Peer in Parliament Of what consideration decency can be Chap. XII Their Sitting in Judgment not so much against the reason of the Canon as their assent to Bills of Attainder which was never condemned And the Nature of an Act of Attainder Chap. XIII Over-ruling a Plea of pardon doth not condemn the Criminal and therefore they may judge of such Plea Though they are not to be present at the making of a Judgment of Condemnation Quousque perveniatur in Judicio further explain'd And that which follows upon another thing is not always caus'd by it XIV Bishops one of the three Estates of all the Realms of Christian Europe And how they came to be advanc't to that dignity and trust The convenience of their not being divided in a distinct house from Lay Peers They cannot be detruded from that dignity no more than the Government can be chang'd which no Law can do Six Bishops of the twelve Peers of France and their Aristocratical power That all Governments are lawful that are lawfully establish't Chap. XV. William the Conqueror agreeable to all the Princes of that time put Bishops under Tenure by Baronies and all Baronies at that time feudal with the reason of his Policy and the inconvenience it produced Of the Curia Regis which consisted of the Baronage in which the Capitalis Justitiarius Angliae did preside Of the administration of Justice in that time And that the Baronage of England upon special Writs of Summons became a Parliament An account how all our present Courts derived out of it Of the Court of the High Steward and of the Court of Chancery and the reasons of its rise and growth and how inconvenient it is And how we recovered out of the inconveniencies of that Constitution of Parliament by representatives in the time of H. 3. And that this it being allowed can give no countenance to those that are desirous to change our present and better Constitution That in all this Change the Bishops suffered no diminuion But when the ancient reason of Baronage failed they are after to be considered under the new reason of Baronage Chap. XVI The remembrance of the old reason of Baronage became a prejudice in the Judges upon which T. Furnival Plea allowed that he held not per Baroniam An Entail of Baronies with lands after allowed The reason of Nobility changed and no man now Noble by his Acres Many men Summoned to Parliament and yet not Noble No prejudice to the immovable Right of Bishops to have Summons to Parliament and that objection answered Kings may erect new successive Nobility in Clergy-men That Bishops are of a distinct sort of Nobility and under that and other reasons they are considered as a distinct State Chap. XVII Of the three States which make the Government under the King that he is none of them The Objections against this answered And the reasons of their being distinct and the several Offices and Expectances in the Government that make them so That the several Orders of Peers make but one Baronage and in that there is a great trust and honour greater belongs to Bishops than Lay Barons in our present constitution Their Character and qualifications commend them to the highest trust and render them fittest Judges Chap. XVIII The Reason of Tryals per Pares and that the Bishops are competent upon that reason in Parliament though not so fit to be of the High Stewards Court The Law of M. Charta not Lex scripta Bishops ought to be tryed by their Peers How that Right came to be discontinued and that in Parliament they ought still to be Tryed by their Peers Chap. XIX The unreasonableness of maintaining an Opinion upon a single Objection against a matter evidently proved that Questions of this nature should be considered with candor and not opposed with meer possibilities Chap. XX. Several alterations in the Government since the Conquest that the Alteration in what concerns the Baronage the Bishops Right is to be considered in analogy to the Change That changes of Government for the better cannot again be altered but our zeal is required to defend the Government made better and they deserve ill that go about to reduce us to our old mischiefs by their Antiquity Chap. XXI The advantage of the Change in the constitution of our Parliament in the change of granting Subsidies And how the Lords are bound by a Bill of Aids Chap. XXII The beneficial Change that hath been made by the clause praemunientes in the Bishops Writs of Summons to Parliament which gives Authority for the Convocation By this we are discharged of Provincial Councils and Canons of the Church kept distinct from Laws of the State The Church kept in peace from rending Questions and Religion is conducted not by Laws but by Canons not force but perswasion which commends our Episcopal Government Chap. XXIII The danger we avoided of having our Baronage of England ambulatory and fixing of it in Families and an indefectible Succession in which the Right of the Peer-age of Bishops is established Chap. XXIV The advantages the Adversaries seek to their cause by aspersing the Bishops Remembrance of all the faults in all times committed by any of the Order that many of those faults are principally due to the Papal Vsurpation and the neglect of Kings to defend the Rights of their own Bishops and are all the Vitia Temporum the times of Popery Chap. XXV How inculpably our Bishops have been in administration of their Ecclesiastical Authority how faithful in their Temporal Trust and Asserters of the Rights of the people They have not been irreverent to Kings nor have they encroached any power in Civil matters in ordine ad spiritualia That the power that they challenge is meerly spiritual and they challenge nothing of Divine Right but the exercise of their Ministry which they cannot lay aside Mr. Selden's Arguments for Erastianism answered The Church of England doth not tye her self always to think and enjoyn as she doth at present The moderation of the Church in opinions her apprehensions of Schism just and great They are not answerable for the ejectment of the Nonconformists nor for the scandalous Lives of their Clerks nor their Chancellors nor abuse of Excommunications Why matters of Incontinency are committed to their censures They have exercised the power of the Keys against the Infractors of M. Charta and how it hath been guarded with the denunciations of the Church we have reason to expect as much from our Bishops to support the Government of Laws Chap. XXVI We have as much reason that the Protestant Bishops should be as constant to the Reformed Religion as Popish Bishops obstinate for Popery An Apology for their Vnanimity in Voting Their dependance not so great upon the Crown as to oblige them to disserve their Prince The King bestows nothing upon them but what is the Churches the great expectation the Government hath of their fidelity and performances That which advanced them must
Authority or weight enough to perswade the contrary or an alteration therein notwithstanding that complaint which he tells us was made in the 45 of E. 3. fol. by the two Houses Counts Barons and Commons to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per cet grant mischiefs dammages sont avenuz en temps passe pluis purroit eschire en temps avenir al disherison de la Coronne grant prejudice du Royalme Whereby great mischiefs and damages have happened in times past and more may fall out in time to come to the disherison of the Crown and great prejudice to the Realm And therefore they humbly pray the King that he would imploy Laymen This they had too much reason to desire then when the Pope had advanced his Authority over them and put them under Oaths of Canonical obedience which rendred them less fit to be intrusted in the Government of this Kingdom who were become Subjects of another Empire usurping continually upon us which will never be our Case again if the Bishops can help it CHAP. III. ANd now we proceed to the Precedents of which the Octavo Book principally consists which seem as that Author and the other in Folio would have it to be not only a discontinuance of the Right of the Bishops to judge in Capital Causes but an argumentative proof that they never had any because it can as they say be never proved to be otherwise Immemorial time I confess is a great evidence of the right whether In non user or user and a fair reason to allow or deny the pretence and therefore we will now consider the Precedents As for the argumentative and discoursive parts of those books they will fall in to be answered by way of Objection when we are discoursing and proving the affirmative part of the Question and will best be reproved by being placed near the light of our reasons for establishing the Right of the Prelates If we do not give some satisfaction to these Precedents whatever we shall say I know can signifie no more than an Argument to prove a thing not true which is possible de facto testified by unexceptionable witnesses for such the Precedents will be taken until exceptions are made to their Testimony The Precedents produced by the two Authors are mostly the same only the Octavo hath more than what the Folio Book hath recited The first case that the Octavo produceth against the Lords Spiritual their Right of being Judges in Parliament in Capital Causes is that of Roger Mortimer Earl of March Simon Beresford and others who were no Peers and yet tryed in Parliament and no Bishops present and we agree it probable for his reason because there is mention made of Counts Barons and Peers and Peers being named after Barons could not comprehend the Bishops And because we think it reasonable when the orders of that House are particularly enumerated that the order omitted should be intended absent but we will not allow but that Peers is and so is Grants comprehensive of Bishops Nor will we when the entry is General intend the Bishops absent except he cannot otherwise prove them absent which we mention in the entry once for all as just and common measures between us in this dispute It will appear true what we affirm of the words Peers and Grants by what follows And if we should not insist upon their being present when nothing appears to the contrary we should do wrong to the Cause But to come to the consideration of this Precedent Is this a just Precedent Is not Magna Charta hereby violated Are not the proceedings altogether illegal Here are Commoners tryed by Peers in Parliament It is well known that the high displeasure of the King was concerned and that he did interpose with a plenitude of Power in this particular case against the fundamental constitutions of the Government the greatest crime of this Earl was too much familiarity with the Kings Mother Indignation and Revenge and not Justice formed the Process It was proceeded to condemn him Judicio Zeli upon pretence of the Notoriety of the fact Sir Robert Cotton in his abridgment tells us Anno 4. Ed. 3. That the King charged the Peers who as Judges of the Land by the Kings assent adjudged that the said Roger as a Traytor should be drawn and hanged The Bishops were not present certainly they were none of the Judges that gave Judgment as the King pronounced without Cognisance of the Cause The King had more Honour for their Order than to call then to such Drudgery and service of the Crown The iniquity of the sentence appears by the reversal thereof in Parliament 25 Ed. 3. in which the Original Record is recited Sir Robert Cotton in his Abridgment tells us That this Earl being condemned of certain points whereof he deserved commendation and for other altogether untrue surmises there was a Bill brought into the Lords House for the reversal of the Judgment and it was reverst by Act of Parliament indeed it could not be otherways reverst for no Court can judicially reverse their own Judgment for Error in Law and Judgment in the Lords House being the dernier Resort cannot be repealed but undone it may be by themselves in their legislative Capacity Here saith the Octavo the Bishops were not present at the passing of that Bill but yet the Octavo Gentleman will not pretend that the Bishops are to be excluded in any Acts of Legislation Why therefore was he so willing to impose upon the people so falsely and unrighteously and to produce this as a Precedent against the Bishops Right of Session in matters of that Nature by himself recognized There is nothing can excuse him herein for he is certainly self-condemned of undue Art in thiâ— matter In 20 R. 2. the Case of Sir Thomas Haxey happen'd which the Octavo book page 20 produceth against us He was forsooth condemned in Parliament for that he had preferred a Bill in the House of Commons for regulating the outragious Expences of the Kings House particularly of Bishops and Ladies Haxey was for this tryed and condemned to death for it in Parliament And here appears to be no Bishops and there ought not to have been any for these reasons First that the Bishops were the parties wronged and therefore could not in any fitness give sentence But Secondly if that was not in the Case that that caus'd the process was Royall anger upon a great faction of State in which I believe the Bishops were not engaged made for deposing of Rich. the 2d that was understood by the King to be in acting and promoted by Sir Thomas Haxey by his Bill It was this made the sentence altogether abhorrent from legal justice in matter and form Here was a Tryall of a Commoner by Peers a matter made Treason that did participate nothing of the nature of Treason But the discreet Gentleman
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 Angliae pro tempore celebrandis necnon tractandi expediendi in eisdem quantum ad singula in instanti Parliamento pro statu honore Domini nostri Regis nec non Regalie ac quiete pace tranquillitate Regni judicialiter justificandi venerabili viro D. Thomae Peircy ..... Nostram plenariam committimus potestatem ita ut singula per ipsum facta in praemissis perpetuis temporibus rata habeantur The Commons of England knew what they said and could not be mistaken in fact we know of no Judgments reversed but those of the Spencers But we have no Records or very few of the times before Edward the Third transmitted to us through the injury of the times but they then had certainly whereupon they grounded their petition upon which the said procuratory Letters were made which petition here follows in terminis Mecredy prochein ensuant les Communes monstrerent au Roy coment avant ces Jeures plusieurs jugements Ordinances faitez en temps des progenitors nostre Senior le Roy en le Parliement eiant estre repelles adnulles pur ceo que l'estat de Clergie ne fust prest en Parliament a la faisaunce des dits jugements Ordenances pur ceo prierent au Roy que pur surete de sa personne salvation de son Royalme les Evesques le Clergie ferroient un Procurator aver poiar sufficient pur consentir en leur nosme as toutes choses ordinances a justifieis en cest Parliament que sur ceo chescun Signior espiritual dirroit pleinenent son advys Sur qui les dits Seigniors Espiritual severalment examines se consenterent de Comettre lour plein poiar grantant en les parts nosmerent on especial Tho. Peircy Chivaler sur ceo baillerent au Roy une Schedule contenant lour dit poiar le quelle nostre Seignior le Roy receust commanda la dite Mecredy estre enter de record en Rol de Parliament deque cela Schedule le form sensuit But it is remarkable that this Petition was made in 21 R. 2. for that in the 11 R. 2. the Bishops had made their Protestation that by reason of a Canon they could not be present The words of the protestation we shall here transcribe Per encheson certeins mattires feurent mouvez en cest present Parliament toucherent overtement Cryme L'archevesque de Canterbiry les autres Prelates de sa province fierent une protestation en la fourme paroles qui suent In Dei nomine Amen Cum de Jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non caeteros suos Suffraganeos Confratres Coepiscopos Abbates Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertinet in Parliamentis Regiis quibuscunque ut Pares Regni praedicti personaliter interesse ibidemque de Regni negotiis aliis ibi tractari consuetis cum caeteris Domini Regis Paribus aliis ibidem jus interessendi habentibus consulere tractare ordinare statuere definire ac caetera facere quae Parliamenti tempore ibidem invenerint faciend in quibus omnibus singulis nos Willielmus Cantuarien Archiepiscopus totius Angliae Primas Apostolicae sedis Legatus pro nobis nostrisque Suffraganeis Coepiscopis Confratribus necnon Abbatibus Prioribus ac Praelatis omnibus supradictis protestamur eorum quilibet protestatur qui per se vel procuratorem hic fuit modo praesens publicè expressè quod intendimus intendi volumus vult eorum quilibet in hoc presenti Parliamento aliis ut Pares Regni praedicti more solito interesse consulere tractare ordinare statuere definire ac caetera exercere cum caeteris jus interessendi habentibus in iisdem statu ordine nobis eorum cuilibet in omnibus semper salvis Verum quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet personaliter interesse ea propter pro nobis eorum quolibet protestamur eorum quilibet hic praesens etiam protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus intendit nec vult aliquis eorundem in praesenti Parliamento dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos nostrum quemlibet in ea parte penitus absentare Jure Paritatis nostrae cujuslibet eorum interessendi in dicto Parliamento quoad omnia singula inibi exercenda nostro eorum cujuslibet statui ordini congruentia in omnibus semper salvo Adhuc insuper protestamur eorum quilibet protestatur quod propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit vel vult quod processus habiti habendi in praesenti Parliamento super materiis auditis in quibus non possumus nec debemus ut praemittitur interesse quantum ad nos eorum quemlibet attinet futuris temporibus quomodolibet impugnentur infirmentur seu etiam revocentur Quelle protestation leu en plein Parliament al instance priere du dit L'archevesque les autres Prelates susditz inrollez ycy en rol du Parlement per Commandement du Roy assent des Signiors Temporeles Communes This the adversaries of the Bishops would have an Act of Parliament for that at the prayer of the Bishops by the Kings command with the assent of the Lords Temporal and Commons it was inrolled for that all the formalities that were used in these times in passing a Law was only to have the matter shortly entred in the Roll or Journal Book that such a thing was agreed upon by the King and two Houses which was drawn into the form of a Law afterwards by the Justices and Kings Councel when the Parliament was risen but this was never done in this Protestation and therefore we might say that it is not to be taken for a Law But we will admit it to be a Law yet it can be a Law only for that Case and can be extended no further Those Bishops protest but for whom For themselves only their own persons not their successors that by reason of the institution of the Canon they could not be present at certain matters to be treated of in the Parliament What those Canons were they do not tell us They had no other reason but the Canon to pretend at that time We hear not a word from them of the Assise of Clarendon And what was it that they protested Why only that they could not be present at what only at the matters aforesaid mentioned in the Petition and in that present Parliament But was this without any regard of their Right No they saved their Right their
ensued if they had been divided and separated in several Colleges and had had in consequence thereof a Negative upon each other as they then of necessity must But by uniting both Orders into one Council and Assembly distractions in Councils and impediments to the Affairs of Princes are avoided And we are assured of a more wise as well as an unanimous and more authoritative Result in all Councils and Debates which if the Octavo had duly considered he would not have depraved and disparaged this wise Constitution by comparing it to a nest of Boxes They were therefore for these great Reasons both Spiritual and Secular Lords united in the great Councils of Kingdoms and these two Orders of Nobles Spiritual and Secular became the two States which together with the Representatives of the People the third State made the Parliaments Diets and Convention of State under which Names the great Assembly which we call a Parliament in the several Sovereignties of Christian Europe hath respectively passed This hath been observed by the most learned Onuphrius Postquam verò juris imperii facta est eorundem Praelat electio quemadmodum ceteri Principes seculares Imperii tum Caesares qui de Religione bene merere volebant sine Imperii tamen praejudicio coeperunt Episc Abbates ob Religionem tanquam potiora Imperii membra prae caeteris Laicis Principibus honorare profana ditione ingentibus opibus honestare Arces Oppida Vrbes Marchias Ducatus Provincias Pedagia Telonia Vectigalia Portaria multa alia quae Imperii propria erant Episcopatibus concedere quae vel ex suis propriis bonis quae ad Imperium pertinebant vel ex alienis feudis erant Nam Laicis Principibus sine legitimo haerede mortuis eorum Provincias quae beneficiario jure ad Imperium pertinebant non aliis ampliûs Laicis Regulis sed Episcopis concedebat atque hac ratione omnes Episcopatus Abbatias Italiae Galliarum Germaniae imò totius Orbis Latini denique ipsum Pontificem Romanum ex pauperibus ditissimos maximos Principes fecerunt ex eis scilicet quibus quae antea Imperii juris erant in nulla re propterea Imperialia jura minui existimantes quippe quod certi essent eos omnes Praelatos a se designandos fore non nisi jussu suo voluntate Sacerdotia ipsa obtenturos Nicholaus Cusanus lib. 3. de Concordia Catholica cap. 27. attributes this Policy to Otho Secundus who saith he Vnico gaudens filio multis regnis cogitans difficile fore absque maximo labore tot regna in pace aliquamdiu servari posse insequens vestiga Avi sui Henrici Primi Ottonis Patris suum cogitatum ad res ecclesiasticas appulit considerans multa jam Religiosis locis per praesentes Reges donata summa pace gaudere quia verecundum erat Deo dicatis vim inferre animo ponderavit Ordinationem factam Synodo Romanae Ecclesiae de qua 63. Dist In Synodo Per quam perpetua dabatur potestas Imperatoribus Romanum Pontificem Cunctos sub Imperio Episcopos investiendi vel saltem eorum consensum semper concurrere debere celebrata Canonica Electione ut 63. Distinct NOS SANCTORVM Vnde hoc ponderans credidit perpetuis temporibus Imperio subjectis pacem dare posse si temporalia Dominia tam Romanae Ecclesiae quam aliis adjungerentur cum certi Servitii observatione tunc enim cultus Divinus augmentaretur Religionem in magnam Reverentiam exaltandam credidit quando sanctissimi magnae potentiae aliis Principibus intermiscerentur non posse tunc quosque voluntate in peccatis uti nulla publica sperabat unquam peccata Captorum depopulatorum agrorum communem pacem turbantium incendiariorum consimilium posse nutriri Ecclesiasticâ Sacrâ potestate potenti valenti resistente etiam praedones pauperum oppressores qui particulari regimini praeessent sic corrigi posse affirmabat ut sic absque Tyrannica Oppressione populus in Libertate vivere posset Imperio etiam tranquillissimo non dubitabat hanc Ordinationem esse utilissimam quando per annua servitia praestimonias quilibet Ecclesiae juxta quantitatem temporalium indictas Status Imperialis manu teneretur ac etiam multo major Imperii Potentia ex hoc appareret quod illis omninibus Dominiis ita Ecclesiis traditis nullus nisi per Imperium absque Successione percipi posset Who is desirous of more to this purpose may see Sigonius de Regno Italiae Bishops were made Dukes and Counts in France and also Peers in France and about this time out of the Princes Dukes and Counts the number of 12 were selected by the Kings of France and erected into the Title of the 12 Peers of France by which Dignity they became the Chief Councellors and Directors of State These twelve being chosen besides their being Peers in matters of Judgment in the Old Parliaments were Peers also in the management of the whole Kingdom and while their Greatness held were therein so Powerful that they added a Taste of Aristocracy to that great Monarchy not disagreable to the Title that our Peers assumed of being Pares Regis and having a Power Fraenum imponere Regi as Bracton tells us but he and his Law both are antiquated Of these six were Lay and six were Ecclesiastical but the Dignity of Pair is supposed in these Bishops not as they are Bishops but as being Dukes and Counts also that is in the first three viz. Rhemes Laon Langres as Dukes and of Beavois Chalous and Noyons as Counts These twelve Peers of France had such a Power towards the Ancient Kings of France as the Ephori of Sparta and the Justiciaries of Arragon had towards their Kings They were obliged to exercise that Power with Care and they did exert it towards their Kings What they did agreable to the Power assigned them in the Government was lawful and just nay their bounden Duty But certainly the Exercise of these Powers was against no Command of God For God makes no Government nor obligeth us to obey any but what are made by Men The Government it self is its own Measure It 's no Objection against the Lawfulness of any Government that it 's inconvenient if they like it notwithstanding whose Government it is But this Constitution was of advantage to Royal Families in that it made a kind of Entail of the Crown upon their Families and preserved the Monarchy and its Descent And besides had this farther Conveniency that it was under them impossible for a Nation or Kingdom to be undone in a trice for a Caprice of the Prince or destroyed to make a Fortune for some Up-start For the Sake of Mankind it is to be earnestly desired and prayed that such as they who derive no Honour from their Ancestors may leave none to their Children that themselves may survive their Honors and leave nothing of their
like this was before attempted by King John by this Writ of King John the like of which is not found Rex vicecomiti Oxoniae salutem praecipimus tibi quod omnes milites Ballivae tuae qui summoniti fuerant esse apud Oxoniam ad nos à die omnium Sanctorum in 15 dies venire facias cum armis suis corpora vero Baronum sive Armis singulariter 4 discretos milites de comitatu tuo illuc venire facias ad nos ad eundem Terminum ad loquendum nobiscum de Negotiis Regni nostri teste meipso apud Written 11 die Novembris Dors Claus 15. Johannis Regis Part 2. M. 7. But that Hen. 3. in that Parliament had some notable Expedient for the Establishment of the publick Peace and Quiet His Hopes and Desires of accomplishng it will appear by the Stile of the fore-recited Writ if compared with another Writ of Summons in a Cursory Form in the 26th Year of his Reign which was thus Henricus c. Venerabili in Christo Patri Waltero Eboracensi Archiepiscopo salutem mandamus vobis qualenus sicut honorem nostrum pariter vestrum diligitis in fide qua Nobis tenemini omnibus aliis negotiis omissis sitis ad nos apud London à die Sancti Hillani in 14 dies ad tractandum nobiscum una cum caeteris magnatibus nostris statum nostrum totius Regni nostri specialiter tangentibus hoc nullatenus omittatis But shortly to deduce the History of this Change which is but conjectural under the Authority of Mr. Selden in which nothing is certain but that the Bishops continued in the Change of the Baronage in the same State of Greatness mentioned the same Order had their Writs of Summons continued to them as before and though many of the Regular Barons were after omitted to be summoned to Parliament yet not one Bishop ever wanted his Summons This Discrimination shews That they were now Barons by Writ as the Lay Barons were and for the same Reason that is because Tenures did not now make them Barons But such only were so who had the King's Writs sent to them of Summons to Parliament So that the Bishops are not now to be reckoned Barones feudales or Barons by Tenure but Barones rescriptitii as all Barons at this day except those by Patent which are so without any respect to Tenure The Feudal Baronage as we said was as large and as numerous as the Tenures by Knights Service in Chief which were capable of being multiplyed several ways for every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee The Feudal Baronies besides were ambulatory not fixed to Families but assignable as Estates and passed with the Lands Who sees not that by this Constitution and Nature of Baronage a great many mean persons not agreeable to that high Order must be entitled to it and so in truth it happen'd And hereupon a Distinction was made first between Barones Majores Barones Minores The Barones minores soon lost the Title of Barons altogether This is conjectured by Mr. Selden to be before the latter end of King John's Reign and their legal Stile became Milites or Libere Tenentes which some upon a mistake anticipating the Change of the Government made in H. 3. time think when they meet with Milites or Libere Tenentes in Parliament they have found Knights of the Shire chosen for Representatives in Parliament And if they reteined the Name and Stile of Barons it was now but abusively applyed to them for their Baronies were in Truth estimable but as Knights Fees only and of this sort of Barons there remains some to this day This appears by a Passage in the grand Charter of King John made in the latter end of his Reign as it is in Mat. Paris 343. Ad habendum commune concilium Regni de auxilio assidendo aliter quam in tribus casibus praedict these three Cases of Aid to make the Eldest Son a Knight of Aid to marry the Eldest Daughter and Aid of Ransome are understood Heir as is plain by the Charter Et de scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbates Comites majores Barones Angliae sigillatim per literas nostras Et praeterea faciemus summoneri in generali omnes alios qui in Capite tenent This was one Step to remove these Barones Minores from the Dignity of Barons which by H. 3. were quite discharged and never appeared after in Parliaments except chosen Knights of the Shire But because I find this great Charter of King John not well understood by several considerable Writers nor by Mr. Selden explained I will offer my Thoughts and the rather because it is not impertinent to our present purpose The first part to which the part before-recited doth refer is thus Nullum scutagium vel auxilium ponam in regno nostro nisi per commune concilium Regni nostri nisi ad corpus redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel maritandum ad hoc non fiet nisi rationabile auxilium and then follows ad habendum Concilium Regni aliter quam in tribus casibus praedictis scutagiis assidendis c. I conceive that by the first Commune Concilium he means the Curia Regis and that he did grant that out of that Court he would not impose Escuage or aid upon his Tenants except it were those three Cases of Aid mentioned For Escuage was then and after assessed in that Court and that properly as being due by their Tenure only the Opportionment there was to be made which was a proper Office for the King's Tenents amongst themselves until the Statute of 34 E. 1. de Tallagio non concedendo in which it was provided that no Tallage or Aid shall be put or levied without the Will and Assent of the Archbishops Bishops Earls Barons Knights Burgesses and other Free Commons of the Realm but for all matters other than those three mentioned Aids and Escuage which were due by Tenure it should be done by that Commune Concilium that is his Parliament and he there declares how he would have it summoned as to his Baronage who in that part of his Charter were to receive their Satisfaction and for the Liberties of sending Burgesses to Parliament they are likewise confirmed in the same Charter and therein provided for So that I am persuaded that the modus Parliamenti in King John's Time was in the said Charter declared It was probable that before this Charter there was some Law to declare who those Majores Barones were and who those Tenants in Chief were that should be accounted now no longer Barons and after the Tenants in chief had lost the Honor of a particular
Summons to Parliament and the Stile of Barons it was less difficult for those Great Barons to procure a Law to exclude the rest wholly from having any Right to sit in the Parliaments under the name of Tenant in Chief only And to this purpose doubtless saith Mr. Selden some Law was afterwards made that none should come to Parliament as a Baron that is by vertue of his Tenure but such as should have several Writs of Summons directed to them in which number not only all those of the Ancient and Greater Barons were comprehended but others to whom Writs should be directed which is in effect that no Tenure should any longer make a Baron of the Kingdom but that the Writ of Summons only should make a Baron It is not improbable for the reasons aforementioned that such Law was made the 49 H. 3. and farther for that we find that the Abbot of Leicester in the 26 E. 3. was discharged from being summoned to Parliament amongst other reasons that he was not summoned to Parliament before 49th year of H. 3. and after that Interpotalis vicibus as if part of the Constitution had been that those of the Ecclesiasticks who at that time were accounted the Barones Majores so declared by having Writs of Summons to Parliament should have Writs of Summons to Parliament thence after in Succession And herewith agreeth Mr. Cambden Brit. fo Henricus tertius ex tantâ multitudine quae seditiosa turbulenta fuit optimos quosque rescripto ad Comitia Parliamentaria evocaverit ille enim ex satis antiquo scriptore loquor post magnas perturbationes enormes vexationes inter ipsum Regem Simonem de Montfort alios Barones motas sopitas statuit ordinavit quod omnes illi Comites Barones Regni Angliae quibus ipse Rex dignatus est brevia summonitionum dirigere venierent ad Parliamentum CHAP. XVI SO that it appears clearly that the Feudal Baronies about this time were quite discharged so far that no man by a feudal Barony had any Right to sit in Parliament and those that were feudal Barons before this time by the Alienation of their Baronies afterwards did not cease to be Barons But for that the Majores Barones and such as had then Writs of Summons and were appointed to make the House of Lords for after time were then Barons by Tenure It continued an Opinion some time that no man was bound to answer such Writs of Summons but those that were bound thereto by their Tenures thence it was that after this Constitution many that were feudal Barons before have taken a Liberty to entail their Baronies with the Lands that were held per Baroniam upon the Heirs Males whereby the Heirs general or next Heir Female were excluded and an Heir of the half Blood hath enjoyed the Honor with the Lands by vertue of the Entail We will trouble the Reader with one Instance of this kind and that is as late as Q. E. William Lord Paget of Beaudesert entailed the Baronies of Longdon and Haywood by Fine which descended to Henry his Son and Heir who had Elizabeth his Daughter and Heir died 11 Eliz. after whose Death Thomas Brother and Heir Male of Henry entered into the Baronies aforesaid and was summoned to Parliament This was allowable because the Honor of the Name and Family was thereby better supported and the Office of a Baron continued in the Family and the Duty of it better performed by such direction of the Descent And we do also observe that after the reason of being a Baron from Tenure did cease the following times kept the Old Form of Speech tenere per Baroniam was used commonly to denote a man a Baron That the Law is as we have said appears for that an Issue at Law whether Baron or not ought to be tried by the Parliament Records of his Summons and Session there as a Baron and not by the Records of the Exchequer to prove the Tenure I will not therefore trouble the Reader with what is reported to us in our Year-books nor my self in reconciling the seeming disagreements there about this matter onely thus that the Judges have sometimes spoken cum vulgo and not agreeable to the true notion of the Law and that they did not judge according to Law in the case of Thomas de Furnival But the Barons being anciently first so by Tenure did so stick with the Judges that they allowed Thomas de Furnivals Plea that he did not hold per Baroniam to discharge him from being a Baron though he had been summoned as a Baron and sate in several Parliaments as such But of this more hereafter For that which now made Parliamentary Barons was the receiving of a Writ of Summons to Parliament Before the 49 H. 3. The Bishops were of the number of those that were majores Barones and had Writs of Summons to Parliament among the rest of the great men before the making of the Law aforesaid and they by this new Constitution became Barons for them and their Successors not by Tenure any longer no more than the great Lay Barons but by virtue of the Writ of Summons and by the afore remember'd Constitution and Law made some time about the 49 H. 3. And though the Lands of the Bishops in the time of the Conquerour which were put under that Tenure be alienated or exchanged as they might have been I am sure if they are not before the Statute of Queen Elizabeth put a restraint upon them yet the Succession of the Bishops to their Baronies remains It is a question I know whether a Bishop can demand his Writ to Parliament before the restitution of the Temporalities upon his Consecration there are valuable Opinions on both sides but if the restitution of the Temporalities must be first made it is I conceive upon no other reason than that he is not completely Bishop before that is done no more than a Rector is a complete Rector after Institution before Induction be made though he ought I conceive to have his Writ upon Consecration because upon vacancy of the See the Guardian of the Spiritualities used anciently to have a Writ of Summons to Parliaments as Diocesans themselves And now the Baronage Secular is affixed to Families and the Spiritual Baronage to the Office and Succession And now Birth designs the Temporal Baron and Consecration of the Bishop designs the Spiritual Baron nay single Election without Confirmation or Consecration If elected onely they were summoned to Parliament by the addition of Electi if confirmed and not consecrated then they are in the Writ of Summons styled Electi Confirmati And Mr. Selden further tells us that there never was any that had the Title of a Bishop in England and of the Kings Creation since the Normans but was a Baron of Parliament and though the Regular Barons and such of them who had Writs were discharged upon their Prayer and omitted to be
unexceptionable Judge but renders them most fit and desirable For besides their Wisdom and Justice common with that of the Temporal Lords they are intended of the greatest tenderness and compassion and must be so if they comport themselves with agreeableness to their Character and Function They are not ordinarily engaged in the Factions of the Temporal Grandees and Religion being their business they are more under the powers of it that being their glory and their first greatness that which promoted them to their Secular Honour and Dignity and that which must support it Their Interest is Religion and therefore they are the more obliged in all their outward acts to comport with it They out of an universal charity understand that it is mercy and compassion to the innocent to punish the nocent person and yet they can in the administration of punitive Justice attemper the severities of Laws with the mercies of Religion and use Compassion to the Criminal when they do not depart from the unrelenting Rules of Law out of regard to the publick peace and by such demeanour they may reconcile the Office of a Judge with that of a Priest which some have thought incompatible 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Synes But they are no more inconsistent than Power and Authority which united makes a most venerable Magistrate and gives him the greatest advantage of serving the Community Peragit tranquilla potestas Quod violenta nequit mandataque fortiùs urget Imperiosa quies CHHP. XVIII AND such a Judge would I chuse but we we must take such a Judge as the Law appoints Magna Charta is objected against the Bishops right in the question which saith that Nullus liber homo capiatur c. nec super eum ibimus nec super eum mittemus nisi per judicium parium suorum The Objector omitted to add or consider what follows viz. Aut per legem terrae But the Statute of Magna Charta is no Literal Law as every body knows but intending to confirm the Common Law it is upon the matter Lex non scripta it alters nothing that was the Common Law before but that being found out declares what Magna Charta establisheth And therefore Peers shall be tried by Commoners in Appeals notwithstanding the Letter of Magna Charta for otherwise Peers could not be tried at all nor no Justice done in Appeals which is the Suit of the Party and not of the King Privilege must be always set aside rather than a faileur of Justice shall be allowed So that the Law before Magna Charta and since whatsoever it was must determine this matter The Provisions that the Law hath made that the Nobles and the Commonalty shall not intermeddle to judge any persons not of their Order is a most prudent Establishment without which neither Order Justice or Peace could be preserved The Envy of the Commons would render them unfit Judges of the Peers and the Animosities of the Peers would render them unapt to sit in Judgment upon a despised Commoner Besides that otherwise the Dignity of the Order of Peers would suffer for the Superiour can no more be judged with any congruity than blessed by the Inferiour This is a reason big and wise enough to be assigned and worthy of a wise Government and Polity And to this reason the words of the Statute of 25 E. 3. cap. 2. de Proditoribus do point De ceo soit probablement attaint de overt fait per gens de lour condition And therefore it seems to me that according to the Reason and Design of the Law which declares the Law in particular Cases that Bishops being Barons and of the Peerage of England and of that Rank and Order they ought to be tryed by those of their own Condition And the denial to them of this Priviledge which is annex'd to and is a resultance from the Dignity of their Order is a departure from Magna Charta and not agreable to the Provision of the 25 E. 3. c. 2. But it was never an allowable Exception to a Judge that the Judge hath not so good an Estate or other Advantages of Fortune equal to the man he Judges to forfeit in case the Judge be a Capital Offender upon which reason the Folio Gentleman grounds his Reasonings against the Bishops being Tryers of Peers He argues the Bishops incompetent to try a temporal Baron upon this reason because the Bishop hath only a Peerage for his Life to forfeit But who can be satisfied with such fine and slender Reasoning or entertain an Opinion that is not bettern grounded I would not be thought to argue or maintain that Prelates are so fit to be appointeed by the King's Commission to try a Temporal Peer in the Court of a Lord High Steward out of Parliament when a select Number of Peers are to be appointed for Tryal it is most convenient that those of the same Species of the Baronage should be chosen for that purpose for many reasons but for a Tryal of a Temporal Peer in Parliament which is the Establishment and Appointment of the Governmnt and not of the King 's special Designation notwithstanding the reason of the Folio for Reasons herein alleadged a Bishop is a most fit legal and competent Judge But I have taken too much notice already of the Errors and Mistakes of the Folio and his false Reasonings I am weary of such Animadversions I shall proceed now to the end of my Discourse without making any more Reflections It is already cleared that the Bishops are compleat Barons that they are of the State of the Baronage and it can have no Consideration how they came by it nor how they held it for the Modus tenendi doth not alter or diversifie the Honor. And for my part I cannot find reason to believe but that the Bishops had or might have had originally their Tryals by Peers and that it was their Right in Consequence of their being placed in that Order and State besides that they have a Precedency to the Temporal Baronage to be tried by the Baronage because the Law for the reason afore-mentioned appoints Tryals per Pares But the contrary practice is the Strength of our Adversaries in opposing the Peerage of Bishops which we shall therefore now consider of It is certain that in all Tryals wherein Bishops are concerned whether Plaintiffs or Defendants in Actions real as well as personal whether the Lands of the Church are concerned or not a Knight is to be returned upon the Jury that is to try the Issue I will not trouble the Reader with Law Cases any Gentleman that pleaseth may examine the Truth of what I say This priviledge therefore cannot be in respect of the Lands of the Bishoprick as the Folio would have it but of the persons of the Bishops a respect to the Order and Peerage of the Bishops It is the same Priviledge and as large as the Temporal Peers enjoy in this matter which is that the worthiest and best
of the Commoners which are Knights should be impannelled upon a Jury where either a Spiritual or Temporal Baron is concern'd besides that I find a single Remembrance as high as 13 E. 3. in Brooks Tryal 142. the Reports of that year are not printed of the Bishops Right of Peerage in a Capital Cause the Book is Evesque est Peere de Realme serva try per Peres in Crime But how this Right came to be discontinued and to lose remembrance we shall presently account for but I cannot think it Sence which some of our Lawyers have said for this purpose that a Bishop his being a Baron is Ratione Tenurae and not personal which is all one as to say that the Bishop is a Baron but his Person is not a Baron but his Peerage and Baronage is no other in truth than an Honor accumulated upon the Person of a Bishop together with his Office But to excuse them they thought themselves obliged to give a reason why Bishops are not as the Law is taken to be tryed by Peers but by a Common Jury which grew into practice by accident and was not ever so in probability but certainly is very irregular and extream incongruous and therefore to give a good reason for it is too hard a task to be undertaken and he that will undertake to give a reason of that which is unreasonable and go about to prove a thing fit which is incongruous must likely speak things equally incongruous absurd and unreasonable But to speak what the truth is in this matter the Bishops and the whole Order of Clergy did challenge to be exempt from the Jurisdiction of Secular Courts but the Bishops as is objected never waved their jus paritatis upon Arraignment in inferior Courts They only never insisted upon it For they had a better way to escape by setting up the pretended Rights and Priviledges of their Order and that Church for exempting themselves from the Jurisdiction of the Temporal Courts and by this means they did escape unpunished for the most part Though there were several Abatements made by the provision of the Laws and the Wisdom of the Judges to their unreasonable pretences therein yet they always got off by their pretended priviledge if not with impunity yet with some protection at least from Justice and farther they thought perhaps they might at least avoid being thought guilty of the Crimes objected whilst they used this pretence for a reason why they would not make a Defence And sure in all Offences but Treason they escaped with their Lives before the Statutes that took away the benefit of Clergy in some Cases of the greatest Guilt and even in the Case of Treason the Criminal ever had the Advocation and Intercession of the Church-power and Interest because the priviledge they contended for was so great and valuable a Concernment as they esteem'd it to the Order of the Clergy But by this means the memory of the Use of this Right and Priviledge was lost and the Detestation of a Crime in a Prelate provided him a speedy and ready Justice such as was at hand and at length Bishops themselves unadvisedly and being born down by the Common Opinion thus grounded and occasioned did submit to Tryals by Juries It is enough to have given an account how this Anamolous piece of Law came about But Anamolous Cases never make Rules nor destroy any Nor is it to be drawn into consequence whatever is a departure from the Establishment to destroy it quite Positive Constitutions of which no Reasons can be given why they are so can infer or argue nothing Reason cannot make Law though it is a fair inducement but our Reason is most perversly imployed when it proceeds from the Irregularities that happen in Human Affairs and are shuffled upon us by length of time by violence and iniquity and a heap of Accidents to argue us into more and to refix that which is regular and remains firm In quo quis peccat in eo punietur Is it not enough that the Order now suffers a diminution of their dignity by reason of the contumacy of the Popish Prelates their Predecessors and that their Refusals to submit to Temporal Justice are visited upon the Succession Severe enough this is in it self But why should any man expect that this Age in consequence of this should be persuaded and reasoned to exclude the Bishops out of their remaining right 'T is no more to be expected than that a man that hath one hand withered and mortified with the Palsie should be persuaded to cut off the other for conformity We know how the Prelates fell from their primitive Dignity of being tried by those of their own Order and were submitted to be tried by Juries of Commoners It would be therefore consonant and agreeable to the Dignity of Barons and Lords of Parliament for such the Bishops are that they be restored to their ancient right in the matters of Trials as mistaken Law is rectified by an Act of Parliament A wise Act of State it would be to redintegrate the Honour of the Baronage of England the whole Baronage suffering dishonour by a mutilation of so Honourable a Privilege in one of the membra dividentia of that body whilest the Bishops are thrown to common Jurors Especially since the incongruity thereof hath given occasion to some men to question one another of the jura paritatis which belongs to the Prelates and to dispute their right of Session in that House in one of the most important Concerns of the Government But however this Irregularity is discoursed it doth not affect the Right of the Prelates now in dispute for though Bishops are tried by Commoners out of Parliament as the Law is now generally taken yet that they are to be tried by Peers in Parliament our Adversaries do not deny And that they may and ought to sit in judgment upon Temporal Lords in Parliament in Capital Causes we have clearly proved So that the Reciprocal of a Bishops being judged and judging in Capital Causes in Parliament is intire and in this they continue duly pares But that it may not depend upon our Adversaries Concessions that Bishops may be tried by Peers in Parliament for he is not always constant to himself and may take back what he hath yielded we shall here subjoyn a short demonstrative proof that the Bishops ought to be tried by Peers in Parliament And that they have been declared and taken for Peers and under that Character tried when if they had not been reckoned and deemed Peers they could not have received Tryal in Parliament and it is thus Edward the Third had prevailed with the Lords against their good will to condemn the Earl of March Sir Simon Beresford John Matrevers Boys de Boyons John Devard Thomas de Gowrney William Ogle for the Murder of Edward the Second his Father and the Earl of Kent all of them Commoners but the Earl of March The Lords were
afterwards sensible of the Injustice and Irregularity of their Proceedings in judging and condemning Commoners and for the avoiding of the like for time to come an Act of Parliament was made which followeth viz. El est assensu accord per nostre Seigniour le Roy touts les gents en plein Parlement per tant que les dits Peres come Judges du Parlement pristerint en le presence nostre Seigniour le Roy a faire a render les dits judgments passant du Roy sur ascun de ceux que n'estoient pas leur Peres ce que encheson de murdre de Seignior Lige destruction de celuy que fu sipres de Sank Royal fits du Roy que per les dits Peres que ore sont ou les Peres que serront en temps aveniz ne soient mes tenus ne charge a rendre judgments sur auter que sur lour peres ne ace fair mes eiont les peres de la terre poer eins de ceo pur tout Jours ore venu soient discharges quietes qui les avant dits judgments ore rendus ne soient ensample nen sequence en temps avenir per quoi les dits peres puissent estre charges desore judges autres que lour peres contre la ley de la terre si autiel case deveigne que Dieu defend Rot. Parl. 4 E. 3. 11. 6. This the Author of the grand Question concerning the Judicature of the House of Peers would have but an Order of the House and no Act of Parliament because it served his purpose to have it so but for no other reason which he offers in that Book but that it was an Act of Parliament will appear by a Record which my worthy Friend Mr. Petyt a most Industrious and Sagacious Enquirer into the Records of Elder Times hath furnished to me which is a Writ directed to the Barons of the Exchequer wherein the afore-recited Record is mentioned and called an Act of Parliament viz. Rex Thes Baronibus suis de scaccariis salutem mittimus nobis sub pede sigilli nostri quaedam Judicia in Parliamento nostro apud Westm nuper tent ' per Comites Barones alios Pares Regni super Rogero de Mortuo Mari quosdam alios reddita necnon quondam Concordiam per nos Pares praedict ' necnon Communitatem Regni nostri in eodem Parl. to fact ' super premissis mandamas quod Judicia Concordiam praedict ' in Scaccario nostro praedict ' coram vobis legi publicari ibid. seriatim in Rotulari de caetero ibid. observari Fac ' Teste meipso apud Windsor 15. die Februarii Anno Regni nostri quinti adhuc Brevia directa Baronibus de termino Sancti Hilar. anno 5 E. 3. R. 33. penes Rememor Domini Regis in Scaccario To compleat our Argument the Concordia appears now an Act of Parliament to the purpose that the Lords should not give Judgment upon others than their Peers yet we find the Bishops afterwards judged in Parliament and that in times near the making of this Act when we may be allowed to presume they knew this Law and besides the practice hath been conformable to the Law since as our Adversary confesseth and particularly to mention no more the Bishop of Norwich in the 7 R. 2. And Thomas Arundel Arch-bishop of Canterbury 21 R. 2. both for Treason were tryed in Parliament by Peers which Cases are before mentioned to another purpose There was likewise an Act of Parliament made 13 E. 3. n. 7. that the Nobles of the Land should not be put to answer but in open Parliament by their Peers but two years after that Act was repealed otherwise we should not have since heard of Tryals of Bishops by common Juries in Capital Causes And when the lay-Lay-peers can again procure and provide for themselves such a Law they will not I hope envy the Bishops if they find them therein included CHAP. XIX BUt after all that hath been said it will be yet necessary to advertise the Reader for informing and settling a true Judgment of the Right of the Cause that in Questions of this Nature we can only arrive to a moral Certainty which is made by incomparably the greatest probability That we cannot be answered but by producing something at least equally probable to all the several parts of our Discourse that are to the question if by any Objection they should render any one part of our Discourse doubtful they would do nothing except they can do so to all the rest which can be done only by offering something more probable For when many probabilities are concurring to prove the same thing they do not singly stand upon their own Credit but they are all assisted by their Conjunction and give Aids mutually to support every one single probability This is but necessary to be said for that I see this Question will be kept up and defended with Obstinacy Passion Interest and unreasonable Contention And farther that it is very undecent that a question of this Greatness concerning a matter grave and important should be endlesly vexed with trifling Objections of the Nequam ingeniosi To prevent therefore the Caprice Captions Cavillations trifling Criticisms forcing of a Grammatical Sence of Words against their true and easie meaning most agreable to the subject matter to the occasion of speaking of them and their probable intendment and to the understanding of the Times when they were spoken And that we may be no longer or more troubled with their Opposings to that which is fairly probable an imagination of something barely possible and which otherwise doth appear notoriously false That Objections neither from the loose Stile especially of partial Historians nor from Records of Matters dark and obscure which leave us in doubt of their true meaning and therefore can be no ground for Argument nor from the various sence of words which they make to stand for this or that as it serves their turn At which rate nothing will be certain because few words have one single determinate Sence may any longer continue the Subterfuge of a desperate Cause and matter of endless Dispute I appeal to the World whether such like Objections deserve an Answer for to some of these Topicks whatever shall be produced by our Adversaries will be reduced And whether they are not rude and imperious to the Dignity of the Right in question to draw it to a Tryal by such mean and incompetent ways and unjust measures as they are otherwise in the Management of this Question to the persons of those that are concerned in it It is with passion to be resented that so noble a Question should be tryed by such means and incompetent ways of Probation and by such unnatural measures which can be endured by none but such who have no measures of Right but an agreableness to their own Projects and who are upon the search
the Lords and sate in one House they could not discharge that Office of a Representative so well as since they are divided from them and make a distinct House They could not well use that Freedom of Speech and Debate under the Observation of the great Lords upon whom the Principal Gentlemen had great Dependencies Their Consent was often very improperly such for he only truly and naturally consents who hath entire Freedom to dissent Si vis scire an velim effice ut possim nolle In the granting Aids for the Support of the Government and Defence of the Kingdom a Matter of the greatest Importance the Clergy Nobility and Commons stood divided and could not as the Ancient Constitution was by one Act of State be regularly and proportionably taxed according to the Exigency of the Affairs and their respective Abilities but those three Orders taxed themselves in such measures as they pleased which made the Kingdom Geryon-like a Monster of three Bodies Their several Concessions by this means not likely to be always equal and in the whole not competent to the instant necessity The Bishops Abbots and other Ecclesiastical persons of the Saxons time held their Lands free from all Secular Services besides Trinoda Necessitas viz. Expedition i. e. Supply for War pontium arcium extructio But King Ethelbald did grant that the Ecclesiasticks should be freed from all publick Charges except for the Building and Repairing of Castles and Bridges Ingulphus pag. 853. The like Immunity was allowed to the Clergy of the Empire by Honorius and Theodosius Lib. 4. Cod. Just de priv Dom. Aug. By the Great Charter their Priviledges were confirmed And for this reason the Clergy have taken themselves not of Right chargeable to Aids granted to the King by Parliament This Exemption hath been envied to them and made matter of Reproach though unduely in after Ages But notwithstanding this Exemption they have aided the Crown with Supplies frequently yet in such manner as asserted and saved their ancient Priviledge of being exempt that is they would not suffer themselves to be involved in a general Law but of their own Freedom and Will gave to the King which Concessions were notwithstanding not legal unless confirmed by Parliament to whom belonged always the power of judging of the Freedom and Ends of giving Aids and Benevolences and the necessity that required them But in the last Ages they have for their Commendation and Honor waved their pretences of Priviledge and Exemption and for the sake of Common Justice and the Publick Weal for avoiding being thought less in their Duty to the Publick than their Order required And for the better ascertaining and more equally adjusting the Parliamentary Aids they have submitted to be taxed by Acts of Parliament The Commons in Parliament we find as late as Henry 7. taxing only the Commons and that by Indenture between them and the King This Form of Grant is utterly exclusive of the Lords Power to charge the quantum times of Payment or ways of Levying of the Aids granted wherein they subject all Lands to the Levies thereof but the Lands of the Lords in Parliament or Land amortis'd to the Church Such an Indenture was made in Parliament held at Westminster 10 H. 7. and is pleaded at large in Rastals Entr. fol. 135. But of late our Government hath cleared it self from that grand inconveniency The Commons in Parliament and those whom they represent being far the greatest Proprietors they reasonably challenge it their Right to propound all Aids and appointing the Levies and Methods of raising them which because it must be agreed that the Commons in no congruity can tax the Lords authoritatively or impose upon them must have civilem intellectum that is the Commons in a Bill of Aids do propound that they will agree on the behalf of the Commonalty that they shall be taxed as the Bill propounds if the Lords for their part will agree the same CHAP. XXII NEither was our ancient Government without great faults and inconveniences in the conduct of Religion the principal care of all Governments on the one side by confounding Administrations which should have been kept distinct which was the fault of our Government in the Saxons time and by utterly disjoyning and severing the Church and State and not tying the Ecclesiasticks to a just dependency upon the State which was the Evil of after times that is to say the Ecclesiasticks were left to themselves to convene Councils and to make Canons without any dependence upon or relation to Parliaments The Constitution was such in the Saxons time that the Synods or Councils which govern'd in Religious matters were the same with their great Council or Parliament By these means all the Rules and Orders that were made in the matters of Religion were not Canons which are of the nature of Councils but Laws and obliged those that contravened them to temporal punishment The Church was thereby turned into a Dynasty and Religion was against its nature promoted by force which can onely truly obtain by persuasion And wheresoever this is in practice and use the Clergy to the great scandal of their Office will be entituled to all the Severities that shall be inflicted upon Dissenters Heretofore the Councils of the Church and the Authority of the State were unduly confounded After that we had Legatine Councils and Provincials convened by the Archbishops as they pleased not under the observation and controll of the Civil Power by which many inconveniences were occasioned many embroilments of the people happened the Authority of the Prince lessened and Civil Rights encroached upon the validity of several good Laws made in Parliament disputed clamoured against and sentenced as unlawful for want of a due subservience and dependence of the Ecclesiastical Conventions on Parliaments We had Imperium in Imperio or at least a Kingdom divided against it self This fault in our Government was help'd by Edward the Third our English Justinian he in the several Writs of Summons of the Bishops to Parliament made it a settled Rule that the clause of Praemunientes should be inserted requiring them therein to warn respectively Priorem Capitulum Ecclesiae vestrae C. ac Archidiaconos totúmque Clerum vestrae Diocesis quòd iidem Prior which if a Cathedral is the same as a Dean Archidiaconi totúsque Clerus vestrae Diocesis quòd iidem Prior Archidiaconi in propriis personis suis dictum Capitulum per unum idámque Clerus per duos Procuratores idoneos plenam ac sufficientem potestatem ab ipsis Capitulo Clero habentes praedictis die loco personaliter intersint ad consentiendum his quae tunc ibidem de communi concilio ipsius Regni nostri Divinâ favente Clementiâ contigerit ordinari And accordingly the several Bishops in obedience to such like Writs of Summons to Parliament to them directed summoned or warned their Deans or Priors Archdeacons and the Clergy by their Proxies
to Persons or Territories by the Civil Authority Their Convocations are convened by the King 's Writ they debate nothing without his Leave Their Results become Canons and receive Sanction by the Royal Authority and do not pretend to infringe any Temporal or Civil Right or Law And besides their Convocations are always to be held sittting Parliaments and no longer not at any other times And whatever they debate or resolve is under the Observation of Parliament Nequid detrimenti capiat Respublica The Bishops make no Laws about Religion apart by themselves neither have they any Negative against any that are propounded and therefore are not answerable for any that are made or not made They have not the definition of Heresie but the Law hath declared it since the Reformation And the Writ De Heretico comburendo is since abrogated by the Christian Temper of a Parliament principally consisting of such Members that were conformable to the Institutions of the Church of England that is the legal Establishments of this our Christian Commonwealth The Church of England is no more her own present Establishments than the present thoughts of any man is the man himself as the thoughts of a man are more refined and unreprovable as the man grows wiser so do the Laws and Constitutions the Orders and Rules of a Church or Christian Republick alter amend and improve as the Wisdom and Virtue Religion and Devotion of the Government and the principal parts thereof in Church or State increaseth or advanceth Our Bishops have had and that with the greatest reason greater apprehensions of Schism and Separation than of Errors in Opinion which occasioned it as of worse importance to the Christian Faith than the Errors themselves Besides that a man cannot help being mistaken in many things but it is in every mans power to be modest and peaceable and wise to sobriety and hold the unity of the faith in the bond of peace and charity and not to revile and deprave that which hath the publick approbation though he cannot thereto fully assent It is great iniquity and unrighteousness to pretend to Liberty of Conscience as their right and in the mean time not to tolerate the publick appointments and what is authoritatively allowed and approved If Controvertible Opinions are allowed a Warrant for making a Sect and separate Communion and Churches are denominated and distinguished by them and consequently such Opinions are advanced unduly unto the same necessity of belief as Articles of Faith what will become of the Christian Verity where will it be recognized and purely professed how distinguished how understood how ascertained amidst the number of Opinions contended for by the several dogmatizing Sectaries with more zele than the undoubted and uncontrovertible Articles of Faith Nay I will adventure to say further on their behalf that Schismatical Separations would not offend them so little do they affect to be Magisterial but for that if this Disease should grow Epidemical there would be no such thing as a Christian Church and the Christian Religion would perish from the earth without a miracle It is onely designed by our Church that those whose Subscriptions are required should thereby onely signifie their allowance of the Liturgy and Articles as fit to be used and allowable What Plea then can our Separatists have for a Toleration for themselves who by their Separation seem unwilling to tolerate the publick Establishment either from our Governours Civil or Ecclesiastical or from one another in their divided ways To reform or change to these mens pleasures is impossible for that they cannot they positively differing from each other be all pleased in any one possible Establishment Besides that untill we cease to be Schismaticks and to be of separate and divided Communions upon the score of any dislike or but probable exception to what is publickly received or allowed the altering any thing for our satisfaction will be but applying the Cure to the Symptoms a cutting off one head of the Hydra By this way to effect an union is as impossible as it would be to empty the Ocean without stopping the cur-of the Rivers The Bishops are as all men by how much they are better learned are of the greatest Moderation in Opinions and can tell how duely to rate and value them according to the Prejudice or Advantage they do to the Ends of our Religon those several Opinions that have been contended with furious and rending Zeal in the several Ages of the Church to the Scandal of that peaceable Institution They can have a better Opinion of that man who hath unhappily entertained the less probable side of the Questions controverted if he opines with Modesty than they have of him that holds the most probable part thereof with a Sectary-Zeal Seperation from Contempt and Disdain of those of a different persuasion Their Moderation is known unto all men of it their Opposers have had very sensible Experience the several Dissenters cannot disown it but must confess that they have had severally kinder Usage from the Episcopal Men than their several Parties have from one another By their Learning Wisdom and Moderation which is most eminently known and observed in many of them and hath recommended them to the highest Esteem they must be allowed their Enemies being Judges to be the fittest Arbiters of the Controversies and the most likely and probable Procurers of the Peace of Christendome All the Dissenting Parties have reason to look upon them as their Common Sanctuary and Defence against the Outrages of each other But in this they must be pardoned if they being under a Law or Rule of their Superiors made as they think in a matter lawful act accordingly and do not disobey for their sake who think otherwise though in the mean time they pity their Scruples Indeed the Terms of the Nonconforming Ministers have been made hard upon them But that hath been from Reasons of State which the late unhappy Wars occasioned and they were ejected out of their Livings by Statute-Law And on the other side it is true that many men not to fit for that Holy Function have enjoyed Church Benefices but neither this can the Bishops help For they cannot reject a Clerk presented to a Benefice or eject him but as the Law will so sacred is the Right of Patronage and so fixed by the Law are Ministers in their Livings which is not Nice in the manners of Clerks and the Bishops cannot be severer than the Laws So that if some men not of the most unblamable conversations have kept their Livings and some of very unexceptionable Lives have been ejected The unhappy Nonconformists are directed where to make their Complaint But as there is little Cause of complaint on this part of the Episcopal Authority and function viz. Their Superintendency over the Pastors of their Dioceses So we shall observe how they have behaved themselves in the Exercise of the Power of the Keys For what is done therein by their Chancellors
govern as he pleaseth that the power of the Laws is solely in him that he may if he please use the consent of Parliaments to assist the reason of his Laws when he shall give any but it is great condescention in Kings to give a reason for what they do and a diminution to their most unaccountable Prerogative You say That they are for a Popish Successor and no Parliament and do as much as in them lies give up our antient Government and the Protestant Religion the true Christian Faith to the absolute will of a Popish Successor giving him a Divine Right to extirpate God's true Religion established amongst us by Law and to evacuate our Government by his absolute pleasure Our Government by a King and Estates of Parliament is as antient as any thing can be remembred of the Nation The attempt of altering it in all ages accounted treason and the punishment thereof reserved to the Parliament by 25. Ed. 3. The conservancy of the Government being not safely to be lodg'd any where but with the government it self Offences of this kind not pardonable by the King because it is not in his power to change it This is our Government and thus it is established and for ages and immemorial time hath thus continued a long Succession of Kings have recognized it to be such And just now when we are under the dread of a Popish Successor some of our Clergy are illuminated into a mystery that hath been concealed from the beginning of Governments to this day from the wisdom of all Princes and Ministers of State That any authority in the Government not derived from the King and that is not to yield to his absolute Will was rebellious and against the Divine Right and Authority of Kings in the Establishment against which no usage or prescription to the contrary or in abatement of it is to be allowed That all Rights are ambulatory and depend for their continuance upon his pleasure So that though the Reformation was made here by the Government established by Law and hath acquired civil Rights not to be altered but by the King and the three Estates These men yet speak say you as if they envied the Rights of their own Religion and had a mind to reduce the Church back again into a state and condition of being persecuted and designed she should be stript of her Legal Immunities and Defensatives and brought back to the deplorable helpless condition of Prayers and Tears do utterly abandon and neglect all the Provisions that God 's providence hath made for her protection Nay by this their new Hypothesis they put it by Divine Right into the power of a Popish Successor when he pleaseth at once by a single indisputable and irresistable Edict to destroy our Religion and Government And these opinions you say they are the more inclined to entertain For That they believe no Plot but a Presbyterian Plot for of them they believe all ill and call whom they please by that hated name and boldly avow that Popery is more eligible than Presbytery for by that they shall have greater revenues and more Authority and Rule over the Lay-men This is a heavy charge if true but it is imputable I am sure but to a few and not so generally as some malevolent men of the Popish Faction are industriously busie to have it For if it were I confess it might choque the constancy Resolution and Zeal of the most addicted to the service of the Church men and make them at least very indifferent in their concerns For these mistakes are so gross and inexcusable that they ought to be permitted to suffer the smart of their own follies and to be corrected by the evils they are drawing down upon themselves with their own hands They deserve to suffer as betrayers of their own Country and to be prosecuted with greater shame and ignominy by all of the Reformed Religion than the Traditores were by the antient Christians These their diserting of the true Christian Faith being much less excusable then that of theirs and of greater mischief as of deeper malignity How many of the Clergy-men are thus misled we know not but they seem many more than they are because they are most in view and come often under observation frequent publick houses and talk loud because they want the Complement of their preferments But certainly Sir what you say to be the declared opinions of some Clergy-men is the business now of the Papists to propagate Hoc Ithacus velit magno mercantur Atridae These are agreeable to and indeed make up the most modern Project and Schem of the Popish Plot. Since the discovery of their first design of killing the King and massacring of the Protestants They have taken such courage by observing how little power we have to prevent their design that they have us in scorn and in the vilest contempt They now think that we are not worth destroying but by our own hands that we are not worthy of their trouble or the charge of Executioners of their providing How entertaining is it to his Holiness to find the Church of England the impregnable Bulwark of the Reformed Religion easily fall into his hands by the unpresidented folly of some of her Sons without the trouble of attacking her either by force or Argument which hath hitherto wanted success and the attempts always attended with dishonor and mischief to his See How pleasant will it be to him to see us perish and our destruction to be from our selves With this he will answer all the irrefragable Apologies of the Church of England for her departure from the Communion of the Romish Church Then he will say with triumph our Church destroyed her self and perished by a Divine Fate for her unwarrantable and Sacrilegious Schism for so he will call our follies and impute them to Divine infatuations The manner of our destruction will be a better Argument and of more force against the Doctrine of the Reformation than all the Arguments of all the Doctors of that Church to this day For this purpose since the Discovery of the Popish Plot it is that Sir Robert Filmers Books were Re-printed together and recommended by the Title Page and the publick Gazet to our reading Since the Discovery of the Plot we have had variety of Books Printed to the same purpose viz. To prove that all Kings as Kings are absolute by Divine Right Since the Discovery of the Popish Plot we have had men imployed to search all our antient Records and Histories to find out something more antient than our Parliaments as now constituted that it may serve as a pretence to take them away Since the Discovery of the Popish Plot we have the memory of our late calamitous War revived to raise a Pannick fear of another and to make the King believe that the genius of the Nation is Rebellious and that the Protestant Religion it self is to be apprehended by Kings It is
chose to trust them rather than his Protestant Subjects in making his escape at Worcester they have contrived these two last Plots with such Art as to bring them under His Majesties observation and represented them as things fit for his encouragement Sure if they were not urged with the fears of a real guilt and a restless Conscience of the Plot they would never have adventured thus to have interested the honor of the King and to tempt him to abandon them to the publick Justice of the Nation which begins to grow impatient by the delays of it against this Hellish Plot For we have had four Parliaments dissolved since the Discovery of it one a darling to the Crown The bringing into question the Dissolution of that Parliament in the House of Peers upon the reason of an unnatural Prorogation was not long before censured and some great Lords imprisoned therefore proceeding so unwarrantable that it was after thought fit by that House to obliterate the Memory of them so necessary was that Parliament then thought to the service of the Crown The Dissolution of that Parliament gave us reason to fear that the King had no more business for Parliaments By these Dissolutions no publick ends that are intelligible are served no interest is gratified no persons of any sort receive their satisfaction but the Plotters and the Plot are respited thereby from publick Justice and gain time to bring the Plot to effect This is the end the Papists have served but the King our great Physician of State had another reason that hath governed him for he knew the strength of the Plot our Disease and that a Disease that is dangerous is sometimes to be palliated until the season comes to make a thorow Cure for it many times kills the patient to precipitate the Crisis all these Demonstrations of the Plot are past under every mans observation But that we know so little of it after all this time It is now above three years since the first discovery that the Plotters now ordinarily escape Justice That a great Judge did abate his first Zeal in punishing the Plot least he should exasperate it and Reason of State might thus require it These things prove the greatness and strength of the Plot as well as the reality of it these declare the Plotters interest is great that the Plot is yet unbroken stanch and hopeful and therefore we are not to believe our selves well and live sine Regimine as the Physicians say but to expect address to and desire our Cure And that the Papists think it yet hopeful is evident from the Priests and the Lawyer abjuring their guilt with their last breath We had the honest Confessions of the Convicted Priests and other Traitors of the Popish Treasons of which they stood Convicted in the time of Queen Elizabeth and in the time of King James of the Gun-powder Treason What then could induce our Plotters Convict to utter most solemn perjuries the next minute before they were to appear to God nothing sure but that they then hoped that the Plot might be executed they did it for the interest and service of their Church and for the better bringing it to effect For which they dyed and for which at their deaths to conceal they adventured Heroically upon lyes and perjuries which if confessed would have been frustrated and become Abortive For it must not be believed that that Church is so degenerate as to permit and allow men to such impieties for the punctilio's of honor though of the Church it self But while they are not done for the sake of him that commits them but for an important interest of their Church such as the carrying on of this Plot they say they loose their nature by the direction of the intention they become a pure piece of mortification and self denyal an adventure to trust God in what they do for his sake and for his service and their Casuists will no more call them in this Case lyes or perjuries than Abraham's offering up his Son Isaac though that was at Gods express command was murder But the God of Truth that God who hath declared that when he himself in any entercourse with Mankind interposeth an Oath that the matter under that Oath is irrevocable peremptory and absolute cannot license or dispense with perjurious falshoods for any end whatsoever But I must remark one thing more and that is touching the credit of Dr. Titus Oats and Capt. William Bedloe viz. That they have been incurious in their conversation have followed their own natural course allowed themselves in their passions have been apert and unreserved have not cared who they offended have sought no mans favour seem to care for no mans opinion have valued and supported themselves only by their veracity and have seemed to set all the World at defiance to find a flaw in their evidence and have had little of friendship or esteem but for the sake of their discovery Besides that so long a time hath not afforded a possibility by all the Artifice Interest and unhallowed frauds of Rome to falsify any one part of that evidence But numberless events have given credit and authentickness to their Testimony Did ever any feigned Testimony bear it self up with so much Confidence Bravery and Assurance was there ever any false witness that did not endeavour to render himself acceptable to bespeak favour which draws after it eredit and to appear of the most unexceptionable behaviour Their faults and imprudences such as they have been we would not have wanted to make their evidence beyond all exception The undoubted truth of their evidence alone hath given them the civil respect of all honest men and will give the Doctor the publick honors of the Nation in due time I will not recite the innumerable Sham-plots contrived against the Protestants every one of them a Demonstration by it self of the trurh of the Popish Plot because I have no design to exasperate but awaken these men that are asleep and secure in this storme This trouble of demonstrating of the Plot may seem unnecessary to the judicious nay to the plain sort of honest upright and well meaning men and so it would certainly have been had not some young Gentlemen by this paltry thing called Wit been corrupted in their judgments and brought into a Scepticisme and wild undetermination in a matter of so great concernment This despicable faculty hath made a famous Gentleman who hath a liberal dose of it a Writer of Books caused him to waste so much Paper and abuse so many Readers but in all that I have read of him there is nothing true and sincere or truly and sincerely said his Judgment is made false by his Phantasie or he hath serv'd a turn by his Versatile windings and Wily conceits That dangerous faculty that he indulgeth hath imposed upon him which the severe and honest enquirers after truth are concerned to mortify and suppress And I do earnestly
recommend to all ingenious Gentlemen that would be rightly instructed and informed neither deceive others nor would be deceived themselves as they love truth and virtue wisdom and sober thoughts to dispise this sort of wit in others and repress it in themselves And never allow it to be used but in the hours of mirth in the Relaxations of their minds from serious Contemplations and matters grave and weighty where this prophane thing wit ought always to be shut out with care Enough hath been said for rectifying the mistakes of any true Protestant especially any Clergy-man of the Church of England which you have objected against them about Government or Parliament dissenters from the Church of England and Popery Especially when it is made apparent that these mistakes are made serviceable to the Popish Plot and the means which that party prosecute to compass and bring about the ruine of our Church But that nothing may be wanting that lyes in my poor power for pulling their Foot out of the Snare I shall more distinctly consider them First I shall desire them to consider what our Government is and where the true knowledge of it is to be found And where can it be found but in our Statute Books the Commentaries of our Law the Histories of our Government and of the Kingdom Search them if you be at leisure if you are not consult those that have read them and whose business and employment it is to understand them and you cannot fail to be informed That the King hath no power to make Laws that both Houses of Parliament must joyn with the King in making a Law It can with no more reason be concluded that the King hath the Legislative power because his Assent makes the Bills in Parliament Laws than it can because the third Unit added to two makes a Triad that the other two do not go to the making of that number when a matter 's moved from the King in Parliament to pass into a Law the Commons consent last The Letters Patents of Ed. Sir E. Cook 8 R. 3. for making the Eldest Son of a King in Succession Prince of Wales and Duke of Cornwall was confirmed as there must have been otherwise they would have been void by the House of Commons And yet we will not say that the House of Commons can make a Prince of Wales or Duke of Cornwall And yet upon no better reason than this some men will talk as if they believed themselves that the Legislative power is in the King when no King of England yet ever pretended to it but by their process of Law have punished such officious and mischievous Knaves They will tell you that the Laws are the measures of our Allegiance and the Kings Prerogative and declare the terms of Obedience and Government That a Legislative authority is necessary to every Government and therefore we ought not to want it and therefore Parliaments in which our Government hath placed the making of Laws cannot be long discontinued nor their Conventions rendred illusory and in vain which is all one as to want them That to Govern by Laws implieth that great fundamental Law that new Laws shall be made upon new emergencies and for avoiding unsufferable mischiefs to the State By the Statutes of 4 Ed. 3. c. 14.36 Ed. 3. c. 10. it is provided that Parliaments be holden once every year The Statute of this King required a Parliament every three years which being an affirmatory Law doth not derogate from those of Ed. the 3. But if the King doth not call a Parliament once in a year He neglects these Laws and if he delays calling a Parliament three years he neglects the other Law of his own time to And for that he is by the Law intrusted with the calling of Parliaments He is at liberty to call them within the times appointed And that Laws ought to be made for Redress of mischiefs that may ensue appears by the Statute of provisors 25. E. 3. cap. 23. In which we have these words Whereupon the Commons have prayed our said Soveraign Lord the King that sith the right of the Crown of England and the Law of the said Realm is such that upon the mischiefs Dammage which happeneth to this Realm he ought and is bound of the Accord of his said People in his Parliament thereof to make Remedy and Law in avoiding the mischief and dammage which whereof cometh which that King agreed to by his Royal Assent thereto given I dare be bold to say that never any Bill in Parliament was lost and wanted the Royal Assent that was promoted by the general desires of the people If Popery therefore which is the greatest mischief to us that ever threatned this Kingdom can be kept out by a Law we ought to have such a Law and nothing can hinder such a Law to be past for that purpose but want of an universal desire to have it I desire these Gentlemen to consider how they will answer it to their Saviour at the last day if they suffer his true Religion and the professors of it to be destroyed and persecuted when nothing but their desires of a thing lawful to be had and of right due was requisite to prevent it Their sufferings will be just and righteous from God if their sin occasioneth it and very uncomfortable to themselves The extent of the Legislative authority is no where to be understood but by our Acts of Parliament in which it hath been exercised and used and by such Acts that declare the extent of its power by the 13. Eliz. cap. 1. it is made Treason during that Queens Life and forfeiture of Goods and Chattels afterwards To hold maintain and affirm that the Queen by the Authority of the Parliament of England is not able to make Laws and Statutes of sufficient force and validity to limit and bind the Crown of this Realm and the descent limitation inheritance and Government thereof And this authority was exercised by Entailing the Crown in Parliaments in the times of Richard the 2d Henry the 4th Henry the 6th Edward the 4th Richard the 3d. Henry the 7th thrice in the time of Henry the 8th and upon the Marriage of Queen Mary to King Philip of Spain both the Crowns of England and Spain were Entailed whereby it was provided that of the several Children to be begotten upon the Queen one was to have the Crown of England another Spain another the Low-Countries The Articles of Marriage to this purpose were confirmed by Act of Parliament Those that are truly Loyal to our present Sovereign have reason to recognize with high satisfaction that such a power of altering and limiting the descent of the Crown is duly lodged in the King and States of the Realm For under the authority of an Act of Parliament of the Kingdom of Scotland we derive our selves to the happiness of his Government and and He his title to the Crown of Scotland which drew to
him the Imperial Crown of England For Robert Steward first King of Scotland of that Family lived in concubinate with Elizabeth Mure and by her had three Sons John Robert and Alexander afterwards he Married Eufame Daughter to the Earl of Ross and after was Crowned King of Scotland He had by her Walter Earl of Athol and David Earl of Straherne When Eufame his Wife dyed he Married Elizabeth Mure. After that by one Act of Parliament he made them first Noble that is to say John Earl of Carrick Robert Earl of Menteith and Alexander Earl of Buchquhane And shortly after by another Parliament he limited the Crown in Tail Successively to John Robert and Alexander his Children by Elizabeth Mure in Concubinate and after to the Children of Elizabeth Ross his Legitimate Children who are to this day in their issue by this limitation by authority of an Act of Parliament in Scotland barr'd from the Crown and we hope ever will be by the continuance of the Line of our most Gracious King For note that though a subsequent Marriage by the civil Law which is the Law of Scotland in such cases doth Legitimate the Children born before Marriage of a Concubine yet it is with this exception that they shall not be Legitimated to the prejudice of Children born afterwards in Marriage and before the Marriage of the Concubine Besides the reason of the Civil Law in Legitimating the Children upon a subsequent Marriage is this viz. a presumption that they were begotten affectu maritali which presumption fails where the man proceeds to Marry another woman and abandons or neglects his Concubine But I desire these Gentlemen that are so unwilling to be safe in their Religion which I believe is most dear unto them That if any Law should exceed the declared measures of the Legislative authority though in such Case they may have leave to doubt of the lawfulness of such a Law yet if it be not against any express Law of God they will upon a little consideration determin it lawful if it be necessary to the Common-weal for that nothing can be the concerns of men united in any Polity but may be govern'd and ordered by the Laws of their Legislature for publick good for by the reason of all political societies For further satisfaction of the lawfulness of the bill of exclusion See a Book called The great and weighty Consideration considered there is a submission made of all Rights especially of the Common Rights of that community to the Government of its own Laws But all this and a hundred times as much will not satisfy some Gentlemen of the lawfulness of our Government the extent of the Legislative power of Parliaments since they have entertained a Notion that Monarchy is jure divino unalterable in its descent by any Law of man for that it is subject to none That all Kings are alike absolute that their Will is a Law to all their Subjects That Parliaments the states of the Realm in their Conventions can be no more than the Monarcks Ministers acting under and by his appointment which he may exauctorate and turn out of Office when he pleaseth For there can be say they under the Sun no obliging Authority but that of Kings to whom God hath given a plenitude of power and what is derived from them That this Divine Absoluteness may Govern and exercise Royal power immensely and that it is subject to nor to be abated or restrained by any humane inventions or contrivances of men however necessary and convenient Kings have thought them in former Ages by such methods and such offices and Officers of which number the States of the Realm may be or not be as Kings shall please as they shall by their absolute Will order or appoint Our Parliaments say they are Rebellious and an Usurpation upon the unbounded Power of Kings which belongs to every King as such jure ordinario and by Divine institution That a mixt Monarchy as ours is is an Anarchy and that we are at present without a Government at least such as we ought to have and which God hath appointed and ordained for us That we by adhering to the present Government are Rebels to God Almighty and the Kings unlimited Power and Authority under him which no humane constitution no not the Will and Pleasure of Kings themselves can limit or restrain For that jura ordinaria divina non recipiunt modum That the Legislative Power is solely in the King and that the business of a Parliament if they would think of being only what they ought to be is only to declare on the behalf of themselves and the people that send them for that purpose certainly the obedience that is due from them to such Laws as the K. shall make and that they may be laid aside wholly when he pleaseth And after all this what matter 's it with them what we say our Government is hath been or where the Legislative Authority of the Nation is placed or how used But I desire these Gentlemen to consider how they come to these Notions upon what reason they are grounded How a Government established by God and Nature for all Mankind should remain a secret to all the wise good just and peaceable men of all Ages That Kings should not before this have understood their Authority when no pretences are omitted for encrease of power and enlargement of Empire I desire them to consider that this secret was not discovered to the World before the last Age and was a forerunner of our late unnatural War and is now again revived by the republishing of Sir Robert Filmers Books since the Discovery of the Popish Plot. I wish they would consider that the reasons ought to be as clear and evident as Demonstration that will warrant them to discost from the sense of all Mankind in a matter of such weight and moment That to mistake with confidence and overweening in this matter will be an unpardonable affront to the Common sense of Mankind and the greatest Violation of the Laws of modesty I desire that they would consider and rate the mischiefs that will certainly ensue upon this opinion and whether a probable reason can therefore support it That they would throughly weigh ponder and examine the Reasons of these bold and new Dogmata For their enquiries ought to be in proportion diligent and strict as the matter is of moment and if they are not their error and mistake will be very culpable and the sin of the error aggravated to the measure of the mischief which it produceth and occasioneth Where is the Charter of Kings from God Almighty to be read or found for nothing but the declared Will of God can warrant us to destroy our Government or to give up the Rights and Liberties of our people If they are lawful I am sure it is villany to betray them since all political Societies are framed that all may assist the Common Rights of
the King for that office the best of those they know which are many times most unfit But this may be remedied when his Majesty shall please to give leave to the Clergy of the Diocess to choose their own Diocesan their Choice notwithstanding submitted to the Kings approbation and Confirmation which was permitted by Justinian the Emperor and was in use in several of the best Ages of the Church or by some other method which may be advised by his great Council whereby the greatest assurance may be given that the best and fittest persons be preferred to Bishopricks for the Common people are envious and suspicious and what ever may be done by bad means they always think is so But if Bishops were promoted to their Sees with the gratulations and applauses of the whole body of the Clergy of the respective Diocesses all that passeth under their advice and consent would likely meet with the general satisfactions of the people as it would well deserve as long as the Clergy can have any Authority with them That is as long as the Nation continues Christian But the general Corruption of Manners and decay of Piety is the great and truest cause why the Bishops unenvied enjoy no part of that honour that our Ancestors Wisdome and Piety conferred upon their order conformably to all other the Ancient Christian Governments But when Virtue and Piety shall recover their esteem the reverence of the Clergy will return We are not like long to expect this happy Change for Vice is now arrived to a Plethora and like to burst by its own excesses And we well hope that the mischiefs which we suffer will cure that evil from whence they spring and prevent the greater Calamities that it further threatens However it becomes all good men to assist to support the present Government which is the cheapest the surest and the next way to arrive at a happy constitution of things This was the design of the Author of the Grand Question After the publication of that Book I laid by all thoughts of publishing this Treatise But perceiving that notwithstanding what he hath said the Right yet remains controverted and a Book is since printed wherein several things are objected in prejudice of this Right and more is expected I did review these Papers wherein I found I had prevented those objections and with a little application they would appear insignificant I did resolve to make this publick And besides that I apprehended some things material to the Question were omitted by the Grand Question that a several way of speaking things to the same purpose hath its advantage Our great Courts affect to have several arguments on the same side in great Causes and our Reporters publish them Besides herein several things are occasionally discourst of which makes it of further usefulness to the publick Our adversaries also were treated too kindly by him and had deserved sharper reflections than he makes upon them for their false and perverse Reasonings and ought to lose that reputation which they abuse to the hurt of the Government And further I thought it not for the honour of our faculty that never fails to supply the worst cause with Advocates That a question of this Nature wherein both Church and State Religion and our Civil Policy is concerned and the Right thereof not only clear and evident in it self but also useful to the State should have not one of the Robe to plead for it The friends of the Cause will not grudge to read two Books for the Right as well as several against it and the Adversaries of our Cause ought to suffer the like trouble themselves which they occasion to others These Considerations did induce me to publish this Treatise I am well pleased that I am ingaged in a good Cause that was suited to one of my slender Abilities Right is so strong an Argument for it self that it wants only light to discover it Whereas an unrighteous cause stands in need of disguisings and shadowings and all the Artifices and fetches of the Wit of abler men to give that a Colour at least which is destitute of Law and Right THE CONTENTS CHAP. I. THe Nature of the Right the obligation to use it the obvious indications of it and the benefit which may be reasonably expected in the exercise of it How it came to be drawn into question and how it can be fairly determined how it hath been opposed and upon what Reasons and Evidence the Right doth rely Chap. II. The general prejudice against this Right from an Opinion conceived that the Clergy ought not to intermeddle in Secular Affairs remov'd That Bishops have been employed in the greatest trusts by Emperors not hindred by the Church but this hath been envy'd to them by the Pope Chap. III. The Precedents that are produc'd from the Parliament Rolls against this Right are considered They prove not pertinent at most but bare Neglects not Argumentative or concluding against the Right Chap. IV. This Right cannot be prejudic'd by non user The Nature of Prescription that the Right in question is not prescriptible The Original of this Right that it is incident to Baronage The Bishops when made Barons and for what reason That all Offices whether by Tenure or Creation are Indivisable Chap. V. Bishops never pretended the Assise of Clarendon when said to be absent Bishops sat in Judgment upon Becket and his Crime and Charge Treason by which it is demonstrated that the Assise of Clarendon only put them at liberty but not under restraint from using their Right of Judging in Capital Causes Chap. VI. Bishops sat in Judgment upon John Earl of Moreton after King John the Bishop of Coventry c. for Treason Chap. VII An Opinion prevail'd and continued long that no Judgment in Parliament where the Bishops were absent was good and their absence assigned for Error to reverse Judgment in Treason in Parliament prov'd by the Petition of the Commons 21 R. 2. upon their protestation made 11 R. 2. And by that protestation it is evident they had a Right and that they saved it by that protestation They pretended they could not attend the matters then treated of by reason of the Canon But alledged no Law for their absence Chap. VIII Of Canons Canon law What effect Canons can have upon a Civil Right The Canons prohibiting the use proves the Right Chap. IX Bishops made their Proxies in Capital Causes which proves their Right and their thereby being virtually present and the lawfulness of making Proxies and such as they made Chap. X. A Repeal of the Parliament 21 R. 2. No prejudice to what the Bishops did in making their Proxies The Opinion of Bishops presence being necessary in Parliament continued in time of H. 5. Chap. XI Bishops actually exercised this Authority in 28 H. 6. in the Case of William de la Pool Duke of Suffolk Opinion of the Judges that Bishops ought to make Proxies in the Tryal of a
will take notice of nothing that is faulty in this Case but that this proceeding tends to abridge freedom of speech in Parliament which he loved from his youth which we do not blame in him As he did also to talk against Bishops which he cannot depart from when he is old But in the first of Hen. 4. this Judgment of Attainder was repealed and annull'd as he himself tells us Fol. 25. And here the Lords Spiritual were Judges which must be remark't for the honour of their Order that though they were the pars laesa by that fault such as it was yet notwithstanding they concurred readily to the repealing the Judgment But by this it appears that the Bishops did agreeable to their rightful Authority sit in Judgment in Parliament in capital Causes and therefore in consequence because it is a Case of his own production he ought to allow that the Bishops might have had Session in the Repeal of the Attainder of Roger Earl of March if it had been or could have been repealed by Judgment or a judicial Act of the Lords House For will this renownedly wise-man for avoiding of this his own testimony which he hath justly produced though it proves to testify against himself say that the Bishops can be present at repealing of a Judgment of Condemnation but not present at confirming any Doth not it in this proceeding come before them in Judgment and consideration Whether the sentence shall be repealed or affirmed and is not this with a witness a question of blood The Judgment being upon an appeal or review must be final peremptory and decretory and is more a question of blood than the Cause can be reckoned and deem'd to be upon the first Instance Or doth he think fit that there should be two sorts of Judges appointed a hanging Judge and a saving Judge if he doth I am sure he will not be able to find an employment for a just Judge So that I think to all men that can consider we have sufficiently vacated that testimony that the Cases of the Earl March and Haxey's seem'd to give against us and they are fairly come over to our side And we have provided herein sufficiently for the recovering of all men into an indifferency against the Prejudices this Octavo by its great Esteem hath done to their Judgments The Third Precedent is 15 E. 3. That Parliament was declared to be called for the Redress of the breach of the Laws and of the Peace of the Kingdom and as the Octavo hath it Fol. 8. because the Prelates were of opinion that it belonged not properly to them to give Councel about keeping the peace nor punishing such evils they went away by themselves and returned no more saith he but that is out of the Record so ready this Authour in Octavo is to shut them out of the House but I pray would not the Temporal Lords if the King had consulted the Parliament in matters Ecclesiastical have in like manner departed but would such departure of the Temporal Lords exclude them from having any thing to do in the Affairs of the Church Why then are the Bishops treated in their Right so unequally And this must serve for an Answer to the Folio p. 17. where he is very large in reciting Records of process and Proclamation against the Earl of Northumberland agreed only by Lords If a Liturgy or book of Canons were to be established by Law the Bishops certainly would have the forming of them The Octavo saith that Commissions were then framed by the Counts Barons and other Grants and brought into Parliament but no Bishop was present so much as to hear the Commissions read because they were to enquire into all Crimes as well Capital as others And for affirming this for all that can appear to us he only consulted his Will and pleasure like an honest man to the cause he defends for he hath not told us from any Record what the Nature of these Commissions were But we observe that though this Parliament was called for matters of the peace yet the Bishops had their Summons and it was not a Parliament excluso Clero The Bishops it seems upon the opening of the Parliament and the causes of convening modestly it seem'd declared that they were not competent as not perhaps studied in Pleas of the Crown or perhaps had not been so observant in fact of the matters of grievance What harm in all this they that cannot propound may judge of Expedients propounded and so did they for it doth appear by the Record 6 E. 3. N. 3. that the Results of the Temporal Lords were approved in full Parliament by the King Bishops Lords and Commons which the Folio agrees But it seems modesty is a dangerous thing and not to be forward to judge and determine though the matter be not understood may be a good Cause to turn a Judge out of his Office and forfeit his Judicature Besides the principal business of this Parliament was Legislation in which the Prelates have an undisputed Right of Session and may they not advise upon what they make into a Law May not they consider of the matter that is to pass into a Law in all the steps it makes But it is admirable what the Folio Book saith viz. that by this Record it is evident that the Prelates have no judicial power over any personal Crimes which are not Parliamentary I suppose he means Crimes not debated in Parliament This doth very much fortify the foundations and grounds of his discourse What are the grounds of his discourse I shall never be able to find out except it be an over-weening Opinion of himself to meddle with these matters which seem too high for him and to which the reading of my Lords Cooks Institutes and the broken Commentaries of the Law will never render any man competent It s true the Bishops have never any power and Cognizance of any Causes except they are commissionated thereto out of Parliament But as true it is of the Temporal Lords and therefore whatsoever advantage this will do his Cause with all my heart let him take it The next Case produced as a Precedent for them is the Case of Sir William de La Zouch and Sir John Gray for a quarrel in the Kings presence they were both committed to the Tower and after brought into Parliament no Bishops there It is a Case that could not be judged there neither was it but one of them was discharged because no probable matter of offence against him and the other remanded to the Tower I suppose to be proceeded against as the Law required Is this cause I pray to his purpose have not the Prelates judgment in causes of Trespass that properly come before that House by his own Confession And yet the Octavo remarks here that no Bishops were present to judge so much as of a Battery though the Record warrants him to say only an Assault But out of his great
sincerity and to make a Precedent where he could not find one for his turn he foists a Battery into the Case hoping that then the forward Reader would supply the Rest and smell blood in the Case which must be interdicted to a Bishops Cognizance But observe what an aking-tooth he hath against the Bishops Right for he could not but have in his mind what almost immediately after he writes down in his Octavo viz. the Case of Sir John Lee 24 E. 3. and of several persons 50 E. 3. and 51 E. 3. censured in Parliament by Bishops for misdemeanors And he saith well they might which certainly together with the Case of Michael de la Pooll 10 R. 2. he troubled himself to transcribe to make a shew of Number and false musters a sleight that must not pass upon the people and a Stratagem that will never get him any advantage towards a Victory We omitted to consider the Case of Sir William de Thorpe 50 E. 3. as it lies in order in his Book because we thought it more expedite to examine those that spake to the same thing together but now we will examine it The Record of a Judgment of death against him for Buggery was brought into Parliament saith the Octavo in full Parliament saith Sir Robert Cotton and the King caused it to be read before the Grants in Parliament The Bishops saith the Octavo could not be there because this was no imployment for them and thus he proves his cause it was so because it was so And for want of proof concludes he hath a very good Cause But he knows if he would tell us the truth that a full Parliament doth include Bishops that the Bishops are truly Grants and so called that the Bishops could not vanish away at the putting of the question But we should have had a most famous Record of that story and wonderful Accident The Cause of William de Weston and John de Gomenits 1 R. 2. was for traiterously surrendring Towns and Castles in Flanders to the Kings Enemies And the question was whether they behaved themselves well in their defence and did therein like valiant and faithful Commanders Whether the Towns could be preserved against the strength of the Enemies that did attach them Indeed not a very proper question for a Bishop to determine The Examination of the Charge and defence was committed to several Lords Temporal named in the Record But it must be observed though these Lords managed the Cause found the Towns upon Examination not of necessity but willfully delivered and agreed what Judgment should be pronounced against them Yet observe their Answers were put in full Parliament When the Judgment was pronouncing there was likewise sitting a full Parliament which the Octavo doth wilfully omit And the Record further saith that they were brought before the Seigniors in Parliament Friday the 27. of November and again before the said Lords Saturday the 28. of Nov. That all this while in the Record there is no mention of the Names of any particular Lords so that we hear nothing yet in the Record but of a full Parliament Seigniors in Parliament which are the most comprehensive terms and can and do include Bishops and strongly intend them included He that saith all excepts none the Record saith that when the Judgment was to be pronounced Les Seigniors dudit Parliament cestascavoir and then names the Duke of Lancaster Earls of Cambridge March Arundel Warwick Stafford Suffolk Salisbury Northumberland Lord Nevil and Clifford and other Lords Barons and Bannerets being then in Parliament had met and advised upon the matters before These Lords agreed it seems the Judgment for the whole House and it was pronounced in full Parliament and that in the Names and Authority of the whole Parliament Pray let it be observed that when the Record speaks of Seigniors in the first part of it no Lords are named and so all intended when afterwards he mentions the Lords the Record saith avantdits or foresaid Lords and no Lords named yet so that all the Lords of Parliament are then likewise included But when he names the Lords that had advised there is no avantdits or aforesaid Though the Octavo puts the avantdits or the aforesaid to the named Lords to the purpose that it may seem that no Lords were present in this Cause before in Parliament but those named and mentioned amongst the which there were no Bishops against the Faith of the Record To the Record I appeal Rot. Parl. 1 R. 2. Mem. 5. The next is Sir Ralph Ferrers his Case 4 R. 2. He was brought into Parliament and there tryed for Treason in holding intelligence with the French The Entry is It seem'd to the Lords of the Parliament that the said Sir Ralph was innocent This testimony too is argumentative and concludes Bishops not there because not expresly mentioned as they were in Alice Perries Case 1 R. 2. I never could have a good opinion of a cause that hath nothing but argumentative proofs for this reason because there are more things possible than ever happen'd but a reasoning Witness is always accounted a willing Witness and therefore a Witness suspectae fidei but most certain a Witness with a reason His testimony is no better than his reason But I pray must the Entries of the Clerks be so nicely weighed Are they so oracularly penned that every iota of the Journal must comprehend a Mystery of State and carry in it the very constitution of the Government must that be such and no other than short or large Entries make it Must a Criticism upon the Clerks form of Entry alter and refix the Government must it change and be ambulatory at the haste or leasure the short or more large Entry of the Clerk Did ever any wise man before this Criticiser ever determine questions of the greatest moment upon such trifling considerations or suspend the most momentous concerns of a Nation the very Government it self upon such a very slender thread But to leave no scope for such Cavillations we will turn him to the Parl. Rolls of 14 E. 3. Were not the Grants the Bishops as well as the Temporal Lords Are not both Bishops and Peers called Seigniors Are not Seigniors and Grants of the same import And as certainly this argumentative testimony makes no credit to the Cause nor to the Author of the Octavo who produc'd it The next Case is of the Bishop of Norwich 7 R. 2. who is brought to Judgment in Parliament amongst other offences for betraying Graveling to the French which was Treason And this cause the Record saith was heard before the Lords Temporal And here I will agree that the Bishops were not present but I will not allow that they were excluded And if that addition of Temporal had been to the Seigniors in Sir Ralph Ferrers Case or to the Grants in Sir Wil. Thorps I would have allowed the Bishops in those Cases not present likewise But why I pray may
it not be with as much fairness concluded that the Bishops were present because the addition of Temporal is not made to Seigniors and Grants in the said Cases of Sir Ralph Ferrers and Sir Wil. Thorp as it can be that they were absent in the hearing of the said Cases because the word Prelate or Bishop is not in those Entries expressed If he will be just and change the Tables He must yield us the Argument for he knows that there is no establishment in the Modus tenendi Parliamentum directing the Forms of Entries or any solemnes formulae whose import and value is ascertained and made indisputable but are to be expounded by an easy interpretation such as we use when we make fair constructions in common speech But to give this another Answer The Arguer is herein guilty of that fallacy which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or non causa pro causa And his Witness doth not speak ad idem The Bishop was an Ecclesiastical person and though the Bishops might try a Temporal Lord for the same offence yet they would not consent to try a Bishop and forgo that great priviledge of the Clergy with so much earnestness defended in that Age to be exempt from secular Judicatures They would not be present to try because of the person of the Defendant which cannot be drawn into Argument to prove that they had no cognizance of the Cause with any fairness But further the Octavo doth afterwards produce a Testimony that doth contradict this last Testimony in the point for which he produc'd it It is the Case of Thomas Arundel Arch-Bishop of Canterbury 21 R. 2. The Bishops pronounced Judgment against him in Treason by their Proxy They can it seems upon great Reasons wave that priviledge and submit a great Malefactor of their own Order to Justice as they did in the Case of Becket heretofore So that you see here they used a Jurisdiction in a Cause of Treason in the Case of Thomas Arundel which the Bishops could not have used without a Right And the Case of the Bishop of Norwich is only an omission consistent with a Right The Case of Sir William Rikehill is next in order who was sent by R. 2. to Calais to take the Confession of the Duke of Glocester who soon after was Murdered The Judge was arrested and brought into Parliament before the King Lords Spiritual and Temporal and Commons the whole matter was examined and the Judge was examined Here is likewise a clear Case for the Bishops an Instance wherein they did take cognizance of a Capital Cause in Parliament But the Octavo hath a Shift for us and says that there was no impeachment or charge against the Judge and so the Bishops might be present at his Examination Let the Reader here observe the sleights wriglings and prevarications of this Octavo Author Whatever the World thinks of this Author I am much dissatisfyed about him and cannot believe him a man indifferent and impartial in this Enquiry In his observations of the Parliament of the 15 E. 3. the Bishops he saith vanished like lightning they went away immediately at the opening That matters of the Peace in general were to be treated of wherein Blood and Member might not at all be concerned for all that appears They went away and as he would have it they returned no more and they must not hear so much as a Commission of the Peace read But here in this Case of Rikehill they may examine a Murder He will say I am sure that though the Bishops did examine it they could make no judgment of the matter But who will believe him In the Case of de la Zouch and Gray he observes that Bishops could not be present so much as at a Battery though there was no Battery in the Case and yet he allows them to judge of all misdemeanors in the same little Book I observe but these things of many more of like nature which the Reader may observe of himself in that little Octavo that the World may judge how unjustly he deals in this Cause with what iniquity and prevarication he manages a noble question of Right concerning the Government of the Kingdom With what petulancy spight and inveterate displeasure he useth the Bishops That he is grinning at them whetting his teeth and squinting upon them perpetually with an evil Eye He oppugns their Right with Cavillations upon the Clerks Entries with what is in the Record and what is not and what he is pleased to add of his own upon them and with Precedents that reprove one another Had it not been more fair for him to have stated the Right upon a probable result of all the Records considered together than to make their Right sometimes more sometimes less sometimes to affirm sometimes to deny their Right in the same little Octavo He cannot sure think that every Judgment that hath been given upon deliberation in the greatest Judicature can uncontroulably make the Law much less a Fact much less an Omission a Negative that can operate nothing If nothing be Law but what hath always and constantly been done in the same manner and form and all circumstances the same as this Author it seems would have it and nothing true Theology according to Vincentius Lirinensis his Rule but what hath been received ab omnibus ubique semper We can have no Law nor no Theology Vain and idle opinions must be discharged such as can have no consideration with wise men and the Law must be declared by the Nature of Government reason and the general order of things But we have made too long an Excursion We must return to a further consideration of Rikehil his Case And now I submit it to any impartial man whether the Judge could be arrested and brought under an Arrest into the Parliament and be examined and not accused The very next Case he recites is that of John Hall in which we find nothing but an Examination and confessal upon which he was condemned as a Traytor And so would it have fared with Sir William Rikehil without doubt if he had been guilty and had confessed Neither the Octavo nor Sir Robert Cotton mentions any formality more against the one than the other The House of Lords are not tyed to Formalities in their proceedings like other inferior Judicatures and the more inferior any Court is the more regular forms are exacted and that with great reason which we will not hear treat of Besides in the Case of the Earl of Northumberland recited in the Octavo Book Fol. 34. in 5 H. 4. a Judgment was given against him for an offence upon a petition which he exhibited for a pardon of the same offence But in the Case of the Earl of Northumberland I pray observe what the Octavo saith in reference to our question After he hath recited part of the Record in these words The petition being read and understood the Lords as Peers of Parliament
the great convulsions of State and the simultates amongst the Great men and extravagant excesses of injustice to the glory and honour of the Bishops it must ever be remembred that they did preserve themselves from being ingaged in such violences as were committed against the last mentioned Lords But that the Author of the Octavo should produce the Case of Sir John Mortimer against us who was condemned upon a bare Indictment without Arraignment or due Tryal a good reason why the Bishops were not there when he immediately after produceth the Case of the Duke of Suffolk wherein the Bishops were present and will have it stand for nothing because in that it was irregularly proceeded is monstrous partiality and iniquity But in what I pray was the irregularity in the Case of the Duke of Suffolk Why because the Commons desired he might be committed upon a general Accusation But he was not And the second irregularity was that some Prelates and some Lords should be sent down to the House of Commons which is often done But it is not the Prelates that he is thus concerned for but that the Lords lessened their Estate This to excuse him might make him very angry with that Case and quarrelsome And yet after all there is a fallacy in the Case of Sir John Mortimer which he would put upon us for Sir John Mortimer was condemned by Act of Parliament and therefore the Bishops might have been there if they had pleased and that with his leave For it was by the Duke of Glocester who in the Kings absence was commissionated to call and hold that Parliament by the Advice of the Lords Temporal at the prayer of the whole Commonalty in this present Parliament and by the Authority thereof ordered and decreed that he should be led to the Tower and from thence drawn to Tyburn I cannot therefore but observe how by the pretence of the Canon a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes and by other prudent Arts and Recesses from tumultuations the Bishops kept themselves often from being engaged in the Animosities of Great men against one another A matter remarkable for the commendation of their Exemplary Wisdom and Justice and a Recommendation of the men of that Order to be continued in the greatest trusts that the Government hath committed to them But now shortly and summarily to review what we have offered in the matter of Precedents and together to consider what true value and weight they are of in the Cases of Roger Mortimer and Haxey and of Sir John Mortimer 2 H. 6. every body may see a reason why the Bishops should not act if they had Authority and therefore without wilfulness it cannot be concluded they had none Who sees not that these Cases are Precedents for us for that the Bishops judged in the Reversal of the sentence against Haxey which if they had reason for it they ought to have affirmed And the Bishops might have been present rightfully at the undoing the Attainder of Roger Mortimer by the Confessions of these Authors The Proceedings in the Parliament of 15 E. 3. is a true argument of the Bishops modesty But it proves more than he is willing to prove if true viz. that the Bishops cannot joyn in making Laws to punish publick Crimes and therefore logically concludes nothing besides that the matter is false in fact as it is alledged The Cases of Sir William Thorpe and Sir Ralph Ferrers taken at best for him are but militant and have as much to say for as against the Bishops being there present But to be true to the cause of the Bishops We have this advantage against him that the Bishops were always in the possession of their Right because never fore-judged and it was once theirs as we shall prove by and by And this makes a presumption that they always used it when there is nothing to the contrary The Bishops were not present in the Bishop of Norwich's Case but the Bishops may be at any time absent upon a sontica Causa The defendant was a Bishop which was a very allowable one in those times But this must be considered with the Case of Thomas Arundel Bishop of Canterbury in whose judgment they were present virtually by their Proxy and therefore had a Right to be there The Case of John de Gomets and William de Weston is unduely and against the faith of the Record produced against us for upon the truth of the Record the Bishops were present notwithstanding any thing that can be from thence deduced to the contrary The Case of Sir William Rikehil 1 H. 4. is for us so is the Case of the Earl of Northumberland 5 H. 4. The Case of John Hall who murdered the Duke of Glocester and of the two Merchants that killed John Imperial the Genoua Ambassadour 3 R. 2. are foreign to this question and so is the Case of Sir John Mortimer except Judicial Authority and Legislative Authority in Blood are of the same consideration as I think they are and shall hereafter make out to be probable and then those Cases are for our Right They confess that the Bishops might have been present if they pleased and their absence at the passing of those Bills doth not conclude against their Right themselves being Judges The Writ de haeretico comburendo is of another consideration and doth not fall in with the present question There was no Judgment given or to be given in the Cases of the Earl of Huntingdon Kent Salisbury Lord Le Despencer Sir Ralph Lumley the Earl of Northumberland and Lord Bardolph All these Precedents such as they are happened in no long Tract of time but very tumultuous Not one of them pretends to be an exclusion of the Bishops upon Judgment or positive declaration of State They pretend to be only instances of Omission or non user which may well consist with a Right And yet contrary to the true import of these Precedents and the true Nature of them being only of Omission and absence of the Prelates which as they are can make no induction or establish any proposition whereupon to frame an Argument or conclude a prescription Besides that a prescription is not possible in a meer negative and to and of nothing And where no body can use or possess that Authority in pretence in the defailance of the party to use it whose Right it was Besides that it is not a prescriptible matter which we shall further explain hereafter it being in a matter of the Government and a Right arising from its constitution Contrary I say to the whole nature of the matter He makes this Argument à saepe facto ad jus valet argumentum His Argument should have been if agreeable at all to the matter this That where a Right is sometimes not used there can be no Right But if this had been said in English every body would have condemned his reasoning and disallowed if not laughed at the Argument So that we have
redigerent Quod cum factum fuisset praecepit Rex Archiepiscopis Episcopis ut sigilla sua apponerent scripto illi cum caeteri proni essent ad faciendum Archiepiscopus Cantuariensis juravit quod nunquam scripto illi sigillum suum apponeret nec leges illas confirmaret If this was not an encroaching Royall power there was never any such fault when he was grown so great that the King himself must supplicate that the great men of that time though passionataly interceding on the behalf of the King could obtain no peace for the King That an Ambassadour from the Pope and Cardinals must be sent to command him to be reconciled to the King That he did make a shew of being the Kings friend and did promise to be at peace with the King and keep his Laws at the Popes Command But of this too he soon repented and said he would sin no more Was not this man a Traytor at Common Law before the 25 of Ed. 3. doth not the reason of the Government declare and pronounce him so And doth the Octavo Author think that a Parliament would not use the declarative power by that Statute reserved to declare such offences as these Treason If the like case should happen would not he himself be the likelyest man to be formost in the impeachment But Gervasius Dorobernensis goes on and tells us that afterwards Becket did voluntary penance for the aforesaid promise made to the King and of his submission to his Laws and stood out in disobedience That the King did cast about and study quomodo vel qua arte constantiam Archiepiscopi conterere valeret vel elidere virtutem Col. 1388. But see in what respectful terms their Author in the meantime speaks of this Becket We may be sure we can have nothing from them that is true if it makes the Cause of this contumacious rebellious man bad But at last the Kings patience is turned into Anger For Gervasius goes on Col. 1388. and saith Timens autem Rex Angliae ne impune manus ejus Cantuariensis Episcopus evaderet jam edoctus multiplici Cogitatione pravorum Eruditione quibus eum pravitatis laqueis innodaret Praecepit Praesules Proceres Regni apud Northamptonian unà cum Archiepiscopo ipso convenire qui cum tertia die convenissent Archiepiscopus in multis est accusatus And no man can believe his accusation was less than Treason that will believe what is said by all Historians of Beckets Rebellious behaviour against the King and the Kings anger conceived his threatning him with death and the convening of this Parliament lest he should escape unpunisht And especially that will observe the partiality of this Gervasius against the King and in favour of Becket For he said as is before observed and cited that now the King was edoctus multiplici cogitatione that now the King with much thought and the Advice of wicked men was instructed how he might ensnare him with evil Arts and for that purpose this Parliament was convened And yet in particular this Gervasius and Fitz-Stephen his faithful friend who accompanied Becket in his troubles mentions only two faults whereof he is accused viz. of injustice in the Case of John the Marshall and of his own Contumacy in not obeying the Kings Summons Fitz-Stephen Hoveden and Gervasius tell us that to the two particulars Becket made his defence Gervasius and Hoveden tells us what defence he made which the Octavo hath faithfully transcribed to do him right I wish he had observed the whole story then he would have saved me this trouble of bringing it into the view of the World The Article wherein he is charged for not doing Justice to John Marshall is answered by laying the fault upon Marshall himself for abusing the Court bringing veterum Cantuum Codicillum to swear upon refusing to swear sub Evangelium ut moris est The other Article he answered proving by two sufficient Witnesses that it was sickness hindred him and not any contempt Very sufficient Answers to those two Articles and certainly the Parliament that was called only for to punish Becket might have well acquitted him and returned home and a weighty cause this was to convene a Parliament But these were but two of those many things for multis est accusatus saith Gervasius and of the least offence besides that they were fully answered in any mans judgment that hath read the Story of Becket of which he stood accused By what I have here transcribed it appears that he was certainly guilty of Treason That the Parliament was called to punish him The King was enraged and that justly and therefore he was most certainly accused of Treason Gervasius goes on and tells us that his rationibus meaning that he offered in excuse of himself in the business of Marshall and his own contempt Archiepiscous excusari non potuit sed Curiali judicio Assensa Episcoporum condemnatus est ita ut omnia ejus bona in misericordia Regis ponerentur And yet the prosecution went on The Bishops are consulted with by Becket how he should behave himself Thus Gervasius tells us Coll. 1398. You may best understand the Nature of the prosecution and Beckets danger by the advice of some of his Suffragan Bishops The Bishop of London thus adviseth Si pater inquit recolis unde te Dominus Rex sustulit quid tibi contulit consideratâ temporum malitiâ quam Ruinam Ecclesiae nobis omnibus paraveris si in his Regi resistere volueris non solum Archiepscopatui Cantuariae sed in decuplo si tanti fuerit cedere deberes Could all this danger grow from less than Treason Could a bare neglect to answer a Summons where he excused his default sufficiently or refusing to proceed in the Case of Marshall for that he did presumptuously trifle with the Court and prophanely offered to be Sworn upon a Song-book put the whole Church and himself in danger big enough to be redeemed with ten times the value of the Bishoprick of Canterbury The Bishop of Lincoln speaks in Gervasius these Words Patet inquam vitam istius hominis sanguinem quaeri necessario alterum horum erit aut Archiepiscopatui aut vitae cedendum The Bishop of Exeter thus Palam est quoniam dies mali sunt si possumus sub dissimulationis umbrâ hujus tempestatis impetum pertransire illaesos And after he saith satis est unum Caput in parte periclitari quam totam Anglicanam Ecclesiam inevitabili exponere discrimini The Bishop of Worcester saith Gervasius being asked what he thought ita temperavit Responsum ut negando palam secerit quid animi haberet The Bishop of Ely was sick The Bishop of Norwich the same Author saith excused himself secreto asserens Eliensem foeliciter adeò defensum quod ipse vellet simili plagâ percelli for he had heard saith our Author quid Rex conceperat contra Cantuariensem Becket not
resolved what to do desired of the Earls of Leicester and Cornwall that he might have time untill the morrow And the morrow being Sunday time was given until the Munday and then the Bishops came to Becket and advised him for avoiding danger and scandal to submit himself to the Kings Will which if he should do jam audierint in Curiâ Regis perjurii Crimen sibi imponi tanquam proditorem judicandum eò quod terreno Domino honorem terrenum non servaret cum avitas consuetudines Regni observaturum firmasset ad quas specialiter observare jurisjurandi nova se illos astrixerat Religione And now sure it will be believed that Becket was accused in this Parliament of Treason for Treason was his Crime not allowing the King with the consent of his States to make any Laws but such as he should approve aggravated with perjury for he had sworn himself to observe them After Becket had given the Bishops an obstinate and resolute Answer to adhere to his Treasonable Practices to disallow the Authority of the King and States in the Laws called the Assise of Clarendon and to oppose the observance of them Observe what Gervasius saith discesserunt Episcopi ad Curiam properantes By and by Becket comes too but the Bishops were there before him carrying the Cross himself which the King as well as the Bishops took to be a coming armed Upon which saith Gervasius vocatis Episcopis proceribus gravem grandem Rex deponit querimoniam quod Archiepiscopus sic armatus in Curiam veniens ipsum suos omnes inauditâ saeculis formâ naevo notaverit proditoris Whereupon the Bishops by the Mouth of Hilaris Cicestrensis a Bishop more eloquent than the rest thus said to Becket Quandoque ait fuisti Archiepiscopus tenebamur tibi obedire sed quia Domino Regi fidelitatem jurasti hoc est vitam membra terrenam dignitatem sibi per te salvam fore consuetudines quas ipse repetit conservandas tu niteris eas destruere cum praecipue spectant ad terrenam sui degnitatem honorem idcirco te reum perjurii dicimus perjuro Archiepiscopo de caetero obedire non habemus This I take to be a judging in Treason But this the Bishops did for their part as Bishops and Suffragans they did withdraw their obedience from their Metropolitan which was as much as in them lay to deprive him a conviction it was of the Guilt not indeed judicium sanguinis But this is not all for observe what our said Author saith further they going away the King saith to them discernite quid perjurus contumax proditor debeat sustinere Itur judicatur à quo vel qualiter judicium pronuntiandum esset informatur In which matter Stephanides as he is cited by Mr. Selden in his Titles of Honour in the Folio Edition fol. 705. tells us how it was consulted and debated between the Bishops the Spiritual Barons and the Temporal Barons for saith he de proferendo judicio distantia fuit inter Episcopos Barones utrisque alteri illud imponentibus utrisque se excusantibus Aiunt Barones vos Episcopi pronuntiare debetis sententiam ad nos non pertinet nos Laici sumus vos personae Ecclesiasticae sicut ille Consacerdotes ejus Coepiscopi ejus Ad haec aliquis Episcoporum Imo vestri potius est hoc officii non nostri non enim est hoc judicium Ecclesiasticum sed Seculare non sedemus hic Episcopi sed Barones Nos Barones vos Barones pares hic sumus Ordinis autem Nostri rationi frustra innitimini quia si in nobis ordinationem attenditis in ipso similiter attendere debetis eo autem ipso quod Episcopi sumus non possumus Archiepiscopum dominum nostrum judicare By which dispute by the way it doth appear that both the Bishops and Temporal Lords did take themselves to be equally constituted Judges and Peers by reason of their common Baronage in this Case of Becket a Cause of Treason the Bishops owned and avowed a Right of judging him as Barons They did not excuse themselves upon the score of the Canon alledged but from the indecency in respect of the relation that they stood in to the Criminal he being their Superiour and Metropolitan they seem'd willing to decline the making of the Sentence Whether any Judgment was pronounced by whom or what the Judgment was is not certain the Historians differing thereupon But when he went out of the Court he was call'd by the people as he past Traytor and perjured Traytor as the King before had called him And if this be not the clearest proof of Beckets being accused of Treason and the Bishops judging in a capital Cause in Parliament there can be nothing proved to satisfaction Besides that all that writ of his story are unwilling Witnesses they magnify excuse and justify the man all along extolling his virtues They call him Saint Pater Patriae so Gervasius does Coll. 1393. and Martyr Let the Reader consider what is here faithfully recited and then let him tell what Opinion he hath of the Candor of the Octavo Gentleman who could find no fault in Thomas Becket for he saith Folio 62. That Gervasius Dorobernensis saith that Becket was charged with two things Injustice to John Marshall and his own contempt in not appearing to the Kings Summons This Author had nothing of his own knowledge to charge upon him and saith that Stephanides is not to be regarded because he was Beckets friend and an obscure Author it may be not yet come into his Study The Author had reason to see no faults in Becket or to forget them all for the good service the insolencies of that man hath done towards the Scandal of the Order But we have not mispent our own time neither will the Reader regret our length in this matter for this single Case consider'd gives a Resolution to the Question and puts the Right of the Bishops to sit in capital Causes out of all doubt This Case will let in light for the true understanding of the Assise of Clarendon For it must be noted that the Great Parliament of Clarendon was held by Henry the 2. about the latter end of January in the tenth year of his Reign the Bishops and Lords were all Sworn to observe the Statutes there made called the Assise of Clarendon called the Avitae consuetudines Regni of which the Law aforementioned was one This Law therefore must be interpreted in such a sense for that the words will bear it and can be intended in no other than that which may consist with the proceedings in the Case of Arch-Bishop Becket and with the Oaths of all the Bishops and Peers and the great men taken but a short time before to observe the Statutes of Clarendon Now if the whole Order of capital Causes had been intended to be excepted by that Statute above
Regni 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
Law was publickly professed in England before the end of the 12th Century for Mat. Paris tells us of a Monk of Evesham Anno Dom. 1196. that suo tempore eorum quos Decretistas Legistas appellant peritissimus habebatur earum etiam facultatum auditores quamplurimos instituerat and from that time the study of the Caesarean and Pontificial Law did flourish amongst us until the beginning of E. 3. But in all that time saith Mr. Selden in his Fleta gens ipsa Anglicana ac qui in judiciis praeerant morum patriorum viz. Juris Communis Angliae per intervallum illud tenacissimi fuere A remarkable instance we have of this Nations steady aversion from admitting here either the Civil or Canon Law in the Parliament of Merton which rejected a Bill for Legitimation of Children born before marriage in Concubinate in these Terms Nolumus leges Angliae mutari meaning that they would not make Laws conformable to the Civil or Canon Law The great Policy that the Popes used to effect their Ambitious design of making themselves Monarchs of the Christian World were The assuming to themselves the entire rule and Government of Religion and endeavouring to make every where the Bishops and the whole Clergy together with the Regulars dependant upon them by pretending them to be exempt from all Civil Authority and Jurisdiction and by interdicting to them the exercise of any Civil Authority and shutting them out from all intromissions into the Civil Government and from any interest or dependance thereupon So far as he prevailed in these designs he acquired an Imperium in Imperio and if besides these he could have fixt a Spiritual handle to the Temporal Sword and have got the Government of secular affairs in ordine ad spiritualia his design had been compleated and he had arrived to a more absolute and extensive Empire than that of the Roman Caesars To these purposes the Canon Law provided that the Ecclesiasticks were neither to exercise nor be subject to any Civil Authority But this policy of the Pope had no success in England the endeavours of the Papalins herein met with constant opposition and at last they were made desperate by the Assise of Clarendon where it was declared and enacted accordingly agreeable to the Avitae Consuetudines Regni that the Bishops should be retained and continue to be a part of the Government and exercise Jurisdiction in all Causes in the Kings Court as other Barons as is before observed and that the Clergy should stand submitted to the Jurisdiction of the Kings Courts For this purpose it was also in that Parliament enacted as followeth Si controversia emerserit inter Laicos vel Laicos Clericos in Curia Domini Regis tractetur determinetur and also quod clerici rectati accusati de quacunque re summoniti à Justitia Regis venient in Curiam Domini Regis responsuri ibidem c. And so far were the Bishops and Clergy from observing that part of the Canon Law that was to detrude them from all secular Authority and Jurisdiction that they were from time to time Chancellors Treasurers Keepers of the Privy Seal and Judges and while that Ancient Office continued of Capitalis Justiciarius Angliae to whom was committed the Justice of the Kingdom who were called Custodes Regni Vice-Domini Angliae and sometimes the abstract Justitia He did preside in the Curia Regis which Office was afterwards divided for there were Justitiarii Angliae Boreales Justitiarii Angliae Australes this Office was often executed by Bishops as you may see in Sir Hen. Spelmans Glossary in the word Justitiarius Bishops and Church-men administred the greatest Offices of State and Justice this was matter of Envy to the Temporal Lords and they complain'd in Parliament 45 E. 3. as is before observed That the Government of the Kingdom had been a long time in the hand of the Clergy Mr. Selden in his Fleta tells us that in the times before and after the Assise of Clarendon Mos fuit Judices Regios ex genere hieratico veluti Episcopis Abbatibus Decanis id genus aliis constituendi And it is provided by 28 E. 1. Cap. 3. That if a Clergy-man was a Judge of Assise another should be joyned in Commission with him to deliver the Goals which was to the end that the Ecclesiastical Judge might use that liberty which was indulged to him by the Assise of Clarendon of not pronouncing the Sentence for it must be observed that by that Statute a Clergy-man might be a Judge in a Goal-delivery for that a Laick was by the provision of that Statute to be join'd to him in Commission and Pleas of the Crown are to be found purporting them to be held before two Judges whereof one a Clerk after this Law which could not possibly have been if the Clerk had not been in Commission Besides for after Ages it is well known that all the great Officers and Ministers of State and Justice have been always intrusted with the conservancy of the peace are in Commissions of the peace and Commissioners of Oyer and Terminer for judging capital Causes so that the constant practice in all times as well as the express declaration of the Assise of Clarendon doth assure us that the Canon Law that prohibits Clergy-men being Judges in capital Causes was never received here or became the common Law of England Besides what regard our Clergy had of the Canon Law what opinion they had of the Right in question and how far the Laws did intend to prohibit the exercise of it And that such right was used and exercised will appear by the Canon of Toledo Concil Toletan 11. Cap. 6. fo 553. and the Canon of Lanfrank Spelmans Concil 2 vol. fol. 11. these were made before the Assise of Clarendon That of Toledo is this His à quibus Domini Sacramenta tractanda sunt judicium sanguinis agitare non licet ideo magnopere talium excessibus prohibendum est ne qui praesumptionis motibus agitati aut quod morte plectendum est sententia propria judicandi mant aut truncationes quaslibet membrorum quibuslibet personis aut per se inferant aut inferendas precipiant This being a Foreign Council this Canon carries not with it the Authority of a Canon with us only we may observe whatever the Opinion of that Council was that it was not convenient for licet can have no ocher sence here for Clergy-men agitare judicium Sanguinis Yet this Canon prohibits only the pronouncing the Sentence by themselves or others I am sure that by a positive Law as this Canon must be so far as it participates of the nature of a Law nothing becomes unlawful but what is forbidden whatever the reason be of that Prohibition That of Lanfrank follows thus Vt nullus Episcopus vel Abbas seu quilibet ex Clero hominem occidendum vel membris truncandam judicet vel judicantibus suae authoritatis favorem
yet when the business of the Parliament was extraordinary the Writs of Summons both to the Prelates and Barons had a Premonition that a Proxy should not be allowed unless they could not possibly be present dors claus 6 E. 3. m. 36. claus 1 R. 2. m. 37. 2 R. 2. m. 29. Nor was it unusual with the Prelates to make such their Procurators who were no Members of that House In that Parliament of Carlisle under E. 1. the Bishop of Exeter sends to the Parliament Henry de Pinkney Parson of Haughton as his Proxy The Bishop of Bath and Wells sends William of Charleton a Canon of his Church In the Parliament 17 R. 2. the Bishop of Norwich made Michael Cergeaux Dean of the Arches and others his Procurators In the same year the Bishop of Durham his Proxies are John of Burton Canon of Beudly and others In the Statute of Praemunire 16 R. 2. cap. 5. it is said that the advice of the Lords Spiritual being present and of the Procurators of them that were absent was demanded This making of others then Barons of Parliament Proxies is not without President likewise in the case of Temporal Lords Lit. Procurator Parl. 4 H. 5. Thomas de la War gave his Procuratory Letters to John Frank and Richard Hulme Clerks So that it appears that by the Law of Parliament the Proxies of the Bishops in the 21th of R. 2. were legal Proxies and consequently the Bishops there virtually Besides that the lawfulness thereof doth appear for that it was required of them by the Parliament that they should make their Proxies and be present by their Procurators for this reason lest otherwise the Proceedings in that Parliament should be void CHAP. X. IT is true that the Parliament 21 R. 2. was wholly repealed by 1 H. 4. but that was for a good reason indeed because that Parliament of 21 R. 2. had delegated their whole power to a few of their number who finally without any resort back to the House made and past Laws But did ever any man before the Octavo argue at this rate that because there is one error in a case for which the Judgment is reversed that therefore there was nothing in the case legal and well considered And therefore how unreasonable and false this way of arguing is and that it is disputing against fact we shall further shew and prove For a probable Opinion still continued of the necessity of the Bishops sitting which implies a clear Recognition of a Right for in the 2 H. 5 the Earl of Salisbury petitioned the House to reverse a Judgment given against the Earl his Father Anno 2 H. 4. the Error assigned was the Absence of the Spiritual Lords The Case was much debated but the Judgment affirmed as we allow it ought to be but we produce it as an irrefragable Testimony of the Bishops Right to sit for if that had not been allowed there could not have been the least colour in the case nor matter of debate CHHP. XI BUt tho' the Actual Exercise of the Bishops Right in their own Persons though whatsoever is done by a Deputy is done in the Right of him that makes the Deputation as every body knows was for some time discontinued tho' their Right in that time was most solemnly owned and recognized yet in 28 H. 6. we find them re-continuing the Exercise of that Right and Authority and in their own Persons sitting in Judgment upon William de la Pool Duke of Suffolk who was impeach'd of Treason by the Commons for that he had sold the Realm to the French King and had fortified Wallingford Castle for a place of Refuge The Impeachment of High Treason was brought from the House of Commons by several Lords Spiritual and Temporal sent thither by the King's Command the Ninth of March the Duke was brought from the Tower into the Presence of the King the Lords Spiritual and Temporal The Impeachment was read unto him The Thirteenth of March he was sent for to come before the King the Lords Spiritual and Temporal to answer to his Charge which he did On Tuesday the Seventeenth of March the King sent for all the Lords Spiritual and Temporal who were in Town They are named two Arch-Bishops and thirteen Bishops besides the Temporal Lords who being assembled the King sent for the Duke There was no Judgment given by the Parliament but he submitted to the King and the King gave him Penance which was that he should be absent for Five Years out of England The Lords Spiritual and Temporal by Viscount Beaumont declared to the King that this that was so decreed and done against the Person of the Duke proceeded not by their Advice and Council with this Protestation that it should not be nor turn in Prejudice nor Derogation of them their Heirs ne of their Successors in time coming but that they may have and enjoy their Liberty and Freedom as largely as ever their Ancestors or Predecessors had and enjoyed before this time Observe here that the Lords Spiritual were present at every Motion of this Cause This Cause was thrice before them no Exception taken to the Bishops being Judges They could not sit by Permission without Right if the Bishops had no Right to sit the Proceedings had been certainly erroneous For though one Judge's Absence if there be a Quorum will not vacate a Judgment yet if one sit in Judgment that is not an Authorized Judge the Proceeding is certainly erroneous and void Can any man believe that the Government should lose it self forget it s own Establishments in the highest concerns We may as soon believe that a man may forget his own name One positive Act of Session signifies more than 100 Omissions for if it had not been well understood that the Bishops had a Right to sit in Judgment in Capital Causes in Parliament they could never have been admitted they would never have presumed to endeavour it But with false Logick and absurd Reasonings and dislike to the Order it is become an Opinion in this Age because sometimes the Bishops absented that they have no Right But we have one thing further to add that declares an inherent Right in the Lords Spiritual to the Authority in question and that is an Opinion of the Judges 10 E. 4. 35. which says that the Lords Spiritual in case of a Tryal of a Temporal Peer in Parliament shall make a Procurator for then it seems an Opinion was received which was error temporis That it was indecent for Bishops to sit in their own persons in Judgment in such cases But they themselves are best Judges of what is indecent and unbecoming their Order for no man is obliged to any man but himself in the matters of Decency and the measures that make things decent or indecent is very mutable as changable and mutable as Customs Fashions and Opinions Besides that there is nothing that is very valuable and is of great concernment but can and
established that those that were not Barones majores qui tenent de nobis in capite should be generally summoned It is observable that the Barones minores are so mentioned as if the name of Barons were not to belong to them Agreeable thereto is that we have mentioned in the style of our Parliaments of Milites liberè tenentes alii fideles and are all involved in this general Et universi de Baronagio Regni Angliae Several Instances of this are in Mr. Petyt aforementioned p. 111 112 113 114 115 116. besides that many Instances of the like Stile of Parliaments in those times are obvious That our Parliaments in those times were thus constituted is so clear that it cannot be dissembled But I do not deny but upon a change in the Succession to the Crown there might have been in this time extraordinary Conventions of the People to declare their Universal Assent for better assuring such Successor discountenancing the Rival Prince and preserving the Peace as in the Case of William the Second Henry the first King Stephen and King John which hath been usual in other Countreys in mighty Distresses of State such were in use amongst the Jews Josephus calls such an Assembly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Grotius in his Annot. p. 200. rells us Solitos fuisse Judaeos interdum in rebus ad summam Religionis aut Imperii spectantibus advocare ad Synedrium quotquot habere poterant tribuum primores aliisve honoribus praeditos ut quod constituerunt legis potius a populo probatae quam Senatus consulti haberet auctoritatem With the assent of such an Assembly as this at least King John should only if so have made this Kingdom Tributary to the Pope though I believe what he did in it he did without and against the Assent of that Parliament in which he could only therefore offer to do it He did no more effectivè than of Right he could which is nothing That which was done was without the Consent of his Bishops and Barons as appears by a Letter of his to the Pope in those words recited by Mr. Petyt in his mentioned Book Cum Comites Barones Angliae nobis devoti essent antequam Nos nostram Terram Domino vestro subjicere curassemus Extunc in Nos specialiter ob hoc sicut publicè dicunt violenter insurgunt And by another Letter of his to the Pope recited p. 163. Wherein he complains of the Bishops Disobedience on this Occasion which I the rather take notice of that the Cause of our Government might not be betrayed by depending upon such weak Inferences as those viz. that there was a House of Commons at that time which did not consent to the vassallating of the Kingdom by King John to the Pope For that otherwise it could have been validly done And that if our present House of Commons in the same Form as it is now constituted was not in Being ever after the Conquest it is not therefore an Essential part of our Government For if our Government must take its Fate upon such Issues as these I am sure we shall not long hold it The greatest Truths are betrayed by weak Proofs and the clearest Right sometimes lost by putting it upon an uncertain or improbable Issue This is certain that whatever thing of Government is introduced by the Consent of the Prince and that Alteration assented to and embraced avowed and owned by every man of the Community by Actions and other open Declarations of a full Consent and this continued for Centuries of Years and in all that time applauded and found agreable to the Interest of the Prince and People and the Old Government abolish'd and impracticable the very matter of its ceasing and it become a thing impossible as well as not desireable to restore it I say whatever Constitution is thus introduced and established is as unmoveable as unalterable or no Government is as if it had been ever so For there can be no Government in this World that is eternal how this Change came we shall speak to by and by But for the sake of Truth I must confess that I have no reason to believe that the Counties in all this time had their Representatives in Parliament by the formality of a Choice But this is a great mistake that the People cannot be represented but by such as are from time to time chosen by them when as every Government is the Representative of the People in what they are to be governed by it and by their Consent to it in the first erecting thereof they do trust their Governors with the Rule and Order of their Lives and Estates for the Common-weal For Government as well as Law is Republicae communis sponsio to use Bracton's Words I cannot easily tell which is more eligible for the assuring us of good Men in the Common Council of the Kingdom whether the Choice and Designation of a Person thereto by his Character and a General Rule or by the contingent Suffrages of the People But they are I am sure as much our Representatives who are appointed thereto by the Constitutions of the Government embraced and consented to by the People as those are whom the People nominate for that purpose I know no reason therefore why any should think that nothing is stable in our Government but what hath been ever so and in the same Form or that any man should be so affrighted with the Objection as if it made our Government shake which some slight Antiquaries for little Learning in Antiquity will serve for that purpose That our Parliament was not at all times such it is at this day It sufficeth to me that it was always materially the same When the Conqueror did innovate his Tenures in Capite and made all men of great Estates Barons and by their Tenures and Estates Members of Parliament we had then such Laws quas vulgus elegerit and then we had materially our three Estates though not so well sized and sorted as since I thought fit to say this for the preventing the World's being troubled with such Impertinent Labors and to divert those that thus employ themselves to undertakings more useful to the Publick and advantageous to themselves We had then I say many great Freeholders in every County that by their Tenures were Members of Parliament whereas now we have but two and though the People did not chuse them yet the men of that Order seem chosen once for all interpretatively by the People in their consent to the Government and they might be reasonably presumed to be faithful to the Commonweal from their own great Concernments therein In this Constitution scarce any man that was fit to be chosen but was without the Peoples choice a Member of Parliament as now they have more who are fit to be chosen than they can chuse So that the Barones minores were then instead of Knights of the Shire and the Barones majores Bishops and
Earls did then as now make the Parliament Besides the Barones majores and minores there was at this time a distinction between the Barones Regis and Barones Regni which I will here explain to prevent any mistake that may grow thereupon The Barones Regni were Barons by Tenure and made part of the Government by the Constitution of the first William and so in process of time called Barones Regni because they had by continuance of that Constitution acquired a fixed right to that Honour But because of the frequent Wars between the Barons and the Kings at that time they did omit to summon some who were Barons by Tenure and now duly called Barones Regni to Parliament and called others to Parliament that had no right to be called ratione tenurae and these they called Barones Regis This was ill taken by the Lords and was one of the occasions of their War with King John upon which they did obtain his Charter for remedy as followeth Barones majores Regni sigillatim summoniri faceret The truth of this as to the fact will appear by the Histories of those times and that this is the reason of that distinction of Barones Regis and Barones Regni doth appear by the recited Charter of King John where the majores Barones are called Barones Regni for the Barons were more concerned for the losing of their Honours than they were at the communication of the like Honours to others and with reason though all Honours are lessened by the numbers of those participate of them The inconveniences and mischiefs of this Constitution were very great and very sensible by making the Government consist of one Order there was no third to moderate and hold the balance The Honour of the great Nobility was lessened by an Equality of Suffrage in the great Council of the Kingdom yielded to the Tenents in capite and were not so concerned to support the Dignity of the Crown for the maintaining their own which in that Constitution could not be great It had the faults of either House and the virtues of neither they pressed hard upon the King and were uneasie and oppressive to the People they were not reverent of the Crown nor tender of common right The great Charter provides against the Oppressions of great men as it doth for bounding the Prerogative Our mixt Monarchy was out of tune by the Aristocratical Power of the Baronage now become too excessive by the policy of the Conquerour by advancing too great numbers to that Dignity too great to depend upon the Crown or to be govern'd by it unassisted That which the first William intended and designed for the establishment of his Conquest and of the Peace of the Kingdom made it very easie to afflict bad Princes But by several steps we recovered being taught and instructed to it by our Experience and the sufferance of great Calamities such a Representative that might most certainly effect what in all Ages was intended and designed that nothing should be Law or civilly just but what the People assent to by which their Persons and Rights are secured and defended which is the sole end of Government But evident it is that this more equal clear representative which we now enjoy in our House of Commons grew upon the reducement of the excessive number of Barons so great that it made them a Tumult rather than an Assembly and for the reducement of the power of the greater Barons for in the Parliament of 49 H. 3. when but 25 Lay Barons were summoned tho' in the 41 year of his Reign he numbered 250 great Baronies in England we find Writs for electing to a Parliament at London two Knights Citizens and Burgesses and Barons for the Cinque-Ports before that time none were found nor any Foot-steps of Right for the Counties sending Knights to Parliament though there is a clear Right appears for the Burroughs to send Burgesses which we shall speak to afterwards It will not be impertinent here to add that the Government of Scotland which runs parallel almost to our English Government found it inconvenient that all the Tenants in Capite should resort to their Parliaments and therefore they were reduc'd in this manner viz. their Barones Minores or Tenants in Capite in every County choose two of ther own number to Parliaments which at this day they call the Barons for Counties whereas all our Free-holders choose their Knights of the Shire and our Elections are not restrained to Tenants in Capite And this made it more reasonable for our Representatives of Shires together with the Burgesses to become in process of time a distinct Lower House whereas their Barons of Shires set together with the Lords and vote in Common with them The Knights of the Shire which made the principal part of the Representative of the Commons having no Relation to the House of Peers or the Baronage of England because chosen by all the Feee-holders indifferently though not Tenants in Capite But to return to our History that deduceth the Change of our Government That some great matters for publick Good and Establishment of the peace of the King and Kingdom was treated of in this Parliament they did to be sure establish this new Form of a Parliament will appear by a Form of a Writ of Summons to the Bishop of Durham to that Parliament which I will here transcribe Henricus Dei gratia Rex Angliae Dominus Hiberniae Dux Aquitaniae venerabili in Christo patri R. Episcopo Dunelmensi salutem Cum post gravia turbationum discriminia dudum habita in Regno Nostro Charissimus filius Edwardus primogenitus noster pro pace in regno nostro assecuranda firmanda obses traditus extitisset jam sedata benedictus Deus turbatione praedicta super deliberatione ejusdem salubriter providenda plena securitate tranquillitate pacis ad honorem Dei utilitate totius Regni nostri firmanda totaliter complenda ac super quibusdam aliis Regni nostri negotiis quae sine Consilio vestro aliorum Praelatorum magnatum nostrorum nolumus expediri cum eisdem tractatum habere nos oportet vobis mandamus Rogantes in fide dilectione quibus nobis tenemini quod omni occasione postposita negotiis aliis praetermissis sitis ad nos Londiniis in octabis Sancti Hilarii proximo futuris nobiscum cum praedictis Prelatis magnatibus nostris quos ibidem vocari secimus super praemissis tractaturis consilium impensuris hoc sicut nos honorem nostrum vestrum necnon communem Regni nostri tranquillitatem diligitis nullatenus omittatis Dors Claus 49 H. 3. M. 11. in Scedulae I strongly incline to believe That this King did call in the Commons by their representatives the Barones Minores being discharged to moderate between him and his Barons which became after to be sure however it was before the standing Representative of the people Something
summoned Yet the Bishops by reason of their Spiritual Dignity had necessarily a right and voice The Archiepiscopi Comites Barones alii Magnates in ancient Parliamentary Writs of Summons do ordinarily express and comprehend the whole Baronage without naming the Abbots and Priors which must be signified by the alii Magnates Which I the rather note because the Folio Author a Gentleman very easie and ready in Inferences doth conclude that because such Writs mention Magnates besides Bishops Comites Barones which he too suddenly concluded were comprehensive of the whole Baronage doth thence argue that a Writ of Summons of any man to Parliament doth not make him a Baron and from thence would have it inferred that the Bishops are not so though they are expresly mentioned and first in order and cannot in reason be reduced to that meanness of rate and quality with those that fall under an Et caetera and from hence would have it concluded that they may when the King pleaseth be dismist that House because there were anciently some Grandees that had Session in Parliament now discharged Besides we do observe that another sort of great men may be meant by the alii Magnates that is to say famous men of the Clergy not Bishops and other men of great name for wisdom of which there were some summoned in most of the ancient Parliaments not intended thereby by the King to be made noble or advanced to the state of Baronage for there were distinct clauses in the Writs of Summons to signifie the Kings purpose therein The Writs directed to such as were not intended thereby to be made Barons as the Judges Attorney General Kings Serjeant c. was Quod intersitis nobiscum cum caeteris de Concilio nostro and sometimes nobiscum onely super praemissis tractaturi vestrúmque consilium impensuri whereas that to the Barons was Quòd intersitis cum Praelatis Magnanatibus Proceribus c. But as Mr. Selden observes that custom of sending Summons to great men not Bishops to Parliament did cease after the clause of Praemunientes by which Convocations were summoned by Bishops to meet with Parliaments grew in use in the Bishops Writs of Summons to Parliament Of which excellent Provision we shall have occasion to speak to hereafter All the Baronage both Spiritual and Temporal de jure ought to have Summons now to Parliament without respect to Estate or Tenures There is no man now noble by his Acres a sort of Nobility that this refined Age will not allow of The King according to the Constitution of H. 3. afore-mentioned may now by Letters Pattents or Writ erect a new successive Barony as well as hereditary as was done by H. 8. The fifth year of his Reign for that the Baronage of England was now affixed to Family and Succession and not to Tenures he by his Letters Patents did then grant unto Richard Bamham Abbot of Tavestock in the County of Devon the Abbey being of his Foundation and Patronage and to the Successors of the said Abbot Vt eorum quilibet qui pro tempore ibidem fuerit Abbas sit erit unus de Spiritualibus Religiosis Dominis Parliamenti nostri haeredum Successorum nostrorum gaudend honore privilegio libertatibus ejusdem This the King might well do because the Abbot was of his Patronage and the Successors were therefore to be elected and collated by the King for that was the Inducement and Reason of Kings and Sovereign Princes advancing Bishops and great Abbots to the degree of Baronage making them members of the great Councils of their Kingdoms and Principalities as is before observed because such Abbots as the Bishops were made always and appointed by the Sovereign Prince And here we may take notice by the way of the Reason why the Episcopus Soderensis or the Bishop of the Isle of Man is not summon'd to Parliament which I shall give you in the Words of Sir H. Spelm. in his Glossary Baronum appellatione non omnes hodie apud nos censentur Episcopi ut pote Soderensis in insula Manniâ quod de Rege non tenet immediate at de Comite Darbiae Nay it is most observable That this Honour of Baronage or being a Member of the House of Peers was so inseparable to the Office of a Bishop after the afore-mentioned new Constitution of the Baronage That the Guardians of the Spiritualties of Bishopricks in the times of Vacancy and the Vicars General of Bishops being beyond Sea were summoned to Parliaments by the same kind of Writs as the Bishops were summoned Of this Mr. Selden doth assure us Titles of Honour 2 Edit fol. 721. But this Honour lasted no longer than this legal Substitution and Vicarious Power If they had Right to sit in that House in respect of their Temporalties the Guardian of the Spirituals or the Vicars General would not have had Writs of Summons to Parliament But if the Kingdom had not had a great Opinion of that Order it would not have been provided and put in use that in Vacancy of the See or Absence of the Bishop rather than that great Council would want one Bishop utterly or the Interest Authority and Consent of any that had Episcopal Authority they admitted the Substitute by whom that Office was executed and administred for that Interval only When Baronies were feudal the person tho' in respect of his Land was noble his great Estate and Interest and the other general Presumptions that attend opulent Fortunes made the Possessor noble in his Person Anciently the Estate of late the Discent in the Temporal Baronies and the Succession in the Spiritual Baronies place the persons respectively in the Census and Rank of Baronage but there is no Nobility but what is personal nor can be in Nature All the persons in the same Order of the publick Census are of the same Quality Neither are Bishops to be accounted less Barons or less noble because they enjoy their Baronies for Life only no more than a Tenant for Life of an hereditary feudal Barony could be so accounted Feudal Baronies being considered as Estates were alienable as Estates and as Estates would suffer Limitations and admit of particular Estates for Life No man can say we had no personal Nobility in the time when there was no other Baronage than Feudal How then can it be said that the Bishops Persons are not noble though they should be accounted only Barons Ratione Tenurae as certainly they are not in proper speaking at this day neither can it be objected against their personal Nobility that a Bishop may be degraded for so may a Peer for more Reasons than a Decay of his Fortune and Estate Which matter I the rather insist upon for that the great Mr. Selden committed an Error by not considering that the ways and means by which persons derive and come to be of the Order of the Nobility and Baronage can make no Difference in the Baronage
but thence he offers a Reason which must needs be a Mistake too why Bishops shall not be tryed by Peers in Capital Crimes because these are personal and his being a Baron is Ratione tenurae and not of personal Nobility But this he wrote when he was young in his first Edition of Titles of Honour which was in the time of King James But can there be a harsher and more incongruous thing said than that there is any other Nobility than what is personal Can Land be noble This that I have said is to prove That the Spiritual Lords are of the Baronage of England such as it is now constituted and they do not cannot remain in any Reason or Understanding Feudal Barons after the Ratio Baronagii is changed and if they could remain Barons Ratione tenurae at this day yet they ought to have all Preheminencies and Priviledges of Barons But true it is that they are another sort of Nobility different from that of the secular Lords though equal in all the powers of Baronage and besides have precedency in Honour and therefore make a distinct State from them and one of the three Estates or Ordines Regni Besides that by the way we have destroyed the Force of the Arguments used by the Folio against the Jus Paritatis of Bishops and their Competency to try a Lay Peer which we shall speak to more by and by CHAP. XVII IN the King and in these three Estates is placed the Peoples Security and the Care of the whole Community from every of them they have distinct just and reasonable Expectations though the third State of the House of Commons hath carried away and almost ingrossed the name of the Peoples Representatives though they are only the Peoples Representatives to act for them in matters wherein the People are left at perfect Liberty and concerning which there is no Order taken in the Constitution of the Government This is truly Our Government a King and Three Estates the Lords Spiritual the Lords Temporal and the Commons by their Delegates and Representatives for the purpose only to treat about matters in which the People have Power to deliberate and are and ought to be redress'd This is the Forme of all the Modern and Gothick Governments planted in Christian Europe Guntherus expresseth three Estates thus Praelati Proceres missisque Potentibus Vrbes The great men of Estates Proceres were sufficient to take care of their Interests and Dependents which made the Body of the County But then there were Cities or great Towns in which were great Bodies of Freemen men of Wealth and Trade that were little concerned in Lands or Tenures which we call Liberi Burgi which our Neighbors call Hans Towns And our Kings seem to have by Prerogative a continuing Power to declare Towns when they arrive to be great peopled and rich Free Boroughs and thereupon they acquire a Right to send Delegates to Parliament And this appears for that many Boroughs that send Burgesses of to Parliament have no other Foundation Right but the King's Charter in which he grants Sit A. de Caetero liber Burgus I have seen some of these Charters as ancient as King John These Charters could have had no such Operation but by vertue of some Ancient Establishment in the Government We have no History of its Commencement King William I. that he might have the assistance of all the States in Parliament put the Boroughs under Tenure by Baronage How many of the Burgage Tenures were of that sort we know not but it is probable all that at that time sent Burgesses to the Parliamentary Conventions by what name soever they were then called the Burgesses of the Cinque-ports are still called Barons And we know that the Borough of St. Albans was put under that Tenure and in that Right challenged them to Burgesses to Parliament as Dr. Brady acknowledgeth But the reason why we have no remembrance of the Tenures of Boroughs to send Burgesses to Parliament is that which we have here proved viz. the ancient reason of Baronage viz. by Tenure did cease about the time of H. 3. And conformably the King might require Boroughs to send Members to Parliament without mentioning in his Writs the duty of their Tenure and by declaring them free Boroughs give them that Priviledge though not oblig'd thereto by any Tenure created upon them So that it is evident that before H. 3. our great Councils or Parliaments consisted of three Estates though they all pass'd under the general Stile of Baronagium Angliae which I thought fit to demonstrate that our Parliaments or great Council of the Realm always consisted of three States Corol. From this that the King's Prerogative being so viz. to have power to declare Free Boroughs which he useth by his Letters Patents The Rights of chosing their Burgesses to Parliament belongs to all of the Community and cannot be restrain'd to fewer Electors by their Charters For Jura ordinaria non recipiunt modum The Remainder at least of this Form of Government continued in all the Countries wherein the German Colonies made their Conquests and planted themselves as will appear to any body that will consult the Republicks and those plentiful Quotations that hath been made by a Learned Author in his Book published since this was written I cannot but wonder since this our Constitution hath been oftenmost authentickly declared and every one knows that the Government is materially so as we have said and it is agreed by all that the Government consists of three States that yet we know not where to find ' em There is much Art used to give Countenance to or rather to form an Opinion that the King is one of the three States It is now almost come to be an Opinion and insomuch as it is an Opinion it is an Error This Error such as it is is endeavored to be improved to the Destruction of the Government It is nurs'd up carefully and is to gain Reputation and Credit with the People by the Authority of great Names and when it is grown popular it is designed to take the least next Advantage against the Spiritual Lords to dismiss them from their Bench as no necessary or essential part of the Government There was it 's true an ill-pen'd and inconsiderate Address made by the House of Commons only to the the King in 2 Hen. 4. to desire him to make Peace between the Lords and therein they say that the three States of Parliament are the King the Lords Spiritual and Temporal and the Commons But this is the first time that an Address of a House of Commons was so nicely considered And that the Form and Letter of it should be the measure of Law and of the Government There was also a phantastick Letter written by Stephen Gardiner printed it seems in the Book of Martyrs wherein that Bishop talks of three States in which he must needs reckon the King for one For he could not leave
him out of the Government and he had no more Christian Graces than Faith Hope and Charity which he attributes to this Ternary of States of his own making But if he had four of those Graces there had been four States if six of those Graces to have match'd them in number he would have found three States in the House of Commons viz. Knights Citizens and Burgesses and have made six States It seems too King James made a Speech in Parliament wherein he was pleased to use his Logick and liked it seems the Ramistical way of Dichotomies The truth is he had more Logick than a wise King could tell how to bestow For in that Speech he saith The Parliament is composed of a Head and a Body himself and the Parliament This Body is sub-divided into two parts the upper House and the lower House The upper House into two Lords Spiritual and Temporal the lower House into two Knights and Burgesses The Citizens were left out for the sake of his Dithotomy His Method was to proceed by the way of two's and therefore 't was impossible we should here in this Speech of any three whatsoever yet this Speech too is produced against three States distinct from the King Besides they tell us that in one of the late King's Declarations drawn by then a young Gentleman but of great hopes and afterwards a very great Man the King is called one of the three States This Gentleman was very probably misled into that Mistake by a Book called Nomotechnia wherein it is said that the King Lords and Commons are the three States a Book of Institutions for young Students which was never yet allowed for Authority in the Law nor ever had the Honor to be cited in our Courts of Westminster These Mistakes or whatever you will call them with the Authority of the Octavo Author are united together to form an Opinion that the King is but the Bishops are not one of the three States which will be a very dishonorable Error For that it will lead us into a Mistake of our Government and which is much worse for that it hath a tendency to subvert it that is to depress the King and to suppress the Bishops It is an Indign thing and not to be suffer'd that we should lose our Government by Surreption and be made a Babel by dividing and confounding our Language To prevent this mischief we have declared our Government from the very Reason and Nature of the Structure thereof to consist of three States that is three different Orders which make the Great Council of the Kingdom whose End and Business is to administer Council and Auxiliaries to the King who is intrusted with the executive Power of the Government and Laws And besides now we will produce great Authorities to put this Mistake out of Countenance and to prevent its gaining any farther Authority with the People For Errors of this nature in process of time turn into Truth and things prove to be so at last as the Error and Mistake first bespake them and this our Lawyers know well enough with whom 't is a Maxime it belongs only to them and matters within their Province Communis Error facit Jus. And first for this purpose we will mention the Stile that the Parliament used which was convened by the Authority of Richard the Second he being then about to relinquish the Crown to H. 4. This Parliament in transacting so weighty an Office had reason to consider and know who they themselves were They without doubt in all their Proceedings in this High Matter used their true as well as biggest Stile which was that of States Walsingham tells us Sede Regali tunc vacua Procurators Regis Richardi Archiepiscop Eborac Hereford Renunciationem dicti Regis cessionem omnibus statibus Regni tunc adunatis ibi publice declararunt And again Quoniam videbatur cunctis Regni statibus super dictis Articulis singulatim ac etiam communiter interrogatis And again Ordinati sunt Comissarii ex parte statuum Communitatis ejusdem Regni Observe here that the King is none of these States that they are called all the States which signifies more than two that there is mention of States besides Community and therefore it was then understood that there were two States in the Lords House But afterwards he recites us the Form of a most important Instrument which follows In Dei nomine Amen Nos I. Episc Assavensis I. Abbas Glasconiensis Thomas Comes Glocestriae Thomas Dominus de Berkley Tho. de Epingham Tho. Gray Miles Willielmus Thirning Justiciarius per Pares Proceres Regni Angliae Spirituales Temporales ejusdem Regni Communitates omnes status ejusdem Regni Representantes Commissarii ad infra scripta specialiter deputati c. By which it is most clear that the Government was then understood to consist of three States of which the King was none as he cannot be with any Congruity 1 R. 3. Rot. Parl. apud Westm die Veneris 23 Jan. it appears that a Bill was exhibited coram Dom. Rege in Parl. Wherein is contained That several Articles on the behalf and in the name of the three States of the Realm viz. Lords Spiritual Temporal and Commons were delivered to the King And farther that the said three Estates were not assembled in form of Parliaments therefore be it ordained by this present Parliament that the Tenor of the said Articles delivered as aforesaid on the behalf of the said three Estates out of Parliament c. Now by the three Estates assembled in this present Parliament be the same ratified and approved Ac idem Dominus Rex de assensu dictorumtrium statuum Regni Authoritate praedicta omnia singula praemissa in billa praedicta contenta concedit ea pro vero indubio pronunciat decernit ac declarat This was in like manner an Act of Parliament for declaring the Right of the Crown to be in Rich. 3. In the Statute made 2 H. 4. the Word State is used plurally and for more than two of which the King was none to signifie the Parliament as appears cap 15. And so it is also in 4 Hen. 4. cap. 4. in which these words are Sith it is the desire of all the States of the Realm that nothing shall be so demanded of our Sovereign the King He will that all those who make any Demand c. So that hereby it is evident that in the Understanding of that time there were three States besides the King But to spare the Reader the trouble of the mentioning the Records at large that testifie the Parliament to consist of the King and the three Estates viz. Lords Spiritual Lords Temporal and Commons I will refer them that doubt to the Collection made in Mr. Pryn's Index to Sir Robert Cotton's Abridgment under that Title who himself was of this Opinion which nothing but the Evidence of the truth of the thing could have
of Colors and Pretences to change and alter our Government or hurt it in a Vital part and begin with the Bishops to take down our Government CHAP. XX. I Have farther this just Caution to add for the warding of some other undue prejudices in the Consideration of this question that our Government did not continue the same after and before the Conquest and that the Government upon the Conquest hath received since many beneficial Alterations That the Bishops Right must be considered in Analogy to those several Alterations and in consequence they ought not to be considered as Barons by Tenure when Tenure ceased to be the reason of Baronage The contrary whereof I find insisted upon and made the reason why Bishops must not be tried by Peers And the same reason will serve to eject them out of the House at the Kings pleasure because forsooth several Barons by Tenure have been omitted in Summons to Parliament and no Lay Baron now they say is summoned upon that score but for that he is a Baron by Writ or by Patent which makes a permanent Nobility in their Families But that which is now our Government in what it differs from what it was anciently as it is not less rightfully our Government because it was not ever such so it deserves our greatest zele to defend it because it is much better Governments are I am sure ours is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 form'd and fashioned and refined by long experience they are not perfected as soon as made they have their Infant state as well as Men. The elder and first times are the Childhood of Government and of the World Antiquitas seculi juventas mundi It is egregious folly in any man to attempt to reduce us back again to the rudeness of the first Ages and to all the inconveniences that have been discharged and filed off insensibly by Experience and Wisdom the daughters of Time in a long series of Ages We neither eat drink nor cloath our selves nor build after the manner of our Ancestours but according to our improved Inventions Vnde datae populis fruges glande relictâ Cesserat inventis Dodonia quercus Aristis Claud. de raptu Proserpinae It is time ill spent by some of the Antiquaries to go about to refix the present established Government by endeavouring to find out the Records wherein it appears to have been other of which we have some published and are threatned with more But they will have no other effect I hope than to provoke us to give God thanks for the wisdom of our Forefathers and that they have left us a Government much better than what they found more just and peaceable and better established for a lasting continuance Though they perversly design it as an Artifice to overturn the State and to evacuate our most refined and wisest Constitutions For that they can find something before then they would note them to want Authority and Justice We ought say they to have recourse to the primitive Laws of the State which have been abolished by unjust Customs and Usurpations This is a Game at which we are sure to lose all nothing will be found just in this Balance And by these means some base Factors for Slavery are contriving the ruine of our Liberty but this they will effect when they shall have persuaded us to suffer again all the incommodities and coursnesses of Life which our Ancestors suffered because they were no better instructed Frugibus inventis ad glandes velle reverti The great change that was made in the Baronage of England which we have observed was remedial and healthful It s Goodness doth appear by the thorough Cure it made of our Disorders for we have not since relaps'd into these Evils from which we recover'd by that Change It was Legal and with full Consent of the whole Community For it was introduced without Noise without Opposition or Dispute nay without Observation So that we hear not how it was done but only perceive the Change These are sure Signs that we arrived by this Change where our Government did at first design us and that we were agreable to this Alteration to its first Intentions That all Parties herein received their Satisfactions and found their Interest that no body was aggrieved at it neither did it raise Wonder in any man it was every man's Desire and easie Expectation which I believe are the true Reasons why this Change is not more remark'd in our Histories But pity it is that through the Injury of Time and what is reasonably suspected the Iniquity of Corrupt Ministers that we want our Records of that time which could not have fail'd telling us the whole Secret by what means the Inducements thereto the Methods whereby and the exact time when we made our Alterations in our Government materially and in its essential parts always the same Of this our Records if they had been preserved to us intire would have inform'd us but alas we have but a few Remains of them Apparent rari nantes in gurgite vasto And of those that have arrived us many are but References and Recitals in other Records not the Original Records themselves by which the Original Records escaped an utter Oblivion against the Will of our Civil Expurgatories But of such that remain the most laudable Use of them is to give Authority to the present State of our Government and we ought with good reason to interpret them in an agreableness to the present Establishment because the Change we suffer'd was easie and natural ex Hercule pedem to invert the Proverb For it is easier to know what Foot will fit Hercules than to fit an Hercules to a Foot given CHAP. XXI THough our Government hath always consisted of the same constituent parts yet they have been ill sized and proportioned and unduely placed not well joyned or united or so blended that neither could perform their Offices or proper Functions The Baronage of England was an over-grown part and did by its Excess and extravagant Bulk disorder the whole Oeconomy of our Government and became it self less useful The Honor of the Baronage was lessened to nothing by the Numbers thereof they did not find themselves so much obliged to support the Majesty of the King for the Preservation of their own Grandeur as our great Barons are in our present Constitution The People were in some sort represented by them as they were a great Body of the Chiefest Free-holders but they had a power to oppress them and they were not obliged by so strong a Tye and plain Duty to a care of the People because not chosen by them and by that Choice put under a more clear and strict Trust of taking care of their Rights In this Constitution neither King Lords nor Commons had their Ends and therefore would not have the old Constitution revived if it were possible When the Representatives of the People which make the House of Commons were joyned with
which have since made the Convocations or the Ecclesiastical Council of the Kingdom and are to meet at every Session of Parliament but to debate nothing but what is propounded and to publish nothing for Canons without the Royal Assent So that they are to act nothing but under the observation of Parliament This Convocation or Ecclesiastical Council other allowable Synods we have none ought not to convene but when a Parliament is sitting and continue no longer than the Parliament We ought to observe herein and applaud the excellent wisdom of our Government that in the very constituion of it hath provided for the peace of our Church by silencing Controversies which can never be determined with any effect such a wise expedient and course as the best instructed Christian Emperours did take by their Edicts prohibiting publick Disputations about subtil and nice Questions as Constantine Martianus Leo Anthemius Andronicus Heraclius to mention no more None but mad men and extravagantly presumptuous or utterly ignorant of Church History will ever hereafter go about by Acts of Councils to end Controversies but rather to shame the Dogmatizers out of their contentious zeal by shewing how little the ends and designs of Christianity are concerned one way or other in such Questions in which those that are most learned know least and a little learned ignorance would discharge most of them from any longer troubling the world And farther we must observe to the Honor of our Nation that it is so religiously wise as to commit the Care of conducting Devotions ordering the Decency of Publick Worship and censuring the Manners of Clerks to the Bishops and the Principal Clergy whereto their Religion Wisdom Devotion and Moderation bespeak them the fittest Persons No less remarkable is the Wisdom of our Government that it doth not make that which is properly the matter of Canons the Subject of their Legislation and thereby subject us to Temporal Punishments where the Admonitions of the Church and her Censures are more proportioned Remedies to the disobedient and froward Laws oblige us to punishments govern us by Fear and Awe oblige with Reason or without Reason because they are Laws They admit of no Ecclesiastical Relaxation or Dispensation and bind when the reason ceaseth In whatsoever thing relative to Religon a Law is made the matter is taken out of the Hands of the Church-men and no longer under their Government whose Government is a Ministry not Empire and Dominion They can institute nothing but what they may reasonably persuade Nihil tam voluntarium quam Religio Lact. We can have no more Religion or Truth than we can persuade Religion and Truth are to be promoted by moving the Will The Church rules by persuasion and her Canons oblige only for their Reason Religion for the sake of our own Edification and the Edification of others the Peace of the Church and Reverence of our Pastors and Teachers Canons in their own Nature are Temporary for the present necessity and convenience variable and mutable as the Edification of the Church shall require and the prudence of the Guides of the Church shall determine and therefore what is properly the Matter of Canons ought not to pass under Laws which are rigid and inflexible peremptory punitive and ungovernable And this magnifies the prudence and Christian Temper of our English Prelates CHAP. XXIII LAstly I observe what a dangerous Opinion our Judges sometimes had in reference to the Baronage of England viz. that it was in the Power of the King or in any Nobleman once summoned by Writ to Parliament as a Baron at the pleasure of the King to relinquish his place and determine the Nobility of his Family Which Opinion not being corrected would have made that State ambulatory and moveable upon which the whole Frame of the Government depends The Baronage of England is the Stabiliment of our Government and may be soon made too weak to support the other greater parts of the Building that rest upon it and are supported by it It is this that moderates between the two contending Interests of Prerogative and Liberty and prevents those violent Concussions which would otherwise unavoidably happen geminum gracilis Mare separat Isthmus Nec patitur conferre fretum si terra recedat Ionium Aegaeo frangat Mare Of what Importance therefore is it that we should be a Kingdom that cannot be shaken as much as Humane Wisdom can provide and frail Materials will admit That our Baronage should not hold their places precariously at the King's Pleasure and be deposed at his Will And yet our Judges after that Honor was fixed in the Families of those whom the King should appoint by Writ to hold that Honor and Place in the Commonwealth remembring that Baronage was at first a Service imposed ratione tenurae by Will the Conqueror Our Judges I say more able to judge of Private Rights than in Questions of State and Government being under a prejudice from the Consideration of the Original of our Baronies did allow the Plea of Thomas de Furnival who had been called to several Parliaments by Writ that he was no Baron for that he held not his Land per Baroniam vel partem Baroniae and therefore adjudged him no Baron Communia de Term. Sancti Hillarii Anno 19 E. 2. Rot. penes Remem Dom. Thes in Scaccario pro Thoma de Furnival Seniore exonerando But of this Cause they were not properly Judges the Lords themselves are the only Judges of the right Constitution of that House and they have anciently challenged a Writ of Summons de jure debito Justitiae for themselves and Descendents where they have been once summoned by Writ and answered that Writ and taken their place accordingly And the whole House doth constantly refuse to act until the Lord that complains of an Omission hath a Writ of Summons sent him What Apprehensions was had of this Honor by Thomas de Furnival and others in his time I know not But it might have been then and since it is well understood that that place which they sustain in the Government is of the highest Trust and the Benefits which redound therefrom to the Commonweal the greatest For they make the Government as well gentle and good as firm and stable These Noble Lords Marchers are placed between two great Contending Powers to preserve the due Boundaries and respective Limits and oblige them to Right and Reason by their Courage and Wisdom And for their Encouragement and Reward deserve the highest Honors and that they should be as they are immortal in their Families And accordingly it was resolved lately in the Case of the Honor of Purbeck in the Lords House that no Fine or Surrender of the Honor of a Baron can extinguish it But that notwithstanding it shall continue to his Heirs and Descendents And that upon the clearest and most important Reason for that the Constitution of the Government ought not as in its own Nature it cannot
concesserunt in sententiam Excommunicationis generaliter latam apud Westm decimo tertio die Maii Anno Regni Regis praedicti 37 in hac forma viz. Quòd vinculo praefatae sententiae ligentur omnes venientes contra Libertates contentas in Chartis communium Libertatum Angliae de Foresta omnes qui Libertates Ecclesiae Angliae temporibus Domini Regis praedecessorum suorum Regni Angliae obtentas usitatas scienter malitiosè violaverint aut infringere praesumpserint And the Record concludes In hujus rei memoriam in posterum veritatis testimonium tam Dominus Rex quà m praedicti Comites ad instantiam aliorum populi praesentium which at that time was the style of a Parliament and the manner of passing such Acts scripto sigilla sua apposuerunt Rot. Pat. 37 H. 3. M. 12. dorso And whereas it was provided by the Confirmat Chart. c. 4.25 E. 1. and by the Statute De Tallagio non concedendo c. 4.34 E. 1. That Excommunication should twice a year be denounced against the Infringers of Magna Charta At a Synod held for the Province of Canterbury in that Kings time John Peckam Archbishop of Canterbury enjoyned the like Denunciations near four times every year Constit Provinc tit De Sententia Excom And in the Province of York it obtained three times in a year Manuale juxta usum Ecclesiae Eboracensis By which the exemplary zele of the Bishops in those times against Oppression and the violation of the common Rights and the attempts of absolute and unlimited power appears for that they prevented the Temporal Baronage and outdid the Parliament it self in defending and guarding the Government of Laws By the way we cannot but take notice of Mr. Selden his mistake in his book De Synedriis which he fell into by inserving to his beloved Erastian Hypothesis viz. That that Excommunication before mentioned in 37 H. 3. was enacted by Parliament whereas it was onely confirmed but pronounced by the Bishops though with the seeming good liking of that King so that the Power of the Keys was not usurp'd but the exercise thereof approved by Parliament according to what hath been usual as Grotius observes Vsum Clavium Divino Juri congruum poenarum injunctionem Canonibus Legibus consentaneum summae potestates solent approbare atque hoc est Imperiale Anathema Quòd non una Justiniani lege comprehensum est Which together with what hath been said by us here will serve for an Answer to what Mr. Selden hath aggested in his book De Synedriis for wresting the Keys out of the hands of the Bishops They pretend to a Jus Divinum only for that which merely concerns their Spiritual Office and I cannot for my part suspect them of holding any Opinion of a Jus divinum in Civil Offices which are of a Humane Original because I can imagine no reason for such an Opinion though I know it is by some imputed to them By a Thomas of Becket a Sibthorp and Manwaring and a few less-considering Clergy-men in an Age we are not to conclude the Judgment of the Body of our Learned Clergy They assuredly know as all men in their Wits do believe that the Government is de jure such as it is and can be no other nor rightfully admit any Alteration That God never made any Commonwealth but one by his directive Will and that only for one Nation for in these things he hath left men ordinarily in the Hands of their own Councils and to their own Prudence in which he had no regard to the absolute rightful Sovereignty of Adam's right Heir the wildest certainly of all the Paradoxes that this giddy phantastick Age hath produced The Kentish Knight should have kept his Dream to himself until he had found him out and then have brought him and his Book called Patriarcha together to the King Then I doubt not but his Majesty would have provided him his due Reward But his Book and the Publishers thereof deserve his Majesty's utmost Displeasute For we are in fear that the Government is about to be changed when Books are licensed to prove any thing Lawful in that kind And besides it makes a Charge upon our Divines that they have a good liking to the Design for that they who best understand by their Profession the jura divina have not answered it But to speak the Truth the Book is not to be answered For it is but a fine Essay how near Non-sence may be made to look like Sence and it is truly worth no man 's Undertaking But whatsoever sinister thoughts some ill affected Men to the Bishops may conceive of them we expect and with reason too that they will with equal Courage to that recorded of their Predecessors stand up for the Preservation of the Government in its true and rightful Constitution And the rather for that the true Religion their Principal Care and their Temporal Rights and Dignities will inevitably perish in the Change Nay perhaps in consequence of the very Attempt of a Change except they strenuously for their parts oppose it However their Order will certainly by their Silence and Indifferency be rendred despicable They will lose all opinion with the People of their Sincerity perform their Functions with no advantage and lose that share in the Honors and Affections of the People that will establish them bespeak them useful and necessary to the Church and state in their several Capacities in all after times That they answer their Trust and perform that Duty which they owe to the Publick in their several Offices is that we may justly expect And this they will certainly do though they should be censured as they were in K. John's days or in the Language of the Folio Author charged to be clamorous and over-busie Medlers in Matters of State and Government But to return Is it not a course Artifice in the Octavo pag. 96. that he will so willfully mistake the Question'd of the Bishops being one of the three States and representing the Matter as if the Bishops should have a Negative by themselves to stop the passing of any Bill if they are admitted to be a distinct State CHAP. XXVI WHen it is not disputed or brought into Question whether they are divided in their Voting from the Temporal Barons most certainly they never were nor was it ever disputed Though an obstinate Opinion was maintained from the Time of E. 2. in the Case of the Spencers until the Time of E. 5. in the Case of the Earl of Salisbury that the Bishops Presence was necessary in Judgments even in Capital Causes which must be allowed a clear Argument for their Right of Judgment in such Causes For the Spiritual and Temporal Lords though two States make but one House upon the Reasons afore-mentioned according to the general Understanding and Usage of former Ages But upon this Supposition he tells us of several Bills that gave furtherance to
forme so as they may seem to come from the Fanatick party to render the King jealous of them as they are of the Libels against the Parliament and their proceedings to breed misunderstandings between the King Parliament and People It is since the Popish Plot was discovered that Fanaticisme is represented more intolerable than Popery That the Popish Plot evident to the satisfaction of the King and several Parliaments and of our greatest Judicatures is yet told us not to be so certain as that the Fanaticks are Traitors in their hearts though they own no principles as the Papists do that warrant Treasonable practices And these Mercenaries as frankly as if they had for the dividing of the Nation a Warrant so to do call all Fanaticks that oppose Popery desire Parliaments and expect they should use that power that is lodged in them to keep out Popery and preserve our Government and to bring to punishment those wicked men that have notoriously designed to destroy it The belief of the Popish Plot in the mean time is by scoffs and paltry Rhimes permitted publickly to be sung in the Streets put out of Countenance and those that believe it exposed as a sort of credulous Fools or designing Knaves Such a vile esteem the Papists now have of us that they prosecute us with their scorn and use us as if we were below their hate They think our divisions which they have made have already destroyed us and they now hire a sort of Scaramouchy Zanys Merry Andrews and Jack-Puddings to insult over us and make sport at our miseries These pleasant Knaves cry with one side of the Face and laugh with the other but in the mean time they cry in jest but laugh in good earnest He that had the art of imitating a grave Spaniard with one side of his body and a brisk French man on the other side rendred both Nations ridiculous These vain fellows deprave every thing they meddle with and what ever they say of Church or State Religion or Policy is raillery and abuse and Pamphleting scurrility Lord under what seeming fatality do we labor that it can be thought to the Service of the Church or State to employ such Knaves We are used like Samson bound and our Eyes put out and made sport for the Philistims By these pyd Pipers our young men are seduced and danc'd down a precipice though these merry Knaves have not skill enough to commend them for Rat-catchers if our City should be infested with that vermin as they say the Town of Hammel once was But the Daemon that appeared there a pyd Piper who destroy'd their Children as well as their Rats was not more mischievous to that Town than these motley Knaves are to the Kingdom and Nation It is an insufferable indignity that the tragical State of our Nation should become almost daily the matter of a Rascally Farse the very anguish and groans of the Nation turned into Laughter and Mockery such a barbarity was never used to a Nation It is an excess of Petulancy to make abstract misery in the very form of it mimically represented matter of Mirth and Laughter These men were born out of time and were fit for no age but that of Nero of whose consort they should have been when he played the Destruction of Troy to the Burning of Rome But I do not doubt but His Majesties Justice will e're long overtake these incendiaries that are so pleasant at the embroilment of his Kingdom when it shall be duly represented to him what beautefeau's they are and unmerciful deriders of the Calamities of his People which they occasion or promote tho they think they may pass any thing of this kind upon the Nation made vain with trifling false wit and Buffoonery It is now Twenty years since our Nation was infected with this sort of wit and now we are to dye of the disease and we have a Fiddle provided for us that have been bit with this venemous Tarantula to dance and frisk us to our destruction not to our cure and yet we pay the Fidler This thing wit the greatest debauchment of this age hath depraved not only the manners but the Judgment and understanding of the Nation too It hath been accounted the best accomplishment of men in place the best part of the Learning of this last Age It is not the reason of the Leviathan so much as the vanity of wit that hath propogated atheism and corrupted our manners This hath made our Judgments insincere and trifling and our determinate resolutions in matters of the greatest moment slight and Phantastical introduc't idleness and neglect of solid Learning which requires labor and application to obtain while this extemporary faculty has been accounted an admired accomplishment There is a sort of wit very commendable which Tully calls celeritas in verbis and the Greek Epigram 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is a pleasant entertainment in conversation and a commendable refreshment where our minds are tired with anxious and graver business and the troubles and cares of human life but this ought to observe its times its proper subjects it ought to be confined to Table talk an evening compotation and the hours of mirth and the relaxation of our mind It may be used decently in a Comical Farce but it is not allowable in Satyr most undecent is the use of it in Tragedy But yet it hath insolently interposed in our Politicks governed publick Councels sometimes determined debates in Parliament hath made our Pulpits contemptible our Theology trifling It is admitted to resolve the greatest Questions and determine Cases of Conscience to establish and refix Church Gevernment hath usurped an authority to alter and pull down Governments and to render them tottering when they are as firmly establisht and fixt as a Rock That Wit that is abhorred by all men that are wise and honest is that versatile shifting squinting distorting of the understanding that it views nothing truly and represents things not according to their true nature but under false Fantastical Schemes which they affix to them to abuse the judgments of others a man can never arrive to any perfection in this faculty untill he is become false and lost his truth and modesty and none but weak men are entertained with it and such who do not desire to understand truth but to serve a turn and love to be deceived and deceive themselves for advantage it is in perfection in old Knaves and admired by young Coxcombs It is the Hypocrisie of the Tongue a plausible mode of lying and slandring and at best but a pleasant Knavery It will render ridiculous or culpable by false representations the most noble and heroical actions and put false colors upon most detestable Villanies It can discredit a man by honoring him and make a thing incredible by the very mode of believing it making a man ridiculous it concludes him at the same time unworthy and to confute the most avowed Truths there
needs no more than to raise a fit of laughter upon it which has the same effect with the men of Wit and their vain admirers as reducing a false proposition to an absurdity Thus the reason of this age is governed by our risibility The Popish Writers have thus tickled us with their Wit that we are ready to dye and perish laughing and we know not nor care to Judge what does truly concern our preservation And by improving the vanity of some youngsters they have drawn them to question the Truth of the Popish Plot and some can believe every hour of the day when they meet with a merry Popish Pamphlet that there is a Protestant Plot on foot though they believe it I am sure not much longer than they are reading it I will not grudge my pains in furnishing a short Demonstration of the Popish Plot since it is of such importance to the saving of these men and the whole Nation which possibly may fix their minds notwithstanding so vain they be into a belief of it which I have made short that it may be the better remembred which I do in kindness to them since it was lately and may be so again shortly a criminal matter to bring the truth of it into question and they are by all honest men reckoned as Plotters themselves who doubt it The Plot has been declared by the Kings Proclamation and four Parliaments one of them consisting of Pensioners and Dependents on the Court which for eighteen years together were giving Demonstrations of their Loyalty to their Prince almost forgetting the publick Weal A solemn National Fast has been Indicted by the Civil and Ecclesiastical Authority of the Kingdom for averting the mischiefs thereby designed and solemnly Celebrated by the whole Nation in which certainly they did not mock God and deride his providence Many unparalleld Villanies have been committed for the stifling concealing and suppressing the discovery of it which however wicked the Papistical sort of base false and degenerate Christians are we cannot without breach of Charity towards them think they would commit cheaply and without cause and to no purpose They have murdered a Minister of Justice because he had the knowledge of it and left nothing undone that they thought necessary to Assacinate another for strenuously opposing it They have attempted upon the Lives of our Witnesses by perjuries and forgeries they have endeavored to charge them with the most infamous crimes endeavored to destroy them in their Lives and Reputations too in a forme of Justice They have attempted by fears and rewards upon the integrity of all our Witnesses to draw them to retract their Testimony against the Plot for which some of their Agents have been judicially censured One Gentleman to the Pillory Fined a 1000 l. and Condemned to a years imprisonment so evident and notorious was his offence and by the Court thought so heinous That it provoked the passion of the Court and they seemed to exceed the ordinary Rules of Justice for that they judged the Case to be of an exorbitant and transcendent nature The Plot of the Meal Tub is so sublimated a piece of wickedness the last accomplishment of villany it hath out-done all former and will never be out-done in after ages The Papists by the Discovery of the first Plot became less hopeful in a Massacre and of effecting their purpose by force They dare not now kill the King for that the World would not now believe it to be done by Mr. Claypole and his accomplices which must have born the blame from the Papists and he and they long since Executed as Traitors if that part of the Plot against the Kings Life had not been prevented by being detected I say the first design of the Plot being rendered less feasible by the discovery they keep the King alive with care as well for their avoiding the rage of the Nation as to lessen the credit of the Plot But contrive to destroy as many as they thought fit to be Massacred in forme of a legal process and to charge them with a design of raising Rebellion against the King They had made a List of a great number whom they intended to charge principal Nobles and worthy Gentlemen about the Town had prepared witnesses to swear the charge against them and would with more ease after the first Conviction and Execution have sworn all that they had a mind to destroy into the same guilt And thus all the truly Religious the noble good and virtuous of our Nation that had courage enough to own assert and defend the true Christianity and our Government must to the eternal dishonor of our Nation and Religion have suffered the execrable death of Traitors We have reason to think them humane when they only designed a Gun-powder Treason or a Massacre and our abhorrence of this usage dischargeth in us all reluctancy to Martyrdom Let them bring us to the Stake as Martyrs then we shall bear our Testimony to the truth of the best Religion and our Lives will not be cheaply lost but by this means we must be forced to dishonor this Religion by our deaths by a Massacre or a Gun-powder Plot the vileness cruelty and treachery of that Apostate Church had been declared to all the World and that false Religion as well as the professors of it had been rendered detestable for which end a good man would scarce refuse to dye but by this means they would have forced us to personate their own proper Crimes and Villanies and dishonor our own peaceable and holy Religion A man of Honor prefers his Honor to his Life and would redeem it by his Death But by this means we were though innocent to lose our Lives by dishonor and to fasten a stain upon our Memories by our death The Priests their impudent Lyes at their deaths in denying the matters of the Plot of which they were upon clear evidence Convicted and Sentenced must have past for truths and all our worthy men dying with protestations of their innocence must to the everlasting infamy of our Religion and Nation been accounted false and impious at their last breath there is no reason to be assign'd of the patience of God or Man towards such miscreants but that they may have time to add one impiety to another until an easie vengeance triumphs over them for though this last mentioned Plot is cleared beyond all exception their Faces are hardened and they are not yet ashamed but have since contrived and suborned Witnesses to swear the very Discovery of the first Plot to be a false contrivance of a Plot against the Papists To this purpose they suborned a Son by perjury to commit parricide against his Father the greatest Sin against Earth the other the greatest affront against Heaven What a Religion is this that must be thus supported Nay as if they did not fear or care to loose the favour of their most indulgent Prince which they have possest since he
all I cannot imagine they can pretend an umbrage from the Holy Scriptures for such unheard of opinions The Jews indeed had a Government and Laws of Gods framing and appointment and a King of their own choosing and such a King as they desired by God's permission they had But their form of Government ought with less reason to be the Rule of all kingly Governors because it was a Government chosen by themselves then the Laws of the Jews ought to be the Laws of all Nations which they are not though made and enacted by God himself Christ would not make himself a Judge in a private Right submitted to him He determined the right of the Roman Empire by the possession of Soveraign Authority and such as the whole world had made it his Disciples were obliged to acknowledge it by their Obedience and Submissions which is the summ of the Apostles Doctrin in this matter The Christian Religion instituted no form of Governments but enjoyns us to be obedient to those we have not only by express command in the case but by its general Rules of a most refined improved and extensive morality But though I said the Scriptures have not prescribed or directed any universal Form of Government yet the Scripture hath declared the falshood of this new Hypothesis of Kingly Government to be Jure Divino or by Divine Right For St. Peter 1 Peter 2.13 and 14. stiles Kings as well as the Governors under him the ordinance of man which cannot have any other sense but that men make them and give them their powers By St. Paul the power of Government indeed is called Gods Ordnance Rom. 13.2 but that is for this reason because in general God approves of Governments as necessary to the well being of Mankind for the improvement of humane nature for the punishing of Vice Encouragement and security of virtue without them it being impossible to live honestly and in peace And he hath made them the under Ministers of his providence and care over Mankind and expects of them that they should promote his true Honor and Worship in the World which will be always accompanied with the exercise of all civil Virtues These two different places must be so understood that they may be both true and by no other interpretation can they be reconciled and made consistent It is impossible that any thing can be of mans appointment which is of Gods Ordination there can be no such thing as a Co-legislative power of Men with their Maker Government therefore is from God as he hath made Governments necessary in the general order of things but the specification thereof is from Men and the best definition that can be made of Government is in the words of both the Apostles put together 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and such Governments which men make God approves and requires our obedience to them upon all those reasons which make Governments necessary The natural and easie consequence and result of these Scriptures is this which I desire those Gentlemen to observe That whatsoever is not lawfully established by men no Law of God not the Christian Law doth oblige us to obey The Christian Religion doth equally condemn in the reason of its Institutions Usurpation and Contumacy Where the Apostle admonisheth us that if we be free we should not become servants he hath by virtue of that Admonition made it commendable not to suffer the Encroachments of power over us Most certainly therefore as the Christian Religion doth not prejudice the Soveraign Rights of Princes such as they are in the several forms and Modells of Monarchical Governments non eripit terrestria qui regna dat coelestia as Sedulius so doth it not enlarge them when by the Gospel God made us free from his own positive Laws to the Jews he did not intend thereby de Jure to render us slaves to the Arbitrary pleasure of Men. No Man intends by any thing in the Scripture that all mankind is obliged to any one form of Government and therefore all Men are left to their own It hath not therefore altered the terms of Government and Obedience that every Nation hath Established for themselves but hath confirmed and strictly obliged the observance of them To Obedience to Government we are obliged by as many ties as there are Christian Virtues and he must disown his Christianity that departs from his due Allegiance And since our Saviour is declared King of Kings and Lord of Lords all Kings Christian Kings especially are to govern in Imitation of his mercy and goodness and in subserviency to the Interest of his Religion and Kingdom Regum timendorum in proprios greges Reges in ipsos imperium est Javis cuncta supercilio moventis Whence then is this absolute Authority of Kings if it come neither from God nor Man Give me leave now to inform you that these opinions render you all Traytors guilty of Treason of State perduellionis rei obnoxious to be punished as Traytors by an Authority lodged in Parliament In the Constitution of the Government You your selves must needs condemn your selves to have forfeited all your own who hold such Principles that tend to destroy every Mans Right by resolving all things into the absolute pleasure of a Monarch in which you mostly disserve the King and are contrary to His Majesties late Declaration The Men of these Principles the less of the Government they are entrusted with the better for the less they have to give up and betray I confess if I could believe that this Doctrin was become Orthodox among them and the prevailing opinion of the Clergy I should conclude us to be the most unhappy people under the Sun This is an Hypothesis indeed that will bring on new Heavens and a new Earth but such wherein no peace or Righteousness can ever dwell But I deem all such as are Defenders and Promoters of it do deserve a civil Excommunication more smarting then their Ecclesiastical and to be condemned to live upon and only feed themselves with their thin speculations and to be excluded from any share of that Government that they professedly in their Principles betray to be punished as seditious persons and most mischievous Schismaticks far more intolerable in this matter than the scrupulous brother-hood for their boglings at an indifferent and insignificant Ceremony For that to the ruin of our Religion and destruction of the publick peace they divide from that polity to which by drawing here their first breath they made Faith and to which the condition of their birth doth oblige them they falsify that which Arrian in his Epictetus calls the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 than which nothing is more sacred and inviolable By creating themselves a new Allegiance and obtruding it upon their fellow Citizens and Members of the same Kingdom they set up a Kingdom within a Kingdom more dangerous and mischievous than the Papal Imperium in Imperio which certainly will be introduced if this Modern and
by which it became capital is not understood as he tells us in the place before cited I shall not trouble the Reader with unfolding the matter But why doth he trouble himself to make Kings Fathers of their Countries some cannot be so and some have no mind to be so and yet they ought to be Kings And some that have not been Kings have been so and so styled as the great M. Tully for defeating the Catiline Conspiracy He was by decree of the Senate call'd Pater Patriae Those are with reason truly called Patres patriae which either relieve their Country from miserable pressures which is the civil death of a Nation and for this reason our King hath the honor of being called Pater Patriae and we hope that he will wear that honorable Title upon a second deliverance of us from a most deplorable condition Or else such who bring the Nation to an exalted state of happiness so much beyond their old state of things that they seem to give the Nation a new civil Life Being and Birth For his etymological argument from the notation of the Word it is too putid to be insisted upon tho not more ridiculous than his Hypothesis But for that the reduction of our duty to our King to the fifth Commandment may seem to give some advantage to the Hypothesis with Fathers who know no bounds of their power over their Children It must be observed that the Decalogue is not a compleat Rule of Morality The decalogue comprised the Principal Laws of that common Wealth which God their Law giver by a most Solemn Act of his Legislation did more awfully oblige them to observe God that time was their King Rebellion was as Idolatry and the sin of Witchcraft and the Defection of one of their Cities to Idolatry was punished as a revolt and Rebellion Deut. 13. v. 15. He had provided for his honor and worship and their Allegiance in the first Table and did design by the 5th Commandment to lay the Foundation of all positive morality by providing for a Reciprocation of kindnesses by injoyning the gratitude and fitting returns of Children to their Parents and by putting Children under obligations to be taught and instructed by their Parents But our duty to Governors is more duly referred to all the other Commandments because Government secures the observation of those Laws to us by which we enjoy our selves and ours freed from the Violations of Lust Appetite Fraud and Violence We do not honor our King by relief in his fortune which is commanded to be done by our Parents in the precept of honoring them our subsidies and Aids are not to that purpose but contributions to the charges of the Government they are the just price of our immunity protection from fraud and violence for which cause pay we tribute But whosoever he be that hath more respect for this Knights works then I have may find him more gently treated by a very worthy Gentleman in a very candid and judicious book called Patriarcha non Monarcha But what is the meaning of these flattering Books they cannot but be nauseous to His Majesty who is a very wise Prince and knows how sensless such Books are and besides they make the People afraid and the Nation unquiet from the apprehensions they give that the Government will be changed Notwithstanding the King hath given such solemn assurance to the Nation by his late Declaration that we shall have frequent Parliaments and that he will govern by Law They would have had a better market for the Divinity they bestow upon Princes with Alexander after he had lost his Virtue and with those Vile Emperors whose Names are Regum opprobria for such the flatterers of antient times Deifyed those who had ceas'd to be men they made Gods and when they had left nothing about them that was tolerable they magnified their power which was already most intolerable If the Kings hereafter would but read the History of Kings under that conclusion that a wise observer of Humane Events made after a long observation and experience and would make experiments of the truth of it in their own reading Kings would be glorious and the Nations they govern happy and full of peace They would find therein so many effectual Documents to fear God and regard men and govern them righteously Si Vitam spectes hominum si denique Mores Artem vim fraudem cuncta putes agere Si propiùs spectes fortuna est arbitra Rerum Nescis quid dicis sed tamen esse putas At penitus si introspicias ultima primis Connectas solus rector in orbe Deus Alciat People can be no happyer than Government and Laws design to make them though they do not alwayes answer the good designments of the Government To what purpose then are these new Hypotheses fram'd and published Kings are exempted by their Office and the sacredness of their persons from all fears but the fears of Nature and these can never be discharg'd Those who do ill will fear ill Eternally tho their power were made little less than omnipotent for the frame of Humane Nature hath made it necessary to be so Besides God hath made one thing against another there is a Divine Nemesis interwoven in the Nature of things and God will always govern the World Omne sub regno duriore regnum The great Mogul at his inauguration swears that his People shall be at peace at home and victorious abroad afflicted neither with plague nor famine but enjoy Health and Plenty all his days This seems extraordinary Pompous and Arrogant but it means no more than this that he will govern them so vertuously that Gods Providence shall be always propitious to his People and is no more in plain English than what our Church offers up in her publick prayers for the King viz. That he may govern us in Wealth Peace and Godliness that he may live long and so govern us ought to be every honest mans Prayers But after all these vain Hypotheses contriv'd for making Kings absolute it will be more easie for Kings to make their reigns unquiet and turn their Kingdoms into Shambles But lastly to revive the Antient Zeal of the true members of the Church of England against Popery To rectify the mistakes of some Gentlemen of the Clergy about the Dissenters And of our late Parliaments and their proceedings in reference to them Let it be considered how unreasonable their apprehensions are of any danger to the Church of England from the desires of the House of Commons of some indulgence or toleration in favor of the Dissenters at this time especially when the Protestant Religion is so shrewdly beset she hath reason now sure to take all such for her friends that are heartily Enemies to Popery tho not so skillful as they should be to ward off its assaults Since the Papists presume to call them Fanaticks tho exactly conformable to the Church of England that
difficult to tell how that late unhappy War began or how it came to issue so Tragically in the Death of the Late King though we know how it ended viz. The Nation recovered within twelve years after the most deplored Death of that excellent King into a renowned Loyalty and in spight of a great Armed Power never before foil'd ever victorious then kept on foot for the interest of a very few men restored our present King may his Reign be long and happy to the Government of his Kingdoms without the least assistance of any of the Cavalier party and oblig'd a wary General in the head of a factious and republican army to Loyalty Nay within that time also the Nation had recovered out of their partial Lapse into Fanaticisme bread up great numbers of excellent Schollars who masterd the prejudices of those times were reverenced by the chief of the Presbyterian party and are the beauty and strength of the Church of England at this time The Presbyterians themselves were grown reconcileable to the Church of England and had learnt by woful experience the mischievousness of Schisme upon no better pretences than what then might have been satisfied and accommodated When the King and Church were restored Fanaticisme had expired if some old peevish and stiff Church-men had not studied obstacles against a universal accommodation and some crafty Statesmen had not projected that the continuance of the Schisme would be of great service some time or other to destroy the Church of England and change our antient Government which is now apparently the Popish Plot and if ever it be effected it will be with this trick of affrighting the Church of England with the apprehension of Fanaticisme and making them suspicious of Parliaments As many of them as are drawn into an opinion of the disloyalty of our late Parliaments the illusions of the Popish Plot hath passed upon them and they are under the power of its fascinations But both the Loyalty of the late Parliaments and also how much it imports the Plotters to have it believed that they design upon the present Government will at once be clearly understood if it be considered what hath been done for the forging of a Protestant Plot which was intended at the first opening to extend to the House of Commons Things so wicked as would make a virtuous man ashamed of the age he lives in But after all endeavors to find witnesses for their purpose powerful encouragements and great rewards they have drawn none into their assistance but who are publickly known for Rogues or who wanted Bread or had no Reputation to loose If the falshood of this forged Plot had not been utterly improbable they might have procured better seeming and more credible witnesses They might sure have found in this age men bad enough not already infamous to have testified a probable Lye But so necessary it is to the Popish design that a Protestant Plot be believed that they are not discouraged at the manifest detection of their conspiracies perjuries and subornations but will still go on as if they had a power to work miracles of villany for their Religion which is no better Our modern Politicians have been most observant agreeably to their virtuous make how frauds perjuries and violence have prospered and succeeded in some particular cases and have brought about some designs imagine such means throughly multiplied to be able to conquer all things which they design But these Arts which have had success by the permission of God when one Villain hath been to destroy another will not pass upon the Protestant Religion Let them seriously in time despair and give over such enterprises For there is no Enchantment against Jacob nor Divination against Israel the Lot of Gods inheritance and his peculiar Care If Mordecai be of the Seed of the Jews Haman shall fall before him It is matter of comfort to us and dispair to the Plotters that not one of their Plots yet but hath proved Abortive or they have been defeated by their very success Besides pray let it be observed how this Design of lessening our just confidence in Parliaments is otherwise carried on and promoted It is now become the principal business of the Mercenary Writers for the Plot to pick up and cull out all the enormities and irregularities of those times the Vitia temporum and stories of wild pranks of some beastly Fanatical people that exceeded the common degeneracy of those ill times into which the Nation by undicernable degrees so fouly lapsed to make thereof an ugly Vizard and this they clap unduly upon four fifths of the Nation upon all that love and adhere to our Government and Religion to render them suspected of destroying again the English Monarchy and the Protestant Religion even for those very proceedings that they make for preserving both For the service of Popery requires that whosoever opposes it must be branded with Treason and Fanaticisme that such delicate persons as are fond of the name of Loyalty though they understand not in what it consists that hate the name of Fanatick since it is become as common a name of reproach as the Son of a Whore though they understand not so well what it means will be sure so to behave themselves as to be reckoned for Loyal and not Fanatical by taking the measures of the one and the other according to the new notion of the Plot Writers may become theirs with all their idle prattle But let them make their best of this foolish sort of men if that was all they could effect by this project But they design further upon the Nation viz. to match the fears of Popery with a fear as great of the like Evils to those of Forty one as if these Plotters had power by their interest to raise a new War when we have power and authority in our Government if it were exerted to destroy them by Justice But these State Mountebanks think it convenient because the Nation was cast into a Frenzy in Forty one therefore now when in perfect health we are to be cast into a Lethargy to prevent our relapse and in the mean time they intend we should perish insensibly and quietly that way they design to destroy us It is since the Discovery of the Popish Plot that Popish Mercenaries have been hired to write virulent Libels against the Church and bitter invectives against Fanaticks Out of the same Mint came a villanous Libel called Omnia Comesta a Belo against the Church apt to render the Church-men suspicious of another detestable Sacriledge designed And that loathsome Print entitled the Committee or Popery in Masquerade Many parts whereof hath no other reason of belief but that they have been the Subject of some drunken Rhimes in former times but it is in the whole an insufferable Libel against the Nation by its application to this age These Mercenaries are the Authors as well of treasonable Libels against the King which they