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
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
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
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
Law was publickly professed in England before the end of the 12th Century for Mat. Paris tells us of a Monk of Evesham Anno Dom. 1196. that suo tempore eorum quos Decretistas Legistas appellant peritissimus habebatur earum etiam facultatum auditores quamplurimos instituerat and from that time the study of the Caesarean and Pontificial Law did flourish amongst us until the beginning of E. 3. But in all that time saith Mr. Selden in his Fleta gens ipsa Anglicana ac qui in judiciis praeerant morum patriorum viz. Juris Communis Angliae per intervallum illud tenacissimi fuere A remarkable instance we have of this Nations steady aversion from admitting here either the Civil or Canon Law in the Parliament of Merton which rejected a Bill for Legitimation of Children born before marriage in Concubinate in these Terms Nolumus leges Angliae mutari meaning that they would not make Laws conformable to the Civil or Canon Law The great Policy that the Popes used to effect their Ambitious design of making themselves Monarchs of the Christian World were The assuming to themselves the entire rule and Government of Religion and endeavouring to make every where the Bishops and the whole Clergy together with the Regulars dependant upon them by pretending them to be exempt from all Civil Authority and Jurisdiction and by interdicting to them the exercise of any Civil Authority and shutting them out from all intromissions into the Civil Government and from any interest or dependance thereupon So far as he prevailed in these designs he acquired an Imperium in Imperio and if besides these he could have fixt a Spiritual handle to the Temporal Sword and have got the Government of secular affairs in ordine ad spiritualia his design had been compleated and he had arrived to a more absolute and extensive Empire than that of the Roman Caesars To these purposes the Canon Law provided that the Ecclesiasticks were neither to exercise nor be subject to any Civil Authority But this policy of the Pope had no success in England the endeavours of the Papalins herein met with constant opposition and at last they were made desperate by the Assise of Clarendon where it was declared and enacted accordingly agreeable to the Avitae Consuetudines Regni that the Bishops should be retained and continue to be a part of the Government and exercise Jurisdiction in all Causes in the Kings Court as other Barons as is before observed and that the Clergy should stand submitted to the Jurisdiction of the Kings Courts For this purpose it was also in that Parliament enacted as followeth Si controversia emerserit inter Laicos vel Laicos Clericos in Curia Domini Regis tractetur determinetur and also quod clerici rectati accusati de quacunque re summoniti à Justitia Regis venient in Curiam Domini Regis responsuri ibidem c. And so far were the Bishops and Clergy from observing that part of the Canon Law that was to detrude them from all secular Authority and Jurisdiction that they were from time to time Chancellors Treasurers Keepers of the Privy Seal and Judges and while that Ancient Office continued of Capitalis Justiciarius Angliae to whom was committed the Justice of the Kingdom who were called Custodes Regni Vice-Domini Angliae and sometimes the abstract Justitia He did preside in the Curia Regis which Office was afterwards divided for there were Justitiarii Angliae Boreales Justitiarii Angliae Australes this Office was often executed by Bishops as you may see in Sir Hen. Spelmans Glossary in the word Justitiarius Bishops and Church-men administred the greatest Offices of State and Justice this was matter of Envy to the Temporal Lords and they complain'd in Parliament 45 E. 3. as is before observed That the Government of the Kingdom had been a long time in the hand of the Clergy Mr. Selden in his Fleta tells us that in the times before and after the Assise of Clarendon Mos fuit Judices Regios ex genere hieratico veluti Episcopis Abbatibus Decanis id genus aliis constituendi And it is provided by 28 E. 1. Cap. 3. That if a Clergy-man was a Judge of Assise another should be joyned in Commission with him to deliver the Goals which was to the end that the Ecclesiastical Judge might use that liberty which was indulged to him by the Assise of Clarendon of not pronouncing the Sentence for it must be observed that by that Statute a Clergy-man might be a Judge in a Goal-delivery for that a Laick was by the provision of that Statute to be join'd to him in Commission and Pleas of the Crown are to be found purporting them to be held before two Judges whereof one a Clerk after this Law which could not possibly have been if the Clerk had not been in Commission Besides for after Ages it is well known that all the great Officers and Ministers of State and Justice have been always intrusted with the conservancy of the peace are in Commissions of the peace and Commissioners of Oyer and Terminer for judging capital Causes so that the constant practice in all times as well as the express declaration of the Assise of Clarendon doth assure us that the Canon Law that prohibits Clergy-men being Judges in capital Causes was never received here or became the common Law of England Besides what regard our Clergy had of the Canon Law what opinion they had of the Right in question and how far the Laws did intend to prohibit the exercise of it And that such right was used and exercised will appear by the Canon of Toledo Concil Toletan 11. Cap. 6. fo 553. and the Canon of Lanfrank Spelmans Concil 2 vol. fol. 11. these were made before the Assise of Clarendon That of Toledo is this His à quibus Domini Sacramenta tractanda sunt judicium sanguinis agitare non licet ideo magnopere talium excessibus prohibendum est ne qui praesumptionis motibus agitati aut quod morte plectendum est sententia propria judicandi mant aut truncationes quaslibet membrorum quibuslibet personis aut per se inferant aut inferendas precipiant This being a Foreign Council this Canon carries not with it the Authority of a Canon with us only we may observe whatever the Opinion of that Council was that it was not convenient for licet can have no ocher sence here for Clergy-men agitare judicium Sanguinis Yet this Canon prohibits only the pronouncing the Sentence by themselves or others I am sure that by a positive Law as this Canon must be so far as it participates of the nature of a Law nothing becomes unlawful but what is forbidden whatever the reason be of that Prohibition That of Lanfrank follows thus Vt nullus Episcopus vel Abbas seu quilibet ex Clero hominem occidendum vel membris truncandam judicet vel judicantibus suae authoritatis favorem
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
compensation may be given to the Crown and some way will be found out for Augmentation of Vicaridges and reindowment of Churches that lost all in that unparrallel'd Sacriledge committed by the unsatiable Avarice of that haughty and luxurious Prince These designs employ the care of a great Number of our principal gentlemen to purge the sin and dishonor brought upon the Nation by that extraordinary King But if there were reason for any fear that the Nation could again incur the guilt of sacriledge What Warranty can this give to any of her Clergy to slack or abate the Zeal that is due for the purity of her Doctrine prudence of her discipline and her commendable decent and intelligible devotion Are they worthy to be named of her that are ready to dissert her out of fear of a remote possibility that she may not always have such largesses as she now bestows upon her Sons Will they prefer the gift to the Altar and declare all their godliness to be gain To suffer Popery for such a consideration to be induc'd upon her is a far worse and more detestable sacriledge than that they pretend to fear This is to make the Anathemata of the Temple to inserve to the dishonor of the Numen To desecrate the Altar for the sake of the gift and will by the just judgment of God I fear bring the abomination of desolation again into our holy places Let none of her Sons for the obtaining a dignity or a capacity for a double benefice betray her by neglecting her interest thinking with themselves that she will otherwise be supported for this their doings is no less than the sin of Judas who took money to betray our Lord imagining that he would by a Miracle rescue himself from the hands of those to whom he sold and betray'd him The honest of our Clergy will have little satisfaction when that day comes when they shall be reduc'd to Prayers and Tears if they are failing in any thing that they may lawfully do to prevent that miserable State Their Tears will be as water spilt upon the ground and their Prayers wiil never find acceptance with God nor be returned into their own bosom Disce Miser pigris non flecti numina votis Proesentemque adhibe dum facis ipse Deum But above all those fine men are not to pass unreproved who are preparing Pretences for their Revolt to the Roman Church They tell us that the Reformation is depraved and Popery it self is much amended since the Reformation that it is not so grosly superstitious tho her superstitions are still enough to stifle Religion nor so fabulous in her Legends she need make no new ones since she gives Authority still to the old nor so imposterous in her cheats for her Priests have not been hocus pocuses of late us'd so many tricks of Legerdemain and presented their puppey plays of moving squeaking images since the Reformation as before But they may know that the reason why we have not maintained the dignity of the Reformation intire is this for that Popery hath not been utterly extirpated from amongst us tho their frequent Treasons and their notorious seductious have deserved it By its continuance amongst us and the resorts of their Priests hither it hath created and fomented divisions amongst us and corrupted her Children from their obedience to her guidance and instructions but she her self is still the same she was the Reformation of the Church is still intire She hath made good her departure from the Church of Rome her Adversaries have not been able to convict her of any fault therein and by an easie victory she hath triumphed over all their oppositions And tho Popery appear not altogether so deformed by her Priests Artificial dress and the Representations they make of her to seduce us and entice us to come again under her yoke yet we know she hath more established her Tyranny by the Council of Trent and more corrupted her Morals by her modern Casuists since the Reformation and thereby hath rendred her self more detestable and for ever to be avoided But though it may be true that the Popish world is beholden to the Reformation and Popery it self is thereby amended in some overt things and reformed in those Countries that have not reformed from her For in the Light of the Reformation they have seen Light and have been ashamed of some of their works of darkness do not bring into present use some of their gross Impostures and some worse than Pagan superstitions Yet when this Light is extinguished it will be a most dismal and eternal Night upon the Christian world If we return to her our Ears will be bor'd and we shall be irredeemably enslaved The spirit of Popery if it returns and possesseth us again that hath been walking in the reformed Countries as in dry places seeking Rest and finding none and finds us thus swept and garnished will bring with it seven Devils more wicked than it self and our last estate will be worse than the first The Pride Cruelty and Avarice Domination and Luxury of their Priest-hood will be aggravated upon us and the minds of the Laity more lowly depressed by superstition and ignorance The Gospel of Cardinal Palavicini will be the Canon of the Christian Religion or it may be something worse for who can tell what will be the Religion that that Church will offer in process of time to the World under the Christian Name When the Pope by his pretended infallibility may make the Christian Religion what he please by interpreting adding altering or detracting with an uncontroulable Authority For us therefore to become Papists to return to the Church of Rome acknowledge the Popes infallibility there is no other way to become Papists is virtually to betray the Christian Faith to renounce our Allegiance to our Lord Christ to prefer the Bulls of a Prophane Pope to the Holy Oracles of God and the Revelation of Jesus God Blessed for ever With this Religion therefore we can never make an accommodation We may as well make a Covenant with Hell This as Dr. Jackson one of the glories of the Church of England in his Book call'd the Eternal Truth of Scriptures vehemently admonisheth us admits no terms of Parly for any possible Reconcilement whose following words to this purpose I shall here transcribe The natural separation of this Island from those Countries wherein this Doctrine is professe shall serve as an Everlasting Emblem of the Inhabitants divided Hearts at least in this point of Religion And let them O Lord be cut off speedily from amongst us and their posterity transported hence never to enjoy again the least good thing this Land affords Let no print of their Memory be extant so much as in a Tree or Stone within our Coast Or let thir Names be such as remain here after them be never mentioned or always to their Endless shame Who living here amongst us will not imprint these or the like wishes in their Hearts and daily mention them in their Prayers Littora Littoribus contraria fluctibus undas Imprecor arma armis pugnent ipsique Nepotes which he thus renders Let our forain Coasts joyn Battel in the Main Ere this fowl Blasphemy Great Britain ever stain Where never let it come but floating in a Flood Of our our Nephews their Childrens Blood I shall only subjoyn my hearty Desires and Prayers that we may all fear God and be zealous for his true Religion Honor the King and firmly adhere to the Government and in our several places steadily oppose and resist those Villains that are given to change And that by our Union we may defeat the crafty Designs of our cruel and implacable Enemies who if they can continue those Divisions they have made amongst us by their wicked Arts will certainly at length destroy us Who are bent upon our Destruction though they themselves perish with us and we cease to be a Nation and our Language be forgotten in a forain Captivity Sir Now I have given you my Answer to your Reasons to disswade me from publishing the Argument for the Bishops by representing how few of the Clergy can with Reason be thought guilty of Opinions so mischievous to the Church and State which you charge to have generally corrupted them and how easily and with little consideration they will be laid aside by them I will make no other Apology for the publishing this than that I have communicated these thoughts to no Man alive either of the Church of England or any other Demomination or consulted any Mans advice about it That I can serve the design of no party of men herein nor any particular design of my own I wish they can be serviceable in the least Degree to publick Good I have had them by me a great while and have consider'd them under the several Varieties of Temper that our Bodies are disposed to which induce different thoughts and various Apprehensions in most things under the several passions that the fluctuation of publick Affairs have occasioned under the Ebs and Flows of Hopes and Fears in reference to the state of the Kingdom for some length of time And finding them to have the same appearance and to give me the same satisfaction in all the several Postures and Views that I could take of them I assure my self I was sincere when I thought and that they result meerly from my Judgment such as it is uncorrupted that I am not perverted or biased by any secret passion or desire of any sort which many times lurk and steel upon us deceive us unawar's and undiscernedly abuse us Sir the Summ of my Apology is this that I know my self sincere of honest Intentions mov'd by nothing but a hearty love and affection to our King Religion and Country and for what any man shall think of me I am not Solicitous Yours T. H. FINIS
AN ARGUMENT FOR THE Bishops Right In Judging in CAPITAL CAUSES IN PARLIAMENT For their RIGHT unalterable to that Place in the GOVERNMENT that they now enjoy With several Observations upon the Change of our English Government since the Conquest To which is added a Postscript being a Letter to a Friend for Vindicating the Clergy and rectifying some mistakes that are mischievous and dangerous to our Government and Religion By THO. HUNT Esquire In Turbas Discordias pessimo cuique plurima vis Pax quies bonis artibus indigent Tacit. Hist l. 4. LONDON Printed for Thomas Fox at the Angel and Star in Westminster-Hall 1682. THE PREFACE THis Argument for the Bishops Right of judging in Capital Causes in Parliament for their being one of the three States of the Realm and that their Right is unalterable by Law was written above two years since and prepared for the Press time enough to be made publick against an expected Session of Parliament in October 1679. But the Parliament being prorogued from that time until January the Author was willing to respite the Publication to advise with his second thoughts and again to review what he had written in a case of this weight and moment and the rather for that he had but a short time allowed him for its composure Since that there has been published by an excellent person a Book in vindication of their Right of judging called The Grand Question sufficient to give satisfaction if the world were just and impartial and disposed to make right Judgment in the Cause It may well be reasonably expected that Christian People should not be only just but favourable to any pretence of a Christian Bishop to any secular trust that does not lessen the dignity of the Office and seems unworthy of his Character which as it exempts him from mean and sordid offices and affairs of an inferior and more private concernment so it commends him to the Government of matters of a more publick and universal influence such as require the most improved wisdom and learning and a noble virtue It seems to me most unreasonable that those that are the great and principal Expounders of the Christian Law which gives Law to all Laws and instructs men to discharge their several Offices both publick and private that those who are the great Guides of our Consciences and by whose Directions and Institutions we form our Judgments in the greatest intricacies and doubts that perplex humane affairs that the Guides of a Religion which is formed all to life and practice for the making Governments equal and private men good and obedient which is little else but an Obligation to Justice and Charity and principally pursues that which is the end design and whole business of Government I say it seems to me most absurd and incongruous that this Order of men at any time ought to be shut out of that Council and Court where Laws are made and Rules given for the Government of a Christian Common-wealth where the most difficult and intricate causes are to be heard and determined and where an unlimited power remains of censuring the Actions of the greatest men and the administration of publick affairs and the safety of the Nation are consulted which cannot be long preserved but by pursuing the dictates of a wise Religion Such is the Christian Religion if any other we should dishonour it by comparing it to the best Paganism became despicable and abandoned soon after its publication Yet Tully in his Oration ad Pontifices magnifies the wisdom of the Romans as Divine in advancing the Pagan Priests to the highest places in their Common-wealth by which the Common-wealth he saith was preserved Cum multa Divinitùs Pontifices à Majoribus nostris inventa atque instituta sunt tum nihil praeclarius quam quod vos eosdem Religionibus Deorum immortalium summae Reipublicae praeesse voluerunt Vt amplissimi clarissimi Cives Rempublicam bene gerendo Religiones sapientèr interpretando Rempublicam conservarent Such an Opinion more duly and with better reason our Ancestors conceived of the advantage that might accrue to the Nation by advancing the Prelates of the Church into the Civil Government Thereupon they have made them necessary to it and framed the Government in a sort to depend upon them and left it scarce able to maintain it self without them in its present constitution The Temporal Barons will soon find themselves unable to maintain their own dignity and to sustain that province that is allotted to them in the Government unassisted with the Interest and authority of the Prelates the Spiritual Barons a mighty Power if they be as they ought to be of venerable esteem with the people If the present Bishops are not all so happy as to possess such an esteem we know what cause to assign for the same viz. the unhappy Schism that hath too long continued in our Church hath for its own Justification after they are almost sham'd out of the scruples which first caused the separation sought occasions against the Persons of the Bishops and rather than they will want faults to complain of the Order it self must be loaded with all the faults of all the Bishops in all Countries and Ages and they adventure now to disparage their persons for the sake of their office But sure it is a folly that can fall upon no people but such who by the evils they feel or fear are vext out of their understanding to suppress any Office that is necessary to any Common-wealth in any form of Government for the faults of the Officers for the time being But too true it is that a form of Government while established may be so utterly misunderstood by the most when it is not or not duly administred that a true and exact description of it and a discourse of the Offices and Functions of the several parts of the Government would be taken by them for some Vtopian Common wealth or no better please them than a description of the strength of an impregnable Fort once the Security of the Nation when invested by the Enemy A Lecture of a learned Physician of the Vsus Partium will not give sight to a blind Eye nor motion to a withered hand and no body is warmed or comforted by a painted fire But God be thanked we are not yet destitute of the benefits of a good Government Another cause I apprehend may much lessen the Bishops in the esteem of the People and make them want that Reputation that is necessary to every Governour in proportion to his Charge is their manner of promotion The Ministers of State whose business it ought to be to understand the true Characters of men that are preferred to that Office are often mistaken however in this Course they seem not to be promoted for their own Merit but at the pleasure of the great Courtiers and at best the Ministers of State can do no more than recommend to
Peer in Parliament Of what consideration decency can be Chap. XII Their Sitting in Judgment not so much against the reason of the Canon as their assent to Bills of Attainder which was never condemned And the Nature of an Act of Attainder Chap. XIII Over-ruling a Plea of pardon doth not condemn the Criminal and therefore they may judge of such Plea Though they are not to be present at the making of a Judgment of Condemnation Quousque perveniatur in Judicio further explain'd And that which follows upon another thing is not always caus'd by it XIV Bishops one of the three Estates of all the Realms of Christian Europe And how they came to be advanc't to that dignity and trust The convenience of their not being divided in a distinct house from Lay Peers They cannot be detruded from that dignity no more than the Government can be chang'd which no Law can do Six Bishops of the twelve Peers of France and their Aristocratical power That all Governments are lawful that are lawfully establish't Chap. XV. William the Conqueror agreeable to all the Princes of that time put Bishops under Tenure by Baronies and all Baronies at that time feudal with the reason of his Policy and the inconvenience it produced Of the Curia Regis which consisted of the Baronage in which the Capitalis Justitiarius Angliae did preside Of the administration of Justice in that time And that the Baronage of England upon special Writs of Summons became a Parliament An account how all our present Courts derived out of it Of the Court of the High Steward and of the Court of Chancery and the reasons of its rise and growth and how inconvenient it is And how we recovered out of the inconveniencies of that Constitution of Parliament by representatives in the time of H. 3. And that this it being allowed can give no countenance to those that are desirous to change our present and better Constitution That in all this Change the Bishops suffered no diminuion But when the ancient reason of Baronage failed they are after to be considered under the new reason of Baronage Chap. XVI The remembrance of the old reason of Baronage became a prejudice in the Judges upon which T. Furnival Plea allowed that he held not per Baroniam An Entail of Baronies with lands after allowed The reason of Nobility changed and no man now Noble by his Acres Many men Summoned to Parliament and yet not Noble No prejudice to the immovable Right of Bishops to have Summons to Parliament and that objection answered Kings may erect new successive Nobility in Clergy-men That Bishops are of a distinct sort of Nobility and under that and other reasons they are considered as a distinct State Chap. XVII Of the three States which make the Government under the King that he is none of them The Objections against this answered And the reasons of their being distinct and the several Offices and Expectances in the Government that make them so That the several Orders of Peers make but one Baronage and in that there is a great trust and honour greater belongs to Bishops than Lay Barons in our present constitution Their Character and qualifications commend them to the highest trust and render them fittest Judges Chap. XVIII The Reason of Tryals per Pares and that the Bishops are competent upon that reason in Parliament though not so fit to be of the High Stewards Court The Law of M. Charta not Lex scripta Bishops ought to be tryed by their Peers How that Right came to be discontinued and that in Parliament they ought still to be Tryed by their Peers Chap. XIX The unreasonableness of maintaining an Opinion upon a single Objection against a matter evidently proved that Questions of this nature should be considered with candor and not opposed with meer possibilities Chap. XX. Several alterations in the Government since the Conquest that the Alteration in what concerns the Baronage the Bishops Right is to be considered in analogy to the Change That changes of Government for the better cannot again be altered but our zeal is required to defend the Government made better and they deserve ill that go about to reduce us to our old mischiefs by their Antiquity Chap. XXI The advantage of the Change in the constitution of our Parliament in the change of granting Subsidies And how the Lords are bound by a Bill of Aids Chap. XXII The beneficial Change that hath been made by the clause praemunientes in the Bishops Writs of Summons to Parliament which gives Authority for the Convocation By this we are discharged of Provincial Councils and Canons of the Church kept distinct from Laws of the State The Church kept in peace from rending Questions and Religion is conducted not by Laws but by Canons not force but perswasion which commends our Episcopal Government Chap. XXIII The danger we avoided of having our Baronage of England ambulatory and fixing of it in Families and an indefectible Succession in which the Right of the Peer-age of Bishops is established Chap. XXIV The advantages the Adversaries seek to their cause by aspersing the Bishops Remembrance of all the faults in all times committed by any of the Order that many of those faults are principally due to the Papal Vsurpation and the neglect of Kings to defend the Rights of their own Bishops and are all the Vitia Temporum the times of Popery Chap. XXV How inculpably our Bishops have been in administration of their Ecclesiastical Authority how faithful in their Temporal Trust and Asserters of the Rights of the people They have not been irreverent to Kings nor have they encroached any power in Civil matters in ordine ad spiritualia That the power that they challenge is meerly spiritual and they challenge nothing of Divine Right but the exercise of their Ministry which they cannot lay aside Mr. Selden's Arguments for Erastianism answered The Church of England doth not tye her self always to think and enjoyn as she doth at present The moderation of the Church in opinions her apprehensions of Schism just and great They are not answerable for the ejectment of the Nonconformists nor for the scandalous Lives of their Clerks nor their Chancellors nor abuse of Excommunications Why matters of Incontinency are committed to their censures They have exercised the power of the Keys against the Infractors of M. Charta and how it hath been guarded with the denunciations of the Church we have reason to expect as much from our Bishops to support the Government of Laws Chap. XXVI We have as much reason that the Protestant Bishops should be as constant to the Reformed Religion as Popish Bishops obstinate for Popery An Apology for their Vnanimity in Voting Their dependance not so great upon the Crown as to oblige them to disserve their Prince The King bestows nothing upon them but what is the Churches the great expectation the Government hath of their fidelity and performances That which advanced them must
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
and by gave the first occasion to this Question which was the true causa suasoria of their denyal to the Bishops a Right of Succession and judgment in that noble question Whether a Treason of State can be pardoned And that put them upon the search of Precedents an Oracle that will alwayes give a Response agreeable to the Enquirrer and Consulter For I am sure there is nothing so absurd and irregular that rude Antiquity and the miscarriages in humane Affairs in length of time will not furnish a Precedent for And these Precedents such as they were reported which we are hereafter to consider by their diligent Members became a causa justifica and the matter in pretence to warrant their proceedings that a great reason of State did seem to them to require And now whether the Lords Spiritual can be Judges in Capital Causes in Parliament is become a Question Though the Bishops Right to judge in capital Causes in Parliament seem to be clear and materially demonstrated from what is visible and obvious to the most vulgar observation of the constitution of the Government every body knows how the Lords Spiritual and Lords Temporal are placed in the stile of Acts of Parliament and in the Heralds order in the House of Lords The Arch-Bishops give first their Votes even before Dukes The Suffragan Diocesans after the Viscounts and before the Barons And in the same order did the Bishops stand in the publick Census in the times of the Saxons as may be seen in Sir Henry Spelman his Glossary in the word Alderman The great Authority Power and Rule that was intended the Prelates should have in all the great concernments of the Kingdom that were to make the business of the House of Lords may be best understood from the high place that hath been alwayes alotted to their Order in that House for Publick and civil honours are alwayes appointed and adjusted to the dignity of the Ministers offices and Services that are to be performed to the Government Such a solecism was never enacted by an Order of State That those persons that were less in power and under abatement and restraint of Authority should be preferred to those in place that had plenary power in the same Courts It is well known too That the Arch-Bishop of Canterbury was originally honoured with the first Writ of Summons to Parliament Since the Conquest there never was an English Bishop that had not his several Writ of Summons to Parliament Though the number of Temporal Barons have been reduced and many of the Regular Barons dismist of that honour for that their office was nothing in the Church and nothing but the possessions of the Abbots preferred them to that State Nothing seems too big or too high for so great and publick a character of the Bishops or out of the intendment of their trust that can ever be the business of a Parliament The greater the matters are that are agitated there the more necessary is the assistance of the Bishops for he that in any affair is most trusted is to be most concerned and by how much the affairs are of greatest moment in the same proportion they are more strictly obliged and required to assist in the management thereof We all know what sort of criminal prosecutions those are that are made in Parliament and what great consideration they are of that they are alwayes the symptoms of a very sickly State and the results of very great disorders in the Common-Wealth In these Cases if in any the Lords Spiritual cannot be wanted The neglecting to interpose in any one single prosecution that is Parliamentary hath proved the occasion That their Right of Session is now brought into Question For to speak the truth it is not very consistent with the Reverence that is naturally due to the Prelates to think that a Trust and Authority of so high a nature should be committed to them and they should at any time find reasons to neglect it But for what omissions they have been guilty of though upon a general consideration without examining the particular Causes and Reasons men not friendly to their Order may thus censure them we shall make a fair Apology as we shall meet with them and as they fall in to be considered in this Discourse We are now to give you some account how this comes now to be a question for the very questioning thereof makes some prejudice against the Right and there is scarce any thing so certain and true in Nature but if once put under dispute that can recover again into a general certainty and assurance It hath scarce escaped any mans observation that hath been acquainted with the business of the Courts of Law That the greatness of the pretender and the value of the Interest and Right in pretence doth cause a point of Law to be contended which would never else have been stirred especially if the Right be invidiously possessed by another Besides these three considerations which are foreign to the true Right I protest there is nothing to my apprehension of any moment offered in Print to continue it a Question I find Two Books Printed upon this Question both of them tending to disgrace the Bishops Right of judging in capital Causes in Parliament One in Octavo called A Letter of a Gentleman to his Friend shewing the Bishops are not to be Judges in Parliament in Cases Capital He begins with a Preface containing some matters and reasons against Bishops intermedling at all in secular affairs and after that he tells us That the Law of Parliament is best declared by usage gives us several precedents wherein he supposes the Bishops absent and concludes they were so for want of Right and Authority to be there And to give some Authority to his Precedents of omission as he would have them He tells us of the Assize of Clarendon an Act of Parliament made 10 Hen. 2 that excluded the Bishops in such Causes and of a Protestation made by all the Bishops in the 11 R. 2. whereby they renounce all Judgement of Right in such Causes upon the obligation they were under to the Canon Law and to render it impossible they should have any such Right and to make them incompetent Judges he adventures to say and prove after his manner That the Bishops are not Peers and to prepare the way for their remove out of that House he adventures to broach an opinion That the Bishops are not one of the three States nor an essential part of the Government There is another Book in Folio called A discourse of the Peerage and Jurisdiction of the Lords Spiritual in Parliament This Author pursues the same design upon the same grounds with some peculiar reasonings of his own If therein I give him satisfaction in what he hath peculiar without mentioning distinctly of them I am sure he will thank me for it But we will consider the Octavo's Preface examine his Precedents and shew that they are
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
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
resolved what to do desired of the Earls of Leicester and Cornwall that he might have time untill the morrow And the morrow being Sunday time was given until the Munday and then the Bishops came to Becket and advised him for avoiding danger and scandal to submit himself to the Kings Will which if he should do jam audierint in Curiâ Regis perjurii Crimen sibi imponi tanquam proditorem judicandum eò quod terreno Domino honorem terrenum non servaret cum avitas consuetudines Regni observaturum firmasset ad quas specialiter observare jurisjurandi nova se illos astrixerat Religione And now sure it will be believed that Becket was accused in this Parliament of Treason for Treason was his Crime not allowing the King with the consent of his States to make any Laws but such as he should approve aggravated with perjury for he had sworn himself to observe them After Becket had given the Bishops an obstinate and resolute Answer to adhere to his Treasonable Practices to disallow the Authority of the King and States in the Laws called the Assise of Clarendon and to oppose the observance of them Observe what Gervasius saith discesserunt Episcopi ad Curiam properantes By and by Becket comes too but the Bishops were there before him carrying the Cross himself which the King as well as the Bishops took to be a coming armed Upon which saith Gervasius vocatis Episcopis proceribus gravem grandem Rex deponit querimoniam quod Archiepiscopus sic armatus in Curiam veniens ipsum suos omnes inauditâ saeculis formâ naevo notaverit proditoris Whereupon the Bishops by the Mouth of Hilaris Cicestrensis a Bishop more eloquent than the rest thus said to Becket Quandoque ait fuisti Archiepiscopus tenebamur tibi obedire sed quia Domino Regi fidelitatem jurasti hoc est vitam membra terrenam dignitatem sibi per te salvam fore consuetudines quas ipse repetit conservandas tu niteris eas destruere cum praecipue spectant ad terrenam sui degnitatem honorem idcirco te reum perjurii dicimus perjuro Archiepiscopo de caetero obedire non habemus This I take to be a judging in Treason But this the Bishops did for their part as Bishops and Suffragans they did withdraw their obedience from their Metropolitan which was as much as in them lay to deprive him a conviction it was of the Guilt not indeed judicium sanguinis But this is not all for observe what our said Author saith further they going away the King saith to them discernite quid perjurus contumax proditor debeat sustinere Itur judicatur à quo vel qualiter judicium pronuntiandum esset informatur In which matter Stephanides as he is cited by Mr. Selden in his Titles of Honour in the Folio Edition fol. 705. tells us how it was consulted and debated between the Bishops the Spiritual Barons and the Temporal Barons for saith he de proferendo judicio distantia fuit inter Episcopos Barones utrisque alteri illud imponentibus utrisque se excusantibus Aiunt Barones vos Episcopi pronuntiare debetis sententiam ad nos non pertinet nos Laici sumus vos personae Ecclesiasticae sicut ille Consacerdotes ejus Coepiscopi ejus Ad haec aliquis Episcoporum Imo vestri potius est hoc officii non nostri non enim est hoc judicium Ecclesiasticum sed Seculare non sedemus hic Episcopi sed Barones Nos Barones vos Barones pares hic sumus Ordinis autem Nostri rationi frustra innitimini quia si in nobis ordinationem attenditis in ipso similiter attendere debetis eo autem ipso quod Episcopi sumus non possumus Archiepiscopum dominum nostrum judicare By which dispute by the way it doth appear that both the Bishops and Temporal Lords did take themselves to be equally constituted Judges and Peers by reason of their common Baronage in this Case of Becket a Cause of Treason the Bishops owned and avowed a Right of judging him as Barons They did not excuse themselves upon the score of the Canon alledged but from the indecency in respect of the relation that they stood in to the Criminal he being their Superiour and Metropolitan they seem'd willing to decline the making of the Sentence Whether any Judgment was pronounced by whom or what the Judgment was is not certain the Historians differing thereupon But when he went out of the Court he was call'd by the people as he past Traytor and perjured Traytor as the King before had called him And if this be not the clearest proof of Beckets being accused of Treason and the Bishops judging in a capital Cause in Parliament there can be nothing proved to satisfaction Besides that all that writ of his story are unwilling Witnesses they magnify excuse and justify the man all along extolling his virtues They call him Saint Pater Patriae so Gervasius does Coll. 1393. and Martyr Let the Reader consider what is here faithfully recited and then let him tell what Opinion he hath of the Candor of the Octavo Gentleman who could find no fault in Thomas Becket for he saith Folio 62. That Gervasius Dorobernensis saith that Becket was charged with two things Injustice to John Marshall and his own contempt in not appearing to the Kings Summons This Author had nothing of his own knowledge to charge upon him and saith that Stephanides is not to be regarded because he was Beckets friend and an obscure Author it may be not yet come into his Study The Author had reason to see no faults in Becket or to forget them all for the good service the insolencies of that man hath done towards the Scandal of the Order But we have not mispent our own time neither will the Reader regret our length in this matter for this single Case consider'd gives a Resolution to the Question and puts the Right of the Bishops to sit in capital Causes out of all doubt This Case will let in light for the true understanding of the Assise of Clarendon For it must be noted that the Great Parliament of Clarendon was held by Henry the 2. about the latter end of January in the tenth year of his Reign the Bishops and Lords were all Sworn to observe the Statutes there made called the Assise of Clarendon called the Avitae consuetudines Regni of which the Law aforementioned was one This Law therefore must be interpreted in such a sense for that the words will bear it and can be intended in no other than that which may consist with the proceedings in the Case of Arch-Bishop Becket and with the Oaths of all the Bishops and Peers and the great men taken but a short time before to observe the Statutes of Clarendon Now if the whole Order of capital Causes had been intended to be excepted by that Statute above
accomodet This may be a Canon for all that I know but I suspect it had never the Royal Assent to make it so it not being likely that the Conqueror would discharge the Bishops from those Services of the Crown which he had so lately obliged them to by his tenure but surely it was never intended by this Canon that the Prelates and great Abbots should or that they did depart from their Royal Franchises and not make their Officers for administring Justice according to their Authorities in their Charters of Liberties and Priviledges For the words of the Canon Vel judicantibus tuae authoritatis favorem accomodet if they signifie any thing more than what weallow must sound to that purpose But I suppose the Gentlemen that appear'd against the Bishops had rather than affirm so against the known practice of all Ages be content to agree that this Canon did only intend to prohibit their pronouncing or encouraging or promoting the Sentence of Death or Mutilation and indeed this was all that truly could be pretended to from them in comporting themselves decently with respect as the Opinion of those times was to their Function which is expressed to be the Inducement to that Canon of Toledo as it was the only avowed Reason of all others that is that it did not become as they thought those that administred the Sacraments which were the Seals of God's Pardon to pronounce an exterminating Sentence of Life and Member though they might have a farther Secret purpose therein of carrying on the Design of a Church-Sovereignty by imbodying the Clergy and dividing them from all Secular Dependencies but this was nor always to be owned neither is it an agreable Employment to any person who pretends himself a Protestant to urge these ill-designing Canons as a pretence to divest the Bishops of those their Legal Rights which were so prejudicial to the high Growth of the Papal Power upon any pretence whatsoever or to go about to deprave the Reformation as if the true Christian Religion would not allow to the Bishops Honors and Trusts as great as they now enjoy by the Constitution of the Government who are the Chief Ministers of it which is a Religion that makes men wise and good the Religion of the State and is the greatest Support of it and reciprocally this Religion it self is honored assisted and greatly advantaged for obtaining its ends by those Honors and the place at present appointed to them in the Government But it is deplorable to find any man so madly set upon so bad a Design that he should be thereby transported from Common Sence and think to displace them and degrade them by Popish Canons that when they were made did not oblige were never observed and can no more bind our present Church to observe them than the Fathers of Toledo or Lanfrank and his Suffragans and Clerks can be blam'd for not being agreable to the Canons that have been made since the Reformation or hereafter shall be made by our Church in any after Age of the World But there are two Canons yet behind which have been mentioned in this Controversie which we will likewise take notice of or we shall have said nothing though I almost despair that any thing will be a Satisfaction to such Opposers as this Right hath met withall The first whereof was made by Richard Archbishop of Canterbury Anno Domini 1175. in 21 H. 2. about Eleven Years after the Assize of Clarendon in these Words as Hoveden p. 310. ac Gervase Dorob relates them His qui in sacris Ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut per se membrorum truncationes faciant aut inferendas judicent quod si quis tale fecerit concessi Ordinis privetur officio loco inhibemus etiam sub interminatione Anathematis ne quis Sacerdos habeat Vicecomitum aut praepositi secularis officium The other was made Anno 1222 about 47 years after the first which is to be found in Linwood p. 146. among the Constitutions of Stephen Arch-bishop of Canterbury as follows Praesenti Decreto statuimus ne Clerici beneficiati aut in sacris ordinibus constituti villarum procuratores admittantur viz. ut sint Seneschalli aut Ballivi talium administrationum occasione quarum laicis in reddendis ratiociniis obligentur veljurisdictiones exerceant seculares presertim illas quibus sanguinis judicium in locis sacris tractetur in Ecclesia viz. aut in Coemiterio Authoritate quoque Concilii districtiùs inhibemus ne quis Clericus beneficiatus vel in Sacris Ordinibus constitutus literas pro poena sanguinis infligenda scribere vel dictare presumat vel ubi judicium sanguinis tractatur vel exercetur intersit Noverint enim hujusmodi se Ecclesiastica indignos protectione cum per eos in Ecclesia Dei per talia presumpta scandalum generetur Upon both these Canons we observe first that the Pope's Canon-Law had not obtained in England For then there had been no need of these Canons or however their Denunciations and Censures would have been the same That the Inhibition is repeated by a Second Council but in milder Terms signifies to me the Continuance of the thing prohibited and that it was so much in use after the first Canon that the second Council thought fit rather to direct and admonish by their Canon than to pronounce either Anathema's or Privation against those that break that Canon Secondly That neither of these Canons extend to Bishops not the first not only for that I question whether Bishops can be intended in such general words In Sacris Ordinibus constituti But because the Denunciation of the Canon cannot have effect as to them no Ecclesiastical Authority can depose a Metropolitan and also because the Second cannot by any Construction extend to them for Clerici beneficiali does not mean them and that which comes after aut in Sacris Ordinibus constituti cannot ascend in meaning and intend the Bishops especially in a Canon Law which we must suppose penn'd with special Care and Observance of Decency and Reverence to that Order Now to consider them apart I find the first agreable to and to prohibit no more than what the Bishops if here meant are licenced and priviledged from in the Assize of Clarendon And to intend more is unreasonable when it was made in time so near to Thomas of Becket that his Fate could not be forgotten And farther we must distinguish between the Preamble which contains the Reason and Inducement of a Law and what is for that reason prohibited For let the Reason be as large as it will yet the Law is no other than what is enjoyned Reason makes no Law but the Legislators for Reasons which they may tell us if they please though the Nature of Canons requires that they should The Preamble of this Canon was an opinion taken up amongst some of the Clergy viz Non licet
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
like this was before attempted by King John by this Writ of King John the like of which is not found Rex vicecomiti Oxoniae salutem praecipimus tibi quod omnes milites Ballivae tuae qui summoniti fuerant esse apud Oxoniam ad nos à die omnium Sanctorum in 15 dies venire facias cum armis suis corpora vero Baronum sive Armis singulariter 4 discretos milites de comitatu tuo illuc venire facias ad nos ad eundem Terminum ad loquendum nobiscum de Negotiis Regni nostri teste meipso apud Written 11 die Novembris Dors Claus 15. Johannis Regis Part 2. M. 7. But that Hen. 3. in that Parliament had some notable Expedient for the Establishment of the publick Peace and Quiet His Hopes and Desires of accomplishng it will appear by the Stile of the fore-recited Writ if compared with another Writ of Summons in a Cursory Form in the 26th Year of his Reign which was thus Henricus c. Venerabili in Christo Patri Waltero Eboracensi Archiepiscopo salutem mandamus vobis qualenus sicut honorem nostrum pariter vestrum diligitis in fide qua Nobis tenemini omnibus aliis negotiis omissis sitis ad nos apud London à die Sancti Hillani in 14 dies ad tractandum nobiscum una cum caeteris magnatibus nostris statum nostrum totius Regni nostri specialiter tangentibus hoc nullatenus omittatis But shortly to deduce the History of this Change which is but conjectural under the Authority of Mr. Selden in which nothing is certain but that the Bishops continued in the Change of the Baronage in the same State of Greatness mentioned the same Order had their Writs of Summons continued to them as before and though many of the Regular Barons were after omitted to be summoned to Parliament yet not one Bishop ever wanted his Summons This Discrimination shews That they were now Barons by Writ as the Lay Barons were and for the same Reason that is because Tenures did not now make them Barons But such only were so who had the King's Writs sent to them of Summons to Parliament So that the Bishops are not now to be reckoned Barones feudales or Barons by Tenure but Barones rescriptitii as all Barons at this day except those by Patent which are so without any respect to Tenure The Feudal Baronage as we said was as large and as numerous as the Tenures by Knights Service in Chief which were capable of being multiplyed several ways for every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee The Feudal Baronies besides were ambulatory not fixed to Families but assignable as Estates and passed with the Lands Who sees not that by this Constitution and Nature of Baronage a great many mean persons not agreeable to that high Order must be entitled to it and so in truth it happen'd And hereupon a Distinction was made first between Barones Majores Barones Minores The Barones minores soon lost the Title of Barons altogether This is conjectured by Mr. Selden to be before the latter end of King John's Reign and their legal Stile became Milites or Libere Tenentes which some upon a mistake anticipating the Change of the Government made in H. 3. time think when they meet with Milites or Libere Tenentes in Parliament they have found Knights of the Shire chosen for Representatives in Parliament And if they reteined the Name and Stile of Barons it was now but abusively applyed to them for their Baronies were in Truth estimable but as Knights Fees only and of this sort of Barons there remains some to this day This appears by a Passage in the grand Charter of King John made in the latter end of his Reign as it is in Mat. Paris 343. Ad habendum commune concilium Regni de auxilio assidendo aliter quam in tribus casibus praedict these three Cases of Aid to make the Eldest Son a Knight of Aid to marry the Eldest Daughter and Aid of Ransome are understood Heir as is plain by the Charter Et de scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbates Comites majores Barones Angliae sigillatim per literas nostras Et praeterea faciemus summoneri in generali omnes alios qui in Capite tenent This was one Step to remove these Barones Minores from the Dignity of Barons which by H. 3. were quite discharged and never appeared after in Parliaments except chosen Knights of the Shire But because I find this great Charter of King John not well understood by several considerable Writers nor by Mr. Selden explained I will offer my Thoughts and the rather because it is not impertinent to our present purpose The first part to which the part before-recited doth refer is thus Nullum scutagium vel auxilium ponam in regno nostro nisi per commune concilium Regni nostri nisi ad corpus redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel maritandum ad hoc non fiet nisi rationabile auxilium and then follows ad habendum Concilium Regni aliter quam in tribus casibus praedictis scutagiis assidendis c. I conceive that by the first Commune Concilium he means the Curia Regis and that he did grant that out of that Court he would not impose Escuage or aid upon his Tenants except it were those three Cases of Aid mentioned For Escuage was then and after assessed in that Court and that properly as being due by their Tenure only the Opportionment there was to be made which was a proper Office for the King's Tenents amongst themselves until the Statute of 34 E. 1. de Tallagio non concedendo in which it was provided that no Tallage or Aid shall be put or levied without the Will and Assent of the Archbishops Bishops Earls Barons Knights Burgesses and other Free Commons of the Realm but for all matters other than those three mentioned Aids and Escuage which were due by Tenure it should be done by that Commune Concilium that is his Parliament and he there declares how he would have it summoned as to his Baronage who in that part of his Charter were to receive their Satisfaction and for the Liberties of sending Burgesses to Parliament they are likewise confirmed in the same Charter and therein provided for So that I am persuaded that the modus Parliamenti in King John's Time was in the said Charter declared It was probable that before this Charter there was some Law to declare who those Majores Barones were and who those Tenants in Chief were that should be accounted now no longer Barons and after the Tenants in chief had lost the Honor of a particular
summoned Yet the Bishops by reason of their Spiritual Dignity had necessarily a right and voice The Archiepiscopi Comites Barones alii Magnates in ancient Parliamentary Writs of Summons do ordinarily express and comprehend the whole Baronage without naming the Abbots and Priors which must be signified by the alii Magnates Which I the rather note because the Folio Author a Gentleman very easie and ready in Inferences doth conclude that because such Writs mention Magnates besides Bishops Comites Barones which he too suddenly concluded were comprehensive of the whole Baronage doth thence argue that a Writ of Summons of any man to Parliament doth not make him a Baron and from thence would have it inferred that the Bishops are not so though they are expresly mentioned and first in order and cannot in reason be reduced to that meanness of rate and quality with those that fall under an Et caetera and from hence would have it concluded that they may when the King pleaseth be dismist that House because there were anciently some Grandees that had Session in Parliament now discharged Besides we do observe that another sort of great men may be meant by the alii Magnates that is to say famous men of the Clergy not Bishops and other men of great name for wisdom of which there were some summoned in most of the ancient Parliaments not intended thereby by the King to be made noble or advanced to the state of Baronage for there were distinct clauses in the Writs of Summons to signifie the Kings purpose therein The Writs directed to such as were not intended thereby to be made Barons as the Judges Attorney General Kings Serjeant c. was Quod intersitis nobiscum cum caeteris de Concilio nostro and sometimes nobiscum onely super praemissis tractaturi vestrúmque consilium impensuri whereas that to the Barons was Quòd intersitis cum Praelatis Magnanatibus Proceribus c. But as Mr. Selden observes that custom of sending Summons to great men not Bishops to Parliament did cease after the clause of Praemunientes by which Convocations were summoned by Bishops to meet with Parliaments grew in use in the Bishops Writs of Summons to Parliament Of which excellent Provision we shall have occasion to speak to hereafter All the Baronage both Spiritual and Temporal de jure ought to have Summons now to Parliament without respect to Estate or Tenures There is no man now noble by his Acres a sort of Nobility that this refined Age will not allow of The King according to the Constitution of H. 3. afore-mentioned may now by Letters Pattents or Writ erect a new successive Barony as well as hereditary as was done by H. 8. The fifth year of his Reign for that the Baronage of England was now affixed to Family and Succession and not to Tenures he by his Letters Patents did then grant unto Richard Bamham Abbot of Tavestock in the County of Devon the Abbey being of his Foundation and Patronage and to the Successors of the said Abbot Vt eorum quilibet qui pro tempore ibidem fuerit Abbas sit erit unus de Spiritualibus Religiosis Dominis Parliamenti nostri haeredum Successorum nostrorum gaudend honore privilegio libertatibus ejusdem This the King might well do because the Abbot was of his Patronage and the Successors were therefore to be elected and collated by the King for that was the Inducement and Reason of Kings and Sovereign Princes advancing Bishops and great Abbots to the degree of Baronage making them members of the great Councils of their Kingdoms and Principalities as is before observed because such Abbots as the Bishops were made always and appointed by the Sovereign Prince And here we may take notice by the way of the Reason why the Episcopus Soderensis or the Bishop of the Isle of Man is not summon'd to Parliament which I shall give you in the Words of Sir H. Spelm. in his Glossary Baronum appellatione non omnes hodie apud nos censentur Episcopi ut pote Soderensis in insula Manniâ quod de Rege non tenet immediate at de Comite Darbiae Nay it is most observable That this Honour of Baronage or being a Member of the House of Peers was so inseparable to the Office of a Bishop after the afore-mentioned new Constitution of the Baronage That the Guardians of the Spiritualties of Bishopricks in the times of Vacancy and the Vicars General of Bishops being beyond Sea were summoned to Parliaments by the same kind of Writs as the Bishops were summoned Of this Mr. Selden doth assure us Titles of Honour 2 Edit fol. 721. But this Honour lasted no longer than this legal Substitution and Vicarious Power If they had Right to sit in that House in respect of their Temporalties the Guardian of the Spirituals or the Vicars General would not have had Writs of Summons to Parliament But if the Kingdom had not had a great Opinion of that Order it would not have been provided and put in use that in Vacancy of the See or Absence of the Bishop rather than that great Council would want one Bishop utterly or the Interest Authority and Consent of any that had Episcopal Authority they admitted the Substitute by whom that Office was executed and administred for that Interval only When Baronies were feudal the person tho' in respect of his Land was noble his great Estate and Interest and the other general Presumptions that attend opulent Fortunes made the Possessor noble in his Person Anciently the Estate of late the Discent in the Temporal Baronies and the Succession in the Spiritual Baronies place the persons respectively in the Census and Rank of Baronage but there is no Nobility but what is personal nor can be in Nature All the persons in the same Order of the publick Census are of the same Quality Neither are Bishops to be accounted less Barons or less noble because they enjoy their Baronies for Life only no more than a Tenant for Life of an hereditary feudal Barony could be so accounted Feudal Baronies being considered as Estates were alienable as Estates and as Estates would suffer Limitations and admit of particular Estates for Life No man can say we had no personal Nobility in the time when there was no other Baronage than Feudal How then can it be said that the Bishops Persons are not noble though they should be accounted only Barons Ratione Tenurae as certainly they are not in proper speaking at this day neither can it be objected against their personal Nobility that a Bishop may be degraded for so may a Peer for more Reasons than a Decay of his Fortune and Estate Which matter I the rather insist upon for that the great Mr. Selden committed an Error by not considering that the ways and means by which persons derive and come to be of the Order of the Nobility and Baronage can make no Difference in the Baronage
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
form'd His great Knowledge in Records and that he is known not to be partial for the Bishops make him of great Authority pages 10 11 12 13 14 17 329 384 325 281 392 567 607 710 712 713 714. And farther in the Time of Queen Elizabeth in an Act of Parliament in the first Year of her Reign made for the Recognition of Her Queen of England which was an Act of State and of the whole Community and therefore most requisite it was that that Parliament should give themselves their right Stile It is said We your said the Lords Spiritual Temporal and Commons in Parliament assembled was said before to which this doth relate most loving Subjects representing the three States of your Realm of England The Nature of the Government came directly at their Times under Consideration of the Parliament which is an Assembly that cannot be mistaken in the Constitution of the Kingdom in any Question of such a Nature when they will deliberate and consider This mighty Affair required them to consider who they were and what was their Constitution Now if at any time they are to use that Stile that denotes their Power and declares the Government The Stile of the three Estates of the Realm it seems is so sacred and great and not for ordinary use but that it is used upon such occasions as the Recognition of the Sovereign Princes and in declaring Kings This Stile is most certain declarative of the true Constitution and the great Stile and Title of the Lords Spiritual Lords Temporal and Commons of England A Misnomer now would be as great a Solecism as to see the Nobles and Prelates without their Robes and proper Cognizances at the Solemnities of a Coronation By the due comparing the Statutes aforementiond wherein the Lords Spiritual and Temporal and Commons are called the States and also the Representatives of all the Estates of the Kingdom We may be enlightened into a great Mistery of State for that the Lords Spiritual and the Lords Temporal and Commons are called the three States and also the Representatives of the States give us to understand that every one of them is entrusted for the other and with the Conservancy of the whole Community and are all in their proper Ministries designed to the Common Good and each of them have Dependencies and Expectancies from the other in the due Discharge of their proper and distinct Offices And that the Lords Spiritual and the Lords Temporal are Representatives and Trustees for the Peoples Good and the Common-weal as well as their own In like manner as every Parliament man for a particular Borough is a Representative of all the Commons of England To which we will adjoyn another great Authority and that is of Sir Edward Coke 4 Inst fol. 2. who tells us that the King and three Estates viz. Lords Spiritual and Lords Temporal and Commons are the great Corporation and Body Politick of this Nation This was the Opinion of his Old Age when he was most improved in Knowledge and when he did not flatter the Prerogative Besides to clear this point we may observe that the Stile of Acts of Parliament that hath mostly obtained is this viz Be it enacted c. and by and with the Advice and Consent of the Lords Spiritual and Lords Temporal and Commons This distinct mention of the Lords Spiritual and Temporal is Cognizance of their being distinct States For observe there is no particular mention of Knights Citizens and Burgesses in Acts of Parliament because they are all of the Commonalty which is but one State They are all involved under the general Name of Commons And so would certainly the Lords both Spiritual and Temporal have been in the general Name of Lords if they had not been distinct States and so accounted The Stile of Acts of Parliament would have been by the Advice and Assent of the Lords and Commons assembled in Parliament And the ancient Stile of Parliament before the House of Commons was divided and constituted apart from the Lords House was Clerus Populus Clerus Magnates as may be seen by Eadmerus and Matth. Paris and the Writers of those Times So that the Clerus or Bishops were always a distinct State in Parliament For the letting in Light upon all that hath been said in this matter and for farther clearing it and to reconcile the Differences in the Stiles of the Parliament and that they may unite in their Evidence and not seem to thwart one another It must be remembred that that which is most express and particular is most scientifical and more exactly instructive most distinct and true and intends to inform us exactly in the very Nature of the thing and therefore cannot be derogated from nor prejudiced by what is more general or less distinct It is hence therefore evident that the Lords Spiritual and Temporal are taken for distinct States as they are For they have their distinct Interests and for several ends and purposes became parts in the Government They have their several Ministries and Advantages to the Government apart and come into that House by several ways of Designation and Appointment The Prelates care besides that which is common between them and the Temporal Lords is that of Religion and the Affairs of the Church and the whole Order Ecclesiastical by which the People are to be ministred to in their highest Concernments which are Reasons very sufficient to reckon and account them a distinct State And now we have asserted to the Prelates a Jus Paritatis in the House of Lords for that they are complete Barons as we have likewise proved them a distinct State The Baronage of England is the House of Lords Additions of Title give Precedency but no Superiority or addition of Power The Baronage is one Order and Rank and the highest in the Census of the Government the manner of the Promotion the Ends and Interests of the Government in the advancement of the Bishops though several from those that advanced the Temporal Lords to their State and Honour yet to the same degree they are promoted they are both Members of the same great Council of the same great Judicature and are therefore by their long continuance most duely styled Pares Regni And moreover the Bishops are considered as to their Order and Office Ecclesiastical and another care incumbent upon them besides that of the Baronage and the Orders that belong to the consideration of Heralds do signifie that their Office of a Bishop doth not lessen the Dignity of their Peerage What is it then that makes this present Question The Bishops have the reason and nature of the Government of their side they have used such a power when they have pleased it was never denied to them and their right hath had the most solemn Recognition that can be made The Canon could not abridge and restrain their right and their true Character qualifies them not onely to the degree of an
unexceptionable Judge but renders them most fit and desirable For besides their Wisdom and Justice common with that of the Temporal Lords they are intended of the greatest tenderness and compassion and must be so if they comport themselves with agreeableness to their Character and Function They are not ordinarily engaged in the Factions of the Temporal Grandees and Religion being their business they are more under the powers of it that being their glory and their first greatness that which promoted them to their Secular Honour and Dignity and that which must support it Their Interest is Religion and therefore they are the more obliged in all their outward acts to comport with it They out of an universal charity understand that it is mercy and compassion to the innocent to punish the nocent person and yet they can in the administration of punitive Justice attemper the severities of Laws with the mercies of Religion and use Compassion to the Criminal when they do not depart from the unrelenting Rules of Law out of regard to the publick peace and by such demeanour they may reconcile the Office of a Judge with that of a Priest which some have thought incompatible 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Synes But they are no more inconsistent than Power and Authority which united makes a most venerable Magistrate and gives him the greatest advantage of serving the Community Peragit tranquilla potestas Quod violenta nequit mandataque fortiùs urget Imperiosa quies CHHP. XVIII AND such a Judge would I chuse but we we must take such a Judge as the Law appoints Magna Charta is objected against the Bishops right in the question which saith that Nullus liber homo capiatur c. nec super eum ibimus nec super eum mittemus nisi per judicium parium suorum The Objector omitted to add or consider what follows viz. Aut per legem terrae But the Statute of Magna Charta is no Literal Law as every body knows but intending to confirm the Common Law it is upon the matter Lex non scripta it alters nothing that was the Common Law before but that being found out declares what Magna Charta establisheth And therefore Peers shall be tried by Commoners in Appeals notwithstanding the Letter of Magna Charta for otherwise Peers could not be tried at all nor no Justice done in Appeals which is the Suit of the Party and not of the King Privilege must be always set aside rather than a faileur of Justice shall be allowed So that the Law before Magna Charta and since whatsoever it was must determine this matter The Provisions that the Law hath made that the Nobles and the Commonalty shall not intermeddle to judge any persons not of their Order is a most prudent Establishment without which neither Order Justice or Peace could be preserved The Envy of the Commons would render them unfit Judges of the Peers and the Animosities of the Peers would render them unapt to sit in Judgment upon a despised Commoner Besides that otherwise the Dignity of the Order of Peers would suffer for the Superiour can no more be judged with any congruity than blessed by the Inferiour This is a reason big and wise enough to be assigned and worthy of a wise Government and Polity And to this reason the words of the Statute of 25 E. 3. cap. 2. de Proditoribus do point De ceo soit probablement attaint de overt fait per gens de lour condition And therefore it seems to me that according to the Reason and Design of the Law which declares the Law in particular Cases that Bishops being Barons and of the Peerage of England and of that Rank and Order they ought to be tryed by those of their own Condition And the denial to them of this Priviledge which is annex'd to and is a resultance from the Dignity of their Order is a departure from Magna Charta and not agreable to the Provision of the 25 E. 3. c. 2. But it was never an allowable Exception to a Judge that the Judge hath not so good an Estate or other Advantages of Fortune equal to the man he Judges to forfeit in case the Judge be a Capital Offender upon which reason the Folio Gentleman grounds his Reasonings against the Bishops being Tryers of Peers He argues the Bishops incompetent to try a temporal Baron upon this reason because the Bishop hath only a Peerage for his Life to forfeit But who can be satisfied with such fine and slender Reasoning or entertain an Opinion that is not bettern grounded I would not be thought to argue or maintain that Prelates are so fit to be appointeed by the King's Commission to try a Temporal Peer in the Court of a Lord High Steward out of Parliament when a select Number of Peers are to be appointed for Tryal it is most convenient that those of the same Species of the Baronage should be chosen for that purpose for many reasons but for a Tryal of a Temporal Peer in Parliament which is the Establishment and Appointment of the Governmnt and not of the King 's special Designation notwithstanding the reason of the Folio for Reasons herein alleadged a Bishop is a most fit legal and competent Judge But I have taken too much notice already of the Errors and Mistakes of the Folio and his false Reasonings I am weary of such Animadversions I shall proceed now to the end of my Discourse without making any more Reflections It is already cleared that the Bishops are compleat Barons that they are of the State of the Baronage and it can have no Consideration how they came by it nor how they held it for the Modus tenendi doth not alter or diversifie the Honor. And for my part I cannot find reason to believe but that the Bishops had or might have had originally their Tryals by Peers and that it was their Right in Consequence of their being placed in that Order and State besides that they have a Precedency to the Temporal Baronage to be tried by the Baronage because the Law for the reason afore-mentioned appoints Tryals per Pares But the contrary practice is the Strength of our Adversaries in opposing the Peerage of Bishops which we shall therefore now consider of It is certain that in all Tryals wherein Bishops are concerned whether Plaintiffs or Defendants in Actions real as well as personal whether the Lands of the Church are concerned or not a Knight is to be returned upon the Jury that is to try the Issue I will not trouble the Reader with Law Cases any Gentleman that pleaseth may examine the Truth of what I say This priviledge therefore cannot be in respect of the Lands of the Bishoprick as the Folio would have it but of the persons of the Bishops a respect to the Order and Peerage of the Bishops It is the same Priviledge and as large as the Temporal Peers enjoy in this matter which is that the worthiest and best
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
which have since made the Convocations or the Ecclesiastical Council of the Kingdom and are to meet at every Session of Parliament but to debate nothing but what is propounded and to publish nothing for Canons without the Royal Assent So that they are to act nothing but under the observation of Parliament This Convocation or Ecclesiastical Council other allowable Synods we have none ought not to convene but when a Parliament is sitting and continue no longer than the Parliament We ought to observe herein and applaud the excellent wisdom of our Government that in the very constituion of it hath provided for the peace of our Church by silencing Controversies which can never be determined with any effect such a wise expedient and course as the best instructed Christian Emperours did take by their Edicts prohibiting publick Disputations about subtil and nice Questions as Constantine Martianus Leo Anthemius Andronicus Heraclius to mention no more None but mad men and extravagantly presumptuous or utterly ignorant of Church History will ever hereafter go about by Acts of Councils to end Controversies but rather to shame the Dogmatizers out of their contentious zeal by shewing how little the ends and designs of Christianity are concerned one way or other in such Questions in which those that are most learned know least and a little learned ignorance would discharge most of them from any longer troubling the world And farther we must observe to the Honor of our Nation that it is so religiously wise as to commit the Care of conducting Devotions ordering the Decency of Publick Worship and censuring the Manners of Clerks to the Bishops and the Principal Clergy whereto their Religion Wisdom Devotion and Moderation bespeak them the fittest Persons No less remarkable is the Wisdom of our Government that it doth not make that which is properly the matter of Canons the Subject of their Legislation and thereby subject us to Temporal Punishments where the Admonitions of the Church and her Censures are more proportioned Remedies to the disobedient and froward Laws oblige us to punishments govern us by Fear and Awe oblige with Reason or without Reason because they are Laws They admit of no Ecclesiastical Relaxation or Dispensation and bind when the reason ceaseth In whatsoever thing relative to Religon a Law is made the matter is taken out of the Hands of the Church-men and no longer under their Government whose Government is a Ministry not Empire and Dominion They can institute nothing but what they may reasonably persuade Nihil tam voluntarium quam Religio Lact. We can have no more Religion or Truth than we can persuade Religion and Truth are to be promoted by moving the Will The Church rules by persuasion and her Canons oblige only for their Reason Religion for the sake of our own Edification and the Edification of others the Peace of the Church and Reverence of our Pastors and Teachers Canons in their own Nature are Temporary for the present necessity and convenience variable and mutable as the Edification of the Church shall require and the prudence of the Guides of the Church shall determine and therefore what is properly the Matter of Canons ought not to pass under Laws which are rigid and inflexible peremptory punitive and ungovernable And this magnifies the prudence and Christian Temper of our English Prelates CHAP. XXIII LAstly I observe what a dangerous Opinion our Judges sometimes had in reference to the Baronage of England viz. that it was in the Power of the King or in any Nobleman once summoned by Writ to Parliament as a Baron at the pleasure of the King to relinquish his place and determine the Nobility of his Family Which Opinion not being corrected would have made that State ambulatory and moveable upon which the whole Frame of the Government depends The Baronage of England is the Stabiliment of our Government and may be soon made too weak to support the other greater parts of the Building that rest upon it and are supported by it It is this that moderates between the two contending Interests of Prerogative and Liberty and prevents those violent Concussions which would otherwise unavoidably happen geminum gracilis Mare separat Isthmus Nec patitur conferre fretum si terra recedat Ionium Aegaeo frangat Mare Of what Importance therefore is it that we should be a Kingdom that cannot be shaken as much as Humane Wisdom can provide and frail Materials will admit That our Baronage should not hold their places precariously at the King's Pleasure and be deposed at his Will And yet our Judges after that Honor was fixed in the Families of those whom the King should appoint by Writ to hold that Honor and Place in the Commonwealth remembring that Baronage was at first a Service imposed ratione tenurae by Will the Conqueror Our Judges I say more able to judge of Private Rights than in Questions of State and Government being under a prejudice from the Consideration of the Original of our Baronies did allow the Plea of Thomas de Furnival who had been called to several Parliaments by Writ that he was no Baron for that he held not his Land per Baroniam vel partem Baroniae and therefore adjudged him no Baron Communia de Term. Sancti Hillarii Anno 19 E. 2. Rot. penes Remem Dom. Thes in Scaccario pro Thoma de Furnival Seniore exonerando But of this Cause they were not properly Judges the Lords themselves are the only Judges of the right Constitution of that House and they have anciently challenged a Writ of Summons de jure debito Justitiae for themselves and Descendents where they have been once summoned by Writ and answered that Writ and taken their place accordingly And the whole House doth constantly refuse to act until the Lord that complains of an Omission hath a Writ of Summons sent him What Apprehensions was had of this Honor by Thomas de Furnival and others in his time I know not But it might have been then and since it is well understood that that place which they sustain in the Government is of the highest Trust and the Benefits which redound therefrom to the Commonweal the greatest For they make the Government as well gentle and good as firm and stable These Noble Lords Marchers are placed between two great Contending Powers to preserve the due Boundaries and respective Limits and oblige them to Right and Reason by their Courage and Wisdom And for their Encouragement and Reward deserve the highest Honors and that they should be as they are immortal in their Families And accordingly it was resolved lately in the Case of the Honor of Purbeck in the Lords House that no Fine or Surrender of the Honor of a Baron can extinguish it But that notwithstanding it shall continue to his Heirs and Descendents And that upon the clearest and most important Reason for that the Constitution of the Government ought not as in its own Nature it cannot
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
wherewith shall it be Seasoned And if our Light be darkened how great is our Darkness The Bishops know that the World will not be kept in Order by meer Designations of Trust but by Execution of their Trusts not by abstract of Characters unless they are put on and effectively worn The World will not be put off that there is no Provision made in the Government for reasonable Expectancies of all that can make a People happy if we are disappointed in our just Expectations They know for what high Ends they are advanced to their Secular Dignities what was it that hath thus advanced them Was it not the reasonable Expectation that Christian Princes and Governors conceived of their excellent Virtues that they would out-doe all mankind in firm Constancy a vast and extensive Charity unrelenting Fortitude inflexible Justice unmoveable Faith and Loyalty and unbyassed Sincerity What Temptations can their Lordships have that they should not or we Reasons to believe that they will not put forth all those Christian Vertues in Heroical Degrees which the World will not give them leave to exert only in common measures They will find it necessary sure to be now Confessors for the Support and Happiness of a poor distracted Nation a vast and great People They will no doubt subdue the Greatest Potentate to Justice if there be any such who hath unhing'd the Government and sap'd the very Foundations of our Constitution and will never consent to the Pardon of such Sins that are not to be pardoned in this World nor in the World to come Can they suffer the true Christian Religion of which they are the chief Ministers and Curators to perish by their timidity and cowardise Can they suffer a great People committed to their charge to be destroyed into an Anarchy and desert that Prince whose Beneficiaries they are and not interpose for the saving of him and his Government by faithful and wise Counsel To suppose such things as are morally impossible is unreasonable and to fear where no fear is For they if they were wholly secular and were guided by nothing but a secular Interest can consider that the world is impatient of disappointments That they hate nothing more than deceits and abuse of trusts and that he that falls short and goes less than a just expectation falls into the lowest and vilest contempt and deepest scorn But this is not a time sure to lessen the Prelates to take from the Bishops any just advantage or honour when that the contempt in this later age thrown upon them and the whole Order Ecclesiastical and the mischiefs that have naturally ensued thereupon have brought our Nation Religion and Government to a most miserable state a most desperate plunge out of which I pray God we may be able to emerge The Contempt of the Bishops and Clergy made the People despise the publick Establishment chuse Teachers not much wiser than themselves And they have thereupon multiplied vain Opinions and Divisions and true Christianity is scarce had in any Consideration Atheism and Profaneness upon this Stock is come to an enormous Growth which thrives the faster by the vain Opinions and Immoralities of the mistaken Religionists by which the Atheists take the Measures of true Christianity and in Consequence of this Popery is arrived to a vast Increase in Power and Interest and threatens us and the little Remains of true Reformed Christianity with an utter Overthrow The true Christian Religion is not generally understood and hath lost almost all Credit and Belief in a Christian Nation So that it seems to me upon the Consideration of our present State almost necessary that the Truth of the Christian Faith should be again demonstrated in Flames to this Infidel flagitious and degenerate Age that the Stains of the Christian Religion must be washed off by the Blood of the Sincere Professors That the true Faith should be better understood as it will be by dying Thoughts and vain Opinions be destroyed and burn up like Hay and Stubble in the Fire of Persecution For then we shall understand what it is that is worth dying for and that which is not worth dying for is not worth disputing and dividing for in our Christian Communions with breach of Charity Then our Guides the Holy Order of Bishops and other Faithful Pastors of the Church may shew their Sincerity and appear of what Value they are of in the Conduct of Souls by their wise Apologies and Noble Confessions and Martyrdoms for the true Christian Faith and recover a due place in the Peoples Reverence and Esteem for their Successors And if God in all his wise Providence and Care which will never be wanting to his true Religion shall think it necessary by this means to recover and restore it let this Fiery Tryal come let it come And then I doubt not but we shall have our 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 used in Scrripture for the Prelates of the Church to signifie the high Esteem they had of them and are the same with Leaders Captains and Commanders many Cranmers Ridleys and Latimers leading up their Troops of Confessors and a Noble Army of Martyrs who will again seal the Christan Religion with their Blood and a more Glorious Church shall recover out of the Ashes of this But God grant that we may dispose our selves by more easie Methods to recover out of our sickly Estate when we know our Disease and may be cured by more gentle Remedies But I am sure that nothing can save our Nation and Religion but an excellent Clergy and a high Esteem of them amongst the Laity And for this Reason I have earnestly concerned my self for the Bishops Right of judging in Capital Causes in Parliament that they may want no Capacity of making a gasping Nation live and thereby of recovering themselves and their Order into a high Veneration that they may more effectually administer to the Advancement of God's True Religion and Vertue and making this Kingdom happy for Succeeding Generations THE POSTSCIPT The POSTSCRIPT SIR I Now render you my hearty thanks for your free advise you gave me concerning the publishing of the Argument for the Bishops Right of Judging in Capital Causes in Parliament and for asserting their civil Honors and Rights in the Government Because it hath given me an occasion both of vindicating the most of the Inferiour Clergy from those Imputations which you have remembred to me and are commonly discoursed to their disadvantage whereby they have lost their Esteem with the People and also of rectifying the mistakes of some for their number is not great who have given too much cause therein of publick complaints You diswade me from giving any assistance to the Rights of the present Bishops for that the Clergy out of whom the Bishops must be made have entertained Principles that are destructive to the Government They affirm you say That it is in the power of a Prince by Divine Right to