AN ANSVVER To this Quodlibetical QUESTION Whether the Bishops make a Fundamental and Essential part of the English PARLIAMENT COLLECTED Out of some Memorials in a larger Treatise for the Information of some the Confirmation of others and the satisfaction of all De Legib. â—onga Consuet Si de interpretatione Legis quaeritur imprimis inspiciendum est pro jure civitas retro in hujusmodi casibus usa fuit Consuetudo enim optima interpretatio legis est LONDON Printed for A. Seile over against St. Dunstans Church in Fleet-street 1661. AN ANSVVER To this Quodlibetical QUESTION viz. Whether the Bishops be a Fundamental and Essential part of the English Parliaments WHereas a great Question hath been raised of late and but lately neither Whether the Bishops make a Fundamental and Essential part of the English Parliament I hope to put it out of question by two sorts of Arguments of which the 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 occurre 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. Counsel 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 Lawes and Weights and Measures be ordained throughout the Kingdom 2ly 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 hujusmodi 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 3ly 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 judicijs Curiae Regis cum Baronibus quosque pervenierat ad dimmutionem membrorum vel ad mortem (*) Math. Paris in Hen. 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 Parliament until 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 England but out of a restraint imposed upon them by the Canons of the Church of Rome 4ly In the Great 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 And Habendum commune concilium Regni de auxilio assidendo c. Et de scutagijs assidendis faciemus summoneri Archiepiscopos Abbates Comites majores Barones Regni sigillatim per litter as nostras preteria summoneri faciemus in generali per Vice-Comites 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 and Barons or either of them A form or copie of which Summons issued in the time of the said King John is extant on Record and put in Print not many years since in the Titles of Honour (†) P. 1.20.5 5ly We have it thus in the Magna Charta of King Henry the 3d. 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 cap. 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 Inferiour 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 solemn Curse denounced on all the Infringers of it by Boniface Arch-Bishop of Canterbury (†) Math. Paris in Hen. 3. and ratified in no fewer then 80. succeeding Parliaments So was it Enacted in the raign of Edward the first That it should be sent under the great Seal of England to all the Cathedral Churches of the Kingdome to be read twice a year before the people (†) 28. Edw. 1. c. 1. That they should be ready four times every year in a full County Court (*) 28 Edw. 1. c. 2. and finally that all Judgements given against it should be void and null (†) 28. Edw. 1. c. 3. the application or which last clause I refer to those to whom the rectifying of the Error which to the contrary thereof hath been committed doth of right belong 6ly We have the protestation of John Stratford Arch-Bishop of Canterbury in the time of King Edward the 3d. who being in disfavour with the King and denied entrance in to the House of Peers Challenged his place and suffrage there as the first Peer of the
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 Abby of Crowland (†) M. id 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 Edmund Ironside for the setling the Crown on his own head of which thus the Author (†) Rog. Heveden Annal pag. prior p. 250. Cujus post mortem Rex Canutus omnes Episcopos Duces nec non Principes cunctosque optimates gentis Angliae Londoniae 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 alwayes 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 Privileges to the Church of Westminster Anno 1066. Cum Concilio deereto Archiepiscoporum Episcoporum Comitum aliorumque optimatum (*) ap H. Spel. in Concil p. 630. with the Counsel and Decree of the Archbishops 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 purô perpetuô Eleemosynâ (*) Camden in Brit. or frank Almoigne as our Lawyers call it and therefore sate in Parliament in no other capacity than as spiritual persons meerly who by their extraordinary 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 Conquerour 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 Conquerour were ordained to hold their Lands sub militari servitute (*) Mat. Patis in will 1. An. 1070. either in Capite or by Baronage or some such military hold and thereby were compellable to aid the Kings 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 the first and an heavy burthen 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 Officij 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 lour possessions L' antient Baronies annexes a lour dignities (†) Stanford 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 Tempotal Lords in the Parliament holden at Northampton under Henry the second Non sedimus 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 Barons here we sit as Peers Which last is also verified 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 primats totius Angliae (†) Math. Paris in willielmo 1. the Bishops Abbats 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 (†) Eadmer hist Nov. l. â— And 3ly During the raign of King Henry the first for we will take but one example out of each Kings raign though each Kings raign would yeild us more a Parliament was called at London wherein were many things dispatched as well of Ecclesiastical as Secular nature the Bishops and Abbots being present with the other Lords Coactâ— apud Londoniam Magno Episcoporum Procerum Abbatumque consilio multa Ecclesiasticarum Secubarium rerum ordinata negotia dieisa Litigia saith the Monk of Malmsbury (†) Malâ—b 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 Raign 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 controversie between Alphonso King of Castile and Sancho King of Navarre referred by compromise 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 n. 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 Iâ—h wherein the Bishops Earls and Barons did with one consent agree to seize on his Estate and suppresse his power the better to preserve the Kingdome in Wealth Peace and Safety 6ly After succeeded John and he calls a Parliament wherein were certain Laws made for the defence of this Kingdome Communi ascensu 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 in 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 Proeme 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 Copie of which Summons as antient as King Johns time is still reserved upon Record directed Nominatim to the Arch-Bishop of Canterbury (†) Titles of Hon. part 2. cap. 1. and then a scriptum est similiter to the residue of the Bishops Abbates Earls and Barons Then adde 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 passe by any of his Forests in comming to Parliament upon his Commandment (†) Charta de foresta cap. their injoying of the same immunities which are and have been heretofore injoyed by the Temporal Barons (†) Camden in Britania and tell me if the Bishops did not sit in Parliament by as good a Title as the Temporal Lords and therefore certainly 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 3 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 Soveraign Lord (†) Tit. Liv. M. S. in Bibl. Bodl. as his Heir and Successor And three Estates there could not be to perform that service unlesse the Bishops were acknowledged to be one of the number 2ly In the Parliament Roles of King Richard the third there is mention of a Bill or Parchment presented to that Prince being then Duke of Gloucester on the behalf and in the name of the 3 Estates of the Realm of England that is to wit of the Lords Spiritual and Temporal and of the Commons by name which for as much as neither the said 3 Estates nor the persous 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. Rich. 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 Soveraign Lord the King was and is the very and undoubted Heir of this Realm of England c. And 3ly So it is acknowledged in a (†) 1 Eliz. Cap. 3. Statute of 1 Eliz. cap. 3. where the Lords Spiritual and Temporal and the Commons in that Parliament Assembled being said expresly and in terminis to represent the three Estates of the Realm of England did recognize the Queens Majestie to be their true Lawful and Undoubted Soveraign Leig'd Lady and Queen And in a Statute of the 8th year of the said Queens Reign the Bishops and Clergy are declared to be the greatest Estates of the Realm and called the High Estate of Prelacy in another place It may perhaps be thought unnecessary or impertinent to adde the Testimony and Authority of a private person to that which hath been said by our Laws and Statutes But being it is such a Person as was accounted for the Oracle of Law when he served in Parliament his Judgement may be taken for a creditable and sufficient Evidence in the present Case It is the Testimony and Authority of Sir Edward Coke successively Chief Justice of either Bench who in his book concerning the Jurisdiction of Courts speaks thus of Parliaments (†) Coke of Parl. Fol. 1. This Court saith he consisteth of the Kings Majesty sitting there as in his Royal Politick Capacity and of the three Estates of the Realm viz. of the Lords Spiritual Archbishops and Bishops who sit there by Succession in respect of their Counties Baronies parcel of their Bishopricks which they hold also in their Politick Capacity And every one of these when any Parliament is to be holden ought ex debito Justitiae to have a Writ of Summons Secondly the Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their dignities which they hold by Discent or Creation and likewise every one of these being of full age ought to have a Writ of Summons Ex debito Justitiae The 3d. Estate is the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Burghes All which are respectively Elected by the Shires or Counties Cities and Boroughs by force of the Kings Writ ex debito Justitiae and none of them ought to be omitted And these represent all the Commons of the whole Realm and are trusted for them So He and this is plain enough beyond all exception Adde hereunto ex abundanti that in all Christian Kingdomes of the Gothick Model there are no more nor fewer than three estates convented at the will and pleasure of the Supreme Prince for their assistance and advice in Affairs of consequence that is to say the Bishops and other Ecclesiastical persons who are alwayes one the Nobles for themselves and the Commissioners for the Commons of their several Provinces For so we find it in the Constitution of the Roman Empire and the Realms of Spain the Kingdoms of France Poland Hungary together with those of Dane mark Sweden and the Realm of Scotland And it
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 witnesse of it Rex me ad hoc Parliamentum scripto suo vocavit ego tanquam major par Regni post Regem primam vocem habere debens in Parliamento jura Ecclesiae meae Cantuarensis vendico ideo ingressum in Parliamentum pero (†) Antiqui Britan 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 of custome only but as a power and privelege as he ought to have habere debens are the words in the Right of his See 7ly And lastly there is the protestation on Record of all the Bishops in the raign of King Richard the 2d 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 businesse in their own words thus De jure consuetudine Regni Angliae ad Archiepiscopum Cantuarensem qui pro tempore fuerit nec non cateros Suffraganos confratres compatres Abbates Priores Aliosque Prelatos quoscunque per Baroniam de Domino Rege tenentes Pertinet in Parliamentis Regis quibuscunque ut Parâ—s Regni predidi personaliter interesse ibidemque de Regni negotiis ac aliis tradari consuetis cum caeteris didi Regni patibus aliis ibidem jus interessendi habentibus Consulere Tradare Ordinare Statuere Diffinire ac caetera facere quae Parliamento ibidem iminent facionda (†) In vita Gu. Courtney It appertaines say they both by Right and Custome to the Arch-Bishop of Canterbury for the time being As also unto all the rest of his Compeers as well 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 three 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 practise 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 goe 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 Wittenegemote the Counsell or Assembly of the Wise men of the Realm Anno 605. Ethelbertus Rex in fide corroboratus Catholicâ c. Cantuariae convocavit Commune Consilium tam Cleri quam popusi King (†) H. Spelmon in Concil 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 together with Berha his Queen their Son Thalbald the reverend Arch-Bishop 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 Kingdome 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 Heptarches yet being the West Saxon Kingdome 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 Kingdomes 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 whitlagiâ— mercyoâ—um Regis ap Ingulph to advise upon some course against the Danish Pirates who infested the Sea-coast of England II. Another Parliament or Council call it which you will called at Ringbury 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 Kingdome the Acts whereof are ratified and subscribed by the Bishops Abbats 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 Councel 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 Wifelme his Arch-Bishop and his other Bishops And 5ly 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 his Realm (†) ap cund 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 summoniri tam Archiepiscopi Episcopi ac Abbates quam caeteri totius Regni proceres optimates Londiniis convenissent ad tractandum de negotijs publicis totius Regni (†) Id ibid. p. 497. edit Lon. That in the Feast of the Nativity of the blessed Virgin the great men of the Realm that is