Authority or weight enough to perswade the contrary or an alteration therein notwithstanding that complaint which he tells us was made in the 45 of E. 3. fol. by the two Houses Counts Barons and Commons to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per cet grant mischiefs dammages sont avenuz en temps passe pluis purroit eschire en temps avenir al disherison de la Coronne grant prejudice du Royalme Whereby great mischiefs and damages have happened in times past and more may fall out in time to come to the disherison of the Crown and great prejudice to the Realm And therefore they humbly pray the King that he would imploy Laymen This they had too much reason to desire then when the Pope had advanced his Authority over them and put them under Oaths of Canonical obedience which rendred them less fit to be intrusted in the Government of this Kingdom who were become Subjects of another Empire usurping continually upon us which will never be our Case again if the Bishops can help it CHAP. III. ANd now we proceed to the Precedents of which the Octavo Book principally consists which seem as that Author and the other in Folio would have it to be not only a discontinuance of the Right of the Bishops to judge in Capital Causes but an argumentative proof that they never had any because it can as they say be never proved to be otherwise Immemorial time I confess is a great evidence of the right whether In non user or user and a fair reason to allow or deny the pretence and therefore we will now consider the Precedents As for the argumentative and discoursive parts of those books they will fall in to be answered by way of Objection when we are discoursing and proving the affirmative part of the Question and will best be reproved by being placed near the light of our reasons for establishing the Right of the Prelates If we do not give some satisfaction to these Precedents whatever we shall say I know can signifie no more than an Argument to prove a thing not true which is possible de facto testified by unexceptionable witnesses for such the Precedents will be taken until exceptions are made to their Testimony The Precedents produced by the two Authors are mostly the same only the Octavo hath more than what the Folio Book hath recited The first case that the Octavo produceth against the Lords Spiritual their Right of being Judges in Parliament in Capital Causes is that of Roger Mortimer Earl of March Simon Beresford and others who were no Peers and yet tryed in Parliament and no Bishops present and we agree it probable for his reason because there is mention made of Counts Barons and Peers and Peers being named after Barons could not comprehend the Bishops And because we think it reasonable when the orders of that House are particularly enumerated that the order omitted should be intended absent but we will not allow but that Peers is and so is Grants comprehensive of Bishops Nor will we when the entry is General intend the Bishops absent except he cannot otherwise prove them absent which we mention in the entry once for all as just and common measures between us in this dispute It will appear true what we affirm of the words Peers and Grants by what follows And if we should not insist upon their being present when nothing appears to the contrary we should do wrong to the Cause But to come to the consideration of this Precedent Is this a just Precedent Is not Magna Charta hereby violated Are not the proceedings altogether illegal Here are Commoners tryed by Peers in Parliament It is well known that the high displeasure of the King was concerned and that he did interpose with a plenitude of Power in this particular case against the fundamental constitutions of the Government the greatest crime of this Earl was too much familiarity with the Kings Mother Indignation and Revenge and not Justice formed the Process It was proceeded to condemn him Judicio Zeli upon pretence of the Notoriety of the fact Sir Robert Cotton in his abridgment tells us Anno 4. Ed. 3. That the King charged the Peers who as Judges of the Land by the Kings assent adjudged that the said Roger as a Traytor should be drawn and hanged The Bishops were not present certainly they were none of the Judges that gave Judgment as the King pronounced without Cognisance of the Cause The King had more Honour for their Order than to call then to such Drudgery and service of the Crown The iniquity of the sentence appears by the reversal thereof in Parliament 25 Ed. 3. in which the Original Record is recited Sir Robert Cotton in his Abridgment tells us That this Earl being condemned of certain points whereof he deserved commendation and for other altogether untrue surmises there was a Bill brought into the Lords House for the reversal of the Judgment and it was reverst by Act of Parliament indeed it could not be otherways reverst for no Court can judicially reverse their own Judgment for Error in Law and Judgment in the Lords House being the dernier Resort cannot be repealed but undone it may be by themselves in their legislative Capacity Here saith the Octavo the Bishops were not present at the passing of that Bill but yet the Octavo Gentleman will not pretend that the Bishops are to be excluded in any Acts of Legislation Why therefore was he so willing to impose upon the people so falsely and unrighteously and to produce this as a Precedent against the Bishops Right of Session in matters of that Nature by himself recognized There is nothing can excuse him herein for he is certainly self-condemned of undue Art in thiâ— matter In 20 R. 2. the Case of Sir Thomas Haxey happen'd which the Octavo book page 20 produceth against us He was forsooth condemned in Parliament for that he had preferred a Bill in the House of Commons for regulating the outragious Expences of the Kings House particularly of Bishops and Ladies Haxey was for this tryed and condemned to death for it in Parliament And here appears to be no Bishops and there ought not to have been any for these reasons First that the Bishops were the parties wronged and therefore could not in any fitness give sentence But Secondly if that was not in the Case that that caus'd the process was Royall anger upon a great faction of State in which I believe the Bishops were not engaged made for deposing of Rich. the 2d that was understood by the King to be in acting and promoted by Sir Thomas Haxey by his Bill It was this made the sentence altogether abhorrent from legal justice in matter and form Here was a Tryall of a Commoner by Peers a matter made Treason that did participate nothing of the nature of Treason But the discreet Gentleman
afterwards sensible of the Injustice and Irregularity of their Proceedings in judging and condemning Commoners and for the avoiding of the like for time to come an Act of Parliament was made which followeth viz. El est assensu accord per nostre Seigniour le Roy touts les gents en plein Parlement per tant que les dits Peres come Judges du Parlement pristerint en le presence nostre Seigniour le Roy a faire a render les dits judgments passant du Roy sur ascun de ceux que n'estoient pas leur Peres ce que encheson de murdre de Seignior Lige destruction de celuy que fu sipres de Sank Royal fits du Roy que per les dits Peres que ore sont ou les Peres que serront en temps aveniz ne soient mes tenus ne charge a rendre judgments sur auter que sur lour peres ne ace fair mes eiont les peres de la terre poer eins de ceo pur tout Jours ore venu soient discharges quietes qui les avant dits judgments ore rendus ne soient ensample nen sequence en temps avenir per quoi les dits peres puissent estre charges desore judges autres que lour peres contre la ley de la terre si autiel case deveigne que Dieu defend Rot. Parl. 4 E. 3. 11. 6. This the Author of the grand Question concerning the Judicature of the House of Peers would have but an Order of the House and no Act of Parliament because it served his purpose to have it so but for no other reason which he offers in that Book but that it was an Act of Parliament will appear by a Record which my worthy Friend Mr. Petyt a most Industrious and Sagacious Enquirer into the Records of Elder Times hath furnished to me which is a Writ directed to the Barons of the Exchequer wherein the afore-recited Record is mentioned and called an Act of Parliament viz. Rex Thes Baronibus suis de scaccariis salutem mittimus nobis sub pede sigilli nostri quaedam Judicia in Parliamento nostro apud Westm nuper tent ' per Comites Barones alios Pares Regni super Rogero de Mortuo Mari quosdam alios reddita necnon quondam Concordiam per nos Pares praedict ' necnon Communitatem Regni nostri in eodem Parl. to fact ' super premissis mandamas quod Judicia Concordiam praedict ' in Scaccario nostro praedict ' coram vobis legi publicari ibid. seriatim in Rotulari de caetero ibid. observari Fac ' Teste meipso apud Windsor 15. die Februarii Anno Regni nostri quinti adhuc Brevia directa Baronibus de termino Sancti Hilar. anno 5 E. 3. R. 33. penes Rememor Domini Regis in Scaccario To compleat our Argument the Concordia appears now an Act of Parliament to the purpose that the Lords should not give Judgment upon others than their Peers yet we find the Bishops afterwards judged in Parliament and that in times near the making of this Act when we may be allowed to presume they knew this Law and besides the practice hath been conformable to the Law since as our Adversary confesseth and particularly to mention no more the Bishop of Norwich in the 7 R. 2. And Thomas Arundel Arch-bishop of Canterbury 21 R. 2. both for Treason were tryed in Parliament by Peers which Cases are before mentioned to another purpose There was likewise an Act of Parliament made 13 E. 3. n. 7. that the Nobles of the Land should not be put to answer but in open Parliament by their Peers but two years after that Act was repealed otherwise we should not have since heard of Tryals of Bishops by common Juries in Capital Causes And when the Lay-peers can again procure and provide for themselves such a Law they will not I hope envy the Bishops if they find them therein included CHAP. XIX BUt after all that hath been said it will be yet necessary to advertise the Reader for informing and settling a true Judgment of the Right of the Cause that in Questions of this Nature we can only arrive to a moral Certainty which is made by incomparably the greatest probability That we cannot be answered but by producing something at least equally probable to all the several parts of our Discourse that are to the question if by any Objection they should render any one part of our Discourse doubtful they would do nothing except they can do so to all the rest which can be done only by offering something more probable For when many probabilities are concurring to prove the same thing they do not singly stand upon their own Credit but they are all assisted by their Conjunction and give Aids mutually to support every one single probability This is but necessary to be said for that I see this Question will be kept up and defended with Obstinacy Passion Interest and unreasonable Contention And farther that it is very undecent that a question of this Greatness concerning a matter grave and important should be endlesly vexed with trifling Objections of the Nequam ingeniosi To prevent therefore the Caprice Captions Cavillations trifling Criticisms forcing of a Grammatical Sence of Words against their true and easie meaning most agreable to the subject matter to the occasion of speaking of them and their probable intendment and to the understanding of the Times when they were spoken And that we may be no longer or more troubled with their Opposings to that which is fairly probable an imagination of something barely possible and which otherwise doth appear notoriously false That Objections neither from the loose Stile especially of partial Historians nor from Records of Matters dark and obscure which leave us in doubt of their true meaning and therefore can be no ground for Argument nor from the various sence of words which they make to stand for this or that as it serves their turn At which rate nothing will be certain because few words have one single determinate Sence may any longer continue the Subterfuge of a desperate Cause and matter of endless Dispute I appeal to the World whether such like Objections deserve an Answer for to some of these Topicks whatever shall be produced by our Adversaries will be reduced And whether they are not rude and imperious to the Dignity of the Right in question to draw it to a Tryal by such mean and incompetent ways and unjust measures as they are otherwise in the Management of this Question to the persons of those that are concerned in it It is with passion to be resented that so noble a Question should be tryed by such means and incompetent ways of Probation and by such unnatural measures which can be endured by none but such who have no measures of Right but an agreableness to their own Projects and who are upon the search
and by gave the first occasion to this Question which was the true causa suasoria of their denyal to the Bishops a Right of Succession and judgment in that noble question Whether a Treason of State can be pardoned And that put them upon the search of Precedents an Oracle that will alwayes give a Response agreeable to the Enquirrer and Consulter For I am sure there is nothing so absurd and irregular that rude Antiquity and the miscarriages in humane Affairs in length of time will not furnish a Precedent for And these Precedents such as they were reported which we are hereafter to consider by their diligent Members became a causa justifica and the matter in pretence to warrant their proceedings that a great reason of State did seem to them to require And now whether the Lords Spiritual can be Judges in Capital Causes in Parliament is become a Question Though the Bishops Right to judge in capital Causes in Parliament seem to be clear and materially demonstrated from what is visible and obvious to the most vulgar observation of the constitution of the Government every body knows how the Lords Spiritual and Lords Temporal are placed in the stile of Acts of Parliament and in the Heralds order in the House of Lords The Arch-Bishops give first their Votes even before Dukes The Suffragan Diocesans after the Viscounts and before the Barons And in the same order did the Bishops stand in the publick Census in the times of the Saxons as may be seen in Sir Henry Spelman his Glossary in the word Alderman The great Authority Power and Rule that was intended the Prelates should have in all the great concernments of the Kingdom that were to make the business of the House of Lords may be best understood from the high place that hath been alwayes alotted to their Order in that House for Publick and civil honours are alwayes appointed and adjusted to the dignity of the Ministers offices and Services that are to be performed to the Government Such a solecism was never enacted by an Order of State That those persons that were less in power and under abatement and restraint of Authority should be preferred to those in place that had plenary power in the same Courts It is well known too That the Arch-Bishop of Canterbury was originally honoured with the first Writ of Summons to Parliament Since the Conquest there never was an English Bishop that had not his several Writ of Summons to Parliament Though the number of Temporal Barons have been reduced and many of the Regular Barons dismist of that honour for that their office was nothing in the Church and nothing but the possessions of the Abbots preferred them to that State Nothing seems too big or too high for so great and publick a character of the Bishops or out of the intendment of their trust that can ever be the business of a Parliament The greater the matters are that are agitated there the more necessary is the assistance of the Bishops for he that in any affair is most trusted is to be most concerned and by how much the affairs are of greatest moment in the same proportion they are more strictly obliged and required to assist in the management thereof We all know what sort of criminal prosecutions those are that are made in Parliament and what great consideration they are of that they are alwayes the symptoms of a very sickly State and the results of very great disorders in the Common-Wealth In these Cases if in any the Lords Spiritual cannot be wanted The neglecting to interpose in any one single prosecution that is Parliamentary hath proved the occasion That their Right of Session is now brought into Question For to speak the truth it is not very consistent with the Reverence that is naturally due to the Prelates to think that a Trust and Authority of so high a nature should be committed to them and they should at any time find reasons to neglect it But for what omissions they have been guilty of though upon a general consideration without examining the particular Causes and Reasons men not friendly to their Order may thus censure them we shall make a fair Apology as we shall meet with them and as they fall in to be considered in this Discourse We are now to give you some account how this comes now to be a question for the very questioning thereof makes some prejudice against the Right and there is scarce any thing so certain and true in Nature but if once put under dispute that can recover again into a general certainty and assurance It hath scarce escaped any mans observation that hath been acquainted with the business of the Courts of Law That the greatness of the pretender and the value of the Interest and Right in pretence doth cause a point of Law to be contended which would never else have been stirred especially if the Right be invidiously possessed by another Besides these three considerations which are foreign to the true Right I protest there is nothing to my apprehension of any moment offered in Print to continue it a Question I find Two Books Printed upon this Question both of them tending to disgrace the Bishops Right of judging in capital Causes in Parliament One in Octavo called A Letter of a Gentleman to his Friend shewing the Bishops are not to be Judges in Parliament in Cases Capital He begins with a Preface containing some matters and reasons against Bishops intermedling at all in secular affairs and after that he tells us That the Law of Parliament is best declared by usage gives us several precedents wherein he supposes the Bishops absent and concludes they were so for want of Right and Authority to be there And to give some Authority to his Precedents of omission as he would have them He tells us of the Assize of Clarendon an Act of Parliament made 10 Hen. 2 that excluded the Bishops in such Causes and of a Protestation made by all the Bishops in the 11 R. 2. whereby they renounce all Judgement of Right in such Causes upon the obligation they were under to the Canon Law and to render it impossible they should have any such Right and to make them incompetent Judges he adventures to say and prove after his manner That the Bishops are not Peers and to prepare the way for their remove out of that House he adventures to broach an opinion That the Bishops are not one of the three States nor an essential part of the Government There is another Book in Folio called A discourse of the Peerage and Jurisdiction of the Lords Spiritual in Parliament This Author pursues the same design upon the same grounds with some peculiar reasonings of his own If therein I give him satisfaction in what he hath peculiar without mentioning distinctly of them I am sure he will thank me for it But we will consider the Octavo's Preface examine his Precedents and shew that they are
of the Commoners which are Knights should be impannelled upon a Jury where either a Spiritual or Temporal Baron is concern'd besides that I find a single Remembrance as high as 13 E. 3. in Brooks Tryal 142. the Reports of that year are not printed of the Bishops Right of Peerage in a Capital Cause the Book is Evesque est Peere de Realme serva try per Peres in Crime But how this Right came to be discontinued and to lose remembrance we shall presently account for but I cannot think it Sence which some of our Lawyers have said for this purpose that a Bishop his being a Baron is Ratione Tenurae and not personal which is all one as to say that the Bishop is a Baron but his Person is not a Baron but his Peerage and Baronage is no other in truth than an Honor accumulated upon the Person of a Bishop together with his Office But to excuse them they thought themselves obliged to give a reason why Bishops are not as the Law is taken to be tryed by Peers but by a Common Jury which grew into practice by accident and was not ever so in probability but certainly is very irregular and extream incongruous and therefore to give a good reason for it is too hard a task to be undertaken and he that will undertake to give a reason of that which is unreasonable and go about to prove a thing fit which is incongruous must likely speak things equally incongruous absurd and unreasonable But to speak what the truth is in this matter the Bishops and the whole Order of Clergy did challenge to be exempt from the Jurisdiction of Secular Courts but the Bishops as is objected never waved their jus paritatis upon Arraignment in inferior Courts They only never insisted upon it For they had a better way to escape by setting up the pretended Rights and Priviledges of their Order and that Church for exempting themselves from the Jurisdiction of the Temporal Courts and by this means they did escape unpunished for the most part Though there were several Abatements made by the provision of the Laws and the Wisdom of the Judges to their unreasonable pretences therein yet they always got off by their pretended priviledge if not with impunity yet with some protection at least from Justice and farther they thought perhaps they might at least avoid being thought guilty of the Crimes objected whilst they used this pretence for a reason why they would not make a Defence And sure in all Offences but Treason they escaped with their Lives before the Statutes that took away the benefit of Clergy in some Cases of the greatest Guilt and even in the Case of Treason the Criminal ever had the Advocation and Intercession of the Church-power and Interest because the priviledge they contended for was so great and valuable a Concernment as they esteem'd it to the Order of the Clergy But by this means the memory of the Use of this Right and Priviledge was lost and the Detestation of a Crime in a Prelate provided him a speedy and ready Justice such as was at hand and at length Bishops themselves unadvisedly and being born down by the Common Opinion thus grounded and occasioned did submit to Tryals by Juries It is enough to have given an account how this Anamolous piece of Law came about But Anamolous Cases never make Rules nor destroy any Nor is it to be drawn into consequence whatever is a departure from the Establishment to destroy it quite Positive Constitutions of which no Reasons can be given why they are so can infer or argue nothing Reason cannot make Law though it is a fair inducement but our Reason is most perversly imployed when it proceeds from the Irregularities that happen in Human Affairs and are shuffled upon us by length of time by violence and iniquity and a heap of Accidents to argue us into more and to refix that which is regular and remains firm In quo quis peccat in eo punietur Is it not enough that the Order now suffers a diminution of their dignity by reason of the contumacy of the Popish Prelates their Predecessors and that their Refusals to submit to Temporal Justice are visited upon the Succession Severe enough this is in it self But why should any man expect that this Age in consequence of this should be persuaded and reasoned to exclude the Bishops out of their remaining right 'T is no more to be expected than that a man that hath one hand withered and mortified with the Palsie should be persuaded to cut off the other for conformity We know how the Prelates fell from their primitive Dignity of being tried by those of their own Order and were submitted to be tried by Juries of Commoners It would be therefore consonant and agreeable to the Dignity of Barons and Lords of Parliament for such the Bishops are that they be restored to their ancient right in the matters of Trials as mistaken Law is rectified by an Act of Parliament A wise Act of State it would be to redintegrate the Honour of the Baronage of England the whole Baronage suffering dishonour by a mutilation of so Honourable a Privilege in one of the membra dividentia of that body whilest the Bishops are thrown to common Jurors Especially since the incongruity thereof hath given occasion to some men to question one another of the jura paritatis which belongs to the Prelates and to dispute their right of Session in that House in one of the most important Concerns of the Government But however this Irregularity is discoursed it doth not affect the Right of the Prelates now in dispute for though Bishops are tried by Commoners out of Parliament as the Law is now generally taken yet that they are to be tried by Peers in Parliament our Adversaries do not deny And that they may and ought to sit in judgment upon Temporal Lords in Parliament in Capital Causes we have clearly proved So that the Reciprocal of a Bishops being judged and judging in Capital Causes in Parliament is intire and in this they continue duly pares But that it may not depend upon our Adversaries Concessions that Bishops may be tried by Peers in Parliament for he is not always constant to himself and may take back what he hath yielded we shall here subjoyn a short demonstrative proof that the Bishops ought to be tried by Peers in Parliament And that they have been declared and taken for Peers and under that Character tried when if they had not been reckoned and deemed Peers they could not have received Tryal in Parliament and it is thus Edward the Third had prevailed with the Lords against their good will to condemn the Earl of March Sir Simon Beresford John Matrevers Boys de Boyons John Devard Thomas de Gowrney William Ogle for the Murder of Edward the Second his Father and the Earl of Kent all of them Commoners but the Earl of March The Lords were
ought to set aside and supersede the consideration of Decency CHAP. XII BUT to complete our Evidence I will add the consideration of what remains unquestionably the Right of the Lords Spiritual which seems to me to be in parity of Reason with the Right now in Pretense and that is their Right to be authoritatively present and assisting at passing Bills of Attainder which the Bishops always exercised as the Folio saith though he will not think it allowable from thence to infer that they have rightful Authority when that House doth proceed judicially to Condemnation But I desire to be informed what difference there is between condemning a man by Act of Parliament and by Judgment in Parliament If the death of the man be onely considered it is as much against the Canon to condemn the man one way or the other It 's causa judicium sanguinis and death follows Nay to condemn a man by Bill of Attainder is more against the reason of the Canon than the condemning a man judicially for the condemning a man judicially is ex officio Judicis but a Bill of Attainder is an extraordinary use of the Legislative Power to a purpose which was not designed in the Institution Such an Act is not ex officio Legislatoris but the using of the Absolute Power of the Sovereignty upon Reasons of State Here one would think if the Canon had any consideration any obligation it should restrain the Bishops from meddling in such Legislations Privilegia ne irrogunto was one of the Laws of the twelve Tables But if I do rightly understand the reason why Bishops did more frequently and without pretence of scruple or objecting the Canon assist in the Bills of Attainder was for this reason That the weightiness of the Affair the high nature of the Proceeding the extraordinary use of the Legislative Power which can be warranted onely by extraordinary Reasons required their Presence and put that little pretence of the Canon out of countenance it could not with any faith to the Government be then so much as mentioned for an Excuse by the Bishops And this I will say that the Canon hath no more right of restraining the Bishops in Judicial Proceedings than in the Proceedings upon Bill of Attainder That it hath not done so is confessed in this and therefore it did not de jure do so in the other The Folio Author hath found out a very extraordinary Reason why Bishops are necessary to Acts of Attainder but this he saith must not be drawn into an Argument for the Bishops Right of Judging and that is because Rights Titles and Interests are made forfeit by Acts of Attainder which were not forfeitable at Common Law and for the doing of this it iâ— necessary there should be a concurrence of the three Estates to bind all Rights This Argument supposeth that private Acts of Attainder did not always conform themselves in the matter of Forfeitures to the severity of the Common Law or general Statute Law which is a mistake for before the Statutes of 26 H. 8. c. 13. 33 H. 8. c. 20. private Acts of Attainder made no Forfeitures but what the Common Law made and since the Statutes of 26 H. 8. c. 13. 33 H. 8. c. 20. the private Attainders by Parliament have not exceeded those appointed by that Statute but have often times gone less And therefore the Bishops were not present for the reason of making Forfeitures larger and of more things than the Law at the time being made forfeitable but of common duty especially in all these matters of an extraordinary nature or difficulty to assist as Judges and Councellours in that House And to this that I now say all the Acts of Parliament of private Attainders that I have seen and they are not a few are agreeable I believe what he hath said in this matter is not grounded upon any observation but he was willing to find out a Reason for what he had undertaken to prove and to offer it without trying of its truth Besides whatever can be a Law can be a Law without them and if they are absent CHAP. XIII BUT I must take notice that we have proved beyond what is necessary to maintain the Lords Spiritual their pretence of Right to judge of the Earl of Danby's Pardon which is the present case and gives the occasion of this Dispute And here I desire the Reader to remember and observe what was heretofore done by the Bishops in case of Heresie The Bishop in his Consistory convicted a Heretick and did never imagine he incurr'd the Canon pretended though the delivery over to the Secular Arm and burning of the Convict if he did not recant was intended assuredly to follow because he did not award the Execution and give the final killing Sentence How then can the Canon if it was a Law as it is not nor obligeth any man but he that will be obliged lay any restraint upon the Bishops in judging of the Earl of Danby's Pardon For if they dislallow his Pardon and reject his Plea he is not to be therefore condemned though perhaps his Condemnation may follow as burning doth the Conviction of a Heretick but he is not ipso facto and merely by rejecting his Plea of Pardon condemned For observe I pray no man is condemned or cast in any Suit because he doth not make a good Defence but upon the sufficiency of the matter whereupon he is charged Besides that it is not without Precedent that a man hath been tried after a Pardon pleaded and disallowed This every Lawyer knows to be so that if a Plea is pleaded to any Declaration upon which the Plaintiff demurs if the Plea be ruled a bad Plea the Defendent hath liberty to take exception to the insufficiency of the Declaration So that Judgment is finally and truly given upon the Declaration and Charge because there is a good cause of Action and not because the Defendent hath made a bad Plea So that the Bishops may judge in their own persons of the validity of Pardons without being contravenient to the Reason of the Canon so much talked of is evident for that the Judgment upon the Pardon is not the final and killing Judgment The Folio hath furnished us with an Authority for the same out of an ancient Manuscript Chronicle in libro Mailrosso he calls it wherein he saith the Prelates are said to have given their Opinion in 21 R. 2. for the revocation of certain Pardons of the Duke of Gloucester Earls of Arundel and Warwick which were granted in 11 R. 2. and in the Parliament of 21 R. 2. repealed And though the Chronicle said some blamed the Bishops and thought that they had incurred thereby Irregularity That doth not at all prejudice our Right nor abate the force of the Testimony that this matter of fact gives to it We reserved it to this place to add that as the intention of the Assize of Clarendon was to set bounds
to Persons or Territories by the Civil Authority Their Convocations are convened by the King 's Writ they debate nothing without his Leave Their Results become Canons and receive Sanction by the Royal Authority and do not pretend to infringe any Temporal or Civil Right or Law And besides their Convocations are always to be held sittting Parliaments and no longer not at any other times And whatever they debate or resolve is under the Observation of Parliament Nequid detrimenti capiat Respublica The Bishops make no Laws about Religion apart by themselves neither have they any Negative against any that are propounded and therefore are not answerable for any that are made or not made They have not the definition of Heresie but the Law hath declared it since the Reformation And the Writ De Heretico comburendo is since abrogated by the Christian Temper of a Parliament principally consisting of such Members that were conformable to the Institutions of the Church of England that is the legal Establishments of this our Christian Commonwealth The Church of England is no more her own present Establishments than the present thoughts of any man is the man himself as the thoughts of a man are more refined and unreprovable as the man grows wiser so do the Laws and Constitutions the Orders and Rules of a Church or Christian Republick alter amend and improve as the Wisdom and Virtue Religion and Devotion of the Government and the principal parts thereof in Church or State increaseth or advanceth Our Bishops have had and that with the greatest reason greater apprehensions of Schism and Separation than of Errors in Opinion which occasioned it as of worse importance to the Christian Faith than the Errors themselves Besides that a man cannot help being mistaken in many things but it is in every mans power to be modest and peaceable and wise to sobriety and hold the unity of the faith in the bond of peace and charity and not to revile and deprave that which hath the publick approbation though he cannot thereto fully assent It is great iniquity and unrighteousness to pretend to Liberty of Conscience as their right and in the mean time not to tolerate the publick appointments and what is authoritatively allowed and approved If Controvertible Opinions are allowed a Warrant for making a Sect and separate Communion and Churches are denominated and distinguished by them and consequently such Opinions are advanced unduly unto the same necessity of belief as Articles of Faith what will become of the Christian Verity where will it be recognized and purely professed how distinguished how understood how ascertained amidst the number of Opinions contended for by the several dogmatizing Sectaries with more zele than the undoubted and uncontrovertible Articles of Faith Nay I will adventure to say further on their behalf that Schismatical Separations would not offend them so little do they affect to be Magisterial but for that if this Disease should grow Epidemical there would be no such thing as a Christian Church and the Christian Religion would perish from the earth without a miracle It is onely designed by our Church that those whose Subscriptions are required should thereby onely signifie their allowance of the Liturgy and Articles as fit to be used and allowable What Plea then can our Separatists have for a Toleration for themselves who by their Separation seem unwilling to tolerate the publick Establishment either from our Governours Civil or Ecclesiastical or from one another in their divided ways To reform or change to these mens pleasures is impossible for that they cannot they positively differing from each other be all pleased in any one possible Establishment Besides that untill we cease to be Schismaticks and to be of separate and divided Communions upon the score of any dislike or but probable exception to what is publickly received or allowed the altering any thing for our satisfaction will be but applying the Cure to the Symptoms a cutting off one head of the Hydra By this way to effect an union is as impossible as it would be to empty the Ocean without stopping the cur-of the Rivers The Bishops are as all men by how much they are better learned are of the greatest Moderation in Opinions and can tell how duely to rate and value them according to the Prejudice or Advantage they do to the Ends of our Religon those several Opinions that have been contended with furious and rending Zeal in the several Ages of the Church to the Scandal of that peaceable Institution They can have a better Opinion of that man who hath unhappily entertained the less probable side of the Questions controverted if he opines with Modesty than they have of him that holds the most probable part thereof with a Sectary-Zeal Seperation from Contempt and Disdain of those of a different persuasion Their Moderation is known unto all men of it their Opposers have had very sensible Experience the several Dissenters cannot disown it but must confess that they have had severally kinder Usage from the Episcopal Men than their several Parties have from one another By their Learning Wisdom and Moderation which is most eminently known and observed in many of them and hath recommended them to the highest Esteem they must be allowed their Enemies being Judges to be the fittest Arbiters of the Controversies and the most likely and probable Procurers of the Peace of Christendome All the Dissenting Parties have reason to look upon them as their Common Sanctuary and Defence against the Outrages of each other But in this they must be pardoned if they being under a Law or Rule of their Superiors made as they think in a matter lawful act accordingly and do not disobey for their sake who think otherwise though in the mean time they pity their Scruples Indeed the Terms of the Nonconforming Ministers have been made hard upon them But that hath been from Reasons of State which the late unhappy Wars occasioned and they were ejected out of their Livings by Statute-Law And on the other side it is true that many men not to fit for that Holy Function have enjoyed Church Benefices but neither this can the Bishops help For they cannot reject a Clerk presented to a Benefice or eject him but as the Law will so sacred is the Right of Patronage and so fixed by the Law are Ministers in their Livings which is not Nice in the manners of Clerks and the Bishops cannot be severer than the Laws So that if some men not of the most unblamable conversations have kept their Livings and some of very unexceptionable Lives have been ejected The unhappy Nonconformists are directed where to make their Complaint But as there is little Cause of complaint on this part of the Episcopal Authority and function viz. Their Superintendency over the Pastors of their Dioceses So we shall observe how they have behaved themselves in the Exercise of the Power of the Keys For what is done therein by their Chancellors
by which it became capital is not understood as he tells us in the place before cited I shall not trouble the Reader with unfolding the matter But why doth he trouble himself to make Kings Fathers of their Countries some cannot be so and some have no mind to be so and yet they ought to be Kings And some that have not been Kings have been so and so styled as the great M. Tully for defeating the Catiline Conspiracy He was by decree of the Senate call'd Pater Patriae Those are with reason truly called Patres patriae which either relieve their Country from miserable pressures which is the civil death of a Nation and for this reason our King hath the honor of being called Pater Patriae and we hope that he will wear that honorable Title upon a second deliverance of us from a most deplorable condition Or else such who bring the Nation to an exalted state of happiness so much beyond their old state of things that they seem to give the Nation a new civil Life Being and Birth For his etymological argument from the notation of the Word it is too putid to be insisted upon tho not more ridiculous than his Hypothesis But for that the reduction of our duty to our King to the fifth Commandment may seem to give some advantage to the Hypothesis with Fathers who know no bounds of their power over their Children It must be observed that the Decalogue is not a compleat Rule of Morality The decalogue comprised the Principal Laws of that common Wealth which God their Law giver by a most Solemn Act of his Legislation did more awfully oblige them to observe God that time was their King Rebellion was as Idolatry and the sin of Witchcraft and the Defection of one of their Cities to Idolatry was punished as a revolt and Rebellion Deut. 13. v. 15. He had provided for his honor and worship and their Allegiance in the first Table and did design by the 5th Commandment to lay the Foundation of all positive morality by providing for a Reciprocation of kindnesses by injoyning the gratitude and fitting returns of Children to their Parents and by putting Children under obligations to be taught and instructed by their Parents But our duty to Governors is more duly referred to all the other Commandments because Government secures the observation of those Laws to us by which we enjoy our selves and ours freed from the Violations of Lust Appetite Fraud and Violence We do not honor our King by relief in his fortune which is commanded to be done by our Parents in the precept of honoring them our subsidies and Aids are not to that purpose but contributions to the charges of the Government they are the just price of our immunity protection from fraud and violence for which cause pay we tribute But whosoever he be that hath more respect for this Knights works then I have may find him more gently treated by a very worthy Gentleman in a very candid and judicious book called Patriarcha non Monarcha But what is the meaning of these flattering Books they cannot but be nauseous to His Majesty who is a very wise Prince and knows how sensless such Books are and besides they make the People afraid and the Nation unquiet from the apprehensions they give that the Government will be changed Notwithstanding the King hath given such solemn assurance to the Nation by his late Declaration that we shall have frequent Parliaments and that he will govern by Law They would have had a better market for the Divinity they bestow upon Princes with Alexander after he had lost his Virtue and with those Vile Emperors whose Names are Regum opprobria for such the flatterers of antient times Deifyed those who had ceas'd to be men they made Gods and when they had left nothing about them that was tolerable they magnified their power which was already most intolerable If the Kings hereafter would but read the History of Kings under that conclusion that a wise observer of Humane Events made after a long observation and experience and would make experiments of the truth of it in their own reading Kings would be glorious and the Nations they govern happy and full of peace They would find therein so many effectual Documents to fear God and regard men and govern them righteously Si Vitam spectes hominum si denique Mores Artem vim fraudem cuncta putes agere Si propiùs spectes fortuna est arbitra Rerum Nescis quid dicis sed tamen esse putas At penitus si introspicias ultima primis Connectas solus rector in orbe Deus Alciat People can be no happyer than Government and Laws design to make them though they do not alwayes answer the good designments of the Government To what purpose then are these new Hypotheses fram'd and published Kings are exempted by their Office and the sacredness of their persons from all fears but the fears of Nature and these can never be discharg'd Those who do ill will fear ill Eternally tho their power were made little less than omnipotent for the frame of Humane Nature hath made it necessary to be so Besides God hath made one thing against another there is a Divine Nemesis interwoven in the Nature of things and God will always govern the World Omne sub regno duriore regnum The great Mogul at his inauguration swears that his People shall be at peace at home and victorious abroad afflicted neither with plague nor famine but enjoy Health and Plenty all his days This seems extraordinary Pompous and Arrogant but it means no more than this that he will govern them so vertuously that Gods Providence shall be always propitious to his People and is no more in plain English than what our Church offers up in her publick prayers for the King viz. That he may govern us in Wealth Peace and Godliness that he may live long and so govern us ought to be every honest mans Prayers But after all these vain Hypotheses contriv'd for making Kings absolute it will be more easie for Kings to make their reigns unquiet and turn their Kingdoms into Shambles But lastly to revive the Antient Zeal of the true members of the Church of England against Popery To rectify the mistakes of some Gentlemen of the Clergy about the Dissenters And of our late Parliaments and their proceedings in reference to them Let it be considered how unreasonable their apprehensions are of any danger to the Church of England from the desires of the House of Commons of some indulgence or toleration in favor of the Dissenters at this time especially when the Protestant Religion is so shrewdly beset she hath reason now sure to take all such for her friends that are heartily Enemies to Popery tho not so skillful as they should be to ward off its assaults Since the Papists presume to call them Fanaticks tho exactly conformable to the Church of England that