Because in this present Parliament some things are to be transacted at which it is not lawful for us by the Decrees of the Holy Canons to be personally present This is the ground and reason of their protestation The wicked Customs therefore which that Monk inveighs against and which cost Becket so severe a Penance must be sought for elsewhere amongst the rest of those Sixteen Constitutions of Clarendon But whatever Opinion the Clergy of those times had of this Canon I doubt not to make it evident that it is grounded upon Principles of Superstition for as the Reverend Davenant hath Determ 11. it Quid impium quid illicitum What is in it that is impious What that is unlawful What that is contrary to the Office or Sacredness of a Priest where there is a just authority for it to bridle and restrain such as are notoriously wicked and disturbers of the Christian Commonwealth by civil penalties and corporal inflictions The Angels of Heaven think it no way disagreeable at Gods command to inflict corporal punishments upon the wicked And why should the Angels of the Church at the appointment of the King who is Gods Image upon Earth think it unlawful to adjudge the same wicked persons to deserve punishment The Act and Exercise of civil Jurisdiction of its own nature is not disagreeable to the most holy person nor any way opposite to the Sacerdotal Function We have the Authority of God himself in the practice of his most Ancient Church to justifie this Jurisdiction Under the Law God himself joyn'd it to the Sacerdotal Office it is not strange therefore nor forbidden by Divine Law that the Priest should obtain a Civil Jurisdiction We find it exemplified in Eli and Samuel and See Numb 25. 7 13. the Maccabees and all that were invested with the Office of High Priest This could not be expected amongst the Apostles because then the Civil Magistrates were not Christians yet S. Peter had once a supply of Civil Authority by a Miracle and to shew that it was not unlawful for an Apostle to give Sentence in Cases Capital He pronounc'd Saphira's Doom for Sacriledge and Lying Acts 5. 9. Behold the feet of them which buried thy Husband are at the Door and shall carry thee out But these New Masters of Israel were afraid a Sentence of Justice should defile them with the Blood of a Malefactor like the Priests and Elders among the Jews John 18. 28. when they had bought and sold the Life of our Blessed Lord and used all the Tricks that Craft and Malice could suborn to destroy him so precise they were for all that they would not go into Pilates Judgment Hall least they should be defiled and unfit to eat the Passover 'T was the Superstition of those Men to think they could render the Priests Office more Sacred and put more veneration upon his person then Gods own Institution had done They would not have him interess or concern himself in a Case of Blood least it should desecrate and unhallow his Person and stain his Function But we know that all Virtue is Ornamental and 't is as well an Act of Justice to condemn the Guilty as to acquit the Innocent 2. Here is Usurpation in this Canon and it is flatly against the King's Supremacy By this means a Foreign Power restrains the Sovereign Authority of the Kingdom from commanding the Service or making use of the Duty of his Subjects in such Cases The Force of this Canon divided the Prelates of those times between the Prince and the Pope either they did not understand or they did wilfully neglect their Duty and some Instances of the mischievous effects hereof this Gentleman gives us in his Letter He tells us p. 7 8. 5 E. 3. The Parliament was declared to be called for the redress of the Breach of the Laws and of the Peace of the Kingdom And because the Prelates were of opinion that it belonged not properly to them to give counsel about keeping the Peace nor punishing such Evils they went away by themselves and they returned no more Nor did their Disobedience stop here but the Gentleman tells us further at p. 96. That 20 R. 2. the Bishops upon occasion of the Statute of Provisors enter a Protestation against whatsoever should be done in derogation or restriction of the Power of their Holy Father the Pope saying they were sworn to his Holiness and to the Court of Rome These and the like Insolencies were the Fruits of those Immunities which the Prelates of those times received by the Decrees of those Holy Canons And as this Canon was grounded upon Superstition and did confront the Kings Supremacy so the Practice of it in those times was irrational and uncharitable First Irrational for 1. Why were the Prelates debarr'd the liberty of sitting Judges in such Cases Was it because they wanted Knowledge Reason or Discretion I suppose not If it were not because they had too little but too much of these Qualifications That was Irrational 2. That the Prelates have been and may be Judges of Misdemeanors this Gentleman does grant at p. 18. But there may be an Impeachment for sundry Offences under the name of Treason which really according to the Rule of Law are no more than Misdemeanors Why may not the Bishops sit as Judges in such Cases Must the Culprit be delivered up to Justice upon such Impeachments without any further Trial or Examination what will it amount unto This would be a kind of Hallifax-Law and that 's Irrational 3. In the Case of Sir John Oldcastle this Gentleman tells us Pag. 38 39. The Popish Bishops did excommunicate and condemn him for an Heretick and so turn'd him over to the Secular Judgment for execution yet certainly saith this Gentlem. p. 39. those good men I mean those Popish Bishops would have no more to do with him as to his further Execution that the World might see they were not men of Blood So that 't is pretended at least that this Holy Canon as they call it was design'd for Caution that the Prelates might have no hand in Blood and yet the practice is so irrational it does not sufficiently prevent it For in their Legislative capacity this Gentleman grants p. 3. that they may Sit and Vote and pass Bills of Attainder * He saith p. 51 the E. of Straffords Trial was compleated that way And p. 104. Acts of Attainder are Laws and every Freeman is supposed to give his consent to every Law either by his Representative or in person if a Member of Parliament and Bishops being Members may I think saith he claim to do it personally And though there be a great stir about such things as are preliminary and preparatory to Condemnation yet the Constitutions of Clarendon enjoyned them Let. p. 71. to attend the Court quousque perveniatur ad diminutionem Membrorum vel ad Mortem till it comes to loss of Life or Member which the
Barons here we sit as Peers Which last is also verified in terminis by the words of a Statute or Act of Parliament wherein the Bishops are acknowledged to be Peers of the Land But to proceed more particularly to our proofs de facto after the alteration of their Tenures by the Norman Conqueror we find a Parliament assembled in the fifth year of that King wherein are present Episcopi Abbates Comites Primates totius Angliae †the * Math. Paris in Willi elmo 1. Bishops Abbots Earls and the rest of the Baronage of England And 3ly In the ninth year of William Rufus an old Author telleth us de Regni statu acturus Episcopos Abbates quoscunque Regni Proceres in unum praecepti sui sanctione egit that being to consult of the Affairs of the Kingdom he called together by his Writ the Bishops Abbots and all the Peers of the Realm (†) Edmor hist Mov l. 2. And 2ly During the Reign of King Henry the first for we will take but one example out of each Kings Reign though each Kings Reign would yeild us more a Parliament was called at London wherein were many things dispatched aa well of Ecclesiastical as Secular nature the Bishops and Abbots being present with the other Lords Coacto apud Londinium Magno Episcoporum Procerum Abbatumque concilio multa Ecclesiasticarum Secularium rerum ordinata negotia decisa Litigia saith the Monk of Malmsbury (†) Malmbs Hist Reg. Ang. l. 5. and of this Parliament it is I take it that Edmor speaketh Hist. Novel l. 4. p. 91. Proceed we 4ly to King Henry the second for King Stephens Reign was so full of Wars and Tumults that there is very little to be found of Parliaments and there we find the Bishops with the other Peers convened in Parliament for the determination of the points in controversy between Alphonso King of Castile and Sancho King of Navarre referred by com-promise to the King of England and here determined by King Henry amongst other things Habito cum Episcopis Comitibus Baronibus cum deliberatione Consilio as in Roger Hoveden (†) Hoveden Annal. pac Rose in H. 2. 5ly Next time comes Richard the first his Son during whose Imprisonment by the D. of Austria his Brother John then Earl of Moriton endeavoured by force and cunning in Normandy to set the Crown on his own head which caused Hubert the Archbishop of Canterbury to call a Parliament Convocatis coram eo Episcopis Comitibus Baronibus Regni (†) Id. in Ioh. wherein the Bishops Earls and Barons did with one consent agree to seize on his Estate and suppress his power the better to preserve the Kingdom in Wealth Peace and Safety 6ly After succeeded John and he calls a Parliament wherein were certain Laws made for the defence of this Kingdom Communi assensu Archiepiscoporum Episcoporum Comitum Baronum omnium fidelium suorum Angliae by the Common Counsel and Assent of the Archbishops Bishops Earls Barons and the rest of his Lieges Remember what was said before touching the Writ of Summons in the said Kings time from this time till the last Parliament of King Charles there is no Kings Reign of which we have not many though not all the Acts of Parliament still it Print amongst us Nor is there any Act of Parliament in the Printed Books to the Enacting of which the Bishops Approbation and Consent is not plainly specified either in the general Proem set before the Acts or in the Body of the Acts themselves as by the Books themselves doth at large appear 7ly And to this kind of proof may be further added the Form and manner of the Writ by which the Prelates in all times have been called to Parliament being the very Law Verbatim with that which is directed to the Temporal Barons save that the Spiritual Lords are commanded to attend the Service in fide dilectione the Temporal in fide Homagio and of late times in fide Ligeantia quibus nobis tenemini A Form or Copy of which Summons as ancient as King John's time is still reserved upon Record directed Nominatim to the Archbishop of Canterbury (†) Titles of Hon. part 2. cap. 1. and then a Scriptum est similiter to the residue of the Bishops Abbots Earls and Barons Then add the Privilege of Parliament for themselves and their Servants during the time of the Sessions the Liberty to kill and take one or two of the Kings Deer as they pass by any of his Forests in coming to Parliament upon his Commandment (*) Charta de forest cap. their enjoying of the same Immunities which are and have been heretofore enjoyed by the Temporal Barons (†) Camden in Briiania and tell me if the Bishops did not sit in Parliament by as good a Title as the Temporal Lords and therefore Essential Fundamental parts of the Court of Parliament By this Discourse it may appear that the Bishops Sit and Vote in Parliament by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in regard of their Baronies In both respects accounted one of the Three Estates and the first also of the Three as from the Premises may be gathered without any great trouble But in so nice a point as this we shall not only build upon general Inferences but particular Evidences And first it is affirmed by Titus Livius in his Relation of the Life and Reign of King Henry the 5th That when his Funerals were ended the three Estates of the Realm of England did assemble together and declare his Son King Henry the 6th being an Infant of 8 Months old to be their Sovereign Lord †as his Heir and Successor And three Estates there * Tit. Liv. M. S. in Bib. Bodl. could not be to perform that Service unless the Bishops were acknowledged to be one of the number 2ly In the Parliament Rolls of King Richard the third there is mention of a Bill or Parchment presented to that Prince being then Duke of Glocester on the behalf and in the Name of the Three Estates of the Realm of England that is to wit the Lords Spiritual and Temporal and of the Commons by name which forasmuch as neither the said Three Estates nor the persons which delivered it on their behalf were then assembled in form of Parliament was afterwards in the first Parliament of that King by the same Three Estates Assembled in this present Parliament I speak the very words of the Act it self and by Authority of the same Enrolled Recorded and Approved (*) An. Speed in K. R. 3 and at the request and by the assent of the Three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by Authority of the same it be pronounced decreed and declared that our said Sovereign Lord the King was
the King's Council which the King granted yet afterwards 51 E. 3. at the Request of the Commons themselves he was restored to all and declared innocent This Gentleman was so sensible of this their Prejudice and Rashness attended with so much Levity that he could not pass it by without setting some Remark upon it p. 12. But when Justice Loyalty and Honour governs their Debates and Resolutions we may put the King and to use his own Illustration all the Three Estates of Parliament into the same Nest of Boxes and yet their respective Interests which is the Interest of the whole Kingdom interwoven will be secure and preserv'd inviolate But the Gentleman tells us further That if the Bishops be one of the Three Estates nothing can pass in Parliament without them This may be generally true among States coordinate without a Sovereign Head over them and when a Rival is set up to give Check-mate to the Sovereign Authority as it was in the time of Hen. 8. mentioned by this Gentleman at p. 92. when the Question was To whom the Supream Jurisdiction did belong to the King or to the Pope In the time of such a Competition the Crown is obliged to secure it self against such an Usurpation and does most justly abandon the Clergy that sides with it But 2. If Acts have passed without the Bishops they have likewise done so as by him is said sometimes without the Commons Egbert who first united the Seven Kingdoms of the Saxons under the common Name of England he caus'd to be conven'd at London His Bishops and Peers of the highest Rank to advise upon some course against the Danish Pyrates this was a Military Business and Bloud-shed might have ensued upon the Stubbornness of those Pyrates who infested the Sea-Coast of England And King Ethelwolph in Parliament or Assembly of his States at Winchester Anno 855. by the Advice These Great Councils were the Parliaments of those Times Let. p. 72. and Counsel of the Bishops and Nobility confirm'd unto the Clergy the Tenth Part of all mens Goods and Ordered that the Tythe so confirmed unto them should be free from all Secular Services and Impositions And Wingate in his Abridgment and the Word Parliament tells us out of the Mirrour of Justices of an Act in Aelfred's Time That Parliaments should be held twice a year and oftner if need requir'd But note saith he This was by the King and Lords only And I believe we may observe the like practice among some of this Gentleman's Precedents But it is much more satisfactory when the Laws are Enacted by the Sovereign Authority at the Request of the Commons with the consent of the Lords Spiritual and Temporal that is by the King with the joint Assent of the Three Estates of Parliament let us not therefore dissolve or drive them away when we have them That which is alledged out of Bishop Jewel and Crompton I refer you to the Answer of the Quodlibetical Question for your p. 93. to 98. satisfaction That King James was of this Judgment is evident from the very Words and Speech produced by this Gentleman to the contrary The Parliament saith he is composed of a Head and a Body The Head is the King the Body are the Members of the Parliament This Body again is subdivided into two parts the Upper and the Lower House the Upper House compounded partly of Nobility Temporal men who are Hereditable Counsellors to the High Court of Parliament by the Honour of their Creation and Lands and partly of Bishops Spiritual men who are likewise by virtue of their Place and Dignity Counsellors ad vitam Life-Renters of this Court. The other House is compos'd of Knights for the Shires and Gentry and Burgesses for the Towns Here we see though the King makes but Two Houses yet he does clearly distinguish them into Three Estates though he does not call them so To what is said by Stephen Gardiner and Finch I oppose the Testimonies of Livy Selden Cooke and Sheppard To the Expressions of the Late King of B. Memory in his Answer to the 19 Propos when he was fluctuating in the midst of a Storm gathering round about him and to the Declaration of the Commons 2 H. 4. n. 32. I might Answer That the Upper House in a large sense consisting of Lords Spiritual and Temporal sitting and voting together may be taken for One Estate But taken precisely and in a strict sense as their Concerns and Interests are distinct so they are clearly Two But to those Authorities I shall rather oppose the Act of Recognition 1 Eliz. 3. Where the Lords Spiritual and Temporal and the Commons in that Parliament Assembled do Recognize the Queens Majesty to be their true lawful and undoubted Sovereign Lieged Lady and Queen in these words We Your most Faithful Loving and Obedient Subjects representing the Three Estates of this Realm which evidently sheweth the Queen was not there esteemed one So when the Funerals of Hen. 5. were ended the Three Estates did Assemble and Acknowledge his Son King To think to elude such Evidence by saying as this Gentleman does in the like case that such Expressions are delivered obiter upon the By is to make what we fancy not in any Statute utterly void and of none effect The next Question concerns the Bishops Peerage For the Affirmative we have these things to say 1. That the Prelates are called by the same Writ for Form and Manner with that directed to the Temporal Barons so the Answer to the Quodlibetical Question That they Sit and Vote there by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in respect of their Baronies Hereupon they affirm to the Lords Temporal in Parliament holden at Northampton Hen. 2. as Selden reports We sit not here as Bishops only but as Barons we are Barons and you are Barons here we sit as Peers And some Statutes call them Peers of the Land in terminis 2. 'T is his Grace of Canterbury's Title Primus Par Angliae That the first Peer should be no Peer is an unheard of Solecism If he be a Peer the rest of the Bishops are his Com-peers what ever they are to the Lords Temporal John Stratford Archbishop of that place in the time of Ed. 3 claim'd this Priviledge in the Right of his See And the Protestat of W. Courtney elsewhere mentioned with the rest of the Bishops is another pregnant Evidence to this purpose And 25 Edw. 3. The Prelates put up this Petition to the King as the Gentleman himself relates it p. 83. Seeing Archbishops and Bishops hold their Temporalties of the King in capite and therefore are Peers of the Land as other Earls and Barons are that you will be pleased to grant unto them that no Judge may henceforward for meer contempts cause their Temporalties to be seized Here we have a Prayer that their Temporalties may not be seized and the Reason of
Lawyers understand to be the Sentence of Guilty or Not Guilty Now I would fain be resolved whether these proceedings be not in agitatione causae sanguims whether accoording p. 1. to this practice a Case of Blood be not all the while in agitation And then reflecting upon the Gentlemans Rule in Logick Causa causae est causa causati and upon the Story of Chaucer's Frier let the Reader please to peruse p. 64 65 66 of the Letter and then judge whether the practice be not as I said Irrational And then Secondly This practice of those Popish times was uncharitable for if the Bishops were debarr'd sitting as Judges in such Cases Capital out of a suspition of their Integrity it was uncharitable to the Bishops if out of a jealousie they might be too soft and yielding in their clemency it were uncharitable to the Delinquent if out of fear they might be too severe in point of Justice it is uncharitable to the Commonwealth for Discretion ought to take her Rules from Charity when Pity and when Severity are to be used for the advantage of the Publick Sometimes Justice may be provoked into Severity and when Impeachments are preferr'd with rigour 't is possible the Prudence and Piety of such grave and holy persons intervening a rash and unadvisable Sentence may be stopt and prevent a Deluge of Mischiefs which might otherwise ensue †See the Case p. 26 27 28. of the Letter Had the Bishops been present at Haxeye's Trial they might as well have prevented his Condemnation as obtained his Pardon The Canon-Law then gave the first rise and beginning to this Usage as this Gentleman seems to acknowledge p. 68. But the Ground of that Canon was Superstition and it did confront the Kings Supremacy and was irrational and uncharitable in the practice of it Let us therefore examine what Force it had and by what Authority That this was in use while the Pope had a concurrent Jurisdiction here cannot be denied but whether ever it received a Civil Sanction and an express Ratification and had the stamp of Parliament-Authority set upon it is the matter now in question And this I do stedfastly deny and the Gentleman as earnestly affirm and contend for To prove this he does alledge a double confirmation and to give it the more Credit he carries it up as high as the dayes of Edward the Confessor But I desire the Reader to observe that in the management of his Evidence he turns an Indulgence into a Prohibition a Priviledge into a compleat Act of Parliament and a Protestation into a Statute He does alledge the Year-Book of 10 E. 4. Term. Pasch n. 35. Let. p. 78. Where we have set down the manner of their Trials in Parliament When a Lord is indicted c. he shall plead 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 Proctor c. This saith he I alledge to shew that even by the Law of the Land the Bishops cannot be Judges in a Case Capital Here the Gentleman says Their making a Proctor was Error Temporis the Error of those Times Why Because that practise was not for his purpose But if by the Law of the Land he means the Statute-Law as he seems to do I must have a Writ of Error to reverse his Judgment For the Pope having then a concurrent Jurisdiction here in England the Canon-Law was in force amongst them and in declaring that the Lords Spiritual might not consent to the Death of any man they have respect to the Prohibition of the Canon-Law but this is not any the least confirmation of it But this Gentleman will needs have it confirmed by a Civil Sanction and so become the Law of the Kingdom The first Confirmation he saith was about the time of 10 H. p. 69 c. 2. amongst the sixteen Constitutions of Clarendon which besides the Authority of Parliament to make the Observation of them the more inviolable were established by the Solemnity p. 72. of an Oath which is the greatest Obligation that Mankind is capable of making even God a Party to it to see it obeyed and punish the Transgressors Here is a fair Plea for a solemn Confirmation if the Gentleman were not partial or mistaken in the Business But the Case was this upon the account of their Immunities the Prelates especially grew very remiss and careless of their Duties as was noted formerly Hereupon in that Great Council which was then their Parliament amongst the rest the King made this the 11th of those Constitutions The Archbishops Bishops universae personae Regni p. 71. not all the Dignified Clergy of the Land as this Gentleman renders it but all persons whatsoever who have a Tenure in capite shall hold their possessions from the King as a Barony and shall answer for their Estates unto the Kings Justices and Ministers and shall observe and obey all the Kings Laws and together with other Barons they are to be present in all Judgments in the Kings Courts This is the Duty they are obliged and solemnly sworn to and then follows an Indulgence or Priviledge till the Sentence comes to the loss of Life or Member and here they are left to their Liberty to observe the Decree of the Holy Canon Hereupon we may p. 73. build our Faith that there was really such an Usage as this Gentleman infers in ancient times and that a liberty was left to continue it according to the Canon and in veneration of it but that 't was ratified and confirmed we have not one Syllable to prove it The Second Confirmation this Gentleman finds was in 11 R. p. 18 c. 71 c. 2. upon the Protestation of the Archbishop for himself and the other Bishops And here after some fluctuation and unsteadiness p. 75. to make it a Law he tells us The subject matter enacted did consist of two Particulars the one That the Prelates had a Right to sit and vote in all other Businesses the other That they had no Right nor was it lawful for them to be present in Parliament when such Businesses were in question But the Tenour of their Protestation is That they intend to be present to consult to treat of and to determine in omnibus in all things saving their Rights their State and Dignity But because some things were to be transacted in that Parliament at which by the Decrees of the Sacred Canons it was not lawful for them to be personally present therefore they protested that while such things were in agitation they would absent themselves Which Protestation being read in Full Parliament at the instance and prayer of the Archbishop and other Prelates was entred upon the Parliament-Roll by the Kings Command with the Assent of the Lords Temporal and Commons This the Gentleman will needs contend to be a Law of Parliament or a Law
of the Land Why Because it was entred in the Roll or Journal-Book that such a thing was agreed upon by the King and Two Houses Which saith he was all the Formality of passing Laws in Parliament in p. 23. those times But what was it that the Bishops petitioned might be entred upon the Parliament-Roll Was it the Decree of the Sacred Canons which debarr'd their presence in the House at such Debates That indeed had been somewhat to the purpose but here was no such matter desired it was their Protestation and if every thing that is entred upon the Parliament-Roll by the Agreement of the King and the Two Houses becomes an Act of Parliament forthwith then let this Protestation for the present pass for an Act of Parliament and we shall see anon what it will amount to In the Interim let us return to the Constitutions of Clarendon where there seems to be most colour for such a Confirmation There we may observe Two things in that 11th Constitution a Duty enjoyned the Prelates attendance at the Kings Courts and then a Liberty or Priviledge indulged That they may withdraw and forbear that attendance when it comes to sentence for loss of Life or Member That this is a Priviledge or a Liberty cannot be denyed Mat. Paris reckons it inter Libertates amongst the Ancient Liberties * Let. p. 71. and this Gentleman could not chuse but observe it though it was not for his purpose to distinguish this Priviledge from the Injunction One would think saith he they the Bishops might look upon it as a Right and Priviledge to be exempt from being obliged to attend in such Cases Cases of Blood If a Priviledge then I may use or I may forbear it To say I may do such a thing therefore I shall do it is irrational ill Logick and worse Polity Priviledges say the Lawyers are Franchises and Liberties or Immunities granted to a Person an Office or a Corporation Such as have them may either enjoy or refuse them It is the Priviledge of Attorneys and Clerks in they Kings Bench they cannot be prest for Soldiers they cannot be compell'd to bear Offices in their Parishes yet Volunteers they may be in both Cases No man should be compell'd to use his Priviledge for then his Franchise would be no Liberty but the more inthrall him We may observe accordingly that the Prelates very well understood this their Liberty for sometimes they would use their Priviledge absent themselves when Cases Capital were upon Trial and withdraw when Matters of Blood were in agitation and this is obvious to every eye in the perusal of the Gentlemans Letters But many times which is very considerable in the Case when they did withdraw they either made a Proxy to represent them or entered their Protestation to preserve their Rights 'T is true the Gentleman does except against their way of Proxy's as Unparliamentary and three or four Exceptions he hath which are sufficient to elude any Testimony For either it is Error Temporis an Errour of those times or spoken obiter upon the By and of no importance or it is unparliamentary and extravagant or else Repealed Such a provision of Evasions as may serve to help a man out of the Noose of any Argument that can be produced in Matters of this Nature For the Protestation he would elude the force of that by saying Their Salvo that which they would ensure to themselves p. 21. is their Right of sitting to consult treat of and determine in that and all other Parliaments when Capital Cases are not in question but there was no need of a Protestation to this effect This was their Duty to which the Clarendon Constitution and a Solemn Oath obliged them When men protest a Right 't is not to be understood of that Right which no man doubts of and therefore is not liable to question but of that Right which they give some colour to be question'd because they decline and forbear the use and practice of it This was a Right to debate vote and sit as Judges in Cases Capital if possibly the Decree of that Canon should come to be null as now it is or altered I must not forget to tell you of two Rules observable about such Priviledges as are granted to Subjects by the King as this of the Clarendon Constitution was to the Prelates The first is That they are not to be understood to debar the Kings Commands nor ought to be a Supersedeas to his Sovereign Authority for this were a derogation to his Royal Office a diminution to his Crown and Dignity not to be granted by him upon any pretence whatsoever By the Constitutions of Clarendon the King did exempt the Bishops from attending his Court of Parliament at such Trials in Capital Cases in general but he did not absolve them from their Duty and Obedience to his own special commands upon any just occasion Hereupon in the 11th Hen. 2. Archbishop Becket in a Solemn Council at Northampton being accused of Treason and other Misdemeanors where Bishops were his Judges as well as Temporal Lords when those Lords and Bishops could not agree about pronouncing the Judgment they putting it off from one to the other at last the King commanded the Bishop of Winchester to do it This hapned soon after the Ratification of the Clarendon Constitutions which all the Lords and Bishops had taken their corporal Oath to observe for ever And it is not to be imagined they could forget what had been so lately done amongst them wherefore we must conclude that they did not take themselves to be obliged either by that Oath or Constitution to absent themselves alwayes from such Trials for though the Constitution saith Debent interesse judiciis curiae Regis sicut caeteri Barones That they ought as well as other Barons to attend all the Judgments of the Kings Court quousque perveniatur ad diminutionem membrorum vel ad mortem till the Matter comes to Sentence for the loss of Life or Member Yet whatsoever William Lord Archbishop of Canterbury and the rest of the Bishops had said in their Protestation 11 R. 2. The Constitution of Clarendon doth not say Debent se absentare that the Bishops ought to withdraw and absent themselves from such Sentence This Gentleman endeavours to invalidate this so pregnant p. 60 61. an Evidence because it is taken out of a Manuscript made by the Monk Stephanides and none of the Ancient Historians of those times say any thing of Becket's being accused for Treason But I must tell you 't is not the Print that adds Truth or Authority to any Writing and I shall trust Mr. Selden's Judgment rather than this Gentlemans Conjectures Besides A Negative Argument from Authority is of no force for why do we read variety of Historians upon the same Subject but because we suppose what one fails in for want of Memory or Information another may supply by a better Diligence and Enquiry
the Advice only of the Lords Temporal which was a special Case 18. 5 H. 5. Here the Bishops had declared Sr. John Oldcastle Heretick and delivered the Prisoner over to the Secular Power and yet in the Sentence they may be comprized under the Title of The most wise Lords of this present Parliament 19. 2 H. 6. It is not certain the Bishops did Vote 20. 28 H. 6. The two Archibishops and 13 Bishops were present did Debate and Vote in the Case 21. 31 H. 6. The Bishops doubtless as well as in the 28 were present being Peers of the Realm as I have proved 22. 38 H. 6. The Commons did accuse the King answered He would be advised and so the Matter ended Here we have 22 Precedents cited by this Gentleman from the time of Clarendon Constitutions to the Trial of the E. of Strafford whereof one is a special Case three are insignificant and null in regard there was either nothing at all done or a stupid neglect of their Right or a careless throwing off of all Duty Four are doubtful Ten are for their presence at such Trials either in person under the Names and Titles of Bishops Prelates Peers Great men or Lords of Parliament or present virtually by their Proxies or their Protestations so that there are but four of all the 22 for their not appearing or not voting at such Trials 5. For a Supersedeas to all further enquiry or dispute about this matter we must take notice that the Canon which required the Bishops to withdraw at all Trials in Cases Capital is abolish'd and the Lords Spiritual are under no obligation to observe it To say the Civil Sanction does still enforce it is absurd for what is that Civil Sanction but an Act of Parliament and if an Act of Parliament hath abolisht it it has likewise abolisht all other Acts which might seem to ratifie and confirm it otherwise it should be abolisht and not abolisht taken away and yet in force still which are Contradictions and absurd The Gentleman takes notice of this to be the Bishops Plea p. 67 68. That it is only by the Canon Law that this restraint is upon them and that the forbearance of their Predecessors being Papists and so subject to that Law was only in that respect which Law being of no force at present and taken away by Act of Parliament they are now at liberty though in Modesty they think fit sometimes to withdraw but have a Right to continue sitting if they please What does the Gentleman answer to this He saith I do not deny but the Canon Law might give the first rise to such an Usage but it came afterward to receive a civil Sanction the stamp of Parliament-Authority and several confirmations ibid. But I have evinced already that his Allegations do not prove what he pretends to undertake and the practice of the Bishops withdrawing at such Trials having no other bottom to relie on than the Canon Law That being absolutely dissolved and broken by Act of Parliament cannot now support it 6. And lastly Seeing there is no other Authority to continue and inure this practice but that Popish Canon I should think it a very dangerous thing if the King should be severe for any person to attempt it for upon the Clergies submission to the King 25 H. 8. 19. the Statute saith thus Be it therefore now enacted by Authority of this present Parliament according to the said submission and petition of the said Clergy that they nor any of them from henceforth shall presume to attempt alledge claim or put in ure any Constitutions or Ordinances Provincials or Synodals or any other Canons unless the same Clergy may have the Kings most Royal Assent and Licence upon pain of every one of the same Clergy doing contrary to this Act and being thereof convict to suffer imprisonment and make fine at the Kings Will. After those Precedents above-mentioned the next the Gentleman meets with was the Earl of Straffords whose Trial in Parliament was compleated in a Judicial way but he was attainted and condemned by the Legislative Power where this Gentleman does acknowledge a Right in the Bishops to be present Why they did then withdraw themselves such as were not Eye-witnesses or Observers of those times may best learn from Mr. Hobbes his History of them To conclude the Author does protest that he hath the very same Design Aim and Wishes with that Gentleman for that Right may prevail is the natural wish of every good man And the prevention of those Mischiefs which the Enemies to our Religion and Government have plotted and do atchieve to put in execution has incited me to this task to satisfie my self and others where the Right is My Sentiments herein I humbly submit to the High and Honourable Court of Parliament and if I have written any thing that gives a just cause of offence to my Superiors I do here solemnly retract it This Gentleman is Ingenuous and leaves his Reader to his Liberty to weigh the Arguments on both Sides and judge for himself I have taken the freedom he allows me and delivered my Opinion I pray take you the same course without Partiality and then judge for your self FINIS