they backed with one of the Canons of the Apostles as they call them the 7th in Number yet is it clear their main Authority is fetch'd from this obscure Synod of Toledo where 18 Bishops only were convened under Bamba the Goth who of a Plow-man was made a King and of a King a cloistred Monk as you may see in the History of Rodericus Santius par 2. cap. 32. This is all the goodly ground that either Gratian in his Decrees or Innocentius the 3d in the Decretals or Roger Hoveden in his History alledge against the Ecclesiastical Peers and their sitting as Judges in Causes of Blood to wit this famous Gothish Council of Toledo The first that openly planted this Canon here in England was Stephen Langton a Cardinal the Popes Creature as his Holyness was pleased to stile him in his Bull and thrust upon the See of Canterbury by a Papal Provision where he continued in Rebellion against his Soveraign as long as King John lived This Arch-Bishop under Colour of Ecclesiastical Immunity as this Canon is Marshalled by Lindwood at Osney neer Oxford did Ordain Ne quis Clericus beneficiatus vel in sacris ordinibus constitutus that no Clergy-man having a Benefice or otherwise in Holy Orders should presume to be present in that place Vbi judicium sanguinis tractatur vel exerceatur And this is the first Canon Broached in this Kingdom to this Effect That of Othobon being subsequent in time and a meer Forraign or Legatine Constitution See it at large in Lyndwoods Constitu lib. 3. at the end of the Book And by Vertue of a branch of this very Constitution the now Arch-Bishop 2 years sithence Fined the Bishop of Glocester in the High Commission because he had given way in time of Pestilence only that a Sessions or Judgment of Blood might be kept in a Sacred place which was likewise Inhibited in this Canon But this admits of a Multitude of Answers 1. Quod haec Dictio Clericus ex vi verbi non comprehendit Episcopum This word Clerk in the Canon Law reacheth not to a Bishop or a Peer of the Realm saith Lyndwood in his third Book cap. de Locatis Conductis 2. The Irregularity incurred by Judicature in Causes of Blood is only Jure positivo and therefore dispensable by the Pope saith Covarruvias in Clem. Si furiosus Par. 2. § 5. no 1. And here in England it is Dispenced with in Bishops by the King who in his Writs or Summons to the Parliament Commands the Lords Spiritual without any exception of Causes of Blood to joyn in all Matters and Consultations whatsoever with the Temporal Peers of the Kingdom these Summons being unto them a sufficient Dispensation so to do And Othobon himself Inhibiting other Clerks to use these Secular Judicatures hath a Salvo to preserve the Priviledges of our Lord the King whereby he may use any of their Services in that kind when he shall see Cause in the Title called Ne Clerici jurisdictionem saecularem exerceant A Lyndwood in his Gloss upon that Text doth instance in the Clerks of the Chancery and others Nor are these Writs of the Bishops Dispensations only but Mandates also and Bishops have been Fined at the Kings-Bench and elsewhere for Absenting themselves from Counsels in Parliament as now they are required to do without the Kings special leave and Licence first Obtained 3. When they are forbidden Interesse to be present the meaning is not in the very Canons themselves that they should go out of the Room but only that they should not be present to add Authority Help or Advice to any Sentence Pronounced against a particular individual Person in a Cause of Blood or mutilation of Members If he be present Authorizando consilium opem vel operam dando then he Contracts an Irregularity and not otherwise saith our Lyndwood out of Innocentius And the Canon reacheth no further than to him that shall Pronounce Sentence of Death or mutilation upon a particular Person For Prelates that are of Council with the King in Parliament or otherwise being demanded the Law in such and such a Case without naming any individual Person may Answer generaliter loquendo as that Treason is to be punished with Death and a Counterfeiter of the Kings Coyn is to be Burned c. Cardinal Hostiensis lib. 2. cap. de fals monet Allowed by John Montague de Collatione Parliamentorum in Tractat. Docto◠vol. 10. pag. 121. 4. These Canons are not in Force in England to bind the Subjects of this Kingdom for several reasons 1. Because they are against his Majesties Prerogative as you may see it clearly in the Articles of Clarendon and the Writ of Summons and therefore abolished by the Statute of 25º of Henry the 8 th It is his Majesties Prerogative declared at Claredon that all such Ecclesiastical Peers as hold of him by Barony should Assist in the Kings Judicatures until the very actual pronouncing of a Sentence of Blood And this holdeth all along from Henry the first down to the latter end of Queen Elizabeth who imployed Arch-Bishop Whitguift as a Commissioner upon the Life of a Personage not to be named without Horror and as the first keeper and examiner of Robert the most Noble Earl of Essex after that Commotion in London And to say that this Canon is Confirmed by Common Law in this Kingdom is a very Tale there being nothing in all the Common Law that tends that way 2. It hath been Voted in the House of Commons this very Sessions of Parliament that no Canons sithence the Conquest either Introduced from Rome by Legatine Power or made in our Synods never had in any Age nor yet have at this Instant any Power to bind the Subjects of this Realm unless they be Confirmed by Act of Parliament Now these Canons which Inhibit the presence of Church-men in Causes that concern Life and Member were never Confirmed by any but seem to be Impeached by diverse and sundry Acts of Parliament 3. The whole House of Peers have this very Session despised and set aside this Canon Law which some of the young Lords cry up again in the same Session and in the very same Cause to take away the Votes of the Bishops in the Case of the Earl of Strafford For by the same Canon-Law that forbids Clergy-men to Sentence they of that Coat are more strictly Inhibited to give Testimony in Causes of Blood Nec etiam potest esse Testis vel Tabellio in Causa Sanguinis saith my Lyndwood fol. 146. pag. 2. For no man co-operates more to a Sentence of Death than the Witness upon whose attestation the Sentence is principally Founded saith Lopez in his Practica Criminalis Cap. 98. Dist. 21. And yet have these Lords admitted as Witnesses produced by the Commons against the Earl of Strafford the Arch-Bishops of Canterbury and Armache together with the Bishop of London the which Lords now Command all Bishops to withdraw in the
know the Nature of a Protestation which some peradventure may mistake Protestatio est animi nostri declaratio juris acquirendi vel conservandi vel damnum depellendi causa facta saith Spigelius Calvin and all the Civilians No Protestation is made by any man in his Wits to destroy his own Right and much less another mans but to acquire or preserve some Right or to avoid and put off some Wrong that was like to happen to the party or Parties that make the Protestation As here in Courtneys Protestation the Prelates in the first place conceive a Right and Power they had voluntarily to absent themselves whilst some matters were treated of at that time in that House of Lords which by the Canon Law the breach whereof the Popes of Rome did in those times vindicate with far more severity than they did the transgressions of the Laws of God they were not permitted to be present at and all this not for want of Right to be there in all Causes but for honesty and preservation of their Estates as it is in the Act of Parliament 11 Rich. 2. In the second place they did preserve their former Right as Peers which they still had though voluntarily absenting of themselves More solito interessendi considerandi tractandi ordinandi definiendi all things without exception Acted and Executed in that Parliament And in the Last place they protest against any loss of Right of being or Voting in Parliament that could befal them for this voluntary absenting of themselves at this time And where in this Protestation is there one word to prejudice their Successors or to authorize any Peer to Command his fellow Peer called thither by more Antient prescription of time and by the same Writs of Summons that himself is to withdraw and go out from this Common Council of the Kingdom Thirdly we do not certainly know what these matters were whereat Arch-Bishop Courtney conceived the Prelates neither could nor ought to be present These matters are left in loose and general words in that Protestation Some conceive indeed it was at the Condemnation of Tressilian Brambre the Lord Beauchamp and others See Antiquit. Brit. pag. 286. But the notes of Priviledges belonging to the Lords collected by Mr. Selden do with more reason a great deal assign this going forth of the Prelates to be occasioned by certain Appeals of Treason advanced in that Parliament by the Duke of Glocester against Alexander Arch-Bishop of York whom the Popish Canons of those times as you know exempted as a Sacred Person from the cognisance of King or Parliament and therefore the rest of the Bishops as the squares went then neither could nor ought to be present and parties to break upon the Exemptions Immunities and Priviledges of that great Prelate But the Earl of Strafford is not the Arch-Bishop but the President of York and to challenge any such Exemptions and Immunities from the cognisance of the King or Parliament amounts at this time to little less than Treason and therefore is thâ—â— Protestation very unseasonably urged to thrust out any Protestant Prelate from Voting in Parliament Lastly a Protestation in the Civil or Canon Law for the Law of this Land knoweth it not is but a Testation or Witnessing before-hand of a mans own mind or Opinion whereby we that Protest provide to save and preserve our own Right for the time to come It concludes no man besides our selves no Stranger to this Act no Heir no Successor but if it be admitted sticks as inherent in the Singular and individual Person until either the Party dies or the Protestation be withdrawn and revoked And therefore what is a Protestation made by William Courtney to William Laud or by Thomas Arundel to bind Thomas Morton And what one Rule in the Common Law of the Land in the journal Book or in the Records of the Town can be produced to exclude the Lords Spiritual from sitting and Voting in Causes of Blood They were sometimes by the great favour of the King the Lords and the Commons not otherwise permitted to absent themselves never before this time Commanded by the Lay-Lords to forbear their Votes in any Cause whatsoever that was agitated in Parliament So our Law-Books say that the Prelates by the Canon Law may make a Procurator in Parliament when a Peer is to be Tryed which is enough to shew their Right thereunto 10 Edward the 4 th fol. 6. B. placit 17. And that it is only the Canon-Law that inhibits them to Vote in Sanguinary Causes Stamford pleas of the Crown fol. 59. The Canon Law saith Stamford in a distinct and separated Notion and therefore not grown in his Age to any such Usance or Custom as made it Common Law or the Law of this Land Objection But the Bishop of Lincoln and Bishop Andrews before him did alwayes forbear to Vote in Causes of Blood and did voluntarily retire out of the House when this Cause of the Earl of Strafford came to any serious Agitation Neither putting this withdrawing of the Prelates to any Vote nor offering to enter any Protestation Answer That Bishop had no opportunity to enter Protestations which you shall never find to have been offered by the Prelates but in Plein Parliaments when the three Bodies are together And his voluntary withdrawing of himself he may live to Repent him of if he shall hereafter be questioned for the same at the Kings-Bench or elsewhere He was called thither by his Writ which he did not so easily Obtain to sit and not to withdraw himself from Parliament when he pleased Besides his extraordinary Obligations to the Lords at this time whom he could not offend without great suspicion of high Ingratitude He is the first Prelate that ever was fetched out of the Tower and brought to sit in Parliament by the Black-Rod And therefore we are not so much to consider that Prelates Opinions or Actions in this kind as the reasons he gave for the same which as I have heard them Rehearsed are to speak modestly of them no Demonstrations His first and main Reason was that of the Record and Statute of 11 Rich. the 2 d. That it is the Honesty of that Calling not to intermeddle in matters of Blood The French word Honesteté signifies decency and Comliness as though it were a Butcherly and loathsome matter to be a Judge or to do Right upon a Malefactor to Death or loss of Members But this is an Imaginary decency never known in Nature or Scripture as I said before but begotten by Ignorance in the dark Fog and Mists of Popery Such an Honesty of the Clergy it was to have a Shaven Crown to depend upon their Holy Father the Pope to Plead Exemptions and to refuse to Answer for Felonies in the Kings Courts c. All these Particulars were esteemed in those dayes the Honesteté of the Clergy and such an Honesty it was in the Prelates of England in the loose Reign of Rich. the
Agitation of the self-same Cause Bishops it seems may be Witnesses to kill outright but may not sit in the Discussion of the Cause to help in Case of Innocency a distressed Noble man whereas the very Gothish Bishops who first invented this exclusion of Prelates from such Judicatures allow them to Vote as long as there is any hope left of clearing the party or gaining of Pardon Concil Tolet. 4. can 31. And by the beginning of that Canon observe the use in Spain in that Age Anno Dom. 633 as touching this Doctrine Saepe Principes contra quoslibet Majestatis obnoxios sacerdotibus negotia sua committunt You shall find it in the fourth Tome of Binius his last Edition of the Councils pag. 592. Lastly in the Case of Arch-Bishop Abbots all the great Civilians and Judges of this Kingdom as Dr. Steward Sir Henry Martin the Lord Chief Justice Hoâ—barâ— and Judge Doderidge which two last were well vers'd in the Canon Law delivered positively that all Irregularities introduced by Canons upon Ecclesiastical Persons concerning matters of Blood were taken away by the Reformation of the Church of England And were repugnant to the Statute of 25 of Henry 8. as restraining the Kings most just Prerogative to imploy his own Subjects in such functions and Offices as his Predecessors had done and to allow them those Priviledges and Recreations as by the Laws and Customs of this Realm they had formerly enjoyed Notwithstanding the Decree de Clerico venatore or the Constitution Ne Clerici saecularem jurisdictionem exerceant or any other in that kind The only Objection which appears upon any Learning or Record against Church-mens Voting in this Kingdom in Causes of Blood are two or three Protestations entred by the Bishops amongst the Records of the upper House of Parliament and some few passages in the Law-Books relating thereunto The Protestation the Lords now principally stood upon is that of William Courtney Arch-Bishop of Canterbury 11º Ric. 2. inserted in the Book of Priviledges which Mr. Selden Collected for the Lords of the upper House In the Margen whereof that passage out of Roger Hoveden whereof we spake before about Clergy-mens agitation of Judgments of Blood is unluckily inserted and for want of due Consideration of this point and some suspition of partial carriage in the Bishops in the Case of the Earl of Strafford hath been eagerly pressed upon the Bishops by some of the Lords in such an unusual and unaccustomed manner that if the Bishop of Lincoln who offered to speak unto this Objection had not voluntarily withdrawn himself he and the rest of the Bishops had been without hearing Voted out of the House in the Agitation of a Splinter of that Cause of the Earl of Strafford which came not neer any matter of Blood An Act never done before in that Honourable House and now Executed suddenly without the least Consideration of the merit of the Cause The only words insisted upon in this Protestation in question are these Because in this present Parliament certain matters are agitated whereat it is not Lawful for us according to the Prescript of Holy Canons to be present And by and by after they say these matters are such in the which nec possumus nec debemus interesse we neither can nor may be present This is the Protestation most stood upon for that of Arch-Bishop Arundel 21 Rich. 2. at what time the Bishops going forth left their Proxies notwithstanding with the Lay-Lords and consequently continued present in Judicature in the eye and Construction of the Law it is not so full and ample as this of Courtney's And therefore I must apply my Answers to this Protestation principally which are diverse and fit to be weighed and understood First I do observe that Bishops never Protested or withdrew in Cases of Blood but under the unsteddy Reign of Richard the Second only Never before never after the time of that unfortunate King from the Conquest to this present Parliament for ought appeareth in Record or History And that one Swallow should make us such a Spring and one Omission should create a Law or Custome against so many Actions of the English Prelates under so many Kings before so many Kings and Queens after that young Prince seems unto me a strange Doctrine Especially when I consider that by the Rules of the Civil and Canon Law a Protestation dies with the Death of him that makes it and is Regularly vacuated and disannulled Per contrarium actum subsequentem protestationem by any one subsequent Act varying from the tenour of the said Protestation Reg. juris Jo. Baptist. Nicolai par 2. Now that you may know how the Prelates carryed themselves in this Point and actually voted in Causes of Treason and sometimes to Blood before Richard the 2 d I refer me to what I cited before out of Mr. Selden and he out of Stephanides concerning Thomas a Becket Condemned by his Peers Ecclesiastical and Temporal about 15 of Henry the 2 d Arch-Bishop Stratford acquitted of high Treason in Parliament by four Prelates four Earls and four Barons under Edward the 3 d. Antiquitates Britanniae pag. 223. 4 Edward 3 Roger de Mortimer Berisford Travers and others adjudged Traytors by the Earls Barons and Peers 16º Edward 3. Thomas de Berkley was acquitted of Treason in pleno Parliamento c. And especially I refer me to that Roll of 21 Rich. 2 no. 10. 50 Which avers that Judgments and Ordinances in the time of that Kings Progenitors had been avoided by the absence of the Clergy which makes the Commons thereto pray that the Prelates would make a Procurator by whom they might in all Judgments of Blood be at the least legally if they durst not be bodily present in such Judgments And then for the practice sithence the Reign of Rich. the 2 d In the first of Henry the 4 th the Commons thank the Lords Spiritual and Temporal for their good and rightful Judgment in freeing the Earl of Northumberland from Treason 3 of Henry the 5 th the Commons pray a Confirmation of the Judgment given upon the Earl of Cambridge by the Lords Spiritual and Temporal 5 of Henry the 5 th Sir John Oldcastle is Attainted of Treason and Heresie by the Lords Spiritual and Temporal 28 of Henry the 6 th the Duke of Suffolk charged with Treason before the Lords Spiritual and Temporal 31 Henry the 6 th the Earl of Devon and so down to the Earl of Bristols Case wherein 22º Maij. 1626. ten Bishops are joyned with ten Earls and ten Barons in the disquisition and agitation of that supposed Treason I leave it therefore to the Judgment of any indifferent man whether these Protestations made all under one Kings Reign and dying with the Parties that made them can void a Right and Custom grounded by a continual Practice to the contrary in all other Tryals that have been sithence the Conquest to this present Parliament Secondly it is fitting we