and Officials to whom Custom hath given some Powers and Authoririty which cannot be check'd and controul'd by the Bishops themselves they are not to account neither are they answerable for the Lay-Zeal that hath made the Condition of Excommunicants so very afflictive For whatever some men please to think the Laity have out-done the Ecclesiasticks in the Excesses of intemperate Zeal as they are most apt and prone by their Ignorance to Superstition No man can pass under the Admonitions of the Church and be suspended from the Holy Mysteries until he hath made Satisfaction for his disorderly walking or Spiritual Pride in breaking Order but he is presently given up by the Laity to Satan I mean he suffers beyond the first Intention of the Church in her Discipline Severities enacted by the Law of the State which if reversed by that Authority that established them and a civil Process were enacted for the Ecclesiastical Courts in Causes of a Temporal Nature which are appointed by Law to their cognizance I persuade my self we should hear of no more Complaints against them in the Exercise of the Power of the Keys For we observe that they exercise the Power of the Keys with deference to the Secular Magistrates They never presume to excommunicate the Prince least they should thereby lessen his Authority and shock the Government For that all Government is established by the Honor and Reverence of the Governor according to that Saying of Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dissolution of Government doth easily follow the Contempt of the Governor As Kings are not subject to Penal Laws nor to be coerced by Penalties So true it is also what Balsamo hath noted ad 12 Canonem Synod Ancyranae Imperatoriâ unctione penitentiam tolli Neither do they presume in Reverence to the King to excommunicate his Counsellors and Ministers of State and Justice For so it was declared amongst other of the Avitae consuetudines of this Realm by the Assize of Clarendon Nullus qui de Rege teneat in Capite nec aliquis dominicorum ministrorum ejus excommunicetur nisi prius Dominus Rex conveniatur In which our Bishops are agreable to the Ancients Hildebert Cenoman after Bishop of Tours who lived about the eleventh Century says he Apud Serenissimum Regem opus est exhortatione potius quam increpatione Concilio quam praeceptis doctrinâ quam virgâ Ivo Bishop of Chartres in his Apology for communicating Gervasius saith thus Quos culpatorum Regia Potestas aut in gratiam benignitatis receperit aut mensae suae participes fecerit eos etiam Sacerdotum populorum conventus suscipere in Ecclesiastica Communione debebit ut quod principalis pietas recipit nec à Sacerdotibus Dei alienum habeatur Thus while the Bishops are not guilty of mean and unfaithful flatteries they do not participate of the pride of the Bishops of Rome or the irreverence and sawciness of a Presbyterian Consistory against their Princes and Governours Neither do they call up any criminal cause originally to their examination but pronounce the sentence of Excommunication on such onely as first are civilly convict of a crime save that matters of Incontinency are by the Common Law submitted to their Censure for that by the venerable gravity of the Judge and by the more private examination of such offences the modesty of the Nation is best preserved which is a surer defensative against the rifeness of such crimes perhaps than the sharpest punishments If they do excommunicate any man without a just cause or do not absolve the Excommunicate when he hath made his satisfactions the Bishop is compellable by the Authority of the Kings Courts to assoil the man under the pain of having his Temporalities seized into the Kings hands though he is not restored without the Episcopal Absolution For it is fit they should finally judge in their own proper Province and they must not they cannot relax the Laws of Christ nor administer the power of the Keys of binding and losing by any other measures for any power on earth But against this power of the Kings Courts they do not dispute or declare but have recognized it by their submission and they can submit to the penalties without complaining of this civil constitution Nay in the general order they approve it though in a particular case perhaps they do not because they cannot obey Our Bishops do not encroach any Temporal Authority in ordine ad spiritualia that stale pretence by which the Bishop of Rome hath arrived to his exorbitant power and by which the Scotch Presbyters would have acquired the like over Kings and Governours Their Authority always administers to and assists but never thwarts or contradicts the Temporal They have accommodated their power of the Keys to the vindication of our established Government against the attempts of Arbitrary Power to which their Allegeance to the King and the regard of the publick Peace did oblige them For such Attempts are mostly the ruin of those that make them always bring the Government it self into the greatest danger and sometimes prove the ruin both of the Government and the Nation This was required of them as an indispensible duty they being a principal part of the Government and the present Bishops Successours to all their Rights have no reason to decline their example if they have the like cause The Bishops anciently were sturdy opposers of King John when he designed to put this Kingdom into vassallage to the Pope and thereupon he writes to the Pope thus as followeth In conspectu paternitatis vestrae humiliamus ad gratias multiplices prout meliùs scimus possumus exhibendas pro cura sollicitudine quam ad desensionem nostram Regni nostri Angliae paterna vestra benevolentia indesinenter apponit licèt duritia Praelatorum Angliae inobedientia impediant vestrae provesionis effectum Pat. 17 Joannis R. M. 15. as I find it related by Mr. Petit in his book entituled The ancient Right of the Commons of England asserted About the 24 H. 3. Edmund then Archbishop of Canterbury at a Synod held at Westminster the King being present Candelis acceptis projectis ac extinctis Chartam Libertatum violantes vel sinistrè interpretantes excommunicantur Mat. Paris p. 151. About 13 years after viz. in 37 H. 3. Boniface then Archbishop of Canterbury the sentence of Excommunication is again repeated against those Qui Ecclesiasticas Libertates vel antiquas Regni Consuetudines in Chartis communium Libertatum de Foresta concessas quascunque arte vel ingenio violaverunt Fleta l. 2. c. 42. Dors Claus 37 H. 3. membr 9. Additament ad Mat. Paris p. 117. Which Sentence of Excommunication was ratified and confirmed in a Parliament held that year as followeth Noverint universi quòd Dominus Rex Angliae illustris Comes Norfolk Mareschallus Angliae H. Comes Hereford Essex J. Comes de Warewico Petrus à Sabaudia ceterÃque magnates Angliae
the Jurisdiction of Bishops Novel 83. he decrees the like for Clerks as well for matters Civil as for Ecclesiastical Crimes reserving others to his officers and furthermore in case the Bishops cannot or will not take cognisance of them he refers them to his Magistrates Nay the Emperours proceeded further and did give Jurisdiction to Bishops not only over Clerks but also over Laymen Constantine the Great whose Law the Canonists ascribe to Theodosius made a very favourable constitution in behalf of Bishops whereupon he gives them the Cognisance of all civil Causes betwixt Lay-men upon the bare demand of one of the Parties albeit the other did not consent unto it in such sort as the Magistrates are bound to desist from the Cognisance of it as soon as one of the parties shall require to be dismist and sent thither whether it be at the beginning or middle or end of the suit Arcadius and Honorius derogating from this Law will have it to be by the joint consent of both parties and that by way of Arbitrement The same Emperours together with Theodosius do ordain That there shall be no appeal from the Episcopal Judgment and that their sentence shall be put in execution by the Serjeants and Officers of the Judges The two last Justinian would have to be observed for as for that of Constantine he did not insert it in his Books which Gratian hath confest in his decrees and whereas in the Code of Theodosius the inscription of the Title runs thus De Episcopali Judicio Justinian instead of it hath put De Episcopali audientia to shew that it is not properly any Jurisdiction that is bestowed upon them but a friendly and arbitrary composition to abridge process After this the Emperor Charles the Great in his Capitulary renewed the Law of Constantine and gave the same jurisdiction therein contained unto all the Bishops repeating the same Law word for word which the Popes have not forgot in their Decrees where they have inserted the Constitution of Constantine under the name of Theodosius just as Justinian did in his Books the Responses and Commentaries of Lawyers to give them the strength of a Law But I know there is a Question made by very Learned men Whether that Law of Constantine is not supposititious But whether it be or be not we have alledged enough without it to prove that Christian Emperors and the ancient Christian Church was not of the opinion of this Author and that his Citations so much as they are true are nothing to his purpose The cause or reason of those two Laws expressed in the Laws are For that the authority of Sacred Religion invents and finds out many means of allaying Suits which the Tyes and Forms of captious Pleadings will not admit of That the judgments of Bishops are true and uncorrupted That this is the choaking of those malicious seeds of Suits To the intent that poor men intangled in the long and lasting snares of tedious Actions may see how to put a speedy end to those unjust demands which were proposed to them But the Pope his Decretals the Court of Rome and other Ecclesiastical Courts are of old complained of as the source of Iniquity and injustice and of all the shufflings and tricks that ever could be invented in matter of pleading and that all Papal Christendome hath groaned miserably under them and I wish that we may never hear duly of any such complaints of our Ecclesiastical Courts It is worth observing how the Church and Common-wealth did Actions contrary to each other in pursuance of their several interests The Common-wealth endeavour'd to engage Bishops in the highest secular affairs and in their supream Judicatures and so the people would have it not doubting of such administrations as they might fairly expect from the Bishops ability Authority and Religion But on the other side the Church did as much decline them as she could and so far as she might she used her Restraint only in prohibiting them from medling for their own private gain in Temporal affairs Can. 14. Arles clericus turpis lucri gratia aliquid genus negotii non admittat but they did not take from them all opportunities both of doing good to their people and securing the Secular power of which they became part to their own assistance and without refusing their services to the Prince when required from which practice of the Church the Pope took advantage to put his peremptory restraints upon the Bishops and Clergy from intermedling in Secular affairs to make them the more submitted and dependent upon himself the better to arrive to his Ecclesiastical Monarchy The Dignities and favours that Bishops received at the Courts of Princes was the envy of the Pope and matter of quarrel against them and Petrus Blissensis upon such an occasion makes an Apologie to Pope Alexander the Third in an Epistle writ in the Name of the Arch-Bishop of Canterbury in defence of the Bishops of Ely Worcester and Norwich who attended then at Court upon the service of the King which because he hath been an Author produced by the other side in this Cause and because what he says for their being admitted into the Councels of Princes contains so many advantages to the Church and State I shall here transcribe Non est novum quod Regum Conciliis intersint Episcopi sicut enim honestate sapientia caeteros antecedunt sic expeditiores efficaciores in Reipub. administratione censentur quia sicut scriptum est minus salubriter disponitur regnum quod non regitur consilio Sapientum in quo notatur eos consiliis regum debere assistere qui sciant velint possint patientibus compati terrae ac populi saluti prospicere erudire adjustitiam Reges imminentibus occursare periculis vitaeque maturioris exemplis informare subditos quadam Authoritate potestativa praesumptionem malignantium cohibere He proceeds in his discourse and brings the examples of Samuel Isaiah Elisha Jehojada Zachary who were Priests and Prophets respectively and yet imployed in Princes Courts and Councels of Kings and adds Vnum noveritis quia nisi familiares Consiliarii Regis essent Episcopi supra dorsum Ecclesiae hodie fabricarent peccatores immaniter intolerabiliter opprimeret Clerum praesumptio laicalis then he adds advantages to Religion and policy hereby Istis mediantibus mansuescit circa simplices judicarius rigor admittitur clamor pauperum Ecclesiarum Dignitas erigitu relevatur pauperum indigentia firmatur in Clero libertas pax in populis justitia libere exercetur superbia opprimitur augetur laicorum devotio religio fovetur diriguntur judicia It is well known and I will not be so impertinent as to go about to prove that the chief Ministers of Religion have been the greatest men in Civil Government in all Nations and in all Religions as well as in ours and as certain it is this Author will never find reason or precedent of
supported with Truth and Justice This new Doctrine is not true and whosoever entertains a belief of it is not only barely mistaken but will be lead by the mistake into the most mischievous impious and sacrilegious injustice and treachery It is very agreeable to a good man to embrace a proposition with an easie belief that offers the least seeming probability of a security against the miseries of War by all means to be avoided But this Doctrine of the Divinity of Kings is most dangerous to the Peace of Kingdoms for it is pregnant with Wars Besides that it will give bad Princes which sometime hereafter may be Born into the World for such there have been now and then power to make their Reigns worse then War and Plague and Famine to boot The Panick fear of a change of the Government that this Doctrine occasioned and the Divisions it made among us was the principal cause of the late War It is not without reason that together with these new principles revived since the Discovery of the Popish Plot we have a perpetual din and noise of Forty one Then that fatal War begun which ended in the destruction of the Prince and ruine of the Church and State The remembrance of it is the principal matter that stuffs our weekly Pamphlets and it is brought into common discourse and grown so trivial that it is mentioned and heard without abhorrence and regret And what Service this can be to His Majesty I do not understand much better it were that the memory of it were utterly extinct and abolished for ever except only in the Anniversary of that great Prince that so fell Then I say and then only is it fit to be remembred when we are on our Knees to God Almighty and in his presence affecting our selves with sorrow and remorse deprecating the like Judgments and bewailing the National sins that occasioned those For notwithstanding the Glories of that Great Prince his unhappy death and the admired Devotions of the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The story of the Calamities of his people all his three Kingdoms involved in War during his Reign and the remembrance of them will be with some Men not very Loyal a stein and diminution to the Glories of the Royal Family In Princes their Calamities are reckoned amongst the abatements of their Honor and meer misfortunes are disgraces and have the same influence upon the minds of the common people as real faults and male administrations How then can this tend to the peace of the Nation or the Honor of the King what satisfaction is it to have our almost healed wounds thus perpetually rub'd and kept green Quis sua vulnera victus commemorare velit Why should any of our Nation insult over the miseries of his own and neighbour Kingdoms when he must be the most barbarous villain and have devested himself of all humanity that is not deeply empassioned at the remembranee of them If a Thuanus or a Philip de Comines were to pass a Judgment of the condition of our late times upon the consideration of our late Tragedies and the Preludium's to it in the Reigns of King James and the late King it would be formed and pronounced in these words of Tully upon another occasion Mihi quidem si proprium verum nomen vestri mali quaeratur fatalis quaedam calamitas incidisse videtur improvidas hominum mentes occupavisse ut nemo mirari debeat humana consilia divina necessitate esse superata But this is not all nec adhuc finitur Orestes We are affrighted by the weekly Pamphlets with the expectation of another Parliamentary War and this is the true reason of the mention of the late War that we may forgo our Parliaments for fear of another So it is written in our publick prints which are published under permission as if Parliaments are designed to be rendered hateful and to be feared as Plagues Famines or Inundations of the Sea But who is to begin it who designs this War the Pamphlateers or those that set them on work best know We had never heard of any such thing if the Mercenary writers of the Popish Faction had not told us of it as they do weekly and hitherto we cannot find any Colour for this affrightful Lye they are impudent so to talk of it as if they believed it and have brought some as weak men as they are false Knaves to a belief of it But to do them no wrong those may best know what is to come to pass who have the power of contriving and designing Qui pavet vanos metus veros fatetur The vilest Traitors cannot contrive a greater prejudice to the King and his Family than by advancing such a dismal thing into credit and belief for fears though but upon imaginary and false grounds produce real effects as well as they are in themselves really afflictive and that almost equally if of continuance to the evils feared Do these men speak like true Loyalists that are mentioning perpetually the Calamitous War in the time of our Kings Father and fright us with another now ensuing after those Universal Solemn and hearty Joys of the whole Nation for his Restauration after so many Millions of Money most dutifully issued out of the affections of his people from time to time at His Majesties Royal pleasure and nothing complain'd of but that they have not opportunities of issuing ten times more to the service of His Majesties Glory Nay they speak of this ensuing War as if the Royal Standard was already displayed and the Rebels had made their Musters which must certainly affect the Royal Family with the greatest danger If there were twenty Trajans derived from one stock that had Reigned in an uninterrupted Succession Two immediate Successors that should have their Reigns successively attended with civil Wars were enough to efface their own and the glories and merits of such Ancestors But base Caitiffs you can no more truly believe the last Parliaments designed upon His Majesties Crown and Dignity to make War and change the Government than you can believe that every Mothers Child of them before they came up to the last Parliaments set his House on fire and burnt his Wife and Children But these impudent Forgeries against the House of Commons are contrived to make the people afraid of Parliaments that this new model of Government in process of time when we have an enterprising Successor may take place for the service of the Popish Religion For upon the strength of Dr. B s performance who hath with great labor found out which it is hard for any man acquainted with our English History to be ignorant of that our Parliaments were not always such as now constituted this blessed change of our Government will never be atchieved the Nation will never be perswaded by any thing that he hath found out in his diligent research that the House of Commons is an over-grown Wen an unnatural Accrescency to the
AN ARGUMENT FOR THE Bishops Right In Judging in CAPITAL CAUSES IN PARLIAMENT For their RIGHT unalterable to that Place in the GOVERNMENT that they now enjoy With several Observations upon the Change of our English Government since the Conquest To which is added a Postscript being a Letter to a Friend for Vindicating the Clergy and rectifying some mistakes that are mischievous and dangerous to our Government and Religion By THO. HUNT Esquire In Turbas Discordias pessimo cuique plurima vis Pax quies bonis artibus indigent Tacit. Hist l. 4. LONDON Printed for Thomas Fox at the Angel and Star in Westminster-Hall 1682. THE PREFACE THis Argument for the Bishops Right of judging in Capital Causes in Parliament for their being one of the three States of the Realm and that their Right is unalterable by Law was written above two years since and prepared for the Press time enough to be made publick against an expected Session of Parliament in October 1679. But the Parliament being prorogued from that time until January the Author was willing to respite the Publication to advise with his second thoughts and again to review what he had written in a case of this weight and moment and the rather for that he had but a short time allowed him for its composure Since that there has been published by an excellent person a Book in vindication of their Right of judging called The Grand Question sufficient to give satisfaction if the world were just and impartial and disposed to make right Judgment in the Cause It may well be reasonably expected that Christian People should not be only just but favourable to any pretence of a Christian Bishop to any secular trust that does not lessen the dignity of the Office and seems unworthy of his Character which as it exempts him from mean and sordid offices and affairs of an inferior and more private concernment so it commends him to the Government of matters of a more publick and universal influence such as require the most improved wisdom and learning and a noble virtue It seems to me most unreasonable that those that are the great and principal Expounders of the Christian Law which gives Law to all Laws and instructs men to discharge their several Offices both publick and private that those who are the great Guides of our Consciences and by whose Directions and Institutions we form our Judgments in the greatest intricacies and doubts that perplex humane affairs that the Guides of a Religion which is formed all to life and practice for the making Governments equal and private men good and obedient which is little else but an Obligation to Justice and Charity and principally pursues that which is the end design and whole business of Government I say it seems to me most absurd and incongruous that this Order of men at any time ought to be shut out of that Council and Court where Laws are made and Rules given for the Government of a Christian Common-wealth where the most difficult and intricate causes are to be heard and determined and where an unlimited power remains of censuring the Actions of the greatest men and the administration of publick affairs and the safety of the Nation are consulted which cannot be long preserved but by pursuing the dictates of a wise Religion Such is the Christian Religion if any other we should dishonour it by comparing it to the best Paganism became despicable and abandoned soon after its publication Yet Tully in his Oration ad Pontifices magnifies the wisdom of the Romans as Divine in advancing the Pagan Priests to the highest places in their Common-wealth by which the Common-wealth he saith was preserved Cum multa Divinitùs Pontifices à Majoribus nostris inventa atque instituta sunt tum nihil praeclarius quam quod vos eosdem Religionibus Deorum immortalium summae Reipublicae praeesse voluerunt Vt amplissimi clarissimi Cives Rempublicam bene gerendo Religiones sapientèr interpretando Rempublicam conservarent Such an Opinion more duly and with better reason our Ancestors conceived of the advantage that might accrue to the Nation by advancing the Prelates of the Church into the Civil Government Thereupon they have made them necessary to it and framed the Government in a sort to depend upon them and left it scarce able to maintain it self without them in its present constitution The Temporal Barons will soon find themselves unable to maintain their own dignity and to sustain that province that is allotted to them in the Government unassisted with the Interest and authority of the Prelates the Spiritual Barons a mighty Power if they be as they ought to be of venerable esteem with the people If the present Bishops are not all so happy as to possess such an esteem we know what cause to assign for the same viz. the unhappy Schism that hath too long continued in our Church hath for its own Justification after they are almost sham'd out of the scruples which first caused the separation sought occasions against the Persons of the Bishops and rather than they will want faults to complain of the Order it self must be loaded with all the faults of all the Bishops in all Countries and Ages and they adventure now to disparage their persons for the sake of their office But sure it is a folly that can fall upon no people but such who by the evils they feel or fear are vext out of their understanding to suppress any Office that is necessary to any Common-wealth in any form of Government for the faults of the Officers for the time being But too true it is that a form of Government while established may be so utterly misunderstood by the most when it is not or not duly administred that a true and exact description of it and a discourse of the Offices and Functions of the several parts of the Government would be taken by them for some Vtopian Common wealth or no better please them than a description of the strength of an impregnable Fort once the Security of the Nation when invested by the Enemy A Lecture of a learned Physician of the Vsus Partium will not give sight to a blind Eye nor motion to a withered hand and no body is warmed or comforted by a painted fire But God be thanked we are not yet destitute of the benefits of a good Government Another cause I apprehend may much lessen the Bishops in the esteem of the People and make them want that Reputation that is necessary to every Governour in proportion to his Charge is their manner of promotion The Ministers of State whose business it ought to be to understand the true Characters of men that are preferred to that Office are often mistaken however in this Course they seem not to be promoted for their own Merit but at the pleasure of the great Courtiers and at best the Ministers of State can do no more than recommend to
the King for that office the best of those they know which are many times most unfit But this may be remedied when his Majesty shall please to give leave to the Clergy of the Diocess to choose their own Diocesan their Choice notwithstanding submitted to the Kings approbation and Confirmation which was permitted by Justinian the Emperor and was in use in several of the best Ages of the Church or by some other method which may be advised by his great Council whereby the greatest assurance may be given that the best and fittest persons be preferred to Bishopricks for the Common people are envious and suspicious and what ever may be done by bad means they always think is so But if Bishops were promoted to their Sees with the gratulations and applauses of the whole body of the Clergy of the respective Diocesses all that passeth under their advice and consent would likely meet with the general satisfactions of the people as it would well deserve as long as the Clergy can have any Authority with them That is as long as the Nation continues Christian But the general Corruption of Manners and decay of Piety is the great and truest cause why the Bishops unenvied enjoy no part of that honour that our Ancestors Wisdome and Piety conferred upon their order conformably to all other the Ancient Christian Governments But when Virtue and Piety shall recover their esteem the reverence of the Clergy will return We are not like long to expect this happy Change for Vice is now arrived to a Plethora and like to burst by its own excesses And we well hope that the mischiefs which we suffer will cure that evil from whence they spring and prevent the greater Calamities that it further threatens However it becomes all good men to assist to support the present Government which is the cheapest the surest and the next way to arrive at a happy constitution of things This was the design of the Author of the Grand Question After the publication of that Book I laid by all thoughts of publishing this Treatise But perceiving that notwithstanding what he hath said the Right yet remains controverted and a Book is since printed wherein several things are objected in prejudice of this Right and more is expected I did review these Papers wherein I found I had prevented those objections and with a little application they would appear insignificant I did resolve to make this publick And besides that I apprehended some things material to the Question were omitted by the Grand Question that a several way of speaking things to the same purpose hath its advantage Our great Courts affect to have several arguments on the same side in great Causes and our Reporters publish them Besides herein several things are occasionally discourst of which makes it of further usefulness to the publick Our adversaries also were treated too kindly by him and had deserved sharper reflections than he makes upon them for their false and perverse Reasonings and ought to lose that reputation which they abuse to the hurt of the Government And further I thought it not for the honour of our faculty that never fails to supply the worst cause with Advocates That a question of this Nature wherein both Church and State Religion and our Civil Policy is concerned and the Right thereof not only clear and evident in it self but also useful to the State should have not one of the Robe to plead for it The friends of the Cause will not grudge to read two Books for the Right as well as several against it and the Adversaries of our Cause ought to suffer the like trouble themselves which they occasion to others These Considerations did induce me to publish this Treatise I am well pleased that I am ingaged in a good Cause that was suited to one of my slender Abilities Right is so strong an Argument for it self that it wants only light to discover it Whereas an unrighteous cause stands in need of disguisings and shadowings and all the Artifices and fetches of the Wit of abler men to give that a Colour at least which is destitute of Law and Right THE CONTENTS CHAP. I. THe Nature of the Right the obligation to use it the obvious indications of it and the benefit which may be reasonably expected in the exercise of it How it came to be drawn into question and how it can be fairly determined how it hath been opposed and upon what Reasons and Evidence the Right doth rely Chap. II. The general prejudice against this Right from an Opinion conceived that the Clergy ought not to intermeddle in Secular Affairs remov'd That Bishops have been employed in the greatest trusts by Emperors not hindred by the Church but this hath been envy'd to them by the Pope Chap. III. The Precedents that are produc'd from the Parliament Rolls against this Right are considered They prove not pertinent at most but bare Neglects not Argumentative or concluding against the Right Chap. IV. This Right cannot be prejudic'd by non user The Nature of Prescription that the Right in question is not prescriptible The Original of this Right that it is incident to Baronage The Bishops when made Barons and for what reason That all Offices whether by Tenure or Creation are Indivisable Chap. V. Bishops never pretended the Assise of Clarendon when said to be absent Bishops sat in Judgment upon Becket and his Crime and Charge Treason by which it is demonstrated that the Assise of Clarendon only put them at liberty but not under restraint from using their Right of Judging in Capital Causes Chap. VI. Bishops sat in Judgment upon John Earl of Moreton after King John the Bishop of Coventry c. for Treason Chap. VII An Opinion prevail'd and continued long that no Judgment in Parliament where the Bishops were absent was good and their absence assigned for Error to reverse Judgment in Treason in Parliament prov'd by the Petition of the Commons 21 R. 2. upon their protestation made 11 R. 2. And by that protestation it is evident they had a Right and that they saved it by that protestation They pretended they could not attend the matters then treated of by reason of the Canon But alledged no Law for their absence Chap. VIII Of Canons Canon law What effect Canons can have upon a Civil Right The Canons prohibiting the use proves the Right Chap. IX Bishops made their Proxies in Capital Causes which proves their Right and their thereby being virtually present and the lawfulness of making Proxies and such as they made Chap. X. A Repeal of the Parliament 21 R. 2. No prejudice to what the Bishops did in making their Proxies The Opinion of Bishops presence being necessary in Parliament continued in time of H. 5. Chap. XI Bishops actually exercised this Authority in 28 H. 6. in the Case of William de la Pool Duke of Suffolk Opinion of the Judges that Bishops ought to make Proxies in the Tryal of a
continue them great The contempt of the Bishops and Clergy the great cause of our evil State at present out of which we cannot recover but by an excellent Clergy and a high esteem of them with the people The Postscript ERRATA PAge 13. Line 18. read they p. 15. l. 15. r. Taxeotam Buleutam p. 19. l. 9. r. Blaesensis p. 23. l. 4. r. can p. 44. l. ult dele as p. 51. l. 22. to but add not l. ult to usage add other p. 57. l. 29. r. hucusque p. 130. dele in p. 165. l. 8. r. here p. 167. r. interpolatis p. 180. l. 3. dele them to r. send l. 29. to fit add to mention p. 206. l. 29. r. injurious p 240. l. ult dele near POSTSCRIPT P. 32. l. 1. r. he made his natural Sons first noble l. 7. r. Eufame p. 34. l. 1. r. is not subject p. 42. l. 25. r. decedents p. 45. l. 30. r. he p. 46. l. 8. r. more cruel p. 58. l. 18. r. futility p. 59. l 26. r. being What else is escaped the Reader is desired to correct by reason of the Authors absence from the Press The Argument CHAP. I. IN this question the Constitution of the Government is concerned and the Right of a most principal constituent part and that in a matter of the highest Trust which if truly a Right can be no more relinquished as the Nature of this Right is than a trust can be betrayed a duty and a Right denyed to be paid and performed or the Constitution of the Government changed For of such a Nature doth appear to be the Right in pretence and Controversy of the Lords the Bishops to have judgment in the House of Lords in Capital Causes For by their being made Barons they owed their judgments in such Causes as a service to the King at first by their Tenures in Baronage for though since they are become Barones Rescriptitii or Barons by Writ their duty is not abated And besides the Cognisance of such Causes become their own Right being a part of and belonging to the dignity and office of a Baron And it likewise became an appointment in the Government in which the whole Community have their Interest for that is principally provided for and procured in all Governments whose greatest concern it is to have Justice done against all Criminals and to have great and wise just and good men in the Administrations of Justice and other great offices of the Government The people of England did anciently understand the benefit of this Constitution when nothing but the Baronage of England the Lords Spiritual and Temporal could resist the Torrent of Arbitrary Government And it may be easily understood too that nothing but the Baronage of England is able to support the Throne For that Monarchy unless so supported is the weakest and most precarious and dependent Government in the World except it be supported with an Army and turned into a Tyranny That the Throne should be established by Natural and gentle provisions and the Government fixed is every mans greatest interest If the Lords Temporal have more under command and a larger Potestas jubendi yet the Lords Spiritual out-did them Authoritate suadendi and had more voluntary obedience The Lords Spiritual have several Advantages as they are Novi homines men chosen out of Thousands for an excellent Character and Spirit and need not want any accomplishments if duely chosen and preferred for the discharge of the greatest Provinces that are to be managed by wisdome and integrity and therefore they cannot be well wanted in any Ministries in the Government to which they are bespoken and have a legal designation Since this Authority by the very opening of the Cause doth appear probably belonging to the Bishops and if so that it cannot without breach of their duty that they owe to all the parts of the Government and the whole Community depart from it it may surely be insisted upon disputed and maintained by them without blame or imputation But so unhappily it falls out that the very disputing and contending of this Matter by reason of the unseasonableness of the dispute and the delays that were thereby given to the most important business of the Nation to the great hazard as some think of the summ of Affairs was very mischievous to the publick And now both parties are charging one another with all the mischiefs and the delays that this Controversy hath given to publick proceeding or can with any probability be thought to have occasioned And there are not men wanting on either side within doors and without that are forward enough to charge all those mischiefs as deserved by their oppoposite party which may eventually happen hereupon Who sees not how fatal this Controversy is like to prove to one or other of the Litigants and to the Government in consequence if this Cause cannot be duely heard and considered and be determined upon its own Merits without undue Censures and Reflections on either side Since at last the contenders themselves must be the Judges and give judgment in the Cause or it can never be quieted and have an end I am sure passion is no equal Judge and Arbiter and men angred and provoked have not the same sentiments of the same things as when calm and serene And because there is no common Judicature it ought to be considered by both parties with all equality of judgment and an exact pondering and weighing of the reasons offered on either side for that otherwise it can never be fairly decided but must for ever remain a Controversy to the immediate overthrow and destruction of the Government or over-ruled by the force and Power of a most dangerous consequence in the course of time to the Government and will be a laying of the Axe to the very root of the Tree and will put the Government it self into a State of War between the several constituent parts of it and given an occasion for one part to usurp upon another until the tone and frame of Goverment become changed and at last fall into ruine I am very well aware of the gravity of the Question and its importance the high honour and regard that is due to the House of Commons in Parliament what commendations are due to them in their persons for their zeal and endeavour by all means if it be possible to save the Nation Religion and Government And what a great Capacity that House in its very constitution in the first designation of the Government and by their mighty growth in power and interest in the Course of time have in procuring the publick good and that they cannot have any interest divided from the common Weal I must do them right and with the greatest clearness and satisfaction I determine with my self that their zeal for public Justice against unpardonable offences in their judgment and a prejudicate opinion they had conceived of the Spiritual Lords unindifferency how duely will appear by
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
either not against us or for us And all along observe the candor and integrity of the Author We shall further shew how absurd his Reasonings are to make those Precedents to conclude any thing for his purpose We will also with the clearest demonstration prove That the Assize of Clarendon establisheth the Bishops Authority and right to judge in capital Causes in Parliament And likewise that the protestation made by the Bishops 11. R. 2. is a most solemn Recognition of their Right that the Bishops have sate in Judgment in the greatest capital Causes in Parliament that ever happened that this their Authority hath been exercised in their own Persons and by their Proxies and recognized by Parliaments and other great Courts of Judicature but never before this time brought into Question That no Canon could lessen the Right at most it is but a Councel for their guidance in the exercise of their Authority which they might observe as they please That the Popes Canon Law was never received into England that prohibits Bishops to judge in capital Causes That the Bishops have declined to assist in pronounceing the Sentence of death sometimes as undecent for their Order but notwithstanding and without being contrary to the example and practice of their Predecessors the Bishops may judge upon the Plea of the Earl of Danby's Pardon For that if they do judge the Pardon not good the Earl is not therefore to be condemned And for the better clearing the Bishops Right and for the establishing the Government we shall prove that the Spiritual Lords are Peers of the Realm and one of the three States and an essential part of the Government which no legal power can charge or alter Lastly we shall repel the calumnies of the Adversaries in this cause by which they indeavour to render the Prelates unworthy of their Right and to put them amongst the prodigi furiosi that are scarce allowed to be Proprietors of their own And conclude our Discourse with a just Apology for the Lords the Bishops CHAP. II. ANd First I begin with the Octavo which in the Introduction to his Precedents saith That he will not meddle with the General Question How far forth Clergy-men in Orders are forbidden having any thing to do with secular matters nor what in that particular the Imperial Law requires as that Rescript of the Emperor Honorous and Theodosius which Enacts that Clergy-men shall have no communion with publick Functions or things appertaining to the Court or the Decree of Justinian That Bishops should not take upon them so much as the Oversight of an Orphan nor the proving of Wills saying It was a filthy thing crept in amongst them which appertained to the Master of his Revenue Nor what our common Law of England seems to allow or disallow having provided a special Writ in the Register upon occasion of a Master of an Hospital being it seems a Clergy-man and chosen an Officer in a Mannor to which that Hospital did belong saying it was Contra Legem consuetudinem Regni non consonum It was contrary to the Law and Custom of the Kingdom and not agreeable to reason That he who had cure of Souls and should spend his time in Prayer and Church duties should be made to attend upon Secular imployments I meddle not neither saith he with what seems to be the Divine Law as having been the practice of the Apostles and by them declared to be grounded upon reason and to be what in reason ought to be which was this That they should not leave the word of God and serve Tables though that was a Church Office and yet they say it is not reason we should do that for their work was the Ministry of the Word and Prayer much less then were they to be employed in secular affairs This with great skill he prefixes to his precedents which make the Law of Parliament which is the Law of the Land he saith and after he had said all that he could to make the very pretence it self unlawful and to perswade the shutting of the Bishops out of the House for altogether he subjoyns his Precedents he thought certainly that when he had placed the Precedents in such a light they must look all of that colour and have that appearance which he indeavours too by other arts to give them But we shall spoil his design in a very few words which the observant Reader will apprehend how pertinent it is and satisfactory to what is objected in the recited Preface though we do not for brevity sake apply our answer to every particular of his Discourse We say therefore we can't think the Clergy fit for Proctors Publick Notaries and Scriveners or Ushers of Court or other subservient offices nor fit to make Constables Tythingmen and Scavengers nor to keep watch and ward and to be a Hayward or Bayliff of his Worships Mannors and Townships Or that they should be Merchants or Farmers or interpose in a-any Secular affairs for gain That it was declined by the Pastors and Teachers of the Church as an indignity for them to administer to Tables i. e. to the Provisions of Charity in their Church-feast and they ought to keep far off from a suspition of filthy Lucre nay not to preach principally for gain or make a gain of Godliness By the Imperial Law accordingly they were discharged from the trouble of being Tutors and Curators of Orphans nay where the Law had designed them that care by their relation to the Orphans out of respect to their dignity they were discharged by the Law that they might not incur unkindness to the neglect of their relations nor yet be incumbred with such private attendances to divert them from their great Cure Though the Presbytery might be admitted ad Tutelam Legitimam by their own consent and this was made Law by Justinian Cod. L. 1. By which Law it appears not a Judgment of Incompetency in Clergy-men to intermedle in Secular affairs but an honourable exemption of the Bishops from such private concernments was the reason of that Law It was further provided by a Law of Justinian Cod. L. 1. That Priests should not be made of Court-Officers but those that were so made might continue the reason of the Law is contained in it because that such a man was Enutritus in Executionibus vehementibus seu asperis his quae ex ea re accidunt peccatis Non utique aequum fuerit modo quidem illico esse Taxeatam Buleatam facere omnium acerbissima mox autem Sacerdotem ordinari humanitate innocentia exponentem dogmata In all this the honour of the Church was consulted But business of weight and trust was committed to them Valent. Valens appointed Bishops to set the price of goods sold with this reason Negotiatores ne modum mercandi videantur excedere Episcopi Christiani quibus verus cultus est adjuvare pauperes provideant Justin 79. Novel submits Monks to
will take notice of nothing that is faulty in this Case but that this proceeding tends to abridge freedom of speech in Parliament which he loved from his youth which we do not blame in him As he did also to talk against Bishops which he cannot depart from when he is old But in the first of Hen. 4. this Judgment of Attainder was repealed and annull'd as he himself tells us Fol. 25. And here the Lords Spiritual were Judges which must be remark't for the honour of their Order that though they were the pars laesa by that fault such as it was yet notwithstanding they concurred readily to the repealing the Judgment But by this it appears that the Bishops did agreeable to their rightful Authority sit in Judgment in Parliament in capital Causes and therefore in consequence because it is a Case of his own production he ought to allow that the Bishops might have had Session in the Repeal of the Attainder of Roger Earl of March if it had been or could have been repealed by Judgment or a judicial Act of the Lords House For will this renownedly wise-man for avoiding of this his own testimony which he hath justly produced though it proves to testify against himself say that the Bishops can be present at repealing of a Judgment of Condemnation but not present at confirming any Doth not it in this proceeding come before them in Judgment and consideration Whether the sentence shall be repealed or affirmed and is not this with a witness a question of blood The Judgment being upon an appeal or review must be final peremptory and decretory and is more a question of blood than the Cause can be reckoned and deem'd to be upon the first Instance Or doth he think fit that there should be two sorts of Judges appointed a hanging Judge and a saving Judge if he doth I am sure he will not be able to find an employment for a just Judge So that I think to all men that can consider we have sufficiently vacated that testimony that the Cases of the Earl March and Haxey's seem'd to give against us and they are fairly come over to our side And we have provided herein sufficiently for the recovering of all men into an indifferency against the Prejudices this Octavo by its great Esteem hath done to their Judgments The Third Precedent is 15 E. 3. That Parliament was declared to be called for the Redress of the breach of the Laws and of the Peace of the Kingdom and as the Octavo hath it Fol. 8. because the Prelates were of opinion that it belonged not properly to them to give Councel about keeping the peace nor punishing such evils they went away by themselves and returned no more saith he but that is out of the Record so ready this Authour in Octavo is to shut them out of the House but I pray would not the Temporal Lords if the King had consulted the Parliament in matters Ecclesiastical have in like manner departed but would such departure of the Temporal Lords exclude them from having any thing to do in the Affairs of the Church Why then are the Bishops treated in their Right so unequally And this must serve for an Answer to the Folio p. 17. where he is very large in reciting Records of process and Proclamation against the Earl of Northumberland agreed only by Lords If a Liturgy or book of Canons were to be established by Law the Bishops certainly would have the forming of them The Octavo saith that Commissions were then framed by the Counts Barons and other Grants and brought into Parliament but no Bishop was present so much as to hear the Commissions read because they were to enquire into all Crimes as well Capital as others And for affirming this for all that can appear to us he only consulted his Will and pleasure like an honest man to the cause he defends for he hath not told us from any Record what the Nature of these Commissions were But we observe that though this Parliament was called for matters of the peace yet the Bishops had their Summons and it was not a Parliament excluso Clero The Bishops it seems upon the opening of the Parliament and the causes of convening modestly it seem'd declared that they were not competent as not perhaps studied in Pleas of the Crown or perhaps had not been so observant in fact of the matters of grievance What harm in all this they that cannot propound may judge of Expedients propounded and so did they for it doth appear by the Record 6 E. 3. N. 3. that the Results of the Temporal Lords were approved in full Parliament by the King Bishops Lords and Commons which the Folio agrees But it seems modesty is a dangerous thing and not to be forward to judge and determine though the matter be not understood may be a good Cause to turn a Judge out of his Office and forfeit his Judicature Besides the principal business of this Parliament was Legislation in which the Prelates have an undisputed Right of Session and may they not advise upon what they make into a Law May not they consider of the matter that is to pass into a Law in all the steps it makes But it is admirable what the Folio Book saith viz. that by this Record it is evident that the Prelates have no judicial power over any personal Crimes which are not Parliamentary I suppose he means Crimes not debated in Parliament This doth very much fortify the foundations and grounds of his discourse What are the grounds of his discourse I shall never be able to find out except it be an over-weening Opinion of himself to meddle with these matters which seem too high for him and to which the reading of my Lords Cooks Institutes and the broken Commentaries of the Law will never render any man competent It s true the Bishops have never any power and Cognizance of any Causes except they are commissionated thereto out of Parliament But as true it is of the Temporal Lords and therefore whatsoever advantage this will do his Cause with all my heart let him take it The next Case produced as a Precedent for them is the Case of Sir William de La Zouch and Sir John Gray for a quarrel in the Kings presence they were both committed to the Tower and after brought into Parliament no Bishops there It is a Case that could not be judged there neither was it but one of them was discharged because no probable matter of offence against him and the other remanded to the Tower I suppose to be proceeded against as the Law required Is this cause I pray to his purpose have not the Prelates judgment in causes of Trespass that properly come before that House by his own Confession And yet the Octavo remarks here that no Bishops were present to judge so much as of a Battery though the Record warrants him to say only an Assault But out of his great
to whom such Judgment doth of Right appertain did give their Judgment He concludes that the Bishops could not he said to be his Peers which shews they were not there But he must give us leave with much better Logick to conclude that they were present and We with reason presume because they are Peers of Parliament for so the Record is not his Peers for he fallaciously changeth the Terms they were there except he can prove them absent if common Right is not Reason of presumption no presumption can be reasonable But we can prove to him they were there And thereby in consequence we have another proof that they are Peers Sir Robert Cottons Abridgment tells us 5 H. 4. Fol. 426. that at the same time the Arch-Bishops and Bishops at their own request and therefore certainly then present were purged from suspicion of Treason by the said Earl And at the same time I pray observe Sir Henry Piercy his levying of War was adjudged Treason by the King and Lords in full Parliament Note that here is said to be a full Parliament and yet nothing in the Entry but the stile of Lords So various and contingent in respect of form are the Entries which ought to be observed But to review and consider again the Case of John Hall condemned in Parliament for Treason for murdering the Duke of Glocester And to this place I have reserved the Case of the two Merchants that killed John Imperial an Ambassadour of Genoua for both Cases are of the same nature and must receive the same answer and that is this The Statute of the 25 E. 3. was made to declare certain matters Treason and to be so judged in ordinary Judicatures but withall that Statute did provide that if any other Case supposed Treason do happen it shall be shewed to the King and Parliament whether it ought to be judged Treason Concerning which the King and Parliament do and are to declare by their Legislative power as it is agreed by all and as they did in the Case of John Imperial as appears by that Record expresly So that though the Bishops were not present at the Judgment of John Hall they might have been it must be confessed by our Adversary if the Judgment against John Hall was by the Legislative Power as it must be By this it appears how false an Argument this of his is To conclude no Right from absence for it is plain here it proves too much it proves a thing notoriously false a thing false by the confession of our Adversary and from what any falshood may be inferred is not it self true but stands reproved by the falshood and absurdity of what follows in consequence thereof But this is too Solemn Reproof of so frivolous an Argument for it is no more in effect than this That no man can have an Authority but what he is always in the exercise of The Octavo goes on and remembers that in the 2 H. 4. the first Writ de Haeretico comburendo was framed by the Lords Temporal only and without question it was so For the order of proceedings in Case of Hereticks Convict so required it The Bishops are upon the Matter the pars laesa in Heresy The authority of the Church is therein offended and it was not therefore proper for an Ecclesiastick to be an Actor therein The Author doth improve this as he doth all things that he can with any manner of colour to render the Order of Bishops hated and disesteemed which is the publick establishment the legal provision for the Government and guidance of Religion What mischief then is he a doing How great is his fault to deprave that provision to destroy their Reputation and Esteem with the people to destroy all their authority as much as in him lyeth His utmost endeavours are not thereto wanting to make their Ministries useless and to frustrate the provisions of the Law and the care of the Government in the highest concernment of the Nation Doth this become a great man I will not say a good man God rebuke him To lessen the Authority and disrepute and dishonour any Order of men or any Constitution that can be any ways useful to the publick is a great fault but this of his is a most enormous offence But what can be inferred from hence against the Order of the Bishops may be with like unworthiness inferred against the Christian Religion it self For it may be as well concluded that the Christian Religion is a bad Religion for that men of that denomination in the general Apostasie by pretence of Warranty from that Religion though it gave none murdered innocents As that the practices of the Bishops of that Religion so depraved do reflect any dishonour against the Bishops of reformed Christianity And this Answer will suffice too for the Case of Sir John Old-Castle As for the Earls of Kent Huntingdon and Salisbury the Lord le Despencer and Sir Ralph Lumley before that executed and declared Traytors in Parliament by the Lords Temporal only in the Parliament of the 2 H. 4. and the Earl of Northumberland and Lord Bardolph against whom it was proceeded in a Court of Chivalry after their death who were declared Traytors after they were dead in the Parliament in the 7 H. 4. I hope the Octavo Gentleman and all that are at present of his Opinion will take this for a sufficient Answer if we had no more to say that it was irregular very irregular indeed to condemn men after they were dead when he himself would set aside the Authority of the Case of William de la Poole in 28 H. 6. in Parliament where the Bishops were present which though he saith is the sole single precedent of Bishops acting in Capital Causes We shall therein convict him to be a man of Will to have lost himself in his passions and his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And enter that Case with a cloud of other testimonies and reasons that affirm I will not stick to say demonstrate so as such matters can be demonstrated with a moral demonstration such as shall leave no doubt with any man of the Bishops Right of judging in Capital causes in Parliament But We shall further add for Answer that the Temporal Lords did not herein exercise the Office of a Judge For it could be no Judgment they delivered It was only an officious declaration an avowing of the justness of the slaughter of these great men and to enter themselves of the other side But is it as reasonable for this Writer to fore-judge the Bishops of their Franchise and to have it seized because they would not be guilty of a misuser thereof and would not consent to so insolent a thing as to judge men unheard nay when dead and they could not be heard And to kill over again the murdered Lords for so they are in consideration of the Law who are not by legal process condemned and executed I cannot but observe in many of
recited upon which our Adversaries do so much ground themselves from the Cognisance of the Lords Spiritual and they could not be present when any such Case was agitated or moved all the Grandees were Notoriously Willfully and Knowingly and in the face of the whole World perjured to the Eternal infamy of our Nation Could the whole Nation be ignorant of its own Laws and Constitutions made and sworn to but a few months before and neither the King Lords Spiritual or Temporal or Commons understand them 120 men at least for about that number were the Bishops and regular Barons in H. the 2ds time and not less now come into the highest Judicature in the greatest Cause that ever was agitated It was in the Case of Becket disputed whether we should have a Civil or Ecclesiastical Soveraignty and there sit Judges and no body except against them in October if excluded by the Statute made in February before though the King and the Nobles had reason to suspect them on Becket's side and they unwilling themselves to Judge and they under an Oath not to sit and the Temporal Lords under an Oath not to admit them or allow them to be there And yet not a word of this matter in all the Historians of that time Thomas of Canterbury his friends to a man who were forward enough to reproach the Judges sure when they condemned the Sentence and applauded the Criminal and made a Pater patriae a Martyr and Saint of this Notorious Church Rebel He therefore that can believe that the Bishops were not rightful and unexceptionable Judges in capital Causes in Parliament in the time of H. 2. may believe that a whole Nation may become of insane Memory at once go to bed a Monarchy and wake into a Common-wealth without any notice or observation of a Change And now that the Assise of Clarendon is of our side I hope will be admitted and that the Bishops not only may but ought to be present in capital Causes in Parliament for the words of the Statutes are That the Archiepiscopi Episcopi universi personae qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam sicut caeteri Barones debent interesse Judiciis Curiae Domini Regis cum Baronibus So that now they were declared to be Judges as the other Barons in that they ought to be present in all Causes Only they were favoured so much in decent regard to their Order that they were not required to be present at the Sentence of Death and multilation of Member for as much as they are the Ministers of Gods pardon and the Publishers of the Doctrine of Faith and Repentance they ought to comport with their office and express their Commiseration to the greatest Sinner and to have some reluctancy against the Sentence of Condemnation and to that purpose is that Indulgence given them in the quousque perveniatur ad mutilationem membrorum vel mortem But the Assise of Clarendon having I will not say left them but required them to be Judges this exception of Quousque c. being only an Indulgence as aforesaid upon the Reasons aforesaid they remain entire Judges in Capital Causes and may depart from that Indulgence and ought so to do when Justice is necessary and the offences more than ordinarily Publick and will be pardoned and escape with impunity to the hazard of the Government except they interpose For if the Assise of Clarendon had not left them entire Judges of Right only at liberty as to the pronouncing of Sentence they had not remain'd Judges for the office of a Judge cannot be divided he that hath not an Authority to judge the Cause can be reckoned and accounted no other than a ministerial assistant to the process in such matters as the Court shall award Therefore Bishops in that they have intermedled as Judges in such Causes they have continued and avowed their Right of judging and in that they have withdrawn at the Sentence they have used that Liberty But to leave nothing for an after objection Evasion or Cavillation it shall be in our Adversary's choice Whether this Curia Regis mentioned in the Assise of Clarendon as also the Court that tryed Thomas Becket was the Curia Regis wherein the ordinary Justice of the Nation was at that time administred or the Parliament If it was the Curia Regis and not the Parliament was intended in the Assise of Clarendon in which the Priviledge and Indulgence under the Quousque was allowed to Bishops Then the Assise of Clarendon is unduly urged against the Bishops judging in Cases of blood in Parliament for that all Laws of Priviledge and exemption are stricti Juris and not to be extended beyond the Letter of the Law the single instance or the enumerated Cases and consequently by the Assise of Clarendon the Bishops have no leave to withdraw in Cases of blood in Parliament If the Court wherein Thomas Becket was tryed was the Curia Regis then the Bishops judging in that Court in that Cause doth most clearly declare that being a Case in point that the quousque in the Assise of Clarendon was an Indulgence and Priviledge which they might use or wave as they then did But this cannot be denyed that the Bishops are and were Barons ever since the Conqueror of which and of the Curia Regis we shall hereafter give an account and whatever was the business and office of Baron was consequently the office and business of a Bishop of Common Right and still is except any Legal restraint was put upon them by any Law which was not done by the Assise of Clarendon as we have proved by the reason of the making of that Law the Interpretation of that Law at that time Nor was that Law or any other Law hitherto pretended but only the Canons of the Church against the Right and Duty of Bishops in Capital Causes in Parliament or if they will have it in the Curia Regis CHAP. VI. AND now we proceed further to shew how this Right and Authority of the Prelates hath been used and acknowledged in after-times Roger de Hovedon hath remembred in the Life of Richard the First who succeeded Henry the 2. That before the arrival of Richard the First in England who had been in Captivity in the Empire that one Adam de St. Edmond Agent to John Earl of Morton returned into England being sent to fortifie the Castle of Earl John against the King his Brother and was apprehended by the Lord Mayor of London with several papers of instructions and Commissions of Earl Johns for that purpose Hoveden tells us That the Mayor cepit omnia brevia sua in quibus mandata Comitis Johannis continebantur tradidit ea Cantuariensi Episcopo qui in crastino convocatis coram eo Episcopis Comitibus Baronibus Regni ostendit eis literas Comitis Johannis earum tenorem statim per commune Concilium
Regni definitum est quod Comes Johannes disseiseretur de omnibus Tenementis suis in Anglia Castella sua obsiderentur This is a Cause of Treason for that Richard the First immediately upon the demise of the Crown was King It can be no objection that this was not a formal Parliament for whether it was or no it seems the Bishops power in that Cause was allowed That it was Commune Concilium Regni and had the Nature of a Parliament And that the Bishops therein had a parity of Authority with the Temporal Lords But soon after his return King Richard held a Parliament at Notingham Hoveden mentions the Bishops that were present by Name In which Parliament our Historian tells us That the King Petiit sibi Judicium fieri de Comite Johanne fratre suo qui contra fidelitatem quam ei juraverat Castella sua occupaverat terras suas transmarinas destruxerat foedus contra eum cum inimico suo Rege Franciae contra eum inierat And the like Justice he required against the Bishop of Coventry for that he had adher'd Regi Franciae Comiti Johanni inimicis suis and it was thereupon adjudged Judicatum saith Hoveden quod Comes Johannes Episcopus Coventrensis peremptoriè citarentur si intra quadraginta dies non venerint nec Juri steterint Judicaverunt Comitem demeruisse regnum Episcopum Coventrensem subjacere judicio Episcoporum in eo quod Episcopus erat Judicio Laicorum in eo quod ipse Vicecomes Regis extiterat You see here the Bishops zeal and Loyalty that they adjoyn'd the censure of the Church which they had power of as Bishops to a Civil punishment which they with the Temporal Barons had Authority to pronounce against One of their own Order who was guilty of a design to engage a Nation in a War by opposing the lawful Successour to the Crown and this being so great a Cause We hear nothing here of any scruple the Canon gave them nor mention of any Priviledge of an Ecclesiastick to be exempt from the Judgment of the secular Court In the same Parliament Giraldus de Canavilla was accus'd of harbouring of Pirats and Praeterea saith Hoveden appellaverunt eum de Laesurâ Regiae Majestatis in eo quod ipse ad vocationem Justitiariorum Regis venire noluit nec juri stare de praedictâ receptatione raptorum neque eos ad Justitiam Regis producere sed respondet se esse hominem Comitis Johannis velle in Curiâ suâ Juri stare Hoveden tells us all that were present at this great Council Hubert Arch-Bishop of Canterbury Galfridus Arch-Bishop of York Hugh Bishop of Durham Hugh Bishop of Lincoln William Bishop of Ely William Bishop of Hereford Henry Bishop of Worcester Henry Bishop of Exeter and John Bishop of Carlisle Earl David Brother of the King of Scots Hamelinus Earl de Warrenna Ranulfus Earl of Chester William Earl of Feriers William Earl of Salisbury and Roger Bigot Let any one judge if it was likely that the Bishops did withdraw in the Case of Earl John or the said Bishop when besides them there were but six Barons present at that Parliament What manner of great Council would this Parliament have been that had consisted but of six Barons of what Authority would such a Parliament have been in the absence of the King and a troubled Estate of the Kingdom CHAP. VII IN the time of Edward the Second in the two Judgments against the Spencers the Right of the Bishops to judge in capital Causes in Parliament was carried so high in opinion that their presence was thought necessary to give Authority and validity to the Judgment of the House of Lords in such Cases and their absence was assigned for Error for Reversal of those Judgments for an Error that appears in the irregularity of the Proceedings is an allowable Cause for vacating the Judgment by the same Court that gave it And so far did that Opinion prevail that the presence of the Lords Spiritual was necessary to give Authority to a Judgment of that House that for this Cause because the Prelates were absent that Judgment was reversed Which opinion did arise upon this mistake that because the Lords Spiritual was one of the two States that made the House of Lords nothing could be done without their concurrence But though they are a distinct State from the Temporal Lords they make but one House and they are both there under one Notion and Reason viz. as they are both Lords Spiritual and Temporal the Baronage of England But let any man tell me that can whether if the Lords Spiritual had not been understood Judges in Parliament in Capital Causes it could have been a question whether their absence could avoid the Judgment in the Case of the Spencers much less that such an opinion should prevail that the Judgment should be as it was for that reason reversed And tho' the Reversal of that Judgment was set aside and the Judgment affirmed in 1 E. 3. Yet the publick Recognition of the Bishops Right in the Reversal remains an undeniable Testimony to their Right of sitting Tho' the Reversal of that Judgment was not warrantable for the reason of the Bishops absence as it could not have been reversed by reason of the absence of as many Temporal Barons if there remained enough besides to make a House to give the Judgment And yet we find the Reversal of the Reversal reversed in 21 R. 2. and the Family of the Spencers restored in the person of the Earl of Glocester So prevalent was the opinion that the Bishops Concurrence was necessary in all capital Judgments in Parliament at that time For this see Sir Robert Cottons Abridgment fol. 373. Yet it is observable that the consequence from the Bishops being a third State and an Essential constituent part of that House to a necessity of their presence in all judicial matters even of Capital Offences and Treason did so stick with that Age for they then in that Age did no more know what three States served for or that they both made but one House than some in our time can tell how to find them For that very Reason in 21 R. 2. the first Petition that the Commons made in that Parliament to the King was for that diverse Judgments were heretofore undone for that the Clergy were not present The Commons prayed the King that the Clergy would appoint some to be their Common Proctor with sufficient Authority thereunto The Prelates therefore being severally examined appointed Sir Thomas de la Piercy to assent The words of which Petition and the procuratory Letters for greater Authority and more satisfaction I have thought fit to transcribe Nos Thomas Cantuar. Robertus Eborac Archiepiscopi ac Praelati Clerus utriusque Provinciae Cantuar. Ebor. jure Ecclesiarum nostrarum Temporalium earundem habentes jus interessendi in singulis Parliamentis Domini nostri Regis
his qui in sacris ordinibus constituti judicium sanguinis agitare unde saith the Canon Prolibemus ne aut per se membrorum truncationes faciant a very fitting Employment for a Bishop aut inferendas judicent and after all this we have still our old Answer upon which we will ever insist it is but a Canon and can make no Alteration in the Rights of Government For tho' Gervasius Dorob tells us In hoc Concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula yet the Canons of this Council are not Laws For that our Historian does not tell us of any Parliament then held or that they were confirmed in Parliament and the good liking of Great Men out of Parliament will not confirm nay not justifie the Canons if they cannot justifie themselves in Parliament Besides that these Canons were not made into Laws we will offer two Reasons 1st For that amongst these Canons there is one that disposeth of the Right of Patronage against the Law as it hath been before and since taken and that is this Nulli liceat Ecclesiam nomine dotalitii ad aliquem transferre vel pro presentatatione alicui personae pecuniam vel aliquod emolumentum pacto interveniente recipere quod si quis fecerit in jure convictus vel confessus fuerit ipsum tam Regia quam nostra freti autoritate patricinio ejusdem Ecclesiae in perpetuum privari statuimus which was never most certainly Law Secondly If this had been a Law the other Canon before-mentioned made by Stephen Arch-bishop of Canterbury was idle nay presumptuous for offering to derogate from a Canon made a Law about 47 years before But however Canons confirmed by Law remain but Canons still and the Breach of them not punished as the Breach of Laws nor no Innovation made thereby upon a civil Right of which before and after more As to the Second Canon we observe how dutiful this Canon in the Stile of it behaves it self towards the Civil Government in that Clerks should not exercise Jurisdiction where Judgment of Blood is to be given under the soft word Statuimus that they should not Literas pro poena sanguinis infligenda scribere that is sign an Order for the Execution of a Condemned Man or be present at the Sentence is under the districtiùs inhibemus but the doing of this is not declared to be a Sin he that is contravenient to the Canon is not thereby to become irregular to be punished by his Superior or to incurr Excommunication or any Censure the Clergy are not declared by this Canon to be incompetent Judges it only declares them unworthy of the Protection of the Church the meaning of it is Judge not least ye be judged If you judge the Laicks they will judge you This is the Scandal for which the Privilegium Clericale will be lost So that upon the whole matter this Canon is but Advice and Counsel and offers reasons to the Choice and Approbation rather than a Command under the Authority of the Church in a Council But let it be what it will if the Canon had been most peremptory in its Prohibition and had lighten'd and thunder'd in its Denunciatiations it would have been of no force to alter the Government or discharge a Judge from doing his Duty but this is farther to be duely observed that this Canon could not be broken if the Law had not been otherwise than these Canons direct and therefore these Canons produced by our Adversaries are the greatest Testimonies to the Right we defend and a practice agreeable thereto Doth not the Canon suppose that a Beneficed Clerk or one in Holy Orders was sometimes in Commission for judging in Capital Causes For certainly the Canon did not prohibit them to murder or enjoyn them not to write Letters to subborn men to kill What can be the meaning of the Canon but this supposing a Beneficed Clerk to be made a Judge of Life and Death to assist in a Commission of Oyer Terminer or Goal-delivery that he should be enjoyned not to pronounce the Sentence or to sign the Order or Calendar for Execution But if he were not a Judge how possibly could he sign an Order for Execution By the other words of the Canon Nec intersit ubi judicium sanguinis tractatur he can be forbidden onely to be present and assisting as a Judge or Officer at the pronouncing of Sentence for it can be no fault sure nor ever was intended by any Canon to be made one for any Clerk to hear a Court pronounce a Judgment of Death or Mutilation or to see a Malefactor executed What therefore can be more evident than that the Bishops did withdraw not for want of Right of Session but they pretended the Canon because they did not like the Causes But further that nothing more than what we have shewed was understood to be done in that Protestation by those times they must be allowed at least to know their own Opinions doth appear for that notwithstanding the Protestation of the Bishops aforementioned the great Council of the Kingdom did not think the Authority of a Parliament when the Bishops were absent unquestionable This Opinion we do not go about to maintain but this we conclude that there could never have been such an Opinion if the Bishops had been denied Right of Session in Capital Causes in that time CHAP. IX THE Commons of England in the 21 R. 2 pray that the Bishops might make their Proxy which they did thrice in that Parliament once by Procuratory Letters to Sir Thomas Percy as is before recited and afterwards William la Scroop Earl of Wilts was made their Procurator and a third time the Earls of Worcester and Wilts were made their Procurators in the matter between the two Dukes of Hereford and Norfolk That it may the better appear that the Bishops were virtually present by their Proxy it ought to appear that they were allowed to make Proxies and that the Lords Spiritual did so as well as the Temporal Lords The first mention of Proxies that occurs in the memory of our Parliaments is in the Parliament of Carlisle under E. 1. and that is of the Bishops Proxies The words are these Quia omnes Praelati tunc plenariè non venerunt receptis quibusdam procurationibus Praelator qui venire non poterant adjornantur And in a Parliament held at Westminster under Ed. 2. dors clauso Ed. 2. m. 11. the Bishops of Durham and Carlisle remaining upon the Defence of the Marches of Scotland are severally commanded to stay there and in the Writ this Clause was added to both of them Sed Procurat vestrum sufficienter instructum ad dictum diem locum mittatis ad consentiendum his quae tunc ibidem praedictos Praelatos Proceres contigerit ordinari Though generally Proxies were admitted to both Spiritual and Temporal Lords
as many of them as were most proper to judge or assist in the Judgment as the Case did require were appointed by the King or his Capitalis Justiciarius And that it was so in Fact appears by that Famous Cause wherein Arch-bishop Lanfranck recovered against Odo Bishop of Baieux Earl of Kent Eadmerus Hist Nov. l. 1. f. 9. tells us That there was Principum Conventus an Assembly of Barons at Pinneden in Kent and that the Kings Precept was Rex quatenus adunatis primoribus probis viris non solum de Comitatu Cantiae sed de aliis Comitatibus Angliae Querele Lanfranci in medium ducerentur examinarentur determinarentur disposito itaque saith he principum Conventus apud Pinneden Gaufridus Episcopus Constantiensis vir ea tempestate praedives in Anglia Vice Regis for Odo Bishop of Baieux one of the Litigants was at that time the Justiciarius Angliae justitiam de suis querelis strenuissimè jussus fecit where we see Godfrey at the King's Precept took so many Barons of that Country or of any other where any of the Lands lay as Assistants to him For our Historian saith that Lanfranck though Godfred pronounced the Judgment did recover judicio Baronum qui placita tenuerunt The probi homines were such by whom the truth of the matter might be better understood and did probably enquire of it who did accord and agree the Judgment to be right Lanfranc did recover ex communi omnium astipulatione judicio as our Historian also informs us I might cite many more Records of the Method of the Administration of Justice in this Curia Regis but I should be too long in this matter not being strictly necessary to the Question in hand though the understanding of the Nature of this Court and the Constitution of the Government at this time will many ways inserve to the clearing the Right thereof In this Court Peers were tryed all Pleas of the Crown heard and whatever is now the Business of the Courts of Common Pleas and Exchequer was dispatch'd in this Curia Regis Here Fines were levyed as appears by a Record furnished to us by Sir Hen. Spelman in his Gloss f. 279. the word Fines There men famous for their Skill in the Law did attend and by this Judicature some place was assigned them where they were to hear such Causes as were referred and sent down to them and it is very possible that Fines may be levyed i. e. Concord made of the thing in pretence that was referred to them and it may be true that in a Charter of a Grant of Conusance of Causes Words may be conteined for excluding the Intromissions of the Justices of the one Bench and the other For such Charters never want words These matters are produced by Sir Edward Coke in his Preface to the Eighth Report to prove that the Common Pleas was a Court before the Magna Charta of King John for that these matters are in time before that Charter but these Justices were no other than Ministers to the Curia Regis They were not such Justices as now make that Court all Common Pleas being now appropriated to their Judicature For the Writs before that Charter were returnable coram me vel Justitia mea Glanvil l. 1. cap 6. but after that Charter they were returnable coram Justiciariis meis apud Westmonasterium Bracton l. 2. cap. 32. But before this all Common Pleas were adjudged in the Curia Regis and that Court did send down the Cause to such as did attend that Court to receive its References By Magna Charta cap. 11. it was provided Communia placita non sequantur Curiam nostram sed teneantur in aliquo certo loco And now Writs were made returnable there the Common Pleas were taken out of the Jurisdiction of the Curia Regis one Judicature was appointed for all Causes between the Subjects and one place of Attendance for Litigants By this Provision Justice was administred without Noise and Tumult the Administration of it committed to men of Skill and to such who might be answerable for their Judgments and from whom it might be appealed But after Magna Charta made by King John and confirmed by H. 3 9. the Authority continued of the Justitia or capitalis Justiciarius to him was the resort for Writs from whence all Judicial Authority was still derived He did direct and bound the Justice of the Court of Common Pleas by such Formula's as were allowed in the Curia Regis where the Chancellor and his Colledge of Clerks did attend for the forming of Writs according to the nature of the Complaint with the Allowance of that Court but the Authority of this Court ceasing and the Office of this great Justiciary about the end of H. 3. we find in the Statutes of Glouc. 6 E. 1. c. 7. Laws for a Writ of Entry to be granted to the Reversioner where Tenant in Dower Aliens in Fee though her Alienation was a Forfeiture of that Estate at Common Law But it seems there had been no such Writ yet formed and the Chancellor had no such Power of forming a new Writ That Statute provides that in that Case there shall be a Writ of Entry thereof made in Chancery which is called A Writ of Entry in casu proviso And for that Power might not be wanting in the Chancellor to issue out new Writs where no Writs before formed were fitted to the Case So that Writs in Cases of like reason had been granted by W. 2. cap. 24. it was provided quotiescunque evenerit in Cancellaria quod in uno casu reperitur Breve in consimili casu cadente simili indigente remedio concordent Clerici de Cancellaria in Brevi faciendo Whereas in the full Authority of the Court of the Curia Regis no Right could have failed of a Remedy For Jura sunt matres Actionum But Derivative Authorities are always stricti Juris no Rights are now remediable but where they are in a Parity of Reason or Analogy with such Rights as had received relief in the time of that Great and Original Judicature So inconvenient are those Reformations that reform by pulling down Want of Authority to do Right is a greater Fault in Government than the allowance of a Power that may be abused to Wrong and Oppression But this is the true reason why we have so many Causes irremediable at Common Law petitioning for relief at this day in our Court of Chancery though if the Statute of Westm 2. before-mentioned were well improved the Defects of our Law would not be so shameful and notorious By what hath been said it appears that the Common Pleas was not an Original Court or a Court of ordinary Jurisdiction in the First Constitution of the Government and such it remains and continues to this time For that Court cannot proceed to Judgment in any Cause without an Original Writ out of Chancery though a late Statute makes their
Judgments good without an Original upon a Verdict If the Causes that are properly now of the cognisance of that Court of Common Pleas had been allotted to that Court Originally when the distribution of Administration of Justice was made in the Constitution of the Government that Court by its proper Authority and its own Process would have done Justice to all its Suitors without first expecting a Writ out of Chancery to bring the Cause before them or leaving any right without remedy to complain in Chancery of the defects of Justice in that Court But that Law of Magna Charta cap. 11. before-mentioned which erected the Court of Common Pleas fix'd the Judges and appropriated civil Causes to their Judicature no longer now ambulatory was the first step that was made to reduce the Court of Barons called Curia Domini Regis in which the Capitalis Justiciarius did preside Yet still this Court continued a Court of Pleas of the Crown and Appeals and for those that had the Priviledge of that Court as Officers Dependents Suitors as appears by Bracton l. 3. cap. 7. Rex habet unam propriam Curiam sicut Aulam Regiam Justitiarios Capitales qui proprias causas Regias terminant aliorum omnium per querelam i. e. Appeal vel per privilegium seu libertatem This Sir Edward Coke imagines is meant of the Kings Bench but that must be a mistake for sicut Aula Regia is not competent to that Court as now the Capitales Justitiarii were not the Chief Justices we now have For the Office of the Capitalis Justitiarius did yet continue But then that which follows in Bracton the description of the Justices of the Court he before spake of puts the matter out of doubt Item saith he Justitiariorum quidam sunt capitales generales perpetui majores à latere Regis residentes which terms are agreeable to none but the Barons But this sort of Judicature was not fit for continuance and the Barons were to be reduced they were dismist of this Jurisdiction about the time that change was made in reference to them in the Parliament for as long as they continued in their numbers and power so great as they were both Courts and Parliaments were troubled with tumultuous heaps of people brought thither by the Barons to countenance their pretences of which who will may see enough in Eadmerus And this reducement was I doubt not about the end of the Reign of H. 3. when the first Writs were issued to chuse Knights of the Shire Philip Basset was the last of these Capitales Justitiarii Sir Henry Spelmans Glossary p. 415. And then the Court of Kings Bench came to have such Judges as at this day ad obitum H. 3. 1272. Summorum Angliae Justitiariorum authoritas cessarit postea Capitales Justitiarii ad placita coram Rege tenenda appellati sunt saith an ancient Anonymous Author quoted by Sir Hen. Spelman Glossary 406. That ancient Style of Capitalis Justitiarius Angliae is now allowed to the Chief Justice of the Kings Bench though his legal Style is Capitalis Justitiarius ad placita coram Rege tenenda 2 E. 1. Radulphus Hengham was made the first Chief Justice of the Kings Bench as Sir Henry Spelmans Glossary 416. But the Chief Justices of the Common Pleas were first made about the time of King John's Magna Charta when that Court was fixed as is before remembered Sir Henry Spelman out of Florilegus tells us Martin Peteshus was Chief Justice of the Common Pleas 1 H. 3. Neither did E. 1. trust the Barons with the Government of his Revenue as it was before the Capitalis Justic and the power of the Barons was reduced but he made Adam de Stratton a Clerk Chief Baron but in what time of his Reign doth not appear But they continued after they were reduced from the business of the Kings Bench and from that of the Court of Common Pleas to have the Government of the Revenue and making a Court of Exchequer And they still continued the Exercise of their ancient ordinary Right and judged Common Pleas in the Exchequer until the 28 E. 1. And then in the Statute called Articuli super Cartas cap. 4. it was enacted That no Common Pleas shall be henceforth held in the Exchequer contrary to the form of the Great Charter Their exercising their power lastly in that Court may be the reason why the Judges of that Court are called Barons Sir Henry Spelman saith he hath an uninterrupted Succession of the Barons of the Exchequer from the sixth year of Edward the Second by which it appears that the present Constitution was established after the Kings Bench and Common Pleas were made such as they now are But there was one Power and Authority that was inseparable from the Baronage and that is the Tryal of Peers the ancient Curia Regis continues to this day to that purpose as it must no other provision being ever since made therein This is the ancient Court of Peers the Curia Regis when revived The Power and Authority of the ancient Capitalis Justitiarius is as often revived as that Court is erected for Tryal for Offices at Common Law can be no more nor less than the Law appointed That he is called High Steward is no Objection to us for so was the Capitalis Justitiarius called and Justitiarius and Seneschallus are used one for another in the Language of those times Sir Henry Spelmans Glossary 403. And this is the true reason I humbly conceive of that Tradition that the High Steward by the Kings constituting him such hath such mighty powers that are fit to be trusted with him no longer than while he is busie about that piece of Justice for which he is appointed and he is not to receive his Commission but just at his entry upon the business of the Court and not before The power of this Capitalis Justitiarius was the same with that of the Mair of the Palace in France from whence the Conquerour brought this Office which was the same or greater with the Authority of the Praefectus Praetorio amongst the Romans It is a thing to be wished that Gentlemen that apply themselves to the study of Antiquities that relate to our Laws and Government would design to adorn and cultivate the present Laws and to make out their reasonableness rather than to innovate upon us by bringing back what is obsolete rejected and antiquated and that they would contribute what they can to refine it from many absurd reasons that dishonour our Faculty which are the best our Books afford even for some of the Regulae juris I shall instance onely in one or two of them Why the Father cannot inherit the Lands of the Son it is told us for a reason in our Books that Terra est quid ponderosum and will not ascend in the right line whereas the true reason is this the Lord that first granted the Fee neglected the Father gave
wherewith shall it be Seasoned And if our Light be darkened how great is our Darkness The Bishops know that the World will not be kept in Order by meer Designations of Trust but by Execution of their Trusts not by abstract of Characters unless they are put on and effectively worn The World will not be put off that there is no Provision made in the Government for reasonable Expectancies of all that can make a People happy if we are disappointed in our just Expectations They know for what high Ends they are advanced to their Secular Dignities what was it that hath thus advanced them Was it not the reasonable Expectation that Christian Princes and Governors conceived of their excellent Virtues that they would out-doe all mankind in firm Constancy a vast and extensive Charity unrelenting Fortitude inflexible Justice unmoveable Faith and Loyalty and unbyassed Sincerity What Temptations can their Lordships have that they should not or we Reasons to believe that they will not put forth all those Christian Vertues in Heroical Degrees which the World will not give them leave to exert only in common measures They will find it necessary sure to be now Confessors for the Support and Happiness of a poor distracted Nation a vast and great People They will no doubt subdue the Greatest Potentate to Justice if there be any such who hath unhing'd the Government and sap'd the very Foundations of our Constitution and will never consent to the Pardon of such Sins that are not to be pardoned in this World nor in the World to come Can they suffer the true Christian Religion of which they are the chief Ministers and Curators to perish by their timidity and cowardise Can they suffer a great People committed to their charge to be destroyed into an Anarchy and desert that Prince whose Beneficiaries they are and not interpose for the saving of him and his Government by faithful and wise Counsel To suppose such things as are morally impossible is unreasonable and to fear where no fear is For they if they were wholly secular and were guided by nothing but a secular Interest can consider that the world is impatient of disappointments That they hate nothing more than deceits and abuse of trusts and that he that falls short and goes less than a just expectation falls into the lowest and vilest contempt and deepest scorn But this is not a time sure to lessen the Prelates to take from the Bishops any just advantage or honour when that the contempt in this later age thrown upon them and the whole Order Ecclesiastical and the mischiefs that have naturally ensued thereupon have brought our Nation Religion and Government to a most miserable state a most desperate plunge out of which I pray God we may be able to emerge The Contempt of the Bishops and Clergy made the People despise the publick Establishment chuse Teachers not much wiser than themselves And they have thereupon multiplied vain Opinions and Divisions and true Christianity is scarce had in any Consideration Atheism and Profaneness upon this Stock is come to an enormous Growth which thrives the faster by the vain Opinions and Immoralities of the mistaken Religionists by which the Atheists take the Measures of true Christianity and in Consequence of this Popery is arrived to a vast Increase in Power and Interest and threatens us and the little Remains of true Reformed Christianity with an utter Overthrow The true Christian Religion is not generally understood and hath lost almost all Credit and Belief in a Christian Nation So that it seems to me upon the Consideration of our present State almost necessary that the Truth of the Christian Faith should be again demonstrated in Flames to this Infidel flagitious and degenerate Age that the Stains of the Christian Religion must be washed off by the Blood of the Sincere Professors That the true Faith should be better understood as it will be by dying Thoughts and vain Opinions be destroyed and burn up like Hay and Stubble in the Fire of Persecution For then we shall understand what it is that is worth dying for and that which is not worth dying for is not worth disputing and dividing for in our Christian Communions with breach of Charity Then our Guides the Holy Order of Bishops and other Faithful Pastors of the Church may shew their Sincerity and appear of what Value they are of in the Conduct of Souls by their wise Apologies and Noble Confessions and Martyrdoms for the true Christian Faith and recover a due place in the Peoples Reverence and Esteem for their Successors And if God in all his wise Providence and Care which will never be wanting to his true Religion shall think it necessary by this means to recover and restore it let this Fiery Tryal come let it come And then I doubt not but we shall have our 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 used in Scrripture for the Prelates of the Church to signifie the high Esteem they had of them and are the same with Leaders Captains and Commanders many Cranmers Ridleys and Latimers leading up their Troops of Confessors and a Noble Army of Martyrs who will again seal the Christan Religion with their Blood and a more Glorious Church shall recover out of the Ashes of this But God grant that we may dispose our selves by more easie Methods to recover out of our sickly Estate when we know our Disease and may be cured by more gentle Remedies But I am sure that nothing can save our Nation and Religion but an excellent Clergy and a high Esteem of them amongst the Laity And for this Reason I have earnestly concerned my self for the Bishops Right of judging in Capital Causes in Parliament that they may want no Capacity of making a gasping Nation live and thereby of recovering themselves and their Order into a high Veneration that they may more effectually administer to the Advancement of God's True Religion and Vertue and making this Kingdom happy for Succeeding Generations THE POSTSCIPT The POSTSCRIPT SIR I Now render you my hearty thanks for your free advise you gave me concerning the publishing of the Argument for the Bishops Right of Judging in Capital Causes in Parliament and for asserting their civil Honors and Rights in the Government Because it hath given me an occasion both of vindicating the most of the Inferiour Clergy from those Imputations which you have remembred to me and are commonly discoursed to their disadvantage whereby they have lost their Esteem with the People and also of rectifying the mistakes of some for their number is not great who have given too much cause therein of publick complaints You diswade me from giving any assistance to the Rights of the present Bishops for that the Clergy out of whom the Bishops must be made have entertained Principles that are destructive to the Government They affirm you say That it is in the power of a Prince by Divine Right to