the King's Council which the King granted yet afterwards 51 E. 3. at the Request of the Commons themselves he was restored to all and declared innocent This Gentleman was so sensible of this their Prejudice and Rashness attended with so much Levity that he could not pass it by without setting some Remark upon it p. 12. But when Justice Loyalty and Honour governs their Debates and Resolutions we may put the King and to use his own Illustration all the Three Estates of Parliament into the same Nest of Boxes and yet their respective Interests which is the Interest of the whole Kingdom interwoven will be secure and preserv'd inviolate But the Gentleman tells us further That if the Bishops be one of the Three Estates nothing can pass in Parliament without them This may be generally true among States coordinate without a Sovereign Head over them and when a Rival is set up to give Check-mate to the Sovereign Authority as it was in the time of Hen. 8. mentioned by this Gentleman at p. 92. when the Question was To whom the Supream Jurisdiction did belong to the King or to the Pope In the time of such a Competition the Crown is obliged to secure it self against such an Usurpation and does most justly abandon the Clergy that sides with it But 2. If Acts have passed without the Bishops they have likewise done so as by him is said sometimes without the Commons Egbert who first united the Seven Kingdoms of the Saxons under the common Name of England he caus'd to be conven'd at London His Bishops and Peers of the highest Rank to advise upon some course against the Danish Pyrates this was a Military Business and Bloud-shed might have ensued upon the Stubbornness of those Pyrates who infested the Sea-Coast of England And King Ethelwolph in Parliament or Assembly of his States at Winchester Anno 855. by the Advice These Great Councils were the Parliaments of those Times Let. p. 72. and Counsel of the Bishops and Nobility confirm'd unto the Clergy the Tenth Part of all mens Goods and Ordered that the Tythe so confirmed unto them should be free from all Secular Services and Impositions And Wingate in his Abridgment and the Word Parliament tells us out of the Mirrour of Justices of an Act in Aelfred's Time That Parliaments should be held twice a year and oftner if need requir'd But note saith he This was by the King and Lords only And I believe we may observe the like practice among some of this Gentleman's Precedents But it is much more satisfactory when the Laws are Enacted by the Sovereign Authority at the Request of the Commons with the consent of the Lords Spiritual and Temporal that is by the King with the joint Assent of the Three Estates of Parliament let us not therefore dissolve or drive them away when we have them That which is alledged out of Bishop Jewel and Crompton I refer you to the Answer of the Quodlibetical Question for your p. 93. to 98. satisfaction That King James was of this Judgment is evident from the very Words and Speech produced by this Gentleman to the contrary The Parliament saith he is composed of a Head and a Body The Head is the King the Body are the Members of the Parliament This Body again is subdivided into two parts the Upper and the Lower House the Upper House compounded partly of Nobility Temporal men who are Hereditable Counsellors to the High Court of Parliament by the Honour of their Creation and Lands and partly of Bishops Spiritual men who are likewise by virtue of their Place and Dignity Counsellors ad vitam Life-Renters of this Court. The other House is compos'd of Knights for the Shires and Gentry and Burgesses for the Towns Here we see though the King makes but Two Houses yet he does clearly distinguish them into Three Estates though he does not call them so To what is said by Stephen Gardiner and Finch I oppose the Testimonies of Livy Selden Cooke and Sheppard To the Expressions of the Late King of B. Memory in his Answer to the 19 Propos when he was fluctuating in the midst of a Storm gathering round about him and to the Declaration of the Commons 2 H. 4. n. 32. I might Answer That the Upper House in a large sense consisting of Lords Spiritual and Temporal sitting and voting together may be taken for One Estate But taken precisely and in a strict sense as their Concerns and Interests are distinct so they are clearly Two But to those Authorities I shall rather oppose the Act of Recognition 1 Eliz. 3. Where the Lords Spiritual and Temporal and the Commons in that Parliament Assembled do Recognize the Queens Majesty to be their true lawful and undoubted Sovereign Lieged Lady and Queen in these words We Your most Faithful Loving and Obedient Subjects representing the Three Estates of this Realm which evidently sheweth the Queen was not there esteemed one So when the Funerals of Hen. 5. were ended the Three Estates did Assemble and Acknowledge his Son King To think to elude such Evidence by saying as this Gentleman does in the like case that such Expressions are delivered obiter upon the By is to make what we fancy not in any Statute utterly void and of none effect The next Question concerns the Bishops Peerage For the Affirmative we have these things to say 1. That the Prelates are called by the same Writ for Form and Manner with that directed to the Temporal Barons so the Answer to the Quodlibetical Question That they Sit and Vote there by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in respect of their Baronies Hereupon they affirm to the Lords Temporal in Parliament holden at Northampton Hen. 2. as Selden reports We sit not here as Bishops only but as Barons we are Barons and you are Barons here we sit as Peers And some Statutes call them Peers of the Land in terminis 2. 'T is his Grace of Canterbury's Title Primus Par Angliae That the first Peer should be no Peer is an unheard of Solecism If he be a Peer the rest of the Bishops are his Com-peers what ever they are to the Lords Temporal John Stratford Archbishop of that place in the time of Ed. 3 claim'd this Priviledge in the Right of his See And the Protestat of W. Courtney elsewhere mentioned with the rest of the Bishops is another pregnant Evidence to this purpose And 25 Edw. 3. The Prelates put up this Petition to the King as the Gentleman himself relates it p. 83. Seeing Archbishops and Bishops hold their Temporalties of the King in capite and therefore are Peers of the Land as other Earls and Barons are that you will be pleased to grant unto them that no Judge may henceforward for meer contempts cause their Temporalties to be seized Here we have a Prayer that their Temporalties may not be seized and the Reason of
Charter made by King John in the last of his Reign we have the form of summoning a Parliament and calling those together who have Votes therein thus expressed at large Ad habendum commune concilium Regni de auxilio assidendo c. Et de scutagiis assidendis faciemus summoneri Archiepisc Abbates Comites majores Barones Regni sigillatim per literas nostras praeterea summoneri faciemus in generali per Vice-Com Ballivos nostros omnes alios qui in Capite tenent ad certum diem scil ad terminum 40 dierum ad minus ad certum locum c. (†) Id. in Job In which we have not only a most evident Proof that the Bishops are of right to be called to Parliament for granting Subsidies and Escuage and treating of the great Affairs which concern the Kingdom but that they are to be summoned by particular Letters as well as the Earls Barons or either of them A form or copy of which Summons issued in the time of the said King John is extant on Record and put in Print not many * P. 1. 20. 5. years since in the Titles of Honour 5. We have it thus in the Magna Charta of King Henry the 3 d. the Birthright of the English Subject according as it stands translated in the Book of Statutes First we have granted to God and by this our present Charters have confirmed for us and our Heirs for ever That the Church of England shall be free and shall enjoy all her whole Rights and Liberties inviolable (†) Magna Charta c. 1. But it is a known Right and Liberty of the Church of England that all the Bishops and many of the greater Clergy and peradventure also the Inferior Clergy in the said Kings time had their Votes in Parliament and therefore is to be preserved inviolable by the Kings of England their Heirs and Successors for ever Which Charter as it was confirmed by a Curse denounced on all the Infringers of it by Boniface Arch-Bishop of Canterbury (*) Math. Par. in H. 3. and ratified in no fewer than 80. suceedings Parliaments So was it Enacted in the Reign of Hdward the first That it should be sent under the great Seal of England to all the Cathedral Churches of the Kingdom to be read twice a year before the People †That they should be ready four times a year in a full County Court (*) 28 E. 1. c. 1. and finally that all Judgments given against it should be void and null (†) 28 E. 1. c. 2. the Application of which last Clause I refer to those to whom the rectifiing of the Error which to the contrary thereof hath been committed doth of right belong * 28 E. 1. c. 3. 6. We have the Protestation of John Stratford Arch Bishop of Canterbury in the time of King Edward the 3 d. who being in disfavour with the King and denied entrance into the House of Peers challenged his Place and Suffrage there as the first Peer of the Realm and One that ought to have the first voice in Parliament in right of his See But hear him speak his own words which are these that follow Amici for he spake to those that took witness of it Rex me ad hoc Parliamentum scripto suo vocavit ego tanquam major par Regni post Regem primam voce habere debens in Parliamento jura Ecclesiae meae Cantuariensis vendico ideo ingressum in Parliamento peto (†) Antiqui Brit. in Gati Stratford which makes it plain enough that the Arch-Bishop did not challenge a place in Parliament as the first Peer of the Realm either by way of favour or custom only but as a power and priviledge as he ought to have habere debent are the words in the Right of his See 7. And lastly there is the protestation on Record of all the Bishops in the Reign of King Richard the 2 d. at what time William Courtney was Arch-Bishop of Canterbury who being to withdraw themselves from the House of Peers at the pronouncing of the Sentence of Death on some guilty Lords first made their Procurators to supply their rooms and then put up their Protestations to preserve their Rights the sum whereof for as much as doth concern this business in their own words thus De jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non caeteros Suffraganos confratres compatres Abbates Priores aliosque Prelalatos quoscunque per Baroniam de Domino Rege tenentes Pertinet in Parliamentis Regis quibuscunque ut Pares Regni praedicti personaliter interesse ibidemque de Regni negotiis ac aliis tractari consuetis cum caeteris dicti Regni paribus aliis ibidem jus interessendi habentibus Consulere Tractare Ordinare Statuere Definire ac caetera facere quae Parliamento ibidem imminent facienda (†) In vita Gu. Courtney It appertains say they both by Right and Custom to the Arch-Bishop of Canterbury for the time being as also unto all the rest of his Compeers as well as the Suffragan Bishops as to the Abbots Priors and other Prelates whatsoever which hold their Land by Barony of our Lord the King to be personally present at all Parliaments as Peers of the Realm and there together with the rest of the Peers and all other which have Right to be therein present to Consult treat of and Ordain and finally to determine and establish all such things and matters as are accustomably handled and ordained in Parliaments Which sets the matter as I take it beyond all dispute as to the first of these two heads or sorts of Arguments whereby I was to prove this point which were those de jure Let us next see whether this Right of theirs be confirmed and countenanced by continual practice and that they have not lost it by Discontinuance which is my second kind of Argument those I mean de facto And in this way of proof we can go as high as the first preaching of the Gospel to the English Saxons and so descend unto those last times without interruption By which it will appear that Christianity in this Nation and the Bishops Votes in Parliaments and Common Councils are of like Antiquity For first no sooner had King Ethelbert received the Gospel but presently we read that as well the Clergy as the Laity were summoned to the Common Council which the Saxons sometimes called Mycell Synoth the great Assembly and sometimes Witennegemote the Councel or Assembly of the Wise men of the Realm Anno 605. Ethelbertus Rex in fide corroboratus Catholica c. Cantuariae convocavit Commune Consilium tam Cleri quam Populi King (†) H. Spelman in Conc. p. 116. Ethelbert as my Author hath it being confirmed in the Faith in the year 605. which was but nine years after his Conversion
Barons here we sit as Peers Which last is also verified in terminis by the words of a Statute or Act of Parliament wherein the Bishops are acknowledged to be Peers of the Land But to proceed more particularly to our proofs de facto after the alteration of their Tenures by the Norman Conqueror we find a Parliament assembled in the fifth year of that King wherein are present Episcopi Abbates Comites Primates totius Angliae †the * Math. Paris in Willi elmo 1. Bishops Abbots Earls and the rest of the Baronage of England And 3ly In the ninth year of William Rufus an old Author telleth us de Regni statu acturus Episcopos Abbates quoscunque Regni Proceres in unum praecepti sui sanctione egit that being to consult of the Affairs of the Kingdom he called together by his Writ the Bishops Abbots and all the Peers of the Realm (†) Edmor hist Mov l. 2. And 2ly During the Reign of King Henry the first for we will take but one example out of each Kings Reign though each Kings Reign would yeild us more a Parliament was called at London wherein were many things dispatched aa well of Ecclesiastical as Secular nature the Bishops and Abbots being present with the other Lords Coacto apud Londinium Magno Episcoporum Procerum Abbatumque concilio multa Ecclesiasticarum Secularium rerum ordinata negotia decisa Litigia saith the Monk of Malmsbury (†) Malmbs Hist Reg. Ang. l. 5. and of this Parliament it is I take it that Edmor speaketh Hist. Novel l. 4. p. 91. Proceed we 4ly to King Henry the second for King Stephens Reign was so full of Wars and Tumults that there is very little to be found of Parliaments and there we find the Bishops with the other Peers convened in Parliament for the determination of the points in controversy between Alphonso King of Castile and Sancho King of Navarre referred by com-promise to the King of England and here determined by King Henry amongst other things Habito cum Episcopis Comitibus Baronibus cum deliberatione Consilio as in Roger Hoveden (†) Hoveden Annal. pac Rose in H. 2. 5ly Next time comes Richard the first his Son during whose Imprisonment by the D. of Austria his Brother John then Earl of Moriton endeavoured by force and cunning in Normandy to set the Crown on his own head which caused Hubert the Archbishop of Canterbury to call a Parliament Convocatis coram eo Episcopis Comitibus Baronibus Regni (†) Id. in Ioh. wherein the Bishops Earls and Barons did with one consent agree to seize on his Estate and suppress his power the better to preserve the Kingdom in Wealth Peace and Safety 6ly After succeeded John and he calls a Parliament wherein were certain Laws made for the defence of this Kingdom Communi assensu Archiepiscoporum Episcoporum Comitum Baronum omnium fidelium suorum Angliae by the Common Counsel and Assent of the Archbishops Bishops Earls Barons and the rest of his Lieges Remember what was said before touching the Writ of Summons in the said Kings time from this time till the last Parliament of King Charles there is no Kings Reign of which we have not many though not all the Acts of Parliament still it Print amongst us Nor is there any Act of Parliament in the Printed Books to the Enacting of which the Bishops Approbation and Consent is not plainly specified either in the general Proem set before the Acts or in the Body of the Acts themselves as by the Books themselves doth at large appear 7ly And to this kind of proof may be further added the Form and manner of the Writ by which the Prelates in all times have been called to Parliament being the very Law Verbatim with that which is directed to the Temporal Barons save that the Spiritual Lords are commanded to attend the Service in fide dilectione the Temporal in fide Homagio and of late times in fide Ligeantia quibus nobis tenemini A Form or Copy of which Summons as ancient as King John's time is still reserved upon Record directed Nominatim to the Archbishop of Canterbury (†) Titles of Hon. part 2. cap. 1. and then a Scriptum est similiter to the residue of the Bishops Abbots Earls and Barons Then add the Privilege of Parliament for themselves and their Servants during the time of the Sessions the Liberty to kill and take one or two of the Kings Deer as they pass by any of his Forests in coming to Parliament upon his Commandment (*) Charta de forest cap. their enjoying of the same Immunities which are and have been heretofore enjoyed by the Temporal Barons (†) Camden in Briiania and tell me if the Bishops did not sit in Parliament by as good a Title as the Temporal Lords and therefore Essential Fundamental parts of the Court of Parliament By this Discourse it may appear that the Bishops Sit and Vote in Parliament by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in regard of their Baronies In both respects accounted one of the Three Estates and the first also of the Three as from the Premises may be gathered without any great trouble But in so nice a point as this we shall not only build upon general Inferences but particular Evidences And first it is affirmed by Titus Livius in his Relation of the Life and Reign of King Henry the 5th That when his Funerals were ended the three Estates of the Realm of England did assemble together and declare his Son King Henry the 6th being an Infant of 8 Months old to be their Sovereign Lord †as his Heir and Successor And three Estates there * Tit. Liv. M. S. in Bib. Bodl. could not be to perform that Service unless the Bishops were acknowledged to be one of the number 2ly In the Parliament Rolls of King Richard the third there is mention of a Bill or Parchment presented to that Prince being then Duke of Glocester on the behalf and in the Name of the Three Estates of the Realm of England that is to wit the Lords Spiritual and Temporal and of the Commons by name which forasmuch as neither the said Three Estates nor the persons which delivered it on their behalf were then assembled in form of Parliament was afterwards in the first Parliament of that King by the same Three Estates Assembled in this present Parliament I speak the very words of the Act it self and by Authority of the same Enrolled Recorded and Approved (*) An. Speed in K. R. 3 and at the request and by the assent of the Three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by Authority of the same it be pronounced decreed and declared that our said Sovereign Lord the King was
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
TWO TREATISES The FIRST Proving both by HISTORY RECORD THAT THE BISHOPS ARE A Fundamental Essential Part OF OUR English Parliament The SECOND That they may be JUDGES IN Capital Cases LONDON Printed by Tho. Braddyll for Robert Clavell at the Peacock in S. Pauls Church-Yard 1680. THAT THE BISHOPS MAKE A FUNDAMENTAL ESSENTIAL PART OF THE English Parliament THough the Demerits of this Sacred Order of men is sufficiently known and acknowledged though their Sufferings in the late ill times are notorious to the whole world and no less a Scandal to this Nation I speak of those who then traiterously usurped the Name and Title of the Supreme Authority of England yet there are not still wanting those of the old Leaven who endeavour to embroil us again who still raise and maintain the old Scruples and Jealousies and endeavour as much as in them lies to put us again into the old and preternatural Ferments of 42 't is strange you will say that a Nation should be twice undone by the same ways and method that the evil success we all of us felt save those of the Independent Faction should not deter us from endeavouring the like unsetlements for the future I wish our Fears and Jealousies were groundless but so long as the old and baffled Arguments are rallied by such men so long as they proceed to make ill use of the Indulgence of their Prince and his Government under whom they live in peace and endeavour to unravel the Constitutions of our Parliaments hereby to bring us into the Disorders under which we so lately groaned and out of which by the goodness of God we are now in safety escaped it will not I hope be thought unseasonable to any person who is a Friend to his Prince or Country or to himself in his own quiet and settlement which he now enjoyes to mind and to advise him I hope 't is no ill counsel stare super vias antiquas to tread in and keep to the old paths Regia via est tuta via the Kings way is the safest and best of ways Let us then in the Name of God see what were the ancient usages the old Constitutions under which we and our Forefathers were happy our ancient Kingdom so famous throughout the whole Civiliz'd World hath flourished and become so renown'd as erst it hath been And seeing a great Question hath of late and is now again raised concerning the Sacred Order of Bishops as to their Right of being and voting in our Parliaments we shall endeavour to evince and prove this great Point which 't is hoped may in a good measure contribute to the allaying the heats of this sort of men amongst us and who seem to be the most busie and forward in these Embroylments And that we may the more orderly and methodically proceed to evince what we have undertaken and in regard this Question is about the very Constitution of our Government we can I think do no better than to make use herein of the good old Maxim and Rule de Legibus longa consuetudine Si de interpretatione Legis quaeritur inprimis inspiciendum est quo jure Civitas retro in hujusmodi casibus usa fuerit Consuetudo enim optima interpretatio Legis est If you would know the true sence and interpretation of any Law you must especially look to the practice and usage of the Law for that Custom is the best interpretation of the Law We now seem at least some party amongst us to question whether our Bishops are an Essential part of the Parliament which together with His Majesty as to the Enacting of Laws and giving of Aids and Subsidies is the old Government under which England hath heretofore to the envy of our Neighbours flourish'd and been happy Foelices nimium bona si sua norant Angli That we may then I say put this Question out of question we shall endeavour to prove by two sorts of Arguments of which one shall be De Jure and the other De Facto the one derived from that Original Right which is vested in them the other from the constant Exercise and continual practice by which that Right hath been enjoyed in all times foregoing And first we shall begin with the proofs de jure and therein first with that which doth occur in the Laws of King Athelston one of the first Monarchs of the English Saxons Among which there is a Chapter it is chap. 11. entituled De officio Episcopi quid pertinet ad officium ejus that is to say Touching the office of a Bishop and that which doth of right belong unto it In which Chapter it is thus declared viz. Episcopo jure pertinet omnem rectitudinem promovere Dei scilicet seculi c. (†) Spelm. Couns p. 402. convenit ut per consilium testimonium ejus omne Legis scitum Burgi mensura omne pondus sit secundum dictionem ejus institutum that is to say it belongeth of right unto the Bishop to promote Justice in matters which concern both the Church and State and unto him it appertaineth that by his Counsel and Award all Laws and Weights and Measures be ordained throughout the Kingdom 2. Next we will have recourse to the old Record entituled Modus tenendi Parliamentum In which it is affirmed Ad Parliamentum Summoniri venire debere Archiepiscopos Episcopos Abbates Priores alios majores Cleri qui tenent per Comitatum aut Baroniam ratione hujus modi tenurae (*) Modus tenendi Parliamentum That all the Archbishops Bishops Abbats Priors and other Prelates of the Church who hold their Lands either by an Earls Fee or a Barons Fee were to be summoned and come to Parliament in regard of their Tenure 3. Next look we on the Chartularies of King Henry the first recognized in full Parliament at Clarendon under Henry the second where they are called Avitas consuetudines which declare it thus Archiepiscopi Episcopi universae Personae qui de Rege tenent in capite habeant possessiones suas de Rege sic ut Baroniam c. Et sicut caeteri Barones debent interesse judiciis Curiae Regis cum Baronibus quousque pervenerit ad diminutionem membrorum vel ad mortem (*) Math. Paris in H. 2. The meaning is in brief that Archbishops Bishops and all other Ecclesiastical Persons which hold in Capite of the King are to have and hold their Lands in Barony and that they ought as Barons to be present in all Judgments with the other Barons in the Court of Parl. untill the very Sentence of Death or Mutilation which was very common in those times was to be pronounced And then they commonly did use to withdraw themselves not out of any incapacity supposed to be in them by the Law of Engl. but out of a restraint impos'd upon them by the Can. of the Church of Rome 4. In the Great
together with Berha his Queen their Son Thalbald the Reverend Archbishop Augustine and all the rest of the Nobility did solemnize the Feast of Christs Nativity in the City of Canterbury and did there cause to be assembled on the 9th of January the Common Council of his Kingdom as well the Clergy as the Lay-Subject by whose Consent and Approbation he caused the Monastery by him built to be dedicated to the honour of God Almighty by the hand of Augustine And though no question other Examples of this kind may be found amongst the Saxon Heptarchies yet being the West Saxon Kingdom did in fine prevail and united all the rest into one Monarchy we shall apply our selves unto that more punctually and with greater care I. And first we read of Egbert who first united the seven Kingdoms of the Saxons under the common name of England that he caused to be convened at London his Bishops and the Peers of the highest Rank pro consilio capiendo adversus Danicos Pyratas (*) Charta Whitlagii Mercyorum Regis ap Ingulph to advise upon some course against the Danish Pyrates who infested the Sea-coast of England II. Another Parliament or Council call it which you will called at Kingbury Anno 855 in the time of Ethelwolph the Son of Egbert pro negotiis Regni (†) Charta Bertult mer. Regis ap Ingulf to treat of the Affairs of the Kingdom the Acts whereof are ratified and subscribed by the Bishops Abbots and other great men of the Realm III. We find that the same King Ethelwolph in a Parliament or Assembly of his States at Winchester Anno 855. Cum consilio Episcoporum Principum (*) Ingulf Croyland hist by the Advice and Counsel of the Bishops and Nobility confirmed unto the Clergy the tenth part of all mens Goods and ordered that the Tythe so confirmed unto them should be free ab omnibus secularibus Servitutibus from all secular Services and Impositions IV. The two Charters were issued out by Athelstone above-mentioned Consilio Wifelmi Archiepiscopi mei aliorum Episcoporum meorum (†) Ap. eund p. 402 403. by the advice of Wiselme his Archbishop and his other Bishops And V. That Ina in the year 902. caused the great Council of his Realm to be Assembled consisting ex Episcopis Principibus Proceribus c. of Bishops Princes Nobles Earls and of all the wise men Elders and people of the whole Kingdom and there Enacted divers Laws for the weal of this Realm (*) Ap. eund p 219. We also read this in the Reign of Edrid Anno 948. viz. in festo igitur Nativitatis Beatae Mariae cum universi Magnates Regni per Regium Edictum summoniti tam Archiepiscopi Episcopi ac Abbates quam caeteri totius Regni Proceres Optimates Londini convenissent ad tractandum de negotiis publicis totius Regni (†) Id. ibid. p. 497. edit Lond. That in the Feast of the Nativity of the Blessed Virgin the great men of the Realm that is to say Archbishops Bishops Abbots Nobles Peers were summoned by the Kings Writ to appear at London to handle and conclude about the publick Affairs of the Kingdom Mention of which Assembly is made again at the Foundation and Endowment of the Abbey of Crowland (†) Mad p. 500. and afterwards a Confirmation of the same by Edgar Anno 966. Praesentibus Archiepiscopis Episcopis Abbatibus Optimatibus Regni (*) Id. p. 5. p. 1. 50. In the presence of Archbishops Bishops Abbots and Peers of the Realm The like Convention of Estates we find to have been called by Canutus the Dane after the death of Edm. Ironside for the setling of the Crown on his own head of which thus the Author (†) Rog. Hoved. Annal pag. prior p. 250. Cujus post mortem Rex Canutus omnes Episcopos Duces nec non Principes cunctosque Optimates gentis Angliae Londini congregari jussit Where we still find the Bishops to be called to Parliament as well as the Dukes Princes and the rest of the Nobility and to be ranked and marshalled first which clearly shews that they were always reckoned for the first Estate before the greatest and most eminent of the Secular Peers And so we find it also in a Charter of King Edward the Confessor the last King of the Saxon Race by which he granted certain Lands and Priviledges to the Church of Westminster An. 1066. Cum Concilio Decreto Archiepiscoporum Episcoporum Comitum aliorumque Optimatum (*) ap H. Spel. in Concil p. 630. with the Counsel and Decree of the Arch-bishops Bishops Earls and others of his Nobles And all this while the Bishops and other Prelates of the Church did hold by no other Tenure than in pura perpetua Eleemosyna (†) Camden in Brit. or frank Almoygne as our Lawyers call it and therefore sate in Parliament in no other capacity than as Spiritual persons meerly who by their extraorinary knowledge in the Word of God and in such other parts of Learning as the world then knew were thought best able to direct and advise their Princes in all points of difficulty But when the Norman Conqueror had possest the State then the case was altered The Prelates of the Church were no longer suffered to hold their Land in Frank Almoigne as before they did or to be free from Secular Services and Commands as before they were Although they kept their Lands yet they changed their Tenure and by the Conqueror were ordained to hold their Lands sub militari servitute (*) Mat. Paris in Will 1. An. 1070. either in Capite or by Baronage or some such military hold and thereby were compellable to aid the King in all times of War with Men Arms and Horses as the Lay-Subjects of the same Tenures were required to do Which though it were conceived to be a great Disfranchisement at first and an heavy burden to the Prelacy yet it conduced at last to their greater honour in giving them a further Title to their Place in Parliament than that which formerly they could pretend to Before they claimed a place therein ratione Officii only by reason of their Offices or Spiritual Dignities but after this by reason also of those Baronies which were erected and annexed to their several Dignities En respect de leur possessions l'antient Baronies annexes a leur Dignities (†) Stratford Pleas. l. 3. as our Lawyers have it From this time forwards we must look upon them in the House of Parliament not as Bishops only but as Peers and Barons of the Realm also and so themselves affirmed to the Temporal Lords in the Parliament holden at Northampton under Henry the Second Non sedemus hic Episcopi sed Barones Pares hic sumus (*) Selden titles of hon p 2. 18. We sit not here say they as Bishops only but as Barons we are Barons and you are
not see if he hath any eyes that by this reason if the proof be good many good Acts of Parliament may be made though the Commons either out of absence or opposition should not consent unto the same of whose consent unto that Statute whosoever it was there is as little to be found in that Record as the concurrence of the Bishops But for answer unto so much of this Record so often spoke of and applauded as concerns the Bishops we say that this if it be truly senced as I think it is not was the particular Act of an Angry and Offended King against his Clergy not to be drawn into example as a proof or Argument against a most clear known and undoubted Right The Cause stood thus A Constitution had been made by Boniface the 8th Ne aliqua collecta ex ecclesiasticis proventibus Regi aut cuivis alii Principi concedatur (†) Math. West in E. 1. that Clergy-men should not pay any Tax or Tallage unto Kings or Princes out of their Spiritual Preferments without the leave of the Pope Under pretence whereof the Clergy at this Parliament at St. Edmonsbury refused to be contributary to the Kings occasions when the Lay-Members of the House had been forwards in it The King being herewith much offended gives them a further Day to consider of it Adjourning the Parliament to London there to begin on the morrow after St. Hilaries Day and in the mean time commanded all their Barns to be fast sealed up The day being come and the Clergy still persisting in their former obstinacy Excluso è Parliamento Clero Consilium Rex cum solis Baronibus populo habuit totumque statim Clerum protectione sua privavit (*) Antiqu. Brit. in R. Winchelsey The King saith the Historian excluding the Clergy out of the Parliament advised with his Barons and his People only what was best to be done by whose Advice he put the Clergy out of his protection and thereby forced them to conform to his Will and Pleasure This is the Summa totalis of the Business and comes unto no more but this that a particular course was advised in Parliament on a particular Displeasure taken by the King against the Body of his Clergy then convened together for their particular refusal to contribute to his Wants and Wars the better to reduce them to their natural Duty Which makes not any thing at all against the Right of Bishops in the House of Peers or for excluding them that House or for the validity of such Acts as are made in Parliament during the time of such exclusion especially considering that the King shortly after called his States together and did excuse himself for many extravagant Acts which he had committed (†) Wolsingh in E. 1. An. 1297. against the Liberties of the Subject whereof this was one laying the blame thereof on his great occasions and the necessity which the Wars which he had abroad did impose upon him And so much as in Answer unto that Record supposing that the words thereof be rightly senced as I think they are not and that by Clerus there we are to understand Archbishops and Bishops as I think we be not there being no Record I dare boldly say it either of History or Law in which the word Clerus serves to signifie the Archbishops and Bishops exclusive of the other Clergy or any Writing whatsoever wherein it doth either notsignifie the whole Clergy generally or the inferiour Clergy only exclusive of the Archbishops Bishops and other Prelates Therefore in answer unto that so much applauded Cavil of Excluso Clero from what Record soever it either hath been hitherto or shall hereafter be produced I shall propose it to the consideration of the sober Reader whether by Clerus in that place or in any other of that kind and time we must not understand the Inferior Clergy as they stand distinguished in the Laws from my Lords the Bishops For howsoever it be true that Clerus in the Ecclesiastical Notion of the Word doth signifie the whole Clergy generally Archbishops Bishops Priests and Deacons yet in the Legal notion of it it stands distinguished from the Prelates and signifieth only the inferiour Clergy Thus do we find the Ecclesiasticks of this Realm divided into Prelates men of Religion and other Clerks 3 E. 1. c. 1. the Seculars either into Prelates and Clerks 9 E. 2. c. 3. 1 R. 2. c 3. or Prelates and Clerks Beneficed 18 E. 3. c. 2. or generally into the Prelates and the Clergy 9 E. 2. c. 15. 14 E. c. 1. 3. 18 E. 3. 2 7. 25 E. 3. 2 4. 8 Hen. 6. c. 1. And in all Acts and Grants of Subsidies made by the Clergy to the Kings or Queens of England since the 32 d. of H. 8 when the Clergy-Subsidies first began to be confirmed by Act of Parliament So also in the Latin Idiom which comes nearest home Nos Praelati Clerus in the submission of the Clergy to King H. 8. (†) Regist Watham and in the Sentence of Divorce against Anne of Cleve (*) Regist Cranmer and in the Instrument of the Grant of the Clergy-Subsidies presented to the Kings of England ever since the 27th of Queen Eliz. and in the form of the Certificates per (†) Stat. 8 Eliz. c. 17. ever since Praelatos Clerum returned by every Bishop to the Lord High Treasurer and finally Nos Episcopi Clerus Cantuariensis Provinciae in hac Synodo more nostro solito dum Regni Parliamentum celebratur Congregati (*) Stat. 1. Phil. Mary c. 8. In the Petition to K. Philip and Mary about the Confirmation of the Abbey-Lands to the Patentees so that though many Statutes have been made in these latter times Excluso Clero the Clergy that is to say the inferior Clergy who anciently had their place in Parliaments being quite shut out and utterly excluded from those publick Councils yet this proves nothing to the Point that any Act of Parliament hath been counted good to which the Bishops were not called or at the making of which Act they either were shut out by Force or excluded by Cunning. But then besides the so much celebrated Argument of excluso Clero the Author of the Pamphlet before remembred hath told us somewhat on the credit of Kilbancies book In which the Justices are made to say 7 Hen. 8. That our Sovereign Lord the King may well hold his Parliament by him and his Temporal Lords and by the Commons also without the Spiritual Lords for that the Spiritual Lords have not any place in the Parliament Chamber by reason of their Spiritualities but by reason of their Temporal Possessions But first this is but the Opinion of a private man of no Authority or Esteem for ought we can can find in the Realm of England and therefore not concluding in so great a business And 2dly admitting him to be a man
it because they are Peers as Earls and Barons are The King grants their Petition and allows the Reason The King cannot err in Titles his Allowance therefore is a sufficient confirmation of their Peerage And this Gentleman p. 93 c. when he argues against their being a third Estate he tells us William the first erected the temporalties of Bishops into Baronies to hold in capite and upon account of those Baronies both the Temporal Lords and Spiritual had of right place in Parliament and were bound to serve him there They were all Foedal Barons all holding by one tenure and by that tenure sitting in Parliament And a little after he saith They are still qualifi'd to be Members of Parliament as before a Baron sate as a Baron an Earl as an Earl Being made by Patent or by Writ or by holding such a proportion of Land alters not the Case as to their sitting in Parliament for it is being of such a degree which makes them Peers of Parliament One would think this is cleer enough for the Bishops Peerage But besides either the Bishops sit in Parliament as Peers or as Commoners if as Commoners then his own Argument p. 90. will be return'd upon him Would it be for the Honour of the House of Lord that Commoners must be put to them to keep the Ballance even with the House of Commons And most clearly it would be a Disparagement to the Peerage of the Kingdom the Temporal Lords and would make them to be a poor Estate that a number of Commoners must be joyn'd to them to make up their Negative Voice and set them upon even ground with the House of Commons But the truth is the Bishops Sit and Vote in Parliament as we said afore by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in regard of their Baronies All the Lords are equal in respect of their Peerage and so they make up but one House but they are distinguish'd by their Nobility and Spirituality respectively and so they make up two Estates distinct and different But to prove that they are no Peers this Gentleman fetches Pag. 85. Cap. 14 29. an Argument from Magna Charta it self I know it saith Every man that is tried at the King's Suit must be tried by his Peers whether he be Amerced or Imprisoned or Disseised or Outlaw'd c. it must be by his Peers But this Argument makes clear against him for he himself informs us p. 11 12. that the Lord Latimer who was the King's Chamberlain for Oppression in several places in Britain and in England was by the Bishops and Lords adjudged to be imprisoned and put to Fine and Ransom and the Lord John Nevil a Privy Counsellor for buying some Debts due by the King at easie Rates to make advantage to himself He mentions some others and concludes At all these Trials the Bishops were present and no body sayes but they might which makes it evident if the Law of Magna Charta were observed that the Bishops sate as Peers in giving Judgment upon those Culprit-Lords But for all this the Gentleman hath a very strong Objection out of Magna Charta against the Bishops Peerage and 't is this If any Bishop be tried for any Capital Offence he is tried by Ibid. 85. the Commoners and that is the Common Law and Practice of the Land then saith he must Commoners be his Peers and he and Commoners must be Pares A Temporal Lord Duke Earl p. 86. or Baron cannot be Judge in the case of a Bishop out of Parliament nor can any Bishop be their Judge how then can they be said to be Pares Fellow-Peers For my part saith he I see not But I will undertake to read the Riddle to him the King may restrain his Favours and limit his Grants as himself pleaseth the Dignities and Priviledges of the Lords Spiritual are not Hereditary like those of the Lords Temporal but only Personal and conferr'd upon them in regard of their Holy Function Hereupon when they are impeached for any heinous Crime which is supposed to desecrate their persons they are interpretatively though not formally degraded * Privilegium personale amittitur extincta persona cui id concessum est And such persons are reputed dead in Law and by a Fiction of Law not unusual dead in that capacity divested of their Peerage with their Spiritualities and so being in the sense of the Law reduced to that condition they come to be tried as Commoners And thus much for the Bishops Peerage 3. For their Right to Sit as Judges in Cases Capital as this Gentleman saith p. 3. It deserves a strict enquiry and we should do well to consider upon what ground the Prelates were prohibited having Votes in Cases of Blood Such a Prohibition indeed is extant but it is Authentical only in the Canon Law as we shall evince anon but this Law is Popish grounded upon Principles of Superstition Usurpation and Papal Tyranny and is very irrational and uncharitable according to the usual practice of it This I doubt not to make appear to the unprejudiced and impartial Reader In the Interim I think to remove a great mistake of this Gentleman who tells us that Mat. Paris a Monk one that would not be partial for the Lords Temporal in relating matters to give them Let. p. 73. more power in Judicature and less to the Lords Spiritual than of right belonged to each and looking upon this exclusion of the Prelates from the power of Judging in such cases to be some diminution of their Omnipotency which they were so ambitious of he therefore ranks it amongst the Consuetudines iniquas the wicked Customs of the former times I say herein the Gentleman has committed a great mistake 'T is true their presence in Parliaments at such Debates was debarr'd and the restraint was put upon them by this Law and none else but so far were the Clergie of those times from ranking this Canon-Laws amongst those wicked Customs that indeed they had it in too high a veneration and this the Gentleman himself observes in divers places of his Letters averring it to be that Law to which only the Clergy of those times would be subject conceiving themselves above and not bound by any other p. 68. And some Laws before that p. 22. He confesseth The Canon Law was to them above all Laws and what was forbidden by that Law they could not have a thought that it could in any sort be Lawful for them to challenge as their right upon any account This Gentleman knew they did look upon it as sacred They appeal to it and plead it for their exemption and this he sets down with his own Hand at p. 20. in these words Quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis alicui eorum juxta sacrorum Canonum instituta quomodo libet personaliter interesse