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
AN ARGUMENT FOR THE Bishops Right In Judging in CAPITAL CAUSES IN PARLIAMENT For their RIGHT unalterable to that Place in the GOVERNMENT that they now enjoy With several Observations upon the Change of our English Government since the Conquest To which is added a Postscript being a Letter to a Friend for Vindicating the Clergy and rectifying some mistakes that are mischievous and dangerous to our Government and Religion By THO. HUNT Esquire In Turbas Discordias pessimo cuique plurima vis Pax quies bonis artibus indigent Tacit. Hist l. 4. LONDON Printed for Thomas Fox at the Angel and Star in Westminster-Hall 1682. THE PREFACE THis Argument for the Bishops Right of judging in Capital Causes in Parliament for their being one of the three States of the Realm and that their Right is unalterable by Law was written above two years since and prepared for the Press time enough to be made publick against an expected Session of Parliament in October 1679. But the Parliament being prorogued from that time until January the Author was willing to respite the Publication to advise with his second thoughts and again to review what he had written in a case of this weight and moment and the rather for that he had but a short time allowed him for its composure Since that there has been published by an excellent person a Book in vindication of their Right of judging called The Grand Question sufficient to give satisfaction if the world were just and impartial and disposed to make right Judgment in the Cause It may well be reasonably expected that Christian People should not be only just but favourable to any pretence of a Christian Bishop to any secular trust that does not lessen the dignity of the Office and seems unworthy of his Character which as it exempts him from mean and sordid offices and affairs of an inferior and more private concernment so it commends him to the Government of matters of a more publick and universal influence such as require the most improved wisdom and learning and a noble virtue It seems to me most unreasonable that those that are the great and principal Expounders of the Christian Law which gives Law to all Laws and instructs men to discharge their several Offices both publick and private that those who are the great Guides of our Consciences and by whose Directions and Institutions we form our Judgments in the greatest intricacies and doubts that perplex humane affairs that the Guides of a Religion which is formed all to life and practice for the making Governments equal and private men good and obedient which is little else but an Obligation to Justice and Charity and principally pursues that which is the end design and whole business of Government I say it seems to me most absurd and incongruous that this Order of men at any time ought to be shut out of that Council and Court where Laws are made and Rules given for the Government of a Christian Common-wealth where the most difficult and intricate causes are to be heard and determined and where an unlimited power remains of censuring the Actions of the greatest men and the administration of publick affairs and the safety of the Nation are consulted which cannot be long preserved but by pursuing the dictates of a wise Religion Such is the Christian Religion if any other we should dishonour it by comparing it to the best Paganism became despicable and abandoned soon after its publication Yet Tully in his Oration ad Pontifices magnifies the wisdom of the Romans as Divine in advancing the Pagan Priests to the highest places in their Common-wealth by which the Common-wealth he saith was preserved Cum multa Divinitùs Pontifices à Majoribus nostris inventa atque instituta sunt tum nihil praeclarius quam quod vos eosdem Religionibus Deorum immortalium summae Reipublicae praeesse voluerunt Vt amplissimi clarissimi Cives Rempublicam bene gerendo Religiones sapientèr interpretando Rempublicam conservarent Such an Opinion more duly and with better reason our Ancestors conceived of the advantage that might accrue to the Nation by advancing the Prelates of the Church into the Civil Government Thereupon they have made them necessary to it and framed the Government in a sort to depend upon them and left it scarce able to maintain it self without them in its present constitution The Temporal Barons will soon find themselves unable to maintain their own dignity and to sustain that province that is allotted to them in the Government unassisted with the Interest and authority of the Prelates the Spiritual Barons a mighty Power if they be as they ought to be of venerable esteem with the people If the present Bishops are not all so happy as to possess such an esteem we know what cause to assign for the same viz. the unhappy Schism that hath too long continued in our Church hath for its own Justification after they are almost sham'd out of the scruples which first caused the separation sought occasions against the Persons of the Bishops and rather than they will want faults to complain of the Order it self must be loaded with all the faults of all the Bishops in all Countries and Ages and they adventure now to disparage their persons for the sake of their office But sure it is a folly that can fall upon no people but such who by the evils they feel or fear are vext out of their understanding to suppress any Office that is necessary to any Common-wealth in any form of Government for the faults of the Officers for the time being But too true it is that a form of Government while established may be so utterly misunderstood by the most when it is not or not duly administred that a true and exact description of it and a discourse of the Offices and Functions of the several parts of the Government would be taken by them for some Vtopian Common wealth or no better please them than a description of the strength of an impregnable Fort once the Security of the Nation when invested by the Enemy A Lecture of a learned Physician of the Vsus Partium will not give sight to a blind Eye nor motion to a withered hand and no body is warmed or comforted by a painted fire But God be thanked we are not yet destitute of the benefits of a good Government Another cause I apprehend may much lessen the Bishops in the esteem of the People and make them want that Reputation that is necessary to every Governour in proportion to his Charge is their manner of promotion The Ministers of State whose business it ought to be to understand the true Characters of men that are preferred to that Office are often mistaken however in this Course they seem not to be promoted for their own Merit but at the pleasure of the great Courtiers and at best the Ministers of State can do no more than recommend to
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
and Officials to whom Custom hath given some Powers and Authoririty which cannot be check'd and controul'd by the Bishops themselves they are not to account neither are they answerable for the Lay-Zeal that hath made the Condition of Excommunicants so very afflictive For whatever some men please to think the Laity have out-done the Ecclesiasticks in the Excesses of intemperate Zeal as they are most apt and prone by their Ignorance to Superstition No man can pass under the Admonitions of the Church and be suspended from the Holy Mysteries until he hath made Satisfaction for his disorderly walking or Spiritual Pride in breaking Order but he is presently given up by the Laity to Satan I mean he suffers beyond the first Intention of the Church in her Discipline Severities enacted by the Law of the State which if reversed by that Authority that established them and a civil Process were enacted for the Ecclesiastical Courts in Causes of a Temporal Nature which are appointed by Law to their cognizance I persuade my self we should hear of no more Complaints against them in the Exercise of the Power of the Keys For we observe that they exercise the Power of the Keys with deference to the Secular Magistrates They never presume to excommunicate the Prince least they should thereby lessen his Authority and shock the Government For that all Government is established by the Honor and Reverence of the Governor according to that Saying of Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dissolution of Government doth easily follow the Contempt of the Governor As Kings are not subject to Penal Laws nor to be coerced by Penalties So true it is also what Balsamo hath noted ad 12 Canonem Synod Ancyranae Imperatoriâ unctione penitentiam tolli Neither do they presume in Reverence to the King to excommunicate his Counsellors and Ministers of State and Justice For so it was declared amongst other of the Avitae consuetudines of this Realm by the Assize of Clarendon Nullus qui de Rege teneat in Capite nec aliquis dominicorum ministrorum ejus excommunicetur nisi prius Dominus Rex conveniatur In which our Bishops are agreable to the Ancients Hildebert Cenoman after Bishop of Tours who lived about the eleventh Century says he Apud Serenissimum Regem opus est exhortatione potius quam increpatione Concilio quam praeceptis doctrinâ quam virgâ Ivo Bishop of Chartres in his Apology for communicating Gervasius saith thus Quos culpatorum Regia Potestas aut in gratiam benignitatis receperit aut mensae suae participes fecerit eos etiam Sacerdotum populorum conventus suscipere in Ecclesiastica Communione debebit ut quod principalis pietas recipit nec à Sacerdotibus Dei alienum habeatur Thus while the Bishops are not guilty of mean and unfaithful flatteries they do not participate of the pride of the Bishops of Rome or the irreverence and sawciness of a Presbyterian Consistory against their Princes and Governours Neither do they call up any criminal cause originally to their examination but pronounce the sentence of Excommunication on such onely as first are civilly convict of a crime save that matters of Incontinency are by the Common Law submitted to their Censure for that by the venerable gravity of the Judge and by the more private examination of such offences the modesty of the Nation is best preserved which is a surer defensative against the rifeness of such crimes perhaps than the sharpest punishments If they do excommunicate any man without a just cause or do not absolve the Excommunicate when he hath made his satisfactions the Bishop is compellable by the Authority of the Kings Courts to assoil the man under the pain of having his Temporalities seized into the Kings hands though he is not restored without the Episcopal Absolution For it is fit they should finally judge in their own proper Province and they must not they cannot relax the Laws of Christ nor administer the power of the Keys of binding and losing by any other measures for any power on earth But against this power of the Kings Courts they do not dispute or declare but have recognized it by their submission and they can submit to the penalties without complaining of this civil constitution Nay in the general order they approve it though in a particular case perhaps they do not because they cannot obey Our Bishops do not encroach any Temporal Authority in ordine ad spiritualia that stale pretence by which the Bishop of Rome hath arrived to his exorbitant power and by which the Scotch Presbyters would have acquired the like over Kings and Governours Their Authority always administers to and assists but never thwarts or contradicts the Temporal They have accommodated their power of the Keys to the vindication of our established Government against the attempts of Arbitrary Power to which their Allegeance to the King and the regard of the publick Peace did oblige them For such Attempts are mostly the ruin of those that make them always bring the Government it self into the greatest danger and sometimes prove the ruin both of the Government and the Nation This was required of them as an indispensible duty they being a principal part of the Government and the present Bishops Successours to all their Rights have no reason to decline their example if they have the like cause The Bishops anciently were sturdy opposers of King John when he designed to put this Kingdom into vassallage to the Pope and thereupon he writes to the Pope thus as followeth In conspectu paternitatis vestrae humiliamus ad gratias multiplices prout meliùs scimus possumus exhibendas pro cura sollicitudine quam ad desensionem nostram Regni nostri Angliae paterna vestra benevolentia indesinenter apponit licèt duritia Praelatorum Angliae inobedientia impediant vestrae provesionis effectum Pat. 17 Joannis R. M. 15. as I find it related by Mr. Petit in his book entituled The ancient Right of the Commons of England asserted About the 24 H. 3. Edmund then Archbishop of Canterbury at a Synod held at Westminster the King being present Candelis acceptis projectis ac extinctis Chartam Libertatum violantes vel sinistrè interpretantes excommunicantur Mat. Paris p. 151. About 13 years after viz. in 37 H. 3. Boniface then Archbishop of Canterbury the sentence of Excommunication is again repeated against those Qui Ecclesiasticas Libertates vel antiquas Regni Consuetudines in Chartis communium Libertatum de Foresta concessas quascunque arte vel ingenio violaverunt Fleta l. 2. c. 42. Dors Claus 37 H. 3. membr 9. Additament ad Mat. Paris p. 117. Which Sentence of Excommunication was ratified and confirmed in a Parliament held that year as followeth Noverint universi quòd Dominus Rex Angliae illustris Comes Norfolk Mareschallus Angliae H. Comes Hereford Essex J. Comes de Warewico Petrus à Sabaudia ceterÃque magnates Angliae
the Church of Rome the source whence all our divisions spring To which we owe the first separations that were made in our Chutch which appears by undenyable Records published by Dr. Stillingfleet in his Book called the Unreasonableness of Separation How they have propagated multiplyed exasperated and promoted our divisions to tell you would make a Volume besides no Protestant is now to know it I have only this further to observe that the Church of Rome at first only design'd by the Arts of dividing us and breaking us into several Communions to disgrace the Reformation to make our Spiritual Governors Pastors and Teachers lose their Authority with the People To deprave our Religion with licentious opiniastre and absurd dogmatizing to load our departure from that Church with the mischief of innumerable Schismes and to make us reconcileable to the Tyranny and impostures of that Church from the vain opinions and licentiousness of the Sectaries who have been seduced managed inflamed and made wild by their imposturous Arts and Deceits This I believe was only at first designed by the Priests but now they apparently design by the Dissenters to destroy the Church or by the Church to destroy the Dissenters that they more easily come to rights with her They imagine the Dissenters are very numerous and that the Nation is fallen into two great parts that the Dissenters numbers are vast But God be thanked they neither make our grand Jury men nor the common Halls of the City of London for choosing the Lord Majors or Sheriffs And I challeng any man to give me a List of all the Names of Dissenters that were of the House of Commons in our two last Parliaments I am sure they will not make an Number but they reckon the Numbers of Dissenters by the care they have taken to encrease it They used great art to continue the Separation when His Majesty was restored Since Laws have been made to raise the Animosities of Dissenters but scarce ever executed for repressing them If for any reason of state the Laws here and there and for a spurt have been exacted secret comforts and supports have been given to their Preachers of greatest Authority with them And when they have seem'd to preach with the courage and zeal of confessors to their Auditors they have been assured not only of indemnity but have received rewards How prosperously did the work of separation go on by these Councils of our Achtlophels by these means they concluded it would be heightned that it would admit of no terms of an accommodation How insolent were their Harangues more taking with their deluded Auditors while they apprehended them acted with an invincible zeal of Religion What Animations did their People receive to defy the Church and her Authority when their Preachers despised Fines and Imprisonment to their seeming out of pure zeal against her Order It is well known several of them were in Pension and no men have been better received by the D. than J. J. J. O. E. B. and W. P. c. Ringleaders of the Separation Besides that Popish Priests have been taken and executed for preaching in Field meetings in Scotland They have raised there a sort of Euthusiasts more wild and mischievous than any we had amongst us in the times of licentiousness They have had notwithstanding great Lords that have patronis'd them who were always well received in their applications in their favor at St. James's and several of their Preachers who were not Priests have received exhibitions and pensions for their Encouragement It was necessary that the Fanaticism planted in Scotland should be very loathsome to make that Nation abate any of their zeal for the Protestant Religion or to neglect their fears and apprehensions of Popery or to make the least step towards it Awake you drowsie Sleepers open your Eyes the Sun is risen there is light enough to fill your sight if you would look up and were wiling to see Could any thing be conceiv'd more apt to bring the Church of England into contempt and scorn with those of the separation then to have Laws made in her favor penal Laws which are thought to be of her procurement and not executed Vain and Ineffective anger is always returned with contumely scorn and hatred Cupide conculcatur nimis ante metitum And so it hath succeeded in this case nothing hath been more passable than the basest Scurrility upon the Church the Bishops and the Clergy The Atheist the impious and profane have listed themselves Fanaticks that they might have the greater Liberty of reviling Religion it self with impunity Consider how the Church of England is used which is truly the Bulwark of the Protestant Religion About ten years since they designed to slight her works and demolish her by a general indulgence and toleration And now they intend to destroy her Garrison those that can and will defend her against Popery By one of their Pamphleteers the separation is called an usurpation upon the Government and all the Dissenters as such only Rebels and Traitors to the King The same Gentleman would perswade the World that the ready way to extirpate Popery is by rooting out of Fanaticism whither saith he the Fanaticks bring on the Jesuits plot or the Jesuits the Fanaticks is not a farthing matter But in the mean time that the Papists have a plot on foot needs no proof That any sort of Protestants are engaged in a plot cannot be proved But all honest Protestants of the Church of England think it more righteous to punish the Deceivers and pitty the Deceived and wish them only cut off that make divisions It is one way of curing or rather of extinguishing the disease to Kill the Patient But no Prince did ever yet provide Cut-Throats for his People in epidemical diseases instead of Physitians But if the Papists could arm other Protestants against Dissenters there would be the less work for Papists to do And they will be sure to requite them for this favor with Polyphemus his curtesie For to give the Devil his due they are not themselves so fond of Massacres and destruction of Hereticks as to envy that employment to any other that will undertake it They had rather any other party of Men should do the Drudgery for them Besides what one sort of Protestants shall execute upon another will give them better pretence and more hardiness if they wanted either Pretence or Resolution to destroy such as they call Hereticks to execute the like destruction upon the Church Protestants who certainly differ more from the Papists then the Separatists do from our Church Sure there is good Reason they should be more sharply treated by the Papists than they treated the Dissenters And if they are in such sort us'd they must lay their hands upon their mouths and be silent before their Persecutors and acknowledg the righteous judgment of God in bringing such tribulation upon them from their Enemies wherewith they troubled their own Brethren
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
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
Regni definitum est quod Comes Johannes disseiseretur de omnibus Tenementis suis in Anglia Castella sua obsiderentur This is a Cause of Treason for that Richard the First immediately upon the demise of the Crown was King It can be no objection that this was not a formal Parliament for whether it was or no it seems the Bishops power in that Cause was allowed That it was Commune Concilium Regni and had the Nature of a Parliament And that the Bishops therein had a parity of Authority with the Temporal Lords But soon after his return King Richard held a Parliament at Notingham Hoveden mentions the Bishops that were present by Name In which Parliament our Historian tells us That the King Petiit sibi Judicium fieri de Comite Johanne fratre suo qui contra fidelitatem quam ei juraverat Castella sua occupaverat terras suas transmarinas destruxerat foedus contra eum cum inimico suo Rege Franciae contra eum inierat And the like Justice he required against the Bishop of Coventry for that he had adher'd Regi Franciae Comiti Johanni inimicis suis and it was thereupon adjudged Judicatum saith Hoveden quod Comes Johannes Episcopus Coventrensis peremptoriè citarentur si intra quadraginta dies non venerint nec Juri steterint Judicaverunt Comitem demeruisse regnum Episcopum Coventrensem subjacere judicio Episcoporum in eo quod Episcopus erat Judicio Laicorum in eo quod ipse Vicecomes Regis extiterat You see here the Bishops zeal and Loyalty that they adjoyn'd the censure of the Church which they had power of as Bishops to a Civil punishment which they with the Temporal Barons had Authority to pronounce against One of their own Order who was guilty of a design to engage a Nation in a War by opposing the lawful Successour to the Crown and this being so great a Cause We hear nothing here of any scruple the Canon gave them nor mention of any Priviledge of an Ecclesiastick to be exempt from the Judgment of the secular Court In the same Parliament Giraldus de Canavilla was accus'd of harbouring of Pirats and Praeterea saith Hoveden appellaverunt eum de Laesurâ Regiae Majestatis in eo quod ipse ad vocationem Justitiariorum Regis venire noluit nec juri stare de praedictâ receptatione raptorum neque eos ad Justitiam Regis producere sed respondet se esse hominem Comitis Johannis velle in Curiâ suâ Juri stare Hoveden tells us all that were present at this great Council Hubert Arch-Bishop of Canterbury Galfridus Arch-Bishop of York Hugh Bishop of Durham Hugh Bishop of Lincoln William Bishop of Ely William Bishop of Hereford Henry Bishop of Worcester Henry Bishop of Exeter and John Bishop of Carlisle Earl David Brother of the King of Scots Hamelinus Earl de Warrenna Ranulfus Earl of Chester William Earl of Feriers William Earl of Salisbury and Roger Bigot Let any one judge if it was likely that the Bishops did withdraw in the Case of Earl John or the said Bishop when besides them there were but six Barons present at that Parliament What manner of great Council would this Parliament have been that had consisted but of six Barons of what Authority would such a Parliament have been in the absence of the King and a troubled Estate of the Kingdom CHAP. VII IN the time of Edward the Second in the two Judgments against the Spencers the Right of the Bishops to judge in capital Causes in Parliament was carried so high in opinion that their presence was thought necessary to give Authority and validity to the Judgment of the House of Lords in such Cases and their absence was assigned for Error for Reversal of those Judgments for an Error that appears in the irregularity of the Proceedings is an allowable Cause for vacating the Judgment by the same Court that gave it And so far did that Opinion prevail that the presence of the Lords Spiritual was necessary to give Authority to a Judgment of that House that for this Cause because the Prelates were absent that Judgment was reversed Which opinion did arise upon this mistake that because the Lords Spiritual was one of the two States that made the House of Lords nothing could be done without their concurrence But though they are a distinct State from the Temporal Lords they make but one House and they are both there under one Notion and Reason viz. as they are both Lords Spiritual and Temporal the Baronage of England But let any man tell me that can whether if the Lords Spiritual had not been understood Judges in Parliament in Capital Causes it could have been a question whether their absence could avoid the Judgment in the Case of the Spencers much less that such an opinion should prevail that the Judgment should be as it was for that reason reversed And tho' the Reversal of that Judgment was set aside and the Judgment affirmed in 1 E. 3. Yet the publick Recognition of the Bishops Right in the Reversal remains an undeniable Testimony to their Right of sitting Tho' the Reversal of that Judgment was not warrantable for the reason of the Bishops absence as it could not have been reversed by reason of the absence of as many Temporal Barons if there remained enough besides to make a House to give the Judgment And yet we find the Reversal of the Reversal reversed in 21 R. 2. and the Family of the Spencers restored in the person of the Earl of Glocester So prevalent was the opinion that the Bishops Concurrence was necessary in all capital Judgments in Parliament at that time For this see Sir Robert Cottons Abridgment fol. 373. Yet it is observable that the consequence from the Bishops being a third State and an Essential constituent part of that House to a necessity of their presence in all judicial matters even of Capital Offences and Treason did so stick with that Age for they then in that Age did no more know what three States served for or that they both made but one House than some in our time can tell how to find them For that very Reason in 21 R. 2. the first Petition that the Commons made in that Parliament to the King was for that diverse Judgments were heretofore undone for that the Clergy were not present The Commons prayed the King that the Clergy would appoint some to be their Common Proctor with sufficient Authority thereunto The Prelates therefore being severally examined appointed Sir Thomas de la Piercy to assent The words of which Petition and the procuratory Letters for greater Authority and more satisfaction I have thought fit to transcribe Nos Thomas Cantuar. Robertus Eborac Archiepiscopi ac Praelati Clerus utriusque Provinciae Cantuar. Ebor. jure Ecclesiarum nostrarum Temporalium earundem habentes jus interessendi in singulis Parliamentis Domini nostri Regis
Jus Paritatis pray mark it what then did they in effect depart from nothing They provided only that they might do nothing indecent or rather against their good liking and at the same time consulted likewise the safety of their Estate and Order and preservation of all their Rights But had they no care of the Authority of the Parliament in their absence yes for they very well knew that it was a probable opinion that nothing acted in their absence and during a recess of their whole Order could be rate and valid and therefore they provide propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit vel vult quod processus habiti habendi in praesenti Parliamento super materiis auditis quantum ad nos eorum quemlibet attinet futuris temporibus quomodolibet impugnentur infirmentur seu etiam revocentur Let the Impartial Reader Judge whether this be not a famous recognition of the Bishops Right of sitting what a solemn leave they had to be absent what provisions made that the proceedings in that Parliament should not be avoided and made null by their absence which implies a great probability that that time allowed to the opinion of their being necessary in all proceedings in Parliament Was there ever such a protestation entred on the behalf of the Absentees of Temporal Barons This leave given them to be absent is an allowance of Right to sit The proceedings they liked not and the Canon was pretended Admitting this protestation to be an Act of Parliament It is an Act of Parliament to give the Bishops leave to be absent pro hac vice and to make Laws good that should pass in their absence I appeal to the world whether there can be a more Solemn and Authentick Recognition of their Right than this protestation imports CHAP. VIII IT does appear by the whole tenor of this their protestation that the Canons of the Church which they pretend had not passed into Laws if they had what need of such a warm protestation only for the sake of decency and the honesty of their order to be rid of a troublesome business what means the saving of their right if by Law it had been discharged what means their further protestation that the validity of the proceedings in those Causes in which they withdrew should not be impeach't by their absence if their Right did not remain entire notwithstanding the Canon besides that they do not alledge the Law but the Canons of the Church for their excuse They well knew the nature of Canons the force and obligation of them and also that they were not under any obligation to the Canon Law that it was only a Law in the Popes Temporal principality and had no Controul upon the Laws of this Kingdom For the clearing this question it will not be unnecessary here to speak to the nature of Canons what they effect and how oblige Canons therefore are no more Laws than the authority of the Church is Empire no not in matters that are proper for their Canons But most certainly they can neither make nor annul a Civil Right nor do they pretend to alter or change Governments they exceed their proper bounds when they intermeddle in any matters of this nature But when they do extend themselves beyond their bounds and order and appoint in any matter of a Civil Government they intend only to counsel and direct the man how he shall behave himself in the use of his Right which every man may observe if he please Their Subjects are Populus voluntarius the Ecclesiastical Courts are Courts of audience in matters that belong to their cognisance and the Church's word is He that will hear let him hear The Canons of foreign Councils tho' General tho' we send thither our Delegates and Proxies authorized by publick Instruments and by consent of Parliament as has been sometimes done have not the consideration of Canons except received here and allowed by the same Authority that makes the Canons of our Church Canons here must have the Royal assent at least to make them Canons but with the Kings assent they are void if they alter or meddle with any Civil Right or Constitution If any man is proceeded against in the Ecclesiastical Courts for being contrary in any thing to such a Canon our Courts will grant him a prohibition if Excommunicate thereupon award Writs to assoil him to the Bishop and seise his Temporalties if he do not conform Nothing can alter Civil Rights or Civil Constitutions but Law and such never were any Canons or so reputed except the Decrees of Councils confirmed by the Imperial Rescripts of the Roman Emperors who by their Rescripts made Laws by the Authority of the Lex regia by which the people devolved their Right of Legislation to the Emperors but when such Canons were confirmed by the Emperor they remained but Canons still the Canons were to be exacted by the measures of the Church and by the Church-men the matters of such Canons did not employ the Forum no alteration was made in any Civil Right but the Church had Authority to require observance of them under the Censures of the Church About the 11th Century the Pope meditating the increase of his new Ecclesiastical Empire the Roman Empire being now extinct did design to give Laws to the World and to that purpose in imitation of the Imperial Roman Law Gratian was appointed to compile a body of Laws accomodated to that design out of the General Councils the sayings of the Fathers and some decrees of former Popes which made that part of the Canon Law which they call the Decreta to answer to the Digest which was made up of the Senatus consulta Responsa prudentum and the Edicta Praetorum to which another Book was added of Decretals and Clementines made up of the Popes Decretal Epistles which answered to the Codes and Novels which was made up of the Edicts Epistles and Decrees of the Emperors For by the Constitution of the Senate of Rome called Lex Regia by which they gave the power of making Laws to Augustus it was established that quicquid per Epistolam statuit cognoscens decrevit aut per edictum propalavit lex esto And now there was such a thing as a body of Canon Law The Pope had Power indeed to make these Decreta and Decretalia Laws in the Domains of the Church and the patrimony of St. Peter in which he was a Temporal Prince but it was further endeavoured by him to make them the Laws of the Christian World and thereby to advance his pretended Oecumencial Empire and he did so far prevail and advance in his design that it was thought that Rome had again recovered the Empire of the World and it was said with too much truth of her upon the growth of the Papal power Quicquid non possidet armis Religione tenet But tho' the Pontificial as well as the Justinian
him out of the Government and he had no more Christian Graces than Faith Hope and Charity which he attributes to this Ternary of States of his own making But if he had four of those Graces there had been four States if six of those Graces to have match'd them in number he would have found three States in the House of Commons viz. Knights Citizens and Burgesses and have made six States It seems too King James made a Speech in Parliament wherein he was pleased to use his Logick and liked it seems the Ramistical way of Dichotomies The truth is he had more Logick than a wise King could tell how to bestow For in that Speech he saith The Parliament is composed of a Head and a Body himself and the Parliament This Body is sub-divided into two parts the upper House and the lower House The upper House into two Lords Spiritual and Temporal the lower House into two Knights and Burgesses The Citizens were left out for the sake of his Dithotomy His Method was to proceed by the way of two's and therefore 't was impossible we should here in this Speech of any three whatsoever yet this Speech too is produced against three States distinct from the King Besides they tell us that in one of the late King's Declarations drawn by then a young Gentleman but of great hopes and afterwards a very great Man the King is called one of the three States This Gentleman was very probably misled into that Mistake by a Book called Nomotechnia wherein it is said that the King Lords and Commons are the three States a Book of Institutions for young Students which was never yet allowed for Authority in the Law nor ever had the Honor to be cited in our Courts of Westminster These Mistakes or whatever you will call them with the Authority of the Octavo Author are united together to form an Opinion that the King is but the Bishops are not one of the three States which will be a very dishonorable Error For that it will lead us into a Mistake of our Government and which is much worse for that it hath a tendency to subvert it that is to depress the King and to suppress the Bishops It is an Indign thing and not to be suffer'd that we should lose our Government by Surreption and be made a Babel by dividing and confounding our Language To prevent this mischief we have declared our Government from the very Reason and Nature of the Structure thereof to consist of three States that is three different Orders which make the Great Council of the Kingdom whose End and Business is to administer Council and Auxiliaries to the King who is intrusted with the executive Power of the Government and Laws And besides now we will produce great Authorities to put this Mistake out of Countenance and to prevent its gaining any farther Authority with the People For Errors of this nature in process of time turn into Truth and things prove to be so at last as the Error and Mistake first bespake them and this our Lawyers know well enough with whom 't is a Maxime it belongs only to them and matters within their Province Communis Error facit Jus. And first for this purpose we will mention the Stile that the Parliament used which was convened by the Authority of Richard the Second he being then about to relinquish the Crown to H. 4. This Parliament in transacting so weighty an Office had reason to consider and know who they themselves were They without doubt in all their Proceedings in this High Matter used their true as well as biggest Stile which was that of States Walsingham tells us Sede Regali tunc vacua Procurators Regis Richardi Archiepiscop Eborac Hereford Renunciationem dicti Regis cessionem omnibus statibus Regni tunc adunatis ibi publice declararunt And again Quoniam videbatur cunctis Regni statibus super dictis Articulis singulatim ac etiam communiter interrogatis And again Ordinati sunt Comissarii ex parte statuum Communitatis ejusdem Regni Observe here that the King is none of these States that they are called all the States which signifies more than two that there is mention of States besides Community and therefore it was then understood that there were two States in the Lords House But afterwards he recites us the Form of a most important Instrument which follows In Dei nomine Amen Nos I. Episc Assavensis I. Abbas Glasconiensis Thomas Comes Glocestriae Thomas Dominus de Berkley Tho. de Epingham Tho. Gray Miles Willielmus Thirning Justiciarius per Pares Proceres Regni Angliae Spirituales Temporales ejusdem Regni Communitates omnes status ejusdem Regni Representantes Commissarii ad infra scripta specialiter deputati c. By which it is most clear that the Government was then understood to consist of three States of which the King was none as he cannot be with any Congruity 1 R. 3. Rot. Parl. apud Westm die Veneris 23 Jan. it appears that a Bill was exhibited coram Dom. Rege in Parl. Wherein is contained That several Articles on the behalf and in the name of the three States of the Realm viz. Lords Spiritual Temporal and Commons were delivered to the King And farther that the said three Estates were not assembled in form of Parliaments therefore be it ordained by this present Parliament that the Tenor of the said Articles delivered as aforesaid on the behalf of the said three Estates out of Parliament c. Now by the three Estates assembled in this present Parliament be the same ratified and approved Ac idem Dominus Rex de assensu dictorumtrium statuum Regni Authoritate praedicta omnia singula praemissa in billa praedicta contenta concedit ea pro vero indubio pronunciat decernit ac declarat This was in like manner an Act of Parliament for declaring the Right of the Crown to be in Rich. 3. In the Statute made 2 H. 4. the Word State is used plurally and for more than two of which the King was none to signifie the Parliament as appears cap 15. And so it is also in 4 Hen. 4. cap. 4. in which these words are Sith it is the desire of all the States of the Realm that nothing shall be so demanded of our Sovereign the King He will that all those who make any Demand c. So that hereby it is evident that in the Understanding of that time there were three States besides the King But to spare the Reader the trouble of the mentioning the Records at large that testifie the Parliament to consist of the King and the three Estates viz. Lords Spiritual Lords Temporal and Commons I will refer them that doubt to the Collection made in Mr. Pryn's Index to Sir Robert Cotton's Abridgment under that Title who himself was of this Opinion which nothing but the Evidence of the truth of the thing could have
to Persons or Territories by the Civil Authority Their Convocations are convened by the King 's Writ they debate nothing without his Leave Their Results become Canons and receive Sanction by the Royal Authority and do not pretend to infringe any Temporal or Civil Right or Law And besides their Convocations are always to be held sittting Parliaments and no longer not at any other times And whatever they debate or resolve is under the Observation of Parliament Nequid detrimenti capiat Respublica The Bishops make no Laws about Religion apart by themselves neither have they any Negative against any that are propounded and therefore are not answerable for any that are made or not made They have not the definition of Heresie but the Law hath declared it since the Reformation And the Writ De Heretico comburendo is since abrogated by the Christian Temper of a Parliament principally consisting of such Members that were conformable to the Institutions of the Church of England that is the legal Establishments of this our Christian Commonwealth The Church of England is no more her own present Establishments than the present thoughts of any man is the man himself as the thoughts of a man are more refined and unreprovable as the man grows wiser so do the Laws and Constitutions the Orders and Rules of a Church or Christian Republick alter amend and improve as the Wisdom and Virtue Religion and Devotion of the Government and the principal parts thereof in Church or State increaseth or advanceth Our Bishops have had and that with the greatest reason greater apprehensions of Schism and Separation than of Errors in Opinion which occasioned it as of worse importance to the Christian Faith than the Errors themselves Besides that a man cannot help being mistaken in many things but it is in every mans power to be modest and peaceable and wise to sobriety and hold the unity of the faith in the bond of peace and charity and not to revile and deprave that which hath the publick approbation though he cannot thereto fully assent It is great iniquity and unrighteousness to pretend to Liberty of Conscience as their right and in the mean time not to tolerate the publick appointments and what is authoritatively allowed and approved If Controvertible Opinions are allowed a Warrant for making a Sect and separate Communion and Churches are denominated and distinguished by them and consequently such Opinions are advanced unduly unto the same necessity of belief as Articles of Faith what will become of the Christian Verity where will it be recognized and purely professed how distinguished how understood how ascertained amidst the number of Opinions contended for by the several dogmatizing Sectaries with more zele than the undoubted and uncontrovertible Articles of Faith Nay I will adventure to say further on their behalf that Schismatical Separations would not offend them so little do they affect to be Magisterial but for that if this Disease should grow Epidemical there would be no such thing as a Christian Church and the Christian Religion would perish from the earth without a miracle It is onely designed by our Church that those whose Subscriptions are required should thereby onely signifie their allowance of the Liturgy and Articles as fit to be used and allowable What Plea then can our Separatists have for a Toleration for themselves who by their Separation seem unwilling to tolerate the publick Establishment either from our Governours Civil or Ecclesiastical or from one another in their divided ways To reform or change to these mens pleasures is impossible for that they cannot they positively differing from each other be all pleased in any one possible Establishment Besides that untill we cease to be Schismaticks and to be of separate and divided Communions upon the score of any dislike or but probable exception to what is publickly received or allowed the altering any thing for our satisfaction will be but applying the Cure to the Symptoms a cutting off one head of the Hydra By this way to effect an union is as impossible as it would be to empty the Ocean without stopping the cur-of the Rivers The Bishops are as all men by how much they are better learned are of the greatest Moderation in Opinions and can tell how duely to rate and value them according to the Prejudice or Advantage they do to the Ends of our Religon those several Opinions that have been contended with furious and rending Zeal in the several Ages of the Church to the Scandal of that peaceable Institution They can have a better Opinion of that man who hath unhappily entertained the less probable side of the Questions controverted if he opines with Modesty than they have of him that holds the most probable part thereof with a Sectary-Zeal Seperation from Contempt and Disdain of those of a different persuasion Their Moderation is known unto all men of it their Opposers have had very sensible Experience the several Dissenters cannot disown it but must confess that they have had severally kinder Usage from the Episcopal Men than their several Parties have from one another By their Learning Wisdom and Moderation which is most eminently known and observed in many of them and hath recommended them to the highest Esteem they must be allowed their Enemies being Judges to be the fittest Arbiters of the Controversies and the most likely and probable Procurers of the Peace of Christendome All the Dissenting Parties have reason to look upon them as their Common Sanctuary and Defence against the Outrages of each other But in this they must be pardoned if they being under a Law or Rule of their Superiors made as they think in a matter lawful act accordingly and do not disobey for their sake who think otherwise though in the mean time they pity their Scruples Indeed the Terms of the Nonconforming Ministers have been made hard upon them But that hath been from Reasons of State which the late unhappy Wars occasioned and they were ejected out of their Livings by Statute-Law And on the other side it is true that many men not to fit for that Holy Function have enjoyed Church Benefices but neither this can the Bishops help For they cannot reject a Clerk presented to a Benefice or eject him but as the Law will so sacred is the Right of Patronage and so fixed by the Law are Ministers in their Livings which is not Nice in the manners of Clerks and the Bishops cannot be severer than the Laws So that if some men not of the most unblamable conversations have kept their Livings and some of very unexceptionable Lives have been ejected The unhappy Nonconformists are directed where to make their Complaint But as there is little Cause of complaint on this part of the Episcopal Authority and function viz. Their Superintendency over the Pastors of their Dioceses So we shall observe how they have behaved themselves in the Exercise of the Power of the Keys For what is done therein by their Chancellors
him the Imperial Crown of England For Robert Steward first King of Scotland of that Family lived in concubinate with Elizabeth Mure and by her had three Sons John Robert and Alexander afterwards he Married Eufame Daughter to the Earl of Ross and after was Crowned King of Scotland He had by her Walter Earl of Athol and David Earl of Straherne When Eufame his Wife dyed he Married Elizabeth Mure. After that by one Act of Parliament he made them first Noble that is to say John Earl of Carrick Robert Earl of Menteith and Alexander Earl of Buchquhane And shortly after by another Parliament he limited the Crown in Tail Successively to John Robert and Alexander his Children by Elizabeth Mure in Concubinate and after to the Children of Elizabeth Ross his Legitimate Children who are to this day in their issue by this limitation by authority of an Act of Parliament in Scotland barr'd from the Crown and we hope ever will be by the continuance of the Line of our most Gracious King For note that though a subsequent Marriage by the civil Law which is the Law of Scotland in such cases doth Legitimate the Children born before Marriage of a Concubine yet it is with this exception that they shall not be Legitimated to the prejudice of Children born afterwards in Marriage and before the Marriage of the Concubine Besides the reason of the Civil Law in Legitimating the Children upon a subsequent Marriage is this viz. a presumption that they were begotten affectu maritali which presumption fails where the man proceeds to Marry another woman and abandons or neglects his Concubine But I desire these Gentlemen that are so unwilling to be safe in their Religion which I believe is most dear unto them That if any Law should exceed the declared measures of the Legislative authority though in such Case they may have leave to doubt of the lawfulness of such a Law yet if it be not against any express Law of God they will upon a little consideration determin it lawful if it be necessary to the Common-weal for that nothing can be the concerns of men united in any Polity but may be govern'd and ordered by the Laws of their Legislature for publick good for by the reason of all political societies For further satisfaction of the lawfulness of the bill of exclusion See a Book called The great and weighty Consideration considered there is a submission made of all Rights especially of the Common Rights of that community to the Government of its own Laws But all this and a hundred times as much will not satisfy some Gentlemen of the lawfulness of our Government the extent of the Legislative power of Parliaments since they have entertained a Notion that Monarchy is jure divino unalterable in its descent by any Law of man for that it is subject to none That all Kings are alike absolute that their Will is a Law to all their Subjects That Parliaments the states of the Realm in their Conventions can be no more than the Monarcks Ministers acting under and by his appointment which he may exauctorate and turn out of Office when he pleaseth For there can be say they under the Sun no obliging Authority but that of Kings to whom God hath given a plenitude of power and what is derived from them That this Divine Absoluteness may Govern and exercise Royal power immensely and that it is subject to nor to be abated or restrained by any humane inventions or contrivances of men however necessary and convenient Kings have thought them in former Ages by such methods and such offices and Officers of which number the States of the Realm may be or not be as Kings shall please as they shall by their absolute Will order or appoint Our Parliaments say they are Rebellious and an Usurpation upon the unbounded Power of Kings which belongs to every King as such jure ordinario and by Divine institution That a mixt Monarchy as ours is is an Anarchy and that we are at present without a Government at least such as we ought to have and which God hath appointed and ordained for us That we by adhering to the present Government are Rebels to God Almighty and the Kings unlimited Power and Authority under him which no humane constitution no not the Will and Pleasure of Kings themselves can limit or restrain For that jura ordinaria divina non recipiunt modum That the Legislative Power is solely in the King and that the business of a Parliament if they would think of being only what they ought to be is only to declare on the behalf of themselves and the people that send them for that purpose certainly the obedience that is due from them to such Laws as the K. shall make and that they may be laid aside wholly when he pleaseth And after all this what matter 's it with them what we say our Government is hath been or where the Legislative Authority of the Nation is placed or how used But I desire these Gentlemen to consider how they come to these Notions upon what reason they are grounded How a Government established by God and Nature for all Mankind should remain a secret to all the wise good just and peaceable men of all Ages That Kings should not before this have understood their Authority when no pretences are omitted for encrease of power and enlargement of Empire I desire them to consider that this secret was not discovered to the World before the last Age and was a forerunner of our late unnatural War and is now again revived by the republishing of Sir Robert Filmers Books since the Discovery of the Popish Plot. I wish they would consider that the reasons ought to be as clear and evident as Demonstration that will warrant them to discost from the sense of all Mankind in a matter of such weight and moment That to mistake with confidence and overweening in this matter will be an unpardonable affront to the Common sense of Mankind and the greatest Violation of the Laws of modesty I desire that they would consider and rate the mischiefs that will certainly ensue upon this opinion and whether a probable reason can therefore support it That they would throughly weigh ponder and examine the Reasons of these bold and new Dogmata For their enquiries ought to be in proportion diligent and strict as the matter is of moment and if they are not their error and mistake will be very culpable and the sin of the error aggravated to the measure of the mischief which it produceth and occasioneth Where is the Charter of Kings from God Almighty to be read or found for nothing but the declared Will of God can warrant us to destroy our Government or to give up the Rights and Liberties of our people If they are lawful I am sure it is villany to betray them since all political Societies are framed that all may assist the Common Rights of
continues entire together with Sovereign Power and is not at all abated by it and therefore cannot be the same No Soveraign Power can extort the Children from their Fathers Authority and care This is a duty in Nature before Governments They cannot belong to the Government before they are filii precepti and capable of the Conscience of a Law It is a duty in Parents to Educate their Children and a right they have in consequence to govern them that cannot be taken from them It is the Parents duty to form their consciences They are appoint-by God the great Ministers of his Providence to the Children That they perform this Office he hath tyed them to it by the sweatest constraints and almost violences of Nature by an irresistable love and tyes of Endearment that cannot be broken this declares their Right of Authority over their Children against any interposings of Soveraign Authority to its prejudice let or hindrance Thomas Aquinas positively determines that it is not lawful for Christian Kings to baptize the Children of the Jews against the will of their Parents for that saith he it is against the course of natural justice 4ly There is no footsteps in the Records of the old World to verifie this Hypothesis That such Authority was so much as pretended to be used or exercised by Adam but we find instances against it in the short History before the Flood Cain received no sentence from Adam his Prince and Soveraign Judg but from God himself or rather from his Shecinah or some visible Representation of his presence Thence he obtained some degree of impunity and his life protected No mention here at all of Adam his taking the Tribunal or Cains arraignment or of any pardon or indulgence granted by King Adam Lamech that had Kill'd a man by mischance did not alledge his case at his Father Adams Court and the matter of extenuation of the Man-killing we hear of no pardon of Course to be allowed when the circumstances of fact had been first judicially considered How could a thing of such importance be omitted in the story of the old World tho so short It was of more concernment than to know that Tubal Cain was the first Smith and Jubal the first man that made a Musical instrument to know the original nature and reason of Government Besides we find all the grand Children of Noah becoming Princes of Countries and the Sons and grand sons of Esau alike Dukes and Princes that is at least absolute Fathers of their own Families and ruling over such as were their slaves and dependents And the 12 Sons of Jacob are all called Patriarchs When Nimrod played the Tyrant we find nothing said for his justification upon any Patriarchal right But if we consult the Traditions of the Jews they will inform us of another original of Government and that is this They say that God gave several Precepts to Adam and his Sons and Noah and his Sons and one amongst the rest that they should erect Governments which his Sons could not have performed without Rebellion against their King Father if Adam had been so as Sir Robert Filmer first dreamt Also besides that of making Governments there was a Precept given them of honoring their Parents Selden de jure Naturae secundum Hebraeos fol. 2792. And therefore the Precept of honoring Parents is a distinct duty from that of obedience to Governments By this Precept they had Authority in general to establish Governments amongst themselves in the specification of which they were left to rheir own liberty and discretion and therefore were not obliged to any single form of Government It must be understood that the Precept which required the Sons of Adam and Noah to establish Governments required also every mans Submission to their Orders Laws and Decrees when established Lastly We will consider of the instances he gives of the Exercise of Soveraign Power by Fathers of Families which are as impertinent to his purpose as his Doctrine is groundless and precarious but they are these Abrahams War and Judahs judgment upon Thamar As to the first of Abrahams making War We say we cannot allow that making War doth argue any Soveraign Authority It is sufficient that he who makes it is under none to make a vindicative War Lawful For an injured Person may in the State of Nature vindicate wrongs by an authority derived from God and Nature to a just satisfaction Because there is no competent judicature to appeal to for right and redress But see how unhappy the Gentleman is This very instance of his production is clearly against him for if Soveraign Power had been Patriarchal Abraham had been guilty of Treason in making War without a Commission from Melchizedech the King of Salem who as the Learned men conjecture was Shem his Patriarch and Chief and known by him for such But because Abraham the best man perhaps in any Age did not take a Commission from Melchizedech his Patriarchal chief And yet he was blessed by Melchizedech when he returned from the War We may conclude that neither Melchizedeeh nor Abraham knew of any such Patriarchal Soveraignty And also from this great example it appears that it is lawful for him that is not a Soveraign if he be not under any to make War I will not enter into a discourse whence and how is derived the Authority of making War and capital Sentences which must have the same reason to warrant both which hath pusled some great Divines Dr. Hammond that great man was at a loss in this enquiry and thinks that nothing but a Divine Authority can warrant them which hath put them upon strange extravagant Hypotheses of Government and sent this Knights brains a Wool-gathering But this may satisfie any man of sense that whatever is necessary for the general happiness of mankind and for preserving peace in the world and protecting the innocent and disinabling the mighty oppressors is more commendable to be done then the Killing a man in his own defence is simply lawful As to his second instance of Judah his Sentence pronounced upon his Daughter in Law Thamar which he would have an exercise of Patriarchal Soveraign Authority We say how could Judah do this by a Patriarchal Power when Jacob his Father was then alive and for all that appears Judah his Son was not extrafamiliated Besides which is very unlucky Thamar was then none of his Family or of the Subjects of his Domestick Empire for his Son her Husband being dead she was free from the Law of her Husband and ceased to be a Subject of his Paternal Kingdom But Mr. Selden under the Authority of some Rabbins which he cites in his excellent Book before mentioned Fol. 807. saith that Judah might have the Office of a Prince or Magistrate in a district in that Country and by that Authority might judge her according to the Laws of that Country But what the Law was and the Nature and reason of her offence
But there are better ways of putting an end to the Popish Plot then by putting it in Execution for them That is to say by suppressing that contumacy that is grown so rife in the Dissenters against the Church of England by putting the Revilers of her Establishment and Order under the severest Penalties By the Church her condescentions and indulgences to those that are weak and scrupulous the peaceable Dissenters such condescentions will not abate but magnifie her Authority The Church of England will not be by this means lost but her Governance preserved especially if the Relaxation that shall be made proceeds from her ex mero motu and is not imposed upon her by any secular Authority Nay she will become by this means more ample and venerable What Glories will shine upon the Heads of the Bishops We shall all rise up call them blessed They will attain an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 here and receive divine Honors while they live Their Order will be recover'd into the highest Veneration and it will never be after a question in the English Church whither the Order of Bishops be Apostolical The Parliament will make all Laws yield and comply to such happy peaceable and gratious Intendments All the People will honor them as their common Saviors that shall thus snatch us from the very Brink of Ruine and render the Designs of the implacable Enemies of the Church ready to take effect to the destruction of our Religion and the Nation utterly defeated But what punishments can we think too severe upon any that shall be guilty of such insolent Iniquity as not to allow that liberty to the Church which they seek as a favor from her to themselves that will not let the Church escape their Censures when she gratiously exempts them from her Censures and pittys their Errors and Follies What Fines and Imprisonments Pillories and Scourgings do they deserve that persecute the Church with Revilings when they themselves are tolerated Their condemnation must be just what ever their doom be themselves being Juges They will suffer as Evil doers and disturbers of the peace not for their Religion but for a most extravagant and intolerable unrighteousness They who will not tolerate others are themselves for that reason most intolerable Against these our Laws are to be sharpen'd and their iniquities to be punished by a Judge But the Statute of 35 Eliz. which punisheth dissatisfactions and peaceable withdrawings from the publick worship with exile and death declares how odly the business of the Separation hath been managed and with what disadvantages to the Church as it doth also the impracticableness of Laws that make perhaps invincible prejudices and modest and peaceable dissatisfactions capitally criminal The execution of this Law is scarce possible It is by no means agreeable either to the Christian temper of our Church or His Majesties great Clemency of which he hath assured us in the general course of his Reign And especially for that that Law hath been very rarely proceeded upon A Gentleman that lay in Cambridge Goal under the Judgment of that Law was reprieved by His Majesty with a great dislike expressed by him against that and such like severities What ever extravagances of a few wild Fanaticks of that Age occasion'd that Law the State of the Separation and of the Nation being quite alter'd from what it was then the execution of this Law now would be something like a Sheriffs serving a Writ out of Date in another County which can have no effect but mischief to himself While our Dissenters are thus reasonably indulged and strictly obliged to their peaceable behavior they can give no apprehensions to the Government either in Church or State This is all that is designed and all that they ought to have and this certainly would be readily yielded them in this present juncture especially if the Evils of the late unhappy times did not stand upon their score But I perswade my self that this course if it had been heretofore taken would have prevented one great cause of our late Troubles so it will in such measure prevent them from returning as the separation can be accounted the cause of them As for the Sacriledge and Spoil which was then made upon our Church it could never have happen'd but upon the dissolution of the Government nor can it ever happen again That War would have been impossible if the Church-men had not maintained the doctrine that Monarchy was Jure Divino in such a sense that made the King absolute and they and the Church in consequence perished by it But God be thanked we see the Church again restored to her endowments grown wiser than to desire to hold that precariously and at pleasure she doth enjoy by an unmovable legal Right Of the three Estates of this Kingdom for to suspect any such thing of the King would be unpardonable blasphemy there can be no reasonable Suspition Though of the House of Commons it is be come now lawful to suspect and say any thing that is evil But no man but the Villains that design by dishonoring them to change the Government hath reason to entertain such a thought The Members of the Commons in our latest Parliaments were all upon the matter entirely conformable to the Church of England They were persons of the best Estates Reputation and Honor in their Countries And they or such as they are like to make our succeeding Parliaments I have leave to put them under the imprecation of the severest Curse if ever they do sacrilegiously impair the Church her Revenues And I desire it may be assisted with the hearty and passionate desires of all good Christians that so the curse I now pronounce may operate upon them who shall incur it He that designs contrives or consents to spoil the Church of any of her Endowments may a secret curse wast his substance Let his Children be Vagabonds and beg their bread in desolate places Besides I know it is meditated and design'd by many and the best Men that use to be sent to Parliaments to redeem in part that infamous Sacriledge that was committed in the times of H. 8. When the Appropriations of Rectories made to religious Houses which had the cure of the Parish and ought at the dissolution of the Monasteries to be presented to were vested in the Crown whereby not only the Church was rob'd but the People cheated of their Tythes which were theirs to give tho not to retain and their praemium for the Priests Ministrations which are now often most slenderly and sometimes scandalously performed As also to disencumber her Revenue of the Charges and impositions of First-fruits and Tythes which were imposed and exacted by the Pope upon his pretence of being the oecumenical Pastor and High Priest of the Christian Church and at that time confer'd upon the Crown and are as unreasonably continued as any thing can be that hath a Law for a pretext But for this a