Saxons by such as he employed in that Holy work The instances whereof dispersed in several places of our English Histories and other Monuments and Records which concern this Church are handsomely summed up together by Sir Edward Cook in the fifth part of his Reports if I well remember but I am sure in Cawdries Case entituled De Jure Regis Ecclesiastico And though Parsons the Jesuite in his Answer unto that Report hath took much pains to vindicate the Popes Supremacy in this Kingdom from the first planting of the Gospel among the Saxons yet all he hath effected by it proves no more than this That the Popes by permission of some weak Princes did exercise a kind of concurrent jurisdiction here with the Kings themselves but came not to the full and entire Supremacy till they had brought all other Kings and Princes of the Western Empire nay even the Emperors themselves under their command So that when the Supremacy was recognized by the Clergy in their Convocation to K. H. 8. it was only the restoring of him to his proper and original power invaded by the Popes of these latter Ages though possibly the Title of Supream Head seemed to have somewhat in it of an Innovation At which Title when the Papists generally and Calvin in his Comment on the Prophet Amos did seem to be much scandalized it was with much wisdom changed by Q. Elizabeth into that of Supream Governour which is still in use And when that also would not down with some queasie stomacks the Queen her self by her Injunctions published in the first year of her Reign and the Clergy in their book of Articles agreed upon in Convocation about five years after did declare and signifie That there was no Authority in sacred matters contained under that Title but that only Prerogative which had been given always to all godly Princes in holy Scriptures by God himself that is That they should rule all Estates and degrees committed to their charge by God whether they be Ecclesiastical or Temporal and to restrain with the Civil Sword the stubborn and evil doers as also to exclude thereby the Bishop of Rome from having any jurisdiction in the Realm of England Artic. 37. Lay this unto the rest before and tell me if you can what hath been acted by the Kings of England in the Reformation of Religion but what is warranted unto them by the practice and example of the most godly Kings of Jewry seconded by the most godly Emperours in the Christian Church and by the usage also of their own Predecessors in this Kingdom till Papal Usurpation carried all before it And being that all the Popes pretended to in this Realm was but Usurpation it was no Wrong to take that from him which he had no Right to and to restore it at the last to the proper Owner Neither prescription on the one side nor discontinuance on the other change the case at all that noted Maxim of our Lawyers that no prescription binds the King or Nullum tempus occurrit Regi as their own words are being as good against the Pope as against the Subject This leads me to the second part of this Dispute the dispossessing of the Pope of that Supream Power so long enjoyed and exercised in this Realm by his Predecessors To which we say that though the pretensions of the Pope were antient yet they were not primitive and therefore we may answer in our Saviours words Ab initio non fuit sic it was not so from the beginning For it is evident enough in the course of story that the Pope neither claimed nor exercised any such Supremacy within this Kingdom in the first Ages of this Church nor in many after till by gaining from the King the Investiture of Bishops under Henry the First the exemption of the Clergy from the Courts of Justice under Henry the Second and the submission of King John to the See of Rome they found themselves of strength sufficient to make good their Plea And though by the like artifices seconded by some Texts of Scripture which the ignorance of those times incouraged them to abuse as they pleased they had attained the like Supremacy in France Spain and Germany and all the Churches of the West Yet his Incroachments were opposed and his Authority disputed upon all occasions especially as the light of Letters did begin to shine Insomuch as it was not only determined essentially in the Council of Constance one of the Imperial Cities of High germany that the Council was above the Pope and his Authority much curbed by the Pragmatick Sanction which thence took beginning But Gerson the learned Chancellor of Paris wrote a full Discourse entituled De auferibilitate Papae touching the total abrogating of the Papal Office which certainly he had never done in case the Papal Office had been found essential and of intrinsecal concernment to the Church of Christ According to the Position of that learned man The greatest Princes in these times did look upon the Pope and the Papal power as an Excrescence at the best in the body mystical subject and fit to be pared off as occasion served though on self ends Reasons of State and to serve their several turns by him as their needs required they did and do permit him to continue in his former greatness For Lewis the 11th King of France in a Council of his own Bishops held at Lions cited Pope Julius the 2d to appear before him and Laustrech Governour of Millaine under Francis the 1st conceived the Popes Authority to be so unnecessary yea even in Italy it self that taking a displeasure against Leo the 10th he outed him of all his jurisdiction within that Dukedom anno 1528. and so disposed of all Ecclesiastical affairs ut praefecto sacris Bigorrano Episcopo omnia sine Romani Pontificis authoritate administrarentur as Thuanus hath it that the Church there was supreamly governed by the Bishop of Bigor a Bishop of the Church of France without the intermedling of the Pope at all The like we find to have been done about six years after by Charles the Fifth Emperor and King of Spain who being no less displeased with Pope Clement the 7th Abolished the Papal power and jurisdiction out of all the Churches of his Kingdoms in Spain Which though it held but for a while till the breach was closed yet left he an example by it as my Author noteth Ecclesiasticam disciplinam citra Romani nominis autoritatem posse conservari that there was no necessity of a Pope at all And when K. Henry the 8th following these examples had banished the Popes Authority out of his Dominions Religion still remaining here as before it did the Popes Supremacy not being at the time an Article of the Churistian Faith as it hath since been made by Pope Pius the 4th that Act of his was much commended by most knowing men in that without more alteration in the face of the Church
as Sundays whereby we see the Church had no less care of one than of the other And so indeed it had not in this alone but in all things else the Holy days as we now distinguish them being in most points equal to the Sunday and in some superiour Leo the Emperiour by his Edict shut up the Theater and the Cirque or shew-place on the Lords day The like is willed expresly in the sixth general Council holden at Constantinople Can. 66. Anno 692. for the whole Easter week Nequaquam ergo his diebus equorum cursus vel aliquod publicum fiat spectacum so the Canon hath it The Emperour Charles restrained the Husbandman and the Tradesman from following their usual work on the Lords day The Council of Melun doth the same for the said Easter week and in more particulars it being ordered by that Synod that men forbear Can. 77. during the time above remembred ab omni opere rurali fabrili carpentario gynaecaeo caementario pictorio venatorio forensi mercatorio audientiali ac sacramentis exigendis from Husbandry the craft of Smiths and Carpenters from Needle-work Cementing Painting Hunting Pleadings Merchandize casting of Accounts and from taking Oaths That Benedictines had but three mess of Pottage upon other days die vero dominico in praecipuis festivitatibus but on the Lords day and the principal Festivals a fourth was added as saith Theodomare the Abbot in an Epistle to Charles the Great Law-suits and Courts of Judgment were to be laid aside and quite shut up on the Lords day as many Emperours and Councils had determined severally The Council held at Friburg Anno 895. did resolve the samne of Holy days or Saints days and the time of Lent Nullusomnino secularis diebus dominicis vel Sanctorum in Festis Conc. Fribâ—riens Can. 26. seu Quadragesimae aut jejuniorum placitum habere sed nec populum illo praesumat coercere as the Canon goeth The very same with that of the Council of Erford Anno 932. cap. 2. But what need private and particular Synods be produced as witnesses herein when we have Emperours Popes and Patriarchs that affirm the same Ap. Balsam tit 7. cap. 1. To take them in the order in which they lived Photius the Patriarch of Constantinople Anno 858. thus reckoneth up the Festivals of especial note viz. Seven days before Easter and seven days after Christmas Epiphanie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Feasts of the Apostles and the Lords day And then he adds 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that on those days they neither suffer publick shews nor Courts of Justice Emanuel Comnenus next Ap. Balsam Emperour of Constantinople Anno 1174. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. We do ordain saith he that these days following be exempt from labour viz. the Nativity of the Virgin Mary Holy-rood day and so he reckoneth all the rest in those parts observed together with all the Sundays in the year and that in them there be not any access to the seats of judgment Lib. 2 tit 〈◊〉 feriis cap. 5. The like Pope Gregory the ninth Anno 1228. determineth in the Decretal where numbring up the Holy-days he concludes at last that neither any process hold nor sentence be in force pronounced on any of those days though both parts mutually should consent upon it Consentientibus etiam partibus nec processus habitus teneat nec sententia quam contingit diebus hujusmodi promulgari So the Law resolves it Now lest the feast of Whitsontide might not have some respect as well as Easter it was determined in the Council held at Engelheim Anno 948. that Munday Tuesday Wednesday in the Whitsun-week Cap. 6. non minus quam dies dominicus solenniter honorentur should no less solemnly be observed than the Lords day was So when that Otho Bishop of Bamberg had planted the faith of Christ in Pomerania and was to give account thereof to the Pope then being Urspergens Chronic. he certifieth him by his Letters Anno 1124. that having Christned them and built them Churches he left them three injunctions for their Christian carriage First that they eat no flesh on Fridays Secondly that they rest the Lords day ab omni opere malo from every evil work repairing to the Church for religious duties And thirdly Sanctorum solennitates cum vigiliis omni diligentia observent that they keep carefully the Saints days with the Eves attendant So that in all these outward matters we find fair equality save that in one respect the principal Festivals had preheminence above the Sunday For whereas Fishermen were permitted by the Decretal of Pope Alexander the third as before was said diebus dominicis aliis festis on the Lords day and other Holy-days to fish for Herring in some cases there was a special exception of the greater Festivals praeterquam in majoribus anni solennitatibus as the other was But not to deal in generals only Isidore Arch-bishop of Sevil in the beginning of the seventh Century making a Catalogue of the principal Festivals begins his list with Easter and ends it with the Lords day as before we noted in the fifth Section of this Chapter Now lest it should be thought that in sacred matters and points of substance the other Holy-days wee not as much regarded as the Lords day was The Council held at Mentz Anno 813. did appoint it thus that it the Bishop were infirm or not at home Non desit tamen diebus dominicis festivitatibus qui verbum Dei praedicet juxta quod populus intelligat yet there should still be some to preach Gods Word unto the People according unto their capacities both on the Lords day and the other Festivals Indeed why should not both be observed alike the Saints days being dedicated unto God as the Lords day is and standing both of them on the same authority on the authority of the Church for the particular Institution on the authority of Gods Law for the general Warrant It was commanded by the Lord and written in the heart of man by the pen of nature that certain times should be appointed for Gods publick worship the choicing of the times was left to the Churches power and she designed the Saints days as she did the Lords both his and both allotted to his service only This made Saint Bernard ground them all the Lords day and the other Holy-days on the fourth Commandment the third in the Account of the Church of Rome Serm. 3. Super Salve reg Spirituale obsequium Deo praebetur in observantia sanctarum solennitatum unde tertium praeceptum contexitur Observa diem Sabbati i. e. in sacris feriis te exerce So S. Bernard in his third Sermon Super salve Regina The Lords days and the Holy-days or Saints days being of so near a kin we must next see what care was taken by the Church in these present ages for hallowing them unto the Lord. The
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
Realm and in respect thereof of the House of Commons in Parliament Next to the Parliament the most renowned Judicatory of this Land is the Great Council of the Peers called by the King on sudden and emergent occasions which cannot safely stay the leisure of a Parliament for the prescribing of such remedies as the case requires and called so for no other reason but that it is a general meeting of the Bishops and Temporal Lords under the common name of Peers to give the King such Counsel and advice in his greatest difficulties as the exigencies of affairs shall suggest unto them which proves the Bishops to be Peers as well as any of the Temporal Lords Nor could it properly be called the Great Council of Peers if any but the Peers be invited to it The last example of which Council was that held at York about the latter end of September Anno 1640. upon the breaking in of the Scottish Rebels And the like Argument may be drawn from that Appellation which commonly is given to that place or Room wherein the Lords Spiritual and Temporal do consult together in the times of Parliament best known unto us by the name of the House of Peers and known unto us by that name for no other Reason but because it is appropriated to the use of the Peers that is to say the Nobles Spiritual and Temporal or the Bishops and the Temporal Lords for their Consultations And as they have the name of Peers and the Rights of Peerage so is there none of all the Antient Rights of Peerage which belong not to them as fully and as amply as to any of the Temporal Lords that is to say a necessary place and Vote in Parliament and a particular Writ of Summons to invite them to it the freedom of their persons from Arrests at the suit of a Subject not to be troubled with Essoynes or supplicavits in the Courts of Justice a power to qualifie their Chaplains to hold several Benefices not to have any Action against them tried except one Knight at the least be returned of the Pannel the Liberty of killing one or more of the Kings Deer in any of his Parks or Chases both in their going to the Parliament and returning home of which take this in General from our Learned Antiquary Cambden Brit. fol. 123. Inde Ecclesiastici illi omnibus quibus caeteri Regni Barones gavisi sunt immunitatibus nisi quod à Paribus non judicentur that is to say that they enjoy all priviledges and Immunities as the Lay Lords do but that they are not to be Judged by their Peers But first he is not certain that this exception their not being to be Judged by their Peers will hold good in Law and therefore leaves the resolution of that point to our Learned Lawyers sed an hoc sit Juris explorati dixerint ipsi Juris periti as his own words are And secondly the reason which he gives is no more than this that since by reason of the Canons they could not be Judges or Assessors in causa sanguinis they therefore were referred to a Common Jury of twelve Men in all publick Trials but by this reason they must either have no Trial at all or may as well be tried by their Peers as a Common Jury because they are disabled by those Canons from sitting in Judgment on the life of a Common Juror as well as of a Lord or Peer which I marvail Cambden did not see But weaker is the Reason which is given by Stamford in his Pleas of the Crown that is to say that Bishops are not to be tried by their Peers because they do not hold their place in Parliament Ratione Nobilitatis sed ratione officii and yet not only in regard of their Office eien en respect de lour possessions l'antient Baronyes annexes a lour dignitye but in regard of their possessions and those ancient Baronies which are annexed to their Sees which reason in my Judgment hath no reason at all for then the old Barons which were called to Parliament in regard of their Tenure as they were all until the time of King Richard the 2d could have no Trial by their Peers because they had no place in Parliament but in respect of their possessions or temporal Baronies and secondly the Bishops as before was proved are accounted Nobles and thereupon may challenge their place in Parliament not only ratione officii as anciently before the times of William the Conqueror but also ratione Nobilitatis since they were ranked amongst the Barons in regard of their Tenure Others perhaps may give this reason that Bishops in the former times were debarred from Marriage and that now holding their Estates and Honours only for term of life they are not capable of transmitting either unto their posterity which possibly may make the Laws less tender of them than they might be otherwise but then what shall we say of the Wives and Widows of the Temporal Lords who being either barren or past hope of Children shall notwithstanding be tried by their Peers according to the Statute of Henry the sixth Or put the case that any man should be created Earl or Baron for the time of his life or with a limitation to the Heirs of his body and either live unmarried or continue childless must he be therefore made incapable of a Trial by the Peers of the Realm because his Honours and his Life do expire together I think no reasonable man can say it and I hope none will It cannot be denied but that some Bishops have been tried by Common Juries that is to say Adam de Orlton Bishop of Hereford Thomas Lyld Bishop of Ely Thomas Merkes Bishop of Carslile John Fisher Bishop of Rochester and Thomas Cranmer Archbishop of Canterbury but then it is to be observed that none but Fisher suffered death on that account whether by reason of some illegality in their proceedings or in reference to their High and holy Callings it is hard to say And secondly we may observe that though in some confusions and disorder of times such Presidents may be produced as in matter of Fact yet the Case is not altogether so clear in point of Law as not to leave the matter doubtful as we heard before and that it was conceived by some Learned men of that profession that if those Bishops had desired to be tryed by their Peers it could not have been denied them in a course of Justice And therefore thirdly we observe that the Bishops of Hereford and Ely did trust so much to their dependance on the Pope and their exemption from the power of all secular Judges that they refused absolutely to be tryed by any but the Archbishop of Canterbury as the Popes Legate in this Kingdom which possibly might put their Enemies upon a course of enquiring into their offences by a Common Jury the parties being wilfully absent and not submitting to a Trial in due course of Law
be placed according to ancient custom at the East end of the Chancel and railed about decently to prevent base and profane usages and where the Chancel wanted any thing of repairs or the Church it self both to be amended Having thus shewed his care first for the House of God to set it in good order the next work followed was to make his own dwelling House a fit and convenient Habitation that to the old Building he added a new one which was far more graceful and made thereto a Chappel next to the Dining-room that was beautified and adorned with silk Hangings about the Altar in which Chappel himself or his Curate read Morning and Evening Prayer to the Family calling in his Labourers and Workfolks for he was seldom without them while he liv'd saying that he loved the noise of a Work-mans hammer for he thought it a deed of Charity as well as to please his own fancy by often building repairing to set poor People a work and encourage painful Artificers and Tradesmen in their honest Callings Yet after his death his Eldest Son was sued for Dilapidations in the Court of Arches by Dr. Beamont his Fathers Successor but the ingenious Gentleman pleaded his cause so notably before Sir Giles Swet then Judge of the Court that he was discharged there being no reason or justice he should be troubled for Dilapidations occasioned by the long War when his Father was unjustly turn'd out of his House and Living In July 1630. he took his Degree of Batchelor in Divinity His Latin Sermon was upon these words Mal. 4.19 Facim vos fieri piscatores hominum Upon the Sunday following being the time of the Act he Preach'd in the Afternoon on Matth. 13.25 In Feb. 13. A. D. 1633. He took his Degree of Dr. in Divinity an honour not usually in those days conferr'd upon men of such green years but our young Doctor verified those excellent words of the Son of Syrach That honourable Age is not that which standeth in length of time nor that is measured by number of years but Wisdom is the grey unto men and an unspotted life is an old Age Wisd 4.8 9. He entertain'd some hopes that Dr. Prideaux his animosities in so long a Tract of time as from 1627. to 1633. might have cooled In his first Disputation he had insisted on the Churches Visibility and now he resolved to assert and establish its Authority and to that purpose made choice to answer for his Degree upon these three questions viz. An Ecclesia habeat Authoritatem In determinandis fidei controversus An Ecclesia habeat Authoritatem Interpretandi S. scripturas An Ecclesia habeat Authoritatem Decernendi Ritus Caeremonias All which he held in the Affirmative according to the Doctrine of the Church of England in the 20th Article But Dr. Prideaux was as little pleased with these questions and the Respondents stating of them as he was with the former And therefore to create unto the Respondent a greater odium he openly declared that the Respondent had falsified the publick Doctrine of the Church and changed the Article with that sentence viz. Habet Ecclesia ritus sive caeremonias c. which was not to be found in the whole body of it and for the proof thereof he read the Article out of a Book which lay before him beginning thus Non licet Ecclesiae quicquam instituere quod verbo Dei scripto adversetur c. To which the Respondent readily answered That he perceived by the bigness of the Book which lay on the Doctors Cushion that he had read that Article out of the harmony of Confessions published at Geneva A. D. 1612. which therein followed the Edition of the Articles in the time of King Edward VI. A.D. 1552. in which that sentence was not found but that it was otherwise in the Articles agreed on in the Convocation A. D. 1562. The Respondent caused the Book of Articles to be sent for out of the Book-sellers shop which being observed by the Doctor he declared himself very willing to decline any further prosecution of that particular But Dr. Heylyn was resolved to proceed on no further Vsquedum liberaverit animam suam ab ista calumnia as his own words were At the coming in of the Book the Respondent read the Article in the English Tongue viz. The Church hath power to decree Rites and Ceremonies and Authority in Controversies of Faith c. Which done he delivered the Book to one of the Standers by who desired it of him the Book passing from one hand to another till all men were satisfied The Regius Professor had no other subterfuge but this He went to prove that not the Convocation but the High Court of Parliament had power of ordering matters in the Church in making Canons ordaining Ceremonies and determining Controversies in Religion And he could find no other medium to make it good but the Authority of Sir Edward Coke in one of the Books of his Reports An Argument that Dr. Heylyn gratified with no better answer than Non Credendum est cuique extra suam artem For these things and the Professors ill words in the former Disputation Dr. Heylyn caused him to be brought before the Council Table at Woodstock where he was publickly reprehended And upon the coming out of the Kings Declaration concerning lawful sports Dr. Heylyn translated the Regius Professors Lecture upon the Sabbath into English and putting a Preface before it caused it to be Printed a performance which did not only justifie his Majesties proceedings but took off much of that opinion which Dr. Prideaux had amongst the Puritanical Faction in those days A. D. 1634. The grievances which the Collegiate Church of Westminster suffered under the Government of John Lord Bishop of Lincoln then Commendatory Dean thereof became so intolerable that Dr. Heylyn with Dr. Tho. Wilson Dr. Gabriel Moor and Dr. Lud. Wemys with other of the Prebends drew up a Charge of no less than 36 Articles against the Bishop and by way of complaint humbly Petitioned his Majesty for redress of these grievances Whereupon a Commission was issued out to the Arch-Bishops of Canterbury and York the Earl of Manchester Earl of Portland the Lord Bishop of London and the two Secretaries of State Authorizing them to hold a Visitation of the Church of Westminster to examine the particular Charges made against John Lord Bishop of Lincoln who afterwards calling the Prebends to meet him in the Jerusalem-Chamber desired to know of them what these things were that were amiss that so he might presently redress them But to that Dr. Heylyn replied that seeing they had put the business into his Majesties hands it would but ill become them to take the matters out of his into their own Amongst other grievances the Bishop had most disgracefully turned out the Prebends of the great Seat or Pew under the Pulpit Dr. Heylyn being chosen Advocate for his Brothren did prove before
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
Saturdays Slop So easily did the Popes prevail with our now friends of Scotland that neither miracle nor any special packet from the Court of Heaven was accounted necessary But here with us in England it was not so though now the Popes had got the better of King John that unhappy Prince and had in Canterbury an Archbishop of their own appointment even that Steven Langton about whom so much strife was raised Which notwithstanding and that the King was then a Minor yet they proceeded here with great care and caution and brought the Holy-days into order not by command or any Decretal from Rome but by a Council held at Oxford Ap. Lindwood Anno 1222. where amongst other Ordinances tending unto the Government of the Church the Holy-days were divided into these three ranks In the first rank were those quae omni veneratione servanda erant which were to be observed with all reverence and solemnity of which sort were omnes dies Dominici c. all Sundays in the year the feast of Christs Nativity together with all others now observed in the Church of England as also all the Festivals of the Virgin Mary excepting that of her Conception which was left at large with divers which have since been abrogated And for conclusion festum dedicationis cujuslibet Ecclesiae in sua parochia the Wakes or Feasts of Dedication of particular Churches in their proper Parishes are there determined to be kept with the same reverence and solemnity as the Sundays were Nor was this of the Wakes or Feasts of Dedication any new device but such as could plead a fair original from the Council held in Mentz anno 813. If it went no higher For in a Catalogue there made of such principal feasts as annually were to be observed they reckon dedicationem templi the consecration Feast or Wake as we use to call it and place it in no lower rank in reference to the solemnity of the same than Easter Whitsontide and the rest of the greater Festivals Now at the first those Wakes or Feasts of dedication were either held upon the very day on which or the Saints day to which they had been first consecrated But after finding that so many Holy days brought no small detriment to the Common-wealth it came to pass that generally these Wakes or Feasts of dedication were respited until the Sunday following as we now observe them Of the next rank of Feasts in this Council mentioned were those which were by Priest and Curate to be celebrated most devoutly with all due performances minoribus operibus servilibus secundum consuetudinem loci illis diebus interdictis all servile works of an inferiour and less important nature according to the custom of the place being laid aside Such were Saint Fabian and Sebastian and some twenty more which are therein specified but now out of use and amongst them the Festival of Saint George was one which after in the year 1414. was made by Chicheley then Archbishop a Majus duplex and no less solemnly to be observed than the Feast of Christmass Of the last rank of Feasts were those in quibus post missam opera rusticana concedebantur sed antequam non wherein it was permitted that men might after Mass pursue their Countrey businesses though not before and these were only the Octaves of Epiphany and of John the Baptist and of Saint Peter together with the translations of Saint Benedict and Saint Martin But yet it seems that on the greater Festivals those of the first rank there was no restraint of Tillage and of Shipping if occasion were and that necessity did require though on those days Sundays and all before remembred there was a general restraint of all other works For so it standeth in the title prefixt before those Festivals haec sunt festa in quibus prohibitis aliis operibus conceduntur opera agriculturae carrucarum Where by the way I have translated carrucarum shipping the word not being put for Plough or Cart which may make it all one with the word foregoing but for ships and sayling Carruca signifieth a Ship of the greater burden such as to this day we call Carrects which first came from hence And in this sense the word is to be found in an Epistle writ by Gildas Illis ad sua remeantibus emergunt certatim de Carruchis quibus sunt trans Scyticam vallem avecti So then as yet Tillage and Sayling were allowed of on the Sunday if as before I said occasion were Math. Westmonaster and that necessity so required Of other passages considerable in the Reign of K. Henry III. the principal to this point and purpose are his own Coronation on Whitsunday anno 1220. two years before this Council which was performed with great solemnity and concourse of People Next his bestowing the order of Knighthood on Richard de Clare Earl of Gloucester accompanied with forty other gallants of great hopes and spirit on Whitsunday too Anno 1245. and last of all a Parliament Assembled on Mid-lent Sunday Parliamentum generalissimum the Historian calls it the next year after This was a fair beginning but they staid not here For after in a Synod of Archbishop Islippes he was advanced unto the See Lindw l. 2. tit de feriis Anno 1349. it was decreed de fratrum nostrorum consilio with the assent and counsel of all the Prelates then assembled that on the principal Feasts hereafter named there should be generally a restraint through all the Province ab universis servilibus operibus etiam reipubl utilibus even from all manner of servile works though otherwise necessary to the Common-wealth This general restraint in reference to the Sunday was to begin on Saturday night ab hora diei Sabbati vespertina as the Canon goes not a minute sooner and that upon good reason too ne Judaicae superstitionis participes videamur lest if they did begin it sooner as some now would have us they might be guilty of a Jewish superstition the same to be observed in such other Feasts quae suas habent vigilias whose Eves had formerly been kept As also that the like restraint should be observed upon the Feast of Christmass S. Steven S. John c. and finally on the Wakes or Dedication Feasts which before we spake of Now for the works before prohibited though necessary to the Common wealth as we may reckon Husbandry and all things appertaining thereunto so probably we may reckon Law-days and all publick Sessions in Courts of Justice in case they had not been left off in former times when as the Judges general being of the Clergy Finâ—â— of the Law l. 1. c. 3. might in obedience to the Canon-law forbear their Sessions on those days the Lords day especially For as our Sages in the Law have resolved it generally that day is to be exempt from such business even by the Common Law for the solemnity thereof to the intent that people may apply
themselves to prayer and Gods publick service Particularly Fitz-Herbert tells us that no plea shall be holden Quindena Paschae Nat. Brevium fol. 17. 1 Eli◠p. 168. because it is always on the sunday but it shall be holden crastino quindenae paschae on the morrow after So Justice Dyer hath resolved that if a Writ of scire facias out of the common-Common-pleas bear Test on a Sunday it is an errour because that day is not dies juridicus in Banco And so it is agreed amongst them that on a Fine levied with Proclamations according to the Statute of King Henry VII if any of the Proclamations be made on the Lords day all of them are to be accounted erroneous Acts. But to return unto the Canon where before we left however that Archbishop Langton formerly and Islip at the present time had made these several restraints from all servile labours yet they were far enough from entertaining any Jewish fancy The Canon last remembred that of Simon Islip doth express as much But more particularly and punctually we may find what was the judgment of these times in a full declaration of the same in a Synod at Lambeth what time John Peckham was Archbishop which was in Anno 1280. Lindw l. 1. tit de offic Archipresb It was thus determined Sciendum est quod obligatio ad feriandum in Sabbato legali expiravit omnino c. It is to be understood that all manner of obligation of resting on the legal Sabbath as was required in the Old Testament is utterly expired with the other ceremonies And it is now sufficient in the New Testament to attend Gods service upon the Lords days and the other Holy days ad hoc Ecclesiastica authoritate deputatis appointed by the Church to that end and purpose The manner of sanctifying all which days non est sumendus à superstitione Judaica sed à Canonicis institutis is not to be derived from any Jewish superstition but from the Canons of the Church This was exact and plain enough and this was constantly the doctrine of the Church of England Joannes de Burgo who lived about the end of K. Henry VI. doth almost word for word resolve it so in his Pupilla oculi part 10. c. 11. D. Yet find we not in these restraints that Marketting had been forbidden either on the Lords day or the other Holy days and indeed it was not that came in afterwards by degrees partly by Statutes of the Realm partly by Canons of the Church not till all Nations else had long laid them down For in the 28 of King Edward III. cap 14. it was accorded and established that shewing of Wools shall be made at the Stapie every day of the week except the Sunday and the solemn Feasts in the year This was the first restraint in this kind with us here in England and this gives no more priviledge to the Lords day than the solemn Festivals Antiq. Brit. in Stafford Nor was there more done in it for almost an hundred years not till the time of Henry VI. Anno 1444. what time Archbishop Stafford decreed throughout his Province ut nundina emporia in Ecclesiis aut Coemiteriis diebusque Dominicis atque Festis praeterquam tempore messis non teneantur that Fairs and Markets should no more be kept in Churches and Church-yards or on the Lords days or the other Holy-days except in time of Harvest only If in that time they might be suffered then certainly in themselves they were not unlawful on any other further than as prohibited by the higher powers Now that which the Archbishop had decreed throughout his Province Tabians Chronicle Catworth Lord Mayor of London attempted to exceed within that City For in this year saith Fabian Anno 1444. an Act was made by Authority of the Common Council of London that upon the Sunday should no manner of thing within the franchise of the City be bought or sold neither Victual nor other thing nor no Artificer should bring his Ware unto any man to be worn or occupied that day as Taylers Garments and Cordwayners Shooes and so likewise all other occupations But then it followeth in the story the which Ordinance held but a while enough to shew by the success how ill it doth agree with a Lord Mayor to deal in things about the Sabbath Afterwards in the year 1451. which was the 28 of this Henries Reign it pleased the King in Parliament to ratifie what before was ordered by that Archbishop in this form that followeth 28. H. 6. c. 16. Considering the abominable injuries and effences done to Almigvty God and to his Saints always ayders and finguler affistants in our necessities by the necasion of Fairs and Marhets upon their high and principal Feasts as in the Feast of the Ascension of our Lord. in the day of Corpus Christi in the day of Whitsunday Trinity Sunday and other Sundays as also in the high Feast of the Assumption of our Blessed Lady the day of all Saints and on Good Friday accustomably and miserably holden and used in the Keaim of England c. our Soveraign Lord the King c. hath ordained that all manner of Fairs and Markets on the said principal Feasts and Sundays and Good Friday shall clearly cease from all shewing of any Goods and Merchandises necessary Victual only ercept which yet was more than was allowed in the City-Act upon pain of forfeiture of all the goods aforesaid to the Lord of the franchise or liverty where such goods be or shall be she wed contrary to this Ordinance the four Sundays in Harvest except Which clause or reservation sheweth plainly that the things before prohibited were not esteemed unlawful in themselves as also that this Law was made in confirmation of the former order of the Archbishop as before was said Now on this Law I find two resolutions made by my Lords the Judges First Justice Brian in the 12th of King Edward the fourth declared that no sale made upon a Sunday though in a Fair or Market-overt for Markets as it seemeth were not then quite laid down though by Law prohibited shall be a good sale to alter the property of the goods And Ploydon in the time of Queen Elizabeth was of opinion Daltons Justice cap. 27. that the Lord of any Fair or Market kept upon the Sunday contrary to the Statute may therefore be indicted for the King or Queen either at the Assizes or general Goal delivery or Quarter Sessions within that County If so in case such Lord may be Endicted for any Fair or Market kept upon the sunday as being contrary to the Statute then by the same reason may he be Endicted for any Fair or Market kept on any of the other Holy-days in that Statute mentioned Nor staid it here For in the 1465. which was the fourth year of King Edward IV. it pleased the King in Parliament to Enact as followeth Our Soveraign Lord the
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
himself that whatsoever had been done in the alteration suffragio meo comprobavi he had confirmed and approved as a thing well done Calvin in Eplstola ad Cardinal Sadolet and therefore thought himself to be no less obliged to defend the action than if it had been done at first bh his own command For doubtless that of Tully is exceeding true Nil refert utrum voluerim fieri vel gaudeam factum Cicero in Philip 2. between the doing of a soul and disloyal act and the approbation of it when it is done is but little difference But to proceed our Author being thus made a party in the cause and quarrel of Geeva thought himself bound not only to justifie unto others what himself approved but also to lay down such grounds whereby the Example might be followed and their disloyalty and rebellion the less observed because they did not go alone without company In which respect and 't is a thing to be observed althoughthat Book of Institutions hath been often printed and received many alterations and additions as before was noted yet this particular passage still remains unaltered and hath continued as it is from the first Edition which was in the year 1536. when the Rebellion of Geneva was yet fresh and talked of as an ill Example Nor was the man deceived in his expectation For as he grew into esteem and reputation in the World abroad so he attained at last to that power and Empire over the souls and consciences of his followers that his Errors were accounted Orthodox his defects Perfections and the revolt of the Genevians from their natural Prince must by no means be called Rebellion because projected and pursued by such popular Officers to whom it appertained of common course to regulate the Authority of Kings and Princes And though he doth not say expresly that there either are or ought to be such popular Officers in every Realm or common-wealth but brings it in upon the by with his ifs and ands yet ifs and ands are not allowed of in the Laws to excuse Rebellions Bacons History of King Henry the seventh and by the setting up of that dangerous Si quis si qui sintâ—populares Magistratus as his words there are he seems to make a Proclamation that where there were such Popular Officers it was their bounden duty to correct their Princes after the manner of Geneva where there were none the people were God help them in an ill condition unless some other means were thought of for their ease and remedy Upon which Principles of his his folowers raised such Positions and pursued such practices as have distracted and embroyled the most parts of Europe and made it of a Garden to become a Wilderness For finding that they could not easily create such popular Magistrates to lord it over Kings and Princes who had not been accustomed to the like Controlments they put that power of regulating the Supream Authority either upon the body of the people generally whereof you were told before from Buchannan or upon such to whom they should communicate or transser their Power as occasion served whereof you may hear further in that which followeth And that not only in the case of civil Liberty for which the Examples of the Ephori and the Roman Tribunes were at first found out and that of the Demarchi thrust upon the Readers for the like foul end but specially in such matters which concerned Religion wherein the extraordinary calling of some men in the holy Scriptures must serve for Precedents and Examples to confirm their practices From hence it was that Buchannan doth not only subject his King unto the Ordinary Judges and Courts of Justice as before was noted but fearing that Kings would be too potent to be so kept under adviseth this Buchann de jure Regni Eorum interfectoribus praemia decerni that Rewards should publickly be decreed for those who kill a Tyrant and Kings and Tyrants are the same as heretofore in the word and notion so now in the Opinion of the Presbyterian or Calvinian faction as usually are proposed to those who kill Wolves or Bears From hence it was that the inferiour or subordinate Magistrate is advanced so high as to be entituled to a Power adversus Superiorem Magistratum se Rempub. Ecclesiam etiam armis defendere Paraeus in Epistola ad Rom. cap. 13. of taking Arms against the King or Superiour Magistrate in defence of himself his Countrey and true Religion which though they are the words of Paraeus only yetthey contain the mind and meaning of all the rest of that faction as his son Philip doth demonstrate In Append. ad Cap. 13. Epist ad Rom. Cambden Annal Eliz. An. 1559. Hence was it that John Knox delivered for sound Orthodox doctrine Procerum esse propria autoritate Idololatriam tollere Principes intra legum rescripta per vim reducere that it belonged unto the Peers of each several Kingdom to reform matters of the Church by their own Authority and to confine their Kings and Princes within the bounds prescribed by Law even by force of Arms. Hence that Geselius one of the Lecturers of Roterdam preached unto his people Necessaria Respons Jean de Serres inventnire de Fr. History of the Netherlands Thuan. hist l. 114. Camden Annal An. 15 59. Laurea Austriaca Continuati Thuan. hist l. 8. that if the Magistrates and Clergy did neglect their duty in the reformation of Religion necesse est id facere plebeios that then it did belong to the common people who were bound to have a care thereof and proceed accordingly And as for points of Practice should we look that way what a confusion should we find in most parts of Europe occasioned by no other ground than the entertainment of these Principles and the scattering of these positions amongst the people Witness the Civil Wars of France the revolt of Holland the expulsion of the Earl of East-Friezland the insurrections of the Scots the Tumults of Bohemia the commotions of Brandenburg the translation of the Crown of Sweden from the King of Pole to Charles Duke of Finland the change of Government in England all acted by the Presbyterian or Calvinian party in those several States under pretence of Reformation and redress of grievances And to say truth such is the Genius of the Sect that though they may admit an Equal as parity is the thing most aimed at by them both in Church and State yet they will hardly be persuaded to submit themselves to a Superiour to no Superiours more unwillingly than to Kings and Princes whose persons they disgrace whose power they ruinate whose calling they endeavour to decry and blemish by all means imaginable First for their calling they say it is no other than an humane Ordinance and that the King is but a creature of the peoples making whom having made they may as easily destroy and unmake again Which as it is the
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
honour of the Empire and the publick safety Nor is this any new authority which the Ecclesiastical Estate hath gained in the latter times but such wherein they were intrusted from the first beginning of that Empire It being affirmed by Aventinus a Writer of unquestioned credit that long before the institution of the seven Electors which was in An. 996. the Prelates the Nobility and the chief of the People had the election of the Emperour Aventini Annal Boiorum l. 5. And if the Prelates were intrusted in so high a point as the Election of the Emperour or the Soveraign Prince no question but they were imployed also in his publick Councels in matters which concerned the managery of the Common-wealth Next pass we over into France and there we find the Subjects marshalled into three Estates whereof the Clergy is the first Rex coactis tribus Ordinibus Sacerdotio Nobilitate Plebe Paul Aemilius hist Franc. l. 9. subsidia rei pecuniariae petiit that is to say the King assembling or conveening the three Estates viz. the Clergy the Nobility and the Commons demanded subsidies for the support of his Estate So Paulus Aemilius doth inform us Out of these three are chosen certain Delegates or Commissioners some for each Estate as often as the Kings occasions do require their meeting the time and place whereof is absolutely left unto his disposing and these thus met do make up the Conventus Ordinum or L' Assemblie des Estats as the French men call it in form much like the English Parliament but in nothing else the power and reputation of it being much diminished in these latter times especially since the great improvement of the Court of Parliament fixed and of long time fixed in Paris Which Court of Parliament as it was instituted at the first by Charles Martel Mayre of the Palace to the Merovignian line of France and Grand-father to Charle magne so it consisted at the first of the same ingredients of which the great Assembly des Estats consisteth now that is to say the Prelates and the Peers and certain of the principal Gentry which they call La Nebless together with some few of the most considerable Officers of the Kings houshold A Court of such esteem in the former time that the Kings of Sicily Cyprus Bohemia Scotland and Navar Andre du Chesne have thought it no disparagement unto them to be members of it and which is more when Frederick the second had spent much time and treasure in his quarrels with Pope Innocent the fourth he was content to submit the whole cause in difference unto the judgement of this Court But being at last become sedentaire and fixed at Paris as other ordinary Courts of Justice were which was in An. 1286. or thereabouts the Nobles first and after them the Bishops withdrew themselves from the troubles of it and left it to the ordering of the Civil Lawyers though still the Peers do challenge and enjoy a place therein as oft as any point of moment is in agitation the Bishop of Paris and the Abbot of St. Denys continuing constant members of it to this very day But for the Assembly des Estats or Conventus Ordinum made up of the Clergy the Nobility and the Commons as before I told you he that would see the manner of it the points there handled and that remainder of authority which is left unto them let him repair unto Thuanus Thuan. hist sui temp lib. and look upon the great Assembly held at Bloys An. 1573. He shall find it there Pass we next over the Pyrenees to the Realms of Spain and we shall find in each the same three Estates whose meeting they call there by the name of Curia Bodin de Repub lib. 3. c. the Court 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or by way of eminency consisting of the Clergy the Nobility and Commissioners of the Provinces and most antient Cities But we must tell you by the way that long before the institution of these Courts and long before the division of Spain into so many Kingdoms the Prelates of that Church were of such authority that a chief stroke in the election of their Kings did belong to them For in the eighth Council of Toledo summoned by Recesvintus the 25th of the Gothish race of the Kings of Spain An. 653. so long agoe in which were present 52 Bishops 12 Abbots and the Delegates of Vicars of ten other Bishops who could not personally attend the service it was ordered with the Kings consent that from thenceforth the Kings of Spain should be elected in the Regal City or in what other place soever the King should happen to decease by the joynt suffrages of the Prelates and the great Lords of the Court Majores Palatii as the Canon calls them Concil Tolet. VIII Can. 10. But take the whole Canon with you for the more assurance and you find it thus Abhinc ergo deinceps ita erunt in Regni gloria praeficiendi Rectores ut aut in urbe Regia aut in loco ubi Princeps decesserit cum Pontisicum Majorumque Palatii omnimodo eligantur assensu But after Spain became divided into several Kingdoms and that each Kingdom had its Court or Curia as they call their Parliament the Clergy were esteemed in each for the third Estate the first indeed of all the three and either in person or by their Proxies made up the most considerable part in those publick meetings For proof of which we need but look into the General History of Spain translated out of French by Grimston and we shall find a Court or Parliament for the Realm of Aragon consisting of the Bishops Nobles and Deputies of Towns and Commonalties having place in the said Estates conveened by King James at Saragossa Anno 1325. for setling the Succession and declaring the Heir another at Monson Gen. hist of Spain l. 14. Id. lib. 11. where the Estates of Aragon and Catalogne did conveen together 1236. to consult about the Conquest of Valentia and before that another Assembly of the Bishops and Noblemen called at Saragossa by Alfonso the Great touching the War against the Moores Id. lib. 9. And as for the Realm of Naples and Sicily being appends on this Crown there is little question to be made but that the Bishops and Clergy of both enjoyed the place and priviledges of the third Estate both Kingdoms being antiently hoden of the Pope and of his Erection and the Italian Bishops as lying directly under his nose more amply priviledged for the most part than in other Countries Thus for Castile we find a Parliament of Lords Prelates and Deputies of Towns summoned at Toledo by Alfonso the Noble An. 1210. upon occasion of an invasion made by the Moores another before that at Burgos Id. lib. 10. under the same King Anno 1179. for levying of money on the people to maintain the Wars that great Convention of the States held
negandum as if it were not fit to deny them any thing Calvin in Jerem. c. 38. ver 5. Not so saith he it rather is amarulenta Regis querimonia a sad and bitter complaint of the poor captivated King against his Counsellors by whom he was so over-ruled ut velit nolit cedere iis cogitur that he was forced to yield to them whether he would or not which he expresly calls inexcusabilem arrogantiam an intolerable piece of sawciness in those Princes and an exclusion of the King from his legal Rights Let us next take a view of such Christian Kingdoms as are under the command of absolute Monarchs And first we will begin with the Realm of France the Government whereof is meerly Regal if not despotical such as that of a Master over his Servants which Aristotle defineth to be a Form of Government 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 wherein the King may do whatsoever he list Aristot Politic. l. 3. according to the counsel of his own mind For in his Arbitrary Edicts which he sendeth abroad he never mentioneth the cosent of the People or the approbation of the Council or the advice of his Judges which might be thought to derogate too much from his absolute power but concludes all of them in this Regal Form Car tel est nostre plaisir for such is our pleasure And though the Court of Parliament in Paris do use to take upon them to peruse his Edicts View of France by Dallington before they pass abroad for Laws and sometime to demur on his Grants and Patents and to petition him to reverse the same as they see occasion yet their perusal is a matter but of meer formality and their demurs more dilatory than effectual It is the Car tel est nostre plaisir that concludes the business and the Kings pleasure is the Law which that Court is ruled by As for the Assemblie des Estats or Conventus Ordinum it was reputed anciently the Supream Court for Government and Justice of all the Kingdom and had the cognizance of the greatest and most weighty affairs of State But these meetings have been long since discontinued and almost forgotten there being no such Assembly from the time of King Charles the eighth to the beginning of the reign of King Charles the ninth Thuanus hist sui temp which was 70 years and not many since And to say truth they could be but of little use as the World now goeth were the meetings oftner For whereas there are three Principal if not sole occasions of calling this Assembly or Conventus Ordinum that is to say the disposing of the Regency during the nonage or sickness of the King the granting Aids and Subsidies and the redress of the grievances there is now another course taken to dispatch their business The Parliament of Paris which speaks most commonly as it is prompted by power and greatness appointeth the Regent Contin Thuani An. 1610. View of France the Kings themselves together with their Treasurers and Under-Officers determine of the Taxes and they that do complain of Grievances may either have recourse to the Courts of Justice or else petition to the King for redress thereof And for the making new Laws or repealing the old the naturalization of the Alien and the regulating of his Sales or Grants of the Crown-Lands the publick patrimony of the Kingdom which were wont to be the proper Subject and debates of these Grand Assemblies they also have been so disposed of that Conventus Ordinum is neither troubled with them nor called about them The Chamber of Accompts in Paris which hath some resemblance to our Court of Exchequer doth absolutely dispose of Naturalizations Andr. Du Chesn and superficially surveyeth the Kings Grants and Sales which they seldom cross The Kings Car tel est nostre plaisir is the Subjects Law and is as binding as any Act or Ordinance of the three Estates and for repealing of such Laws as upon long experience are conceived to be unprofitable the Kings sole Edict is as powerful as any Act of Parliament Of which Bodinus doth not only say in these general terms Bodin de Rep. lib. 1. cap. 8. Saepe vidimus sine Ordinum convocatione consensu leges à Principe abrogatas that many times these Kings did abrogate some ancient Laws without the calling and consent of the three Estates but saith that it was neither new nor strange that they should so do and gives us some particular instances not only of the later times but the former Ages Nay when the power of this Assemblie des Estats was most great and eminent neither so curtailed nor neglected as it hath been lately yet then they carried themselves with the greatest reverence and respect before their King that could be possibly imagined For in the Assembly held at Tours under Charles the 8. though the King was then no more than 14 years of age and the Authority of that Court so great and awful that it was never at so high an eminence for power and reputation quanta illis temporibus as it was at that time yet when they came before the King Monsieur de Rell being then Speaker for the Commons or the third Estate did in the name of all the rest and with as much humility and reverence as he could devise promise such duty and obedience such a conformity of his will and pleasure such readiness to supply his wants and such alacrity in hearking unto his Commandments that as Bodinus well observes his whole Oration was nothing else quam perpetua voluntatis omnium erga Regem testificatio but a constant testimony and expression of the good affections of the Subject to their Lord and Sovereign Id. ibid. But whatsoever power they had in former times is not now material King Lewis the thirteenth having on good reason of State discharged those Conventions for the time ensuing Instead whereof he instituted an Assembly of another temper and such as should be more obnoxious to his will and pleasure consisting of a certain number of persons out of each Estate but all of his own nomination and appointment which join'd with certain of his Council and principal Officers he caused to be called L' Assembly des Notables assigning to them all the power and privileges which the later Conventions of the three Estates did pretend unto right well assured that men so nominated and intrusted would never use their powers to his detriment and disturbance of his heirs successors But to proceed Bodinus having shewn what dutiful respects the Convention of Estates in France shewed unto their King adds this Note nec aliter Hispanorum conventus habentur that the Assembly of the three Estates in the Realms of Spain carry themselves with the like reverence and submission to their Lord the King Nay major etiam obedientia majus obsequium Regi exhibetur the King of Spain hath more obedience and observance
no appeal but only to the whole body of that Court the King Case of our Assairs p. 7 8. and both the Houses the Head and Members But this they do not as the upper House of Parliament but as the distinct Court of the Kings Barons of Parliament of a particular and ministerial jurisdiction to some intents and purposes and to some alone which though it doth invest them with a power of judicature confers not any thing upon them which belongs to Sovereignty Then for the Commons all which the Writ doth call them to is facere consentire to do and consent unto such things which are ordained by the Lords and Common Council of the Kingdom of England and sure conformity and consent which is all the Writ requireth from them are no marks of Sovereignty nor can an Argument be drawn from thence by the subtlest Sophister to shew that they are called to be partakers of the Sovereign power or that the King intends to denude himself of any branch or leaf thereof to hide their nakedness And being met together in a body collective they are so far from having any share in Sovereignty that they cannot properly be called a Court of Judicature as neither having any power to minister an Oath Id. p. 9. or to imprison any body except it be some of their own Members if they see occasion which are things incident to all Courts of Justice and to every Steward of a Leet insomuch that the House of Commons is compared by some and not incongruously unto the Grand Inquest at a general Sessions whose principal work it is to receive Bills and prepare businesses Review of the Observat p. 22. and make them fit and ready for my Lords the Judges Nay so far were they heretofore from the thoughts of Sovereignty that they were lyable to sutes and punishments for things done in Parliament though only to the prejudice of a private Subject until King Henry VIII most graciously passed a Law for their indemnity For whereas Richard Strode one of the company of Tinners in the County of Cornwall being a Member of the Commons House had spoken somewhat to the prejudice of that Society and contrary to the Ordinances of the Stanneries at his return into the Country he was Arrested Fined Imprisoned Complaint whereof being made in Parliament the King passed a Law to this effect viz. That all suites condemnations 4 Hen. 8. c. 8. executions charges and impositions put or hereafter to be put upon Richard Strode and every of his Complices that be of this Parliament or any other hereafter for any Bill speaking or reasoning of any thing concerning the Parliament to be communed and treated of shall be void and null But neither any reparation was allowed to Strode nor any punishment inflicted upon those that sued him for ought appears upon Record And for the Houses joyned together which is the last capacity they can claim it in they are so far from having the supream Authority that as it is observed by a learned Gentleman they cannot so unite or conjoyn as to be an entire Court either of Sovereign or Ministerial jurisdiction no otherwise co-operating than by concurrence of Votes in their several Houses for preparing matters in order to an Act of Parliament Case of our Affairs p. 9. Which when they have done they are so far from having any legal Authority in the State as that in Law there is no stile nor form of their joynt Acts nor doth the Law so much as take notice of them until they have the Royal Assent So that considering that the two Houses alone do no way make an entire Body or Court and that there is no known stile nor form of any Law or Edict by the Votes of the two Houses only nor any notice taken of them by the Law it is apparent that there is no Sovereignty in their two Votes alone How far the practice of the Lords and Commons which remain'd at Westminster after so many of both Houses had repaired to the King c. may create Precedents unto Posterity I am not able to determine but sure I am they have no Precedent to shew from the former Ages But let us go a little further and suppose for granted that the Houses either joynt or separate be capable of the Sovereignty were it given unto them I would fain know whether they claim it from the King or the People only Not from the King for he confers upon them no further power than to debate and treat of his great Affairs to have access unto his person freedom of speech as long as they contain themselves within the bounds of Loyalty authority over their own Members Hakewell of passing Bills in Parliament which being customarily desired and of course obtained as it relates unto the Commons shews plainly that these vulgar priviledges are nothing more the rights of Parliament than the favours of Princes but yet such favours as impart not the least power of Sovereignty Nor doth the calling of a Parliament ex opere operato as you know who phrase it either denude the King of the poorest robe of all his Royalty or confer the same upon the Houses or on either of them whether the King intend so by his call or otherwise For Bodin whom Mr. Prynn hath honoured with the title of a grand Politician Prynn of Parliament par 2. p. 45. Bodin de Repub doth affirm expresly Principis majestatem nec Comitorum convocatione nec Senatus populique praesentia minui that the Majesty or Sovereignty of the King is not a jot diminished either by the calling of a Parliament or Conventus Ordinum or by the frequency and presence of his Lords and Commons Nay to say truth the Majesty of Sovereign Princes is never so transcendent and conspicuous as when they sit in Parliament with their States about them the King then standing in his highest Estate as was once said by Henry VIII who knew as well as any of the Kings of England how to keep up the Majesty of the Crown Imperial Nor can they claim it from the People who have none to give for nemo dat quod non habet as the saying is The King as hath been proved before doth hold his Royal Crown immediately from God himself not from the contract of the People He writes not populi clementia but Dei gratia not by the favour of the People but by the grace of God The consent and approbation of the People used and not used before the day of Coronation is reckoned only as a part of the solemn pomps which are then accustomably used The King is actually King to all intents and purposes in the Law whatever immediatly on the death of his Predecessor Nor ever was it otherwise objected in the Realm of England till Clark and Watson pleaded it at their Arraignment in the first year of King James Speeds History in K James Or grant
way of a Petition to the Kings most excellent Majesty in which the Lords and Commons do most humbly pray as their Rights and Liberties that no such things as they complained of might be done hereafter that his Majesty would vouchsafe to declare that the Awards doings and proceedings to the prejudice of his people in any of the premises shall not be drawn hereafter into consequence or example and that he would be pleased to declare his Royal pleasure that in the point aforesaid all his Offieers and Ministers should serve him according to the Laws and Statutes of this Realm To which although the King returned a fair general Answer assuring them that his Subjects should have no cause for the time to come to complain of any wrong or oppressions contrary to their just Rights and Liberties yet this gave little fatisfaction till he came in person and causing the Petition to be distinctly read by the Clerk of the Crown Ibid. returned his Answer in these words Soit droit fait come est desire that is to say let right be done as is desired Which being the very formal words by which the said Petition and every clause and Article therein contained became to be a Law and to have the force of an Act of Parliament and being there is nothing spoken of the concurrent Authority of the Lords and Commons for the enacting of the same may serve instead of many Arguments for the proof of this that the Legislative power as we phrase it now is wholly and solely in the King although restrained in the exercise and use thereof by constant custom Smith de Rep. Angl. unto the counsel and consent of the Lords and Commons Le Roy veult or the King will have it so is the imperative phrase by which the Propositions of the Lords and Commons are made Acts of Parliament And let the Lords and Commons agitate and propound what Laws they please for their ease and benefit as generally all Laws and Statutes are more for the ease and benefit of the Subject than the advantage of the King yet as well now as formerly in the times of the Roman Emperors Quod Principi placuerit legis habet vigorem nothing but that which the King pleaseth to allow of is to pass for Law the Laws not taking their coercive force as judicious Hooker well observeth from the quality of such as devise them but from the Power which giveth them the strength of Laws Pooker Ecclesiast Pol. I shut up this Discourse with this expression and comparison of a late Learned Gentleman viz That as in a Copyhold Estate the Copyholder of a meer Tenant at will comes by custom to gain an Inheritance and so to limit and restrain the will and power of the Lord that he cannot make any determination of the Copyholders Estate otherwise than according to the custom of the Mannour and yet doth not deprive the Lord of his Lordship in the Copyhold nor participate with him in it neither yet devest the Fee and Franktenement out of the Lord Case of our Affairs p. 6. but that they still remain in him and are ever parcel of his Demesn so in the restraining of the Kings Legislative power to the concurrence of the Peers and Commons though the custom of the Kingdom hath so fixed and setled the restraint as that the King cannot in that point use his Sovereign power without the concurrence of the Peers and Commons according to the custom of the Kingdom yet still the Sovereignty and with it the inseparable Legislative power doth reside solely in the King If any hereupon demand to what end serve Parliaments and what benefit can redound to the Subject by them I say in the Apostles words much every way Rom. 3.2 Many vexations oftentimes do befall the Subjects without the knowledg of the King and against his will to which his Ears are open in a time of Parliament The King at other times useth the Eyes and Ears of such as have place about him who may perhaps be guilty of the wrongs which are done the people but in a Parliament he seeth with his own Eyes and heareth with his own Ears and so is in a better way to redress the mischief than he could be otherwise Nor do the people by the opportunity of these Parliamentary meetings obtain upon their Prayers and Petitions a redress of grievances only but many times the King is overcome by their importunity to abate so much of his Power to grant such points and pass such Laws and Statutes for their ease and benefit as otherwise he would not yield to For certainly it is as true in making our approaches and Petitions to our Lord the King as in the pouring out of our Prayers and supplications to the Lord our God the more multitudinous and united the Petitioners are the more like to speed And therefore said Bodinus truly Principem plaeraque universis concedere quae singulis denegarentur Bodin de Rep. l. 1. c. 8. that Kings do many times grant those favours to the whole body of their people which would be absolutely denied or not so readily yielded to particular persons There are moreover many things of greater concernment besides the abrogating of old Laws and making new which having been formerly recommended by the Kings of England to the care and counsel of their people convened in Parliament are not now regularly dispatched but in such Conventions as are altering the Tenure of Lands confirming the Rights Titles and possessions of private men naturalizing Aliens legitimating Bastards adding sometimes the secular Authority to such points of Doctrine and Forms of Worship as the Clergy have agreed upon in their Convocations if it be required changing the publick weights and measures throughout the Kingdom defining of such doubtful cases as are not easily resolved in the Courts of Law raising of Subsidies and Taxes attainting such as either are too potent to be caught or too hard to be found and so not triable in the ordinary Courts of Justice restoring to their Bloud and Honours such or the Heirs of such as have been formerly attainted granting of free and general Pardons with divers others of this nature In all and each of these the Lords and Commons do co-operate to the publick good Sir Tho. Smith de Rep. Angl. Cambden in Brit. Crompt of Courts c. in the way of means and preparation but their co operation would be lost and fruitless did not the King by his Concomitant or subsequent grace produce their good intentions into perfect Acts and being Acts either of special Grace and Favour or else of ordinary Right and Justice no way derogatory to the Prerogative Royal are usually confirmed by the Royal assent without stop or hesitancy But then some other things there are of great importance and advantage to the Common-wealth in which the Houses usually do proceed even to final sentence the Commons in the way of
inquisition or Impeachment the Lords in that of Judicature and determination with the consent and approbation of the King though many times without his personal assent and presence The King may be abused in his Grants and Patents to the oppression of the people or the dilapidation and destruction of the Royal Patrimony Judges and other the great Officers of Law and Equity are subject to corruptions and may smell of gifts whereby the passages of Justices do become obstructed The Ministers of inferiour Courts as well Ecclesiastical as Civil either exhaust the miserable Subject by Extortions or else consume him by delays Erroneous judgments may be given through fear or favour to the undoing of a man and his whole posterity in which his Majesties Justices of either Bench can afford no remedy The great Ones of the State may become too insolent and the poor too miserable and many other ways there are by which the Fabrick of the State may be out of Order for the removing of which mischiefs the rectifying of which abuses the Lords and Commons in their several ways before remembred are of special use yet so that if the King's Grants do come in question or any of his Officers are called to a reckoning they used heretofore to signifie unto his Majesty what they found therein and he accordingly either revoked his Grants or displaced his Servants or by some other means gave way unto their contentment the Kings consent being always necessary and received as a part of the final sentence if they went so far So that we may conclude this point with these words of Bodin who being well acquainted with the Government of this State and Nation partly by way of Conference with Dr. Dale the Queens Ambassadour in France and partly in the way of observation when he was in England doth give this resolution of the point in Controversie Bodin de Repub l. 1. o. 8. Habere quidem Ordines Anglorum authoritatem quandam jura vero majestatis imperii summam in unius Principis arbitrio versari The States saith he of England have a kind of Authority but all the Rights of Sovereignty and command in chief are at the will and pleasure of the Prince alone And to say truth although the Lords and Commons met in Parliament are of great Authority especially as they have improved it in these later times yet were they never of such power but that the Kings have for the most part over-ruled them and made them pliant and conformable to their own desires and this not only by themselves but sometimes also by their Judges by their Council often For such was the great care and wisdom of our former Kings as not to venture single on that numerous Body of the two Houses of Parliament whereby the Sovereignty might be so easily over-matched but to take with them for Affistants as well the Lords of their Privy Council with whom they might advise in matters which concerned them in their Sovereign Rights as their learned Council as they call them consisting of the Judges and most eminent Lawyers from whom they might receive instruction as the case required and neither do nor suffer wrong in point of Law and by both these as well as by the power and awe of their personal presence have they not only regulated but restrained their Parliaments And this is easily demonstrable by continual practice 4 Ed. 1. For in the Statute of Bigamie made in the fourth year of King Edward I. it is said expresly That in the prefence of certain Reverend Fathers Bishops of England and others of the Kings Council the Constitutions under-written were recited and after published before the King his Council forasmuch as all the Kings Council as well Justices as others did agree that they should be put in writing and observed In the Articuli super Chartas when the Great Charter was confirmed at the request of the Prelates 28 Ed. 1. c. 2. Earls and Barons we find these two claufes the one in the beginning thus Nevertheless the King and his Council do not intend by reason of this Statute Ibid. c. 20. to diminish the Kings right c. The other in the clofe of all in these following words And notwithstanding all these things mentioned or any part of them both the King and his Council and all they which were present at the making of this Ordinance do will and intend that the Right and Prerogative of his Crown shall be saved in all things In the 27th of King Edward the 3d. The Commons presenting a Petition to the King 27 Ed. 3. which the Kings Council did mislike were content thereupon to mend and explain their Petition the Form of which Petition is in these words following To their most redoubted Sovereign Lord the King praying the Commons that whereas they have prayed him to be discharged of all manner of Articles of the Lyre c. which Petition seemeth to his Council to be prejudicial unto him and in disherison of his Crown if it were so generally granted his said Commons not willing not desiring to demand things of him which should fall in disherison of him or of his Crown perpetually as of Escheats c. but of Trespasses Misprifions Negligences and Ignorances c. In the 13th of the reign of King Richard the 2d when the Commons did pray that upon pain of forfeiture the Chancellor or Council of the King should not after the end of the Parliament make any Ordinance against the Common Law 13 Rich. 2. the King by the advice of his Council answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save his Regalities 4 Hen. 4. as his Predecessors have done In the 4th year of King Henry IV. when the Commons complained against Sub-poenae's and other Writs grounded upon false suggestions the King upon the same advice returned this Answer that he would give in charge to his Officers that they should abstain more than before time they had to send for his Subjects in that manner But yet saith he it is not our intention that our Officers shall so abstain that they may not send for our Subjects in matters and causes necessary as it hath been used in the time of our good Progenitors Finally not to bring forth more particulars in a case so clear it was the constant custom in all Parliaments till the Reign of King Henry V. that when any Bill had passed both Houses Henr. 5. and was presented to the King for his Royal Assent the King by the abvice of his Privy Council or his Council learned in the Laws or sometimes of both did use to cross out and obliterate as much or as little of it as he pleased to leave out what he liked not and confirmed the rest that only which the King confirmed being held for Law And though in the succeeding
the Body of Christ Nay their labour was blessed by God first for the Conversion and then for the Resormation of this Church and Kingdom and therefore I hope there is no sober Protestant in England but will heartily say Amen to that Prayer of Mr. Beza's who although no great Adorer of Episcopacy yet considerdering the Blessings that God brought to this Nation by their Ministry put up this devout Petition Si nunc Anglicanae Ecclesiae instauratae suorum Episcoporum Archiepiscoporum auctoritate suffultae perstant quemadmodum hoc illi nostra memoria contigit ut ejus ordininis homines non tantum insignes Dei martyres sed etiam praestantissimos pastores ac Doctores habuerit fruatur sane istâ singulari Dei beneficentia quae utinam sit illi perpetua Theod. Bez. ad Tract de min. Evang. Grad ab Hadr. Sarav cap. 18. Fruatur Anglia ista singulari Dei Beneficentiâ quae utinam sit illi perpetua Let England enjoy that singular Blessing of God which I pray to God may be perpetual to it There are others that envy them their Honours and Dignities For though the Holy Spirit of God does oblige all Christians to esteem their Bishops very highly or more than abundantly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in love for their work sake 1 Thes 5.12 13. and reason it self dictates that the honours confer'd upon Representatives and Embassadors redound to the Prince that delegates and imploys them though Jews Heathens and Mahomâ—tans ever paid the profoundest Veneration to their Priests Caliphs and Musti's and our Relig ous Ancestors in the Saxon Danish and Norman times set the highest value upon their Bishops yet the Religion of this Age is to load them with all possible Calumnies and Reproaches and with Corah and his Complices to charge them with taking too much upon them and to disdain to set them with the Dogs of their Flocks The Priests were Judges in Egypt and so were the Magi and Areopagites who were sacred persons in Persia and Athens and it was no other wise with the Druids amongst the Ancient Britains and Gauls For Caesar tells us how their Office extended to things Temporal as well as Religious Sacrificia publica privata procurant religiones interpretantur Druides a bello a besse consueverunt ni que tributa una cum reliquis pendunt St quod admissum est facinus si caedes facta si de haereditate de finibus controversia est iidem decernunt Caesar Com. lib. 6. that they did not only order publick and private Sacrifices and expound Religion and instruct Youth but were free from Contribution and Warfare and all burthens of State and determined all Controversies both publick and private and executed the place both of Priests and Judges for if any offence were committed as Murther or Man-slaughter or any Controversie arose touching Lands or Inheritance they sentenced it rewarding the Vertuous and punishing the Wicked The Patricii the noblest Romans were ambitious to be admitted into the College of the Priests and when the Government became Monarchical the Emperors took upon them the pontifical Dignity thinking it no diminution of them Grandeur to be imployed about the Service of the gods but rather conceiving the Priesthood too noble an imployment to be confer'd upon a Subject But we need no other Testimonies to convince us of the Rights of Church-men for the management of the civil concerns of human Society that the holy Scriptures Amongst the Jews the Civil and Ecclesiastical power were not so distinguished but one and the same person exercised both For not to expatiate upon particular instances Melchisedeck Eli Samuel Ezra Esdras were all Priests and had the power not only of Ecclesiastical but Civil jurisaictior Neither could Samuel have hewed Agag in pieces with his own hand 1 Sam. 15.33 if it had been unlawful for persons dedicated to the sacred Offices of Religion to havè intermeddled in causes of blood Which very instance proves that Clergy-men are not excluded from managing the highest secular concerns by any immutable Laws of God or Nature And if there are any Canons or Councils that forbid them to meddle in things of that kind that so they may the better attend upon the sacred Offices and Exercises of Religion let those be obligatory to the persons unto whom they were delivered but not be pleaded or produced to the prejudice of English Bishops who have distinct Priviledges and Laws For there have been Constitutions that have forbidden Church-men to Marry to make Wills to be Executors of mens Wills and Testaments to be the Wards of Orphans c. And these Constitutions are of as great force to bind the Clergy of England as the Council of Toledo to thrust the Bishops out of the House of Lords in Causes of Attainder and Blood Let the Archbishops of Ments and Colen with other Princes of the Empire look to it if it be unlawful for Ecclesiastical persons to adjudge Criminals to death It will be infinite to shew how St. Ambrose St. Augustin and the Godly Bishops of all Ages had no Supersedeas given them to intermeddle in things civil and secular because of their Wisdom and Knowledge in things Sacred and Divine Certainly the Holy Spirit of God did not conceive it unfit that Worldly matters and Controversies should be committed to Church-men for it is highly reasonable to think that those who are the Pastors of mens Souls will be the best Judges in determining their civil Rights It could not indeed be expected whilst the Empire was Heathen that Bishops should be busied and employed in Secular affairs unless it were in those Controversies which arose among the Christians themselves wherein St. Paul gives direction that they should rather determine their Contentions by a private Arbitrement of their own than by the publick judgments of their Enemies 1 Cor. 6. But when Kings became Christians Soz. lib. 1. c. 9. we find persons making their Appeals from the Tribunals of Princes to the Consistory of Bishops For then Bishops had power to reverse the sentence of death and to stay the hands of Executioners when the poor Criminals were going to receive the reward of their Iniquities just as the Praetors and Consuls of Rome would submit their Fasces those Ensigns of Authority when they did but casually meet with some of the Priests Constantine granted the Bishops this priviledge that condemned Malefactors might appeal unto their Courts and when such appeals were made the Bishops had power as well to deliver them over into the hands of Justice as to extend unto them a Pardon or Reprieve For the priviledge confer'd on them was as well for the punishment and terror of the Wicked as for mitigating the rigour of Justice and encouraging Criminals to Vertue and Repentance Mr. Selden himself who was none of the best Friends to Church-men grants that for four thousand years the Civil and Ecclesiastick jurisdiction went always hand in hand
together Ex hisce simul sanè ex primo secundo libro hoc satis puto constabit per Annos amplius M. M. M. M. tam sacrorum regimen qua forense esset atque à functione facrâ ritè distinctum quam profanorum five res spectes five personas juxta jus etiam divinum ex Ecclesiae Judaicae populorumque Dei anteriorum disciplinâ perpetuâ ad eosdem attinuisse judices seu Magistratus ejusdem Religionis atque ad synedria eadem neutiquam omnino ex juris istius instituto aliquo sacrorum prosanorum instar Ecclesiarum seu Spiritualium laicorum seu teorporalium Nominibus nullatenus discriminata Seld. de syn praefat libr. secundi And so it did till Pope Nicolas made the one independent upon the other So that their disunion is a Popish Innovation for till his time the Judges of Church and State ever sate together affairs Sacred and Religious were scan'd and determined in the morning and those that were Secular and Civil in the afternoon There was not till that time any clashing between Moses and Aaron no prohibitions out of one Court to stop or evacuate the proceedings of another and then it was that Justice run down like a stream and Righteousness like a mighty River If it be said that there are many corruptions among Church-men and especially in Ecclesiastical Courts The answer is That Callings must be distinguish'd from persons or else those two noble professions of Law and Physick will fall under the same condemnation with Divinity No man of any sobriety will condemn either of those professions because there are some Empericks in the World who kill mens Bodies and some Petifoggers that intangle and ruine their Estates And I hope Divines may have some grains of allowance granted them as well as the Inns of Court and Chancery and the College of Physicians if they cannot let that Calling which is most innocent cast the first stone It cannot be hoped that there will in this Age be a Revival of the primitive usage of these two Jurisdictions But yet this ought to be seriously regarded by all who have any belief of a Deity and regard for their native Country I mean that either our English Monarchs might be totally excused from their Coronation-Oath or not be put upon a necessity of violating thereof Their Oath in favour of the Clergy is that they will grant and keep the Laws Customs and Franchises granted to the Clergy by the glorious King St. Edward their Predecessor according to the Laws of God Rushw Hist Collect. part 1◠pag. 204. the true profession of the Gospel established in this Kingdom agreeable to the Prerogative of the Kings thereof and the Ancient customs of the Realm But how this Oath is observed when the Bishops are infringed in their ancient and indisputable priviledges let it be considered by all persons of sober mind and principles And let it be declared what order of men in the whole Nation the King can rely upon with so much safety and confidence as upon the Bishops and that not only upon the account of their Learning Wisdom Sanctity and Integrity qualifications not every day to be met withal in State-Politicians but upon the score of Gratitude and Interest For 't is from their Prince that they derive their Honours Dignities Titles Revenues Priviledges Power Jurisdictions with all other secular advantages and upon this account there is greater probability that they will be faithful to his Concerns and Interests than those who receive nothing from him but the common advantages of Government But this argument is known too well by our Anti-Episcopal Democraticks And perhaps 't is the chief if not the only reason of their enmity against an Order of men of so sacred and venerable an Institution As for this little Treatise the Author of it is too well known unto this Nation to invite any Scholar to peruse it It was written when the Bishops were Voted by the House of Lords not to be of the Committee in the Examination of the Earl of Strafford For then it was that Dr. Heylyn considered the case and put these few Sheets as a MSS. into the hands of several of the Bishops that they might be the better enabled to assert and vindicate their own Rights It was only intended for private use and therefore the Reader is not to expect so punctual an accuracy as he may find in other Treatises of this Learned Author It has been perused by some persons of good Eminency for judgment and station in the Church of England and by them approved and commended All that is wished by the Publisher is that it may produce the effects which he proposes to himself in exposing it to publick view and that those Lords who are now Prisoners in the Tower and from whose tryal some have laboured to exclude the Bishops were able to give unto the World as convincing Evidence of their Innocency as that great and generous States man did who fell a Sacrifice to a prevailing Faction and whose Innocent Blood was so far from being a lustration to the Court as some thought it would have proved as it drew after it such a deluge of Gore as for many preceding years had never been spilt in this Kingdom But 't is not my design or desire to revive any of the Injustice or Inhumanities of the last Age. Suffice it to say that it was for this Apostolical Government of Bishops that King Charles the First lost his Kingdoms his Crown his Life And the exclusion of Bishops from Voting in causes of blood was the prologue to all those Tragical mischiefs that happened to that Religion and Renowned Prince And those who have the least veneration for his present Majesty cannot certainly conceive him a King of such slender and weak abilities as to permit Himself and Family to be ruined by those very methods with which his Father was before him De jure Paritatis Episcoporum OR The Right of Peerage vindicated to the BISHOPS OF ENGLAND SINCE the restoring of the Bishops to their place and Vote in the House of Peers I find a difference to be raised between a Peer of the Realm and a Lord of the Parliament and then this Inference or Insinuation to be built upon it that though the Bishops are admitted to be Lords of Parliament yet they are not to be reckoned amongst the Peers of the Realm the contrary whereof I shall endeavour to make good in this following Essay and that not only from the Testimony of approved Writers but from unquestioned Records Book-Cases Acts of Parliament and such further Arguments as may be able to evince the point which we have in hand But first perhaps it may be said that there is no such difference in truth and verity betwixt a Lord of Parliament and a Peer of the Realm but that we may conclude the the Bishops to be Peers of the Realm if they be once admitted to