of Treason in the Person of Becket Stephanides is my Author for this who was a Chaplain and follower of that Arch-Bishop The Barons say saith that Author you Bishops ought to pronounce Sentence upon your selves we are Layicks you are Church-men as this fellow is being his fellow Priests and fellow Bishops To whom some one of the Bishops replyed this belongs rather to you my Lords than to us for this is no Ecclesiastical but a Secular Judicature We sit not here as Bishops but as Barons Nos Barones vos Barones hic pares sumus We Barons and you Barons are all Peers in this place And in vain it is that you should labour to find any difference at all in our Order or Calling c. see this M. S. cited by Mr. Seldens Titles of honour the 2d Edition pag. 705. And thus the Custom continued until the 21 year of the same King Henry 2 at what time that Provincial Synod was kept at Westminster by the Arch-Bishop of Canterbury and some few of his Suffragans which Roger Haveden mentions in his History pag. 543. And it seems Gervasius Dorobernensis which is a M. S. I have not seen The quoting of this Monk in the Margen of that Collection of Priviledges which Mr. Selden by Command had made for the upper House of Parliament is the only ground of stirring up this question against the Bishops at this present intended by Mr. Selden for a Priviledge for Bishops not for a Priviledge for the Lay-Peers to be pressed against Bishops The Canon runs thus It is not Lawful for such as are Constituted in Holy Orders Indicium Sanguinis agitare to put in Execution Judgments of Blood And therefore we forbid that they shall either in their own Persons Execute any such mutilation of Members or Sentence them to be so acted by others And if any such Person shall do any such thing he shall be deprived of the Office and Place of his Order and Function We do likewise forbid under the peril of Excommunication that no Priest be a Secular Sherif or Provost Now this is no Canon made in England much less Confirmed by Common Law or assented unto by all the Bishops of the Province of Canterbury or by any one of the Province of York but Transcribed as appears by Hovedens Margen out of a Council of Toledo which in the time That Council is supposed to be held to wit the year of our Lord 660 was the least Kingdom in Spain and not so big as York-shire and consequently improper to reigle all the World and especially this remote Kingdom of England Besides that as this poor Monk sets it down it doth Inhibit Church-men from being Hang-men rather than from being Judges or at the most from being Judges to Condemn men to be thus mutilated and mangled in their Members An ordinary punishment of the Gothes and Vandals who then lived in Spain but never heard of here with us of many years before the Reign of Henry 2d And therefore not fitly pressed to drive Bishops from sitting as Peers in the Case of the Earl of Strafford who was not to be Sentenced to any mutilation of Members True it is that in the Council it self being the 11th Council of Toledo and the 6th Canon they are forbidden quod morte plectendum est Sententiâ propriâ judicare to Sentence in any Cause that is to be punished by Death Whereas in the 4th Council of Toledo under Sisinandus held not long before Anno Dom. 633. Canon 31 It is said that the Kings do oftentimes commit to Priests and Bishops their Judicature contra quoslibet Majestatis obnoxios against all Traytors howbeit from that time forward they are directed not to obey their King in this particular unless they have him bound by Oath to Pardon the party in Case they shall find Reason to mediate for him And thus the Canon Law went in Spain but nowhere else in Christendom in that Age. But these Bishops at Westminster travailed not so far as Toledo to fetch in this Canon into their Synod but took it out of Gratian then in vogue for he lived in the time of Henry Beauclark Grand-Father to this Henry the 2d who in the 2d part of his Decrees Cap. Clericis saith thus Clericis in Sacris ordinibus constitutis ex Concilio Toletano judicium sanguinis agitare non licet And so this Canon was fetch'd from Spain into these other parts of Europe five hundred years after the first making thereof upon this occasion Pope Gregory the 7th otherwise called Hildebrand who lived in the time of William the Conqueror having so many deadly quarrels against Henry the 4th Emperor of Germany to make his party good and strong laid the first ground which his Successors in their Canons closely pursued to draw the Bishops and other great Prelates of Germany France England and Spain from their Lay-Soveraignes and Lay-Lords to depend wholly upon him and so by Colour and Pretence of Ecclesiastical Immunities withdrew them from the Services of their Princes in War and Peace and particularly from Exercising all places of Judicature in the Civil Court of Princes To the which Offices they were by their breeding and Education more enabled than the Martial Lay-Lords of that rough Age and by their Fiefes and Baronies which they held from Kings and Emperors particularly Bound and Obliged And therefore shall you find that whereas the Bishops of this Island before the Conquest did still joyn with the Kings and Elder-men Lay-Lords in the making and executing of all Laws whatsoever touching deprivation of Life or mutilation of Members yet soon after when the Norman and English Prelates Lanfranc Anselm Becket and the rest began to Trade with Rome and as Legati nati to Wed the Laws and Canons cryed up in Rome and to plant them here in England they withdrew by little and little the English Prelates from those imployments by and dependances upon the Kings of England And under the Colour of Exemptions and Church Immunities erected in this Land an Ecclesiastical Estate and Monarchie depending wholly upon the Pope inhibiting them to exercise Secular Imployments or to sit with the rest of the Peers in Judicatures of Life and Member otherwise than as they list themselves And hence principally did arise those great heats between our Rufus and Anselm which Edmerus speaks of and those Antient Customs of this Kingdom which Henry the 2d pressed upon Becket in the Articles of Clarindon that the Prelates ought to be present in the Kings Courts c. Which Pope Alexander a notable Boutefeu of those times in the Church of God did tolerate though not approve of as he apostyles that Article with his own hand to be shewed to this day in the M. S. extant in the Vatican Library And although I shall not deny but the Popes did pretend Scripture for this Inhibition as they did for all things else and allude unto that place 2 Tim. 3.4 which
Kingdom and therefore they are abolished by the Statute of 25 Henry the 8 th 2. So are they by the same Statute because the Lords have declared That the Bishops Vote here by the Laws and Statute of this Realm And all Canons that Cross with these are there abolished 3. So are they by the same Statute as thwarting the Kings Prerogative to call Bishops by Summons to Vote in Parliament 4. So are they by the Vote in the House of Commons 21 Maij. 1641 Because they are not Confirmed by Act of Parliament 5. This Argument was deserted by Mr. Perpoint and confest to be but an Argumentum ad hominem Arg. IIII. Because the twenty four Bishops have a dependancy upon the Arch-Bishops and because of their Oath of Canonical obedience to them Answer 1. They have no dependancy upon the Arch-Bishops but in points of Appeal and Visitation only and owe them no Obedience but in these two points None at all in Parliament where they are Pares they are equals and as Bracton tels us Par in Parem non habet imperium What hath Canonical Obedience to do with a Vote in Parliament declared in this Bill to be no Ecclesiastical but a Secular Affair 2. This Argument reacheth not the two Arch-Bishops discharged in the Rubrick from this Oath and therefore is no Reason for the passing of this Bill Arg. V. Because they are but for their Lives and therefore are not fit to have Legislative Power over the Honours Inheritances Persons and Liberties of others Ans. 1. Bishops are not for their Lives only but for their Successors also in their Land and Honour As the Earls and Barons also are for their Successors in their Lands and Honours and holding their Lands in Fee-Simple may with as good reason Vote in the Honour Inheritance Persons and Liberties of others as others may and do in theirs 2. Many Peers have been Created for their Lives only and the Earl of Surrey for the Life of his Father who yet Voted in this House 3. The Knights Citizens and Burgesses are chosen for one Parliament only and yet use their Legislative Power nor will their being Elected difference their Case for the Lords use that Power in a greater eminency who are not Elected 4. A Burgess that hath a free-hold but for term of Life only may Vote and assent to a Law in Parliament 5. No such exception ever heard of in the Diets of Germany the Corteses of Spain or the three Estates in France where the Prelates Vote in all these points with the Nobility and the Commons Arg. VI. Because of Bishops dependancy and expectancy of Translations to places of greater profit Answ. 1. This Argument supposeth all Kings and all Bishops to be very faulty if they take the time of their Votes in Parliament from these dependancies and expectancies 2. This may be said of all the Kings great Officers of all the Noble Members of both Houses who may be conceived as well as Bishops to have their Expectancies and consequently to be deprived by this Reason of Voting in Parliament 3. This Argument reacheth not at the two Arch-Bishops and so falls short of the Votes which are to be taken away by this Bill Arg. VII That several Bishops have of late much encroached upon the Consciences and properties of the Subjects and they and their Successors will be much encouraged still to encroach and the Subjects will be much discouraged from Complaining against such encroachments if 26 of that Order be to be Judges upon these Complaints The same Reason extends to their Legislative Power in any Bill to pass for the regulation of their Power upon any emergent inconveniency by it Answ. 1. This Argument fights not against Bishops Votes in Parliament but against their Votes in Convocation where if any where they have encroached upon the Consciences and Properties of the Subject Nor yet at the Votes of such Bishops there as are not guilty of this Offence Nor need the Subject to be discouraged in Complaining against the like Grievance though 26 of that Order continue Judges for they shall not Vote as Judges in their own Cause when they are Legally Charged And if they should Vote what were that to the purpose when the Lay-Peers are still four to one The Bishops Assisted with a double Number of Mitred Abbots and Priors could not hinder the Laws made against the Court of Rome the Alien Cardinals and Prelates the Provisors the Suiters to the Popes Consistory under Edw. 3 d Rich. 2 d and Hen. 4 th Much more may those emergent exhorbitances of the Ecclesiastical Jurisdiction be soon curbed and redressed in this inequality of Votes between the Temporal and Spiritual Lords So as this Argument doth not so much hurt the Votes as it quails the Courage of the Bishops who may justly fear by this and by the next Argument that the taking away of their Votes is but a kind of forerunner to the abolishing of their Jurisdiction Arg. VIII Because the whole Number of them is interessed to maintain the Jurisdiction of Bishops which hath been found so grievous to the three Kingdoms that Scotland hath utterly abolished it and Multitudes in England and Ireland have Petitioned against it Answ. 1. This Argument is not against the Vote of Bishops but against Episcopacy it self which must be removed because Scotland hath done so and some in England and Ireland would have it so and yet peradventure ten times as great a Number as these desire the contrary 2. There will be found Peers enough in the Upper-House to reform any thing that is amiss in the Ecclesiastical Jurisdiction although the twenty six Prelates should be so wicked as to oppose it as there were found Peers enough in that Noble House to curb the Court of Rome and the Revenues of the Cardinals under Edw. 3 d to meet with the Provisors under Ric. 2 d to put all the Clergy into a Praemunire under Hen. 8 and to Reform the Religion 1º Elizabeth notwithstanding the Opposition of all the Bishops Arg. IX Because the Bishops being Lords of Parliament it setteth too great a distance betweâ—â— them and the rest of their Brethren in the Ministry which occasioneth pride in them discontent in others and disquiet in the Church Answ. This is an Argument from Moral Philosophy which affords no Demonstrations All are not proud that vote in Parliament nor discontented that are not so imployed This Argument fights only against their title of being Lords which is not the Question at this time FINIS
That the BISHOPS IN ENGLAND May and Ought to Vote in Cases of Blood Written in the Late Times upon occasion of the Earl of Straffords Case By Learned Pen With some ANSWERS to the OBJECTIONS of the then Bishop of Lincoln AGAINST Bishops Voting in PARLIAMENT LONDON Printed for Walter Davis 1680. TO THE READER Reader THis Discourse was Written by a Learned Gentleman of the Long-Robe at the beginning of the late troubles in the Case of the Earl of Strafford but never Printed The same Question being started afresh and the consideration of it revived upon the like Occasion it is thought fit to be Published now If it minister any satisfaction to the Reader in the Case the Publisher has his end That Bishops in England may and ought to Vote in Causa Sanguinis and that they were never Inhibited by any Law of this Land or the Lay-Peers so to do before this time and that their voluntary forbearance heretofore to sentence in this Case proceeded from their own Fears of the Canons and Court of Rome and some private ends they then had And by the special leave of the King and both Houses in plein Parliament who were gratiously pleased to allow of their Protestations for their Indemnity as Church-men when they might have rejected their said Protestations if they had pleased With some Answers to the Objections of the Bishop of Lincoln 1. IT is not Prohibitum quia malum nor any way evil in it self no more than it is an evil thing in it self to do Justice 2. It was in use before the Law when the eldest of the Family was King Priest and Prophet 3. It was in use under the Law and so continued in the Priests and Levites down to Annas and Caiphas Nay after the Death of Christ as appears by the Scourging of the Apostles the Stoning of Stephen the directing of St. Paul to be smitten on the mouth c. It was in use in the persons of the Apostles themselves as in that Judgment given upon Ananias and Saphira in the first of the Acts In the Tradition to Sathan as most of the Antient Fathers expound that Censure And generally in all the Word of God there is no one Text that Inhibits Church-men more than Lay-men to use this kind of Judicature For that Precept to be no striker 1 Tim. 3.3 is no more to be appropriated unto a Bishop from the rest of Christian men than that not given to Wine or Roaring which immediately precedes the same In this Island it was in use before the Romans entered the same when the Druyds Si caedes factae poenas constituunt gave all Sentences in Causes of Blood Caes. de bello Gallico lib. 6. see Mr. Selden's Epinomis Cap. 2. Nor is it like the Romans should forbid it in Church-men whose Pontifical Colledge after the entertaining of the 12 Tables medled in all matters of this kind Strabo Geograph lib. 4. And it is not like that the Christian Religion excluded Bishops in this Island from Secular Judicatures considering that King Lucius is directed by the advice of his Council to take out his Laws for the reigling of this Kingdom Ex utraque Pagina that is out of the Old and New Testament which could not be done in that Age without the help of his Bishops See Sir Hen. Spelmans Councils pag. 34. ad Annum Domini 185. And how the great Prelates amongst the Antient Britains were wholly imployed in these kind of Secular Agitations you may see by the Ecclesiastical Laws of Howel Dha set forth by Sir Henry Spelman in his Councils pag. 408. ad Annum Domini 940. 4. And a little before this Howel Dha lived King Aethelstan In the 2 Cap. of whose Ecclesiastical Laws we have it peremptorily set down hinc debent Episcopi cum seculi Judicibus interesse judiciis and particularly in all Judgments of the Ordals which no man that understandeth the word can make any doubt to have been extended to the mutilation of Humane members Sir Spelman's Councils pag. 405. ad Annum Domini 928. 5. And that the Bishops joyned alwayes with the Secular Lords in all these Judiciary Laws and Acts under the whole Reign of the Saxons and Danes within this Island we may see by those Saxon and Danish Laws or rather Capitularies which amongst the French and Germans do signifie a mixture of Laws made by the Prince the Bishops and the Barons to reigle both Church and Common-wealth set forth by Mr. Lambert Anno 1568. see particularly the 9th Chap. of King Edwards Laws de his qui ad judicium ferri vel aquae judicati sunt per Justitiam Regis It is in Mr. Lamberts Laws fol. 128. And thus it continued in this Kingdom long after the Conquest to wit in Henry Beauclarks time after whose Reign it began first of all to be a little limited and restrained For at Clarindon Anno Dom. 1164. the 8th of the Calends of February in the 11th year of Henry the 2. a general Record is agreed upon by that Kings special Command of all the Customs and Liberties of this Kingdom ever sithence Henry the first that Kings Grand-Father as you may see in Matthew Paris pag. 96. of the first Edition where amongst other Customs agreed upon this is one Arch-Bishops Bishops and all other Persons of this Kingdom which hold of the King in Capite are to enjoy their Possessions of the King as a Baronie and by reason thereof are to answer before the Judges and Officers of the King and to observe and perform all the Kings Customs And just as the rest of the Barons ought for it was a duty the King then required from them as the King now by his Summons doth from us to be present in the Judgments of the Kings Courts together with the rest of the Barons until such time as they shall there proceed to the mangling of members or Sentence of Death And here in the last words is a diversity of reading For Matthew Paris a young Monk that lived long after reads this Custom thus Quousque perveniatur ad diminutionem membrorum vel ad mortem Which may be wrested to the first agitation of any Charge tending that way But Quadrilogus a Book written in that very Age and the Copy of the Articles of Clarindon which Becket sent to Rome extant at this day in the Vatican Library and out of the which Baronius in his Annals ad Annum 1164 transcribes it reads the Custom thus Vsque perveniatur in Judicio ad diminutionem membrorum c. which leaves the Bishops to sit there until the Judgement come to be pronounced amounting to Death or mutilation of members And as this was agreed to be the Custom so was it the Practise also after the 11th year to wit in the 15th year of Henry the 2. At what time the Lay-Peers are so far from requiring the Bishops to withdraw that they endeavour to force them alone to hear and determine a matter
2 d. to absent themselves when they listed from this Assembly of the Estate contrary to the Kings Commands in the Writs of Summons and to the duties of their places as Peers of Parliament Howbeit they shewed more Courtesie or more Wit at the least than our present Prelates for they never offered to retire themselves in those dayes before their Protestation was benignly received and suffered to be entred upon the Parliament Roll by the King and the Lords and the House of Commons The Second Reason of this Prelate is of the same Nature and built upon a Medium of Sands which is soon undermined and washed away That although he doubted not of the Legality or Comliness of an Ecclesiastical Peer of the Kingdom of England to Vote in a Judgment of Blood as they do continually in the passing of all Appeals and Attainders in Parliament yet because it is not the practice of Prelates in other parts of the Christian World so to do he thought it better to avoid Scandal and the talk of other Nations That there being in the High Courts of Parliament and Star-Chamber Judges enough besides the Prelates they might without any prejudice to King or Countrey forbear Voting in these Judicatures Somewhat the rather because all our Bishops in England are Divines and Preachers of the Gospel and consequently of mercy rather than of Judgment Who never touch upon the sharpness of the Law unless it be to prepare mens hearts to receive the Comfort of the Gospel But this Prelate cannot but know that these Canons that Oppose the Kings Prerogative are taken away in the Kingdom of England by the Statute of 25 Henry the 8 th which they are not elsewhere And this Bishop if he have not forgot it was taught all this in the Case of Irregularity pursued against Arch-Bishop Abbots when this Bishop fearing the Censure of the Sorbonists in Paris refused to be Consecrated by Abbots unless he the said Abbots would procure himself absolved from that Irregularity which he had Contracted in killing a man by Chance-medly which he was enforced at the last to do this other Prelate being then in his rising and warm Blood and liking better of many good Benefices than of one mean Bishoprick refusing stiffly to be made Bishop of Lincoln upon any other Condition For Bishops making of Procurators in Causes of Blood IT doth not appear that Bishops ever made Protestations or withdrew in Cases of this Nature before the 11th nor after the 21 st of Rich. the 2 d. And yet the Attainders in the 11 th year are afterwards ratified by the Consent of the Lords Spiritual 11 Rich. 2. as you see by their Act of consent Rott 11 Rich. 2. no. 38. And the Printed Statutes And in his twenty first year they made Procurators first Thomas Percy in Writing 21 Rich. 2. no. 9. where you have his Proxie set down in Latine and then Scrop Earl of Worcester by word of mouth As the Roll is 21 Rich. 2. no. 50. where Scrop gives Sentence in the like Causes by vertue of that Procuration as the Roll saith And that this Proxie of the Prelates was not left with a Lay-man for the dispatch of other Civil Causes only but for Judgments of Blood also it is appealed to all Histories and Law-Books that have been Written from that time to this present day Thomas of Walsingham Lived under Henry the 6 th and he saith that it was exacted of the Prelates for it was not their own seeking as you may see upon the Rolls that because they could not be present in Judgments of Blood their Procurator upon the like occasion might assent unto such a Business Walsing in Rich. 2. pag. 354. So likewise in his Hypodigma Neustria pag. 550. Littleton Lived under Edward the 4 th and he pronounceth for himself and all his fellow Judges That the Lords Spiritual who cannot consent to the Death of a man shall make a Procurator in the Parliament before the Steward is to proceed to gather Votes c. The Year-Book 10 Ed. the 4 th no. 17. Stamford Lived under Henry the 8th Edward the 6 th Queen Mary And he saith clearly That when a Peer is Indicted of Treason or Felonie in Parliament the Lords Spiritual shall make a Procurator for them Stam. Pleas of the Crown lib. 3. pag. 153. Mr. John Selden Lives still than whom peradventure there Lived not an abler Lawyer in both the Laws from the 21 st of Richard the 2 d to this day And he saith that the Clergy by reason of the Canon Laws not the Common Laws absented themselves sometimes from such Judgments and committed their whole Interest for the time to a Lay-Proxie Tit. of Honour 2 d part pag. 704. Lastly for the Canon-Law in this point it is not only dispensed withal by the Kings Summons to his Prelates but by the Lords themselves in this very Cause of the Earl of Strafford by their examining of the two Arch-Bishops and a Bishop for Witnesses in the said Cause which is no less forbidden in the Canon Law than to Judge in Causes of Blood Lyndwood Fol. 146. pag. 2. When the effect of this Paper was opened and the Records and all the Books produced by the Bishop of Lincoln who had been in the Tower to search the said Records the Lords declared and ordered that they would use no Proxies of their own in this Tryal with a Salvo of their Right against any other time And thereupon the said Bishop finding the Inclination of the House and Timidity of his Brethren offered the like Declaration with the like Salvo in point of Right for the Lords the Bishops which was accepted of and entered into the Book the Bishop of Lincoln dictating the same THE Bishop of Lincoln's ARGUMENTS That Bishops ought not to Vote in Parliament With the Answers thereunto Arg. I. BEcause it is a very great hindrance to the Exercise of their Ministerial Function Answer 1. It is not so much hindrance as their conveneing in General Councils Synods Convocations Assemblies Classes and the like in all the Churches Reformed or otherwise 2. It is propter majus bonum Ecclesiae 3. The Apostles unnecessarily put themselves to more hindrances to work for their livelyhood Acts 20.24 1 Thes. 2.9 2 Thes. 3.8 Arg. II. Because they do vow and undertake at their Ordination when they enter into Holy Orders that they will give themselves wholly to that Vocation Answer 1. This Vow and undertaking in Ministers Ordination is quite mistaken the words are in the Bishops exhortation not in the Ministers Answer 2. The Bishop hopes they will give themselves wholly to that and not to any other Trade or Vocation 3. Wholly in a Moral and not in a Mathematical sense that will admit of no Latitude Arg. III. Because Councils and Canons in several Ages do forbid them to meddle in Secular Affairs Answer 1. Councils and Canons against Bishops Votes in Parliament were never in use in this