to whom such Judgment doth of Right appertain did give their Judgment He concludes that the Bishops could not he said to be his Peers which shews they were not there But he must give us leave with much better Logick to conclude that they were present and We with reason presume because they are Peers of Parliament for so the Record is not his Peers for he fallaciously changeth the Terms they were there except he can prove them absent if common Right is not Reason of presumption no presumption can be reasonable But we can prove to him they were there And thereby in consequence we have another proof that they are Peers Sir Robert Cottons Abridgment tells us 5 H. 4. Fol. 426. that at the same time the Arch-Bishops and Bishops at their own request and therefore certainly then present were purged from suspicion of Treason by the said Earl And at the same time I pray observe Sir Henry Piercy his levying of War was adjudged Treason by the King and Lords in full Parliament Note that here is said to be a full Parliament and yet nothing in the Entry but the stile of Lords So various and contingent in respect of form are the Entries which ought to be observed But to review and consider again the Case of John Hall condemned in Parliament for Treason for murdering the Duke of Glocester And to this place I have reserved the Case of the two Merchants that killed John Imperial an Ambassadour of Genoua for both Cases are of the same nature and must receive the same answer and that is this The Statute of the 25 E. 3. was made to declare certain matters Treason and to be so judged in ordinary Judicatures but withall that Statute did provide that if any other Case supposed Treason do happen it shall be shewed to the King and Parliament whether it ought to be judged Treason Concerning which the King and Parliament do and are to declare by their Legislative power as it is agreed by all and as they did in the Case of John Imperial as appears by that Record expresly So that though the Bishops were not present at the Judgment of John Hall they might have been it must be confessed by our Adversary if the Judgment against John Hall was by the Legislative Power as it must be By this it appears how false an Argument this of his is To conclude no Right from absence for it is plain here it proves too much it proves a thing notoriously false a thing false by the confession of our Adversary and from what any falshood may be inferred is not it self true but stands reproved by the falshood and absurdity of what follows in consequence thereof But this is too Solemn Reproof of so frivolous an Argument for it is no more in effect than this That no man can have an Authority but what he is always in the exercise of The Octavo goes on and remembers that in the 2 H. 4. the first Writ de Haeretico comburendo was framed by the Lords Temporal only and without question it was so For the order of proceedings in Case of Hereticks Convict so required it The Bishops are upon the Matter the pars laesa in Heresy The authority of the Church is therein offended and it was not therefore proper for an Ecclesiastick to be an Actor therein The Author doth improve this as he doth all things that he can with any manner of colour to render the Order of Bishops hated and disesteemed which is the publick establishment the legal provision for the Government and guidance of Religion What mischief then is he a doing How great is his fault to deprave that provision to destroy their Reputation and Esteem with the people to destroy all their authority as much as in him lyeth His utmost endeavours are not thereto wanting to make their Ministries useless and to frustrate the provisions of the Law and the care of the Government in the highest concernment of the Nation Doth this become a great man I will not say a good man God rebuke him To lessen the Authority and disrepute and dishonour any Order of men or any Constitution that can be any ways useful to the publick is a great fault but this of his is a most enormous offence But what can be inferred from hence against the Order of the Bishops may be with like unworthiness inferred against the Christian Religion it self For it may be as well concluded that the Christian Religion is a bad Religion for that men of that denomination in the general Apostasie by pretence of Warranty from that Religion though it gave none murdered innocents As that the practices of the Bishops of that Religion so depraved do reflect any dishonour against the Bishops of reformed Christianity And this Answer will suffice too for the Case of Sir John Old-Castle As for the Earls of Kent Huntingdon and Salisbury the Lord le Despencer and Sir Ralph Lumley before that executed and declared Traytors in Parliament by the Lords Temporal only in the Parliament of the 2 H. 4. and the Earl of Northumberland and Lord Bardolph against whom it was proceeded in a Court of Chivalry after their death who were declared Traytors after they were dead in the Parliament in the 7 H. 4. I hope the Octavo Gentleman and all that are at present of his Opinion will take this for a sufficient Answer if we had no more to say that it was irregular very irregular indeed to condemn men after they were dead when he himself would set aside the Authority of the Case of William de la Poole in 28 H. 6. in Parliament where the Bishops were present which though he saith is the sole single precedent of Bishops acting in Capital Causes We shall therein convict him to be a man of Will to have lost himself in his passions and his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And enter that Case with a cloud of other testimonies and reasons that affirm I will not stick to say demonstrate so as such matters can be demonstrated with a moral demonstration such as shall leave no doubt with any man of the Bishops Right of judging in Capital causes in Parliament But We shall further add for Answer that the Temporal Lords did not herein exercise the Office of a Judge For it could be no Judgment they delivered It was only an officious declaration an avowing of the justness of the slaughter of these great men and to enter themselves of the other side But is it as reasonable for this Writer to fore-judge the Bishops of their Franchise and to have it seized because they would not be guilty of a misuser thereof and would not consent to so insolent a thing as to judge men unheard nay when dead and they could not be heard And to kill over again the murdered Lords for so they are in consideration of the Law who are not by legal process condemned and executed I cannot but observe in many of
the great convulsions of State and the simultates amongst the Great men and extravagant excesses of injustice to the glory and honour of the Bishops it must ever be remembred that they did preserve themselves from being ingaged in such violences as were committed against the last mentioned Lords But that the Author of the Octavo should produce the Case of Sir John Mortimer against us who was condemned upon a bare Indictment without Arraignment or due Tryal a good reason why the Bishops were not there when he immediately after produceth the Case of the Duke of Suffolk wherein the Bishops were present and will have it stand for nothing because in that it was irregularly proceeded is monstrous partiality and iniquity But in what I pray was the irregularity in the Case of the Duke of Suffolk Why because the Commons desired he might be committed upon a general Accusation But he was not And the second irregularity was that some Prelates and some Lords should be sent down to the House of Commons which is often done But it is not the Prelates that he is thus concerned for but that the Lords lessened their Estate This to excuse him might make him very angry with that Case and quarrelsome And yet after all there is a fallacy in the Case of Sir John Mortimer which he would put upon us for Sir John Mortimer was condemned by Act of Parliament and therefore the Bishops might have been there if they had pleased and that with his leave For it was by the Duke of Glocester who in the Kings absence was commissionated to call and hold that Parliament by the Advice of the Lords Temporal at the prayer of the whole Commonalty in this present Parliament and by the Authority thereof ordered and decreed that he should be led to the Tower and from thence drawn to Tyburn I cannot therefore but observe how by the pretence of the Canon a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes and by other prudent Arts and Recesses from tumultuations the Bishops kept themselves often from being engaged in the Animosities of Great men against one another A matter remarkable for the commendation of their Exemplary Wisdom and Justice and a Recommendation of the men of that Order to be continued in the greatest trusts that the Government hath committed to them But now shortly and summarily to review what we have offered in the matter of Precedents and together to consider what true value and weight they are of in the Cases of Roger Mortimer and Haxey and of Sir John Mortimer 2 H. 6. every body may see a reason why the Bishops should not act if they had Authority and therefore without wilfulness it cannot be concluded they had none Who sees not that these Cases are Precedents for us for that the Bishops judged in the Reversal of the sentence against Haxey which if they had reason for it they ought to have affirmed And the Bishops might have been present rightfully at the undoing the Attainder of Roger Mortimer by the Confessions of these Authors The Proceedings in the Parliament of 15 E. 3. is a true argument of the Bishops modesty But it proves more than he is willing to prove if true viz. that the Bishops cannot joyn in making Laws to punish publick Crimes and therefore logically concludes nothing besides that the matter is false in fact as it is alledged The Cases of Sir William Thorpe and Sir Ralph Ferrers taken at best for him are but militant and have as much to say for as against the Bishops being there present But to be true to the cause of the Bishops We have this advantage against him that the Bishops were always in the possession of their Right because never fore-judged and it was once theirs as we shall prove by and by And this makes a presumption that they always used it when there is nothing to the contrary The Bishops were not present in the Bishop of Norwich's Case but the Bishops may be at any time absent upon a sontica Causa The defendant was a Bishop which was a very allowable one in those times But this must be considered with the Case of Thomas Arundel Bishop of Canterbury in whose judgment they were present virtually by their Proxy and therefore had a Right to be there The Case of John de Gomets and William de Weston is unduely and against the faith of the Record produced against us for upon the truth of the Record the Bishops were present notwithstanding any thing that can be from thence deduced to the contrary The Case of Sir William Rikehil 1 H. 4. is for us so is the Case of the Earl of Northumberland 5 H. 4. The Case of John Hall who murdered the Duke of Glocester and of the two Merchants that killed John Imperial the Genoua Ambassadour 3 R. 2. are foreign to this question and so is the Case of Sir John Mortimer except Judicial Authority and Legislative Authority in Blood are of the same consideration as I think they are and shall hereafter make out to be probable and then those Cases are for our Right They confess that the Bishops might have been present if they pleased and their absence at the passing of those Bills doth not conclude against their Right themselves being Judges The Writ de haeretico comburendo is of another consideration and doth not fall in with the present question There was no Judgment given or to be given in the Cases of the Earl of Huntingdon Kent Salisbury Lord Le Despencer Sir Ralph Lumley the Earl of Northumberland and Lord Bardolph All these Precedents such as they are happened in no long Tract of time but very tumultuous Not one of them pretends to be an exclusion of the Bishops upon Judgment or positive declaration of State They pretend to be only instances of Omission or non user which may well consist with a Right And yet contrary to the true import of these Precedents and the true Nature of them being only of Omission and absence of the Prelates which as they are can make no induction or establish any proposition whereupon to frame an Argument or conclude a prescription Besides that a prescription is not possible in a meer negative and to and of nothing And where no body can use or possess that Authority in pretence in the defailance of the party to use it whose Right it was Besides that it is not a prescriptible matter which we shall further explain hereafter it being in a matter of the Government and a Right arising from its constitution Contrary I say to the whole nature of the matter He makes this Argument à saepe facto ad jus valet argumentum His Argument should have been if agreeable at all to the matter this That where a Right is sometimes not used there can be no Right But if this had been said in English every body would have condemned his reasoning and disallowed if not laughed at the Argument So that we have
and by gave the first occasion to this Question which was the true causa suasoria of their denyal to the Bishops a Right of Succession and judgment in that noble question Whether a Treason of State can be pardoned And that put them upon the search of Precedents an Oracle that will alwayes give a Response agreeable to the Enquirrer and Consulter For I am sure there is nothing so absurd and irregular that rude Antiquity and the miscarriages in humane Affairs in length of time will not furnish a Precedent for And these Precedents such as they were reported which we are hereafter to consider by their diligent Members became a causa justifica and the matter in pretence to warrant their proceedings that a great reason of State did seem to them to require And now whether the Lords Spiritual can be Judges in Capital Causes in Parliament is become a Question Though the Bishops Right to judge in capital Causes in Parliament seem to be clear and materially demonstrated from what is visible and obvious to the most vulgar observation of the constitution of the Government every body knows how the Lords Spiritual and Lords Temporal are placed in the stile of Acts of Parliament and in the Heralds order in the House of Lords The Arch-Bishops give first their Votes even before Dukes The Suffragan Diocesans after the Viscounts and before the Barons And in the same order did the Bishops stand in the publick Census in the times of the Saxons as may be seen in Sir Henry Spelman his Glossary in the word Alderman The great Authority Power and Rule that was intended the Prelates should have in all the great concernments of the Kingdom that were to make the business of the House of Lords may be best understood from the high place that hath been alwayes alotted to their Order in that House for Publick and civil honours are alwayes appointed and adjusted to the dignity of the Ministers offices and Services that are to be performed to the Government Such a solecism was never enacted by an Order of State That those persons that were less in power and under abatement and restraint of Authority should be preferred to those in place that had plenary power in the same Courts It is well known too That the Arch-Bishop of Canterbury was originally honoured with the first Writ of Summons to Parliament Since the Conquest there never was an English Bishop that had not his several Writ of Summons to Parliament Though the number of Temporal Barons have been reduced and many of the Regular Barons dismist of that honour for that their office was nothing in the Church and nothing but the possessions of the Abbots preferred them to that State Nothing seems too big or too high for so great and publick a character of the Bishops or out of the intendment of their trust that can ever be the business of a Parliament The greater the matters are that are agitated there the more necessary is the assistance of the Bishops for he that in any affair is most trusted is to be most concerned and by how much the affairs are of greatest moment in the same proportion they are more strictly obliged and required to assist in the management thereof We all know what sort of criminal prosecutions those are that are made in Parliament and what great consideration they are of that they are alwayes the symptoms of a very sickly State and the results of very great disorders in the Common-Wealth In these Cases if in any the Lords Spiritual cannot be wanted The neglecting to interpose in any one single prosecution that is Parliamentary hath proved the occasion That their Right of Session is now brought into Question For to speak the truth it is not very consistent with the Reverence that is naturally due to the Prelates to think that a Trust and Authority of so high a nature should be committed to them and they should at any time find reasons to neglect it But for what omissions they have been guilty of though upon a general consideration without examining the particular Causes and Reasons men not friendly to their Order may thus censure them we shall make a fair Apology as we shall meet with them and as they fall in to be considered in this Discourse We are now to give you some account how this comes now to be a question for the very questioning thereof makes some prejudice against the Right and there is scarce any thing so certain and true in Nature but if once put under dispute that can recover again into a general certainty and assurance It hath scarce escaped any mans observation that hath been acquainted with the business of the Courts of Law That the greatness of the pretender and the value of the Interest and Right in pretence doth cause a point of Law to be contended which would never else have been stirred especially if the Right be invidiously possessed by another Besides these three considerations which are foreign to the true Right I protest there is nothing to my apprehension of any moment offered in Print to continue it a Question I find Two Books Printed upon this Question both of them tending to disgrace the Bishops Right of judging in capital Causes in Parliament One in Octavo called A Letter of a Gentleman to his Friend shewing the Bishops are not to be Judges in Parliament in Cases Capital He begins with a Preface containing some matters and reasons against Bishops intermedling at all in secular affairs and after that he tells us That the Law of Parliament is best declared by usage gives us several precedents wherein he supposes the Bishops absent and concludes they were so for want of Right and Authority to be there And to give some Authority to his Precedents of omission as he would have them He tells us of the Assize of Clarendon an Act of Parliament made 10 Hen. 2 that excluded the Bishops in such Causes and of a Protestation made by all the Bishops in the 11 R. 2. whereby they renounce all Judgement of Right in such Causes upon the obligation they were under to the Canon Law and to render it impossible they should have any such Right and to make them incompetent Judges he adventures to say and prove after his manner That the Bishops are not Peers and to prepare the way for their remove out of that House he adventures to broach an opinion That the Bishops are not one of the three States nor an essential part of the Government There is another Book in Folio called A discourse of the Peerage and Jurisdiction of the Lords Spiritual in Parliament This Author pursues the same design upon the same grounds with some peculiar reasonings of his own If therein I give him satisfaction in what he hath peculiar without mentioning distinctly of them I am sure he will thank me for it But we will consider the Octavo's Preface examine his Precedents and shew that they are
Authority or weight enough to perswade the contrary or an alteration therein notwithstanding that complaint which he tells us was made in the 45 of E. 3. fol. by the two Houses Counts Barons and Commons to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per cet grant mischiefs dammages sont avenuz en temps passe pluis purroit eschire en temps avenir al disherison de la Coronne grant prejudice du Royalme Whereby great mischiefs and damages have happened in times past and more may fall out in time to come to the disherison of the Crown and great prejudice to the Realm And therefore they humbly pray the King that he would imploy Laymen This they had too much reason to desire then when the Pope had advanced his Authority over them and put them under Oaths of Canonical obedience which rendred them less fit to be intrusted in the Government of this Kingdom who were become Subjects of another Empire usurping continually upon us which will never be our Case again if the Bishops can help it CHAP. III. ANd now we proceed to the Precedents of which the Octavo Book principally consists which seem as that Author and the other in Folio would have it to be not only a discontinuance of the Right of the Bishops to judge in Capital Causes but an argumentative proof that they never had any because it can as they say be never proved to be otherwise Immemorial time I confess is a great evidence of the right whether In non user or user and a fair reason to allow or deny the pretence and therefore we will now consider the Precedents As for the argumentative and discoursive parts of those books they will fall in to be answered by way of Objection when we are discoursing and proving the affirmative part of the Question and will best be reproved by being placed near the light of our reasons for establishing the Right of the Prelates If we do not give some satisfaction to these Precedents whatever we shall say I know can signifie no more than an Argument to prove a thing not true which is possible de facto testified by unexceptionable witnesses for such the Precedents will be taken until exceptions are made to their Testimony The Precedents produced by the two Authors are mostly the same only the Octavo hath more than what the Folio Book hath recited The first case that the Octavo produceth against the Lords Spiritual their Right of being Judges in Parliament in Capital Causes is that of Roger Mortimer Earl of March Simon Beresford and others who were no Peers and yet tryed in Parliament and no Bishops present and we agree it probable for his reason because there is mention made of Counts Barons and Peers and Peers being named after Barons could not comprehend the Bishops And because we think it reasonable when the orders of that House are particularly enumerated that the order omitted should be intended absent but we will not allow but that Peers is and so is Grants comprehensive of Bishops Nor will we when the entry is General intend the Bishops absent except he cannot otherwise prove them absent which we mention in the entry once for all as just and common measures between us in this dispute It will appear true what we affirm of the words Peers and Grants by what follows And if we should not insist upon their being present when nothing appears to the contrary we should do wrong to the Cause But to come to the consideration of this Precedent Is this a just Precedent Is not Magna Charta hereby violated Are not the proceedings altogether illegal Here are Commoners tryed by Peers in Parliament It is well known that the high displeasure of the King was concerned and that he did interpose with a plenitude of Power in this particular case against the fundamental constitutions of the Government the greatest crime of this Earl was too much familiarity with the Kings Mother Indignation and Revenge and not Justice formed the Process It was proceeded to condemn him Judicio Zeli upon pretence of the Notoriety of the fact Sir Robert Cotton in his abridgment tells us Anno 4. Ed. 3. That the King charged the Peers who as Judges of the Land by the Kings assent adjudged that the said Roger as a Traytor should be drawn and hanged The Bishops were not present certainly they were none of the Judges that gave Judgment as the King pronounced without Cognisance of the Cause The King had more Honour for their Order than to call then to such Drudgery and service of the Crown The iniquity of the sentence appears by the reversal thereof in Parliament 25 Ed. 3. in which the Original Record is recited Sir Robert Cotton in his Abridgment tells us That this Earl being condemned of certain points whereof he deserved commendation and for other altogether untrue surmises there was a Bill brought into the Lords House for the reversal of the Judgment and it was reverst by Act of Parliament indeed it could not be otherways reverst for no Court can judicially reverse their own Judgment for Error in Law and Judgment in the Lords House being the dernier Resort cannot be repealed but undone it may be by themselves in their legislative Capacity Here saith the Octavo the Bishops were not present at the passing of that Bill but yet the Octavo Gentleman will not pretend that the Bishops are to be excluded in any Acts of Legislation Why therefore was he so willing to impose upon the people so falsely and unrighteously and to produce this as a Precedent against the Bishops Right of Session in matters of that Nature by himself recognized There is nothing can excuse him herein for he is certainly self-condemned of undue Art in thiâ— matter In 20 R. 2. the Case of Sir Thomas Haxey happen'd which the Octavo book page 20 produceth against us He was forsooth condemned in Parliament for that he had preferred a Bill in the House of Commons for regulating the outragious Expences of the Kings House particularly of Bishops and Ladies Haxey was for this tryed and condemned to death for it in Parliament And here appears to be no Bishops and there ought not to have been any for these reasons First that the Bishops were the parties wronged and therefore could not in any fitness give sentence But Secondly if that was not in the Case that that caus'd the process was Royall anger upon a great faction of State in which I believe the Bishops were not engaged made for deposing of Rich. the 2d that was understood by the King to be in acting and promoted by Sir Thomas Haxey by his Bill It was this made the sentence altogether abhorrent from legal justice in matter and form Here was a Tryall of a Commoner by Peers a matter made Treason that did participate nothing of the nature of Treason But the discreet Gentleman
recited upon which our Adversaries do so much ground themselves from the Cognisance of the Lords Spiritual and they could not be present when any such Case was agitated or moved all the Grandees were Notoriously Willfully and Knowingly and in the face of the whole World perjured to the Eternal infamy of our Nation Could the whole Nation be ignorant of its own Laws and Constitutions made and sworn to but a few months before and neither the King Lords Spiritual or Temporal or Commons understand them 120 men at least for about that number were the Bishops and regular Barons in H. the 2ds time and not less now come into the highest Judicature in the greatest Cause that ever was agitated It was in the Case of Becket disputed whether we should have a Civil or Ecclesiastical Soveraignty and there sit Judges and no body except against them in October if excluded by the Statute made in February before though the King and the Nobles had reason to suspect them on Becket's side and they unwilling themselves to Judge and they under an Oath not to sit and the Temporal Lords under an Oath not to admit them or allow them to be there And yet not a word of this matter in all the Historians of that time Thomas of Canterbury his friends to a man who were forward enough to reproach the Judges sure when they condemned the Sentence and applauded the Criminal and made a Pater patriae a Martyr and Saint of this Notorious Church Rebel He therefore that can believe that the Bishops were not rightful and unexceptionable Judges in capital Causes in Parliament in the time of H. 2. may believe that a whole Nation may become of insane Memory at once go to bed a Monarchy and wake into a Common-wealth without any notice or observation of a Change And now that the Assise of Clarendon is of our side I hope will be admitted and that the Bishops not only may but ought to be present in capital Causes in Parliament for the words of the Statutes are That the Archiepiscopi Episcopi universi personae qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam sicut caeteri Barones debent interesse Judiciis Curiae Domini Regis cum Baronibus So that now they were declared to be Judges as the other Barons in that they ought to be present in all Causes Only they were favoured so much in decent regard to their Order that they were not required to be present at the Sentence of Death and multilation of Member for as much as they are the Ministers of Gods pardon and the Publishers of the Doctrine of Faith and Repentance they ought to comport with their office and express their Commiseration to the greatest Sinner and to have some reluctancy against the Sentence of Condemnation and to that purpose is that Indulgence given them in the quousque perveniatur ad mutilationem membrorum vel mortem But the Assise of Clarendon having I will not say left them but required them to be Judges this exception of Quousque c. being only an Indulgence as aforesaid upon the Reasons aforesaid they remain entire Judges in Capital Causes and may depart from that Indulgence and ought so to do when Justice is necessary and the offences more than ordinarily Publick and will be pardoned and escape with impunity to the hazard of the Government except they interpose For if the Assise of Clarendon had not left them entire Judges of Right only at liberty as to the pronouncing of Sentence they had not remain'd Judges for the office of a Judge cannot be divided he that hath not an Authority to judge the Cause can be reckoned and accounted no other than a ministerial assistant to the process in such matters as the Court shall award Therefore Bishops in that they have intermedled as Judges in such Causes they have continued and avowed their Right of judging and in that they have withdrawn at the Sentence they have used that Liberty But to leave nothing for an after objection Evasion or Cavillation it shall be in our Adversary's choice Whether this Curia Regis mentioned in the Assise of Clarendon as also the Court that tryed Thomas Becket was the Curia Regis wherein the ordinary Justice of the Nation was at that time administred or the Parliament If it was the Curia Regis and not the Parliament was intended in the Assise of Clarendon in which the Priviledge and Indulgence under the Quousque was allowed to Bishops Then the Assise of Clarendon is unduly urged against the Bishops judging in Cases of blood in Parliament for that all Laws of Priviledge and exemption are stricti Juris and not to be extended beyond the Letter of the Law the single instance or the enumerated Cases and consequently by the Assise of Clarendon the Bishops have no leave to withdraw in Cases of blood in Parliament If the Court wherein Thomas Becket was tryed was the Curia Regis then the Bishops judging in that Court in that Cause doth most clearly declare that being a Case in point that the quousque in the Assise of Clarendon was an Indulgence and Priviledge which they might use or wave as they then did But this cannot be denyed that the Bishops are and were Barons ever since the Conqueror of which and of the Curia Regis we shall hereafter give an account and whatever was the business and office of Baron was consequently the office and business of a Bishop of Common Right and still is except any Legal restraint was put upon them by any Law which was not done by the Assise of Clarendon as we have proved by the reason of the making of that Law the Interpretation of that Law at that time Nor was that Law or any other Law hitherto pretended but only the Canons of the Church against the Right and Duty of Bishops in Capital Causes in Parliament or if they will have it in the Curia Regis CHAP. VI. AND now we proceed further to shew how this Right and Authority of the Prelates hath been used and acknowledged in after-times Roger de Hovedon hath remembred in the Life of Richard the First who succeeded Henry the 2. That before the arrival of Richard the First in England who had been in Captivity in the Empire that one Adam de St. Edmond Agent to John Earl of Morton returned into England being sent to fortifie the Castle of Earl John against the King his Brother and was apprehended by the Lord Mayor of London with several papers of instructions and Commissions of Earl Johns for that purpose Hoveden tells us That the Mayor cepit omnia brevia sua in quibus mandata Comitis Johannis continebantur tradidit ea Cantuariensi Episcopo qui in crastino convocatis coram eo Episcopis Comitibus Baronibus Regni ostendit eis literas Comitis Johannis earum tenorem statim per commune Concilium
of the Commoners which are Knights should be impannelled upon a Jury where either a Spiritual or Temporal Baron is concern'd besides that I find a single Remembrance as high as 13 E. 3. in Brooks Tryal 142. the Reports of that year are not printed of the Bishops Right of Peerage in a Capital Cause the Book is Evesque est Peere de Realme serva try per Peres in Crime But how this Right came to be discontinued and to lose remembrance we shall presently account for but I cannot think it Sence which some of our Lawyers have said for this purpose that a Bishop his being a Baron is Ratione Tenurae and not personal which is all one as to say that the Bishop is a Baron but his Person is not a Baron but his Peerage and Baronage is no other in truth than an Honor accumulated upon the Person of a Bishop together with his Office But to excuse them they thought themselves obliged to give a reason why Bishops are not as the Law is taken to be tryed by Peers but by a Common Jury which grew into practice by accident and was not ever so in probability but certainly is very irregular and extream incongruous and therefore to give a good reason for it is too hard a task to be undertaken and he that will undertake to give a reason of that which is unreasonable and go about to prove a thing fit which is incongruous must likely speak things equally incongruous absurd and unreasonable But to speak what the truth is in this matter the Bishops and the whole Order of Clergy did challenge to be exempt from the Jurisdiction of Secular Courts but the Bishops as is objected never waved their jus paritatis upon Arraignment in inferior Courts They only never insisted upon it For they had a better way to escape by setting up the pretended Rights and Priviledges of their Order and that Church for exempting themselves from the Jurisdiction of the Temporal Courts and by this means they did escape unpunished for the most part Though there were several Abatements made by the provision of the Laws and the Wisdom of the Judges to their unreasonable pretences therein yet they always got off by their pretended priviledge if not with impunity yet with some protection at least from Justice and farther they thought perhaps they might at least avoid being thought guilty of the Crimes objected whilst they used this pretence for a reason why they would not make a Defence And sure in all Offences but Treason they escaped with their Lives before the Statutes that took away the benefit of Clergy in some Cases of the greatest Guilt and even in the Case of Treason the Criminal ever had the Advocation and Intercession of the Church-power and Interest because the priviledge they contended for was so great and valuable a Concernment as they esteem'd it to the Order of the Clergy But by this means the memory of the Use of this Right and Priviledge was lost and the Detestation of a Crime in a Prelate provided him a speedy and ready Justice such as was at hand and at length Bishops themselves unadvisedly and being born down by the Common Opinion thus grounded and occasioned did submit to Tryals by Juries It is enough to have given an account how this Anamolous piece of Law came about But Anamolous Cases never make Rules nor destroy any Nor is it to be drawn into consequence whatever is a departure from the Establishment to destroy it quite Positive Constitutions of which no Reasons can be given why they are so can infer or argue nothing Reason cannot make Law though it is a fair inducement but our Reason is most perversly imployed when it proceeds from the Irregularities that happen in Human Affairs and are shuffled upon us by length of time by violence and iniquity and a heap of Accidents to argue us into more and to refix that which is regular and remains firm In quo quis peccat in eo punietur Is it not enough that the Order now suffers a diminution of their dignity by reason of the contumacy of the Popish Prelates their Predecessors and that their Refusals to submit to Temporal Justice are visited upon the Succession Severe enough this is in it self But why should any man expect that this Age in consequence of this should be persuaded and reasoned to exclude the Bishops out of their remaining right 'T is no more to be expected than that a man that hath one hand withered and mortified with the Palsie should be persuaded to cut off the other for conformity We know how the Prelates fell from their primitive Dignity of being tried by those of their own Order and were submitted to be tried by Juries of Commoners It would be therefore consonant and agreeable to the Dignity of Barons and Lords of Parliament for such the Bishops are that they be restored to their ancient right in the matters of Trials as mistaken Law is rectified by an Act of Parliament A wise Act of State it would be to redintegrate the Honour of the Baronage of England the whole Baronage suffering dishonour by a mutilation of so Honourable a Privilege in one of the membra dividentia of that body whilest the Bishops are thrown to common Jurors Especially since the incongruity thereof hath given occasion to some men to question one another of the jura paritatis which belongs to the Prelates and to dispute their right of Session in that House in one of the most important Concerns of the Government But however this Irregularity is discoursed it doth not affect the Right of the Prelates now in dispute for though Bishops are tried by Commoners out of Parliament as the Law is now generally taken yet that they are to be tried by Peers in Parliament our Adversaries do not deny And that they may and ought to sit in judgment upon Temporal Lords in Parliament in Capital Causes we have clearly proved So that the Reciprocal of a Bishops being judged and judging in Capital Causes in Parliament is intire and in this they continue duly pares But that it may not depend upon our Adversaries Concessions that Bishops may be tried by Peers in Parliament for he is not always constant to himself and may take back what he hath yielded we shall here subjoyn a short demonstrative proof that the Bishops ought to be tried by Peers in Parliament And that they have been declared and taken for Peers and under that Character tried when if they had not been reckoned and deemed Peers they could not have received Tryal in Parliament and it is thus Edward the Third had prevailed with the Lords against their good will to condemn the Earl of March Sir Simon Beresford John Matrevers Boys de Boyons John Devard Thomas de Gowrney William Ogle for the Murder of Edward the Second his Father and the Earl of Kent all of them Commoners but the Earl of March The Lords were
either not against us or for us And all along observe the candor and integrity of the Author We shall further shew how absurd his Reasonings are to make those Precedents to conclude any thing for his purpose We will also with the clearest demonstration prove That the Assize of Clarendon establisheth the Bishops Authority and right to judge in capital Causes in Parliament And likewise that the protestation made by the Bishops 11. R. 2. is a most solemn Recognition of their Right that the Bishops have sate in Judgment in the greatest capital Causes in Parliament that ever happened that this their Authority hath been exercised in their own Persons and by their Proxies and recognized by Parliaments and other great Courts of Judicature but never before this time brought into Question That no Canon could lessen the Right at most it is but a Councel for their guidance in the exercise of their Authority which they might observe as they please That the Popes Canon Law was never received into England that prohibits Bishops to judge in capital Causes That the Bishops have declined to assist in pronounceing the Sentence of death sometimes as undecent for their Order but notwithstanding and without being contrary to the example and practice of their Predecessors the Bishops may judge upon the Plea of the Earl of Danby's Pardon For that if they do judge the Pardon not good the Earl is not therefore to be condemned And for the better clearing the Bishops Right and for the establishing the Government we shall prove that the Spiritual Lords are Peers of the Realm and one of the three States and an essential part of the Government which no legal power can charge or alter Lastly we shall repel the calumnies of the Adversaries in this cause by which they indeavour to render the Prelates unworthy of their Right and to put them amongst the prodigi furiosi that are scarce allowed to be Proprietors of their own And conclude our Discourse with a just Apology for the Lords the Bishops CHAP. II. ANd First I begin with the Octavo which in the Introduction to his Precedents saith That he will not meddle with the General Question How far forth Clergy-men in Orders are forbidden having any thing to do with secular matters nor what in that particular the Imperial Law requires as that Rescript of the Emperor Honorous and Theodosius which Enacts that Clergy-men shall have no communion with publick Functions or things appertaining to the Court or the Decree of Justinian That Bishops should not take upon them so much as the Oversight of an Orphan nor the proving of Wills saying It was a filthy thing crept in amongst them which appertained to the Master of his Revenue Nor what our common Law of England seems to allow or disallow having provided a special Writ in the Register upon occasion of a Master of an Hospital being it seems a Clergy-man and chosen an Officer in a Mannor to which that Hospital did belong saying it was Contra Legem consuetudinem Regni non consonum It was contrary to the Law and Custom of the Kingdom and not agreeable to reason That he who had cure of Souls and should spend his time in Prayer and Church duties should be made to attend upon Secular imployments I meddle not neither saith he with what seems to be the Divine Law as having been the practice of the Apostles and by them declared to be grounded upon reason and to be what in reason ought to be which was this That they should not leave the word of God and serve Tables though that was a Church Office and yet they say it is not reason we should do that for their work was the Ministry of the Word and Prayer much less then were they to be employed in secular affairs This with great skill he prefixes to his precedents which make the Law of Parliament which is the Law of the Land he saith and after he had said all that he could to make the very pretence it self unlawful and to perswade the shutting of the Bishops out of the House for altogether he subjoyns his Precedents he thought certainly that when he had placed the Precedents in such a light they must look all of that colour and have that appearance which he indeavours too by other arts to give them But we shall spoil his design in a very few words which the observant Reader will apprehend how pertinent it is and satisfactory to what is objected in the recited Preface though we do not for brevity sake apply our answer to every particular of his Discourse We say therefore we can't think the Clergy fit for Proctors Publick Notaries and Scriveners or Ushers of Court or other subservient offices nor fit to make Constables Tythingmen and Scavengers nor to keep watch and ward and to be a Hayward or Bayliff of his Worships Mannors and Townships Or that they should be Merchants or Farmers or interpose in a-any Secular affairs for gain That it was declined by the Pastors and Teachers of the Church as an indignity for them to administer to Tables i. e. to the Provisions of Charity in their Church-feast and they ought to keep far off from a suspition of filthy Lucre nay not to preach principally for gain or make a gain of Godliness By the Imperial Law accordingly they were discharged from the trouble of being Tutors and Curators of Orphans nay where the Law had designed them that care by their relation to the Orphans out of respect to their dignity they were discharged by the Law that they might not incur unkindness to the neglect of their relations nor yet be incumbred with such private attendances to divert them from their great Cure Though the Presbytery might be admitted ad Tutelam Legitimam by their own consent and this was made Law by Justinian Cod. L. 1. By which Law it appears not a Judgment of Incompetency in Clergy-men to intermedle in Secular affairs but an honourable exemption of the Bishops from such private concernments was the reason of that Law It was further provided by a Law of Justinian Cod. L. 1. That Priests should not be made of Court-Officers but those that were so made might continue the reason of the Law is contained in it because that such a man was Enutritus in Executionibus vehementibus seu asperis his quae ex ea re accidunt peccatis Non utique aequum fuerit modo quidem illico esse Taxeatam Buleatam facere omnium acerbissima mox autem Sacerdotem ordinari humanitate innocentia exponentem dogmata In all this the honour of the Church was consulted But business of weight and trust was committed to them Valent. Valens appointed Bishops to set the price of goods sold with this reason Negotiatores ne modum mercandi videantur excedere Episcopi Christiani quibus verus cultus est adjuvare pauperes provideant Justin 79. Novel submits Monks to
will take notice of nothing that is faulty in this Case but that this proceeding tends to abridge freedom of speech in Parliament which he loved from his youth which we do not blame in him As he did also to talk against Bishops which he cannot depart from when he is old But in the first of Hen. 4. this Judgment of Attainder was repealed and annull'd as he himself tells us Fol. 25. And here the Lords Spiritual were Judges which must be remark't for the honour of their Order that though they were the pars laesa by that fault such as it was yet notwithstanding they concurred readily to the repealing the Judgment But by this it appears that the Bishops did agreeable to their rightful Authority sit in Judgment in Parliament in capital Causes and therefore in consequence because it is a Case of his own production he ought to allow that the Bishops might have had Session in the Repeal of the Attainder of Roger Earl of March if it had been or could have been repealed by Judgment or a judicial Act of the Lords House For will this renownedly wise-man for avoiding of this his own testimony which he hath justly produced though it proves to testify against himself say that the Bishops can be present at repealing of a Judgment of Condemnation but not present at confirming any Doth not it in this proceeding come before them in Judgment and consideration Whether the sentence shall be repealed or affirmed and is not this with a witness a question of blood The Judgment being upon an appeal or review must be final peremptory and decretory and is more a question of blood than the Cause can be reckoned and deem'd to be upon the first Instance Or doth he think fit that there should be two sorts of Judges appointed a hanging Judge and a saving Judge if he doth I am sure he will not be able to find an employment for a just Judge So that I think to all men that can consider we have sufficiently vacated that testimony that the Cases of the Earl March and Haxey's seem'd to give against us and they are fairly come over to our side And we have provided herein sufficiently for the recovering of all men into an indifferency against the Prejudices this Octavo by its great Esteem hath done to their Judgments The Third Precedent is 15 E. 3. That Parliament was declared to be called for the Redress of the breach of the Laws and of the Peace of the Kingdom and as the Octavo hath it Fol. 8. because the Prelates were of opinion that it belonged not properly to them to give Councel about keeping the peace nor punishing such evils they went away by themselves and returned no more saith he but that is out of the Record so ready this Authour in Octavo is to shut them out of the House but I pray would not the Temporal Lords if the King had consulted the Parliament in matters Ecclesiastical have in like manner departed but would such departure of the Temporal Lords exclude them from having any thing to do in the Affairs of the Church Why then are the Bishops treated in their Right so unequally And this must serve for an Answer to the Folio p. 17. where he is very large in reciting Records of process and Proclamation against the Earl of Northumberland agreed only by Lords If a Liturgy or book of Canons were to be established by Law the Bishops certainly would have the forming of them The Octavo saith that Commissions were then framed by the Counts Barons and other Grants and brought into Parliament but no Bishop was present so much as to hear the Commissions read because they were to enquire into all Crimes as well Capital as others And for affirming this for all that can appear to us he only consulted his Will and pleasure like an honest man to the cause he defends for he hath not told us from any Record what the Nature of these Commissions were But we observe that though this Parliament was called for matters of the peace yet the Bishops had their Summons and it was not a Parliament excluso Clero The Bishops it seems upon the opening of the Parliament and the causes of convening modestly it seem'd declared that they were not competent as not perhaps studied in Pleas of the Crown or perhaps had not been so observant in fact of the matters of grievance What harm in all this they that cannot propound may judge of Expedients propounded and so did they for it doth appear by the Record 6 E. 3. N. 3. that the Results of the Temporal Lords were approved in full Parliament by the King Bishops Lords and Commons which the Folio agrees But it seems modesty is a dangerous thing and not to be forward to judge and determine though the matter be not understood may be a good Cause to turn a Judge out of his Office and forfeit his Judicature Besides the principal business of this Parliament was Legislation in which the Prelates have an undisputed Right of Session and may they not advise upon what they make into a Law May not they consider of the matter that is to pass into a Law in all the steps it makes But it is admirable what the Folio Book saith viz. that by this Record it is evident that the Prelates have no judicial power over any personal Crimes which are not Parliamentary I suppose he means Crimes not debated in Parliament This doth very much fortify the foundations and grounds of his discourse What are the grounds of his discourse I shall never be able to find out except it be an over-weening Opinion of himself to meddle with these matters which seem too high for him and to which the reading of my Lords Cooks Institutes and the broken Commentaries of the Law will never render any man competent It s true the Bishops have never any power and Cognizance of any Causes except they are commissionated thereto out of Parliament But as true it is of the Temporal Lords and therefore whatsoever advantage this will do his Cause with all my heart let him take it The next Case produced as a Precedent for them is the Case of Sir William de La Zouch and Sir John Gray for a quarrel in the Kings presence they were both committed to the Tower and after brought into Parliament no Bishops there It is a Case that could not be judged there neither was it but one of them was discharged because no probable matter of offence against him and the other remanded to the Tower I suppose to be proceeded against as the Law required Is this cause I pray to his purpose have not the Prelates judgment in causes of Trespass that properly come before that House by his own Confession And yet the Octavo remarks here that no Bishops were present to judge so much as of a Battery though the Record warrants him to say only an Assault But out of his great
it not be with as much fairness concluded that the Bishops were present because the addition of Temporal is not made to Seigniors and Grants in the said Cases of Sir Ralph Ferrers and Sir Wil. Thorp as it can be that they were absent in the hearing of the said Cases because the word Prelate or Bishop is not in those Entries expressed If he will be just and change the Tables He must yield us the Argument for he knows that there is no establishment in the Modus tenendi Parliamentum directing the Forms of Entries or any solemnes formulae whose import and value is ascertained and made indisputable but are to be expounded by an easy interpretation such as we use when we make fair constructions in common speech But to give this another Answer The Arguer is herein guilty of that fallacy which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or non causa pro causa And his Witness doth not speak ad idem The Bishop was an Ecclesiastical person and though the Bishops might try a Temporal Lord for the same offence yet they would not consent to try a Bishop and forgo that great priviledge of the Clergy with so much earnestness defended in that Age to be exempt from secular Judicatures They would not be present to try because of the person of the Defendant which cannot be drawn into Argument to prove that they had no cognizance of the Cause with any fairness But further the Octavo doth afterwards produce a Testimony that doth contradict this last Testimony in the point for which he produc'd it It is the Case of Thomas Arundel Arch-Bishop of Canterbury 21 R. 2. The Bishops pronounced Judgment against him in Treason by their Proxy They can it seems upon great Reasons wave that priviledge and submit a great Malefactor of their own Order to Justice as they did in the Case of Becket heretofore So that you see here they used a Jurisdiction in a Cause of Treason in the Case of Thomas Arundel which the Bishops could not have used without a Right And the Case of the Bishop of Norwich is only an omission consistent with a Right The Case of Sir William Rikehill is next in order who was sent by R. 2. to Calais to take the Confession of the Duke of Glocester who soon after was Murdered The Judge was arrested and brought into Parliament before the King Lords Spiritual and Temporal and Commons the whole matter was examined and the Judge was examined Here is likewise a clear Case for the Bishops an Instance wherein they did take cognizance of a Capital Cause in Parliament But the Octavo hath a Shift for us and says that there was no impeachment or charge against the Judge and so the Bishops might be present at his Examination Let the Reader here observe the sleights wriglings and prevarications of this Octavo Author Whatever the World thinks of this Author I am much dissatisfyed about him and cannot believe him a man indifferent and impartial in this Enquiry In his observations of the Parliament of the 15 E. 3. the Bishops he saith vanished like lightning they went away immediately at the opening That matters of the Peace in general were to be treated of wherein Blood and Member might not at all be concerned for all that appears They went away and as he would have it they returned no more and they must not hear so much as a Commission of the Peace read But here in this Case of Rikehill they may examine a Murder He will say I am sure that though the Bishops did examine it they could make no judgment of the matter But who will believe him In the Case of de la Zouch and Gray he observes that Bishops could not be present so much as at a Battery though there was no Battery in the Case and yet he allows them to judge of all misdemeanors in the same little Book I observe but these things of many more of like nature which the Reader may observe of himself in that little Octavo that the World may judge how unjustly he deals in this Cause with what iniquity and prevarication he manages a noble question of Right concerning the Government of the Kingdom With what petulancy spight and inveterate displeasure he useth the Bishops That he is grinning at them whetting his teeth and squinting upon them perpetually with an evil Eye He oppugns their Right with Cavillations upon the Clerks Entries with what is in the Record and what is not and what he is pleased to add of his own upon them and with Precedents that reprove one another Had it not been more fair for him to have stated the Right upon a probable result of all the Records considered together than to make their Right sometimes more sometimes less sometimes to affirm sometimes to deny their Right in the same little Octavo He cannot sure think that every Judgment that hath been given upon deliberation in the greatest Judicature can uncontroulably make the Law much less a Fact much less an Omission a Negative that can operate nothing If nothing be Law but what hath always and constantly been done in the same manner and form and all circumstances the same as this Author it seems would have it and nothing true Theology according to Vincentius Lirinensis his Rule but what hath been received ab omnibus ubique semper We can have no Law nor no Theology Vain and idle opinions must be discharged such as can have no consideration with wise men and the Law must be declared by the Nature of Government reason and the general order of things But we have made too long an Excursion We must return to a further consideration of Rikehil his Case And now I submit it to any impartial man whether the Judge could be arrested and brought under an Arrest into the Parliament and be examined and not accused The very next Case he recites is that of John Hall in which we find nothing but an Examination and confessal upon which he was condemned as a Traytor And so would it have fared with Sir William Rikehil without doubt if he had been guilty and had confessed Neither the Octavo nor Sir Robert Cotton mentions any formality more against the one than the other The House of Lords are not tyed to Formalities in their proceedings like other inferior Judicatures and the more inferior any Court is the more regular forms are exacted and that with great reason which we will not hear treat of Besides in the Case of the Earl of Northumberland recited in the Octavo Book Fol. 34. in 5 H. 4. a Judgment was given against him for an offence upon a petition which he exhibited for a pardon of the same offence But in the Case of the Earl of Northumberland I pray observe what the Octavo saith in reference to our question After he hath recited part of the Record in these words The petition being read and understood the Lords as Peers of Parliament
Regni Angliae pro tempore celebrandis necnon tractandi expediendi in eisdem quantum ad singula in instanti Parliamento pro statu honore Domini nostri Regis nec non Regalie ac quiete pace tranquillitate Regni judicialiter justificandi venerabili viro D. Thomae Peircy ..... Nostram plenariam committimus potestatem ita ut singula per ipsum facta in praemissis perpetuis temporibus rata habeantur The Commons of England knew what they said and could not be mistaken in fact we know of no Judgments reversed but those of the Spencers But we have no Records or very few of the times before Edward the Third transmitted to us through the injury of the times but they then had certainly whereupon they grounded their petition upon which the said procuratory Letters were made which petition here follows in terminis Mecredy prochein ensuant les Communes monstrerent au Roy coment avant ces Jeures plusieurs jugements Ordinances faitez en temps des progenitors nostre Senior le Roy en le Parliement eiant estre repelles adnulles pur ceo que l'estat de Clergie ne fust prest en Parliament a la faisaunce des dits jugements Ordenances pur ceo prierent au Roy que pur surete de sa personne salvation de son Royalme les Evesques le Clergie ferroient un Procurator aver poiar sufficient pur consentir en leur nosme as toutes choses ordinances a justifieis en cest Parliament que sur ceo chescun Signior espiritual dirroit pleinenent son advys Sur qui les dits Seigniors Espiritual severalment examines se consenterent de Comettre lour plein poiar grantant en les parts nosmerent on especial Tho. Peircy Chivaler sur ceo baillerent au Roy une Schedule contenant lour dit poiar le quelle nostre Seignior le Roy receust commanda la dite Mecredy estre enter de record en Rol de Parliament deque cela Schedule le form sensuit But it is remarkable that this Petition was made in 21 R. 2. for that in the 11 R. 2. the Bishops had made their Protestation that by reason of a Canon they could not be present The words of the protestation we shall here transcribe Per encheson certeins mattires feurent mouvez en cest present Parliament toucherent overtement Cryme L'archevesque de Canterbiry les autres Prelates de sa province fierent une protestation en la fourme paroles qui suent In Dei nomine Amen Cum de Jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non caeteros suos Suffraganeos Confratres Coepiscopos Abbates Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertinet in Parliamentis Regiis quibuscunque ut Pares Regni praedicti personaliter interesse ibidemque de Regni negotiis aliis ibi tractari consuetis cum caeteris Domini Regis Paribus aliis ibidem jus interessendi habentibus consulere tractare ordinare statuere definire ac caetera facere quae Parliamenti tempore ibidem invenerint faciend in quibus omnibus singulis nos Willielmus Cantuarien Archiepiscopus totius Angliae Primas Apostolicae sedis Legatus pro nobis nostrisque Suffraganeis Coepiscopis Confratribus necnon Abbatibus Prioribus ac Praelatis omnibus supradictis protestamur eorum quilibet protestatur qui per se vel procuratorem hic fuit modo praesens publicè expressè quod intendimus intendi volumus vult eorum quilibet in hoc presenti Parliamento aliis ut Pares Regni praedicti more solito interesse consulere tractare ordinare statuere definire ac caetera exercere cum caeteris jus interessendi habentibus in iisdem statu ordine nobis eorum cuilibet in omnibus semper salvis Verum quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet personaliter interesse ea propter pro nobis eorum quolibet protestamur eorum quilibet hic praesens etiam protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus intendit nec vult aliquis eorundem in praesenti Parliamento dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos nostrum quemlibet in ea parte penitus absentare Jure Paritatis nostrae cujuslibet eorum interessendi in dicto Parliamento quoad omnia singula inibi exercenda nostro eorum cujuslibet statui ordini congruentia in omnibus semper salvo Adhuc insuper protestamur eorum quilibet protestatur quod propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit vel vult quod processus habiti habendi in praesenti Parliamento super materiis auditis in quibus non possumus nec debemus ut praemittitur interesse quantum ad nos eorum quemlibet attinet futuris temporibus quomodolibet impugnentur infirmentur seu etiam revocentur Quelle protestation leu en plein Parliament al instance priere du dit L'archevesque les autres Prelates susditz inrollez ycy en rol du Parlement per Commandement du Roy assent des Signiors Temporeles Communes This the adversaries of the Bishops would have an Act of Parliament for that at the prayer of the Bishops by the Kings command with the assent of the Lords Temporal and Commons it was inrolled for that all the formalities that were used in these times in passing a Law was only to have the matter shortly entred in the Roll or Journal Book that such a thing was agreed upon by the King and two Houses which was drawn into the form of a Law afterwards by the Justices and Kings Councel when the Parliament was risen but this was never done in this Protestation and therefore we might say that it is not to be taken for a Law But we will admit it to be a Law yet it can be a Law only for that Case and can be extended no further Those Bishops protest but for whom For themselves only their own persons not their successors that by reason of the institution of the Canon they could not be present at certain matters to be treated of in the Parliament What those Canons were they do not tell us They had no other reason but the Canon to pretend at that time We hear not a word from them of the Assise of Clarendon And what was it that they protested Why only that they could not be present at what only at the matters aforesaid mentioned in the Petition and in that present Parliament But was this without any regard of their Right No they saved their Right their
Law was publickly professed in England before the end of the 12th Century for Mat. Paris tells us of a Monk of Evesham Anno Dom. 1196. that suo tempore eorum quos Decretistas Legistas appellant peritissimus habebatur earum etiam facultatum auditores quamplurimos instituerat and from that time the study of the Caesarean and Pontificial Law did flourish amongst us until the beginning of E. 3. But in all that time saith Mr. Selden in his Fleta gens ipsa Anglicana ac qui in judiciis praeerant morum patriorum viz. Juris Communis Angliae per intervallum illud tenacissimi fuere A remarkable instance we have of this Nations steady aversion from admitting here either the Civil or Canon Law in the Parliament of Merton which rejected a Bill for Legitimation of Children born before marriage in Concubinate in these Terms Nolumus leges Angliae mutari meaning that they would not make Laws conformable to the Civil or Canon Law The great Policy that the Popes used to effect their Ambitious design of making themselves Monarchs of the Christian World were The assuming to themselves the entire rule and Government of Religion and endeavouring to make every where the Bishops and the whole Clergy together with the Regulars dependant upon them by pretending them to be exempt from all Civil Authority and Jurisdiction and by interdicting to them the exercise of any Civil Authority and shutting them out from all intromissions into the Civil Government and from any interest or dependance thereupon So far as he prevailed in these designs he acquired an Imperium in Imperio and if besides these he could have fixt a Spiritual handle to the Temporal Sword and have got the Government of secular affairs in ordine ad spiritualia his design had been compleated and he had arrived to a more absolute and extensive Empire than that of the Roman Caesars To these purposes the Canon Law provided that the Ecclesiasticks were neither to exercise nor be subject to any Civil Authority But this policy of the Pope had no success in England the endeavours of the Papalins herein met with constant opposition and at last they were made desperate by the Assise of Clarendon where it was declared and enacted accordingly agreeable to the Avitae Consuetudines Regni that the Bishops should be retained and continue to be a part of the Government and exercise Jurisdiction in all Causes in the Kings Court as other Barons as is before observed and that the Clergy should stand submitted to the Jurisdiction of the Kings Courts For this purpose it was also in that Parliament enacted as followeth Si controversia emerserit inter Laicos vel Laicos Clericos in Curia Domini Regis tractetur determinetur and also quod clerici rectati accusati de quacunque re summoniti à Justitia Regis venient in Curiam Domini Regis responsuri ibidem c. And so far were the Bishops and Clergy from observing that part of the Canon Law that was to detrude them from all secular Authority and Jurisdiction that they were from time to time Chancellors Treasurers Keepers of the Privy Seal and Judges and while that Ancient Office continued of Capitalis Justiciarius Angliae to whom was committed the Justice of the Kingdom who were called Custodes Regni Vice-Domini Angliae and sometimes the abstract Justitia He did preside in the Curia Regis which Office was afterwards divided for there were Justitiarii Angliae Boreales Justitiarii Angliae Australes this Office was often executed by Bishops as you may see in Sir Hen. Spelmans Glossary in the word Justitiarius Bishops and Church-men administred the greatest Offices of State and Justice this was matter of Envy to the Temporal Lords and they complain'd in Parliament 45 E. 3. as is before observed That the Government of the Kingdom had been a long time in the hand of the Clergy Mr. Selden in his Fleta tells us that in the times before and after the Assise of Clarendon Mos fuit Judices Regios ex genere hieratico veluti Episcopis Abbatibus Decanis id genus aliis constituendi And it is provided by 28 E. 1. Cap. 3. That if a Clergy-man was a Judge of Assise another should be joyned in Commission with him to deliver the Goals which was to the end that the Ecclesiastical Judge might use that liberty which was indulged to him by the Assise of Clarendon of not pronouncing the Sentence for it must be observed that by that Statute a Clergy-man might be a Judge in a Goal-delivery for that a Laick was by the provision of that Statute to be join'd to him in Commission and Pleas of the Crown are to be found purporting them to be held before two Judges whereof one a Clerk after this Law which could not possibly have been if the Clerk had not been in Commission Besides for after Ages it is well known that all the great Officers and Ministers of State and Justice have been always intrusted with the conservancy of the peace are in Commissions of the peace and Commissioners of Oyer and Terminer for judging capital Causes so that the constant practice in all times as well as the express declaration of the Assise of Clarendon doth assure us that the Canon Law that prohibits Clergy-men being Judges in capital Causes was never received here or became the common Law of England Besides what regard our Clergy had of the Canon Law what opinion they had of the Right in question and how far the Laws did intend to prohibit the exercise of it And that such right was used and exercised will appear by the Canon of Toledo Concil Toletan 11. Cap. 6. fo 553. and the Canon of Lanfrank Spelmans Concil 2 vol. fol. 11. these were made before the Assise of Clarendon That of Toledo is this His à quibus Domini Sacramenta tractanda sunt judicium sanguinis agitare non licet ideo magnopere talium excessibus prohibendum est ne qui praesumptionis motibus agitati aut quod morte plectendum est sententia propria judicandi mant aut truncationes quaslibet membrorum quibuslibet personis aut per se inferant aut inferendas precipiant This being a Foreign Council this Canon carries not with it the Authority of a Canon with us only we may observe whatever the Opinion of that Council was that it was not convenient for licet can have no ocher sence here for Clergy-men agitare judicium Sanguinis Yet this Canon prohibits only the pronouncing the Sentence by themselves or others I am sure that by a positive Law as this Canon must be so far as it participates of the nature of a Law nothing becomes unlawful but what is forbidden whatever the reason be of that Prohibition That of Lanfrank follows thus Vt nullus Episcopus vel Abbas seu quilibet ex Clero hominem occidendum vel membris truncandam judicet vel judicantibus suae authoritatis favorem
his qui in sacris ordinibus constituti judicium sanguinis agitare unde saith the Canon Prolibemus ne aut per se membrorum truncationes faciant a very fitting Employment for a Bishop aut inferendas judicent and after all this we have still our old Answer upon which we will ever insist it is but a Canon and can make no Alteration in the Rights of Government For tho' Gervasius Dorob tells us In hoc Concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula yet the Canons of this Council are not Laws For that our Historian does not tell us of any Parliament then held or that they were confirmed in Parliament and the good liking of Great Men out of Parliament will not confirm nay not justifie the Canons if they cannot justifie themselves in Parliament Besides that these Canons were not made into Laws we will offer two Reasons 1st For that amongst these Canons there is one that disposeth of the Right of Patronage against the Law as it hath been before and since taken and that is this Nulli liceat Ecclesiam nomine dotalitii ad aliquem transferre vel pro presentatatione alicui personae pecuniam vel aliquod emolumentum pacto interveniente recipere quod si quis fecerit in jure convictus vel confessus fuerit ipsum tam Regia quam nostra freti autoritate patricinio ejusdem Ecclesiae in perpetuum privari statuimus which was never most certainly Law Secondly If this had been a Law the other Canon before-mentioned made by Stephen Arch-bishop of Canterbury was idle nay presumptuous for offering to derogate from a Canon made a Law about 47 years before But however Canons confirmed by Law remain but Canons still and the Breach of them not punished as the Breach of Laws nor no Innovation made thereby upon a civil Right of which before and after more As to the Second Canon we observe how dutiful this Canon in the Stile of it behaves it self towards the Civil Government in that Clerks should not exercise Jurisdiction where Judgment of Blood is to be given under the soft word Statuimus that they should not Literas pro poena sanguinis infligenda scribere that is sign an Order for the Execution of a Condemned Man or be present at the Sentence is under the districtiùs inhibemus but the doing of this is not declared to be a Sin he that is contravenient to the Canon is not thereby to become irregular to be punished by his Superior or to incurr Excommunication or any Censure the Clergy are not declared by this Canon to be incompetent Judges it only declares them unworthy of the Protection of the Church the meaning of it is Judge not least ye be judged If you judge the Laicks they will judge you This is the Scandal for which the Privilegium Clericale will be lost So that upon the whole matter this Canon is but Advice and Counsel and offers reasons to the Choice and Approbation rather than a Command under the Authority of the Church in a Council But let it be what it will if the Canon had been most peremptory in its Prohibition and had lighten'd and thunder'd in its Denunciatiations it would have been of no force to alter the Government or discharge a Judge from doing his Duty but this is farther to be duely observed that this Canon could not be broken if the Law had not been otherwise than these Canons direct and therefore these Canons produced by our Adversaries are the greatest Testimonies to the Right we defend and a practice agreeable thereto Doth not the Canon suppose that a Beneficed Clerk or one in Holy Orders was sometimes in Commission for judging in Capital Causes For certainly the Canon did not prohibit them to murder or enjoyn them not to write Letters to subborn men to kill What can be the meaning of the Canon but this supposing a Beneficed Clerk to be made a Judge of Life and Death to assist in a Commission of Oyer Terminer or Goal-delivery that he should be enjoyned not to pronounce the Sentence or to sign the Order or Calendar for Execution But if he were not a Judge how possibly could he sign an Order for Execution By the other words of the Canon Nec intersit ubi judicium sanguinis tractatur he can be forbidden onely to be present and assisting as a Judge or Officer at the pronouncing of Sentence for it can be no fault sure nor ever was intended by any Canon to be made one for any Clerk to hear a Court pronounce a Judgment of Death or Mutilation or to see a Malefactor executed What therefore can be more evident than that the Bishops did withdraw not for want of Right of Session but they pretended the Canon because they did not like the Causes But further that nothing more than what we have shewed was understood to be done in that Protestation by those times they must be allowed at least to know their own Opinions doth appear for that notwithstanding the Protestation of the Bishops aforementioned the great Council of the Kingdom did not think the Authority of a Parliament when the Bishops were absent unquestionable This Opinion we do not go about to maintain but this we conclude that there could never have been such an Opinion if the Bishops had been denied Right of Session in Capital Causes in that time CHAP. IX THE Commons of England in the 21 R. 2 pray that the Bishops might make their Proxy which they did thrice in that Parliament once by Procuratory Letters to Sir Thomas Percy as is before recited and afterwards William la Scroop Earl of Wilts was made their Procurator and a third time the Earls of Worcester and Wilts were made their Procurators in the matter between the two Dukes of Hereford and Norfolk That it may the better appear that the Bishops were virtually present by their Proxy it ought to appear that they were allowed to make Proxies and that the Lords Spiritual did so as well as the Temporal Lords The first mention of Proxies that occurs in the memory of our Parliaments is in the Parliament of Carlisle under E. 1. and that is of the Bishops Proxies The words are these Quia omnes Praelati tunc plenariè non venerunt receptis quibusdam procurationibus Praelator qui venire non poterant adjornantur And in a Parliament held at Westminster under Ed. 2. dors clauso Ed. 2. m. 11. the Bishops of Durham and Carlisle remaining upon the Defence of the Marches of Scotland are severally commanded to stay there and in the Writ this Clause was added to both of them Sed Procurat vestrum sufficienter instructum ad dictum diem locum mittatis ad consentiendum his quae tunc ibidem praedictos Praelatos Proceres contigerit ordinari Though generally Proxies were admitted to both Spiritual and Temporal Lords
yet when the business of the Parliament was extraordinary the Writs of Summons both to the Prelates and Barons had a Premonition that a Proxy should not be allowed unless they could not possibly be present dors claus 6 E. 3. m. 36. claus 1 R. 2. m. 37. 2 R. 2. m. 29. Nor was it unusual with the Prelates to make such their Procurators who were no Members of that House In that Parliament of Carlisle under E. 1. the Bishop of Exeter sends to the Parliament Henry de Pinkney Parson of Haughton as his Proxy The Bishop of Bath and Wells sends William of Charleton a Canon of his Church In the Parliament 17 R. 2. the Bishop of Norwich made Michael Cergeaux Dean of the Arches and others his Procurators In the same year the Bishop of Durham his Proxies are John of Burton Canon of Beudly and others In the Statute of Praemunire 16 R. 2. cap. 5. it is said that the advice of the Lords Spiritual being present and of the Procurators of them that were absent was demanded This making of others then Barons of Parliament Proxies is not without President likewise in the case of Temporal Lords Lit. Procurator Parl. 4 H. 5. Thomas de la War gave his Procuratory Letters to John Frank and Richard Hulme Clerks So that it appears that by the Law of Parliament the Proxies of the Bishops in the 21th of R. 2. were legal Proxies and consequently the Bishops there virtually Besides that the lawfulness thereof doth appear for that it was required of them by the Parliament that they should make their Proxies and be present by their Procurators for this reason lest otherwise the Proceedings in that Parliament should be void CHAP. X. IT is true that the Parliament 21 R. 2. was wholly repealed by 1 H. 4. but that was for a good reason indeed because that Parliament of 21 R. 2. had delegated their whole power to a few of their number who finally without any resort back to the House made and past Laws But did ever any man before the Octavo argue at this rate that because there is one error in a case for which the Judgment is reversed that therefore there was nothing in the case legal and well considered And therefore how unreasonable and false this way of arguing is and that it is disputing against fact we shall further shew and prove For a probable Opinion still continued of the necessity of the Bishops sitting which implies a clear Recognition of a Right for in the 2 H. 5 the Earl of Salisbury petitioned the House to reverse a Judgment given against the Earl his Father Anno 2 H. 4. the Error assigned was the Absence of the Spiritual Lords The Case was much debated but the Judgment affirmed as we allow it ought to be but we produce it as an irrefragable Testimony of the Bishops Right to sit for if that had not been allowed there could not have been the least colour in the case nor matter of debate CHHP. XI BUt tho' the Actual Exercise of the Bishops Right in their own Persons though whatsoever is done by a Deputy is done in the Right of him that makes the Deputation as every body knows was for some time discontinued tho' their Right in that time was most solemnly owned and recognized yet in 28 H. 6. we find them re-continuing the Exercise of that Right and Authority and in their own Persons sitting in Judgment upon William de la Pool Duke of Suffolk who was impeach'd of Treason by the Commons for that he had sold the Realm to the French King and had fortified Wallingford Castle for a place of Refuge The Impeachment of High Treason was brought from the House of Commons by several Lords Spiritual and Temporal sent thither by the King's Command the Ninth of March the Duke was brought from the Tower into the Presence of the King the Lords Spiritual and Temporal The Impeachment was read unto him The Thirteenth of March he was sent for to come before the King the Lords Spiritual and Temporal to answer to his Charge which he did On Tuesday the Seventeenth of March the King sent for all the Lords Spiritual and Temporal who were in Town They are named two Arch-Bishops and thirteen Bishops besides the Temporal Lords who being assembled the King sent for the Duke There was no Judgment given by the Parliament but he submitted to the King and the King gave him Penance which was that he should be absent for Five Years out of England The Lords Spiritual and Temporal by Viscount Beaumont declared to the King that this that was so decreed and done against the Person of the Duke proceeded not by their Advice and Council with this Protestation that it should not be nor turn in Prejudice nor Derogation of them their Heirs ne of their Successors in time coming but that they may have and enjoy their Liberty and Freedom as largely as ever their Ancestors or Predecessors had and enjoyed before this time Observe here that the Lords Spiritual were present at every Motion of this Cause This Cause was thrice before them no Exception taken to the Bishops being Judges They could not sit by Permission without Right if the Bishops had no Right to sit the Proceedings had been certainly erroneous For though one Judge's Absence if there be a Quorum will not vacate a Judgment yet if one sit in Judgment that is not an Authorized Judge the Proceeding is certainly erroneous and void Can any man believe that the Government should lose it self forget it s own Establishments in the highest concerns We may as soon believe that a man may forget his own name One positive Act of Session signifies more than 100 Omissions for if it had not been well understood that the Bishops had a Right to sit in Judgment in Capital Causes in Parliament they could never have been admitted they would never have presumed to endeavour it But with false Logick and absurd Reasonings and dislike to the Order it is become an Opinion in this Age because sometimes the Bishops absented that they have no Right But we have one thing further to add that declares an inherent Right in the Lords Spiritual to the Authority in question and that is an Opinion of the Judges 10 E. 4. 35. which says that the Lords Spiritual in case of a Tryal of a Temporal Peer in Parliament shall make a Procurator for then it seems an Opinion was received which was error temporis That it was indecent for Bishops to sit in their own persons in Judgment in such cases But they themselves are best Judges of what is indecent and unbecoming their Order for no man is obliged to any man but himself in the matters of Decency and the measures that make things decent or indecent is very mutable as changable and mutable as Customs Fashions and Opinions Besides that there is nothing that is very valuable and is of great concernment but can and
to the Encroachment of the Papal Power and in this matter to declare how far the Bishops might if they pleased observe the Canon Law or rather themselves and what was thought then decent to their Order So according to the Print in Gervasius and therein he differs from Matth. Paris it is Quousque judicio perveniatur ad mutilationem membrorum vel mortem which further clears the meaning of that Law to be that the Bishops were thereby excused not altogether from Capital Causes but onely when it was proceeded so far in such like Cause that Judgment was to be pronounced which when the Bishops had nothing to gainsay they might depart and leave Sentence to be pronounced by the House But we cannot after all this allow the Author of the Folio to have so little sense as with a good conscience to say that he who cannot perhaps by reason of his circumstance and some consideration of Indecency execute a thing in his own person therefore cannot do it by another no more than he can authorise one man to murther another Thus he saith fol. 20. when surely this Gentleman cannot think it as fit for a Judge to be a Hang-man as to sign a Kalendar for the Execution of the Condemned Prisoners But the Octavo is somewhat surprizing in this matter For he doth affirm That it is not lawful for Bishops to vote in any Question preliminary and preparatory to the Sentence of Condemnation when such Sentence follows and the matter preliminary is necessary to the Process This he proves by a Logick Rule Causa Causae est Causa Causati one of Sthalius his Axioms hath turn'd round the Head of this Gentleman I find few men can bear Axioms Maxims and Sentences There are none speak so much unnatural Non-sence as they that use them most May not several men I pray do several parts of an affair and yet he that doth the first part is no ways the Cause of what another man doth in the second and third place Is the acting the first part of the Play the cause of acting the last Or is the laying the Foundation the Cause that lays on the Roof Is the Jury the Cause of any more than their Verdict And doth not the Court give Judgment by their own Authority and Causality If men would speak by Nature and according to first Notions and were not so full of second Notions and Universals we should not have so many Errors Mistakes and Confounding Opinions in the Work But this we complain of as too severe in the Octavo that when he had confounded us with his Causa Causae Causati he would render us ridiculous with a Story of a Friar out of Chaucer That would of a Capon the Liver of a Pig the Head But would that nothing for him should be dead This indeed was a fine piece of Wit in the Poet but translated hither by our Author is an insipid piece of Malice His Design sure in this was to enter the Bishops amongst Chaucer's Friars and then the Learned Readers of Chaucer would be very conceited upon them and apply all his pleasant Satyrs against the Friars to the Bishops But for the farther Evidence of the Bishops Baronage and their Jus paritatis it would not be impertinent here to add That the Names of Barons Peers Seniors Grants have been attributed to the Lords Spiritual in all times in Authentick Histories and Records Forasmuch as a Nominal Argument is not a very inartificial Topick in such a Cause as this Besides that this will destroy the very strength of our Adversaries which lies in this that they will not allow Prelates to be comprehended in the Name of Peers Grants and Barons And that where the Records doth not expresly mention Prelates they will conclude they were not meant or intended to be present But the Collection which was made for this purpose shall not trouble the Reader because in two Books since Printed in Defence of the Bishops Right in question this is abundantly performed Besides that it is a very precarious Conclusion that our Adversaries make and without argument For they ground themselves herein upon a most unreasonable Postulatum viz. That Titles do not belong to persons for whom they were made and to whose Character they agree and that Words do not design the things which they were made and imposed to signifie CHAP. XIV NOw we shall proceed to perform a necessary piece of Justice to the Prelates as well as a Right to the Government to recover its true Constitution from the Prejudice of Modern Ignorance to declare and manifest that our Gvernment doth consist of three States the Lords Spiritual and Temporal and Commons of England These do make the Great Council of the Kingdom and minister to the King Council and Auxiliaries over which the King doth preside as the Great Superintendent and mover of this mighty Machin The consequence of which is that the Bishops cannot be detruded from that place they bear in the Constitution of the Government for that no Government can be legally or by any lawful power changed but must remain for ever once established And it cannot be no less than Treason of State to attempt a change no Authority in the world is competent to make any alteration The Princes of Christendom after they took to themselves the Election of Bishops which is a natural right of the Sovereign Power become Christian they soon observed the advantage that they might make by advancing them to the greatest Secular Dignities Governments and Trusts and did accordingly advance them to an equality if not to a superiority to the highest of the Secular Nobility gave them Dutchies Marquisates Baronies and rich Endowments and erected that Order into a successive Nobility Another sort of Nobility from that of the Lay Princes concluding that they should be better served by men of their own choice and approved worthiness who had also other advantages over the People than those that the Temporal Princes and Lords had by that Reverence they paid to their Bishops and the Authority and Power that they had over them in the virtue of Religion than by the Hereditary Princes and Nobility who did not always answer to the virtue of the original Ancestors and the first stock Besides that Religious Kings and Sovereign Princes did by advancing Bishops intend to do great advantages and honour to Religion but withall they did not divide the Bishops thus advanced from the Secular Princes and Noblemen in Councils for then they had lost their design The Bishops could not have had any direct influence upon the Councils of the Nobles and Secular Princes nor have tempered their Debates with an excellent Charity and firm Loyalty and other Vertues which belong to their Character It would have made trouble distraction and impediment in the Affairs of Princes and emulation and strife and faction between the Ecclesiastical and Secular Orders and several mischiefs and great inconveniencies would have
Earls did then as now make the Parliament Besides the Barones majores and minores there was at this time a distinction between the Barones Regis and Barones Regni which I will here explain to prevent any mistake that may grow thereupon The Barones Regni were Barons by Tenure and made part of the Government by the Constitution of the first William and so in process of time called Barones Regni because they had by continuance of that Constitution acquired a fixed right to that Honour But because of the frequent Wars between the Barons and the Kings at that time they did omit to summon some who were Barons by Tenure and now duly called Barones Regni to Parliament and called others to Parliament that had no right to be called ratione tenurae and these they called Barones Regis This was ill taken by the Lords and was one of the occasions of their War with King John upon which they did obtain his Charter for remedy as followeth Barones majores Regni sigillatim summoniri faceret The truth of this as to the fact will appear by the Histories of those times and that this is the reason of that distinction of Barones Regis and Barones Regni doth appear by the recited Charter of King John where the majores Barones are called Barones Regni for the Barons were more concerned for the losing of their Honours than they were at the communication of the like Honours to others and with reason though all Honours are lessened by the numbers of those participate of them The inconveniences and mischiefs of this Constitution were very great and very sensible by making the Government consist of one Order there was no third to moderate and hold the balance The Honour of the great Nobility was lessened by an Equality of Suffrage in the great Council of the Kingdom yielded to the Tenents in capite and were not so concerned to support the Dignity of the Crown for the maintaining their own which in that Constitution could not be great It had the faults of either House and the virtues of neither they pressed hard upon the King and were uneasie and oppressive to the People they were not reverent of the Crown nor tender of common right The great Charter provides against the Oppressions of great men as it doth for bounding the Prerogative Our mixt Monarchy was out of tune by the Aristocratical Power of the Baronage now become too excessive by the policy of the Conquerour by advancing too great numbers to that Dignity too great to depend upon the Crown or to be govern'd by it unassisted That which the first William intended and designed for the establishment of his Conquest and of the Peace of the Kingdom made it very easie to afflict bad Princes But by several steps we recovered being taught and instructed to it by our Experience and the sufferance of great Calamities such a Representative that might most certainly effect what in all Ages was intended and designed that nothing should be Law or civilly just but what the People assent to by which their Persons and Rights are secured and defended which is the sole end of Government But evident it is that this more equal clear representative which we now enjoy in our House of Commons grew upon the reducement of the excessive number of Barons so great that it made them a Tumult rather than an Assembly and for the reducement of the power of the greater Barons for in the Parliament of 49 H. 3. when but 25 Lay Barons were summoned tho' in the 41 year of his Reign he numbered 250 great Baronies in England we find Writs for electing to a Parliament at London two Knights Citizens and Burgesses and Barons for the Cinque-Ports before that time none were found nor any Foot-steps of Right for the Counties sending Knights to Parliament though there is a clear Right appears for the Burroughs to send Burgesses which we shall speak to afterwards It will not be impertinent here to add that the Government of Scotland which runs parallel almost to our English Government found it inconvenient that all the Tenants in Capite should resort to their Parliaments and therefore they were reduc'd in this manner viz. their Barones Minores or Tenants in Capite in every County choose two of ther own number to Parliaments which at this day they call the Barons for Counties whereas all our Free-holders choose their Knights of the Shire and our Elections are not restrained to Tenants in Capite And this made it more reasonable for our Representatives of Shires together with the Burgesses to become in process of time a distinct Lower House whereas their Barons of Shires set together with the Lords and vote in Common with them The Knights of the Shire which made the principal part of the Representative of the Commons having no Relation to the House of Peers or the Baronage of England because chosen by all the Feee-holders indifferently though not Tenants in Capite But to return to our History that deduceth the Change of our Government That some great matters for publick Good and Establishment of the peace of the King and Kingdom was treated of in this Parliament they did to be sure establish this new Form of a Parliament will appear by a Form of a Writ of Summons to the Bishop of Durham to that Parliament which I will here transcribe Henricus Dei gratia Rex Angliae Dominus Hiberniae Dux Aquitaniae venerabili in Christo patri R. Episcopo Dunelmensi salutem Cum post gravia turbationum discriminia dudum habita in Regno Nostro Charissimus filius Edwardus primogenitus noster pro pace in regno nostro assecuranda firmanda obses traditus extitisset jam sedata benedictus Deus turbatione praedicta super deliberatione ejusdem salubriter providenda plena securitate tranquillitate pacis ad honorem Dei utilitate totius Regni nostri firmanda totaliter complenda ac super quibusdam aliis Regni nostri negotiis quae sine Consilio vestro aliorum Praelatorum magnatum nostrorum nolumus expediri cum eisdem tractatum habere nos oportet vobis mandamus Rogantes in fide dilectione quibus nobis tenemini quod omni occasione postposita negotiis aliis praetermissis sitis ad nos Londiniis in octabis Sancti Hilarii proximo futuris nobiscum cum praedictis Prelatis magnatibus nostris quos ibidem vocari secimus super praemissis tractaturis consilium impensuris hoc sicut nos honorem nostrum vestrum necnon communem Regni nostri tranquillitatem diligitis nullatenus omittatis Dors Claus 49 H. 3. M. 11. in Scedulae I strongly incline to believe That this King did call in the Commons by their representatives the Barones Minores being discharged to moderate between him and his Barons which became after to be sure however it was before the standing Representative of the people Something
Summons to Parliament and the Stile of Barons it was less difficult for those Great Barons to procure a Law to exclude the rest wholly from having any Right to sit in the Parliaments under the name of Tenant in Chief only And to this purpose doubtless saith Mr. Selden some Law was afterwards made that none should come to Parliament as a Baron that is by vertue of his Tenure but such as should have several Writs of Summons directed to them in which number not only all those of the Ancient and Greater Barons were comprehended but others to whom Writs should be directed which is in effect that no Tenure should any longer make a Baron of the Kingdom but that the Writ of Summons only should make a Baron It is not improbable for the reasons aforementioned that such Law was made the 49 H. 3. and farther for that we find that the Abbot of Leicester in the 26 E. 3. was discharged from being summoned to Parliament amongst other reasons that he was not summoned to Parliament before 49th year of H. 3. and after that Interpotalis vicibus as if part of the Constitution had been that those of the Ecclesiasticks who at that time were accounted the Barones Majores so declared by having Writs of Summons to Parliament should have Writs of Summons to Parliament thence after in Succession And herewith agreeth Mr. Cambden Brit. fo Henricus tertius ex tantâ multitudine quae seditiosa turbulenta fuit optimos quosque rescripto ad Comitia Parliamentaria evocaverit ille enim ex satis antiquo scriptore loquor post magnas perturbationes enormes vexationes inter ipsum Regem Simonem de Montfort alios Barones motas sopitas statuit ordinavit quod omnes illi Comites Barones Regni Angliae quibus ipse Rex dignatus est brevia summonitionum dirigere venierent ad Parliamentum CHAP. XVI SO that it appears clearly that the Feudal Baronies about this time were quite discharged so far that no man by a feudal Barony had any Right to sit in Parliament and those that were feudal Barons before this time by the Alienation of their Baronies afterwards did not cease to be Barons But for that the Majores Barones and such as had then Writs of Summons and were appointed to make the House of Lords for after time were then Barons by Tenure It continued an Opinion some time that no man was bound to answer such Writs of Summons but those that were bound thereto by their Tenures thence it was that after this Constitution many that were feudal Barons before have taken a Liberty to entail their Baronies with the Lands that were held per Baroniam upon the Heirs Males whereby the Heirs general or next Heir Female were excluded and an Heir of the half Blood hath enjoyed the Honor with the Lands by vertue of the Entail We will trouble the Reader with one Instance of this kind and that is as late as Q. E. William Lord Paget of Beaudesert entailed the Baronies of Longdon and Haywood by Fine which descended to Henry his Son and Heir who had Elizabeth his Daughter and Heir died 11 Eliz. after whose Death Thomas Brother and Heir Male of Henry entered into the Baronies aforesaid and was summoned to Parliament This was allowable because the Honor of the Name and Family was thereby better supported and the Office of a Baron continued in the Family and the Duty of it better performed by such direction of the Descent And we do also observe that after the reason of being a Baron from Tenure did cease the following times kept the Old Form of Speech tenere per Baroniam was used commonly to denote a man a Baron That the Law is as we have said appears for that an Issue at Law whether Baron or not ought to be tried by the Parliament Records of his Summons and Session there as a Baron and not by the Records of the Exchequer to prove the Tenure I will not therefore trouble the Reader with what is reported to us in our Year-books nor my self in reconciling the seeming disagreements there about this matter onely thus that the Judges have sometimes spoken cum vulgo and not agreeable to the true notion of the Law and that they did not judge according to Law in the case of Thomas de Furnival But the Barons being anciently first so by Tenure did so stick with the Judges that they allowed Thomas de Furnivals Plea that he did not hold per Baroniam to discharge him from being a Baron though he had been summoned as a Baron and sate in several Parliaments as such But of this more hereafter For that which now made Parliamentary Barons was the receiving of a Writ of Summons to Parliament Before the 49 H. 3. The Bishops were of the number of those that were majores Barones and had Writs of Summons to Parliament among the rest of the great men before the making of the Law aforesaid and they by this new Constitution became Barons for them and their Successors not by Tenure any longer no more than the great Lay Barons but by virtue of the Writ of Summons and by the afore remember'd Constitution and Law made some time about the 49 H. 3. And though the Lands of the Bishops in the time of the Conquerour which were put under that Tenure be alienated or exchanged as they might have been I am sure if they are not before the Statute of Queen Elizabeth put a restraint upon them yet the Succession of the Bishops to their Baronies remains It is a question I know whether a Bishop can demand his Writ to Parliament before the restitution of the Temporalities upon his Consecration there are valuable Opinions on both sides but if the restitution of the Temporalities must be first made it is I conceive upon no other reason than that he is not completely Bishop before that is done no more than a Rector is a complete Rector after Institution before Induction be made though he ought I conceive to have his Writ upon Consecration because upon vacancy of the See the Guardian of the Spiritualities used anciently to have a Writ of Summons to Parliaments as Diocesans themselves And now the Baronage Secular is affixed to Families and the Spiritual Baronage to the Office and Succession And now Birth designs the Temporal Baron and Consecration of the Bishop designs the Spiritual Baron nay single Election without Confirmation or Consecration If elected onely they were summoned to Parliament by the addition of Electi if confirmed and not consecrated then they are in the Writ of Summons styled Electi Confirmati And Mr. Selden further tells us that there never was any that had the Title of a Bishop in England and of the Kings Creation since the Normans but was a Baron of Parliament and though the Regular Barons and such of them who had Writs were discharged upon their Prayer and omitted to be
but thence he offers a Reason which must needs be a Mistake too why Bishops shall not be tryed by Peers in Capital Crimes because these are personal and his being a Baron is Ratione tenurae and not of personal Nobility But this he wrote when he was young in his first Edition of Titles of Honour which was in the time of King James But can there be a harsher and more incongruous thing said than that there is any other Nobility than what is personal Can Land be noble This that I have said is to prove That the Spiritual Lords are of the Baronage of England such as it is now constituted and they do not cannot remain in any Reason or Understanding Feudal Barons after the Ratio Baronagii is changed and if they could remain Barons Ratione tenurae at this day yet they ought to have all Preheminencies and Priviledges of Barons But true it is that they are another sort of Nobility different from that of the secular Lords though equal in all the powers of Baronage and besides have precedency in Honour and therefore make a distinct State from them and one of the three Estates or Ordines Regni Besides that by the way we have destroyed the Force of the Arguments used by the Folio against the Jus Paritatis of Bishops and their Competency to try a Lay Peer which we shall speak to more by and by CHAP. XVII IN the King and in these three Estates is placed the Peoples Security and the Care of the whole Community from every of them they have distinct just and reasonable Expectations though the third State of the House of Commons hath carried away and almost ingrossed the name of the Peoples Representatives though they are only the Peoples Representatives to act for them in matters wherein the People are left at perfect Liberty and concerning which there is no Order taken in the Constitution of the Government This is truly Our Government a King and Three Estates the Lords Spiritual the Lords Temporal and the Commons by their Delegates and Representatives for the purpose only to treat about matters in which the People have Power to deliberate and are and ought to be redress'd This is the Forme of all the Modern and Gothick Governments planted in Christian Europe Guntherus expresseth three Estates thus Praelati Proceres missisque Potentibus Vrbes The great men of Estates Proceres were sufficient to take care of their Interests and Dependents which made the Body of the County But then there were Cities or great Towns in which were great Bodies of Freemen men of Wealth and Trade that were little concerned in Lands or Tenures which we call Liberi Burgi which our Neighbors call Hans Towns And our Kings seem to have by Prerogative a continuing Power to declare Towns when they arrive to be great peopled and rich Free Boroughs and thereupon they acquire a Right to send Delegates to Parliament And this appears for that many Boroughs that send Burgesses of to Parliament have no other Foundation Right but the King's Charter in which he grants Sit A. de Caetero liber Burgus I have seen some of these Charters as ancient as King John These Charters could have had no such Operation but by vertue of some Ancient Establishment in the Government We have no History of its Commencement King William I. that he might have the assistance of all the States in Parliament put the Boroughs under Tenure by Baronage How many of the Burgage Tenures were of that sort we know not but it is probable all that at that time sent Burgesses to the Parliamentary Conventions by what name soever they were then called the Burgesses of the Cinque-ports are still called Barons And we know that the Borough of St. Albans was put under that Tenure and in that Right challenged them to Burgesses to Parliament as Dr. Brady acknowledgeth But the reason why we have no remembrance of the Tenures of Boroughs to send Burgesses to Parliament is that which we have here proved viz. the ancient reason of Baronage viz. by Tenure did cease about the time of H. 3. And conformably the King might require Boroughs to send Members to Parliament without mentioning in his Writs the duty of their Tenure and by declaring them free Boroughs give them that Priviledge though not oblig'd thereto by any Tenure created upon them So that it is evident that before H. 3. our great Councils or Parliaments consisted of three Estates though they all pass'd under the general Stile of Baronagium Angliae which I thought fit to demonstrate that our Parliaments or great Council of the Realm always consisted of three States Corol. From this that the King's Prerogative being so viz. to have power to declare Free Boroughs which he useth by his Letters Patents The Rights of chosing their Burgesses to Parliament belongs to all of the Community and cannot be restrain'd to fewer Electors by their Charters For Jura ordinaria non recipiunt modum The Remainder at least of this Form of Government continued in all the Countries wherein the German Colonies made their Conquests and planted themselves as will appear to any body that will consult the Republicks and those plentiful Quotations that hath been made by a Learned Author in his Book published since this was written I cannot but wonder since this our Constitution hath been oftenmost authentickly declared and every one knows that the Government is materially so as we have said and it is agreed by all that the Government consists of three States that yet we know not where to find ' em There is much Art used to give Countenance to or rather to form an Opinion that the King is one of the three States It is now almost come to be an Opinion and insomuch as it is an Opinion it is an Error This Error such as it is is endeavored to be improved to the Destruction of the Government It is nurs'd up carefully and is to gain Reputation and Credit with the People by the Authority of great Names and when it is grown popular it is designed to take the least next Advantage against the Spiritual Lords to dismiss them from their Bench as no necessary or essential part of the Government There was it 's true an ill-pen'd and inconsiderate Address made by the House of Commons only to the the King in 2 Hen. 4. to desire him to make Peace between the Lords and therein they say that the three States of Parliament are the King the Lords Spiritual and Temporal and the Commons But this is the first time that an Address of a House of Commons was so nicely considered And that the Form and Letter of it should be the measure of Law and of the Government There was also a phantastick Letter written by Stephen Gardiner printed it seems in the Book of Martyrs wherein that Bishop talks of three States in which he must needs reckon the King for one For he could not leave
form'd His great Knowledge in Records and that he is known not to be partial for the Bishops make him of great Authority pages 10 11 12 13 14 17 329 384 325 281 392 567 607 710 712 713 714. And farther in the Time of Queen Elizabeth in an Act of Parliament in the first Year of her Reign made for the Recognition of Her Queen of England which was an Act of State and of the whole Community and therefore most requisite it was that that Parliament should give themselves their right Stile It is said We your said the Lords Spiritual Temporal and Commons in Parliament assembled was said before to which this doth relate most loving Subjects representing the three States of your Realm of England The Nature of the Government came directly at their Times under Consideration of the Parliament which is an Assembly that cannot be mistaken in the Constitution of the Kingdom in any Question of such a Nature when they will deliberate and consider This mighty Affair required them to consider who they were and what was their Constitution Now if at any time they are to use that Stile that denotes their Power and declares the Government The Stile of the three Estates of the Realm it seems is so sacred and great and not for ordinary use but that it is used upon such occasions as the Recognition of the Sovereign Princes and in declaring Kings This Stile is most certain declarative of the true Constitution and the great Stile and Title of the Lords Spiritual Lords Temporal and Commons of England A Misnomer now would be as great a Solecism as to see the Nobles and Prelates without their Robes and proper Cognizances at the Solemnities of a Coronation By the due comparing the Statutes aforementiond wherein the Lords Spiritual and Temporal and Commons are called the States and also the Representatives of all the Estates of the Kingdom We may be enlightened into a great Mistery of State for that the Lords Spiritual and the Lords Temporal and Commons are called the three States and also the Representatives of the States give us to understand that every one of them is entrusted for the other and with the Conservancy of the whole Community and are all in their proper Ministries designed to the Common Good and each of them have Dependencies and Expectancies from the other in the due Discharge of their proper and distinct Offices And that the Lords Spiritual and the Lords Temporal are Representatives and Trustees for the Peoples Good and the Common-weal as well as their own In like manner as every Parliament man for a particular Borough is a Representative of all the Commons of England To which we will adjoyn another great Authority and that is of Sir Edward Coke 4 Inst fol. 2. who tells us that the King and three Estates viz. Lords Spiritual and Lords Temporal and Commons are the great Corporation and Body Politick of this Nation This was the Opinion of his Old Age when he was most improved in Knowledge and when he did not flatter the Prerogative Besides to clear this point we may observe that the Stile of Acts of Parliament that hath mostly obtained is this viz Be it enacted c. and by and with the Advice and Consent of the Lords Spiritual and Lords Temporal and Commons This distinct mention of the Lords Spiritual and Temporal is Cognizance of their being distinct States For observe there is no particular mention of Knights Citizens and Burgesses in Acts of Parliament because they are all of the Commonalty which is but one State They are all involved under the general Name of Commons And so would certainly the Lords both Spiritual and Temporal have been in the general Name of Lords if they had not been distinct States and so accounted The Stile of Acts of Parliament would have been by the Advice and Assent of the Lords and Commons assembled in Parliament And the ancient Stile of Parliament before the House of Commons was divided and constituted apart from the Lords House was Clerus Populus Clerus Magnates as may be seen by Eadmerus and Matth. Paris and the Writers of those Times So that the Clerus or Bishops were always a distinct State in Parliament For the letting in Light upon all that hath been said in this matter and for farther clearing it and to reconcile the Differences in the Stiles of the Parliament and that they may unite in their Evidence and not seem to thwart one another It must be remembred that that which is most express and particular is most scientifical and more exactly instructive most distinct and true and intends to inform us exactly in the very Nature of the thing and therefore cannot be derogated from nor prejudiced by what is more general or less distinct It is hence therefore evident that the Lords Spiritual and Temporal are taken for distinct States as they are For they have their distinct Interests and for several ends and purposes became parts in the Government They have their several Ministries and Advantages to the Government apart and come into that House by several ways of Designation and Appointment The Prelates care besides that which is common between them and the Temporal Lords is that of Religion and the Affairs of the Church and the whole Order Ecclesiastical by which the People are to be ministred to in their highest Concernments which are Reasons very sufficient to reckon and account them a distinct State And now we have asserted to the Prelates a Jus Paritatis in the House of Lords for that they are complete Barons as we have likewise proved them a distinct State The Baronage of England is the House of Lords Additions of Title give Precedency but no Superiority or addition of Power The Baronage is one Order and Rank and the highest in the Census of the Government the manner of the Promotion the Ends and Interests of the Government in the advancement of the Bishops though several from those that advanced the Temporal Lords to their State and Honour yet to the same degree they are promoted they are both Members of the same great Council of the same great Judicature and are therefore by their long continuance most duely styled Pares Regni And moreover the Bishops are considered as to their Order and Office Ecclesiastical and another care incumbent upon them besides that of the Baronage and the Orders that belong to the consideration of Heralds do signifie that their Office of a Bishop doth not lessen the Dignity of their Peerage What is it then that makes this present Question The Bishops have the reason and nature of the Government of their side they have used such a power when they have pleased it was never denied to them and their right hath had the most solemn Recognition that can be made The Canon could not abridge and restrain their right and their true Character qualifies them not onely to the degree of an
afterwards sensible of the Injustice and Irregularity of their Proceedings in judging and condemning Commoners and for the avoiding of the like for time to come an Act of Parliament was made which followeth viz. El est assensu accord per nostre Seigniour le Roy touts les gents en plein Parlement per tant que les dits Peres come Judges du Parlement pristerint en le presence nostre Seigniour le Roy a faire a render les dits judgments passant du Roy sur ascun de ceux que n'estoient pas leur Peres ce que encheson de murdre de Seignior Lige destruction de celuy que fu sipres de Sank Royal fits du Roy que per les dits Peres que ore sont ou les Peres que serront en temps aveniz ne soient mes tenus ne charge a rendre judgments sur auter que sur lour peres ne ace fair mes eiont les peres de la terre poer eins de ceo pur tout Jours ore venu soient discharges quietes qui les avant dits judgments ore rendus ne soient ensample nen sequence en temps avenir per quoi les dits peres puissent estre charges desore judges autres que lour peres contre la ley de la terre si autiel case deveigne que Dieu defend Rot. Parl. 4 E. 3. 11. 6. This the Author of the grand Question concerning the Judicature of the House of Peers would have but an Order of the House and no Act of Parliament because it served his purpose to have it so but for no other reason which he offers in that Book but that it was an Act of Parliament will appear by a Record which my worthy Friend Mr. Petyt a most Industrious and Sagacious Enquirer into the Records of Elder Times hath furnished to me which is a Writ directed to the Barons of the Exchequer wherein the afore-recited Record is mentioned and called an Act of Parliament viz. Rex Thes Baronibus suis de scaccariis salutem mittimus nobis sub pede sigilli nostri quaedam Judicia in Parliamento nostro apud Westm nuper tent ' per Comites Barones alios Pares Regni super Rogero de Mortuo Mari quosdam alios reddita necnon quondam Concordiam per nos Pares praedict ' necnon Communitatem Regni nostri in eodem Parl. to fact ' super premissis mandamas quod Judicia Concordiam praedict ' in Scaccario nostro praedict ' coram vobis legi publicari ibid. seriatim in Rotulari de caetero ibid. observari Fac ' Teste meipso apud Windsor 15. die Februarii Anno Regni nostri quinti adhuc Brevia directa Baronibus de termino Sancti Hilar. anno 5 E. 3. R. 33. penes Rememor Domini Regis in Scaccario To compleat our Argument the Concordia appears now an Act of Parliament to the purpose that the Lords should not give Judgment upon others than their Peers yet we find the Bishops afterwards judged in Parliament and that in times near the making of this Act when we may be allowed to presume they knew this Law and besides the practice hath been conformable to the Law since as our Adversary confesseth and particularly to mention no more the Bishop of Norwich in the 7 R. 2. And Thomas Arundel Arch-bishop of Canterbury 21 R. 2. both for Treason were tryed in Parliament by Peers which Cases are before mentioned to another purpose There was likewise an Act of Parliament made 13 E. 3. n. 7. that the Nobles of the Land should not be put to answer but in open Parliament by their Peers but two years after that Act was repealed otherwise we should not have since heard of Tryals of Bishops by common Juries in Capital Causes And when the Lay-peers can again procure and provide for themselves such a Law they will not I hope envy the Bishops if they find them therein included CHAP. XIX BUt after all that hath been said it will be yet necessary to advertise the Reader for informing and settling a true Judgment of the Right of the Cause that in Questions of this Nature we can only arrive to a moral Certainty which is made by incomparably the greatest probability That we cannot be answered but by producing something at least equally probable to all the several parts of our Discourse that are to the question if by any Objection they should render any one part of our Discourse doubtful they would do nothing except they can do so to all the rest which can be done only by offering something more probable For when many probabilities are concurring to prove the same thing they do not singly stand upon their own Credit but they are all assisted by their Conjunction and give Aids mutually to support every one single probability This is but necessary to be said for that I see this Question will be kept up and defended with Obstinacy Passion Interest and unreasonable Contention And farther that it is very undecent that a question of this Greatness concerning a matter grave and important should be endlesly vexed with trifling Objections of the Nequam ingeniosi To prevent therefore the Caprice Captions Cavillations trifling Criticisms forcing of a Grammatical Sence of Words against their true and easie meaning most agreable to the subject matter to the occasion of speaking of them and their probable intendment and to the understanding of the Times when they were spoken And that we may be no longer or more troubled with their Opposings to that which is fairly probable an imagination of something barely possible and which otherwise doth appear notoriously false That Objections neither from the loose Stile especially of partial Historians nor from Records of Matters dark and obscure which leave us in doubt of their true meaning and therefore can be no ground for Argument nor from the various sence of words which they make to stand for this or that as it serves their turn At which rate nothing will be certain because few words have one single determinate Sence may any longer continue the Subterfuge of a desperate Cause and matter of endless Dispute I appeal to the World whether such like Objections deserve an Answer for to some of these Topicks whatever shall be produced by our Adversaries will be reduced And whether they are not rude and imperious to the Dignity of the Right in question to draw it to a Tryal by such mean and incompetent ways and unjust measures as they are otherwise in the Management of this Question to the persons of those that are concerned in it It is with passion to be resented that so noble a Question should be tryed by such means and incompetent ways of Probation and by such unnatural measures which can be endured by none but such who have no measures of Right but an agreableness to their own Projects and who are upon the search
the Lords and sate in one House they could not discharge that Office of a Representative so well as since they are divided from them and make a distinct House They could not well use that Freedom of Speech and Debate under the Observation of the great Lords upon whom the Principal Gentlemen had great Dependencies Their Consent was often very improperly such for he only truly and naturally consents who hath entire Freedom to dissent Si vis scire an velim effice ut possim nolle In the granting Aids for the Support of the Government and Defence of the Kingdom a Matter of the greatest Importance the Clergy Nobility and Commons stood divided and could not as the Ancient Constitution was by one Act of State be regularly and proportionably taxed according to the Exigency of the Affairs and their respective Abilities but those three Orders taxed themselves in such measures as they pleased which made the Kingdom Geryon-like a Monster of three Bodies Their several Concessions by this means not likely to be always equal and in the whole not competent to the instant necessity The Bishops Abbots and other Ecclesiastical persons of the Saxons time held their Lands free from all Secular Services besides Trinoda Necessitas viz. Expedition i. e. Supply for War pontium arcium extructio But King Ethelbald did grant that the Ecclesiasticks should be freed from all publick Charges except for the Building and Repairing of Castles and Bridges Ingulphus pag. 853. The like Immunity was allowed to the Clergy of the Empire by Honorius and Theodosius Lib. 4. Cod. Just de priv Dom. Aug. By the Great Charter their Priviledges were confirmed And for this reason the Clergy have taken themselves not of Right chargeable to Aids granted to the King by Parliament This Exemption hath been envied to them and made matter of Reproach though unduely in after Ages But notwithstanding this Exemption they have aided the Crown with Supplies frequently yet in such manner as asserted and saved their ancient Priviledge of being exempt that is they would not suffer themselves to be involved in a general Law but of their own Freedom and Will gave to the King which Concessions were notwithstanding not legal unless confirmed by Parliament to whom belonged always the power of judging of the Freedom and Ends of giving Aids and Benevolences and the necessity that required them But in the last Ages they have for their Commendation and Honor waved their pretences of Priviledge and Exemption and for the sake of Common Justice and the Publick Weal for avoiding being thought less in their Duty to the Publick than their Order required And for the better ascertaining and more equally adjusting the Parliamentary Aids they have submitted to be taxed by Acts of Parliament The Commons in Parliament we find as late as Henry 7. taxing only the Commons and that by Indenture between them and the King This Form of Grant is utterly exclusive of the Lords Power to charge the quantum times of Payment or ways of Levying of the Aids granted wherein they subject all Lands to the Levies thereof but the Lands of the Lords in Parliament or Land amortis'd to the Church Such an Indenture was made in Parliament held at Westminster 10 H. 7. and is pleaded at large in Rastals Entr. fol. 135. But of late our Government hath cleared it self from that grand inconveniency The Commons in Parliament and those whom they represent being far the greatest Proprietors they reasonably challenge it their Right to propound all Aids and appointing the Levies and Methods of raising them which because it must be agreed that the Commons in no congruity can tax the Lords authoritatively or impose upon them must have civilem intellectum that is the Commons in a Bill of Aids do propound that they will agree on the behalf of the Commonalty that they shall be taxed as the Bill propounds if the Lords for their part will agree the same CHAP. XXII NEither was our ancient Government without great faults and inconveniences in the conduct of Religion the principal care of all Governments on the one side by confounding Administrations which should have been kept distinct which was the fault of our Government in the Saxons time and by utterly disjoyning and severing the Church and State and not tying the Ecclesiasticks to a just dependency upon the State which was the Evil of after times that is to say the Ecclesiasticks were left to themselves to convene Councils and to make Canons without any dependence upon or relation to Parliaments The Constitution was such in the Saxons time that the Synods or Councils which govern'd in Religious matters were the same with their great Council or Parliament By these means all the Rules and Orders that were made in the matters of Religion were not Canons which are of the nature of Councils but Laws and obliged those that contravened them to temporal punishment The Church was thereby turned into a Dynasty and Religion was against its nature promoted by force which can onely truly obtain by persuasion And wheresoever this is in practice and use the Clergy to the great scandal of their Office will be entituled to all the Severities that shall be inflicted upon Dissenters Heretofore the Councils of the Church and the Authority of the State were unduly confounded After that we had Legatine Councils and Provincials convened by the Archbishops as they pleased not under the observation and controll of the Civil Power by which many inconveniences were occasioned many embroilments of the people happened the Authority of the Prince lessened and Civil Rights encroached upon the validity of several good Laws made in Parliament disputed clamoured against and sentenced as unlawful for want of a due subservience and dependence of the Ecclesiastical Conventions on Parliaments We had Imperium in Imperio or at least a Kingdom divided against it self This fault in our Government was help'd by Edward the Third our English Justinian he in the several Writs of Summons of the Bishops to Parliament made it a settled Rule that the clause of Praemunientes should be inserted requiring them therein to warn respectively Priorem Capitulum Ecclesiae vestrae C. ac Archidiaconos totúmque Clerum vestrae Diocesis quòd iidem Prior which if a Cathedral is the same as a Dean Archidiaconi totúsque Clerus vestrae Diocesis quòd iidem Prior Archidiaconi in propriis personis suis dictum Capitulum per unum idámque Clerus per duos Procuratores idoneos plenam ac sufficientem potestatem ab ipsis Capitulo Clero habentes praedictis die loco personaliter intersint ad consentiendum his quae tunc ibidem de communi concilio ipsius Regni nostri Divinâ favente Clementiâ contigerit ordinari And accordingly the several Bishops in obedience to such like Writs of Summons to Parliament to them directed summoned or warned their Deans or Priors Archdeacons and the Clergy by their Proxies
which have since made the Convocations or the Ecclesiastical Council of the Kingdom and are to meet at every Session of Parliament but to debate nothing but what is propounded and to publish nothing for Canons without the Royal Assent So that they are to act nothing but under the observation of Parliament This Convocation or Ecclesiastical Council other allowable Synods we have none ought not to convene but when a Parliament is sitting and continue no longer than the Parliament We ought to observe herein and applaud the excellent wisdom of our Government that in the very constituion of it hath provided for the peace of our Church by silencing Controversies which can never be determined with any effect such a wise expedient and course as the best instructed Christian Emperours did take by their Edicts prohibiting publick Disputations about subtil and nice Questions as Constantine Martianus Leo Anthemius Andronicus Heraclius to mention no more None but mad men and extravagantly presumptuous or utterly ignorant of Church History will ever hereafter go about by Acts of Councils to end Controversies but rather to shame the Dogmatizers out of their contentious zeal by shewing how little the ends and designs of Christianity are concerned one way or other in such Questions in which those that are most learned know least and a little learned ignorance would discharge most of them from any longer troubling the world And farther we must observe to the Honor of our Nation that it is so religiously wise as to commit the Care of conducting Devotions ordering the Decency of Publick Worship and censuring the Manners of Clerks to the Bishops and the Principal Clergy whereto their Religion Wisdom Devotion and Moderation bespeak them the fittest Persons No less remarkable is the Wisdom of our Government that it doth not make that which is properly the matter of Canons the Subject of their Legislation and thereby subject us to Temporal Punishments where the Admonitions of the Church and her Censures are more proportioned Remedies to the disobedient and froward Laws oblige us to punishments govern us by Fear and Awe oblige with Reason or without Reason because they are Laws They admit of no Ecclesiastical Relaxation or Dispensation and bind when the reason ceaseth In whatsoever thing relative to Religon a Law is made the matter is taken out of the Hands of the Church-men and no longer under their Government whose Government is a Ministry not Empire and Dominion They can institute nothing but what they may reasonably persuade Nihil tam voluntarium quam Religio Lact. We can have no more Religion or Truth than we can persuade Religion and Truth are to be promoted by moving the Will The Church rules by persuasion and her Canons oblige only for their Reason Religion for the sake of our own Edification and the Edification of others the Peace of the Church and Reverence of our Pastors and Teachers Canons in their own Nature are Temporary for the present necessity and convenience variable and mutable as the Edification of the Church shall require and the prudence of the Guides of the Church shall determine and therefore what is properly the Matter of Canons ought not to pass under Laws which are rigid and inflexible peremptory punitive and ungovernable And this magnifies the prudence and Christian Temper of our English Prelates CHAP. XXIII LAstly I observe what a dangerous Opinion our Judges sometimes had in reference to the Baronage of England viz. that it was in the Power of the King or in any Nobleman once summoned by Writ to Parliament as a Baron at the pleasure of the King to relinquish his place and determine the Nobility of his Family Which Opinion not being corrected would have made that State ambulatory and moveable upon which the whole Frame of the Government depends The Baronage of England is the Stabiliment of our Government and may be soon made too weak to support the other greater parts of the Building that rest upon it and are supported by it It is this that moderates between the two contending Interests of Prerogative and Liberty and prevents those violent Concussions which would otherwise unavoidably happen geminum gracilis Mare separat Isthmus Nec patitur conferre fretum si terra recedat Ionium Aegaeo frangat Mare Of what Importance therefore is it that we should be a Kingdom that cannot be shaken as much as Humane Wisdom can provide and frail Materials will admit That our Baronage should not hold their places precariously at the King's Pleasure and be deposed at his Will And yet our Judges after that Honor was fixed in the Families of those whom the King should appoint by Writ to hold that Honor and Place in the Commonwealth remembring that Baronage was at first a Service imposed ratione tenurae by Will the Conqueror Our Judges I say more able to judge of Private Rights than in Questions of State and Government being under a prejudice from the Consideration of the Original of our Baronies did allow the Plea of Thomas de Furnival who had been called to several Parliaments by Writ that he was no Baron for that he held not his Land per Baroniam vel partem Baroniae and therefore adjudged him no Baron Communia de Term. Sancti Hillarii Anno 19 E. 2. Rot. penes Remem Dom. Thes in Scaccario pro Thoma de Furnival Seniore exonerando But of this Cause they were not properly Judges the Lords themselves are the only Judges of the right Constitution of that House and they have anciently challenged a Writ of Summons de jure debito Justitiae for themselves and Descendents where they have been once summoned by Writ and answered that Writ and taken their place accordingly And the whole House doth constantly refuse to act until the Lord that complains of an Omission hath a Writ of Summons sent him What Apprehensions was had of this Honor by Thomas de Furnival and others in his time I know not But it might have been then and since it is well understood that that place which they sustain in the Government is of the highest Trust and the Benefits which redound therefrom to the Commonweal the greatest For they make the Government as well gentle and good as firm and stable These Noble Lords Marchers are placed between two great Contending Powers to preserve the due Boundaries and respective Limits and oblige them to Right and Reason by their Courage and Wisdom And for their Encouragement and Reward deserve the highest Honors and that they should be as they are immortal in their Families And accordingly it was resolved lately in the Case of the Honor of Purbeck in the Lords House that no Fine or Surrender of the Honor of a Baron can extinguish it But that notwithstanding it shall continue to his Heirs and Descendents And that upon the clearest and most important Reason for that the Constitution of the Government ought not as in its own Nature it cannot
concesserunt in sententiam Excommunicationis generaliter latam apud Westm decimo tertio die Maii Anno Regni Regis praedicti 37 in hac forma viz. Quòd vinculo praefatae sententiae ligentur omnes venientes contra Libertates contentas in Chartis communium Libertatum Angliae de Foresta omnes qui Libertates Ecclesiae Angliae temporibus Domini Regis praedecessorum suorum Regni Angliae obtentas usitatas scienter malitiosè violaverint aut infringere praesumpserint And the Record concludes In hujus rei memoriam in posterum veritatis testimonium tam Dominus Rex quà m praedicti Comites ad instantiam aliorum populi praesentium which at that time was the style of a Parliament and the manner of passing such Acts scripto sigilla sua apposuerunt Rot. Pat. 37 H. 3. M. 12. dorso And whereas it was provided by the Confirmat Chart. c. 4.25 E. 1. and by the Statute De Tallagio non concedendo c. 4.34 E. 1. That Excommunication should twice a year be denounced against the Infringers of Magna Charta At a Synod held for the Province of Canterbury in that Kings time John Peckam Archbishop of Canterbury enjoyned the like Denunciations near four times every year Constit Provinc tit De Sententia Excom And in the Province of York it obtained three times in a year Manuale juxta usum Ecclesiae Eboracensis By which the exemplary zele of the Bishops in those times against Oppression and the violation of the common Rights and the attempts of absolute and unlimited power appears for that they prevented the Temporal Baronage and outdid the Parliament it self in defending and guarding the Government of Laws By the way we cannot but take notice of Mr. Selden his mistake in his book De Synedriis which he fell into by inserving to his beloved Erastian Hypothesis viz. That that Excommunication before mentioned in 37 H. 3. was enacted by Parliament whereas it was onely confirmed but pronounced by the Bishops though with the seeming good liking of that King so that the Power of the Keys was not usurp'd but the exercise thereof approved by Parliament according to what hath been usual as Grotius observes Vsum Clavium Divino Juri congruum poenarum injunctionem Canonibus Legibus consentaneum summae potestates solent approbare atque hoc est Imperiale Anathema Quòd non una Justiniani lege comprehensum est Which together with what hath been said by us here will serve for an Answer to what Mr. Selden hath aggested in his book De Synedriis for wresting the Keys out of the hands of the Bishops They pretend to a Jus Divinum only for that which merely concerns their Spiritual Office and I cannot for my part suspect them of holding any Opinion of a Jus divinum in Civil Offices which are of a Humane Original because I can imagine no reason for such an Opinion though I know it is by some imputed to them By a Thomas of Becket a Sibthorp and Manwaring and a few less-considering Clergy-men in an Age we are not to conclude the Judgment of the Body of our Learned Clergy They assuredly know as all men in their Wits do believe that the Government is de jure such as it is and can be no other nor rightfully admit any Alteration That God never made any Commonwealth but one by his directive Will and that only for one Nation for in these things he hath left men ordinarily in the Hands of their own Councils and to their own Prudence in which he had no regard to the absolute rightful Sovereignty of Adam's right Heir the wildest certainly of all the Paradoxes that this giddy phantastick Age hath produced The Kentish Knight should have kept his Dream to himself until he had found him out and then have brought him and his Book called Patriarcha together to the King Then I doubt not but his Majesty would have provided him his due Reward But his Book and the Publishers thereof deserve his Majesty's utmost Displeasute For we are in fear that the Government is about to be changed when Books are licensed to prove any thing Lawful in that kind And besides it makes a Charge upon our Divines that they have a good liking to the Design for that they who best understand by their Profession the jura divina have not answered it But to speak the Truth the Book is not to be answered For it is but a fine Essay how near Non-sence may be made to look like Sence and it is truly worth no man 's Undertaking But whatsoever sinister thoughts some ill affected Men to the Bishops may conceive of them we expect and with reason too that they will with equal Courage to that recorded of their Predecessors stand up for the Preservation of the Government in its true and rightful Constitution And the rather for that the true Religion their Principal Care and their Temporal Rights and Dignities will inevitably perish in the Change Nay perhaps in consequence of the very Attempt of a Change except they strenuously for their parts oppose it However their Order will certainly by their Silence and Indifferency be rendred despicable They will lose all opinion with the People of their Sincerity perform their Functions with no advantage and lose that share in the Honors and Affections of the People that will establish them bespeak them useful and necessary to the Church and state in their several Capacities in all after times That they answer their Trust and perform that Duty which they owe to the Publick in their several Offices is that we may justly expect And this they will certainly do though they should be censured as they were in K. John's days or in the Language of the Folio Author charged to be clamorous and over-busie Medlers in Matters of State and Government But to return Is it not a course Artifice in the Octavo pag. 96. that he will so willfully mistake the Question'd of the Bishops being one of the three States and representing the Matter as if the Bishops should have a Negative by themselves to stop the passing of any Bill if they are admitted to be a distinct State CHAP. XXVI WHen it is not disputed or brought into Question whether they are divided in their Voting from the Temporal Barons most certainly they never were nor was it ever disputed Though an obstinate Opinion was maintained from the Time of E. 2. in the Case of the Spencers until the Time of E. 5. in the Case of the Earl of Salisbury that the Bishops Presence was necessary in Judgments even in Capital Causes which must be allowed a clear Argument for their Right of Judgment in such Causes For the Spiritual and Temporal Lords though two States make but one House upon the Reasons afore-mentioned according to the general Understanding and Usage of former Ages But upon this Supposition he tells us of several Bills that gave furtherance to