continue them great The contempt of the Bishops and Clergy the great cause of our evil State at present out of which we cannot recover but by an excellent Clergy and a high esteem of them with the people The Postscript ERRATA PAge 13. Line 18. read they p. 15. l. 15. r. Taxeotam Buleutam p. 19. l. 9. r. Blaesensis p. 23. l. 4. r. can p. 44. l. ult dele as p. 51. l. 22. to but add not l. ult to usage add other p. 57. l. 29. r. hucusque p. 130. dele in p. 165. l. 8. r. here p. 167. r. interpolatis p. 180. l. 3. dele them to r. send l. 29. to fit add to mention p. 206. l. 29. r. injurious p 240. l. ult dele near POSTSCRIPT P. 32. l. 1. r. he made his natural Sons first noble l. 7. r. Eufame p. 34. l. 1. r. is not subject p. 42. l. 25. r. decedents p. 45. l. 30. r. he p. 46. l. 8. r. more cruel p. 58. l. 18. r. futility p. 59. l 26. r. being What else is escaped the Reader is desired to correct by reason of the Authors absence from the Press The Argument CHAP. I. IN this question the Constitution of the Government is concerned and the Right of a most principal constituent part and that in a matter of the highest Trust which if truly a Right can be no more relinquished as the Nature of this Right is than a trust can be betrayed a duty and a Right denyed to be paid and performed or the Constitution of the Government changed For of such a Nature doth appear to be the Right in pretence and Controversy of the Lords the Bishops to have judgment in the House of Lords in Capital Causes For by their being made Barons they owed their judgments in such Causes as a service to the King at first by their Tenures in Baronage for though since they are become Barones Rescriptitii or Barons by Writ their duty is not abated And besides the Cognisance of such Causes become their own Right being a part of and belonging to the dignity and office of a Baron And it likewise became an appointment in the Government in which the whole Community have their Interest for that is principally provided for and procured in all Governments whose greatest concern it is to have Justice done against all Criminals and to have great and wise just and good men in the Administrations of Justice and other great offices of the Government The people of England did anciently understand the benefit of this Constitution when nothing but the Baronage of England the Lords Spiritual and Temporal could resist the Torrent of Arbitrary Government And it may be easily understood too that nothing but the Baronage of England is able to support the Throne For that Monarchy unless so supported is the weakest and most precarious and dependent Government in the World except it be supported with an Army and turned into a Tyranny That the Throne should be established by Natural and gentle provisions and the Government fixed is every mans greatest interest If the Lords Temporal have more under command and a larger Potestas jubendi yet the Lords Spiritual out-did them Authoritate suadendi and had more voluntary obedience The Lords Spiritual have several Advantages as they are Novi homines men chosen out of Thousands for an excellent Character and Spirit and need not want any accomplishments if duely chosen and preferred for the discharge of the greatest Provinces that are to be managed by wisdome and integrity and therefore they cannot be well wanted in any Ministries in the Government to which they are bespoken and have a legal designation Since this Authority by the very opening of the Cause doth appear probably belonging to the Bishops and if so that it cannot without breach of their duty that they owe to all the parts of the Government and the whole Community depart from it it may surely be insisted upon disputed and maintained by them without blame or imputation But so unhappily it falls out that the very disputing and contending of this Matter by reason of the unseasonableness of the dispute and the delays that were thereby given to the most important business of the Nation to the great hazard as some think of the summ of Affairs was very mischievous to the publick And now both parties are charging one another with all the mischiefs and the delays that this Controversy hath given to publick proceeding or can with any probability be thought to have occasioned And there are not men wanting on either side within doors and without that are forward enough to charge all those mischiefs as deserved by their oppoposite party which may eventually happen hereupon Who sees not how fatal this Controversy is like to prove to one or other of the Litigants and to the Government in consequence if this Cause cannot be duely heard and considered and be determined upon its own Merits without undue Censures and Reflections on either side Since at last the contenders themselves must be the Judges and give judgment in the Cause or it can never be quieted and have an end I am sure passion is no equal Judge and Arbiter and men angred and provoked have not the same sentiments of the same things as when calm and serene And because there is no common Judicature it ought to be considered by both parties with all equality of judgment and an exact pondering and weighing of the reasons offered on either side for that otherwise it can never be fairly decided but must for ever remain a Controversy to the immediate overthrow and destruction of the Government or over-ruled by the force and Power of a most dangerous consequence in the course of time to the Government and will be a laying of the Axe to the very root of the Tree and will put the Government it self into a State of War between the several constituent parts of it and given an occasion for one part to usurp upon another until the tone and frame of Goverment become changed and at last fall into ruine I am very well aware of the gravity of the Question and its importance the high honour and regard that is due to the House of Commons in Parliament what commendations are due to them in their persons for their zeal and endeavour by all means if it be possible to save the Nation Religion and Government And what a great Capacity that House in its very constitution in the first designation of the Government and by their mighty growth in power and interest in the Course of time have in procuring the publick good and that they cannot have any interest divided from the common Weal I must do them right and with the greatest clearness and satisfaction I determine with my self that their zeal for public Justice against unpardonable offences in their judgment and a prejudicate opinion they had conceived of the Spiritual Lords unindifferency how duely will appear by
Authority or weight enough to perswade the contrary or an alteration therein notwithstanding that complaint which he tells us was made in the 45 of E. 3. fol. by the two Houses Counts Barons and Commons to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per cet grant mischiefs dammages sont avenuz en temps passe pluis purroit eschire en temps avenir al disherison de la Coronne grant prejudice du Royalme Whereby great mischiefs and damages have happened in times past and more may fall out in time to come to the disherison of the Crown and great prejudice to the Realm And therefore they humbly pray the King that he would imploy Laymen This they had too much reason to desire then when the Pope had advanced his Authority over them and put them under Oaths of Canonical obedience which rendred them less fit to be intrusted in the Government of this Kingdom who were become Subjects of another Empire usurping continually upon us which will never be our Case again if the Bishops can help it CHAP. III. ANd now we proceed to the Precedents of which the Octavo Book principally consists which seem as that Author and the other in Folio would have it to be not only a discontinuance of the Right of the Bishops to judge in Capital Causes but an argumentative proof that they never had any because it can as they say be never proved to be otherwise Immemorial time I confess is a great evidence of the right whether In non user or user and a fair reason to allow or deny the pretence and therefore we will now consider the Precedents As for the argumentative and discoursive parts of those books they will fall in to be answered by way of Objection when we are discoursing and proving the affirmative part of the Question and will best be reproved by being placed near the light of our reasons for establishing the Right of the Prelates If we do not give some satisfaction to these Precedents whatever we shall say I know can signifie no more than an Argument to prove a thing not true which is possible de facto testified by unexceptionable witnesses for such the Precedents will be taken until exceptions are made to their Testimony The Precedents produced by the two Authors are mostly the same only the Octavo hath more than what the Folio Book hath recited The first case that the Octavo produceth against the Lords Spiritual their Right of being Judges in Parliament in Capital Causes is that of Roger Mortimer Earl of March Simon Beresford and others who were no Peers and yet tryed in Parliament and no Bishops present and we agree it probable for his reason because there is mention made of Counts Barons and Peers and Peers being named after Barons could not comprehend the Bishops And because we think it reasonable when the orders of that House are particularly enumerated that the order omitted should be intended absent but we will not allow but that Peers is and so is Grants comprehensive of Bishops Nor will we when the entry is General intend the Bishops absent except he cannot otherwise prove them absent which we mention in the entry once for all as just and common measures between us in this dispute It will appear true what we affirm of the words Peers and Grants by what follows And if we should not insist upon their being present when nothing appears to the contrary we should do wrong to the Cause But to come to the consideration of this Precedent Is this a just Precedent Is not Magna Charta hereby violated Are not the proceedings altogether illegal Here are Commoners tryed by Peers in Parliament It is well known that the high displeasure of the King was concerned and that he did interpose with a plenitude of Power in this particular case against the fundamental constitutions of the Government the greatest crime of this Earl was too much familiarity with the Kings Mother Indignation and Revenge and not Justice formed the Process It was proceeded to condemn him Judicio Zeli upon pretence of the Notoriety of the fact Sir Robert Cotton in his abridgment tells us Anno 4. Ed. 3. That the King charged the Peers who as Judges of the Land by the Kings assent adjudged that the said Roger as a Traytor should be drawn and hanged The Bishops were not present certainly they were none of the Judges that gave Judgment as the King pronounced without Cognisance of the Cause The King had more Honour for their Order than to call then to such Drudgery and service of the Crown The iniquity of the sentence appears by the reversal thereof in Parliament 25 Ed. 3. in which the Original Record is recited Sir Robert Cotton in his Abridgment tells us That this Earl being condemned of certain points whereof he deserved commendation and for other altogether untrue surmises there was a Bill brought into the Lords House for the reversal of the Judgment and it was reverst by Act of Parliament indeed it could not be otherways reverst for no Court can judicially reverse their own Judgment for Error in Law and Judgment in the Lords House being the dernier Resort cannot be repealed but undone it may be by themselves in their legislative Capacity Here saith the Octavo the Bishops were not present at the passing of that Bill but yet the Octavo Gentleman will not pretend that the Bishops are to be excluded in any Acts of Legislation Why therefore was he so willing to impose upon the people so falsely and unrighteously and to produce this as a Precedent against the Bishops Right of Session in matters of that Nature by himself recognized There is nothing can excuse him herein for he is certainly self-condemned of undue Art in thiâ— matter In 20 R. 2. the Case of Sir Thomas Haxey happen'd which the Octavo book page 20 produceth against us He was forsooth condemned in Parliament for that he had preferred a Bill in the House of Commons for regulating the outragious Expences of the Kings House particularly of Bishops and Ladies Haxey was for this tryed and condemned to death for it in Parliament And here appears to be no Bishops and there ought not to have been any for these reasons First that the Bishops were the parties wronged and therefore could not in any fitness give sentence But Secondly if that was not in the Case that that caus'd the process was Royall anger upon a great faction of State in which I believe the Bishops were not engaged made for deposing of Rich. the 2d that was understood by the King to be in acting and promoted by Sir Thomas Haxey by his Bill It was this made the sentence altogether abhorrent from legal justice in matter and form Here was a Tryall of a Commoner by Peers a matter made Treason that did participate nothing of the nature of Treason But the discreet Gentleman
established that those that were not Barones majores qui tenent de nobis in capite should be generally summoned It is observable that the Barones minores are so mentioned as if the name of Barons were not to belong to them Agreeable thereto is that we have mentioned in the style of our Parliaments of Milites liberè tenentes alii fideles and are all involved in this general Et universi de Baronagio Regni Angliae Several Instances of this are in Mr. Petyt aforementioned p. 111 112 113 114 115 116. besides that many Instances of the like Stile of Parliaments in those times are obvious That our Parliaments in those times were thus constituted is so clear that it cannot be dissembled But I do not deny but upon a change in the Succession to the Crown there might have been in this time extraordinary Conventions of the People to declare their Universal Assent for better assuring such Successor discountenancing the Rival Prince and preserving the Peace as in the Case of William the Second Henry the first King Stephen and King John which hath been usual in other Countreys in mighty Distresses of State such were in use amongst the Jews Josephus calls such an Assembly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Grotius in his Annot. p. 200. rells us Solitos fuisse Judaeos interdum in rebus ad summam Religionis aut Imperii spectantibus advocare ad Synedrium quotquot habere poterant tribuum primores aliisve honoribus praeditos ut quod constituerunt legis potius a populo probatae quam Senatus consulti haberet auctoritatem With the assent of such an Assembly as this at least King John should only if so have made this Kingdom Tributary to the Pope though I believe what he did in it he did without and against the Assent of that Parliament in which he could only therefore offer to do it He did no more effectivè than of Right he could which is nothing That which was done was without the Consent of his Bishops and Barons as appears by a Letter of his to the Pope in those words recited by Mr. Petyt in his mentioned Book Cum Comites Barones Angliae nobis devoti essent antequam Nos nostram Terram Domino vestro subjicere curassemus Extunc in Nos specialiter ob hoc sicut publicè dicunt violenter insurgunt And by another Letter of his to the Pope recited p. 163. Wherein he complains of the Bishops Disobedience on this Occasion which I the rather take notice of that the Cause of our Government might not be betrayed by depending upon such weak Inferences as those viz. that there was a House of Commons at that time which did not consent to the vassallating of the Kingdom by King John to the Pope For that otherwise it could have been validly done And that if our present House of Commons in the same Form as it is now constituted was not in Being ever after the Conquest it is not therefore an Essential part of our Government For if our Government must take its Fate upon such Issues as these I am sure we shall not long hold it The greatest Truths are betrayed by weak Proofs and the clearest Right sometimes lost by putting it upon an uncertain or improbable Issue This is certain that whatever thing of Government is introduced by the Consent of the Prince and that Alteration assented to and embraced avowed and owned by every man of the Community by Actions and other open Declarations of a full Consent and this continued for Centuries of Years and in all that time applauded and found agreable to the Interest of the Prince and People and the Old Government abolish'd and impracticable the very matter of its ceasing and it become a thing impossible as well as not desireable to restore it I say whatever Constitution is thus introduced and established is as unmoveable as unalterable or no Government is as if it had been ever so For there can be no Government in this World that is eternal how this Change came we shall speak to by and by But for the sake of Truth I must confess that I have no reason to believe that the Counties in all this time had their Representatives in Parliament by the formality of a Choice But this is a great mistake that the People cannot be represented but by such as are from time to time chosen by them when as every Government is the Representative of the People in what they are to be governed by it and by their Consent to it in the first erecting thereof they do trust their Governors with the Rule and Order of their Lives and Estates for the Common-weal For Government as well as Law is Republicae communis sponsio to use Bracton's Words I cannot easily tell which is more eligible for the assuring us of good Men in the Common Council of the Kingdom whether the Choice and Designation of a Person thereto by his Character and a General Rule or by the contingent Suffrages of the People But they are I am sure as much our Representatives who are appointed thereto by the Constitutions of the Government embraced and consented to by the People as those are whom the People nominate for that purpose I know no reason therefore why any should think that nothing is stable in our Government but what hath been ever so and in the same Form or that any man should be so affrighted with the Objection as if it made our Government shake which some slight Antiquaries for little Learning in Antiquity will serve for that purpose That our Parliament was not at all times such it is at this day It sufficeth to me that it was always materially the same When the Conqueror did innovate his Tenures in Capite and made all men of great Estates Barons and by their Tenures and Estates Members of Parliament we had then such Laws quas vulgus elegerit and then we had materially our three Estates though not so well sized and sorted as since I thought fit to say this for the preventing the World's being troubled with such Impertinent Labors and to divert those that thus employ themselves to undertakings more useful to the Publick and advantageous to themselves We had then I say many great Freeholders in every County that by their Tenures were Members of Parliament whereas now we have but two and though the People did not chuse them yet the men of that Order seem chosen once for all interpretatively by the People in their consent to the Government and they might be reasonably presumed to be faithful to the Commonweal from their own great Concernments therein In this Constitution scarce any man that was fit to be chosen but was without the Peoples choice a Member of Parliament as now they have more who are fit to be chosen than they can chuse So that the Barones minores were then instead of Knights of the Shire and the Barones majores Bishops and
of Colors and Pretences to change and alter our Government or hurt it in a Vital part and begin with the Bishops to take down our Government CHAP. XX. I Have farther this just Caution to add for the warding of some other undue prejudices in the Consideration of this question that our Government did not continue the same after and before the Conquest and that the Government upon the Conquest hath received since many beneficial Alterations That the Bishops Right must be considered in Analogy to those several Alterations and in consequence they ought not to be considered as Barons by Tenure when Tenure ceased to be the reason of Baronage The contrary whereof I find insisted upon and made the reason why Bishops must not be tried by Peers And the same reason will serve to eject them out of the House at the Kings pleasure because forsooth several Barons by Tenure have been omitted in Summons to Parliament and no Lay Baron now they say is summoned upon that score but for that he is a Baron by Writ or by Patent which makes a permanent Nobility in their Families But that which is now our Government in what it differs from what it was anciently as it is not less rightfully our Government because it was not ever such so it deserves our greatest zele to defend it because it is much better Governments are I am sure ours is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 form'd and fashioned and refined by long experience they are not perfected as soon as made they have their Infant state as well as Men. The elder and first times are the Childhood of Government and of the World Antiquitas seculi juventas mundi It is egregious folly in any man to attempt to reduce us back again to the rudeness of the first Ages and to all the inconveniences that have been discharged and filed off insensibly by Experience and Wisdom the daughters of Time in a long series of Ages We neither eat drink nor cloath our selves nor build after the manner of our Ancestours but according to our improved Inventions Vnde datae populis fruges glande relictâ Cesserat inventis Dodonia quercus Aristis Claud. de raptu Proserpinae It is time ill spent by some of the Antiquaries to go about to refix the present established Government by endeavouring to find out the Records wherein it appears to have been other of which we have some published and are threatned with more But they will have no other effect I hope than to provoke us to give God thanks for the wisdom of our Forefathers and that they have left us a Government much better than what they found more just and peaceable and better established for a lasting continuance Though they perversly design it as an Artifice to overturn the State and to evacuate our most refined and wisest Constitutions For that they can find something before then they would note them to want Authority and Justice We ought say they to have recourse to the primitive Laws of the State which have been abolished by unjust Customs and Usurpations This is a Game at which we are sure to lose all nothing will be found just in this Balance And by these means some base Factors for Slavery are contriving the ruine of our Liberty but this they will effect when they shall have persuaded us to suffer again all the incommodities and coursnesses of Life which our Ancestors suffered because they were no better instructed Frugibus inventis ad glandes velle reverti The great change that was made in the Baronage of England which we have observed was remedial and healthful It s Goodness doth appear by the thorough Cure it made of our Disorders for we have not since relaps'd into these Evils from which we recover'd by that Change It was Legal and with full Consent of the whole Community For it was introduced without Noise without Opposition or Dispute nay without Observation So that we hear not how it was done but only perceive the Change These are sure Signs that we arrived by this Change where our Government did at first design us and that we were agreable to this Alteration to its first Intentions That all Parties herein received their Satisfactions and found their Interest that no body was aggrieved at it neither did it raise Wonder in any man it was every man's Desire and easie Expectation which I believe are the true Reasons why this Change is not more remark'd in our Histories But pity it is that through the Injury of Time and what is reasonably suspected the Iniquity of Corrupt Ministers that we want our Records of that time which could not have fail'd telling us the whole Secret by what means the Inducements thereto the Methods whereby and the exact time when we made our Alterations in our Government materially and in its essential parts always the same Of this our Records if they had been preserved to us intire would have inform'd us but alas we have but a few Remains of them Apparent rari nantes in gurgite vasto And of those that have arrived us many are but References and Recitals in other Records not the Original Records themselves by which the Original Records escaped an utter Oblivion against the Will of our Civil Expurgatories But of such that remain the most laudable Use of them is to give Authority to the present State of our Government and we ought with good reason to interpret them in an agreableness to the present Establishment because the Change we suffer'd was easie and natural ex Hercule pedem to invert the Proverb For it is easier to know what Foot will fit Hercules than to fit an Hercules to a Foot given CHAP. XXI THough our Government hath always consisted of the same constituent parts yet they have been ill sized and proportioned and unduely placed not well joyned or united or so blended that neither could perform their Offices or proper Functions The Baronage of England was an over-grown part and did by its Excess and extravagant Bulk disorder the whole Oeconomy of our Government and became it self less useful The Honor of the Baronage was lessened to nothing by the Numbers thereof they did not find themselves so much obliged to support the Majesty of the King for the Preservation of their own Grandeur as our great Barons are in our present Constitution The People were in some sort represented by them as they were a great Body of the Chiefest Free-holders but they had a power to oppress them and they were not obliged by so strong a Tye and plain Duty to a care of the People because not chosen by them and by that Choice put under a more clear and strict Trust of taking care of their Rights In this Constitution neither King Lords nor Commons had their Ends and therefore would not have the old Constitution revived if it were possible When the Representatives of the People which make the House of Commons were joyned with
the Reformation to which the Bishops did not assent and would never have passed if they had had a Negative upon them But by his Favor these Instances of his are great Arguments of those Bishops their Sincerity For they must needs be under great and violent Prejudices Besides every great man as the Author of the Letter well knows is apt to value himself and cares not to be accounted a light man and the higher in place the more unwilling to be found in a Mistake and they are not content if Old Men Quae juvenes dedicere senes perdenda fateri There is good Hopes therefore that our Rightfully Reformed Bishops will be the last that will give up the Cause of Reformed Christianity and will not be out-done by the Popish Bishops in Constancy when they have a better Cause I must likewise take notice to do the Spiritual Lords Justice of the Behavior of the Gentleman in Folio towards the Bishops He takes notice and that dutifully of the Satyrical so he calls it Language of the Pamphleteers against the Court and the greatest Scurrilities with which the House of Commons are aspersed but has not heard sure of any against the Bishops and the whole Ecclesiastical Order For he makes not the least mention of any such But because they shall not escape besides that in his Book he declaims 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 against the Order and seems so fond of this Office that he forbids all other the use of the Cart he tells the Story of Hephestion and Craterus the one of which loved Alexander and the other the King By this Apologue I doubt not but he intended a Slander and to signifie thereby supprestly a lewd Reproach viz. that the Bishops are not true Servants of the King and Government but of themselves than which a falser thing I hope cannot be said nor a more malitious thing imagined if not true For he may know that they are better men in their true Character than his Loyal Patriots that are true to the King and House of Commons For they have I doubt not I am sure they ought to have a care of the whole Government in the Integrity of its Constitution The Bishops well know how much the People are concerned in the Greatness of the House of Lords which establisheth the Throne and makes and supports the King Great and by their Power and Interest make his Government equal to which they contribute no small Share for to them is entrusted by the Authothority of our Lord Christ the Conduct of Religion and that mighty and momentous Office hath commended them and advanced them to the State of Peerage and will continue them in great Authority with the People as long as the Nation continues in any degree Religious The Temporal Baronage cannot want them in the Support of that mighty Province that belongs to that House In them the People will find their Interest as long as they can value Wisdom and Religion that is as long as they are Christian Men and by them the Kingly Office will find it self served as long as true Religion and Wisdom can minister to the Support of Government and wise and good men under the greatest Trust and in the highest Dignity in the Government can be fit Councellors and Ministers of State The Octavo hath also a hint to this purpose for pag. 30. where he brings in the Case of Thomas Arundel Arch-bishop of Canterbury when all the Bishops made Sir Thomas Piercy their Procurator he says That uniting in one man argued a great Unanimity in the Voting of the Prelates which seems saith he hath ever been The meaning of this is a sly Disparagement of the Bishops in their Voting viz. that have one Common Tie and Dependency upon the Crown that determines them to their Interest and produces the Unanimity of Voting But are the Bishops more depending because they once for all received their Temporalities from the King than the Temporal Lords who are commoly Officers of State and otherwise depend upon their Prince's Favor Is not the Bishops Advancement rather a Reward to their Eminent Services performed in the matter of Religon of the greatest Importance certainly to the State and a Recognition of the excellent Character of those men that are preferred to that Office than a Bribe upon their Actings after they have that Favor irrevocable Do not we know that the Services of Church-men are rewardable upon the Churches Stock and that the King need not impair the Royal Treasure to pay Thanks to Episcopal Men whose Worth doth bespeak the Royal Favor to that Preferment and Advancement Are not the Temporalities of the Church the King 's only to give but not to retain What evil Prejudice or Obligation can this be to any man to serve the King unfaithfully who hath chosen him perhaps though there were others but as equally fit for that Office For we ought to suppose no other disposition of those Dignities than what is just and fit in our general Discourses however things are administred in particular Cases Is not this an Office together with its maintenance of the Provision of the Law and not of the King But to remove that Scandal of their Unanimity in voting which some have reproached with a scoffing Term of a dead Weight it may be considered that Men of the best Judgments and Honesty mostly agree That Variety of Judgments proceeds oftner from Passion and Interest than from Difficulty of the matter debated It mostly grows either from want of Integrity or want of Judgment Agreement in Votes is an Argument therefore of true Judgment and unbiassed Integrity As it is also farther of a good Correspondence amongst themselves of previous Debates and more mature Deliberation Besides that it is no unusual thing in difficult and lubricous Affairs for many to compromise the matters to a few or to the Majority of their own Numbers and abide the Result of the major part But because this matter of Exception to the Integrity of my Lords the Bishops in the great Affair now in Agitation is argumentum ad hominem and gives Prejudice to the true Right and Merits of the Cause and is the most prevalent and hopeful Argument if not the only one that our Adversaries can rely upon For whatever the Causa justifica or Pretence be for the espousing of any Opinion or part of any Controversie if the Causa suasoria the Inducement and true moving cause thereto be strong and persuasive the slightest Reasons will be a pretence for Confidence and the smallest Color of Right shall prevail finally and in the last Issue especially where the Parties concerned must judge or by their Power can make their Will and determinate Resolves to obtain to the biggest purposes I will therefore farther add that we well know what a high Esteem their true Character doth deserve That they are intended the Light of the World the Salt of the Earth If the Salt hath lost its Savor
the King for that office the best of those they know which are many times most unfit But this may be remedied when his Majesty shall please to give leave to the Clergy of the Diocess to choose their own Diocesan their Choice notwithstanding submitted to the Kings approbation and Confirmation which was permitted by Justinian the Emperor and was in use in several of the best Ages of the Church or by some other method which may be advised by his great Council whereby the greatest assurance may be given that the best and fittest persons be preferred to Bishopricks for the Common people are envious and suspicious and what ever may be done by bad means they always think is so But if Bishops were promoted to their Sees with the gratulations and applauses of the whole body of the Clergy of the respective Diocesses all that passeth under their advice and consent would likely meet with the general satisfactions of the people as it would well deserve as long as the Clergy can have any Authority with them That is as long as the Nation continues Christian But the general Corruption of Manners and decay of Piety is the great and truest cause why the Bishops unenvied enjoy no part of that honour that our Ancestors Wisdome and Piety conferred upon their order conformably to all other the Ancient Christian Governments But when Virtue and Piety shall recover their esteem the reverence of the Clergy will return We are not like long to expect this happy Change for Vice is now arrived to a Plethora and like to burst by its own excesses And we well hope that the mischiefs which we suffer will cure that evil from whence they spring and prevent the greater Calamities that it further threatens However it becomes all good men to assist to support the present Government which is the cheapest the surest and the next way to arrive at a happy constitution of things This was the design of the Author of the Grand Question After the publication of that Book I laid by all thoughts of publishing this Treatise But perceiving that notwithstanding what he hath said the Right yet remains controverted and a Book is since printed wherein several things are objected in prejudice of this Right and more is expected I did review these Papers wherein I found I had prevented those objections and with a little application they would appear insignificant I did resolve to make this publick And besides that I apprehended some things material to the Question were omitted by the Grand Question that a several way of speaking things to the same purpose hath its advantage Our great Courts affect to have several arguments on the same side in great Causes and our Reporters publish them Besides herein several things are occasionally discourst of which makes it of further usefulness to the publick Our adversaries also were treated too kindly by him and had deserved sharper reflections than he makes upon them for their false and perverse Reasonings and ought to lose that reputation which they abuse to the hurt of the Government And further I thought it not for the honour of our faculty that never fails to supply the worst cause with Advocates That a question of this Nature wherein both Church and State Religion and our Civil Policy is concerned and the Right thereof not only clear and evident in it self but also useful to the State should have not one of the Robe to plead for it The friends of the Cause will not grudge to read two Books for the Right as well as several against it and the Adversaries of our Cause ought to suffer the like trouble themselves which they occasion to others These Considerations did induce me to publish this Treatise I am well pleased that I am ingaged in a good Cause that was suited to one of my slender Abilities Right is so strong an Argument for it self that it wants only light to discover it Whereas an unrighteous cause stands in need of disguisings and shadowings and all the Artifices and fetches of the Wit of abler men to give that a Colour at least which is destitute of Law and Right THE CONTENTS CHAP. I. THe Nature of the Right the obligation to use it the obvious indications of it and the benefit which may be reasonably expected in the exercise of it How it came to be drawn into question and how it can be fairly determined how it hath been opposed and upon what Reasons and Evidence the Right doth rely Chap. II. The general prejudice against this Right from an Opinion conceived that the Clergy ought not to intermeddle in Secular Affairs remov'd That Bishops have been employed in the greatest trusts by Emperors not hindred by the Church but this hath been envy'd to them by the Pope Chap. III. The Precedents that are produc'd from the Parliament Rolls against this Right are considered They prove not pertinent at most but bare Neglects not Argumentative or concluding against the Right Chap. IV. This Right cannot be prejudic'd by non user The Nature of Prescription that the Right in question is not prescriptible The Original of this Right that it is incident to Baronage The Bishops when made Barons and for what reason That all Offices whether by Tenure or Creation are Indivisable Chap. V. Bishops never pretended the Assise of Clarendon when said to be absent Bishops sat in Judgment upon Becket and his Crime and Charge Treason by which it is demonstrated that the Assise of Clarendon only put them at liberty but not under restraint from using their Right of Judging in Capital Causes Chap. VI. Bishops sat in Judgment upon John Earl of Moreton after King John the Bishop of Coventry c. for Treason Chap. VII An Opinion prevail'd and continued long that no Judgment in Parliament where the Bishops were absent was good and their absence assigned for Error to reverse Judgment in Treason in Parliament prov'd by the Petition of the Commons 21 R. 2. upon their protestation made 11 R. 2. And by that protestation it is evident they had a Right and that they saved it by that protestation They pretended they could not attend the matters then treated of by reason of the Canon But alledged no Law for their absence Chap. VIII Of Canons Canon law What effect Canons can have upon a Civil Right The Canons prohibiting the use proves the Right Chap. IX Bishops made their Proxies in Capital Causes which proves their Right and their thereby being virtually present and the lawfulness of making Proxies and such as they made Chap. X. A Repeal of the Parliament 21 R. 2. No prejudice to what the Bishops did in making their Proxies The Opinion of Bishops presence being necessary in Parliament continued in time of H. 5. Chap. XI Bishops actually exercised this Authority in 28 H. 6. in the Case of William de la Pool Duke of Suffolk Opinion of the Judges that Bishops ought to make Proxies in the Tryal of a
Peer in Parliament Of what consideration decency can be Chap. XII Their Sitting in Judgment not so much against the reason of the Canon as their assent to Bills of Attainder which was never condemned And the Nature of an Act of Attainder Chap. XIII Over-ruling a Plea of pardon doth not condemn the Criminal and therefore they may judge of such Plea Though they are not to be present at the making of a Judgment of Condemnation Quousque perveniatur in Judicio further explain'd And that which follows upon another thing is not always caus'd by it XIV Bishops one of the three Estates of all the Realms of Christian Europe And how they came to be advanc't to that dignity and trust The convenience of their not being divided in a distinct house from Lay Peers They cannot be detruded from that dignity no more than the Government can be chang'd which no Law can do Six Bishops of the twelve Peers of France and their Aristocratical power That all Governments are lawful that are lawfully establish't Chap. XV. William the Conqueror agreeable to all the Princes of that time put Bishops under Tenure by Baronies and all Baronies at that time feudal with the reason of his Policy and the inconvenience it produced Of the Curia Regis which consisted of the Baronage in which the Capitalis Justitiarius Angliae did preside Of the administration of Justice in that time And that the Baronage of England upon special Writs of Summons became a Parliament An account how all our present Courts derived out of it Of the Court of the High Steward and of the Court of Chancery and the reasons of its rise and growth and how inconvenient it is And how we recovered out of the inconveniencies of that Constitution of Parliament by representatives in the time of H. 3. And that this it being allowed can give no countenance to those that are desirous to change our present and better Constitution That in all this Change the Bishops suffered no diminuion But when the ancient reason of Baronage failed they are after to be considered under the new reason of Baronage Chap. XVI The remembrance of the old reason of Baronage became a prejudice in the Judges upon which T. Furnival Plea allowed that he held not per Baroniam An Entail of Baronies with lands after allowed The reason of Nobility changed and no man now Noble by his Acres Many men Summoned to Parliament and yet not Noble No prejudice to the immovable Right of Bishops to have Summons to Parliament and that objection answered Kings may erect new successive Nobility in Clergy-men That Bishops are of a distinct sort of Nobility and under that and other reasons they are considered as a distinct State Chap. XVII Of the three States which make the Government under the King that he is none of them The Objections against this answered And the reasons of their being distinct and the several Offices and Expectances in the Government that make them so That the several Orders of Peers make but one Baronage and in that there is a great trust and honour greater belongs to Bishops than Lay Barons in our present constitution Their Character and qualifications commend them to the highest trust and render them fittest Judges Chap. XVIII The Reason of Tryals per Pares and that the Bishops are competent upon that reason in Parliament though not so fit to be of the High Stewards Court The Law of M. Charta not Lex scripta Bishops ought to be tryed by their Peers How that Right came to be discontinued and that in Parliament they ought still to be Tryed by their Peers Chap. XIX The unreasonableness of maintaining an Opinion upon a single Objection against a matter evidently proved that Questions of this nature should be considered with candor and not opposed with meer possibilities Chap. XX. Several alterations in the Government since the Conquest that the Alteration in what concerns the Baronage the Bishops Right is to be considered in analogy to the Change That changes of Government for the better cannot again be altered but our zeal is required to defend the Government made better and they deserve ill that go about to reduce us to our old mischiefs by their Antiquity Chap. XXI The advantage of the Change in the constitution of our Parliament in the change of granting Subsidies And how the Lords are bound by a Bill of Aids Chap. XXII The beneficial Change that hath been made by the clause praemunientes in the Bishops Writs of Summons to Parliament which gives Authority for the Convocation By this we are discharged of Provincial Councils and Canons of the Church kept distinct from Laws of the State The Church kept in peace from rending Questions and Religion is conducted not by Laws but by Canons not force but perswasion which commends our Episcopal Government Chap. XXIII The danger we avoided of having our Baronage of England ambulatory and fixing of it in Families and an indefectible Succession in which the Right of the Peer-age of Bishops is established Chap. XXIV The advantages the Adversaries seek to their cause by aspersing the Bishops Remembrance of all the faults in all times committed by any of the Order that many of those faults are principally due to the Papal Vsurpation and the neglect of Kings to defend the Rights of their own Bishops and are all the Vitia Temporum the times of Popery Chap. XXV How inculpably our Bishops have been in administration of their Ecclesiastical Authority how faithful in their Temporal Trust and Asserters of the Rights of the people They have not been irreverent to Kings nor have they encroached any power in Civil matters in ordine ad spiritualia That the power that they challenge is meerly spiritual and they challenge nothing of Divine Right but the exercise of their Ministry which they cannot lay aside Mr. Selden's Arguments for Erastianism answered The Church of England doth not tye her self always to think and enjoyn as she doth at present The moderation of the Church in opinions her apprehensions of Schism just and great They are not answerable for the ejectment of the Nonconformists nor for the scandalous Lives of their Clerks nor their Chancellors nor abuse of Excommunications Why matters of Incontinency are committed to their censures They have exercised the power of the Keys against the Infractors of M. Charta and how it hath been guarded with the denunciations of the Church we have reason to expect as much from our Bishops to support the Government of Laws Chap. XXVI We have as much reason that the Protestant Bishops should be as constant to the Reformed Religion as Popish Bishops obstinate for Popery An Apology for their Vnanimity in Voting Their dependance not so great upon the Crown as to oblige them to disserve their Prince The King bestows nothing upon them but what is the Churches the great expectation the Government hath of their fidelity and performances That which advanced them must
the Jurisdiction of Bishops Novel 83. he decrees the like for Clerks as well for matters Civil as for Ecclesiastical Crimes reserving others to his officers and furthermore in case the Bishops cannot or will not take cognisance of them he refers them to his Magistrates Nay the Emperours proceeded further and did give Jurisdiction to Bishops not only over Clerks but also over Laymen Constantine the Great whose Law the Canonists ascribe to Theodosius made a very favourable constitution in behalf of Bishops whereupon he gives them the Cognisance of all civil Causes betwixt Lay-men upon the bare demand of one of the Parties albeit the other did not consent unto it in such sort as the Magistrates are bound to desist from the Cognisance of it as soon as one of the parties shall require to be dismist and sent thither whether it be at the beginning or middle or end of the suit Arcadius and Honorius derogating from this Law will have it to be by the joint consent of both parties and that by way of Arbitrement The same Emperours together with Theodosius do ordain That there shall be no appeal from the Episcopal Judgment and that their sentence shall be put in execution by the Serjeants and Officers of the Judges The two last Justinian would have to be observed for as for that of Constantine he did not insert it in his Books which Gratian hath confest in his decrees and whereas in the Code of Theodosius the inscription of the Title runs thus De Episcopali Judicio Justinian instead of it hath put De Episcopali audientia to shew that it is not properly any Jurisdiction that is bestowed upon them but a friendly and arbitrary composition to abridge process After this the Emperor Charles the Great in his Capitulary renewed the Law of Constantine and gave the same jurisdiction therein contained unto all the Bishops repeating the same Law word for word which the Popes have not forgot in their Decrees where they have inserted the Constitution of Constantine under the name of Theodosius just as Justinian did in his Books the Responses and Commentaries of Lawyers to give them the strength of a Law But I know there is a Question made by very Learned men Whether that Law of Constantine is not supposititious But whether it be or be not we have alledged enough without it to prove that Christian Emperors and the ancient Christian Church was not of the opinion of this Author and that his Citations so much as they are true are nothing to his purpose The cause or reason of those two Laws expressed in the Laws are For that the authority of Sacred Religion invents and finds out many means of allaying Suits which the Tyes and Forms of captious Pleadings will not admit of That the judgments of Bishops are true and uncorrupted That this is the choaking of those malicious seeds of Suits To the intent that poor men intangled in the long and lasting snares of tedious Actions may see how to put a speedy end to those unjust demands which were proposed to them But the Pope his Decretals the Court of Rome and other Ecclesiastical Courts are of old complained of as the source of Iniquity and injustice and of all the shufflings and tricks that ever could be invented in matter of pleading and that all Papal Christendome hath groaned miserably under them and I wish that we may never hear duly of any such complaints of our Ecclesiastical Courts It is worth observing how the Church and Common-wealth did Actions contrary to each other in pursuance of their several interests The Common-wealth endeavour'd to engage Bishops in the highest secular affairs and in their supream Judicatures and so the people would have it not doubting of such administrations as they might fairly expect from the Bishops ability Authority and Religion But on the other side the Church did as much decline them as she could and so far as she might she used her Restraint only in prohibiting them from medling for their own private gain in Temporal affairs Can. 14. Arles clericus turpis lucri gratia aliquid genus negotii non admittat but they did not take from them all opportunities both of doing good to their people and securing the Secular power of which they became part to their own assistance and without refusing their services to the Prince when required from which practice of the Church the Pope took advantage to put his peremptory restraints upon the Bishops and Clergy from intermedling in Secular affairs to make them the more submitted and dependent upon himself the better to arrive to his Ecclesiastical Monarchy The Dignities and favours that Bishops received at the Courts of Princes was the envy of the Pope and matter of quarrel against them and Petrus Blissensis upon such an occasion makes an Apologie to Pope Alexander the Third in an Epistle writ in the Name of the Arch-Bishop of Canterbury in defence of the Bishops of Ely Worcester and Norwich who attended then at Court upon the service of the King which because he hath been an Author produced by the other side in this Cause and because what he says for their being admitted into the Councels of Princes contains so many advantages to the Church and State I shall here transcribe Non est novum quod Regum Conciliis intersint Episcopi sicut enim honestate sapientia caeteros antecedunt sic expeditiores efficaciores in Reipub. administratione censentur quia sicut scriptum est minus salubriter disponitur regnum quod non regitur consilio Sapientum in quo notatur eos consiliis regum debere assistere qui sciant velint possint patientibus compati terrae ac populi saluti prospicere erudire adjustitiam Reges imminentibus occursare periculis vitaeque maturioris exemplis informare subditos quadam Authoritate potestativa praesumptionem malignantium cohibere He proceeds in his discourse and brings the examples of Samuel Isaiah Elisha Jehojada Zachary who were Priests and Prophets respectively and yet imployed in Princes Courts and Councels of Kings and adds Vnum noveritis quia nisi familiares Consiliarii Regis essent Episcopi supra dorsum Ecclesiae hodie fabricarent peccatores immaniter intolerabiliter opprimeret Clerum praesumptio laicalis then he adds advantages to Religion and policy hereby Istis mediantibus mansuescit circa simplices judicarius rigor admittitur clamor pauperum Ecclesiarum Dignitas erigitu relevatur pauperum indigentia firmatur in Clero libertas pax in populis justitia libere exercetur superbia opprimitur augetur laicorum devotio religio fovetur diriguntur judicia It is well known and I will not be so impertinent as to go about to prove that the chief Ministers of Religion have been the greatest men in Civil Government in all Nations and in all Religions as well as in ours and as certain it is this Author will never find reason or precedent of
to whom such Judgment doth of Right appertain did give their Judgment He concludes that the Bishops could not he said to be his Peers which shews they were not there But he must give us leave with much better Logick to conclude that they were present and We with reason presume because they are Peers of Parliament for so the Record is not his Peers for he fallaciously changeth the Terms they were there except he can prove them absent if common Right is not Reason of presumption no presumption can be reasonable But we can prove to him they were there And thereby in consequence we have another proof that they are Peers Sir Robert Cottons Abridgment tells us 5 H. 4. Fol. 426. that at the same time the arch-Arch-Bishops and Bishops at their own request and therefore certainly then present were purged from suspicion of Treason by the said Earl And at the same time I pray observe Sir Henry Piercy his levying of War was adjudged Treason by the King and Lords in full Parliament Note that here is said to be a full Parliament and yet nothing in the Entry but the stile of Lords So various and contingent in respect of form are the Entries which ought to be observed But to review and consider again the Case of John Hall condemned in Parliament for Treason for murdering the Duke of Glocester And to this place I have reserved the Case of the two Merchants that killed John Imperial an Ambassadour of Genoua for both Cases are of the same nature and must receive the same answer and that is this The Statute of the 25 E. 3. was made to declare certain matters Treason and to be so judged in ordinary Judicatures but withall that Statute did provide that if any other Case supposed Treason do happen it shall be shewed to the King and Parliament whether it ought to be judged Treason Concerning which the King and Parliament do and are to declare by their Legislative power as it is agreed by all and as they did in the Case of John Imperial as appears by that Record expresly So that though the Bishops were not present at the Judgment of John Hall they might have been it must be confessed by our Adversary if the Judgment against John Hall was by the Legislative Power as it must be By this it appears how false an Argument this of his is To conclude no Right from absence for it is plain here it proves too much it proves a thing notoriously false a thing false by the confession of our Adversary and from what any falshood may be inferred is not it self true but stands reproved by the falshood and absurdity of what follows in consequence thereof But this is too Solemn Reproof of so frivolous an Argument for it is no more in effect than this That no man can have an Authority but what he is always in the exercise of The Octavo goes on and remembers that in the 2 H. 4. the first Writ de Haeretico comburendo was framed by the Lords Temporal only and without question it was so For the order of proceedings in Case of Hereticks Convict so required it The Bishops are upon the Matter the pars laesa in Heresy The authority of the Church is therein offended and it was not therefore proper for an Ecclesiastick to be an Actor therein The Author doth improve this as he doth all things that he can with any manner of colour to render the Order of Bishops hated and disesteemed which is the publick establishment the legal provision for the Government and guidance of Religion What mischief then is he a doing How great is his fault to deprave that provision to destroy their Reputation and Esteem with the people to destroy all their authority as much as in him lyeth His utmost endeavours are not thereto wanting to make their Ministries useless and to frustrate the provisions of the Law and the care of the Government in the highest concernment of the Nation Doth this become a great man I will not say a good man God rebuke him To lessen the Authority and disrepute and dishonour any Order of men or any Constitution that can be any ways useful to the publick is a great fault but this of his is a most enormous offence But what can be inferred from hence against the Order of the Bishops may be with like unworthiness inferred against the Christian Religion it self For it may be as well concluded that the Christian Religion is a bad Religion for that men of that denomination in the general Apostasie by pretence of Warranty from that Religion though it gave none murdered innocents As that the practices of the Bishops of that Religion so depraved do reflect any dishonour against the Bishops of reformed Christianity And this Answer will suffice too for the Case of Sir John Old-Castle As for the Earls of Kent Huntingdon and Salisbury the Lord le Despencer and Sir Ralph Lumley before that executed and declared Traytors in Parliament by the Lords Temporal only in the Parliament of the 2 H. 4. and the Earl of Northumberland and Lord Bardolph against whom it was proceeded in a Court of Chivalry after their death who were declared Traytors after they were dead in the Parliament in the 7 H. 4. I hope the Octavo Gentleman and all that are at present of his Opinion will take this for a sufficient Answer if we had no more to say that it was irregular very irregular indeed to condemn men after they were dead when he himself would set aside the Authority of the Case of William de la Poole in 28 H. 6. in Parliament where the Bishops were present which though he saith is the sole single precedent of Bishops acting in Capital Causes We shall therein convict him to be a man of Will to have lost himself in his passions and his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And enter that Case with a cloud of other testimonies and reasons that affirm I will not stick to say demonstrate so as such matters can be demonstrated with a moral demonstration such as shall leave no doubt with any man of the Bishops Right of judging in Capital causes in Parliament But We shall further add for Answer that the Temporal Lords did not herein exercise the Office of a Judge For it could be no Judgment they delivered It was only an officious declaration an avowing of the justness of the slaughter of these great men and to enter themselves of the other side But is it as reasonable for this Writer to fore-judge the Bishops of their Franchise and to have it seized because they would not be guilty of a misuser thereof and would not consent to so insolent a thing as to judge men unheard nay when dead and they could not be heard And to kill over again the murdered Lords for so they are in consideration of the Law who are not by legal process condemned and executed I cannot but observe in many of
the great convulsions of State and the simultates amongst the Great men and extravagant excesses of injustice to the glory and honour of the Bishops it must ever be remembred that they did preserve themselves from being ingaged in such violences as were committed against the last mentioned Lords But that the Author of the Octavo should produce the Case of Sir John Mortimer against us who was condemned upon a bare Indictment without Arraignment or due Tryal a good reason why the Bishops were not there when he immediately after produceth the Case of the Duke of Suffolk wherein the Bishops were present and will have it stand for nothing because in that it was irregularly proceeded is monstrous partiality and iniquity But in what I pray was the irregularity in the Case of the Duke of Suffolk Why because the Commons desired he might be committed upon a general Accusation But he was not And the second irregularity was that some Prelates and some Lords should be sent down to the House of Commons which is often done But it is not the Prelates that he is thus concerned for but that the Lords lessened their Estate This to excuse him might make him very angry with that Case and quarrelsome And yet after all there is a fallacy in the Case of Sir John Mortimer which he would put upon us for Sir John Mortimer was condemned by Act of Parliament and therefore the Bishops might have been there if they had pleased and that with his leave For it was by the Duke of Glocester who in the Kings absence was commissionated to call and hold that Parliament by the Advice of the Lords Temporal at the prayer of the whole Commonalty in this present Parliament and by the Authority thereof ordered and decreed that he should be led to the Tower and from thence drawn to Tyburn I cannot therefore but observe how by the pretence of the Canon a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes and by other prudent Arts and Recesses from tumultuations the Bishops kept themselves often from being engaged in the Animosities of Great men against one another A matter remarkable for the commendation of their Exemplary Wisdom and Justice and a Recommendation of the men of that Order to be continued in the greatest trusts that the Government hath committed to them But now shortly and summarily to review what we have offered in the matter of Precedents and together to consider what true value and weight they are of in the Cases of Roger Mortimer and Haxey and of Sir John Mortimer 2 H. 6. every body may see a reason why the Bishops should not act if they had Authority and therefore without wilfulness it cannot be concluded they had none Who sees not that these Cases are Precedents for us for that the Bishops judged in the Reversal of the sentence against Haxey which if they had reason for it they ought to have affirmed And the Bishops might have been present rightfully at the undoing the Attainder of Roger Mortimer by the Confessions of these Authors The Proceedings in the Parliament of 15 E. 3. is a true argument of the Bishops modesty But it proves more than he is willing to prove if true viz. that the Bishops cannot joyn in making Laws to punish publick Crimes and therefore logically concludes nothing besides that the matter is false in fact as it is alledged The Cases of Sir William Thorpe and Sir Ralph Ferrers taken at best for him are but militant and have as much to say for as against the Bishops being there present But to be true to the cause of the Bishops We have this advantage against him that the Bishops were always in the possession of their Right because never fore-judged and it was once theirs as we shall prove by and by And this makes a presumption that they always used it when there is nothing to the contrary The Bishops were not present in the Bishop of Norwich's Case but the Bishops may be at any time absent upon a sontica Causa The defendant was a Bishop which was a very allowable one in those times But this must be considered with the Case of Thomas Arundel Bishop of Canterbury in whose judgment they were present virtually by their Proxy and therefore had a Right to be there The Case of John de Gomets and William de Weston is unduely and against the faith of the Record produced against us for upon the truth of the Record the Bishops were present notwithstanding any thing that can be from thence deduced to the contrary The Case of Sir William Rikehil 1 H. 4. is for us so is the Case of the Earl of Northumberland 5 H. 4. The Case of John Hall who murdered the Duke of Glocester and of the two Merchants that killed John Imperial the Genoua Ambassadour 3 R. 2. are foreign to this question and so is the Case of Sir John Mortimer except Judicial Authority and Legislative Authority in Blood are of the same consideration as I think they are and shall hereafter make out to be probable and then those Cases are for our Right They confess that the Bishops might have been present if they pleased and their absence at the passing of those Bills doth not conclude against their Right themselves being Judges The Writ de haeretico comburendo is of another consideration and doth not fall in with the present question There was no Judgment given or to be given in the Cases of the Earl of Huntingdon Kent Salisbury Lord Le Despencer Sir Ralph Lumley the Earl of Northumberland and Lord Bardolph All these Precedents such as they are happened in no long Tract of time but very tumultuous Not one of them pretends to be an exclusion of the Bishops upon Judgment or positive declaration of State They pretend to be only instances of Omission or non user which may well consist with a Right And yet contrary to the true import of these Precedents and the true Nature of them being only of Omission and absence of the Prelates which as they are can make no induction or establish any proposition whereupon to frame an Argument or conclude a prescription Besides that a prescription is not possible in a meer negative and to and of nothing And where no body can use or possess that Authority in pretence in the defailance of the party to use it whose Right it was Besides that it is not a prescriptible matter which we shall further explain hereafter it being in a matter of the Government and a Right arising from its constitution Contrary I say to the whole nature of the matter He makes this Argument à saepe facto ad jus valet argumentum His Argument should have been if agreeable at all to the matter this That where a Right is sometimes not used there can be no Right But if this had been said in English every body would have condemned his reasoning and disallowed if not laughed at the Argument So that we have
not pass the Limits of our own Arguments otherwise we had much to say against the Authority of that Sory as it is by the Octavo mentioned But to this day neither in Record or History have we heard of any the least pretence of any special abatement made of any service due by the Tenures by Barony to any Bishops or other Spiritual Baron by the Conquerour at the time of the creating those Tenures neither did the Bishops when they would fain have been excused from judging in Blood ever pretend to it or make any such excuse that their Tenures did not oblige them thereto They have ever been esteemed to have power of Judgment in Capital Causes in Parliament and in a long tract of time it hath been several ways used and acknowledged Their Right is so far from being fore-judged that it never till of late was brought in question They have pretended sometimes that they ought not to use that Right in observation of the Canon Law and have made their protestation according whether of necessity or choice shall be considered They were upon the score of the Canon Law indulged in the Satute of Clarendon from being present and assisting in giving the Judgment of Death and mutilation of Limb yet their Right was not by that Statute destroyed or hurt it put them only at liberty to use it or not but put no obligation or legal restraint upon them not to use it That Law was in favour of their Liberty not a Restraint upon their Right The words of that Law that concern this question we shall here set down Archiepiscopi Episcopi universae personae Regni qui de Rege tenent in capite habeant possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis ministris Regis sequantur faciant omnes consuetudines regias sicut caeteri Barones debent interesse judiciis Curiae quousque perveniatur ad diminutionem membrorum vel ad mortem Whether these words are words of Liberty or Restraint of prohibition or indulgence and favour as also how far this favour Liberty or Indulgence did extend will appear clearly by the occasion of the Law and the History of those times for whose sake it was made and upon what inducements and how far they did use their Liberty afterwards It is notorious that the design and endeavour of some Bishops of that age and before from the days of Gregory the seventh was to establish an Ecclesiastical Monarchy in the Pope to make themselves the Grandees of another Kingdom they endeavoured to exempt themselves from all Civil subjection as also from being any part of the Civil Government over which their Church Empire was to rule and domineer They looked upon their Baronies to be marks of Slavery and inconsistent with their designed Church-empire by which they were kept in subjection to the Government and made a part of it which was designed by the Conquerour but most sharply complained of as may be seen in Mat. Paris Rex Willielmus pessimo usus consilio Episcopatus sub servitute statuit militari rotulas hujus Ecclesiasticae servitutis ponens in Thesauris multos viros Ecclesiasticos huic constitutioni pessimae reluctantes à Regno fugavit If the Bishops then had been ambitious and desirous that they might be as the rest of the Barons were Judges in the Kings Court then it is true that the word quousque must be a word of Exclusion and that their pretence of judging was fore-closed to all matters under the quousque For if I ask a thing which is not my right that which is not granted is denyed and by such denyall in case of a Law declared the more unlawful But this cannot possibly be for they were already Barons and Judges as other Barons This they reckon'd a servitude and was matter of grievance and complaint But the Assise of Clarendon did proceed from the King for the asserting his Soveraign Power to resist the design of the Papal Monarchy and to oblige the Bishops to continue part of the Government and to tye them to the duty of their Tenures Gervasius tells us Col. 1386. that the Bishops did not know what the Consuetudines Ecclesiasticae in the Assise of Clarendon were but they imagined them to be evil because the King did so much insist upon them Nesciebant saith he speaking of the Bishops hujusque quae essent illae consuetudines sed pravas esse suspicabantur eo quod tantâ instantiâ peterentur But the King commanded as followeth sapientiâ provectiores ite disquirite Avi mei consuetudines ut in scriptum redactae deducantur in medium publice recenseantur quas cum seorsum veteres actus pravitates so he calls the Statutes of Clarendon in scripta reduxissent haec tandem scripta modo Chirographi protulerunt which the Arch-Bishop was required to seal as the custom then was in passing of Laws It is likewise evident in the very Assise of Clarendon that the Bishops were then Barons and ought to do the office of a Baron and were by being Barons Judges and ought interesse sicut caeteri Barones Judiciis Curiae Domini Regis But how far they should by that Statute be bound hereafter this Law was to determine In consequence the Quousque is but a Clause of Liberty at most and the matter under it left to choice A priviledge indeed the Bishops might hereby obtain to judge or not to judge in Causes of blood which they used in all after-times as they pleased as they did more or less regard the Canons as either they did or were thought to intend No right was hereby fore-closed of judging but establisht for the words are debent interesse Quousque is a Clause of exception and leaves them in that matter at large and savours not at all of a prohibition But though the Bishops might have such a Liberty by the Letter of the Assise of Clarendon to judge or not to judge at all in capital Causes which doth not at all impair their Right but that notwithstanding they may use their rightful authority when they please Yet the Bishops did not intend themselves further priviledged by this Law than that they should not be obliged to be present at the pronouncing of the sentence which appears by the Canons that have been made about this matter in England which we shall mention hereafter which would have been most peremptory in their prohibitions and very severe in their denouncing Curses in a matter of this nature as far as they had the Laws on their side As also by the Practice of the Bishops in those times which appears by Peter Blesensis whose words are Principes sacerdotum seniores populi by which he means the Bishops who from the dignity and worthiness of their Order are called Seniores a note of dignity in all Countries in all Ages which I observe because some are so ignorant as not to know it and think the
Laity is meant by seniores populi but if the Lay Barons had been guilty of that which he there complains of as well as the Bishops he would instead of this complaint declaim'd against the folly and madness of the Age for want of justice Licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis seque ideo immunes à culpà reputant quod mortis aut truncationis membrorum judicium decernentes à pronuntiatione duntaxat executione poenalis sententiae se absentent And it is most observable that the Bishops did never excuse themselves from Session in Criminal Causes by virtue of the Assise of Clarendon but from the inhibition of the Canon and the use of the Liberty will best declare the Nature of it CHAP. V. IT 's most remarkable for the understanding aright the true meaning of this Law that the Bishops were admitted Judges in Parliament without exception of the Temporal Lords in the Case of Thomas Becket accused of Treason though the King and Temporal Barons had reason to believe that the Bishops would not do right to the Crown against that unruly and rebellious Prelate and when the Bishops themselves would have been glad of that pretence to have withdrawn themselves And this was about eight Months after the making the Statutes of Clarendon And in a short time after the swearing the observance of them by all the Grants of the Kingdom But the Law was then so well understood however the Letter of the Statute makes matter of dispute now that it was by no body in the least pretended that it was to be understood to such a sence as it is now drawn to viz. to exclude the Bishops the Spiritual Barons from judging in capital Causes in Parliament In those times they had only such an understanding as we have here before offer'd We shall therefore now proceed to give you an account how in the course of time the Right of the Prelates hath been used and recognized We will begin with the Case of Becket Arch-Bishop of Canterbury at a Parliament held in October in the 11 H. 2. Anno Domini 1165 at the Castle of Northampton To this Parliament Arch-Bishop Becket was cited as a Criminal and had not his Summons as Arch-Bishop so that that Parliament seem'd to be conven'd for doing him Justice the offence must therefore be very great so Stephanides tells us as he is cited by Mr. Selden 707. Though he was wont of custome to have the first Summons by the Kings Writ Nec tunc enim saith he nec diu ante ei scribere voluerat qui eum salutare nolebat Nec aliam per literas sibi directas solennem ac primam ut antiquis moris erat habuerat Archiepiscopus ad Concilium citationem Becket was there accused of Treason laesae majestatis coronae saith Fitz-Stephen a Monk of Canterbury that attended Thomas Becket the Arch-Bishop in his troubles Bishop Godwin in his Book de Praesulibus tells us that Arch-Bishop Becket Omnia sibi cernens infesta Naviculâ apud Rumenegam conscensâ in Galliam profugere conatus ventis adversantibus in littus repertus ac deprehensus ad Regem Conventus Northamptoniae agentem adductus est Ibi repentundarum peculiatûs perjurii proditionis falsi nescio quot aliorum Criminum cum à caeteris proceribus tum Episcopis ipsis suffraganeis reus factus This Court is called a Parliament by Mr. Selden and magnum Concilium by Roger of Hoveden and by others as Mr. Selden saith But that it was a Parliament and not the Curia Regis which we shall speak about hereafter doth appear by this certain diagnostick viz. that the Bishops were Summoned hereto by personal Writ of Summons to them directed immediately at that time which appears by what is before cited out of Fitz-Stephen and what is after taken out of Gervasius But to the Curia Regis they were Summoned by the Sheriff by a general Writ to him for that purpose directed which is a distinctive Note and Character of a Parliament as will hereafter appear But Fitz-Stephen saith as Mr. Selden quotes him Titles of honour Fol. 705. that secunda die consulentibus Episcopis Baronibus Angliae omnibus Nay he is so exact in his observation that he tells us who was not there of the Bishops viz. Roffensis Episcopus quidam alias nondum venenat Hoveden tells us how Becket had before behaved himself towards the King that notwithstanding great endeavours used on the Kings part to reconcile Becket to himself He would not be reconciled to the King Post multum tempus saith Hoveden Ernulphus Lexoviensis Episcopus venit in Angliam sollicite laboravit die ac nocte ut pax fieret inter Regem Archiepiscopum sed ad plenum fieri non potuit Deinde per consilium Lexoviensis Episcopi Rex separavit Rogerum Archiepiscopum Eboracensem Robertum de Welun Episcopum Herefordiensem Robertum Lincolniensem Episcopum alios quosdam Ecclesiae Praelatos à Consortio Consilio Cantuariensis Archiepiscopi ut per illos praefatum Cantuariensem Archiepiscopum in suos Conatus facilius alliceret Deinde venit in Angliam quidam vir Religiosus dictus Philippus de Eleemosyna missus à latere Alexandri Summi Pontificis Cardinalium omnium ad pacem faciendam inter Regem Archiepiscopum Cantuariensem Per quem summus Pontifex omnes Cardinales mandaverunt Cantuariensi Episcopo ut ipse pacem cum domino suo Rege Angliae faceret Leges suas sine aliquâ exceptione custodiendas promitteret his igitur aliis magnorum virorum Consiliis acquiescens Thomas Cantuariensis venit ad Regem apud Woodstock ibi promisit Regi concessit se bonâ fide sine malo ingenio leges suas servanturum Et paulo post congregato Clero populo Regni apud Clarendon poenituit Archiepiscopum quod ipse Concessionem illam fecerat Regi volens resilire à pacto dixit se in illa Concessione graviter peccasse quod in hoc amplius non peccaret Rex plurimum in irâ adversus eum commotus minatus est ei suis Exitum Mortem Venerunt ergo ad Archiepiscopum Salisburiensis Norwicensis Episcopi Robertus Leicestriae Reginaldus Cornubiae Comites lachrymantes provoluti ad pedes Archiepiscopi petebant ut saltem propter honorem Regis veniret ad eum coram populo diceret se Leges suas recepisse Precibus igitur tantorum virorum Archiepiscopus vectus venit ad Regem â—oram Clero populo dixit se Leges illas quas Rex avitas vocabat suscepisse concessit ut Episcopi Leges illas susciperent ut illas custodire promitterent Tunc praecepit Rex universis Comitibus Baronibus Regni ut irent foras recordarentur Legum Henrici Regis Avi sui eas in scripto
resolved what to do desired of the Earls of Leicester and Cornwall that he might have time untill the morrow And the morrow being Sunday time was given until the Munday and then the Bishops came to Becket and advised him for avoiding danger and scandal to submit himself to the Kings Will which if he should do jam audierint in Curiâ Regis perjurii Crimen sibi imponi tanquam proditorem judicandum eò quod terreno Domino honorem terrenum non servaret cum avitas consuetudines Regni observaturum firmasset ad quas specialiter observare jurisjurandi nova se illos astrixerat Religione And now sure it will be believed that Becket was accused in this Parliament of Treason for Treason was his Crime not allowing the King with the consent of his States to make any Laws but such as he should approve aggravated with perjury for he had sworn himself to observe them After Becket had given the Bishops an obstinate and resolute Answer to adhere to his Treasonable Practices to disallow the Authority of the King and States in the Laws called the Assise of Clarendon and to oppose the observance of them Observe what Gervasius saith discesserunt Episcopi ad Curiam properantes By and by Becket comes too but the Bishops were there before him carrying the Cross himself which the King as well as the Bishops took to be a coming armed Upon which saith Gervasius vocatis Episcopis proceribus gravem grandem Rex deponit querimoniam quod Archiepiscopus sic armatus in Curiam veniens ipsum suos omnes inauditâ saeculis formâ naevo notaverit proditoris Whereupon the Bishops by the Mouth of Hilaris Cicestrensis a Bishop more eloquent than the rest thus said to Becket Quandoque ait fuisti Archiepiscopus tenebamur tibi obedire sed quia Domino Regi fidelitatem jurasti hoc est vitam membra terrenam dignitatem sibi per te salvam fore consuetudines quas ipse repetit conservandas tu niteris eas destruere cum praecipue spectant ad terrenam sui degnitatem honorem idcirco te reum perjurii dicimus perjuro Archiepiscopo de caetero obedire non habemus This I take to be a judging in Treason But this the Bishops did for their part as Bishops and Suffragans they did withdraw their obedience from their Metropolitan which was as much as in them lay to deprive him a conviction it was of the Guilt not indeed judicium sanguinis But this is not all for observe what our said Author saith further they going away the King saith to them discernite quid perjurus contumax proditor debeat sustinere Itur judicatur à quo vel qualiter judicium pronuntiandum esset informatur In which matter Stephanides as he is cited by Mr. Selden in his Titles of Honour in the Folio Edition fol. 705. tells us how it was consulted and debated between the Bishops the Spiritual Barons and the Temporal Barons for saith he de proferendo judicio distantia fuit inter Episcopos Barones utrisque alteri illud imponentibus utrisque se excusantibus Aiunt Barones vos Episcopi pronuntiare debetis sententiam ad nos non pertinet nos Laici sumus vos personae Ecclesiasticae sicut ille Consacerdotes ejus Coepiscopi ejus Ad haec aliquis Episcoporum Imo vestri potius est hoc officii non nostri non enim est hoc judicium Ecclesiasticum sed Seculare non sedemus hic Episcopi sed Barones Nos Barones vos Barones pares hic sumus Ordinis autem Nostri rationi frustra innitimini quia si in nobis ordinationem attenditis in ipso similiter attendere debetis eo autem ipso quod Episcopi sumus non possumus Archiepiscopum dominum nostrum judicare By which dispute by the way it doth appear that both the Bishops and Temporal Lords did take themselves to be equally constituted Judges and Peers by reason of their common Baronage in this Case of Becket a Cause of Treason the Bishops owned and avowed a Right of judging him as Barons They did not excuse themselves upon the score of the Canon alledged but from the indecency in respect of the relation that they stood in to the Criminal he being their Superiour and Metropolitan they seem'd willing to decline the making of the Sentence Whether any Judgment was pronounced by whom or what the Judgment was is not certain the Historians differing thereupon But when he went out of the Court he was call'd by the people as he past Traytor and perjured Traytor as the King before had called him And if this be not the clearest proof of Beckets being accused of Treason and the Bishops judging in a capital Cause in Parliament there can be nothing proved to satisfaction Besides that all that writ of his story are unwilling Witnesses they magnify excuse and justify the man all along extolling his virtues They call him Saint Pater Patriae so Gervasius does Coll. 1393. and Martyr Let the Reader consider what is here faithfully recited and then let him tell what Opinion he hath of the Candor of the Octavo Gentleman who could find no fault in Thomas Becket for he saith Folio 62. That Gervasius Dorobernensis saith that Becket was charged with two things Injustice to John Marshall and his own contempt in not appearing to the Kings Summons This Author had nothing of his own knowledge to charge upon him and saith that Stephanides is not to be regarded because he was Beckets friend and an obscure Author it may be not yet come into his Study The Author had reason to see no faults in Becket or to forget them all for the good service the insolencies of that man hath done towards the Scandal of the Order But we have not mispent our own time neither will the Reader regret our length in this matter for this single Case consider'd gives a Resolution to the Question and puts the Right of the Bishops to sit in capital Causes out of all doubt This Case will let in light for the true understanding of the Assise of Clarendon For it must be noted that the Great Parliament of Clarendon was held by Henry the 2. about the latter end of January in the tenth year of his Reign the Bishops and Lords were all Sworn to observe the Statutes there made called the Assise of Clarendon called the Avitae consuetudines Regni of which the Law aforementioned was one This Law therefore must be interpreted in such a sense for that the words will bear it and can be intended in no other than that which may consist with the proceedings in the Case of Arch-Bishop Becket and with the Oaths of all the Bishops and Peers and the great men taken but a short time before to observe the Statutes of Clarendon Now if the whole Order of capital Causes had been intended to be excepted by that Statute above
Regni definitum est quod Comes Johannes disseiseretur de omnibus Tenementis suis in Anglia Castella sua obsiderentur This is a Cause of Treason for that Richard the First immediately upon the demise of the Crown was King It can be no objection that this was not a formal Parliament for whether it was or no it seems the Bishops power in that Cause was allowed That it was Commune Concilium Regni and had the Nature of a Parliament And that the Bishops therein had a parity of Authority with the Temporal Lords But soon after his return King Richard held a Parliament at Notingham Hoveden mentions the Bishops that were present by Name In which Parliament our Historian tells us That the King Petiit sibi Judicium fieri de Comite Johanne fratre suo qui contra fidelitatem quam ei juraverat Castella sua occupaverat terras suas transmarinas destruxerat foedus contra eum cum inimico suo Rege Franciae contra eum inierat And the like Justice he required against the Bishop of Coventry for that he had adher'd Regi Franciae Comiti Johanni inimicis suis and it was thereupon adjudged Judicatum saith Hoveden quod Comes Johannes Episcopus Coventrensis peremptoriè citarentur si intra quadraginta dies non venerint nec Juri steterint Judicaverunt Comitem demeruisse regnum Episcopum Coventrensem subjacere judicio Episcoporum in eo quod Episcopus erat Judicio Laicorum in eo quod ipse Vicecomes Regis extiterat You see here the Bishops zeal and Loyalty that they adjoyn'd the censure of the Church which they had power of as Bishops to a Civil punishment which they with the Temporal Barons had Authority to pronounce against One of their own Order who was guilty of a design to engage a Nation in a War by opposing the lawful Successour to the Crown and this being so great a Cause We hear nothing here of any scruple the Canon gave them nor mention of any Priviledge of an Ecclesiastick to be exempt from the Judgment of the secular Court In the same Parliament Giraldus de Canavilla was accus'd of harbouring of Pirats and Praeterea saith Hoveden appellaverunt eum de Laesurâ Regiae Majestatis in eo quod ipse ad vocationem Justitiariorum Regis venire noluit nec juri stare de praedictâ receptatione raptorum neque eos ad Justitiam Regis producere sed respondet se esse hominem Comitis Johannis velle in Curiâ suâ Juri stare Hoveden tells us all that were present at this great Council Hubert Arch-Bishop of Canterbury Galfridus Arch-Bishop of York Hugh Bishop of Durham Hugh Bishop of Lincoln William Bishop of Ely William Bishop of Hereford Henry Bishop of Worcester Henry Bishop of Exeter and John Bishop of Carlisle Earl David Brother of the King of Scots Hamelinus Earl de Warrenna Ranulfus Earl of Chester William Earl of Feriers William Earl of Salisbury and Roger Bigot Let any one judge if it was likely that the Bishops did withdraw in the Case of Earl John or the said Bishop when besides them there were but six Barons present at that Parliament What manner of great Council would this Parliament have been that had consisted but of six Barons of what Authority would such a Parliament have been in the absence of the King and a troubled Estate of the Kingdom CHAP. VII IN the time of Edward the Second in the two Judgments against the Spencers the Right of the Bishops to judge in capital Causes in Parliament was carried so high in opinion that their presence was thought necessary to give Authority and validity to the Judgment of the House of Lords in such Cases and their absence was assigned for Error for Reversal of those Judgments for an Error that appears in the irregularity of the Proceedings is an allowable Cause for vacating the Judgment by the same Court that gave it And so far did that Opinion prevail that the presence of the Lords Spiritual was necessary to give Authority to a Judgment of that House that for this Cause because the Prelates were absent that Judgment was reversed Which opinion did arise upon this mistake that because the Lords Spiritual was one of the two States that made the House of Lords nothing could be done without their concurrence But though they are a distinct State from the Temporal Lords they make but one House and they are both there under one Notion and Reason viz. as they are both Lords Spiritual and Temporal the Baronage of England But let any man tell me that can whether if the Lords Spiritual had not been understood Judges in Parliament in Capital Causes it could have been a question whether their absence could avoid the Judgment in the Case of the Spencers much less that such an opinion should prevail that the Judgment should be as it was for that reason reversed And tho' the Reversal of that Judgment was set aside and the Judgment affirmed in 1 E. 3. Yet the publick Recognition of the Bishops Right in the Reversal remains an undeniable Testimony to their Right of sitting Tho' the Reversal of that Judgment was not warrantable for the reason of the Bishops absence as it could not have been reversed by reason of the absence of as many Temporal Barons if there remained enough besides to make a House to give the Judgment And yet we find the Reversal of the Reversal reversed in 21 R. 2. and the Family of the Spencers restored in the person of the Earl of Glocester So prevalent was the opinion that the Bishops Concurrence was necessary in all capital Judgments in Parliament at that time For this see Sir Robert Cottons Abridgment fol. 373. Yet it is observable that the consequence from the Bishops being a third State and an Essential constituent part of that House to a necessity of their presence in all judicial matters even of Capital Offences and Treason did so stick with that Age for they then in that Age did no more know what three States served for or that they both made but one House than some in our time can tell how to find them For that very Reason in 21 R. 2. the first Petition that the Commons made in that Parliament to the King was for that diverse Judgments were heretofore undone for that the Clergy were not present The Commons prayed the King that the Clergy would appoint some to be their Common Proctor with sufficient Authority thereunto The Prelates therefore being severally examined appointed Sir Thomas de la Piercy to assent The words of which Petition and the procuratory Letters for greater Authority and more satisfaction I have thought fit to transcribe Nos Thomas Cantuar. Robertus Eborac Archiepiscopi ac Praelati Clerus utriusque Provinciae Cantuar. Ebor. jure Ecclesiarum nostrarum Temporalium earundem habentes jus interessendi in singulis Parliamentis Domini nostri Regis
Regni Angliae pro tempore celebrandis necnon tractandi expediendi in eisdem quantum ad singula in instanti Parliamento pro statu honore Domini nostri Regis nec non Regalie ac quiete pace tranquillitate Regni judicialiter justificandi venerabili viro D. Thomae Peircy ..... Nostram plenariam committimus potestatem ita ut singula per ipsum facta in praemissis perpetuis temporibus rata habeantur The Commons of England knew what they said and could not be mistaken in fact we know of no Judgments reversed but those of the Spencers But we have no Records or very few of the times before Edward the Third transmitted to us through the injury of the times but they then had certainly whereupon they grounded their petition upon which the said procuratory Letters were made which petition here follows in terminis Mecredy prochein ensuant les Communes monstrerent au Roy coment avant ces Jeures plusieurs jugements Ordinances faitez en temps des progenitors nostre Senior le Roy en le Parliement eiant estre repelles adnulles pur ceo que l'estat de Clergie ne fust prest en Parliament a la faisaunce des dits jugements Ordenances pur ceo prierent au Roy que pur surete de sa personne salvation de son Royalme les Evesques le Clergie ferroient un Procurator aver poiar sufficient pur consentir en leur nosme as toutes choses ordinances a justifieis en cest Parliament que sur ceo chescun Signior espiritual dirroit pleinenent son advys Sur qui les dits Seigniors Espiritual severalment examines se consenterent de Comettre lour plein poiar grantant en les parts nosmerent on especial Tho. Peircy Chivaler sur ceo baillerent au Roy une Schedule contenant lour dit poiar le quelle nostre Seignior le Roy receust commanda la dite Mecredy estre enter de record en Rol de Parliament deque cela Schedule le form sensuit But it is remarkable that this Petition was made in 21 R. 2. for that in the 11 R. 2. the Bishops had made their Protestation that by reason of a Canon they could not be present The words of the protestation we shall here transcribe Per encheson certeins mattires feurent mouvez en cest present Parliament toucherent overtement Cryme L'archevesque de Canterbiry les autres Prelates de sa province fierent une protestation en la fourme paroles qui suent In Dei nomine Amen Cum de Jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non caeteros suos Suffraganeos Confratres Coepiscopos Abbates Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertinet in Parliamentis Regiis quibuscunque ut Pares Regni praedicti personaliter interesse ibidemque de Regni negotiis aliis ibi tractari consuetis cum caeteris Domini Regis Paribus aliis ibidem jus interessendi habentibus consulere tractare ordinare statuere definire ac caetera facere quae Parliamenti tempore ibidem invenerint faciend in quibus omnibus singulis nos Willielmus Cantuarien Archiepiscopus totius Angliae Primas Apostolicae sedis Legatus pro nobis nostrisque Suffraganeis Coepiscopis Confratribus necnon Abbatibus Prioribus ac Praelatis omnibus supradictis protestamur eorum quilibet protestatur qui per se vel procuratorem hic fuit modo praesens publicè expressè quod intendimus intendi volumus vult eorum quilibet in hoc presenti Parliamento aliis ut Pares Regni praedicti more solito interesse consulere tractare ordinare statuere definire ac caetera exercere cum caeteris jus interessendi habentibus in iisdem statu ordine nobis eorum cuilibet in omnibus semper salvis Verum quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet personaliter interesse ea propter pro nobis eorum quolibet protestamur eorum quilibet hic praesens etiam protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus intendit nec vult aliquis eorundem in praesenti Parliamento dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos nostrum quemlibet in ea parte penitus absentare Jure Paritatis nostrae cujuslibet eorum interessendi in dicto Parliamento quoad omnia singula inibi exercenda nostro eorum cujuslibet statui ordini congruentia in omnibus semper salvo Adhuc insuper protestamur eorum quilibet protestatur quod propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit vel vult quod processus habiti habendi in praesenti Parliamento super materiis auditis in quibus non possumus nec debemus ut praemittitur interesse quantum ad nos eorum quemlibet attinet futuris temporibus quomodolibet impugnentur infirmentur seu etiam revocentur Quelle protestation leu en plein Parliament al instance priere du dit L'archevesque les autres Prelates susditz inrollez ycy en rol du Parlement per Commandement du Roy assent des Signiors Temporeles Communes This the adversaries of the Bishops would have an Act of Parliament for that at the prayer of the Bishops by the Kings command with the assent of the Lords Temporal and Commons it was inrolled for that all the formalities that were used in these times in passing a Law was only to have the matter shortly entred in the Roll or Journal Book that such a thing was agreed upon by the King and two Houses which was drawn into the form of a Law afterwards by the Justices and Kings Councel when the Parliament was risen but this was never done in this Protestation and therefore we might say that it is not to be taken for a Law But we will admit it to be a Law yet it can be a Law only for that Case and can be extended no further Those Bishops protest but for whom For themselves only their own persons not their successors that by reason of the institution of the Canon they could not be present at certain matters to be treated of in the Parliament What those Canons were they do not tell us They had no other reason but the Canon to pretend at that time We hear not a word from them of the Assise of Clarendon And what was it that they protested Why only that they could not be present at what only at the matters aforesaid mentioned in the Petition and in that present Parliament But was this without any regard of their Right No they saved their Right their
Law was publickly professed in England before the end of the 12th Century for Mat. Paris tells us of a Monk of Evesham Anno Dom. 1196. that suo tempore eorum quos Decretistas Legistas appellant peritissimus habebatur earum etiam facultatum auditores quamplurimos instituerat and from that time the study of the Caesarean and Pontificial Law did flourish amongst us until the beginning of E. 3. But in all that time saith Mr. Selden in his Fleta gens ipsa Anglicana ac qui in judiciis praeerant morum patriorum viz. Juris Communis Angliae per intervallum illud tenacissimi fuere A remarkable instance we have of this Nations steady aversion from admitting here either the Civil or Canon Law in the Parliament of Merton which rejected a Bill for Legitimation of Children born before marriage in Concubinate in these Terms Nolumus leges Angliae mutari meaning that they would not make Laws conformable to the Civil or Canon Law The great Policy that the Popes used to effect their Ambitious design of making themselves Monarchs of the Christian World were The assuming to themselves the entire rule and Government of Religion and endeavouring to make every where the Bishops and the whole Clergy together with the Regulars dependant upon them by pretending them to be exempt from all Civil Authority and Jurisdiction and by interdicting to them the exercise of any Civil Authority and shutting them out from all intromissions into the Civil Government and from any interest or dependance thereupon So far as he prevailed in these designs he acquired an Imperium in Imperio and if besides these he could have fixt a Spiritual handle to the Temporal Sword and have got the Government of secular affairs in ordine ad spiritualia his design had been compleated and he had arrived to a more absolute and extensive Empire than that of the Roman Caesars To these purposes the Canon Law provided that the Ecclesiasticks were neither to exercise nor be subject to any Civil Authority But this policy of the Pope had no success in England the endeavours of the Papalins herein met with constant opposition and at last they were made desperate by the Assise of Clarendon where it was declared and enacted accordingly agreeable to the Avitae Consuetudines Regni that the Bishops should be retained and continue to be a part of the Government and exercise Jurisdiction in all Causes in the Kings Court as other Barons as is before observed and that the Clergy should stand submitted to the Jurisdiction of the Kings Courts For this purpose it was also in that Parliament enacted as followeth Si controversia emerserit inter Laicos vel Laicos Clericos in Curia Domini Regis tractetur determinetur and also quod clerici rectati accusati de quacunque re summoniti à Justitia Regis venient in Curiam Domini Regis responsuri ibidem c. And so far were the Bishops and Clergy from observing that part of the Canon Law that was to detrude them from all secular Authority and Jurisdiction that they were from time to time Chancellors Treasurers Keepers of the Privy Seal and Judges and while that Ancient Office continued of Capitalis Justiciarius Angliae to whom was committed the Justice of the Kingdom who were called Custodes Regni Vice-Domini Angliae and sometimes the abstract Justitia He did preside in the Curia Regis which Office was afterwards divided for there were Justitiarii Angliae Boreales Justitiarii Angliae Australes this Office was often executed by Bishops as you may see in Sir Hen. Spelmans Glossary in the word Justitiarius Bishops and Church-men administred the greatest Offices of State and Justice this was matter of Envy to the Temporal Lords and they complain'd in Parliament 45 E. 3. as is before observed That the Government of the Kingdom had been a long time in the hand of the Clergy Mr. Selden in his Fleta tells us that in the times before and after the Assise of Clarendon Mos fuit Judices Regios ex genere hieratico veluti Episcopis Abbatibus Decanis id genus aliis constituendi And it is provided by 28 E. 1. Cap. 3. That if a Clergy-man was a Judge of Assise another should be joyned in Commission with him to deliver the Goals which was to the end that the Ecclesiastical Judge might use that liberty which was indulged to him by the Assise of Clarendon of not pronouncing the Sentence for it must be observed that by that Statute a Clergy-man might be a Judge in a Goal-delivery for that a Laick was by the provision of that Statute to be join'd to him in Commission and Pleas of the Crown are to be found purporting them to be held before two Judges whereof one a Clerk after this Law which could not possibly have been if the Clerk had not been in Commission Besides for after Ages it is well known that all the great Officers and Ministers of State and Justice have been always intrusted with the conservancy of the peace are in Commissions of the peace and Commissioners of Oyer and Terminer for judging capital Causes so that the constant practice in all times as well as the express declaration of the Assise of Clarendon doth assure us that the Canon Law that prohibits Clergy-men being Judges in capital Causes was never received here or became the common Law of England Besides what regard our Clergy had of the Canon Law what opinion they had of the Right in question and how far the Laws did intend to prohibit the exercise of it And that such right was used and exercised will appear by the Canon of Toledo Concil Toletan 11. Cap. 6. fo 553. and the Canon of Lanfrank Spelmans Concil 2 vol. fol. 11. these were made before the Assise of Clarendon That of Toledo is this His à quibus Domini Sacramenta tractanda sunt judicium sanguinis agitare non licet ideo magnopere talium excessibus prohibendum est ne qui praesumptionis motibus agitati aut quod morte plectendum est sententia propria judicandi mant aut truncationes quaslibet membrorum quibuslibet personis aut per se inferant aut inferendas precipiant This being a Foreign Council this Canon carries not with it the Authority of a Canon with us only we may observe whatever the Opinion of that Council was that it was not convenient for licet can have no ocher sence here for Clergy-men agitare judicium Sanguinis Yet this Canon prohibits only the pronouncing the Sentence by themselves or others I am sure that by a positive Law as this Canon must be so far as it participates of the nature of a Law nothing becomes unlawful but what is forbidden whatever the reason be of that Prohibition That of Lanfrank follows thus Vt nullus Episcopus vel Abbas seu quilibet ex Clero hominem occidendum vel membris truncandam judicet vel judicantibus suae authoritatis favorem
yet when the business of the Parliament was extraordinary the Writs of Summons both to the Prelates and Barons had a Premonition that a Proxy should not be allowed unless they could not possibly be present dors claus 6 E. 3. m. 36. claus 1 R. 2. m. 37. 2 R. 2. m. 29. Nor was it unusual with the Prelates to make such their Procurators who were no Members of that House In that Parliament of Carlisle under E. 1. the Bishop of Exeter sends to the Parliament Henry de Pinkney Parson of Haughton as his Proxy The Bishop of Bath and Wells sends William of Charleton a Canon of his Church In the Parliament 17 R. 2. the Bishop of Norwich made Michael Cergeaux Dean of the Arches and others his Procurators In the same year the Bishop of Durham his Proxies are John of Burton Canon of Beudly and others In the Statute of Praemunire 16 R. 2. cap. 5. it is said that the advice of the Lords Spiritual being present and of the Procurators of them that were absent was demanded This making of others then Barons of Parliament Proxies is not without President likewise in the case of Temporal Lords Lit. Procurator Parl. 4 H. 5. Thomas de la War gave his Procuratory Letters to John Frank and Richard Hulme Clerks So that it appears that by the Law of Parliament the Proxies of the Bishops in the 21th of R. 2. were legal Proxies and consequently the Bishops there virtually Besides that the lawfulness thereof doth appear for that it was required of them by the Parliament that they should make their Proxies and be present by their Procurators for this reason lest otherwise the Proceedings in that Parliament should be void CHAP. X. IT is true that the Parliament 21 R. 2. was wholly repealed by 1 H. 4. but that was for a good reason indeed because that Parliament of 21 R. 2. had delegated their whole power to a few of their number who finally without any resort back to the House made and past Laws But did ever any man before the Octavo argue at this rate that because there is one error in a case for which the Judgment is reversed that therefore there was nothing in the case legal and well considered And therefore how unreasonable and false this way of arguing is and that it is disputing against fact we shall further shew and prove For a probable Opinion still continued of the necessity of the Bishops sitting which implies a clear Recognition of a Right for in the 2 H. 5 the Earl of Salisbury petitioned the House to reverse a Judgment given against the Earl his Father Anno 2 H. 4. the Error assigned was the Absence of the Spiritual Lords The Case was much debated but the Judgment affirmed as we allow it ought to be but we produce it as an irrefragable Testimony of the Bishops Right to sit for if that had not been allowed there could not have been the least colour in the case nor matter of debate CHHP. XI BUt tho' the Actual Exercise of the Bishops Right in their own Persons though whatsoever is done by a Deputy is done in the Right of him that makes the Deputation as every body knows was for some time discontinued tho' their Right in that time was most solemnly owned and recognized yet in 28 H. 6. we find them re-continuing the Exercise of that Right and Authority and in their own Persons sitting in Judgment upon William de la Pool Duke of Suffolk who was impeach'd of Treason by the Commons for that he had sold the Realm to the French King and had fortified Wallingford Castle for a place of Refuge The Impeachment of High Treason was brought from the House of Commons by several Lords Spiritual and Temporal sent thither by the King's Command the Ninth of March the Duke was brought from the Tower into the Presence of the King the Lords Spiritual and Temporal The Impeachment was read unto him The Thirteenth of March he was sent for to come before the King the Lords Spiritual and Temporal to answer to his Charge which he did On Tuesday the Seventeenth of March the King sent for all the Lords Spiritual and Temporal who were in Town They are named two arch-Arch-Bishops and thirteen Bishops besides the Temporal Lords who being assembled the King sent for the Duke There was no Judgment given by the Parliament but he submitted to the King and the King gave him Penance which was that he should be absent for Five Years out of England The Lords Spiritual and Temporal by Viscount Beaumont declared to the King that this that was so decreed and done against the Person of the Duke proceeded not by their Advice and Council with this Protestation that it should not be nor turn in Prejudice nor Derogation of them their Heirs ne of their Successors in time coming but that they may have and enjoy their Liberty and Freedom as largely as ever their Ancestors or Predecessors had and enjoyed before this time Observe here that the Lords Spiritual were present at every Motion of this Cause This Cause was thrice before them no Exception taken to the Bishops being Judges They could not sit by Permission without Right if the Bishops had no Right to sit the Proceedings had been certainly erroneous For though one Judge's Absence if there be a Quorum will not vacate a Judgment yet if one sit in Judgment that is not an Authorized Judge the Proceeding is certainly erroneous and void Can any man believe that the Government should lose it self forget it s own Establishments in the highest concerns We may as soon believe that a man may forget his own name One positive Act of Session signifies more than 100 Omissions for if it had not been well understood that the Bishops had a Right to sit in Judgment in Capital Causes in Parliament they could never have been admitted they would never have presumed to endeavour it But with false Logick and absurd Reasonings and dislike to the Order it is become an Opinion in this Age because sometimes the Bishops absented that they have no Right But we have one thing further to add that declares an inherent Right in the Lords Spiritual to the Authority in question and that is an Opinion of the Judges 10 E. 4. 35. which says that the Lords Spiritual in case of a Tryal of a Temporal Peer in Parliament shall make a Procurator for then it seems an Opinion was received which was error temporis That it was indecent for Bishops to sit in their own persons in Judgment in such cases But they themselves are best Judges of what is indecent and unbecoming their Order for no man is obliged to any man but himself in the matters of Decency and the measures that make things decent or indecent is very mutable as changable and mutable as Customs Fashions and Opinions Besides that there is nothing that is very valuable and is of great concernment but can and
to the Encroachment of the Papal Power and in this matter to declare how far the Bishops might if they pleased observe the Canon Law or rather themselves and what was thought then decent to their Order So according to the Print in Gervasius and therein he differs from Matth. Paris it is Quousque judicio perveniatur ad mutilationem membrorum vel mortem which further clears the meaning of that Law to be that the Bishops were thereby excused not altogether from Capital Causes but onely when it was proceeded so far in such like Cause that Judgment was to be pronounced which when the Bishops had nothing to gainsay they might depart and leave Sentence to be pronounced by the House But we cannot after all this allow the Author of the Folio to have so little sense as with a good conscience to say that he who cannot perhaps by reason of his circumstance and some consideration of Indecency execute a thing in his own person therefore cannot do it by another no more than he can authorise one man to murther another Thus he saith fol. 20. when surely this Gentleman cannot think it as fit for a Judge to be a Hang-man as to sign a Kalendar for the Execution of the Condemned Prisoners But the Octavo is somewhat surprizing in this matter For he doth affirm That it is not lawful for Bishops to vote in any Question preliminary and preparatory to the Sentence of Condemnation when such Sentence follows and the matter preliminary is necessary to the Process This he proves by a Logick Rule Causa Causae est Causa Causati one of Sthalius his Axioms hath turn'd round the Head of this Gentleman I find few men can bear Axioms Maxims and Sentences There are none speak so much unnatural Non-sence as they that use them most May not several men I pray do several parts of an affair and yet he that doth the first part is no ways the Cause of what another man doth in the second and third place Is the acting the first part of the Play the cause of acting the last Or is the laying the Foundation the Cause that lays on the Roof Is the Jury the Cause of any more than their Verdict And doth not the Court give Judgment by their own Authority and Causality If men would speak by Nature and according to first Notions and were not so full of second Notions and Universals we should not have so many Errors Mistakes and Confounding Opinions in the Work But this we complain of as too severe in the Octavo that when he had confounded us with his Causa Causae Causati he would render us ridiculous with a Story of a Friar out of Chaucer That would of a Capon the Liver of a Pig the Head But would that nothing for him should be dead This indeed was a fine piece of Wit in the Poet but translated hither by our Author is an insipid piece of Malice His Design sure in this was to enter the Bishops amongst Chaucer's Friars and then the Learned Readers of Chaucer would be very conceited upon them and apply all his pleasant Satyrs against the Friars to the Bishops But for the farther Evidence of the Bishops Baronage and their Jus paritatis it would not be impertinent here to add That the Names of Barons Peers Seniors Grants have been attributed to the Lords Spiritual in all times in Authentick Histories and Records Forasmuch as a Nominal Argument is not a very inartificial Topick in such a Cause as this Besides that this will destroy the very strength of our Adversaries which lies in this that they will not allow Prelates to be comprehended in the Name of Peers Grants and Barons And that where the Records doth not expresly mention Prelates they will conclude they were not meant or intended to be present But the Collection which was made for this purpose shall not trouble the Reader because in two Books since Printed in Defence of the Bishops Right in question this is abundantly performed Besides that it is a very precarious Conclusion that our Adversaries make and without argument For they ground themselves herein upon a most unreasonable Postulatum viz. That Titles do not belong to persons for whom they were made and to whose Character they agree and that Words do not design the things which they were made and imposed to signifie CHAP. XIV NOw we shall proceed to perform a necessary piece of Justice to the Prelates as well as a Right to the Government to recover its true Constitution from the Prejudice of Modern Ignorance to declare and manifest that our Gvernment doth consist of three States the Lords Spiritual and Temporal and Commons of England These do make the Great Council of the Kingdom and minister to the King Council and Auxiliaries over which the King doth preside as the Great Superintendent and mover of this mighty Machin The consequence of which is that the Bishops cannot be detruded from that place they bear in the Constitution of the Government for that no Government can be legally or by any lawful power changed but must remain for ever once established And it cannot be no less than Treason of State to attempt a change no Authority in the world is competent to make any alteration The Princes of Christendom after they took to themselves the Election of Bishops which is a natural right of the Sovereign Power become Christian they soon observed the advantage that they might make by advancing them to the greatest Secular Dignities Governments and Trusts and did accordingly advance them to an equality if not to a superiority to the highest of the Secular Nobility gave them Dutchies Marquisates Baronies and rich Endowments and erected that Order into a successive Nobility Another sort of Nobility from that of the Lay Princes concluding that they should be better served by men of their own choice and approved worthiness who had also other advantages over the People than those that the Temporal Princes and Lords had by that Reverence they paid to their Bishops and the Authority and Power that they had over them in the virtue of Religion than by the Hereditary Princes and Nobility who did not always answer to the virtue of the original Ancestors and the first stock Besides that Religious Kings and Sovereign Princes did by advancing Bishops intend to do great advantages and honour to Religion but withall they did not divide the Bishops thus advanced from the Secular Princes and Noblemen in Councils for then they had lost their design The Bishops could not have had any direct influence upon the Councils of the Nobles and Secular Princes nor have tempered their Debates with an excellent Charity and firm Loyalty and other Vertues which belong to their Character It would have made trouble distraction and impediment in the Affairs of Princes and emulation and strife and faction between the Ecclesiastical and Secular Orders and several mischiefs and great inconveniencies would have
ensued if they had been divided and separated in several Colleges and had had in consequence thereof a Negative upon each other as they then of necessity must But by uniting both Orders into one Council and Assembly distractions in Councils and impediments to the Affairs of Princes are avoided And we are assured of a more wise as well as an unanimous and more authoritative Result in all Councils and Debates which if the Octavo had duly considered he would not have depraved and disparaged this wise Constitution by comparing it to a nest of Boxes They were therefore for these great Reasons both Spiritual and Secular Lords united in the great Councils of Kingdoms and these two Orders of Nobles Spiritual and Secular became the two States which together with the Representatives of the People the third State made the Parliaments Diets and Convention of State under which Names the great Assembly which we call a Parliament in the several Sovereignties of Christian Europe hath respectively passed This hath been observed by the most learned Onuphrius Postquam verò juris imperii facta est eorundem Praelat electio quemadmodum ceteri Principes seculares Imperii tum Caesares qui de Religione bene merere volebant sine Imperii tamen praejudicio coeperunt Episc Abbates ob Religionem tanquam potiora Imperii membra prae caeteris Laicis Principibus honorare profana ditione ingentibus opibus honestare Arces Oppida Vrbes Marchias Ducatus Provincias Pedagia Telonia Vectigalia Portaria multa alia quae Imperii propria erant Episcopatibus concedere quae vel ex suis propriis bonis quae ad Imperium pertinebant vel ex alienis feudis erant Nam Laicis Principibus sine legitimo haerede mortuis eorum Provincias quae beneficiario jure ad Imperium pertinebant non aliis ampliûs Laicis Regulis sed Episcopis concedebat atque hac ratione omnes Episcopatus Abbatias Italiae Galliarum Germaniae imò totius Orbis Latini denique ipsum Pontificem Romanum ex pauperibus ditissimos maximos Principes fecerunt ex eis scilicet quibus quae antea Imperii juris erant in nulla re propterea Imperialia jura minui existimantes quippe quod certi essent eos omnes Praelatos a se designandos fore non nisi jussu suo voluntate Sacerdotia ipsa obtenturos Nicholaus Cusanus lib. 3. de Concordia Catholica cap. 27. attributes this Policy to Otho Secundus who saith he Vnico gaudens filio multis regnis cogitans difficile fore absque maximo labore tot regna in pace aliquamdiu servari posse insequens vestiga Avi sui Henrici Primi Ottonis Patris suum cogitatum ad res ecclesiasticas appulit considerans multa jam Religiosis locis per praesentes Reges donata summa pace gaudere quia verecundum erat Deo dicatis vim inferre animo ponderavit Ordinationem factam Synodo Romanae Ecclesiae de qua 63. Dist In Synodo Per quam perpetua dabatur potestas Imperatoribus Romanum Pontificem Cunctos sub Imperio Episcopos investiendi vel saltem eorum consensum semper concurrere debere celebrata Canonica Electione ut 63. Distinct NOS SANCTORVM Vnde hoc ponderans credidit perpetuis temporibus Imperio subjectis pacem dare posse si temporalia Dominia tam Romanae Ecclesiae quam aliis adjungerentur cum certi Servitii observatione tunc enim cultus Divinus augmentaretur Religionem in magnam Reverentiam exaltandam credidit quando sanctissimi magnae potentiae aliis Principibus intermiscerentur non posse tunc quosque voluntate in peccatis uti nulla publica sperabat unquam peccata Captorum depopulatorum agrorum communem pacem turbantium incendiariorum consimilium posse nutriri Ecclesiasticâ Sacrâ potestate potenti valenti resistente etiam praedones pauperum oppressores qui particulari regimini praeessent sic corrigi posse affirmabat ut sic absque Tyrannica Oppressione populus in Libertate vivere posset Imperio etiam tranquillissimo non dubitabat hanc Ordinationem esse utilissimam quando per annua servitia praestimonias quilibet Ecclesiae juxta quantitatem temporalium indictas Status Imperialis manu teneretur ac etiam multo major Imperii Potentia ex hoc appareret quod illis omninibus Dominiis ita Ecclesiis traditis nullus nisi per Imperium absque Successione percipi posset Who is desirous of more to this purpose may see Sigonius de Regno Italiae Bishops were made Dukes and Counts in France and also Peers in France and about this time out of the Princes Dukes and Counts the number of 12 were selected by the Kings of France and erected into the Title of the 12 Peers of France by which Dignity they became the Chief Councellors and Directors of State These twelve being chosen besides their being Peers in matters of Judgment in the Old Parliaments were Peers also in the management of the whole Kingdom and while their Greatness held were therein so Powerful that they added a Taste of Aristocracy to that great Monarchy not disagreable to the Title that our Peers assumed of being Pares Regis and having a Power Fraenum imponere Regi as Bracton tells us but he and his Law both are antiquated Of these six were Lay and six were Ecclesiastical but the Dignity of Pair is supposed in these Bishops not as they are Bishops but as being Dukes and Counts also that is in the first three viz. Rhemes Laon Langres as Dukes and of Beavois Chalous and Noyons as Counts These twelve Peers of France had such a Power towards the Ancient Kings of France as the Ephori of Sparta and the Justiciaries of Arragon had towards their Kings They were obliged to exercise that Power with Care and they did exert it towards their Kings What they did agreable to the Power assigned them in the Government was lawful and just nay their bounden Duty But certainly the Exercise of these Powers was against no Command of God For God makes no Government nor obligeth us to obey any but what are made by Men The Government it self is its own Measure It 's no Objection against the Lawfulness of any Government that it 's inconvenient if they like it notwithstanding whose Government it is But this Constitution was of advantage to Royal Families in that it made a kind of Entail of the Crown upon their Families and preserved the Monarchy and its Descent And besides had this farther Conveniency that it was under them impossible for a Nation or Kingdom to be undone in a trice for a Caprice of the Prince or destroyed to make a Fortune for some Up-start For the Sake of Mankind it is to be earnestly desired and prayed that such as they who derive no Honour from their Ancestors may leave none to their Children that themselves may survive their Honors and leave nothing of their
as many of them as were most proper to judge or assist in the Judgment as the Case did require were appointed by the King or his Capitalis Justiciarius And that it was so in Fact appears by that Famous Cause wherein Arch-bishop Lanfranck recovered against Odo Bishop of Baieux Earl of Kent Eadmerus Hist Nov. l. 1. f. 9. tells us That there was Principum Conventus an Assembly of Barons at Pinneden in Kent and that the Kings Precept was Rex quatenus adunatis primoribus probis viris non solum de Comitatu Cantiae sed de aliis Comitatibus Angliae Querele Lanfranci in medium ducerentur examinarentur determinarentur disposito itaque saith he principum Conventus apud Pinneden Gaufridus Episcopus Constantiensis vir ea tempestate praedives in Anglia Vice Regis for Odo Bishop of Baieux one of the Litigants was at that time the Justiciarius Angliae justitiam de suis querelis strenuissimè jussus fecit where we see Godfrey at the King's Precept took so many Barons of that Country or of any other where any of the Lands lay as Assistants to him For our Historian saith that Lanfranck though Godfred pronounced the Judgment did recover judicio Baronum qui placita tenuerunt The probi homines were such by whom the truth of the matter might be better understood and did probably enquire of it who did accord and agree the Judgment to be right Lanfranc did recover ex communi omnium astipulatione judicio as our Historian also informs us I might cite many more Records of the Method of the Administration of Justice in this Curia Regis but I should be too long in this matter not being strictly necessary to the Question in hand though the understanding of the Nature of this Court and the Constitution of the Government at this time will many ways inserve to the clearing the Right thereof In this Court Peers were tryed all Pleas of the Crown heard and whatever is now the Business of the Courts of Common Pleas and Exchequer was dispatch'd in this Curia Regis Here Fines were levyed as appears by a Record furnished to us by Sir Hen. Spelman in his Gloss f. 279. the word Fines There men famous for their Skill in the Law did attend and by this Judicature some place was assigned them where they were to hear such Causes as were referred and sent down to them and it is very possible that Fines may be levyed i. e. Concord made of the thing in pretence that was referred to them and it may be true that in a Charter of a Grant of Conusance of Causes Words may be conteined for excluding the Intromissions of the Justices of the one Bench and the other For such Charters never want words These matters are produced by Sir Edward Coke in his Preface to the Eighth Report to prove that the Common Pleas was a Court before the Magna Charta of King John for that these matters are in time before that Charter but these Justices were no other than Ministers to the Curia Regis They were not such Justices as now make that Court all Common Pleas being now appropriated to their Judicature For the Writs before that Charter were returnable coram me vel Justitia mea Glanvil l. 1. cap 6. but after that Charter they were returnable coram Justiciariis meis apud Westmonasterium Bracton l. 2. cap. 32. But before this all Common Pleas were adjudged in the Curia Regis and that Court did send down the Cause to such as did attend that Court to receive its References By Magna Charta cap. 11. it was provided Communia placita non sequantur Curiam nostram sed teneantur in aliquo certo loco And now Writs were made returnable there the Common Pleas were taken out of the Jurisdiction of the Curia Regis one Judicature was appointed for all Causes between the Subjects and one place of Attendance for Litigants By this Provision Justice was administred without Noise and Tumult the Administration of it committed to men of Skill and to such who might be answerable for their Judgments and from whom it might be appealed But after Magna Charta made by King John and confirmed by H. 3 9. the Authority continued of the Justitia or capitalis Justiciarius to him was the resort for Writs from whence all Judicial Authority was still derived He did direct and bound the Justice of the Court of Common Pleas by such Formula's as were allowed in the Curia Regis where the Chancellor and his Colledge of Clerks did attend for the forming of Writs according to the nature of the Complaint with the Allowance of that Court but the Authority of this Court ceasing and the Office of this great Justiciary about the end of H. 3. we find in the Statutes of Glouc. 6 E. 1. c. 7. Laws for a Writ of Entry to be granted to the Reversioner where Tenant in Dower Aliens in Fee though her Alienation was a Forfeiture of that Estate at Common Law But it seems there had been no such Writ yet formed and the Chancellor had no such Power of forming a new Writ That Statute provides that in that Case there shall be a Writ of Entry thereof made in Chancery which is called A Writ of Entry in casu proviso And for that Power might not be wanting in the Chancellor to issue out new Writs where no Writs before formed were fitted to the Case So that Writs in Cases of like reason had been granted by W. 2. cap. 24. it was provided quotiescunque evenerit in Cancellaria quod in uno casu reperitur Breve in consimili casu cadente simili indigente remedio concordent Clerici de Cancellaria in Brevi faciendo Whereas in the full Authority of the Court of the Curia Regis no Right could have failed of a Remedy For Jura sunt matres Actionum But Derivative Authorities are always stricti Juris no Rights are now remediable but where they are in a Parity of Reason or Analogy with such Rights as had received relief in the time of that Great and Original Judicature So inconvenient are those Reformations that reform by pulling down Want of Authority to do Right is a greater Fault in Government than the allowance of a Power that may be abused to Wrong and Oppression But this is the true reason why we have so many Causes irremediable at Common Law petitioning for relief at this day in our Court of Chancery though if the Statute of Westm 2. before-mentioned were well improved the Defects of our Law would not be so shameful and notorious By what hath been said it appears that the Common Pleas was not an Original Court or a Court of ordinary Jurisdiction in the First Constitution of the Government and such it remains and continues to this time For that Court cannot proceed to Judgment in any Cause without an Original Writ out of Chancery though a late Statute makes their
pleaded in Bar upon which the Defendant will be certainly relieved in Chancery may notwithstanding it hath not heretofore be hereafter allowed in our Law-Courts we should be in a great measure restored to our easie expedite cheap and certain Justice which the Methods of our Common Law-Courts hath most excellently provided until a Parliament sometime or other may consider whether it be not fit to take it quite down by inabling Courts of Law to do true Right in all Causes that shall come before them For nothing renders the Chancery tolerable but the mo exemplary Virtue and Great Endowments of our present Lord Chancellor in which he is not like to have a Successor But to return to the Curia Regis it was not only the great Judicature of the Nation formally but it was also materially our Parliament too That this Curia Regis was not without any more the Parliament of these times is evident first that the Curia Regis was summoned by a general Writ of Summons directed to the Sheriffs in this Form viz. Rex Vicecomiti Northamptoniae c. praecipimus tibi quod summoneri facias Archiepiscopos Episcopos Comites Barones Abbates Priores Milites Liberos homines qui de nobis tenent in Capite c. Rot. Claus 26 H. 3 M. 7. Dorso This must necessarily be this Curia Regis in Distinction to a Parliament For that in the Grand Charter of King John made in the last year of his Reign it was granted that Ad habendum Commune Concilium Regni de auxilio assidendo aliter quà m in tribus praedictis casibus i. e. Those cases of Aid to make the eldest Son a Knight to marry the eldest Daughter and of Ransom and de Scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per Literas nostras Et praeterea faciemus summoneri in generali per Vicecomites Ballivos nostros omnes alios qui in capite tenent de nobis At present we make no other use of this Grand Charter than to prove it a distinctive mark of a Parliament where the Summons are personal to the Bishops Earls and the greater Barons This Charter of King Johns declares the ancient usage of summoning the greater Barons by special Summons to them severally directed for that the Kings before him as Sir Henry Spelman in his Glossary p. 80. Propter crebra bella simultates quas aliquando habuêre cum his ipsis majoribus suis Baronibus alios etiam eorum interdum omitterent aegrè hoc ferentes Proceres Johannem adegêre sub magno sigillo Angliae pacisci ut Archiepiscopos Episcopos Comites majores Barones Regni sigillatim per Literas summoneri faceret By which it was provided that all the Barons should have pro more Summons to the Parliament that non of those great Barons should want his several Summons and they had anciently several Summons for in a general Summons no body was excluded By which it doth appear that the Council at Northampton wherein Thomas of Becket was brought in judgment was a Parliament and not the Curia Regis for that the Bishops had their several Writs of Summons which appears in that Fitz Stephens tells us as matter of observation that Thomas of Canterbury had not his Writ of Summons but was cited as a Criminal to answer which we before observed And this was but necessary that when the Tenents in capite or Barons which principally at least made the Parliament were to be consulted about some arduous Affairs that they should have notice and a solemn intimation thereof and their presence required and enjoyned by Writs to them particularly and personally directed Besides that it was agreeable to all the forms of Government then in use to have their ordinary and extraordinary Council For Omnes Germanicae Originis Reges atque Imperatores duplici Concilio antiquitùs utebantur altero statario qui Senatus dicitur ad res quotidianas altero evocato concilium aut conventus ordinum ad res momenti majoris as Grotius assures us Neither can it be denied by any man of modesty who hath heard any thing of the state of our Government before the Conquest and that knows that many ancient Burroughs send Burgesses to Parliament by Prescription and will consider the Records produced by Mr. Petit in his very learned and elaborate Book called The Ancient Right of the Commons of England to prove the Right of ancient Burroughs to send Members to Parliament who represent them but that such though not Suiters to the Curia Regis were Members de jure of the great Council of Parliament But the truth is they are not mentioned in any Record or History of any Parliament from the beginning of the Conquerours Reign to the end of Henry 3. as a distinct part of the Parliament of England their Numbers and Qualities were little and mean of no consideration in comparison to that great Body of the Baronage that constituted our Parliaments in that time but our Parliaments seem by the style used in Histories and Records to be onely the Baronage of England William the First in the fourth year of his Reign Consilio Baronum suorum saith Hoveden pag. 343. fecit summoneri per universos Consulatus Angliae Anglos nobiles sapientes sua lege eruditos ut eorum jura consuetudines ab ipsis audiret Those who were returned shewed what the Customs of the Kingdom were which with the assent of the same Barons were for the most part confirmed in that Assembly which was a Parliament of that time saith Mr. Selden Titles of Honour pag. 701. Amongst the Laws of Hen. 1. published by Mr. Abraham Whelock cap. 2. I find thus Forestas communi consensu Baronum in manu mea retinui sicut pater meus eas habuit And after Lagam Regis Edwardi vobis reddo cum illis emendationibus quibus pater meus emendavit consilio Baronum suorum The Parliament is styled Commune Concilium gentis Anglorum and at the same time Commune Concilium Baronum and also Clerus Populus Matth. Paris fol. 52 53 54. And this is sometimes called Communitas for that it represents the whole people and involves their consent Which appears by 48 H. 3. Pars unica M. 8. D. Haec est forma pacis à Domino Rege Domino Edwardo filio suo Praelatis Proceribus omnibus Communitate Regni Angliae communiter concorditer approbata And that Communitas Regni hath no other sense than commune concilium Regni and used as a comprehensive term of them that made it is evident for that it is said in the second Record Si videntur communitati Praelatorum Baronum And again Per consilium communitatis Praelatorum Baronum Further Magnates Vniversitas Regni sometimes used for the Parliament Matth Paris 659,666 And after King John's Charter wherein it was
like this was before attempted by King John by this Writ of King John the like of which is not found Rex vicecomiti Oxoniae salutem praecipimus tibi quod omnes milites Ballivae tuae qui summoniti fuerant esse apud Oxoniam ad nos à die omnium Sanctorum in 15 dies venire facias cum armis suis corpora vero Baronum sive Armis singulariter 4 discretos milites de comitatu tuo illuc venire facias ad nos ad eundem Terminum ad loquendum nobiscum de Negotiis Regni nostri teste meipso apud Written 11 die Novembris Dors Claus 15. Johannis Regis Part 2. M. 7. But that Hen. 3. in that Parliament had some notable Expedient for the Establishment of the publick Peace and Quiet His Hopes and Desires of accomplishng it will appear by the Stile of the fore-recited Writ if compared with another Writ of Summons in a Cursory Form in the 26th Year of his Reign which was thus Henricus c. Venerabili in Christo Patri Waltero Eboracensi Archiepiscopo salutem mandamus vobis qualenus sicut honorem nostrum pariter vestrum diligitis in fide qua Nobis tenemini omnibus aliis negotiis omissis sitis ad nos apud London à die Sancti Hillani in 14 dies ad tractandum nobiscum una cum caeteris magnatibus nostris statum nostrum totius Regni nostri specialiter tangentibus hoc nullatenus omittatis But shortly to deduce the History of this Change which is but conjectural under the Authority of Mr. Selden in which nothing is certain but that the Bishops continued in the Change of the Baronage in the same State of Greatness mentioned the same Order had their Writs of Summons continued to them as before and though many of the Regular Barons were after omitted to be summoned to Parliament yet not one Bishop ever wanted his Summons This Discrimination shews That they were now Barons by Writ as the Lay Barons were and for the same Reason that is because Tenures did not now make them Barons But such only were so who had the King's Writs sent to them of Summons to Parliament So that the Bishops are not now to be reckoned Barones feudales or Barons by Tenure but Barones rescriptitii as all Barons at this day except those by Patent which are so without any respect to Tenure The Feudal Baronage as we said was as large and as numerous as the Tenures by Knights Service in Chief which were capable of being multiplyed several ways for every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee The Feudal Baronies besides were ambulatory not fixed to Families but assignable as Estates and passed with the Lands Who sees not that by this Constitution and Nature of Baronage a great many mean persons not agreeable to that high Order must be entitled to it and so in truth it happen'd And hereupon a Distinction was made first between Barones Majores Barones Minores The Barones minores soon lost the Title of Barons altogether This is conjectured by Mr. Selden to be before the latter end of King John's Reign and their legal Stile became Milites or Libere Tenentes which some upon a mistake anticipating the Change of the Government made in H. 3. time think when they meet with Milites or Libere Tenentes in Parliament they have found Knights of the Shire chosen for Representatives in Parliament And if they reteined the Name and Stile of Barons it was now but abusively applyed to them for their Baronies were in Truth estimable but as Knights Fees only and of this sort of Barons there remains some to this day This appears by a Passage in the grand Charter of King John made in the latter end of his Reign as it is in Mat. Paris 343. Ad habendum commune concilium Regni de auxilio assidendo aliter quam in tribus casibus praedict these three Cases of Aid to make the Eldest Son a Knight of Aid to marry the Eldest Daughter and Aid of Ransome are understood Heir as is plain by the Charter Et de scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbates Comites majores Barones Angliae sigillatim per literas nostras Et praeterea faciemus summoneri in generali omnes alios qui in Capite tenent This was one Step to remove these Barones Minores from the Dignity of Barons which by H. 3. were quite discharged and never appeared after in Parliaments except chosen Knights of the Shire But because I find this great Charter of King John not well understood by several considerable Writers nor by Mr. Selden explained I will offer my Thoughts and the rather because it is not impertinent to our present purpose The first part to which the part before-recited doth refer is thus Nullum scutagium vel auxilium ponam in regno nostro nisi per commune concilium Regni nostri nisi ad corpus redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel maritandum ad hoc non fiet nisi rationabile auxilium and then follows ad habendum Concilium Regni aliter quam in tribus casibus praedictis scutagiis assidendis c. I conceive that by the first Commune Concilium he means the Curia Regis and that he did grant that out of that Court he would not impose Escuage or aid upon his Tenants except it were those three Cases of Aid mentioned For Escuage was then and after assessed in that Court and that properly as being due by their Tenure only the Opportionment there was to be made which was a proper Office for the King's Tenents amongst themselves until the Statute of 34 E. 1. de Tallagio non concedendo in which it was provided that no Tallage or Aid shall be put or levied without the Will and Assent of the Archbishops Bishops Earls Barons Knights Burgesses and other Free Commons of the Realm but for all matters other than those three mentioned Aids and Escuage which were due by Tenure it should be done by that Commune Concilium that is his Parliament and he there declares how he would have it summoned as to his Baronage who in that part of his Charter were to receive their Satisfaction and for the Liberties of sending Burgesses to Parliament they are likewise confirmed in the same Charter and therein provided for So that I am persuaded that the modus Parliamenti in King John's Time was in the said Charter declared It was probable that before this Charter there was some Law to declare who those Majores Barones were and who those Tenants in Chief were that should be accounted now no longer Barons and after the Tenants in chief had lost the Honor of a particular
Summons to Parliament and the Stile of Barons it was less difficult for those Great Barons to procure a Law to exclude the rest wholly from having any Right to sit in the Parliaments under the name of Tenant in Chief only And to this purpose doubtless saith Mr. Selden some Law was afterwards made that none should come to Parliament as a Baron that is by vertue of his Tenure but such as should have several Writs of Summons directed to them in which number not only all those of the Ancient and Greater Barons were comprehended but others to whom Writs should be directed which is in effect that no Tenure should any longer make a Baron of the Kingdom but that the Writ of Summons only should make a Baron It is not improbable for the reasons aforementioned that such Law was made the 49 H. 3. and farther for that we find that the Abbot of Leicester in the 26 E. 3. was discharged from being summoned to Parliament amongst other reasons that he was not summoned to Parliament before 49th year of H. 3. and after that Interpotalis vicibus as if part of the Constitution had been that those of the Ecclesiasticks who at that time were accounted the Barones Majores so declared by having Writs of Summons to Parliament should have Writs of Summons to Parliament thence after in Succession And herewith agreeth Mr. Cambden Brit. fo Henricus tertius ex tantâ multitudine quae seditiosa turbulenta fuit optimos quosque rescripto ad Comitia Parliamentaria evocaverit ille enim ex satis antiquo scriptore loquor post magnas perturbationes enormes vexationes inter ipsum Regem Simonem de Montfort alios Barones motas sopitas statuit ordinavit quod omnes illi Comites Barones Regni Angliae quibus ipse Rex dignatus est brevia summonitionum dirigere venierent ad Parliamentum CHAP. XVI SO that it appears clearly that the Feudal Baronies about this time were quite discharged so far that no man by a feudal Barony had any Right to sit in Parliament and those that were feudal Barons before this time by the Alienation of their Baronies afterwards did not cease to be Barons But for that the Majores Barones and such as had then Writs of Summons and were appointed to make the House of Lords for after time were then Barons by Tenure It continued an Opinion some time that no man was bound to answer such Writs of Summons but those that were bound thereto by their Tenures thence it was that after this Constitution many that were feudal Barons before have taken a Liberty to entail their Baronies with the Lands that were held per Baroniam upon the Heirs Males whereby the Heirs general or next Heir Female were excluded and an Heir of the half Blood hath enjoyed the Honor with the Lands by vertue of the Entail We will trouble the Reader with one Instance of this kind and that is as late as Q. E. William Lord Paget of Beaudesert entailed the Baronies of Longdon and Haywood by Fine which descended to Henry his Son and Heir who had Elizabeth his Daughter and Heir died 11 Eliz. after whose Death Thomas Brother and Heir Male of Henry entered into the Baronies aforesaid and was summoned to Parliament This was allowable because the Honor of the Name and Family was thereby better supported and the Office of a Baron continued in the Family and the Duty of it better performed by such direction of the Descent And we do also observe that after the reason of being a Baron from Tenure did cease the following times kept the Old Form of Speech tenere per Baroniam was used commonly to denote a man a Baron That the Law is as we have said appears for that an Issue at Law whether Baron or not ought to be tried by the Parliament Records of his Summons and Session there as a Baron and not by the Records of the Exchequer to prove the Tenure I will not therefore trouble the Reader with what is reported to us in our Year-books nor my self in reconciling the seeming disagreements there about this matter onely thus that the Judges have sometimes spoken cum vulgo and not agreeable to the true notion of the Law and that they did not judge according to Law in the case of Thomas de Furnival But the Barons being anciently first so by Tenure did so stick with the Judges that they allowed Thomas de Furnivals Plea that he did not hold per Baroniam to discharge him from being a Baron though he had been summoned as a Baron and sate in several Parliaments as such But of this more hereafter For that which now made Parliamentary Barons was the receiving of a Writ of Summons to Parliament Before the 49 H. 3. The Bishops were of the number of those that were majores Barones and had Writs of Summons to Parliament among the rest of the great men before the making of the Law aforesaid and they by this new Constitution became Barons for them and their Successors not by Tenure any longer no more than the great Lay Barons but by virtue of the Writ of Summons and by the afore remember'd Constitution and Law made some time about the 49 H. 3. And though the Lands of the Bishops in the time of the Conquerour which were put under that Tenure be alienated or exchanged as they might have been I am sure if they are not before the Statute of Queen Elizabeth put a restraint upon them yet the Succession of the Bishops to their Baronies remains It is a question I know whether a Bishop can demand his Writ to Parliament before the restitution of the Temporalities upon his Consecration there are valuable Opinions on both sides but if the restitution of the Temporalities must be first made it is I conceive upon no other reason than that he is not completely Bishop before that is done no more than a Rector is a complete Rector after Institution before Induction be made though he ought I conceive to have his Writ upon Consecration because upon vacancy of the See the Guardian of the Spiritualities used anciently to have a Writ of Summons to Parliaments as Diocesans themselves And now the Baronage Secular is affixed to Families and the Spiritual Baronage to the Office and Succession And now Birth designs the Temporal Baron and Consecration of the Bishop designs the Spiritual Baron nay single Election without Confirmation or Consecration If elected onely they were summoned to Parliament by the addition of Electi if confirmed and not consecrated then they are in the Writ of Summons styled Electi Confirmati And Mr. Selden further tells us that there never was any that had the Title of a Bishop in England and of the Kings Creation since the Normans but was a Baron of Parliament and though the Regular Barons and such of them who had Writs were discharged upon their Prayer and omitted to be
summoned Yet the Bishops by reason of their Spiritual Dignity had necessarily a right and voice The Archiepiscopi Comites Barones alii Magnates in ancient Parliamentary Writs of Summons do ordinarily express and comprehend the whole Baronage without naming the Abbots and Priors which must be signified by the alii Magnates Which I the rather note because the Folio Author a Gentleman very easie and ready in Inferences doth conclude that because such Writs mention Magnates besides Bishops Comites Barones which he too suddenly concluded were comprehensive of the whole Baronage doth thence argue that a Writ of Summons of any man to Parliament doth not make him a Baron and from thence would have it inferred that the Bishops are not so though they are expresly mentioned and first in order and cannot in reason be reduced to that meanness of rate and quality with those that fall under an Et caetera and from hence would have it concluded that they may when the King pleaseth be dismist that House because there were anciently some Grandees that had Session in Parliament now discharged Besides we do observe that another sort of great men may be meant by the alii Magnates that is to say famous men of the Clergy not Bishops and other men of great name for wisdom of which there were some summoned in most of the ancient Parliaments not intended thereby by the King to be made noble or advanced to the state of Baronage for there were distinct clauses in the Writs of Summons to signifie the Kings purpose therein The Writs directed to such as were not intended thereby to be made Barons as the Judges Attorney General Kings Serjeant c. was Quod intersitis nobiscum cum caeteris de Concilio nostro and sometimes nobiscum onely super praemissis tractaturi vestrúmque consilium impensuri whereas that to the Barons was Quòd intersitis cum Praelatis Magnanatibus Proceribus c. But as Mr. Selden observes that custom of sending Summons to great men not Bishops to Parliament did cease after the clause of Praemunientes by which Convocations were summoned by Bishops to meet with Parliaments grew in use in the Bishops Writs of Summons to Parliament Of which excellent Provision we shall have occasion to speak to hereafter All the Baronage both Spiritual and Temporal de jure ought to have Summons now to Parliament without respect to Estate or Tenures There is no man now noble by his Acres a sort of Nobility that this refined Age will not allow of The King according to the Constitution of H. 3. afore-mentioned may now by Letters Pattents or Writ erect a new successive Barony as well as hereditary as was done by H. 8. The fifth year of his Reign for that the Baronage of England was now affixed to Family and Succession and not to Tenures he by his Letters Patents did then grant unto Richard Bamham Abbot of Tavestock in the County of Devon the Abbey being of his Foundation and Patronage and to the Successors of the said Abbot Vt eorum quilibet qui pro tempore ibidem fuerit Abbas sit erit unus de Spiritualibus Religiosis Dominis Parliamenti nostri haeredum Successorum nostrorum gaudend honore privilegio libertatibus ejusdem This the King might well do because the Abbot was of his Patronage and the Successors were therefore to be elected and collated by the King for that was the Inducement and Reason of Kings and Sovereign Princes advancing Bishops and great Abbots to the degree of Baronage making them members of the great Councils of their Kingdoms and Principalities as is before observed because such Abbots as the Bishops were made always and appointed by the Sovereign Prince And here we may take notice by the way of the Reason why the Episcopus Soderensis or the Bishop of the Isle of Man is not summon'd to Parliament which I shall give you in the Words of Sir H. Spelm. in his Glossary Baronum appellatione non omnes hodie apud nos censentur Episcopi ut pote Soderensis in insula Manniâ quod de Rege non tenet immediate at de Comite Darbiae Nay it is most observable That this Honour of Baronage or being a Member of the House of Peers was so inseparable to the Office of a Bishop after the afore-mentioned new Constitution of the Baronage That the Guardians of the Spiritualties of Bishopricks in the times of Vacancy and the Vicars General of Bishops being beyond Sea were summoned to Parliaments by the same kind of Writs as the Bishops were summoned Of this Mr. Selden doth assure us Titles of Honour 2 Edit fol. 721. But this Honour lasted no longer than this legal Substitution and Vicarious Power If they had Right to sit in that House in respect of their Temporalties the Guardian of the Spirituals or the Vicars General would not have had Writs of Summons to Parliament But if the Kingdom had not had a great Opinion of that Order it would not have been provided and put in use that in Vacancy of the See or Absence of the Bishop rather than that great Council would want one Bishop utterly or the Interest Authority and Consent of any that had Episcopal Authority they admitted the Substitute by whom that Office was executed and administred for that Interval only When Baronies were feudal the person tho' in respect of his Land was noble his great Estate and Interest and the other general Presumptions that attend opulent Fortunes made the Possessor noble in his Person Anciently the Estate of late the Discent in the Temporal Baronies and the Succession in the Spiritual Baronies place the persons respectively in the Census and Rank of Baronage but there is no Nobility but what is personal nor can be in Nature All the persons in the same Order of the publick Census are of the same Quality Neither are Bishops to be accounted less Barons or less noble because they enjoy their Baronies for Life only no more than a Tenant for Life of an hereditary feudal Barony could be so accounted Feudal Baronies being considered as Estates were alienable as Estates and as Estates would suffer Limitations and admit of particular Estates for Life No man can say we had no personal Nobility in the time when there was no other Baronage than Feudal How then can it be said that the Bishops Persons are not noble though they should be accounted only Barons Ratione Tenurae as certainly they are not in proper speaking at this day neither can it be objected against their personal Nobility that a Bishop may be degraded for so may a Peer for more Reasons than a Decay of his Fortune and Estate Which matter I the rather insist upon for that the great Mr. Selden committed an Error by not considering that the ways and means by which persons derive and come to be of the Order of the Nobility and Baronage can make no Difference in the Baronage
but thence he offers a Reason which must needs be a Mistake too why Bishops shall not be tryed by Peers in Capital Crimes because these are personal and his being a Baron is Ratione tenurae and not of personal Nobility But this he wrote when he was young in his first Edition of Titles of Honour which was in the time of King James But can there be a harsher and more incongruous thing said than that there is any other Nobility than what is personal Can Land be noble This that I have said is to prove That the Spiritual Lords are of the Baronage of England such as it is now constituted and they do not cannot remain in any Reason or Understanding Feudal Barons after the Ratio Baronagii is changed and if they could remain Barons Ratione tenurae at this day yet they ought to have all Preheminencies and Priviledges of Barons But true it is that they are another sort of Nobility different from that of the secular Lords though equal in all the powers of Baronage and besides have precedency in Honour and therefore make a distinct State from them and one of the three Estates or Ordines Regni Besides that by the way we have destroyed the Force of the Arguments used by the Folio against the Jus Paritatis of Bishops and their Competency to try a Lay Peer which we shall speak to more by and by CHAP. XVII IN the King and in these three Estates is placed the Peoples Security and the Care of the whole Community from every of them they have distinct just and reasonable Expectations though the third State of the House of Commons hath carried away and almost ingrossed the name of the Peoples Representatives though they are only the Peoples Representatives to act for them in matters wherein the People are left at perfect Liberty and concerning which there is no Order taken in the Constitution of the Government This is truly Our Government a King and Three Estates the Lords Spiritual the Lords Temporal and the Commons by their Delegates and Representatives for the purpose only to treat about matters in which the People have Power to deliberate and are and ought to be redress'd This is the Forme of all the Modern and Gothick Governments planted in Christian Europe Guntherus expresseth three Estates thus Praelati Proceres missisque Potentibus Vrbes The great men of Estates Proceres were sufficient to take care of their Interests and Dependents which made the Body of the County But then there were Cities or great Towns in which were great Bodies of Freemen men of Wealth and Trade that were little concerned in Lands or Tenures which we call Liberi Burgi which our Neighbors call Hans Towns And our Kings seem to have by Prerogative a continuing Power to declare Towns when they arrive to be great peopled and rich Free Boroughs and thereupon they acquire a Right to send Delegates to Parliament And this appears for that many Boroughs that send Burgesses of to Parliament have no other Foundation Right but the King's Charter in which he grants Sit A. de Caetero liber Burgus I have seen some of these Charters as ancient as King John These Charters could have had no such Operation but by vertue of some Ancient Establishment in the Government We have no History of its Commencement King William I. that he might have the assistance of all the States in Parliament put the Boroughs under Tenure by Baronage How many of the Burgage Tenures were of that sort we know not but it is probable all that at that time sent Burgesses to the Parliamentary Conventions by what name soever they were then called the Burgesses of the Cinque-ports are still called Barons And we know that the Borough of St. Albans was put under that Tenure and in that Right challenged them to Burgesses to Parliament as Dr. Brady acknowledgeth But the reason why we have no remembrance of the Tenures of Boroughs to send Burgesses to Parliament is that which we have here proved viz. the ancient reason of Baronage viz. by Tenure did cease about the time of H. 3. And conformably the King might require Boroughs to send Members to Parliament without mentioning in his Writs the duty of their Tenure and by declaring them free Boroughs give them that Priviledge though not oblig'd thereto by any Tenure created upon them So that it is evident that before H. 3. our great Councils or Parliaments consisted of three Estates though they all pass'd under the general Stile of Baronagium Angliae which I thought fit to demonstrate that our Parliaments or great Council of the Realm always consisted of three States Corol. From this that the King's Prerogative being so viz. to have power to declare Free Boroughs which he useth by his Letters Patents The Rights of chosing their Burgesses to Parliament belongs to all of the Community and cannot be restrain'd to fewer Electors by their Charters For Jura ordinaria non recipiunt modum The Remainder at least of this Form of Government continued in all the Countries wherein the German Colonies made their Conquests and planted themselves as will appear to any body that will consult the Republicks and those plentiful Quotations that hath been made by a Learned Author in his Book published since this was written I cannot but wonder since this our Constitution hath been oftenmost authentickly declared and every one knows that the Government is materially so as we have said and it is agreed by all that the Government consists of three States that yet we know not where to find ' em There is much Art used to give Countenance to or rather to form an Opinion that the King is one of the three States It is now almost come to be an Opinion and insomuch as it is an Opinion it is an Error This Error such as it is is endeavored to be improved to the Destruction of the Government It is nurs'd up carefully and is to gain Reputation and Credit with the People by the Authority of great Names and when it is grown popular it is designed to take the least next Advantage against the Spiritual Lords to dismiss them from their Bench as no necessary or essential part of the Government There was it 's true an ill-pen'd and inconsiderate Address made by the House of Commons only to the the King in 2 Hen. 4. to desire him to make Peace between the Lords and therein they say that the three States of Parliament are the King the Lords Spiritual and Temporal and the Commons But this is the first time that an Address of a House of Commons was so nicely considered And that the Form and Letter of it should be the measure of Law and of the Government There was also a phantastick Letter written by Stephen Gardiner printed it seems in the Book of Martyrs wherein that Bishop talks of three States in which he must needs reckon the King for one For he could not leave
him out of the Government and he had no more Christian Graces than Faith Hope and Charity which he attributes to this Ternary of States of his own making But if he had four of those Graces there had been four States if six of those Graces to have match'd them in number he would have found three States in the House of Commons viz. Knights Citizens and Burgesses and have made six States It seems too King James made a Speech in Parliament wherein he was pleased to use his Logick and liked it seems the Ramistical way of Dichotomies The truth is he had more Logick than a wise King could tell how to bestow For in that Speech he saith The Parliament is composed of a Head and a Body himself and the Parliament This Body is sub-divided into two parts the upper House and the lower House The upper House into two Lords Spiritual and Temporal the lower House into two Knights and Burgesses The Citizens were left out for the sake of his Dithotomy His Method was to proceed by the way of two's and therefore 't was impossible we should here in this Speech of any three whatsoever yet this Speech too is produced against three States distinct from the King Besides they tell us that in one of the late King's Declarations drawn by then a young Gentleman but of great hopes and afterwards a very great Man the King is called one of the three States This Gentleman was very probably misled into that Mistake by a Book called Nomotechnia wherein it is said that the King Lords and Commons are the three States a Book of Institutions for young Students which was never yet allowed for Authority in the Law nor ever had the Honor to be cited in our Courts of Westminster These Mistakes or whatever you will call them with the Authority of the Octavo Author are united together to form an Opinion that the King is but the Bishops are not one of the three States which will be a very dishonorable Error For that it will lead us into a Mistake of our Government and which is much worse for that it hath a tendency to subvert it that is to depress the King and to suppress the Bishops It is an Indign thing and not to be suffer'd that we should lose our Government by Surreption and be made a Babel by dividing and confounding our Language To prevent this mischief we have declared our Government from the very Reason and Nature of the Structure thereof to consist of three States that is three different Orders which make the Great Council of the Kingdom whose End and Business is to administer Council and Auxiliaries to the King who is intrusted with the executive Power of the Government and Laws And besides now we will produce great Authorities to put this Mistake out of Countenance and to prevent its gaining any farther Authority with the People For Errors of this nature in process of time turn into Truth and things prove to be so at last as the Error and Mistake first bespake them and this our Lawyers know well enough with whom 't is a Maxime it belongs only to them and matters within their Province Communis Error facit Jus. And first for this purpose we will mention the Stile that the Parliament used which was convened by the Authority of Richard the Second he being then about to relinquish the Crown to H. 4. This Parliament in transacting so weighty an Office had reason to consider and know who they themselves were They without doubt in all their Proceedings in this High Matter used their true as well as biggest Stile which was that of States Walsingham tells us Sede Regali tunc vacua Procurators Regis Richardi Archiepiscop Eborac Hereford Renunciationem dicti Regis cessionem omnibus statibus Regni tunc adunatis ibi publice declararunt And again Quoniam videbatur cunctis Regni statibus super dictis Articulis singulatim ac etiam communiter interrogatis And again Ordinati sunt Comissarii ex parte statuum Communitatis ejusdem Regni Observe here that the King is none of these States that they are called all the States which signifies more than two that there is mention of States besides Community and therefore it was then understood that there were two States in the Lords House But afterwards he recites us the Form of a most important Instrument which follows In Dei nomine Amen Nos I. Episc Assavensis I. Abbas Glasconiensis Thomas Comes Glocestriae Thomas Dominus de Berkley Tho. de Epingham Tho. Gray Miles Willielmus Thirning Justiciarius per Pares Proceres Regni Angliae Spirituales Temporales ejusdem Regni Communitates omnes status ejusdem Regni Representantes Commissarii ad infra scripta specialiter deputati c. By which it is most clear that the Government was then understood to consist of three States of which the King was none as he cannot be with any Congruity 1 R. 3. Rot. Parl. apud Westm die Veneris 23 Jan. it appears that a Bill was exhibited coram Dom. Rege in Parl. Wherein is contained That several Articles on the behalf and in the name of the three States of the Realm viz. Lords Spiritual Temporal and Commons were delivered to the King And farther that the said three Estates were not assembled in form of Parliaments therefore be it ordained by this present Parliament that the Tenor of the said Articles delivered as aforesaid on the behalf of the said three Estates out of Parliament c. Now by the three Estates assembled in this present Parliament be the same ratified and approved Ac idem Dominus Rex de assensu dictorumtrium statuum Regni Authoritate praedicta omnia singula praemissa in billa praedicta contenta concedit ea pro vero indubio pronunciat decernit ac declarat This was in like manner an Act of Parliament for declaring the Right of the Crown to be in Rich. 3. In the Statute made 2 H. 4. the Word State is used plurally and for more than two of which the King was none to signifie the Parliament as appears cap 15. And so it is also in 4 Hen. 4. cap. 4. in which these words are Sith it is the desire of all the States of the Realm that nothing shall be so demanded of our Sovereign the King He will that all those who make any Demand c. So that hereby it is evident that in the Understanding of that time there were three States besides the King But to spare the Reader the trouble of the mentioning the Records at large that testifie the Parliament to consist of the King and the three Estates viz. Lords Spiritual Lords Temporal and Commons I will refer them that doubt to the Collection made in Mr. Pryn's Index to Sir Robert Cotton's Abridgment under that Title who himself was of this Opinion which nothing but the Evidence of the truth of the thing could have
unexceptionable Judge but renders them most fit and desirable For besides their Wisdom and Justice common with that of the Temporal Lords they are intended of the greatest tenderness and compassion and must be so if they comport themselves with agreeableness to their Character and Function They are not ordinarily engaged in the Factions of the Temporal Grandees and Religion being their business they are more under the powers of it that being their glory and their first greatness that which promoted them to their Secular Honour and Dignity and that which must support it Their Interest is Religion and therefore they are the more obliged in all their outward acts to comport with it They out of an universal charity understand that it is mercy and compassion to the innocent to punish the nocent person and yet they can in the administration of punitive Justice attemper the severities of Laws with the mercies of Religion and use Compassion to the Criminal when they do not depart from the unrelenting Rules of Law out of regard to the publick peace and by such demeanour they may reconcile the Office of a Judge with that of a Priest which some have thought incompatible 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Synes But they are no more inconsistent than Power and Authority which united makes a most venerable Magistrate and gives him the greatest advantage of serving the Community Peragit tranquilla potestas Quod violenta nequit mandataque fortiùs urget Imperiosa quies CHHP. XVIII AND such a Judge would I chuse but we we must take such a Judge as the Law appoints Magna Charta is objected against the Bishops right in the question which saith that Nullus liber homo capiatur c. nec super eum ibimus nec super eum mittemus nisi per judicium parium suorum The Objector omitted to add or consider what follows viz. Aut per legem terrae But the Statute of Magna Charta is no Literal Law as every body knows but intending to confirm the Common Law it is upon the matter Lex non scripta it alters nothing that was the Common Law before but that being found out declares what Magna Charta establisheth And therefore Peers shall be tried by Commoners in Appeals notwithstanding the Letter of Magna Charta for otherwise Peers could not be tried at all nor no Justice done in Appeals which is the Suit of the Party and not of the King Privilege must be always set aside rather than a faileur of Justice shall be allowed So that the Law before Magna Charta and since whatsoever it was must determine this matter The Provisions that the Law hath made that the Nobles and the Commonalty shall not intermeddle to judge any persons not of their Order is a most prudent Establishment without which neither Order Justice or Peace could be preserved The Envy of the Commons would render them unfit Judges of the Peers and the Animosities of the Peers would render them unapt to sit in Judgment upon a despised Commoner Besides that otherwise the Dignity of the Order of Peers would suffer for the Superiour can no more be judged with any congruity than blessed by the Inferiour This is a reason big and wise enough to be assigned and worthy of a wise Government and Polity And to this reason the words of the Statute of 25 E. 3. cap. 2. de Proditoribus do point De ceo soit probablement attaint de overt fait per gens de lour condition And therefore it seems to me that according to the Reason and Design of the Law which declares the Law in particular Cases that Bishops being Barons and of the Peerage of England and of that Rank and Order they ought to be tryed by those of their own Condition And the denial to them of this Priviledge which is annex'd to and is a resultance from the Dignity of their Order is a departure from Magna Charta and not agreable to the Provision of the 25 E. 3. c. 2. But it was never an allowable Exception to a Judge that the Judge hath not so good an Estate or other Advantages of Fortune equal to the man he Judges to forfeit in case the Judge be a Capital Offender upon which reason the Folio Gentleman grounds his Reasonings against the Bishops being Tryers of Peers He argues the Bishops incompetent to try a temporal Baron upon this reason because the Bishop hath only a Peerage for his Life to forfeit But who can be satisfied with such fine and slender Reasoning or entertain an Opinion that is not bettern grounded I would not be thought to argue or maintain that Prelates are so fit to be appointeed by the King's Commission to try a Temporal Peer in the Court of a Lord High Steward out of Parliament when a select Number of Peers are to be appointed for Tryal it is most convenient that those of the same Species of the Baronage should be chosen for that purpose for many reasons but for a Tryal of a Temporal Peer in Parliament which is the Establishment and Appointment of the Governmnt and not of the King 's special Designation notwithstanding the reason of the Folio for Reasons herein alleadged a Bishop is a most fit legal and competent Judge But I have taken too much notice already of the Errors and Mistakes of the Folio and his false Reasonings I am weary of such Animadversions I shall proceed now to the end of my Discourse without making any more Reflections It is already cleared that the Bishops are compleat Barons that they are of the State of the Baronage and it can have no Consideration how they came by it nor how they held it for the Modus tenendi doth not alter or diversifie the Honor. And for my part I cannot find reason to believe but that the Bishops had or might have had originally their Tryals by Peers and that it was their Right in Consequence of their being placed in that Order and State besides that they have a Precedency to the Temporal Baronage to be tried by the Baronage because the Law for the reason afore-mentioned appoints Tryals per Pares But the contrary practice is the Strength of our Adversaries in opposing the Peerage of Bishops which we shall therefore now consider of It is certain that in all Tryals wherein Bishops are concerned whether Plaintiffs or Defendants in Actions real as well as personal whether the Lands of the Church are concerned or not a Knight is to be returned upon the Jury that is to try the Issue I will not trouble the Reader with Law Cases any Gentleman that pleaseth may examine the Truth of what I say This priviledge therefore cannot be in respect of the Lands of the Bishoprick as the Folio would have it but of the persons of the Bishops a respect to the Order and Peerage of the Bishops It is the same Priviledge and as large as the Temporal Peers enjoy in this matter which is that the worthiest and best
the Lords and sate in one House they could not discharge that Office of a Representative so well as since they are divided from them and make a distinct House They could not well use that Freedom of Speech and Debate under the Observation of the great Lords upon whom the Principal Gentlemen had great Dependencies Their Consent was often very improperly such for he only truly and naturally consents who hath entire Freedom to dissent Si vis scire an velim effice ut possim nolle In the granting Aids for the Support of the Government and Defence of the Kingdom a Matter of the greatest Importance the Clergy Nobility and Commons stood divided and could not as the Ancient Constitution was by one Act of State be regularly and proportionably taxed according to the Exigency of the Affairs and their respective Abilities but those three Orders taxed themselves in such measures as they pleased which made the Kingdom Geryon-like a Monster of three Bodies Their several Concessions by this means not likely to be always equal and in the whole not competent to the instant necessity The Bishops Abbots and other Ecclesiastical persons of the Saxons time held their Lands free from all Secular Services besides Trinoda Necessitas viz. Expedition i. e. Supply for War pontium arcium extructio But King Ethelbald did grant that the Ecclesiasticks should be freed from all publick Charges except for the Building and Repairing of Castles and Bridges Ingulphus pag. 853. The like Immunity was allowed to the Clergy of the Empire by Honorius and Theodosius Lib. 4. Cod. Just de priv Dom. Aug. By the Great Charter their Priviledges were confirmed And for this reason the Clergy have taken themselves not of Right chargeable to Aids granted to the King by Parliament This Exemption hath been envied to them and made matter of Reproach though unduely in after Ages But notwithstanding this Exemption they have aided the Crown with Supplies frequently yet in such manner as asserted and saved their ancient Priviledge of being exempt that is they would not suffer themselves to be involved in a general Law but of their own Freedom and Will gave to the King which Concessions were notwithstanding not legal unless confirmed by Parliament to whom belonged always the power of judging of the Freedom and Ends of giving Aids and Benevolences and the necessity that required them But in the last Ages they have for their Commendation and Honor waved their pretences of Priviledge and Exemption and for the sake of Common Justice and the Publick Weal for avoiding being thought less in their Duty to the Publick than their Order required And for the better ascertaining and more equally adjusting the Parliamentary Aids they have submitted to be taxed by Acts of Parliament The Commons in Parliament we find as late as Henry 7. taxing only the Commons and that by Indenture between them and the King This Form of Grant is utterly exclusive of the Lords Power to charge the quantum times of Payment or ways of Levying of the Aids granted wherein they subject all Lands to the Levies thereof but the Lands of the Lords in Parliament or Land amortis'd to the Church Such an Indenture was made in Parliament held at Westminster 10 H. 7. and is pleaded at large in Rastals Entr. fol. 135. But of late our Government hath cleared it self from that grand inconveniency The Commons in Parliament and those whom they represent being far the greatest Proprietors they reasonably challenge it their Right to propound all Aids and appointing the Levies and Methods of raising them which because it must be agreed that the Commons in no congruity can tax the Lords authoritatively or impose upon them must have civilem intellectum that is the Commons in a Bill of Aids do propound that they will agree on the behalf of the Commonalty that they shall be taxed as the Bill propounds if the Lords for their part will agree the same CHAP. XXII NEither was our ancient Government without great faults and inconveniences in the conduct of Religion the principal care of all Governments on the one side by confounding Administrations which should have been kept distinct which was the fault of our Government in the Saxons time and by utterly disjoyning and severing the Church and State and not tying the Ecclesiasticks to a just dependency upon the State which was the Evil of after times that is to say the Ecclesiasticks were left to themselves to convene Councils and to make Canons without any dependence upon or relation to Parliaments The Constitution was such in the Saxons time that the Synods or Councils which govern'd in Religious matters were the same with their great Council or Parliament By these means all the Rules and Orders that were made in the matters of Religion were not Canons which are of the nature of Councils but Laws and obliged those that contravened them to temporal punishment The Church was thereby turned into a Dynasty and Religion was against its nature promoted by force which can onely truly obtain by persuasion And wheresoever this is in practice and use the Clergy to the great scandal of their Office will be entituled to all the Severities that shall be inflicted upon Dissenters Heretofore the Councils of the Church and the Authority of the State were unduly confounded After that we had Legatine Councils and Provincials convened by the Archbishops as they pleased not under the observation and controll of the Civil Power by which many inconveniences were occasioned many embroilments of the people happened the Authority of the Prince lessened and Civil Rights encroached upon the validity of several good Laws made in Parliament disputed clamoured against and sentenced as unlawful for want of a due subservience and dependence of the Ecclesiastical Conventions on Parliaments We had Imperium in Imperio or at least a Kingdom divided against it self This fault in our Government was help'd by Edward the Third our English Justinian he in the several Writs of Summons of the Bishops to Parliament made it a settled Rule that the clause of Praemunientes should be inserted requiring them therein to warn respectively Priorem Capitulum Ecclesiae vestrae C. ac Archidiaconos totúmque Clerum vestrae Diocesis quòd iidem Prior which if a Cathedral is the same as a Dean Archidiaconi totúsque Clerus vestrae Diocesis quòd iidem Prior Archidiaconi in propriis personis suis dictum Capitulum per unum idámque Clerus per duos Procuratores idoneos plenam ac sufficientem potestatem ab ipsis Capitulo Clero habentes praedictis die loco personaliter intersint ad consentiendum his quae tunc ibidem de communi concilio ipsius Regni nostri Divinâ favente Clementiâ contigerit ordinari And accordingly the several Bishops in obedience to such like Writs of Summons to Parliament to them directed summoned or warned their Deans or Priors Archdeacons and the Clergy by their Proxies
to depend upon the Will of the Prince nor of Single Persons that bore a part in the Government for their time nor be prejudiced in Succession by their Lachesse The same Priviledge doth belong to the Spiritual Baronage the successive Nobility of this Realm and a Writ of Summons to Parliament can be no more refused any of them or any of their Successors than it can to any of the Temporal Baronage I cannot but upon a review of our Government applaud our happiness that we enjoy and were born to so excellent a Government without our Sweat and Contrivance which was arrived to by several slow Steps and beaten out by the long experience of former Ages But it is a portentous thing and of ill very ill Omen that a Government so Venerable and August so Wise Beneficial and desireable should be assaulted with peevish Dotages froward Petulances and childish Cavillations And that some Brain-sick foolish Antiquaries Rakers in the Rubbish of Time should imagine that they can barter away our Government for mouldy Bread and clouted Shoes But these we have before obviated Another sort we have before engaged to consider in their ill Treatment of the Bishops in their handling this Question of their Right we now defend To which I will now proceed CHAP. XXIV FOr I am not now insensible of the great Prejudices that lie against the Right of the question from those Calumnies that are thrown upon the Order And that no reason not the clearest Demonstration will be admitted to any Degree of satisfaction until this be removed Men's understandings are mingled with their interests and Passions It is a hard matter not to see the person in the Cause and if the person is dis-esteemed his Right cannot be equally favour'd Nay which is more if our Adversaries can persuade the World that the Bishops will abuse this their Right nothing will be able to keep off this Conclusion that they have none We most duly therefore here complain of the dishonest Artifice used by the Gentlemen that we have undertaken in this Cause viz. That they seek all occasions of lessening the esteem of the Bishops and of them they speak what they will He that can believe what he will is an Infidel and he that does what he will is a man of no Conscience and he that can speak what he will wants Truth and Candor But of a culpable sort of Wilfulness we finde these two Authors very blameable We must complain of these fierce disputants that they strive unlawfully they contend with passion and a keen Animosity they strike as well as argue they lay about them right or wrong to assault and wound the Persons whose Right they oppose A wound and Dishonour do they give to their own hurt Animosque in Vulnere ponunt The first and greatest Injustice they do to the Cause against all Right and Reason of which sure they must be self-condemned is an odious Remembrance of any thing culpable in the whole Succession of Bishops in the times of the lowest Degeneracy of the Christian Religion and of the heighth of Papal Usurpation and Tyranny which was more heavy in those times upon the Rights of the Bishops than upon those of the Crown When Princes thorough their own Weakness or to serve their Interest or to support their defective Titles to their Crowns or for obtaining dispensations from his Holiness for an unwarrantable Marriage or for other Ends and Reasons could not or would not defend the Bishops and their Rights The very order of Bishops in those times was attempted upon to be annulled by that Oecumecall Usurper It was disputed and boldly maintained in the Council of Trent that the Bishops were only jure Pontificio and had no Authority in the Church but such as his Holiness would vouchsafe them It was endeavoured to make them but his Substitutes He pretended Powers to create and translate them diminish or enlarge their Dioceses gave them more or less Authority did suspend them also and deprive them and pretended that they had only a vicarious and precarious Authority from him and in such Measures as he should think fit to limit and appoint Were not Provisions and Reservations first made by the Pope upon Benefices belonging to Churchmen The Statute of the 25 E. 3. gave their Presentations to the King when the Pope usurped upon them as a Fortification against his Usurpation and Invasion Did he not urge his Canon upon them that they should not agitare judicium sanguinis so much talk'd of in this Question that he might strip them out of their Secular Greatness that he might the better go over them and tread upon them and their Ecclesiastical Rights Is there no Consideration to be had by those Gentlemen in this Case of the Error temporis or Vitia Temporum They will snatch at this unduely when it seems for their turn but can they think that any Bishop under a Protestant Sovereign will ever return under the old Yoak And yet the business of Provisions Reservations and Dispensations and of Pluralties must be laid at the Bishops Door yea though Dispensation of Pluralties is now established by Statute Law with all the Usurpations exercised by the Pope the First-born of the Children of Pride to which they willingly-unwillingly were forced to submit But how unrighteous a thing is it to load the Order it self with all the Miscarriages of a long Course of Succession as if the Faults of the Bishops in all Ages did stick to their respective Chairs and had passed into the Office it self But it is no wonder that they remember the Faults of those Bishops unduely to the Disparagement and Dishonor of the Order and Succession When the Folio turns matter of Commendation into Reproach and calls their contending for due Administration of Justice and Laws Clamors for the Breach of Magna Charta Invisos seu bene seu male facta premunt By this he sems to argue them guilty of affecting Temporal Power and intermedling unduely in Secular Affairs CHAP. XXV BUT to discharge this Imputation we will shortly remember how modest they have always been in the exercise of their Ecclesiastical Office and how faithful they have always been in former Ages to that Temporal Trust which the Laws and Constitutions of this Government hath annexed to the Spiritual Office of a Bishop The Bishops challenge nothing to belong to them of Divine Right but the Exercise of their Ministry in the Cure of Souls They do not assume the Office of themselves but are appointed thereto by the Sovereign Power and therefore the Bench of Bishops are not answerable for every one of their Order They rightfully acknowledge the Right of Investiture and Collation of Bishopricks to be in the King subject to Royal Exemptions and Priviledges from their ordinary Right From which Exemptions Mr. Selden is too forward to conclude his Doctrine of Erastianism for that the Exercise of their Function may be restrained as well in reference
and Officials to whom Custom hath given some Powers and Authoririty which cannot be check'd and controul'd by the Bishops themselves they are not to account neither are they answerable for the Lay-Zeal that hath made the Condition of Excommunicants so very afflictive For whatever some men please to think the Laity have out-done the Ecclesiasticks in the Excesses of intemperate Zeal as they are most apt and prone by their Ignorance to Superstition No man can pass under the Admonitions of the Church and be suspended from the Holy Mysteries until he hath made Satisfaction for his disorderly walking or Spiritual Pride in breaking Order but he is presently given up by the Laity to Satan I mean he suffers beyond the first Intention of the Church in her Discipline Severities enacted by the Law of the State which if reversed by that Authority that established them and a civil Process were enacted for the Ecclesiastical Courts in Causes of a Temporal Nature which are appointed by Law to their cognizance I persuade my self we should hear of no more Complaints against them in the Exercise of the Power of the Keys For we observe that they exercise the Power of the Keys with deference to the Secular Magistrates They never presume to excommunicate the Prince least they should thereby lessen his Authority and shock the Government For that all Government is established by the Honor and Reverence of the Governor according to that Saying of Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dissolution of Government doth easily follow the Contempt of the Governor As Kings are not subject to Penal Laws nor to be coerced by Penalties So true it is also what Balsamo hath noted ad 12 Canonem Synod Ancyranae Imperatoriâ unctione penitentiam tolli Neither do they presume in Reverence to the King to excommunicate his Counsellors and Ministers of State and Justice For so it was declared amongst other of the Avitae consuetudines of this Realm by the Assize of Clarendon Nullus qui de Rege teneat in Capite nec aliquis dominicorum ministrorum ejus excommunicetur nisi prius Dominus Rex conveniatur In which our Bishops are agreable to the Ancients Hildebert Cenoman after Bishop of Tours who lived about the eleventh Century says he Apud Serenissimum Regem opus est exhortatione potius quam increpatione Concilio quam praeceptis doctrinâ quam virgâ Ivo Bishop of Chartres in his Apology for communicating Gervasius saith thus Quos culpatorum Regia Potestas aut in gratiam benignitatis receperit aut mensae suae participes fecerit eos etiam Sacerdotum populorum conventus suscipere in Ecclesiastica Communione debebit ut quod principalis pietas recipit nec à Sacerdotibus Dei alienum habeatur Thus while the Bishops are not guilty of mean and unfaithful flatteries they do not participate of the pride of the Bishops of Rome or the irreverence and sawciness of a Presbyterian Consistory against their Princes and Governours Neither do they call up any criminal cause originally to their examination but pronounce the sentence of Excommunication on such onely as first are civilly convict of a crime save that matters of Incontinency are by the Common Law submitted to their Censure for that by the venerable gravity of the Judge and by the more private examination of such offences the modesty of the Nation is best preserved which is a surer defensative against the rifeness of such crimes perhaps than the sharpest punishments If they do excommunicate any man without a just cause or do not absolve the Excommunicate when he hath made his satisfactions the Bishop is compellable by the Authority of the Kings Courts to assoil the man under the pain of having his Temporalities seized into the Kings hands though he is not restored without the Episcopal Absolution For it is fit they should finally judge in their own proper Province and they must not they cannot relax the Laws of Christ nor administer the power of the Keys of binding and losing by any other measures for any power on earth But against this power of the Kings Courts they do not dispute or declare but have recognized it by their submission and they can submit to the penalties without complaining of this civil constitution Nay in the general order they approve it though in a particular case perhaps they do not because they cannot obey Our Bishops do not encroach any Temporal Authority in ordine ad spiritualia that stale pretence by which the Bishop of Rome hath arrived to his exorbitant power and by which the Scotch Presbyters would have acquired the like over Kings and Governours Their Authority always administers to and assists but never thwarts or contradicts the Temporal They have accommodated their power of the Keys to the vindication of our established Government against the attempts of Arbitrary Power to which their Allegeance to the King and the regard of the publick Peace did oblige them For such Attempts are mostly the ruin of those that make them always bring the Government it self into the greatest danger and sometimes prove the ruin both of the Government and the Nation This was required of them as an indispensible duty they being a principal part of the Government and the present Bishops Successours to all their Rights have no reason to decline their example if they have the like cause The Bishops anciently were sturdy opposers of King John when he designed to put this Kingdom into vassallage to the Pope and thereupon he writes to the Pope thus as followeth In conspectu paternitatis vestrae humiliamus ad gratias multiplices prout meliùs scimus possumus exhibendas pro cura sollicitudine quam ad desensionem nostram Regni nostri Angliae paterna vestra benevolentia indesinenter apponit licèt duritia Praelatorum Angliae inobedientia impediant vestrae provesionis effectum Pat. 17 Joannis R. M. 15. as I find it related by Mr. Petit in his book entituled The ancient Right of the Commons of England asserted About the 24 H. 3. Edmund then Archbishop of Canterbury at a Synod held at Westminster the King being present Candelis acceptis projectis ac extinctis Chartam Libertatum violantes vel sinistrè interpretantes excommunicantur Mat. Paris p. 151. About 13 years after viz. in 37 H. 3. Boniface then Archbishop of Canterbury the sentence of Excommunication is again repeated against those Qui Ecclesiasticas Libertates vel antiquas Regni Consuetudines in Chartis communium Libertatum de Foresta concessas quascunque arte vel ingenio violaverunt Fleta l. 2. c. 42. Dors Claus 37 H. 3. membr 9. Additament ad Mat. Paris p. 117. Which Sentence of Excommunication was ratified and confirmed in a Parliament held that year as followeth Noverint universi quòd Dominus Rex Angliae illustris Comes Norfolk Mareschallus Angliae H. Comes Hereford Essex J. Comes de Warewico Petrus à Sabaudia ceterÃque magnates Angliae
concesserunt in sententiam Excommunicationis generaliter latam apud Westm decimo tertio die Maii Anno Regni Regis praedicti 37 in hac forma viz. Quòd vinculo praefatae sententiae ligentur omnes venientes contra Libertates contentas in Chartis communium Libertatum Angliae de Foresta omnes qui Libertates Ecclesiae Angliae temporibus Domini Regis praedecessorum suorum Regni Angliae obtentas usitatas scienter malitiosè violaverint aut infringere praesumpserint And the Record concludes In hujus rei memoriam in posterum veritatis testimonium tam Dominus Rex quà m praedicti Comites ad instantiam aliorum populi praesentium which at that time was the style of a Parliament and the manner of passing such Acts scripto sigilla sua apposuerunt Rot. Pat. 37 H. 3. M. 12. dorso And whereas it was provided by the Confirmat Chart. c. 4.25 E. 1. and by the Statute De Tallagio non concedendo c. 4.34 E. 1. That Excommunication should twice a year be denounced against the Infringers of Magna Charta At a Synod held for the Province of Canterbury in that Kings time John Peckam Archbishop of Canterbury enjoyned the like Denunciations near four times every year Constit Provinc tit De Sententia Excom And in the Province of York it obtained three times in a year Manuale juxta usum Ecclesiae Eboracensis By which the exemplary zele of the Bishops in those times against Oppression and the violation of the common Rights and the attempts of absolute and unlimited power appears for that they prevented the Temporal Baronage and outdid the Parliament it self in defending and guarding the Government of Laws By the way we cannot but take notice of Mr. Selden his mistake in his book De Synedriis which he fell into by inserving to his beloved Erastian Hypothesis viz. That that Excommunication before mentioned in 37 H. 3. was enacted by Parliament whereas it was onely confirmed but pronounced by the Bishops though with the seeming good liking of that King so that the Power of the Keys was not usurp'd but the exercise thereof approved by Parliament according to what hath been usual as Grotius observes Vsum Clavium Divino Juri congruum poenarum injunctionem Canonibus Legibus consentaneum summae potestates solent approbare atque hoc est Imperiale Anathema Quòd non una Justiniani lege comprehensum est Which together with what hath been said by us here will serve for an Answer to what Mr. Selden hath aggested in his book De Synedriis for wresting the Keys out of the hands of the Bishops They pretend to a Jus Divinum only for that which merely concerns their Spiritual Office and I cannot for my part suspect them of holding any Opinion of a Jus divinum in Civil Offices which are of a Humane Original because I can imagine no reason for such an Opinion though I know it is by some imputed to them By a Thomas of Becket a Sibthorp and Manwaring and a few less-considering Clergy-men in an Age we are not to conclude the Judgment of the Body of our Learned Clergy They assuredly know as all men in their Wits do believe that the Government is de jure such as it is and can be no other nor rightfully admit any Alteration That God never made any Commonwealth but one by his directive Will and that only for one Nation for in these things he hath left men ordinarily in the Hands of their own Councils and to their own Prudence in which he had no regard to the absolute rightful Sovereignty of Adam's right Heir the wildest certainly of all the Paradoxes that this giddy phantastick Age hath produced The Kentish Knight should have kept his Dream to himself until he had found him out and then have brought him and his Book called Patriarcha together to the King Then I doubt not but his Majesty would have provided him his due Reward But his Book and the Publishers thereof deserve his Majesty's utmost Displeasute For we are in fear that the Government is about to be changed when Books are licensed to prove any thing Lawful in that kind And besides it makes a Charge upon our Divines that they have a good liking to the Design for that they who best understand by their Profession the jura divina have not answered it But to speak the Truth the Book is not to be answered For it is but a fine Essay how near Non-sence may be made to look like Sence and it is truly worth no man 's Undertaking But whatsoever sinister thoughts some ill affected Men to the Bishops may conceive of them we expect and with reason too that they will with equal Courage to that recorded of their Predecessors stand up for the Preservation of the Government in its true and rightful Constitution And the rather for that the true Religion their Principal Care and their Temporal Rights and Dignities will inevitably perish in the Change Nay perhaps in consequence of the very Attempt of a Change except they strenuously for their parts oppose it However their Order will certainly by their Silence and Indifferency be rendred despicable They will lose all opinion with the People of their Sincerity perform their Functions with no advantage and lose that share in the Honors and Affections of the People that will establish them bespeak them useful and necessary to the Church and state in their several Capacities in all after times That they answer their Trust and perform that Duty which they owe to the Publick in their several Offices is that we may justly expect And this they will certainly do though they should be censured as they were in K. John's days or in the Language of the Folio Author charged to be clamorous and over-busie Medlers in Matters of State and Government But to return Is it not a course Artifice in the Octavo pag. 96. that he will so willfully mistake the Question'd of the Bishops being one of the three States and representing the Matter as if the Bishops should have a Negative by themselves to stop the passing of any Bill if they are admitted to be a distinct State CHAP. XXVI WHen it is not disputed or brought into Question whether they are divided in their Voting from the Temporal Barons most certainly they never were nor was it ever disputed Though an obstinate Opinion was maintained from the Time of E. 2. in the Case of the Spencers until the Time of E. 5. in the Case of the Earl of Salisbury that the Bishops Presence was necessary in Judgments even in Capital Causes which must be allowed a clear Argument for their Right of Judgment in such Causes For the Spiritual and Temporal Lords though two States make but one House upon the Reasons afore-mentioned according to the general Understanding and Usage of former Ages But upon this Supposition he tells us of several Bills that gave furtherance to
recommend to all ingenious Gentlemen that would be rightly instructed and informed neither deceive others nor would be deceived themselves as they love truth and virtue wisdom and sober thoughts to dispise this sort of wit in others and repress it in themselves And never allow it to be used but in the hours of mirth in the Relaxations of their minds from serious Contemplations and matters grave and weighty where this prophane thing wit ought always to be shut out with care Enough hath been said for rectifying the mistakes of any true Protestant especially any Clergy-man of the Church of England which you have objected against them about Government or Parliament dissenters from the Church of England and Popery Especially when it is made apparent that these mistakes are made serviceable to the Popish Plot and the means which that party prosecute to compass and bring about the ruine of our Church But that nothing may be wanting that lyes in my poor power for pulling their Foot out of the Snare I shall more distinctly consider them First I shall desire them to consider what our Government is and where the true knowledge of it is to be found And where can it be found but in our Statute Books the Commentaries of our Law the Histories of our Government and of the Kingdom Search them if you be at leisure if you are not consult those that have read them and whose business and employment it is to understand them and you cannot fail to be informed That the King hath no power to make Laws that both Houses of Parliament must joyn with the King in making a Law It can with no more reason be concluded that the King hath the Legislative power because his Assent makes the Bills in Parliament Laws than it can because the third Unit added to two makes a Triad that the other two do not go to the making of that number when a matter 's moved from the King in Parliament to pass into a Law the Commons consent last The Letters Patents of Ed. Sir E. Cook 8 R. 3. for making the Eldest Son of a King in Succession Prince of Wales and Duke of Cornwall was confirmed as there must have been otherwise they would have been void by the House of Commons And yet we will not say that the House of Commons can make a Prince of Wales or Duke of Cornwall And yet upon no better reason than this some men will talk as if they believed themselves that the Legislative power is in the King when no King of England yet ever pretended to it but by their process of Law have punished such officious and mischievous Knaves They will tell you that the Laws are the measures of our Allegiance and the Kings Prerogative and declare the terms of Obedience and Government That a Legislative authority is necessary to every Government and therefore we ought not to want it and therefore Parliaments in which our Government hath placed the making of Laws cannot be long discontinued nor their Conventions rendred illusory and in vain which is all one as to want them That to Govern by Laws implieth that great fundamental Law that new Laws shall be made upon new emergencies and for avoiding unsufferable mischiefs to the State By the Statutes of 4 Ed. 3. c. 14.36 Ed. 3. c. 10. it is provided that Parliaments be holden once every year The Statute of this King required a Parliament every three years which being an affirmatory Law doth not derogate from those of Ed. the 3. But if the King doth not call a Parliament once in a year He neglects these Laws and if he delays calling a Parliament three years he neglects the other Law of his own time to And for that he is by the Law intrusted with the calling of Parliaments He is at liberty to call them within the times appointed And that Laws ought to be made for Redress of mischiefs that may ensue appears by the Statute of provisors 25. E. 3. cap. 23. In which we have these words Whereupon the Commons have prayed our said Soveraign Lord the King that sith the right of the Crown of England and the Law of the said Realm is such that upon the mischiefs Dammage which happeneth to this Realm he ought and is bound of the Accord of his said People in his Parliament thereof to make Remedy and Law in avoiding the mischief and dammage which whereof cometh which that King agreed to by his Royal Assent thereto given I dare be bold to say that never any Bill in Parliament was lost and wanted the Royal Assent that was promoted by the general desires of the people If Popery therefore which is the greatest mischief to us that ever threatned this Kingdom can be kept out by a Law we ought to have such a Law and nothing can hinder such a Law to be past for that purpose but want of an universal desire to have it I desire these Gentlemen to consider how they will answer it to their Saviour at the last day if they suffer his true Religion and the professors of it to be destroyed and persecuted when nothing but their desires of a thing lawful to be had and of right due was requisite to prevent it Their sufferings will be just and righteous from God if their sin occasioneth it and very uncomfortable to themselves The extent of the Legislative authority is no where to be understood but by our Acts of Parliament in which it hath been exercised and used and by such Acts that declare the extent of its power by the 13. Eliz. cap. 1. it is made Treason during that Queens Life and forfeiture of Goods and Chattels afterwards To hold maintain and affirm that the Queen by the Authority of the Parliament of England is not able to make Laws and Statutes of sufficient force and validity to limit and bind the Crown of this Realm and the descent limitation inheritance and Government thereof And this authority was exercised by Entailing the Crown in Parliaments in the times of Richard the 2d Henry the 4th Henry the 6th Edward the 4th Richard the 3d. Henry the 7th thrice in the time of Henry the 8th and upon the Marriage of Queen Mary to King Philip of Spain both the Crowns of England and Spain were Entailed whereby it was provided that of the several Children to be begotten upon the Queen one was to have the Crown of England another Spain another the Low-Countries The Articles of Marriage to this purpose were confirmed by Act of Parliament Those that are truly Loyal to our present Sovereign have reason to recognize with high satisfaction that such a power of altering and limiting the descent of the Crown is duly lodged in the King and States of the Realm For under the authority of an Act of Parliament of the Kingdom of Scotland we derive our selves to the happiness of his Government and and He his title to the Crown of Scotland which drew to