THE CLERGY Vindicated OR THE RIGHTS AND PRIVILEGES That belong to them ASSERTED According to the Laws of England MORE Particularly touching the Sitting of BISHOPS in PARLIAMENT and their making Proxies in Capital Cases LONDON Printed by E. T. and R. H. 1679. THE RIGHTS and PRIVILEGES OF THE CLERGY According to the Laws of England THe Clergy of England or the whole number of those that are De Clero Domini of the Lord's Lot or Share as the Tribe of Levi was in Judea is according to our Law twofold Clerus Major and Clerus Minor the Greater and Lesser Clergy The former doth comprehend the Barons Spiritual or Lords of Parliament that is to say the Arch-Bishops and Bishops The later contains Arch-Deacons Deans Prebends Parsons Vicars and Chaplains Of both these kinds I will treat severally and apart But before I do so I shall give the Reader an Account in general of the Ecclesiastical State of the Church of England as I find it described by Mr. Cambden and Sir Edward Coke Mr. Cambden tells us that England hath two Provinces and accordingly two Arch-Bishops to wit the Arch-Bishop of Canterbury Primate and Metropolitan of all England and the Arch-Bishop of York Under these are twenty five Bishops To the Arch-Bishop of Canterbury are subject twenty two To the Arch-bishop of York the other three Now what Bishopricks these be with the Shires and Diocesses that are at this day under their Jurisdiction follow thus In the Province of Canterbury The Bishoprick of Canterbury together with that of Rochester containeth under it Kent it self The Bishoprick of London hath under it Essex Middlesex and part of Hertfordshire The Bishoprick of Chichester hath belonging to it Sussex The Bishoprick of Winchester compriseth Southamptonshire Surrey and the Isle of Wight Gernsey and also Jersey Islands lying against Normandy The Bishoprick of Salisbury comprehendeth Wiltshire and Berk shire The Bishoprick of Exeter containeth Devonshire and Cornwal The Bishoprick of Bath and Wells joyned together hath under it Somersetshire The Bishoprick of Glocester hath belonging to it Glocestershire To the Bishoprick of Worcester is subject Worcestershire and part of Warwickshire To the Bishoprick of Hereford Hereford and part of Salop or Shropshire The Bishoprick of Coventry and Litchfield joyned together have under it Staffordshire Derbyshire and the other part of Warwickshire as also that part of Shropshire which lieth toward the River Râ—pil Thâ—n the Bishoprick of 〈◊〉 which of all others is the greatest is bounded 〈…〉 Hâ—ntingâ—â—â—shire Bedfordshire Buckinghamshire and the 〈…〉 〈…〉 of Ely pertain Cambâ—â—â—â—â—shire and the Isle of Ely it self 〈…〉 of Norwich is Northâ—â—â—â— and Suâ—â—olk 〈…〉 of Oâ—â—â—â—ord hath under it Oxâ—â—fordshire 〈…〉 of Peterborough comprizeth Northamptonshire and Rutlandshire 〈…〉 the Bishoprick of Bristol is Doâ—setshire 〈…〉 Diocesses in England are to be added those of Wales which are 〈…〉 oâ— their own peculiar Arch-Bishoprick and made also fewer in number seâ—â—◠〈…〉 brought sâ—arce to â—our to wit The Bishoprick of Mâ—nâ—â—a havinâ— the Seat 〈…〉 the Bishoprick of 〈◊〉 the Bishoprick of Baâ—â—â—â— and the Bishoprick of 〈…〉 In the Province of York 〈…〉 of 〈◊〉 comprehendeth Yorkshire it self and Nottinghamshire 〈…〉 containeth 〈◊〉 Richmondshire 〈◊〉 part of Cumberâ—â—â—◠〈…〉 and of â—â—â—â—â—â—shire The Bishoprick of Durham hath Durham it self under it and Northumberland The Bishoprick of Carlâ—sle containeth within it part oâ— Camberland and the County of 〈…〉 〈…〉 there are in England Deanriâ—â— twenty six whereof thirteen were ordained by 〈…〉 in the greatâ—â— Cathâ—â—â—al Churches after the Monks were thrust out Arch-Dâ—aâ—â—â—â—ies sixty Dignities and Probends five hundred forty four Numbred also there 〈◊〉 Parish Churches under Bishopricks nine thousand two hundred eighty four oâ— which three thousand eight hundred forty five be Appropriate Now Appropriate Churches those are called which by the Pope's Authority coming between with consent of the King and the Bishop of the Diocess were upon certain Conditions tyed or Instruments united annexed and incorporated for ever unto Monasteries Bishopricks Colledges and Hospitals endowed with small Lands either for that the said Churches were built within their Lordships and Lands or granted by the Lords of the said Lands Which Churches afterwards when the Abbies and Monasteries were suppressed became Lay Fees to the great dammage of the Church Thus much Mr. Cambden As for Sir Edward Coke he informeth us That the Ecclesiastical State of England is divided into two Provinces or Arch-Bishopâ—icks viz. Of Canterbury and of York The Arch-Bishop of Canterbury is styled Metropolitanus Primas Totius Angliae and the Arch-Bishop of York Primas Angliae Each Arch-Bishop hath within his Province Suffragan Bishops of several Diocesses The Arch-Bishop of Canterbury hath under him within his Province of ancient Foundations viz. Rochester his Principal Chaplain London his Dean Winchester his Chancellor Norwich Lincoln Ely Chichester Salisbury Exeter Bath and Wells Worcester Coventry and Litchfield Hereford Landâ—ff St. Davids Bangor and St. Asaph and four founded by King Henry the Eighth erected out of the Ruins of dissolved Monasteries that is to say Glocester Bristol Peterborough and Oxford The Arch-Bishop of York hath under him four viz. Ths Bishop of the County Palatine of Chester newly erected by Henry the Eighth and annexed by him to the Arch-Bishop of York the County Palatine of Durham Carlisle and the Isle of Man annexed to the Province of York by Henry the Eighth But a greater number this Arch-Bishop had which time hath taken from him Every Diocess is divided into Arch-Deaconries whereof there be sixty And every Arch-Deaconry is divided into Deanries and Deanries again into Parishes Towns and Hamlets Having thus given my Reader an Account how the Ecclesiastical State of England standeth at this day I come to speak of the Clergy according to the division thereof by me before given viz. Into the Greater and Lesser Clergy First Of the Greater or Superior Clergy comprehending the Prelates the Arch-Bishops and Bishops THat the Law of England may be the better understood concerning our Superior Clergy I shall reduce it to these Particularities following which are not unworthy of the Reader 's Observation 1. Who the Founder and Patron of all Bishopricks 2. To whom the Spiritualties and Temporalties of Bishops appertain Sede Vacante 3. How Bishops were anciently made 4. Their Jurisdiction what and whence derived 5. Their Courts 6. By whom only commanded to certifie 7. Bishops Proceedings in Ecclesiastical Courts under the Name Style Seal of the Bishops how warrantable 8. With what Council they are assisted 9. Their Dominion and Property relating to Temporalities 10. What the King hath after every Bishop's death 11. Bishopricks whether Saleable 12. Their Right of Sitting in Parliament 13. Their Right of making Proxies in Cases of Life and Death 14. Statutes where made without them 15. Their Privileges as they are Lords of Parliament 16. Their Precedency 17. Their Excommunications 1. The Founder and Patron of all Bishopricks IT appeareth by our Books Co. Litt.
void First He perswaded the King to keep void a long time and converted the Profits thereof sometime by Letting and sometime by Sale of the same whereby the Temporalties were exceedingly wasted and destroyed Secondly after a long time no man was preferred to them per Traditionem Annuli Baculi by Livery of Seizan as the old fashion was but by Bargain and Sale from the King to him that would give most by means whereof the Church was stuffed with unworthy and insufficient Men and many Men of lively Wits and towardliness in Learning despairing of Preferment turned their Studies to other Professions This Ranulph for serving the King's Turns was advanced first To be the King's Chancellor and after to be Bishop of Durham Who after his Advancement to so high Dignities made them Servants to his Sacrilegious and Symoniacal Designs King Henry the First seeing this mischief and foreseeing the great inconvenience that would follow thereupon was contented for his own time to bind his own hands to the end the Church now naked and bare might receive some comfort and have means to provide things necessary for their Profession and Calling He thereupon at his Coronation made a Charter to this effect Vide Magna Charta c. 1. Quia Regnum oppressum erat injustis exactionibus ego in Respectu Dei amore quem erga vos omnes habeo Sanctam Dei Ecclesiam imprimis liberam facio Ita quod nec vendam nec ad firmam ponam nec Mortuo Archiepiscopo sive Episcopo vel Abbate aliquid accipiam de Domino Ecclesiae vel hominibus ejus donec Successor eam ingrediatur omnes malas Consuetudines quibus Regnum Angliae opprimebatur inde aufero He committed the said Ranulph then Bishop of Durham to Prison for his intolerable Misdeeds and Injuries to the Church where he lived without love and died without pity saving of those that thought it pity he lived so long I will close this Section with a Sentiment of the Imperial Law touching buying and selling Non pretio C. 1.3.31 sed precibus ordinetur Antistes Tantum ab ambitu debet esse sepositus ut quaeratur cogendus rogatus recedat invitatus effugiat sola illa suffragetur necessitas excusandi Profecto enim indignus est Sacerdotio nisi fuerit ordinatus invitus Nemo gradum Sacerdotii pretii venalitate mercetur quantum quisque mereatur non quantum dare sufficiat aestimetur Episcopus non pretio sed precibus ordinandus est Gothofredus 12. Their Right of Sitting in Parliament THe Spiritual Lords do sit in the King 's great Council in Parliament by the same Right that the Temporal Lords do and that is by reason of their Ancient Baronies For although originally all the Possessions of Bishops Abbots and Priors were given and holden in Frankalmoigne yet shortly after the Norman Conquest their Tenures were altered viz. Per Baroniam as appeareth by Mathew Paris Anno 1070. 66. and of that Tenure have continued ever since as shall be apparented by the Consultations of Clarendon in the Reign of Henry the Second by Glanvil and other Authorities In the Constitution held at Clarendon Co. 2. Inst f. 6. tempore H. 2. Ann. 1164. Certain Recapitulations of the Prerogative of the King and his People then sought to be infringed by the Pope and his Clergy it is thus expressed in the eleventh Article Archiepiscopi Episcopi universa persona Regni qui de Rege tenent in Capite 〈…〉 possessiones suas de Rege sicut Baroniam inde respondeant Justatiarii◠〈…〉 Regis sicut Caeteri Baroâ—â—â— debeam interesse Curiae Regis cum Baronibus qâ—â—usquâ— perveniatur ad diminutionem Membrorum vel mortem 2. Glanvil the most ancient Writer of the Laws of this Realm now extant 〈…〉 hath these words Notandum autem quod nec Episcopus nec Abbas quia eorum Baroniae sunt de Elcemesyna Regis Antecessoris ejus non possunt de Dominicis suts aliquam partem dare ad Remanentiam sine assensu Confirmatione Domini Regis 3. My third Authority shall be a notable Record in the Reign of Henry the Third and it is this Mandatum est omnibus Episcopis qui Conventuri sunt apud Glocestriam die Sabba thi in Crastino Sanctae Katharinae firmiter inhibendo quod sicut Baronias suas Rot Pat. 〈◊〉 3.2 part 〈◊〉 de Proâ—â—â—â—â—â—e fact Epiâ—â— quas de Rege tenent diligunt nullo modo praesumant Consilium tenere de aliquibus quae ad Coronam Regis pertinent vel quae personam Regis vel Statum suum vel Statum Concilii sui contingunt Scituri pro certo quod si fecerint Rex inde se capiet ad Baronias suas 4. Mr. Cambden in his Britannia tells us that the two Arch-Bishops and all the Bishops of England be Barons of the Kingdom and Parliament unto whom by Right and Custom it appertains as to Peers of the Kingdom to be with the rest of the Peers personally present at all Parliaments whatsoever there to consult to handle to ordain decree and determine in regard of the Baronies which they hold of the King For William the first a thing the Church-men of that time complained of but those in the Age ensuing accounted it their greatest Honour ordained Bishopricks and Abbies which hold Baronies in pure and perpetual Alms and until that time were free from all Secular Service to be under Military or Knight-Service enrolling every Bishoprick and Abbey at Will and Pleasure and appointing how many Soldiers he would have every one of them to find for him and his Successors in the time of Hostility and War From that time ever since says he those Ecclesiastical Persons enjoyed all the Immunities that Barons of the Kingdom did saving only they were not to be judged by their Peers 5. Sir Edward Coke in several places of his Works asserts Co. 2. Inst f. 3 79 585. Co. Lit. 97. a. 94. a. Câ— 4 Inst f. 361. that the Bishops of England have been founded by the Kings of England and do hold of the King by Barony and have been all called by Writ to the Court of Parliament and are Lords of Parliament To what has been said in the proof of the Bishops Right of sitting in Parliament this may be added Judge Dâ—dâ—idg in his Treatise of Nobility concerning Barons by Tenâ—re That it appeareth by all ancient Writers of our Laws and Histories that the Arch-Bishops and Bishops of the Realm in the antient Saxons days as well during the time that this Realm was divided into divers Kingdoms as also after the uniting of them into one Monarchy were called to the Parliament or Assembly of States or Wise Men not so much in respect of their Tenure for in those days all their Tenures were as is said before by Frankalmoigne but especially for that Laws and Counsels of Men are then most currant and commendable and have a more blessed
Temporal Baronies do enjoy all the Immunities that the Nobility and Peers of Parliament do saving only they are not to be judged by their Peers And the reason of this is because the Bishops cannot pass in like Cases upon the Tryal of any other of the Peers for that they are prohibited by the Canons of the Church to be Judges of Life and Death And reason would that the other Peers should not try them for this Tryal should be mutual for as much as it is performed upon their Honours without any Oath taken Now the Privileges that the Bishops claim as Peers of the Realm are such as these following 1. The Person of a Bishop shall not be arrested in Debt or Trespass by his Body 2. If a Bishop be Demandant or Plaintiff Tenant or Defendant there must be a Knight returned of his Jury or else the Array may be quashed 3. Arch-Bishops and Bishops are not bound to attend Leets nor to take the Oath there administred 4. A Day of Grace is never granted where a Bishop is Tenant or Defendant 5. If a Bishop be Defendant in Star-Chamber or Court of Chancery a Subpoena shall not be awarded but a Letter from the Lord Chancellor or Lord Keeper in lieu thereof 6. Every Arch Bishop or Bishop coming to the King at his Commandment and passing by any of the King's Forests may hunt and kill one or two of the King 's Deer 7. If a Bishop be Party to a Suit and would be essoigned he that casts the Essoigne out must put in Sureties to prove the Cause Which is not usual in the Case of a Common Person 8. If a Plaintiff recover against a Bishop in an Action of Debt or Trespass upon such a Plea pleaded by him or other Default in him so that a Fine thereby doth grow to the King and thereupon a Capias pâ—o Fine issueth out against him this shall not prejudice the Bishop so as the Plaintiff may thereby take advantage by Prayer that the Bishop shall abide in Execution c. 9. Whereas by a Statute made in 32. H. 8 c 16. it is enacted that the Subjects of the Realm shall not keep in their Families or Houses above the number of four Strangers born nevertheless by a Proviso in the said Act every Lord of Parliament hath his Privilege allowed unto him to keep in his Family the number of six Strangers born any thing in that Act to the contrary notwithstanding 10. By the Statute of West 1. c. 34. If any Person shall divulge false Tales of any of the Lords of Parliament by which Dissention may be betwixt the Commons and them the Offender is to be imprisoned until he bring forth the Author In brief My Lords the Bishops as 't is said before may challenge a Fruition of all the Privileges in virtue of their Baronies that the Lords Temporal can by virtue of theirs saving only the Bishops cannot be tryed by their Peers Which manner of Tryal was as I am informed brought into this Realm by William the Conqueror being answerable to the Norman and French Laws and agreeable to the Customs Feudal where almost all the Controversies arising between the Sovereign and his Vassal are tryed per Judicium Parium suorum 16. Their Precedency SIr Edward Coke treating on the Statute of the thirty first of Henry the Eighth c. 10. concerning the Precedency of the King 's great Officers hath these same words And first Cokâ— 4. Inst. 36â— for the Lords Spiritual who sit in Parliament on the King 's Right Hand amongst themselves 1. The Arch-Bishop of Canterbury 2. The Arch-Bishop of York on the same form 3. The Bishop of London 4. The Bishop of Durham 5. The Bishop of Winchester And then all the other Bishops of both Provinces shall sit and be placed after their Antienties as before this Act was accustomed But having regard to the Lords and Noble Peers of the Realm both the Arch-Bishops have place above all the great Officers and Nobility in Parliament Council and Commissions saving in the Star-Chamber the Lord Chancellor or Lord Keeper hath the Precedency of them But the other Bishops have place above all the Barons of the Realm because they hold their Bishopricks of the King per Baroniam but they give place to Viscounts Earls Marquesses and Dukes Note that in the penning of all Acts of Parliament the Lords Spiritual have the Preseance of the Lords Temporal And this shall suffice for the placing of the Lords Spiritual in Parliament c. according to Sir Edward Coke I will offer something out of Mr. Seagar the famous Herauld touching Preseance in Provincial Assemblies and elsewhere When the Arch-Bishop of Canterbury sitteth in his Provincial Assembly he hath on his Right Hand the Arch-Bishop of York and next unto him the Bishop of Winchester and on the Left Hand the Bishop of London But if it fall out that the Arch-Bishop of Caenterbury be not there by the Vacation of his See then the Arch-Bishop of York is to take his place who admitteth the Bishop of London on his Right Hand and the Bishop of Winchester to his Left the rest sitting as they are Elders by Consecration C. Lib. 4. c. 24. Of Honours Military and Civil A Bishop must do Reverence unto his Father at home but being in the Church the Father shall follow him Between two Equals he that is in his own Jurisdiction shall precede As if an Arch-Bishop do come into a Diocess of a Bishop notwithstanding he is a Person of more Dignity yet ought he give Honour unto the Bishop because his Presence doth not cancel his Authority C. Lab. 4. c. 24. Of Honour Military and Civil 17. Their Excommunications EXcommunication that is the greatest Judgment upon Earth being that which is ratified in Heaven will be the better understood by these Particularities 1. It s Definition 2. It s Division 3. The Writs that belong to it 4. By whom it ought to be cerified 5. The Power of it in a Christian Church First Its Definition Excommunication is thus defined by Panormitan Co. Lit. 133. b Excommunicatio est nihil aliud quà m Censura a Canone Vel Judice Ecclesiastico prolata inflicta privans legitima Communione Sacramentorum quandoque Hominum Secondly Its Division This Excommunication thus defined by the Canonist is twofold Co. Lit. 133 b. it is either Lesser or Greater The Lesser is Per quam quis a Sacramentorum participatione Conscientia vel Sententia arcetur The Greater Excommunication is that which Non solùm a Sacramentorum verum etiam fidelium Communione excludit ab omni actu legitimo separat dividit Either of these disableth the Party to sue any Action in the Kings Courts And yet our Books tell us that every Excommunication disableth not the Party As for Example If Bailiffs and Commons 30. E. 3.15 Co. Lit. 134. a. or any other Corporation aggregate of many bring an Action Excommengement in the