will take notice of nothing that is faulty in this Case but that this proceeding tends to abridge freedom of speech in Parliament which he loved from his youth which we do not blame in him As he did also to talk against Bishops which he cannot depart from when he is old But in the first of Hen. 4. this Judgment of Attainder was repealed and annull'd as he himself tells us Fol. 25. And here the Lords Spiritual were Judges which must be remark't for the honour of their Order that though they were the pars laesa by that fault such as it was yet notwithstanding they concurred readily to the repealing the Judgment But by this it appears that the Bishops did agreeable to their rightful Authority sit in Judgment in Parliament in capital Causes and therefore in consequence because it is a Case of his own production he ought to allow that the Bishops might have had Session in the Repeal of the Attainder of Roger Earl of March if it had been or could have been repealed by Judgment or a judicial Act of the Lords House For will this renownedly wise-man for avoiding of this his own testimony which he hath justly produced though it proves to testify against himself say that the Bishops can be present at repealing of a Judgment of Condemnation but not present at confirming any Doth not it in this proceeding come before them in Judgment and consideration Whether the sentence shall be repealed or affirmed and is not this with a witness a question of blood The Judgment being upon an appeal or review must be final peremptory and decretory and is more a question of blood than the Cause can be reckoned and deem'd to be upon the first Instance Or doth he think fit that there should be two sorts of Judges appointed a hanging Judge and a saving Judge if he doth I am sure he will not be able to find an employment for a just Judge So that I think to all men that can consider we have sufficiently vacated that testimony that the Cases of the Earl March and Haxey's seem'd to give against us and they are fairly come over to our side And we have provided herein sufficiently for the recovering of all men into an indifferency against the Prejudices this Octavo by its great Esteem hath done to their Judgments The Third Precedent is 15 E. 3. That Parliament was declared to be called for the Redress of the breach of the Laws and of the Peace of the Kingdom and as the Octavo hath it Fol. 8. because the Prelates were of opinion that it belonged not properly to them to give Councel about keeping the peace nor punishing such evils they went away by themselves and returned no more saith he but that is out of the Record so ready this Authour in Octavo is to shut them out of the House but I pray would not the Temporal Lords if the King had consulted the Parliament in matters Ecclesiastical have in like manner departed but would such departure of the Temporal Lords exclude them from having any thing to do in the Affairs of the Church Why then are the Bishops treated in their Right so unequally And this must serve for an Answer to the Folio p. 17. where he is very large in reciting Records of process and Proclamation against the Earl of Northumberland agreed only by Lords If a Liturgy or book of Canons were to be established by Law the Bishops certainly would have the forming of them The Octavo saith that Commissions were then framed by the Counts Barons and other Grants and brought into Parliament but no Bishop was present so much as to hear the Commissions read because they were to enquire into all Crimes as well Capital as others And for affirming this for all that can appear to us he only consulted his Will and pleasure like an honest man to the cause he defends for he hath not told us from any Record what the Nature of these Commissions were But we observe that though this Parliament was called for matters of the peace yet the Bishops had their Summons and it was not a Parliament excluso Clero The Bishops it seems upon the opening of the Parliament and the causes of convening modestly it seem'd declared that they were not competent as not perhaps studied in Pleas of the Crown or perhaps had not been so observant in fact of the matters of grievance What harm in all this they that cannot propound may judge of Expedients propounded and so did they for it doth appear by the Record 6 E. 3. N. 3. that the Results of the Temporal Lords were approved in full Parliament by the King Bishops Lords and Commons which the Folio agrees But it seems modesty is a dangerous thing and not to be forward to judge and determine though the matter be not understood may be a good Cause to turn a Judge out of his Office and forfeit his Judicature Besides the principal business of this Parliament was Legislation in which the Prelates have an undisputed Right of Session and may they not advise upon what they make into a Law May not they consider of the matter that is to pass into a Law in all the steps it makes But it is admirable what the Folio Book saith viz. that by this Record it is evident that the Prelates have no judicial power over any personal Crimes which are not Parliamentary I suppose he means Crimes not debated in Parliament This doth very much fortify the foundations and grounds of his discourse What are the grounds of his discourse I shall never be able to find out except it be an over-weening Opinion of himself to meddle with these matters which seem too high for him and to which the reading of my Lords Cooks Institutes and the broken Commentaries of the Law will never render any man competent It s true the Bishops have never any power and Cognizance of any Causes except they are commissionated thereto out of Parliament But as true it is of the Temporal Lords and therefore whatsoever advantage this will do his Cause with all my heart let him take it The next Case produced as a Precedent for them is the Case of Sir William de La Zouch and Sir John Gray for a quarrel in the Kings presence they were both committed to the Tower and after brought into Parliament no Bishops there It is a Case that could not be judged there neither was it but one of them was discharged because no probable matter of offence against him and the other remanded to the Tower I suppose to be proceeded against as the Law required Is this cause I pray to his purpose have not the Prelates judgment in causes of Trespass that properly come before that House by his own Confession And yet the Octavo remarks here that no Bishops were present to judge so much as of a Battery though the Record warrants him to say only an Assault But out of his great
recited upon which our Adversaries do so much ground themselves from the Cognisance of the Lords Spiritual and they could not be present when any such Case was agitated or moved all the Grandees were Notoriously Willfully and Knowingly and in the face of the whole World perjured to the Eternal infamy of our Nation Could the whole Nation be ignorant of its own Laws and Constitutions made and sworn to but a few months before and neither the King Lords Spiritual or Temporal or Commons understand them 120 men at least for about that number were the Bishops and regular Barons in H. the 2ds time and not less now come into the highest Judicature in the greatest Cause that ever was agitated It was in the Case of Becket disputed whether we should have a Civil or Ecclesiastical Soveraignty and there sit Judges and no body except against them in October if excluded by the Statute made in February before though the King and the Nobles had reason to suspect them on Becket's side and they unwilling themselves to Judge and they under an Oath not to sit and the Temporal Lords under an Oath not to admit them or allow them to be there And yet not a word of this matter in all the Historians of that time Thomas of Canterbury his friends to a man who were forward enough to reproach the Judges sure when they condemned the Sentence and applauded the Criminal and made a Pater patriae a Martyr and Saint of this Notorious Church Rebel He therefore that can believe that the Bishops were not rightful and unexceptionable Judges in capital Causes in Parliament in the time of H. 2. may believe that a whole Nation may become of insane Memory at once go to bed a Monarchy and wake into a Common-wealth without any notice or observation of a Change And now that the Assise of Clarendon is of our side I hope will be admitted and that the Bishops not only may but ought to be present in capital Causes in Parliament for the words of the Statutes are That the Archiepiscopi Episcopi universi personae qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam sicut caeteri Barones debent interesse Judiciis Curiae Domini Regis cum Baronibus So that now they were declared to be Judges as the other Barons in that they ought to be present in all Causes Only they were favoured so much in decent regard to their Order that they were not required to be present at the Sentence of Death and multilation of Member for as much as they are the Ministers of Gods pardon and the Publishers of the Doctrine of Faith and Repentance they ought to comport with their office and express their Commiseration to the greatest Sinner and to have some reluctancy against the Sentence of Condemnation and to that purpose is that Indulgence given them in the quousque perveniatur ad mutilationem membrorum vel mortem But the Assise of Clarendon having I will not say left them but required them to be Judges this exception of Quousque c. being only an Indulgence as aforesaid upon the Reasons aforesaid they remain entire Judges in Capital Causes and may depart from that Indulgence and ought so to do when Justice is necessary and the offences more than ordinarily Publick and will be pardoned and escape with impunity to the hazard of the Government except they interpose For if the Assise of Clarendon had not left them entire Judges of Right only at liberty as to the pronouncing of Sentence they had not remain'd Judges for the office of a Judge cannot be divided he that hath not an Authority to judge the Cause can be reckoned and accounted no other than a ministerial assistant to the process in such matters as the Court shall award Therefore Bishops in that they have intermedled as Judges in such Causes they have continued and avowed their Right of judging and in that they have withdrawn at the Sentence they have used that Liberty But to leave nothing for an after objection Evasion or Cavillation it shall be in our Adversary's choice Whether this Curia Regis mentioned in the Assise of Clarendon as also the Court that tryed Thomas Becket was the Curia Regis wherein the ordinary Justice of the Nation was at that time administred or the Parliament If it was the Curia Regis and not the Parliament was intended in the Assise of Clarendon in which the Priviledge and Indulgence under the Quousque was allowed to Bishops Then the Assise of Clarendon is unduly urged against the Bishops judging in Cases of blood in Parliament for that all Laws of Priviledge and exemption are stricti Juris and not to be extended beyond the Letter of the Law the single instance or the enumerated Cases and consequently by the Assise of Clarendon the Bishops have no leave to withdraw in Cases of blood in Parliament If the Court wherein Thomas Becket was tryed was the Curia Regis then the Bishops judging in that Court in that Cause doth most clearly declare that being a Case in point that the quousque in the Assise of Clarendon was an Indulgence and Priviledge which they might use or wave as they then did But this cannot be denyed that the Bishops are and were Barons ever since the Conqueror of which and of the Curia Regis we shall hereafter give an account and whatever was the business and office of Baron was consequently the office and business of a Bishop of Common Right and still is except any Legal restraint was put upon them by any Law which was not done by the Assise of Clarendon as we have proved by the reason of the making of that Law the Interpretation of that Law at that time Nor was that Law or any other Law hitherto pretended but only the Canons of the Church against the Right and Duty of Bishops in Capital Causes in Parliament or if they will have it in the Curia Regis CHAP. VI. AND now we proceed further to shew how this Right and Authority of the Prelates hath been used and acknowledged in after-times Roger de Hovedon hath remembred in the Life of Richard the First who succeeded Henry the 2. That before the arrival of Richard the First in England who had been in Captivity in the Empire that one Adam de St. Edmond Agent to John Earl of Morton returned into England being sent to fortifie the Castle of Earl John against the King his Brother and was apprehended by the Lord Mayor of London with several papers of instructions and Commissions of Earl Johns for that purpose Hoveden tells us That the Mayor cepit omnia brevia sua in quibus mandata Comitis Johannis continebantur tradidit ea Cantuariensi Episcopo qui in crastino convocatis coram eo Episcopis Comitibus Baronibus Regni ostendit eis literas Comitis Johannis earum tenorem statim per commune Concilium
to whom such Judgment doth of Right appertain did give their Judgment He concludes that the Bishops could not he said to be his Peers which shews they were not there But he must give us leave with much better Logick to conclude that they were present and We with reason presume because they are Peers of Parliament for so the Record is not his Peers for he fallaciously changeth the Terms they were there except he can prove them absent if common Right is not Reason of presumption no presumption can be reasonable But we can prove to him they were there And thereby in consequence we have another proof that they are Peers Sir Robert Cottons Abridgment tells us 5 H. 4. Fol. 426. that at the same time the Arch-Bishops and Bishops at their own request and therefore certainly then present were purged from suspicion of Treason by the said Earl And at the same time I pray observe Sir Henry Piercy his levying of War was adjudged Treason by the King and Lords in full Parliament Note that here is said to be a full Parliament and yet nothing in the Entry but the stile of Lords So various and contingent in respect of form are the Entries which ought to be observed But to review and consider again the Case of John Hall condemned in Parliament for Treason for murdering the Duke of Glocester And to this place I have reserved the Case of the two Merchants that killed John Imperial an Ambassadour of Genoua for both Cases are of the same nature and must receive the same answer and that is this The Statute of the 25 E. 3. was made to declare certain matters Treason and to be so judged in ordinary Judicatures but withall that Statute did provide that if any other Case supposed Treason do happen it shall be shewed to the King and Parliament whether it ought to be judged Treason Concerning which the King and Parliament do and are to declare by their Legislative power as it is agreed by all and as they did in the Case of John Imperial as appears by that Record expresly So that though the Bishops were not present at the Judgment of John Hall they might have been it must be confessed by our Adversary if the Judgment against John Hall was by the Legislative Power as it must be By this it appears how false an Argument this of his is To conclude no Right from absence for it is plain here it proves too much it proves a thing notoriously false a thing false by the confession of our Adversary and from what any falshood may be inferred is not it self true but stands reproved by the falshood and absurdity of what follows in consequence thereof But this is too Solemn Reproof of so frivolous an Argument for it is no more in effect than this That no man can have an Authority but what he is always in the exercise of The Octavo goes on and remembers that in the 2 H. 4. the first Writ de Haeretico comburendo was framed by the Lords Temporal only and without question it was so For the order of proceedings in Case of Hereticks Convict so required it The Bishops are upon the Matter the pars laesa in Heresy The authority of the Church is therein offended and it was not therefore proper for an Ecclesiastick to be an Actor therein The Author doth improve this as he doth all things that he can with any manner of colour to render the Order of Bishops hated and disesteemed which is the publick establishment the legal provision for the Government and guidance of Religion What mischief then is he a doing How great is his fault to deprave that provision to destroy their Reputation and Esteem with the people to destroy all their authority as much as in him lyeth His utmost endeavours are not thereto wanting to make their Ministries useless and to frustrate the provisions of the Law and the care of the Government in the highest concernment of the Nation Doth this become a great man I will not say a good man God rebuke him To lessen the Authority and disrepute and dishonour any Order of men or any Constitution that can be any ways useful to the publick is a great fault but this of his is a most enormous offence But what can be inferred from hence against the Order of the Bishops may be with like unworthiness inferred against the Christian Religion it self For it may be as well concluded that the Christian Religion is a bad Religion for that men of that denomination in the general Apostasie by pretence of Warranty from that Religion though it gave none murdered innocents As that the practices of the Bishops of that Religion so depraved do reflect any dishonour against the Bishops of reformed Christianity And this Answer will suffice too for the Case of Sir John Old-Castle As for the Earls of Kent Huntingdon and Salisbury the Lord le Despencer and Sir Ralph Lumley before that executed and declared Traytors in Parliament by the Lords Temporal only in the Parliament of the 2 H. 4. and the Earl of Northumberland and Lord Bardolph against whom it was proceeded in a Court of Chivalry after their death who were declared Traytors after they were dead in the Parliament in the 7 H. 4. I hope the Octavo Gentleman and all that are at present of his Opinion will take this for a sufficient Answer if we had no more to say that it was irregular very irregular indeed to condemn men after they were dead when he himself would set aside the Authority of the Case of William de la Poole in 28 H. 6. in Parliament where the Bishops were present which though he saith is the sole single precedent of Bishops acting in Capital Causes We shall therein convict him to be a man of Will to have lost himself in his passions and his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And enter that Case with a cloud of other testimonies and reasons that affirm I will not stick to say demonstrate so as such matters can be demonstrated with a moral demonstration such as shall leave no doubt with any man of the Bishops Right of judging in Capital causes in Parliament But We shall further add for Answer that the Temporal Lords did not herein exercise the Office of a Judge For it could be no Judgment they delivered It was only an officious declaration an avowing of the justness of the slaughter of these great men and to enter themselves of the other side But is it as reasonable for this Writer to fore-judge the Bishops of their Franchise and to have it seized because they would not be guilty of a misuser thereof and would not consent to so insolent a thing as to judge men unheard nay when dead and they could not be heard And to kill over again the murdered Lords for so they are in consideration of the Law who are not by legal process condemned and executed I cannot but observe in many of
yet when the business of the Parliament was extraordinary the Writs of Summons both to the Prelates and Barons had a Premonition that a Proxy should not be allowed unless they could not possibly be present dors claus 6 E. 3. m. 36. claus 1 R. 2. m. 37. 2 R. 2. m. 29. Nor was it unusual with the Prelates to make such their Procurators who were no Members of that House In that Parliament of Carlisle under E. 1. the Bishop of Exeter sends to the Parliament Henry de Pinkney Parson of Haughton as his Proxy The Bishop of Bath and Wells sends William of Charleton a Canon of his Church In the Parliament 17 R. 2. the Bishop of Norwich made Michael Cergeaux Dean of the Arches and others his Procurators In the same year the Bishop of Durham his Proxies are John of Burton Canon of Beudly and others In the Statute of Praemunire 16 R. 2. cap. 5. it is said that the advice of the Lords Spiritual being present and of the Procurators of them that were absent was demanded This making of others then Barons of Parliament Proxies is not without President likewise in the case of Temporal Lords Lit. Procurator Parl. 4 H. 5. Thomas de la War gave his Procuratory Letters to John Frank and Richard Hulme Clerks So that it appears that by the Law of Parliament the Proxies of the Bishops in the 21th of R. 2. were legal Proxies and consequently the Bishops there virtually Besides that the lawfulness thereof doth appear for that it was required of them by the Parliament that they should make their Proxies and be present by their Procurators for this reason lest otherwise the Proceedings in that Parliament should be void CHAP. X. IT is true that the Parliament 21 R. 2. was wholly repealed by 1 H. 4. but that was for a good reason indeed because that Parliament of 21 R. 2. had delegated their whole power to a few of their number who finally without any resort back to the House made and past Laws But did ever any man before the Octavo argue at this rate that because there is one error in a case for which the Judgment is reversed that therefore there was nothing in the case legal and well considered And therefore how unreasonable and false this way of arguing is and that it is disputing against fact we shall further shew and prove For a probable Opinion still continued of the necessity of the Bishops sitting which implies a clear Recognition of a Right for in the 2 H. 5 the Earl of Salisbury petitioned the House to reverse a Judgment given against the Earl his Father Anno 2 H. 4. the Error assigned was the Absence of the Spiritual Lords The Case was much debated but the Judgment affirmed as we allow it ought to be but we produce it as an irrefragable Testimony of the Bishops Right to sit for if that had not been allowed there could not have been the least colour in the case nor matter of debate CHHP. XI BUt tho' the Actual Exercise of the Bishops Right in their own Persons though whatsoever is done by a Deputy is done in the Right of him that makes the Deputation as every body knows was for some time discontinued tho' their Right in that time was most solemnly owned and recognized yet in 28 H. 6. we find them re-continuing the Exercise of that Right and Authority and in their own Persons sitting in Judgment upon William de la Pool Duke of Suffolk who was impeach'd of Treason by the Commons for that he had sold the Realm to the French King and had fortified Wallingford Castle for a place of Refuge The Impeachment of High Treason was brought from the House of Commons by several Lords Spiritual and Temporal sent thither by the King's Command the Ninth of March the Duke was brought from the Tower into the Presence of the King the Lords Spiritual and Temporal The Impeachment was read unto him The Thirteenth of March he was sent for to come before the King the Lords Spiritual and Temporal to answer to his Charge which he did On Tuesday the Seventeenth of March the King sent for all the Lords Spiritual and Temporal who were in Town They are named two Arch-Bishops and thirteen Bishops besides the Temporal Lords who being assembled the King sent for the Duke There was no Judgment given by the Parliament but he submitted to the King and the King gave him Penance which was that he should be absent for Five Years out of England The Lords Spiritual and Temporal by Viscount Beaumont declared to the King that this that was so decreed and done against the Person of the Duke proceeded not by their Advice and Council with this Protestation that it should not be nor turn in Prejudice nor Derogation of them their Heirs ne of their Successors in time coming but that they may have and enjoy their Liberty and Freedom as largely as ever their Ancestors or Predecessors had and enjoyed before this time Observe here that the Lords Spiritual were present at every Motion of this Cause This Cause was thrice before them no Exception taken to the Bishops being Judges They could not sit by Permission without Right if the Bishops had no Right to sit the Proceedings had been certainly erroneous For though one Judge's Absence if there be a Quorum will not vacate a Judgment yet if one sit in Judgment that is not an Authorized Judge the Proceeding is certainly erroneous and void Can any man believe that the Government should lose it self forget it s own Establishments in the highest concerns We may as soon believe that a man may forget his own name One positive Act of Session signifies more than 100 Omissions for if it had not been well understood that the Bishops had a Right to sit in Judgment in Capital Causes in Parliament they could never have been admitted they would never have presumed to endeavour it But with false Logick and absurd Reasonings and dislike to the Order it is become an Opinion in this Age because sometimes the Bishops absented that they have no Right But we have one thing further to add that declares an inherent Right in the Lords Spiritual to the Authority in question and that is an Opinion of the Judges 10 E. 4. 35. which says that the Lords Spiritual in case of a Tryal of a Temporal Peer in Parliament shall make a Procurator for then it seems an Opinion was received which was error temporis That it was indecent for Bishops to sit in their own persons in Judgment in such cases But they themselves are best Judges of what is indecent and unbecoming their Order for no man is obliged to any man but himself in the matters of Decency and the measures that make things decent or indecent is very mutable as changable and mutable as Customs Fashions and Opinions Besides that there is nothing that is very valuable and is of great concernment but can and
Earls did then as now make the Parliament Besides the Barones majores and minores there was at this time a distinction between the Barones Regis and Barones Regni which I will here explain to prevent any mistake that may grow thereupon The Barones Regni were Barons by Tenure and made part of the Government by the Constitution of the first William and so in process of time called Barones Regni because they had by continuance of that Constitution acquired a fixed right to that Honour But because of the frequent Wars between the Barons and the Kings at that time they did omit to summon some who were Barons by Tenure and now duly called Barones Regni to Parliament and called others to Parliament that had no right to be called ratione tenurae and these they called Barones Regis This was ill taken by the Lords and was one of the occasions of their War with King John upon which they did obtain his Charter for remedy as followeth Barones majores Regni sigillatim summoniri faceret The truth of this as to the fact will appear by the Histories of those times and that this is the reason of that distinction of Barones Regis and Barones Regni doth appear by the recited Charter of King John where the majores Barones are called Barones Regni for the Barons were more concerned for the losing of their Honours than they were at the communication of the like Honours to others and with reason though all Honours are lessened by the numbers of those participate of them The inconveniences and mischiefs of this Constitution were very great and very sensible by making the Government consist of one Order there was no third to moderate and hold the balance The Honour of the great Nobility was lessened by an Equality of Suffrage in the great Council of the Kingdom yielded to the Tenents in capite and were not so concerned to support the Dignity of the Crown for the maintaining their own which in that Constitution could not be great It had the faults of either House and the virtues of neither they pressed hard upon the King and were uneasie and oppressive to the People they were not reverent of the Crown nor tender of common right The great Charter provides against the Oppressions of great men as it doth for bounding the Prerogative Our mixt Monarchy was out of tune by the Aristocratical Power of the Baronage now become too excessive by the policy of the Conquerour by advancing too great numbers to that Dignity too great to depend upon the Crown or to be govern'd by it unassisted That which the first William intended and designed for the establishment of his Conquest and of the Peace of the Kingdom made it very easie to afflict bad Princes But by several steps we recovered being taught and instructed to it by our Experience and the sufferance of great Calamities such a Representative that might most certainly effect what in all Ages was intended and designed that nothing should be Law or civilly just but what the People assent to by which their Persons and Rights are secured and defended which is the sole end of Government But evident it is that this more equal clear representative which we now enjoy in our House of Commons grew upon the reducement of the excessive number of Barons so great that it made them a Tumult rather than an Assembly and for the reducement of the power of the greater Barons for in the Parliament of 49 H. 3. when but 25 Lay Barons were summoned tho' in the 41 year of his Reign he numbered 250 great Baronies in England we find Writs for electing to a Parliament at London two Knights Citizens and Burgesses and Barons for the Cinque-Ports before that time none were found nor any Foot-steps of Right for the Counties sending Knights to Parliament though there is a clear Right appears for the Burroughs to send Burgesses which we shall speak to afterwards It will not be impertinent here to add that the Government of Scotland which runs parallel almost to our English Government found it inconvenient that all the Tenants in Capite should resort to their Parliaments and therefore they were reduc'd in this manner viz. their Barones Minores or Tenants in Capite in every County choose two of ther own number to Parliaments which at this day they call the Barons for Counties whereas all our Free-holders choose their Knights of the Shire and our Elections are not restrained to Tenants in Capite And this made it more reasonable for our Representatives of Shires together with the Burgesses to become in process of time a distinct Lower House whereas their Barons of Shires set together with the Lords and vote in Common with them The Knights of the Shire which made the principal part of the Representative of the Commons having no Relation to the House of Peers or the Baronage of England because chosen by all the Feee-holders indifferently though not Tenants in Capite But to return to our History that deduceth the Change of our Government That some great matters for publick Good and Establishment of the peace of the King and Kingdom was treated of in this Parliament they did to be sure establish this new Form of a Parliament will appear by a Form of a Writ of Summons to the Bishop of Durham to that Parliament which I will here transcribe Henricus Dei gratia Rex Angliae Dominus Hiberniae Dux Aquitaniae venerabili in Christo patri R. Episcopo Dunelmensi salutem Cum post gravia turbationum discriminia dudum habita in Regno Nostro Charissimus filius Edwardus primogenitus noster pro pace in regno nostro assecuranda firmanda obses traditus extitisset jam sedata benedictus Deus turbatione praedicta super deliberatione ejusdem salubriter providenda plena securitate tranquillitate pacis ad honorem Dei utilitate totius Regni nostri firmanda totaliter complenda ac super quibusdam aliis Regni nostri negotiis quae sine Consilio vestro aliorum Praelatorum magnatum nostrorum nolumus expediri cum eisdem tractatum habere nos oportet vobis mandamus Rogantes in fide dilectione quibus nobis tenemini quod omni occasione postposita negotiis aliis praetermissis sitis ad nos Londiniis in octabis Sancti Hilarii proximo futuris nobiscum cum praedictis Prelatis magnatibus nostris quos ibidem vocari secimus super praemissis tractaturis consilium impensuris hoc sicut nos honorem nostrum vestrum necnon communem Regni nostri tranquillitatem diligitis nullatenus omittatis Dors Claus 49 H. 3. M. 11. in Scedulae I strongly incline to believe That this King did call in the Commons by their representatives the Barones Minores being discharged to moderate between him and his Barons which became after to be sure however it was before the standing Representative of the people Something
of the Commoners which are Knights should be impannelled upon a Jury where either a Spiritual or Temporal Baron is concern'd besides that I find a single Remembrance as high as 13 E. 3. in Brooks Tryal 142. the Reports of that year are not printed of the Bishops Right of Peerage in a Capital Cause the Book is Evesque est Peere de Realme serva try per Peres in Crime But how this Right came to be discontinued and to lose remembrance we shall presently account for but I cannot think it Sence which some of our Lawyers have said for this purpose that a Bishop his being a Baron is Ratione Tenurae and not personal which is all one as to say that the Bishop is a Baron but his Person is not a Baron but his Peerage and Baronage is no other in truth than an Honor accumulated upon the Person of a Bishop together with his Office But to excuse them they thought themselves obliged to give a reason why Bishops are not as the Law is taken to be tryed by Peers but by a Common Jury which grew into practice by accident and was not ever so in probability but certainly is very irregular and extream incongruous and therefore to give a good reason for it is too hard a task to be undertaken and he that will undertake to give a reason of that which is unreasonable and go about to prove a thing fit which is incongruous must likely speak things equally incongruous absurd and unreasonable But to speak what the truth is in this matter the Bishops and the whole Order of Clergy did challenge to be exempt from the Jurisdiction of Secular Courts but the Bishops as is objected never waved their jus paritatis upon Arraignment in inferior Courts They only never insisted upon it For they had a better way to escape by setting up the pretended Rights and Priviledges of their Order and that Church for exempting themselves from the Jurisdiction of the Temporal Courts and by this means they did escape unpunished for the most part Though there were several Abatements made by the provision of the Laws and the Wisdom of the Judges to their unreasonable pretences therein yet they always got off by their pretended priviledge if not with impunity yet with some protection at least from Justice and farther they thought perhaps they might at least avoid being thought guilty of the Crimes objected whilst they used this pretence for a reason why they would not make a Defence And sure in all Offences but Treason they escaped with their Lives before the Statutes that took away the benefit of Clergy in some Cases of the greatest Guilt and even in the Case of Treason the Criminal ever had the Advocation and Intercession of the Church-power and Interest because the priviledge they contended for was so great and valuable a Concernment as they esteem'd it to the Order of the Clergy But by this means the memory of the Use of this Right and Priviledge was lost and the Detestation of a Crime in a Prelate provided him a speedy and ready Justice such as was at hand and at length Bishops themselves unadvisedly and being born down by the Common Opinion thus grounded and occasioned did submit to Tryals by Juries It is enough to have given an account how this Anamolous piece of Law came about But Anamolous Cases never make Rules nor destroy any Nor is it to be drawn into consequence whatever is a departure from the Establishment to destroy it quite Positive Constitutions of which no Reasons can be given why they are so can infer or argue nothing Reason cannot make Law though it is a fair inducement but our Reason is most perversly imployed when it proceeds from the Irregularities that happen in Human Affairs and are shuffled upon us by length of time by violence and iniquity and a heap of Accidents to argue us into more and to refix that which is regular and remains firm In quo quis peccat in eo punietur Is it not enough that the Order now suffers a diminution of their dignity by reason of the contumacy of the Popish Prelates their Predecessors and that their Refusals to submit to Temporal Justice are visited upon the Succession Severe enough this is in it self But why should any man expect that this Age in consequence of this should be persuaded and reasoned to exclude the Bishops out of their remaining right 'T is no more to be expected than that a man that hath one hand withered and mortified with the Palsie should be persuaded to cut off the other for conformity We know how the Prelates fell from their primitive Dignity of being tried by those of their own Order and were submitted to be tried by Juries of Commoners It would be therefore consonant and agreeable to the Dignity of Barons and Lords of Parliament for such the Bishops are that they be restored to their ancient right in the matters of Trials as mistaken Law is rectified by an Act of Parliament A wise Act of State it would be to redintegrate the Honour of the Baronage of England the whole Baronage suffering dishonour by a mutilation of so Honourable a Privilege in one of the membra dividentia of that body whilest the Bishops are thrown to common Jurors Especially since the incongruity thereof hath given occasion to some men to question one another of the jura paritatis which belongs to the Prelates and to dispute their right of Session in that House in one of the most important Concerns of the Government But however this Irregularity is discoursed it doth not affect the Right of the Prelates now in dispute for though Bishops are tried by Commoners out of Parliament as the Law is now generally taken yet that they are to be tried by Peers in Parliament our Adversaries do not deny And that they may and ought to sit in judgment upon Temporal Lords in Parliament in Capital Causes we have clearly proved So that the Reciprocal of a Bishops being judged and judging in Capital Causes in Parliament is intire and in this they continue duly pares But that it may not depend upon our Adversaries Concessions that Bishops may be tried by Peers in Parliament for he is not always constant to himself and may take back what he hath yielded we shall here subjoyn a short demonstrative proof that the Bishops ought to be tried by Peers in Parliament And that they have been declared and taken for Peers and under that Character tried when if they had not been reckoned and deemed Peers they could not have received Tryal in Parliament and it is thus Edward the Third had prevailed with the Lords against their good will to condemn the Earl of March Sir Simon Beresford John Matrevers Boys de Boyons John Devard Thomas de Gowrney William Ogle for the Murder of Edward the Second his Father and the Earl of Kent all of them Commoners but the Earl of March The Lords were
continue them great The contempt of the Bishops and Clergy the great cause of our evil State at present out of which we cannot recover but by an excellent Clergy and a high esteem of them with the people The Postscript ERRATA PAge 13. Line 18. read they p. 15. l. 15. r. Taxeotam Buleutam p. 19. l. 9. r. Blaesensis p. 23. l. 4. r. can p. 44. l. ult dele as p. 51. l. 22. to but add not l. ult to usage add other p. 57. l. 29. r. hucusque p. 130. dele in p. 165. l. 8. r. here p. 167. r. interpolatis p. 180. l. 3. dele them to r. send l. 29. to fit add to mention p. 206. l. 29. r. injurious p 240. l. ult dele near POSTSCRIPT P. 32. l. 1. r. he made his natural Sons first noble l. 7. r. Eufame p. 34. l. 1. r. is not subject p. 42. l. 25. r. decedents p. 45. l. 30. r. he p. 46. l. 8. r. more cruel p. 58. l. 18. r. futility p. 59. l 26. r. being What else is escaped the Reader is desired to correct by reason of the Authors absence from the Press The Argument CHAP. I. IN this question the Constitution of the Government is concerned and the Right of a most principal constituent part and that in a matter of the highest Trust which if truly a Right can be no more relinquished as the Nature of this Right is than a trust can be betrayed a duty and a Right denyed to be paid and performed or the Constitution of the Government changed For of such a Nature doth appear to be the Right in pretence and Controversy of the Lords the Bishops to have judgment in the House of Lords in Capital Causes For by their being made Barons they owed their judgments in such Causes as a service to the King at first by their Tenures in Baronage for though since they are become Barones Rescriptitii or Barons by Writ their duty is not abated And besides the Cognisance of such Causes become their own Right being a part of and belonging to the dignity and office of a Baron And it likewise became an appointment in the Government in which the whole Community have their Interest for that is principally provided for and procured in all Governments whose greatest concern it is to have Justice done against all Criminals and to have great and wise just and good men in the Administrations of Justice and other great offices of the Government The people of England did anciently understand the benefit of this Constitution when nothing but the Baronage of England the Lords Spiritual and Temporal could resist the Torrent of Arbitrary Government And it may be easily understood too that nothing but the Baronage of England is able to support the Throne For that Monarchy unless so supported is the weakest and most precarious and dependent Government in the World except it be supported with an Army and turned into a Tyranny That the Throne should be established by Natural and gentle provisions and the Government fixed is every mans greatest interest If the Lords Temporal have more under command and a larger Potestas jubendi yet the Lords Spiritual out-did them Authoritate suadendi and had more voluntary obedience The Lords Spiritual have several Advantages as they are Novi homines men chosen out of Thousands for an excellent Character and Spirit and need not want any accomplishments if duely chosen and preferred for the discharge of the greatest Provinces that are to be managed by wisdome and integrity and therefore they cannot be well wanted in any Ministries in the Government to which they are bespoken and have a legal designation Since this Authority by the very opening of the Cause doth appear probably belonging to the Bishops and if so that it cannot without breach of their duty that they owe to all the parts of the Government and the whole Community depart from it it may surely be insisted upon disputed and maintained by them without blame or imputation But so unhappily it falls out that the very disputing and contending of this Matter by reason of the unseasonableness of the dispute and the delays that were thereby given to the most important business of the Nation to the great hazard as some think of the summ of Affairs was very mischievous to the publick And now both parties are charging one another with all the mischiefs and the delays that this Controversy hath given to publick proceeding or can with any probability be thought to have occasioned And there are not men wanting on either side within doors and without that are forward enough to charge all those mischiefs as deserved by their oppoposite party which may eventually happen hereupon Who sees not how fatal this Controversy is like to prove to one or other of the Litigants and to the Government in consequence if this Cause cannot be duely heard and considered and be determined upon its own Merits without undue Censures and Reflections on either side Since at last the contenders themselves must be the Judges and give judgment in the Cause or it can never be quieted and have an end I am sure passion is no equal Judge and Arbiter and men angred and provoked have not the same sentiments of the same things as when calm and serene And because there is no common Judicature it ought to be considered by both parties with all equality of judgment and an exact pondering and weighing of the reasons offered on either side for that otherwise it can never be fairly decided but must for ever remain a Controversy to the immediate overthrow and destruction of the Government or over-ruled by the force and Power of a most dangerous consequence in the course of time to the Government and will be a laying of the Axe to the very root of the Tree and will put the Government it self into a State of War between the several constituent parts of it and given an occasion for one part to usurp upon another until the tone and frame of Goverment become changed and at last fall into ruine I am very well aware of the gravity of the Question and its importance the high honour and regard that is due to the House of Commons in Parliament what commendations are due to them in their persons for their zeal and endeavour by all means if it be possible to save the Nation Religion and Government And what a great Capacity that House in its very constitution in the first designation of the Government and by their mighty growth in power and interest in the Course of time have in procuring the publick good and that they cannot have any interest divided from the common Weal I must do them right and with the greatest clearness and satisfaction I determine with my self that their zeal for public Justice against unpardonable offences in their judgment and a prejudicate opinion they had conceived of the Spiritual Lords unindifferency how duely will appear by
either not against us or for us And all along observe the candor and integrity of the Author We shall further shew how absurd his Reasonings are to make those Precedents to conclude any thing for his purpose We will also with the clearest demonstration prove That the Assize of Clarendon establisheth the Bishops Authority and right to judge in capital Causes in Parliament And likewise that the protestation made by the Bishops 11. R. 2. is a most solemn Recognition of their Right that the Bishops have sate in Judgment in the greatest capital Causes in Parliament that ever happened that this their Authority hath been exercised in their own Persons and by their Proxies and recognized by Parliaments and other great Courts of Judicature but never before this time brought into Question That no Canon could lessen the Right at most it is but a Councel for their guidance in the exercise of their Authority which they might observe as they please That the Popes Canon Law was never received into England that prohibits Bishops to judge in capital Causes That the Bishops have declined to assist in pronounceing the Sentence of death sometimes as undecent for their Order but notwithstanding and without being contrary to the example and practice of their Predecessors the Bishops may judge upon the Plea of the Earl of Danby's Pardon For that if they do judge the Pardon not good the Earl is not therefore to be condemned And for the better clearing the Bishops Right and for the establishing the Government we shall prove that the Spiritual Lords are Peers of the Realm and one of the three States and an essential part of the Government which no legal power can charge or alter Lastly we shall repel the calumnies of the Adversaries in this cause by which they indeavour to render the Prelates unworthy of their Right and to put them amongst the prodigi furiosi that are scarce allowed to be Proprietors of their own And conclude our Discourse with a just Apology for the Lords the Bishops CHAP. II. ANd First I begin with the Octavo which in the Introduction to his Precedents saith That he will not meddle with the General Question How far forth Clergy-men in Orders are forbidden having any thing to do with secular matters nor what in that particular the Imperial Law requires as that Rescript of the Emperor Honorous and Theodosius which Enacts that Clergy-men shall have no communion with publick Functions or things appertaining to the Court or the Decree of Justinian That Bishops should not take upon them so much as the Oversight of an Orphan nor the proving of Wills saying It was a filthy thing crept in amongst them which appertained to the Master of his Revenue Nor what our common Law of England seems to allow or disallow having provided a special Writ in the Register upon occasion of a Master of an Hospital being it seems a Clergy-man and chosen an Officer in a Mannor to which that Hospital did belong saying it was Contra Legem consuetudinem Regni non consonum It was contrary to the Law and Custom of the Kingdom and not agreeable to reason That he who had cure of Souls and should spend his time in Prayer and Church duties should be made to attend upon Secular imployments I meddle not neither saith he with what seems to be the Divine Law as having been the practice of the Apostles and by them declared to be grounded upon reason and to be what in reason ought to be which was this That they should not leave the word of God and serve Tables though that was a Church Office and yet they say it is not reason we should do that for their work was the Ministry of the Word and Prayer much less then were they to be employed in secular affairs This with great skill he prefixes to his precedents which make the Law of Parliament which is the Law of the Land he saith and after he had said all that he could to make the very pretence it self unlawful and to perswade the shutting of the Bishops out of the House for altogether he subjoyns his Precedents he thought certainly that when he had placed the Precedents in such a light they must look all of that colour and have that appearance which he indeavours too by other arts to give them But we shall spoil his design in a very few words which the observant Reader will apprehend how pertinent it is and satisfactory to what is objected in the recited Preface though we do not for brevity sake apply our answer to every particular of his Discourse We say therefore we can't think the Clergy fit for Proctors Publick Notaries and Scriveners or Ushers of Court or other subservient offices nor fit to make Constables Tythingmen and Scavengers nor to keep watch and ward and to be a Hayward or Bayliff of his Worships Mannors and Townships Or that they should be Merchants or Farmers or interpose in a-any Secular affairs for gain That it was declined by the Pastors and Teachers of the Church as an indignity for them to administer to Tables i. e. to the Provisions of Charity in their Church-feast and they ought to keep far off from a suspition of filthy Lucre nay not to preach principally for gain or make a gain of Godliness By the Imperial Law accordingly they were discharged from the trouble of being Tutors and Curators of Orphans nay where the Law had designed them that care by their relation to the Orphans out of respect to their dignity they were discharged by the Law that they might not incur unkindness to the neglect of their relations nor yet be incumbred with such private attendances to divert them from their great Cure Though the Presbytery might be admitted ad Tutelam Legitimam by their own consent and this was made Law by Justinian Cod. L. 1. By which Law it appears not a Judgment of Incompetency in Clergy-men to intermedle in Secular affairs but an honourable exemption of the Bishops from such private concernments was the reason of that Law It was further provided by a Law of Justinian Cod. L. 1. That Priests should not be made of Court-Officers but those that were so made might continue the reason of the Law is contained in it because that such a man was Enutritus in Executionibus vehementibus seu asperis his quae ex ea re accidunt peccatis Non utique aequum fuerit modo quidem illico esse Taxeatam Buleatam facere omnium acerbissima mox autem Sacerdotem ordinari humanitate innocentia exponentem dogmata In all this the honour of the Church was consulted But business of weight and trust was committed to them Valent. Valens appointed Bishops to set the price of goods sold with this reason Negotiatores ne modum mercandi videantur excedere Episcopi Christiani quibus verus cultus est adjuvare pauperes provideant Justin 79. Novel submits Monks to
Authority or weight enough to perswade the contrary or an alteration therein notwithstanding that complaint which he tells us was made in the 45 of E. 3. fol. by the two Houses Counts Barons and Commons to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per cet grant mischiefs dammages sont avenuz en temps passe pluis purroit eschire en temps avenir al disherison de la Coronne grant prejudice du Royalme Whereby great mischiefs and damages have happened in times past and more may fall out in time to come to the disherison of the Crown and great prejudice to the Realm And therefore they humbly pray the King that he would imploy Laymen This they had too much reason to desire then when the Pope had advanced his Authority over them and put them under Oaths of Canonical obedience which rendred them less fit to be intrusted in the Government of this Kingdom who were become Subjects of another Empire usurping continually upon us which will never be our Case again if the Bishops can help it CHAP. III. ANd now we proceed to the Precedents of which the Octavo Book principally consists which seem as that Author and the other in Folio would have it to be not only a discontinuance of the Right of the Bishops to judge in Capital Causes but an argumentative proof that they never had any because it can as they say be never proved to be otherwise Immemorial time I confess is a great evidence of the right whether In non user or user and a fair reason to allow or deny the pretence and therefore we will now consider the Precedents As for the argumentative and discoursive parts of those books they will fall in to be answered by way of Objection when we are discoursing and proving the affirmative part of the Question and will best be reproved by being placed near the light of our reasons for establishing the Right of the Prelates If we do not give some satisfaction to these Precedents whatever we shall say I know can signifie no more than an Argument to prove a thing not true which is possible de facto testified by unexceptionable witnesses for such the Precedents will be taken until exceptions are made to their Testimony The Precedents produced by the two Authors are mostly the same only the Octavo hath more than what the Folio Book hath recited The first case that the Octavo produceth against the Lords Spiritual their Right of being Judges in Parliament in Capital Causes is that of Roger Mortimer Earl of March Simon Beresford and others who were no Peers and yet tryed in Parliament and no Bishops present and we agree it probable for his reason because there is mention made of Counts Barons and Peers and Peers being named after Barons could not comprehend the Bishops And because we think it reasonable when the orders of that House are particularly enumerated that the order omitted should be intended absent but we will not allow but that Peers is and so is Grants comprehensive of Bishops Nor will we when the entry is General intend the Bishops absent except he cannot otherwise prove them absent which we mention in the entry once for all as just and common measures between us in this dispute It will appear true what we affirm of the words Peers and Grants by what follows And if we should not insist upon their being present when nothing appears to the contrary we should do wrong to the Cause But to come to the consideration of this Precedent Is this a just Precedent Is not Magna Charta hereby violated Are not the proceedings altogether illegal Here are Commoners tryed by Peers in Parliament It is well known that the high displeasure of the King was concerned and that he did interpose with a plenitude of Power in this particular case against the fundamental constitutions of the Government the greatest crime of this Earl was too much familiarity with the Kings Mother Indignation and Revenge and not Justice formed the Process It was proceeded to condemn him Judicio Zeli upon pretence of the Notoriety of the fact Sir Robert Cotton in his abridgment tells us Anno 4. Ed. 3. That the King charged the Peers who as Judges of the Land by the Kings assent adjudged that the said Roger as a Traytor should be drawn and hanged The Bishops were not present certainly they were none of the Judges that gave Judgment as the King pronounced without Cognisance of the Cause The King had more Honour for their Order than to call then to such Drudgery and service of the Crown The iniquity of the sentence appears by the reversal thereof in Parliament 25 Ed. 3. in which the Original Record is recited Sir Robert Cotton in his Abridgment tells us That this Earl being condemned of certain points whereof he deserved commendation and for other altogether untrue surmises there was a Bill brought into the Lords House for the reversal of the Judgment and it was reverst by Act of Parliament indeed it could not be otherways reverst for no Court can judicially reverse their own Judgment for Error in Law and Judgment in the Lords House being the dernier Resort cannot be repealed but undone it may be by themselves in their legislative Capacity Here saith the Octavo the Bishops were not present at the passing of that Bill but yet the Octavo Gentleman will not pretend that the Bishops are to be excluded in any Acts of Legislation Why therefore was he so willing to impose upon the people so falsely and unrighteously and to produce this as a Precedent against the Bishops Right of Session in matters of that Nature by himself recognized There is nothing can excuse him herein for he is certainly self-condemned of undue Art in thiâ— matter In 20 R. 2. the Case of Sir Thomas Haxey happen'd which the Octavo book page 20 produceth against us He was forsooth condemned in Parliament for that he had preferred a Bill in the House of Commons for regulating the outragious Expences of the Kings House particularly of Bishops and Ladies Haxey was for this tryed and condemned to death for it in Parliament And here appears to be no Bishops and there ought not to have been any for these reasons First that the Bishops were the parties wronged and therefore could not in any fitness give sentence But Secondly if that was not in the Case that that caus'd the process was Royall anger upon a great faction of State in which I believe the Bishops were not engaged made for deposing of Rich. the 2d that was understood by the King to be in acting and promoted by Sir Thomas Haxey by his Bill It was this made the sentence altogether abhorrent from legal justice in matter and form Here was a Tryall of a Commoner by Peers a matter made Treason that did participate nothing of the nature of Treason But the discreet Gentleman
it not be with as much fairness concluded that the Bishops were present because the addition of Temporal is not made to Seigniors and Grants in the said Cases of Sir Ralph Ferrers and Sir Wil. Thorp as it can be that they were absent in the hearing of the said Cases because the word Prelate or Bishop is not in those Entries expressed If he will be just and change the Tables He must yield us the Argument for he knows that there is no establishment in the Modus tenendi Parliamentum directing the Forms of Entries or any solemnes formulae whose import and value is ascertained and made indisputable but are to be expounded by an easy interpretation such as we use when we make fair constructions in common speech But to give this another Answer The Arguer is herein guilty of that fallacy which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or non causa pro causa And his Witness doth not speak ad idem The Bishop was an Ecclesiastical person and though the Bishops might try a Temporal Lord for the same offence yet they would not consent to try a Bishop and forgo that great priviledge of the Clergy with so much earnestness defended in that Age to be exempt from secular Judicatures They would not be present to try because of the person of the Defendant which cannot be drawn into Argument to prove that they had no cognizance of the Cause with any fairness But further the Octavo doth afterwards produce a Testimony that doth contradict this last Testimony in the point for which he produc'd it It is the Case of Thomas Arundel Arch-Bishop of Canterbury 21 R. 2. The Bishops pronounced Judgment against him in Treason by their Proxy They can it seems upon great Reasons wave that priviledge and submit a great Malefactor of their own Order to Justice as they did in the Case of Becket heretofore So that you see here they used a Jurisdiction in a Cause of Treason in the Case of Thomas Arundel which the Bishops could not have used without a Right And the Case of the Bishop of Norwich is only an omission consistent with a Right The Case of Sir William Rikehill is next in order who was sent by R. 2. to Calais to take the Confession of the Duke of Glocester who soon after was Murdered The Judge was arrested and brought into Parliament before the King Lords Spiritual and Temporal and Commons the whole matter was examined and the Judge was examined Here is likewise a clear Case for the Bishops an Instance wherein they did take cognizance of a Capital Cause in Parliament But the Octavo hath a Shift for us and says that there was no impeachment or charge against the Judge and so the Bishops might be present at his Examination Let the Reader here observe the sleights wriglings and prevarications of this Octavo Author Whatever the World thinks of this Author I am much dissatisfyed about him and cannot believe him a man indifferent and impartial in this Enquiry In his observations of the Parliament of the 15 E. 3. the Bishops he saith vanished like lightning they went away immediately at the opening That matters of the Peace in general were to be treated of wherein Blood and Member might not at all be concerned for all that appears They went away and as he would have it they returned no more and they must not hear so much as a Commission of the Peace read But here in this Case of Rikehill they may examine a Murder He will say I am sure that though the Bishops did examine it they could make no judgment of the matter But who will believe him In the Case of de la Zouch and Gray he observes that Bishops could not be present so much as at a Battery though there was no Battery in the Case and yet he allows them to judge of all misdemeanors in the same little Book I observe but these things of many more of like nature which the Reader may observe of himself in that little Octavo that the World may judge how unjustly he deals in this Cause with what iniquity and prevarication he manages a noble question of Right concerning the Government of the Kingdom With what petulancy spight and inveterate displeasure he useth the Bishops That he is grinning at them whetting his teeth and squinting upon them perpetually with an evil Eye He oppugns their Right with Cavillations upon the Clerks Entries with what is in the Record and what is not and what he is pleased to add of his own upon them and with Precedents that reprove one another Had it not been more fair for him to have stated the Right upon a probable result of all the Records considered together than to make their Right sometimes more sometimes less sometimes to affirm sometimes to deny their Right in the same little Octavo He cannot sure think that every Judgment that hath been given upon deliberation in the greatest Judicature can uncontroulably make the Law much less a Fact much less an Omission a Negative that can operate nothing If nothing be Law but what hath always and constantly been done in the same manner and form and all circumstances the same as this Author it seems would have it and nothing true Theology according to Vincentius Lirinensis his Rule but what hath been received ab omnibus ubique semper We can have no Law nor no Theology Vain and idle opinions must be discharged such as can have no consideration with wise men and the Law must be declared by the Nature of Government reason and the general order of things But we have made too long an Excursion We must return to a further consideration of Rikehil his Case And now I submit it to any impartial man whether the Judge could be arrested and brought under an Arrest into the Parliament and be examined and not accused The very next Case he recites is that of John Hall in which we find nothing but an Examination and confessal upon which he was condemned as a Traytor And so would it have fared with Sir William Rikehil without doubt if he had been guilty and had confessed Neither the Octavo nor Sir Robert Cotton mentions any formality more against the one than the other The House of Lords are not tyed to Formalities in their proceedings like other inferior Judicatures and the more inferior any Court is the more regular forms are exacted and that with great reason which we will not hear treat of Besides in the Case of the Earl of Northumberland recited in the Octavo Book Fol. 34. in 5 H. 4. a Judgment was given against him for an offence upon a petition which he exhibited for a pardon of the same offence But in the Case of the Earl of Northumberland I pray observe what the Octavo saith in reference to our question After he hath recited part of the Record in these words The petition being read and understood the Lords as Peers of Parliament
the great convulsions of State and the simultates amongst the Great men and extravagant excesses of injustice to the glory and honour of the Bishops it must ever be remembred that they did preserve themselves from being ingaged in such violences as were committed against the last mentioned Lords But that the Author of the Octavo should produce the Case of Sir John Mortimer against us who was condemned upon a bare Indictment without Arraignment or due Tryal a good reason why the Bishops were not there when he immediately after produceth the Case of the Duke of Suffolk wherein the Bishops were present and will have it stand for nothing because in that it was irregularly proceeded is monstrous partiality and iniquity But in what I pray was the irregularity in the Case of the Duke of Suffolk Why because the Commons desired he might be committed upon a general Accusation But he was not And the second irregularity was that some Prelates and some Lords should be sent down to the House of Commons which is often done But it is not the Prelates that he is thus concerned for but that the Lords lessened their Estate This to excuse him might make him very angry with that Case and quarrelsome And yet after all there is a fallacy in the Case of Sir John Mortimer which he would put upon us for Sir John Mortimer was condemned by Act of Parliament and therefore the Bishops might have been there if they had pleased and that with his leave For it was by the Duke of Glocester who in the Kings absence was commissionated to call and hold that Parliament by the Advice of the Lords Temporal at the prayer of the whole Commonalty in this present Parliament and by the Authority thereof ordered and decreed that he should be led to the Tower and from thence drawn to Tyburn I cannot therefore but observe how by the pretence of the Canon a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes and by other prudent Arts and Recesses from tumultuations the Bishops kept themselves often from being engaged in the Animosities of Great men against one another A matter remarkable for the commendation of their Exemplary Wisdom and Justice and a Recommendation of the men of that Order to be continued in the greatest trusts that the Government hath committed to them But now shortly and summarily to review what we have offered in the matter of Precedents and together to consider what true value and weight they are of in the Cases of Roger Mortimer and Haxey and of Sir John Mortimer 2 H. 6. every body may see a reason why the Bishops should not act if they had Authority and therefore without wilfulness it cannot be concluded they had none Who sees not that these Cases are Precedents for us for that the Bishops judged in the Reversal of the sentence against Haxey which if they had reason for it they ought to have affirmed And the Bishops might have been present rightfully at the undoing the Attainder of Roger Mortimer by the Confessions of these Authors The Proceedings in the Parliament of 15 E. 3. is a true argument of the Bishops modesty But it proves more than he is willing to prove if true viz. that the Bishops cannot joyn in making Laws to punish publick Crimes and therefore logically concludes nothing besides that the matter is false in fact as it is alledged The Cases of Sir William Thorpe and Sir Ralph Ferrers taken at best for him are but militant and have as much to say for as against the Bishops being there present But to be true to the cause of the Bishops We have this advantage against him that the Bishops were always in the possession of their Right because never fore-judged and it was once theirs as we shall prove by and by And this makes a presumption that they always used it when there is nothing to the contrary The Bishops were not present in the Bishop of Norwich's Case but the Bishops may be at any time absent upon a sontica Causa The defendant was a Bishop which was a very allowable one in those times But this must be considered with the Case of Thomas Arundel Bishop of Canterbury in whose judgment they were present virtually by their Proxy and therefore had a Right to be there The Case of John de Gomets and William de Weston is unduely and against the faith of the Record produced against us for upon the truth of the Record the Bishops were present notwithstanding any thing that can be from thence deduced to the contrary The Case of Sir William Rikehil 1 H. 4. is for us so is the Case of the Earl of Northumberland 5 H. 4. The Case of John Hall who murdered the Duke of Glocester and of the two Merchants that killed John Imperial the Genoua Ambassadour 3 R. 2. are foreign to this question and so is the Case of Sir John Mortimer except Judicial Authority and Legislative Authority in Blood are of the same consideration as I think they are and shall hereafter make out to be probable and then those Cases are for our Right They confess that the Bishops might have been present if they pleased and their absence at the passing of those Bills doth not conclude against their Right themselves being Judges The Writ de haeretico comburendo is of another consideration and doth not fall in with the present question There was no Judgment given or to be given in the Cases of the Earl of Huntingdon Kent Salisbury Lord Le Despencer Sir Ralph Lumley the Earl of Northumberland and Lord Bardolph All these Precedents such as they are happened in no long Tract of time but very tumultuous Not one of them pretends to be an exclusion of the Bishops upon Judgment or positive declaration of State They pretend to be only instances of Omission or non user which may well consist with a Right And yet contrary to the true import of these Precedents and the true Nature of them being only of Omission and absence of the Prelates which as they are can make no induction or establish any proposition whereupon to frame an Argument or conclude a prescription Besides that a prescription is not possible in a meer negative and to and of nothing And where no body can use or possess that Authority in pretence in the defailance of the party to use it whose Right it was Besides that it is not a prescriptible matter which we shall further explain hereafter it being in a matter of the Government and a Right arising from its constitution Contrary I say to the whole nature of the matter He makes this Argument à saepe facto ad jus valet argumentum His Argument should have been if agreeable at all to the matter this That where a Right is sometimes not used there can be no Right But if this had been said in English every body would have condemned his reasoning and disallowed if not laughed at the Argument So that we have
left this Author neither reason or Argument We have stript the Cause of all the Precedents that pretend to favour it and have left it Rara Avis indeed but not nigro simillima Cygno as the learned Author in Octavo hath it with which he reproaches the Right of the Bishops as assisted only with a single Precedent But to a Bird of no colour at all the bird in the Fable I mean furtivis nudata coloribus to be exposed to laughter with its naked Rump CHAP. IV. BUt if these Precedents had been all such as they pretend to be and the Bishops not present in Judgment in any of those Cases which the Octavo and Folio have produced and if they had been all Capital Causes that came in Judgment in that House and all determined judicially and not by the Legislative power of Parliament and no reason was to be assigned for the Prelates absence from the Nature of the Cause If they had had no inducements to withdraw from any dissatisfaction they had in the prosecution and the pretended Right of the Church-men in those days much insisted upon to be exempted from the jurisdiction of secular Courts had not been the Cause of their absence which suppositions are not so in fact And tho' the Bishops had never used the Authority and power in question as they have yet if we can prove they had once a Right those Omissions of theirs can be no prejudice to the meer-Right Though then I confess we should labour a-the gainst invincible prejudice in the Opinions of most 1. For that no man can lose a Right by not using of it but where that right can be usurpt by another and is so And that usurpation having been for immemorable time when no body can tell when it was otherwise shall in a matter prescriptible be intended to be acquired by good Right and that with great reason in favour of possession and the quieting of them for that Estates and Rights can last longer than the Grants and Evidences or Records themselves that first created them But where the nature of the Right is such as this of the Bishops in pretence is which no body can use for them For the Temporal Lords sit in Judgment in their own Right which is a plenary and compleat right and cannot be made more or less Secondly for that no Franchise from the Power and Authority upward of a Court Leet which can be neither more nor less by usuage than the Law hath establisht can be prescribed to And a Quo Warranto will fore-close and extinguish an immemorial usuage of any irregular and illegal Franchise A Right that can never be prejudged and fore-closed by non user and such is every Right that grows from the constitution of the Government though it should be discontinued for a long tract of time may be at any time rightfully and legally continued The happiness of our Case is that we can point to the time when the Right of the Prelates to sit in Judgment in Capital Causes in Parliament was established And which is more imposed upon them and they put under a Compulsory and obliged by the Tenure of their Lands to serve the Crown in that capacity And that was in the beginning of the Reign of William the Conquerour Mr. Selden in his Titles of honour with great probability hath fixed it in the 4 year of his Reign when he made the Bishopricks and Abbies subject to Knight service in chief by creation of new Tenures upon them and so first turned their possessions into Baronies and thereby made them Barons of the Kingdom by Tenure This he saith is justified by Mat. Paris and Roger of Windover out of whom Mat. Paris took this Relation Anno 1070. so are their words Rex Willielmus pessimo usus consilio Episcopatus Abbatias omnes quae Baronias that is by Anticipation for the Lands made Baronies tenebant in purâ perpetuâ eatenus ab omni servitute seculari libertatem habuerunt sub servitute statuit militari c. This he makes further probable for that in a Manuscript Copy which he used in a very antient hand these words are noted in the upper Margin over the year 1070. hoc anno servitium baroniae imponitur Ramesiae It seems saith he the volumn belonged to the Abby of Ramsey And some Monk of the House noted that in the Margin touching his own Abby which equally concerned the rest of the Abbies that were mentioned in that Relation by their Lands being put under the Tenure by Barony and they made Barons they had a Right to sit with the rest of the Barons in Councellor Courts of Judgment For saith Mr. Selden tenere de Rege in capite habere possessiones sicut Baroniam and to be a Baron and to have Right to sit with the rest of the Barons in Council or Courts of Judgment according to the Laws of that time are Synonymies So that there were no distinctions of Barons as to power and Authority or Jurisdiction but the Right of a Baron was the same whether he was a Temporal or Spiritual Baron for the Tenure of both is one and the same and therefore the Services must be the same The office that is the result of this Tenure is the same in the House of Lords and indeed no office can be less than what the Law appoints it The King cannot make a Peer a Judge or a Bishop and put any Restraint upon the exercise of the powers and the jura ordinaria that belongs by the appointment of the Law to a Peer Bishop or Judge And that it is an office by Tenure can make no difference for the Law declares the Power and Authority So that the Powers of all Barons are and must be equal and what is allowed to one Baron cannot be denyed to another William the Conqueror made the Bishops Barons by putting them to hold as by Barony did not intend only the Bishops more honour but himself also more service and better assured He cannot be intended especially to abate them their service in punitive or vindictive Justice which a Conquerour of all other performances cannot want I do not doubt and if it were not unnecessary to this question likewise to shew that before the Conquest the Bishops or Spiritual Lords had a great share with the Thanes or Temporal Lords in the Government and were then one of the three States agreeable to all the Gothish Saxon for the Saxons were Goths which we must not here insist upon and Modern Governments that have been planted in Europe which we shall speak to more hereafter But we will resort no higher than this of their becoming Barons by Tenure in time of the Conquerour for the clearing of the Prelates Right now in question And therefore we are not concerned to say any thing to the Case of E. Godwin mentioned in the Octavo in Edward the Confessor's time For Brevity sake and because we will
Laity is meant by seniores populi but if the Lay Barons had been guilty of that which he there complains of as well as the Bishops he would instead of this complaint declaim'd against the folly and madness of the Age for want of justice Licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis seque ideo immunes à culpà reputant quod mortis aut truncationis membrorum judicium decernentes à pronuntiatione duntaxat executione poenalis sententiae se absentent And it is most observable that the Bishops did never excuse themselves from Session in Criminal Causes by virtue of the Assise of Clarendon but from the inhibition of the Canon and the use of the Liberty will best declare the Nature of it CHAP. V. IT 's most remarkable for the understanding aright the true meaning of this Law that the Bishops were admitted Judges in Parliament without exception of the Temporal Lords in the Case of Thomas Becket accused of Treason though the King and Temporal Barons had reason to believe that the Bishops would not do right to the Crown against that unruly and rebellious Prelate and when the Bishops themselves would have been glad of that pretence to have withdrawn themselves And this was about eight Months after the making the Statutes of Clarendon And in a short time after the swearing the observance of them by all the Grants of the Kingdom But the Law was then so well understood however the Letter of the Statute makes matter of dispute now that it was by no body in the least pretended that it was to be understood to such a sence as it is now drawn to viz. to exclude the Bishops the Spiritual Barons from judging in capital Causes in Parliament In those times they had only such an understanding as we have here before offer'd We shall therefore now proceed to give you an account how in the course of time the Right of the Prelates hath been used and recognized We will begin with the Case of Becket Arch-Bishop of Canterbury at a Parliament held in October in the 11 H. 2. Anno Domini 1165 at the Castle of Northampton To this Parliament Arch-Bishop Becket was cited as a Criminal and had not his Summons as Arch-Bishop so that that Parliament seem'd to be conven'd for doing him Justice the offence must therefore be very great so Stephanides tells us as he is cited by Mr. Selden 707. Though he was wont of custome to have the first Summons by the Kings Writ Nec tunc enim saith he nec diu ante ei scribere voluerat qui eum salutare nolebat Nec aliam per literas sibi directas solennem ac primam ut antiquis moris erat habuerat Archiepiscopus ad Concilium citationem Becket was there accused of Treason laesae majestatis coronae saith Fitz-Stephen a Monk of Canterbury that attended Thomas Becket the Arch-Bishop in his troubles Bishop Godwin in his Book de Praesulibus tells us that Arch-Bishop Becket Omnia sibi cernens infesta Naviculâ apud Rumenegam conscensâ in Galliam profugere conatus ventis adversantibus in littus repertus ac deprehensus ad Regem Conventus Northamptoniae agentem adductus est Ibi repentundarum peculiatûs perjurii proditionis falsi nescio quot aliorum Criminum cum à caeteris proceribus tum Episcopis ipsis suffraganeis reus factus This Court is called a Parliament by Mr. Selden and magnum Concilium by Roger of Hoveden and by others as Mr. Selden saith But that it was a Parliament and not the Curia Regis which we shall speak about hereafter doth appear by this certain diagnostick viz. that the Bishops were Summoned hereto by personal Writ of Summons to them directed immediately at that time which appears by what is before cited out of Fitz-Stephen and what is after taken out of Gervasius But to the Curia Regis they were Summoned by the Sheriff by a general Writ to him for that purpose directed which is a distinctive Note and Character of a Parliament as will hereafter appear But Fitz-Stephen saith as Mr. Selden quotes him Titles of honour Fol. 705. that secunda die consulentibus Episcopis Baronibus Angliae omnibus Nay he is so exact in his observation that he tells us who was not there of the Bishops viz. Roffensis Episcopus quidam alias nondum venenat Hoveden tells us how Becket had before behaved himself towards the King that notwithstanding great endeavours used on the Kings part to reconcile Becket to himself He would not be reconciled to the King Post multum tempus saith Hoveden Ernulphus Lexoviensis Episcopus venit in Angliam sollicite laboravit die ac nocte ut pax fieret inter Regem Archiepiscopum sed ad plenum fieri non potuit Deinde per consilium Lexoviensis Episcopi Rex separavit Rogerum Archiepiscopum Eboracensem Robertum de Welun Episcopum Herefordiensem Robertum Lincolniensem Episcopum alios quosdam Ecclesiae Praelatos à Consortio Consilio Cantuariensis Archiepiscopi ut per illos praefatum Cantuariensem Archiepiscopum in suos Conatus facilius alliceret Deinde venit in Angliam quidam vir Religiosus dictus Philippus de Eleemosyna missus à latere Alexandri Summi Pontificis Cardinalium omnium ad pacem faciendam inter Regem Archiepiscopum Cantuariensem Per quem summus Pontifex omnes Cardinales mandaverunt Cantuariensi Episcopo ut ipse pacem cum domino suo Rege Angliae faceret Leges suas sine aliquâ exceptione custodiendas promitteret his igitur aliis magnorum virorum Consiliis acquiescens Thomas Cantuariensis venit ad Regem apud Woodstock ibi promisit Regi concessit se bonâ fide sine malo ingenio leges suas servanturum Et paulo post congregato Clero populo Regni apud Clarendon poenituit Archiepiscopum quod ipse Concessionem illam fecerat Regi volens resilire à pacto dixit se in illa Concessione graviter peccasse quod in hoc amplius non peccaret Rex plurimum in irâ adversus eum commotus minatus est ei suis Exitum Mortem Venerunt ergo ad Archiepiscopum Salisburiensis Norwicensis Episcopi Robertus Leicestriae Reginaldus Cornubiae Comites lachrymantes provoluti ad pedes Archiepiscopi petebant ut saltem propter honorem Regis veniret ad eum coram populo diceret se Leges suas recepisse Precibus igitur tantorum virorum Archiepiscopus vectus venit ad Regem â—oram Clero populo dixit se Leges illas quas Rex avitas vocabat suscepisse concessit ut Episcopi Leges illas susciperent ut illas custodire promitterent Tunc praecepit Rex universis Comitibus Baronibus Regni ut irent foras recordarentur Legum Henrici Regis Avi sui eas in scripto
Regni definitum est quod Comes Johannes disseiseretur de omnibus Tenementis suis in Anglia Castella sua obsiderentur This is a Cause of Treason for that Richard the First immediately upon the demise of the Crown was King It can be no objection that this was not a formal Parliament for whether it was or no it seems the Bishops power in that Cause was allowed That it was Commune Concilium Regni and had the Nature of a Parliament And that the Bishops therein had a parity of Authority with the Temporal Lords But soon after his return King Richard held a Parliament at Notingham Hoveden mentions the Bishops that were present by Name In which Parliament our Historian tells us That the King Petiit sibi Judicium fieri de Comite Johanne fratre suo qui contra fidelitatem quam ei juraverat Castella sua occupaverat terras suas transmarinas destruxerat foedus contra eum cum inimico suo Rege Franciae contra eum inierat And the like Justice he required against the Bishop of Coventry for that he had adher'd Regi Franciae Comiti Johanni inimicis suis and it was thereupon adjudged Judicatum saith Hoveden quod Comes Johannes Episcopus Coventrensis peremptoriè citarentur si intra quadraginta dies non venerint nec Juri steterint Judicaverunt Comitem demeruisse regnum Episcopum Coventrensem subjacere judicio Episcoporum in eo quod Episcopus erat Judicio Laicorum in eo quod ipse Vicecomes Regis extiterat You see here the Bishops zeal and Loyalty that they adjoyn'd the censure of the Church which they had power of as Bishops to a Civil punishment which they with the Temporal Barons had Authority to pronounce against One of their own Order who was guilty of a design to engage a Nation in a War by opposing the lawful Successour to the Crown and this being so great a Cause We hear nothing here of any scruple the Canon gave them nor mention of any Priviledge of an Ecclesiastick to be exempt from the Judgment of the secular Court In the same Parliament Giraldus de Canavilla was accus'd of harbouring of Pirats and Praeterea saith Hoveden appellaverunt eum de Laesurâ Regiae Majestatis in eo quod ipse ad vocationem Justitiariorum Regis venire noluit nec juri stare de praedictâ receptatione raptorum neque eos ad Justitiam Regis producere sed respondet se esse hominem Comitis Johannis velle in Curiâ suâ Juri stare Hoveden tells us all that were present at this great Council Hubert Arch-Bishop of Canterbury Galfridus Arch-Bishop of York Hugh Bishop of Durham Hugh Bishop of Lincoln William Bishop of Ely William Bishop of Hereford Henry Bishop of Worcester Henry Bishop of Exeter and John Bishop of Carlisle Earl David Brother of the King of Scots Hamelinus Earl de Warrenna Ranulfus Earl of Chester William Earl of Feriers William Earl of Salisbury and Roger Bigot Let any one judge if it was likely that the Bishops did withdraw in the Case of Earl John or the said Bishop when besides them there were but six Barons present at that Parliament What manner of great Council would this Parliament have been that had consisted but of six Barons of what Authority would such a Parliament have been in the absence of the King and a troubled Estate of the Kingdom CHAP. VII IN the time of Edward the Second in the two Judgments against the Spencers the Right of the Bishops to judge in capital Causes in Parliament was carried so high in opinion that their presence was thought necessary to give Authority and validity to the Judgment of the House of Lords in such Cases and their absence was assigned for Error for Reversal of those Judgments for an Error that appears in the irregularity of the Proceedings is an allowable Cause for vacating the Judgment by the same Court that gave it And so far did that Opinion prevail that the presence of the Lords Spiritual was necessary to give Authority to a Judgment of that House that for this Cause because the Prelates were absent that Judgment was reversed Which opinion did arise upon this mistake that because the Lords Spiritual was one of the two States that made the House of Lords nothing could be done without their concurrence But though they are a distinct State from the Temporal Lords they make but one House and they are both there under one Notion and Reason viz. as they are both Lords Spiritual and Temporal the Baronage of England But let any man tell me that can whether if the Lords Spiritual had not been understood Judges in Parliament in Capital Causes it could have been a question whether their absence could avoid the Judgment in the Case of the Spencers much less that such an opinion should prevail that the Judgment should be as it was for that reason reversed And tho' the Reversal of that Judgment was set aside and the Judgment affirmed in 1 E. 3. Yet the publick Recognition of the Bishops Right in the Reversal remains an undeniable Testimony to their Right of sitting Tho' the Reversal of that Judgment was not warrantable for the reason of the Bishops absence as it could not have been reversed by reason of the absence of as many Temporal Barons if there remained enough besides to make a House to give the Judgment And yet we find the Reversal of the Reversal reversed in 21 R. 2. and the Family of the Spencers restored in the person of the Earl of Glocester So prevalent was the opinion that the Bishops Concurrence was necessary in all capital Judgments in Parliament at that time For this see Sir Robert Cottons Abridgment fol. 373. Yet it is observable that the consequence from the Bishops being a third State and an Essential constituent part of that House to a necessity of their presence in all judicial matters even of Capital Offences and Treason did so stick with that Age for they then in that Age did no more know what three States served for or that they both made but one House than some in our time can tell how to find them For that very Reason in 21 R. 2. the first Petition that the Commons made in that Parliament to the King was for that diverse Judgments were heretofore undone for that the Clergy were not present The Commons prayed the King that the Clergy would appoint some to be their Common Proctor with sufficient Authority thereunto The Prelates therefore being severally examined appointed Sir Thomas de la Piercy to assent The words of which Petition and the procuratory Letters for greater Authority and more satisfaction I have thought fit to transcribe Nos Thomas Cantuar. Robertus Eborac Archiepiscopi ac Praelati Clerus utriusque Provinciae Cantuar. Ebor. jure Ecclesiarum nostrarum Temporalium earundem habentes jus interessendi in singulis Parliamentis Domini nostri Regis
Regni Angliae pro tempore celebrandis necnon tractandi expediendi in eisdem quantum ad singula in instanti Parliamento pro statu honore Domini nostri Regis nec non Regalie ac quiete pace tranquillitate Regni judicialiter justificandi venerabili viro D. Thomae Peircy ..... Nostram plenariam committimus potestatem ita ut singula per ipsum facta in praemissis perpetuis temporibus rata habeantur The Commons of England knew what they said and could not be mistaken in fact we know of no Judgments reversed but those of the Spencers But we have no Records or very few of the times before Edward the Third transmitted to us through the injury of the times but they then had certainly whereupon they grounded their petition upon which the said procuratory Letters were made which petition here follows in terminis Mecredy prochein ensuant les Communes monstrerent au Roy coment avant ces Jeures plusieurs jugements Ordinances faitez en temps des progenitors nostre Senior le Roy en le Parliement eiant estre repelles adnulles pur ceo que l'estat de Clergie ne fust prest en Parliament a la faisaunce des dits jugements Ordenances pur ceo prierent au Roy que pur surete de sa personne salvation de son Royalme les Evesques le Clergie ferroient un Procurator aver poiar sufficient pur consentir en leur nosme as toutes choses ordinances a justifieis en cest Parliament que sur ceo chescun Signior espiritual dirroit pleinenent son advys Sur qui les dits Seigniors Espiritual severalment examines se consenterent de Comettre lour plein poiar grantant en les parts nosmerent on especial Tho. Peircy Chivaler sur ceo baillerent au Roy une Schedule contenant lour dit poiar le quelle nostre Seignior le Roy receust commanda la dite Mecredy estre enter de record en Rol de Parliament deque cela Schedule le form sensuit But it is remarkable that this Petition was made in 21 R. 2. for that in the 11 R. 2. the Bishops had made their Protestation that by reason of a Canon they could not be present The words of the protestation we shall here transcribe Per encheson certeins mattires feurent mouvez en cest present Parliament toucherent overtement Cryme L'archevesque de Canterbiry les autres Prelates de sa province fierent une protestation en la fourme paroles qui suent In Dei nomine Amen Cum de Jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non caeteros suos Suffraganeos Confratres Coepiscopos Abbates Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertinet in Parliamentis Regiis quibuscunque ut Pares Regni praedicti personaliter interesse ibidemque de Regni negotiis aliis ibi tractari consuetis cum caeteris Domini Regis Paribus aliis ibidem jus interessendi habentibus consulere tractare ordinare statuere definire ac caetera facere quae Parliamenti tempore ibidem invenerint faciend in quibus omnibus singulis nos Willielmus Cantuarien Archiepiscopus totius Angliae Primas Apostolicae sedis Legatus pro nobis nostrisque Suffraganeis Coepiscopis Confratribus necnon Abbatibus Prioribus ac Praelatis omnibus supradictis protestamur eorum quilibet protestatur qui per se vel procuratorem hic fuit modo praesens publicè expressè quod intendimus intendi volumus vult eorum quilibet in hoc presenti Parliamento aliis ut Pares Regni praedicti more solito interesse consulere tractare ordinare statuere definire ac caetera exercere cum caeteris jus interessendi habentibus in iisdem statu ordine nobis eorum cuilibet in omnibus semper salvis Verum quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet personaliter interesse ea propter pro nobis eorum quolibet protestamur eorum quilibet hic praesens etiam protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus intendit nec vult aliquis eorundem in praesenti Parliamento dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos nostrum quemlibet in ea parte penitus absentare Jure Paritatis nostrae cujuslibet eorum interessendi in dicto Parliamento quoad omnia singula inibi exercenda nostro eorum cujuslibet statui ordini congruentia in omnibus semper salvo Adhuc insuper protestamur eorum quilibet protestatur quod propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit vel vult quod processus habiti habendi in praesenti Parliamento super materiis auditis in quibus non possumus nec debemus ut praemittitur interesse quantum ad nos eorum quemlibet attinet futuris temporibus quomodolibet impugnentur infirmentur seu etiam revocentur Quelle protestation leu en plein Parliament al instance priere du dit L'archevesque les autres Prelates susditz inrollez ycy en rol du Parlement per Commandement du Roy assent des Signiors Temporeles Communes This the adversaries of the Bishops would have an Act of Parliament for that at the prayer of the Bishops by the Kings command with the assent of the Lords Temporal and Commons it was inrolled for that all the formalities that were used in these times in passing a Law was only to have the matter shortly entred in the Roll or Journal Book that such a thing was agreed upon by the King and two Houses which was drawn into the form of a Law afterwards by the Justices and Kings Councel when the Parliament was risen but this was never done in this Protestation and therefore we might say that it is not to be taken for a Law But we will admit it to be a Law yet it can be a Law only for that Case and can be extended no further Those Bishops protest but for whom For themselves only their own persons not their successors that by reason of the institution of the Canon they could not be present at certain matters to be treated of in the Parliament What those Canons were they do not tell us They had no other reason but the Canon to pretend at that time We hear not a word from them of the Assise of Clarendon And what was it that they protested Why only that they could not be present at what only at the matters aforesaid mentioned in the Petition and in that present Parliament But was this without any regard of their Right No they saved their Right their
his qui in sacris ordinibus constituti judicium sanguinis agitare unde saith the Canon Prolibemus ne aut per se membrorum truncationes faciant a very fitting Employment for a Bishop aut inferendas judicent and after all this we have still our old Answer upon which we will ever insist it is but a Canon and can make no Alteration in the Rights of Government For tho' Gervasius Dorob tells us In hoc Concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula yet the Canons of this Council are not Laws For that our Historian does not tell us of any Parliament then held or that they were confirmed in Parliament and the good liking of Great Men out of Parliament will not confirm nay not justifie the Canons if they cannot justifie themselves in Parliament Besides that these Canons were not made into Laws we will offer two Reasons 1st For that amongst these Canons there is one that disposeth of the Right of Patronage against the Law as it hath been before and since taken and that is this Nulli liceat Ecclesiam nomine dotalitii ad aliquem transferre vel pro presentatatione alicui personae pecuniam vel aliquod emolumentum pacto interveniente recipere quod si quis fecerit in jure convictus vel confessus fuerit ipsum tam Regia quam nostra freti autoritate patricinio ejusdem Ecclesiae in perpetuum privari statuimus which was never most certainly Law Secondly If this had been a Law the other Canon before-mentioned made by Stephen Arch-bishop of Canterbury was idle nay presumptuous for offering to derogate from a Canon made a Law about 47 years before But however Canons confirmed by Law remain but Canons still and the Breach of them not punished as the Breach of Laws nor no Innovation made thereby upon a civil Right of which before and after more As to the Second Canon we observe how dutiful this Canon in the Stile of it behaves it self towards the Civil Government in that Clerks should not exercise Jurisdiction where Judgment of Blood is to be given under the soft word Statuimus that they should not Literas pro poena sanguinis infligenda scribere that is sign an Order for the Execution of a Condemned Man or be present at the Sentence is under the districtiùs inhibemus but the doing of this is not declared to be a Sin he that is contravenient to the Canon is not thereby to become irregular to be punished by his Superior or to incurr Excommunication or any Censure the Clergy are not declared by this Canon to be incompetent Judges it only declares them unworthy of the Protection of the Church the meaning of it is Judge not least ye be judged If you judge the Laicks they will judge you This is the Scandal for which the Privilegium Clericale will be lost So that upon the whole matter this Canon is but Advice and Counsel and offers reasons to the Choice and Approbation rather than a Command under the Authority of the Church in a Council But let it be what it will if the Canon had been most peremptory in its Prohibition and had lighten'd and thunder'd in its Denunciatiations it would have been of no force to alter the Government or discharge a Judge from doing his Duty but this is farther to be duely observed that this Canon could not be broken if the Law had not been otherwise than these Canons direct and therefore these Canons produced by our Adversaries are the greatest Testimonies to the Right we defend and a practice agreeable thereto Doth not the Canon suppose that a Beneficed Clerk or one in Holy Orders was sometimes in Commission for judging in Capital Causes For certainly the Canon did not prohibit them to murder or enjoyn them not to write Letters to subborn men to kill What can be the meaning of the Canon but this supposing a Beneficed Clerk to be made a Judge of Life and Death to assist in a Commission of Oyer Terminer or Goal-delivery that he should be enjoyned not to pronounce the Sentence or to sign the Order or Calendar for Execution But if he were not a Judge how possibly could he sign an Order for Execution By the other words of the Canon Nec intersit ubi judicium sanguinis tractatur he can be forbidden onely to be present and assisting as a Judge or Officer at the pronouncing of Sentence for it can be no fault sure nor ever was intended by any Canon to be made one for any Clerk to hear a Court pronounce a Judgment of Death or Mutilation or to see a Malefactor executed What therefore can be more evident than that the Bishops did withdraw not for want of Right of Session but they pretended the Canon because they did not like the Causes But further that nothing more than what we have shewed was understood to be done in that Protestation by those times they must be allowed at least to know their own Opinions doth appear for that notwithstanding the Protestation of the Bishops aforementioned the great Council of the Kingdom did not think the Authority of a Parliament when the Bishops were absent unquestionable This Opinion we do not go about to maintain but this we conclude that there could never have been such an Opinion if the Bishops had been denied Right of Session in Capital Causes in that time CHAP. IX THE Commons of England in the 21 R. 2 pray that the Bishops might make their Proxy which they did thrice in that Parliament once by Procuratory Letters to Sir Thomas Percy as is before recited and afterwards William la Scroop Earl of Wilts was made their Procurator and a third time the Earls of Worcester and Wilts were made their Procurators in the matter between the two Dukes of Hereford and Norfolk That it may the better appear that the Bishops were virtually present by their Proxy it ought to appear that they were allowed to make Proxies and that the Lords Spiritual did so as well as the Temporal Lords The first mention of Proxies that occurs in the memory of our Parliaments is in the Parliament of Carlisle under E. 1. and that is of the Bishops Proxies The words are these Quia omnes Praelati tunc plenariè non venerunt receptis quibusdam procurationibus Praelator qui venire non poterant adjornantur And in a Parliament held at Westminster under Ed. 2. dors clauso Ed. 2. m. 11. the Bishops of Durham and Carlisle remaining upon the Defence of the Marches of Scotland are severally commanded to stay there and in the Writ this Clause was added to both of them Sed Procurat vestrum sufficienter instructum ad dictum diem locum mittatis ad consentiendum his quae tunc ibidem praedictos Praelatos Proceres contigerit ordinari Though generally Proxies were admitted to both Spiritual and Temporal Lords
to the Encroachment of the Papal Power and in this matter to declare how far the Bishops might if they pleased observe the Canon Law or rather themselves and what was thought then decent to their Order So according to the Print in Gervasius and therein he differs from Matth. Paris it is Quousque judicio perveniatur ad mutilationem membrorum vel mortem which further clears the meaning of that Law to be that the Bishops were thereby excused not altogether from Capital Causes but onely when it was proceeded so far in such like Cause that Judgment was to be pronounced which when the Bishops had nothing to gainsay they might depart and leave Sentence to be pronounced by the House But we cannot after all this allow the Author of the Folio to have so little sense as with a good conscience to say that he who cannot perhaps by reason of his circumstance and some consideration of Indecency execute a thing in his own person therefore cannot do it by another no more than he can authorise one man to murther another Thus he saith fol. 20. when surely this Gentleman cannot think it as fit for a Judge to be a Hang-man as to sign a Kalendar for the Execution of the Condemned Prisoners But the Octavo is somewhat surprizing in this matter For he doth affirm That it is not lawful for Bishops to vote in any Question preliminary and preparatory to the Sentence of Condemnation when such Sentence follows and the matter preliminary is necessary to the Process This he proves by a Logick Rule Causa Causae est Causa Causati one of Sthalius his Axioms hath turn'd round the Head of this Gentleman I find few men can bear Axioms Maxims and Sentences There are none speak so much unnatural Non-sence as they that use them most May not several men I pray do several parts of an affair and yet he that doth the first part is no ways the Cause of what another man doth in the second and third place Is the acting the first part of the Play the cause of acting the last Or is the laying the Foundation the Cause that lays on the Roof Is the Jury the Cause of any more than their Verdict And doth not the Court give Judgment by their own Authority and Causality If men would speak by Nature and according to first Notions and were not so full of second Notions and Universals we should not have so many Errors Mistakes and Confounding Opinions in the Work But this we complain of as too severe in the Octavo that when he had confounded us with his Causa Causae Causati he would render us ridiculous with a Story of a Friar out of Chaucer That would of a Capon the Liver of a Pig the Head But would that nothing for him should be dead This indeed was a fine piece of Wit in the Poet but translated hither by our Author is an insipid piece of Malice His Design sure in this was to enter the Bishops amongst Chaucer's Friars and then the Learned Readers of Chaucer would be very conceited upon them and apply all his pleasant Satyrs against the Friars to the Bishops But for the farther Evidence of the Bishops Baronage and their Jus paritatis it would not be impertinent here to add That the Names of Barons Peers Seniors Grants have been attributed to the Lords Spiritual in all times in Authentick Histories and Records Forasmuch as a Nominal Argument is not a very inartificial Topick in such a Cause as this Besides that this will destroy the very strength of our Adversaries which lies in this that they will not allow Prelates to be comprehended in the Name of Peers Grants and Barons And that where the Records doth not expresly mention Prelates they will conclude they were not meant or intended to be present But the Collection which was made for this purpose shall not trouble the Reader because in two Books since Printed in Defence of the Bishops Right in question this is abundantly performed Besides that it is a very precarious Conclusion that our Adversaries make and without argument For they ground themselves herein upon a most unreasonable Postulatum viz. That Titles do not belong to persons for whom they were made and to whose Character they agree and that Words do not design the things which they were made and imposed to signifie CHAP. XIV NOw we shall proceed to perform a necessary piece of Justice to the Prelates as well as a Right to the Government to recover its true Constitution from the Prejudice of Modern Ignorance to declare and manifest that our Gvernment doth consist of three States the Lords Spiritual and Temporal and Commons of England These do make the Great Council of the Kingdom and minister to the King Council and Auxiliaries over which the King doth preside as the Great Superintendent and mover of this mighty Machin The consequence of which is that the Bishops cannot be detruded from that place they bear in the Constitution of the Government for that no Government can be legally or by any lawful power changed but must remain for ever once established And it cannot be no less than Treason of State to attempt a change no Authority in the world is competent to make any alteration The Princes of Christendom after they took to themselves the Election of Bishops which is a natural right of the Sovereign Power become Christian they soon observed the advantage that they might make by advancing them to the greatest Secular Dignities Governments and Trusts and did accordingly advance them to an equality if not to a superiority to the highest of the Secular Nobility gave them Dutchies Marquisates Baronies and rich Endowments and erected that Order into a successive Nobility Another sort of Nobility from that of the Lay Princes concluding that they should be better served by men of their own choice and approved worthiness who had also other advantages over the People than those that the Temporal Princes and Lords had by that Reverence they paid to their Bishops and the Authority and Power that they had over them in the virtue of Religion than by the Hereditary Princes and Nobility who did not always answer to the virtue of the original Ancestors and the first stock Besides that Religious Kings and Sovereign Princes did by advancing Bishops intend to do great advantages and honour to Religion but withall they did not divide the Bishops thus advanced from the Secular Princes and Noblemen in Councils for then they had lost their design The Bishops could not have had any direct influence upon the Councils of the Nobles and Secular Princes nor have tempered their Debates with an excellent Charity and firm Loyalty and other Vertues which belong to their Character It would have made trouble distraction and impediment in the Affairs of Princes and emulation and strife and faction between the Ecclesiastical and Secular Orders and several mischiefs and great inconveniencies would have
Fortunes to their Children but what they themselves could deserve viz. Hate and Infamy All Usurpation and Encroachment of Power is to be opposed where it can be lawfully as the greatest Mischief and the Ministers to the Designs hated and detested as the most pernicious and loathsome Vermine CHHP. XV. BUt to return agreable to this Policy of Sovereign Princes who had the Donation of Bishopricks of advancing Bishops to the highest secular Dignities and Trust William the Conqueror did create Bishops into Barons and exacted the Services and Counsells of Barons in the Great Council of the Kingdom by putting their Lands under Tenure by Barony he gave them no new Endowments but as a Conqueror he confirmed their Ancient Possessions under a new reserv'd Tenure and annex'd to their Order a Secular Honor a successive Baronage Since the Conquerour the title of Baron took the place of that of Thane which was likewise a Feudal Honour in the Saxons time By William the Conquerour Baronies were feudal and in congruity to the State of the Lay Nobles he made the Bishops feudal Barons for there was no other than feudal Nobility at that time It will not be amiss nor time mispent here to give a short account of the Government in the Conquerours time of the Baronage by him introduced and the policy thereof and of the change made in the Baronage of England in after time Because from thence we must derive the Bishops Right now in question which is included and virtually contained in their Right of Baronage Hereby it will appear that the Bishops were of the Barones majores and of the Barones majores the first in Dignity that they became feudal Barons in the Conquerour's time and when the reason of our Baronage changed and no man continued a Baron ratione tenurae it cannot with reason be said that the Bishops are Barons onely for the sake of their Lands which our Adversaries do insist upon for that they think it is an abatement to the Honour of Peerage and a prejudice to their Right in question but because it has been said before by men of Authority in the Law and grown up to be a vulgar error we will now discharge the mistake by affixing here the History and Reason of the change It was the policy of the first William for some are so critical they will not call him Conquerour to create new Tenures upon all the great Possessions of the Realm and impose upon the principal men to hold their Lands of him in capite under such Services that were necessary in peace and war for State and Justice and by putting all the considerable men of the Realm under Oaths of Fealty incident to those Tenures besides the Oaths of Allegeance he provided for the establishment of his Conquest or his possession of the Crown without title The principal men of the Realm both Ecclesiastical and Lay hereby were not onely obliged to support but to become part of the Government and were obliged to be Ministers of Justice and also Members of the great Council of the Kingdom or Parliament which was now to be made up principally of his Dependents by which he changed the constitution of the great Council in the Saxons times in the balance of that equal sort of Government the consequent mischiefs whereof this Kingdom laboured under untill we recovered it again by an equal representative of the Commons in Parliament in the time of King Henry the Third The power of the Baronage proved equally oppressive to the people and came in that time to be reduced irreverent to the Crown By this policy the Conquerour intended to establish his Conquest to secure to himself and his posterity the Imperial Crown of England imagining that otherwise he should have been but a precarious King He had now turn'd the Kingdom upon the matter into one great Mannor and kept his Courts called the Curia Regis in the nature of a Sovereign Court Baron now become more frequented and solemn than that Court was before the Conquest thrice in every Year at stated Times and Places viz. at Easter at Winchester at Whitsuntide at Westminster and at Christmas at Gloucester at these times and places all his Tenants which were all the considerable Free-holders of England attended of course and upon a General Summons at any other time or place appointed by the King as his Affairs did require they were bound likewise to attend In these Courts the Suitors swore Fealty did renew and confirm their Obligations to the Crown and the King became more assured of their Allegiance by their Personal Attendance and by his Royal Entertainments of them at such times In these Courts they recognized their own Services and the Rights of the King their Lord and assessed Aids and Estuage Prestations due to the Crown by their Tenures upon themselves to which in general they were obliged by their Tenures In these Conventions the Right of the Suitors the King's Tenants were adjudged as Private Lords had Judgment of the Right of Lands in pretence held of them in Fee in their several Manors as they have to this day But if Right was not done by the Lord the Cause was to be removed to this Curia Regis the King being Lord Paramount of whom all Estates mediately or immediately were held Which appears by the Form of the Writ of Right now in use which we will transcribe N. B. precipimus tibi quod sine dilatione plenum Rectum teneas A. de B. de uno Messuagio L. in I quae clamat tenere de te per liberum Servitium unius denarii per annum pro omni servitio quod W. de T. ei deforciat nisi feceris Vicecomes faciatne amplius inde Clamorem audiamus pro defectu Recti The Common Pleas was not then a Court and at this time the Appeal and resort to the King was in this Court if Justice was not done by the Lord or Sheriff So that the greatest part of the Justice of the Nation was administred in those Assemblies But it must not be understood that this vast Convention was a Court of Judicature for every Cause neither that it was formally a Parliament without some farther Act of the King for erecting that Convention into the great Council of the Nation But in this Curia Regis they were obliged to answer the King's Writs of Summons Writs of Commission and obey his Appointments in the Ordinary Administration of Justice in which the Capitalis Justiciarius or Justitia was to preside That this was not a Judicature the vast numbers of those that made it the inequality of the Persons considered under the Common Reason of being Tenants in Capite and Barons whereby they became indifferently members of the Curia Regis besides the neglect that must necessarily be presumed in the greatest part of such a Body to the business of Jurisdiction and judging of Rights without particular Designation thereto do sufficiently argue and evince But
but thence he offers a Reason which must needs be a Mistake too why Bishops shall not be tryed by Peers in Capital Crimes because these are personal and his being a Baron is Ratione tenurae and not of personal Nobility But this he wrote when he was young in his first Edition of Titles of Honour which was in the time of King James But can there be a harsher and more incongruous thing said than that there is any other Nobility than what is personal Can Land be noble This that I have said is to prove That the Spiritual Lords are of the Baronage of England such as it is now constituted and they do not cannot remain in any Reason or Understanding Feudal Barons after the Ratio Baronagii is changed and if they could remain Barons Ratione tenurae at this day yet they ought to have all Preheminencies and Priviledges of Barons But true it is that they are another sort of Nobility different from that of the secular Lords though equal in all the powers of Baronage and besides have precedency in Honour and therefore make a distinct State from them and one of the three Estates or Ordines Regni Besides that by the way we have destroyed the Force of the Arguments used by the Folio against the Jus Paritatis of Bishops and their Competency to try a Lay Peer which we shall speak to more by and by CHAP. XVII IN the King and in these three Estates is placed the Peoples Security and the Care of the whole Community from every of them they have distinct just and reasonable Expectations though the third State of the House of Commons hath carried away and almost ingrossed the name of the Peoples Representatives though they are only the Peoples Representatives to act for them in matters wherein the People are left at perfect Liberty and concerning which there is no Order taken in the Constitution of the Government This is truly Our Government a King and Three Estates the Lords Spiritual the Lords Temporal and the Commons by their Delegates and Representatives for the purpose only to treat about matters in which the People have Power to deliberate and are and ought to be redress'd This is the Forme of all the Modern and Gothick Governments planted in Christian Europe Guntherus expresseth three Estates thus Praelati Proceres missisque Potentibus Vrbes The great men of Estates Proceres were sufficient to take care of their Interests and Dependents which made the Body of the County But then there were Cities or great Towns in which were great Bodies of Freemen men of Wealth and Trade that were little concerned in Lands or Tenures which we call Liberi Burgi which our Neighbors call Hans Towns And our Kings seem to have by Prerogative a continuing Power to declare Towns when they arrive to be great peopled and rich Free Boroughs and thereupon they acquire a Right to send Delegates to Parliament And this appears for that many Boroughs that send Burgesses of to Parliament have no other Foundation Right but the King's Charter in which he grants Sit A. de Caetero liber Burgus I have seen some of these Charters as ancient as King John These Charters could have had no such Operation but by vertue of some Ancient Establishment in the Government We have no History of its Commencement King William I. that he might have the assistance of all the States in Parliament put the Boroughs under Tenure by Baronage How many of the Burgage Tenures were of that sort we know not but it is probable all that at that time sent Burgesses to the Parliamentary Conventions by what name soever they were then called the Burgesses of the Cinque-ports are still called Barons And we know that the Borough of St. Albans was put under that Tenure and in that Right challenged them to Burgesses to Parliament as Dr. Brady acknowledgeth But the reason why we have no remembrance of the Tenures of Boroughs to send Burgesses to Parliament is that which we have here proved viz. the ancient reason of Baronage viz. by Tenure did cease about the time of H. 3. And conformably the King might require Boroughs to send Members to Parliament without mentioning in his Writs the duty of their Tenure and by declaring them free Boroughs give them that Priviledge though not oblig'd thereto by any Tenure created upon them So that it is evident that before H. 3. our great Councils or Parliaments consisted of three Estates though they all pass'd under the general Stile of Baronagium Angliae which I thought fit to demonstrate that our Parliaments or great Council of the Realm always consisted of three States Corol. From this that the King's Prerogative being so viz. to have power to declare Free Boroughs which he useth by his Letters Patents The Rights of chosing their Burgesses to Parliament belongs to all of the Community and cannot be restrain'd to fewer Electors by their Charters For Jura ordinaria non recipiunt modum The Remainder at least of this Form of Government continued in all the Countries wherein the German Colonies made their Conquests and planted themselves as will appear to any body that will consult the Republicks and those plentiful Quotations that hath been made by a Learned Author in his Book published since this was written I cannot but wonder since this our Constitution hath been oftenmost authentickly declared and every one knows that the Government is materially so as we have said and it is agreed by all that the Government consists of three States that yet we know not where to find ' em There is much Art used to give Countenance to or rather to form an Opinion that the King is one of the three States It is now almost come to be an Opinion and insomuch as it is an Opinion it is an Error This Error such as it is is endeavored to be improved to the Destruction of the Government It is nurs'd up carefully and is to gain Reputation and Credit with the People by the Authority of great Names and when it is grown popular it is designed to take the least next Advantage against the Spiritual Lords to dismiss them from their Bench as no necessary or essential part of the Government There was it 's true an ill-pen'd and inconsiderate Address made by the House of Commons only to the the King in 2 Hen. 4. to desire him to make Peace between the Lords and therein they say that the three States of Parliament are the King the Lords Spiritual and Temporal and the Commons But this is the first time that an Address of a House of Commons was so nicely considered And that the Form and Letter of it should be the measure of Law and of the Government There was also a phantastick Letter written by Stephen Gardiner printed it seems in the Book of Martyrs wherein that Bishop talks of three States in which he must needs reckon the King for one For he could not leave
him out of the Government and he had no more Christian Graces than Faith Hope and Charity which he attributes to this Ternary of States of his own making But if he had four of those Graces there had been four States if six of those Graces to have match'd them in number he would have found three States in the House of Commons viz. Knights Citizens and Burgesses and have made six States It seems too King James made a Speech in Parliament wherein he was pleased to use his Logick and liked it seems the Ramistical way of Dichotomies The truth is he had more Logick than a wise King could tell how to bestow For in that Speech he saith The Parliament is composed of a Head and a Body himself and the Parliament This Body is sub-divided into two parts the upper House and the lower House The upper House into two Lords Spiritual and Temporal the lower House into two Knights and Burgesses The Citizens were left out for the sake of his Dithotomy His Method was to proceed by the way of two's and therefore 't was impossible we should here in this Speech of any three whatsoever yet this Speech too is produced against three States distinct from the King Besides they tell us that in one of the late King's Declarations drawn by then a young Gentleman but of great hopes and afterwards a very great Man the King is called one of the three States This Gentleman was very probably misled into that Mistake by a Book called Nomotechnia wherein it is said that the King Lords and Commons are the three States a Book of Institutions for young Students which was never yet allowed for Authority in the Law nor ever had the Honor to be cited in our Courts of Westminster These Mistakes or whatever you will call them with the Authority of the Octavo Author are united together to form an Opinion that the King is but the Bishops are not one of the three States which will be a very dishonorable Error For that it will lead us into a Mistake of our Government and which is much worse for that it hath a tendency to subvert it that is to depress the King and to suppress the Bishops It is an Indign thing and not to be suffer'd that we should lose our Government by Surreption and be made a Babel by dividing and confounding our Language To prevent this mischief we have declared our Government from the very Reason and Nature of the Structure thereof to consist of three States that is three different Orders which make the Great Council of the Kingdom whose End and Business is to administer Council and Auxiliaries to the King who is intrusted with the executive Power of the Government and Laws And besides now we will produce great Authorities to put this Mistake out of Countenance and to prevent its gaining any farther Authority with the People For Errors of this nature in process of time turn into Truth and things prove to be so at last as the Error and Mistake first bespake them and this our Lawyers know well enough with whom 't is a Maxime it belongs only to them and matters within their Province Communis Error facit Jus. And first for this purpose we will mention the Stile that the Parliament used which was convened by the Authority of Richard the Second he being then about to relinquish the Crown to H. 4. This Parliament in transacting so weighty an Office had reason to consider and know who they themselves were They without doubt in all their Proceedings in this High Matter used their true as well as biggest Stile which was that of States Walsingham tells us Sede Regali tunc vacua Procurators Regis Richardi Archiepiscop Eborac Hereford Renunciationem dicti Regis cessionem omnibus statibus Regni tunc adunatis ibi publice declararunt And again Quoniam videbatur cunctis Regni statibus super dictis Articulis singulatim ac etiam communiter interrogatis And again Ordinati sunt Comissarii ex parte statuum Communitatis ejusdem Regni Observe here that the King is none of these States that they are called all the States which signifies more than two that there is mention of States besides Community and therefore it was then understood that there were two States in the Lords House But afterwards he recites us the Form of a most important Instrument which follows In Dei nomine Amen Nos I. Episc Assavensis I. Abbas Glasconiensis Thomas Comes Glocestriae Thomas Dominus de Berkley Tho. de Epingham Tho. Gray Miles Willielmus Thirning Justiciarius per Pares Proceres Regni Angliae Spirituales Temporales ejusdem Regni Communitates omnes status ejusdem Regni Representantes Commissarii ad infra scripta specialiter deputati c. By which it is most clear that the Government was then understood to consist of three States of which the King was none as he cannot be with any Congruity 1 R. 3. Rot. Parl. apud Westm die Veneris 23 Jan. it appears that a Bill was exhibited coram Dom. Rege in Parl. Wherein is contained That several Articles on the behalf and in the name of the three States of the Realm viz. Lords Spiritual Temporal and Commons were delivered to the King And farther that the said three Estates were not assembled in form of Parliaments therefore be it ordained by this present Parliament that the Tenor of the said Articles delivered as aforesaid on the behalf of the said three Estates out of Parliament c. Now by the three Estates assembled in this present Parliament be the same ratified and approved Ac idem Dominus Rex de assensu dictorumtrium statuum Regni Authoritate praedicta omnia singula praemissa in billa praedicta contenta concedit ea pro vero indubio pronunciat decernit ac declarat This was in like manner an Act of Parliament for declaring the Right of the Crown to be in Rich. 3. In the Statute made 2 H. 4. the Word State is used plurally and for more than two of which the King was none to signifie the Parliament as appears cap 15. And so it is also in 4 Hen. 4. cap. 4. in which these words are Sith it is the desire of all the States of the Realm that nothing shall be so demanded of our Sovereign the King He will that all those who make any Demand c. So that hereby it is evident that in the Understanding of that time there were three States besides the King But to spare the Reader the trouble of the mentioning the Records at large that testifie the Parliament to consist of the King and the three Estates viz. Lords Spiritual Lords Temporal and Commons I will refer them that doubt to the Collection made in Mr. Pryn's Index to Sir Robert Cotton's Abridgment under that Title who himself was of this Opinion which nothing but the Evidence of the truth of the thing could have
concesserunt in sententiam Excommunicationis generaliter latam apud Westm decimo tertio die Maii Anno Regni Regis praedicti 37 in hac forma viz. Quòd vinculo praefatae sententiae ligentur omnes venientes contra Libertates contentas in Chartis communium Libertatum Angliae de Foresta omnes qui Libertates Ecclesiae Angliae temporibus Domini Regis praedecessorum suorum Regni Angliae obtentas usitatas scienter malitiosè violaverint aut infringere praesumpserint And the Record concludes In hujus rei memoriam in posterum veritatis testimonium tam Dominus Rex quà m praedicti Comites ad instantiam aliorum populi praesentium which at that time was the style of a Parliament and the manner of passing such Acts scripto sigilla sua apposuerunt Rot. Pat. 37 H. 3. M. 12. dorso And whereas it was provided by the Confirmat Chart. c. 4.25 E. 1. and by the Statute De Tallagio non concedendo c. 4.34 E. 1. That Excommunication should twice a year be denounced against the Infringers of Magna Charta At a Synod held for the Province of Canterbury in that Kings time John Peckam Archbishop of Canterbury enjoyned the like Denunciations near four times every year Constit Provinc tit De Sententia Excom And in the Province of York it obtained three times in a year Manuale juxta usum Ecclesiae Eboracensis By which the exemplary zele of the Bishops in those times against Oppression and the violation of the common Rights and the attempts of absolute and unlimited power appears for that they prevented the Temporal Baronage and outdid the Parliament it self in defending and guarding the Government of Laws By the way we cannot but take notice of Mr. Selden his mistake in his book De Synedriis which he fell into by inserving to his beloved Erastian Hypothesis viz. That that Excommunication before mentioned in 37 H. 3. was enacted by Parliament whereas it was onely confirmed but pronounced by the Bishops though with the seeming good liking of that King so that the Power of the Keys was not usurp'd but the exercise thereof approved by Parliament according to what hath been usual as Grotius observes Vsum Clavium Divino Juri congruum poenarum injunctionem Canonibus Legibus consentaneum summae potestates solent approbare atque hoc est Imperiale Anathema Quòd non una Justiniani lege comprehensum est Which together with what hath been said by us here will serve for an Answer to what Mr. Selden hath aggested in his book De Synedriis for wresting the Keys out of the hands of the Bishops They pretend to a Jus Divinum only for that which merely concerns their Spiritual Office and I cannot for my part suspect them of holding any Opinion of a Jus divinum in Civil Offices which are of a Humane Original because I can imagine no reason for such an Opinion though I know it is by some imputed to them By a Thomas of Becket a Sibthorp and Manwaring and a few less-considering Clergy-men in an Age we are not to conclude the Judgment of the Body of our Learned Clergy They assuredly know as all men in their Wits do believe that the Government is de jure such as it is and can be no other nor rightfully admit any Alteration That God never made any Commonwealth but one by his directive Will and that only for one Nation for in these things he hath left men ordinarily in the Hands of their own Councils and to their own Prudence in which he had no regard to the absolute rightful Sovereignty of Adam's right Heir the wildest certainly of all the Paradoxes that this giddy phantastick Age hath produced The Kentish Knight should have kept his Dream to himself until he had found him out and then have brought him and his Book called Patriarcha together to the King Then I doubt not but his Majesty would have provided him his due Reward But his Book and the Publishers thereof deserve his Majesty's utmost Displeasute For we are in fear that the Government is about to be changed when Books are licensed to prove any thing Lawful in that kind And besides it makes a Charge upon our Divines that they have a good liking to the Design for that they who best understand by their Profession the jura divina have not answered it But to speak the Truth the Book is not to be answered For it is but a fine Essay how near Non-sence may be made to look like Sence and it is truly worth no man 's Undertaking But whatsoever sinister thoughts some ill affected Men to the Bishops may conceive of them we expect and with reason too that they will with equal Courage to that recorded of their Predecessors stand up for the Preservation of the Government in its true and rightful Constitution And the rather for that the true Religion their Principal Care and their Temporal Rights and Dignities will inevitably perish in the Change Nay perhaps in consequence of the very Attempt of a Change except they strenuously for their parts oppose it However their Order will certainly by their Silence and Indifferency be rendred despicable They will lose all opinion with the People of their Sincerity perform their Functions with no advantage and lose that share in the Honors and Affections of the People that will establish them bespeak them useful and necessary to the Church and state in their several Capacities in all after times That they answer their Trust and perform that Duty which they owe to the Publick in their several Offices is that we may justly expect And this they will certainly do though they should be censured as they were in K. John's days or in the Language of the Folio Author charged to be clamorous and over-busie Medlers in Matters of State and Government But to return Is it not a course Artifice in the Octavo pag. 96. that he will so willfully mistake the Question'd of the Bishops being one of the three States and representing the Matter as if the Bishops should have a Negative by themselves to stop the passing of any Bill if they are admitted to be a distinct State CHAP. XXVI WHen it is not disputed or brought into Question whether they are divided in their Voting from the Temporal Barons most certainly they never were nor was it ever disputed Though an obstinate Opinion was maintained from the Time of E. 2. in the Case of the Spencers until the Time of E. 5. in the Case of the Earl of Salisbury that the Bishops Presence was necessary in Judgments even in Capital Causes which must be allowed a clear Argument for their Right of Judgment in such Causes For the Spiritual and Temporal Lords though two States make but one House upon the Reasons afore-mentioned according to the general Understanding and Usage of former Ages But upon this Supposition he tells us of several Bills that gave furtherance to
the Reformation to which the Bishops did not assent and would never have passed if they had had a Negative upon them But by his Favor these Instances of his are great Arguments of those Bishops their Sincerity For they must needs be under great and violent Prejudices Besides every great man as the Author of the Letter well knows is apt to value himself and cares not to be accounted a light man and the higher in place the more unwilling to be found in a Mistake and they are not content if Old Men Quae juvenes dedicere senes perdenda fateri There is good Hopes therefore that our Rightfully Reformed Bishops will be the last that will give up the Cause of Reformed Christianity and will not be out-done by the Popish Bishops in Constancy when they have a better Cause I must likewise take notice to do the Spiritual Lords Justice of the Behavior of the Gentleman in Folio towards the Bishops He takes notice and that dutifully of the Satyrical so he calls it Language of the Pamphleteers against the Court and the greatest Scurrilities with which the House of Commons are aspersed but has not heard sure of any against the Bishops and the whole Ecclesiastical Order For he makes not the least mention of any such But because they shall not escape besides that in his Book he declaims 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 against the Order and seems so fond of this Office that he forbids all other the use of the Cart he tells the Story of Hephestion and Craterus the one of which loved Alexander and the other the King By this Apologue I doubt not but he intended a Slander and to signifie thereby supprestly a lewd Reproach viz. that the Bishops are not true Servants of the King and Government but of themselves than which a falser thing I hope cannot be said nor a more malitious thing imagined if not true For he may know that they are better men in their true Character than his Loyal Patriots that are true to the King and House of Commons For they have I doubt not I am sure they ought to have a care of the whole Government in the Integrity of its Constitution The Bishops well know how much the People are concerned in the Greatness of the House of Lords which establisheth the Throne and makes and supports the King Great and by their Power and Interest make his Government equal to which they contribute no small Share for to them is entrusted by the Authothority of our Lord Christ the Conduct of Religion and that mighty and momentous Office hath commended them and advanced them to the State of Peerage and will continue them in great Authority with the People as long as the Nation continues in any degree Religious The Temporal Baronage cannot want them in the Support of that mighty Province that belongs to that House In them the People will find their Interest as long as they can value Wisdom and Religion that is as long as they are Christian Men and by them the Kingly Office will find it self served as long as true Religion and Wisdom can minister to the Support of Government and wise and good men under the greatest Trust and in the highest Dignity in the Government can be fit Councellors and Ministers of State The Octavo hath also a hint to this purpose for pag. 30. where he brings in the Case of Thomas Arundel Arch-bishop of Canterbury when all the Bishops made Sir Thomas Piercy their Procurator he says That uniting in one man argued a great Unanimity in the Voting of the Prelates which seems saith he hath ever been The meaning of this is a sly Disparagement of the Bishops in their Voting viz. that have one Common Tie and Dependency upon the Crown that determines them to their Interest and produces the Unanimity of Voting But are the Bishops more depending because they once for all received their Temporalities from the King than the Temporal Lords who are commoly Officers of State and otherwise depend upon their Prince's Favor Is not the Bishops Advancement rather a Reward to their Eminent Services performed in the matter of Religon of the greatest Importance certainly to the State and a Recognition of the excellent Character of those men that are preferred to that Office than a Bribe upon their Actings after they have that Favor irrevocable Do not we know that the Services of Church-men are rewardable upon the Churches Stock and that the King need not impair the Royal Treasure to pay Thanks to Episcopal Men whose Worth doth bespeak the Royal Favor to that Preferment and Advancement Are not the Temporalities of the Church the King 's only to give but not to retain What evil Prejudice or Obligation can this be to any man to serve the King unfaithfully who hath chosen him perhaps though there were others but as equally fit for that Office For we ought to suppose no other disposition of those Dignities than what is just and fit in our general Discourses however things are administred in particular Cases Is not this an Office together with its maintenance of the Provision of the Law and not of the King But to remove that Scandal of their Unanimity in voting which some have reproached with a scoffing Term of a dead Weight it may be considered that Men of the best Judgments and Honesty mostly agree That Variety of Judgments proceeds oftner from Passion and Interest than from Difficulty of the matter debated It mostly grows either from want of Integrity or want of Judgment Agreement in Votes is an Argument therefore of true Judgment and unbiassed Integrity As it is also farther of a good Correspondence amongst themselves of previous Debates and more mature Deliberation Besides that it is no unusual thing in difficult and lubricous Affairs for many to compromise the matters to a few or to the Majority of their own Numbers and abide the Result of the major part But because this matter of Exception to the Integrity of my Lords the Bishops in the great Affair now in Agitation is argumentum ad hominem and gives Prejudice to the true Right and Merits of the Cause and is the most prevalent and hopeful Argument if not the only one that our Adversaries can rely upon For whatever the Causa justifica or Pretence be for the espousing of any Opinion or part of any Controversie if the Causa suasoria the Inducement and true moving cause thereto be strong and persuasive the slightest Reasons will be a pretence for Confidence and the smallest Color of Right shall prevail finally and in the last Issue especially where the Parties concerned must judge or by their Power can make their Will and determinate Resolves to obtain to the biggest purposes I will therefore farther add that we well know what a high Esteem their true Character doth deserve That they are intended the Light of the World the Salt of the Earth If the Salt hath lost its Savor
chose to trust them rather than his Protestant Subjects in making his escape at Worcester they have contrived these two last Plots with such Art as to bring them under His Majesties observation and represented them as things fit for his encouragement Sure if they were not urged with the fears of a real guilt and a restless Conscience of the Plot they would never have adventured thus to have interested the honor of the King and to tempt him to abandon them to the publick Justice of the Nation which begins to grow impatient by the delays of it against this Hellish Plot For we have had four Parliaments dissolved since the Discovery of it one a darling to the Crown The bringing into question the Dissolution of that Parliament in the House of Peers upon the reason of an unnatural Prorogation was not long before censured and some great Lords imprisoned therefore proceeding so unwarrantable that it was after thought fit by that House to obliterate the Memory of them so necessary was that Parliament then thought to the service of the Crown The Dissolution of that Parliament gave us reason to fear that the King had no more business for Parliaments By these Dissolutions no publick ends that are intelligible are served no interest is gratified no persons of any sort receive their satisfaction but the Plotters and the Plot are respited thereby from publick Justice and gain time to bring the Plot to effect This is the end the Papists have served but the King our great Physician of State had another reason that hath governed him for he knew the strength of the Plot our Disease and that a Disease that is dangerous is sometimes to be palliated until the season comes to make a thorow Cure for it many times kills the patient to precipitate the Crisis all these Demonstrations of the Plot are past under every mans observation But that we know so little of it after all this time It is now above three years since the first discovery that the Plotters now ordinarily escape Justice That a great Judge did abate his first Zeal in punishing the Plot least he should exasperate it and Reason of State might thus require it These things prove the greatness and strength of the Plot as well as the reality of it these declare the Plotters interest is great that the Plot is yet unbroken stanch and hopeful and therefore we are not to believe our selves well and live sine Regimine as the Physicians say but to expect address to and desire our Cure And that the Papists think it yet hopeful is evident from the Priests and the Lawyer abjuring their guilt with their last breath We had the honest Confessions of the Convicted Priests and other Traitors of the Popish Treasons of which they stood Convicted in the time of Queen Elizabeth and in the time of King James of the Gun-powder Treason What then could induce our Plotters Convict to utter most solemn perjuries the next minute before they were to appear to God nothing sure but that they then hoped that the Plot might be executed they did it for the interest and service of their Church and for the better bringing it to effect For which they dyed and for which at their deaths to conceal they adventured Heroically upon lyes and perjuries which if confessed would have been frustrated and become Abortive For it must not be believed that that Church is so degenerate as to permit and allow men to such impieties for the punctilio's of honor though of the Church it self But while they are not done for the sake of him that commits them but for an important interest of their Church such as the carrying on of this Plot they say they loose their nature by the direction of the intention they become a pure piece of mortification and self denyal an adventure to trust God in what they do for his sake and for his service and their Casuists will no more call them in this Case lyes or perjuries than Abraham's offering up his Son Isaac though that was at Gods express command was murder But the God of Truth that God who hath declared that when he himself in any entercourse with Mankind interposeth an Oath that the matter under that Oath is irrevocable peremptory and absolute cannot license or dispense with perjurious falshoods for any end whatsoever But I must remark one thing more and that is touching the credit of Dr. Titus Oats and Capt. William Bedloe viz. That they have been incurious in their conversation have followed their own natural course allowed themselves in their passions have been apert and unreserved have not cared who they offended have sought no mans favour seem to care for no mans opinion have valued and supported themselves only by their veracity and have seemed to set all the World at defiance to find a flaw in their evidence and have had little of friendship or esteem but for the sake of their discovery Besides that so long a time hath not afforded a possibility by all the Artifice Interest and unhallowed frauds of Rome to falsify any one part of that evidence But numberless events have given credit and authentickness to their Testimony Did ever any feigned Testimony bear it self up with so much Confidence Bravery and Assurance was there ever any false witness that did not endeavour to render himself acceptable to bespeak favour which draws after it eredit and to appear of the most unexceptionable behaviour Their faults and imprudences such as they have been we would not have wanted to make their evidence beyond all exception The undoubted truth of their evidence alone hath given them the civil respect of all honest men and will give the Doctor the publick honors of the Nation in due time I will not recite the innumerable Sham-plots contrived against the Protestants every one of them a Demonstration by it self of the trurh of the Popish Plot because I have no design to exasperate but awaken these men that are asleep and secure in this storme This trouble of demonstrating of the Plot may seem unnecessary to the judicious nay to the plain sort of honest upright and well meaning men and so it would certainly have been had not some young Gentlemen by this paltry thing called Wit been corrupted in their judgments and brought into a Scepticisme and wild undetermination in a matter of so great concernment This despicable faculty hath made a famous Gentleman who hath a liberal dose of it a Writer of Books caused him to waste so much Paper and abuse so many Readers but in all that I have read of him there is nothing true and sincere or truly and sincerely said his Judgment is made false by his Phantasie or he hath serv'd a turn by his Versatile windings and Wily conceits That dangerous faculty that he indulgeth hath imposed upon him which the severe and honest enquirers after truth are concerned to mortify and suppress And I do earnestly
recommend to all ingenious Gentlemen that would be rightly instructed and informed neither deceive others nor would be deceived themselves as they love truth and virtue wisdom and sober thoughts to dispise this sort of wit in others and repress it in themselves And never allow it to be used but in the hours of mirth in the Relaxations of their minds from serious Contemplations and matters grave and weighty where this prophane thing wit ought always to be shut out with care Enough hath been said for rectifying the mistakes of any true Protestant especially any Clergy-man of the Church of England which you have objected against them about Government or Parliament dissenters from the Church of England and Popery Especially when it is made apparent that these mistakes are made serviceable to the Popish Plot and the means which that party prosecute to compass and bring about the ruine of our Church But that nothing may be wanting that lyes in my poor power for pulling their Foot out of the Snare I shall more distinctly consider them First I shall desire them to consider what our Government is and where the true knowledge of it is to be found And where can it be found but in our Statute Books the Commentaries of our Law the Histories of our Government and of the Kingdom Search them if you be at leisure if you are not consult those that have read them and whose business and employment it is to understand them and you cannot fail to be informed That the King hath no power to make Laws that both Houses of Parliament must joyn with the King in making a Law It can with no more reason be concluded that the King hath the Legislative power because his Assent makes the Bills in Parliament Laws than it can because the third Unit added to two makes a Triad that the other two do not go to the making of that number when a matter 's moved from the King in Parliament to pass into a Law the Commons consent last The Letters Patents of Ed. Sir E. Cook 8 R. 3. for making the Eldest Son of a King in Succession Prince of Wales and Duke of Cornwall was confirmed as there must have been otherwise they would have been void by the House of Commons And yet we will not say that the House of Commons can make a Prince of Wales or Duke of Cornwall And yet upon no better reason than this some men will talk as if they believed themselves that the Legislative power is in the King when no King of England yet ever pretended to it but by their process of Law have punished such officious and mischievous Knaves They will tell you that the Laws are the measures of our Allegiance and the Kings Prerogative and declare the terms of Obedience and Government That a Legislative authority is necessary to every Government and therefore we ought not to want it and therefore Parliaments in which our Government hath placed the making of Laws cannot be long discontinued nor their Conventions rendred illusory and in vain which is all one as to want them That to Govern by Laws implieth that great fundamental Law that new Laws shall be made upon new emergencies and for avoiding unsufferable mischiefs to the State By the Statutes of 4 Ed. 3. c. 14.36 Ed. 3. c. 10. it is provided that Parliaments be holden once every year The Statute of this King required a Parliament every three years which being an affirmatory Law doth not derogate from those of Ed. the 3. But if the King doth not call a Parliament once in a year He neglects these Laws and if he delays calling a Parliament three years he neglects the other Law of his own time to And for that he is by the Law intrusted with the calling of Parliaments He is at liberty to call them within the times appointed And that Laws ought to be made for Redress of mischiefs that may ensue appears by the Statute of provisors 25. E. 3. cap. 23. In which we have these words Whereupon the Commons have prayed our said Soveraign Lord the King that sith the right of the Crown of England and the Law of the said Realm is such that upon the mischiefs Dammage which happeneth to this Realm he ought and is bound of the Accord of his said People in his Parliament thereof to make Remedy and Law in avoiding the mischief and dammage which whereof cometh which that King agreed to by his Royal Assent thereto given I dare be bold to say that never any Bill in Parliament was lost and wanted the Royal Assent that was promoted by the general desires of the people If Popery therefore which is the greatest mischief to us that ever threatned this Kingdom can be kept out by a Law we ought to have such a Law and nothing can hinder such a Law to be past for that purpose but want of an universal desire to have it I desire these Gentlemen to consider how they will answer it to their Saviour at the last day if they suffer his true Religion and the professors of it to be destroyed and persecuted when nothing but their desires of a thing lawful to be had and of right due was requisite to prevent it Their sufferings will be just and righteous from God if their sin occasioneth it and very uncomfortable to themselves The extent of the Legislative authority is no where to be understood but by our Acts of Parliament in which it hath been exercised and used and by such Acts that declare the extent of its power by the 13. Eliz. cap. 1. it is made Treason during that Queens Life and forfeiture of Goods and Chattels afterwards To hold maintain and affirm that the Queen by the Authority of the Parliament of England is not able to make Laws and Statutes of sufficient force and validity to limit and bind the Crown of this Realm and the descent limitation inheritance and Government thereof And this authority was exercised by Entailing the Crown in Parliaments in the times of Richard the 2d Henry the 4th Henry the 6th Edward the 4th Richard the 3d. Henry the 7th thrice in the time of Henry the 8th and upon the Marriage of Queen Mary to King Philip of Spain both the Crowns of England and Spain were Entailed whereby it was provided that of the several Children to be begotten upon the Queen one was to have the Crown of England another Spain another the Low-Countries The Articles of Marriage to this purpose were confirmed by Act of Parliament Those that are truly Loyal to our present Sovereign have reason to recognize with high satisfaction that such a power of altering and limiting the descent of the Crown is duly lodged in the King and States of the Realm For under the authority of an Act of Parliament of the Kingdom of Scotland we derive our selves to the happiness of his Government and and He his title to the Crown of Scotland which drew to
all I cannot imagine they can pretend an umbrage from the Holy Scriptures for such unheard of opinions The Jews indeed had a Government and Laws of Gods framing and appointment and a King of their own choosing and such a King as they desired by God's permission they had But their form of Government ought with less reason to be the Rule of all kingly Governors because it was a Government chosen by themselves then the Laws of the Jews ought to be the Laws of all Nations which they are not though made and enacted by God himself Christ would not make himself a Judge in a private Right submitted to him He determined the right of the Roman Empire by the possession of Soveraign Authority and such as the whole world had made it his Disciples were obliged to acknowledge it by their Obedience and Submissions which is the summ of the Apostles Doctrin in this matter The Christian Religion instituted no form of Governments but enjoyns us to be obedient to those we have not only by express command in the case but by its general Rules of a most refined improved and extensive morality But though I said the Scriptures have not prescribed or directed any universal Form of Government yet the Scripture hath declared the falshood of this new Hypothesis of Kingly Government to be Jure Divino or by Divine Right For St. Peter 1 Peter 2.13 and 14. stiles Kings as well as the Governors under him the ordinance of man which cannot have any other sense but that men make them and give them their powers By St. Paul the power of Government indeed is called Gods Ordnance Rom. 13.2 but that is for this reason because in general God approves of Governments as necessary to the well being of Mankind for the improvement of humane nature for the punishing of Vice Encouragement and security of virtue without them it being impossible to live honestly and in peace And he hath made them the under Ministers of his providence and care over Mankind and expects of them that they should promote his true Honor and Worship in the World which will be always accompanied with the exercise of all civil Virtues These two different places must be so understood that they may be both true and by no other interpretation can they be reconciled and made consistent It is impossible that any thing can be of mans appointment which is of Gods Ordination there can be no such thing as a Co-legislative power of Men with their Maker Government therefore is from God as he hath made Governments necessary in the general order of things but the specification thereof is from Men and the best definition that can be made of Government is in the words of both the Apostles put together 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and such Governments which men make God approves and requires our obedience to them upon all those reasons which make Governments necessary The natural and easie consequence and result of these Scriptures is this which I desire those Gentlemen to observe That whatsoever is not lawfully established by men no Law of God not the Christian Law doth oblige us to obey The Christian Religion doth equally condemn in the reason of its Institutions Usurpation and Contumacy Where the Apostle admonisheth us that if we be free we should not become servants he hath by virtue of that Admonition made it commendable not to suffer the Encroachments of power over us Most certainly therefore as the Christian Religion doth not prejudice the Soveraign Rights of Princes such as they are in the several forms and Modells of Monarchical Governments non eripit terrestria qui regna dat coelestia as Sedulius so doth it not enlarge them when by the Gospel God made us free from his own positive Laws to the Jews he did not intend thereby de Jure to render us slaves to the Arbitrary pleasure of Men. No Man intends by any thing in the Scripture that all mankind is obliged to any one form of Government and therefore all Men are left to their own It hath not therefore altered the terms of Government and Obedience that every Nation hath Established for themselves but hath confirmed and strictly obliged the observance of them To Obedience to Government we are obliged by as many ties as there are Christian Virtues and he must disown his Christianity that departs from his due Allegiance And since our Saviour is declared King of Kings and Lord of Lords all Kings Christian Kings especially are to govern in Imitation of his mercy and goodness and in subserviency to the Interest of his Religion and Kingdom Regum timendorum in proprios greges Reges in ipsos imperium est Javis cuncta supercilio moventis Whence then is this absolute Authority of Kings if it come neither from God nor Man Give me leave now to inform you that these opinions render you all Traytors guilty of Treason of State perduellionis rei obnoxious to be punished as Traytors by an Authority lodged in Parliament In the Constitution of the Government You your selves must needs condemn your selves to have forfeited all your own who hold such Principles that tend to destroy every Mans Right by resolving all things into the absolute pleasure of a Monarch in which you mostly disserve the King and are contrary to His Majesties late Declaration The Men of these Principles the less of the Government they are entrusted with the better for the less they have to give up and betray I confess if I could believe that this Doctrin was become Orthodox among them and the prevailing opinion of the Clergy I should conclude us to be the most unhappy people under the Sun This is an Hypothesis indeed that will bring on new Heavens and a new Earth but such wherein no peace or Righteousness can ever dwell But I deem all such as are Defenders and Promoters of it do deserve a civil Excommunication more smarting then their Ecclesiastical and to be condemned to live upon and only feed themselves with their thin speculations and to be excluded from any share of that Government that they professedly in their Principles betray to be punished as seditious persons and most mischievous Schismaticks far more intolerable in this matter than the scrupulous brother-hood for their boglings at an indifferent and insignificant Ceremony For that to the ruin of our Religion and destruction of the publick peace they divide from that polity to which by drawing here their first breath they made Faith and to which the condition of their birth doth oblige them they falsify that which Arrian in his Epictetus calls the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 than which nothing is more sacred and inviolable By creating themselves a new Allegiance and obtruding it upon their fellow Citizens and Members of the same Kingdom they set up a Kingdom within a Kingdom more dangerous and mischievous than the Papal Imperium in Imperio which certainly will be introduced if this Modern and