Angliae tam viri Ecclesiastici quà m Seculares And in the Writs of Summons the distinction hath been always preserved between the Praelati and the Magnates for in those to the Bishops it is cum caeteris Praelatis Magnatibus c. in those to the Temporal Lords cum Praelatis Magnatibus c. In those to the Bishops they were commanded in Fide Dilectione quibus nobis tenemini in those to the Temporal Lords in Fide Homagio or since Ed. III. in Fide Ligeancia Which shews that they were not summon'd meerly as Temporal Barons 4. The Authour of the Letter confesseth the Clergy to be one of the three Estates of the Kingdom but denies them to be one of the three Estates in Parlament From whence I argue thus Either the Clergy must be represented in Parlament or one of the Estates of the Kingdom is not at all represented there And if one of the Estates of the Kingdom be not there represented how can it be a perfect Representative So that this distinction of the Three Estates of the Kingdom and the Three Estates in Parlament unavoidably overthrows the Parlament's being a compleat Representative But in 23 H. VIII n. 33. as Mr. Petyt observes there is this passage in the Parlament-Rolls It is considered and declared by the whole Body of this Realm now represented by all the Estates of the same assembled in this present Parlament Therefore all the Estates of the Kingdom must be represented in Parlament And 1 Eliz. c. 3. The Lords Spiritual and Temporal and the Commons are said to represent in Parlament the Three Estates of the Realm From whence it follows that according to the sense of the Parlament if the Clergy be an Estate of the Kingdom as he saith they are they must be represented in Parlament or the whole Body of the Realm cannot be there represented 2. We now come to consider the weight of Authority in this matter For which I shall premise two things 1. That the whole Parlament assembled are the best Judges which are the Three Estates in Parlament and their Authority is more to be valued then that of any particular Persons whether Lawyers or others 2. That no Parlaments can give better Testimony in this matter then those which have assumed most to themselves For if there be Three Estates in Parlament and the Bishops be none then the King must be one of the Three as the Authour of the Letter insinuates throughout this discourse and the natural consequence from hence seems to be a co-ordination or that two joyning together may over-rule the third Therefore in all Reason if any Parlaments would have made the King one of the Three Estates it would have been either the Parlament 1 H. IV. which deposed one King and set up another or that 1 R. III. which disinherited the Children of Ed. IV. and set up their Uncle I shall therefore first from the Rolls of these two Parlaments shew which are the Three Estates in Parlament and from them evidently prove that the King is none but the Bishops are the Third Estate I begin with the Parlament 1 H. IV. By the Rolls it appears 1. That R. II. appointed two Procurators to declare his Resignation of the Crown coram omnibus Statibus Regni before all the States of the Kingdom From whence it unavoidably follows 1. that the King was none of them 2. that the Estates of the Kingdom and the Estates in Parlament are the same thing 2. Among the Articles against R. II. one is concerning the Impeachment of Tho. Archbishop of Canterbury coram Rege omnibus Statibus Regni before the King and all the Estates of the Realm The King then was none of the Estates 3. The Commissioners for the sentence of Deposition are said to be appointed per Pares Proceres Regni Anglie Spirituales Temporales ejusdem Regni Communitates omnes Status ejusdem Regni representantes by the Peers and Lords Spiritual and Temporal and the Commons of the Kingdom representing all the States of the Kingdom Where observe 1. The Bishops are called Peers as well as the Temporal Lords 2. The Estates of the Parlament are to represent all the Estates of the Kingdom 3. The Three Estates in Parlament are the Lords Spiritual the Lords Temporal and the Commons of the Realm and Fabian expresly calls them the Three Estates of this present Parlament representing the whole Body of the Realm In the Rolls of Parlament 1 R. III. it is recorded that before his Coronation certain Articles were deliver'd unto him in the name of the Three Estates of the Realm of England that is to say of the Lords Spiritual and Temporal and of the Commons by name c. Now forasmuch as neither the said Three Estates neither the said Persons which in their name presented and deliver'd as it is afore said the said Roll unto our said Sovereign Lord the King were assembled in form of Parlament divers Doubts have been moved c. Now by the said Three Estates assembled in this present Parlament and by Authority of the same be ratified and enrolled c. Upon which Mr. Pryn himself makes this Marginal Note The Three Estates must concurr to make a Parlament no one or two of them being a full or real Parlament but all conjoyned But lest I should seem to take advantage onely of these two Parlaments I shall now shew this to have been the constant sense of the Parlaments as will appear by these following Records In 1 H. VI. n. 12. All the Estates of the Realm are said to be assembled in Parlament 3 H. VI. n. 19. the Three Estates assembled in this present Parlament 6 H. VI. n. 24. the Duke of Gloucester desired an explanation of his Power as Protector in the Answer drawn up by the Lords appointed for that purpose it is alledged that H. V. could not by his last Will nor otherwise alter change or abroge without the Assent of the Three Estates nor commit or grant to any Person Governance or Rule of this Land longer then he lived Nevertheless they adde It was advised and appointed by the Authority of the King assenting the Three Estates of this Realm Which shews how far the King was from being thought one of the Three Estates in Parlament at that time 10 H. VI. n. 17. Ralph Lord Cromwell put in a Petition to the Parlament that he was discharged the Office of King's Chamberlain in a way contrary to the Articles for the Council sworn 8 H. VI. coram tribus Regni Statibus before the Three Estates of the Realm as they were assembled in Parlament which appears by the Record 8 H. VI. n. 27. 11 H. VI. n. 10. The Duke of Bedford appeared in Parlament and declared the Reasons of his coming coram Domino Rege tribus Regni Statibus before the King and the Three Estates of the Realm as it is in the Record but
in the same circumstances the Apostles were when the Christian Church was to be planted in the World and so few persons as the 12 Apostles made choice of for that Work Is there no difference to be made between a Church constituted and settled and incorporated into the Commonwealth and one not yet formed but labouring under great difficulties and making its way through constant persecutions May it not be as well argued that Bishops are not to stay in one Countrey nor to have any fixed habitation because the Apostles passed from place to place preaching the Word of God Doth not the Authour of the Letter himself confesse that the Clergy are one of the Three Estates of the Kingdom and by the Act 8 Eliz. 1. the Clergy are called one of the greatest States of this Realm And is there not then great Reason that those who are the chief part of it as he confesseth the Bishops to be should have a share in affairs that concern the whole Nation And would it not seem strange to the Christian World that we alone of all the Kingdoms of Europe should exclude the Bishops from having an equal Interest with the other Estates in Parlament For it were easy to prove from unquestionable Testimonies that as soon as the Christian Religion was well settled in any of these Northern Kingdoms the Bishops were admitted into all the publick Councils and have so continued to this day where the Convention of the Estates hath been kept up Bohemia onely excepted since the days of Sigismond I begin with France where Hincmarus saith there were two great Councils every year one of the States of the Kingdom for ordering the Affairs of the ensuing year and redressing of Grievances and in these the Bishops were always present and the other of the King's Council which managed the intervening Affairs and into this the chief of the Bishops were chosen It were endless to repeat the several Parlaments in France in the time of the Merovingian and Caroline Race wherein Laws were passed and the great Affairs of the Kingdom managed by the Bishops Noblemen and others Those who have looked into the ancient Annals and Capitulars of France cannot be ignorant of this There is one thing remarkable to our purpose in the famous Council of Frankford which opposed the Worship of Images so stoutly viz. that after the matters of Religion were agreed then according to the Custom of that Age the other Estates being present they proceeded to other matters and then Tassilo Duke of Bavaria was brought upon his Knees for Treason and the Cause of Peter Bishop of Verdun was heard who was likewise accused of Treason and there purged himself Concerning both which Cases there are 2 Canons still extant among the Canons of that Council and in another the Bishops are appointed by consent of the King to doe Justice in their several Dioceses And that they had not onely a share in the Legislative but in the Iudiciary part appears by one of the ancient Formulae in Marculphus where it is said that the King sate in Judgment unà cum Dominis Patribus nostris Episcopis vel cum plurimis Optimatibus nostris vel in the language of that Age is the same with This was the Palatine Court where Bignonius saith the greater Causes were heard the King himself being present or the Comes Palatii Episcopis Proceribus adsidentibus the Bishops and Lords sitting in Iudicature together with him And this was not onely the Original of the Parlament of Paris as a standing Court of Iudicature but the like in England was the true foundation of the Supreme Court of Iudicature in the House of Peers So that in the eldest and best times of France after Christianity had prevailed there neither consultation about publick Affairs nor administration of Justice were thought inconsistent with the Function of Bishops In Spain during the Gothick Power all the great Affairs of the Kingdom and even the Rights of their Princes were debated and transacted by the greatest of the Clergy and Nobility together as may be seen in the several Councils of Toledo in that time in the case of Suintilas Sisenandus and others And in one of them it is said that after they had dispatched matters of Religion they proceeded ad caeterarum Causarum negotia to the handling of other Causes In the 13. Council of Toledo the Case of Impeachments of Treason is brought in and Rules set down for due proceedings therein And yet from one of these Councils of Toledo it is that all the stir hath been made in the Canon-Law about Bishops not being present in cases of bloud In Germany the first Laws that were ever published were those by Lotharius II. in Comitiis Regni saith Goldastus and there were present 33 Bishops 34 Dukes 72 Counts besides the People And by the Matriculation-Roll of the States of the Empire it appears what a great Interest the Clergy have preserved ther in from the first times of the prevalecy of Christianity there And Arumaeus a considerable Protestant Lawyer of the Empire saith the Bishops of Germany sit in a double capacity in the Diets both as Bishops and as Princes of the Empire And he commends the prudence of that Constitution with respect both to Iustice and the Honour and Safety of Religion For the Kingdom of Bohemia Goldastus a learned Protestant saith that there as in all other well-constituted Kingdoms among Christians there were 3 Estates of Prelats Nobles and Commons and this continued he saith from the time Christianity was received till the days of Sigismond No sooner was Christianity received in Hungary but their Princes Stephanus and Ladislaus called their great Councils of their Prelats and Nobles and the Laws made in the Concilium Zabolchianum were passed by the King with all his Bishops and Nobles and with the consent of the whole Clergy and People In Poland Starovolscius saith that their Ancestours after they received Christianity out of regard to Religion gave the Bishops the first place in the Senate and admitted the Clergy to the great Offices of the Kingdom And Sigismond in his Constitution saith the States of Poland consist of the Bishops Barons and Delegates called Nuntii terrestres In the Northern Kingdoms Adamus Bremensis saith that the Bishops after the People received Christianity were receiv'd into their publick Councils And Loccenius reckons up among the several Estates the Bishops Nobles Knights and Deputies of the Country and Cities And it appears by the Hirdstraa or the ancient Laws of Norway the Bishops as well as Nobility were present in the Convention of the States and all publick Councils The like might be proved here in the Saxon times from the Conversion of Ethelbert downward This is so very evident that he must blind his eyes that doth not see it if he doth but cast them on the History of those
Answer was given yet both were condemned to die The Bishop of Norwich was charged with several Miscarriages and Misdemeanours saith he why might not the Bishops be present at this Trial To that he saith he was charged with one Capital Crime viz. betraying Graveling to the French but he confesseth he cleared himself of this before they came to Iudgment and yet he would have the Bishops excluded at this Iudgment and that of Sir William Elmham Sir Thomas Trivet and others but confesses they were present at the Trial and Iudgment of Mich. de la Pool Let us then see what kind of Trial this was He was impeached in the name of the Commons of England and 6 Articles were exhibited against him The main were concerning defrauding the King and misimploying the Aids granted to the King last Parlament whereby much mischief happen'd to the Kingdom as may appear by the Rolls and the Articles printed in Knighton Upon these Articles the Record saith that the Commons prayed that Iudgment of Death might pass upon him as it did upon Sir William de Thorp for receiving 20 li. by way of Bribery And yet this Iudgment of Sir William de Thorp is one of the Precedents against the Bishops being present when he allows that they were present at the whole Trial of this Mich. de la Pool when a great Minister of State was so hotly charged by the Commons for offences of so great a nature and which in their Judgment deserved no less then Death From whence it follows by his own confession that the Bishops may be present when the Ministers of State are impeached by the Commons of such Crimes which in their Iudgment deserve no less then Death 2. In Acts of Attainder when the Houses proceed in a Legislative way he grants the Bishops may be present and yet if some of his Precedents signifie any thing they prove they ought not to be present at the passing of them As 1. In the Case of Roger Mortimer and others accused and tried in Parlament 4 Ed. III. He confesseth the Roll cannot be read and therefore referrs to 28 Ed. III. where Roger of Wigmore desires that the Attainder may be examin'd which was reversed by Act of Parlament and therefore we may justly suppose the Iudgment given against him was ratified in Parlament And some of our Historians say he was condemned judicio Parlamenti And in the Petition of Roger Wigmore he prays that the said Statute and Iudgment may be reversed and annulled If therefore the Prelats could not be present here then they are not to be present in the Legislative way If they were present in Acts of Attainder then this general Negative way of arguing proves nothing for then the Bishops were comprehended under the name of Peers which without any Reason he saith the Bishops cannot pretend to be when it is notorious that they challenged it in Parlament 11 R. II. and it was then allowed as well as their Protestation 2. In the case of the Murther of Iohn Imperial 3 R. II. an Act of Parlament passed to make it Treason and he proves the Bishops had no Vote in it nor were present at the preparing it And yet he confesses that the Bishops have a right to sit in all Acts of Attainder because they sit then in their Legislative capacity Therefore these Negative Precedents prove nothing 2. The insufficiency of these Negative Precedents appears by this that we can make it appear by good Testimonies that the Bishops have been often comprehended under the general Titles of Grantz Peers and Lords of Parlament without any express mention made of them And because the great force of many of his Testimonies lies wholly in this that the Bishops are not comprehended under the names of Grantz Seigneurs and Peers I shall endeavour to make it clear beyond exception that if the Precedents must be determined by the general words all the advantage lies on the Bishops side It is certain that in elder times the Baronagium Anglie did take in all the Lords of Parlament both Spiritual and Temporal But I betake my self to the expressions used in the Records and because the matter of the debate is confined within the times of Ed. II. and IV. I shall take notice of the language of Parlament within that time reserving that of their Peerage to the proper place for it I begin as the Authour of the Letter doth with 4 Edw. III. and in that year n. 6. the Record runs thus Et est assentu accorde per nostre Seigneur le Roi tout le Grantz en plcyn Parlement where a Law was passed concerning Trial by Peers and in the passing of a Law our Authour allows the Bishops to be present But it is more plain n. 12. Accorde per nostre Seigneur le Roi les Grantz de mesinme le Parlement It is agreed by the King and the Great ones in Parlament But that the Bishops are comprehended under theseGrantzis evident for it is there said that the Petitions of Edmund Earl of Kent and Margaret Countess of Kent to which that Agreement referrs were read before the King the Prelats the Counts the Barons and other Grantz of the Parlament In the same year n. 14. we meet with les Preres des Prielatz autres Grantz the Petition of the Bishops and other Great men and then it follows Nostre Seigneur le Roi en pleyn Parlement per assent accord prieres conseal des ditz Prelatz autres Grantz Our Lord the King in full Parlament by the assent accord petition and advice of the said Prelats and other Grantz Which shews that they are some of the Grantz of Parlament 5 Ed. III. n. 3. Touz les Prelatz autres Grantz n. 13. Grantz in general is used in the Debate between the Abbot of Crowland and Sir Thomas Wake and n. 15. le Roi as autres Grantz en pleyn Parlement n. 16. Item fu accorde per le Roi touz le Grantz en mesme le Parlement auxibien per Prelatz come per autres It was agreed by the King and the Great men of the Parlament as well by the Prelats as others Nothing can be plainer then that here the Bishops are called Grantz as well as the other Lords of Parlament 6 Ed. III. n. 1. Devant nostre Seigneur le Roi touz le Prelatz autres Grantz The Articles were read before the King the Prelats and other Great men If the Bishops had not been comprehended under Grantz the Record would have onely used Grantz and not autres Grantz But the same expression is again used n. 5. In the second part of the Rolls of that year n. 1. we find three several ways of expressing the Persons then present the first les Prelatz Countes Baronns autres Grantz du Parlement the next is queux Prelatz autres Grantz the third is touz le Grantz en mesme
not mention'd in the Abridgment n. 11. Domino Rege tribus Regni Statibus in presenti Parlamento existentibus the King and the Three Estates of the Realm being present in Parlament Nothing can be plainer then that the King is none and that the Three Estates of the Kingdom are the Three Estates in Parlament 11 H. VI. n. 24. Lord Cromwell Treasurer exhibits a Petition in Parlament wherein he saith the estate and necessity of the King and of the Realm have been notified to the Three Estates of the Land assembled in Parlament In an Appendix annexed to the Rolls of Parlament that year the Duke of Bedford saith in his Petition to the King how that in your last Parlament yit liked your Highness by yadvis of Three Estates of his Land to will me c. 23 H. VI. n. 11. Presente Domino Rege tribus Regni Statibvs in presenti Parlamento existentibus c. 28 H. VI. n. 9. Domino Rege tribus Regni Statibus in pleno Parlamento comparentibus c. After these I shall insist upon the Precedents cited by the Authour of the Letter himself viz. the Ratification of the Peace with France by the Thrée Estates 9 H. V. and 11 H. VII which he alledges as an extraordinary thing that the Three Estates joyned in these Transactions whereas in truth it was nothing but a Ratification of the Peace in Parlament and consequently those Three Estates of the Kingdom are the Three Estates of Parlament For the Parlament was then sitting at both these Ratifications and no other Assembly of the Thrée Estates was ever known in England Walsingham saith that H. V. called aParlament which was sitting at that time for the King kept S. George's Feast at Windsor that year from thence he went to the Parlament at London which ended within a Month and the Ratification of the Peace bears date May 2. Judge then whether these were not the Three Estates in Parlament But to prove this more fully It seems by 23 H. VI. n. 24. that a Statute was made in the time of H. V. that no Peace should be made with France without the consent of the Three Estates of both Realms which was then repealed But whom they meant by the Thrée Estates here in the time of H. VI. appears by 28 H. VI. n. 9. when the Chancellour in the presence of the King gave thanks to the Three Estates and prorogued the Parlament where it is plain the Three Estates in Parlament were meant and that the King could be none of them In 38 H. VI. n. 38. the Chancellour again in the presence of the King and of the Three Estates having given thanks to all the Estates dissolved the Parlament But that which puts this matter out of doubt is that in the Parlament 1 H. VI. the Queen Dowager in her Petition mentions the Ratification made in Parlament 9 H. V. and saith it was not onely sworn by the King but by the Thrée Estates of the Kingdom of England Cest assavoir les Prelatz Nobles Grands per les Comuns de mesm le Roialm Dengleterre that is to say by the Prelats Nobles and other Grandees and by the Commons of the Realm of England as appears more fully saith that Petition by the Records and Acts of the said Parlament And the King there declares in four several Instruments that the said Articles of Peace were approved and ratified by Authority of Parlament in these words Qui quidem Pax Tractatus conclusio concordia omnesque Articuli contenti in eisdem in Parlamento dicti Patris nostri apud Westm. 2 0 die Maii A. R. 9. tento Auctoritate ejusdem Parlamenti approbati laudati auctorizati acceptati Nothing can be plainer from hence then that the Three Estates of the Kingdom were no other then the Three Estates in Parlament And the same appears by another Petition of the same Queen 2 H. VI. n. 19. For latter Times I shall instance onely in the Parlament 1 Eliz. c. 3. wherein the Lords Spiritual and Temporal and Commons declare that they do represent in Parlament the Thrée Estates of the Realm From whence it follows 1. That the Three Estates of the Kingdom must be represented in Parlament 2. That the Lords Spiritual and Temporal and the Commons do represent those Three Estates of the Kingdom and therefore are the Three Estates in Parlament 3. That the King can be none of the Estates in Parlament because he doth not represent any of the Estates of the Kingdom And it is a wonder to me that any man who considers the Constitution of the Government of Europe and how agreeable it was in all the Kingdoms of it as to the Assemblies of the Three Estates could ever take the King to be one of the Three Estates in Parlament For the Question would seem ridiculous to persons of any other Nation if we should ask them whether the King was reckon'd among the tres Ordines Regni For by the Three Estates they all mean the Three Ranks of men the Clergy Nobility and Commonalty But the Authour of the Letter could not deny that these were the Three Estates of the Kingdom but he saith the Three Estates of Parlament are clean another thing which I may reasonably suppose is sufficiently disproved by the foregoing Discourse But he quotes several Authorities for what he saith which must now be examined and will appear to be of no weight if compared with the evidence already given on the other side The first Authority is of King Iames in his Speech at the Prorogation of the Parlament 1605. wherein he saith the Parlament consists of a Head and a Body the King is the Head the Body are the Members of the Parlament This Body is subdivided into two parts the Vpper and the Lower House The Vpper consists of the Nobility and the Bishops the Lower of Knights and Burgesses The force of the Argument lies in King Iames his making the Bishops but a Part of the Vpper House but that this doth not exclude their being a Third Fstate I prove by a Parallel Instance In 5 H. IV. the Bishop of London being Chancellour compared the Parlament to a Body as King Iames did but he made the Chùrch the Right Hand the Temporal Lords the Left Hand and the Commonaltie the other Members yet presently after he calls these the several Estates which the King had called to Parlament But that the Bishops sitting in the same House with the Temporal Lords doth not hinder their being a distinct Estate will appear when we come to answer his Reasons And for King Iames his sense as to this matter we may fully understand it by this passage in his Advice to his Son As the whole Subjects of our Countrey by the ancient and fundamental Policy of our Kingdom are divided into Three Estates c. These words are spoken of the Kingdom of Scotland but the ancient
In his absence the People refuse to pay the Taxes and the Lords combine together and all things tend to an open Rebellion His Son Ed. II. calls a Parlament at London and promises a Confirmation of the Charter and that no Taxes should hereafter be raised either on Clergy or Laiety without their consent Which being sent over Edw. I. confirmed it with his own Seal which was all done within the compass of this year But he again ratified it in the Parlament 27 Ed. I. So that nothing was done in that Parlament at S. Edmondsbury but granting a 12 th of the Laiety to the King And when the great Laws were passed the King and Clergy were reconciled and they sate in Parlament And the Archbishop of Canterbury fell into the King's displeasure afterwards for being so active a promoter of them The summe then of this mighty argument is that the Lords and Commons once granted their own Subsidies without the concurrence of the Clergy therefore the Clergy are no essential part of the parlament 3. The Reason assigned in Keilway's Reports why the King may hold a Parlament without the Bishops is very insufficient viz. because they have no place in Parlament by reason of their Spiritualty but by reason of their Temporal possessions The insufficiency of which Reason will appear by two things 1. That it is not true as appears by this that the Clergy are one of the Estates of the Kingdom and all the Estates of the Kingdom must be represented in Parlament 2. Were it true it is no good Reason For why may they be excluded because they sit on the account of their Baronies Where lies the force of this Reason Is it because there will be Number enough without them That was the Rump's Argument against the Secluded Members And I hope the Authour of the Letter will not justify their Cause Or is it because they hold their Baronies by Tenure So did all the ancient Barons of England and why may the King hold his Parlament with the other Barons without the Bishops and not as well with the Bishops without the other Barons Which I do not see how it can be answer'd upon those grounds Suppose the Question had been thus put Since all the ancient Lords of Parlament were Barons by Tenure and Parlaments were held for many Ages without any Barons by Patent or by Writ why may not the King hold his Parlament after the ancient way onely with Barons by Tenure I do not see but as good a Reason may be given for this as that in Keilway's Reports All that I plead for is that our good ancient and legal Constitution of Parlament may not be changed for the sake of any single Precedents and rare Cases and obscure Reports built upon weak and insufficient Reasons For as the Authour of the Letter very well saith Consuetudo Parlamenti est Lex Parlamenti The constant Practice of Parlaments and not one single Instance is the Law of Parlaments And suppose that Precedent of 25 Ed. I. as full as could be wished in this case yet I return the answer of the Authour of the Letter in a like case This is but one single Precedent of a Parlament without Bishops against multitudes wherein they were present it was once so and never but once And can that be thought sufficient to alter and change the constant course and practice of Parlaments which hath been otherwise Nothing now remains but a severe reflexion on the Popish Bishops for opposing the Statute of Provisors and the several good Acts for the Reformation But what this makes against the Votes of Protestant Bishops is hard to understand If he thinks those could not make a good Third Estate in Parlament who took Oaths to the Pope contrary to their Allegeance and the interest of the Nation so do we If he have a great zeal for the Reformation so have all true Members of the Church of England who we doubt not will heartily maintain the Cause of our Church against the Vsurpations of Rome though the heat of others should abate For did not our Protestant Bishops seal the Reformation with their Bloud and defend it by their admirable Writings What Champions hath the Protestant Religion ever had to be compared in all respects with our Cranmer â—idley Iewel Bilson Morton Hall Davenant and many other Bishops of the Church of England And notwithstanding the hard fortune Archbishop Laud had in other respects not to be well understood in the Age he lived in yet his enemies cannot deny his Book to be written with as much strength and judgment against the Church of Rome as any other whatsoever I shall conclude with saying that the Clergy of the Church of England have done incomparably more Service against Popery from the Reformatition to this day then all the other Parties among us put together And that the Papists at this time wish for nothing more then to see men under a pretence of Zeal against Popery to destroy our Church and while they cry up Magna Charta to invade the legal Rights thereof and thereby break the first Chapter of it and from disputing the Bishops presence in Cases Capital to proceed to others and so by degrees to alter the ancient Constitution of our Parlaments which will unavoidably bring Anarchy and Confusion upon us from which as well as Popery Good Lord deliver us THE END Letter p. 1. Lett. p. 93. Lett. p. 3. 118. Lett. p. 66. P. 21. Lett. p. 2 3. Lett. p. 5. Lett. p. 86. Hincmar Epist de Ordine lalatii Concil Franc. c. 3. 9. Marculph Form l. 1. c. 25. Not. in Marc. p. 287. Concil Tolet 4. c. 75. 5. c. 7. 6. c. 17. 8. in Praef. 12. c. 1. 17. c. 1. 17. c. 1. Cont l. Tolet 13. c. 2. Rer. Aleman To. 2. Cod. Leg. Antiq. B. 362. Arumae de Comitiis â— 35. c. 4. â— 98. Goldast Bohem l. 5. c. 1. Bonfin dec 2. l. 1. Decret Ladiss p. 12. Starovolse â—olon p. 2â—5 Herburt Stat. Regni Pol. p. 263. Adam Brem de situ Dan. n. 85. Loccen Antiq Sâ—eco Goth. c. 8. Ius Aulicum Nâ—rveg c. 3. c. 36. Lett. p. 3 4. Stat. Merton c. 9. 20 H. 3. Dissert ad Flet. c. 9. § 2. Soz. hist. l. 1. c. 9. Capitul Carol Ludov l. 6. c. 281. ed. Lindenb c. 366. ed. Baluz Cod. Just. de Epise Audient l. 1. tit 4. c. 8. Cod. Theodos l. 16. tit 11. c. 1. Greg. NysS vit Greg. Basil. in ep Socr. l. 7. c. 37. Ambros. de Offic. l. 2. c. 24. Aug. ep 147. in Ps. 118. conc 24. Jac. Goth. in cod Theod. ad Extrav de Episc. judicio Concil Sardic c. 7. Balsam in Can. 4. Concil Chalced. Auth. Collat 1. tit 6. Novell 6. c. 2. Justin. Cod. l. 1. tit 3. c. 41. Cod. Theod. l. 16. tit 2. n. 38. Lindwood l. 3. de Testam Lett. p. 4. Lett. p. 68. Lett. p. 69. Lett. p.
Power about the Liberties of Church-men This was carried on from the time that William I. brought them into Subjection by their Baronies his Sons stood upon the Rights of the Crown whilst Anselm and his Brethren struggled all they could but to little purpose till after the death of H. I. Then Stephen to gratifie the great Prelates by whose favour he came to the Crown yielded all they desired but he soon repented and they were even with him for it Malmsbury takes particular notice that he yielded they should have their Possessions free and absolute and they promised onely a conditional Allegeance to him as long as he maintained the Liberties of the Church When K. Stephen broke the Canons as they said by imprisoning 2 Bishops the Bishop of Winchester and his Brethren summon'd him to answer it before them in Council and there declared that the King had nothing to doe with Church-men till the Cause was first heard and determined by themselves All his time they had no regard to his Authority when it contradicted their Wills and when the Peace was made between Him and H. II. Radulphus de Diceto takes notice that the Power of the Clergy increased by it In this state H. II. found things when Gul. Neuburgensis saith the great business of the Church-men was to preserve their Liberties Upon this the great Quarrel between Him and Becket began this made the King search what the Rights of the Crown were which his Ancestours challenged to these he was resolved to make Becket and his Brethren submit For this purpose the Parlament was called at Clarendon and after great debates the 16 Constitutions were produced which were those the King was resolved to maintain and he made the Bishops as well as others swear to observe them Now when the rest of them relate to some Exemptions and Privileges which the Church-men challenged to themselves about their Courts Excommunications Appeals and such like and which the King thought fit to restrain them in From whence in Becket's Epistles it is said those Constitutions were framed ad ancillandam Ecclesiam to bring the Church in subjection as Baronius shews out of the Vatican Copy And Fitz-Stephen saith All the Constitutions of Clarendon were for suppressing the Liberty of the Church and oppressing the Clergy I say considering this is there not then great Reason to understand this 11 th Constitution after the same manner viz. that notwithstanding K. Stephen's Grant H. II. would make them hold by Baronies and doe all the Service of Barons in the King's Courts as other Barons did and he would allow them no other Privilege but that of withdrawing when they came to Sentence in a Case of Bloud What is there in this sense but what is easy and natural and fully agreeable to the state of those Times whereas there is not the least foundation for the pretence of the Bishops affecting to be present in all Causes which the King must restrain by this Constitution This sense of it is not onely without ground but is absolutely repugnant to all the History of that Age. For if this Constitution was intended to restrain the Bishops from trying Causes of Bloud then the Bishops did desire to be present in those Causes and the King would not suffer them Whereas it is evident that the Bishops pretended scruple of Conscience from the Canons that they could not be present but in truth stood upon their Exemption from the Service of Barons which they call'd Ecclesiastical Slavery And therefore that could not be the sense of the Constitution to restrain them in that which they desired to be freed from and which by this Constitution of Clarendon was plainly forced upon them against their wills For Lanfranc had brought the Canon of the 11 th Council of Toledo into England That no Bishop or Clergy-man should condemn a man to death or give vote in the Sentence of Condemnation at which Council were present 2 Archbishops 12 Bishops and 21 Abbots And before H. II ' s time this Canon of Toledo was received into the Body of the Canon-Law made by Ivo Burchardus Regino and Gratian who lived in the time of K. Stephen and when they saw such a Canon so generally received is there not far greater Reason to think they desired to withdraw then that they should press to be present and the King restrain them But the Constitution is so framed on purpose to let them understand that the King expected in all Iudgments they should doe their Duty as other Barons but lest they should think he purposely designed to make them break the Canons he leaves them at liberty to withdraw when Sentence was to be given So that I can hardly doubt but the Authour of the Letter if he please calmly to reflect upon the whole matter will see reason to acknowledge his mistake and that this Constitution was so far from intending to restrain the Bishops from all Iudicature in Cases of Bloud that on the contrary it was purposely framed to oblige them to be present and to act in such Causes as the other Barons did at least till the Cause was ripe for Sentence which last Point the King was content to yield to them out of regard and reverence to the Canons of the Church For the words of the Law are not words of Prohibition and restraint from any thing but of Obligation to a Duty which was to be present and serve in the King's Courts of Iudicature in like manner as the other Barons did From all which it is evident I think beyond contradiction that the Occasion of this Law was not the Ambition of the Prelates as the Authour of the Letter suggests to thrust themselves into this kind of Iudicature but an Ambition of a worse kind though quite contrary viz. under a pretence of Ecclesiastical Liberty and Privilege to exempt themselves from the Service of the King and Kingdom to which by virtue of their Baronies they were bound sicut caeteri Barones as well as the other Barons And therefore it is so far from being true that the Bishops exercise of this Iurisdiction together with the Temporal Lords is a Relique of Popery and one of the Encroachments of the Clergy in those Times of Ignorance and Usurpation as some well-meaning Protestants are now made to believe that on the contrary the Exemption of the Clergy from this kind of Secular Iudicature was one of the highest Points of Popery and that which the Pope and his Adherents contested for with more zeal then for any Article of the Creed This was one of those Privileges which Thomas Becket said Christ purchased for his Church with his bloud and in the obstinate defence whereof against the King he himself at last lost his life And now to put the matter beyond all doubt I appeal to any man skill'd in the History of those Times whether Thomas Becket opposed the Constitutions of Clarendon to the
And the Bishops ' did not deny this but used prudential arguments to disswade the King from proceeding any farther the Appeal being made and that it was for the good of King and Kingdom for them to submit to the Prohibition And the Bishop of Chichester told Becket he made them go against the Constitutions of Clarendon which they had so lately sworn to observe in these remarkable words Quo contra nos venire compellitis interdicendo nè ei quod de nobis exigit adesse possumus Iudicio By which we see this Constitution is indeed an irrefragable Testimony but it is to prove that Bishops are bound to be present even in Cases of Treason when the King summons them And as to the case of Becket's Treason the same Bishop told him it lay in breaking his Oath about those Constitutions wherein the Rights of the Crown were declared And if this be not Treason by the Common Law Sir Edward Cook 's Preface to his fifth Book of Reports signifies nothing The late Authour of the Peerage and Iurisdiction of the Lords Spirituall takes it for granted that by the Constitution of Clarendon the Iurisdiction of Bishops was limited that it should not extend ad diminutionem membrorum vel ad mortem But the foregoing discourse hath I suppose made it evident that those words contain no Limitation but a Privilege or Indulgence to them with respect to the Canon-Law And he takes very needless pains to prove this to be declarative of the Common Law and that the Meeting at Clarendon was a full Parlament which are very much besides the business All that looks towards this matter is that he saith this Statute was confirmed by a Council at Westminster for which he cites Rog. Hoveden's Authority But I wish he had produced the Canon entire as he there found it for then the sense of it would have been better understood In this Synod at Westminster Richard Archbishop of Canterbury produceth several ancient Canons which he thought fit to be observed here Among the rest he mentions that of the Council of Toledo The words are these His qui in Sacris Ordinibus constituti sunt judicium sanguinis agitare non licet here he makes his c. and leaves out the Prohibition which declares the meaning and extent of this Canon Vnde prohibemus nè aut per se membrorum truncationes faciant aut inferendas judicent Wherefore we forbid them either to dismember any persons themselves or to give Iudgment for the doing of it Both which were practised in Spain in the time of the Council of Toledo which was the occasion of this Canon And then follows the Sanction of Deprivation if men did otherwise And what now doth this signifie more to the Constitution of Clarendon then that the same Canons were now revived which gave the occasion to that permission of withdrawing when the Sentence came to be pronounced as to dismembring or loss of Life But he urges farther about this Constitution that it must be so understood as to exclude the Bishops from all antecedent and praeliminary things which do relate or tend ad diminutionem c. or else saith he it must be onely the exemption of the Prelats from doing the Office of Executioners which is Non-sense Why so though it be not the whole sense of the Canon yet surely it is sense But he might have thought of giving Sentence which the Canons forbid and is different from Execution and doth not exclude the Bishops presence at Praeliminaries The Constitution of Westminster he saith is plainer Non debent agitare judicium sanguinis which he saith excludes the exercise of any Judicial Power in Cases of Bloud Whereas it appears by the Prohibition there extant nothing is forbidden but giving Sentence at which the Constitution of Clarendon allows them to withdraw 2. The second time we are told that the Exclusion of the Bishops in Cases Capital rereived a Confirmation in Parlament was the 11. of R. II. When the Archbishop and the other Bishops upon their withdrawing then from the Parlament in regard matters of Bloud were there to be agitated and determined in quibus non licet alicui eorum personaliter interesse as they say in which it was not lawfull for any of them to be present in person did therefore enter a Protestation with a Salvo to their Right of Sitting and Voting in that and all other Parlaments when such matters were not in Question which Protestation of theirs was at their desire enrolled in full Parlament by the King's Command with the Assent of the Lords Temporal and Commons So that it is here said to be a perfect and compleat Act of Parlament and if it had not been a Law before would then have been made one This is the substance of what is more largely insisted on in another place and what strength is there added shall be duely considered To understand this business aright it will be necessary to set down the Protestation it self at large as it is taken out of Courtney's Register and the Parlament-Rolls and then examine the Points that do arise from thence The Protestation runs thus In Dei nomine Amen Cùm de jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit necnon caeteros suos Suffraganeos Confratres Coëpiscopos Abbatésque Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertineat in Parlamentis Regis quibuscunque ut Pares Regni praedicti personaliter interesse ibidémque de Regni Negotiis aliis ibidem tractari consuetis cum caeteris dicti Regni Paribus aliis ibidem jus interessendi habentibus consulere tractare ordinare statuere diffinire ac caetera facere quae Parlamenti tempore ibidem imminent facienda in quibus omnibus singulis Nos Willielmus Cantuar. Archiepiscopus totius Angliae Primas Apostolicae sedis Legatus pro nobis nostrisque Suffraganeis Coëpiscopis Confratribus bus nec non Abbatibus Prioribus ac Praelatis omnibus supradictis protestamur eorum quilibet protestatur qui per se vel per Procuratorem hîc fuerit modò praesens publicè expressè quòd intendimus intendit volumus ac vult quilibet eorum in hoc praesenti Parlamento aliis ut Pares Regni praedicti more solito interesse consulere tractare ordinare statuere diffinire accaetera exercere cum caeteris jus interessendi habentibus in eisdem statu ordine nostris eorum cujuslibet in omnibus semper salvis Verùm quia in praesenti Parlamento 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 hîc praesens etiam protestatur quòd non intendimus nec volumus sicuti de jure non
the force of a Law because it may be destroy'd by the Act of the Parties themselves If therefore the Bishops did afterwards act contrary to this Protestation they took away all the force of it 2. The particular nature of this Protestation is such as doth most evidently preserve their Right to be personally present on the account of their Peerage and Baronies and the great design of a Protestation is to preserve a Right notwithstanding some Act which seems to destroy it as thier absenting themselves on the account of the Canons might seem to doe But of this already 3. We are now to consider the third Point Whether on supposition that on the account of the Canon-Law the Bishops had always withdrawn in the time of Popery that had continued in force still since the Reformation I think not upon these Reasons 1. Because the Canon-Law was founded upon a Superstitious fancy viz. that if Clergy-men be present in Causes of Bloud they contract Irregularity ex defectu perfectae Lenitatis as the excellent Canonist Navarr saith because it argues a want of perfect Lenity But if we consider the cases they allow which do not incurre Irregularity and those they do not allow which do incurre it we shall find all this stir in the Canon-Law about this matter to be onely a Superstitious kind of Hypocrisy 1. If a man in Orders gives another man Weapons without which he could not defend himself and by those weapons he maims him that assaulted him this doth not make him irregular but if he kills him it doth and yet the Canons make the case of Dismembring and Death the same 2. It makes a man act against the Law or Nature to prevent Irregularity For they say if it be for the defence of Father or Mother or preventing the ruin of his Country although the Cause be never so just a Clergy-man that dismembers or takes away another's life is irregular 3. If a Clergy-man discovers Treason or accuses another for Treason without a Protestation that he doth not doe it with a design to have him punished he is irregular but if he makes that Protestation although death follows he is not 4. If a Clergy-man be in an Army and perswades the Souldiers to fight manfully and kill as many as they can this doth not make him irregular ny although he beats them if they will not fight but if he happens to kill an enemy himself then he is 5. If he gives a Souldier a Sword or a Gun by which he dispatches his enemies if he did it with a particular intention that he should slay or maim them he is irregular if onely with a general intention that he should overcome he is not This being somewhat a nice Case the Canonists take more then usual pains to prove it And from hence they defend their Priests and Iesuits in the Indies who carry the Cross before their Armies into the Field and encourage them to kill all they can and yet Navarr saith they are so far from being irregular that they are regularissimi as his word is 6. If a man to gain an Indulgence carries a faggot to burn an Heretick if it be with a design to take away his life he is irregular but if he be hanged first or dead before it be thrown into the fire then he is not 7. If a man in Orders helps a Chirurgeon in cutting off a man's Leg he is not irregular but if a man be justly condemned to have his Leg cut off if he then gives any assistence he is irregular because the one is moved out of Mercy and the other out of Justice 8. If the Bishops sit and condemn a man for Heresy and deliver him over to the Secular Power for Execution yet they free this from Irregularity or else the practice of the Inquisition were lost This seems a very difficult Case but the Canonists salve this by saying that the Inquisitours when they deliver them over to the Secular Power do pray that they may not be hurt either Wind or Lim as it appears by the Forms used in the Directorium Inquisitorum And if this be not the height of Hypocrisie let the World judge And therefore this part of the Canon-Law is not consistent with the Sincerity of the Reformation 2. This part of Canon-Law is inconsistent with the King's Power over Ecclesiastical Persons For it supposeth them liable to the penalty of a Law which he hath no cognisance of and derives no force or authority from him which tends to the diminution of the King's Prerogative Royal and therefore it is nulled by the Stat. 25 H. VIII c. 19. I do very much question whether this ever were any part of the Canon-Law of England notwithstanding the Pope's Decretals i. e. whether these Canons ever received confirmation by the Royal Authority either in Synodal Constitutions or elsewhere And it would be a very hard case if our Kings had not the same Privileges which are allow'd in Popish Countries viz. that nothing passes for Canon-Law within their Territories till it pass the examination of the King's Council and approbation by his Authority Thence in France nothing passes without the King's Pareatis nor in Spain or Flanders without the King of Spain's Placet no nor in the Kingdom of Naples without the Royal Exequatur It is well known that the 6. Book of Decretals was not allowed in France because of the quarrel between the King and Boniface VIII and that even the Council of Trent it self was not allowed by Philip II. till it had been strictly examined by the King's Council that nothing might be allowed which tended to the diminution of his Prerogative How then will men justifie the making that a part of the Canon-Law of England which was repugnant to the Rights of the Crown and deprives the King of the Power of taking advice of those of his Subjects whom he hath summon'd for that end 3. The Sanction of this Law is ceased which was Irregularity And some of our most Learned Iudges have declared that is taken away by the Reformation But in case any be of another opinion I shall urge them with this inconveniency viz. that the great Instrument of discovering the Plot falls under Irregularity by it For it is most certain by the Canon-Law that a man in Orders accusing others of Treason without making his due Protestation in Court is Irregular But if this be now thought unreasonable as it is in the person of an Accuser why should it not be so in the case of Iudges And if the Irregularity be taken away then the Sanction is gone and if the Sanction be taken off in a meer positive Law the force of the Law is gone too And therefore this Canon-Law which forbids Clergy-men being present in Capital Cases and giving Votes therein is wholly taken away by the Reformation And we do not find any mention of it for 80 years and more after the Reformation till about the