and is the very and undoubted Heir of this Realm of England c. And 3ly So it is acknowledged in a †Statute of 1 El. c. 3. where 1 Eliz. c. 3 the Lords Spiritual and Temporal and the Commons in that Parliament assembled being said expresly and in terminis to represent the three Estates of the Realm of England did recognize the Queens Majesty to be their True Lawful and undoubted Sovereign Lieg'd Lady and Queen And in a Statute of the 8th year of the said Queens Reign the Bishops and Clergy are declared to be the greatest Estates of the Realm and called the High Estate of Prelacy in another place It may perhaps be thought unnecessary or impertinent to add the Testimony and Authority of a private person to that which hath been said by our Laws and Statutes But being it is such a Person as was accounted for the Oracle of the Law when he served in Parliament his Judgment may be taken for a creditable and sufficient Evidence in the present Case It is the Testimony and Authority of Sir Edward Coke successively Chief Justice of either Bench who in his Book Concerning the Jurisdiction of Courts speaks thus of Parliaments (†) Coke of Parl. fol. 1. This Court saith he consisteth of the Kings Majesty sitting there as in his Royal Politick Capacity and of the Three Estates of the Realm viz. of the Lords Spiritual Archbishops and Bishops who sit there by Succession in respect of their Counties Baronies parcel of their Bishopricks which they hold also in their Politick Capacity and every one of these when any Parliament is to be holden ought ex debito Justitiae to have a Writ of Summons Secondly The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Descent or Creation and likewise every one of these being of full age ought to have a Writ of Summons ex debito Justitiae The Third Estate is the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Burghs All which are respectively Elected by the Shires or Counties Cities and Burroughs by force of the Kings Writ ex debito Justitiae and none of them ought to be omitted And these represent all the Commons of the whole Realm and are trusted for them So He and this is plain enough beyond exception Add hereunto ex abundanti that in all Christian Kingdoms of the Gothick Model there are no more nor fewer than three Estates convented at the Will and Pleasure of the Supreme Prince for their assistance and advice in Affairs of consequence that is to say the Bishops and other Ecclesiastical persons who are alwayes one the Nobles for themselves and the Commissioners for the Commons of their several Provinces for so we find it in the Constitutions of the Roman Empire and the Realms of Spain the Kingdoms of France Poland Hungary together with those of Denmark Sweden and the Realm of Scotland And it were strange if in the Constitution of the English Parliaments or Conventus Ordinum the Bishops should have been left out and none at all elected to present the Clergy But being admitted with the rest in those publick Meetings and being looked on as the First Estate in the Stile of that Court it must needs be that their Exclusion shakes the very Fundamentals of the said Assemblies and makes the whole Body to be maimed and mutilated for want of such a principal Member so necessary to the making up of the whole Compositum But against all this it is objected first that some Acts have passed in Parliament to which the Prelates did not Vote nor could be present in the House when the Bill was passed as in the sentencing to death or mutilation of a guilty Person as doth appear by the Laws and Constitutions recognized at Clarendon and the following practice This hath been touched on before and we told you then that this restraint was laid upon them not by the common Law of England or any Act or Ordinance of the House of Peers by which they were disabled to attend that service It was their own voluntary Act none compelled them to it but only out of a conformity to some former Canons ad Sanctorum Canonum instituta (†) Antiqui Brit. in Gul. Courtney as their own words are by which it was not lawful for the Clergy Men to be either Judges or Assessors in causa sanguinis (*) Constitut Othob Fol. 45. And yet they took such care to preserve their Interest that they did not only give their Proxies for there presenting of their Persons but did put up their protestations with a salvo jure for the preserving of their Rights for the time to come Jure Paritatis interessendi in dicto Parliamento (†) Antiqu. Brit. in Gul. Courtney quoad omnia singula ibi exercendi in omnibus semper salvo as the manner was Examples of which are as full and frequent as their withdrawing themselves on the said occasions But then the main Objection is that as some Acts have passed in Parliament absentibus Prelatis when the Bishops did absent themselves of their own accord so many things have been transacted in the Parliament Excluso Clero when the Clergy had been excluded or put out of the House by some Act or Ordinance A President for this hath been found and published by such as envied that poor remnant of the Churches honour though possibly they will find themselves deceived in their greatest hopes and yet the evidence will not serve to evince the cause The Author of the Pamphlet entituled the Prerogative and practice of Parliaments first lays this Tenet for his ground That many good Acts of Parliament may be made though the Archbishops and Bishops should not consent unto them †which is a point * Printed at Lond 1628 p. 31. that no man doubts of considering how easily their Negative may be over-ruled by the far greater number of the Secular Peers Then he adds that in a Parliament held at St. Edmundsbury 1196. in the Reign of Edward the first a Statute was made by the King the Barons and the Commons excluso Clero and for the proof hereof refers us unto Bishop Jewel Now Bishop Jewill saith indeed That in a Parliament held at St. Edmundsbury by King Edward the first Anno 1296. the Archbishops and Bishops were quite shut forth and yet the Parliament held and good and wholsome Laws were there Enacted the departing or absence of the Lords Spiritual notwithstanding (†) Defence of the Apol. part 6. c. 2. S. 1. In the Records whereof it is written thus Habito Rex cum Baronibus suis Parliamento Clero excluso statutum est c. The King keeping the Parliament with his Barons the Clergy that is to say the Archbishops and Bishops being shut forth it was enacted c. Wherein who doth
of more note and credit than perhaps he was yet he must needs fall short in all respects both for Abilities and Reputation of Chief Justice Coke whose Judgment to the contrary we have seen before But 3ly it runs cross to the ancient practice of the Saxon Times in which the Bishops sate in Parliament as Spiritual Persons without relation to their Temporal Possessions or their Barons Fees as afterwards in the Reign of the Norman Kings And finally admitting that Kilbancies Plea were of weight enough to keep the Bishops down from rising to their place in Parliament it must be strong enough to exclude all the Temporal Lords The Temporal Lords being called to Parliament on no other ground than for the Temporal possessions which they hold by Barony Adeo argumenta ab absurdo petita ineptos habent exitus said Lactantius truly It is the Fate said he of ill chosen Premises that they produce ridiculous and absurd Conclusions There remains one Objection more and indeed the greatest not extant in the Pamphlet before remembred though possibly promoted and occasioned by it that is to say that the Bishops are excluded from their Place and Vote by Act of Prrliament deliberately made and passed by the Kings consent For answer whereunto it will be necessary first to state this Question viz Whether that any two of the the three Estates concurring or agreeing together may conclude any thing which tends to the Subversion of the third Bodinus that renwoned Statesman hath resolved it negatively and determined thus Nihil a duobus ordinibus discerni posse quo uni ex tribus incommodum inferatur c. (†) Bodin de Rep. l. 3. c. 7. That nothing can be done by two of the three Estates to the disprofit of the third in case the point proposed be such as concerns them severally and he resolved thus in favour of the Commons of the Realm of France who were upon the point of being excluded from the Parliament or Convention of the three Estates if he had not notably bestirred himself in their behalf he being then a Delegate or Commissioner for one of the Provinces and by his diligence and care preserved their Interests and to preseve their Interest he insisted cheifly on the antient custom of the Realm of France as also on the Realm of Spain and England and the Roman Empire in each of which it was received for a ruled Case Nihil a duobus ordinibus statui posse quo uni ex tribus prejudicium crearetur That nothing could be done by any of the two Estates unto the prejudice of the third And if it were a ruled Case then in the English Parliaments there is no reason why it should be otherwise in the present times the Equity and Justice of it being still the same and the same reasons for it now as forcible as they could be then Had it been otherwise resolved of in the former ages wherein the Clergy were so prevalent in all publick Counsels how easy a matter had it been for them either by joyning with all the Nobility to exclude the Commons or by joyning with the Commonalty to exclude the Nobles Or having too much Conscience to venture in so great a change and alteration so incompatible Inconsistent with the Constitution of a Parliament how easily might they have suppressed the Potency and impair the Priviledges of either of the other two by by working on the humors or affections of the one to keep down the other Nor doth it help the matter in the least degree to say that the Exclusion of the Bishops from the House of Peers was not done meerly by the procurement of some of the other two Estates but by the Assent of the King of whom the Laws say He can do no wrong and by an Act of Parliament whereof our Lawyers say que nul doit imaginer chose dishonourable that no man is to think (†) Plowden in Commen dishonourable For we know well in what condition the King was when he passed that Act to what extremities he was reduced on what terms he stood how he was forced to withdraw from his City of London to part with his dear Wife and Children and in a word so over-powred by the prevailing Party in the two Houses of Parliament that it was not safe for him as his Case then was to deny them any thing And for the Act of Parliament thus insisted on besides that the Bill had been rejected when it was first brought unto the Lords and that the greater part of the Lords were frighted out of the House when contrary unto the course of Parliament it was brought again it is a point resolved both in Law and Reason that the Parliament can do nothing to the destruction of it self and that such Acts as are under a constraint are not good and valid whereof we have a fair example in the book of Statutes (†) 15 Ed. 3. For whereas the King had granted certain Articles pretended to be granted in the Form of a Statute expresly contrary to the Laws of the Realm and his own Prerogative and Rights Royal mark it for this is just the case which he had yeilded to eschew the dangers which by denying of the same were like to follow in the same Parliament it was repealed in these following words It seemed good to the said Earles Barons and other wise men that since the Statute did not proceed of our Free Will the same be void and ought not to have the name nor strength of a Statute and therefore by their Counsel and Assent we have decreed the said Statute to be void c. Or if it should not be repealed in a Formal Manner yet is this Act however gotten void in effect already by a former Statute in which it was enacted in full Parliament and at the self same place where this Act was gained That the Great Charter by which and many other Titles the Bishops held their place in Parliament should be kept in all points and if any Statute be made to the contrary it shall be held for none (*) 42 Ed. 3. c. 6. 1. More Arguments than these against the Bishops Place and Vote in Parliament I have no where found And these being answered and refelled I hope the point in question hath been fairly proved viz. That the Bishops make a Fundamental and Essential part of our English Parliaments AN ANSWER TO THE GENTLEMAN'S Letter to his Friend SHEWING THAT BISHOPS MAY BE JUDGES IN Causes Capital PSAL. 82. 1. Deus stat in Congregatione Dei in medio Deorum judicat LONDON Printed by Tho. Braddyll for Robert Clavell at the Peacock in S. Pauls Church-Yard 1680. AN ANSWER TO THE GENTLEMAN's Letter to his Firend SHEWING THAT BISHOPS MAY BE JUDGES IN CAUSES CAPITAL SIR I Thank you for the Gentleman's Letter you sent me touching the Right of Bishops sitting as Judges in Cases Capital This Order of Men is not Sacred enough it seems
in the Constitution to secure it against the Iniquity of these last Times Attempts of Rage and Extirpation Not to mention Martin Mar-Prelates nor others of former Times within our own Memory Mr. Prynn led up the Van against them 1640. in a Book of this Title viz. Lord-Bishops none of the Lords Bishops After their Divine or Apostolical Constitution they began to question their Right to Sit in Parliament This occasioned that Quodlibetical Question Whether the Bishops make a Fundamental and Essential part of the English Parliament The Rational and Solid Answer to which Question was Printed in 1661 and now Reprinted as then put forth at first for the Information of some the Confirmation of others and the satisfaction of all The Gentleman who wrote this Letter seems to grant the Bishops a large share of Power within this Kingdom yet as to Secular Matters he does insinuate some kind of Prohibition they are supposed to lie under though his Arguments are very inconsequent to prove it The Rescript of Honorius he saith Theodosius the Decree of Justinian forbid them to have to do in Secular Matters Therefore the Kings of England who are of another Mind upon good experience of their judgment and fidelity may not admit them to have any Communion with Publick Functions Nor is the Argument less inconsequent which the Gentleman insinuates from the Apostles Declaration and Practice The Argument must be this A few men are appointed by our Lord to propagate the Gospel and plant the Christian Church all the world over and they think it unreasonable they should neglect this generous Employment impos'd upon them immediately from Heaven to serve Tables that is to relieve the Temporal Needs of indigent Disciples therefore when the Church is generally established Bishops setled in every Diocess and Ministers in every Parish it is equally unreasonable that the King should intrust any of the Clergy with any Secular Employments But after these By-blows this Gentleman tells us This is none of his business which he had therefore done better to have let alone 'T is the Critical point he stands upon which he calls Vexata Quaestio what is to be done in Parliament that is in their Judicial way upon Trials not in their Legislative Capacity passing Acts of Attainder in which the Gentleman is pleased to confess I know that Bishops have born a part but saith he that is not now the Question but only this Whether the Lords Spiritual have a Right to stay and sit in Court till the Court proceeds to the Vote of Guilty or Not Guilty This Gentleman concludes They ought not But the Question truly and precisely stated is only this Whether of Right they may or may not And having diligently examined what hath been said on both sides as the Gentleman hath advised me I profess to differ from him finding no sufficient Reason to change my Opinion which is for the Affirmative But the better to carry on his Negative this Gentleman falls upon Two Questions more which may be thought preliminary to this other The First is touching the Peerage of the Lords Spiritual The Second Whether they make a Third Estate in Parliament These two fall in collaterally and must be considered before we fall upon his main Battalia mustered up for the Defence of the Opinion we oppugn 1. That the Bishops make a Third Estate in Parliament there is very much alledged in the Treatise forementioned from the Examples of all Christian Kingdoms of the Gothick Model from Titus Livius Sir Edward Cooke the Parliament-Rolls of King Richard the Third and the Recognition of the Lords Spiritual and Temporal with the Commons 1 Eliz. 3. 8. and what is argued from thence p. 16 17. of the Rebels Plea Printed 1660. to which I shall add that Mr. Sheppard in his Grand Abridgment and the Word Parliament tells us That the Parliament in England is the Assembly of the King and the Three Estates of the Realm viz. the Lords Spiritual the Lords Temporal and the Commons And this Gentleman does acknowledge p. 86 that the Subjects of England are divided into Three Estates The Nobility the Clergy and the Commonalty These he saith are the several Estates of the Kingdom But if the Bishops be not One of these Estates then one of the Three Estates of the Kingdom is not Represented at all in Parliament for he saith p. 88. that the Convocation where all the Clergy are present in their Persons or their Representatives is no part of the Parliament which is absurd The Authority of Mr. Selden to the contraay is most consonant to Reason and the Practice at the Ratification of the Peace with the French King 9 H. 5. 11 H. 7. are further Confirmations of it But this Gentleman saith p. 88. The Three Estates of Parliament are clean another thing each must have a Negative Voice to all that passeth there I might take notice by the By of his Mistake herein for there is nothing passeth where use is made of the Negative Voice but I must observe that this is a cleanly begging of the Question As for the Bishops being intermingled with the Earls and Barons and so if they be an Estate it is an Estate within an Estate like a Nest of Boxes one within another there is no absurdity at all in it for when Christianity had prevail'd not to recur to the time when all the Members of Parliament sate in one House together the Piety and Prudence of those times thought the State of the Church with all its Rights and Interest safe enough among the Nobility without any peculiar Negative voice to secure it and yet the Bishops Right of Protesting upon just occasion serves very well instead of such a Negative But this Gentleman thinks it would be a great Disparagement to the Peerage of England that Two Estates must be put together to keep the Ballance even with the House of Commons who are but One Estate and that their Two should signifie no more than that One taking no notice how much more they signifie though they do very much To this I answer in the general That Numbers of persons add no Right or Priviledge to a Politick Estate The Peerage of England had the same Power and Dignity when they were not half so Numerous But to be more particular Experience tells us and we have an Instance too fresh in memory That neither the Bishops Protestation nor the Temporal Lords Negative Voice nor the Kings Le Roy S'avisera are sufficient to hold the Ballance even when the Commons depart from the Principles of Honour Justice and Loyalty And as they never pretended to be infallible so have they not always been observed to be so calm and steddy in their Proceedings as becomes the Wisdom and Honour of so Grave and Solemn a Convention In 50 E. 3. they desired that the Lord Latimer the King's Chamberlain for pretended Oppression might lose all his Offices and be no longer of