concorditer ordinari but also to consent both in their own names and in the names of those who sent them unto all such things as by mature deliberation and consent should be there ordained Which Mandate being received by the B. of London the several Bishops cited accordingly and intimation given by those Bishops unto their Arch Deacons for summoning the Clergy to make choice of their Procurators as also the Chapters or capitular Bodies to do the like The next work is to proceed to the choice of those Procurators Which choice being made the said Chapters under their common seals and the said Clergy in a publick Writing subscribed by them do bind themselves sub Hypotheca omnium bonorum suorum under the pawn and forfeiture of al their goods moveable and immoveable I speak the very words of these publick Instruments se ratum gratum acceptum habere quicquid dicti Procuratores sui nomine vice suis fecerint c. To stand to and perform whatsoever their said Procurators in their name and stead shall do determine and consent to The like is also done in the Province of York but that the Arch-bishop thereof sends out the Summons in his own name to the Suffragan Bishops the Province being small and the Suffragans not above three in number Finally as the Convocations of the Clergy in their several Provinces were called by the Arch-bishops only the Kings Writ thereunto requiring and authorizing so by the same powers were they also dissolved again when they had done the business they were called about or did desire to be dismissed to their own affairs At which time by special Writ or Mandates to the said Arch-bishops expressing the calling and assembling of the Convocation by vertue of the former Precept it is declared That on certain urgent causes and considerations moving his Majesty thereunto he thought fit with the advice of his Privy Councel that the same should be again dissolved Et ideo vobis mandamus quod eandem praesentem Convocationem hac instanti die debito modo sine ulla dilatione dissolvatis sive dissolvi faciatis prout convenit and therefore did command them to dissolve it or cause the same to be dissolved in the accustomed manner without delay Which Writ received and not before the Convocation was dissolved accordingly and so it holds in Law and practcie to this very day I have the longer staid on these publick Forms partly because not obvious unto every eye but especially to let you see by what Authority the Clergy are to be assembled in their Convocations and what it is which makes their Canons and Conclusions binding unto all those which send them thither or intrust them there Their calling by the Kings Authority makes their meeting lawful which else were liable to exceptions and disputes in Law and possibly might render them obnoxious to some grievous penalties and so would their continuance too after the Writ was issed for their Dissolution As on the contrary their breaking or dissolving of their own accord would make them guilty of contempt and consequently subject to the Kings displeasure for being called by the Kings Writ they are to continue till dissolved by the Kings Writ also notwithstanding the dissolving of the Parliament with which sometimes it might be summoned And so it was resolved in terminis by the chief Judges of the Realm and others of his Majesties Counsel Learned May 10. anno 1640. at such time as the Convocations did continue sitting the Parliament being most unhappily dissolved on the Tuesday before subscribed by Finch Lord Keeper of the Great Seal Manchester then Lord Privy Seal Littleton chief Justice of the Common Pleas Banks Atturney General Whitfield and Heath his Majesties Sergeants Authority enough for the poor Clergy to proceed on though much condemned and maligned for obedience to it Now as they have the Kings Authority not only for their Meeting but continuance also so also have they all the power of the whole National Clergy of England to make good whatsoever they conclude upon The Arch-Bishops Deans Arch-Deacons acting in their own capacities the Procurators in the name and by the power committed to them both by he Chapters or capitular Bodies and the Diocesan Clergy of both Provinces And this they did by virtue of that power and trust alone without any ratification or confirmation from King or Parliament until the 25th year of King Henry the VIII At which time they bound themselves by a Synodical Act whereof more hereafter not to enact promulge or execute any Canons Constitutions or Ordinances Provincial in their Convocations for time coming unless the Kings Highness by his Royal Assent command them to make promulge and execute the same accordingly Before this time they acted absolutely in their Convocations of their own Authority the Kings Assent neither concurring nor required and by this sole Authority which they had in themselves they did not only make Canons declare Heresie convict and censure persons suspected of Heresie in which the subjects of all sorts whose Votes were tacitely included in the suffrages of their Pastors and spiritual Fathers were concerned alike But also to conclude the Clergy whom they represented in the point of Property imposing on them what they pleased and levying it by Canons of their own enacting And they enjoyed this power to the very day in which they tendred the submission which before we spake of For by this self-authority if I may so call it they imposed and levied that great Subsidy of 120000 l. an infinite sum as the Standard of the times then was granted unto K. Henry VIII anno 1530. to free them from the fear and danger of the Praemuniri By this the Benefit of the Chapter called Similiter in the old Provincial extended formerly to the University of Oxon only was made communicable the same year unto Cambridge also By this Crome Latimer Bilney and divers others were in the year next following impeached of Heresie By this the Will and Testament of William Tracie of Toddington was condemned as scandalous and heretical and his body taken up and burnt not many days before the passing of the Act of Submission anno 1532. But this power being thought too great or inconsistent at least with the Kings Design touching his divorce the Clergy were reduced unto such a straight by the degrees and steps which you find in the following Section as to submit their power unto that of the King and to promise in verbo sacerdotii that they would do and Enact nothig in their Convocations without his consent And to the gaining of this point he was pressed the rather in regard of a Remonstraence then presented to Him by the House of Commons in which they shewed themselves aggrieved that the Clergy of this Realm should act Authoritatively and supremely in the Convocations and they in Parliament do nothing but as it was confirmed and ratified by the Royal Assent Which notwithstanding though this
11. The great Disfranchisement and slavery obtruded on the English Clergy by the depriving of the Bishops of their Votes in Parliament 12. A brief discussion of the Question whether any two of the three Estates conspiring or angreeing together can conclude any thing unto the prejudice of the third BUT first before we fall on the Point it self and search into the Power ascribed by Calvin to the three Estates of every Kingdom we must first see what kind of men they are and of what condition who constitute the said Estates which being first setled and determined we shall the better be inabled to proceed accordingly in the enquiry after that Authority which our Author gives them of regulating the proceedings of the Sovereign Prince and putting a restraint on the exorbitant power of Kings In which we shall presume for granted what our Author gives us viz tres Ordines in singulis Regnis that in each several Kingdom there are three Estates and those three we shall prove to be though our Author is no otherwise to be understood the Clergy the Nobility the Common people which distribution of the Subject into three Estates as 't is very ancient so ws the distribution of them into three neither more nor less founded on good prudential motives and grounds of Polity For as judicious Bodin very well observeth should there be only two Estates and no more than so either upon such differences as might rise between them the one side would be apt to compel the other by force of violence or else aequatis Ordinum suffragiis Bodin de Repub l. 3. cap. ult the ballance being even between them their meetings would be many times dissolved without producing any notable effect to the benefit of the Common-wealth In which respect the counterpoise or addition of a third Estate was exceeding necessary ut alterutri sese adjungens utrumque conciliet that joyning unto either of the other two it might unite them both into one Opinion and advance the service of the publick And on the other side were there more than three opinionum multitudo the difference of Opinions and pretence of interesses would keep them at perpetual distance and hinder them from pitching upon any point in which all their purposes and aims were to be concentred So that the casting of the body of a people into three Estates seems most convenient for the furtherance of the publick service and of those three Estates the Priests or Clergy as we call them since the times of CHRIST have generally been accounted one For though Hippodamus whom Aristotle justly taxeth for defects in Polity ordained his three Estates to be the Souldiery Aristot Politic l. the Handicrafts-man and the Husbandman yet wiser Statists saw no reason that the two last should pass for several Estates or ranks of men being that both might be more fitly comprehended under the name and rank of the common people And therefore the Egyptians did divide the people into these three ranks the Priest which is respondent to the Christian Clergy the Souldier who carrieth most resemblance to the State of Nobles and those which lived by Trades and labours whom by one general name they called Operarii Diodor. Siculus as we now the Commons which course we find to be observed also by the ancient Gauls dividing their whole body into these three Orders the Druides who had the charge of matters which concerned Religion Caesar de Bello Gallico l. 6. the Equites who managed the affairs of War and then the Plebs or common people who were subordinate to the other two and directed by them How this division hath succeeded in the States of Christendom we shall see hereafter In the mean time we may take notice that the Priests of Egypt the Druides of Gaul and those who had the ordering of those services which concerned the gods by whatsoever name or Title they were known and called in other Countreys were not so tied unto the Altars and other ministerial Offices which concerned the gods as not to have some special influence in ordering the affairs of the Common-wealth The Priests of Egypt as we read in Aelian an Author of unquestioned credit possessed the highest seats of Judicature and were the only Judges which that people had Aelian in Varia histor l. 14. c. 34. Synesius Ep. 57. Judices apud Egyptios iidem quondam fuerunt qui sacerdotes as that Author hath it And so much is assured us by Synesius also a Christian Bishop of the East where he resembleth them in this particular to the Priests of Judah The like we find in Agathias of the Priests of Persia men better known in ancient Writers by the name of Magi Agathias in hist Porsic l. 2. of whom he telleth us eorum consilio publica omnia administrari c. that by their counsel and advice the principal affairs of the State were ordered rewards proportioned and conferred upon well-deservers and several punishments inflicted on the Malefactors according to the quality of the misdemeanor and finally that nothing was conceived to be rightly done quod Magnorum sententia non sit confirmatum which had not passed the approbation of these Priests or Magi. If we draw nearer towards the West and look into the Government of the State of Athens we shall find the chief authority thereof to consist in the Senate of 500 and in the famous Court of the Areopagites as was noted in the former Chapter in which the Priests or at the least the principal of that rank or order had both place and suffrage For in that honorary Edict which they made in favour of Hyrcanus we may clearly see that Dionysius the son of Asclepiades was one of the Priests Joseph Judaic Antiqu. l. 14. c. 16. and also one of the Prytanaei or Presidents of the Council as we call them now and that in calculating of the Voices 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dorotheus the chief Priest had the greatest stroke and pronounced the Edict to be passed And for the Court of Areopagites it consisted as before we told you of such and such alone as formerly had bore the Office of the nine Annual Magistrates whereof the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Rex Sacrorum whom we may English the chief Bishop had the second place Suidas in verbo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Plutarch in Pericle And this appears yet further by a passage in the life of Pericles where we are told of his design for the abasing of the power of the Areopagites 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of which Court he was not any Member as the Author tells us in that he had never born the Office either of the Provost or the King or the Polemarchus or any of the six chief Justices So that the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Rex Sacrorum or chief Bishop being of course to be admitted into the Court or Council of the Areopagites when his year was ended it
or if the King dislikes of any thing in it when they shew it to him it either is razed out or mended before it be prefented to the publick view King James of blessed memory who very well understood his own power and the Forms of that Parliament describes it much to the same purpose in his Speech made at Whitehall March 31. Anno 1609. About twenty days saith he before the Parliament Proclamation is made throughout the Kingdom to deliver unto the Kings Clerk of Register all Bills to be exhibited that Session before a certain day Then are they brought unto the King and perused and considered by him and only such as he alloweth of are put into the Chancellors hands to be propounded to the Parliament and none others And if any other man in Parliament speak of any other matter than is in this sort first allowed by the King the Chancellor telleth him that the King hath allowed of no such Bill Besides when they have passed them for Laws they are presented to the King and he with his Scepter put into his hands by the Chancellor must say I ratifie and approve all things done in this present Parliament And if there be any thing that he disliketh it is razed out before So the eldest Parliament-man as he said himself at that time in Scotland This was the Form of holding Parliaments in Scotland which whosoever doth consider with a serious eye may perceive most plainly that it is wholly in the Kings power to frame the Parliament to his own will or at the least to hinder it from doing any thing to the prejudice of his Royal Crown and Dignity in that the nominating of the Lords of the Articles did in a manner totally depend on him Which being observed by the Scots they took the opportunity when they were in Arms to pass an Act during the Presidency of the Lord Burley Anno 1640. for the abolition of this Order Acts of Parliaments 16 Carol and for reducing of that Parliament to the Forms of England as being thought more advantagious to their purposes than the former was So that the violent disloyalty of the Scotish Subjects their Insurrections against their Kings and murdering them sometimes when their heels were up which makes that Nation so ill spoken of in the Stories of Christendom are not to be imputed to the three Estates convened in Parliament or to any power or Act of theirs Rivet cont tenuit but only prae fervido Scotorum ingenio as one pleads it for them unto the natural disposition of that fierce and head-strong people yet easilier made subject unto Rule and Government The three Estates assembled in the Court of Parliament when in the judgment of our Author they are most fit to undertake the business have for the most part had no hand in those desperate courses And now at last we are come to England where since we came no sooner we will stay the longer and here we shall behold the King established in an absolute Monarchy from whom the meeting of the three Estates in Parliament detracteth nothing of his Power and Authority Royal. Bodin as great a Politick as any of his time in the Realm of France hath ranked our Kings amongst the absolute Monarchs of these Western parts And Cambden as renowned an Antiquary as any of the Age he lived in Bodin de Rep. l. 1. c. 8. hath told us of the King of England supremam potestatem merum imperium habere Cambden in Britan. descript That he hath supream power and absolute command in his Dominions and that he neither holds his Crown in vassalage nor receiveth his investiture of any other nor acknowledgeth any Superiour but God alone To prove this last he cites these memorable words from Bracton an old English Lawyer omnis quidem sub Rege ipse sub nullo sed tantum sub Deo that every man is under the King but the King under none saving only God But Bracton tells us more than this and affirms expresly that the King hath supream power and jurisdiction over all causes and persons in this his Majesties Realm of England that all Jurisdictions are vested in him and are issued from him and that he hath jus gladii or the right of the Sword for the better governance of his people This is the substance of his words but the words are these Bracton de leg Angl. l. 2. c 24. Sciendum est saith he quod ipse Dominus Rex ordinariam habet jurisdictionem dignitatem potestatem super omnes qui in regno suo sunt Habet enim omnia jura in manu sua quae ad coronam laicalem pertinent potestatem materialem gladium qui pertinet ad Regni gubernandum c. He adds yet further Habet item in potestate sua leges constitutiones that the Laws and Constitutions of the Realm Id. l. 2. c. 16. are in the power of the King by which words whether he meaneth that the Legislative power is in the King and whether the Legislative power be in him and in him alone we shall see anon But sure I am that he ascribes unto the King the power of interpreting the Law in all doubtful cases in dubiis obscuris Domini Regis expectanda interpretatio voluntas which is plain enough For though he speaketh only de chartis Regis expectanda interpretatio voluntas which is plain enough For though he speaketh only de chartis Regiis factis Regum of the Kings Deeds and Charters only as the words seem to import yet considering the times in which he lived being Chief Justice in the time of King Henry the 3d. wherein there was but little written Law more than what was comprehended in the Kings Grants and Charters he may be understood of all Laws whatever And so much is collected out of Bractons words by the Lord Chancellor Egerton of whom it may be said without envy that he was as grave and learned a Lawyer as ever sat upon that Bench. Who gathereth out of Bracton that all cases not determined for want of foresight are in the King to whom belongs the right of interpretation not in plain and evident cases but only in new questions and emergent doubts and that the King hath as much right by the constitutions of this Kingdom as the Civil Law gave the Roman Emperors where it is said Rex solus judicat de causa à jure non desinita Case of the Post-nati p. 107 108. And though the Kings make not any Laws without the counsel and consent of his Lords and Commons whereof we shall speak more in the following Section yet in such cases where the Laws do provide no remedy and in such matters as concern the politick administration of his Kingdoms he may and doth take order by his Proclamations He also hath Authority by his Prerogative Royal to dispense with the rigour of the Laws and
that many an honest and well-meaning man both of the Clergy and the Laity either because of the appearance of the thing it self or out of some opinion of those men who first endeavoured to promote it became exceedingly affected towards the same as taking it to be a Doctrin sent down from Heaven for encrease of Piety So easily did they believe it and grew at last so strongly possessed therewith that in the end they would not willingly be persuaded to conceive otherwise thereof than at first they did or think they swallowed down the hook when they took the bait An hook indeed which had so fastned them to those men who love to fish in troubled waters that by this Artifice there was no small hope conceived amongst them to fortifie their side and make good that cause which till this trim Deceit was thought of was almost grown desperate Once I am sure that by this means the Brethren who before endeavoured to bring all Christian Kings and Princes under the yoke of their Presbyteries made little doubt to bring them under the command of their Sabbath Doctrines And though they failed of that applauded parity which they so much aimed at in the advancing of their Elderships yet hoped they without more ado to bring all higher Powers whatever into an equal rank with the common people in the observance of their Jewish Sabbatarian rigours So Doctor Bound declares himself pag. 171. The Magistrate saith he and Governours in authority how High soever cannot take any priviledg to himself whereby he might be occupied about worldly business when other men should rest from labour It seems they hoped to see the greatest Kings and Princes make suit unto their Consistory for a Dispensation as often as the great Affairs of State or what cause soever induced them otherwise to spend that Day or any part or parcel of it than by the new Sabbath Doctrine had been permitted For the endearing of the which as formerly to endear their Elderships they spared no place or Text of Scripture where the word Elder did occur and without going to the Heralds had framed a Pedigree thereof from Jethro from Noahs Ark and from Adam finally so did these men proceed in their new devices publishing out of holy Writ both the antiquity and authority of their Sabbath day No passage of Gods Book unransacked where there was mention of a Sabbath whether the legal Sabbath charged on the Jews or the spiritual Sabbath of the Soul from sin which was not fitted and applied to the present purpose though if examined as it ought with no better reason than Paveant illi non paveam ego was by an ignorant Priest alledged from Scripture to prove that his Parishioners ought to pave the Chancel Yet upon confidence of these proofs they did already begin to sing Victoria especially by reason of the enterteinment which the said Doctrines found with the common people For thus the Doctor boasts himself in his second Edition Anno 606. as before was said Many godly learned both in their Preachings Writings and Disputations did concur with him in that Argument and that the lives of many Christians in many places of the Kingdom were framed according to his Doctrine p. 61. Particularly in the Epistle to the Reader that within few years three several profitable Treatises successively were written by three godly learned Preachers Greenhams was one whoseever were the other two that in the mouth of two or three witnesses the Doctrine of the Sabbath might be established Egregiam verò laudem spolia ampla But whatsoever cause he had thus to boast himself in the success of his new Doctrines the Church I am sure had little cause to rejoyce thereat For what did follow hereupon but such monstrous Paradoxes and those delivered in the Pulpit as would make every good man tremble at the hearing of them First as my Author tells me it was preached at a Market Town in Oxfordshire that to do any servile work or business on the Lords day was as great a sin as to kill a man or commit adultery Secondly preached in Somersetshire that to throw a Bowl on the Lords day was as great a sin as to kill a man Thirdly in Norfolk that to make a Feast or dress a Wedding Dinner on the Lords day was as great a sin as for a Father to take a knife and cut his childs throat Fourthly in Suffolk that to ring more Bells than one on the Lords day was as great a sin as to commit Murder I add what once I heard my self at Sergeants Inn in Fleetstreet about five years since that temporal death was at this day to be inflicted by the Law of God on the Sabbath-breaker on him that on the Lords day did the works of his daily calling with a grave application unto my Masters of the Law that if they did their ordinary works on the Sabbath day in taking Fees and giving Counsel they should consider what they did deserve by the Law of God And certainly these and the like conclusions cannot but follow most directly on the former Principles For that the fourth Commandment be plainly moral obliging us as straitly as it did the Jews and that the Lords day be to be observed according to the prescript of that Commandment it must needs be that every wilful breach thereof is of no lower nature than Idolatry or blaspheming of the Name of GOD or any other deadly sin against the first Table and therefore questionless as great as Murder or Adultery or any sin against the second But to go forwards where I left my Author whom before I spake of being present when the Suffolk Minister was convented for his so lewd and impious Doctrine was the occasion that those Sabbatarian errours and impieties were first brought to light and to the knowledg of the State On which discovery as he tells us this good ensued that the said books of the Sabbath were called in and forbidden to be printed and made common Archbishop Whitguift by his Letters and Visitations did the one Anno 1599. and Sir John Popham Lord Chief Justice did the other Anno 1600. at Bury in Suffolk Good remedies indeed had they been soon enough applyed yet not so good as those which formerly were applied to Thacker and his fellow in the aforesaid Town of Bury for publishing the books of Brown against the service of the Church Nor was this all the fruit of so bad a Doctrine For by inculcating to the people these new Sabbath speculations teaching that that day only was of Gods appointment and all the rest observed in the Church of England a remnant of the will-worship in the Church of Rome the other holy days in this Church established were so shrewdly shaken that till this day they are not well recovered of the blow then given Nor came this on the by or besides their purpose but as a thing that specially was intended from the first beginning from
Princes of the line of Cecrops now it began to be Elective Tacit. hist l. 1. and to be given to them who best pleased the people Et loco libertatis erat quod eligi coeperunt and it was some degree of liberty and a great one too that they had power to nominate and elect their Princes But long they did not like of this although no doubt a great intrusion on the Regal dignity The Princes were too absolute when they held for life not so observant of the people as it was expected because not liable to accompt nor to be called unto a reckoning till it was too late till death had freed them from their faults and the peoples censure And therefore having tried the Government of thirteen of these perpetual Archontes of which Medon the son of Codrus was the first and the last Alemaeon In decem annos Magistratuum consuetudo conversa est they introduced another custom Euseb in Chr. Asrican apud Euseb Chronâ— and every tenth year changed their Governors These they called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Decennial Archontes of which they had but seven in all and then gave them over and from that time were governed by nine Officers or Magistrates chosen every year who for that cause were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the Annual Magistrates And yet it is to be observed that in both these changes the Archon whosoever he was and whether he was for term of life or for ten years only had all the power which formerly was belonging to the Kings save the very name in which regard Eusebius doth not stick to call them by the name of Kings where speaking of the institution of these Annual Magistrates he doth thus express is Euseb Chron. Athenis Annui principes constituti sunt cessantibus Regibus as S. Hierom renders it Now for these Annual Magistrates they were these that follow that is to say 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Jul. P. 〈◊〉 in Onomast l. 8. c. 9. which we may call the Provost who 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was called the Archon the Bishop or High Priest the Marshal and the six Chief Justices Of these the Provost was the chief 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of whom they did denominate the ensuing year and by whose name they dated all their private Contracts and Acts of State Id ibid. Sect. 2. To him it appertained to have a care of celebrating the Orgies of Bacchus and the great Festival which they termed Thargelia consecrated to Apollo and Diana as also to take cognizance of misdemeanors and in particular to punish those who were common Drunkards and to determine in all cases which concerned matter of inheritance and furthermore to nominate Arbitrators for the ending of Suits and private differences to appoint Guardians unto Orphans and Overseers unto Women left with child by their Husbands The 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whom we call the Bishop or High Priest had the charge of all the sacred mysteries 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Id. ibid. Sect. 3. and the administration of the usual and accustomed Sacrifices together with the cognizance of sacriledg prophaneness and all other actions which concerned Religion as also power to interdict litigious persons or Common Barretters as we call them from being present at the celebration of the holy Mysteries And he retained the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because that anciently their Kings as in all places else had the chief hand in matters which related to the publick service of the Gods and the solemn Sacrifices On the which reason and no other the Romans had their Regem Sacrificulum whom Plutarch calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in imitation of the Latine but Dionysius 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Plutarch in Problemat Dionys Halicarnas hist l. 5. Livie hist Roman lib. 2. in the true Greek phrase of which Livie thus Rerum deinde divinarum habita cura quia quaedam publica sacra per ipsos Reges factitata erant necubi Regum desiderium esset Regem Sacrificulum creant But to proceed the Polemarchus whom we English by the name of Marshal sat Judg in cases of sedition and such whereby the grandeur of the State might suffer detriment as also in all actions which concerned either Denizens or Merchant-strangers and unto him it appertained to sacrifice to Diana and to Mars the two military Deities Jul. Pollux in Onomast l. 8. c. 93. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to prescribe the funeral pomp for such as lost their lives in their Countreys service Each of these had their two Assessors Id. ibid. Sect. of their own Election but so that they were bound to chuse them out of the Senate of five hundred from no lower rank Finally for the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who we call Chief Justices they were six in number 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Suidas in Lex and had authority to give Judgment absolutely in all Civil pleas to judg of strangers which abused the priviledges which they had in the City of Bribery Conspiracies false inscriptions in cases of Adultery and publick crimes in points of Trade Jul. Pollux in Onomast ll 4. c. 9. sect 1. and actions which concerned the Stannaries as also to review the sentence of the Provost and the decrees of the Senate if occasion were and to give notice to the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Julius Pollux if any man preferred a Law which was not profitable and expedient for the Common-wealth Such were the Officers and such the duty of those Officers ordained at Athens upon the last alteration of the Government which before we spake of and amongst these we find not any popular Magistrate who was to have a care of the common people and to preserve them in their rights and liberties from the oppression of the greater and more powerful Citizens much less set up of purpose to oppose the Senate And to say truth we must not look for any such amongst the Nine nor in these times in which this alteration of the Government was first established They could not fall immediately from a Regal State to a Democratical but they must take the Aristocratie in the way unto it They had been under Kings at first or such as had the power of Kings although not the name And when they chose these Annual Officers they chose them ex nobilibus urbis out of the Nobles only Euseb Chron. Scaliger in Aâ—imadveâ—s as Eusebius hath it which Scaliger is forced to grant to be so at first though out of a desire to confute his Author he would very fain have had it otherwise Whether or no they had such Officers as Calvin dreams of when they had setled their Democratie we shall see anon having first shewn by whom and by what degrees the Government of the State was cast on the peoples shoulders and the form thereof made meerly popular or Democratical For certainly it is most true that never
c. The King is the Head Modus tenendi Parl. Ms. c. 12. the beginning and end of the Parliament and so he hath not any equal in the first degree the second is of Arch-bishop Bishops and Priors and Abbots holding by Barony the third is of Procurators of the Clergy the fourth of Earls Barons and other Nobles the fifth is of Knights of the Shire the sixth of Citizens and Burgesses and so the whole Parliament is made up of these six degrees But the said Modus tells us more and goeth more particularly to work than so For in the ninth Chapter speaking of the course which was observ'd in canvassing hard and difficult matters it telleth us that they used to choose 25 out of all degrees like a grand Committee to whose consideration they referred the point that is to say two Bishops and three Proctors for the Cleergy two Earls three Barons fire Knights five Citizens and as many Burgesses And in the 12th that on the fourth day of the Parliament the Lord High Steward the Lord Constable and the Lord Marshal were to call the House every degree or rank of men in its several Order and that if any of the Proctors of the Clergy did not make appearance the Bishop of the Diocess was to be fined 100 l. and in the 23d Chapter it is said expresly that as the Knights Citizens and Burgesses in things which do concern the Commons have more Authority than all the Lords so the Proctors for the Clergy in things which do concern the Clergy have more Authority than all the Bishops Preface to the 9th part of Reports Which Modus if it be as antient as the Norman Conqueror as both Sir Edward Coke conceiveth and the title signifieth it sheweth the Clergies claim to a place in Parliament to be more antient than the Commons can pretend unto but if no older than the Reign of King Edward III. as confidently is affirmed in the Titles of Honour Titles of hon pt 2. c. 5. it sheweth that in the usage of those latter times the Procurators of the Clergy had a right and place there as well as Citizens and Burgesses or the Knights of the Shires And this is further proved by the Writs of Summons directed to the Arch-bishops and Bishops for their own coming to the Parliament in the end whereof there is a clause for warning the Dean and Chapter of their Cathedrals and the Arch-deacons with the whole Clergy to be present at it that is to say the Deans and Arch-deacons personally the Chapter and Clergy in their Proctours then and there to consent to such Acts and Ordinances as shall be made by the Common Council of the Kingdom The whole clause word for word is this Praemunientes Priorem Capitulum or decanum Capitulum Extant ibid. pt 2. c. 5. as the case might vary Ecclesiae vestrae N. ac Archidiacanos totumque Clerum vestrae Dioceseos quod iidem Decanus Archidiaconi in propriis personis suis ac dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero habentes praedicto die loco personaliter intersint ad consentiendum iis quae tunc ibidem de communi consilio ipsius Regni nostri divina favente clementia contigerit ordinari Which clause being in the Writs of King Edward I. and for the most part of the Reign of his next Successors till the middle of King Richard the second at which time it began to be fixt and formal hath still continued in those Writs without any difference almost between the Syllables to this very day Id. ibid. Now that this clause was more than Verbal and that the Proctors of the Clergy did attend in Parliament is evident by the Acts and Statutes of King Richard the second the passages whereof I shall cite at large the better to conclude what I have in hand The Duke of Glocester and the Earl of Arundel having gotten the mastery of the King obtained a Commission directed to themselves and others of their nomination Statut. 21 R. 2. c. 2. to have the rule of the King and his Realm and having their Commission confirmed by Parliament in the 11. year of his reign did execute divers of his Friends and Ministers and seized on their Estates as forfeited But having gotten the better of his head-strong and rebellious Lords in the one and twentieth of his reign he calls a Parliament in the Acts whereof it is declared That on the Petition of the Commons of the assent of all the Lords Spiritual and Temporal and of the Proctors of the Clergy Ibid. c. 2. he repealed the said Statute and Commission and with the assent of the said Lords and Commons did ordain and establish that no such Commission nor the like be henceforth purchased pursued or made This done the Heirs of such as had been condemned by vertue of the said Commision demanded restitution of their Lands and Honours And thereupon the Lords Spiritual and Temporal and the Procurators of the Clergy the Commons having prayed to the King before as the Appellants prayed severally examined did assent expresly that the said Parliament and all the Statutes Ibid. c. 12. c. and restitution made as afore is said And also the Lords Spiritual and Temporal the Procurators of the Clergy and the said Commons were severally examined of the Questions proposed at Nottingham and of the Answer which the Judges made unto the same which being read as well before the King and the Lords as before the Commons it was demanded of all the States of the Parliament what they thought of the Answers and they said that they were lawfully and duly made c. And then it followeth whereupon the King by the assent of the Lords Spiritual and Temporal and the Procurators of the Clergy and the said Commons and by the advice of the Justices and Sergeants aforesaid who had been asked their Opinion in point of Law ordained and established that the said Parliament should be annulled and held for none Add unto this that passage in the 9 of Edward 2. where it is said that many Articles containing divers grievances committed against the Church of England the Prelates and Clergy were propounded by the Prelates and Clerks of our Realm in Parliament and great instance made that convenient remedy might be appointed therein Proem ad articalos Cleri that of the complaints made to the King in Parliament by the Prelates and Clergy of this Realm 50 Ed. 3.5 8 Rich. 2. c. 13. and that of the Petition delivered to the King in the Parliament by the Clergy of England Selden hist of Tithes c. 8.33 4 Hen. 4. c. 2. And finally that memorable passage in the Parliament 51 Edw. 3. which in brief was this The Commons finding themselves agrieved as well with certain Constitutions made by the Clergy in
be Lords of Parliament concerning which take this from Chief Justice Coke where he affirms that only a Lord of Parliament shall be tryed by his Peers being Lords of Parliament and neither Noblemen of any other Countrey nor others that are called Lords and are no Lords of Parliament are accounted Peers that is to say Peers within this Statute he meaneth the Magna Charta or Great Charter of England the ground of all our Laws and Liberties to this very day by which it seems that he conceived a Peer and a Lord of Parliament to be terms equivalent every Peer of the Realm being a Lord of Parliament and every Lord of Parliament a Peer of the Realm which clearly takes away the pretended difference that is made between them But secondly admit the distinction to be sound and solid yet it will easily be proved that Bishops are not only Lords of Parliament but Peers of the Realm In order whereunto we must take notice of some passages in our former Treatise touching the Bishops place and Vote in Parliament that is to say that from the first planting of the Gospel in the Realms of England parcelled at that time amongst several Kings the Bishops always had the principal place in their Common Councils which the Saxons call by the name of Wittenegemote or the Assembly of wise men and afterwards in the time of the Normans took the name of Parliaments In all which Interval from Ethelbert the first Christian King of Kent in the year of our Lord 605. till the death of Edward the Confessor which happened in the year 1066 no Common Council of the Saxons had been held without them and all this while they held their Courts by no other Tenures than purâ perpetuâ Eleemosynâ franke Almoigne as our Lawyers call it discharged from all Attendances upon secular Services And therefore they could sit there in no other Capacity than ratione officii spiritualis Dignitatis in regard of their Episcopal function which as it raised them to an height of eminence in the eye of the people so it was probably presumed that they were better qualified than the rest of the Subjects as the times then were for Governing the great Affairs of the Common-wealth But when the Norman Conqueror had attained the Crown he thought it an improvident Course to suffer so much of the Lands of the Nation as then belonged unto the Prelates whether Bishops or Abbots in the Right of their Churches to be discharged from doing service to the State And therefore he ordained them to hold their Lands sub militari servitute either in Capite or by Baronage or some such military hold whereby they were compellable to aid the Kings in all times of War with Men Arms and Horses as the Lay-subjects of the same Tenure were required to do Concerning which our Learned Antiquary out of Matthew Paris informs us thus viz. Cambden Brit. fol. 123. Rex enim Gulielmus Episcopatus Abbatias quae Baronias tenebant in purâ perpetuâ Eleemosynâ catenus ab omni servitute militari libertatem habuerunt sub servitute statuit militari Irrotulans singulos Episcopos Abbatias pro voluntate sua quot milites sibi successoribus hostilitatis tempore à singulis voluit exhiberi Which though at first it was conceived to be a great Disfranchisement and an heavy burden to the Prelacy yet Cambden very well observes that it conduced at last to their greater honour in giving them a further Title to their place in Parliament a claim to all the Rights of Peerage and less obnoxious to Disputes if considered rightly than that which formerly they could pretend to so that from this time forwards we must look upon them in all English Parliaments not only as Bishops in the Church but as Peers and Barons of the Realm of the same Tenure and therefore of the same preheminence with the Temporal Lords Which certainly must be the Reason that the Bishops of the Isle of Man are not called to Parliament because they hold not of the King by Barony as the rest of the English Bishops do but hold the whole Estate in Lands from the Earl of Darby Thus also saith a Learned Lawyer Coke Institut part 2. f. 3. Every Arch-bishoprick and Bishoprick in England are of the Kings foundation and holden of the King per Baroniam and many Abbots and Priors of Monasteries were also of the Kings foundation and did hold of him per Baroniam and in this Right the Arch-bishops and Bishops and such of the Abbots and Priors as held per Baroniam and were called by Writ to Parliament were Lords of Parliament And yet not Lords of Parliament only but Peers and Barons of the Realm as he shall call them very shortly on another occasion In the mean time we may observe that by this changing of their Tenure the Bishops frequently were comprehended in the name of Barons and more particularly in that passage of Magna Charta Coke Institut part 2. fol. 23. where it is said Comites Barones non amercientur nisi per pares suos that Earls and Barons are not to be amerced but by their Peers concerning which the said Great Lawyer tells us thus viz. That though this Statute as he calls it be in the negative yet long use hath prevailed against it for now the Amerciament of the Nobility is reduced to a certainty viz. a Duke 10 l. an Earl 5 l. a Bishop that hath a Barony 5 l. where plainly Bishops must be comprehended in the name of Barons and be amerced by their Peers as the Barons were though afterwards their Amerciaments be reduced to a certainty as well as those of Earls and Barons in the times succeeding And then if Bishops be included in the name of Barons and could not be legally amerced but by their Peers as neither could the Earls or Barons by the words of this Charter it must needs follow that the Bishops were accounted Peers as well as any either of the Earls or Barons by whom they were to be Amerced And for the next place we may behold the Constitutions made at Clarendon the tenth year of King Henry the 2d Matth. Paris in Hen. 2d Anno 1164. in which it was declared as followeth viz. Archiepiscopi Episcopi universae personae Regni qui Rege tenent in Capite habeant possessiones suos de Rege sicut Baroniam inde respondeant Justiciariis Ministris Regis sicut caeteri Barones debent interesse Curiae Regis cum Baronibus quousque perventum sit ad diminutionem membrorum vel ad mortem Where first I think that those words universae personae are to be understood of none but Ecclesiastical persons according to the notion of the word persona in the Common Law and so to comprehend the Regular Clergy as well as the Arch-bishops and Bishops But secondly if we must understand it of the Laity also it
must needs follow thereupon that all which held their Lands of the Crown in Capite were capable in those times of a place in Parliament And so it seems they had in the Reign of King John and afterwards in the Reign of King Henry the 3d but in the last years of the said King Henry and by the power and prudence of King Edward the first were brought into a narrower compass none being admitted to appear and attend in Parliament but such as he thought fit to summon by his Royal Mandate And hereunto as well our choicest Antiquaries as our most eminent Lawyers do consent unanimously But here is to be noted saith Chief Justice Coke that if the King give Lands to any one tenendum per servitium Baronis de Rege he is no Lord of Parliament till he be called by Writ to the Parliament which as he there declares for a point of Law so is it also verified in point of practice out of 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 that all Arch-bishops Bishops Priors and other Prelates of the Church who hold their Lands either in right of their Counties or in right of their Baronages were to be summoned and come to Parliament in regard of their Tenures Where we may see that though they had a jus ad rem in regard of their Tenures yet they had no pretence to their Jus in re but only by the Writ of Summons And secondly whereas the Modus speaks of some Bishops which were to be called to the Parliament in the right of their Counties I think he means it of the Bishops of Durham and Ely which enjoyed all the Rights and priviledges of a County Palatine in their several Circuits By which we see that to the making of a Baron or a Lord of Parliament it is not only necessary that he hold by Barony but that he have his Writ of Summons to attend the service which puts a signal difference between Lords of Parliament and such as are called Lords in respect of their birth or in regard of some great Offices which they hold in the State of the first sort whereof are all the eldest sons of Earls and upwards who are not only honoured with the name of Lords but challenge a precedence by the Rules of Herauldry before all the Barons of the Realm and yet can lay no claim to the Rights of Peerage unless perhaps they may be summoned to the Parliament in their fathers life time And so it hapned in the Case of the Earl of Surrey the eldest son of Thomas Lord Howard Duke of Norfolk arraigned in the last days of King Henry the eighth and tried by a Jury of twelve men because not being called to Parliament in his fathers life-time he could not be considered as a Peer of the Realm And in the last sort we may reckon the Lord Chancellor the Lord Treasurer the Lord Privy Seal the Lord President of his Majesties Council the Lord High Chamberlain the Lord Admiral the Lord Steward and the Lord Chamberlain of his Majesties Houshold the Lord Warden of the Cinque-ports and the three Chief Judges who if they be not otherwise of the Rank of Barons can plead no Title to their Peerage nor to Vote in Parliament and so it hapned in the Case of Sir William Stanly Lord Chamberlain to King Henry the seventh tried by a Jury of twelve men in a case of Treason without relation to his great Office or Title of Lord. Most true it is that some of these great Officers have their place in Parliament and so have all the Judges of the Courts of Westminster the Master of the Rolls the Masters of the Chancery the Kings Attorney General and perhaps some others all summoned to attend the service by Especial Writs but they are only called to advise the Court to give their Judgment and Opinion when it is demanded but not to canvass or debate and much less to conclude in any business which is there discoursed of as both the Bishops and the Temporal Lords are impowred to do Which difference appears in the Writs themselves For in the Writ of Summons to the Judges and the rest here mentioned the words run thus viz. Quod intersitis nobiscum cum caeteris de concilio nostro and sometimes nobiscum only supra praemissis tractaturi vestrumque consilium impensuri But in the Writ of Summons to the Bishops and the rest of the Peers we shall find it thus viz. quod intersitis cum praelatis magnatibus proceribus super dictis negotiis tractaturi vestrumque consilium impensuri c. which Writs of Summons to the Bishops and the Temporal Peers are the same verbatim but that the Bishops are required to attend the service sub fide dilectione the Temporal Peers sub fide ligeantia quibus nobis tenemini Upon which Premises it may be rationally inferred that the Bishops of this Church were reputed Barons a Baron and a Barony being conjugata and being Barons have as good a Claim to the right of Peerage as any of the Temporal Lords who hold as well their Peerage as their place in Parliament by no other Tenure for that a Baron of Realm and a Peer of the Realm are but terms synonymous and that the Bishops of the the Church of England are both Peers and Barons hath been proved before and may be further evidenced from that which they affirmed to the Temporal Lords convened in Parliament at Northampton under Henry the 2d for the determining of the differences betwixt the King and Thomas Becket Arch bishop of Canterbury which the Temporal Lords would fain have thrust upon the Bishops as more competent Judges to which the Bishops thus replied viz. non sedemus hic Episcopi sed Barones nos Barones vos Barones Pares hic sumus We sit not here say they as Bishops only Seldens Titles of Honour pag. â—18 but as Barons also we are Barons and you are Barons here we sit as Peers Their sitting in the Parliament was in a right of their Baronies And in the right of their Baronage they were also Peers and Peers to all intents and purposes as well as any others whether Earls or Barons who had Vote in Parliament This appears further by the words of Arch-bishop Stratford who being suspended from his place in Parliament by King Edward the 3d came boldly to the Doors of the House and turning towards those that attended there thus maintained his Claim Amice Rex me ad hoe Parliamentum scripto sua vocavit Antiq. Brittan ego tanquam major Par regni post Regem primam vocem habere debens in Parliamento Jura Ecclesiae meae Cantuariensis vendico ideo Ingressum in Parliamentum peto Which
Courts Coke Institutes part 4 p. 45. out of the Records of Parliament and in his Margent pointing to the 13th of King Edward the third doth instruct us thus viz. Abbates Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertinet in Parliamentis Regni quibuscunq ut pates Regni praedicti personaliter interesse ibique 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 Parliamenti tempore imminent facienda Which if it be the same with that which we had before differing only in some words as perhaps it is yet we have gained the Testimony of that Learned Lawyer whose judgment in this Case must be worth the having For hear him speaking in his own words and he tells us this viz. Coke Institut fol. 4. That every Lord of Parliament either Spiritual as Arch-bishops and Bishops or Temporal as Dukes Marquesses Earls Viscounts and Barons Peers of the Realm and Lords of Parliament ought to have several Writs of Summons where plainly these words Peers and Lords of Parliament relate as well to Spiritual as to the Temporal Lords And therefore if the Arch-bishops and the Bishops may be granted to be Lords of Parliament they must be also granted to be Peers of the Realm Now to the Testimony and Authority of particular persons we shall next add the sentence and determination of our Courts of Law in which the Bishops are declared to be Peers of the Realm and to be capable of all the priviledges which belong to the Peerage For first in the aforesaid Case of the Bishop of Winchester when he was brought upon his Trial for departing from the service of the Parliament without leave of the King and pleaded sor himself quod esset unus è Paribus Regni c. The priviledg of Barony It was supposed clearly both by Court and Council that he was a Peer that part of his defence being not gainsayed or so much as questioned So in the Year-Books of the Reign of King Edward the 3d in whose Reign the Bishop of Winchester's Case was agitated as before is said a Writ of Wards was brought by the Bishop of London and by him pleaded to an Issue and the Defendant could not be Essoyned or have day of Grace for it was said that a Bishop was a Peer of the Land haec erat causa saith the Book which reports the Case In the like Case upon an Action of Trespass against the Abbot of Abbingdon who was one of the Lords Spiritual day of Grace was denied against him because he was a Peere de la Terre So also it is said expresly that when question was made about the returning of a Knight to be of a Jury where a Bishop was Defendant in a Quare impedit the Rule of the Court was that it ought to be so because the Bishop was a Peer of the Realm And in the Judgment given against the Bishop of Norwich in the time of Richard the 2d he is in the Roll expresly allowed to be a Peer for he had taken exceptions that some things had passed against him without the Assent or knowledg of his Peers of the Realm To which Exception it was Answered that it behoved him not at all to plead that he was a Prelate for traversing such Errors and misprisions as in the quality of a Souldier who had taken wages of the King were committed by him Thus also in the Assignment of the Errors under Henry the fifth for the Reversal of the Attainder of the Earl of Salisbury one Error is assigned that Judgment was given without the consent of the Prelates which were Peers in Parliament And although that was adjudged to be no Error yet was it clearly allowed both in the Roll and the Petitions that the Bishops were Peers Finally in the Government of the Realm of France the Bishops did not only pass in the Ranks of Peers but six of them were taken into the number of the Douze-pairs or twelve Peers of that Kingdom highly esteemed and celebrated in the times of Charlemayne that is to say the Arch-bishop and Duke of Rhemes the Bishop and Duke of Laon the Bishop and Duke of Langres the Bishop and Earl of Beuvois the Bishop and Earl of Noyon the Bishop and Earl of Chalons And therefore it may be inferred that in the Government established by the Anjovin and Norman Kings the English Bishops might be ranked with the Peers at large considering their place in Parliament and their great Revenues and the strong influence which they had on the Church and State But there is little need for Inferences and book-Cases and the Authorities of particular men to come in for Evidence when we are able to produce an Act of Parliament to make good the point For in the Statute made the 4th year of King Henry the fifth it was repeated and confirmed That no man of the Irish Nation should be chosen by Election to be an Arch-bishop Bishop Abbot or Frior nor in no other manner received or accepted to any dignity and benefice within the said Land c. The Reason of which inhibition is there said to be this viz. because being Peers of the Parliament of the said Land they brought with them to the Parliaments and Councils holden there some Irish servants whereby the privities of the Englishmen within the same Land have been and be daily discovered to the Irish people Rebels to the King to the great peril and mischief of the Kings lawful Liege people in the said Land And if the Bishops and Arch-bishops of Ireland had the name of Peers there is no question to be made but the name of Peers and the right of Peerage may properly be assumed or challenged by them Now as this Statute gives them the name of Peers so in an Act of Parliament in the 25th year of King Henry the 8th they are called the Nobles of your Realm as well Spiritual as Temporal as all your other Subjects now living c. Which Term we find again repeated by the Parliament following the Nobles Spiritual and Temporal and that twice for failing so that we find no Title given to Earls and Barons Nobles and Peers and Lords as the Statutes call them but what is given to the Bishops in our Acts of Parliament and certainly had not been given them in the stile of that Court had any question then been made of their Right of Peerage And that their calling had not raised them to a state of Nobility concerning which take this from the Lord Chief Justice Coke for our more assurance and he will tell us that the general division of persons by the Law of England is either one that is Noble and in respect of his nobility of the Lords House of Parliament or one of the Commons of the