Barons here we sit as Peers Which last is also verified in terminis by the words of a Statute or Act of Parliament wherein the Bishops are acknowledged to be Peers of the Land But to proceed more particularly to our proofs de facto after the alteration of their Tenures by the Norman Conqueror we find a Parliament assembled in the fifth year of that King wherein are present Episcopi Abbates Comites Primates totius Angliae †the * Math. Paris in Willi elmo 1. Bishops Abbots Earls and the rest of the Baronage of England And 3ly In the ninth year of William Rufus an old Author telleth us de Regni statu acturus Episcopos Abbates quoscunque Regni Proceres in unum praecepti sui sanctione egit that being to consult of the Affairs of the Kingdom he called together by his Writ the Bishops Abbots and all the Peers of the Realm (†) Edmor hist Mov l. 2. And 2ly During the Reign of King Henry the first for we will take but one example out of each Kings Reign though each Kings Reign would yeild us more a Parliament was called at London wherein were many things dispatched aa well of Ecclesiastical as Secular nature the Bishops and Abbots being present with the other Lords Coacto apud Londinium Magno Episcoporum Procerum Abbatumque concilio multa Ecclesiasticarum Secularium rerum ordinata negotia decisa Litigia saith the Monk of Malmsbury (†) Malmbs Hist Reg. Ang. l. 5. and of this Parliament it is I take it that Edmor speaketh Hist. Novel l. 4. p. 91. Proceed we 4ly to King Henry the second for King Stephens Reign was so full of Wars and Tumults that there is very little to be found of Parliaments and there we find the Bishops with the other Peers convened in Parliament for the determination of the points in controversy between Alphonso King of Castile and Sancho King of Navarre referred by com-promise to the King of England and here determined by King Henry amongst other things Habito cum Episcopis Comitibus Baronibus cum deliberatione Consilio as in Roger Hoveden (†) Hoveden Annal. pac Rose in H. 2. 5ly Next time comes Richard the first his Son during whose Imprisonment by the D. of Austria his Brother John then Earl of Moriton endeavoured by force and cunning in Normandy to set the Crown on his own head which caused Hubert the Archbishop of Canterbury to call a Parliament Convocatis coram eo Episcopis Comitibus Baronibus Regni (†) Id. in Ioh. wherein the Bishops Earls and Barons did with one consent agree to seize on his Estate and suppress his power the better to preserve the Kingdom in Wealth Peace and Safety 6ly After succeeded John and he calls a Parliament wherein were certain Laws made for the defence of this Kingdom Communi assensu Archiepiscoporum Episcoporum Comitum Baronum omnium fidelium suorum Angliae by the Common Counsel and Assent of the Archbishops Bishops Earls Barons and the rest of his Lieges Remember what was said before touching the Writ of Summons in the said Kings time from this time till the last Parliament of King Charles there is no Kings Reign of which we have not many though not all the Acts of Parliament still it Print amongst us Nor is there any Act of Parliament in the Printed Books to the Enacting of which the Bishops Approbation and Consent is not plainly specified either in the general Proem set before the Acts or in the Body of the Acts themselves as by the Books themselves doth at large appear 7ly And to this kind of proof may be further added the Form and manner of the Writ by which the Prelates in all times have been called to Parliament being the very Law Verbatim with that which is directed to the Temporal Barons save that the Spiritual Lords are commanded to attend the Service in fide dilectione the Temporal in fide Homagio and of late times in fide Ligeantia quibus nobis tenemini A Form or Copy of which Summons as ancient as King John's time is still reserved upon Record directed Nominatim to the Archbishop of Canterbury (†) Titles of Hon. part 2. cap. 1. and then a Scriptum est similiter to the residue of the Bishops Abbots Earls and Barons Then add the Privilege of Parliament for themselves and their Servants during the time of the Sessions the Liberty to kill and take one or two of the Kings Deer as they pass by any of his Forests in coming to Parliament upon his Commandment (*) Charta de forest cap. their enjoying of the same Immunities which are and have been heretofore enjoyed by the Temporal Barons (†) Camden in Briiania and tell me if the Bishops did not sit in Parliament by as good a Title as the Temporal Lords and therefore Essential Fundamental parts of the Court of Parliament By this Discourse it may appear that the Bishops Sit and Vote in Parliament by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in regard of their Baronies In both respects accounted one of the Three Estates and the first also of the Three as from the Premises may be gathered without any great trouble But in so nice a point as this we shall not only build upon general Inferences but particular Evidences And first it is affirmed by Titus Livius in his Relation of the Life and Reign of King Henry the 5th That when his Funerals were ended the three Estates of the Realm of England did assemble together and declare his Son King Henry the 6th being an Infant of 8 Months old to be their Sovereign Lord †as his Heir and Successor And three Estates there * Tit. Liv. M. S. in Bib. Bodl. could not be to perform that Service unless the Bishops were acknowledged to be one of the number 2ly In the Parliament Rolls of King Richard the third there is mention of a Bill or Parchment presented to that Prince being then Duke of Glocester on the behalf and in the Name of the Three Estates of the Realm of England that is to wit the Lords Spiritual and Temporal and of the Commons by name which forasmuch as neither the said Three Estates nor the persons which delivered it on their behalf were then assembled in form of Parliament was afterwards in the first Parliament of that King by the same Three Estates Assembled in this present Parliament I speak the very words of the Act it self and by Authority of the same Enrolled Recorded and Approved (*) An. Speed in K. R. 3 and at the request and by the assent of the Three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by Authority of the same it be pronounced decreed and declared that our said Sovereign Lord the King was
not see if he hath any eyes that by this reason if the proof be good many good Acts of Parliament may be made though the Commons either out of absence or opposition should not consent unto the same of whose consent unto that Statute whosoever it was there is as little to be found in that Record as the concurrence of the Bishops But for answer unto so much of this Record so often spoke of and applauded as concerns the Bishops we say that this if it be truly senced as I think it is not was the particular Act of an Angry and Offended King against his Clergy not to be drawn into example as a proof or Argument against a most clear known and undoubted Right The Cause stood thus A Constitution had been made by Boniface the 8th Ne aliqua collecta ex ecclesiasticis proventibus Regi aut cuivis alii Principi concedatur (†) Math. West in E. 1. that Clergy-men should not pay any Tax or Tallage unto Kings or Princes out of their Spiritual Preferments without the leave of the Pope Under pretence whereof the Clergy at this Parliament at St. Edmonsbury refused to be contributary to the Kings occasions when the Lay-Members of the House had been forwards in it The King being herewith much offended gives them a further Day to consider of it Adjourning the Parliament to London there to begin on the morrow after St. Hilaries Day and in the mean time commanded all their Barns to be fast sealed up The day being come and the Clergy still persisting in their former obstinacy Excluso è Parliamento Clero Consilium Rex cum solis Baronibus populo habuit totumque statim Clerum protectione sua privavit (*) Antiqu. Brit. in R. Winchelsey The King saith the Historian excluding the Clergy out of the Parliament advised with his Barons and his People only what was best to be done by whose Advice he put the Clergy out of his protection and thereby forced them to conform to his Will and Pleasure This is the Summa totalis of the Business and comes unto no more but this that a particular course was advised in Parliament on a particular Displeasure taken by the King against the Body of his Clergy then convened together for their particular refusal to contribute to his Wants and Wars the better to reduce them to their natural Duty Which makes not any thing at all against the Right of Bishops in the House of Peers or for excluding them that House or for the validity of such Acts as are made in Parliament during the time of such exclusion especially considering that the King shortly after called his States together and did excuse himself for many extravagant Acts which he had committed (†) Wolsingh in E. 1. An. 1297. against the Liberties of the Subject whereof this was one laying the blame thereof on his great occasions and the necessity which the Wars which he had abroad did impose upon him And so much as in Answer unto that Record supposing that the words thereof be rightly senced as I think they are not and that by Clerus there we are to understand Archbishops and Bishops as I think we be not there being no Record I dare boldly say it either of History or Law in which the word Clerus serves to signifie the Archbishops and Bishops exclusive of the other Clergy or any Writing whatsoever wherein it doth either notsignifie the whole Clergy generally or the inferiour Clergy only exclusive of the Archbishops Bishops and other Prelates Therefore in answer unto that so much applauded Cavil of Excluso Clero from what Record soever it either hath been hitherto or shall hereafter be produced I shall propose it to the consideration of the sober Reader whether by Clerus in that place or in any other of that kind and time we must not understand the Inferior Clergy as they stand distinguished in the Laws from my Lords the Bishops For howsoever it be true that Clerus in the Ecclesiastical Notion of the Word doth signifie the whole Clergy generally Archbishops Bishops Priests and Deacons yet in the Legal notion of it it stands distinguished from the Prelates and signifieth only the inferiour Clergy Thus do we find the Ecclesiasticks of this Realm divided into Prelates men of Religion and other Clerks 3 E. 1. c. 1. the Seculars either into Prelates and Clerks 9 E. 2. c. 3. 1 R. 2. c 3. or Prelates and Clerks Beneficed 18 E. 3. c. 2. or generally into the Prelates and the Clergy 9 E. 2. c. 15. 14 E. c. 1. 3. 18 E. 3. 2 7. 25 E. 3. 2 4. 8 Hen. 6. c. 1. And in all Acts and Grants of Subsidies made by the Clergy to the Kings or Queens of England since the 32 d. of H. 8 when the Clergy-Subsidies first began to be confirmed by Act of Parliament So also in the Latin Idiom which comes nearest home Nos Praelati Clerus in the submission of the Clergy to King H. 8. (†) Regist Watham and in the Sentence of Divorce against Anne of Cleve (*) Regist Cranmer and in the Instrument of the Grant of the Clergy-Subsidies presented to the Kings of England ever since the 27th of Queen Eliz. and in the form of the Certificates per (†) Stat. 8 Eliz. c. 17. ever since Praelatos Clerum returned by every Bishop to the Lord High Treasurer and finally Nos Episcopi Clerus Cantuariensis Provinciae in hac Synodo more nostro solito dum Regni Parliamentum celebratur Congregati (*) Stat. 1. Phil. Mary c. 8. In the Petition to K. Philip and Mary about the Confirmation of the Abbey-Lands to the Patentees so that though many Statutes have been made in these latter times Excluso Clero the Clergy that is to say the inferior Clergy who anciently had their place in Parliaments being quite shut out and utterly excluded from those publick Councils yet this proves nothing to the Point that any Act of Parliament hath been counted good to which the Bishops were not called or at the making of which Act they either were shut out by Force or excluded by Cunning. But then besides the so much celebrated Argument of excluso Clero the Author of the Pamphlet before remembred hath told us somewhat on the credit of Kilbancies book In which the Justices are made to say 7 Hen. 8. That our Sovereign Lord the King may well hold his Parliament by him and his Temporal Lords and by the Commons also without the Spiritual Lords for that the Spiritual Lords have not any place in the Parliament Chamber by reason of their Spiritualities but by reason of their Temporal Possessions But first this is but the Opinion of a private man of no Authority or Esteem for ought we can can find in the Realm of England and therefore not concluding in so great a business And 2dly admitting him to be a man
of more note and credit than perhaps he was yet he must needs fall short in all respects both for Abilities and Reputation of Chief Justice Coke whose Judgment to the contrary we have seen before But 3ly it runs cross to the ancient practice of the Saxon Times in which the Bishops sate in Parliament as Spiritual Persons without relation to their Temporal Possessions or their Barons Fees as afterwards in the Reign of the Norman Kings And finally admitting that Kilbancies Plea were of weight enough to keep the Bishops down from rising to their place in Parliament it must be strong enough to exclude all the Temporal Lords The Temporal Lords being called to Parliament on no other ground than for the Temporal possessions which they hold by Barony Adeo argumenta ab absurdo petita ineptos habent exitus said Lactantius truly It is the Fate said he of ill chosen Premises that they produce ridiculous and absurd Conclusions There remains one Objection more and indeed the greatest not extant in the Pamphlet before remembred though possibly promoted and occasioned by it that is to say that the Bishops are excluded from their Place and Vote by Act of Prrliament deliberately made and passed by the Kings consent For answer whereunto it will be necessary first to state this Question viz Whether that any two of the the three Estates concurring or agreeing together may conclude any thing which tends to the Subversion of the third Bodinus that renwoned Statesman hath resolved it negatively and determined thus Nihil a duobus ordinibus discerni posse quo uni ex tribus incommodum inferatur c. (†) Bodin de Rep. l. 3. c. 7. That nothing can be done by two of the three Estates to the disprofit of the third in case the point proposed be such as concerns them severally and he resolved thus in favour of the Commons of the Realm of France who were upon the point of being excluded from the Parliament or Convention of the three Estates if he had not notably bestirred himself in their behalf he being then a Delegate or Commissioner for one of the Provinces and by his diligence and care preserved their Interests and to preseve their Interest he insisted cheifly on the antient custom of the Realm of France as also on the Realm of Spain and England and the Roman Empire in each of which it was received for a ruled Case Nihil a duobus ordinibus statui posse quo uni ex tribus prejudicium crearetur That nothing could be done by any of the two Estates unto the prejudice of the third And if it were a ruled Case then in the English Parliaments there is no reason why it should be otherwise in the present times the Equity and Justice of it being still the same and the same reasons for it now as forcible as they could be then Had it been otherwise resolved of in the former ages wherein the Clergy were so prevalent in all publick Counsels how easy a matter had it been for them either by joyning with all the Nobility to exclude the Commons or by joyning with the Commonalty to exclude the Nobles Or having too much Conscience to venture in so great a change and alteration so incompatible Inconsistent with the Constitution of a Parliament how easily might they have suppressed the Potency and impair the Priviledges of either of the other two by by working on the humors or affections of the one to keep down the other Nor doth it help the matter in the least degree to say that the Exclusion of the Bishops from the House of Peers was not done meerly by the procurement of some of the other two Estates but by the Assent of the King of whom the Laws say He can do no wrong and by an Act of Parliament whereof our Lawyers say que nul doit imaginer chose dishonourable that no man is to think (†) Plowden in Commen dishonourable For we know well in what condition the King was when he passed that Act to what extremities he was reduced on what terms he stood how he was forced to withdraw from his City of London to part with his dear Wife and Children and in a word so over-powred by the prevailing Party in the two Houses of Parliament that it was not safe for him as his Case then was to deny them any thing And for the Act of Parliament thus insisted on besides that the Bill had been rejected when it was first brought unto the Lords and that the greater part of the Lords were frighted out of the House when contrary unto the course of Parliament it was brought again it is a point resolved both in Law and Reason that the Parliament can do nothing to the destruction of it self and that such Acts as are under a constraint are not good and valid whereof we have a fair example in the book of Statutes (†) 15 Ed. 3. For whereas the King had granted certain Articles pretended to be granted in the Form of a Statute expresly contrary to the Laws of the Realm and his own Prerogative and Rights Royal mark it for this is just the case which he had yeilded to eschew the dangers which by denying of the same were like to follow in the same Parliament it was repealed in these following words It seemed good to the said Earles Barons and other wise men that since the Statute did not proceed of our Free Will the same be void and ought not to have the name nor strength of a Statute and therefore by their Counsel and Assent we have decreed the said Statute to be void c. Or if it should not be repealed in a Formal Manner yet is this Act however gotten void in effect already by a former Statute in which it was enacted in full Parliament and at the self same place where this Act was gained That the Great Charter by which and many other Titles the Bishops held their place in Parliament should be kept in all points and if any Statute be made to the contrary it shall be held for none (*) 42 Ed. 3. c. 6. 1. More Arguments than these against the Bishops Place and Vote in Parliament I have no where found And these being answered and refelled I hope the point in question hath been fairly proved viz. That the Bishops make a Fundamental and Essential part of our English Parliaments AN ANSWER TO THE GENTLEMAN'S 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 Firend 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
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. by the Advice These Great Councils were the Parliaments of those Times Let. p. 72. 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 Word 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 I refer you to the Answer of the Quodlibetical Question for your p. 93. to 98. 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 Assemble 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 with the rest of the Bishops is another pregnant Evidence to this purpose And 25 Edw. 3. The Prelates put up this Petition to the King as the Gentleman himself relates it p. 83. Seeing Archbishops and Bishops hold their Temporalties of the King in capite and therefore are Peers of the Land as other Earls and Barons are that you will be pleased to grant unto them that no Judge may henceforward for meer contempts cause their Temporalties to be seized Here we have a Prayer that their Temporalties may not be seized and the Reason of
Because in this present Parliament some things are to be transacted at which it is not lawful for us by the Decrees of the Holy Canons to be personally present This is the ground and reason of their protestation The wicked Customs therefore which that Monk inveighs against and which cost Becket so severe a Penance must be sought for elsewhere amongst the rest of those Sixteen Constitutions of Clarendon But whatever Opinion the Clergy of those times had of this Canon I doubt not to make it evident that it is grounded upon Principles of Superstition for as the Reverend Davenant hath Determ 11. it Quid impium quid illicitum What is in it that is impious What that is unlawful What that is contrary to the Office or Sacredness of a Priest where there is a just authority for it to bridle and restrain such as are notoriously wicked and disturbers of the Christian Commonwealth by civil penalties and corporal inflictions The Angels of Heaven think it no way disagreeable at Gods command to inflict corporal punishments upon the wicked And why should the Angels of the Church at the appointment of the King who is Gods Image upon Earth think it unlawful to adjudge the same wicked persons to deserve punishment The Act and Exercise of civil Jurisdiction of its own nature is not disagreeable to the most holy person nor any way opposite to the Sacerdotal Function We have the Authority of God himself in the practice of his most Ancient Church to justifie this Jurisdiction Under the Law God himself joyn'd it to the Sacerdotal Office it is not strange therefore nor forbidden by Divine Law that the Priest should obtain a Civil Jurisdiction We find it exemplified in Eli and Samuel and See Numb 25. 7 13. the Maccabees and all that were invested with the Office of High Priest This could not be expected amongst the Apostles because then the Civil Magistrates were not Christians yet S. Peter had once a supply of Civil Authority by a Miracle and to shew that it was not unlawful for an Apostle to give Sentence in Cases Capital He pronounc'd Saphira's Doom for Sacriledge and Lying Acts 5. 9. Behold the feet of them which buried thy Husband are at the Door and shall carry thee out But these New Masters of Israel were afraid a Sentence of Justice should defile them with the Blood of a Malefactor like the Priests and Elders among the Jews John 18. 28. when they had bought and sold the Life of our Blessed Lord and used all the Tricks that Craft and Malice could suborn to destroy him so precise they were for all that they would not go into Pilates Judgment Hall least they should be defiled and unfit to eat the Passover 'T was the Superstition of those Men to think they could render the Priests Office more Sacred and put more veneration upon his person then Gods own Institution had done They would not have him interess or concern himself in a Case of Blood least it should desecrate and unhallow his Person and stain his Function But we know that all Virtue is Ornamental and 't is as well an Act of Justice to condemn the Guilty as to acquit the Innocent 2. Here is Usurpation in this Canon and it is flatly against the King's Supremacy By this means a Foreign Power restrains the Sovereign Authority of the Kingdom from commanding the Service or making use of the Duty of his Subjects in such Cases The Force of this Canon divided the Prelates of those times between the Prince and the Pope either they did not understand or they did wilfully neglect their Duty and some Instances of the mischievous effects hereof this Gentleman gives us in his Letter He tells us p. 7 8. 5 E. 3. The Parliament was declared to be called for the redress of the Breach of the Laws and of the Peace of the Kingdom And because the Prelates were of opinion that it belonged not properly to them to give counsel about keeping the Peace nor punishing such Evils they went away by themselves and they returned no more Nor did their Disobedience stop here but the Gentleman tells us further at p. 96. That 20 R. 2. the Bishops upon occasion of the Statute of Provisors enter a Protestation against whatsoever should be done in derogation or restriction of the Power of their Holy Father the Pope saying they were sworn to his Holiness and to the Court of Rome These and the like Insolencies were the Fruits of those Immunities which the Prelates of those times received by the Decrees of those Holy Canons And as this Canon was grounded upon Superstition and did confront the Kings Supremacy so the Practice of it in those times was irrational and uncharitable First Irrational for 1. Why were the Prelates debarr'd the liberty of sitting Judges in such Cases Was it because they wanted Knowledge Reason or Discretion I suppose not If it were not because they had too little but too much of these Qualifications That was Irrational 2. That the Prelates have been and may be Judges of Misdemeanors this Gentleman does grant at p. 18. But there may be an Impeachment for sundry Offences under the name of Treason which really according to the Rule of Law are no more than Misdemeanors Why may not the Bishops sit as Judges in such Cases Must the Culprit be delivered up to Justice upon such Impeachments without any further Trial or Examination what will it amount unto This would be a kind of Hallifax-Law and that 's Irrational 3. In the Case of Sir John Oldcastle this Gentleman tells us Pag. 38 39. The Popish Bishops did excommunicate and condemn him for an Heretick and so turn'd him over to the Secular Judgment for execution yet certainly saith this Gentlem. p. 39. those good men I mean those Popish Bishops would have no more to do with him as to his further Execution that the World might see they were not men of Blood So that 't is pretended at least that this Holy Canon as they call it was design'd for Caution that the Prelates might have no hand in Blood and yet the practice is so irrational it does not sufficiently prevent it For in their Legislative capacity this Gentleman grants p. 3. that they may Sit and Vote and pass Bills of Attainder * He saith p. 51 the E. of Straffords Trial was compleated that way And p. 104. Acts of Attainder are Laws and every Freeman is supposed to give his consent to every Law either by his Representative or in person if a Member of Parliament and Bishops being Members may I think saith he claim to do it personally And though there be a great stir about such things as are preliminary and preparatory to Condemnation yet the Constitutions of Clarendon enjoyned them Let. p. 71. to attend the Court quousque perveniatur ad diminutionem Membrorum vel ad Mortem till it comes to loss of Life or Member which the
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 in p. 23. 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 If 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 any Testimony For either it is Error Temporis an Errour of those times or 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 p. 21. is their Right of sitting to consult 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 understood 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 Constitutions 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 This Gentleman endeavours to invalidate this so pregnant p. 60 61. an Evidence because it is taken out of a Manuscript made by the Monk Stephanides and none of the Ancient Historians of those times say any thing of Becket's being accused for Treason But I must tell you 't is not the Print that adds Truth or Authority to any Writing and I shall trust Mr. Selden's Judgment rather than this Gentlemans Conjectures Besides A Negative Argument from Authority is of no force for why do we read variety of Historians upon the same Subject but because we suppose what one fails in for want of Memory or Information another may supply by a better Diligence and Enquiry
and is the very and undoubted Heir of this Realm of England c. And 3ly So it is acknowledged in a †Statute of 1 El. c. 3. where 1 Eliz. c. 3 the Lords Spiritual and Temporal and the Commons in that Parliament assembled being said expresly and in terminis to represent the three Estates of the Realm of England did recognize the Queens Majesty to be their True Lawful and undoubted Sovereign Lieg'd Lady and Queen And in a Statute of the 8th year of the said Queens Reign the Bishops and Clergy are declared to be the greatest Estates of the Realm and called the High Estate of Prelacy in another place It may perhaps be thought unnecessary or impertinent to add the Testimony and Authority of a private person to that which hath been said by our Laws and Statutes But being it is such a Person as was accounted for the Oracle of the Law when he served in Parliament his Judgment may be taken for a creditable and sufficient Evidence in the present Case It is the Testimony and Authority of Sir Edward Coke successively Chief Justice of either Bench who in his Book Concerning the Jurisdiction of Courts speaks thus of Parliaments (†) Coke of Parl. fol. 1. This Court saith he consisteth of the Kings Majesty sitting there as in his Royal Politick Capacity and of the Three Estates of the Realm viz. of the Lords Spiritual Archbishops and Bishops who sit there by Succession in respect of their Counties Baronies parcel of their Bishopricks which they hold also in their Politick Capacity and every one of these when any Parliament is to be holden ought ex debito Justitiae to have a Writ of Summons Secondly The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Descent or Creation and likewise every one of these being of full age ought to have a Writ of Summons ex debito Justitiae The Third Estate is the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Burghs All which are respectively Elected by the Shires or Counties Cities and Burroughs by force of the Kings Writ ex debito Justitiae and none of them ought to be omitted And these represent all the Commons of the whole Realm and are trusted for them So He and this is plain enough beyond exception Add hereunto ex abundanti that in all Christian Kingdoms of the Gothick Model there are no more nor fewer than three Estates convented at the Will and Pleasure of the Supreme Prince for their assistance and advice in Affairs of consequence that is to say the Bishops and other Ecclesiastical persons who are alwayes one the Nobles for themselves and the Commissioners for the Commons of their several Provinces for so we find it in the Constitutions of the Roman Empire and the Realms of Spain the Kingdoms of France Poland Hungary together with those of Denmark Sweden and the Realm of Scotland And it were strange if in the Constitution of the English Parliaments or Conventus Ordinum the Bishops should have been left out and none at all elected to present the Clergy But being admitted with the rest in those publick Meetings and being looked on as the First Estate in the Stile of that Court it must needs be that their Exclusion shakes the very Fundamentals of the said Assemblies and makes the whole Body to be maimed and mutilated for want of such a principal Member so necessary to the making up of the whole Compositum But against all this it is objected first that some Acts have passed in Parliament to which the Prelates did not Vote nor could be present in the House when the Bill was passed as in the sentencing to death or mutilation of a guilty Person as doth appear by the Laws and Constitutions recognized at Clarendon and the following practice This hath been touched on before and we told you then that this restraint was laid upon them not by the common Law of England or any Act or Ordinance of the House of Peers by which they were disabled to attend that service It was their own voluntary Act none compelled them to it but only out of a conformity to some former Canons ad Sanctorum Canonum instituta (†) Antiqui Brit. in Gul. Courtney as their own words are by which it was not lawful for the Clergy Men to be either Judges or Assessors in causa sanguinis (*) Constitut Othob Fol. 45. And yet they took such care to preserve their Interest that they did not only give their Proxies for there presenting of their Persons but did put up their protestations with a salvo jure for the preserving of their Rights for the time to come Jure Paritatis interessendi in dicto Parliamento (†) Antiqu. Brit. in Gul. Courtney quoad omnia singula ibi exercendi in omnibus semper salvo as the manner was Examples of which are as full and frequent as their withdrawing themselves on the said occasions But then the main Objection is that as some Acts have passed in Parliament absentibus Prelatis when the Bishops did absent themselves of their own accord so many things have been transacted in the Parliament Excluso Clero when the Clergy had been excluded or put out of the House by some Act or Ordinance A President for this hath been found and published by such as envied that poor remnant of the Churches honour though possibly they will find themselves deceived in their greatest hopes and yet the evidence will not serve to evince the cause The Author of the Pamphlet entituled the Prerogative and practice of Parliaments first lays this Tenet for his ground That many good Acts of Parliament may be made though the Archbishops and Bishops should not consent unto them †which is a point * Printed at Lond 1628 p. 31. that no man doubts of considering how easily their Negative may be over-ruled by the far greater number of the Secular Peers Then he adds that in a Parliament held at St. Edmundsbury 1196. in the Reign of Edward the first a Statute was made by the King the Barons and the Commons excluso Clero and for the proof hereof refers us unto Bishop Jewel Now Bishop Jewill saith indeed That in a Parliament held at St. Edmundsbury by King Edward the first Anno 1296. the Archbishops and Bishops were quite shut forth and yet the Parliament held and good and wholsome Laws were there Enacted the departing or absence of the Lords Spiritual notwithstanding (†) Defence of the Apol. part 6. c. 2. S. 1. In the Records whereof it is written thus Habito Rex cum Baronibus suis Parliamento Clero excluso statutum est c. The King keeping the Parliament with his Barons the Clergy that is to say the Archbishops and Bishops being shut forth it was enacted c. Wherein who doth
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 Archibishops 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 there 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 confirmations 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 Synodals 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