the Councel of Clarendon under Hen. 2. Wherein the Clergy were inforced to appear in the Temporal Courts one Canon thereof being Clerici accusati de quacunque re summoniti a Iusticiario Regis veniant in Curiam responsuri ibidem de hoc unde videbitur Curiae Regis quid ibi sit respondendum in Curia Eeclesiastica unde videbitur quod ibi sit respondendum It a quod Regis Iusticiarius mittet in Curiam sanctae Ecclesia ad videndum quomodo res ibi tractabitur si Clericus vel confessus vel convictus fuerit non debet eum de caetero Ecclesia tueri But touching this and the rest of the Constitutions in that Council Math. Paris doth sharply inveigh against them Hanc Recognitionem five Recordationem de Consuetudinibus libertatibus iniquis dignitatibus Deo detestabilibus Archiepiscopi Episcopi clerus cum Comitibus Baronibus proceribus juraverunt And as he addeth His itaque gestis potestas laica in res personas Ecclesiasticas omnia pro libitu Ecclesiastico jure contempto tacentibus aut vix murmur antibus Episcopis potius quam resistentibus usurpabat And this appeareth also by that which Selden relateth in his notes upon Eadner pag. 268. that long after in Edward the seconds time the Clergy had so many oppositions and hinderances in their proceedings from the Temporal Courts that they exhibited a petition in Parliament wherein they recite the grant and constitution of Will 2. allowing them their own Courts by themselves and specify their complaints particularly which he calleth Gravamina Ecclesiae Anglicanae and saith they are those mentioned in the proem of Artiâ—uli Cleri And in this age we have great cause to complain of Prohibitions but thereof I will say no more now as for the Temporal Courts the Conquerour appointed them to follow his Court royal which Custome continued for many years till under King Iohn at the instant request of the nobility it was granted Ut Communia placita non sequerentur Curiam i. e. Regis sed in loco certo tenerentur That the Court of Justice for Common Pleas should not follow the Kings Court Royal but be held in a place certain as now commonly they are in Westminster-Hall Whereas before the Kings appointed one Grand Lord Chief Justice of all England who for his authority and power was a greater officer both of State and Justice then any in these last ages and ever since that the greatness of that office was abated by King Edw. 1. most of those great Justices were Bishops as Sir Henry Spelman sheweth in his Caralogue of them Glossar pag. 401. Dignitate omnes Reges proceres potestate omnes superabat Magistratus De potestate valde inter alia claret quod quatuor summorum judicum hodiernorum muneribus solus aliquando fungeretur scilicet Capitalis Iustitiarii Banci Regis id est plâ—citorum Coronae seu criminalium Capitalis Iusticiarii Banci Communis id est placitorum Civilium Capitalis Baronis Scacarii hoc est Curiae ad sâ—crum patrimonium fiscum pertinentis c. Most of these great Justices were Bishops as appears by the Catalogue of them they being the principal men for Knowledge and Learning in those dayes and had no doubt power of voting in all Parliaments Councils and assemblies of State And so in these later times Lord Coke sheweth their abilities and rights 4. Instit. pag. 321. The King is well apprised of all his Judges which he hath within his realm as well spiritual as temporal as Arch-bishops Bishops and their officers Deanes and other Ministers who have spiritual jurisdiction It is declared by the King the Lords Spiritual and Temporal and the Commons in full Parliament That the spiritualty now being called the English Church always hath been reputed and also found of that sort that both for knowledge integrity and sufficiency of number it hath been alwayes thought and is also at this hour sufficient and meet of it self without the intermedling of any exterior person or persons to declare and determine of such doubts and to administer all such offices and duties as to their rooms spiritual doth appertain The Adversaries have made divers objections against our Arch-bishops and Bishops Ever since saith Coke But these pretences being in truth but meer Cavils tending to the scandal of the Clergy being one of the greatest States of the realm as it is said in the Statute of 8. Eliz. cap. 1. are fully answered by the said Statute and Provision made by authority of that Parliament for the establishing of the Arch-bishops and Bishops both in praesenti in futuro in their Bishopricks By the Statute also of 39 Eliz. cap. 8. the Arch-bishops and Bishops are adjudged lawful as by the said Act appeareth And by these two Statutes these and all other objections against our Bishops one hath answered which we have thought good to remember seeing we are to treat of their jurisdiction Ut obstruatur os iniquae loquentium saith Lord Coke Yet the fury and rage of these times have stirred up more anger which in the issue will turn to the Confusion and Dishonour of them that began these wars and broyles against the Church and Bishops and fundamental Laws and Statutes which have so fully asserted their rights and authority Thus the Lord Coke premiseth being to treat of the Ecclesiastical Courts and all the jurisdiction belonging to the Clergy and established by the fundamental Laws of the Land against both Papists and Puritans and first he beginneth with the Court of Convocation and of the high Commission in Causes Ecclesiastical which is absolutely necessary for the suppression of all manner of Errots Heresies Schismes abuses offences Contempts and enormities But upon suppression of this Court by the late long Parliament there hath broken forth such an infinite number of heresies schismes sectaries and a rascal rabble of factions as is prodigious to relate and intolerable to be suffered For as it is in the Common Law if there were not Assises and Sessions to punish Malefactors Theeves Cuâ—purses Offenders and Rogues of all sorts the Land would be so Oppressed with the Multitudes of them no man could enjoy his house or goods freehold or life therefore in London they have every moneth a publick sessions to punish Condemn and Execute all sorts of Malefactors And Corporations in principal Cities have the like authority by Commission and Patent from the King But for the high Commission to punish Offenders against Religion and the Church Lord Coke saith pag. 331. That the Kings Majesty hath and Queen Elizabeth had before him as great and ample Supremacy and jurisdiction Ecclesiastical as ever King of England had before them and that had justly and rightly pertained to them by divers other Acts and by the ancient Laws of England if the said clause of annexation in the said Statute of 1. Eliz. had never been inserted That it was a gâ—osse Error
the Chancery and Courts of Equity in charge of a Divine Minister So ran that Channel till Sir Francis Bacons Father had it from a Bishop and now a Bishop had it again from Bacon And had King Iames lived to have effected his desires the Clergy had fixed firm footing in Courts of Judicature out of the road of Common Law and this was the true cause of Williams Invitation thither To prevent many Complaints and Mischiefs there can be no better way then to follow the Example of Gods own chosen people of Israel where the chief fathers of the priests and Levites were Judges in all Courts both high and low sitting together with some chief men of the other Tribes of the Laity as they are now called And though our Law be otherwise of late years and the jurisdiction of Courts divided yet it was not so anciently and the King may put some of the Clergy in some places and Courts at least of Equity as King Iames did design if he had lived longer and that without any prejudice to the Law or Courts of Justice CHAP. IV. Concerning the Honour and Dignity of the Bishops in the time of the Saxons and so continued to these times FOr the Dignity Order and Estimation of the Clergy they were from the beginning reckoned and accounted equal with the best as appears by the Laws of divers Kings as first of the first Christian King Ethelbert who in his Laws doth provide in the first place for their rights and priviledges and what Satisfaction shall be made for any wrong done to the Church or Bishops or Clergy Quicunque res Dei vel Ecclesiae abstulerit duodecima componat solutione Episcopi res undecima solutione Sacerdotis res nona solutione Diaconi res sexta solutione Clerici res trina solutione Pax Ecclesiae Violata duplici emendetur solutione Volens scilicet tuitionem eis quos quorum doctrinam susceperat praestare saith Bede These being the first Laws of our first Christian King of the Saxons they ought to be reverenced for their Antiquity piety and Christian Justice in rendering to every man his own due though some men talk not only of taking away superfluities but of cutting up both root and branches O Tempora O Mores And afterwards about the time of King VVithred there were laws made Quomodo damna injuriae sacris ordinibus illata sunt compensanda And often elsewhere in the Councils many Laws do ordain what satisfaction shall be given to the Church and Bishops for several offences committed for then the Bishops had a great part in all fines and shared in forfeitures and penalties with the King Furthermore for point of Honour and Dignity it appears by the Laws of King Athelstan that every Archbishop was equal to a Duke of a Province Every Bishop to an Earl and so esteemed in their valuations Vide K. Athelstani Regis apud Lambardum p. 71. Concil Britannica pag. 405. cap. 13. de Weregeldis 1. capitum aestimationibus The Title of Baron was not then known or used among the Saxons but they called the Nobility Thanes Vid. K. Inae pag. 187. Sect. 9. and the Bishops were equal or rather superiour to the Thanus Major and the priest to the Thanus minor The Bishop and Earl are valued at eight thousand Theynses Messe-Theynes and Worald-Theynes id est Presbyteri secularis Thani jusjur andum in Anglorum lege reputatur aeque sacrum cùm Sacerdos Thani rectitudine dignus est The Priest was then accounted equal to a Knight or Lord of the Town and was commonly styled by the name of Sir as a Knight was though now it be derided and out of use Out of these Laws and some others doth the learned Antiquary who is so well versed in the Antiquities and Monuments of our Laws and Kingdome fully set down the ancient dignity and order of the Clergy Magno sane in honore fuit Universus clerus cum apud Populum Proceres tum apud ipsos Reges Angliae Saxonicos nec precaria hoc quidem concessione sed ipsis confirmatum legibus Sacerdos ad altare Celebrans minori Thano i. e. Villae Domino atque militi aequiparabatur in censu capitis pariter aestimatus pariterque alias honorandus quia Thani rectitudine dignus est Inquit Lex Abbas sine Câ—nobiarcha inter Thanos majores quos Barones Regis appellarunt posteri primicerius fuit Episcopus similiter inter Comites ipsos majores qui integro fruebantur comitatu juribusque Comitivis Archiepiscopus Duci satratrapae amplissimae Provinciae pluribus gaudenti comitatibus praeficiebatur Vt caeteri omnes Ecclesiastici comparibus suis omnibus secularibus Amplectebantur Reges universum clerum laeta fronte ex eo semper sibi legebant primos a consisiis primos ad officia Reipublicae obeunda Quippe sub his seculis apud ipsos solum erat literarum clavis scientiae dum militiae prorsus indulgerent laici factumque est interea ut os sacerdotis oraculum esset plebis Episcopi oraculum Regis Reipuâ— Primi igiâ—ur sedebant in omnibus Regni comitiis tribunalibus Episcopi in Regali quidem palatio cum Regni magnatibus in comitatu una cum comite Iusticiaerio comitatus in Turno Vicecomitis cum Viceâ—omite in Hundredo cum Domino Hundredi sic ut in promovenda justitia usquequaque gladius gladium adjuvaret nihil inconsulto sacerdote qui velut saburra in navi fuit ageretur Mutavit priscam hanc consuetudinem Gulielmus primus c. After the Conquest William the first divided the Ecclesiastical Courts from the secular not with a purpose to diminish the Ecclesiastical authority Imo jurejâ—rando confirmavit leges sanctae matris Ecclesiae quoniam per cam Rex Regnum solidum habent subsistendi firmamentum Yet the Bishops and Clergy do not now expect or desire to enjoy their ancient splendor amplitude and dignities seeing the greatnesse of their Revenue which should uphold the dignity is long since taken away So that well might Bishop Latimer in his Sermon before King Edward say We of the Clergy have had too much but that is taken away and now we have too little For there was no lesse in the whole taken away from them then many hundred thousands sterling too incredible to be here briefly expressed I will only mention one for example the Arch-bishoprick of York from which was taken 72. mannors and Lordships at one instant by one of the last statutes of Hen. 8. and the like happened to Canterbury London Lincoln and all the rest which me thinks should be enough to satisfie that men should not go about to strip them of these poor pittances that are left unto them being but small fragments in comparison of their ancient patrimony which the liberality and piety of the primitive times haâ— conferred on them when Charity
So Dr. Burgesse termeth the Learned Dr. Davenant Bishop of Salisbury only a speculative Divine He being an eminent and principal Divine Head of Queens Colledge in Cambridge and publick Professor and chosen by King Iames to be sent to the Synod of Dort and by his Learned works publickly famous and renowned Such malapert language against such Honourable and eminent Bishops from an inferiour Doctor is not to be endured without sharp censures Now though some Canons may seem to forbid the Bishops and Clergy to intermeddle with secular affairs yet that is not absolutely forbidden but in a qualified sense as in the famous Council of Clâ—veshoe under Cuthbert Archbishop of Canterbury Anno 747. Can. 1. Negotiis secularibus plusquà m Dei servitiis quod absit subditus existit To attend secular affairs more then spiritual and to be wholly imployed and conversant in Temporal matters without due regard to the better part But it will not hinder sacred studies nor the diligent preaching of the Gospel that some principal men at convenient times have a charge and over-sight of Temporal affairs and the carriage of publick businesse And concerning this see more in Bishop Davenants Determinations at Cambridge Quest. 11. Civilis jurisdictio jure conceditur personis Ecclesiasticis Thus much might serve for Reply to the Examiner Dr. Burgesse especially upon the fifth reason which I hold to be the only thing material in the whole Discourse for the rest will appear to be needlesse if this be clear'd But if he would look back to former times he shall find that our Kingdome and Government followed the ancient manner of Gods own people of Israel whose Ceremonies and Rituals though they be now abolished yet the general rules of Justice Equity Government and Order do still remain And as God made the priesthood then honourable in the Kingdome of Israel and committed a great part of the Government unto them so doubtlesse now under the Gospel the priesthood ought to be Honourable and to have a principal part in the ruling and governing of the Kingdome To be a Priest in Israel was to be a cheif man Levit 21. 4. and therefore in all their Courts of Justice the priests and Levites were cheif men in authority for deciding all causes both in the great Court of Sanedrim at Ierusalem which was a Continuation of the 70. Elders appointed by God himself Numb 11. and was answerable in authority to our Parliaments it being the highest Court of Judicature in that Kingdome and so in the second Court of Judgement as our Saviour calleth it Mat. 5. 22. where there were 23 Judges whereof 7. were of the Laity as we now call them Elders of the Cities and every good City consisted of _____ Families unto which 7. of the Elders there were added 14 Priests and Levites as Iosephus sheweth lib. 4. cap. 8. where though he seem to say that the number of the Judges was seven yet if his next words following be well observed he sheweth the addition of two priests and Levites to each of the other Magistrates of the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intellig it singulos magistratum gerentes quibus singulis bini erant additi adsessores periti juris quos Iosephus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vocat Septem ergo municipes loci erant judices praeterea adsessores quatuordecim qui ex Levitis maxime sumebantur his supernumer arii accessisse videntur unus alter So Grotius in Mat. 5. 21. and so also the English Translation doth render the place In every City or Township let there be seven Governours such as are approved in vertue and famous for their Justice and let each of these Magistrates have two Ministers of the Tribe of Levi. In this Court of Judgement all manner of causes were heard of Life and Death whatsoever matters of Controversie within their gates Ecclesiastical or Temporal Yet excepting some weighty businesses concerning a whole Tribe or the high priest or a false Prophet which belonged only to the great Council at Ierusalem Whether also they might appeal in any doubtful cause which was too difficult for the inferiour Courts Iudices in portis cujusque Civitatis jus super causis majoribus reddebant in homicidas lege agere solebant de quibus agitur Deutr. 16 18. 21 22. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 autem paena erat gladius quia de homicidis inibi cognoscebatur ut Moses nos docet Christus Grotius in Mat. 5. 21. When King David was old and neet his Death he appointed Salomon to be King after him and caused a Parliament of all Israel to be assembled wherein he gathered together all the Princes of Israel with the Priests and Levites 1 Chr 24 1. 2. In this great Parliament the priests and Levites were not omitted not in any Court of Justice in that Kingdome For as it is p. 4. There were six thousand of them appointed Officers and Judges throughout the land of Israel which is the thing that now many of our Common people do much dislike not well induring a few Justices of Peace to be of the Clergy whereas we have the example of David guided and directed by the Spirit of God as the Text saith 1 Chron. 28 12 13 19. So disposing and ordering the Levites that he appointed some for the outward businesse over Israel for Officers and Judges a thousand and seven hundred were Officers of Israel on this side Iordan in all businesses of the Lord and in the service of the King This Text is very plain to prove that the same man may be employed in Ecclesiastical matters of the Church as also in the Kings Service So pag. 32. David appointed two thousand and seven hundred cheif Fathers to be Rulers over the Reubenites Gadites and the half Tribe of Manasses who were beyond Iordan for every matter pertaining to God and affairs of the King and c. 26. 14. Zecharias a Levite is commended for a wise Counsellour But that now any of the Clergy should be Councellours Judges or Officers unto Princes is accounted by some an unlawful thing or at least not very commendable Whereas we see by this very law and direction of King David that the Levites might attend businesse belonging to the worship and service of God and instruction of the people as also of the publick service and affairs of King and State So the Divines in their late Annotations on the Bible do acknowledge that the Levites did study the Judicial and politick Laws and had power to see the law of God and injunctions of the King to be observed and to order divine and humane affairs 1 Chron. 26. 29 30. 2 Chron. 19. 8 11. So the Learned Grotius Sicut lex erat uan praeptrix divini omnis humanique juris ita apud Hebraeos penes eosdem erat juris utriusque interpretatio Upon Mal. 2. 4. and so other Commentaries do affirm as Lavater in cap. 23. Per
Commanders joyned as the Count of Bucquoy the Count of Tilly the Count of Papenheim the Count of Maradas Besides other great Captains of note having an Army of 40. thousand men and fought the great Battle neer Prague and prevailed powerfully Next day the City of Prague was surrendered the Palsgrave fled away and of 30. Committee-men in Prague which directed all businesse twenty seven were apprehended and the next year after they had been tryed and condemned by the Common-law of the land for rebellion and raising armies and Committees they were put to death upon one stage the same day Not long after ten thousand protestant Ministers and Churches were suppressed and the Ministers banished out of the Kingdome and the provinces annexed of Moravia Silesia Lusatia and other Countties of the Emperor The Covenanters who had seised on the Lands and Revenues of the Bishops and Deans aud other societies by way of Sequestration first which word they used in one article of their Covenant were forced to yield up those lands and to restore them to the former owners and so also in many other parts of Germany Lands and Houses of the Clergy which were taken away an hundred years before were restored to the right owners And for the Godly Covenant they renounced it aâ—d would have been glad to have enjoyed the favours which the Emperors formerly permitted them out of his Clemency But since they raised such a bloody War he would not suffer them longer to enjoy his former favours So that the Bohemians and most parts of Germany who enjoyed peace and great happinesse in all respects lost all by striving to overthrow the Bishops and the Ecclesiastical Laws and to take their Lands This miserable event might well have forewarned us in England not to offend in the same kind as they did to overthrow Bishops and all the preferments of the Church to bring in Preâ—byterian purity and lay elders and to impose a godly Covenant wich was indeed a wicked combination and Conspiracy far worse then the Covenant of the low Countries or that of France against Hen. 3. Hen. 4. which had almost confounded all France and was at length the destruction of those two great Kings who were both miserably murdered and put to death as our King Charles was in most abominable manner and in many respects more horribly then those two Kings for they were stabbed on a suddain by two villaines and without the consent of the people and severe punishments were inflicted upon them speedily But King Charles in a deliberate manner by men that pretended Justice and upright dealing who called an high Court of Justice never heard of before no Judges of the Land consenting or approving and so openly in the face of the sun and of all the world with an high hand and professed malice and outragious fiery zeal that the Emperor Maximilian did justly say that the Kings of England were Kings of Devils And though the Presbyterians would excuse themselves that they never intended the Kings destruction yet that is a frivolous and foolish excuse for as Sir Walter Raleigh saith truely Our law doth Construe all levying of war without the Kings Commission and all force raised to be intended for the Death and Destruction of the King not attending â—he sequel and so it is judged upon good reason for every unlawful and ill action is supposed to be accompanied with an ill intent Lord Coke 3. Instit. pag. 12. speaking fully of all kinds and degrees of treason saith Preparation by some overt Act to depose the King or take the King by force and strong hand and to imprison him until he hath yeilded to certain demands this is a sufficient overt Act to prove the compassing and imagination of the death of the King for this upon the matter is to make the King a subject and to despoile him of his kingly office of royal government And so it was resolved by all the Judges of England Hill 1. Iac. Regis in the Case of the Lord Cobham Lord Gray and Watson and Clark seminary Priests and so it had been resolved by the Justices Hill 43. Eliz. in the Case of the Earls of Essex and Southampton who intended to go to the Court where the Queen was and to have taken her into their power and to have removed divers of her Councel and for that end did assemble a multitude of people this being raised to the end aforesaid was a sufficient overt Act for compassing the death of the Queen and so by woful experience in former times it hath fallen out in the Cases of King E. 2. H. 6. E. 5. that were taken and imprisoned by their subjects The Presbyterians did offend in this kind notoriously and therefore committed Treason manifesty for they imprisoned the King in divers places and at length in a remote place in the Ifle of Wight and what followed after is well known And all this done by them that were for the most part Presbyterians out of their design to compell the King to yeild to their projects to overthrow the Bishops and to take their Lands and Revenues which they account to be the flesh and bones of the whore of Babylon which they must devour and make the old whore naked bare and desolate The excellently learned Grotius who did perfectly understand and discover the practices of the Presbyterians as appears in many places of his works hath one remarkable passage in his treatise de Anti-Christo pag. 65. which shall here follow Iam vero fi illi qui dicuntur Dii intelligendi sunt Reges liber flagitiosissimus Boneherii de abdicatione Hen. 3. Galliarum Regis non argumentis tantum sed verbis desumptus est non ex Mariana aut Santarillo se ex Iunio Bruto quis is sit sat scio sed quia latere voluit lateat ex viris doctis quidem at factionis ejusdem Dictis facta congruunt haec est illa mica salis de qua infra aget Borborita quae facta est in mare salsum faetens apud Reges omnia circumsata corrumpens Circumferamus oculos per omnem historiam quod unquam saeculum tot vidit subditorum in principes bella sub Religionis titulo horum Concitores ubique reperiuntur ministri Evangelii ut quidem se vocant quod genus hominum in quae pericula etiam nuper optimos Civitatis Amstelodamensis Magistratus conjecerit nihil hic narrari opus est sapientibus dictum sat est Laudanda omnino est Regis Christianissimi prudentia virtus qui suos paris sententiae subditos tam solennia insanire vetuit Videat si cui libet de Presbyteriornm in Reges audacia librum Iacobi Britanniarum Regis cui nomen Donum Regium videbit eum ut erat magni judicii ea praedixisse quae nunc cum dolore horrore conspicimus Peter Moulin who was well versed in the Controversies of the times and suffered much in the late wars
AN APOLOGY FOR The Ancient Right and Power OF THE BISHOPS To SIT and VOTE IN PARLIAMENTS As the first and principal of the three Estates of the KINGDOME As Lord Coke sheweth 3. Institut C. 1. and other both learned LAVVYERS and ANTIQUARIES as Camden Spelman Selden and many others WITH An Answer to the Reasons maintained by Dr. Burgesse and many others against the Votes of BISHOPS A Determination at Cambridge of the Learned and Reverend Dr. DAVENANT B. of Salisbury Englished The Speech in Parliament made by Dr. WILLIAMS L. Archbishop of York in defence of the BISHOPS Two SPEECHES spoken in the House of Lords by the Lord Viscount NEWARKE 1641. London Printed by W. Godbid for Richard Thrale at the Crosse-Keyes at St. Paul's gate entring into Cheape-side 1660. To the READER DOctor Williams Lord Arch-bishop of York made an accurate Speech in Parliament to defend the rights of the Bishops and the learned Bishop Hall made an abstract of his reasons against which Doctor Burgesse published an Examination wherein there is little material if once the principal doubt be cleared whether Bishops had anciently Votes in Parliament and were Barons or that which is equal or superiour unto Barons being accounted Thanes in the times of the Saxons before the Conquest which I hope is so fully cleared in this following discourse as there will be little question remaining Though Parliaments began as our Histories shew long after the Conquest in this manner as now they are held yet they had Assemblies Gemots of the Estates and principal nobility whereof the Bishops and Clergy were alwayes an eminent party according to the Laws and Custome of those times and equivalent in authority to our Parliament They had several Gemots as the first was Wittena-gemott idem apud Anglo-saxones fuit quod apud nos hodie Parliamentum parumque a Folkmotto differebat nisi quod hoc annuum esset è certis plerumque causis illud ex arduis contingentibus legum condendarum gratia ad arbitrium principis indictum In Folckmotto semel quotannis sub initio Calendarum Maii tanquamin aâ—nuo Parliamento convenere Regni principes tam Episcopi quà m Magistratus liberique homines Iurantur laici omnes coram Episcopis in mutuum faedus in fidelitatem in jura Regni conservanda Consulitur de communi salute de pace de bello de utilitate publica promovenda c. Sciregemott si pluries opus non esset bis solummodo in anno indicebatur Aderat provinciae Comes aderat Episcopus aderant Magnates omnes Comitatenses Episcopus jura divina enuntiabat vindicabat Comes secularia alter alteri auxilio De causis hîc cognitum est tam criminalibus quam civilibus sed jurisdictiones postea separabat Gulielmus primus videtur hoc idem fuisse quod olim Turnum dicemus Vicecomitis non minus quam hodie nunc dicitur bis in anno tenebatur aderant que omnes unà comitatus magnates Teâ—itiâ— liberi Many other Gemots and Meetings they had but in all these publick Gemots the Clergy were principal members as appears by the laws of King Edgar Cap. 5. Gemottis adsunto locii Episcopus Aldermannus hoâ— est Comes doceatque alter jus divinum alter jus saeculare Thus the learned Glossary sheweth out of whom it was necessary to shew the several assemblies then in use that we need not contend about the French word Parliament which came in use about the time of Hen. 3. But whatsoever their Assemblies were the Bishops were alwayes principal members thereof and though once in 25. Edward 1. there is mention of a Parliament at St. Edmunebury whereby the Clergy were excluded for denying of money which they refused to grant by reason of a prohibition from Pope Boniface in regard of many Levies latel yraised upon the state Ecclesiastical As of later times there was a Parliament once held without Lawyers in 6. Hen. 4. at Coventry as both our Histories do testifie and also the Kings Writ directed to the Sheriff whereof the words are Noluâ—us autem quod in seu aliquis alius vicecomes Regni nostri praedicti aut Apprenticius aut alius homo ad legem aliqualiter sit electus Vnde Parliamentum illud laicorum dicebatur indoctorum quo jugulum Ecclesiae atrociâ—s petebatur as alearned Author saith Yet I hope notwithstanding the inconsiderate zeal of this Examiner our Histories shall never be blemished with such a reproach as to report the loss or defect in Parliament of either learned Clergy or Lawyers to direct and assist in whatsoever matters are proper to their faculties and the publick welfare of the Kingdome The most Accurate History of the ancient City and famous Cathedral of Canterbury being an exact Description of all the Rarities in that City Suburbs and Cathedral together with the Lives of all the Arch bishops of that See Illustrated with divers Maps and Rigâ—res Published by Will. Somner Author of the late Saxon Dictionary 4to And is to be sold by Richard Thrale at the Crosse-Keyes at Paul's gate entring into Cheape-side The Contents of the several Chapters CHAPTER I. COncerning Government Ecclesiastical and Civil in the state of nature from Adam till Moses which was about 2500 years the same person was both chief Magistrate and also Priest unto God CHAP. II. The government of the Church and State of Israel by Moses and Aaron and their Successors until Christ about 1500 years That there was not then two several Iurisdictions the one Ecclesiastical the other Civil CHAP. III. Concerning the Union of the Courts of Iustice in the time of the Saxon Kings after they were converted to the faith The division of the Courts being brought in by William the Conqueror as appears by his Statute CHAP. IV. Concerning the Honour and Dignity of Bishops in the time of Saxons and so continued to these times CHAP. V. Concerning Barons and the title thereof and how the Bishops became Barons being no addition of honour to them but inforced upon them by the Conqueror and since continued to this day CHAP. VI. Concerning the Legislative power and Votes of the Bishops in making laws Concerning the Statute 11. H. 7. whereby Empson and Dudley proceeded and what great treasures they brought to the King Calvin and Beza at Geneva were members of their chief Council of State consisting of 60 and so may Bishops in England be members of Parliament King David appointed Priests and Levites in all Courts of Iustice. The Clergy had many priviledges as Lord Coke sheweth upon Magna Charta 2 Instit. pag. 2 3. Ambition and Coveteousness of the Presbyterians the principal cause of all our troubles CHAP. VII In the first frame of our English Common wealth the Bishops in every Diocess were the principal Iudges The Charter of William the Conqueror for dividing the Courts The Statute of Circumspecte agatis 13. Ed. 1. and Articuli Cleri 9. Ed. 2. appointing what
the Judges But Ministers have no remedy to help themselves there being none of the Clergy upon the Bench in any authority CHAP. II. Of the Government of the Church and State of Israel by Moses and Aaron and their Successors until Christ about 1500 years That there were not two several Iurisdictions one Ecclesiastical the other Civil WHen God delivered his chosen people out of Aegypt and conducted them through the Wildernesse towards the promised Land of Canaan He began first to publish his Law And by Moses delivered them many Laws in Five Books Whatsoever Lawes he gave either moral ceremonial or Judicial they are all contained in the Five books of Moses and no man could better understand them then the Priests and Levites For God made his Covenant with Levy of Life and Peace The Law of Truth was in his mouth The Priests Lips should preserve knowledge and they should seek the Law at his Mouth Mal. 2. 5 6 7. and so Ezekiel 44. 23. They shall teach my people the difference between the Holy and prophane and cause them to discern between the unclean and the clean and in Controversie they shall stand in judgement and they shall judge according to my Iudgements and they shall keep my Lawes and my Statutes in all mine Assemblies They being the principal Judges and Lawyers in that Common-wealth of Gods own Constitution And whereas it is now granted on all hands that there were three Courts of Justice in that Kingdome 1. The great Council of the 70. Elders 2. The Court of Judgement which was in in every good Town where there were many families 3. The Court of three or some few more The Priests and Levites were principal men both Judges and Officers in all Courts Scophtim Scoterim as 1. Chron. 23. 4. both to give sentence and judgement and also to execute the same So the Divines do affirm in their late Annotations upon 1. Chron. 26. 29 30. 2. Chron. 19. 8. 11. They did study the Judicial and politick Laws and had power to see the Law of God and Injunctions of the King to be observed and to order divine and humane affairs And they held also other honourable offices for we read that Zechariah a Levite was a wise Counsellour and Benjah a Priest Son of Iehojadah was one of Davids twelve Captains being the third Captain of the Host for the third month and in his course consisting of 24000. was his Son Amizabad Benjah also was one of Davids principal worthies having the name of the three mighties He was also Captain of the guard to David and after the Death of Ioab he was made Lord General of the Army by King Salomon in Ioabs room 1. K. 2. 35. It is recored 1 Chron. 26. 30. That of the Family of the Hebronists Levites there were a thousand and seven hundred Officers on this side Iordan westward in all businesses of the Lord and in the service of the King and two thousand and seven hundred chief Fathers and men of valour whom King David made Rulers over the Reâ—bonists the Gaditeâ—s and the half Tribe of Manasses for every matter pertaining to God and affairs of the King v. 31. 32. Whereby it manifestly appears that the same Judges and Officers being Priests and Levites most of them did hear and determine all sorts of causes pertaining to God and affairs of the King both Ecclesiastical and Temporal so that there was not several Courts the one Ecclesiastical and the other Civil as in these times some do affirm too peremptorily according to the Common practise and usage of these days as Godwin in his Moses and Aaron lib. 5. Beza Iunius and divers others with the Kirkmen of Scotland lately Rutherford Gillespie Baily and others So also the Papists generally who that they may establish the Popes Supremacy above Kings and their Common-laws do affirm that Regimen Ecclesiasticum est distinctum a politico as Bellarmine de Romano pontifice lib. 1. cap. 5. so our zealous party for the like ends and reasons would maintain a Government in the Clergy seperate from and independent upon the Civill Magistrate and such as ought to be directed and ruled only by the word of God and his Spirit ruling as they suppose in their classical Assemblies where they think the Throne of Christ is only to be advanced and all his holy Ordinances put in execution Whereas the King is Custos utriusqne tabulae and the Supremacy in causes Ecclesiastical as well as Temporal is acknowledged by our Statutes and annexed to the Crown For Execution thereof an Act was made 1. Eliz. cap. 1. But if the Statute had not been made to annexe the Supremacy to the Crown yet as the Lord Cook saith 4. Instit. p. 331. King Iames hath and Queen Elizabeth had before him as great and ample Supremacy and Jurisdiction Ecclesiastical ase ver King of England had before them and that had justly and rightly pertained to them by divers other Acts and by the ancient Law of England if the said clause of annexation in the said Statute 1. Eliz. had never been inserted But Iohn Pym in his Speech in Parliament 4. Caroli as Rushworth hath it in his late Collections saith that the high Commission was derived from the Parliament As if the Parliament gave the King the Supremacy as a gift of their own and that it was not vested in the Crown but as they gave it so they may take it away when they please and suppresse the Court of high Commission as they have done The duty of the Court was to reform and correct all Heresies Schismes Abuses Offences Contempts and Enormities But now upon Suppression of the Court all Heresies and Schismes in the world are broke out and such abominable abuses offences and enormities as never were known in this Kingdome with allowance and toleration This follow 's upon the new light and doctrine of Iohn Pym and all the rest of the Presbyterians who have stirred up all these troubles and of late they called the House of Commons the Supream power of the Nation in all Addresses and Petitions made unto them It was a great Error of Calvin and Beza and many others that follow them to affirm that there was one Court Ecclesiastical and another Civil in Israel Calvin upon Ieremiah 19. 1. pag. 152. saith Scimus duos fuisse ordines publicos vel duplex regimen ut loquuntur sacerdotes erant praefecti Ecclesiae nempe quoad legem ita ut spiritualis esset eorum gubernatio erant seniores populi qui prae erant rebus politicis utriusque vero quaedam inter se communio Calvin understood only the plain Hebrew not the Rabbins and Talmud nor the Jewish Antiquities Therefore in several places he is mistaken as upon Numb 11. 17. Where God appointed first the 70. Elders to be joyned as Assistants to Moses He doth interpret the Text I will take off the Spirit that is upon thee and put
it on him as if the gifts of the Spirit which Moses had were diminished in him and imparted to the 70. which is untruly said by Calvin for as Salomon Iarchis saith Moses in that hour waâ— like the Lamp that was burning on the candlestick in the Sanctuary from which all the other lamps were lighted yet the light thereof was not lessened any whit Deus ex Mosis Spiritu tollens quod aliis distribuit ignominiae notam qua dignus er at â— fligit minime dubium est quin diminutio notetur This is spoken very harshly and untruly by Calvin as learned Authors have shewed his Error herein So upon Deut. 17. 8. 9. 10. Where the Priests and Levites were appointed Judges in great matters between blood and blood between Plea and Plea and between stroke and stroke being matters of Controversie within thy gates Calvin doth so interpret as if the Priests and Levites were only to expound the Law to the Temporal Judges but not to sit as Judges upon the bench themselves with especial authority as the other Elders and Judges did Wherein he was much mistaken For the Priests and Levites were principal Judges in all matters and causes whatsoever not only Ecclesiastical but Temporal not only for explaining of the Law but executing the same The Learned Casaubon in his Exercitations upon Baronius 13. Sect. 5. shewed that the Priests and Levites were the principal judges in the genreal Council Hujus Conciliiea fuit institutio ut si fieri posset e solis Sacerdotibus Levitis constaret qui non erant e Tribu Iuda sed Levi itaque in Bibliis aliquando apud Iosephum appellatione sacerdotum intelligitur ipsum Synedrium Siâ— e numero sacerdotum aut Levitarum non reperirentur qui definitum Iudicum illorum numerum impleâ—ent tum demum aliis Iudaeis aditus in Synedrium patuit nulla Tribus habit a ratione Hoc Maimonides declarat c. Bancroft in his Survey cap. 25. doth fully shew the error of Calvin and Beza in dividing the Courts and doth accurately conâ—ute them to whom I refer And further of late the excellently learned Grotius hath also accurately cleer'd the point Quod quidam arbitrantur duos fuisse senatus summos Iudeorum alterum qui civilibus alterum qui Ecclesiasticis negotiis praeesset de eo quid â—obis videatur alibi erit dicendi Locus in Mal. 2. which he doth perform upon Mal. 5. very exactly Cum pingue haberent otium non tantum omnialegis sed medicinae aliarumque artium diligenter ediscebant ut Egyptii sacerdotes ideoque primis saeculis ex illis ut eruditioribus senatus 70. virûm legi maxime solebat Grotius in Deut. 17. and so in Mal. 5. Cum sacerdotes opimo fruentes otio omnibus sapienentiae partibus prae er caeteros operam darent aequum erat ex horum numero aliquam-multos allegi in ordinem illum cui jam suprema etiam judicia credita fuisse diximus quanquam neminem fuisse qui originis dignitate eum locum sibi posset vindicare scripsit Maâ—monides c. Florentibus Hebraeorum rebus fieri aliter non poterat quin in sacerdotum classe plurimi râ—perirentur digni eo loco His addebantur alii qui in aliiâ— tribubus doctrina sanctimonia eminebant Quamobrem Moses Deut. 19. 17. De falsi testimonii cognitione agens senatum hunc describens sacerdotes judices nominat alibi etiam de exploranda diligentia judicum inferiorum in cognoscendo homicida ipsi sacerdotes tanquam ejus senatus pars praecipua nominantur c. Hoc ipso in loco Deut. 17. 8 9 non distinguuntur caâ—sarum genera neque vero causae ullae nominantur quae proprie videri possent sacerdotales sed si quid controversi incidisset de homicidio de lite de vulnere jubenâ—â—â— adire sacerdotes c. neque vero alia fuerant judicia sacerdotis alia senatus id enim omnes Hebraeorum Magistri constanter negant And much more he addeth out of Iosephus and doth also accurately expound the Texts 2. Chron. 17. Concerning Iehosophats reformation and placing of Iudges in Ierusalem as also the Text in the prophet Ier. 26. where some priests do accuse the prophet and the Princes do absolve and free him So in his Book De imperio summarum potestatum cap. 11. Sect. 15. He doth accurately handle this Question Ubi explicantur Iudeorum tum minora judicia tum magnum ostenditur apud Iudaeos eosdem fuisse qui de sacris profanis jus dicebant quae sint negotia Dei quae Regis So Bertram a learned Lawyer De politia Iudaica cap. 9. So Sigonius de Repub. Hebr aeorum lib. 6. c. 7. So Scuetetus in his Exercitations lib. 1. cap. 54. So Schickardus de jure regio Hebraeorum c. 1. pag. 9. 10. So Selden in his Uxor Hebraica cap. 15. Quod vero à nonnullis iisque alioquin doctissimis obtenditur Presbyterium fuisse singulare quoddam forum apud Iudaeos quod de Religione rebus saeris solùm cog nosceret qualé apud nos dicitur Ecclesiasticum â— doctrina Talmudica atque ab ipsa veritate est longe alienissimum pro diversitate jurisdictionum amplitudinis idem ipsnm ubique in ea Republica seu Ecclesia forum de rebus sacris ac Religione judicabat quod de profanis seu quae non sacrae And since this Selden hath more fully proved it in his books De Synedriis Iudaeorum to which I refer and further the learned Dr. Hamond hath most accurately proved and illustrated it in his Annotations on the New Testament as on Luke 3. and Acts 4. and other places that there needs no further proof Selden in his Preface to the first Book De Synedriis pag. 9. terms it Duplex seu Bifurcatum in Christianismo regnum seu imperium Politicum seu Magistraticum ut appellitari amat Ecclesiasticum ab illo prorsus sic distinctum quasi Binos quis fingeret soles c. CHAP. III. Concerning the Union of the Courts of Iustice in the time of the Saxon Kings after they were converted to the Faith The Division of the Courts being brought in by William the Conquerour as appears by his Statute THe union of Courts continued from the beginning of the World for four thousand years as Selden affiâ—meth lib. 2. De Synedriis in the preface p. 2. How that course came to be changed will appear by what followeth here The distinction of Courts seems to have proceeded first from Pope Nicholas the first as is mentioned in Gratian. Can. Cum ad verum 96. Dist. About 200. years before the Conquest Which was imitated among us by William the Conquerour Whose Statute to that purpose is recited and illustrated by Spelman in his Glossary and Councils and by Selden in his History cap. 14. and in his notes upon Eadnez pag. 167. and also published by Lord Cook 4. Instit. cap. 52. But
thither out of England there being then no Universities neither Paris nor Padua nor Oxon nor Cambridge Only Rome was the principal place for Learning in these Western parts and therefore our Saxon Kings built the Colledge there for English Scholars and purchased Lands in Italy for the maintenance thereof and also gave the Peter-pence for their better allowance and encouragement which as Mr. Fuller accounteth in his late History was the sum of seven thousand and Five hundred pounds The Peter-pence was given not as a Tribute to the Pope as our Common-Chronicles do grant it and Polydor Virgilius and Baronius but as a stipend to maintain the English Colledge As Spelman sheweth clearly upon the word Denarius St. Petri which Doctor Burgesse might have observed better and not have yeilded it to the Tribute paid to the Pope as he doth grant it pag. 18. of his Reply King Henry the eighth and those about him had forgotten the true use of them and therefore in the Tempest of his Indignation swept them away among other superstitious things in a Statute but it might have been justly continued for the first intention and purpose to educate learned men beyond Seas to learn the Civil and Common Law and forraign languages also matters of State who upon their return home after some seven or eight years would deserve best to be preferred to publick places in Church or State The Kings of England well knowing the necessity of such learned men did anciently and of late send some choice Scholars out of either Universities to forraign Countries as Cambden observeth speaking of Sir Thomas Smith Anno 1577. Annis maturior selectus ut in Italiam Regiis impensis mitteretur ad nostra enim tempora nonnulli adolescentes optimae spei ex utraque Academia ad uberiorem ingenii cultum Regum sumptibus in exteris Regionibus alebantur So was Cardinal Pool in his younger years sent abroad by Henry the eighth Sir William Paget Sir Thomas Smith Sir William Peters and Sir Iohn Mason these two having been fellows of All-Souls Colledge in Oxon but being further bred abroad in forraign Countries they gained great experience and wisdome and were made either principal Officers or Secretaries of State at their return home and were principal men about the King for Counsel and disputes of businesse and guided the Kings Counsels in affairs of most importance Education in our own Universities at home is not sufficient to enable men for all publick places and offices under a King It is well known that learned young men of the best sort in the Universities being sent abroad to travail when they come home are commonly men of far better abilities then such as have only stayed at home as of late years Sir Edwin Sandys Sir Isaac Wake Sir Iohn Digby Sir Clement Edmond and Dr. Bryan Duppa now Bishop of Salisbury both these having been fellows of All-Souls Colledge and Docter Duppa specially chosen to be the Princes Tutor having been bred a Civilian in his Colledge and eminent besides for all polite Literature and proctor of the University and afterwards travailing into France and Spain upon his return home it was not long before King Charles took special notice and made choice of him for the instruction of his three Sons who are now the most accomplished Princes in Christendome notwithstanding the late disturbance and Rebellion of these present times and are likely to prove the most renowned when the present troubles shall be composed Education goes beyond nature as Aristotle sheweth 1. Ethic. Good instruction and learned Education doth add those perfections which cannot be obtained with ordinary helps and by such men as know only their own native Country and Climat The opposition that some men make against the Votes and presence of the Bishops in Parliaments and other places of Office and imployment under the King doth arise from that false principle that jurisdiction Ecclesiastical and civil ought to be distinct and separate both for persons and their imployments Which is already here confuted it being one grand error of Calvin and Beza with divers others that follow them too closely in all opinions as if they had been men free from error Our Bishops in ancient times were most part Lawyers learned in the Civil and Canon Laws and thereby also knowing much in the Canon Law and therefore they were the chiefest Judges of the Land in all Courts of Justice as Spelman sheweth in his learned Glossary for 200 years after the Conquest reckoning the Catalogue of the great Lord cheif Justices being most part men of the Church pag. 409. 410 c. and so pag. 131. Fungebantur antique cancellariatus dignitate viri tantum Ecclesiastici Episcopi qui praeterea Curam gerebant Regiae capâ—llae repositaque illic Monumenta Rotulos Recorda vocant sacra custodia tuebantur c. And so also Lord Cook sheweth 1. Instit. lib. 3. pag. 304. B. In ancient time the Lord Chancellour and Treasurer were most part men of the Church yet were they expert and learned in the Laws of the Realm as for example in the time of the Conquerour Egelricus Episcopus Cicestrousis viz. Antiquissimus in legibus sapientissimus Nigellus Episcopus Eliensis Hen. 1. The saurarius in temporibus suis incomparabilem habuit Scacarii scientiam de eadem scripsit optime Henricus Cant. Episcopus H. Dunelm Episcopus Willielmus Episcopus Eliensis G. Roffensis Episcopus Martinus de Pateshall Clericus Decanus divi Pauli London constitutus fuit capitalis Iusticiarius de Banco c. Willielmus de Raleash Clericus Iusticiarius Domini Regiâ— Iohannes Episcopus Caliolensis temp H. 3. Robertus Passelew Episcopus Cicestrensis temp H. 3. Robertus de Lexinton Clericus constitutus sapitalis Iusticiarius de Banco Iohannes Briton Episcopus Hereford Henricus de Stanton Clericus constitutus fuit capitalis Iustic ad placita With many others So also Selden affirmeth in his Notes upon Fleta Sir Iohn Eliott in his Speech in Parliament confesseth that there are among our Bishops whose profession I honour saith he such as are fit to be made example for all ages who shine in vertue and are firm for our Religion c. as Rushworth relateth in his Collections pag. 661. If Bishops be so eminent that they shine in vertue certainly they are fit men to be present in Parliaments for Parliaments ought to consist of such men as shine in vertue as are firm for Religion A Learned Knight and Courtier writing an answer to Sir Anth. Welden his Pamphlet entituled the Court and Character of King Iames pag. 178. where he speaketh of the preferment of Doctor Williams to be Lord Keeper of the great Seal sheweth That former ages held it more consonant to reason to trust the Conscience of the Clergy with the case of the Lay-men they best knowing a case of Conscience And anciently the civil Law was always judged by the Ministers of the Church and
Stipend of 400. l. yearly And since he hath invaded the House of the Bishop of Wells and much of the Lands But had he been made Dean of Pauls or Bishop of Bath and Wells by King Charles he would never have opposed the Bishops The like is known concerning Mr. Henry Burton The original of his discontent is well known He lost his place at Court which for a little time he enjoyed under Prince Charles and so losing his hopes of further preferment he was inraged with envy and revenge against the Bishops and all Church Government and at length degraded and punished according to his demerits Thus Ambition and Covetousnesse was the true motive of all the Presbyterian fury and rage against the Bishops and Ecclesiastical laws and Courts But to return to our former purpose and discourse why it is fit and reasonable that some principal men of the Clergy should be in power and some places of Judicature to preserve the inferiour Clergy from oppression and contempt whereunto they are now obâ—oxious Whereas if the Clergy might now enjoy those ancient priviledges which are mentioned in Scripture as Gen. 47. of King Pharaoh who in the time of Famine and great extremity spared the Priests Lands and allowed them their portion so that they sold not their Lands Then men might better talk of applying their studies and medling with no common or worldly businesse Artaxerxes the Persian King Ezra 7. 24. commanded that for all the Priests and Levites and Ministers of the House of God it should not be lawful to impose Toll Tribute or Custome upon them Whereas now the Clergy being made subject to the most sort of payments charges and impositions in a greater proportion commonly then other men it is but requisite that some principal men of the Clergy should have voyce and suffrage in making the Laws that are enacted for their Government and Taxations Besides the course of Laws and Government is now much altered from what it was in former times when Holy Fathers spake of wholly applying themselves to prayers and sacred studies and diligent preaching of the Gospel as if they were to do nothing else not so much as to provide bread and necessaries for their Families for then they lived most part single in Colledges and Monasteries and Societies under the Bishops where all necessary provisions were made by Stewards and Officers appointed for the purpose so that their cares in all those respects were lessened and abated much that they might apply their studies only and forsake all worldly businesse which now they cannot foregoe being secular and parochial Ministers married men and thereby charged with Children and Families and also made obnoxious to all Laws Suits and Impositions without any exemptions or priviledges So that it is but a Monastical and in part a Popish fancy to talk so much of applying their studies and only preaching in the Gospel for by many a writ and warrant from several Courts of justice and Constables they shall be hindred and commanded to attend secular and litigious proceedings and answer to all Bills of Complaint Declarations and vexations that shall hinder their preaching and studies more then a voluntary imployment at fit seasons in some publick office Further it is but a Popish opinion that Regimen Ecclesiasticum est distinctum a politico Which Bellarmine maintains taking it for granted on both sides only to advance the Papacy above Kings and Princes and to exempt the Clergy from secular authority Calvin affirmeth as much 4. Instit cap. 11. Sect. 1. Ecclesia Dei sua quadam spirituali politia indiget quae tamen a civili prorsus distincta est c. But under Correction I take it to be a great Errour though now it is the Common Idol of every mans fancy because that in our Kingdome since the Conquest but not formerly as hath been already declared cap. 2. the Courts of justice are divided the Temporal from the Ecclesiastical and so in most other Kingdomes Which yet I do not think to be the ancient manner not to be the best course though things being setled as now they are at this present it is not safe to change much for in a Kingdome the Courts of justice which have been long setled cannot easily be altered without danger and ill consequences But yet without any alteration of Laws or Courts the Courts may be furnished with judges of all sorts some Ecclesiastical persons as well as any others for it is against humane nature and Society to debat the Clergy and shut them out of all publick places of Trust and judicature The Issue and event whereof can be no lesse then the disgrace and reproach of the Clergy and to make them as the filth of the World and offscouring of all things Whereas it is well known that many Doctors of Divinity are as fit to be justices of peace as any Knights or Esquires The Doctors being learned in many kinds but very few of the Gentlemen eminent for Learning or if they be they are such as will be glad to have the Society and Company of Learned Doctors who are oftentimes skilful in Civil and Common Law and other parts of good Learning which do enable them for publick imployments There is a Discourse about Puritans lately published by a Lawyer one Mr. Parker wherein the excepts against Calvin and I think not amisse in that he doth according to the Popish grounds maintain that Spiritual jurisdiction differs from Temporal because it proposeth not the same ends but several which by several means may be better compassed But saith Parker The Spiritual Magistrate as I conceive can purpose no other end then which the secular ought to aim at for either the Prince ought to have no care at all of the honour of God or of the good of men and that which is the prime end of both true Religion or else his ends must be the same which the Prelate aims at viz. to vindicate Religion by removing or correcting scandalous Offendors Secondly to preserve the innocent from contagion by the separation of open Offenders Thirdly To prevent further obduration or to procure the amendment of such as have transgressed by wholsome Chastisement Thus he and I think not much amisse the scope and end of both is the same and as he saith in his Discourse Clergy men being as well Citizens of the Common-wealth as Sons of the Church and their cases importing as well perturbance of the State as Annoyance to the Church there can be but one head which ought to have command over both and in both It is manifest also that many cases are partly Temporal and partly Spiritual that scarce any is so Temporal but that it relates in some order to Spiritual things Or any so Spiritual but that it hath some relation to Temporal things so that the true Subject of Ecclesiastical and civil Iustice cannot rightly be divided I demand then why should the Courts be divided which was done
first among us by William the Conquerour And why should there not be judges partly Spiritual as well as Temporal in all Courts As it was anciently among our Ancestors the Saxons or at least why should not the Supream Court of justice which is to give Law to all other inferiour Courts be well tempered and mingled with all sorts of men Ecclesiastical and Civil the most learned wise and choicest that can be found in the whole Kingdom Why not Priests and Levites admitted into the number as well as in the Sanedrim of the Iews which was equal to our Parliament and was first instituted by God himself And I take it there can be no just exception but that our Christian Kingdomes may most safely follow the general Rules of Policy and Government which God ordained among his own chosen people without any imputation of judaism Now among them some cheif Fathers of the Priests and Levites were not only judges and elders in their own Cities which were allowed them to the Number of forty eight in the whole but sate with the Elders of other Cities and were Iudges and Officers over Israel Yea many things by Gods law were wholly and cheifly reserved to the Knowledge and Sentence oâ— the Priests As Leprosie Iealousie Inquisition for Murder Falsewitnesse and such like which now among us for most part belong to the Common-law in which cases the People and Elders were to consult the Priests and take direction from them And so Bertram in his Treatise De Politia Iudaica cap. 9. doth make it manifest Prorsus est extra Controversiam judices manicipales cujusque Civiâ—atis ut vocantur seniores fuisse Chiliarchos Centuriones quinquagâ—narios decuriones tot quot esse poâ—erant in quaque Civitate ita ut ex illis Levitae quidam in praefectos assumerentur si modo in ea aliquot erant Levitae sin minus ex proxima urbe Levitis assignata advocabâ— ntur And again in his Cap. 10. David in Civili politia dicitur ex Levitis destinasse judices prafectis sexies mille Ex Levitiâ— judices praefecti assumpti sunt hac ratione ut primum essent ex Levitis quidam qui Adsessores essent Iudicum Ordinariorum Municipalium qui seniores dicebantur Qui aliquando de plano ut vulgo loquuntur judicarâ—nt de rebus leviâ—ribus quales erant pecuniariae vel soli vel assumpto uno aliquo ex loci vel Vrbis seâ—ioribus Deinde ut essent etiam quidam alii qui judicatas res exequerentur Vel certe quod verisimilius est qui assessores erant judicum ordinariorum qui ut ipsi de rebus pecuiariis cognoscerent judicarent ipsamque rem judicatam exequerentur c. Ex eadem familia adhibiti sunt ad regendam ad Civilem politiam gubernandam Ita tamen ut nulla esset utriusque politiae confusio permixtio Et cap 11. Ad utrumque judicium tam civile quam Ecclesiasticum adhibiti sunt Levitae in praefectos eodem videlicet modo quo eos ad id muneris desig naverat David c. Thus and much more to this purpose Bertram doth often throughout his Book deliver his judgement that the priests and Levites were Judges in the civil Courts of Justice and not only in the Ecclesiastical To this Sigonius agreeth lib. 6. Repub. Hebraeâ—rum cap. 7. speaking of the Sanedrim Inivêre hoc Concisium Rex cum principibus populi ac septuâ—aginta senioribus populi Pontifex cum principibus sacerdotum scribis id est legis doctoribus ut per spicere liqueat ex Evangeliis ubi agitur de judicio Christi Voco autem principes populi duodecim princâ—pes tribuum qui Regâ— assidebant Quare Ioseph ab Arimath Senator sive decurio nobilis idem Concilii particeps fuit siquidem scriptum â—st ipsum cum caeteris assensum damnationi Christi non praebuisse Principes autem sacerdotum dico illos qui vicenis quaternis sacer dotum classibus seu vicibus singuli singulis praeerant Scribas vero ipsos legis Doctores quos Prophetas Iosephus vocavit It is manifest hereby and by the reasons alledged already in cap. 2. that is a gross error of Doctor Burgesse who affirmeth that in Numb 11. There is no foot-step appears that the Priests were any of the 70. Elders appointed by Moses Now seeing David appointed no lesse then six thousand Levites for the outward businesses it could not be but that many of them were employed in their secular and civil affairs whereas now there is not one hundred of the Clergy imployed throughout our whole Kingdome there being not above two or three Justices of peace in a whole Shire But their presence and assistance at publick meetings of Justices as at the Assises and Quarter-sessions and other occasions is very necessary to the rest of the inferiour Clergy who wil otherwise be crushed and trampled on in many businesses debates and contentions that do happen continually from the perverse and obstinate party of the Laity For Laici semper sunt infesti Clericis is a true saying in the Common Law The Priests the Sons of Levi saith God shall come neer or forth out of the Cities where they were placed in every Tribe and by their word shall all striâ—e and plague be tryed Remembring alwayes that doubtful and weighty matters were reserved to the great Council of Priests and Judges that sate in the place which the Lord did chuse for the Ark to rest in as Deut. 17. 8. 9. c. If there come a matter too hard for thee in judgement between blood and blood cause and cause plague and plague of matters in question within thy gates thou shalt arise and go up to the place which the Lord thy God shall chuse and shalt repair unto the Priests and Levites This Council or Senate of the Elders residing at Ierusaâ—em in Iehosophats time who no doubt did not infringe but rather observe the Tenour of the Law consisted of Levites and of Priests and of the heads of the Families of Israel And had Amazias the high priest cheif over them in all matters of the Lord as Zebediah a Ruler of the House of Iudah cheif for all the Kings affairs and was a Continuance of the 70. Elders which God adjoyned unto Moses and bare the burden of the people with him And this Court cannot be better resembled among us then to our Parliament for there was but one Council of that nature in the whole Land of Iury and that consisting of some of the cheifest of every Tribe and they not only debated and concluded the highest affairs of that Realm as War peace appeals from all inferiour Courts punishments of whole Cities and Tribes and such like but also ruled and rectified all cases omitted or doubted in Moses Law and were obeyed throughout the Land â—pon pain of loosing goods or life or being for ever excluded from the people of
Statute Law as Lord Coke sheweth fully 2. Instit. pag. 693. upon the Statute of 18. Edw. 3. and 2 Edw. 6. and if the Presbyterians would not loose and foregoe Tythes they must maintain and uphold those statutes for better Laws for the true payment of Tythes and all Duties cannot be made But the Presbyterians account all humane laws but trash of humane Iuvention They will reform all according to the word of God in all points Their position is We must do nothing not so much as take up a rush or a straw without warrant from the Word of God As Cartwright affirmed and Hooker confuteth him accurately lib. 2. lib. 3. 8. 2. 3. c. He sheweth that in Scripture there is not a particular form of Church Government contained So the learned Francis Mason in his Sermon upon 1. Cor. 14. 40. Also the Learned Dr. Sanderson in the Preface to his 14. Sermons and in his 4. Sermon ad Clerum upon Rom 14. besides many others But though Hooker hath written with singular Wisdome Learning Godlinesse and Moderation yet the Puritans will not read him as Dr. Sanderson complaineth of them But what Bancroft did foresee and foretel so fully is now come to pass in our times to the great ruin and desolation of the Church King Iames in the conference at Hampton Court did something to pacifie the Puritans But in the conclusion he passed them over only with admonitions to be quiet and accepted their promise to be obedient for the time to come not to oppose the Bishops nor the Ecclesiastical Laws but to behave themselves as dutiful Subjects And the King with the Lords of his Council appointed Bancroft to write unto all the Bishops to deal moderately wiâ—h the Puritans which Letter is extant in print as full of moderation and gentle cautions as possibly could be expected But that mild proceeding of Bancroft and the Bishops and forbearing to bring them to obedience and submission by Ecclesiastical censures and other courses which might have been taken to put a final end to their wrangling humours gave the Puritans hope to find the like favour always in succeeding times as they did under Arch-bishop Abbot which Levity and forbearance occasioned the present troubles of these times in great part But the Puritans are an implacable generation who did only forbear till they had a further opportunity to promote their designs Which now they have in great part effected and verified the praediction of Bancroft and Hooker Who did foresee plainly their restless disposition and endlesse contentions not caring to set fire on the whole Kingdome as they have done these last 40. years in Germany Bohemia and France upon the same grounds and principles as our Puritans have done among us Being indeed secretly displeased because the Puritans were not preferred to the best offices and dignities in Church and Common-wealth which now they have invaded by open force and violence in most outragious manner especially the Puritan Ministers without any regard to the Laws of God or man thrusting themselves into the best preferments by way of Sequestration and then getting Acts and Orders to be continued in for their lives without any respect to the Title of the lawful patrons whose rights they set aside and suspend as well as the Incumbents most unjustly Whereas they are neither by desert for Learning nor education in the Universities capable of the best preferments they being only such as have been only poor Lecturers poor Vicars poor Schoolmasters and poor new lights such as are not qualified as the Statute requires to enjoy the best Livings of Value 13. Elizab. cap. 12. CHAP. X. The Division of the Courts in the Empire and the manner of proceeding in them by the Bishops and Ecclesiastical Lawyers under them NOw because what I have formerly said touching the uniting of the Ecclesiastical and Iemporal Courts may seem strange to many I desire not to be mistaken as if I perswaded any innovation or change of setled Laws and Courts of Justice Which would be a thing of dangerous consequence that no wise man would advise but leave all to the wisdome of Superiours to whom it properly belongeth Only I will add a few lines touching the ancient form and manner of Government in the Empire after that the Emperors became Christians from whom it is likely the example was taken both among us and in other Kingdomes Touching the division of the Courts Temporal from the Spiritual though William the Conquerour began the Separation with us in England yet there was the like done long before even by Constantine the great and first Christian Emperor who first gave leave to the Christian Bishops to meet in Councels and to make Canons to govern the Church Canones ut generalium Conciliorum ut Isidorus ait l. 6. Elym c. 16. a temporibus Constantini coeperant in praecedentibus namque annis persecutione fervente docendarum plebium minime dabatur facultas Inde Christianitas in diversas haereses scissa est quia non erat licentia Eiscopis in unam conveniendi nisi tempore supradicto Imperatoris Although ever since the Apostles held their first Council in Ierusalem Act. 15. where they made certain Canons for the pacification of the Church of Antioch there were also some provincial Councels held by the Bishops as the violence of persecutions would permit and suffer them to assemble and the necessity of the times did require as may be seen in the first Tome of the Councels before the great Nicene Councel was assembled by Constantine who being the first Christian Emperor did greatly labour to settle and advance the dignity of Episcopal government And because he knew well that superiority in the Church without power and jurisdiction was to little purpose Therefore the good Emperor in his Christian Zeal Enacted Etsi Praecipuum Pontificis sen Episcopi munus est doctrina verbi populum moderari tamen quia non omnes dicto audientes sunt nec ejusmodi persuasione ad disciplinam perduci vel in efficio retineri possunt superioritas in qua sunt Ecclesiastici atsâ—abdue imperio jurisdictione non satis habet nervorum authoritatis denique quoniam Ecclesia mater â—ultrix est Iustitiae Ideo Epâ—scopis peculiaris quaedam jurisdictio Ecclesiastica Civili dignior in personas causas legibus Imper est attributa c. Ut jus dicant Clericis c. And lest the Emperor in his Constitution in these words Ut jus dicant Clericis should seem to keep short and restrain the Bishops in their Audience or Consistories to Clergy men onely there follows a praeterea in the same title in the Code De Episcop audient Not long after this praeterea saith the Emperor there juâ— dicant laicis And as before the age of Constantine for want of power in the Church and the assistance of a Christian magistrate the Bishops could not restrain nor suppresse the many haeresies and schismes that did
born mininster to intermeddle with secular affairs and therefore it is likewise lawful for the mean born so to do And so in my Conscience I speak it in the presence of God and great noble men it is most lawful for them to intermeddle with secular affairs so as they be not intangled as the Apostle calls it with this intermedling as to slight and neglect the office of their calling which no minister noble or ignoble can do without grievously sinning against God and his own Conscience It is lawful for persons in holy orders to intermeddle it is without question or else they could not make provision of meat and drink as Beza interprets the place It is not lawful for them to be thus intangled and bound up with secular affairs which I humbly beseech your Lordships to consider not as a distinction invented by me but clearly expressed by the Apostle himself And thus my noble Lords I shall without any further molestation and with humble thanks for this great patience leave this great Cause of the Church to your Lordships wise and gracious consideration Here is my Mars-Hill and further I shall never appeal for justice Some assurance I have from the late solemn vote and protestation of both Houses for the maintaining and defending the power and priviledges of Parliament that if this Bill were now to be framed in the one House it would never be offered without much qualification as I perswade my self it will not be approved in the other Parliaments are indeed omnipotent but no more omnipotent then God himself who for all that cannot do every thing God cannot but perform his promise A Parliament under favour cannot unswear what it hath already vowed This is an old Maxime which I have learned of the Sages of the Law a parliament cannot be felo de se It cannot destroy or undo it self An Act of parliament as that in the 11. and another in the 21 Rich. 2. made to be unrepealable in any subsequent parliament was ipso facto void in the constitution why Because it took away the power and priviledges that is not the plumes and feathers the remote accidents but the very specifical forme essence and being of a parliament So if an Act should be made to take away the Votes of all the Commons or of all the Lords it were absolutely a void Act. I will conclude with the first Epistle to the Corinthians Cap 12. Vers. 15. If the Foot shall say because I am not the hand I am not of the Body is it therfore not of the body Vers. 20. But now are they many Members yet but one Body Vers. 2â— And the Eye cannot say unto the Hand I have no need of thee nor again the Head unto the Feet I have no need of you Some Annotations upon the Arch-Bishops SPEECH WHereas the Arch-bishop saith Sect. 3. That the Bishops sate in parliaments and all publick Assemblies of State a thousand years it is certainly true as appears fully by the Subscriptions of their names to all constitutions Laws and Ordinances made in the several great Councels of the Kingdome in the times of the Saxon Kings the manner being then to give their assent not by verbal voting but by subscribing their names as fully appears in Sir Henry Spelmans Edition of the Councells at the end of all such Assemblies and Councells as were then held And whereas the Arch-bishop saith that the princes of the Norman race erected the Bishopricks into Baronies it is very true as Cambden sheweth in his Britannia pag. 170. And so the great Abbots also heretofore by right and custome were peers of the Kingdome and did sit in parliaments to order decree and determine But the Conquerour ordained both Bishops and Abbots to be under military Service erecting every Bishop and Abbey at his Will and pleasure and appointing how many Soldiers he would require of them to be furnished for him and his Successors in times of Hostility and War So that the Tenure and Title of Barons being imposed on them it was no addition of honour to them they being superiour to Thanes or Barons though as Cambdon saith out of Mathew Paris That which was then complained of by the Cleagy and accounted as a burden in the age ensuing was accounted as the greatest honour And so it hath continued as a Title of Honour â—o the Bishops Whereas the Archbishop saith That the Word and Sacraments the means of our Salvation will not be effectually received from those Ministers whose persons shall be so vilified and dejected as to be made no parcels or fragments of the Common-wealth This doth certainly prove too true Religion it self is vilified and the Word of God and his Sacraments neglected almost in every parish because the persons that should perform the duties and offices are become contemptible for want of that Honour and Respect which they enjoyed legally heretofore Therefore God anciently in the Kingdome of Israel did greatly honour the Tribe of Levi when he made the priests Levites the principal officers Judges in every Court to whom the people were to be obedient upon pain of Death Deut. 17. 12. The Administration of law and Justice throughout the Kingdome depended oâ— them principally For God made his Covenant with Levi of Life and Peace The Law of Truth was in his Mouth The Priests Lips should preserve knowledge and they should seek the Law at his Mouth Mal. 2. 5 6 7. and so Ezekiel 44. 23. They shall teach my people the difference between the holy and prophane and cause them to discern between the unclean and the clean and in Controversie they shall stand in iudgement and they shall iudge according to my Iudgement and they shall keep my Laws and my Statntes in all my Assemblies They beiâ—g the principal Judges and Lawyers in that Common-wealth of Gods own Constitution And whereas it is now granted on all hands that there was three Courts of Justice in that Kingdome 1. The great Councel of 70 Elders 2. The Court of Judgement consisting of 23. 3. The Court of some three or some few more The Priests and Levites were principal men both Judges and Officers in all Courts both Scophtim Schoterim as 1. Chron. 19. 8 11. both to give Sentence and Judgement and also to execute the same So the Divines do affirm also in their late Annotations upon 1 Chron. 26 29 30. 2. Chron. 19. 8 11. They did study the Judicial and â—olitick Laws and had power to see the Law of God and injunctions of the King to be observed and to order divine and humane affairs And they held also other Honourable offices for we read that Zechariah a Levite was a wise Councellour and Benajah a priest son of Iehojadah was one of Davids twelve Captains being the third Captain of the Host for the third moneth and in his course consisting of 2400 was his son Amizabad Benajah was also one of David's principal worthies
having the name among the three mighties He was also Captain of the Guard to David and after the Death of Ioab he was made Lord General of the Host by King Solomon in Ioabs room 1. King 2. 35. And this is fully to be proved by excellent learned men As Sigonius Bertram Casaubon Moulin especially by the learned Hugo Grotius upon Mal. 5. 21. Where he doth accurately shew out of the Text Iosephus Philo and other Monuments of the Jews that there was no distinction of Courts the one Ecclesiastical the other Civil as Calvin and Beza and some others that follow them would have it but the Judges and Courts were united and the Priests and Levites the principal Judges and Officers in every Court to whom the people were to be obedient upon pain of Death Deut. 17. 12. They being appointed to hear every cause between blood and blood between plea and plea and between Stroke and Stroke being matters of Controversie within thy Gates And as our Laws call them Pleas of the Crown and Common pleas or whatsoever else did arise among them pertaining to God and the King 1 Chron 26. 30. 32. for which purpose God did scatter them in every Tribe and turned the curse of Iacob into a singular blessing to be divided in Iacob and scattered in Israel Appointing 1700 to be on the West-side Iordan and 2700 on the East-side The ancient frame of our Kingdome for 500. years beforre the Conquest was thus disposed and governed As Spelman sheweth fully in his learned Glossary and Councels and happy had it been if things had continued so still But now the Law being otherwise setled and the Courts divided it is not safe or easie to make alteration Only without change of Law or Courts the Benches may continue as they are though some more Judges be added in most Courts and some Eclesiastical persons among them as in the Saxon times Comes praesidebat foro Comitatus non solus sed adjunctus Episcopo hic ut jus divinum ille ut hnmanum diceret alterque alteri anxilio esset Consilio Praesertim Episcopus Comiti nam in hunc illi annimadvertere saepe licuit errantem cohibere Idem igitur utrique territorium jurisdictionis terminus Glossarium in Comes pag. 111. The Bishop and Earl of the County were joint Magistrates in every Shire and did assist each other in all Causes and Courts and so Mr. Selden in his History cap. 14. Sect. 1. By this means there was great union and harmony between all judges and officers whereas now there is great contention for jurisdiction and intollerable clashing in all Courts by Injunctions prohibitions Consultations and crosse orders to the great Vexation of the Clients and Subjects And by multiplying several Courts the number of Lawyers is greatly increased as Lord Cook sheweth 4. Instit. p. 76. Where he gives divers reasons of the increase of Suits in Law and in the same Book reckoneth up no lesse then 74. Courts of Law and justice of all sorts in the Kingdome besides the Ecclesiastical Courts Which are not many for the number and had little businesse to do when they were in greatest power For commonly two or three proctors were enough to dispatch the businesse of any Bishops Court without Advocates But in the Courts of Common Law there is a farâ— greater number of Lawyers in these times whereas there was but an 140. Lawyers and Attorneys appointed by that Martial and Legislative King Edw. 2. When he distinguished the Courts and appointed the number of Lawyers and Attorneys for the whole Kingdome whereof the Writ is referred unto by Lord Cook 4. Instit. pag. 76. But the writ it self is put down by Spelman in his Glossary pag. 44. 58. Sed hodie forte in uno Comitatu tot solummodo Atlornati reperiantur But the Division and Separation of the Ecclesiastical Courts from the Temporal seems to have proceeded first from Pope Nicholas the first as is mentioned in Gratian. Com. Cum ad verum 96. Distinct. about two hundred years before the Conquest which was imitated among us by William the Conquerour whose Statute for that purpose is recited and illustrated by Spelman in his Glossary and lately also published by Mr. Selden and Lord Cook 4. Instit. c. 52. So that as the Pope hath been the Authour of much evill in the World oftentimes so in this particular when he came to the height of his greatnesse having de facto the Supremacy in all Ecclesiastical matters he made the Clergy subject only to himself and his Deputies and Legates and such officers as he sent among us But at length Hen. 8. Contested with the Pope and recovered the Supremacy of his Crown though it cost much blood and opposition in his time But he having recovered it and it being approved by Parliament it is fully setled upon the King and vested in his Crown And as Lord Cook saith 4. Instit. pag. 331. His Majesty hath and Queen Elizabeth before him had as great and ample Supremacy and Iurisdiction Ecclesiastical as ever King of England had before them and that had justly and rightly pertained to them by divers other Acts and by the ancient Laws of England if the Clause of annexation in the said Statute of 1 Eliz. had never been inserted Wherefore the Speech of Iohn Pym as in Rushworths Collections 4. Caroli That the Supremacy was given by parliament to the Crown and as he seemeth to understand it may be taken away by parliament is a dangerous opinion not to be endured Lord Cook saith 4. Instit. pag. 325. The Act 1. Eliz is an Act of Restitution not a gift meerly given which was not formerly due and belonging to the jurisdiction of the Crown If therefore the King hath his Supremacy vested in his Crown so firmly and is Custos ntriusque Tabulae by the Word of God as the Arch-bishop sheweth Then this Ecclesiastical Head must be allowed to have some Ecclesiastical Sences to be consulted withal excellently learned and principal persons of the Clergy And as he addeth truly If Cranmer the Arch-bishop had been thus dealt withal and suppressed in the minority of our young Iosias Ed. 6. What had become of the great work of our Reformation and also if Ridley Latimer Hooper and the rest of the protestant Bishops Martyrs afterwards had been set aside and neglected the Reformation could not have been effected Therefore unlesse the King have good choice of Ecclesiastical persons excellently Learned Bishops both in the ancient Councels Fathers Histories and Controversies and in Canon and Civil Laws requisite to determine of great difficulties that will continually happen in the Church whereof the Conusance belongeth to the Spiritualty as Lord Cook sheweth out of the Statute 25. H. 8. cap. 21. and commendeth them for their Knowledge Integrity and Sufficiency and if so then much more at this day I saith Coke When all kind of Learning is eminently advanced to an higher