this Honourable House by reason of that former Representation and such an officer I was my self over that Sea whereof I am Bishop some 25 years agoe and might then have been summoned by Writ unto this Honourable House at that very time by reason of the Spiritualty of that Diocesse which then as a simple priest I did by virtue of the aforesaid office represent And therefore most noble Lords look upon the Ark of God representative that in this time floates in great danger in this deluge of waters If there be any Cham or unclean Creature therein out with him and let every man bear his own Burthen but save the Ark for God and Christ Jesus his sake who hath built it in this Kingdome for saving of people and your Lordships are too wise to conceive that the Word and Sacraments the means of our Salvation will be ever effectually received from those ministers whose persons shall be so vilified and dejected as to be made no parcels or fragments of this Commonwealth No saith Gregory the last trick the Devil had in this world was this that whâ—â— he could not bring the word and Sacraments into disgrace by errors and Heretical opinions he invented this project and much applanded his wit therein by casting slight and contempt upon the preachers and ministers And my Noble Lords you are too wise to beleive what the Common people talk that we have a vote in the election of Knights and Burgesses and consequently some Figure and Representation in the Noble House of Commons They of the Ministry have no vote in these elections they have no Representation in that Honourable House and these contrary assertions are so slight and groundlesse as I will not offer to give them any answer And therefore right Honourable Lords have a special care of the Church of England your Mother in this point and as God hath made you the most noble of all the peers of the Christian World so do not you give way that our Nobility shall be taught henceforth as the Romans were in the time of the first and second Punick wars by their Slaves and Bond-men only and that the Church of God in this Island may come to be served by the most ignoble Ministers that ever have been seen in the Christian Church since the passion of our Saviour And so much for the first thing which this Bill intends to sever from persons in holy orders viz. votes representations in parliament The next thing to be severed from them by this Bill is of a much baser mettal and alloy sittings in Star Chamber sittings at Councel-Table sitting in Commissions of the peace and other Commissions of secular affairs which are such favours and graces of Christian princes as the Church may have a being and subsistence without them The Fortunes of our Greece do not depend upon these Spangles and the Soveraign prince hath imparted and withdrawn these kind of favours without the envy or regret of any wise Ecclesiastical persons But my Noble Lords this is the Case Our King hath by the Statute restored unto him the Head-ship of the Church of England and by the Word of God he is Custos utriusque Tabulae And will your Lordships allow this Ecclesiastical Head no Ecclesiastical Sences at all No Ecclesiastical person to be consulted withal not in any Circumstances of time and place If Cranmâ—r had been thus dealt withal in the minority of our young Iosias King Edward the sixth
having the name among the three mighties He was also Captain of the Guard to David and after the Death of Ioab he was made Lord General of the Host by King Solomon in Ioabs room 1. King 2. 35. And this is fully to be proved by excellent learned men As Sigonius Bertram Casaubon Moulin especially by the learned Hugo Grotius upon Mal. 5. 21. Where he doth accurately shew out of the Text Iosephus Philo and other Monuments of the Jews that there was no distinction of Courts the one Ecclesiastical the other Civil as Calvin and Beza and some others that follow them would have it but the Judges and Courts were united and the Priests and Levites the principal Judges and Officers in every Court to whom the people were to be obedient upon pain of Death Deut. 17. 12. They being appointed to hear every cause between blood and blood between plea and plea and between Stroke and Stroke being matters of Controversie within thy Gates And as our Laws call them Pleas of the Crown and Common pleas or whatsoever else did arise among them pertaining to God and the King 1 Chron 26. 30. 32. for which purpose God did scatter them in every Tribe and turned the curse of Iacob into a singular blessing to be divided in Iacob and scattered in Israel Appointing 1700 to be on the West-side Iordan and 2700 on the East-side The ancient frame of our Kingdome for 500. years beforre the Conquest was thus disposed and governed As Spelman sheweth fully in his learned Glossary and Councels and happy had it been if things had continued so still But now the Law being otherwise setled and the Courts divided it is not safe or easie to make alteration Only without change of Law or Courts the Benches may continue as they are though some more Judges be added in most Courts and some Eclesiastical persons among them as in the Saxon times Comes praesidebat foro Comitatus non solus sed adjunctus Episcopo hic ut jus divinum ille ut hnmanum diceret alterque alteri anxilio esset Consilio Praesertim Episcopus Comiti nam in hunc illi annimadvertere saepe licuit errantem cohibere Idem igitur utrique territorium jurisdictionis terminus Glossarium in Comes pag. 111. The Bishop and Earl of the County were joint Magistrates in every Shire and did assist each other in all Causes and Courts and so Mr. Selden in his History cap. 14. Sect. 1. By this means there was great union and harmony between all judges and officers whereas now there is great contention for jurisdiction and intollerable clashing in all Courts by Injunctions prohibitions Consultations and crosse orders to the great Vexation of the Clients and Subjects And by multiplying several Courts the number of Lawyers is greatly increased as Lord Cook sheweth 4. Instit. p. 76. Where he gives divers reasons of the increase of Suits in Law and in the same Book reckoneth up no lesse then 74. Courts of Law and justice of all sorts in the Kingdome besides the Ecclesiastical Courts Which are not many for the number and had little businesse to do when they were in greatest power For commonly two or three proctors were enough to dispatch the businesse of any Bishops Court without Advocates But in the Courts of Common Law there is a farâ— greater number of Lawyers in these times whereas there was but an 140. Lawyers and Attorneys appointed by that Martial and Legislative King Edw. 2. When he distinguished the Courts and appointed the number of Lawyers and Attorneys for the whole Kingdome whereof the Writ is referred unto by Lord Cook 4. Instit. pag. 76. But the writ it self is put down by Spelman in his Glossary pag. 44. 58. Sed hodie forte in uno Comitatu tot solummodo Atlornati reperiantur But the Division and Separation of the Ecclesiastical Courts from the Temporal seems to have proceeded first from Pope Nicholas the first as is mentioned in Gratian. Com. Cum ad verum 96. Distinct. about two hundred years before the Conquest which was imitated among us by William the Conquerour whose Statute for that purpose is recited and illustrated by Spelman in his Glossary and lately also published by Mr. Selden and Lord Cook 4. Instit. c. 52. So that as the Pope hath been the Authour of much evill in the World oftentimes so in this particular when he came to the height of his greatnesse having de facto the Supremacy in all Ecclesiastical matters he made the Clergy subject only to himself and his Deputies and Legates and such officers as he sent among us But at length Hen. 8. Contested with the Pope and recovered the Supremacy of his Crown though it cost much blood and opposition in his time But he having recovered it and it being approved by Parliament it is fully setled upon the King and vested in his Crown And as Lord Cook saith 4. Instit. pag. 331. His Majesty hath and Queen Elizabeth before him had as great and ample Supremacy and Iurisdiction Ecclesiastical as ever King of England had before them and that had justly and rightly pertained to them by divers other Acts and by the ancient Laws of England if the Clause of annexation in the said Statute of 1 Eliz. had never been inserted Wherefore the Speech of Iohn Pym as in Rushworths Collections 4. Caroli That the Supremacy was given by parliament to the Crown and as he seemeth to understand it may be taken away by parliament is a dangerous opinion not to be endured Lord Cook saith 4. Instit. pag. 325. The Act 1. Eliz is an Act of Restitution not a gift meerly given which was not formerly due and belonging to the jurisdiction of the Crown If therefore the King hath his Supremacy vested in his Crown so firmly and is Custos ntriusque Tabulae by the Word of God as the Arch-bishop sheweth Then this Ecclesiastical Head must be allowed to have some Ecclesiastical Sences to be consulted withal excellently learned and principal persons of the Clergy And as he addeth truly If Cranmer the Arch-bishop had been thus dealt withal and suppressed in the minority of our young Iosias Ed. 6. What had become of the great work of our Reformation and also if Ridley Latimer Hooper and the rest of the protestant Bishops Martyrs afterwards had been set aside and neglected the Reformation could not have been effected Therefore unlesse the King have good choice of Ecclesiastical persons excellently Learned Bishops both in the ancient Councels Fathers Histories and Controversies and in Canon and Civil Laws requisite to determine of great difficulties that will continually happen in the Church whereof the Conusance belongeth to the Spiritualty as Lord Cook sheweth out of the Statute 25. H. 8. cap. 21. and commendeth them for their Knowledge Integrity and Sufficiency and if so then much more at this day I saith Coke When all kind of Learning is eminently advanced to an higher
degree then in the time of Hen. 8. Iohn Pym in another Speech 4. Caroli would have the Arminian points setled and determined in parliament viz Concerning Predestination Absolute Reprobation Universal Grace Free-will and Final perseverance before the King should have Subsidies granted Tunnage or poundage But if they would give no money to the King till those difficult poins be cleared and resolved the King must never have any Subsidies granted For those Questions are so mysterious and abstruse that all the Divines in the world cannot yet resolve fully upon them But these and such like difficult questions in Divinity belong to the Convocation of the Clergy as Cook sheweth Instit. pag. 322. and they are to be called in time of parliaments by the Kings Writ and are to proceed juxta legem divinam Canones sanctae Ecclesiae saith Cook ibid. And they are divided into two parts viz. The Upper House where the Arch-bishops and Bishops sit and the lower House where the rest do sit And they have two prolocutors one of the Bishops of the Higher House chosen by that House another of the lower house and presented to the Bishops for their prolocutor Cook ibid. The Convocation of the Clergy made the thirty nine Articles of Religion the Common prayer Book and the Book of ordination of Bishops priests and Deacons and the Book of Canons To all which what subscription is required by Law Lord Coke sheweth pag. 323. But in the late long parliament all these Books and good orders are cast aside and neglected and nothing established in stead thereof But it is hoped that the most excellent and gracious King Charles the Second will so confirrm the Truth of our Religion and all good orders Laws Customes and Rights as there shall be a full and happy Conclusion of all differences and the peace of the Kingdome and Church established to the advancement of Gods glory and the rejoycing of all that are truly wise and religious Lord Cook sheweth pag. 325. How the Commission Court for causes Ecclesiastical was setled That such Iurisdiction Spiritual or Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority hath heretofore been or lawfully may be exercised or used for the Uisitation of the Ecclesiastical State and Persons And for Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever be united and annexed to the Imperial Crown of this Realm But not to the House of Commons or any others but by the dissolution of the high Commission and all other Courts Ecclesiastical there is risen up such an infinite and prodigious number of sectaries factions divisions in Religion enormities and disorders as is lamentable to behold and all scandalous sins as adultery fornication incest and such as ought not to be named among Christians go unpunished dayly If a bastard Child be gotten the Justices of the peace do only take care for keeping of the bastard but for the offence and scandal given to Religion they do nothing that belongeth to the Ecclesiastical Court to injoyn what pennance is fitting according to Ecclesiastical Laws which have been neglected too much of late though they are ancient and fundamental as well as any Common Laws But it is testified fully by the best learned Divines in forraign Countries that our Church of England was the onely Church reformed by peaceable means and gracious Princes whereas others in France Germany and other places were reformed most part by tumults and violent wars Beza from Geneva said of the Reformation by Queen Elizabeth Doctrinae puritas viget in Anglia pure sincere so said Peter Martyr and Zanchy and Damens when they saw the Confession of our faith in the thirty nine Articles and others parts of our Reformation so excellently defended by the Renowned Bishop Iewell in his Apology and Defence thereof against Harding the Papist books far more excellent and pious then ever Cartwright or any Presbyterian published and of late times the learned Deodatus professor at Geneva doth magnifie the Church of England as the most eminent of all the Reformed Churches stiling it Florentissima Anglia ocellus ille Ecclesiarum peculium Christi singulare Perfugium afflictorum imbellium Armamentarium inopum promptuarium spei melioris vexillum splendidae Domini Caulae and much more he addeth speaking of our happiness before these troubles and so it might have continued still if the Clergy might have enjoyed those rights and priviledges which the priesthood of God did anciently enjoy in all ages for in the Law of nature before Moses the priesthood was honourable Priests being then the first born and eldest sons of the Family not younger Brethren or poor fellows of the basâ—st of the people How honorable the Priesthood was in the tribe of Levi is well known Sir Iames Sempill a learned Knight of Scotland doth shew it fully in his book of Sacriledge in many places Cap. 6. Sect. 4. speaking of the dignity of the Church ministry of old For tithes inheritance in the person of one Royal Melchisedeck Royal I say in regard of the great odds between that and this our age now For of old as writeth Iosephus the true mark of nobility was to derive a mans Pedigree from the Priesthood so Iosephus was a Gentleman because 〈◊〉 sanguine sacerdotali And in our time the onely best Tenure and Holding of Possessions was to hold of the Church but now all to the contrary For Rome hath frustrate her ministry of Matrimony and we at home ours of their patrimony She can bring forth no well begotten Children and we but few well beneficed Church men No Iosephs in her and all Iobs with us and instead to hold of the Church we hold all from the Church both much amiss And as he saith in his preface to King Iames Truely it never goeth better then when the Church Courteth it and the Court Churcheth it for Moses and Aaron were Brothers Well might the Learned and Religious Knight complain that things are much amiss when in the times of the light of Learning and Religion reformed hath in great measure flourished among us but of late been so defaced and deformed that it is lamentable to report more of it the Enormities being so great and scandalous that unless the Kings Majesty out of his singular piety and wisdome do resume the ancient Jurisdiction of his Crown Who onely hath the proper power and authority to reform and correct all manner of Heresies Schismes Abuses Offences Contempts and Enormitie as are the express words of the Statute 1 Eliz. as they are recited and inforced by Lord Coke 4. Instit. Pag. 325. there can be little hope of Redress but as the Queen then did assign and authorise Commissioners to execute this Jurisdiction so it may be now done Commissioners may be appointed by the King to perform and execute his power in as full and ample manner as Queen Elizabeth did and