Bishops Dispensations only but Mandates also And those Bishops have been fined at the Kings Bench and elsewhere that absented themselves from Councils in Parliament without the King 's special leave and licence first obtained Thirdly When they are forbidden interesse to be present the meaning is not in the very Canons themselves that they should go out of the room but only that they should not be present to add Authority Help and Advice to any Sentence pronounced against a particular or individual Person in cause of Blood or mutilation If he be present auctorizando consilium opem vel operam dando then he contracts an irregularity and no otherwise saith our Linwood out of Innocentius And the Canon reacheth no further than to him that shall pronounce Sentence of Death or Mutilation upon a particular Person For Prelates that are of Counsel with the King in Parliament or otherwise being demanded the Law in such and such a Case without naming any individuum may answer generaliter loquendo That Treason is to be punisht with Death and a Counterseiter of the King's Coin Hostien lib. 2. eap de fals monet allowed by John Montague de Collatione Parliamentorum In Tracta Doctor Vol. 10. p. 121. Fourthly These Canons are not in force in England to bind the King's Subjects for several Reasons First Because they are against his Majesty's Prerogative as you may see it clearly in the Articles of Clarendon and the Writ of Summons and therefore abolished 25 H. 8. c. 8. It is his Majesty's Prerogative declar'd at Clarendon that all such Ecclesiastical Peers as hold of him by Barony should assist in the King's Judicatures until the very actual pronouncing of a Sentence of Blood And this holds from Henry the First down to the latter end of Queen Elizabeth who imployed Archbishop Whitgist as a Commissioner upon the Life of the Earl of Essex to keep him in Custody and to examine him after that Commotion in London And to say that this Canon is confirm'd by Common Law is a merry Tale there being nothing in the Common Law that tends that way Secondly It hath been voted in the House of Commons in this very Session of Parliament That no Canons since the Conquest either introduced from Rome by Legatine Power or made in our Synods had in any Age nor yet have at this present any power to bind the Subjects of this Realm unless they be confirmed by Act of Parliament Now these Canons which inhibit the Presence of Church-men in Cause that concerns Life and Member were never confirm'd by any but seem to be impeach't by divers and sundry Acts of Parliament Thirdly The whole House of Peers have this very Session despised and set aside this Canon Law which some of the young Lords cry up again in the same Session and in the very same Cause to take away the Votes of the Bishops in the Case of the Earl of Strafford For by the same Canon Law that forbids Clergy-men to Sentence they of that Coat are more strictly inhibited to give no Testimony in Causes of Blood Nee ettam potest esse test is vel tabellio in causâ Sanguinis Linw. part 2. sol 146. For no Man co-operates more in a Sentence of Death than the Witnesses upon whose Attestation the Sentence is chiefly past Lopez pract crim c. 98. distl 21. and yet have the Lords admitted as Witnesses produced by the House of Commons against the Earl of Strafford the Archbishops of Canterbury and Armagh with the Bishop of London which Lords command now all Bishops to withdraw in the agitation of the self same Case Bishops it seems may be Witnesses to kill ont-right but may not sit in the Discussion of the Cause to help in case of Innocency a distressed Nobleman Whereas the very Gothish Bishops who first invented this Exclusion of Prelates from such Judicatures allow them to Vote as long as there is any hope left of clearing the Party or gaining of Pardon 4. Conc. Tol. Can. 31. And by the beginning of that Canon observe the use in Spain in that Age Anno 633. as touching this Doctrine Saepe principes contra quoslibet majestatis obnoxios Sacerdotibus negotia sua committunt Binnius 4. Tom. Can. Edit ult p. 592. Lastly In the Case of Archbishop Abbot all the great Civilians and Judges of the Land as Dr. Steward Sir H. Martin the Lord Chief Justice Hobart and Judge Doderidge which two last were very well versed in the Canon Law delivered positively when my self at first opposed them That all Irregularities introduced by Canons upon Ecclesiastical Persons concerning matters of Blood were taken away by the Reformation of the Church of England and were repugnant to the Statute 25 II. 8. as restraining the King 's most just Prerogative to imploy his own Subjects in such Functions and Offices as his Predecessors had done and to allow them those Priviledges and Recreations as by the Laws and Customs of this Realm they had formerly enjoy'd notwithstanding the Decree de Clerico venatore or the Constitution nae Clerici Saeculare c. or any other in that kind 150. The only Objection which appears upon any Learning or Record against the Clergies Voting in this Kingdom in Causes of Blood are two or three Protestations entred by the Bishops among the Records of the upper House of Parliament and some few Passages in the Law-Books relating thereunto The Protestation the Lords now principally stand upon is that of William Courtney Archbishop of Canterbury 11 Rich. 2. inserted in the Book of Priviledges which Mr. Selden collected for the Lords of the upper House In the Margin whereof that passage out of R. Hovenden about which we spake before about Clergy-mens agitation of Judgments of Blood is unluckily inserted and for want of due consideration and some suspicion of partial carriage in the Bishops in the case of the Earl of Strafford hath been eagerly pressed upon the Bishops by some of the Lords in such an unusual and unaccustomed manner that if I my self offering to speak to this Objection had not voluntarily withdrawn the rest of the Bishops and I had been without hearing voted out of the House in the agitation of a Splinter of that Cause of the Earl of Strafford's which came not near any matter of Blood An act never done before in that honourable House and ready to be executed suddenly without the least consideration of the merit of the Cause The only words insisted upon in the Protestation of Courtney's are these Because in this present Parliament certain matters are agitated whereat it is not lawsul for us according to the Prescript of holy Canons to be present And by and by after they say These matters are such in the which Nec possumus nec debemus interesse This is the Protestation most stood upon That of Archbishop Arundel 21 Rich. 2. is not so full and ample as this of Courtney's For the Bishops going forth left their Proxies with the
but the Incapacity and as the Philosopher would call it the Natural Impotency imposed by this Bill on Men in Holy Orders to serve the King or the State in this kind be they never so able never so willing never so vertuous Which makes me draw a kind of Timanthes vail over this Point and leave it without any amplification at all unto your Lordships wise and inward thoughts and considerations The fifth Point is the Salvo made for the two Universities to have Justices of Peace among them of their own Heads of Houses which I confess to be done upon mature and just consideration For otherwise the Scholars must have gone for Justice to those Parties to whom they send for Mustard and Vineger But yet under favour the Reasons and Inducements cannot be stronger than may be found out for other Ecclesiastical Persons as the Bishop of Durham who was ever since the days of K. John suffered by the Princes and Parliaments of England to exercise Justice upon the Parties in those Parts as being in truth the King's Subjects but the Bishops Tenants and therefore not likely to have their Causes more duly weighed than when the Balance is left in the hand of their own proper Landlord The Case of the Bishop of Ely for some parts of that Isle is not much different But if a little Partiality doth not herein cast some little Mist before mine eyes the Case of the Dean and City of Westminster wherein this Parliament is now sitting is far more considerable both in the Antiquity extent of Jurisdiction and the Warrants whereupon it is grounded than any one of those places before mentioned For there is a clear Statute made 27 Eliz. for the drawing all Westminster St. Clement and St. Martins le Grand London into a Corporation to be reigled by a Dean a Steward twelve Burgesses and twelve Assistants And if some Salve or Plaister shall not be applied to Westminster in this Point all that Government and Corporation is at an end But this I perceive since is taken into consideration by the Honourable House of Commons themselves I come now to the last Point and the second Salvo of this Bill which is for Dukes Marquesses Earls Viscounts Barons or Peers of this Kingdom which is a Clause that looks with a kind of contrary glance upon Persons in Holy Orders it seems to favour some but so that thereby and in that very act it casts an aspersion of baseness and ignobility upon all the rest of that Holy Profession For if no Persons in Holy Orders ought to intermeddle in Secular Affairs how come those Nobles to be excepted out of the Universal Negative Is it because they are nobly born Then surely it must be granted that the rest must be excluded as being made of a worser and rougher piece of Clay For the second part of this Reason in the beginning of the Bill can never bear out this Salvo That the Office of the Ministry is of so great importance that it will take up the whole Man and all his best Endeavours Surely the Office of the Ministry is of no greater importance in a poor man than in a noble man nor doth it take up the whole Man in the one and but a piece of him in the other I cannot give you many Instances herein out of Scripture because you know that in those days Not many mighty not many noble were called 1 Cor. 1.26 But when any Noble were called I do not find but that they did put more of the whole Man and their best Endeavours upon the Ministry than other Men in Holy Orders are at the least in Holy Scripture noted to have done I puâ— your Lordships in mind of those Noble men of Beraea compared with thâ—se of Thessalonica Acts 17.11 So that this Salvo for the Nobility must needs be under your Lordships favour a secret wound unto the rest of the Ministry unless your Lordships by your great Wisdom will be willing to change it into a Panacaea or common Plaister both to the one and to the other And under your Lordships Favour I conceive it may be done under a very foâ—ing Argument The Office of the Ministry is of equal importance and takes up the whâ— Man and all his best Endeavours in the Noble born as well as in the mean born Bishop But it is lawful all this notwithstanding for the noble born Minister to intermeddle in Secular Affairs and therefore it is likewise lawful for the mean born so to do And so in may Conscience I speak it in the presence of God and great Noblemen it is most lawful for them to intermeddle with Secular Affairs so as they be not intangled as the Apostle calls it with this intermedling as to slight and neglect the Office of their Calling which no Minister noble or ignoble can do without grievously sinning against God and his own conscience It is lawful for Persons in Holy Orders to intermeddle it is without question or else they could not make provision of Meat and Drink as Beza interprets the place It is not lawful for them to be thus intangled and bound up with Secular Affairs which I humbly beseech your Lordships to consider not as a Distinction invented by me but clearly expressed by the Apostle himself 166. And thus my noble Lords I shall without any further molestation and with humble thanks for this great patience leave this great Cause of the Church to your Lordships wise and gracious consideration Here is my Mars-hill and further I shall never appeal for Justice Some assurance I have from the late solemn Vow and Protestation of both Houses for the maintaining and defending the Power and Priviledges of Parliament that if this Bill were now to be framed in the one House it would never be offered without much qualification and I perswade my self it will not be approved in the other Parliaments are indeed Omnipotent but no more Omnipotent than God himself who for all that cannot do every thing God cannot but perform what he hath promised A Parliament under favour cannot un-swear what it hath already vowed This is an old Maxim which I have learned of the Sages of the Law A Parliament cannot be Felo de se it cannot destroy or undo it self An Act of Parliament as that in the eleventh and another in the one and twentieth of Richard the Second made to be unrepealable in any subsequent Parliament was ipso facto void in the constitution Why because it took away the Power and Priviledges that is not the Plumes and Feathers the remote Accidents but the very specisial Form Essence and Being of a Parliament So if an Act should be made to take away the Votes of all the Commons or all the Lords it were absolutely a void Act. I will conclude with the first Ep. to the Corinthians c. 12. v. 15. If the soot shall say because I am not the hand I am not of the body is it therefore not of
smile and said nothing Darius destinatus sorti suae etiam nullius salubris consilii patiens Yet that Darius was the best of all the Persian Kings from Cyrus and for want of heed to the best Counsels lost all Our King was wise among wise men of the first magnitude full of constant and great Vertues all of them Pearls of a clear water but had not the luck to hit the right when he came to particulars Yet I have heard some that were about him at Oxford protest that he hath said in their hearing I would some would do me the good Service to bring Cromwel to me alive or dead All good Subjects were bigg with that wish when it was too late Curt. lib. 8. Male humanis ingeniis natura consuluit quod plerunque non futura sed transact a perpendimus It is a sore Punishment upon Man's Understanding that the Fillar of Fire is behind it and the cloudy Pillar before it The Fire lets it see the Harm that is done that we may repent and bewail it but the Cloud doth darken it before that oft-times it hath no forecast to prevent it Which is all one as if a Knife should cut better with the Back than with the Edge 199. Much Prayer and Fasting were indicted and observ'd at this time in Oxford A mighty Expectation was raised what the Parliament would bring forth which opened there But what Parliament shall we call it The same that was summon'd to meet at Westminster Nov. 3. 1640 The same For they were the Members of them two Houses neither called by new Writs or new chosen but the best of the old Stock summon'd hither by the King to take to themselves their Right to be the High Court of Parliament But the Parliament continued still at Westminster and can one Body be in two places Habent hoc publicae necessitates ut impossibilia plerumque persuadeant Quintil. lib. 6. c. 3. This was a Knot not easily to be unty'd but a Scruple to distract the best Gown-men that had the soundest Judgment in the Laws Nothing but high Necessity could resolve the Riddle such a Necessity as could find no other way to save the King and his Kingdoms That Necessity compelled to stride over the seeming Absurdity to have one politick Body not one natural in two places They that sate at Westminster were a Parliament by the force of an unhappy Statute pass'd to them two years before They that sate at Oxford were the same Parliament removed thither because they could not discharge their Trust with their fellow-Members nor abide in Conscience to hear the King's Honour traduced daily therefore the Common Safety which they had undertaken as Members of Parliament compelled them to such a way as was without President because no Subjects had ever so much endanger'd the Crown of the King and the Weal-publick New Injuries require new Remedies And we may learn much from a Passage in Quintilian lib. 7. Tot saeculis nullam repertam esse causam quae sit tota alteri similis The Members therefore of these two Houses took their places in the fair Schools of the University Sir Richard Lain Lord-Keeper of the Great-Seal being Speaker in the House of the Lords and Serjeant Sampson Evers in the House of Commons An appearance there was beyond imagination of the Peers and best Gentry The words of the Oratour will set it out gracefully Philip. 3. Talis Senatorum dignitas multitudo fuit ut magnâ excusatione iis opus sit qui talie in castra non venerunt The King was marvelously pleased with the frequency of so many couragious persons whom he knew not well how to protect least of all to reward them As the same Author writes it of Tarquin driven out of Rome lib. de amicit Se intellexisse quos fidos amicos habuisset quosque insidos cum jam neutris gratiam referre possit So the good King knew not Sheep from Goats Loyal from rebellious till he was neither in condition to chastise the one or advance the other After great Consult in Parliament when the best Oratours had been fully heard it was unanimously resolved that this Share of Parliament should send a Message to the other Share with Leave obtained from their General the Earl of Essex for His Majesty's Safety to come to London for suspension of Arms to fill up the House at Westminster with one Body all Affronts on both sides to be obliterated and Conditions for Amity for the future and the Publick Good to be propounded All which was uncivilly rejected and nothing granted but to stand to the mercy of an insolent Clutter Of the King's Parliament which had agreed in a most reasonable Message though proudly scorn'd some voted in the warmth of their Courage that the Part at Westminster was an illegal and trayterous Convention Some slaked the Flame with cool Arguments That they were very bad Members and greatly abused their Trust yet they kept their Places by the consent of both Houses and the Royal Consent had pass'd it into an Act That this course would emperil the validity of all Parliaments past and to come That the Blame would fall upon the King principally whose confirmation of their continuance to hold out this Session was not revocable Princeps ad contractum tenetur ut privatus cum maximè in eo requiritur bona sides Duckius de Jure p. 44. That the King's Forces were thin ill arm'd ill paid and it behoved not them that were low to use high words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 AEschyl They that are declin'd must encline to Moderation The resolute Members answer'd It was true an Act of Parliament cannot be revoked but by a Parliament What did they make of this Body of Lords and Commons met at Oxford They would draw a Bill and offer it to the King to repeal that stale Association The King had ratified their Bill for continuation of a Session but a Promise holds not if such a Mischief break out upon it as the Promiser cannot with Conscience and Safety hold Faith with them It is a Maxim in the most ancient Laws of the World Omnia debent idem esse quae suerant cum promitterem ut promittentis fidem teneas Senec. de ben lib. 4. c. 35. The Success of the Enemy was not so prosperous as it was given out and seared but were they ten times stronger they would not abate them a jot of the Impeachment of Traytors The more Violence they did use to shake off that name the more it would cleave to them But let the times grow worse Sors ubi pessima rerum Sub pedibus timor est Metamor lib. 15. And our last Breath shall be in Cicero's words Phil. 7. Dicam quod dignum est Senatore homine Romano moriamur Death is not so formidable as to submit to Rebels Which of these two Opposites did argue best let Solomon judge if he were alive in which mind I dismiss it
An Error like to that of Adrians in Spartianus Non admisit Terentium Gentianum est eò vehementiùs quod à Senatu diligi eum videret But the Commons while they were in heat ask'd a Conference with the Lords Afternoon in Christ's-Church-Hall where Sir Edward Coke opened the Complaint sharply against Secretary Conway and like an Orator did slide away with a short Animadversion upon the Duke It was not so well for his Grace that the noise of the Grievance had entred into both Houses Arcus cum sunt duplices pluviam nuntiant says Pliny Lib. 2. N. H. c. 59. If our Rain-bow multiply another by its Reflection it prognosticks a Shower And the Storm burst out in the lower Region when he was rather declam'd against as I would call it than accus'd because the Gentlemen that did prosecute contain'd themselves in generals The most upon which insistance was made was that he held the most and the most important Offices of Trust and Honour by Sea and Land Though it was foolish and superstitious in the Heathen Romans to think it was not for the Majesty of their Common-wealth to serve but one God Majestatem imperii non decuisse ut unus tantùm Deus colatur Tull. Orat. pro Flacco Yet it were to be desir'd if it might be dutifully obtain'd that one Subject should not possess all those Places which require the Sufficiency of many to discharge them Much to this purpose is that of the Lord Herbert Harry 8. p. 318. That it was a great Error that such a multitude of Offices was invested in Woolsey as it drew Envy upon the Cardinal so it derogated not a little from the Regal Authority while one Man alone seems to comprehend all The King may be satisfied to settle the Choice of his high Promotions in one Minion so will never the People And the Advanced is sure to be shaken for his height and to be malign'd for over-dropping He that sees a Stone-wall swelling looks every day when it will fall And one Stalk is not strong enough to hold a cluster of Titles hanging at it Salmasius hath a Note upon the first Book of Solinus That if a Man grow so fast that it exceeds the usual way of Nature he will fall into sickness His Instance is in the Son of Euthymenes that grew three Cubits in three Years Et immoderatis aegritudinum suppliciis compensasse praecipitem incrementi celeritatem But what Grandee will believe this Because there is more in our corrupt Nature that will obey Ambition than Wisdom 16. Yet to speak to the other side Might not this have been forborn to be objected by the Parliament to this great Lord at this time When his Head and his Hands were wholly taken up to prepare that War which was their own Creature He was at their Plough he was under their Yoke if it were well remembred Now Grotius marks well from the old Law Deut. 21.3 That Beasts that had been put to labour might not be sacrificed Elisha's Act was hasty and singular 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as he quotes it out of Chaeremon They were priviledged by the Work in which they had been profitable Nay could it be objected as a Fault at any time I say as a Fault for I plead not for the Convenience What Pharisee would be so corrupt to ask Master who sinned This Man or his Parent that he was made a Duke as Lord Admiral a Master of the Horse c. No Inch of Sin is in ten Cubits of Honour that are lawfully conferr'd But there is a Fault for which Budaeus knew no direct Name Lib. 2. Pandec fol. 10. Cum milites Imperatori infensi vincere nolunt Let it be termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 says he when Souldiers will lose a Victory wilfully because they are discontented at their General All was tending much this way at Oxford The great Expedition in hand and the Fleet ready at Plimouth lost its season the Souldiers and Sailors dishearten'd for want of Pay yet not the Supply of a Subsidy could be drawn to give courage to the Onset because the Generalissimo that manag'd the Voyage had lost their Favour Numbers there were some Friends some Flatterers that brought Fuel to the Fire to enflame the Duke against these Dealings The Lord-Keeper was not sought to Yet came and offer'd himself to confer about it And certainly all that knew him would say no Man could pluck the Grass better to know where the Wind sat no Man could spie sooner from whence a Mischief did rise I 'll begin thus My Lord I come to you unsent for and I fear to displease you Yet because your Grace made me I must and will serve you though you are one that will destroy that which you made Let me perish Yet I deserv'd to perish ten times if I were not as earnest as any Friend your Grace hath to save you from perishing The Sword is the Cause of a Wound but the Buckler is in fault if it do not defend the Body You have brought the Two Houses hither my Lord against my Counsel My Suspicion is confirm'd that your Grace would suffer for it What 's now to be done but wind up a Session quickly The occasion is for you because two Colledges in the University and eight Houses in the City are visited with the Plague Let the Members be promis'd fairly and friendly that they shall meet again after Christmas Requite their Injuries done unto you with benefits and not revenge For no Man that is wise will shew himself angry with the People of England I have more to say but no more than I have said to your Grace above a Year past at White-hall Confer one or two of your great Places upon your fastest Friends so shall you go less in Envy and not less in Power Great Necessities will excuse hard Proposals and horrid Counsels St. Austin says it was a Punick Proverb in his Country Ut habeas quietum tempus perde aliquid At the Close of this Session declare your self to be the forwardst to serve the King and Common-wealth and to give the Parliament satisfaction Fear them not when they meet again in the same Body whose ill Affections I expect to mitigate but if they proceed trust me with your Cause when it is transmitted to the House of Lords and I will lay my Life upon it to preserve you from Sentence or the least Dishonour This is my Advice my Lord. If you like it not Truth in the end will find an Advocate to defend it The Duke replied no more but I will look whom I trust to and flung out of the Chamber with Minaces in his Countenance Yet the other did not think he had play'd the Game ill though he lost his Stake by it Dangerous Faithfulness is honester than cunning Silence And once more he was bold to wrestle with this Potentate in high Favour before he fell The Commons of this Parliament was censur'd at Woodstock
of an evil Life mention'd in the 109 Canon Wherein the Bishop did not commend the Proceedings of his deputed Judges Though it might be said in favour of them that Humane Laws are strictest against them that act contrary to publick Peace Or that Crimes are punishable by Statutes and are fitter for Tryal at a Quarter Sessions Some spied into another Reason that Proctors and Registers wanted not those Scandals themselves for which in the Eye of the World they were fit to be presented Yet when all is said it were more laudable in Courts Christian to be more severe against Evils which the Light of Nature had made Evils than against Evils which were made Evils by the Laws of Holy Church Both were to be corrected but rather Works of Commission against known Light than Trespasses of Omission for want of Light of Understanding The hardest Task which the Bishop had was to perswade his Officers to live by honest Gains to moderate their Fees to wash their Hands from bribes and filthy Lucre the only way to live in clear Fame that Men might speak well of them and of their Authority Covetousness is not a Branch but a Root of Evil says St. Paul all that grows may be seen in a Plant but not the Root Whose Example is more fit to shew it than Tribonius who digested the Code of the Civil Law of whom Suidas says 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 He was most subtle to shadow and cover the Disease of Covetousness From thence proceed the Delays that consume the Substance of Appellant and Defendant and make them curse such expectative Proceedings Whose Clamors incited the Bishop to Passion sometimes and to call upon them instantly for dispatch For how long will an Horse-leach suck if it be not pull'd off A little is taken to enter a Cause but the Price increaseth at every turn when it is brought to Examination Like German Toss-pots that drink small Cups at first and quaff down great Bowls when they are drunk Similer says of the Cantons where he liv'd that the People lik'd Expedition in their Causes as much as Justice Quod si in judiciis nostris error aliquis committitur in causis implicicis obscuris nequaquam tantum damni inde datur quantum ex litium diuturna prorogatione accipitur Res â—â—el p. 140. 46. If a Curse were of moment as when a whole Parish were in a Broil about it the bishop appointed a Consistory to rule it with his own Presence and Judgment He trusted not his Chancellor and Commissaries upon old Experience but like a wise Governour he look'd upon them with a new Probation in every great Cause as if he had never known them What greater Praise could Symmachus have given to Theodosius in point of using his Counsellors than this Solenne est ei singulos ut novos semper expendere nec consuetudini condonare judicium Ep. p. 124. A Magistrate that will not research his Deputies but leaves them to their Work with an indefinite Confidence in their Honesties doth as absurdly as Tanner the Jesuite spake absurdly in the Colloquy at Reinsberg That the Pope might err unless he did use all due and ordinary means but without all doubt and question he did ever use those means The Bishop had a deeper insight into Man and never fail'd to be Rector Chori in Causes that requir'd a more special Audience Wherein he spared himself so little and gave so much ease to the People that he did often ride to the parts of his Diocess remotest from his ordinary home as Leicester Buckinghamshire Wellen in Hartfordshire c. and kept his Courts where all the Complainants were at hand to attend them A way of great content and much neglected Yet the 125 Canon provides That all Officials should appoint meet places for the keeping of their Courts as should be expedient for entertainment of those that made their appearance and most indifferent for their Travail and that they may return homewards in as due season as may be But these Courts which kept Peace among the Sons of the Church and super-intended over Delinquents are quite ex-authorized taken in pieces as musty Vessels wherein nothing kept sweet that was put into them The Fault was in the Demolishers that had no better Scent they had Noses and smelt not For whereas the Grievance pretended was that they had too much Power the Truth is on the contrary that they could not do their work as they ought to satisfie the People and to beat down Sin because they had too little Take their highest and in a manner their only censure Excommunication terrible in it self What doth a profane Person care for it Prosecute them with Writs de Excommunicatis capiendis and all the Grist that came to their Mill would not pay the cost of it What a Coil hath been made to set up Consistories of Ministers and ruling Elders that should proceed against Scandals with rebukes suspension from the Sacrament open penance and lastly as they expound it let him be unto thee as an Heathen and a Publican Make the Sinner liable to Imprisonment to destraining to a Forfeiture to some loss in his profit and he will be sure to feel it and sly from the occasion Confess the Truth will not many look better to outward Honesty if you discipline them in their Purse Bucer fell upon this in an Epistle to Luther Scrip. Anglic. p. 657. Excommunicationis loco egregiam in multis civitatibus disciplinam poenas sceleribus dignas sancitas esse And Erastus writes like a wise Man that noted other ways than Presbyterian Censures to rectifie the common Disorders of Christians as to straiten them in Priviledges of Reputation and Matters of Gain which none should communicate in but the obedient Simler says Helv. Hist p. 148. There was not a Minister admitted into the Consistory of Scaphuse but the most Judicious of the Laity exercis'd that Authority because their Punishments did chiefly extend against the Body or the Fortunes of the Peccant What little good hath the Stool of Repentance wrought among the fierce natur'd Scots They have sat so long upon it that they know not how to blush at it We should be shame-fac'd Nay which is better we should be innocent but we are neither Plato says in his Protagoras that lest Men should fall into the Confusion of all Sin God had given them two Blessings to restrain them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Shame and Justice But since we have lost Shame Justice must take another course and let us blood in that Vein which may most probably cure us Ploratur lacrymis amissa pecunia veris Juven Sat. 13. Set a Fine upon their Heads that deserve it and it will vex their Hearts But no more of Jurisdiction dissolv'd Rosa hyeme non est rosa It was yet to be remembred for his sake that was the Honour of it whilst it stood 47. For it was murmur'd a good while before the
ex asseribus compositè junctam This is irrefragable unless one be refractory that he will not learn as Erasmus says of Poggius in his Epistles p. 262. Poggius hôc erat animo ut doctissimus haberi mallet quà m reddi doctior For if these were only Orders of Sufferance they were nothing but Canons are Church-Laws Convocations meet not to make Permissions but binding Canons to be obeyed by the Subjects and by all the Ordinaries of the Kingdom Hol. Tab. p. 205. Yet it was so forgotten by some that while this Bishop was in the Tower one of his own Clergy in Bedford-shire Dr. Jas Fisher a fair Marble Stone being digged up in his Chancel he set Workmen to smooth it and to erect it for an Altar till Troubles marr'd the Work and Impeachments of Articles broke the Heart of a modest able man He and the Vicar that would be Altar-builders might have spared their Stone for the Altar of Incense was made of Shittim-wood Exod. 30.1 or of Cedar 1 Kin. 6.20 and over-laid with Gold that the Wood might not catch Fire Or what if a Stone were set up It were not the further for that from being a Table H. T. p. 115. cites out of learned Gerard Cessante sacrificio altaria illa nihil sunt aliud quà m mensae lapideae Allowing no Sacrifice those Altars are nothing but Stone Tables Of Judea I can say nothing but in Rome about Christ's days on Earth the People did eat upon Tables not only of Limon and Maple wood but of Stone We have added and Decency commends it a fair white Linnen-Cloth to cover God's Board and our own at Meal-times which was not in use when our Saviour instituted the Sacrament as far as I can see into the convival Customs of those days for since the Waiters did wipe away at the end of Supper the Liquors which were spilt from Cups or Dishes with Sponges it will not hold that they had a Cloth spread upon the Table What will Novelists say to this that think we break the Second Command if we vary from Christ in any circumstance in the ordaining of the Holy Supper Some of them may perhaps be ready hereupon to take away the Linnen Cloth Why not since one Faction of them hath taken away the Table For says Bayly in his Disswasive of Errors p. 121. The Brownists at this day at Amsterdam have no Table at all but send the Elements from the Pulpit where the Minister preacheth and celebrateth the Sacrament by the Hands of the Deacon and adds that some Independents at London affect the like 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nothing so dangerous to do all kind of Evil as an ignorant Rabble They that will not grant a Table to Christ's Servants to come to his Feast will not if they can prevail grant a Church or Chancel to place it in From which Madness and Sacrilege God deliver us Manil. lib. 5. Si forte accesser it impetus ausis Improbitas fiet virtus 102. From the matter of Stone the Dispute leads us into a Strise about the Name In the first Liturgy of Edw. 6. Altar is most in use In the second and from that day forward the word Table is altogether read In a year or two after the first of King Charles the word Altar per postliminium was much in the mouth of many Divines when it had been laid aside Observe Peace and Truth and call it either or both and it is all one But charge them before the Lord that they strive not about words to no profit says St. Paul 2 Tim. 2.4 For vanity and things wherein there is no profit are all one Jer. 2.23 Scholars will understand me by this Instance Altar for Table or Table put for Altar make no change in the sence with knowing men the Council at Syrmium turn'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Nicene Creed into 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with no small Injury to our Lord Christ But a Bishop in Nicephorus instead of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Couch as it is Jo. c. 4. read 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is a Synonymum yet Spiridion a morose man rose up and spake against the Novelty Vitiosum est propter nominum mutationem contentionem intendere says the Author to Herennius They are as near as can be to be Friends that have nothing but two words of the same signification to part them Yet two things were to be cleared to stop mistakings First It must be yielded that our Mother-language our Church-canonical word is Table Altar is arbitrary at large Secondly for the right insight into the nature of the Sacrament Table is the proper word and Altar metaphorical The Bishop comprehends them both very well in these words H. T. p. 75 He doth not deny but the name Altar hath been long in the Church in a metaphorical usurpation nor would he have blamed the Vicar if he had in a Quotation from the Fathers or a Discourse in the Pulpit named it an Altar in this borrowed sence but to give the usual call of an Altar he says usual unto the Utensil which the Law that always speaks properly never calls otherwise than by the name of a Table is justly by him disliked 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And again in that Page Where we have a Law and Canon to direct us how to call a thing we ought not to hunt after Reasons and Conceits to give it another Appellation It is apparent how the Liturgy confirmed Anno 1549. chooseth the word Altar which Liturgy is agreeable to God's Word and the Primitive Church yet since the alteration came in by the next Liturgy three years after the first Book doth not allow you to call it an Altar for the present your Tongue ought to speak as the present Book and Law speaks it to you and when men in their nomination of things do vary from the Law which is the quintessence of Reason they do it in a Humor which is the quintessence of Fancy Thus far he again p. 142. And it is truly said in Antid Lin. p. 96. Another Liturgy confirm'd by Act of Parliament made void the old Neither is it pretended out of any Law or Canon to be called Altar more than once Statute 1 Ed. 6. c. 1. The most comfortable Sacrament of the Body and Blood of our Saviour Jesus Christ commonly called the Sacrament of the Altar and in Scripture the Supper and Table of the Lord the Communion and Partaking of the Body and Blood of Christ Says the Bishop to this H. T. p. 94. The holy Scripture should carry it quite away for the Name and Sacrament of the Altar is not the Name but the Nick-name and a Penal Statute as this is was to take notice of every Appellation it was at that time known by and discerned The last Reformation which is orderly as ours was is the best As St. Ambrose writing how Christianity came in after other Religions discourseth thus Ep. 32. Quis
to Practice and Use in our own Country Why it was in use in this Island before the Romans entred the same when the Druids gave all the Sentences in Causes of Blood Si coedes facâ—e pâ—as constituunt Caesar Bel. Gai. li. 6. And see Mr. Selden's Epinomis c. 2. Nor is it like that the Romans when they were our Masters should forbid it in Priests whose Pontifical College after they had entertain'd the twelve Tables meddled in all matters of this kind Strabo Geogr. lib. 4. And it is as unlike that the Christian Religion excluded Bishops in this Island from Secular Judicatures since King Lucius is directed to take out his Laws for the regulating of his Kingdom by the Advice of his Council ex utráque pagina the Old and New Testament which could not be done in that Age without the help of his Bishops See Sir H. Spelman's Councils p. 34. Ann. Dom. 185. And how the great Prelates among the ancient Britains were wholly employ'd in these kind of secular agitations you may see in the Ecclesiastical Laws of Howel Dha set forth by Sir H. Spelman pag. 408. anno 940. And a little before this Howel Dha lived K. Aetheljtan in the second Chapter of whose Ecclesiastical Laws we have it peremptorily set down Hinc debent Episcopi cum Saeculi Judicibus interesse judiciis and particularly in all Judgments of the Ordeals which no man that understands the word can make any doubt to have been extended to Mutilation and Death Sir H. S. Counc p. 405. ann 928. And that the Bishops joyned alwaies with the secular Lords in all Judicatory Laws and Acts under the whole reign of the Saxons and Danes in this Island we may see by those Saxon-Danish Laws or rather Capitularies which among the French and Germans do signifie a mixture of Laws made by the Prince the Bishops and the Barons to rule both Church and Common-wealth set forth by Mr. Lambert anno 1568. See particularly the ninth Chapter of St. Edward's Laws De his qui ad judicium sorri vel aquae judicati sunt fol. 128. And thus it continued in this Kingdom long after the Conquest to wit in Henry Beu-clerk's time after whose Reign it began to be a little limited and restrained for at Clarendon anno 1164 8 Calend. Febr. 11 Henr. 21 a general Record is agreed upon by that King 's Special Command of all the Customs and Liberties of this Kingdom ever since Hen. the First the King's Grandfather as you may see in Matth. Paris p. 96 of the first Edition where among other Customs agreed upon this is one Archbishops and Bishops and all other persons of this Kingdom which hold of the King in capite are to enjoy their Possessions of the King as a Barony and by reason thereof are to answer before the Judges and Officers of the King and to observe and perform all the King's Customs And just as the rest of the Barons ought for it was a Duty required of them as the King now by his Summons doth from us to be present in the Judgments of the King's Courts together with the rest of the Barons until such time as they shall there proceed to the mangling of Members or Sentence of Death 147. Observe that there is a diversity of reading in the last words for Matth. Paris a young Monk that lived long after reads this Custom thus Quousque perveniatur ad diminutionem membrorum vel ad mortem Which may be wrested to the first agitation of any Charge tending that way but Quadrilogus a Book written in that very Age and the original Copy of the Articles of Clarendon which Becket sent to Rome extant at this day in the Vatican Library and out of which Baronius in his Annals anno 1164 transcribes it reads the Custom thus Usque perveniatur in judicio ad diminutionem membrorum c. which leaves the Bishops to sit there until the Judgment come to be pronounced amounting to Death or Mutilation of Members And as this was agreed to be the Custom so was it the Practice also after that 11th year to wit in the 15th year of Henry the Second at what time the Lay-Peers are so far from requiring the Bishops to withdraw that they endeavour to force them alone to hear and determine a matter of Treason in the person of Becket Stephanides is my Author for this who was a Chaplain and Follower of that Archbishop The Barons say saith that Author You Bishops ought to pronounce Sentence upon your selves we are Laicks you are Church-men as Becket is you are his fellow-Priests and fellow-Bishops To whom some one of the Bishops replied This belongs to you my Lords rather than to us for this is no ecclesiastical but a secular Judicature We sit not here as Bishops but as Barons Nos Barones vos Barones hic Pares sumus And in vain it is that you should labour to find any difference at all in our Order or Calling See this Manuscript cited by Mr. Selden Titles of Honour 2 Edit p. 705. And thus the Custom continued till the 21st year of the same King Henry II. at what time that Provincial Synod was kept at Westminster by the Archbishop of Canterbury and some few of his Suffragans which Roger Hoveden mentions in his History p. 543. And it seems Gervasius Dorobernensis which is a Manuscript I have not seen The quoting of this Monk in the Margin of that Collection of Privileges which Mr. Selden by command had made for the Upper House of Parliament is the only ground of stirring up this Question against the Bishops at this present intended by Mr. Selden for a Privilege to the Bishops not for a Privilege to the Lay Peers to be pressed against the Bishops The Canon runs thus It is not lawful for such as are constituted in Holy Orders Judicium sanguinis agitare to put in execution Judgment of Blood and therefore we forbid that they shall either in their own persons execute any such mutilation of Members or sentence them to be so acted by others And if any such person shall do any such thing he shall be deprived of the Office and Place of his Order and Function We do likewise sorbid under the peril of Excommunication that no Priest be a secular Sheriff or Provost Now this is no Canon made in England much less confirmed by Common Law or assented to by all the Bishops of the Province of Canterbury or by any one of the Province of York but transcribed as appears by Hovenden's Margin out of a Council of Toledo which in the time that Council is supposed to be held was the least Kingdom in Spain and not so big as York-shire and consequently improper to regulate all the World and especially this remote Kingdom of England Beside as this poor Monk sets it down it doth inhibit Church-men from being Hang-men rather than from being Judges to condemn men to be thus mutilated and mangled in their
Lay-Lords and consequently continued present in Judicature in the eye and construction of the Law Therefore I apply my Answers to Courtney's Protestation principally which are divers and fit to be weighed and ponder'd First I do observe that Bishops did never protest or withdraw in Causes of Blood but only under the unsteddy Reign of Richard the Second Never before nor after the time of that unfortunate King to this present Parliament for ought appears in Record or History And that one Swallow should make us such a Spring and one Omission should create a Law or Custom against so many Actions of the English Prelates under so many Kings before so many Kings and Queens after that young Prince seems to me a strange Doctrine especially when I consider that by the Rules of the Civil and Common Law a Protestation dies with the death of him that makes it or is regularly vacated and disannulled Per contrarium actum subsequentem protestationem by any one subsequent act varying from the tenour of the said Protestation Regul Juris Bap. Nicol. part 2. Now that you may know how the Prelates carried themselves in this point and actually voted in Causes of Treason and sometimes to Blood before Richard the Second I refer me to what I cited before out of Mr. Selden and he out of Stephanides concerning Becket condemned by his Peers Ecclesiastical and Temporal 15 H. 2. Archbishop Stratford acquitted of High Treason in Parliament by four Prelates four Earls and four Barons under Edward the Third Antiq. Britan. p. 223. There was 4 Ed. 3. Roger de Mortimer Berisford Travers and others adjudged Traitors by Bishops as well as other Peers 16 Ed. 3. Thomas de Berkely was acquitted of Treason in pleno Parliamento And especially I refer my self to Roll 21 Rich. 2. Num. 10. which averrs That Judgments and Ordinances in the time of that King's Progenitors had been avoided by the absence of the Clergy which makes the Commons there to pray that the Prelates would make a Procurator by whom they might in all Judgments of Blood be at the least legally if they durst not be bodily present in such Judicatures And for the practice since the Reign of Rich. II. be it observed that in the fifth of Hen IV. the Commons thank the Lords Spiritual and Temporal for their good and rightful Judgment in freeing the Earl of Northumberland from Treason 3 Hen. 5. The Commons pray a Confirmation of the Judgment given upon the E. of Cambridge by the Lords Spiritual and Temporal 5 H. 5. Sir J. Oldcastle is attainted of Treason and Heresie by the Lords Spiritual and Temporal 28 H. 6. The Duke of Suffolk is charged with Treason before the Lords Spiritual and Temporal 31 H. 6. The Earl of Devon in like sort and so down to the Earl of Bristol's Case 22 Maii 1626. ten Bishops are joyned with ten Earls and ten Barons in the disquisition and agitation of that supposed Treason I leave it therefore to any indifferent Judgment Whether these Protestations made all under one Kings Reign dying with the Parties that made them can void a Right and Custom grounded on a continual Practice to the contrary in all other Tryals that have been since the Conquest to this present Parliament 151. Secondly It is fitting we know the nature of a Protestation which some may mistake Protestatio est animi nostri declaratio juris acquirendi vel conservandi vel damnum depellendi causâ facta saith Spiegle Calvin and all the Civilians No Protestation is made by any man in his Wits to destroy his own Right and much less another mans but to acquire or preserve some Right or to avoid and put off some Wrong that was like to happen to the Party or Parties that make the Protestation As here in Courtney's Protestation the Prelates in the first place conceive a Right and Power they had voluntarily to absent themselves while some matters were treated of at that time in the House of Lords which by the Canon-Law the Breach whereof the Popes of Rome did vindicate in those times with far more Severity than they did the Transgressions of the Law of God they were not suffer'd to be present at not for want of Right to be there in all Causes but for fear of Papal Censures In the next place they did preserve their former Right as Peers which they still had though voluntarily absenting themselves More solito interessendi considerandi tyactandi ordinandi definiendi all things without exception acted and executed in that Parliament And in the last place they protest against any loss of right of being or voting in Parliament that could befall them for this voluntary absenting of themselves at this time And where in all this Protestation is there one word to prejudice their Successors or to authorize any Peer to command his fellow-Peer called thither by the same Writ of Summons that himself is and by more ancient Prescription to withdraw and go out from this Common-Council of the Kingdom Thirdly We do not certainly know what these matters were whereat Archbishop Courtney conceived the Prelates neither could nor ought to be present These matters are left in loose and general words in that Protestation Some conceive indeed it was at the Condemnation of Tressilian Brambre L. Beauchamp and others Ant. Brit. p. 286. But the Notes of Privileges belonging to the Lords collected by Mr. Selden do with more reason a great deal assign this going forth of the Prelates to be occasion'd by certain Appeals of Treason preferred in that Parliament by the Duke of Gloucester against Alexander Archbishop of York whom the Popish Canons of those Times as you know exempted as a sacred person from the cognizance of King or Parliament and therefore the rest of the Bishops as the Squares went then neither could nor ought to be present and Parties to break the Exemptions Immunities and Privileges of that great Prelate But the Earl of Strafford is not the Archbishop but the President of York and to challenge any such Exemptions and Immunities at this time from the cognizance of King and Parliament amounts to little less than Treason Therefore this Protestation is very unseasonably urged to thrust out any Protestant Prelate from voting in Parliament Lastly In the Civil and Canon-Law for the Law of this Land knoweth it not a Protestation is but a Testation or witnessing before-hand of a man 's own Mind or Opinion whereby they that protest provide to save and presorve their own Right for the time to come It concludes no more bende themselves no Stranger to the Act no Successor but if it be admitted sticks as inherent in the singular and individual person until either the Party dyes or the Protestation be drawn and revoked Therefore what is a Protestation made by Will. Courtney to Will. Laud Or by Tho. Arundel to bind Tho. Morton And what one Rule in the Common-Law of the Land in the Journaâ—-Books or