the King's Council which the King granted yet afterwards 51 E. 3. at the Request of the Commons themselves he was restored to all and declared innocent This Gentleman was so sensible of this their Prejudice and Rashness attended with so much Levity that he could not pass it by without setting some Remark upon it p. 12. But when Justice Loyalty and Honour governs their Debates and Resolutions we may put the King and to use his own Illustration all the Three Estates of Parliament into the same Nest of Boxes and yet their respective Interests which is the Interest of the whole Kingdom interwoven will be secure and preserv'd inviolate But the Gentleman tells us further That if the Bishops be one of the Three Estates nothing can pass in Parliament without them This may be generally true among States coordinate without a Sovereign Head over them and when a Rival is set up to give Check-mate to the Sovereign Authority as it was in the time of Hen. 8. mentioned by this Gentleman at p. 92. when the Question was To whom the Supream Jurisdiction did belong to the King or to the Pope In the time of such a Competition the Crown is obliged to secure it self against such an Usurpation and does most justly abandon the Clergy that sides with it But 2. If Acts have passed without the Bishops they have likewise done so as by him is said sometimes without the Commons Egbert who first united the Seven Kingdoms of the Saxons under the common Name of England he caus'd to be conven'd at London His Bishops and Peers of the highest Rank to advise upon some course against the Danish Pyrates this was a Military Business and Bloud-shed might have ensued upon the Stubbornness of those Pyrates who infested the Sea-Coast of England And King Ethelwolph in Parliament or Assembly of his States at Winchester Anno 855. by the Advice These Great Councils were the Parliaments of those Times Let. p. 72. and Counsel of the Bishops and Nobility confirm'd unto the Clergy the Tenth Part of all mens Goods and Ordered that the Tythe so confirmed unto them should be free from all Secular Services and Impositions And Wingate in his Abridgment and the Word Parliament tells us out of the Mirrour of Justices of an Act in Aelfred's Time That Parliaments should be held twice a year and oftner if need requir'd But note saith he This was by the King and Lords only And I believe we may observe the like practice among some of this Gentleman's Precedents But it is much more satisfactory when the Laws are Enacted by the Sovereign Authority at the Request of the Commons with the consent of the Lords Spiritual and Temporal that is by the King with the joint Assent of the Three Estates of Parliament let us not therefore dissolve or drive them away when we have them That which is alledged out of Bishop Jewel and Crompton I refer you to the Answer of the Quodlibetical Question for your p. 93. to 98. satisfaction That King James was of this Judgment is evident from the very Words and Speech produced by this Gentleman to the contrary The Parliament saith he is composed of a Head and a Body The Head is the King the Body are the Members of the Parliament This Body again is subdivided into two parts the Upper and the Lower House the Upper House compounded partly of Nobility Temporal men who are Hereditable Counsellors to the High Court of Parliament by the Honour of their Creation and Lands and partly of Bishops Spiritual men who are likewise by virtue of their Place and Dignity Counsellors ad vitam Life-Renters of this Court. The other House is compos'd of Knights for the Shires and Gentry and Burgesses for the Towns Here we see though the King makes but Two Houses yet he does clearly distinguish them into Three Estates though he does not call them so To what is said by Stephen Gardiner and Finch I oppose the Testimonies of Livy Selden Cooke and Sheppard To the Expressions of the Late King of B. Memory in his Answer to the 19 Propos when he was fluctuating in the midst of a Storm gathering round about him and to the Declaration of the Commons 2 H. 4. n. 32. I might Answer That the Upper House in a large sense consisting of Lords Spiritual and Temporal sitting and voting together may be taken for One Estate But taken precisely and in a strict sense as their Concerns and Interests are distinct so they are clearly Two But to those Authorities I shall rather oppose the Act of Recognition 1 Eliz. 3. Where the Lords Spiritual and Temporal and the Commons in that Parliament Assembled do Recognize the Queens Majesty to be their true lawful and undoubted Sovereign Lieged Lady and Queen in these words We Your most Faithful Loving and Obedient Subjects representing the Three Estates of this Realm which evidently sheweth the Queen was not there esteemed one So when the Funerals of Hen. 5. were ended the Three Estates did Assemble and Acknowledge his Son King To think to elude such Evidence by saying as this Gentleman does in the like case that such Expressions are delivered obiter upon the By is to make what we fancy not in any Statute utterly void and of none effect The next Question concerns the Bishops Peerage For the Affirmative we have these things to say 1. That the Prelates are called by the same Writ for Form and Manner with that directed to the Temporal Barons so the Answer to the Quodlibetical Question That they Sit and Vote there by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in respect of their Baronies Hereupon they affirm to the Lords Temporal in Parliament holden at Northampton Hen. 2. as Selden reports We sit not here as Bishops only but as Barons we are Barons and you are Barons here we sit as Peers And some Statutes call them Peers of the Land in terminis 2. 'T is his Grace of Canterbury's Title Primus Par Angliae That the first Peer should be no Peer is an unheard of Solecism If he be a Peer the rest of the Bishops are his Com-peers what ever they are to the Lords Temporal John Stratford Archbishop of that place in the time of Ed. 3 claim'd this Priviledge in the Right of his See And the Protestat of W. Courtney elsewhere mentioned with the rest of the Bishops is another pregnant Evidence to this purpose And 25 Edw. 3. The Prelates put up this Petition to the King as the Gentleman himself relates it p. 83. Seeing Archbishops and Bishops hold their Temporalties of the King in capite and therefore are Peers of the Land as other Earls and Barons are that you will be pleased to grant unto them that no Judge may henceforward for meer contempts cause their Temporalties to be seized Here we have a Prayer that their Temporalties may not be seized and the Reason of
Charter made by King John in the last of his Reign we have the form of summoning a Parliament and calling those together who have Votes therein thus expressed at large Ad habendum commune concilium Regni de auxilio assidendo c. Et de scutagiis assidendis faciemus summoneri Archiepisc Abbates Comites majores Barones Regni sigillatim per literas nostras praeterea summoneri faciemus in generali per Vice-Com Ballivos nostros omnes alios qui in Capite tenent ad certum diem scil ad terminum 40 dierum ad minus ad certum locum c. (†) Id. in Job In which we have not only a most evident Proof that the Bishops are of right to be called to Parliament for granting Subsidies and Escuage and treating of the great Affairs which concern the Kingdom but that they are to be summoned by particular Letters as well as the Earls Barons or either of them A form or copy of which Summons issued in the time of the said King John is extant on Record and put in Print not many * P. 1. 20. 5. years since in the Titles of Honour 5. We have it thus in the Magna Charta of King Henry the 3 d. the Birthright of the English Subject according as it stands translated in the Book of Statutes First we have granted to God and by this our present Charters have confirmed for us and our Heirs for ever That the Church of England shall be free and shall enjoy all her whole Rights and Liberties inviolable (†) Magna Charta c. 1. But it is a known Right and Liberty of the Church of England that all the Bishops and many of the greater Clergy and peradventure also the Inferior Clergy in the said Kings time had their Votes in Parliament and therefore is to be preserved inviolable by the Kings of England their Heirs and Successors for ever Which Charter as it was confirmed by a Curse denounced on all the Infringers of it by Boniface Arch-Bishop of Canterbury (*) Math. Par. in H. 3. and ratified in no fewer than 80. suceedings Parliaments So was it Enacted in the Reign of Hdward the first That it should be sent under the great Seal of England to all the Cathedral Churches of the Kingdom to be read twice a year before the People †That they should be ready four times a year in a full County Court (*) 28 E. 1. c. 1. and finally that all Judgments given against it should be void and null (†) 28 E. 1. c. 2. the Application of which last Clause I refer to those to whom the rectifiing of the Error which to the contrary thereof hath been committed doth of right belong * 28 E. 1. c. 3. 6. We have the Protestation of John Stratford Arch Bishop of Canterbury in the time of King Edward the 3 d. who being in disfavour with the King and denied entrance into the House of Peers challenged his Place and Suffrage there as the first Peer of the Realm and One that ought to have the first voice in Parliament in right of his See But hear him speak his own words which are these that follow Amici for he spake to those that took witness of it Rex me ad hoc Parliamentum scripto suo vocavit ego tanquam major par Regni post Regem primam voce habere debens in Parliamento jura Ecclesiae meae Cantuariensis vendico ideo ingressum in Parliamento peto (†) Antiqui Brit. in Gati Stratford which makes it plain enough that the Arch-Bishop did not challenge a place in Parliament as the first Peer of the Realm either by way of favour or custom only but as a power and priviledge as he ought to have habere debent are the words in the Right of his See 7. And lastly there is the protestation on Record of all the Bishops in the Reign of King Richard the 2 d. at what time William Courtney was Arch-Bishop of Canterbury who being to withdraw themselves from the House of Peers at the pronouncing of the Sentence of Death on some guilty Lords first made their Procurators to supply their rooms and then put up their Protestations to preserve their Rights the sum whereof for as much as doth concern this business in their own words thus De jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non caeteros Suffraganos confratres compatres Abbates Priores aliosque Prelalatos quoscunque per Baroniam de Domino Rege tenentes Pertinet in Parliamentis Regis quibuscunque ut Pares Regni praedicti personaliter interesse ibidemque de Regni negotiis ac aliis tractari consuetis cum caeteris dicti Regni paribus aliis ibidem jus interessendi habentibus Consulere Tractare Ordinare Statuere Definire ac caetera facere quae Parliamento ibidem imminent facienda (†) In vita Gu. Courtney It appertains say they both by Right and Custom to the Arch-Bishop of Canterbury for the time being as also unto all the rest of his Compeers as well as the Suffragan Bishops as to the Abbots Priors and other Prelates whatsoever which hold their Land by Barony of our Lord the King to be personally present at all Parliaments as Peers of the Realm and there together with the rest of the Peers and all other which have Right to be therein present to Consult treat of and Ordain and finally to determine and establish all such things and matters as are accustomably handled and ordained in Parliaments Which sets the matter as I take it beyond all dispute as to the first of these two heads or sorts of Arguments whereby I was to prove this point which were those de jure Let us next see whether this Right of theirs be confirmed and countenanced by continual practice and that they have not lost it by Discontinuance which is my second kind of Argument those I mean de facto And in this way of proof we can go as high as the first preaching of the Gospel to the English Saxons and so descend unto those last times without interruption By which it will appear that Christianity in this Nation and the Bishops Votes in Parliaments and Common Councils are of like Antiquity For first no sooner had King Ethelbert received the Gospel but presently we read that as well the Clergy as the Laity were summoned to the Common Council which the Saxons sometimes called Mycell Synoth the great Assembly and sometimes Witennegemote the Councel or Assembly of the Wise men of the Realm Anno 605. Ethelbertus Rex in fide corroboratus Catholica c. Cantuariae convocavit Commune Consilium tam Cleri quam Populi King (†) H. Spelman in Conc. p. 116. Ethelbert as my Author hath it being confirmed in the Faith in the year 605. which was but nine years after his Conversion
and is the very and undoubted Heir of this Realm of England c. And 3ly So it is acknowledged in a †Statute of 1 El. c. 3. where 1 Eliz. c. 3 the Lords Spiritual and Temporal and the Commons in that Parliament assembled being said expresly and in terminis to represent the three Estates of the Realm of England did recognize the Queens Majesty to be their True Lawful and undoubted Sovereign Lieg'd Lady and Queen And in a Statute of the 8th year of the said Queens Reign the Bishops and Clergy are declared to be the greatest Estates of the Realm and called the High Estate of Prelacy in another place It may perhaps be thought unnecessary or impertinent to add the Testimony and Authority of a private person to that which hath been said by our Laws and Statutes But being it is such a Person as was accounted for the Oracle of the Law when he served in Parliament his Judgment may be taken for a creditable and sufficient Evidence in the present Case It is the Testimony and Authority of Sir Edward Coke successively Chief Justice of either Bench who in his Book Concerning the Jurisdiction of Courts speaks thus of Parliaments (†) Coke of Parl. fol. 1. This Court saith he consisteth of the Kings Majesty sitting there as in his Royal Politick Capacity and of the Three Estates of the Realm viz. of the Lords Spiritual Archbishops and Bishops who sit there by Succession in respect of their Counties Baronies parcel of their Bishopricks which they hold also in their Politick Capacity and every one of these when any Parliament is to be holden ought ex debito Justitiae to have a Writ of Summons Secondly The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Descent or Creation and likewise every one of these being of full age ought to have a Writ of Summons ex debito Justitiae The Third Estate is the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Burghs All which are respectively Elected by the Shires or Counties Cities and Burroughs by force of the Kings Writ ex debito Justitiae and none of them ought to be omitted And these represent all the Commons of the whole Realm and are trusted for them So He and this is plain enough beyond exception Add hereunto ex abundanti that in all Christian Kingdoms of the Gothick Model there are no more nor fewer than three Estates convented at the Will and Pleasure of the Supreme Prince for their assistance and advice in Affairs of consequence that is to say the Bishops and other Ecclesiastical persons who are alwayes one the Nobles for themselves and the Commissioners for the Commons of their several Provinces for so we find it in the Constitutions of the Roman Empire and the Realms of Spain the Kingdoms of France Poland Hungary together with those of Denmark Sweden and the Realm of Scotland And it were strange if in the Constitution of the English Parliaments or Conventus Ordinum the Bishops should have been left out and none at all elected to present the Clergy But being admitted with the rest in those publick Meetings and being looked on as the First Estate in the Stile of that Court it must needs be that their Exclusion shakes the very Fundamentals of the said Assemblies and makes the whole Body to be maimed and mutilated for want of such a principal Member so necessary to the making up of the whole Compositum But against all this it is objected first that some Acts have passed in Parliament to which the Prelates did not Vote nor could be present in the House when the Bill was passed as in the sentencing to death or mutilation of a guilty Person as doth appear by the Laws and Constitutions recognized at Clarendon and the following practice This hath been touched on before and we told you then that this restraint was laid upon them not by the common Law of England or any Act or Ordinance of the House of Peers by which they were disabled to attend that service It was their own voluntary Act none compelled them to it but only out of a conformity to some former Canons ad Sanctorum Canonum instituta (†) Antiqui Brit. in Gul. Courtney as their own words are by which it was not lawful for the Clergy Men to be either Judges or Assessors in causa sanguinis (*) Constitut Othob Fol. 45. And yet they took such care to preserve their Interest that they did not only give their Proxies for there presenting of their Persons but did put up their protestations with a salvo jure for the preserving of their Rights for the time to come Jure Paritatis interessendi in dicto Parliamento (†) Antiqu. Brit. in Gul. Courtney quoad omnia singula ibi exercendi in omnibus semper salvo as the manner was Examples of which are as full and frequent as their withdrawing themselves on the said occasions But then the main Objection is that as some Acts have passed in Parliament absentibus Prelatis when the Bishops did absent themselves of their own accord so many things have been transacted in the Parliament Excluso Clero when the Clergy had been excluded or put out of the House by some Act or Ordinance A President for this hath been found and published by such as envied that poor remnant of the Churches honour though possibly they will find themselves deceived in their greatest hopes and yet the evidence will not serve to evince the cause The Author of the Pamphlet entituled the Prerogative and practice of Parliaments first lays this Tenet for his ground That many good Acts of Parliament may be made though the Archbishops and Bishops should not consent unto them †which is a point * Printed at Lond 1628 p. 31. that no man doubts of considering how easily their Negative may be over-ruled by the far greater number of the Secular Peers Then he adds that in a Parliament held at St. Edmundsbury 1196. in the Reign of Edward the first a Statute was made by the King the Barons and the Commons excluso Clero and for the proof hereof refers us unto Bishop Jewel Now Bishop Jewill saith indeed That in a Parliament held at St. Edmundsbury by King Edward the first Anno 1296. the Archbishops and Bishops were quite shut forth and yet the Parliament held and good and wholsome Laws were there Enacted the departing or absence of the Lords Spiritual notwithstanding (†) Defence of the Apol. part 6. c. 2. S. 1. In the Records whereof it is written thus Habito Rex cum Baronibus suis Parliamento Clero excluso statutum est c. The King keeping the Parliament with his Barons the Clergy that is to say the Archbishops and Bishops being shut forth it was enacted c. Wherein who doth
not see if he hath any eyes that by this reason if the proof be good many good Acts of Parliament may be made though the Commons either out of absence or opposition should not consent unto the same of whose consent unto that Statute whosoever it was there is as little to be found in that Record as the concurrence of the Bishops But for answer unto so much of this Record so often spoke of and applauded as concerns the Bishops we say that this if it be truly senced as I think it is not was the particular Act of an Angry and Offended King against his Clergy not to be drawn into example as a proof or Argument against a most clear known and undoubted Right The Cause stood thus A Constitution had been made by Boniface the 8th Ne aliqua collecta ex ecclesiasticis proventibus Regi aut cuivis alii Principi concedatur (†) Math. West in E. 1. that Clergy-men should not pay any Tax or Tallage unto Kings or Princes out of their Spiritual Preferments without the leave of the Pope Under pretence whereof the Clergy at this Parliament at St. Edmonsbury refused to be contributary to the Kings occasions when the Lay-Members of the House had been forwards in it The King being herewith much offended gives them a further Day to consider of it Adjourning the Parliament to London there to begin on the morrow after St. Hilaries Day and in the mean time commanded all their Barns to be fast sealed up The day being come and the Clergy still persisting in their former obstinacy Excluso è Parliamento Clero Consilium Rex cum solis Baronibus populo habuit totumque statim Clerum protectione sua privavit (*) Antiqu. Brit. in R. Winchelsey The King saith the Historian excluding the Clergy out of the Parliament advised with his Barons and his People only what was best to be done by whose Advice he put the Clergy out of his protection and thereby forced them to conform to his Will and Pleasure This is the Summa totalis of the Business and comes unto no more but this that a particular course was advised in Parliament on a particular Displeasure taken by the King against the Body of his Clergy then convened together for their particular refusal to contribute to his Wants and Wars the better to reduce them to their natural Duty Which makes not any thing at all against the Right of Bishops in the House of Peers or for excluding them that House or for the validity of such Acts as are made in Parliament during the time of such exclusion especially considering that the King shortly after called his States together and did excuse himself for many extravagant Acts which he had committed (†) Wolsingh in E. 1. An. 1297. against the Liberties of the Subject whereof this was one laying the blame thereof on his great occasions and the necessity which the Wars which he had abroad did impose upon him And so much as in Answer unto that Record supposing that the words thereof be rightly senced as I think they are not and that by Clerus there we are to understand Archbishops and Bishops as I think we be not there being no Record I dare boldly say it either of History or Law in which the word Clerus serves to signifie the Archbishops and Bishops exclusive of the other Clergy or any Writing whatsoever wherein it doth either notsignifie the whole Clergy generally or the inferiour Clergy only exclusive of the Archbishops Bishops and other Prelates Therefore in answer unto that so much applauded Cavil of Excluso Clero from what Record soever it either hath been hitherto or shall hereafter be produced I shall propose it to the consideration of the sober Reader whether by Clerus in that place or in any other of that kind and time we must not understand the Inferior Clergy as they stand distinguished in the Laws from my Lords the Bishops For howsoever it be true that Clerus in the Ecclesiastical Notion of the Word doth signifie the whole Clergy generally Archbishops Bishops Priests and Deacons yet in the Legal notion of it it stands distinguished from the Prelates and signifieth only the inferiour Clergy Thus do we find the Ecclesiasticks of this Realm divided into Prelates men of Religion and other Clerks 3 E. 1. c. 1. the Seculars either into Prelates and Clerks 9 E. 2. c. 3. 1 R. 2. c 3. or Prelates and Clerks Beneficed 18 E. 3. c. 2. or generally into the Prelates and the Clergy 9 E. 2. c. 15. 14 E. c. 1. 3. 18 E. 3. 2 7. 25 E. 3. 2 4. 8 Hen. 6. c. 1. And in all Acts and Grants of Subsidies made by the Clergy to the Kings or Queens of England since the 32 d. of H. 8 when the Clergy-Subsidies first began to be confirmed by Act of Parliament So also in the Latin Idiom which comes nearest home Nos Praelati Clerus in the submission of the Clergy to King H. 8. (†) Regist Watham and in the Sentence of Divorce against Anne of Cleve (*) Regist Cranmer and in the Instrument of the Grant of the Clergy-Subsidies presented to the Kings of England ever since the 27th of Queen Eliz. and in the form of the Certificates per (†) Stat. 8 Eliz. c. 17. ever since Praelatos Clerum returned by every Bishop to the Lord High Treasurer and finally Nos Episcopi Clerus Cantuariensis Provinciae in hac Synodo more nostro solito dum Regni Parliamentum celebratur Congregati (*) Stat. 1. Phil. Mary c. 8. In the Petition to K. Philip and Mary about the Confirmation of the Abbey-Lands to the Patentees so that though many Statutes have been made in these latter times Excluso Clero the Clergy that is to say the inferior Clergy who anciently had their place in Parliaments being quite shut out and utterly excluded from those publick Councils yet this proves nothing to the Point that any Act of Parliament hath been counted good to which the Bishops were not called or at the making of which Act they either were shut out by Force or excluded by Cunning. But then besides the so much celebrated Argument of excluso Clero the Author of the Pamphlet before remembred hath told us somewhat on the credit of Kilbancies book In which the Justices are made to say 7 Hen. 8. That our Sovereign Lord the King may well hold his Parliament by him and his Temporal Lords and by the Commons also without the Spiritual Lords for that the Spiritual Lords have not any place in the Parliament Chamber by reason of their Spiritualities but by reason of their Temporal Possessions But first this is but the Opinion of a private man of no Authority or Esteem for ought we can can find in the Realm of England and therefore not concluding in so great a business And 2dly admitting him to be a man
it because they are Peers as Earls and Barons are The King grants their Petition and allows the Reason The King cannot err in Titles his Allowance therefore is a sufficient confirmation of their Peerage And this Gentleman p. 93 c. when he argues against their being a third Estate he tells us William the first erected the temporalties of Bishops into Baronies to hold in capite and upon account of those Baronies both the Temporal Lords and Spiritual had of right place in Parliament and were bound to serve him there They were all Foedal Barons all holding by one tenure and by that tenure sitting in Parliament And a little after he saith They are still qualifi'd to be Members of Parliament as before a Baron sate as a Baron an Earl as an Earl Being made by Patent or by Writ or by holding such a proportion of Land alters not the Case as to their sitting in Parliament for it is being of such a degree which makes them Peers of Parliament One would think this is cleer enough for the Bishops Peerage But besides either the Bishops sit in Parliament as Peers or as Commoners if as Commoners then his own Argument p. 90. will be return'd upon him Would it be for the Honour of the House of Lord that Commoners must be put to them to keep the Ballance even with the House of Commons And most clearly it would be a Disparagement to the Peerage of the Kingdom the Temporal Lords and would make them to be a poor Estate that a number of Commoners must be joyn'd to them to make up their Negative Voice and set them upon even ground with the House of Commons But the truth is the Bishops Sit and Vote in Parliament as we said afore by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in regard of their Baronies All the Lords are equal in respect of their Peerage and so they make up but one House but they are distinguish'd by their Nobility and Spirituality respectively and so they make up two Estates distinct and different But to prove that they are no Peers this Gentleman fetches Pag. 85. Cap. 14 29. an Argument from Magna Charta it self I know it saith Every man that is tried at the King's Suit must be tried by his Peers whether he be Amerced or Imprisoned or Disseised or Outlaw'd c. it must be by his Peers But this Argument makes clear against him for he himself informs us p. 11 12. that the Lord Latimer who was the King's Chamberlain for Oppression in several places in Britain and in England was by the Bishops and Lords adjudged to be imprisoned and put to Fine and Ransom and the Lord John Nevil a Privy Counsellor for buying some Debts due by the King at easie Rates to make advantage to himself He mentions some others and concludes At all these Trials the Bishops were present and no body sayes but they might which makes it evident if the Law of Magna Charta were observed that the Bishops sate as Peers in giving Judgment upon those Culprit-Lords But for all this the Gentleman hath a very strong Objection out of Magna Charta against the Bishops Peerage and 't is this If any Bishop be tried for any Capital Offence he is tried by Ibid. 85. the Commoners and that is the Common Law and Practice of the Land then saith he must Commoners be his Peers and he and Commoners must be Pares A Temporal Lord Duke Earl p. 86. or Baron cannot be Judge in the case of a Bishop out of Parliament nor can any Bishop be their Judge how then can they be said to be Pares Fellow-Peers For my part saith he I see not But I will undertake to read the Riddle to him the King may restrain his Favours and limit his Grants as himself pleaseth the Dignities and Priviledges of the Lords Spiritual are not Hereditary like those of the Lords Temporal but only Personal and conferr'd upon them in regard of their Holy Function Hereupon when they are impeached for any heinous Crime which is supposed to desecrate their persons they are interpretatively though not formally degraded * Privilegium personale amittitur extincta persona cui id concessum est And such persons are reputed dead in Law and by a Fiction of Law not unusual dead in that capacity divested of their Peerage with their Spiritualities and so being in the sense of the Law reduced to that condition they come to be tried as Commoners And thus much for the Bishops Peerage 3. For their Right to Sit as Judges in Cases Capital as this Gentleman saith p. 3. It deserves a strict enquiry and we should do well to consider upon what ground the Prelates were prohibited having Votes in Cases of Blood Such a Prohibition indeed is extant but it is Authentical only in the Canon Law as we shall evince anon but this Law is Popish grounded upon Principles of Superstition Usurpation and Papal Tyranny and is very irrational and uncharitable according to the usual practice of it This I doubt not to make appear to the unprejudiced and impartial Reader In the Interim I think to remove a great mistake of this Gentleman who tells us that Mat. Paris a Monk one that would not be partial for the Lords Temporal in relating matters to give them Let. p. 73. more power in Judicature and less to the Lords Spiritual than of right belonged to each and looking upon this exclusion of the Prelates from the power of Judging in such cases to be some diminution of their Omnipotency which they were so ambitious of he therefore ranks it amongst the Consuetudines iniquas the wicked Customs of the former times I say herein the Gentleman has committed a great mistake 'T is true their presence in Parliaments at such Debates was debarr'd and the restraint was put upon them by this Law and none else but so far were the Clergie of those times from ranking this Canon-Laws amongst those wicked Customs that indeed they had it in too high a veneration and this the Gentleman himself observes in divers places of his Letters averring it to be that Law to which only the Clergy of those times would be subject conceiving themselves above and not bound by any other p. 68. And some Laws before that p. 22. He confesseth The Canon Law was to them above all Laws and what was forbidden by that Law they could not have a thought that it could in any sort be Lawful for them to challenge as their right upon any account This Gentleman knew they did look upon it as sacred They appeal to it and plead it for their exemption and this he sets down with his own Hand at p. 20. in these words Quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis alicui eorum juxta sacrorum Canonum instituta quomodo libet personaliter interesse
the Advice only of the Lords Temporal which was a special Case 18. 5 H. 5. Here the Bishops had declared Sr. John Oldcastle Heretick and delivered the Prisoner over to the Secular Power and yet in the Sentence they may be comprized under the Title of The most wise Lords of this present Parliament 19. 2 H. 6. It is not certain the Bishops did Vote 20. 28 H. 6. The two Archibishops and 13 Bishops were present did Debate and Vote in the Case 21. 31 H. 6. The Bishops doubtless as well as in the 28 were present being Peers of the Realm as I have proved 22. 38 H. 6. The Commons did accuse the King answered He would be advised and so the Matter ended Here we have 22 Precedents cited by this Gentleman from the time of Clarendon Constitutions to the Trial of the E. of Strafford whereof one is a special Case three are insignificant and null in regard there was either nothing at all done or a stupid neglect of their Right or a careless throwing off of all Duty Four are doubtful Ten are for their presence at such Trials either in person under the Names and Titles of Bishops Prelates Peers Great men or Lords of Parliament or present virtually by their Proxies or their Protestations so that there are but four of all the 22 for their not appearing or not voting at such Trials 5. For a Supersedeas to all further enquiry or dispute about this matter we must take notice that the Canon which required the Bishops to withdraw at all Trials in Cases Capital is abolish'd and the Lords Spiritual are under no obligation to observe it To say the Civil Sanction does still enforce it is absurd for what is that Civil Sanction but an Act of Parliament and if an Act of Parliament hath abolisht it it has likewise abolisht all other Acts which might seem to ratifie and confirm it otherwise it should be abolisht and not abolisht taken away and yet in force still which are Contradictions and absurd The Gentleman takes notice of this to be the Bishops Plea p. 67 68. That it is only by the Canon Law that this restraint is upon them and that the forbearance of their Predecessors being Papists and so subject to that Law was only in that respect which Law being of no force at present and taken away by Act of Parliament they are now at liberty though in Modesty they think fit sometimes to withdraw but have a Right to continue sitting if they please What does the Gentleman answer to this He saith I do not deny but the Canon Law might give the first rise to such an Usage but it came afterward to receive a civil Sanction the stamp of Parliament-Authority and several confirmations ibid. But I have evinced already that his Allegations do not prove what he pretends to undertake and the practice of the Bishops withdrawing at such Trials having no other bottom to relie on than the Canon Law That being absolutely dissolved and broken by Act of Parliament cannot now support it 6. And lastly Seeing there is no other Authority to continue and inure this practice but that Popish Canon I should think it a very dangerous thing if the King should be severe for any person to attempt it for upon the Clergies submission to the King 25 H. 8. 19. the Statute saith thus Be it therefore now enacted by Authority of this present Parliament according to the said submission and petition of the said Clergy that they nor any of them from henceforth shall presume to attempt alledge claim or put in ure any Constitutions or Ordinances Provincials or Synodals or any other Canons unless the same Clergy may have the Kings most Royal Assent and Licence upon pain of every one of the same Clergy doing contrary to this Act and being thereof convict to suffer imprisonment and make fine at the Kings Will. After those Precedents above-mentioned the next the Gentleman meets with was the Earl of Straffords whose Trial in Parliament was compleated in a Judicial way but he was attainted and condemned by the Legislative Power where this Gentleman does acknowledge a Right in the Bishops to be present Why they did then withdraw themselves such as were not Eye-witnesses or Observers of those times may best learn from Mr. Hobbes his History of them To conclude the Author does protest that he hath the very same Design Aim and Wishes with that Gentleman for that Right may prevail is the natural wish of every good man And the prevention of those Mischiefs which the Enemies to our Religion and Government have plotted and do atchieve to put in execution has incited me to this task to satisfie my self and others where the Right is My Sentiments herein I humbly submit to the High and Honourable Court of Parliament and if I have written any thing that gives a just cause of offence to my Superiors I do here solemnly retract it This Gentleman is Ingenuous and leaves his Reader to his Liberty to weigh the Arguments on both Sides and judge for himself I have taken the freedom he allows me and delivered my Opinion I pray take you the same course without Partiality and then judge for your self FINIS
Barons here we sit as Peers Which last is also verified in terminis by the words of a Statute or Act of Parliament wherein the Bishops are acknowledged to be Peers of the Land But to proceed more particularly to our proofs de facto after the alteration of their Tenures by the Norman Conqueror we find a Parliament assembled in the fifth year of that King wherein are present Episcopi Abbates Comites Primates totius Angliae †the * Math. Paris in Willi elmo 1. Bishops Abbots Earls and the rest of the Baronage of England And 3ly In the ninth year of William Rufus an old Author telleth us de Regni statu acturus Episcopos Abbates quoscunque Regni Proceres in unum praecepti sui sanctione egit that being to consult of the Affairs of the Kingdom he called together by his Writ the Bishops Abbots and all the Peers of the Realm (†) Edmor hist Mov l. 2. And 2ly During the Reign of King Henry the first for we will take but one example out of each Kings Reign though each Kings Reign would yeild us more a Parliament was called at London wherein were many things dispatched aa well of Ecclesiastical as Secular nature the Bishops and Abbots being present with the other Lords Coacto apud Londinium Magno Episcoporum Procerum Abbatumque concilio multa Ecclesiasticarum Secularium rerum ordinata negotia decisa Litigia saith the Monk of Malmsbury (†) Malmbs Hist Reg. Ang. l. 5. and of this Parliament it is I take it that Edmor speaketh Hist. Novel l. 4. p. 91. Proceed we 4ly to King Henry the second for King Stephens Reign was so full of Wars and Tumults that there is very little to be found of Parliaments and there we find the Bishops with the other Peers convened in Parliament for the determination of the points in controversy between Alphonso King of Castile and Sancho King of Navarre referred by com-promise to the King of England and here determined by King Henry amongst other things Habito cum Episcopis Comitibus Baronibus cum deliberatione Consilio as in Roger Hoveden (†) Hoveden Annal. pac Rose in H. 2. 5ly Next time comes Richard the first his Son during whose Imprisonment by the D. of Austria his Brother John then Earl of Moriton endeavoured by force and cunning in Normandy to set the Crown on his own head which caused Hubert the Archbishop of Canterbury to call a Parliament Convocatis coram eo Episcopis Comitibus Baronibus Regni (†) Id. in Ioh. wherein the Bishops Earls and Barons did with one consent agree to seize on his Estate and suppress his power the better to preserve the Kingdom in Wealth Peace and Safety 6ly After succeeded John and he calls a Parliament wherein were certain Laws made for the defence of this Kingdom Communi assensu Archiepiscoporum Episcoporum Comitum Baronum omnium fidelium suorum Angliae by the Common Counsel and Assent of the Archbishops Bishops Earls Barons and the rest of his Lieges Remember what was said before touching the Writ of Summons in the said Kings time from this time till the last Parliament of King Charles there is no Kings Reign of which we have not many though not all the Acts of Parliament still it Print amongst us Nor is there any Act of Parliament in the Printed Books to the Enacting of which the Bishops Approbation and Consent is not plainly specified either in the general Proem set before the Acts or in the Body of the Acts themselves as by the Books themselves doth at large appear 7ly And to this kind of proof may be further added the Form and manner of the Writ by which the Prelates in all times have been called to Parliament being the very Law Verbatim with that which is directed to the Temporal Barons save that the Spiritual Lords are commanded to attend the Service in fide dilectione the Temporal in fide Homagio and of late times in fide Ligeantia quibus nobis tenemini A Form or Copy of which Summons as ancient as King John's time is still reserved upon Record directed Nominatim to the Archbishop of Canterbury (†) Titles of Hon. part 2. cap. 1. and then a Scriptum est similiter to the residue of the Bishops Abbots Earls and Barons Then add the Privilege of Parliament for themselves and their Servants during the time of the Sessions the Liberty to kill and take one or two of the Kings Deer as they pass by any of his Forests in coming to Parliament upon his Commandment (*) Charta de forest cap. their enjoying of the same Immunities which are and have been heretofore enjoyed by the Temporal Barons (†) Camden in Briiania and tell me if the Bishops did not sit in Parliament by as good a Title as the Temporal Lords and therefore Essential Fundamental parts of the Court of Parliament By this Discourse it may appear that the Bishops Sit and Vote in Parliament by a double capacity as Bishops first in reference to their several Sees and secondly as Peers in regard of their Baronies In both respects accounted one of the Three Estates and the first also of the Three as from the Premises may be gathered without any great trouble But in so nice a point as this we shall not only build upon general Inferences but particular Evidences And first it is affirmed by Titus Livius in his Relation of the Life and Reign of King Henry the 5th That when his Funerals were ended the three Estates of the Realm of England did assemble together and declare his Son King Henry the 6th being an Infant of 8 Months old to be their Sovereign Lord †as his Heir and Successor And three Estates there * Tit. Liv. M. S. in Bib. Bodl. could not be to perform that Service unless the Bishops were acknowledged to be one of the number 2ly In the Parliament Rolls of King Richard the third there is mention of a Bill or Parchment presented to that Prince being then Duke of Glocester on the behalf and in the Name of the Three Estates of the Realm of England that is to wit the Lords Spiritual and Temporal and of the Commons by name which forasmuch as neither the said Three Estates nor the persons which delivered it on their behalf were then assembled in form of Parliament was afterwards in the first Parliament of that King by the same Three Estates Assembled in this present Parliament I speak the very words of the Act it self and by Authority of the same Enrolled Recorded and Approved (*) An. Speed in K. R. 3 and at the request and by the assent of the Three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by Authority of the same it be pronounced decreed and declared that our said Sovereign Lord the King was
Lawyers understand to be the Sentence of Guilty or Not Guilty Now I would fain be resolved whether these proceedings be not in agitatione causae sanguims whether accoording p. 1. to this practice a Case of Blood be not all the while in agitation And then reflecting upon the Gentlemans Rule in Logick Causa causae est causa causati and upon the Story of Chaucer's Frier let the Reader please to peruse p. 64 65 66 of the Letter and then judge whether the practice be not as I said Irrational And then Secondly This practice of those Popish times was uncharitable for if the Bishops were debarr'd sitting as Judges in such Cases Capital out of a suspition of their Integrity it was uncharitable to the Bishops if out of a jealousie they might be too soft and yielding in their clemency it were uncharitable to the Delinquent if out of fear they might be too severe in point of Justice it is uncharitable to the Commonwealth for Discretion ought to take her Rules from Charity when Pity and when Severity are to be used for the advantage of the Publick Sometimes Justice may be provoked into Severity and when Impeachments are preferr'd with rigour 't is possible the Prudence and Piety of such grave and holy persons intervening a rash and unadvisable Sentence may be stopt and prevent a Deluge of Mischiefs which might otherwise ensue †See the Case p. 26 27 28. of the Letter Had the Bishops been present at Haxeye's Trial they might as well have prevented his Condemnation as obtained his Pardon The Canon-Law then gave the first rise and beginning to this Usage as this Gentleman seems to acknowledge p. 68. But the Ground of that Canon was Superstition and it did confront the Kings Supremacy and was irrational and uncharitable in the practice of it Let us therefore examine what Force it had and by what Authority That this was in use while the Pope had a concurrent Jurisdiction here cannot be denied but whether ever it received a Civil Sanction and an express Ratification and had the stamp of Parliament-Authority set upon it is the matter now in question And this I do stedfastly deny and the Gentleman as earnestly affirm and contend for To prove this he does alledge a double confirmation and to give it the more Credit he carries it up as high as the dayes of Edward the Confessor But I desire the Reader to observe that in the management of his Evidence he turns an Indulgence into a Prohibition a Priviledge into a compleat Act of Parliament and a Protestation into a Statute He does alledge the Year-Book of 10 E. 4. Term. Pasch n. 35. Let. p. 78. Where we have set down the manner of their Trials in Parliament When a Lord is indicted c. he shall plead Not Guilty and this shall be tried by his Peers and then the Lords Spiritual who may not consent to the Death of any man shall make their Proctor c. This saith he I alledge to shew that even by the Law of the Land the Bishops cannot be Judges in a Case Capital Here the Gentleman says Their making a Proctor was Error Temporis the Error of those Times Why Because that practise was not for his purpose But if by the Law of the Land he means the Statute-Law as he seems to do I must have a Writ of Error to reverse his Judgment For the Pope having then a concurrent Jurisdiction here in England the Canon-Law was in force amongst them and in declaring that the Lords Spiritual might not consent to the Death of any man they have respect to the Prohibition of the Canon-Law but this is not any the least confirmation of it But this Gentleman will needs have it confirmed by a Civil Sanction and so become the Law of the Kingdom The first Confirmation he saith was about the time of 10 H. p. 69 c. 2. amongst the sixteen Constitutions of Clarendon which besides the Authority of Parliament to make the Observation of them the more inviolable were established by the Solemnity p. 72. of an Oath which is the greatest Obligation that Mankind is capable of making even God a Party to it to see it obeyed and punish the Transgressors Here is a fair Plea for a solemn Confirmation if the Gentleman were not partial or mistaken in the Business But the Case was this upon the account of their Immunities the Prelates especially grew very remiss and careless of their Duties as was noted formerly Hereupon in that Great Council which was then their Parliament amongst the rest the King made this the 11th of those Constitutions The Archbishops Bishops universae personae Regni p. 71. not all the Dignified Clergy of the Land as this Gentleman renders it but all persons whatsoever who have a Tenure in capite shall hold their possessions from the King as a Barony and shall answer for their Estates unto the Kings Justices and Ministers and shall observe and obey all the Kings Laws and together with other Barons they are to be present in all Judgments in the Kings Courts This is the Duty they are obliged and solemnly sworn to and then follows an Indulgence or Priviledge till the Sentence comes to the loss of Life or Member and here they are left to their Liberty to observe the Decree of the Holy Canon Hereupon we may p. 73. build our Faith that there was really such an Usage as this Gentleman infers in ancient times and that a liberty was left to continue it according to the Canon and in veneration of it but that 't was ratified and confirmed we have not one Syllable to prove it The Second Confirmation this Gentleman finds was in 11 R. p. 18 c. 71 c. 2. upon the Protestation of the Archbishop for himself and the other Bishops And here after some fluctuation and unsteadiness p. 75. to make it a Law he tells us The subject matter enacted did consist of two Particulars the one That the Prelates had a Right to sit and vote in all other Businesses the other That they had no Right nor was it lawful for them to be present in Parliament when such Businesses were in question But the Tenour of their Protestation is That they intend to be present to consult to treat of and to determine in omnibus in all things saving their Rights their State and Dignity But because some things were to be transacted in that Parliament at which by the Decrees of the Sacred Canons it was not lawful for them to be personally present therefore they protested that while such things were in agitation they would absent themselves Which Protestation being read in Full Parliament at the instance and prayer of the Archbishop and other Prelates was entred upon the Parliament-Roll by the Kings Command with the Assent of the Lords Temporal and Commons This the Gentleman will needs contend to be a Law of Parliament or a Law