Peer in Parliament Of what consideration decency can be Chap. XII Their Sitting in Judgment not so much against the reason of the Canon as their assent to Bills of Attainder which was never condemned And the Nature of an Act of Attainder Chap. XIII Over-ruling a Plea of pardon doth not condemn the Criminal and therefore they may judge of such Plea Though they are not to be present at the making of a Judgment of Condemnation Quousque perveniatur in Judicio further explain'd And that which follows upon another thing is not always caus'd by it XIV Bishops one of the three Estates of all the Realms of Christian Europe And how they came to be advanc't to that dignity and trust The convenience of their not being divided in a distinct house from Lay Peers They cannot be detruded from that dignity no more than the Government can be chang'd which no Law can do Six Bishops of the twelve Peers of France and their Aristocratical power That all Governments are lawful that are lawfully establish't Chap. XV. William the Conqueror agreeable to all the Princes of that time put Bishops under Tenure by Baronies and all Baronies at that time feudal with the reason of his Policy and the inconvenience it produced Of the Curia Regis which consisted of the Baronage in which the Capitalis Justitiarius Angliae did preside Of the administration of Justice in that time And that the Baronage of England upon special Writs of Summons became a Parliament An account how all our present Courts derived out of it Of the Court of the High Steward and of the Court of Chancery and the reasons of its rise and growth and how inconvenient it is And how we recovered out of the inconveniencies of that Constitution of Parliament by representatives in the time of H. 3. And that this it being allowed can give no countenance to those that are desirous to change our present and better Constitution That in all this Change the Bishops suffered no diminuion But when the ancient reason of Baronage failed they are after to be considered under the new reason of Baronage Chap. XVI The remembrance of the old reason of Baronage became a prejudice in the Judges upon which T. Furnival Plea allowed that he held not per Baroniam An Entail of Baronies with lands after allowed The reason of Nobility changed and no man now Noble by his Acres Many men Summoned to Parliament and yet not Noble No prejudice to the immovable Right of Bishops to have Summons to Parliament and that objection answered Kings may erect new successive Nobility in Clergy-men That Bishops are of a distinct sort of Nobility and under that and other reasons they are considered as a distinct State Chap. XVII Of the three States which make the Government under the King that he is none of them The Objections against this answered And the reasons of their being distinct and the several Offices and Expectances in the Government that make them so That the several Orders of Peers make but one Baronage and in that there is a great trust and honour greater belongs to Bishops than Lay Barons in our present constitution Their Character and qualifications commend them to the highest trust and render them fittest Judges Chap. XVIII The Reason of Tryals per Pares and that the Bishops are competent upon that reason in Parliament though not so fit to be of the High Stewards Court The Law of M. Charta not Lex scripta Bishops ought to be tryed by their Peers How that Right came to be discontinued and that in Parliament they ought still to be Tryed by their Peers Chap. XIX The unreasonableness of maintaining an Opinion upon a single Objection against a matter evidently proved that Questions of this nature should be considered with candor and not opposed with meer possibilities Chap. XX. Several alterations in the Government since the Conquest that the Alteration in what concerns the Baronage the Bishops Right is to be considered in analogy to the Change That changes of Government for the better cannot again be altered but our zeal is required to defend the Government made better and they deserve ill that go about to reduce us to our old mischiefs by their Antiquity Chap. XXI The advantage of the Change in the constitution of our Parliament in the change of granting Subsidies And how the Lords are bound by a Bill of Aids Chap. XXII The beneficial Change that hath been made by the clause praemunientes in the Bishops Writs of Summons to Parliament which gives Authority for the Convocation By this we are discharged of Provincial Councils and Canons of the Church kept distinct from Laws of the State The Church kept in peace from rending Questions and Religion is conducted not by Laws but by Canons not force but perswasion which commends our Episcopal Government Chap. XXIII The danger we avoided of having our Baronage of England ambulatory and fixing of it in Families and an indefectible Succession in which the Right of the Peer-age of Bishops is established Chap. XXIV The advantages the Adversaries seek to their cause by aspersing the Bishops Remembrance of all the faults in all times committed by any of the Order that many of those faults are principally due to the Papal Vsurpation and the neglect of Kings to defend the Rights of their own Bishops and are all the Vitia Temporum the times of Popery Chap. XXV How inculpably our Bishops have been in administration of their Ecclesiastical Authority how faithful in their Temporal Trust and Asserters of the Rights of the people They have not been irreverent to Kings nor have they encroached any power in Civil matters in ordine ad spiritualia That the power that they challenge is meerly spiritual and they challenge nothing of Divine Right but the exercise of their Ministry which they cannot lay aside Mr. Selden's Arguments for Erastianism answered The Church of England doth not tye her self always to think and enjoyn as she doth at present The moderation of the Church in opinions her apprehensions of Schism just and great They are not answerable for the ejectment of the Nonconformists nor for the scandalous Lives of their Clerks nor their Chancellors nor abuse of Excommunications Why matters of Incontinency are committed to their censures They have exercised the power of the Keys against the Infractors of M. Charta and how it hath been guarded with the denunciations of the Church we have reason to expect as much from our Bishops to support the Government of Laws Chap. XXVI We have as much reason that the Protestant Bishops should be as constant to the Reformed Religion as Popish Bishops obstinate for Popery An Apology for their Vnanimity in Voting Their dependance not so great upon the Crown as to oblige them to disserve their Prince The King bestows nothing upon them but what is the Churches the great expectation the Government hath of their fidelity and performances That which advanced them must
to Persons or Territories by the Civil Authority Their Convocations are convened by the King 's Writ they debate nothing without his Leave Their Results become Canons and receive Sanction by the Royal Authority and do not pretend to infringe any Temporal or Civil Right or Law And besides their Convocations are always to be held sittting Parliaments and no longer not at any other times And whatever they debate or resolve is under the Observation of Parliament Nequid detrimenti capiat Respublica The Bishops make no Laws about Religion apart by themselves neither have they any Negative against any that are propounded and therefore are not answerable for any that are made or not made They have not the definition of Heresie but the Law hath declared it since the Reformation And the Writ De Heretico comburendo is since abrogated by the Christian Temper of a Parliament principally consisting of such Members that were conformable to the Institutions of the Church of England that is the legal Establishments of this our Christian Commonwealth The Church of England is no more her own present Establishments than the present thoughts of any man is the man himself as the thoughts of a man are more refined and unreprovable as the man grows wiser so do the Laws and Constitutions the Orders and Rules of a Church or Christian Republick alter amend and improve as the Wisdom and Virtue Religion and Devotion of the Government and the principal parts thereof in Church or State increaseth or advanceth Our Bishops have had and that with the greatest reason greater apprehensions of Schism and Separation than of Errors in Opinion which occasioned it as of worse importance to the Christian Faith than the Errors themselves Besides that a man cannot help being mistaken in many things but it is in every mans power to be modest and peaceable and wise to sobriety and hold the unity of the faith in the bond of peace and charity and not to revile and deprave that which hath the publick approbation though he cannot thereto fully assent It is great iniquity and unrighteousness to pretend to Liberty of Conscience as their right and in the mean time not to tolerate the publick appointments and what is authoritatively allowed and approved If Controvertible Opinions are allowed a Warrant for making a Sect and separate Communion and Churches are denominated and distinguished by them and consequently such Opinions are advanced unduly unto the same necessity of belief as Articles of Faith what will become of the Christian Verity where will it be recognized and purely professed how distinguished how understood how ascertained amidst the number of Opinions contended for by the several dogmatizing Sectaries with more zele than the undoubted and uncontrovertible Articles of Faith Nay I will adventure to say further on their behalf that Schismatical Separations would not offend them so little do they affect to be Magisterial but for that if this Disease should grow Epidemical there would be no such thing as a Christian Church and the Christian Religion would perish from the earth without a miracle It is onely designed by our Church that those whose Subscriptions are required should thereby onely signifie their allowance of the Liturgy and Articles as fit to be used and allowable What Plea then can our Separatists have for a Toleration for themselves who by their Separation seem unwilling to tolerate the publick Establishment either from our Governours Civil or Ecclesiastical or from one another in their divided ways To reform or change to these mens pleasures is impossible for that they cannot they positively differing from each other be all pleased in any one possible Establishment Besides that untill we cease to be Schismaticks and to be of separate and divided Communions upon the score of any dislike or but probable exception to what is publickly received or allowed the altering any thing for our satisfaction will be but applying the Cure to the Symptoms a cutting off one head of the Hydra By this way to effect an union is as impossible as it would be to empty the Ocean without stopping the cur-of the Rivers The Bishops are as all men by how much they are better learned are of the greatest Moderation in Opinions and can tell how duely to rate and value them according to the Prejudice or Advantage they do to the Ends of our Religon those several Opinions that have been contended with furious and rending Zeal in the several Ages of the Church to the Scandal of that peaceable Institution They can have a better Opinion of that man who hath unhappily entertained the less probable side of the Questions controverted if he opines with Modesty than they have of him that holds the most probable part thereof with a Sectary-Zeal Seperation from Contempt and Disdain of those of a different persuasion Their Moderation is known unto all men of it their Opposers have had very sensible Experience the several Dissenters cannot disown it but must confess that they have had severally kinder Usage from the Episcopal Men than their several Parties have from one another By their Learning Wisdom and Moderation which is most eminently known and observed in many of them and hath recommended them to the highest Esteem they must be allowed their Enemies being Judges to be the fittest Arbiters of the Controversies and the most likely and probable Procurers of the Peace of Christendome All the Dissenting Parties have reason to look upon them as their Common Sanctuary and Defence against the Outrages of each other But in this they must be pardoned if they being under a Law or Rule of their Superiors made as they think in a matter lawful act accordingly and do not disobey for their sake who think otherwise though in the mean time they pity their Scruples Indeed the Terms of the Nonconforming Ministers have been made hard upon them But that hath been from Reasons of State which the late unhappy Wars occasioned and they were ejected out of their Livings by Statute-Law And on the other side it is true that many men not to fit for that Holy Function have enjoyed Church Benefices but neither this can the Bishops help For they cannot reject a Clerk presented to a Benefice or eject him but as the Law will so sacred is the Right of Patronage and so fixed by the Law are Ministers in their Livings which is not Nice in the manners of Clerks and the Bishops cannot be severer than the Laws So that if some men not of the most unblamable conversations have kept their Livings and some of very unexceptionable Lives have been ejected The unhappy Nonconformists are directed where to make their Complaint But as there is little Cause of complaint on this part of the Episcopal Authority and function viz. Their Superintendency over the Pastors of their Dioceses So we shall observe how they have behaved themselves in the Exercise of the Power of the Keys For what is done therein by their Chancellors
the Church of Rome the source whence all our divisions spring To which we owe the first separations that were made in our Chutch which appears by undenyable Records published by Dr. Stillingfleet in his Book called the Unreasonableness of Separation How they have propagated multiplyed exasperated and promoted our divisions to tell you would make a Volume besides no Protestant is now to know it I have only this further to observe that the Church of Rome at first only design'd by the Arts of dividing us and breaking us into several Communions to disgrace the Reformation to make our Spiritual Governors Pastors and Teachers lose their Authority with the People To deprave our Religion with licentious opiniastre and absurd dogmatizing to load our departure from that Church with the mischief of innumerable Schismes and to make us reconcileable to the Tyranny and impostures of that Church from the vain opinions and licentiousness of the Sectaries who have been seduced managed inflamed and made wild by their imposturous Arts and Deceits This I believe was only at first designed by the Priests but now they apparently design by the Dissenters to destroy the Church or by the Church to destroy the Dissenters that they more easily come to rights with her They imagine the Dissenters are very numerous and that the Nation is fallen into two great parts that the Dissenters numbers are vast But God be thanked they neither make our grand Jury men nor the common Halls of the City of London for choosing the Lord Majors or Sheriffs And I challeng any man to give me a List of all the Names of Dissenters that were of the House of Commons in our two last Parliaments I am sure they will not make an Number but they reckon the Numbers of Dissenters by the care they have taken to encrease it They used great art to continue the Separation when His Majesty was restored Since Laws have been made to raise the Animosities of Dissenters but scarce ever executed for repressing them If for any reason of state the Laws here and there and for a spurt have been exacted secret comforts and supports have been given to their Preachers of greatest Authority with them And when they have seem'd to preach with the courage and zeal of confessors to their Auditors they have been assured not only of indemnity but have received rewards How prosperously did the work of separation go on by these Councils of our Achtlophels by these means they concluded it would be heightned that it would admit of no terms of an accommodation How insolent were their Harangues more taking with their deluded Auditors while they apprehended them acted with an invincible zeal of Religion What Animations did their People receive to defy the Church and her Authority when their Preachers despised Fines and Imprisonment to their seeming out of pure zeal against her Order It is well known several of them were in Pension and no men have been better received by the D. than J. J. J. O. E. B. and W. P. c. Ringleaders of the Separation Besides that Popish Priests have been taken and executed for preaching in Field meetings in Scotland They have raised there a sort of Euthusiasts more wild and mischievous than any we had amongst us in the times of licentiousness They have had notwithstanding great Lords that have patronis'd them who were always well received in their applications in their favor at St. James's and several of their Preachers who were not Priests have received exhibitions and pensions for their Encouragement It was necessary that the Fanaticism planted in Scotland should be very loathsome to make that Nation abate any of their zeal for the Protestant Religion or to neglect their fears and apprehensions of Popery or to make the least step towards it Awake you drowsie Sleepers open your Eyes the Sun is risen there is light enough to fill your sight if you would look up and were wiling to see Could any thing be conceiv'd more apt to bring the Church of England into contempt and scorn with those of the separation then to have Laws made in her favor penal Laws which are thought to be of her procurement and not executed Vain and Ineffective anger is always returned with contumely scorn and hatred Cupide conculcatur nimis ante metitum And so it hath succeeded in this case nothing hath been more passable than the basest Scurrility upon the Church the Bishops and the Clergy The Atheist the impious and profane have listed themselves Fanaticks that they might have the greater Liberty of reviling Religion it self with impunity Consider how the Church of England is used which is truly the Bulwark of the Protestant Religion About ten years since they designed to slight her works and demolish her by a general indulgence and toleration And now they intend to destroy her Garrison those that can and will defend her against Popery By one of their Pamphleteers the separation is called an usurpation upon the Government and all the Dissenters as such only Rebels and Traitors to the King The same Gentleman would perswade the World that the ready way to extirpate Popery is by rooting out of Fanaticism whither saith he the Fanaticks bring on the Jesuits plot or the Jesuits the Fanaticks is not a farthing matter But in the mean time that the Papists have a plot on foot needs no proof That any sort of Protestants are engaged in a plot cannot be proved But all honest Protestants of the Church of England think it more righteous to punish the Deceivers and pitty the Deceived and wish them only cut off that make divisions It is one way of curing or rather of extinguishing the disease to Kill the Patient But no Prince did ever yet provide Cut-Throats for his People in epidemical diseases instead of Physitians But if the Papists could arm other Protestants against Dissenters there would be the less work for Papists to do And they will be sure to requite them for this favor with Polyphemus his curtesie For to give the Devil his due they are not themselves so fond of Massacres and destruction of Hereticks as to envy that employment to any other that will undertake it They had rather any other party of Men should do the Drudgery for them Besides what one sort of Protestants shall execute upon another will give them better pretence and more hardiness if they wanted either Pretence or Resolution to destroy such as they call Hereticks to execute the like destruction upon the Church Protestants who certainly differ more from the Papists then the Separatists do from our Church Sure there is good Reason they should be more sharply treated by the Papists than they treated the Dissenters And if they are in such sort us'd they must lay their hands upon their mouths and be silent before their Persecutors and acknowledg the righteous judgment of God in bringing such tribulation upon them from their Enemies wherewith they troubled their own Brethren
either not against us or for us And all along observe the candor and integrity of the Author We shall further shew how absurd his Reasonings are to make those Precedents to conclude any thing for his purpose We will also with the clearest demonstration prove That the Assize of Clarendon establisheth the Bishops Authority and right to judge in capital Causes in Parliament And likewise that the protestation made by the Bishops 11. R. 2. is a most solemn Recognition of their Right that the Bishops have sate in Judgment in the greatest capital Causes in Parliament that ever happened that this their Authority hath been exercised in their own Persons and by their Proxies and recognized by Parliaments and other great Courts of Judicature but never before this time brought into Question That no Canon could lessen the Right at most it is but a Councel for their guidance in the exercise of their Authority which they might observe as they please That the Popes Canon Law was never received into England that prohibits Bishops to judge in capital Causes That the Bishops have declined to assist in pronounceing the Sentence of death sometimes as undecent for their Order but notwithstanding and without being contrary to the example and practice of their Predecessors the Bishops may judge upon the Plea of the Earl of Danby's Pardon For that if they do judge the Pardon not good the Earl is not therefore to be condemned And for the better clearing the Bishops Right and for the establishing the Government we shall prove that the Spiritual Lords are Peers of the Realm and one of the three States and an essential part of the Government which no legal power can charge or alter Lastly we shall repel the calumnies of the Adversaries in this cause by which they indeavour to render the Prelates unworthy of their Right and to put them amongst the prodigi furiosi that are scarce allowed to be Proprietors of their own And conclude our Discourse with a just Apology for the Lords the Bishops CHAP. II. ANd First I begin with the Octavo which in the Introduction to his Precedents saith That he will not meddle with the General Question How far forth Clergy-men in Orders are forbidden having any thing to do with secular matters nor what in that particular the Imperial Law requires as that Rescript of the Emperor Honorous and Theodosius which Enacts that Clergy-men shall have no communion with publick Functions or things appertaining to the Court or the Decree of Justinian That Bishops should not take upon them so much as the Oversight of an Orphan nor the proving of Wills saying It was a filthy thing crept in amongst them which appertained to the Master of his Revenue Nor what our common Law of England seems to allow or disallow having provided a special Writ in the Register upon occasion of a Master of an Hospital being it seems a Clergy-man and chosen an Officer in a Mannor to which that Hospital did belong saying it was Contra Legem consuetudinem Regni non consonum It was contrary to the Law and Custom of the Kingdom and not agreeable to reason That he who had cure of Souls and should spend his time in Prayer and Church duties should be made to attend upon Secular imployments I meddle not neither saith he with what seems to be the Divine Law as having been the practice of the Apostles and by them declared to be grounded upon reason and to be what in reason ought to be which was this That they should not leave the word of God and serve Tables though that was a Church Office and yet they say it is not reason we should do that for their work was the Ministry of the Word and Prayer much less then were they to be employed in secular affairs This with great skill he prefixes to his precedents which make the Law of Parliament which is the Law of the Land he saith and after he had said all that he could to make the very pretence it self unlawful and to perswade the shutting of the Bishops out of the House for altogether he subjoyns his Precedents he thought certainly that when he had placed the Precedents in such a light they must look all of that colour and have that appearance which he indeavours too by other arts to give them But we shall spoil his design in a very few words which the observant Reader will apprehend how pertinent it is and satisfactory to what is objected in the recited Preface though we do not for brevity sake apply our answer to every particular of his Discourse We say therefore we can't think the Clergy fit for Proctors Publick Notaries and Scriveners or Ushers of Court or other subservient offices nor fit to make Constables Tythingmen and Scavengers nor to keep watch and ward and to be a Hayward or Bayliff of his Worships Mannors and Townships Or that they should be Merchants or Farmers or interpose in a-any Secular affairs for gain That it was declined by the Pastors and Teachers of the Church as an indignity for them to administer to Tables i. e. to the Provisions of Charity in their Church-feast and they ought to keep far off from a suspition of filthy Lucre nay not to preach principally for gain or make a gain of Godliness By the Imperial Law accordingly they were discharged from the trouble of being Tutors and Curators of Orphans nay where the Law had designed them that care by their relation to the Orphans out of respect to their dignity they were discharged by the Law that they might not incur unkindness to the neglect of their relations nor yet be incumbred with such private attendances to divert them from their great Cure Though the Presbytery might be admitted ad Tutelam Legitimam by their own consent and this was made Law by Justinian Cod. L. 1. By which Law it appears not a Judgment of Incompetency in Clergy-men to intermedle in Secular affairs but an honourable exemption of the Bishops from such private concernments was the reason of that Law It was further provided by a Law of Justinian Cod. L. 1. That Priests should not be made of Court-Officers but those that were so made might continue the reason of the Law is contained in it because that such a man was Enutritus in Executionibus vehementibus seu asperis his quae ex ea re accidunt peccatis Non utique aequum fuerit modo quidem illico esse Taxeatam Buleatam facere omnium acerbissima mox autem Sacerdotem ordinari humanitate innocentia exponentem dogmata In all this the honour of the Church was consulted But business of weight and trust was committed to them Valent. Valens appointed Bishops to set the price of goods sold with this reason Negotiatores ne modum mercandi videantur excedere Episcopi Christiani quibus verus cultus est adjuvare pauperes provideant Justin 79. Novel submits Monks to
not pass the Limits of our own Arguments otherwise we had much to say against the Authority of that Sory as it is by the Octavo mentioned But to this day neither in Record or History have we heard of any the least pretence of any special abatement made of any service due by the Tenures by Barony to any Bishops or other Spiritual Baron by the Conquerour at the time of the creating those Tenures neither did the Bishops when they would fain have been excused from judging in Blood ever pretend to it or make any such excuse that their Tenures did not oblige them thereto They have ever been esteemed to have power of Judgment in Capital Causes in Parliament and in a long tract of time it hath been several ways used and acknowledged Their Right is so far from being fore-judged that it never till of late was brought in question They have pretended sometimes that they ought not to use that Right in observation of the Canon Law and have made their protestation according whether of necessity or choice shall be considered They were upon the score of the Canon Law indulged in the Satute of Clarendon from being present and assisting in giving the Judgment of Death and mutilation of Limb yet their Right was not by that Statute destroyed or hurt it put them only at liberty to use it or not but put no obligation or legal restraint upon them not to use it That Law was in favour of their Liberty not a Restraint upon their Right The words of that Law that concern this question we shall here set down Archiepiscopi Episcopi universae personae Regni qui de Rege tenent in capite habeant possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis ministris Regis sequantur faciant omnes consuetudines regias sicut caeteri Barones debent interesse judiciis Curiae quousque perveniatur ad diminutionem membrorum vel ad mortem Whether these words are words of Liberty or Restraint of prohibition or indulgence and favour as also how far this favour Liberty or Indulgence did extend will appear clearly by the occasion of the Law and the History of those times for whose sake it was made and upon what inducements and how far they did use their Liberty afterwards It is notorious that the design and endeavour of some Bishops of that age and before from the days of Gregory the seventh was to establish an Ecclesiastical Monarchy in the Pope to make themselves the Grandees of another Kingdom they endeavoured to exempt themselves from all Civil subjection as also from being any part of the Civil Government over which their Church Empire was to rule and domineer They looked upon their Baronies to be marks of Slavery and inconsistent with their designed Church-empire by which they were kept in subjection to the Government and made a part of it which was designed by the Conquerour but most sharply complained of as may be seen in Mat. Paris Rex Willielmus pessimo usus consilio Episcopatus sub servitute statuit militari rotulas hujus Ecclesiasticae servitutis ponens in Thesauris multos viros Ecclesiasticos huic constitutioni pessimae reluctantes à Regno fugavit If the Bishops then had been ambitious and desirous that they might be as the rest of the Barons were Judges in the Kings Court then it is true that the word quousque must be a word of Exclusion and that their pretence of judging was fore-closed to all matters under the quousque For if I ask a thing which is not my right that which is not granted is denyed and by such denyall in case of a Law declared the more unlawful But this cannot possibly be for they were already Barons and Judges as other Barons This they reckon'd a servitude and was matter of grievance and complaint But the Assise of Clarendon did proceed from the King for the asserting his Soveraign Power to resist the design of the Papal Monarchy and to oblige the Bishops to continue part of the Government and to tye them to the duty of their Tenures Gervasius tells us Col. 1386. that the Bishops did not know what the Consuetudines Ecclesiasticae in the Assise of Clarendon were but they imagined them to be evil because the King did so much insist upon them Nesciebant saith he speaking of the Bishops hujusque quae essent illae consuetudines sed pravas esse suspicabantur eo quod tantâ instantiâ peterentur But the King commanded as followeth sapientiâ provectiores ite disquirite Avi mei consuetudines ut in scriptum redactae deducantur in medium publice recenseantur quas cum seorsum veteres actus pravitates so he calls the Statutes of Clarendon in scripta reduxissent haec tandem scripta modo Chirographi protulerunt which the Arch-Bishop was required to seal as the custom then was in passing of Laws It is likewise evident in the very Assise of Clarendon that the Bishops were then Barons and ought to do the office of a Baron and were by being Barons Judges and ought interesse sicut caeteri Barones Judiciis Curiae Domini Regis But how far they should by that Statute be bound hereafter this Law was to determine In consequence the Quousque is but a Clause of Liberty at most and the matter under it left to choice A priviledge indeed the Bishops might hereby obtain to judge or not to judge in Causes of blood which they used in all after-times as they pleased as they did more or less regard the Canons as either they did or were thought to intend No right was hereby fore-closed of judging but establisht for the words are debent interesse Quousque is a Clause of exception and leaves them in that matter at large and savours not at all of a prohibition But though the Bishops might have such a Liberty by the Letter of the Assise of Clarendon to judge or not to judge at all in capital Causes which doth not at all impair their Right but that notwithstanding they may use their rightful authority when they please Yet the Bishops did not intend themselves further priviledged by this Law than that they should not be obliged to be present at the pronouncing of the sentence which appears by the Canons that have been made about this matter in England which we shall mention hereafter which would have been most peremptory in their prohibitions and very severe in their denouncing Curses in a matter of this nature as far as they had the Laws on their side As also by the Practice of the Bishops in those times which appears by Peter Blesensis whose words are Principes sacerdotum seniores populi by which he means the Bishops who from the dignity and worthiness of their Order are called Seniores a note of dignity in all Countries in all Ages which I observe because some are so ignorant as not to know it and think the
his qui in sacris ordinibus constituti judicium sanguinis agitare unde saith the Canon Prolibemus ne aut per se membrorum truncationes faciant a very fitting Employment for a Bishop aut inferendas judicent and after all this we have still our old Answer upon which we will ever insist it is but a Canon and can make no Alteration in the Rights of Government For tho' Gervasius Dorob tells us In hoc Concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula yet the Canons of this Council are not Laws For that our Historian does not tell us of any Parliament then held or that they were confirmed in Parliament and the good liking of Great Men out of Parliament will not confirm nay not justifie the Canons if they cannot justifie themselves in Parliament Besides that these Canons were not made into Laws we will offer two Reasons 1st For that amongst these Canons there is one that disposeth of the Right of Patronage against the Law as it hath been before and since taken and that is this Nulli liceat Ecclesiam nomine dotalitii ad aliquem transferre vel pro presentatatione alicui personae pecuniam vel aliquod emolumentum pacto interveniente recipere quod si quis fecerit in jure convictus vel confessus fuerit ipsum tam Regia quam nostra freti autoritate patricinio ejusdem Ecclesiae in perpetuum privari statuimus which was never most certainly Law Secondly If this had been a Law the other Canon before-mentioned made by Stephen Arch-bishop of Canterbury was idle nay presumptuous for offering to derogate from a Canon made a Law about 47 years before But however Canons confirmed by Law remain but Canons still and the Breach of them not punished as the Breach of Laws nor no Innovation made thereby upon a civil Right of which before and after more As to the Second Canon we observe how dutiful this Canon in the Stile of it behaves it self towards the Civil Government in that Clerks should not exercise Jurisdiction where Judgment of Blood is to be given under the soft word Statuimus that they should not Literas pro poena sanguinis infligenda scribere that is sign an Order for the Execution of a Condemned Man or be present at the Sentence is under the districtiùs inhibemus but the doing of this is not declared to be a Sin he that is contravenient to the Canon is not thereby to become irregular to be punished by his Superior or to incurr Excommunication or any Censure the Clergy are not declared by this Canon to be incompetent Judges it only declares them unworthy of the Protection of the Church the meaning of it is Judge not least ye be judged If you judge the Laicks they will judge you This is the Scandal for which the Privilegium Clericale will be lost So that upon the whole matter this Canon is but Advice and Counsel and offers reasons to the Choice and Approbation rather than a Command under the Authority of the Church in a Council But let it be what it will if the Canon had been most peremptory in its Prohibition and had lighten'd and thunder'd in its Denunciatiations it would have been of no force to alter the Government or discharge a Judge from doing his Duty but this is farther to be duely observed that this Canon could not be broken if the Law had not been otherwise than these Canons direct and therefore these Canons produced by our Adversaries are the greatest Testimonies to the Right we defend and a practice agreeable thereto Doth not the Canon suppose that a Beneficed Clerk or one in Holy Orders was sometimes in Commission for judging in Capital Causes For certainly the Canon did not prohibit them to murder or enjoyn them not to write Letters to subborn men to kill What can be the meaning of the Canon but this supposing a Beneficed Clerk to be made a Judge of Life and Death to assist in a Commission of Oyer Terminer or Goal-delivery that he should be enjoyned not to pronounce the Sentence or to sign the Order or Calendar for Execution But if he were not a Judge how possibly could he sign an Order for Execution By the other words of the Canon Nec intersit ubi judicium sanguinis tractatur he can be forbidden onely to be present and assisting as a Judge or Officer at the pronouncing of Sentence for it can be no fault sure nor ever was intended by any Canon to be made one for any Clerk to hear a Court pronounce a Judgment of Death or Mutilation or to see a Malefactor executed What therefore can be more evident than that the Bishops did withdraw not for want of Right of Session but they pretended the Canon because they did not like the Causes But further that nothing more than what we have shewed was understood to be done in that Protestation by those times they must be allowed at least to know their own Opinions doth appear for that notwithstanding the Protestation of the Bishops aforementioned the great Council of the Kingdom did not think the Authority of a Parliament when the Bishops were absent unquestionable This Opinion we do not go about to maintain but this we conclude that there could never have been such an Opinion if the Bishops had been denied Right of Session in Capital Causes in that time CHAP. IX THE Commons of England in the 21 R. 2 pray that the Bishops might make their Proxy which they did thrice in that Parliament once by Procuratory Letters to Sir Thomas Percy as is before recited and afterwards William la Scroop Earl of Wilts was made their Procurator and a third time the Earls of Worcester and Wilts were made their Procurators in the matter between the two Dukes of Hereford and Norfolk That it may the better appear that the Bishops were virtually present by their Proxy it ought to appear that they were allowed to make Proxies and that the Lords Spiritual did so as well as the Temporal Lords The first mention of Proxies that occurs in the memory of our Parliaments is in the Parliament of Carlisle under E. 1. and that is of the Bishops Proxies The words are these Quia omnes Praelati tunc plenariè non venerunt receptis quibusdam procurationibus Praelator qui venire non poterant adjornantur And in a Parliament held at Westminster under Ed. 2. dors clauso Ed. 2. m. 11. the Bishops of Durham and Carlisle remaining upon the Defence of the Marches of Scotland are severally commanded to stay there and in the Writ this Clause was added to both of them Sed Procurat vestrum sufficienter instructum ad dictum diem locum mittatis ad consentiendum his quae tunc ibidem praedictos Praelatos Proceres contigerit ordinari Though generally Proxies were admitted to both Spiritual and Temporal Lords
yet when the business of the Parliament was extraordinary the Writs of Summons both to the Prelates and Barons had a Premonition that a Proxy should not be allowed unless they could not possibly be present dors claus 6 E. 3. m. 36. claus 1 R. 2. m. 37. 2 R. 2. m. 29. Nor was it unusual with the Prelates to make such their Procurators who were no Members of that House In that Parliament of Carlisle under E. 1. the Bishop of Exeter sends to the Parliament Henry de Pinkney Parson of Haughton as his Proxy The Bishop of Bath and Wells sends William of Charleton a Canon of his Church In the Parliament 17 R. 2. the Bishop of Norwich made Michael Cergeaux Dean of the Arches and others his Procurators In the same year the Bishop of Durham his Proxies are John of Burton Canon of Beudly and others In the Statute of Praemunire 16 R. 2. cap. 5. it is said that the advice of the Lords Spiritual being present and of the Procurators of them that were absent was demanded This making of others then Barons of Parliament Proxies is not without President likewise in the case of Temporal Lords Lit. Procurator Parl. 4 H. 5. Thomas de la War gave his Procuratory Letters to John Frank and Richard Hulme Clerks So that it appears that by the Law of Parliament the Proxies of the Bishops in the 21th of R. 2. were legal Proxies and consequently the Bishops there virtually Besides that the lawfulness thereof doth appear for that it was required of them by the Parliament that they should make their Proxies and be present by their Procurators for this reason lest otherwise the Proceedings in that Parliament should be void CHAP. X. IT is true that the Parliament 21 R. 2. was wholly repealed by 1 H. 4. but that was for a good reason indeed because that Parliament of 21 R. 2. had delegated their whole power to a few of their number who finally without any resort back to the House made and past Laws But did ever any man before the Octavo argue at this rate that because there is one error in a case for which the Judgment is reversed that therefore there was nothing in the case legal and well considered And therefore how unreasonable and false this way of arguing is and that it is disputing against fact we shall further shew and prove For a probable Opinion still continued of the necessity of the Bishops sitting which implies a clear Recognition of a Right for in the 2 H. 5 the Earl of Salisbury petitioned the House to reverse a Judgment given against the Earl his Father Anno 2 H. 4. the Error assigned was the Absence of the Spiritual Lords The Case was much debated but the Judgment affirmed as we allow it ought to be but we produce it as an irrefragable Testimony of the Bishops Right to sit for if that had not been allowed there could not have been the least colour in the case nor matter of debate CHHP. XI BUt tho' the Actual Exercise of the Bishops Right in their own Persons though whatsoever is done by a Deputy is done in the Right of him that makes the Deputation as every body knows was for some time discontinued tho' their Right in that time was most solemnly owned and recognized yet in 28 H. 6. we find them re-continuing the Exercise of that Right and Authority and in their own Persons sitting in Judgment upon William de la Pool Duke of Suffolk who was impeach'd of Treason by the Commons for that he had sold the Realm to the French King and had fortified Wallingford Castle for a place of Refuge The Impeachment of High Treason was brought from the House of Commons by several Lords Spiritual and Temporal sent thither by the King's Command the Ninth of March the Duke was brought from the Tower into the Presence of the King the Lords Spiritual and Temporal The Impeachment was read unto him The Thirteenth of March he was sent for to come before the King the Lords Spiritual and Temporal to answer to his Charge which he did On Tuesday the Seventeenth of March the King sent for all the Lords Spiritual and Temporal who were in Town They are named two arch-Arch-Bishops and thirteen Bishops besides the Temporal Lords who being assembled the King sent for the Duke There was no Judgment given by the Parliament but he submitted to the King and the King gave him Penance which was that he should be absent for Five Years out of England The Lords Spiritual and Temporal by Viscount Beaumont declared to the King that this that was so decreed and done against the Person of the Duke proceeded not by their Advice and Council with this Protestation that it should not be nor turn in Prejudice nor Derogation of them their Heirs ne of their Successors in time coming but that they may have and enjoy their Liberty and Freedom as largely as ever their Ancestors or Predecessors had and enjoyed before this time Observe here that the Lords Spiritual were present at every Motion of this Cause This Cause was thrice before them no Exception taken to the Bishops being Judges They could not sit by Permission without Right if the Bishops had no Right to sit the Proceedings had been certainly erroneous For though one Judge's Absence if there be a Quorum will not vacate a Judgment yet if one sit in Judgment that is not an Authorized Judge the Proceeding is certainly erroneous and void Can any man believe that the Government should lose it self forget it s own Establishments in the highest concerns We may as soon believe that a man may forget his own name One positive Act of Session signifies more than 100 Omissions for if it had not been well understood that the Bishops had a Right to sit in Judgment in Capital Causes in Parliament they could never have been admitted they would never have presumed to endeavour it But with false Logick and absurd Reasonings and dislike to the Order it is become an Opinion in this Age because sometimes the Bishops absented that they have no Right But we have one thing further to add that declares an inherent Right in the Lords Spiritual to the Authority in question and that is an Opinion of the Judges 10 E. 4. 35. which says that the Lords Spiritual in case of a Tryal of a Temporal Peer in Parliament shall make a Procurator for then it seems an Opinion was received which was error temporis That it was indecent for Bishops to sit in their own persons in Judgment in such cases But they themselves are best Judges of what is indecent and unbecoming their Order for no man is obliged to any man but himself in the matters of Decency and the measures that make things decent or indecent is very mutable as changable and mutable as Customs Fashions and Opinions Besides that there is nothing that is very valuable and is of great concernment but can and
Summons to Parliament and the Stile of Barons it was less difficult for those Great Barons to procure a Law to exclude the rest wholly from having any Right to sit in the Parliaments under the name of Tenant in Chief only And to this purpose doubtless saith Mr. Selden some Law was afterwards made that none should come to Parliament as a Baron that is by vertue of his Tenure but such as should have several Writs of Summons directed to them in which number not only all those of the Ancient and Greater Barons were comprehended but others to whom Writs should be directed which is in effect that no Tenure should any longer make a Baron of the Kingdom but that the Writ of Summons only should make a Baron It is not improbable for the reasons aforementioned that such Law was made the 49 H. 3. and farther for that we find that the Abbot of Leicester in the 26 E. 3. was discharged from being summoned to Parliament amongst other reasons that he was not summoned to Parliament before 49th year of H. 3. and after that Interpotalis vicibus as if part of the Constitution had been that those of the Ecclesiasticks who at that time were accounted the Barones Majores so declared by having Writs of Summons to Parliament should have Writs of Summons to Parliament thence after in Succession And herewith agreeth Mr. Cambden Brit. fo Henricus tertius ex tantâ multitudine quae seditiosa turbulenta fuit optimos quosque rescripto ad Comitia Parliamentaria evocaverit ille enim ex satis antiquo scriptore loquor post magnas perturbationes enormes vexationes inter ipsum Regem Simonem de Montfort alios Barones motas sopitas statuit ordinavit quod omnes illi Comites Barones Regni Angliae quibus ipse Rex dignatus est brevia summonitionum dirigere venierent ad Parliamentum CHAP. XVI SO that it appears clearly that the Feudal Baronies about this time were quite discharged so far that no man by a feudal Barony had any Right to sit in Parliament and those that were feudal Barons before this time by the Alienation of their Baronies afterwards did not cease to be Barons But for that the Majores Barones and such as had then Writs of Summons and were appointed to make the House of Lords for after time were then Barons by Tenure It continued an Opinion some time that no man was bound to answer such Writs of Summons but those that were bound thereto by their Tenures thence it was that after this Constitution many that were feudal Barons before have taken a Liberty to entail their Baronies with the Lands that were held per Baroniam upon the Heirs Males whereby the Heirs general or next Heir Female were excluded and an Heir of the half Blood hath enjoyed the Honor with the Lands by vertue of the Entail We will trouble the Reader with one Instance of this kind and that is as late as Q. E. William Lord Paget of Beaudesert entailed the Baronies of Longdon and Haywood by Fine which descended to Henry his Son and Heir who had Elizabeth his Daughter and Heir died 11 Eliz. after whose Death Thomas Brother and Heir Male of Henry entered into the Baronies aforesaid and was summoned to Parliament This was allowable because the Honor of the Name and Family was thereby better supported and the Office of a Baron continued in the Family and the Duty of it better performed by such direction of the Descent And we do also observe that after the reason of being a Baron from Tenure did cease the following times kept the Old Form of Speech tenere per Baroniam was used commonly to denote a man a Baron That the Law is as we have said appears for that an Issue at Law whether Baron or not ought to be tried by the Parliament Records of his Summons and Session there as a Baron and not by the Records of the Exchequer to prove the Tenure I will not therefore trouble the Reader with what is reported to us in our Year-books nor my self in reconciling the seeming disagreements there about this matter onely thus that the Judges have sometimes spoken cum vulgo and not agreeable to the true notion of the Law and that they did not judge according to Law in the case of Thomas de Furnival But the Barons being anciently first so by Tenure did so stick with the Judges that they allowed Thomas de Furnivals Plea that he did not hold per Baroniam to discharge him from being a Baron though he had been summoned as a Baron and sate in several Parliaments as such But of this more hereafter For that which now made Parliamentary Barons was the receiving of a Writ of Summons to Parliament Before the 49 H. 3. The Bishops were of the number of those that were majores Barones and had Writs of Summons to Parliament among the rest of the great men before the making of the Law aforesaid and they by this new Constitution became Barons for them and their Successors not by Tenure any longer no more than the great Lay Barons but by virtue of the Writ of Summons and by the afore remember'd Constitution and Law made some time about the 49 H. 3. And though the Lands of the Bishops in the time of the Conquerour which were put under that Tenure be alienated or exchanged as they might have been I am sure if they are not before the Statute of Queen Elizabeth put a restraint upon them yet the Succession of the Bishops to their Baronies remains It is a question I know whether a Bishop can demand his Writ to Parliament before the restitution of the Temporalities upon his Consecration there are valuable Opinions on both sides but if the restitution of the Temporalities must be first made it is I conceive upon no other reason than that he is not completely Bishop before that is done no more than a Rector is a complete Rector after Institution before Induction be made though he ought I conceive to have his Writ upon Consecration because upon vacancy of the See the Guardian of the Spiritualities used anciently to have a Writ of Summons to Parliaments as Diocesans themselves And now the Baronage Secular is affixed to Families and the Spiritual Baronage to the Office and Succession And now Birth designs the Temporal Baron and Consecration of the Bishop designs the Spiritual Baron nay single Election without Confirmation or Consecration If elected onely they were summoned to Parliament by the addition of Electi if confirmed and not consecrated then they are in the Writ of Summons styled Electi Confirmati And Mr. Selden further tells us that there never was any that had the Title of a Bishop in England and of the Kings Creation since the Normans but was a Baron of Parliament and though the Regular Barons and such of them who had Writs were discharged upon their Prayer and omitted to be
summoned Yet the Bishops by reason of their Spiritual Dignity had necessarily a right and voice The Archiepiscopi Comites Barones alii Magnates in ancient Parliamentary Writs of Summons do ordinarily express and comprehend the whole Baronage without naming the Abbots and Priors which must be signified by the alii Magnates Which I the rather note because the Folio Author a Gentleman very easie and ready in Inferences doth conclude that because such Writs mention Magnates besides Bishops Comites Barones which he too suddenly concluded were comprehensive of the whole Baronage doth thence argue that a Writ of Summons of any man to Parliament doth not make him a Baron and from thence would have it inferred that the Bishops are not so though they are expresly mentioned and first in order and cannot in reason be reduced to that meanness of rate and quality with those that fall under an Et caetera and from hence would have it concluded that they may when the King pleaseth be dismist that House because there were anciently some Grandees that had Session in Parliament now discharged Besides we do observe that another sort of great men may be meant by the alii Magnates that is to say famous men of the Clergy not Bishops and other men of great name for wisdom of which there were some summoned in most of the ancient Parliaments not intended thereby by the King to be made noble or advanced to the state of Baronage for there were distinct clauses in the Writs of Summons to signifie the Kings purpose therein The Writs directed to such as were not intended thereby to be made Barons as the Judges Attorney General Kings Serjeant c. was Quod intersitis nobiscum cum caeteris de Concilio nostro and sometimes nobiscum onely super praemissis tractaturi vestrúmque consilium impensuri whereas that to the Barons was Quòd intersitis cum Praelatis Magnanatibus Proceribus c. But as Mr. Selden observes that custom of sending Summons to great men not Bishops to Parliament did cease after the clause of Praemunientes by which Convocations were summoned by Bishops to meet with Parliaments grew in use in the Bishops Writs of Summons to Parliament Of which excellent Provision we shall have occasion to speak to hereafter All the Baronage both Spiritual and Temporal de jure ought to have Summons now to Parliament without respect to Estate or Tenures There is no man now noble by his Acres a sort of Nobility that this refined Age will not allow of The King according to the Constitution of H. 3. afore-mentioned may now by Letters Pattents or Writ erect a new successive Barony as well as hereditary as was done by H. 8. The fifth year of his Reign for that the Baronage of England was now affixed to Family and Succession and not to Tenures he by his Letters Patents did then grant unto Richard Bamham Abbot of Tavestock in the County of Devon the Abbey being of his Foundation and Patronage and to the Successors of the said Abbot Vt eorum quilibet qui pro tempore ibidem fuerit Abbas sit erit unus de Spiritualibus Religiosis Dominis Parliamenti nostri haeredum Successorum nostrorum gaudend honore privilegio libertatibus ejusdem This the King might well do because the Abbot was of his Patronage and the Successors were therefore to be elected and collated by the King for that was the Inducement and Reason of Kings and Sovereign Princes advancing Bishops and great Abbots to the degree of Baronage making them members of the great Councils of their Kingdoms and Principalities as is before observed because such Abbots as the Bishops were made always and appointed by the Sovereign Prince And here we may take notice by the way of the Reason why the Episcopus Soderensis or the Bishop of the Isle of Man is not summon'd to Parliament which I shall give you in the Words of Sir H. Spelm. in his Glossary Baronum appellatione non omnes hodie apud nos censentur Episcopi ut pote Soderensis in insula Manniâ quod de Rege non tenet immediate at de Comite Darbiae Nay it is most observable That this Honour of Baronage or being a Member of the House of Peers was so inseparable to the Office of a Bishop after the afore-mentioned new Constitution of the Baronage That the Guardians of the Spiritualties of Bishopricks in the times of Vacancy and the Vicars General of Bishops being beyond Sea were summoned to Parliaments by the same kind of Writs as the Bishops were summoned Of this Mr. Selden doth assure us Titles of Honour 2 Edit fol. 721. But this Honour lasted no longer than this legal Substitution and Vicarious Power If they had Right to sit in that House in respect of their Temporalties the Guardian of the Spirituals or the Vicars General would not have had Writs of Summons to Parliament But if the Kingdom had not had a great Opinion of that Order it would not have been provided and put in use that in Vacancy of the See or Absence of the Bishop rather than that great Council would want one Bishop utterly or the Interest Authority and Consent of any that had Episcopal Authority they admitted the Substitute by whom that Office was executed and administred for that Interval only When Baronies were feudal the person tho' in respect of his Land was noble his great Estate and Interest and the other general Presumptions that attend opulent Fortunes made the Possessor noble in his Person Anciently the Estate of late the Discent in the Temporal Baronies and the Succession in the Spiritual Baronies place the persons respectively in the Census and Rank of Baronage but there is no Nobility but what is personal nor can be in Nature All the persons in the same Order of the publick Census are of the same Quality Neither are Bishops to be accounted less Barons or less noble because they enjoy their Baronies for Life only no more than a Tenant for Life of an hereditary feudal Barony could be so accounted Feudal Baronies being considered as Estates were alienable as Estates and as Estates would suffer Limitations and admit of particular Estates for Life No man can say we had no personal Nobility in the time when there was no other Baronage than Feudal How then can it be said that the Bishops Persons are not noble though they should be accounted only Barons Ratione Tenurae as certainly they are not in proper speaking at this day neither can it be objected against their personal Nobility that a Bishop may be degraded for so may a Peer for more Reasons than a Decay of his Fortune and Estate Which matter I the rather insist upon for that the great Mr. Selden committed an Error by not considering that the ways and means by which persons derive and come to be of the Order of the Nobility and Baronage can make no Difference in the Baronage
unexceptionable Judge but renders them most fit and desirable For besides their Wisdom and Justice common with that of the Temporal Lords they are intended of the greatest tenderness and compassion and must be so if they comport themselves with agreeableness to their Character and Function They are not ordinarily engaged in the Factions of the Temporal Grandees and Religion being their business they are more under the powers of it that being their glory and their first greatness that which promoted them to their Secular Honour and Dignity and that which must support it Their Interest is Religion and therefore they are the more obliged in all their outward acts to comport with it They out of an universal charity understand that it is mercy and compassion to the innocent to punish the nocent person and yet they can in the administration of punitive Justice attemper the severities of Laws with the mercies of Religion and use Compassion to the Criminal when they do not depart from the unrelenting Rules of Law out of regard to the publick peace and by such demeanour they may reconcile the Office of a Judge with that of a Priest which some have thought incompatible 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Synes But they are no more inconsistent than Power and Authority which united makes a most venerable Magistrate and gives him the greatest advantage of serving the Community Peragit tranquilla potestas Quod violenta nequit mandataque fortiùs urget Imperiosa quies CHHP. XVIII AND such a Judge would I chuse but we we must take such a Judge as the Law appoints Magna Charta is objected against the Bishops right in the question which saith that Nullus liber homo capiatur c. nec super eum ibimus nec super eum mittemus nisi per judicium parium suorum The Objector omitted to add or consider what follows viz. Aut per legem terrae But the Statute of Magna Charta is no Literal Law as every body knows but intending to confirm the Common Law it is upon the matter Lex non scripta it alters nothing that was the Common Law before but that being found out declares what Magna Charta establisheth And therefore Peers shall be tried by Commoners in Appeals notwithstanding the Letter of Magna Charta for otherwise Peers could not be tried at all nor no Justice done in Appeals which is the Suit of the Party and not of the King Privilege must be always set aside rather than a faileur of Justice shall be allowed So that the Law before Magna Charta and since whatsoever it was must determine this matter The Provisions that the Law hath made that the Nobles and the Commonalty shall not intermeddle to judge any persons not of their Order is a most prudent Establishment without which neither Order Justice or Peace could be preserved The Envy of the Commons would render them unfit Judges of the Peers and the Animosities of the Peers would render them unapt to sit in Judgment upon a despised Commoner Besides that otherwise the Dignity of the Order of Peers would suffer for the Superiour can no more be judged with any congruity than blessed by the Inferiour This is a reason big and wise enough to be assigned and worthy of a wise Government and Polity And to this reason the words of the Statute of 25 E. 3. cap. 2. de Proditoribus do point De ceo soit probablement attaint de overt fait per gens de lour condition And therefore it seems to me that according to the Reason and Design of the Law which declares the Law in particular Cases that Bishops being Barons and of the Peerage of England and of that Rank and Order they ought to be tryed by those of their own Condition And the denial to them of this Priviledge which is annex'd to and is a resultance from the Dignity of their Order is a departure from Magna Charta and not agreable to the Provision of the 25 E. 3. c. 2. But it was never an allowable Exception to a Judge that the Judge hath not so good an Estate or other Advantages of Fortune equal to the man he Judges to forfeit in case the Judge be a Capital Offender upon which reason the Folio Gentleman grounds his Reasonings against the Bishops being Tryers of Peers He argues the Bishops incompetent to try a temporal Baron upon this reason because the Bishop hath only a Peerage for his Life to forfeit But who can be satisfied with such fine and slender Reasoning or entertain an Opinion that is not bettern grounded I would not be thought to argue or maintain that Prelates are so fit to be appointeed by the King's Commission to try a Temporal Peer in the Court of a Lord High Steward out of Parliament when a select Number of Peers are to be appointed for Tryal it is most convenient that those of the same Species of the Baronage should be chosen for that purpose for many reasons but for a Tryal of a Temporal Peer in Parliament which is the Establishment and Appointment of the Governmnt and not of the King 's special Designation notwithstanding the reason of the Folio for Reasons herein alleadged a Bishop is a most fit legal and competent Judge But I have taken too much notice already of the Errors and Mistakes of the Folio and his false Reasonings I am weary of such Animadversions I shall proceed now to the end of my Discourse without making any more Reflections It is already cleared that the Bishops are compleat Barons that they are of the State of the Baronage and it can have no Consideration how they came by it nor how they held it for the Modus tenendi doth not alter or diversifie the Honor. And for my part I cannot find reason to believe but that the Bishops had or might have had originally their Tryals by Peers and that it was their Right in Consequence of their being placed in that Order and State besides that they have a Precedency to the Temporal Baronage to be tried by the Baronage because the Law for the reason afore-mentioned appoints Tryals per Pares But the contrary practice is the Strength of our Adversaries in opposing the Peerage of Bishops which we shall therefore now consider of It is certain that in all Tryals wherein Bishops are concerned whether Plaintiffs or Defendants in Actions real as well as personal whether the Lands of the Church are concerned or not a Knight is to be returned upon the Jury that is to try the Issue I will not trouble the Reader with Law Cases any Gentleman that pleaseth may examine the Truth of what I say This priviledge therefore cannot be in respect of the Lands of the Bishoprick as the Folio would have it but of the persons of the Bishops a respect to the Order and Peerage of the Bishops It is the same Priviledge and as large as the Temporal Peers enjoy in this matter which is that the worthiest and best
of the Commoners which are Knights should be impannelled upon a Jury where either a Spiritual or Temporal Baron is concern'd besides that I find a single Remembrance as high as 13 E. 3. in Brooks Tryal 142. the Reports of that year are not printed of the Bishops Right of Peerage in a Capital Cause the Book is Evesque est Peere de Realme serva try per Peres in Crime But how this Right came to be discontinued and to lose remembrance we shall presently account for but I cannot think it Sence which some of our Lawyers have said for this purpose that a Bishop his being a Baron is Ratione Tenurae and not personal which is all one as to say that the Bishop is a Baron but his Person is not a Baron but his Peerage and Baronage is no other in truth than an Honor accumulated upon the Person of a Bishop together with his Office But to excuse them they thought themselves obliged to give a reason why Bishops are not as the Law is taken to be tryed by Peers but by a Common Jury which grew into practice by accident and was not ever so in probability but certainly is very irregular and extream incongruous and therefore to give a good reason for it is too hard a task to be undertaken and he that will undertake to give a reason of that which is unreasonable and go about to prove a thing fit which is incongruous must likely speak things equally incongruous absurd and unreasonable But to speak what the truth is in this matter the Bishops and the whole Order of Clergy did challenge to be exempt from the Jurisdiction of Secular Courts but the Bishops as is objected never waved their jus paritatis upon Arraignment in inferior Courts They only never insisted upon it For they had a better way to escape by setting up the pretended Rights and Priviledges of their Order and that Church for exempting themselves from the Jurisdiction of the Temporal Courts and by this means they did escape unpunished for the most part Though there were several Abatements made by the provision of the Laws and the Wisdom of the Judges to their unreasonable pretences therein yet they always got off by their pretended priviledge if not with impunity yet with some protection at least from Justice and farther they thought perhaps they might at least avoid being thought guilty of the Crimes objected whilst they used this pretence for a reason why they would not make a Defence And sure in all Offences but Treason they escaped with their Lives before the Statutes that took away the benefit of Clergy in some Cases of the greatest Guilt and even in the Case of Treason the Criminal ever had the Advocation and Intercession of the Church-power and Interest because the priviledge they contended for was so great and valuable a Concernment as they esteem'd it to the Order of the Clergy But by this means the memory of the Use of this Right and Priviledge was lost and the Detestation of a Crime in a Prelate provided him a speedy and ready Justice such as was at hand and at length Bishops themselves unadvisedly and being born down by the Common Opinion thus grounded and occasioned did submit to Tryals by Juries It is enough to have given an account how this Anamolous piece of Law came about But Anamolous Cases never make Rules nor destroy any Nor is it to be drawn into consequence whatever is a departure from the Establishment to destroy it quite Positive Constitutions of which no Reasons can be given why they are so can infer or argue nothing Reason cannot make Law though it is a fair inducement but our Reason is most perversly imployed when it proceeds from the Irregularities that happen in Human Affairs and are shuffled upon us by length of time by violence and iniquity and a heap of Accidents to argue us into more and to refix that which is regular and remains firm In quo quis peccat in eo punietur Is it not enough that the Order now suffers a diminution of their dignity by reason of the contumacy of the Popish Prelates their Predecessors and that their Refusals to submit to Temporal Justice are visited upon the Succession Severe enough this is in it self But why should any man expect that this Age in consequence of this should be persuaded and reasoned to exclude the Bishops out of their remaining right 'T is no more to be expected than that a man that hath one hand withered and mortified with the Palsie should be persuaded to cut off the other for conformity We know how the Prelates fell from their primitive Dignity of being tried by those of their own Order and were submitted to be tried by Juries of Commoners It would be therefore consonant and agreeable to the Dignity of Barons and Lords of Parliament for such the Bishops are that they be restored to their ancient right in the matters of Trials as mistaken Law is rectified by an Act of Parliament A wise Act of State it would be to redintegrate the Honour of the Baronage of England the whole Baronage suffering dishonour by a mutilation of so Honourable a Privilege in one of the membra dividentia of that body whilest the Bishops are thrown to common Jurors Especially since the incongruity thereof hath given occasion to some men to question one another of the jura paritatis which belongs to the Prelates and to dispute their right of Session in that House in one of the most important Concerns of the Government But however this Irregularity is discoursed it doth not affect the Right of the Prelates now in dispute for though Bishops are tried by Commoners out of Parliament as the Law is now generally taken yet that they are to be tried by Peers in Parliament our Adversaries do not deny And that they may and ought to sit in judgment upon Temporal Lords in Parliament in Capital Causes we have clearly proved So that the Reciprocal of a Bishops being judged and judging in Capital Causes in Parliament is intire and in this they continue duly pares But that it may not depend upon our Adversaries Concessions that Bishops may be tried by Peers in Parliament for he is not always constant to himself and may take back what he hath yielded we shall here subjoyn a short demonstrative proof that the Bishops ought to be tried by Peers in Parliament And that they have been declared and taken for Peers and under that Character tried when if they had not been reckoned and deemed Peers they could not have received Tryal in Parliament and it is thus Edward the Third had prevailed with the Lords against their good will to condemn the Earl of March Sir Simon Beresford John Matrevers Boys de Boyons John Devard Thomas de Gowrney William Ogle for the Murder of Edward the Second his Father and the Earl of Kent all of them Commoners but the Earl of March The Lords were