Agitation of the self-same Cause Bishops it seems may be Witnesses to kill outright but may not sit in the Discussion of the Cause to help in Case of Innocency a distressed Noble man whereas the very Gothish Bishops who first invented this exclusion of Prelates from such Judicatures allow them to Vote as long as there is any hope left of clearing the party or gaining of Pardon Concil Tolet. 4. can 31. And by the beginning of that Canon observe the use in Spain in that Age Anno Dom. 633 as touching this Doctrine Saepe Principes contra quoslibet Majestatis obnoxios sacerdotibus negotia sua committunt You shall find it in the fourth Tome of Binius his last Edition of the Councils pag. 592. Lastly in the Case of Arch-Bishop Abbots all the great Civilians and Judges of this Kingdom as Dr. Steward Sir Henry Martin the Lord Chief Justice Hoâ—barâ— and Judge Doderidge which two last were well vers'd in the Canon Law delivered positively that all Irregularities introduced by Canons upon Ecclesiastical Persons concerning matters of Blood were taken away by the Reformation of the Church of England And were repugnant to the Statute of 25 of Henry 8. as restraining the Kings most just Prerogative to imploy his own Subjects in such functions and Offices as his Predecessors had done and to allow them those Priviledges and Recreations as by the Laws and Customs of this Realm they had formerly enjoyed Notwithstanding the Decree de Clerico venatore or the Constitution Ne Clerici saecularem jurisdictionem exerceant or any other in that kind The only Objection which appears upon any Learning or Record against Church-mens Voting in this Kingdom in Causes of Blood are two or three Protestations entred by the Bishops amongst the Records of the upper House of Parliament and some few passages in the Law-Books relating thereunto The Protestation the Lords now principally stood upon is that of William Courtney Arch-Bishop of Canterbury 11º Ric. 2. inserted in the Book of Priviledges which Mr. Selden Collected for the Lords of the upper House In the Margen whereof that passage out of Roger Hoveden whereof we spake before about Clergy-mens agitation of Judgments of Blood is unluckily inserted and for want of due Consideration of this point and some suspition of partial carriage in the Bishops in the Case of the Earl of Strafford hath been eagerly pressed upon the Bishops by some of the Lords in such an unusual and unaccustomed manner that if the Bishop of Lincoln who offered to speak unto this Objection had not voluntarily withdrawn himself he and the rest of the Bishops had been without hearing Voted out of the House in the Agitation of a Splinter of that Cause of the Earl of Strafford which came not neer any matter of Blood An Act never done before in that Honourable House and now Executed suddenly without the least Consideration of the merit of the Cause The only words insisted upon in this Protestation in question are these Because in this present Parliament certain matters are agitated whereat it is not Lawful for us according to the Prescript of Holy Canons to be present And by and by after they say these matters are such in the which nec possumus nec debemus interesse we neither can nor may be present This is the Protestation most stood upon for that of Arch-Bishop Arundel 21 Rich. 2. at what time the Bishops going forth left their Proxies notwithstanding with the Lay-Lords and consequently continued present in Judicature in the eye and Construction of the Law it is not so full and ample as this of Courtney's And therefore I must apply my Answers to this Protestation principally which are diverse and fit to be weighed and understood First I do observe that Bishops never Protested or withdrew in Cases of Blood but under the unsteddy Reign of Richard the Second only Never before never after the time of that unfortunate King from the Conquest to this present Parliament for ought appeareth in Record or History And that one Swallow should make us such a Spring and one Omission should create a Law or Custome against so many Actions of the English Prelates under so many Kings before so many Kings and Queens after that young Prince seems unto me a strange Doctrine Especially when I consider that by the Rules of the Civil and Canon Law a Protestation dies with the Death of him that makes it and is Regularly vacuated and disannulled Per contrarium actum subsequentem protestationem by any one subsequent Act varying from the tenour of the said Protestation Reg. juris Jo. Baptist. Nicolai par 2. Now that you may know how the Prelates carryed themselves in this Point and actually voted in Causes of Treason and sometimes to Blood before Richard the 2 d I refer me to what I cited before out of Mr. Selden and he out of Stephanides concerning Thomas a Becket Condemned by his Peers Ecclesiastical and Temporal about 15 of Henry the 2 d Arch-Bishop Stratford acquitted of high Treason in Parliament by four Prelates four Earls and four Barons under Edward the 3 d. Antiquitates Britanniae pag. 223. 4 Edward 3 Roger de Mortimer Berisford Travers and others adjudged Traytors by the Earls Barons and Peers 16º Edward 3. Thomas de Berkley was acquitted of Treason in pleno Parliamento c. And especially I refer me to that Roll of 21 Rich. 2 no. 10. 50 Which avers that Judgments and Ordinances in the time of that Kings Progenitors had been avoided by the absence of the Clergy which makes the Commons thereto pray that the Prelates would make a Procurator by whom they might in all Judgments of Blood be at the least legally if they durst not be bodily present in such Judgments And then for the practice sithence the Reign of Rich. the 2 d In the first of Henry the 4 th the Commons thank the Lords Spiritual and Temporal for their good and rightful Judgment in freeing the Earl of Northumberland from Treason 3 of Henry the 5 th the Commons pray a Confirmation of the Judgment given upon the Earl of Cambridge by the Lords Spiritual and Temporal 5 of Henry the 5 th Sir John Oldcastle is Attainted of Treason and Heresie by the Lords Spiritual and Temporal 28 of Henry the 6 th the Duke of Suffolk charged with Treason before the Lords Spiritual and Temporal 31 Henry the 6 th the Earl of Devon and so down to the Earl of Bristols Case wherein 22º Maij. 1626. ten Bishops are joyned with ten Earls and ten Barons in the disquisition and agitation of that supposed Treason I leave it therefore to the Judgment of any indifferent man whether these Protestations made all under one Kings Reign and dying with the Parties that made them can void a Right and Custom grounded by a continual Practice to the contrary in all other Tryals that have been sithence the Conquest to this present Parliament Secondly it is fitting we
they backed with one of the Canons of the Apostles as they call them the 7th in Number yet is it clear their main Authority is fetch'd from this obscure Synod of Toledo where 18 Bishops only were convened under Bamba the Goth who of a Plow-man was made a King and of a King a cloistred Monk as you may see in the History of Rodericus Santius par 2. cap. 32. This is all the goodly ground that either Gratian in his Decrees or Innocentius the 3d in the Decretals or Roger Hoveden in his History alledge against the Ecclesiastical Peers and their sitting as Judges in Causes of Blood to wit this famous Gothish Council of Toledo The first that openly planted this Canon here in England was Stephen Langton a Cardinal the Popes Creature as his Holyness was pleased to stile him in his Bull and thrust upon the See of Canterbury by a Papal Provision where he continued in Rebellion against his Soveraign as long as King John lived This Arch-Bishop under Colour of Ecclesiastical Immunity as this Canon is Marshalled by Lindwood at Osney neer Oxford did Ordain Ne quis Clericus beneficiatus vel in sacris ordinibus constitutus that no Clergy-man having a Benefice or otherwise in Holy Orders should presume to be present in that place Vbi judicium sanguinis tractatur vel exerceatur And this is the first Canon Broached in this Kingdom to this Effect That of Othobon being subsequent in time and a meer Forraign or Legatine Constitution See it at large in Lyndwoods Constitu lib. 3. at the end of the Book And by Vertue of a branch of this very Constitution the now Arch-Bishop 2 years sithence Fined the Bishop of Glocester in the High Commission because he had given way in time of Pestilence only that a Sessions or Judgment of Blood might be kept in a Sacred place which was likewise Inhibited in this Canon But this admits of a Multitude of Answers 1. Quod haec Dictio Clericus ex vi verbi non comprehendit Episcopum This word Clerk in the Canon Law reacheth not to a Bishop or a Peer of the Realm saith Lyndwood in his third Book cap. de Locatis Conductis 2. The Irregularity incurred by Judicature in Causes of Blood is only Jure positivo and therefore dispensable by the Pope saith Covarruvias in Clem. Si furiosus Par. 2. § 5. no 1. And here in England it is Dispenced with in Bishops by the King who in his Writs or Summons to the Parliament Commands the Lords Spiritual without any exception of Causes of Blood to joyn in all Matters and Consultations whatsoever with the Temporal Peers of the Kingdom these Summons being unto them a sufficient Dispensation so to do And Othobon himself Inhibiting other Clerks to use these Secular Judicatures hath a Salvo to preserve the Priviledges of our Lord the King whereby he may use any of their Services in that kind when he shall see Cause in the Title called Ne Clerici jurisdictionem saecularem exerceant A Lyndwood in his Gloss upon that Text doth instance in the Clerks of the Chancery and others Nor are these Writs of the Bishops Dispensations only but Mandates also and Bishops have been Fined at the Kings-Bench and elsewhere for Absenting themselves from Counsels in Parliament as now they are required to do without the Kings special leave and Licence first Obtained 3. When they are forbidden Interesse to be present the meaning is not in the very Canons themselves that they should go out of the Room but only that they should not be present to add Authority Help or Advice to any Sentence Pronounced against a particular individual Person in a Cause of Blood or mutilation of Members If he be present Authorizando consilium opem vel operam dando then he Contracts an Irregularity and not otherwise saith our Lyndwood out of Innocentius And the Canon reacheth no further than to him that shall Pronounce Sentence of Death or mutilation upon a particular Person For Prelates that are of Council with the King in Parliament or otherwise being demanded the Law in such and such a Case without naming any individual Person may Answer generaliter loquendo as that Treason is to be punished with Death and a Counterfeiter of the Kings Coyn is to be Burned c. Cardinal Hostiensis lib. 2. cap. de fals monet Allowed by John Montague de Collatione Parliamentorum in Tractat. Docto◠vol. 10. pag. 121. 4. These Canons are not in Force in England to bind the Subjects of this Kingdom for several reasons 1. Because they are against his Majesties Prerogative as you may see it clearly in the Articles of Clarendon and the Writ of Summons and therefore abolished by the Statute of 25º of Henry the 8 th It is his Majesties Prerogative declared at Claredon that all such Ecclesiastical Peers as hold of him by Barony should Assist in the Kings Judicatures until the very actual pronouncing of a Sentence of Blood And this holdeth all along from Henry the first down to the latter end of Queen Elizabeth who imployed Arch-Bishop Whitguift as a Commissioner upon the Life of a Personage not to be named without Horror and as the first keeper and examiner of Robert the most Noble Earl of Essex after that Commotion in London And to say that this Canon is Confirmed by Common Law in this Kingdom is a very Tale there being nothing in all the Common Law that tends that way 2. It hath been Voted in the House of Commons this very Sessions of Parliament that no Canons sithence the Conquest either Introduced from Rome by Legatine Power or made in our Synods never had in any Age nor yet have at this Instant any Power to bind the Subjects of this Realm unless they be Confirmed by Act of Parliament Now these Canons which Inhibit the presence of Church-men in Causes that concern Life and Member were never Confirmed by any but seem to be Impeached by diverse and sundry Acts of Parliament 3. The whole House of Peers have this very Session despised and set aside this Canon Law which some of the young Lords cry up again in the same Session and in the very same Cause to take away the Votes of the Bishops in the Case of the Earl of Strafford For by the same Canon-Law that forbids Clergy-men to Sentence they of that Coat are more strictly Inhibited to give Testimony in Causes of Blood Nec etiam potest esse Testis vel Tabellio in Causa Sanguinis saith my Lyndwood fol. 146. pag. 2. For no man co-operates more to a Sentence of Death than the Witness upon whose attestation the Sentence is principally Founded saith Lopez in his Practica Criminalis Cap. 98. Dist. 21. And yet have these Lords admitted as Witnesses produced by the Commons against the Earl of Strafford the Arch-Bishops of Canterbury and Armache together with the Bishop of London the which Lords now Command all Bishops to withdraw in the
Kingdom and therefore they are abolished by the Statute of 25 Henry the 8 th 2. So are they by the same Statute because the Lords have declared That the Bishops Vote here by the Laws and Statute of this Realm And all Canons that Cross with these are there abolished 3. So are they by the same Statute as thwarting the Kings Prerogative to call Bishops by Summons to Vote in Parliament 4. So are they by the Vote in the House of Commons 21 Maij. 1641 Because they are not Confirmed by Act of Parliament 5. This Argument was deserted by Mr. Perpoint and confest to be but an Argumentum ad hominem Arg. IIII. Because the twenty four Bishops have a dependancy upon the Arch-Bishops and because of their Oath of Canonical obedience to them Answer 1. They have no dependancy upon the Arch-Bishops but in points of Appeal and Visitation only and owe them no Obedience but in these two points None at all in Parliament where they are Pares they are equals and as Bracton tels us Par in Parem non habet imperium What hath Canonical Obedience to do with a Vote in Parliament declared in this Bill to be no Ecclesiastical but a Secular Affair 2. This Argument reacheth not the two Arch-Bishops discharged in the Rubrick from this Oath and therefore is no Reason for the passing of this Bill Arg. V. Because they are but for their Lives and therefore are not fit to have Legislative Power over the Honours Inheritances Persons and Liberties of others Ans. 1. Bishops are not for their Lives only but for their Successors also in their Land and Honour As the Earls and Barons also are for their Successors in their Lands and Honours and holding their Lands in Fee-Simple may with as good reason Vote in the Honour Inheritance Persons and Liberties of others as others may and do in theirs 2. Many Peers have been Created for their Lives only and the Earl of Surrey for the Life of his Father who yet Voted in this House 3. The Knights Citizens and Burgesses are chosen for one Parliament only and yet use their Legislative Power nor will their being Elected difference their Case for the Lords use that Power in a greater eminency who are not Elected 4. A Burgess that hath a free-hold but for term of Life only may Vote and assent to a Law in Parliament 5. No such exception ever heard of in the Diets of Germany the Corteses of Spain or the three Estates in France where the Prelates Vote in all these points with the Nobility and the Commons Arg. VI. Because of Bishops dependancy and expectancy of Translations to places of greater profit Answ. 1. This Argument supposeth all Kings and all Bishops to be very faulty if they take the time of their Votes in Parliament from these dependancies and expectancies 2. This may be said of all the Kings great Officers of all the Noble Members of both Houses who may be conceived as well as Bishops to have their Expectancies and consequently to be deprived by this Reason of Voting in Parliament 3. This Argument reacheth not at the two Arch-Bishops and so falls short of the Votes which are to be taken away by this Bill Arg. VII That several Bishops have of late much encroached upon the Consciences and properties of the Subjects and they and their Successors will be much encouraged still to encroach and the Subjects will be much discouraged from Complaining against such encroachments if 26 of that Order be to be Judges upon these Complaints The same Reason extends to their Legislative Power in any Bill to pass for the regulation of their Power upon any emergent inconveniency by it Answ. 1. This Argument fights not against Bishops Votes in Parliament but against their Votes in Convocation where if any where they have encroached upon the Consciences and Properties of the Subject Nor yet at the Votes of such Bishops there as are not guilty of this Offence Nor need the Subject to be discouraged in Complaining against the like Grievance though 26 of that Order continue Judges for they shall not Vote as Judges in their own Cause when they are Legally Charged And if they should Vote what were that to the purpose when the Lay-Peers are still four to one The Bishops Assisted with a double Number of Mitred Abbots and Priors could not hinder the Laws made against the Court of Rome the Alien Cardinals and Prelates the Provisors the Suiters to the Popes Consistory under Edw. 3 d Rich. 2 d and Hen. 4 th Much more may those emergent exhorbitances of the Ecclesiastical Jurisdiction be soon curbed and redressed in this inequality of Votes between the Temporal and Spiritual Lords So as this Argument doth not so much hurt the Votes as it quails the Courage of the Bishops who may justly fear by this and by the next Argument that the taking away of their Votes is but a kind of forerunner to the abolishing of their Jurisdiction Arg. VIII Because the whole Number of them is interessed to maintain the Jurisdiction of Bishops which hath been found so grievous to the three Kingdoms that Scotland hath utterly abolished it and Multitudes in England and Ireland have Petitioned against it Answ. 1. This Argument is not against the Vote of Bishops but against Episcopacy it self which must be removed because Scotland hath done so and some in England and Ireland would have it so and yet peradventure ten times as great a Number as these desire the contrary 2. There will be found Peers enough in the Upper-House to reform any thing that is amiss in the Ecclesiastical Jurisdiction although the twenty six Prelates should be so wicked as to oppose it as there were found Peers enough in that Noble House to curb the Court of Rome and the Revenues of the Cardinals under Edw. 3 d to meet with the Provisors under Ric. 2 d to put all the Clergy into a Praemunire under Hen. 8 and to Reform the Religion 1º Elizabeth notwithstanding the Opposition of all the Bishops Arg. IX Because the Bishops being Lords of Parliament it setteth too great a distance betweâ—â— them and the rest of their Brethren in the Ministry which occasioneth pride in them discontent in others and disquiet in the Church Answ. This is an Argument from Moral Philosophy which affords no Demonstrations All are not proud that vote in Parliament nor discontented that are not so imployed This Argument fights only against their title of being Lords which is not the Question at this time FINIS