THE CLERGY Vindicated OR THE RIGHTS AND PRIVILEGES That belong to them ASSERTED According to the Laws of England MORE Particularly touching the Sitting of BISHOPS in PARLIAMENT and their making Proxies in Capital Cases LONDON Printed by E. T. and R. H. 1679. THE RIGHTS and PRIVILEGES OF THE CLERGY According to the Laws of England THe Clergy of England or the whole number of those that are De Clero Domini of the Lord's Lot or Share as the Tribe of Levi was in Judea is according to our Law twofold Clerus Major and Clerus Minor the Greater and Lesser Clergy The former doth comprehend the Barons Spiritual or Lords of Parliament that is to say the Arch-Bishops and Bishops The later contains Arch-Deacons Deans Prebends Parsons Vicars and Chaplains Of both these kinds I will treat severally and apart But before I do so I shall give the Reader an Account in general of the Ecclesiastical State of the Church of England as I find it described by Mr. Cambden and Sir Edward Coke Mr. Cambden tells us that England hath two Provinces and accordingly two Arch-Bishops to wit the Arch-Bishop of Canterbury Primate and Metropolitan of all England and the Arch-Bishop of York Under these are twenty five Bishops To the Arch-Bishop of Canterbury are subject twenty two To the Arch-bishop of York the other three Now what Bishopricks these be with the Shires and Diocesses that are at this day under their Jurisdiction follow thus In the Province of Canterbury The Bishoprick of Canterbury together with that of Rochester containeth under it Kent it self The Bishoprick of London hath under it Essex Middlesex and part of Hertfordshire The Bishoprick of Chichester hath belonging to it Sussex The Bishoprick of Winchester compriseth Southamptonshire Surrey and the Isle of Wight Gernsey and also Jersey Islands lying against Normandy The Bishoprick of Salisbury comprehendeth Wiltshire and Berk shire The Bishoprick of Exeter containeth Devonshire and Cornwal The Bishoprick of Bath and Wells joyned together hath under it Somersetshire The Bishoprick of Glocester hath belonging to it Glocestershire To the Bishoprick of Worcester is subject Worcestershire and part of Warwickshire To the Bishoprick of Hereford Hereford and part of Salop or Shropshire The Bishoprick of Coventry and Litchfield joyned together have under it Staffordshire Derbyshire and the other part of Warwickshire as also that part of Shropshire which lieth toward the River Râ—pil Thâ—n the Bishoprick of 〈◊〉 which of all others is the greatest is bounded 〈…〉 Hâ—ntingâ—â—â—shire Bedfordshire Buckinghamshire and the 〈…〉 〈…〉 of Ely pertain Cambâ—â—â—â—â—shire and the Isle of Ely it self 〈…〉 of Norwich is Northâ—â—â—â— and Suâ—â—olk 〈…〉 of Oâ—â—â—â—ord hath under it Oxâ—â—fordshire 〈…〉 of Peterborough comprizeth Northamptonshire and Rutlandshire 〈…〉 the Bishoprick of Bristol is Doâ—setshire 〈…〉 Diocesses in England are to be added those of Wales which are 〈…〉 oâ— their own peculiar Arch-Bishoprick and made also fewer in number seâ—â—◠〈…〉 brought sâ—arce to â—our to wit The Bishoprick of Mâ—nâ—â—a havinâ— the Seat 〈…〉 the Bishoprick of 〈◊〉 the Bishoprick of Baâ—â—â—â— and the Bishoprick of 〈…〉 In the Province of York 〈…〉 of 〈◊〉 comprehendeth Yorkshire it self and Nottinghamshire 〈…〉 containeth 〈◊〉 Richmondshire 〈◊〉 part of Cumberâ—â—â—◠〈…〉 and of â—â—â—â—â—â—shire The Bishoprick of Durham hath Durham it self under it and Northumberland The Bishoprick of Carlâ—sle containeth within it part oâ— Camberland and the County of 〈…〉 〈…〉 there are in England Deanriâ—â— twenty six whereof thirteen were ordained by 〈…〉 in the greatâ—â— Cathâ—â—â—al Churches after the Monks were thrust out Arch-Dâ—aâ—â—â—â—ies sixty Dignities and Probends five hundred forty four Numbred also there 〈◊〉 Parish Churches under Bishopricks nine thousand two hundred eighty four oâ— which three thousand eight hundred forty five be Appropriate Now Appropriate Churches those are called which by the Pope's Authority coming between with consent of the King and the Bishop of the Diocess were upon certain Conditions tyed or Instruments united annexed and incorporated for ever unto Monasteries Bishopricks Colledges and Hospitals endowed with small Lands either for that the said Churches were built within their Lordships and Lands or granted by the Lords of the said Lands Which Churches afterwards when the Abbies and Monasteries were suppressed became Lay Fees to the great dammage of the Church Thus much Mr. Cambden As for Sir Edward Coke he informeth us That the Ecclesiastical State of England is divided into two Provinces or Arch-Bishopâ—icks viz. Of Canterbury and of York The Arch-Bishop of Canterbury is styled Metropolitanus Primas Totius Angliae and the Arch-Bishop of York Primas Angliae Each Arch-Bishop hath within his Province Suffragan Bishops of several Diocesses The Arch-Bishop of Canterbury hath under him within his Province of ancient Foundations viz. Rochester his Principal Chaplain London his Dean Winchester his Chancellor Norwich Lincoln Ely Chichester Salisbury Exeter Bath and Wells Worcester Coventry and Litchfield Hereford Landâ—ff St. Davids Bangor and St. Asaph and four founded by King Henry the Eighth erected out of the Ruins of dissolved Monasteries that is to say Glocester Bristol Peterborough and Oxford The Arch-Bishop of York hath under him four viz. Ths Bishop of the County Palatine of Chester newly erected by Henry the Eighth and annexed by him to the Arch-Bishop of York the County Palatine of Durham Carlisle and the Isle of Man annexed to the Province of York by Henry the Eighth But a greater number this Arch-Bishop had which time hath taken from him Every Diocess is divided into Arch-Deaconries whereof there be sixty And every Arch-Deaconry is divided into Deanries and Deanries again into Parishes Towns and Hamlets Having thus given my Reader an Account how the Ecclesiastical State of England standeth at this day I come to speak of the Clergy according to the division thereof by me before given viz. Into the Greater and Lesser Clergy First Of the Greater or Superior Clergy comprehending the Prelates the Arch-Bishops and Bishops THat the Law of England may be the better understood concerning our Superior Clergy I shall reduce it to these Particularities following which are not unworthy of the Reader 's Observation 1. Who the Founder and Patron of all Bishopricks 2. To whom the Spiritualties and Temporalties of Bishops appertain Sede Vacante 3. How Bishops were anciently made 4. Their Jurisdiction what and whence derived 5. Their Courts 6. By whom only commanded to certifie 7. Bishops Proceedings in Ecclesiastical Courts under the Name Style Seal of the Bishops how warrantable 8. With what Council they are assisted 9. Their Dominion and Property relating to Temporalities 10. What the King hath after every Bishop's death 11. Bishopricks whether Saleable 12. Their Right of Sitting in Parliament 13. Their Right of making Proxies in Cases of Life and Death 14. Statutes where made without them 15. Their Privileges as they are Lords of Parliament 16. Their Precedency 17. Their Excommunications 1. The Founder and Patron of all Bishopricks IT appeareth by our Books Co. Litt.
Temporal Baronies do enjoy all the Immunities that the Nobility and Peers of Parliament do saving only they are not to be judged by their Peers And the reason of this is because the Bishops cannot pass in like Cases upon the Tryal of any other of the Peers for that they are prohibited by the Canons of the Church to be Judges of Life and Death And reason would that the other Peers should not try them for this Tryal should be mutual for as much as it is performed upon their Honours without any Oath taken Now the Privileges that the Bishops claim as Peers of the Realm are such as these following 1. The Person of a Bishop shall not be arrested in Debt or Trespass by his Body 2. If a Bishop be Demandant or Plaintiff Tenant or Defendant there must be a Knight returned of his Jury or else the Array may be quashed 3. Arch-Bishops and Bishops are not bound to attend Leets nor to take the Oath there administred 4. A Day of Grace is never granted where a Bishop is Tenant or Defendant 5. If a Bishop be Defendant in Star-Chamber or Court of Chancery a Subpoena shall not be awarded but a Letter from the Lord Chancellor or Lord Keeper in lieu thereof 6. Every Arch Bishop or Bishop coming to the King at his Commandment and passing by any of the King's Forests may hunt and kill one or two of the King 's Deer 7. If a Bishop be Party to a Suit and would be essoigned he that casts the Essoigne out must put in Sureties to prove the Cause Which is not usual in the Case of a Common Person 8. If a Plaintiff recover against a Bishop in an Action of Debt or Trespass upon such a Plea pleaded by him or other Default in him so that a Fine thereby doth grow to the King and thereupon a Capias pâ—o Fine issueth out against him this shall not prejudice the Bishop so as the Plaintiff may thereby take advantage by Prayer that the Bishop shall abide in Execution c. 9. Whereas by a Statute made in 32. H. 8 c 16. it is enacted that the Subjects of the Realm shall not keep in their Families or Houses above the number of four Strangers born nevertheless by a Proviso in the said Act every Lord of Parliament hath his Privilege allowed unto him to keep in his Family the number of six Strangers born any thing in that Act to the contrary notwithstanding 10. By the Statute of West 1. c. 34. If any Person shall divulge false Tales of any of the Lords of Parliament by which Dissention may be betwixt the Commons and them the Offender is to be imprisoned until he bring forth the Author In brief My Lords the Bishops as 't is said before may challenge a Fruition of all the Privileges in virtue of their Baronies that the Lords Temporal can by virtue of theirs saving only the Bishops cannot be tryed by their Peers Which manner of Tryal was as I am informed brought into this Realm by William the Conqueror being answerable to the Norman and French Laws and agreeable to the Customs Feudal where almost all the Controversies arising between the Sovereign and his Vassal are tryed per Judicium Parium suorum 16. Their Precedency SIr Edward Coke treating on the Statute of the thirty first of Henry the Eighth c. 10. concerning the Precedency of the King 's great Officers hath these same words And first Cokâ— 4. Inst. 36â— for the Lords Spiritual who sit in Parliament on the King 's Right Hand amongst themselves 1. The Arch-Bishop of Canterbury 2. The Arch-Bishop of York on the same form 3. The Bishop of London 4. The Bishop of Durham 5. The Bishop of Winchester And then all the other Bishops of both Provinces shall sit and be placed after their Antienties as before this Act was accustomed But having regard to the Lords and Noble Peers of the Realm both the Arch-Bishops have place above all the great Officers and Nobility in Parliament Council and Commissions saving in the Star-Chamber the Lord Chancellor or Lord Keeper hath the Precedency of them But the other Bishops have place above all the Barons of the Realm because they hold their Bishopricks of the King per Baroniam but they give place to Viscounts Earls Marquesses and Dukes Note that in the penning of all Acts of Parliament the Lords Spiritual have the Preseance of the Lords Temporal And this shall suffice for the placing of the Lords Spiritual in Parliament c. according to Sir Edward Coke I will offer something out of Mr. Seagar the famous Herauld touching Preseance in Provincial Assemblies and elsewhere When the Arch-Bishop of Canterbury sitteth in his Provincial Assembly he hath on his Right Hand the Arch-Bishop of York and next unto him the Bishop of Winchester and on the Left Hand the Bishop of London But if it fall out that the Arch-Bishop of Caenterbury be not there by the Vacation of his See then the Arch-Bishop of York is to take his place who admitteth the Bishop of London on his Right Hand and the Bishop of Winchester to his Left the rest sitting as they are Elders by Consecration C. Lib. 4. c. 24. Of Honours Military and Civil A Bishop must do Reverence unto his Father at home but being in the Church the Father shall follow him Between two Equals he that is in his own Jurisdiction shall precede As if an Arch-Bishop do come into a Diocess of a Bishop notwithstanding he is a Person of more Dignity yet ought he give Honour unto the Bishop because his Presence doth not cancel his Authority C. Lab. 4. c. 24. Of Honour Military and Civil 17. Their Excommunications EXcommunication that is the greatest Judgment upon Earth being that which is ratified in Heaven will be the better understood by these Particularities 1. It s Definition 2. It s Division 3. The Writs that belong to it 4. By whom it ought to be cerified 5. The Power of it in a Christian Church First Its Definition Excommunication is thus defined by Panormitan Co. Lit. 133. b Excommunicatio est nihil aliud quà m Censura a Canone Vel Judice Ecclesiastico prolata inflicta privans legitima Communione Sacramentorum quandoque Hominum Secondly Its Division This Excommunication thus defined by the Canonist is twofold Co. Lit. 133 b. it is either Lesser or Greater The Lesser is Per quam quis a Sacramentorum participatione Conscientia vel Sententia arcetur The Greater Excommunication is that which Non solùm a Sacramentorum verum etiam fidelium Communione excludit ab omni actu legitimo separat dividit Either of these disableth the Party to sue any Action in the Kings Courts And yet our Books tell us that every Excommunication disableth not the Party As for Example If Bailiffs and Commons 30. E. 3.15 Co. Lit. 134. a. or any other Corporation aggregate of many bring an Action Excommengement in the
issue and success when they are grounded upon the fear of God the Root and Beginning of all true Wisdom And therefore our wise and Religious Ancestors called to their General Council or Witten Aâ—mote or Court of Wisdom as they called it those chief and principal Persons of the Clergy which by their Place and Profession by their Gravities Learning and Wisdom might best advise what was the Law of God's acceptable Will and Pleasure that they might frame their Humane Laws answerable or at least not contrary and repugnant thereunto To Second Judge Dodridge in the Probation of our Bishops sitting in the Assembly of States or Wise Men before the Conquest I shall offer these Authorities following At a Parliament holden by King Inas Anno Domini 727. the Statutes began thus Ego Inas Dei beneficio Rex suasu Instituto Cenredi patris mei Hedda Erkenwaldi Episcoporum meorum omnium Senatorum meorum c. The Conclusion of the Parliament holden Ann. 940. by King Athelstan at Grately was thus All this was enacted in the great Synod whereat was the Arch-Bishop Wolfehelme with all the Noble Men and Wise men which King Athelstan called together Co. Lit. 110. a. Co. 2. Inst 268. King Edovard and Phlegmond Arch-Bishop of Canterbury assembled a great Council of Bishops and other faithful People c. Matth. Westm Lib. 1. sub Ann. 905. Ingulphus who died before 1109. saith Rex Eldvedus convocavit Magnates Episcopos Proceres Optimates ad tractandum de publicis negotiis Regni Co. 4. Inst f. 3. The Reader may see more of this matter in the Preface of the Ninth Part of Coke's Reports 13. Their Right of making Proxies whensoever Question is had of the Attainder of any Peer IT appears by our Books of Law that ever when Question is had of any Attainder of any Peer in Parliament they depart the Higher House and make their Procurators For by the Decrees of the Church they may not be Judges of Life and Death In the tenth Year of Edward the Fourth 10. E. 4.6 b. it is said by Littleton Quantum Seignior est indict c. Ceo serra mand en le Parliament la le Seignior Seneschall d'Anglete'rre luy mitta as Respons il dirra de Rieu culpable ceo serra trie per pares suos c. donques les Seignieurs Spirituels que ne poient consent al mort de home ferrount un Procurator en le Parliament When a Lord is indicted it shall be returned into Parliament and there the Steward of England shall put him to answer and he shall say Not Guilty and this shall be tried by his Peers and then the Lords Spiritual who may not consent to the death of any Man shall make their Procurators in Parliament Stamford Lib. 3. f. 153. A B. in his Pleas of the Crown informeth us Que Evesque ne ount lieu en Parliament en Respect de lour nobilitie mes en respect de lour Possession _____ L'antient Baronies annexes a lour Dignities And he further says that a Peer indicted of Treason or Felony may if the King please be arraigned of it in Parliament and then the Lords Spiritual shall make a Procurator for them Eo que per le Canonicall Leges ils mesmes ne doint condemner asuma Mort. Mr. Justice Dodridge on the Constitution of Clarenden of Henry the Second before-mentioned tells us thus Here we see says he the Presence of the Bishops in the Parliament in respect of their Baronies Quousque perveniatur ad diminutionem c. For ever unto our times when Question is had of any Attainder of any Peer in Parliament they depart the Higher House and make their Procurators Vide His Treatise of the Barons of the Realm A Peer of the Realm says Coke being indicted of Treason or Felony Co. 3 Inst f. â—1 or of Misprision and duly transmitted to the Lords may be arraigned thereof in the Upper House of Parliament but then there must be appointed a Steward of England who shall put him to answer And if he plead Not Guilty he shall be tryed per Pares suos and then the Lords Spiritual must withdraw and make their Proxies Again says Coke A Peer of the Realm being indicted of Treason Co. 4. Inst â— or Felony or Misprision of Treason may be arraigned thereof in Parliament a Lord Steward being appointed and then the Lords Spiritual shall make a Procurator for them By these four Authors Littleton Stamford Dodridge and Coke on whose Sleeve I should as soon pin my Faith as upon any four Lawyers famous in their Profession since my first Admittance into an Inns of Court It is asserted that the Prelates upon their withdrawing in Capital Cases have a Right to make their Procurators They depart the House not by vertue of any Rule at the Common Law but in vertue of an old Ecclesiastical Canon They make their Proxies not as they are Spiritual Persons but in respect of their Temporal Baronies To be short If I should hear that the Opinion of these four most eminent Lawyers is over-ruled by our Sages by vertue of that Spell called Error Temporis it will cast me undoubtedly not into an Admiration but an Extasie 14. Statutes where made without them ALthough the Bishops have a Right of sitting in Parliament and ought always to be called to that great Council yet Statutes have been good without their Lordships And that in three several Cases 1. If they voluntarily absent themselves then may the King the Nobles and Commons make an Act of Parliament without them As where any Offender is to be attainted of High Treason or Felony and the Bishops absent themselves and the Act proceed the Act is good and perfect 2. If they be present and refuse to give any Voices and the Act proceed the Act of Parliament is good without them 3. Where the Voices in Parliament ought to be absolute either in the Affirmative or Negative and they give their Voices with Limitation or Condition and the Act proceeds the Act is good for their Conditional Voices are no Voices Examples for these Particulars the Reader may find in Coke's 2. Inst f. 585 588. Note Albeit Statutes have been made without the Bishops yet they are accounted one of the Estates of Parliament as it appears by my Lord Coke in the very beginning of the fourth Part of his Institutes But it is pretended by some that they are not for if they were then should they discuss Matters separately by themselves from the other Lords as the Commons now do I deny the Consequence for our Books tell us That at the first both Houses sate together Pray how many Estates were they then if it be answered that there were but two why then this shews that two Estates may discuss Matters together both in one and the same House 15. Their Privileges as they are Lords of Parliament THe Bishops in the Right of their
Bailiffs shall not disable them for that they sue and answer by Attourney otherwise it is of a sole Corporation But if Executors or Administrators be excommunicated they may be disabled because they which converse with a Person excommunicate are excommunicate also If a Bishop be Defendant Co. Lit. 134. a. 9 A. 7.21 b. an Excommunication by the same Bishop against the Plaintiff shall not disable him and it shall be intended for the same Cause if another be not shewed Thirdly The several Writs that belong to it There are three sorts of Writs appertaining to Excommunications The one is called Excommunicato Capiendo Another named Excommunicato Deliberando The Third is styled Excommunicato Recipiendo Excommunicato Capiendo is a Writ directed to the Sheriff for the Apprehension of him that standeth obstinately excommunicated for forty days For such a one not seeking his Absolution hath or may have his Contempt certified or signified into the Chancery whence issueth this Writ for the laying of him up without Bail or Mainprize until he conform himself And when he is justified and hath made Agreement then the Bishop shall send his Letters to the King testifying the same and then it shall be commanded to the Sheriff to deliver him by a Writ called Excommunicato Deliberâ—â—do But if the Person excommunicated and for his Obstinacy being committed to Prison be inlawfully delivered thence before he has given Caution to obey the Authority of the Church then he is commanded to be sought for and laid up again by a Writ called Excommunicato Recipiendo My Lord Coke tells us Co. 2. 〈◊〉 â— 23. that if a Man be excommunicated and offer to obey and perform the Sentence and the Bishop refuses to accept it and to assoil him he shall have a Writ to the Bishop requiring him upon performance of the Sentence to assoil him c. And also the Party grieved may have his Action upon his Case against the Bishop in like manner as he may when the Bishop doth excommunicate him for a matter which belongeth not to Ecclesiastical Cognizance Also the Bishop in those Cases may be indicted at the Suit of the King Fourthly By whom Excommunication ought to be certified It is declared in our Books Co. Lit. 134. a. 12. â— 4.15.20 H. 6.17.11 H. 4.14 that none can certifie Excommengement but only the Bishop unless the Bishop be beyond Sea or in Remotis or one that hath ordinary Jurisdiction and is Immediate Officer to the King's Courts As the Arch-Deacon of Richmond or the Dean and Chapter in time of Vacation But in antient time every Official or Commissary might testifie Excommengement in the King's Court 11. H. 4.62 and for the mischief that ensued thereupon it was ordained by the King in Parliament that none should testifie Excommengement but the Bishop only If a Bishop certifie 33 E. 3. Excom 29. that another Bishop hath certified him that the Party which is his Diocesan is excommunicated this Certificate upon anothers Report is not sufficient If the Bishop certifieth the Excommunication under Seal â—4 E. 3. Excom â— albeit he dieth yet the Certificate shall serve And it is to be observed Co. 2. Inst 623.28 E. 3.97.14 H. 4 14. that at the Common Law a Certificate of the Bishop whereupon a Significavit that is a Writ De Excommunicato Capiendo was to be granted ought to express the Cause and the Suit against the Party especially in the Certificate But it may be queried whether an Excommunication and Certificate thereof by any Foreign Power can disable the Party It is answered 16. E. 3. Excom 4.4 H. 7.15.12 E. 4.15 that if the Bishop of Rome or any other having Foreign Authority doth excommunicate any Subject of this Realm and certifieth so much under his Seal of Lead this shall not disable the Party For the Common Law disallows all Acts done in disability of any Subject of this Realm by any Foreign Power out of the Realm as things not Authentick Whereof the Judges should give Allowance Fifthly The Power of Excommunication in a Christian Church A most Learned Doctor of our Church that he may give the Church her due and Caesar his asserts and proves these Particulars First That under the Gospel there is a Power in the Officers of the Church by virtue of Divine Institution to exclude any Offenders out of the Christian Society for transgressing the Laws of it The Second That this Power doth remain formally in the Church after its being incorporated into the Commonwealth The Third That after the Churches being incorporated into the Common-wealth the Right of Supreme Management of this Power in an External way doth fall into the Magistrates Hands consisting in these four things 1. A Right of prescribing Laws for the Management of Church-Censures 2. A Right of bounding the manner of Proceeding in Censures that in a settled Christian State Matters of so great weight be not left to the Arbitrary Pleasure of any Church-Officers 3. The Right of adding Temporal and Civil Sanctions to Church Censures and so inforcing the Spiritual Weapons of the Church with the more keen and sharp ones of the Civil State 4. To the Magistrate belongs the Right of Appeals in case of unjust Censure So that the Sum of all that has been said is this That though the Magistrate hath the main care of ordering things in the Church yet the Magistrates Power being Cumulative and not Privative the Church and her Officers retain the Fundamental Right of inflicting Censures on Offenders Thus much concerning the Superior Clergy containing the Arch-Bishops and Bishops I come now to treat of the Inferior Clergy under which are comprehended Deans Arch-Deacons Parsons Vicars Prebends and Chaplains SECONDLY OF THE INFERIOR CLERGY IT is to be known that of Spiritual Functions there be three Degrees 1. A Function which hath a Jurisdiction 2. A Spiritual Administration with a Cure 3. They who have neither Cure nor Jurisdiction Of these in their Order 1. Of a Function which hath a Jurisdiction UNder this Rank may be placed Deans and Arch-Deacons 1. Deans Dean in Latine Decanus which is derived of the Greek Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Co. Lit. 9â— a. that signifieth Tâ—â— for that he is an Ecclesiastical Secular Governor and was anciently over ten Prebends or Canons at the least Howbeit in England we use to call him a Dean that is next under the Bishop and Chief of the Chapter ordinarily in a Cathedral Church and the rest of the Society or Corporation we call Capitulum the Chapter Now Co. Lit. 95. a. Of Chapters there be in our Law two kinds viz. The Antient and the Latter And the Latter be of two sorts 1. Those which were translated or founded by King Henry the Eighth in place of Abbots and Covents or Priors and Covents which were Chapters whilst they stood and these are new Chapters to old Bishopricks 2. Where the Bishoprick was newly founded by