in the same circumstances the Apostles were when the Christian Church was to be planted in the World and so few persons as the 12 Apostles made choice of for that Work Is there no difference to be made between a Church constituted and settled and incorporated into the Commonwealth and one not yet formed but labouring under great difficulties and making its way through constant persecutions May it not be as well argued that Bishops are not to stay in one Countrey nor to have any fixed habitation because the Apostles passed from place to place preaching the Word of God Doth not the Authour of the Letter himself confesse that the Clergy are one of the Three Estates of the Kingdom and by the Act 8 Eliz. 1. the Clergy are called one of the greatest States of this Realm And is there not then great Reason that those who are the chief part of it as he confesseth the Bishops to be should have a share in affairs that concern the whole Nation And would it not seem strange to the Christian World that we alone of all the Kingdoms of Europe should exclude the Bishops from having an equal Interest with the other Estates in Parlament For it were easy to prove from unquestionable Testimonies that as soon as the Christian Religion was well settled in any of these Northern Kingdoms the Bishops were admitted into all the publick Councils and have so continued to this day where the Convention of the Estates hath been kept up Bohemia onely excepted since the days of Sigismond I begin with France where Hincmarus saith there were two great Councils every year one of the States of the Kingdom for ordering the Affairs of the ensuing year and redressing of Grievances and in these the Bishops were always present and the other of the King's Council which managed the intervening Affairs and into this the chief of the Bishops were chosen It were endless to repeat the several Parlaments in France in the time of the Merovingian and Caroline Race wherein Laws were passed and the great Affairs of the Kingdom managed by the Bishops Noblemen and others Those who have looked into the ancient Annals and Capitulars of France cannot be ignorant of this There is one thing remarkable to our purpose in the famous Council of Frankford which opposed the Worship of Images so stoutly viz. that after the matters of Religion were agreed then according to the Custom of that Age the other Estates being present they proceeded to other matters and then Tassilo Duke of Bavaria was brought upon his Knees for Treason and the Cause of Peter Bishop of Verdun was heard who was likewise accused of Treason and there purged himself Concerning both which Cases there are 2 Canons still extant among the Canons of that Council and in another the Bishops are appointed by consent of the King to doe Justice in their several Dioceses And that they had not onely a share in the Legislative but in the Iudiciary part appears by one of the ancient Formulae in Marculphus where it is said that the King sate in Judgment unà cum Dominis Patribus nostris Episcopis vel cum plurimis Optimatibus nostris vel in the language of that Age is the same with This was the Palatine Court where Bignonius saith the greater Causes were heard the King himself being present or the Comes Palatii Episcopis Proceribus adsidentibus the Bishops and Lords sitting in Iudicature together with him And this was not onely the Original of the Parlament of Paris as a standing Court of Iudicature but the like in England was the true foundation of the Supreme Court of Iudicature in the House of Peers So that in the eldest and best times of France after Christianity had prevailed there neither consultation about publick Affairs nor administration of Justice were thought inconsistent with the Function of Bishops In Spain during the Gothick Power all the great Affairs of the Kingdom and even the Rights of their Princes were debated and transacted by the greatest of the Clergy and Nobility together as may be seen in the several Councils of Toledo in that time in the case of Suintilas Sisenandus and others And in one of them it is said that after they had dispatched matters of Religion they proceeded ad caeterarum Causarum negotia to the handling of other Causes In the 13. Council of Toledo the Case of Impeachments of Treason is brought in and Rules set down for due proceedings therein And yet from one of these Councils of Toledo it is that all the stir hath been made in the Canon-Law about Bishops not being present in cases of bloud In Germany the first Laws that were ever published were those by Lotharius II. in Comitiis Regni saith Goldastus and there were present 33 Bishops 34 Dukes 72 Counts besides the People And by the Matriculation-Roll of the States of the Empire it appears what a great Interest the Clergy have preserved ther in from the first times of the prevalecy of Christianity there And Arumaeus a considerable Protestant Lawyer of the Empire saith the Bishops of Germany sit in a double capacity in the Diets both as Bishops and as Princes of the Empire And he commends the prudence of that Constitution with respect both to Iustice and the Honour and Safety of Religion For the Kingdom of Bohemia Goldastus a learned Protestant saith that there as in all other well-constituted Kingdoms among Christians there were 3 Estates of Prelats Nobles and Commons and this continued he saith from the time Christianity was received till the days of Sigismond No sooner was Christianity received in Hungary but their Princes Stephanus and Ladislaus called their great Councils of their Prelats and Nobles and the Laws made in the Concilium Zabolchianum were passed by the King with all his Bishops and Nobles and with the consent of the whole Clergy and People In Poland Starovolscius saith that their Ancestours after they received Christianity out of regard to Religion gave the Bishops the first place in the Senate and admitted the Clergy to the great Offices of the Kingdom And Sigismond in his Constitution saith the States of Poland consist of the Bishops Barons and Delegates called Nuntii terrestres In the Northern Kingdoms Adamus Bremensis saith that the Bishops after the People received Christianity were receiv'd into their publick Councils And Loccenius reckons up among the several Estates the Bishops Nobles Knights and Deputies of the Country and Cities And it appears by the Hirdstraa or the ancient Laws of Norway the Bishops as well as Nobility were present in the Convention of the States and all publick Councils The like might be proved here in the Saxon times from the Conversion of Ethelbert downward This is so very evident that he must blind his eyes that doth not see it if he doth but cast them on the History of those
Affairs CHAP. II. The Right in point of Law debated Concerning the Constitution of Clarendon and the Protestation 11 R. 2. HAving removed these general Prejudices I now come to debate more closely the main Point For the Authour of the Letter undertakes to prove that Bishops cannot by Law give Votes in Capital Cases in Parlament Which he doth two ways 1. by Statute-Law 2. by Use and Custome which he saith is Parlament-Law and for this he produceth many Precedents I. For Statute-Law two Ratifications he saith there have been of it in Parlament by the Constitutions of Clarendon and the 11 R. 2. 1. The Constitutions of Clarendon which he looks on as the more considerable because they were not the enacting of new Laws but a declaration of what was before And for the same Reason I value them too and shall be content this Cause stand or fall by them The Constitution in debate is the 11 th which is thus repeated and translated in the Letter Archiepiscopi Episcopi universae Personae Regni qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam inde Respondeant Iusticiariis Ministris Regis sequantur faciant omnes consuetudines Regias Et sicut ceteri Barones debent interesse judiciis Curie Regis quousque perveniatur ad diminutionem membrorum vel ad mortem The Archbishops Bishops and all the dignified Clergy of the Land that hold of the King in Capite shall hold their possessions from the King as a Barony and answer for their estates unto the King's Iustices and Ministers and shall observe and obey all the King's Laws And together with the other Barons they are to be present at all Iudgments in the King's Courts till it come to require either losse of Member or Life The Argument from hence he enforceth from the solemn Recognition and publick confirmation of these Constitutions and the Oath taken to observe them from whence he concludes this to be Testimonium irrefragabile An irrefragable and invincible Testimony And so I foresee it will prove but to a quite contrary purpose from what he intended it The whole Question depends upon the meaning of the latter Clause of this Constitution The meaning he gives of it is this that the Prelats of the Church should not be present at the Iudgments given in the King's Courts when losse of Member or Life was in question The meaning of it I conceive to be this that the Bishops are required to be present in the King's Courts as other Barons are till they come to give Sentence as to Dismembring or loss of Life Whether of these is the true meaning is now to be considered and that will best be discovered these three ways 1. By the Occasion 2. By the plain Sense of the words according to their true Reading 3. By the subsequent Practice upon this Constitution in the Parlament at Northampton soon after 1. By the Occasion The Authour of the Letter assigns that Occasion for this Constitution for which there is not the least colour viz. That the Prelats of that time were ambitious of a kind of Omnipotency in Judicature I suppose he means and that to restrain their power of Judging Capital Cases this Constitution was made and because this seemed to be a diminution of their Power therefore Matt. Paris ranks it among the Consuetudines iniquas the wicked Customs of the former times For all which there is not the least shadow of Proof besides that it is so repugnant to the History of those Times that I can hardly believe a Person of so much Learning and Judgment as is commonly said to be the Authour of the Letter could betray so much unskilfulness in the Affairs of those Times For this is so far from being true that the Bishops did then affect such a Power of Iudging in all Secular Causes that they looked on their attendance in the King's Court in the Trial of Causes as a burthen which they would fain have been rid of because they accounted it a Mark of Subjection to the Civil Power and contrary to that Ecclesiastical Liberty or Independency on Princes which from the days of Gregory VII they had been endeavouring to set up Which H. II. being very sensible of resolved to tie them to the Service of their Baronies and to an attendance on the King's Courts together with other Barons But lest they should pretend any force on their Consciences as to the Canons of the Church this Constitution doth not require but suffers them to withdraw when they came to Sentence in matters of Bloud And that this was the true Occasion I prove by these two invincible Arguments 1. By the complaint which they made of the Baronies as too great a mark of Subjection to the Civil Power This is plain from Matt. Paris himself to whom the Authour of the Letter refers for when he speaks of William the Conquerour's bringing the Temporalties of the Bishops into the condition of Baronies i. e. forcing them to hold them of him in Chief upon certain Duties and Services he calls it Constitutionem pessimam a most wicked Constitution just as he calls the Customs of Clarendon Consuetudines iniquas wicked Customs And he adds that many were banished rather then they would submit to that Constitution For their Privileges were so great with the Frank-almoign they enjoy'd in the Saxon times and their desires so hearty especially among the Monks who from Edgar's time had gotten into most Cathedral Churches to advance the Papal Monarchy that they rather chose to quit all then to give up the Cause of the Churche's Liberty by accepting of Baronies Therefore Matt. Paris calls the Rolls that were made of the Services belonging to these Baronies Rotulas Ecclesiasticae Servitutis the Rolls of Ecclesiastical Slavery then which nothing could be more contrary to that Ecclesiastical Liberty which was then setting up by Pope Hildebrand And to put this out of all dispute Petrus Blesensis a Name well known in this dispute in that very Book where he complains of the Bishops Hypocrisy about Cases of Bloud in being present at hearing and trying Causes but going out at Sentence complains likewise of their Baronies as those which gave occasion to that Hypocrisy and as the marks of the vilest Slavery Et in occasione turpissimae Servitutis seipsos Barones appellant They may think it an honour to be called the King's Barons but he accounts it the greatest Slavery and applies that place of Scripture to them They have reigned but not by me they are become Princes and I know them not Now Pet. Blesensis lived in the time of H. II. and knew the whole proceedings of the Constitutions of Clarendon and was a zealous maintainer of Becket's Cause or which was all one of the Liberties of the Church as they call'd them against the Civil Power 2. By the fierce Contest between the Civil and Ecclesiastical
Power about the Liberties of Church-men This was carried on from the time that William I. brought them into Subjection by their Baronies his Sons stood upon the Rights of the Crown whilst Anselm and his Brethren struggled all they could but to little purpose till after the death of H. I. Then Stephen to gratifie the great Prelates by whose favour he came to the Crown yielded all they desired but he soon repented and they were even with him for it Malmsbury takes particular notice that he yielded they should have their Possessions free and absolute and they promised onely a conditional Allegeance to him as long as he maintained the Liberties of the Church When K. Stephen broke the Canons as they said by imprisoning 2 Bishops the Bishop of Winchester and his Brethren summon'd him to answer it before them in Council and there declared that the King had nothing to doe with Church-men till the Cause was first heard and determined by themselves All his time they had no regard to his Authority when it contradicted their Wills and when the Peace was made between Him and H. II. Radulphus de Diceto takes notice that the Power of the Clergy increased by it In this state H. II. found things when Gul. Neuburgensis saith the great business of the Church-men was to preserve their Liberties Upon this the great Quarrel between Him and Becket began this made the King search what the Rights of the Crown were which his Ancestours challenged to these he was resolved to make Becket and his Brethren submit For this purpose the Parlament was called at Clarendon and after great debates the 16 Constitutions were produced which were those the King was resolved to maintain and he made the Bishops as well as others swear to observe them Now when the rest of them relate to some Exemptions and Privileges which the Church-men challenged to themselves about their Courts Excommunications Appeals and such like and which the King thought fit to restrain them in From whence in Becket's Epistles it is said those Constitutions were framed ad ancillandam Ecclesiam to bring the Church in subjection as Baronius shews out of the Vatican Copy And Fitz-Stephen saith All the Constitutions of Clarendon were for suppressing the Liberty of the Church and oppressing the Clergy I say considering this is there not then great Reason to understand this 11 th Constitution after the same manner viz. that notwithstanding K. Stephen's Grant H. II. would make them hold by Baronies and doe all the Service of Barons in the King's Courts as other Barons did and he would allow them no other Privilege but that of withdrawing when they came to Sentence in a Case of Bloud What is there in this sense but what is easy and natural and fully agreeable to the state of those Times whereas there is not the least foundation for the pretence of the Bishops affecting to be present in all Causes which the King must restrain by this Constitution This sense of it is not onely without ground but is absolutely repugnant to all the History of that Age. For if this Constitution was intended to restrain the Bishops from trying Causes of Bloud then the Bishops did desire to be present in those Causes and the King would not suffer them Whereas it is evident that the Bishops pretended scruple of Conscience from the Canons that they could not be present but in truth stood upon their Exemption from the Service of Barons which they call'd Ecclesiastical Slavery And therefore that could not be the sense of the Constitution to restrain them in that which they desired to be freed from and which by this Constitution of Clarendon was plainly forced upon them against their wills For Lanfranc had brought the Canon of the 11 th Council of Toledo into England That no Bishop or Clergy-man should condemn a man to death or give vote in the Sentence of Condemnation at which Council were present 2 Archbishops 12 Bishops and 21 Abbots And before H. II ' s time this Canon of Toledo was received into the Body of the Canon-Law made by Ivo Burchardus Regino and Gratian who lived in the time of K. Stephen and when they saw such a Canon so generally received is there not far greater Reason to think they desired to withdraw then that they should press to be present and the King restrain them But the Constitution is so framed on purpose to let them understand that the King expected in all Iudgments they should doe their Duty as other Barons but lest they should think he purposely designed to make them break the Canons he leaves them at liberty to withdraw when Sentence was to be given So that I can hardly doubt but the Authour of the Letter if he please calmly to reflect upon the whole matter will see reason to acknowledge his mistake and that this Constitution was so far from intending to restrain the Bishops from all Iudicature in Cases of Bloud that on the contrary it was purposely framed to oblige them to be present and to act in such Causes as the other Barons did at least till the Cause was ripe for Sentence which last Point the King was content to yield to them out of regard and reverence to the Canons of the Church For the words of the Law are not words of Prohibition and restraint from any thing but of Obligation to a Duty which was to be present and serve in the King's Courts of Iudicature in like manner as the other Barons did From all which it is evident I think beyond contradiction that the Occasion of this Law was not the Ambition of the Prelates as the Authour of the Letter suggests to thrust themselves into this kind of Iudicature but an Ambition of a worse kind though quite contrary viz. under a pretence of Ecclesiastical Liberty and Privilege to exempt themselves from the Service of the King and Kingdom to which by virtue of their Baronies they were bound sicut caeteri Barones as well as the other Barons And therefore it is so far from being true that the Bishops exercise of this Iurisdiction together with the Temporal Lords is a Relique of Popery and one of the Encroachments of the Clergy in those Times of Ignorance and Usurpation as some well-meaning Protestants are now made to believe that on the contrary the Exemption of the Clergy from this kind of Secular Iudicature was one of the highest Points of Popery and that which the Pope and his Adherents contested for with more zeal then for any Article of the Creed This was one of those Privileges which Thomas Becket said Christ purchased for his Church with his bloud and in the obstinate defence whereof against the King he himself at last lost his life And now to put the matter beyond all doubt I appeal to any man skill'd in the History of those Times whether Thomas Becket opposed the Constitutions of Clarendon to the
them in Capital Causes seems to be of equal force against this Precedent viz. That this Parlament of the 21 R. II. and all that was done in it was repeal'd in the 1 H. IV. And if that be so and those Acts of State which then passed had not again been repealed 1 Ed. IV. then the Repealing of that of 1. Ed. III. signifies nothing and consequently the Affirmance of the first Iudgment against the two Spencers is good notwithstanding that Repeal And therefore that we may examine this matter to the bottom I shall set down the very words of the Authour of the Letter concerning it Speaking of the Declaration made by the Lawyers in the 10 Ed. IV. concerning the Bishops making a Procurator in Capital Causes he hath these words It is true here is mention made of their making a Proctor which was Error temporis the Errour of those times grounded upon what was so lately done as they looked upon it though irregularly done in the last Parlament of R. II. whom they consider'd as their lawfull King and in truth he was so the three Henry's that came between being but Vsurpers And again speaking of the same business of a Proctor in the 21 R. II. he hath this remarkable passage I have already shewed that this whole Parlament was repeal'd for the extravagant things that were done in it of which this was one And therefore nothing that was then done can signifie any thing to a leading case any ways to be followed and this as little as any except it could be made appear which I am confident it cannot that some Iudgment had been reversed upon that account because the Prelats were not present and had not given their assent to it Now if I can make out these two things 1. That the Parlament of R. II. was not legally repeal'd 2. That the Iudgment against the two Spencers was revers'd and that the Repeal of that Reversal in 1 Ed. III. was revok'd in 21 R. II. upon this very account because the Prelats were not present and had not given their assent to it I hope the Authour of the Letter will be satisfy'd that both this Precedent and the Case of a Proctor are very significant in this Cause and that there is a great difference between being confident and certain of any thing 1. That the Parlament of 21 R. II. was not legally repeal'd And for this I take the Authour 's own acknowledgment that R. II. was in truth lawfull King and that H. IV. was but an Vsurper Nay I add farther that R. II. was alive and in prison when H. IV. repeal'd the Parlament of 21 R. II. For so it is said in the very Act of Repeal that R. II. late King of England was pursued taken put in ward and yet remaineth in ward And now I leave it to the Authour of the Letter whether a Parlament call'd by a lawfull King and the Acts of it ought to be deem'd legally repeal'd by a Parlament that was call'd by an Usurper and held whilst the lawfull King was alive and detain'd in prison 2. That the Iudgment against the two Spencers was revers'd and the Repeal of the Reversal of it in 1 Ed. III. revok'd in 21 R. II. and that upon this very account because the Prelats were not present and had not given their assent to it which the Authour of the Letter is confident cannot be made appear That this Iudgment was reversed for this Reason I have already shewn viz. in the Parlament at York 15 Ed. II. And I shall now shew that the Repeal of that Reversal in 1 Edw. III. was revok'd in 21 R. II. and that upon the account mentioned For in this Parlament Tho. le Despenser Earl of Gloucester exhibited two Bills in which he prayeth that the Revocation of the Exile of the two Spencers in 15 Ed. II. might be brought before the King and confirmed and that the Repeal of the same made in the 1 Ed. III. might be revoked Of which Act of Repeal these Errours are assigned among others because the Prelats who are Peers of the Realm did not assent to the Iudgment and because it was made onely by the Earls and Barons Peers of the Realm c. and because it was made against the form of the Great Charter of England in which it is contain'd that no man shall be exil'd or otherwise destroyed but by the lawfull Iudgment of his Peers or by the Law of the Land So that it seems it was look'd upon as a breach of the Great Charter for the Temporal Lords to condemn a Peer without the Assent of the Bishops and that such a Iudgment was not esteem'd a lawfull Iudgment by his Peers And those Errours of the first Iudgment assign'd in the Revocation of it in 15 Ed. II. are allowed in this Parlament of 21 R. II. and that Revocation confirm'd and the Repeal of it in 1 Ed. III. revok'd upon the same account I shall onely observe that in this Parlament as before in 15 Ed. II. the Bishops are declared to be Peers Peers of the Realm Rot. 55. Peers in Parlament Rot. 56. 61 but most fully and distinctly in the Roll last cited Peers of the Realm in Parlament Of which farther use may be made in the last Chapter concerning the Peerage of the Bishops And now to sum up the force of this Precedent for the Iurisdiction of the Bishops in Cases of Treason Here is a Reversal of a Iudgment because made without the Assent of the Prelats by the Parlament at York in 15 Ed. II. And whereas it is said this Reversal was repeal'd and the first Iudgment affirm'd in 1 Ed. III. I have shew'd that this was no legal Repeal because Ed. II. was alive and lawfull King or else Ed. III. could never have been so in the time of that first Parlament of Ed. III. and consequently Ed. III. at that time was an Usurper and the Proceedings of that Parlament null and void So that the Reversal in 15 Ed. II. stands good notwithstanding the Repeal in 1 Ed. III. Besides that this Repeal whatever it was is solemnly revok'd in 21 R. II. And H. IV. who revers'd all the Proceedings of the Parlament of 21 R. II. during the life of R. II. is acknowledg'd by the Authour of the Letter to have been an Vsurper and R. II. to have been a lawfull King And now I think that this Precedent hath all the advantage that can be and that the Iurisdiction of the Bishops in Cases of Treason could not have been asserted in a higher manner then to have a Iudgment in Case of Treason solemnly revers'd in two Parlaments for this very cause because the Bishops who are Peers assented not to it And this Precedent own'd by the House of Commons in their Petition to have a Common Proctor appointed by the Clergy in this very Parlament of 21 R. II. as is acknowledg'd by the Authour of the Letter
times These things I have laid together with all possible brevity and clearness that in one view we may see a consent of all these parts of the Christian World in calling Bishops to their publick Councils and most solemn Debates and how far they were from thinking such Imployments inconsistent with their Sacred Function and charging them that thereby they left the Word of God to serve Tables Neither can this be looked on as any part of the Degeneracy of the Church or the Policy of the Papacy since as the fore-cited Arumaeus saith they were admitted to this honour before the Papal Power was advanced and were so far from carrying on the Pope's designs that they were in most Countries the greatest Opposers of them And when the Popes began to set up their Monarchy their business was to draw them off from meeting in these Councils under several pretences of Cases of Bloud and other things the better to keep them in a sole Dependency on themselves As will appear by the following Discourse 2. The next thing suggested is that the Imperial Law doth forbid Clergy-men having any thing to doe with Secular matters And for this a Rescript of Honorius and Theodosius is mentioned and a Decree of Iustinian To which I answer 1. The Imperial Edicts are not the Law of England Our dispute is about a Right by our own Laws which a Rescript of Honorius and Theodosius can neither give nor take away What would become of the whole frame of our Government and of our just Rights and Properties if the producing of Imperial Edicts would be sufficient to overthrow them When the Bishops once pleaded hard in Parlament in behalf of an Imperial Constitution lately adopted into the Canon-Law the Answer given by all the Temporal Lords was Nolumus leges Angliae mutare quae huc usque usitatae sunt approbatae They did not mean they would make no alterations in Parlament for that very Parlament did so in several things but their meaning was as Mr. Selden observes that they owned neither Canon nor Imperial Laws here any farther then they were agreeable to the Laws of the Land 2. The Imperial Constitutions do give liberty to Church-men to have to doe in Secular Affairs The Emperour Constantine whose Constitutions deserve as great regard as those of Honorius and Theodosius to shew his respect to the Christian Religion permitted all men to bring their Causes before the Bishops without ever going to the other Tribunals as Sozomen a Lawyer of Constantinople relates And this is the true foundation of the Constitution De Episcopali Iudicio as Gothofred confesseth Which is at large inserted into the Capitulars with a more then usual introduction and made a Law to all the Subjects of the Empire Franks Saxons Lombards Britons c. and therefore is more considerable to these parts then a bare Rescript of Honorius and Theodosius And yet these very Emperours in a Constitution of theirs do so far ratifie the Judgment of Bishops upon Trial by consent before them that no Appeal doth lie from their Decree What Rescript then is this of theirs which so utterly forbids Clegy-men having any thing to doe with publick Functions or things appertaining to the Court I suppose that Constitution of Honorius is meant which confines the Bishops Power to what concerns Religion and leaves other Causes to the ordinary Judges and the Course of Law But two things are well observed by Iac. Gothofred concerning this Rescript of Honorius 1. that it is meant of absolute and peremptory Judgment without Appeal 2. that whatever is meant by it not many years after this Constitution was repealed by Honorius himself and the Bishops sentence made as absolute as before So that Honorius is clearly against him if a man's second judgment and thoughts be better 3. The practice of the best men in those Ages shews that they thought no Law in force to forbid Church-men to meddle in Secular Affairs as might be at large proved from the practice of Gregory Thaumaturgus and S. Basil in the East of Silvanus Bishop of Troas of S. Ambrose S. Augustine and others of the greatest and most devout Church-men of those times And S. Augustine was so far from thinking it unlawfull that in his opinion S. Paul commanded the Bishops to doe it Constituit enim talibus Causis Ecclesiasticos Apostolus Cognitores And the learned Gothofred of Geneva saith Mos hic frequens legitimus eundi ad Iudices Episcopos It was then a common and legal practice to go to Bishops as to their Iudges Which would never have been if there had been a Law in force to forbid Bishops meddling in Secular Affairs 4. The Emperours still reserved to themselves the power of dispensing with their own Rescripts and the Canons of the Church Therefore the Council of Sardica when it prohibits Bishops going to Court excepts the Princes calling them thither Upon which Balsamon hath this Note that although the Canons prohibit yet if the Emperour commands the Bishops are bound to obey and to doe what he commands them without any fault either in the Emperour or them And in other places he asserts the Emperour's power of dispensing with the strictest Canons against Church-mens meddling in Secular Affairs Thence he saith the Metropolitan of Side was chief Minister of State under Michael Ducas and the Bishop of Neocaesarea made the Laws of the Admiralty for Greece And the Glosse upon Iustinian's Novells observes that Bishops may meddle with the Affairs of the Commonwealth when their Prince calls them to it And this is the present Case for the Bishops are summon'd by the King 's Writ to serve him in the publick Council of the Nation and therefore no Imperial Rescript if it were of force in England could have any in this Case which was allowed by the Imperial Laws themselves 5. There is a great Mistake about Iustinian's Decree For the Bishops are not so much as mention'd in it but the Defensores Ecclesiarum who were Lawyers or Advocates of the Church as appears by a Constitution of Honorius where Gothofred proves they were not so much as in Orders It is true Iustinian doth appropriate the Probat of Wills to the Master of his Revenue but the Law and Custom of England as Lindwood observes hath alter'd that Constitution and which must we regard more Iustinian or our own Laws I find one thing more suggested by way of Prejudice to the Cause in hand viz. the Common Law of England which hath provided a Writ upon a Clergy-man's being chosen an Officer in a Mannor saying it was contra Legem Consuetudinem Regni non consonum The Argument had been altogether as good if it had been taken from a Minister of a Parish not being capable of the Office of Constable and it had as effectually proved that Clergy-men ought not to meddle in Secular
death and broke the Oath he had taken to observe them because by them among other things the Bishops were excluded from Iudicature in Cases of Bloud or for the quite contrary reason among others because this Service of the King in his Courts impos'd on them by virtue of their Baronies was look'd upon by him as a violation of the Privileges of the Church and a badge of Ecclesiastical Slavery which by all means he desir'd to cast off And if the latter be the true Reason I leave it to the impartial Reader and even to the Authour of the Letter himself upon second thoughts whether he have not widely mistaken both the Occasion and Meaning of this Law 2. Let us consider the plain Sense of the words according to the true reading of them The Authour of the Letter hath made use of the most imperfect Copy viz. that in Matt. Paris I cannot tell for what reason unless it be that in the last Clause in Iudicio is there left out which is put in in the Copy extant in Gervase and in the Vatican Copy and in several MSS. in all which it runs thus Et sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus usque perveniatur in judicio ad diminutionem membrorum vel ad mortem Now here are two things to be distinguished 1. Something expresly required of the Bishops as to their presence in the King's Courts viz. that they must attend as other Barons and sit together with them and therefore it is expressed twice Et sicut caeteri Barones in the beginning of that Clause and cum Baronibus again after and debent interesse in the middle And can any one soberly think that the meaning of all this is they must not be present in cases of Bloud No the Constitution saith they ought to be present as other Barons and sit with other Barons in the Trials of the King's Courts And yet the Authour of the Letter doth to speak mildly very unfairly represent this Constitution as if it did forbid the Prelats to be at all present in the Iudgments of the King's Courts in Cases of Bloud and that in express words For speaking of the Constitutions of Clarendon he hath this passage And one of these Constitutions was that the Prelats of the Church should not interesse Iudiciis Curie Regis be present at the Iudgments given in the Kings Courts Whereas this Constitution as he himself cites it afterwards runs thus debent interesse Iudiciis Curie Regis quousque c. they ought to be present in the Iudgments of the King's Courts till it come to loss of Members or Life So that this Law expresly says that they ought to be present in the Iudgments of the King's Courts till it come c. And when it comes to loss of Members or Life it doth not say as the Authour of the Letter affirms that they should not be present then nor do the words of the Constitution imply any such thing but only require as I shall evidently make appear their presence so far and when it should come to Sentence leaves them at liberty to withdraw in obedience to the Canons of the Church which they pretended themselves bound in Conscience to observe And this is the true Reason why among the 16 Constitutions of Clarendon whereof 10 were condemned 6 tolerated but none approv'd by Pope Alex. III. this 11. was one of the 6 which escaped with an Hoc toleravit this the Pope was content to tolerate because in the last Clause of it there was regard had to the Canons of the Church Of this misrepresentation of the Constitution under debate though it might have deserved a more severe animadversion I shall say no more because I have no design to provoke the Authour or any body else but onely to convince them 2. Something allowed to the Bishops as peculiar to themselves viz. That when the Court hath proceeded so far in judicio in a particular Trial for before it is Iudiciis in general that Sentence was to be given either as to dismembring or loss of life then they are at liberty but till then they are required As suppose Charles V. had required the Protestant Princes to attend him to Masse as other Princes did onely when the Mass-Bell tinckled they might withdraw would not any reasonable man understand by this that they were obliged to their Attendance till then So it is here the King commands their Attendance till it comes to such a point therefore before it comes thither their presence is plainly required by this Constitution And so in stead of there being a Statute-Law to exclude the Bishops at such Trials there is one to require their presence in judicio in the proceedings of such a Trial till it comes to Sentence All that can be said in this case is that the last Clause is not to be understood of the Sentence but of the Kind or quality of the Cause i. e. they are to be present in the King's Courts till they come to a Cause wherein a man's Life or Members are concerned But that this cannot be the meaning will appear 1. There is a great deal of difference between quousque perveniatur ad judicium mutilationis membrorum vel mortis that might have been understood of a Cause of Bloud and quousque perveniatur in judicio ad mutilationem membrorum vel ad mortem for this supposeth a Trial already begun and the Bishops present so far in it but when it comes to the point of mutilation or death then they have leave to withdraw So that this last Clause must either be understood of Execution which no one can think proper for the King's Courts or for the Sentence given by the Court which is most agreeable 2. The Sense is best understood by the Practice of that Age. For if the meaning of the Constitution had been they must not be present in any Cause of Bloud and the Bishops had all sworn to observe it can we imagine we should find them practising the contrary so soon after And for this I appeal to Petrus Blesensis whose words are so material to this purpose that I shall set them down Principes Sacerdotum Seniores Populi licèt non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis séque ideo immunes à culpa reputant quòd mortis aut truncationis membrorum judÃcium decernentes à pronuntiatione duntaxat executione poenalis sententiae se absentent Whereby it is evident that the Bishops were present at all Debates and gave Votes in Causes of Bloud but they absented themselves from the Sentence and the Execution of it It is true Pet. Blesensis finds fault with them for this But what is that to the Law or to the practice of that Age I do not question but Pet. Blesensis condemned the observation of the other Constitutions of Clarendon as well as this and in
the force of a Law because it may be destroy'd by the Act of the Parties themselves If therefore the Bishops did afterwards act contrary to this Protestation they took away all the force of it 2. The particular nature of this Protestation is such as doth most evidently preserve their Right to be personally present on the account of their Peerage and Baronies and the great design of a Protestation is to preserve a Right notwithstanding some Act which seems to destroy it as thier absenting themselves on the account of the Canons might seem to doe But of this already 3. We are now to consider the third Point Whether on supposition that on the account of the Canon-Law the Bishops had always withdrawn in the time of Popery that had continued in force still since the Reformation I think not upon these Reasons 1. Because the Canon-Law was founded upon a Superstitious fancy viz. that if Clergy-men be present in Causes of Bloud they contract Irregularity ex defectu perfectae Lenitatis as the excellent Canonist Navarr saith because it argues a want of perfect Lenity But if we consider the cases they allow which do not incurre Irregularity and those they do not allow which do incurre it we shall find all this stir in the Canon-Law about this matter to be onely a Superstitious kind of Hypocrisy 1. If a man in Orders gives another man Weapons without which he could not defend himself and by those weapons he maims him that assaulted him this doth not make him irregular but if he kills him it doth and yet the Canons make the case of Dismembring and Death the same 2. It makes a man act against the Law or Nature to prevent Irregularity For they say if it be for the defence of Father or Mother or preventing the ruin of his Country although the Cause be never so just a Clergy-man that dismembers or takes away another's life is irregular 3. If a Clergy-man discovers Treason or accuses another for Treason without a Protestation that he doth not doe it with a design to have him punished he is irregular but if he makes that Protestation although death follows he is not 4. If a Clergy-man be in an Army and perswades the Souldiers to fight manfully and kill as many as they can this doth not make him irregular ny although he beats them if they will not fight but if he happens to kill an enemy himself then he is 5. If he gives a Souldier a Sword or a Gun by which he dispatches his enemies if he did it with a particular intention that he should slay or maim them he is irregular if onely with a general intention that he should overcome he is not This being somewhat a nice Case the Canonists take more then usual pains to prove it And from hence they defend their Priests and Iesuits in the Indies who carry the Cross before their Armies into the Field and encourage them to kill all they can and yet Navarr saith they are so far from being irregular that they are regularissimi as his word is 6. If a man to gain an Indulgence carries a faggot to burn an Heretick if it be with a design to take away his life he is irregular but if he be hanged first or dead before it be thrown into the fire then he is not 7. If a man in Orders helps a Chirurgeon in cutting off a man's Leg he is not irregular but if a man be justly condemned to have his Leg cut off if he then gives any assistence he is irregular because the one is moved out of Mercy and the other out of Justice 8. If the Bishops sit and condemn a man for Heresy and deliver him over to the Secular Power for Execution yet they free this from Irregularity or else the practice of the Inquisition were lost This seems a very difficult Case but the Canonists salve this by saying that the Inquisitours when they deliver them over to the Secular Power do pray that they may not be hurt either Wind or Lim as it appears by the Forms used in the Directorium Inquisitorum And if this be not the height of Hypocrisie let the World judge And therefore this part of the Canon-Law is not consistent with the Sincerity of the Reformation 2. This part of Canon-Law is inconsistent with the King's Power over Ecclesiastical Persons For it supposeth them liable to the penalty of a Law which he hath no cognisance of and derives no force or authority from him which tends to the diminution of the King's Prerogative Royal and therefore it is nulled by the Stat. 25 H. VIII c. 19. I do very much question whether this ever were any part of the Canon-Law of England notwithstanding the Pope's Decretals i. e. whether these Canons ever received confirmation by the Royal Authority either in Synodal Constitutions or elsewhere And it would be a very hard case if our Kings had not the same Privileges which are allow'd in Popish Countries viz. that nothing passes for Canon-Law within their Territories till it pass the examination of the King's Council and approbation by his Authority Thence in France nothing passes without the King's Pareatis nor in Spain or Flanders without the King of Spain's Placet no nor in the Kingdom of Naples without the Royal Exequatur It is well known that the 6. Book of Decretals was not allowed in France because of the quarrel between the King and Boniface VIII and that even the Council of Trent it self was not allowed by Philip II. till it had been strictly examined by the King's Council that nothing might be allowed which tended to the diminution of his Prerogative How then will men justifie the making that a part of the Canon-Law of England which was repugnant to the Rights of the Crown and deprives the King of the Power of taking advice of those of his Subjects whom he hath summon'd for that end 3. The Sanction of this Law is ceased which was Irregularity And some of our most Learned Iudges have declared that is taken away by the Reformation But in case any be of another opinion I shall urge them with this inconveniency viz. that the great Instrument of discovering the Plot falls under Irregularity by it For it is most certain by the Canon-Law that a man in Orders accusing others of Treason without making his due Protestation in Court is Irregular But if this be now thought unreasonable as it is in the person of an Accuser why should it not be so in the case of Iudges And if the Irregularity be taken away then the Sanction is gone and if the Sanction be taken off in a meer positive Law the force of the Law is gone too And therefore this Canon-Law which forbids Clergy-men being present in Capital Cases and giving Votes therein is wholly taken away by the Reformation And we do not find any mention of it for 80 years and more after the Reformation till about the
it would not amount to so much as a blind Manuscript If it be said that Brompton onely mentions Earls and Barons and Bishops were not then made Barons I answer that Baronies were brought into England by the Conquerour and therefore Brompton must speak improperly and consequently taking it onely for a Title of Honour he means no more then those who were the Great men of that time and so may take in the Bishops too of which more afterwards But there is one thing more in the Laws of H. I. which were onely a restoring K. Edward's Laws that implies that Bishops had then a Power of Judging in Cases Capital which is c. 58. Qui occiderit Episcopum sit in arbitrio Principis Episcoporum He that killed a Bishop was to be left to the Will of the King and the Bishops Which shews that they were to hear and examine the whole Evidence and to give Judgment according to it After the Saxon times the first Precedent produced is of the 33 Edw. I. concerning Nicolas Segrave who was summon'd to appear in Parlament and after his Offences were open'd the King advises onely with the Temporal Lords who declared such a man deserved to lose his Life But is he sure the Bishops were not present No he saith that doth not appear by the Record but it appears clearly they were not to meddle with it How so The King declares that he would have the Advice Comitum Baronum Magnatum aliorum de Consilio suo But is he sure they are not comprehended under Magnates and that there were no Clergy-men at that time of the King's Counsel What thinks he is William de Hamilton Dean of York who was made Lord Chancellour Ian. 16. 33 Edw. I. and this Parlament was held the next Sunday after S. Matthias which was the latter end of February And in the 35. year Ralph de Baldock Bishop of London was made Lord Chancellour and scarce any other but Church-men had that Office all his days The Bishop of Bath and Wells was Chancellour near twenty years of his Reign after him the Bishop of Ely after him the Dean of Chichester and then comes the Dean of York And among the Lords Treasurers of his time were the Archdeacon of Dorset the Abbot of Westminster two Bishops of Bath and Wells whereof one was Treasurer at this time These two I hope we may suppose to be of the King's Counsel in this business who we are certain were both Church-men And if they adjudged Nic. de Segrave worthy of death who so likely to deliver that Judgment as the Chancellour But suppose these were not there whom doth he mean by the Magnates then distinct from Earls and Barons who were of the House of Peers Mr. Selden will inform him if he needs it that there were no Dukes till the II. of Edw. III. nor the Title of Marquess till R. II. nor of Vicount till H. VI. And yet here were Magnates in Parlament who were neither Earls nor Barons and therefore we must in all reason understand the great Church-men who were not so nice of meddling with Criminal Causes in Parlament of the highest nature in the time of Edw. I. As appears by the great Cause so much agitated in Parlament 20 Edw. I. concerning the Earls of Hereford and Gloucester where this latter is charged with raising Arms without Commission and committing Murthers and horrible Devastations in the Lands belonging to the other and the King in Parlament appoints the Bishop of Ely with others to be a Committee for examination of this matter And when they had both submitted to the King's Pleasure we have these remarkable words in the Placita Parlamentaria Per Consilium Archiepiscoporum Episcoporum Comitum Baronum ceterorumque de Consilio suo existentium facere volens in premissis ut voluntas sua justa sit rationabilis prout decet eorumque assensum in premissis petiit Consilium Propter quod habito tractatu diligenti coram ipso Domino Rege Consilio suo super predictis tam ipsi Domino Regi quam ceteris Prelatis Magnatibus singulis de Consilio suo videtur quoad Comit. Gloucestr and then follows the Sentence which I confess did not extend to Life but to a Forfeiture of his Estate to the King However we see hereby that the Bishops were present at all the praeliminary Debates and the King asked their Advice so that they had their Votes in the Sentence whether it should extend to Life or not In the Reign of Edw. II. we meet with a remarkable Precedent in behalf of the Bishops Right which is of a Iudgment reversed made by the Lords without the Prelats viz. the Iudgment against the two Spencers 15 E. II. which Iudgment is said to be passed at Oxford that year but in the Parlament at York the same year it was nulled and made void before the King Lords and Commons and one of the Reasons given for it is because the Lords Spiritual who were Peers assented not to it This Precedent had been cited and allowed by Mr. Pryn in his Plea for the Lords and therefore it is to be wonder'd the Authour of the Letter takes no notice of it But the later Authour of the Discourse about the Bishops Peerage and Iurisdiction owns the truth of the thing saying that the two Iudgments aganst the two Spencers were reversed 15 Edw. II. for this Cause through the great favour and interest they then had at Court But then he thinks he hath taken off the force of this Precedent by saying that 1 Edw. III. c. 1. this Iudgment is declared good and therefore the said Reversal null and void and the two Spencers upon this affirmance of the Iudgment were executed This last Assertion every one knows to be a grievous mistake that hath but looked into our History for the Spencers were executed before Edw. III. came to the Crown the elder in October 19 Edw. II. the other the latter end of November 20 Edw. II. And whereas he insists upon the Affirmance of the Iudgment 1 Edw. III. he had done well to have look'd a little farther and then he would have found that Act also repealed 21 R. II. So that if the Act of 1 Ed. III. which affirms the first Judgment may seem to take off the force of this Precedent the repealing of that Act in the 21 R. II. restores it again and leaves it in its full force Especially if it be considered that the Act of 1 Ed. III. was not barely repealed but declar'd in Parlament to be unlawfull because Ed. II. was living and true King and imprison'd by his Subjects at the time of that very Parlament of 1 Ed. III. Thus far this Precedent is good But I will conceal nothing that may with any colour be objected against it And I cannot deny but what the Authour of the Letter objects against the Bishops constituting a Proctor to represent
To conclude this matter whether the Acts of Parlament which contain this declaration of the Peerage of Bishops and their Iurisdiction in Cases of Treason were sufficiently repeal'd or not this solemn Assertion of it in two several Parlaments together with the Petition of the Commons mentioned before are a most clear evidence that in the general Opinion of the King Lords and Commons this Iurisdiction did of right belong to the Bishops And I am sure they are a Demonstration against the Authour of the Peerage his Assertion of a Negative Custome ancient as the Constitution of the Nation that Prelats should not exercise Iurisdiction in Capital Cases For had this been a clear and undoubted Custom from the first original of this Nation it is morally impossible it could have entred into the minds of two Parlaments solemnly to have raised this doubt whether a Judgment given in a case of Treason by the Temporal Lords without the Assent of the Bishops were valid and to have determin'd that it was not when yet there was no manner of reason to imagine that the Bishops ever had any Jurisdiction in such Cases nay when there was an immemorial Custome and Usage to the contrary namely that the Temporal Lords had in all times exercised this Jurisdiction alone and the Bishops had been excluded from any share in it And in the Apology of Adam D'Orleton Bishop of Hereford and after of Winchester for his imprisoning R. de Baldock a great Confident of Hugh Despencer's he declares that the reason why he was carried to Newgate was through the violence of the People although saith he the Parlament then sitting there was no cause of fear but Justice would be done His words are Domino Rege Praelatis Comitibus ac aliis terrae Optimatibus Lundoniae tunc congregatis praesentibus pro Iustitia ibidem in Parlamento convocatis omnibus exhibenda Which shews that the Prelats then did sit in matters of Justice in the House of Lords and in Cases Capital for this R. de Baldock was arraigned at Hereford for the same Crimes that Hugh Despencer was But the main strength of the Cause is supposed to lie in the Precedents produced out of the Rolls of Parlament from the 4 Edw. III. to the 38 H. VI. The force of these Precedents will be better understood if we consider these things I. That many of them are meer Negative Testimonies So 4 Edw. III. at the Trial of Roger Mortimer it is said the Earls Barons and Peers of the Realm were present therefore the Bishops were not 5 Edw. III. onely the Great ones returned therefore the Bishops did not So in the Case of Sir Iohn Grey From whence he inferrs that the Bishops were not to Iudge so much as of a Battery 25 Edw. III. in Sir William Thorp's Case the Grantz de Parlament were asked their advice therefore not the Bishops 1 R. II. in the Case of Weston and Gomenitz the Bishops not mention'd but other Lords Barons and Bannerets Sir Ralph de Ferrer's Case 4 R. II. the Bishops not present because not comprised under les Seigneurs de Parlament The like in Sir Iohn Oldcastle ' s Case 5 H. V. The Question he saith is whether Bishops be comprehended under les Seigneurs de cest present Parlament In the Earl of Devonshire ' s Case 31 H. VI. the strength lies in this that the Peers are onely mention'd and he supposes no man will say the Bishops were his Peers or Lords of the Realm So that here are Eight Precedents that are no more then Negative Testimonies concerning which in general the Authour of the Iurisdiction of the House of Peers asserted hath a good observation viz. That one or two or twenty Precedents in the Negative nay I say more were the number equal as many in the Negative as in the Affirmative yet it could not disprove their Iurisdiction it would onely shew their Lordships were free Agents to doe it or not to doe it as they saw Cause but their Iurisdiction remained entire still to doe it whensoever they would So I say here supposing that the Spiritual Lords were not present in these Cases it onely shews that they were free Agents and might withdraw at some times and be present at others which cannot overthrow their Right for these Reasons 1. Several of his Negative Precedents if they prove any thing prove the Bishops were not there when he confesses they might have been there As 1. In Cases of Misdemeanours At the Trial of Sir Iohn de Lee 42 Ed. III. being charged with several Misdemeanours the Record saith the Prelats were present 50 Edw. III. Several persons were accused by the Commons for Misdemeanours and the Bishops he confesseth were present as Rich Lions Iohn Lord Latimer William Ellis Iohn Peecher Lord Iohn Nevil at all these Trials the Bishops saith he were present and no body says but they might So in the Case of Alice Perrers 50 Edw. III. the Record saith the Prelats were present and gave Iudgment as to Banishment and Forfeiture of her Estate 10 R. II. Mich. de la Pool Lord Chancellour was accused by the Commons for several Misdemeanours before the King Prelats and the Lords Here he yields the Prelats were Iudges of Misdemeanours together with other Lords And yet if several of his Negative Precedents do prove any thing they prove too much viz. that the Bishops ought not to be present at the Trial of Misdemeanours For he saith the Bishops were not present at the Trial of Weston and Gomenitz 1 R. II. nor at the Trial of the Bishop of Norwich 7 R. II. nor at such Iudgments as that of Sir William de Thorp 25 Edw. III. who was condemned for Bribery and yet he yields they were at the Trial of Mich. de la Pool 10 R. II. But if they ought not to be present at those of 25 Ed. III. and 1 R. II. and 7 R. II. neither ought they to have been present at the Trial of Mich. de la Pool Either therefore his argument doth not prove they were not present at the former being onely from general words or they ought not to have been present at the latter which he confesses they were This will best appear by comparing the Cases together 1 R. II. the Commons deliver in a Schedule to the Lords of their Demands before they would proceed to a Subsidy among which one was That all such who without cause had lost or given up any Castle or Town or Fortress to the dishonour of the King or dammage of the People may be put to their Answer before the Lords and Commons that Parlament Here was no particular Impeachment of these Persons but upon this the Lords sent for these two Persons who were Prisoners in the Tower upon this account and the Charge against them was delivering two Towns in Flanders without Commission Weston made a long and plausible Defence to which no
Nobles Vt Episcopi Abbates Comites potentiores quique si causam inter se habuerint ac se pacificare noluerint ad nostram jubeantur venire praesentiam neque illorum contentio aliubi judicetur But in this Court they challenged that as their privilege to be tried by their Peers who were called Pares Curiae So the Emperour Sigismund in his Protestation before the States of the Empire Cùm secundùm juris communis dispositionem nec non usum morem stylum consuetudinem sacri Romani Imperii feudalis contentio per Dominum feudi ac Pares Curiae terminanda sit c. And again nisi Parium nostrae Curiae arbitrio So likewise in France as Tilius saith Haec judiciorum ratio ut de causis feudalibus judicent Feudales Pares in Gallia est perantiqua So in Fulbertus one Count sends word to another that their Cause should not be determin'd nisi in Conventu Parium suorum And many other examples might be produced but these are sufficient to make us understand the true Original of this Right of Peerage which was from the Feodal Laws and all those who held of the same Lord and by the same Tenure were said to be Pares Peers And therefore since the Bishops in England were Barons by Tenure ever since William I. by consequence they were Peers to other Barons and had the same original Right of Trial by other Barons as their Peers holding by the same Tenure and sitting in the same Court. And thus I hope I have given what that Authour so impatiently desired viz. a rational account of the Trial by Peers and have thereby shewed that this is so far from being any disadvantage to the Bishops Cause that it adds very much to the Iustice of it And that this is so far from being a violation of Magna Charta that it is within the intention and meaning of it I thus prove In the 14. ch of Magna Charta we read Comites Barones non amercientur nisi per Pares suos but by the Common Law the Amerciament of a Bishop is the same with that of a Lay-Baron and therefore in the sense of the Law they are looked on as Peers And all the Parlamentary Barons whether Bishops or Abbots were amerced as Barons Thence 15 Edw. 2. a Writ was directed to the Justices of the Common Pleas that they should not amerce the Abbot of Crowland tanquam Baro because he did not hold per Baroniam aut partem Baroniae And it is confessed by the most learned Lawyers that the Lords Spiritual do enjoy the same legal Privileges in other respects which the Temporal Barons do as in real Actions to have a Knight returned in their Iury as to a day of Grace hunting in the King's Forests Scandalum Magnatum c. Now since the Law of England allows onely a double Parity viz. as to Lords of Parlament and Commons whether Knights Esquires Gentlemen or Yeomen without any consideration of the great inequality of circumstances among them Yeomen having as little sense of Gentility as Commons can have of the privileges of Nobles it is apparent that this Trial by Peers was not founded upon equality of circumstances and that in all reason those who do enjoy the legal Privileges of Peers are to be looked on as such by Magna Charta But the great Objection is that the Lawyers are of another opinion as to this Trial by Peers and not onely the common sort who take all upon Trust which they find in the modern Law-Books but those who have searched most into Antiquity such as Mr. Selden and Sir Edw. Coke To this therefore I answer 1. The Authour of the Peerage c. proves the Bishops are not Peers because not to be tried by Peers This consequence Mr. Selden utterly denies for he saith it is true and plain that the Bishops have been Peers For which he quotes the Bishop of Winchester's Case who was question'd in the King's Bench for leaving the Parlament at Salisbury in the beginning of Ed. III. and he pleaded to the declaration quod ipse est unus e Paribus Regni that he was one of the Peers of the Realm which he saith was allowed in Court And from other Book-cases and Parlament-Rolls he there evidently proves that the Bishops were Peers which he not onely asserts in that confused Rhapsodie which went abroad under his name but in his elaborate Work of the last Edition of his Titles of Honour in which he corrected and left out the false or doubtfull passages of his first Edition And among the rest that passage wherein this Authour triumphs A Bishop shall not be tried by Peers in Capital Crimes The same thing I confess is said in the Privileges of the Baronage which he there calls a point of Common Law as it is distinguished from Acts of Parlament i. e. the custom and practice hath been so And the onely evasion he hath for Magna Charta is this that it is now to be interpreted according to the current practice and not by the literal interpretation of the Words Which is an admirable answer if one well considers it and justifies all violations of Magna Charta if once they obtain and grow into Custom For then no matter for the express words of Magna Charta if the contrary practice hath been received and allowed in legal proceedings This is to doe by Magna Charta as the Papists doe by the Scriptures viz. make it a meer Nose of Wax and say it is to be interpreted according to the Practice of the Church 2. Some things are affirmed about this matter with as great assurance as this is which have not been the constant practice Coke is positive that Bishops are not to be tried by their Peers but so he is in the same page that a Nobleman cannot wave his Trial by his Peers and put himself upon the Trial of the Countrey Whereas it is said in the Record 4 Ed. III. that Thomas Lord Berkely ponit se super Patriam put himself upon his Countrey and was tried by a Jury of 12 Knights And 28 H. VI. the Duke of Suffolk declined the Trial of his Peers and submitted to the King's mercy By which it appears that this was a Privilege which was not to be denied them if they challenged it but at least before 15 Ed. III. they might wave it if they pleased and after that too if they were tried out of Parlament For this Trial by Peers was intended for a security against arbitrary Power in taking away mens Lives and therefore it was allowed at the King's Suit but not at the Suit of the Party But if Bishops were tried out of Parlament and did voluntarily decline the challenge of this Privilege this is no argument at all against their Right of Peerage and so I find some say it was in the Case of Fisher Bishop of
In his absence the People refuse to pay the Taxes and the Lords combine together and all things tend to an open Rebellion His Son Ed. II. calls a Parlament at London and promises a Confirmation of the Charter and that no Taxes should hereafter be raised either on Clergy or Laiety without their consent Which being sent over Edw. I. confirmed it with his own Seal which was all done within the compass of this year But he again ratified it in the Parlament 27 Ed. I. So that nothing was done in that Parlament at S. Edmondsbury but granting a 12 th of the Laiety to the King And when the great Laws were passed the King and Clergy were reconciled and they sate in Parlament And the Archbishop of Canterbury fell into the King's displeasure afterwards for being so active a promoter of them The summe then of this mighty argument is that the Lords and Commons once granted their own Subsidies without the concurrence of the Clergy therefore the Clergy are no essential part of the parlament 3. The Reason assigned in Keilway's Reports why the King may hold a Parlament without the Bishops is very insufficient viz. because they have no place in Parlament by reason of their Spiritualty but by reason of their Temporal possessions The insufficiency of which Reason will appear by two things 1. That it is not true as appears by this that the Clergy are one of the Estates of the Kingdom and all the Estates of the Kingdom must be represented in Parlament 2. Were it true it is no good Reason For why may they be excluded because they sit on the account of their Baronies Where lies the force of this Reason Is it because there will be Number enough without them That was the Rump's Argument against the Secluded Members And I hope the Authour of the Letter will not justify their Cause Or is it because they hold their Baronies by Tenure So did all the ancient Barons of England and why may the King hold his Parlament with the other Barons without the Bishops and not as well with the Bishops without the other Barons Which I do not see how it can be answer'd upon those grounds Suppose the Question had been thus put Since all the ancient Lords of Parlament were Barons by Tenure and Parlaments were held for many Ages without any Barons by Patent or by Writ why may not the King hold his Parlament after the ancient way onely with Barons by Tenure I do not see but as good a Reason may be given for this as that in Keilway's Reports All that I plead for is that our good ancient and legal Constitution of Parlament may not be changed for the sake of any single Precedents and rare Cases and obscure Reports built upon weak and insufficient Reasons For as the Authour of the Letter very well saith Consuetudo Parlamenti est Lex Parlamenti The constant Practice of Parlaments and not one single Instance is the Law of Parlaments And suppose that Precedent of 25 Ed. I. as full as could be wished in this case yet I return the answer of the Authour of the Letter in a like case This is but one single Precedent of a Parlament without Bishops against multitudes wherein they were present it was once so and never but once And can that be thought sufficient to alter and change the constant course and practice of Parlaments which hath been otherwise Nothing now remains but a severe reflexion on the Popish Bishops for opposing the Statute of Provisors and the several good Acts for the Reformation But what this makes against the Votes of Protestant Bishops is hard to understand If he thinks those could not make a good Third Estate in Parlament who took Oaths to the Pope contrary to their Allegeance and the interest of the Nation so do we If he have a great zeal for the Reformation so have all true Members of the Church of England who we doubt not will heartily maintain the Cause of our Church against the Vsurpations of Rome though the heat of others should abate For did not our Protestant Bishops seal the Reformation with their Bloud and defend it by their admirable Writings What Champions hath the Protestant Religion ever had to be compared in all respects with our Cranmer â—idley Iewel Bilson Morton Hall Davenant and many other Bishops of the Church of England And notwithstanding the hard fortune Archbishop Laud had in other respects not to be well understood in the Age he lived in yet his enemies cannot deny his Book to be written with as much strength and judgment against the Church of Rome as any other whatsoever I shall conclude with saying that the Clergy of the Church of England have done incomparably more Service against Popery from the Reformatition to this day then all the other Parties among us put together And that the Papists at this time wish for nothing more then to see men under a pretence of Zeal against Popery to destroy our Church and while they cry up Magna Charta to invade the legal Rights thereof and thereby break the first Chapter of it and from disputing the Bishops presence in Cases Capital to proceed to others and so by degrees to alter the ancient Constitution of our Parlaments which will unavoidably bring Anarchy and Confusion upon us from which as well as Popery Good Lord deliver us THE END Letter p. 1. 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