the Bishops Protestation nor the Temporal Lords Negative Voice nor the Kings Le Roy S'avisera are sufficient to hold the Ballance even when the Commons depart from the Principles of Honour Justice and Loyalty And as they never pretended to be infallible so have they not always been observed to be so calm and steddy in their Proceedings as becomes the Wisdom and Honour of so Grave and Solemn a Convention In 50 E. 3. they desired that the Lord Latimer the King's Chamberlain for pretended Oppression might lose all his Offices and be no longer of the King's Council which the King granted yet afterwards 51 E. 3. at the Request of the Commons themselves he was restored to all and declared innocent This Gentleman was so sensible of this their Prejudice and Rashness attended with so much Levity that he could not pass it by without setting some Remark upon it p. 12. But when Justice Loyalty and Honour governs their Debates and Resolutions we may put the King and to use his own Illustration all the Three Estates of Parliament into the same Nest of Boxes and yet their respective Interests which is the Interest of the whole Kingdom interwoven will be secure and preserv'd inviolate But the Gentleman tells us further That if the Bishops be one of the Three Estates nothing can pass in Parliament without them This may be generally true among States coordinate without a Sovereign Head over them and when a Rival is set up to give Check-mate to the Sovereign Authority as it was in the time of Hen. 8. mentioned by this Gentleman at p. 92. when the Question was To whom the Supream Jurisdiction did belong to the King or to the Pope In the time of such a Competition the Crown is obliged to secure it self against such an Usurpation and does most justly abandon the Clergy that sides with it But 2. If Acts have passed without the Bishops they have likewise done so as by him is said sometimes without the Commons Egbert who first united the Seven Kingdoms of the Saxons under the common Name of England he caus'd to be conven'd at London His Bishops and Peers of the highest Rank to advise upon some course against the Danish Pyrates this was a Military Business and Bloud-shed might have ensued upon the Stubbornness of those Pyrates who infested the Sea-Coast of England And King Ethelwolph in Parliament or Assembly of his States at Winchester Anno 855. These Great Councils were the Parliaments of those Times Let. p. 72. by the Advide and Counsel of the Bishops and Nobility confirm'd unto the Clergy the Tenth Part of all mens Goods and Ordered that the Tythe so confirmed unto them should be free from all Secular Services and Impositions And Wingate in his Abridgment and the World Parliament tells us out of the Mirrour of Justices of an Act in Aelfred's Time That Parliaments should be held twice a year and oftner if need requir'd But note saith he This was by the King and Lords only And I believe we may observe the like practice among some of this Gentleman's Precedents But it is much more satisfactory when the Laws are Enacted by the Sovereign Authority at the Request of the Commons with the consent of the Lords Spiritual and Temporal that is by the King with the joint Assent of the Three Estates of Parliament let us not therefore dissolve or drive them away when we have them That which is alledged out of Bishop Jewel and Crompton p. 93. to 98. I refer you to the Answer of the Quodlibetical Question for your satisfaction That King James was of this Judgment is evident from the very Words and Speech produced by this Gentleman to the contrary The Parliament saith he is composed of a Head and a Body The Head is the King the Body are the Members of the Parliament This Body again is subdivided into two parts the Upper and the Lower House the Upper House compounded partly of Nobility Temporal men who are Hereditable Counsellors to the High Court of Parliament by the Honour of their Creation and Lands and partly of Bishops Spiritual men who are likewise by virtue of their Place and Dignity Counsellors ad vitam Life-Renters of this Court. The other House is compos'd of Knights for the Shires and Gentry and Burgesses for the Towns Here we see though the King makes but Two Houses yet he does clearly distinguish them into Three Estates though he does not call them so To what is said by Stephen Gardiner and Finch I oppose the Testimonies of Livy Selden Cooke and Sheppard To the Expressions of the Late King of B. Memory in his Answer to the 19 Propos when he was fluctuating in the midst of a Storm gathering round about him and to the Declaration of the Commons 2 H. 4. n. 32. I might Answer That the Upper House in a large sense consisting of Lords Spiritual and Temporal sitting and voting together may be taken for One Estate But taken precisely and in a strict sense as their Concerns and Interests are distinct so they are clearly Two But to those Authorities I shall rather oppose the Act of Recognition 1 Eliz. 3. Where the Lords Spiritual and Temporal and the Commons in that Parliament Assembled do Recognize the Queens Majesty to be their true lawful and undoubted Sovereign Lieged Lady and Queen in these words We Your most Faithful Loving and Obedient Subjects representing the Three Estates of this Realm which evidently sheweth the Queen was not there esteemed one So when the Funerals of Hen. 5. were ended the Three Estates did Assembled and Acknowledge his Son King To think to elude such Evidence by saying as this Gentleman does in the like case that such Expressions are delivered obiter upon the By is to make what we fancy not in any Statute utterly void and of none effect The next Question concerns the Bishops Peerage For the Affirmative we have these things to say 1. That the Prelates are called by the same Writ for Form and Manner with that directed to the Temporal Barons so the Answer to the Quodlibetical Question That they Sit and Vote there by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in respect of their Baronies Hereupon they affirm to the Lords Temporal in Parliament holden at Northampton Hen. 2. as Selden reports We sit not here as Bishops only but as Barons we are Barons and you are Barons here we sit as Peers And some Statutes call them Peers of the Land in terminis 2. 'T is his Grace of Canterbury's Title Primus Par Angliae That the first Peer should be no Peer is an unheard of Solecism If he be a Peer the rest of the Bishops are his Com-peers what ever they are to the Lords Temporal John Stratford Archbishop of that place in the time of Ed. 3 claim'd this Priviledge in the Right of his See And the Protestat of W. Courtney elsewhere mentioned
But because some things were to be transacted in that Parliament at which by the Decrees of the Sacred Canons it was not lawful for them to be personally present therefore they protested that while such things were in agitation they would absent themselves Which Protestation being read in Full Parliament at the instance and prayer of the Archbishop and other Prelates was entred upon the Parliament-Roll by the Kings Command with the Assent of the Lords Temporal and Commons This the Gentleman will needs contend to be a Law of Parliament or a Law of the Land Why Because it was entred in the Roll or Journal-Book that such a thing was agreed upon by the King and Two Houses Which saith he was all the Formality of passing Laws in Parliament p. 23. in those times But what was it that the Bishops petitioned might be entred upon the Parliament-Roll Was it the Decree of the Sacred Canons which debarr'd their presence in the House at such Debates That indeed had been somewhat to the purpose but here was no such matter desired it was their Protestation and if every thing that is entred upon the Parliament-Roll by the Agreement of the King and the Two Houses becomes an Act of Parliament forthwith then let this Protestation for the present pass for an Act of Parliament and we shall see anon what it will amount to In the Interim let us return to the Constitutions of Clarendon where there seems to be most colour for such a Confirmation There we may observe Two things in that 11th Constitution a Duty enjoyned the Prelates attendance at the Kings Courts and then a Liberty or Priviledge indulged That they may withdraw and forbear that attendance when it comes to sentence for loss of Life or Member That this is a Priviledge or a Liberty cannot be denyed Mat. Paris reckons it inter Libertates amongst the Ancient Liberties * Let. p. 71. and this Gentleman could not chuse but observe it though it was not for his purpose to distinguish this Priviledge from the Injunction One would think saith he they the Bishops might look upon it as a Right and Priviledge to be exempt from being obliged to attend in such Cases Cases of Blood It a Priviledge then I may use or I may forbear it To say I may do such a thing therefore I shall do it is irrational ill Logick and worse Polity Priviledges say the Lawyers are Franchises and Liberties or Immunities granted to a Person an Office or a Corporation Such as have them may either enjoy or refuse them It is the Priviledge of Attorneys and Clerks in they Kings Bench they cannot be prest for Soldiers they cannot be compell'd to bear Offices in their Parishes yet Volunteers they may be in both Cases No man should be compell'd to use his Priviledge for then his Franchise would be no Liberty but the more inthrall him We may observe accordingly that the Prelates very well understood this their Liberty for sometimes they would use their Priviledge absent themselves when Cases Capital were upon Trial and withdraw when Matters of Blood were in agitation and this is obvious to every eye in the perusal of the Gentlemans Letters But many times which is very considerable in the Case when they did withdraw they either made a Proxy to represent them or entered their Protestation to preserve their Rights 'T is true the Gentleman does except against their way of Proxy's as Unparliamentary and three or four exceptions he hath which are sufficient to elude and Testimony For either it is Error Temporis an Errour of those times of spoken obiter upon the By and of no importance or it is unparliamentary and extravagant or else Repealed Such a provision of Evasions as may serve to help a man out of the Noose of any Argument that can be produced in Matters of this Nature For the Protestation he would elude the force of that by saying Their Salvo that which they would ensure to themselves is their Right of sitting to consult p. 21. treat of and determine in that and all other Parliaments when Capital Cases are not in question but there was no need of a Protestation to this effect This was their Duty to which the Clarendon Constitution and a Solemn Oath obliged them When men protest a Right 't is not to be understood of that Right which no man doubts of and therefore is not liable to question but of that Right which they give some colour to be question'd because they decline and forbear the use and practice of it This was a Right to debate vote and sit as Judges in Cases Capital if possibly the Decree of that Canon should come to be null as now it is or altered I must not forget to tell you of two Rules observable about such Priviledges as are granted to Subjects by the King as this of the Clarendon Constitution was to the Prelates The first is That they are not to be uâ—derstood to debar the Kings Commands nor ought to be a Supersedeas to his Sovereign Authority for this were a derogation to his Royal Office a diminution to his Crown and Dignity not to be granted by him upon any pretence whatsoever By the constitutions of Clarendon the King did exempt the Bishops from attending his Court of Parliament at such Trials in Capital Cases in general but he did not absolve them from their Duty and Obedience to his own special commands upon any just occasion Hereupon in the 11th Hen. 2. Archbishop Becket in a Solemn Council at Northampton being accused of Treason and other Misdemeanors where Bishops were his Judges as well as Temporal Lords when those Lords and Bishops could not agree about pronouncing the Judgment they putting it off from one to the other at last the King commanded the Bishop of Winchester to do it This hapned soon after the Ratification of the Clarendon Constitution which all the Lords and Bishops had taken their corporal Oath to observe for ever And it is not to be imagined they could forget what had been so lately done amongst them wherefore we must conclude that they did not take themselves to be obliged either by that Oath or Constitution to absent themselves alwayes from such Trials for though the Constitution saith Debent interesse judiciis curiae Regis sicut caeteri Barones That they ought as well as other Barons to attend all the Judgments of the Kings Court quousque perveniatur ad diminutionem membrorum vel ad mortem till the Matter comes to Sentence for the loss of Life or Member Yet whatsoever William Lord Archbishop of Canterbury and the rest of the Bishops had said in their Protestation 11 R. 2. The Constitution of Clarendon doth not say Debent se absentare that the Bishops ought to withdraw and absent themselves from such Sentence p. 60 61. This Gentleman endeavours to invalidate this so pregnant an Evidence because it is taken out of a Manuscript made by
he was condemn'd to seek his Pardon 13. 21 R. 2. In this Parliament the Bishops were present by their Representative by Proxy and that three several times upon three several Occasions 14. 1 H. 4. Here they were present but gave no Judgment 15. 2 H. 4. It does not appear that the Bishops were present 16. 5 H. 4. The Bishops may be comprehended under the title of Peers and the Matter being found but a Trespass their right of Sitting the Gentleman cannot deny them 17. 7 H. 4. Here the King commanded the Advice only of the Lords Temporal which was a special Case 18. 5 H. 5. Here the Bishops had declared Sr. John Oldcastle Heretick and delivered the Prisoner over to the Secular Power and yet in the Sentence they may be comprized under the Title of The most wise Lords of this present Parliament 19. 2 H. 6. It is not certain the Bishops did Vote 20. 28 H. 6. The two Archbishops and 13 Bishops were present did Debate and Vote in the Case 21. 31 H. 6. The Bishops doubtless as well as in the 28 were present being Peers of the Realm as I have proved 22. 38 H. 6. The Commons did accuse the King answered He would be advised and so the Matter ended Here we have 22 Precedents cited by this Gentleman from the time of Clarendon Constitutions to the Trial of the E. of Strafford whereof one is a special Case three are insignificant and null in regard there was either nothing at all done or a stupid neglect of their Right or a careless throwing off of all Duty Four are doubtful Ten are for their presence at such Trials either in person under the Names and Titles of Bishops Prelates Peers Great men or Lords of Parliament or present virtually by their Proxies or their Protestations so that ther are but four of all the 22 for their not appearing or not voting at such Trials 5. For a Supersedeas to all further enquiry or dispute about this matter we must take notice that the Canon which required the Bishops to withdraw at all Trials in Cases Capital is abolish'd and the Lords Spiritual are under no obligation to observe it To say the Civil Sanction does still enforce it is absurd for what is that Civil Sanction but an Act of Parliament and if an Act of Parliament hath abolisht it it has likewise abolisht all other Acts which might seem to ratifie and confirm it otherwise it should be abolisht and not abolisht taken away and yet in force still which are Contradictions and absurd The Gentleman takes notice of this to be the Bishops Plea p. 67 68. That it is only by the Canon Law that this restraint is upon them and that the forbearance of their Predecessors being Papists and so subject to that Law was only in that respect which Law being of no force at present and taken away by Act of Parliament they are now at liberty though in Modesty they think fit sometimes to withdraw but have a Right to continue sitting if they please What does the Gentleman answer to this He saith I do not deny but the Canon Law might give the first rise to such an Usage but it came afterward to receive a civil Sanction the stamp of Parliament-Authority and several confirmation ibid. But I have evinced already that his Allegations do not prove what he pretends to undertake and the practice of the Bishops withdrawing at such Trials having no other bottom to relie on than the Canon Law That being absolutely dissolved and broken by Act of Parliament cannot now support it 6. And lastly Seeing there is no other Authority to continue and inure this practice but that Popish Canon I should think it a very dangerous thing if the King should be severe for any person to attempt it for upon the Clergies submission to the King 25 H. 8.19 the Statute saith thus Be it therefore now enacted by Authority of this present Parliament according to the said submission and petition of the said Clergy that they nor any of them from henceforth shall presume to attempt alledge claim or put in ure any Constitutions or Ordinances Provincials or Synodas or any other Canons unless the same Clergy may have the Kings most Royal Assent and Licence upon pain of every one of the same Clergy doing contrary to this Act and being thereof convict to suffer imprisonment and make fine at the Kings Will. After those Precedents above-mentioned the next the Gentleman meets with was the Earl of Straffords whose Trial in Parliament was compleated in a Judicial way but he was attainted and condemned by the Legislative Power where this Gentleman does acknowledge a Right in the Bishops to be present Why they did then withdraw themselves such as were not Eye-witnesses or Observers of those times may best learn from Mr. Hobbes his History of them To conclude the Author does protest that he hath the very same Design Aim and Wishes with that Gentleman for that Right may prevail is the natural wish of every good man And the prevention of those Mischiefs which the Enemies to our Religion and Government have plotted and do atchieve to put in execution has incited me to this task to satisfie my self and others where the Right is My Sentiments herein I humbly submit to the High and Honourable Court of Parliament and if I have written any thing that gives a just cause of offence to my Superiors I do here solemnly retract it This Gentleman is Ingenuous and leaves his Reader to his Liberty to weigh the Arguments on both Sides and judge for himself I have taken the freedom he allows me and delivered my Opinion I pray take you the same course without Partiality and then judge for your self FINIS
AN ANSWER TO THE GENTLEMANS Letter to his Friend SHEWING THAT BISHOPS MAY BE JUDGES IN Causes Capital PSAL. 82.1 Deus stat in Congregatione Dei in medio Deorum judicat LONDON Printed by Tho. Braddyll for Robert Clavell at the Peacock in S. Pauls Church-Yard 1680. AN ANSWER TO THE GENTLEMAN's Letter to his Friend SHEWING THAT BISHOPS MAY BE JUDGES IN CAUSES CAPITAL SIR I Thank you for the Gentleman's Letter you sent me touching the Right of Bishops sitting as Judges in Cases Capital This Order of Men is not Sacred enough it seems in the Constitution to secure it against the Iniquity of these last Times Attempts of Rage and Extirpation Not to mention Martin Mar-Prelates nor others of former Times within our own Memory Mr. Prym led up the Van against them 1640. in a Book of this Title viz. Lord-Bishops none of the Lords Bishops After their Divine or Apostolical Constitution they began to question their Right to Sit in Parliament This occasioned that Quodlibetical Question Whether the Bishops make a Fundamental and Essential part of the English Parliament The Rational and Solid Answer to which Question was Printed in 1661 and now Reprinted as then put forth at first for the Information of some the Confirmation of others and the satisfaction of all The Gentleman who wrote this Letter seems to grant the Bishops a large share of Power within this Kingdom yet as to Secular Matters he does insinuate some kind of Prohibition they are supposed to lie under though his Arguments are very inconsequent to prove it The Rescript of Honorius he saith Theodosius the Decree of Justinian forbid them to have to do in Secular Matters Therefore the Kings of England who are of another Mind upon good experience of their judgment and fidelity may not admit them to have any Communion with Publick Functions Nor is the Argument less inconsequent which the Gentleman insinuates from the Apostles Declaration and Practice The Argument must be this A few men are appointed by our Lord to propagate the Gospel and plant the Christian Church all the world over and they think it unreasonable they should neglect this generous Employment impos'd upon them immediately from Heaven to serve Tables that is to relieve the Temporal Needs of indigent Disciples therefore when the Church is generally established Bishops setled in every Diocess and Ministers in every Parish it is equally unreasonable that the King should intrust any of the Clergy with any Secular Employments But after these By-blows this Gentleman tells us This is none of his business which he had therefore done better to have let alone 'T is the Critical point he stands upon which he calls Vexata Quaestio what is to be done in Parliament that is in their Judicial way upon Trials not in their Legislative Capacity passing Acts of Attainder in which the Gentleman is pleased to confess I know that Bishops have born a part but saith he that is not now the Question but only this Whether the Lords Spiritual have a Right to stay and sit in Court till the Court proceeds to the Vote of Guilty or Not Guilty This Gentleman concludes They ought not But the Question truly and precisely stated is only this Whether of Right they may or may not And having diligently examined what hath been said on both sides as the Gentleman hath advised me I profess to differ from him finding no sufficient Reason to change my Opinion which is for the Affirmative But the better to carry on his Negative this Gentleman falls upon Two Questions more which may be thought preliminary to this other The First is touching the Peerage of the Lords Spiritual The Second Whether they make a Third Estate in Parliament These two fall in collaterally and must be considered before we fall upon his main Battalia mustered up for the Defence of the Opinion we oppugn 1. That the Bishops make a Third Estate in Parliament there is very much alledged in the Treatise forementioned from the Examples of all Christian Kingdoms of the Gothick Model from Titus Livius Sir Edward Cooke the Parliament Rolls of King Richard the Third and the Recognition of the Lords Spiritual and Temporal with the Commons 1 Eliz. 3. 8. and what is argued from thence p. 16 17. of the Rebels Plea Printed 1660. to which I shall add that Mr. Sheppard in his Grand Abridgment and the Word Parliament tells us That the Parliament in England is the Assembly of the King and the Three Estates of the Realm viz. the Lords Spiritual the Lords Temporal and the Commons And this Gentleman does acknowledge p. 86 that the Subjects of England are divided into Three Estates The Nobility the Clergy and the Commonalty These he saith are the several Estates of the Kingdom But if the Bishops be not One of these Estates then one of the Three Estates of the Kingdom is not Represented at all in Parliament for he saith p. 88. that the Convocation where all the Clergy are present in their Persons or their Representatives is no part of the Parliament which is absurd The Authority of Mr. Selden to the contraay is most consonant to Reason and the Practice at the Ratification of the Peace with the French King 9 H. 5. 11 H. 7. are further Confirmations of it But this Gentleman saith p. 88. The Three Estates of Parliament are clean another thing each must have a Negative Voice to all that passeth there I might take notice by the By of his Mistake herein for there is nothing passeth where use is made of the Negative Voice but I must observe that this is a cleanly begging of the Question As for the Bishops being intermingled with the Earls and Barons and so if they be an Estate it is an Estate within an Estate like a Nest of Boxes one within another there is no absurdity at all in it for when Christianity had prevail'd not to recur to the time when all the Members of Parliament sate in one House together the Piety and Prudence of those times thought the State of the Church with all its Rights and Interest safe enough among the Nobility without any peculiar Negative voice to secure it and yet the Bishops Right of Protesting upon just occasion serves very well instead of such a Negative But this Gentleman thinks it would be a great Disparagement to the Peerage of England that Two Estates must be put together to keep the Ballance even with the House of Commons who are but One Estate and that their Two should signifie no more than that One taking no notice how much more they signifie though they do very much To this I answer in the general That Numbers of persons add no Right or Priviledge to a Politick Estate The Peerage of England had the same Power arid Dignity when they were not half so Numerous But to be more particular Experience tells us and we have an Instance too fresh in memory That neither