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 [Page 2] 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 [Page 3] 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 [Page 4] 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 [Page 5] 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 [Page 6] 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 [Page 8] 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 [Page 9] 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) [Page 10] 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 [Page 11] 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, [Page 12] 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 [Page 13] 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 a­any 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 [Page 15] 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 the Jurisdiction of Bishops Novel 83. he decrees the like for Clerks, as well for matters Civil, as for Ecclesiastical Crimes, reserving others to his officers; and fur­thermore, in case the Bishops cannot or will not take cognisance of them, he refers them to his Magistrates.

Nay, the Emperours proceeded further, and did give Jurisdiction to Bishops, not only over Clerks, but also over Laymen. Constantine the Great (whose Law the Canonists ascribe to Theodosius) made a very favourable constitution in behalf of Bishops; whereupon he gives them the Cognisance of all civil Causes betwixt Lay­men, upon the bare demand of one of the Par­ties, albeit the other did not consent unto it, in such sort as the Magistrates are bound to desist from the Cognisance of it, as soon as one of the parties shall require to be dismist and sent thither, whether it be at the beginning or middle or end of the suit.

Arcadius and Honorius derogating from this Law, will have it to be by the joint consent of both parties, and that by way of Arbitre­ment.

The same Emperours together with Theodo­sius do ordain, That there shall be no appeal from the Episcopal Judgment, and that their sen­tence shall be put in execution by the Serjeants and Officers of the Judges.

The two last, Justinian would have to be ob­served; for as for that of Constantine he did not insert it in his Books, which Gratian hath con­fest in his decrees: and whereas in the Code of Theodosius, the inscription of the Title runs thus, De Episcopali Judicio; Justinian instead of it hath put De Episcopali audientia, to shew that it is not properly any Jurisdiction that is bestowed upon [Page 17] them but a friendly and arbitrary composition to abridge process.

After this the Emperor Charles the Great in his Capitulary renewed the Law of Constantine, and gave the same jurisdiction therein contained unto all the Bishops, repeating the same Law, word for word; which the Popes have not for­got in their Decrees, where they have inserted the Constitution of Constantine under the name of Theodosius, just as Justinian did in his Books, the Responses and Commentaries of Lawyers to give them the strength of a Law.

But I know there is a Question made by very Learned men, Whether that Law of Constantine is not supposititious? But whether it be or be not, we have alledged enough without it to prove that Christian Emperors, and the ancient Chri­stian Church was not of the opinion of this Au­thor, and that his Citations so much as they are true, are nothing to his purpose; The cause or reason of those two Laws expressed in the Laws are, For that the authority of Sacred Re­ligion invents and finds out many means of allay­ing Suits, which the Tyes and Forms of capti­ous Pleadings will not admit of; That the judg­ments of Bishops are true and uncorrupted; That this is the choaking of those malicious seeds of Suits; To the intent that poor men in­tangled in the long and lasting snares of tedious Actions, may see how to put a speedy end to those unjust demands which were proposed to them.

But the Pope his Decretals, the Court of Rome, and other Ecclesiastical Courts are of old com­plained of, as the source of Iniquity and injustice, and of all the shufflings and tricks that ever could be invented in matter of pleading, and that all Papal Christendome hath groaned miserably under them; and I wish that we may never hear duly of any such complaints of our Ecclesi­astical Courts.

It is worth observing how the Church and Common-wealth did Actions contrary to each other in pursuance of their several interests. The Common-wealth endeavour'd to engage Bishops in the highest secular affairs and in their supream Judicatures, and so the people would have it, not doubting of such admini­strations as they might fairly expect from the Bishops ability, Authority and Religion. But on the other side the Church did as much de­cline them as she could, and so far as she might, she used her Restraint only in prohibi­ting them from medling for their own pri­vate gain in Temporal affairs. Can. 14. Arles, clericus turpis lucri gratia aliquid genus negotii non admittat: but they did not take from them all opportunities both of doing good to their people and securing the Secular power (of which they became part) to their own as­sistance, and without refusing their services to the Prince when required: from which pra­ctice of the Church, the Pope took advantage [Page 19] to put his peremptory restraints upon the Bi­shops and Clergy from intermedling in Secu­lar affairs to make them the more submitted and dependent upon himself, the better to ar­rive to his Ecclesiastical Monarchy. The Dig­nities and favours that Bishops received at the Courts of Princes, was the envy of the Pope, and matter of quarrel against them; and Petrus Blissensis, upon such an occasion makes an Apologie to Pope Alexander the Third, in an Epistle writ in the Name of the Arch-Bi­shop of Canterbury, in defence of the Bishops of Ely, Worcester and Norwich, who attended then at Court upon the service of the King: which because he hath been an Author produced by the other side in this Cause, and because what he says for their being admitted into the Councels of Princes, contains so many advantages to the Church and State, I shall here transcribe; Non est novum quod Regum Conciliis intersint Episcopi, sicut enim honestate & sapientia caeteros antecedunt, sic expeditiores & efficaciores in Reipub. admini­stratione censentur; quia sicut scriptum est (minus salubriter disponitur regnum, quod non regitur consilio Sapientum) in quo notatur eos consiliis regum de­bere assistere qui sciant & velint & possint patienti­bus compati, terrae ac populi saluti prospicere erudire adjustitiam Reges, imminentibus occursare, periculis, vitaeque maturioris exemplis informare subditos, & quadam Authoritate potestativa praesumptionem ma­lignantium cohibere: He proceeds in his discourse, [Page 20] and brings the examples of Samuel, Isaiah, Elisha, Jehojada, Zachary, who were Priests and Pro­phets respectively, and yet imployed in Princes Courts and Councels of Kings, and adds, Ʋnum noveritis quia nisi familiares & Consiliarii Regis essent Episcopi supra dorsum Ecclesiae hodie fabri­carent peccatores, & immaniter & intolerabiliter opprimeret Clerum praesumptio laicalis: then he adds advantages to Religion and policy hereby, Istis mediantibus mansuescit circa simplices judica­rius rigor—admittitur—clamor pauperum, Ecclesia­rum Dignitas erigitu, relevatur pauperum indigen­tia, firmatur in Clero libertas, pax in populis, justitia libere exercetur, superbia opprimitur, au­getur laicorum devotio, religio fovetur, dirigun­tur judicia.

It is well known (and I will not be so imper­tinent as to go about to prove) that the chief Ministers of Religion have been the greatest men in Civil Government in all Nations, and in all Religions as well as in ours; and as certain it is, this Author will never find reason or precedent of 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 [Page 21] 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 [Page 22] 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 [Page 23] 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 [Page 24] 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 thi [...] matter.

In 20 R. 2. the Case of Sir Thomas Haxey [Page 25] 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 will take notice of nothing that is faulty in this Case, but that this proceeding tends to abridge freedom of speech in Parliament, which he loved from his youth, which we do not blame in him: As he did also to talk against Bishops, which he cannot depart from, when he is old. But in the first of Hen. 4. this Judgment of At­tainder was repealed and annull'd, as he himself [Page 26] tells us Fol. 25. And here the Lords Spiritual were Judges, which must be remark't for the honour of their Order, that though they were the pars laesa, by that fault, such as it was; yet notwithstanding they concurred readily to the repealing the Judgment.

But by this it appears that the Bishops did agreeable to their rightful Authority, sit in Judgment in Parliament in capital Causes; and therefore in consequence, because it is a Case of his own production, he ought to allow that the Bishops might have had Session in the Re­peal of the Attainder of Roger Earl of March, if it had been, or could have been repealed by Judgment, or a judicial Act of the Lords House.

For will this renownedly wise-man, for avoid­ing of this his own testimony which he hath justly produced (though it proves to testify a­gainst himself) say, that the Bishops can be present at repealing of a Judgment of Condem­nation, but not present at confirming any?

Doth not it, in this proceeding come before them in Judgment, and consideration, Whether the sentence shall be repealed or affirmed, and is not this with a witness, a question of blood? The Judgment being upon an appeal or review must be final, peremptory and decretory, and is more a question of blood, than the Cause can be reckon­ed and deem'd to be upon the first Instance. Or doth he think fit that there should be two [Page 27] sorts of Judges appointed, a hanging Judge, and a saving Judge; if he doth, I am sure he will not be able to find an employment for a just Judge.

So that, I think, to all men that can consider, we have sufficiently vacated that testimony, that the Cases of the Earl March and Haxey's seem'd to give against us, and they are fairly come over to our side. And we have provided herein suf­ficiently for the recovering of all men into an indifferency against the Prejudices, this Octavo by its great Esteem hath done to their Judg­ments.

The Third Precedent is, 15 E. 3. That Parlia­ment was declared to be called for the Redress of the breach of the Laws, and of the Peace of the Kingdom, and as the Octavo hath it Fol. 8. be­cause the Prelates were of opinion, that it belong­ed not properly to them to give Councel about keeping the peace, nor punishing such evils; they went away by themselves, and returned no more (saith he) but that is out of the Record, (so ready this Authour in Octavo is to shut them out of the House;) but I pray would not the Temporal Lords, if the King had consulted the Parliament in matters Ecclesiastical, have in like manner departed, but would such depar­ture of the Temporal Lords exclude them from having any thing to do in the Affairs of the Church; Why then are the Bishops treated in their Right so unequally?

And this must serve for an Answer to the Folio, p. 17. where he is very large in reciting Records of process, and Proclamation against the Earl of Northumberland, agreed only by Lords. If a Liturgy, or book of Canons were to be established by Law, the Bishops certainly would have the forming of them. The Octavo saith, that Commissions were then framed by the Counts, Barons, and other Grants, and brought into Parliament, but no Bishop was present, so much as to hear the Commissions read; because they were to enquire into all Crimes, as well Capital, as others. And for affirming this (for all that can appear to us) he only consulted his Will and pleasure like an honest man, to the cause he defends, for he hath not told us from any Record, what the Nature of these Commis­sions were. But we observe, that though this Par­liament was called for matters of the peace, yet the Bishops had their Summons, and it was not a Parliament excluso Clero. The Bishops it seems upon the opening of the Parliament, and the causes of convening, modestly, it seem'd, decla­red that they were not competent, as not perhaps studied in Pleas of the Crown, or per­haps had not been so observant in fact, of the matters of grievance. What harm in all this? they that cannot propound may judge of Expedi­ents propounded, and so did they; for it doth appear by the Record 6 E. 3. N. 3. that the Results of the Temporal Lords were approved [Page 29] in full Parliament, by the King, Bishops, Lords and Commons, which the Folio agrees. But it seems modesty is a dangerous thing; and not to be forward to judge and determine, though the matter be not understood, may be a good Cause to turn a Judge out of his Office, and forfeit his Judicature. Besides, the principal business of this Parliament was Legislation, in which the Prelates have an undisputed Right of Session, and may they not advise upon what they make into a Law? May not they consider of the mat­ter that is to pass into a Law in all the steps it makes?

But it is admirable what the Folio Book saith, viz. that by this Record it is evident that the Prelates have no judicial power over any personal Crimes, which are not Parliamentary (I suppose he means Crimes not debated in Par­liament) This doth very much fortify the foun­dations and grounds of his discourse. What are the grounds of his discourse, I shall never be able to find out, except it be an over-weening Opinion of himself to meddle with these matters which seem too high for him; and to which the reading of my Lords Cooks Institutes, and the broken Commentaries of the Law, will never render any man competent.

Its true the Bishops have never any power and Cognizance of any Causes, except they are com­missionated thereto, out of Parliament. But as true it is of the Temporal Lords; and therefore [Page 30] whatsoever advantage this will do his Cause, with all my heart let him take it.

The next Case produced as a Precedent for them, is the Case of Sir William de La Zouch, and Sir John Gray, for a quarrel in the Kings presence; they were both committed to the Tower, and after brought into Parliament, no Bishops there.

It is a Case that could not be judged there, neither was it; but one of them was discharged, because no probable matter of offence against him, and the other remanded to the Tower, (I suppose) to be proceeded against as the Law required. Is this cause (I pray) to his purpose? have not the Prelates judgment in causes of Trespass, that properly come before that House by his own Confession? And yet the Octavo re­marks here, that no Bishops were present to judge so much as of a Battery; though the Re­cord warrants him to say only an Assault. But out of his great sincerity, and to make a Pre­cedent where he could not find one for his turn, he foists a Battery into the Case, hoping that then the forward Reader would sup­ply the Rest, and smell blood in the Case, which must be interdicted to a Bishops Cogni­zance.

But observe what an aking-tooth he hath against the Bishops Right; for he could not but have in his mind, what almost immediately after, he writes down in his Octavo (viz.) the [Page 31] Case of Sir John Lee, 24 E. 3. and of several per­sons 50 E. 3. and 51 E. 3. censured in Parlia­ment, by Bishops for misdemeanors. And he saith well they might; which certainly together with the Case of Michael de la Pooll, 10 R. 2. he troubled himself to transcribe, to make a shew of Number and false musters, a sleight that must not pass upon the people, and a Stratagem that will never get him any advantage towards a Victory.

We omitted to consider the Case of Sir William de Thorpe 50 E. 3. as it lies in order in his Book, because we thought it more expedite to examine those that spake to the same thing to­gether, but now we will examine it. The Re­cord of a Judgment of death against him for Buggery, was brought into Parliament, saith the Octavo; in full Parliament saith Sir Robert Cotton, and the King caused it to be read before the Grants in Parliament: The Bishops (saith the Octavo) could not be there, because this was no imployment for them; and thus he proves his cause, it was so, because it was so. And for want of proof concludes he hath a very good Cause: But he knows if he would tell us the truth, that a full Parliament doth include Bi­shops; that the Bishops are truly Grants and so called, that the Bishops could not vanish away, at the putting of the question. But we should have had a most famous Record of that story and wonderful Accident.

The Cause of William de Weston and John de Gomenits 1 R. 2. was for traiterously surrendring Towns and Castles in Flanders to the Kings Ene­mies. And the question was, whether they be­haved themselves well in their defence, and did therein like valiant and faithful Commanders; Whether the Towns could be preserved against the strength of the Enemies that did attach them. Indeed not a very proper question for a Bishop to determine: The Examination of the Charge and defence was committed to several Lords Temporal, named in the Record; But it must be observed, though these Lords managed the Cause, found the Towns upon Examination, not of necessity, but willfully delivered, and a­greed what Judgment should be pronounced against them: Yet observe their Answers were put in full Parliament. When the Judgment was pronouncing, there was likewise sitting a full Parliament, which the Octavo doth wilful­ly omit. And the Record further saith, that they were brought before the Seigniors in Parlia­ment, Friday the 27. of November, and again, before the said Lords, Saturday the 28. of Nov. That all this while in the Record, there is no mention of the Names of any particular Lords, so that we hear nothing yet in the Record, but of a full Parliament, Seigniors in Parliament, which are the most comprehensive terms, and can, and do include Bishops, and strongly intend them included. He that saith all, excepts none, [Page 33] the Record saith, that when the Judgment was to be pronounced, Les Seigniors dudit Parliament cestascavoir, and then names the Duke of Lan­caster, Earls of Cambridge, March, Arundel, Warwick, Stafford, Suffolk, Salisbury, Northum­berland, Lord Nevil and Clifford; and other Lords, Barons and Bannerets being then in Par­liament, had met and advised upon the matters before. These Lords agreed it seems the Judg­ment for the whole House, and it was pronoun­ced in full Parliament; and that in the Names and Authority of the whole Parliament. Pray let it be observed, that when the Record speaks of Seigniors, in the first part of it, no Lords are named, and so all intended; when afterwards he mentions the Lords, the Record saith avantdits, or foresaid Lords, and no Lords named yet, so that all the Lords of Parliament are then like­wise included: But when he names the Lords that had advised, there is no avantdits, or afore­said. Though the Octavo puts the avantdits, or the aforesaid to the named Lords, to the pur­pose, that it may seem, that no Lords were pre­sent in this Cause before in Parliament, but those named and mentioned, amongst the which there were no Bishops, against the Faith of the Record. To the Record I appeal. Rot. Parl. 1 R. 2. Mem. 5.

The next is Sir Ralph Ferrers his Case, 4 R. 2. He was brought into Parliament, and there try­ed for Treason, in holding intelligence with the [Page 34] French. The Entry is, It seem'd to the Lords of the Parliament, that the said Sir Ralph was inno­cent. This testimony too is argumentative, and concludes Bishops not there, because not expres­ly mentioned, as they were in Alice Perries Case, 1 R. 2. I never could have a good opinion of a cause, that hath nothing but argumentative proofs, for this reason; because there are more things possible than ever happen'd; but a rea­soning Witness is always accounted a willing Witness, and therefore a Witness suspectae fidei; but most certain, a Witness with a reason His testimony is no better than his reason. But I pray must the Entries of the Clerks be so nicely weighed? Are they so oracularly penned, that every iota of the Journal must comprehend a My­stery of State, and carry in it the very constitu­tion of the Government? must that be such and no other, than short or large Entries make it? Must a Criticism upon the Clerks form of Entry alter and refix the Government? must it change and be ambulatory at the haste or leasure, the short or more large Entry of the Clerk? Did ever any wise man, before this Criticiser, ever determine questions of the greatest moment up­on such trifling considerations? or suspend the most momentous concerns of a Nation, the very Government it self, upon such a very slender thread? But to leave no scope for such Cavilla­tions, we will turn him to the Parl. Rolls of 14 E. 3. Were not the Grants the Bishops, as [Page 35] well as the Temporal Lords? Are not both Bishops and Peers called Seigniors? Are not Seigniors and Grants of the same import? And as certainly this argumentative testimony makes no credit to the Cause, nor to the Author of the Octavo who produc'd it.

The next Case is of the Bishop of Norwich, 7 R. 2. who is brought to Judgment in Parlia­ment, amongst other offences, for betraying Graveling to the French, which was Treason. And this cause the Record saith, was heard before the Lords Temporal: And here I will agree that the Bishops were not present, but I will not al­low that they were excluded. And if that addi­tion of Temporal had been to the Seigniors in Sir Ralph Ferrers Case, or to the Grants in Sir Wil. Thorps, I would have allowed the Bi­shops in those Cases not present likewise. But why I pray may it not be with as much fairness concluded that the Bishops were present (be­cause the addition of Temporal is not made to Seigniors and Grants) in the said Cases of Sir Ralph Ferrers, and Sir Wil. Thorp, as it can be that they were absent in the hearing of the said Cases, because the word Prelate or Bishop, is not in those Entries expressed? If he will be just and change the Tables, He must yield us the Ar­gument, for he knows that there is no esta­blishment in the Modus tenendi Parliamentum, dire­cting the Forms of Entries, or any solemnes for­mulae, whose import and value is ascertained [Page 36] and made indisputable, but are to be expounded by an easy interpretation; such as we use, when we make fair constructions in common speech. But to give this another Answer, The Arguer is herein guilty of that fallacy which they call [...], or non causa pro causa; And his Witness doth not speak ad idem. The Bishop was an Ecclesiastical person, and though the Bishops might try a Temporal Lord for the same offence, yet they would not consent to try a Bi­shop, and forgo that great priviledge of the Cler­gy, with so much earnestness defended in that Age, to be exempt from secular Judicatures. They would not be present to try, because of the person of the Defendant, which cannot be drawn into Argument to prove that they had no cognizance of the Cause with any fairness.

But further the Octavo doth afterwards pro­duce a Testimony that doth contradict this last Testimony in the point for which he produc'd it. It is the Case of Thomas Arundel Arch-Bishop of Canterbury, 21 R. 2. The Bishops pronounced Judgment against him in Treason by their Proxy. They can it seems upon great Reasons wave that priviledge, and submit a great Male­factor of their▪ own Order to Justice, as they did in the Case of Becket heretofore. So that you see here, they used a Jurisdiction in a Cause of Treason in the Case of Thomas Arundel, which the Bishops could not have used without a [Page 37] Right; And the Case of the Bishop of Norwich is only an omission consistent with a Right.

The Case of Sir William Rikehill is next in order, who was sent by R. 2. to Calais, to take the Confession of the Duke of Glocester, who soon after was Murdered. The Judge was arrested and brought into Parliament before the King, Lords Spiritual and Temporal and Commons; the whole matter was examined, and the Judge was examined. Here is likewise a clear Case for the Bishops, an Instance wherein they did take cognizance of a Capital Cause in Parlia­ment. But the Octavo hath a Shift for us, and says that there was no impeachment or charge against the Judge, and so the Bishops might be present at his Examination. Let the Reader here observe the sleights, wriglings and prevari­cations of this Octavo Author; Whatever the World thinks of this Author, I am much dissa­tisfyed about him, and cannot believe him a man indifferent and impartial in this En­quiry.

In his observations of the Parliament of the 15 E. 3. the Bishops he saith vanished like light­ning, they went away immediately at the open­ing. That matters of the Peace in general were to be treated of (wherein Blood and Member might not at all be concerned, for all that ap­pears.) They went away and (as he would have it) they returned no more: and they must not hear so much as a Commission of the Peace read. [Page 38] But here in this Case of Rikehill they may exa­mine a Murder. He will say (I am sure) that though the Bishops did examine it, they could make no judgment of the matter. But who will believe him? In the Case of de la Zouch and Gray, he observes that Bishops could not be present so much as at a Battery, though there was no Bat­tery in the Case, and yet he allows them to judge of all misdemeanors in the same little Book.

I observe but these things, of many more of like nature, which the Reader may observe of himself, in that little Octavo; that the World may judge, how unjustly he deals in this Cause: with what iniquity and prevarication he mana­ges a noble question of Right concerning the Go­vernment of the Kingdom. With what petulan­cy, spight, and inveterate displeasure, he useth the Bishops. That he is grinning at them, whetting his teeth, and squinting upon them perpetually with an evil Eye. He oppugns their Right with Cavillations upon the Clerks Entries, with what is in the Record, and what is not, and what he is pleased to add of his own upon them, and with Precedents that reprove one another. Had it not been more fair for him to have stated the Right upon a probable result of all the Re­cords considered together, than to make their Right sometimes more, sometimes less, some­times to affirm, sometimes to deny their Right, in the same little Octavo?

He cannot sure think that every Judgment that hath been given upon deliberation in the greatest Judicature, can uncontroulably make the Law; much less a Fact, much less an Omission, a Negative that can operate nothing. If nothing be Law but what hath always and constantly been done in the same manner and form, and all circumstances the same, as this Author it seems would have it; and nothing true Theology (ac­cording to Vincentius Lirinensis his Rule) but what hath been received ab omnibus, ubique & sem­per, We can have no Law, nor no Theology. Vain and idle opinions must be discharged, such as can have no consideration with wise men; and the Law must be declared by the Nature of Government, reason, and the general order of things. But we have made too long an Excur­sion, We must return to a further consideration of Rikehil his Case.

And now I submit it to any impartial man, whether the Judge could be arrested and brought under an Arrest into the Parliament, and be exa­mined and not accused.

The very next Case he recites is that of John Hall, in which we find nothing but an Exami­nation and confessal; upon which he was con­demned as a Traytor. And so would it have fared with Sir William Rikehil without doubt, if he had been guilty and had confessed. Neither the Octavo, nor Sir Robert Cotton mentions any formality more against the one than the other.

The House of Lords are not tyed to Formali­ties in their proceedings like other inferior Judi­catures: and the more inferior any Court is, the more regular forms are exacted, and that with great reason, which we will not hear treat of. Besides, in the Case of the Earl of Northumberland, recited in the Octavo Book Fol. 34. in 5 H. 4. a Judgment was given a­gainst him for an offence upon a petition, which he exhibited for a pardon of the same of­fence.

But in the Case of the Earl of Northumberland, I pray observe what the Octavo saith in reference to our question. After he hath recited part of the Record in these words; [The petition being read and understood, the Lords as Peers of Parlia­ment, to whom such Judgment doth of Right appertain, did give their Judgment] He con­cludes that the Bishops could not he said to be his Peers, which shews they were not there. But he must give us leave with much better Logick, to conclude, that they were present; and We with reason presume, because they are Peers of Parliament (for so the Record is, not his Peers, for he fallaciously changeth the Terms) they were there, except he can prove them absent, if common Right is not Reason of presumption, no presumption can be reasonable. But we can prove to him they were there. And thereby in consequence, we have another proof that they are Peers.

Sir Robert Cottons Abridgment tells us 5 H. 4. Fol. 426. that at the same time the Arch-Bishops and Bishops, at their own request, (and therefore certainly then present) were purged from suspici­on of Treason by the said Earl. And at the same time, I pray observe, Sir Henry Piercy his levying of War was adjudged Treason by the King and Lords in full Parliament. Note, that here is said to be a full Parliament, and yet nothing in the Entry, but the stile of Lords. So various and contingent in respect of form are the Entries; which ought to be observed.

But to review and consider again the Case of John Hall condemned in Parliament for Treason, for murdering the Duke of Glocester. And to this place I have reserved the Case of the two Merchants that killed John Imperial an Ambassa­dour of Genoua; for both Cases are of the same nature, and must receive the same answer; and that is this. The Statute of the 25 E. 3. was made to declare certain matters Treason, and to be so judged in ordinary Judicatures: but withall that Statute did provide, that if any other Case, supposed Treason, do happen, it shall be shewed to the King and Parliament, whether it ought to be judged Treason. Concerning which the King and Parliament do and are to declare by their Legislative power, as it is agreed by all, and as they did in the Case of John Imperial, as appears by that Record expresly. So that though the Bishops were not present at the Judgment of [Page 42] John Hall, they might have been (it must be con­fessed by our Adversary) if the Judgment against John Hall was by the Legislative Power, as it must be. By this it appears how false an Argu­ment this of his is, To conclude no Right from absence; for it is plain, here it proves too much, it proves a thing notoriously false, a thing false by the confession of our Adversary: and from what any falshood may be inferred, is not it self true, but stands reproved by the falshood and ab­surdity of what follows in consequence thereof. But this is too Solemn Reproof of so frivolous an Argument, for it is no more in effect than this: That no man can have an Authority, but what he is always in the exercise of.

The Octavo goes on, and remembers that in the 2 H. 4. the first Writ de Haeretico comburendo was framed by the Lords Temporal only; and without question it was so. For the order of proceedings in Case of Hereticks Convict, so re­quired it. The Bishops are upon the Matter, the pars laesa in Heresy. The authority of the Church is therein offended, and it was not there­fore proper for an Ecclesiastick to be an Actor therein.

The Author doth improve this, as he doth all things that he can with any manner of colour, to render the Order of Bishops hated, and dise­steemed, which is the publick establishment, the legal provision for the Government and guidance of Religion. What mischief then is he a doing? [Page 43] How great is his fault to deprave that provision, to destroy their Reputation and Esteem with the people, to destroy all their authority as much as in him lyeth? His utmost endeavours are not there­to wanting, to make their Ministries useless, and to frustrate the provisions of the Law, and the care of the Government, in the highest concern­ment of the Nation. Doth this become a great man? I will not say a good man? God rebuke him. To lessen the Authority, and disrepute and dishonour any Order of men, or any Constituti­on, that can be any ways useful to the publick, is a great fault: but this of his, is a most enor­mous offence.

But what can be inferred from hence against the Order of the Bishops, may be with like un­worthiness inferred against the Christian Religi­on it self. For it may be as well concluded, that the Christian Religion is a bad Religion; for that men of that denomination in the general Apo­stasie, by pretence of Warranty from that Reli­gion, though it gave none, murdered innocents: As that the practices of the Bishops of that Re­ligion so depraved, do reflect any dishonour against the Bishops of reformed Christianity. And this Answer will suffice too for the Case of Sir John Old-Castle.

As for the Earls of Kent, Huntingdon and Sa­lisbury, the Lord le Despencer and Sir Ralph Lum­ley, before that, executed and declared Traytors in Parliament by the Lords Temporal only, in [Page 44] the Parliament of the 2 H. 4. and the Earl of Northumberland and Lord Bardolph, against whom it was proceeded in a Court of Chivalry after their death, who were declared Traytors after they were dead, in the Parliament in the 7 H. 4.

I hope the Octavo Gentleman, and all that are at present of his Opinion, will take this for a sufficient Answer (if we had no more to say) that it was irregular, very irregular indeed, to condemn men after they were dead; when he himself would set aside the Authority of the Case of William de la Poole in 28 H. 6. in Parli­ament where the Bishops were present: which though he saith is the sole single precedent of Bishops acting in Capital Causes, We shall therein convict him to be a man of Will, to have lost himself in his passions, and his [...]. And enter that Case with a cloud of other testimonies and reasons that affirm, I will not stick to say, demonstrate, (so as such matters can be de­monstrated) with a moral demonstration, such as shall leave no doubt with any man, of the Bishops Right of judging in Capital causes in Parliament.

But We shall further add for Answer that the Temporal Lords did not herein exercise the Of­fice of a Judge. For it could be no Judgment they delivered. It was only an officious decla­ration, an avowing of the justness of the slaugh­ter of these great men, and to enter themselves of the other side. But is it as reasonable for this [Page 45] Writer, to fore-judge the Bishops of their Fran­chise, and to have it seized, because they would not be guilty of a misuser thereof, and would not consent to so insolent a thing as to judge men un­heard, nay when dead, and they could not be heard? And to kill over again the murdered Lords, for so they are in consideration of the Law, who are not by legal process condemned and executed.

I cannot but observe in many of 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 [Page 46] 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 [Page 47] 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 [Page 50] matter) this, That where a Right is some­times not used, there can be no Right. But if this had been said in English, every body would have condemned his reasoning, and disallowed, if not laughed at the Argument.

So that we have left this Author neither rea­son or Argument. We have stript the Cause of all the Precedents that pretend to favour it, and have left it Rara Avis indeed, but not nigro simil­lima Cygno, as the learned Author in Octavo hath it, with which he reproaches the Right of the Bishops as assisted only with a single Precedent: But to a Bird of no colour at all, the bird in the Fable I mean, furtivis nudata coloribus, to be ex­posed to laughter with its naked Rump.

CHAP. IV.

BUt if these Precedents had been all such as they pretend to be, and the Bishops not pre­sent in Judgment, in any of those Cases which the Octavo and Folio have produced, and if they had been all Capital Causes that came in Judg­ment in that House, and all determined judici­ally, and not by the Legislative power of Parliament, and no reason was to be assigned for the Prelates absence from the Nature of the Cause: If they had had no inducements to with­draw, [Page 51] 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, [Page 52] 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 [Page 53] 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 [Page 54] 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 [Page 55] time: For Brevity sake, and because we will not pass the Limits of our own Arguments, other­wise we had much to say against the Authority of that Sory, as it is by the Octavo mentioned.

But to this day, neither in Record or History, have we heard of any the least pretence of any special abatement made of any service due by the Tenures by Barony to any Bishops or other Spiritual Baron by the Conquerour, at the time of the creating those Tenures, neither did the Bishops when they would fain have been excused from judging in Blood ever pretend to it, or make any such excuse, that their Tenures did not oblige them thereto.

They have ever been esteemed to have power of Judgment in Capital Causes in Parliament: and in a long tract of time, it hath been several ways used and acknowledged. Their Right is so far from being fore-judged, that it never till of late was brought in question. They have pretended sometimes that they ought not to use that Right in observation of the Canon Law, and have made their protestation according; whe­ther of necessity or choice shall be considered. They were upon the score of the Canon Law in­dulged in the Satute of Clarendon from being pre­sent and assisting in giving the Judgment of Death and mutilation of Limb, yet their Right was not by that Statute destroyed or hurt, it put them only at liberty to use it, or not: but put no obligation or legal restraint upon them not to use [Page 56] it. That Law was in favour of their Liberty, not a Restraint upon their Right.

The words of that Law that concern this question, we shall here set down. Archiepiscopi, Episcopi & universae personae Regni qui de Rege te­nent in capite, habeant possessiones suas de Rege sicut Baroniam, & inde respondeant Justiciariis & mini­stris Regis, & sequantur & faciant omnes consue­tudines regias, & sicut caeteri Barones debent interes­se judiciis Curiae quousque perveniatur ad diminuti­onem membrorum vel ad mortem. Whether these words are words of Liberty or Restraint, of pro­hibition or indulgence and favour, as also how far this favour, Liberty or Indulgence did extend, will appear clearly by the occasion of the Law, and the History of those times, for whose sake it was made, and upon what inducements, and how far they did use their Liberty afterwards.

It is notorious that the design and endeavour of some Bishops of that age, and before from the days of Gregory the seventh, was to establish an Ecclesiastical Monarchy in the Pope, to make themselves the Grandees of another Kingdom, they endeavoured to exempt themselves from all Civil subjection, as also from being any part of the Civil Government, over which their Church Empire was to rule and domineer. They looked upon their Baronies to be marks of Slavery, and inconsistent with their designed Church-empire, by which they were kept in subjection to the Government, and made a part of it, which [Page 57] was designed by the Conquerour, but most sharply complained of, as may be seen in Mat. Paris. Rex Willielmus pessimo usus consilio Epis­copatus sub servitute statuit militari, & rotulas hu­jus Ecclesiasticae servitutis ponens in Thesauris, mul­tos viros Ecclesiasticos huic constitutioni pessimae reluctantes à Regno fugavit. If the Bishops then had been ambitious and desirous, that they might be as the rest of the Barons were, Judges in the Kings Court, then it is true that the word quous­que must be a word of Exclusion, and that their pretence of judging was fore-closed to all matters under the quousque. For if I ask a thing which is not my right, that which is not granted is denyed, and by such denyall (in case of a Law declared,) the more unlawful. But this cannot possibly be, for they were already Barons, and Judges as other Barons. This they reckon'd a servitude, and was matter of grievance and complaint: But the Assise of Clarendon did proceed from the King, for the asserting his Soveraign Power, to resist the design of the Papal Monarchy and to oblige the Bishops to continue part of the Go­vernment, and to tye them to the duty of their Tenures. Gervasius tells us Col. 1386. that the Bishops did not know what the Consuetudines Ecclesiasticae in the Assise of Clarendon were, but they imagined them to be evil, because the King did so much insist upon them. Nesciebant (saith he speaking of the Bishops) hujusque quae essent illae consuetudines, sed pravas esse suspicabantur, eo [Page 58] quod tantâ instantiâ peterentur. But the King com­manded as followeth, sapientiâ provectiores, ite, disquirite Avi mei consuetudines, ut in scriptum redactae deducantur in medium & publice recensean­tur, quas cum seorsum veteres actus & pravitates, so he calls the Statutes of Clarendon, in scripta re­duxissent, haec tandem scripta modo Chirographi pro­tulerunt, which the Arch-Bishop was required to seal as the custom then was in passing of Laws. It is likewise evident in the very Assise of Claren­don, that the Bishops were then Barons, and ought to do the office of a Baron, and were by be­ing Barons Judges, and ought interesse sicut caeteri Barones Judiciis Curiae Domini Regis. But how far they should by that Statute be bound here­after, this Law was to determine: In consequence the Quousque is but a Clause of Liberty (at most) and the matter under it, left to choice. A pri­viledge indeed the Bishops might hereby obtain, to judge, or not to judge in Causes of blood, which they used in all after-times, as they plea­sed, as they did more or less regard the Canons, as either they did or were thought to intend. No right was hereby fore-closed of judging, but establisht, for the words are debent interesse. Quousque is a Clause of exception, and leaves them in that matter at large, and savours not at all of a prohibition. But though the Bishops might have such a Liberty, by the Letter of the Assise of Clarendon, to judge, or not to judge at all in capital Causes, which doth not at all im­pair [Page 59] their Right, but that notwithstanding they may use their rightful authority, when they please: Yet the Bishops did not intend them­selves further priviledged by this Law, than that they should not be obliged to be present at the pronouncing of the sentence, which appears by the Canons that have been made about this mat­ter in England, which we shall mention hereafter, which would have been most peremptory in their prohibitions and very severe in their de­nouncing Curses, in a matter of this nature, as far as they had the Laws on their side. As al­so by the Practice of the Bishops in those times, which appears by Peter Blesensis, whose words are Principes sacerdotum & seniores populi, (by which he means the Bishops, who from the digni­ty and worthiness of their Order are called Seni­ores, a note of dignity in all Countries, in all Ages, which I observe because some are so igno­rant as not to know it, and think the Laity is meant by seniores populi, but if the Lay Barons had been guilty of that which he there complains of as well as the Bishops, he would instead of this com­plaint, declaim'd against the folly and madness of the Age, for want of justice) Licet non dictent judicia sanguinis, eadem tamen tractant disputando, & disceptando de illis, seque ideo immunes à culpà reputant, quod mortis aut truncationis membro­rum judicium decernentes, à pronuntiatione duntaxat & executione poenalis sententiae se absentent. And it is most observable, that the Bishops did never [Page 60] excuse themselves from Session in Criminal Causes, by virtue of the Assise of Clarendon, but from the inhibition of the Canon; and the use of the Liberty will best declare the Na­ture of it.

CHAP. V.

IT's most remarkable for the understanding a­right the true meaning of this Law, that the Bishops were admitted Judges in Parliament without exception of the Temporal Lords in the Case of Thomas Becket accused of Treason, though the King and Temporal Barons had reason to believe, that the Bishops would not do right to the Crown against that unruly and re­bellious Prelate: and when the Bishops them­selves would have been glad of that pretence to have withdrawn themselves. And this was a­bout eight Months after the making the Statutes of Clarendon; And in a short time after the swearing the observance of them by all the Grants of the Kingdom. But the Law was then so well understood (however the Letter of the Statute makes matter of dispute now) that it was by no body in the least pretended, that it was to be understood to such a sence, as it is now drawn to: viz. to exclude the [Page 61] Bishops the Spiritual Barons from judging in capital Causes in Parliament. In those times they had only such an understanding as we have here before offer'd.

We shall therefore now proceed to give you an account how in the course of time the Right of the Prelates hath been used and re­cognized. We will begin with the Case of Becket Arch-Bishop of Canterbury, at a Par­liament held in October in the 11 H. 2. Anno Domini 1165, at the Castle of Northamp­ton. To this Parliament Arch-Bishop Becket was cited as a Criminal, and had not his Sum­mons as Arch-Bishop (so that that Parliament seem'd to be conven'd for doing him Ju­stice; the offence must therefore be very great, so Stephanides tells us, as he is cited by Mr. Selden 707.) Though he was wont of cu­stome to have the first Summons by the Kings Writ. Nec tunc enim (saith he) nec diu ante ei scribere voluerat, qui eum salutare no­lebat. Nec aliam per literas sibi directas solen­nem ac primam, ut antiquis moris erat, habuerat Archiepiscopus ad Concilium citationem. Becket was there accused of Treason, laesae majestatis coronae, saith Fitz-Stephen a Monk of Canterbu­ry that attended Thomas Becket the Arch-Bi­shop in his troubles. Bishop Godwin in his Book de Praesulibus tells us that Arch-Bishop Becket, Omnia sibi cernens infesta, Naviculâ apud Rumenegam conscensâ, in Galliam profugere cona­tus, [Page 62] ventis adversantibus in littus repertus ac de­prehensus ad Regem, Conventus Northamptoniae agentem, adductus est. Ibi, repentundarum, peculi­atûs, perjurii, proditionis, falsi & nescio quot ali­orum Criminum, cum à caeteris proceribus tum & Episcopis ipsis suffraganeis, reus factus. This Court is called a Parliament by Mr. Selden, and magnum Concilium by Roger of Hoveden, and by others as Mr. Selden saith; But that it was a Parliament and not the Curia Regis, which we shall speak about hereafter, doth appear by this certain diagnostick, viz. that the Bishops were Summoned, hereto by per­sonal Writ of Summons to them directed im­mediately, at that time, which appears by what is before cited out of Fitz-Stephen, and what is after taken out of Gervasius. But to the Curia Regis they were Summoned by the Sheriff by a general Writ, to him for that purpose directed, which is a distinctive Note and Character of a Parliament, as will hereaf­ter appear.

But Fitz-Stephen saith, as Mr. Selden quotes him, Titles of honour Fol. 705. that secunda die consulentibus Episcopis & Baronibus Angliae omnibus. Nay he is so exact in his observati­on, that he tells us who was not there of the Bishops, viz. Roffensis Episcopus, & quidam alias nondum venenat. Hoveden tells us, how Becket had before behaved himself towards the King, that notwithstanding great endeavours [Page 63] used on the Kings part, to reconcile Becket to himself, He would not be reconciled to the King. Post multum tempus, saith Hoveden, Ernulphus Lexoviensis Episcopus venit in An­gliam, & sollicite laboravit die ac nocte, ut pax fieret inter Regem & Archiepiscopum, sed ad ple­num fieri non potuit. Deinde per consilium Lex­oviensis Episcopi Rex separavit Rogerum Archie­piscopum Eboracensem, & Robertum de Welun Episcopum Herefordiensem, & Robertum Lin­colniensem Episcopum, & alios quosdam Ecclesiae Praelatos à Consortio & Consilio Cantuariensis Archiepiscopi, ut per illos praefatum Cantuarien­sem Archiepiscopum in suos Conatus facilius alli­ceret. Deinde venit in Angliam quidam vir Re­ligiosus dictus Philippus de Eleemosyna missus à latere Alexandri Summi Pontificis & Cardina­lium omnium ad pacem faciendam inter Regem & Archiepiscopum Cantuariensem. Per quem sum­mus Pontifex & omnes Cardinales mandave­runt Cantuariensi Episcopo, ut ipse pacem cum domino suo Rege Angliae faceret, & Leges suas sine aliquâ exceptione custodiendas promitteret: his igitur & aliis magnorum virorum Consili­is acquiescens, Thomas Cantuariensis venit ad Regem apud Woodstock, & ibi promisit Regi, & concessit se bonâ fide & sine malo ingenio le­ges suas servanturum. Et paulo post congregato Clero & populo Regni apud Clarendon, poenitu­it Archiepiscopum quod ipse Concessionem illam fecerat Regi, & volens resilire à pacto, dixit [Page 64] se in illa Concessione graviter peccasse, & quod in hoc amplius non peccaret. Rex plurimum in irâ adversus eum commotus, minatus est ei & suis Exitum & Mortem. Venerunt ergo ad Archiepi­scopum Salisburiensis & Norwicensis Episcopi, & Robertus Leicestriae & Reginaldus Cornubiae Co­mites, & lachrymantes provoluti ad pedes Ar­chiepiscopi petebant, ut saltem propter honorem Regis veniret ad eum & coram populo diceret se Leges suas recepisse. Precibus igitur tantorum virorum Archiepiscopus vectus venit ad Regem, & [...]oram Clero & populo dixit se Leges illas quas Rex avitas vocabat suscepisse, & concessit, ut Episcopi Leges illas susciperent, & ut illas cu­stodire promitterent. Tunc praecepit Rex univer­sis Comitibus & Baronibus Regni, ut irent foras & recordarentur Legum Henrici Regis Avi sui, & eas in scripto redigerent. Quod cum fa­ctum fuisset, praecepit Rex Archiepiscopis & Epi­scopis ut sigilla sua apponerent scripto illi; & cum caeteri proni essent ad faciendum, Archiepiscopus Cantuariensis juravit quod nunquam scripto illi sigillum suum apponeret, nec leges illas confir­maret.

If this was not an encroaching Royall power, there was never any such fault, when he was grown so great that the King him­self must supplicate; that the great men of that time, though passionataly interceding on the behalf of the King, could obtain no peace for the King. That an Ambassadour from the [Page 65] Pope and Cardinals must be sent to com­mand him to be reconciled to the King. That he did make a shew of being the Kings friend, and did promise to be at peace with the King and keep his Laws, at the Popes Command. But of this too he soon repented, and said he would sin no more. Was not this man a Traytor at Common Law before the 25 of Ed. 3. doth not the reason of the Govern­ment declare and pronounce him so? And doth the Octavo Author think that a Parliament would not use the declarative power by that Statute reserved, to declare such offences as these, Treason? If the like case should hap­pen, would not he himself be the likelyest man to be formost in the impeachment? But Gervasius Dorobernensis goes on and tells us, that afterwards Becket did voluntary pe­nance, for the aforesaid promise made to the King, and of his submission to his Laws, and stood out in disobedience. That the King did cast about and study, quomodo vel qua ar­te constantiam Archiepiscopi conterere valeret, vel elidere virtutem, Col. 1388. But see in what respectful terms their Author in the mean­time speaks of this Becket. We may be sure, we can have nothing from them, that is true, if it makes the Cause of this contumacious rebellious man bad. But at last the Kings pati­ence is turned into Anger. For Gervasius goes on Col. 1388. and saith, Timens autem [Page 66] Rex Angliae, ne impune manus ejus Cantuariensis Episcopus evaderet, jam edoctus multiplici Co­gitatione & pravorum Eruditione quibus eum pravitatis laqueis innodaret, Praecepit Praesules & Proceres Regni, apud Northamptonian unà cum Archiepiscopo ipso convenire, qui cum tertia die convenissent, Archiepiscopus in multis est accusatus. And no man can believe his accusation was less than Treason, that will believe what is said by all Historians of Beckets Rebellious behaviour against the King, and the Kings an­ger conceived, his threatning him with death, and the convening of this Parliament, lest he should escape unpunisht: And especially that will observe the partiality of this Ger­vasius against the King; and in favour of Beck­et. For he said, as is before observed and ci­ted, that now the King was edoctus multiplici cogitatione, that now the King with much thought, and the Advice of wicked men was instructed how he might ensnare him with evil Arts, and for that purpose this Parlia­ment was convened. And yet in particu­lar this Gervasius and Fitz-Stephen, his faith­ful friend who accompanied Becket in his trou­bles, mentions only two faults, whereof he is accused, viz. of injustice in the Case of John the Marshall, and of his own Contuma­cy in not obeying the Kings Summons. Fitz-Stephen, Hoveden and Gervasius tell us, that to the two particulars Becket made his defence. [Page 67] Gervasius and Hoveden tells us what defence he made, which the Octavo hath faithfully transcribed, to do him right: (I wish he had observed the whole story, then he would have saved me this trouble of bringing it into the view of the World.) The Article wherein he is charged, for not doing Justice to John Marshall, is answered by laying the fault upon Marshall himself, for abusing the Court, bringing veterum Cantuum Codicillum, to swear upon, refusing to swear sub Evan­gelium, ut moris est. The other Article he answered, proving by two sufficient Witnesses, that it was sickness hindred him and not a­ny contempt; Very sufficient Answers to those two Articles, and certainly the Parlia­ment that was called only for to punish Becket, might have well acquitted him and returned home, and a weighty cause this was to convene a Parliament.

But these were but two of those many things (for multis est accusatus saith Gervasius) and of the least offence (besides that they were fully answered) in any mans judgment that hath read the Story of Becket, of which he stood accused. By what I have here transcribed it appears, that he was certainly guilty of Treason. That the Parliament was called to punish him: The King was enra­ged and that justly, and therefore he was most certainly accused of Treason. Gervasius [Page 68] goes on and tells us, that his rationibus (meaning that he offered in excuse of him­self in the business of Marshall and his own contempt) Archiepiscous excusari non potuit, sed Curiali judicio, & Assensa Episcoporum condem­natus est, ita ut omnia ejus bona in misericordia Regis ponerentur. And yet the prosecution went on. The Bishops are consulted with by Becket, how he should behave himself. Thus Gervasius tells us Coll. 1398. You may best understand the Nature of the prosecution and Beckets danger, by the advice of some of his Suffragan Bishops. The Bishop of London thus adviseth, Si pater, inquit, recolis, unde te Dominus Rex sustulit, quid tibi contulit, consi­deratâ temporum malitiâ, quam Ruinam Ecclesiae & nobis omnibus paraveris, si in his Regi re­sistere volueris, non solum Archiepscopatui Cantuariae, sed in decuplo, si tanti fuerit, cedere deberes. Could all this danger grow from less than Treason? Could a bare neglect to answer a Summons, where he excused his default suf­ficiently, or refusing to proceed in the Case of Marshall, for that he did presumptuously trifle with the Court, and prophanely offer­ed to be Sworn upon a Song-book, put the whole Church and himself in danger, big e­nough to be redeemed with ten times the value of the Bishoprick of Canterbury?

The Bishop of Lincoln speaks in Gerva­sius these Words: Patet, inquam, vitam istius hominis & sanguinem quaeri, & necessario alte­rum horum erit, aut Archiepiscopatui aut vitae ce­dendum.

The Bishop of Exeter thus: Palam est quo­niam dies mali sunt, & si possumus sub dissimula­tionis umbrâ, hujus tempestatis impetum pertran­sire illaesos. And after he saith, satis est unum Caput in parte periclitari, quam totam Anglica­nam Ecclesiam inevitabili exponere discrimini.

The Bishop of Worcester, saith Gervasius, be­ing asked what he thought, ita tempera­vit Responsum, ut & negando palam secerit, quid animi haberet. The Bishop of Ely was sick. The Bishop of Norwich, the same Author saith, excused himself, secreto asserens Eliensem foeli­citer adeò defensum, & quod ipse vellet simili pla­gâ percelli, for he had heard, saith our Author, quid Rex conceperat contra Cantuariensem.

Becket not 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 [Page 70] 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 [Page 71] 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 [Page 72] 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 [Page 73] 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 [Page 74] 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 recited (upon which our Adversaries do so much ground themselves) from the Cognisance of the Lords Spiritual, and they could not be present when any such Case was agitated or moved, all the Grandees were Notoriously, Willfully, and Knowingly, and in the face of the whole World perjured to the Eternal infamy of our Na­tion.

Could the whole Nation be ignorant of its own Laws and Constitutions, made and sworn to but a few months before? and neither the King, Lords Spiritual or Temporal, or Com­mons understand them? 120 men at least, (for about that number were the Bishops and regu­lar Barons in H. the 2ds. time and not less) now come into the highest Judicature in the greatest Cause that ever was agitated (It was [Page 75] in the Case of Becket disputed whether we should have a Civil or Ecclesiastical Soveraign­ty) and there sit Judges, and no body except against them in October, if excluded by the Statute made in February before; though the King and the Nobles had reason to suspect them on Becket's side, and they unwilling them­selves to Judge, and they under an Oath not to sit, and the Temporal Lords under an Oath not to admit them or allow them to be there? And yet not a word of this matter in all the Historians of that time, Thomas of Canterbury his friends to a man, who were forward e­nough to reproach the Judges sure, when they condemned the Sentence, and applauded the Criminal, and made a Pater patriae, a Martyr and Saint of this Notorious Church Rebel. He therefore that can believe that the Bishops were not rightful and unexceptionable Judges in capital Causes in Parliament, in the time of H. 2. may believe that a whole Nation may become of insane Memory at once, go to bed a Monarchy and wake into a Common-wealth, without any notice or observation of a Change. And now that the Assise of Clarendon is of our side, I hope will be admitted, and that the Bishops not only may, but ought to be present in ca­pital Causes in Parliament, for the words of the Statutes are; That the Archiepiscopi, Episcopi & universi personae qui de Rege tenent in Capi­te, habeant possessiones suas de Rege sicut Baroniam, [Page 76] & sicut caeteri Barones debent interesse Judiciis Curiae Domini Regis cum Baronibus. So that now they were declared to be Judges as the other Barons, in that they ought to be present in all Causes: Only they were favoured so much in decent regard to their Order, that they were not required to be present at the Sentence of Death and multilation of Mem­ber, for as much as they are the Ministers of Gods pardon, and the Publishers of the Do­ctrine of Faith and Repentance; they ought to comport with their office, and express their Commiseration to the greatest Sinner, and to have some reluctancy against the Sentence of Condemnation, and to that purpose is that Indulgence given them in the quousque perveni­atur ad mutilationem membrorum vel mortem. But the Assise of Clarendon having; I will not say left them, but required them to be Judges (this exception of Quousque &c. being only an Indulgence as aforesaid upon the Reasons afore­said) they remain entire Judges in Capital Causes, and may depart from that Indulgence, and ought so to do when Justice is necessary, and the offences more than ordinarily Publick, and will be pardoned and escape with impu­nity to the hazard of the Government, except they interpose. For if the Assise of Clarendon had not left them entire Judges of Right, on­ly at liberty as to the pronouncing of Sen­tence; they had not remain'd Judges; for the [Page 77] office of a Judge cannot be divided; he that hath not an Authority to judge the Cause, can be reckoned and accounted no other than a ministerial assistant to the process, in such mat­ters as the Court shall award. Therefore Bi­shops; in that they have intermedled as Judges in such Causes, they have continued and avowed their Right of judging, and in that they have withdrawn at the Sentence they have used that Liberty. But to leave nothing for an after ob­jection, Evasion, or Cavillation, it shall be in our Adversary's choice, Whether this Curia Re­gis mentioned in the Assise of Clarendon, as also the Court that tryed Thomas Becket, was the Curia Regis wherein the ordinary Justice of the Na­tion was at that time administred, or the Par­liament.

If it was the Curia Regis, and not the Parli­ament, was intended in the Assise of Claren­don, in which the Priviledge and Indulgence under the Quousque was allowed to Bishops; Then the Assise of Clarendon is unduly urged against the Bishops judging in Cases of blood in Parliament, for that all Laws of Priviledge and exemption are stricti Juris, and not to be extended beyond the Letter of the Law, the single instance, or the enumerated Cases; and consequently by the Assise of Clarendon the Bi­shops have no leave to withdraw in Cases of blood in Parliament.

If the Court wherein Thomas Becket was tryed was the Curia Regis, then the Bishops judging in that Court in that Cause doth most clearly declare (that being a Case in point) that the quousque in the Assise of Clarendon was an Indulgence and Priviledge, which they might use or wave as they then did.

But this cannot be denyed, that the Bishops are and were Barons ever since the Conque­ror, (of which, and of the Curia Regis we shall hereafter give an account) and whatever was the business and office of Baron, was con­sequently the office and business of a Bishop of Common Right, and still is, except any Legal restraint was put upon them by any Law, which was not done by the Assise of Clarendon, as we have proved by the reason of the making of that Law, the Interpretation of that Law at that time. Nor was that Law or any other Law hitherto pretended (but only the Ca­nons of the Church) against the Right and Duty of Bishops in Capital Causes in Parlia­ment, or if they will have it, in the Curia Regis.

CHAP. VI.

AND now we proceed further to shew how this Right and Authority of the Prelates hath been used and acknowledged in after-times.

Roger de Hovedon hath remembred in the Life of Richard the First, who succeeded Henry the 2. That before the arrival of Richard the First in England who had been in Captivity in the Em­pire, that one Adam de St. Edmond, Agent to John Earl of Morton, returned into England, be­ing sent to fortifie the Castle of Earl John, a­gainst the King his Brother, and was apprehend­ed by the Lord Mayor of London, with several papers of instructions and Commissions of Earl Johns for that purpose: Hoveden tells us, That the Mayor cepit omnia brevia sua, in quibus mandata Comitis Johannis continebantur, & tradidit ea Can­tuariensi Episcopo, qui in crastino convocatis coram eo Episcopis, Comitibus & Baronibus Regni, osten­dit eis literas Comitis Johannis & earum tenorem, & statim per commune Concilium 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 [Page 80] 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, [Page 81] 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 [Page 82] 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 [Page 83] 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 [Page 84] Sir Thomas de la Piercy to assent. The words of which Petition, and the procuratory Letters, for greater Authority, and more satisfaction I have thought fit to transcribe. Nos Thomas Cantuar. & Robertus Eborac. Archiepiscopi ac Praelati, Clerus utriusque Provinciae Cantuar. & Ebor. jure Ecclesiarum nostrarum, & Tempo­ralium earundem habentes jus interessendi in singu­lis Parliamentis Domini nostri Regis & Regni Angliae pro tempore celebrandis, necnon tractandi & expediendi in eisdem quantum ad singula in in­stanti Parliamento pro statu & honore Domini nostri Regis, nec non Regalie ac quiete pace, & tranquillitate Regni judicialiter justificandi, venerabili viro D. Thomae Peircy ..... Nostram plenariam commit­timus potestatem, ita ut singula per ipsum facta in praemissis perpetuis temporibus rata habeantur.

The Commons of England knew what they said, and could not be mistaken in fact, we know of no Judgments reversed but those of the Spencers; But we have no Records or very few of the times before Edward the Third, trans­mitted to us, through the injury of the times, but they then had certainly whereupon they grounded their petition, upon which the said procuratory Letters were made, which petition here follows in terminis. Mecredy prochein, ensuant les Communes monstrerent au Roy, coment avant ces Jeures plusieurs jugements & Ordinances faitez en temps des progenitors nostre Senior le Roy en le Par­liement eiant estre repelles & adnulles pur ceo que l'estat de Clergie ne fust prest en Parliament a la fai­saunce [Page 85] des dits jugements & Ordenances, & pur ceo prierent au Roy que pur surete de sa personne & salvation de son Royalme les Evesques & le Cler­gie ferroient un Procurator aver poiar sufficient pur consentir en leur nosme as toutes choses & ordinan­ces a justifieis en cest Parliament, & que sur ceo ches­cun Signior espiritual dirroit pleinenent son advys. Sur qui les dits Seigniors Espiritual severalment examines se consenterent de Comettre lour plein poiar grantant en les parts & nosmerent on especial Tho. Peircy Chivaler, & sur ceo baillerent au Roy une Schedule contenant lour dit poiar, le quelle nostre Seignior le Roy receust & commanda la dite Mecredy estre enter de record en Rol de Parliament; deque cela Schedule le form sensuit.

But it is remarkable that this Petition was made in 21 R. 2. for that in the 11 R. 2. the Bishops had made their Protestation, that by reason of a Ca­non they could not be present: The words of the protestation we shall here transcribe. Per enche­son & certeins mattires feurent mouvez en cest present Parliament & toucherent overtement Cryme; L'archevesque de Canterbiry & les autres Prelates de sa province fierent une protestation en la fourme & paroles qui suent. In Dei nomine Amen. Cum de Jure & consuetudine Regni Angliae ad Archiepi­scopum Cantuariensem qui pro tempore fuerit, nec non caeteros suos Suffraganeos, Confratres, & Coepiscopos, Abbates & Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertinet in Par­liamentis Regiis quibuscunque ut Pares Regni praedi­cti personaliter interesse, ibidemque de Regni nego­tiis [Page 86] & aliis ibi tractari consuetis, cum caeteris Domini Regis Paribus & aliis ibidem jus interessendi habentibus consulere & tractare, ordinare, statuere & definire, ac caetera facere quae Parliamenti tempore ibidem invenerint faciend. in quibus omnibus & singulis nos Willielmus Cantuarien. Archiepiscopus totius Angliae Primas & Apostolicae sedis Legatus pro nobis nostrisque Suffraganeis, Coepiscopis & Confratri­bus, necnon Abbatibus & Prioribus ac Praelatis omnibus supradictis protestamur, & eorum quilibet protestatur, qui per se vel procuratorem hic fuit modo praesens, publicè & expressè, quod intendimus & intendi vo­lumus, & vult eorum quilibet in hoc presenti Par­liamento & aliis ut Pares Regni praedicti more solito interesse, consulere, tractare, ordinare, statuere & definire, ac caetera exercere cum caeteris jus interes­sendi habentibus in iisdem, statu & ordine nobis & eo­rum cuilibet in omnibus semper salvis. Verum quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis aut alicui eorum juxta Sa­crorum Canonum instituta quomodolibet personaliter interesse, ea propter pro nobis & eorum quolibet pro­testamur, & eorum quilibet hic praesens etiam protesta­tur, quod non intendimus nec volumus sicuti de jure non possumus nec debemus, intendit nec vult aliquis eorundem in praesenti Parliamento dum de hujusmodi materiis agitur vel agetur, quomodolibet interesse, sed nos & nostrum quemlibet in ea parte penitus ab­sentare; Jure Paritatis nostrae & cujuslibet eorum in­teressendi in dicto Parliamento quoad omnia & sin­gula inibi exercenda nostro & eorum cujuslibet statui & ordini congruentia in omnibus semper salvo. [Page 87] Adhuc insuper protestamur & eorum quilibet prote­statur, quod propter hujusmodi absentiam non inten­dimus nec volumus, nec eorum aliquis intendit vel vult, quod processus habiti & habendi in praesenti Parliamento super materiis auditis, in quibus non pos­sumus nec debemus ut praemittitur interesse, quantum ad nos & eorum quemlibet attinet, futuris temporibus quomodolibet impugnentur, infirmentur seu etiam re­vocentur. Quelle protestation leu en plein Parli­ament al instance & priere du dit L'archevesque & les autres Prelates susditz & inrollez ycy en rol du Parlement per Commandement du Roy & assent des Signiors Temporeles & Communes.

This the adversaries of the Bishops would have an Act of Parliament, for that at the prayer of the Bishops by the Kings command, with the assent of the Lords Temporal and Commons, it was inrolled; for that all the formalities that were used in these times, in passing a Law, was only to have the matter shortly entred in the Roll, or Journal Book, that such a thing was agreed up­on by the King and two Houses, which was drawn into the form of a Law afterwards by the Justi­ces and Kings Councel when the Parliament was risen; but this was never done in this Protesta­tion, and therefore we might say that it is not to be taken for a Law.

But we will admit it to be a Law, yet it can be a Law only for that Case, and can be extended no further: Those Bishops protest; but for whom? For themselves only, their own persons, not their successors; that by reason of the institu­tion [Page 88] of the Canon they could not be present at certain matters to be treated of in the Parliament. What those Canons were they do not tell us. They had no other reason but the Canon to pre­tend at that time. We hear not a word from them of the Assise of Clarendon: And what was it that they protested? Why only that they could not be present: at what? only at the mat­ters aforesaid mentioned in the Petition and in that present Parliament. But was this without any regard of their Right? No, they saved their Right, their Jus Paritatis: pray mark it: what then did they in effect depart from? nothing. They provided only that they might do nothing indecent or rather against their good liking, and at the same time consulted likewise the safety of their Estate and Order, and preservation of all their Rights.

But had they no care of the Authority of the Parliament in their absence? yes, for they very well knew that it was a probable opinion that nothing acted in their absence and during a recess of their whole Order could be rate and valid; and there­fore they provide propter hujusmodi absentiam non intendimus nec volumus, nec eorum aliquis intendit vel vult, quod processus habiti & habendi in praesenti Parliamento super materiis auditis, quantum ad nos & eorum quemlibet attinet, futuris temporibus quomodo­libet impugnentur, infirmentur seu etiam revocentur.

Let the Impartial Reader Judge whether this be not a famous recognition of the Bishops Right of sitting, what a solemn leave they had to be ab­sent, [Page 89] what provisions made that the proceedings in that Parliament should not be avoided and made null by their absence; which implies a great probability, that that time allowed to the opini­on of their being necessary in all proceedings in Parliament. Was there ever such a protestation entred on the behalf of the Absentees of Tempo­ral Barons? This leave given them to be absent is an allowance of Right to sit. The proceedings they liked not and the Canon was pretended. Admitting this protestation to be an Act of Par­liament, It is an Act of Parliament to give the Bishops leave to be absent pro hac vice, and to make Laws good that should pass in their absence. I appeal to the world whether there can be a more Solemn and Authentick Recognition of their Right than this protestation imports.

CHAP. VIII.

IT does appear by the whole tenor of this their protestation, that the Canons of the Church which they pretend had not passed into Laws; if they had, what need of such a warm protestati­on, only for the sake of decency and the honesty of their order, to be rid of a troublesome business? what means the saving of their right, if by Law it had been discharged? what means their further protestation that the validity of the proceedings in those Causes in which they withdrew, should [Page 90] not be impeach't by their absence, if their Right did not remain entire notwithstanding the Ca­non? besides that they do not alledge the Law but the Canons of the Church for their excuse.

They well knew the nature of Canons, the force and obligation of them, and also that they were not under any obligation to the Canon Law, that it was only a Law in the Popes Temporal principality, and had no Controul upon the Laws of this Kingdom.

For the clearing this question it will not be unnecessary here to speak to the nature of Canons, what they effect and how oblige.

Canons therefore are no more Laws than the authority of the Church is Empire, no not in mat­ters that are proper for their Canons. But most certainly they can neither make nor annul a Civil Right, nor do they pretend to alter or change Governments: they exceed their proper bounds when they intermeddle in any matters of this na­ture. But when they do extend themselves beyond their bounds and order, and appoint in any matter of a Civil Government; they intend only to coun­sel and direct the man how he shall behave him­self in the use of his Right, which every man may observe if he please. Their Subjects are Populus voluntarius, the Ecclesiastical Courts are Courts of audience in matters that belong to their cogni­sance, and the Church's word is, He that will hear let him hear.

The Canons of foreign Councils tho' General, tho' we send thither our Delegates and Proxies [Page 91] authorized by publick Instruments, and by con­sent of Parliament, as has been sometimes done, have not the consideration of Canons, except re­ceived here and allowed by the same Authority, that makes the Canons of our Church.

Canons here must have the Royal assent at least to make them Canons, but with the Kings assent they are void, if they alter or meddle with any Civil Right or Constitution. If any man is proceeded against in the Ecclesiastical Courts for being contrary in any thing to such a Canon, our Courts will grant him a prohibition; if Excom­municate thereupon, award Writs to assoil him to the Bishop, and seise his Temporalties if he do not conform.

Nothing can alter Civil Rights or Civil Consti­tutions but Law, and such never were any Ca­nons or so reputed; except the Decrees of Coun­cils confirmed by the Imperial Rescripts of the Roman Emperors, who by their Rescripts made Laws by the Authority of the Lex regia, by which the people devolved their Right of Legislation to the Emperors: but when such Canons were con­firmed by the Emperor, they remained but Ca­nons still, the Canons were to be exacted by the measures of the Church and by the Church-men, the matters of such Canons did not employ the Forum; no alteration was made in any Civil Right, but the Church had Authority to require obser­vance of them, under the Censures of the Church.

About the 11th. Century the Pope meditating the increase of his new Ecclesiastical Empire, [Page 92] (the Roman Empire being now extinct) did de­sign to give Laws to the World: and to that pur­pose in imitation of the Imperial Roman Law, Gratian was appointed to compile a body of Laws accomodated to that design, out of the Ge­neral Councils, the sayings of the Fathers, and some decrees of former Popes, which made that part of the Canon Law which they call the Decre­ta, to answer to the Digest which was made up of the Senatus consulta, Responsa prudentum and the Edicta Praetorum; to which another Book was ad­ded of Decretals and Clementines, made up of the Popes Decretal Epistles, which answered to the Codes and Novels which was made up of the E­dicts, Epistles and Decrees of the Emperors: For by the Constitution of the Senate of Rome, called Lex Regia, by which they gave the power of making Laws to Augustus, it was established, that quicquid per Epistolam statuit, cognoscens decrevit, aut per edictum propalavit, lex esto. And now there was such a thing as a body of Canon Law. The Pope had Power indeed to make these Decreta and Decretalia Laws in the Domains of the Church and the patrimony of St. Peter, in which he was a Temporal Prince; but it was further endeavoured by him to make them the Laws of the Christian World, and thereby to advance his pretended Oecumencial Empire, and he did so far prevail and advance in his design, that it was thought that Rome had again recovered the Em­pire of the World, and it was said with too much truth of her upon the growth of the Papal power,

But tho' the Pontificial as well as the Justinian 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 [Page 94] 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 Clergy­man 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 [Page 96] 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 [Page 97] 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; Ʋt nullus Episcopus, vel Ab­bas, seu quilibet ex Clero hominem occidendum, vel membris truncandam judicet, vel judicantibus suae authoritatis favorem 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 [Page 98] 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 [Page 99] 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 his, qui in sacris ordinibus constituti judicium sanguinis agitare unde: (saith the Canon) Prolibemus ne aut per se membrorum truncationes faciant, (a very fitting Employ­ment for a Bishop) aut inferendas judicent; and after all this, we have still our old Answer, up­on which we will ever insist; it is but a Canon, and can make no Alteration in the Rights of Government.

For tho' Gervasius Dorob. tells us, In hoc Concilio, ad emendationem Anglicanae Ecclesiae as­sensu Domini Regis, & primorum omnium Regni haec subscripta promulgata sunt Capitula; yet the Canons of this Council are not Laws: For that [Page 103] our Historian does not tell us of any Parliament then held, or that they were confirmed in Par­liament, and the good liking of Great Men out of Parliament, will not confirm; nay, not ju­stifie the Canons, if they cannot justifie them­selves in Parliament. Besides, that these Canons were not made into Laws, we will offer two Reasons. 1st. For that amongst these Canons, there is one that disposeth of the Right of Patronage against the Law, as it hath been before and since taken; and that is this, Nulli liceat Ec­clesiam nomine dotalitii ad aliquem transferre, vel pro presentatatione alicui personae pecuniam vel ali­quod emolumentum pacto interveniente recipere: quod si quis fecerit & in jure convictus vel confessus fue­rit ipsum tam Regia, quam nostra freti autoritate patricinio ejusdem Ecclesiae in perpetuum privari statuimus; which was never, most certainly Law.

Secondly, If this had been a Law, the other Canon before-mentioned, made by Stephen, Arch-bishop of Canterbury, was idle; nay, pre­sumptuous, for offering to derogate from a Canon, made a Law about 47 years before: But however, Canons confirmed by Law, remain but Canons still; and the Breach of them not pu­nished as the Breach of Laws, nor no Innova­tion made thereby, upon a civil Right; of which before and after more.

As to the Second Canon, we observe how dutiful this Canon in the Stile of it behaves it [Page 104] self towards the Civil Government, in that Clerks should not exercise Jurisdiction where Judgment of Blood is to be given, under the soft word Statuimus, that they should not Li­teras pro poena sanguinis infligenda scribere, that is, sign an Order for the Execution of a Con­demned Man, or be present at the Sentence, is under the districtiùs inhibemus; but the doing of this, is not declared to be a Sin; he that is contravenient to the Canon, is not thereby to become irregular to be punished by his Su­perior, or to incurr Excommunication, or any Censure, the Clergy are not declared by this Canon to be incompetent Judges: it only de­clares them unworthy of the Protection of the Church; the meaning of it is, Judge not least ye be judged: If you judge the Laicks, they will judge you. This is the Scandal for which the Privilegium Clericale will be lost; So that upon the whole matter this Canon is but Ad­vice and Counsel, and offers reasons to the Choice and Approbation, rather than a Com­mand, under the Authority of the Church in a Council. But let it be what it will, if the Canon had been most peremptory in its Prohi­bition, and had lighten'd and thunder'd in its Denunciatiations, it would have been of no force to alter the Government, or discharge a Judge from doing his Duty; but this is farther to be duely observed, that this Canon could not be broken if the Law had not been other­wise [Page 105] than these Canons direct; and therefore these Canons produced by our Adversaries, are the greatest Testimonies to the Right we de­fend, and a practice agreeable thereto. Doth not the Canon suppose, that a Beneficed Clerk, or one in Holy Orders, was sometimes in Com­mission for judging in Capital Causes? For certainly the Canon did not prohibit them to murder, or enjoyn them not to write Letters to subborn men to kill. What can be the mean­ing of the Canon but this, supposing a Benefi­ced Clerk to be made a Judge of Life and Death, to assist in a Commission of Oyer & Terminer, or Goal-delivery, that he should be enjoyned not to pronounce the Sentence, or to sign the Order or Calendar for Execution. But if he were not a Judge, how possibly could he sign an Order for Execution? By the other words of the Ca­non, Nec intersit ubi judicium sanguinis tractatur; he can be forbidden onely to be present and assisting as a Judge or Officer at the pronouncing of Sentence: for it can be no fault sure, nor ever was intended by any Canon to be made one, for any Clerk to hear a Court pronounce a Judg­ment of Death or Mutilation, or to see a Male­factor executed.

What therefore can be more evident, than that the Bishops did withdraw, not for want of Right of Session, but they pretended the Canon because they did not like the Causes? But fur­ther, that nothing more than what we have [Page 106] shewed was understood to be done in that Pro­testation, by those times (they must be allowed at least to know their own Opinions) doth ap­pear; for that notwithstanding the Protestati­on of the Bishops aforementioned, the great Council of the Kingdom did not think the Au­thority of a Parliament when the Bishops were absent unquestionable. This Opinion we do not go about to maintain, but this we con­clude, that there could never have been such an Opinion, if the Bishops had been denied Right of Session in Capital Causes in that time.

CHAP. IX.

THE Commons of England in the 21 R. 2 pray, that the Bishops might make their Proxy; which they did thrice in that Parlia­ment, once by Procuratory Letters to Sir Thomas Percy, as is before recited; and afterwards Wil­liam la Scroop Earl of Wilts was made their Pro­curator; and a third time the Earls of Worcester and Wilts were made their Procurators, in the matter between the two Dukes of Hereford and Norfolk.

That it may the better appear, that the Bi­shops were virtually present by their Proxy, it ought to appear that they were allowed to make [Page 107] Proxies, and that the Lords Spiritual did so as well as the Temporal Lords. The first mention of Proxies that occurs in the memory of our Parliaments is in the Parliament of Carlisle under E. 1. and that is of the Bishops Proxies. The words are these; Quia omnes Praelati tunc plenariè non venerunt receptis quibusdam procuratio­nibus Praelator. qui venire non poterant adjornantur. And in a Parliament held at Westminster, under Ed. 2. dors. clauso Ed. 2. m. 11. the Bishops of Durham and Carlisle remaining upon the De­fence of the Marches of Scotland, are severally commanded to stay there, and in the Writ this Clause was added to both of them, Sed Procurat. vestrum sufficienter instructum, ad dictum diem & locum, mittatis ad consentiendum his quae tunc ibi­dem praedictos Praelatos & Proceres contigerit ordi­nari. Though generally Proxies were admit­ted to both Spiritual and Temporal Lords, yet when the business of the Parliament was extra­ordinary, the Writs of Summons both to the Prelates and Barons had a Premonition, that a Proxy should not be allowed, unless they could not possibly be present, dors. claus. 6 E. 3. m. 36. claus. 1 R. 2. m. 37. 2 R. 2. m. 29. Nor was it un­usual with the Prelates to make such their Pro­curators, who were no Members of that House. In that Parliament of Carlisle under E. 1. the Bi­shop of Exeter sends to the Parliament Henry de Pinkney Parson of Haughton as his Proxy. The Bishop of Bath and Wells sends William of Charle­ton [Page 108] a Canon of his Church. In the Parliament 17 R. 2. the Bishop of Norwich made Michael Cer­geaux Dean of the Arches and others his Procu­rators. In the same year the Bishop of Durham his Proxies are John of Burton Canon of Beudly and others. In the Statute of Praemunire 16 R. 2. cap. 5. it is said, that the advice of the Lords Spiritual being present, and of the Procurators of them that were absent was demanded. This making of others then Barons of Parliament Pro­xies, is not without President likewise in the case of Temporal Lords. Lit. Procurator. Parl. 4 H. 5. Thomas de la War gave his Procuratory Letters to John Frank and Richard Hulme Clerks. So that it appears, that by the Law of Parlia­ment the Proxies of the Bishops in the 21th. of R. 2. were legal Proxies; and consequently the Bishops there virtually. Besides that, the law­fulness thereof doth appear, for that it was re­quired of them by the Parliament, that they should make their Proxies, and be present by their Procurators, for this reason, lest otherwise the Proceedings in that Parliament should be void.

CHAP. X.

IT is true that the Parliament 21 R. 2. was wholly repealed by 1 H. 4. but that was for a good reason indeed, because that Parliament of 21 R. 2. had delegated their whole power to a few of their number, who finally without any resort back to the House made and past Laws.

But did ever any man before the Octavo argue at this rate, that because there is one error in a case for which the Judgment is reversed, that therefore there was nothing in the case legal and well considered. And therefore how unreason­able and false this way of arguing is, and that it is disputing against fact, we shall further shew and prove.

For a probable Opinion still continued of the necessity of the Bishops sitting, which implies a clear Recognition of a Right; for in the 2 H. 5 the Earl of Salisbury petitioned the House to re­verse a Judgment given against the Earl his Fa­ther, Anno 2 H. 4. the Error assigned was the Absence of the Spiritual Lords. The Case was much debated, but the Judgment affirmed as we allow it ought to be, but we produce it as an ir­refragable Testimony of the Bishops Right to sit: for if that had not been allowed, there could not have been the least colour in the case, nor matter of debate.

CHHP. XI.

BUt tho' the Actual Exercise of the Bishops Right in their own Persons (though whatsoever is done by a Deputy, is done in the Right of him that makes the Deputation, as every body knows) was for some time disconti­nued (tho' their Right in that time was most so­lemnly owned and recognized) yet in 28 H. 6. we find them re-continuing the Exercise of that Right and Authority, and in their own Per­sons sitting in Judgment, upon William de la Pool, Duke of Suffolk, who was impeach'd of Treason by the Commons, for that he had sold the Realm to the French King, and had fortified Wallingford Castle for a place of Re­fuge. The Impeachment of High Treason was brought from the House of Commons, by seve­ral Lords Spiritual and Temporal, sent thither by the King's Command; the Ninth of March, the Duke was brought from the Tower, into the Presence of the King, the Lords Spiritual and Temporal: The Impeachment was read un­to him. The Thirteenth of March, he was sent for, to come before the King, the Lords Spiri­tual and Temporal, to answer to his Charge, which he did. On Tuesday, the Seventeenth of March, the King sent for all the Lords Spi­ritual [Page 111] and Temporal, who were in Town: They are named, two Arch-Bishops, and thir­teen Bishops, besides the Temporal Lords, who being assembled, the King sent for the Duke. There was no Judgment given by the Parlia­ment, but he submitted to the King, and the King gave him Penance; which was, that he should be absent for Five Years out of Eng­land.

The Lords Spiritual and Temporal, by Vis­count Beaumont, declared to the King, that this that was so decreed, and done against the Per­son of the Duke, proceeded not by their Ad­vice and Council, with this Protestation, that it should not be, nor turn in Prejudice, nor Derogation of them, their Heirs, ne, of their Successors in time coming; but that they may have and enjoy their Liberty and Freedom, as largely as ever their Ancestors, or Predecessors had and enjoyed before this time. Observe here, that the Lords Spiritual were present at every Motion of this Cause. This Cause was thrice before them, no Exception taken to the Bishops being Judges. They could not sit by Permission, without Right; if the Bishops had no Right to sit, the Proceedings had been cer­tainly erroneous: For though one Judge's Ab­sence (if there be a Quorum) will not vacate a Judgment; yet if one sit in Judgment, that is not an Authorized Judge, the Proceeding is certainly erroneous and void. Can any man be­lieve, [Page 112] that the Government should lose it self? forget its own Establishments in the highest con­cerns? We may as soon believe that a man may forget his own name. One positive Act of Sessi­on signifies more than 100 Omissions; for if it had not been well understood, that the Bishops had a Right to sit in Judgment in Capital Cau­ses in Parliament, they could never have been admitted; they would never have presumed to endeavour it. But with false Logick and absurd Reasonings, and dislike to the Order, it is be­come an Opinion in this Age, because some­times the Bishops absented, that they have no Right.

But we have one thing further to add, that declares an inherent Right in the Lords Spiritual to the Authority in question; and that is an Opinion of the Judges 10 E. 4. 35. which says, that the Lords Spiritual in case of a Tryal of a Temporal Peer in Parliament shall make a Pro­curator; for then it seems an Opinion was recei­ved, (which was error temporis) That it was in­decent for Bishops to sit in their own persons in Judgment in such cases. But they themselves are best Judges of what is indecent and unbecoming their Order; for no man is obliged to any man but himself, in the matters of Decency, and the measures that make things decent or indecent is very mutable, as changable and mutable as Cu­stoms, Fashions, and Opinions. Besides that, there is nothing that is very valuable, and is of [Page 113] great concernment, but can and ought to set aside and supersede the consideration of De­cency.

CHAP. XII.

BUT to complete our Evidence, I will add the consideration of what remains unque­stionably the Right of the Lords Spiritual, which seems to me to be in parity of Reason with the Right now in Pretense, and that is their Right to be authoritatively present and assisting at passing Bills of Attainder, which the Bishops al­ways exercised as the Folio saith, though he will not think it allowable from thence to infer, that they have rightful Authority when that House doth proceed judicially to Condemnati­on. But I desire to be informed what differ­ence there is between condemning a man by Act of Parliament, and by Judgment in Parliament. If the death of the man be onely considered, it is as much against the Canon to condemn the man one way or the other. It's causa & judici­um sanguinis, and death follows. Nay, to con­demn a man by Bill of Attainder is more against the reason of the Canon, than the condemning a man judicially; for the condemning a man judicially is ex officio Judicis, but a Bill of At­tainder is an extraordinary use of the Legislative [Page 114] Power to a purpose, which was not designed in the Institution. Such an Act is not ex officio Legislatoris, but the using of the Absolute Power of the Sovereignty upon Reasons of State. Here one would think if the Canon had any consideration, any obligation, it should re­strain the Bishops from meddling in such Legisla­tions. Privilegia ne irrogunto was one of the Laws of the twelve Tables.

But (if I do rightly understand) the reason why Bishops did more frequently, and without pretence of scruple or objecting the Canon, assist in the Bills of Attainder, was for this reason, That the weightiness of the Affair, the high nature of the Proceeding, the extraordinary use of the Legislative Power, which can be war­ranted onely by extraordinary Reasons, requi­red their Presence, and put that little pretence of the Canon out of countenance, it could not with any faith to the Government be then so much as mentioned for an Excuse by the Bi­shops.

And this I will say, that the Canon hath no more right of restraining the Bishops in Judicial Proceedings, than in the Proceedings upon Bill of Attainder. That it hath not done so is con­fessed in this, and therefore it did not de jure do so in the other.

The Folio Author hath found out a very ex­traordinary Reason why Bishops are necessary to Acts of Attainder, (but this he saith must not [Page 115] be drawn into an Argument for the Bishops Right of Judging) and that is, because Rights, Titles, and Interests, are made forfeit by Acts of Attainder, which were not forfeitable at Com­mon Law; and for the doing of this it i [...] ne­cessary there should be a concurrence of the three Estates to bind all Rights. This Argu­ment supposeth, that private Acts of Attainder did not always conform themselves in the matter of Forfeitures to the severity of the Common Law, or general Statute Law: which is a mi­stake; for before the Statutes of 26 H. 8. c. 13. & 33 H. 8. c. 20. private Acts of Attainder made no Forfeitures, but what the Common Law made; and since the Statutes of 26 H. 8. c. 13. & 33 H. 8. c. 20. the private Attainders by Parliament have not exceeded those appointed by that Statute, but have often times gone less. And therefore the Bishops were not present for the reason of making Forfeitures larger, and of more things than the Law at the time being made forfeit­able, but of common duty, especially in all these matters of an extraordinary nature or difficulty, to assist as Judges and Councellours in that House. And to this that I now say, all the Acts of Parliament of private Attainders that I have seen, and they are not a few, are agreeable. I believe what he hath said in this matter is not grounded upon any observation, but he was willing to find out a Reason for what he had un­dertaken to prove, and to offer it without try­ing [Page 116] of its truth. Besides, whatever can be a Law, can be a Law without them, and if they are absent.

CHAP. XIII.

BUT I must take notice that we have proved beyond what is necessary, to maintain the Lords Spiritual their pretence of Right to judge of the Earl of Danby's Pardon, which is the pre­sent case, and gives the occasion of this Di­spute. And here I desire the Reader to remem­ber and observe, what was heretofore done by the Bishops in case of Heresie The Bishop in his Consistory convicted a Heretick, and did never imagine he incurr'd the Canon pretended, (though the delivery over to the Secular Arm, and burning of the Convict if he did not re­cant, was intended assuredly to follow) because he did not award the Execution, and give the final killing Sentence.

How then can the Canon (if it was a Law as it is not, nor obligeth any man but he that will be obliged) lay any restraint upon the Bishops in judging of the Earl of Danby's Pardon. For if they dislallow his Pardon, and reject his Plea, he is not to be therefore condemned, (though perhaps his Condemnation may follow, as burning doth the Conviction of a Heretick;) but he is [Page 117] not ipso facto, and merely by rejecting his Plea of Pardon, condemned. For observe, I pray, no man is condemned, or cast in any Suit, be­cause he doth not make a good Defence, but up­on the sufficiency of the matter whereupon he is charged. Besides, that it is not without Pre­cedent, that a man hath been tried after a Par­don pleaded and disallowed. This every Lawyer knows to be so, that if a Plea is plead­ed to any Declaration, upon which the Plaintiff demurs, if the Plea be ruled a bad Plea, the Defendent hath liberty to take exception to the insufficiency of the Declaration. So that Judg­ment is finally and truly given upon the Decla­ration and Charge, because there is a good cause of Action, and not because the Defendent hath made a bad Plea.

So that the Bishops may judge in their own persons of the validity of Pardons, with­out being contravenient to the Reason of the Canon so much talked of is evident; for that the Judgment upon the Pardon is not the final and killing Judgment. The Folio hath furnish­ed us with an Authority for the same, out of an ancient Manuscript Chronicle in libro Mail­rosso he calls it, wherein he saith, the Prelates are said to have given their Opinion in 21 R. 2. for the revocation of certain Pardons of the Duke of Gloucester, Earls of Arundel and War­wick, which were granted in 11 R. 2. and in the Parliament of 21 R. 2. repealed. And though [Page 118] the Chronicle said, some blamed the Bishops, and thought that they had incurred thereby Irregu­larity. That doth not at all prejudice our Right, nor abate the force of the Testimony, that this matter of fact gives to it.

We reserved it to this place to add, that as the intention of the Assize of Clarendon was, to set bounds 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 [Page 119] 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,

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: [Page 121] 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 en­sued, if they had been divided and separated in several Colleges, and had had in consequence thereof a Negative upon each other, as they then of necessity must. But by uniting both Orders into one Council and Assembly, distra­ctions in Councils and impediments to the Affairs of Princes are avoided. And we are assured of a more wise, as well as an unanimous and more authoritative Result in all Councils and De­bates; which if the Octavo had duly consider­ed, he would not have depraved and disparaged this wise Constitution, by comparing it to a nest of Boxes.

They were therefore for these great Reasons, both Spiritual and Secular Lords, united in the [Page 124] great Councils of Kingdoms, and these two Or­ders of Nobles Spiritual and Secular, became the two States, which together with the Repre­sentatives of the People the third State, made the Parliaments Diets and Convention of State, under which Names the great Assembly which we call a Parliament, in the several Sovereignties of Christian Europe hath respectively passed.

This hath been observed by the most learned Onuphrius: Postquam verò juris imperii facta est eo­rundem Praelat. electio, quemadmodum & ceteri Prin­cipes seculares Imperii, tum Caesares qui de Religione bene merere volebant, sine Imperii tamen praejudicio coeperunt Episc. & Abbates, ob Religionem tanquam potiora Imperii membra, prae caeteris Laicis Princi­pibus honorare, profana ditione & ingentibus opi­bus honestare, Arces, Oppida, Ʋrbes, Marchias, Du­catus, Provincias, Pedagia, Telonia, Vectigalia, Por­taria, & multa alia quae Imperii propria erant, Epi­scopatibus concedere, quae vel ex suis propriis bonis quae ad Imperium pertinebant, vel ex alienis feudis erant. Nam Laicis Principibus sine legitimo haere­de mortuis, eorum Provincias, quae beneficiario jure ad Imperium pertinebant, non aliis ampliûs Laicis Regulis, sed Episcopis concedebat; atque hac ra­tione omnes Episcopatus & Abbatias Italiae, Gallia­rum, & Germaniae, imò totius Orbis Latini, & de­nique ipsum Pontificem Romanum, ex pauperibus ditissimos maximos Principes fecerunt, & ex eis scilicet quibus, quae antea Imperii juris erant, in nulla re propterea Imperialia jura minui existimantes; [Page 125] quippe quod certi essent eos omnes Praelatos a se de­signandos fore, & non nisi jussu suo, & voluntate Sacerdotia ipsa obtenturos.

Nicholaus Cusanus, lib. 3. de Concordia Catho­lica cap. 27. attributes this Policy to Otho Secun­dus, who saith he, Ʋnico gaudens filio & multis reg­nis, cogitans difficile fore absque maximo labore, tot regna in pace aliquamdiu servari posse, inse­quens vestiga Avi sui Henrici Primi, & Otto­nis Patris, suum cogitatum ad res ecclesiasticas ap­pulit, considerans multa jam Religiosis locis per prae­sentes Reges donata, summa pace gaudere, quia ve­recundum erat Deo dicatis vim inferre animo pon­deravit Ordinationem factam Synodo Romanae Ecclesiae, de qua 63. Dist. In Synodo. Per quam perpetua dabatur potestas Imperatoribus, & Roma­num Pontificem, & Cunctos sub Imperio Episco­pos investiendi, vel saltem eorum consensum sem­per concurrere debere celebrata Canonica Electione, ut 63. Distinct. NOS SANCTORƲM. Ʋnde hoc ponderans credidit, perpetuis temporibus Im­perio subjectis pacem dare posse, si temporalia Domi­nia, tam Romanae Ecclesiae, quam aliis adjunge­rentur, cum certi Servitii observatione, tunc enim cultus Divinus augmentaretur, & Religionem in magnam Reverentiam exaltandam credidit quan­do sanctissimi magnae potentiae aliis Principibus intermiscerentur: non posse tunc quosque voluntate in peccatis, uti nulla publica sperabat unquam peccata Captorum & depopulatorum, agrorum, & communem pacem turbantium, incendiariorum; [Page 126] & consimilium posse nutriri Ecclesiasticâ Sacrâ po­testate potenti & valenti resistente: etiam praedones, & pauperum oppressores, qui particulari regimini praeessent, sic corrigi posse affirmabat, ut sic absque Tyrannica Oppressione populus in Libertate vivere posset. Imperio etiam tranquillissimo non dubitabat hanc Ordinationem esse utilissimam, quando per annua servitia, & praestimonias quilibet Ecclesiae juxta quantitatem temporalium indictas Status Im­perialis manu teneretur, ac etiam multo major Imperii Potentia, ex hoc appareret quod illis omni­nibus Dominiis ita Ecclesiis traditis, nullus nisi per Imperium, & absque Successione percipi posset. Who is desirous of more to this purpose, may see Sigonius, de Regno Italiae.

Bishops were made Dukes and Counts in France, and also Peers in France; and about this time, out of the Princes, Dukes and Counts, the number of 12 were selected by the Kings of France, and erected into the Title of the 12 Peers of France: by which Dignity, they became the Chief Councellors, and Directors of State. These twelve being chosen, besides their being Peers in matters of Judgment, in the Old Parliaments, were Peers also in the ma­nagement of the whole Kingdom; and while their Greatness held, were therein so Power­ful, that they added a Taste of Aristocracy to that great Monarchy (not disagreable to the Title that our Peers assumed of being Pares Regis, and having a Power, Fraenum imponere [Page 127] Regi, as Bracton tells us; but he and his Law both are antiquated. Of these, six were Lay, and six were Ecclesiastical; but the Dignity of Pair, is supposed in these Bishops, not as they are Bishops; but as being Dukes and Counts also; that is, in the first three, viz. Rhemes, Laon, Langres, as Dukes, and of Bea­vois, Chalous, and Noyons, as Counts.

These twelve Peers of France had such a Power towards the Ancient Kings of France, as the Ephori of Sparta, and the Justiciaries of Arragon had towards their Kings. They were obliged to exercise that Power with Care, and they did exert it towards their Kings. What they did agreable to the Power assigned them in the Government, was lawful and just; nay, their bounden Duty. But certainly, the Ex­ercise of these Powers was against no Com­mand of God: For God makes no Govern­ment; nor obligeth us to obey any, but what are made by Men: The Government it self is its own Measure. It's no Objection against the Lawfulness of any Government, that it's incon­venient, if they like it notwithstanding, whose Government it is. But this Constitution was of advantage to Royal Families, in that it made a kind of Entail of the Crown upon their Families, and preserved the Monarchy and its Descent: And besides, had this farther Con­veniency, that it was under them impossible for a Nation, or Kingdom to be undone in a [Page 128] trice for a Caprice of the Prince, or destroyed to make a Fortune for some Up-start.

For the Sake of Mankind, it is to be earnest­ly desired and prayed, that such as they who derive no Honour from their Ancestors, may leave none to their Children, that themselves may survive their Honors, and leave nothing of their Fortunes to their Children, but what they themselves could deserve, viz. Hate and Infamy. All Usurpation and Encroachment of Power is to be opposed where it can be law­fully, as the greatest Mischief, and the Ministers to the Designs hated and detested as the most pernicious and loathsome Vermine.

CHHP. XV.

BUt to return, agreable to this Policy of Sovereign Princes, who had the Dona­tion of Bishopricks, of advancing Bishops to the highest secular Dignities and Trust.

William the Conqueror did create Bishops in­to Barons, and exacted the Services and Coun­sells of Barons in the Great Council of the King­dom, by putting their Lands under Tenure by Barony: he gave them no new Endowments; but as a Conqueror, he confirmed their Anci­ent Possessions, under a new reserv'd Tenure, and annex'd to their Order, a Secular Honor, [Page 129] a successive Baronage. Since the Conquerour the title of Baron took the place of that of Thane, which was likewise a Feudal Honour in the Sa­xons time. By William the Conquerour Baronies were feudal, and in congruity to the State of the Lay Nobles he made the Bishops feudal Ba­rons, for there was no other than feudal Nobili­ty at that time.

It will not be amiss, nor time mispent, here to give a short account of the Government in the Conquerours time, of the Baronage by him in­troduced, and the policy thereof, and of the change made in the Baronage of England in af­ter time. Because from thence we must derive the Bishops Right now in question, which is in­cluded and virtually contained in their Right of Baronage. Hereby it will appear, that the Bi­shops were of the Barones majores, and of the Barones majores the first in Dignity, that they became feudal Barons in the Conquerour's time, and when the reason of our Baronage changed, and no man continued a Baron ratione tenurae, it cannot with reason be said, that the Bishops are Barons onely for the sake of their Lands, which our Adversaries do insist upon, for that they think it is an abatement to the Honour of Peer­age, and a prejudice to their Right in question: but because it has been said before by men of Au­thority in the Law, and grown up to be a vulgar error, we will now discharge the mistake, by affixing here the History and Reason of the change.

It was the policy of the first William, (for some are so critical they will not call him Con­querour) to create new Tenures upon all the great Possessions of the Realm, and impose up­on the principal men to hold their Lands of him in capite, under such Services that were necessary in peace and war for State and Justice, and by putting all the considerable men of the Realm under Oaths of Fealty incident to those Te­nures, besides the Oaths of Allegeance, he pro­vided for the establishment of his Conquest, or his possession of the Crown without title. The principal men of the Realm, both Ecclesiastical and Lay, hereby were not onely obliged to sup­port, but to become part of the Government, and were obliged to be Ministers of Justice, and also Members of the great Council of the King­dom or Parliament, which was now to be made up principally of his Dependents; by which he changed the constitution of the great Council in the Saxons times, & in the balance of that equal sort of Government, the consequent mischiefs whereof this Kingdom laboured under, untill we recovered it again by an equal representative of the Commons in Parliament, in the time of King Henry the Third. The power of the Ba­ronage proved equally oppressive to the peo­ple, and came in that time to be reduced irre­verent to the Crown. By this policy the Con­querour intended to establish his Conquest, to secure to himself, and his posterity, the Imperial [Page 131] Crown of England, imagining, that otherwise he should have been but a precarious King.

He had now turn'd the Kingdom upon the matter, into one great Mannor, and kept his Courts, called, the Curia Regis, in the nature of a Sovereign Court Baron; now become more frequented and solemn, than that Court was before the Conquest, thrice in every Year, at stated Times, and Places, viz. at Easter, at Win­chester, at Whitsuntide, at Westminster, and at Christmas, at Gloucester: at these times and pla­ces, all his Tenants, which were all the consi­derable Free-holders of England, attended of course; and upon a General Summons at any other time or place appointed by the King, as his Affairs did require, they were bound like­wise to attend.

In these Courts the Suitors swore Feal­ty, did renew and confirm their Obligations to the Crown, and the King became more assured of their Allegiance, by their Personal Atten­dance, and by his Royal Entertainments of them at such times.

In these Courts they recognized their own Services, and the Rights of the King, their Lord, and assessed Aids and Estuage, Prestati­ons due to the Crown, by their Tenures upon themselves, to which in general they were ob­liged by their Tenures. In these Conventions the Right of the Suitors, the King's Tenants were adjudged, as Private Lords had Judg­ment [Page 132] of the Right of Lands, in pretence held of them in Fee, in their several Manors, as they have to this day. But if Right was not done by the Lord, the Cause was to be remo­ved to this Curia Regis, the King being Lord Paramount, of whom all Estates, mediately, or immediately were held: Which appears by the Form of the Writ of Right now in use, which we will transcribe, N. B. precipimus tibi quod sine dilatione plenum Rectum teneas A. de B. de uno Messuagio L. in I, quae clamat tenere de te per liberum Servitium unius denarii per annum pro omni servitio, quod W. de T. ei deforciat; & ni­si feceris Vicecomes faciatne amplius inde Clamorem audiamus pro defectu Recti. The Common Pleas was not then a Court, and at this time the Ap­peal and resort to the King, was in this Court, if Justice was not done by the Lord or Sheriff. So that the greatest part of the Justice of the Nation was administred in those Assemblies.

But it must not be understood, that this vast Convention was a Court of Judicature for every Cause; neither, that it was formally a Parliament, without some farther Act of the King, for ere­cting that Convention into the great Council of the Nation.

But in this Curia Regis, they were obliged to answer the King's Writs of Summons, Writs of Commission, and obey his Appointments in the Ordinary Administration of Justice, in which the Capitalis Justiciarius, or Justitia was to preside.

That this was not a Judicature, the vast num­bers of those that made it, the inequality of the Persons considered under the Common Reason of being Tenants in Capite, and Barons, where­by they became indifferently members of the Curia Regis, besides the neglect that must ne­cessarily be presumed in the greatest part of such a Body, to the business of Jurisdiction and judg­ing of Rights, without particular Designation thereto, do sufficiently argue and evince. But as many of them as were most proper to judge, or assist in the Judgment, as the Case did require, were appointed by the King, or his Capitalis Justiciarius. And that it was so in Fact, ap­pears by that Famous Cause, wherein Arch-bi­shop Lanfranck, recovered against Odo, Bishop of Baieux, Earl of Kent. Eadmerus Hist. Nov. l. 1. f. 9. tells us, That there was Principum Conventus, an Assembly of Barons at Pinneden in Kent; and that the Kings Precept was, Rex quatenus aduna­tis primoribus & probis viris, non solum de Comitatu Cantiae, sed de aliis Comitatibus Angliae, Querele Lanfranci in medium ducerentur, examinarentur, & determinarentur; disposito itaque (saith he) principum Conventus apud Pinneden, Gaufri­dus Episcopus Constantiensis, vir ea tempestate praedives in Anglia Vice Regis (for Odo, Bishop of Baieux, one of the Litigants, was at that time the Justiciarius Angliae) justitiam de suis querelis strenuissimè, jussus, fecit; where we see Godfrey, at the King's Precept, took so many Barons of [Page 134] that Country, or of any other, where any of the Lands lay as Assistants to him: For our Hi­storian saith, that Lanfranck, (though Godfred pronounced the Judgment) did recover judicio Baronum qui placita tenuerunt. The probi homi­nes were such, by whom the truth of the matter might be better understood, and did probably enquire of it, who did accord and agree the Judgment to be right. Lanfranc did recover ex communi omnium astipulatione & judicio, as our Historian also informs us. I might cite many more Records of the Method of the Admini­stration of Justice in this Curia Regis; but I should be too long in this matter, not being strictly necessary to the Question in hand, though the understanding of the Nature of this Court, and the Constitution of the Government at this time, will many ways inserve to the clearing the Right thereof.

In this Court Peers were tryed, all Pleas of the Crown heard; and whatever is now the Business of the Courts of Common Pleas and Exchequer, was dispatch'd in this Curia Regis. Here Fines were levyed, as appears by a Re­cord furnished to us, by Sir Hen. Spelman, in his Gloss. f. 279. the word Fines. There men famous for their Skill in the Law, did attend, and by this Judicature, some place was assigned them, where they were to hear such Causes as were referred and sent down to them and it is ve­ry possible, that Fines may be levyed, i. e. Con­cord [Page 135] made of the thing in pretence, that was referred to them; and it may be true, that in a Charter of a Grant of Conusance of Causes, Words may be conteined for excluding the Intromissions of the Justices of the one Bench, and the other: For such Charters never want words. These matters are produced by Sir Ed­ward Coke, in his Preface to the Eighth Report, to prove that the Common Pleas was a Court before the Magna Charta of King John; for that these matters are in time before that Char­ter; but these Justices were no other than Mi­nisters to the Curia Regis: They were not such Justices as now make that Court, all Common Pleas being now appropriated to their Judica­ture: For the Writs, before that Charter, were returnable, coram me, vel Justitia mea, Glan­vil. l. 1. cap 6. but after that Charter, they were returnable, coram Justiciariis meis apud Westmonasterium. Bracton. l. 2. cap. 32. But be­fore this, all Common Pleas were adjudged in the Curia Regis, and that Court did send down the Cause to such as did attend that Court, to receive its References. By Magna Char­ta, cap. 11. it was provided, Communia placita non sequantur Curiam nostram, sed teneantur in ali­quo certo loco: And now Writs were made re­turnable there, the Common Pleas were taken out of the Jurisdiction of the Curia Regis, one Judicature was appointed for all Causes between the Subjects, and one place of [Page 136] Attendance for Litigants. By this Provision, Justice was administred without Noise and Tu­mult; the Administration of it committed to men of Skill; and to such who might be an­swerable for their Judgments, and from whom it might be appealed.

But after Magna Charta, made by King John, and confirmed by H. 3, 9. the Authority con­tinued of the Justitia, or capitalis Justiciarius: to him was the resort for Writs, from whence all Judicial Authority was still derived: He did direct and bound the Justice of the Court of Common Pleas, by such Formula's as were allowed in the Curia Regis, where the Chancel­lor, and his Colledge of Clerks did attend for the forming of Writs, according to the nature of the Complaint, with the Allowance of that Court; but the Authority of this Court ceas­ing, and the Office of this great Justiciary, a­bout the end of H. 3. we find in the Statutes of Glouc. 6 E. 1. c. 7. Laws for a Writ of Entry to be granted to the Reversioner, where Tenant in Dower, Aliens in Fee, though her Alienati­on was a Forfeiture of that Estate at Common Law: But it seems there had been no such Writ yet formed; and the Chancellor had no such Power of forming a new Writ. That Sta­tute provides, that in that Case, there shall be a Writ of Entry thereof made in Chancery, which is called, A Writ of Entry in casu pro­viso.

And for that Power might not be wanting in the Chancellor to issue out new Writs where no Writs before formed were fitted to the Case; So that Writs in Cases of like reason had been granted; by W. 2. cap. 24. it was provided, quo­tiescunque evenerit in Cancellaria quod in uno casu reperitur Breve, & in consimili casu cadente simi­li indigente remedio concordent Clerici de Cancel­laria in Brevi faciendo. Whereas in the full Authority of the Court of the Curia Regis, no Right could have failed of a Remedy: For Jura sunt matres Actionum. But Derivative Au­thorities, are always stricti Juris; no Rights are now remediable, but where they are in a Parity of Reason, or Analogy with such Rights as had received relief in the time of that Great and Original Judicature.

So inconvenient are those Reformations, that reform by pulling down: Want of Authority to do Right, is a greater Fault in Government, than the allowance of a Power that may be a­bused to Wrong and Oppression: But this is the true reason why we have so many Causes irremediable at Common Law, petitioning for relief at this day in our Court of Chance­ry; though, if the Statute of Westm. 2. before­mentioned, were well improved, the Defects of our Law would not be so shameful and no­torious.

By what hath been said, it appears, that the Common Pleas was not an Original Court, or [Page 138] a Court of ordinary Jurisdiction in the First Constitution of the Government; and such it remains and continues to this time: For that Court cannot proceed to Judgment in any Cause, without an Original Writ out of Chan­cery, though a late Statute makes their Judg­ments good, without an Original upon a Ver­dict. If the Causes that are properly now of the cognisance of that Court of Common Pleas, had been allotted to that Court Originally, when the distribution of Administration of Ju­stice was made in the Constitution of the Go­vernment, that Court, by its proper Authori­ty, and its own Process, would have done Ju­stice to all its Suitors, without first expecting a Writ out of Chancery, to bring the Cause be­fore them; or leaving any right without reme­dy to complain in Chancery of the defects of Justice in that Court.

But that Law of Magna Charta, cap. 11. be­fore-mentioned, which erected the Court of Common Pleas, fix'd the Judges, and appropri­ated civil Causes to their Judicature, no lon­ger now ambulatory, was the first step that was made to reduce the Court of Barons, called, Curia Domini Regis, in which the Capitalis Justiciarius did preside; Yet still this Court continued a Court of Pleas of the Crown and Appeals, and for those that had the Priviledge of that Court, as Officers, Dependents, Suitors, as ap­pears by Bracton, l. 3. cap. 7. Rex habet unam [Page 139] propriam Curiam sicut Aulam Regiam, & Justitia­rios Capitales, qui proprias causas Regias terminant & aliorum omnium per querelam, (i. e. Appeal) vel per privilegium seu libertatem. This Sir Edward Coke imagines is meant of the Kings Bench, but that must be a mistake, for sicut Aula Regia is not competent to that Court as now, the Capi­tales Justitiarii were not the Chief Justices we now have: For the Office of the Capitalis Ju­stitiarius did yet continue. But then that which follows in Bracton, the description of the Ju­stices of the Court he before spake of puts the matter out of doubt; Item (saith he) Justitiari­orum quidam sunt capitales, generales, perpetui, & majores, à latere Regis residentes; which terms are agreeable to none but the Barons.

But this sort of Judicature was not fit for con­tinuance, and the Barons were to be reduced, they were dismist of this Jurisdiction about the time that change was made, in reference to them in the Parliament; for as long as they continued in their numbers and power so great as they were; both Courts and Parliaments were trou­bled with tumultuous heaps of people, brought thither by the Barons to countenance their pre­tences, of which who will may see enough in Ead­merus. And this reducement was (I doubt not) a­bout the end of the Reign of H. 3. when the first Writs were issued to chuse Knights of the Shire. Philip Basset was the last of these Capitales Justi­tiarii; Sir Henry Spelmans Glossary p. 415. And [Page 140] then the Court of Kings Bench came to have such Judges as at this day, ad obitum H. 3. 1272. Summorum Angliae Justitiariorum authoritas cessa­rit, postea Capitales Justitiarii ad placita coram Re­ge tenenda appellati sunt, saith an ancient Anony­mous Author quoted by Sir Hen. Spelman, Glossa­ry 406.

That ancient Style of Capitalis Justitiarius An­gliae is now allowed to the Chief Justice of the Kings Bench, though his legal Style is Capitalis Justitiarius ad placita coram Rege tenenda. 2 E. 1. Radulphus Hengham was made the first Chief Ju­stice of the Kings Bench, as Sir Henry Spelmans Glossary 416. But the Chief Justices of the Common Pleas were first made about the time of King John's Magna Charta, when that Court was fixed, as is before remembered. Sir Henry Spelman out of Florilegus tells us, Martin Pete­shus was Chief Justice of the Common Pleas, 1 H. 3.

Neither did E. 1. trust the Barons with the Government of his Revenue, as it was before the Capitalis Justic. and the power of the Barons was reduced; but he made Adam de Stratton a Clerk Chief Baron, but in what time of his Reign doth not appear.

But they continued after they were reduced from the business of the Kings Bench, and from that of the Court of Common Pleas, to have the Government of the Revenue, and making a Court of Exchequer. And they still continued [Page 141] the Exercise of their ancient ordinary Right, and judged Common Pleas in the Exchequer until the 28 E. 1. And then in the Statute called Articuli super Cartas cap. 4. it was enacted, That no Com­mon Pleas shall be henceforth held in the Ex­chequer, contrary to the form of the Great Char­ter. Their exercising their power lastly in that Court, may be the reason why the Judges of that Court are called Barons. Sir Henry Spel­man saith, he hath an uninterrupted Succession of the Barons of the Exchequer, from the sixth year of Edward the Second; by which it appears, that the present Constitution was established af­ter the Kings Bench and Common Pleas were made such as they now are.

But there was one Power and Authority that was inseparable from the Baronage, and that is the Tryal of Peers, the ancient Curia Regis con­tinues to this day to that purpose, as it must, no other provision being ever since made therein. This is the ancient Court of Peers, the Curia Regis when revived. The Power and Authori­ty of the ancient Capitalis Justitiarius is as often revived, as that Court is erected for Tryal; for Offices at Common Law can be no more nor less than the Law appointed. That he is called High Steward is no Objection to us, for so was the Capitalis Justitiarius called, and Justitiarius and Seneschallus are used one for another in the Language of those times; Sir Henry Spelmans Glossary 403. And this is the true reason, I hum­bly [Page 142] conceive, of that Tradition, that the High Steward by the Kings constituting him such, hath such mighty powers that are fit to be trusted with him, no longer than while he is busie about that piece of Justice for which he is appointed; and he is not to receive his Commission, but just at his entry upon the business of the Court, and not before. The power of this Capitalis Justiti­arius was the same with that of the Mair of the Palace in France, from whence the Conquerour brought this Office, which was the same or grea­ter with the Authority of the Praefectus Praetorio amongst the Romans.

It is a thing to be wished, that Gentlemen that apply themselves to the study of Antiqui­ties, that relate to our Laws and Government, would design to adorn and cultivate the present Laws, and to make out their reasonableness, ra­ther than to innovate upon us, by bringing back what is obsolete, rejected, and antiquated; and that they would contribute what they can to re­fine it from many absurd reasons that dishonour our Faculty, which are the best our Books afford even for some of the Regulae juris.

I shall instance onely in one or two of them: Why the Father cannot inherit the Lands of the Son, it is told us for a reason in our Books, that Terra est quid ponderosum, and will not ascend in the right line; whereas the true reason is this, the Lord that first granted the Fee neglected the Fa­ther, gave it to the Son and his Descendents, and [Page 143] to the Family he should derive from himself; and when this was alienated in Fee, the descent of it was directed agreeably to the manner and dire­ction of the first Collation. If the Father gave the Son the Estate, there was a Tenure created, of the Father, as there was in all Feofments of the Feoffer, before the Statute of Quia emptores ter­rarum; and it is a Rule in Law, that a man can­not be haeres & dominus; Stamford's Exposition of the Prerogative, chap. 5. fol. 23. B.

If before the Statute of Quia emptores, the eldest Son had enfeoffed the middlemost, to hold of him, and had taken his Homage; the middle­most dieth without Issue, the youngest should have had the Land, and not the eldest. How­beit if there were no youngest Son, or any other Heir, than the Feoffor might claim the Land again by Escheat, and not otherwise.

Another is this for a reason in our Law, why the Children of several venters shall not inherit each others Lands: it is told us, it is so because they are but of the half blood to one another, and therefore the Brother of the first venter shall not succeed to the State of the Brother by a second venter which dies without Issue, But the Land must descend to the Uncle, But this Uncle can be but of the half blood to the Nephew, and the very reason that is given for the Law makes the Law unreasonable. But the true rea­son why the Brothers of different venters cannot inherit each other, is a disallowance that our [Page 144] Ancestors, the Saxons, had of second Marriages, they, as most of the Germane Nations, esteem­ing them as concubinat, and at best, but as per­mitted Fornication: So Tacitus tells us, in his Book, de moribus Germanorum, that they did not allow of Second Marriages, Ne non maritum, sed matrimonium ament, non nuptam sed nuptias; and agreable to this Opinion, are descents go­verned in several Countries in Germany at this day.

This (tho' it is apt to excite all Gentlemen of the Robe, never to acquiesce in any reason of the Law that is not sence, which if they do, they will forfeit their Reason and Judgment) I should not have been so impertinent as to have mentioned in this Discourse; but that this deal­ing in Causes without the exercise of clear rea­son about them, hath brought it to pass, that much of our Law will not sort to Natural Rea­son and Justice; and this gave one great occa­sion to the Rise and Growth of the Court of Chancery. Since it came in my way, to shew the Original of the other Courts; and the Reader may wonder, that there is nothing in Antiquity, that gives Authority to so celebra­ted, and so busie a Court as this is at this day: I will here offer an account of the Rise and Growth of it; which will prepare the way for taking of it down, which is no less a Reproach, than it is a Grievance to the Nation.

There is nothing so great a Reproach to a Nation, than to have Laws that are confessed­ly not good and equal, to continue them; and yet to allow of an Authority to reproach them with Iniquity: that our Courts of Law should be under Rules and Obligations, to pronounce Judgments, which a single Gentleman shall au­thoritatively controul and condemn, as unrigh­teous; that Law and Equity should be Oppo­sites; That a Judgment must be made up, and formd in a Case, and what is equal, just and fit therein, must not be considered, though it can be, and will, in another Court have a judi­cial Consideration.

Our Judges at Law, take themselves bound, not to hear, or regard the Allegations of the Defendants against the Plaintiffs pretence, which ought in good reason to bar them therein; or, at least, qualifie the Judgments, when the same matter shall be heard in Chancery, and prevail either wholly to set aside, or to qualifie the same Judgments.

This is not only to be complain'd of as dero­gatory to the Reputation of the Wisdom of the Nation; but is insufferably oppressive to the Subject, by the multiplicity of Suits, tedi­ous and vexatious Delays: Nay, by this ill Contrivance, the Expences sometimes equal, sometimes exceed the Value of the Right, which is litigated, and which is worse, the Event of the Suit is very uncertain and fortuitous.

But this is not all; our Law, it seems, is not a Rule that extends it self to all Causes; and we have Rights confessedly, such, and which can be judicially remedied, to which the Com­mon Law extends no Relief: For a thousand Causes in a year, are for that reason heard in the Court of Chancery.

Two such Reproaches, no Nation but ours hath ever yet incurr'd or suffer'd: For Law and Equity is no where else opposed, and eve­ry Right hath his Remedy by the Law of the Country, but ours.

The first great occasion to the rise of the Chancery, was, Feoffments, made upon Trust, to uses in the time of our Warring about the Title of the Crown, to avoid Forfeitures. The Judges, in tenderness to the Condition and ne­cessity of those times, did judge, that an Use was no Right, though most certainly it is: For it is jus ad rem, that nothing might be forfeited when it depended upon chance whether a man should be a good Subject, or a Traitor. And the same consideration easily admitted of any Authority that would interpose to relieve a­gainst those who would abuse or deny such Trusts; and no body brought into question, that authority, by which a piece of justice, so necessary to the Nation, was administred.

Another great reason of the business of the Court of Chancery, is that which we before-mentioned, that we have not improv'd the [Page 147] Statute of Westm. 2 C. 24. And a third, is the ill conducting of our Laws: our Ancient Judges were infected with the Monkery of that time, men of no Learning, and of a vain Subtil­ty. The Theology of those times was insipid, and most trifling, and the Administration of Justice, agreably turned into a vain art of dis­puting the apices juris; and a subtilty was used, too fine for business, and to govern the affairs of Men that governed themselves by none of those Superfineries. They argued without Discourse, or discoursed from positive Rules or Presidents, which were almost the same with them as Rules of Law, and not from the true Merits of the Cause, and its own particu­lar reasons of Right.

And the Common Law, which is Lex non scripta, i. e. that which a wise Judicature should declare, upon the consideration of the present Case, was by the Proceedings of our Courts, turn'd into a Lex scripta, positive and inflexible; and the Rule of Justice could not accomodate it self to every Case, according to the Exigen­cy of Right and Justice.

But if it were consider'd, that there can be no Prescription against Justice, that no Presi­dents, where a Right hath not been relieved, can be pretended why it should not be assisted hereafter: And if a matter pleaded in Bar, up­on which the Defendant will be certainly re­lieved in Chancery, may, notwithstanding it [Page 148] hath not heretofore, be hereafter allowed in our Law-Courts, we should be in a great mea­sure restored to our easie, expedite, cheap, and certain Justice, which the Methods of our Com­mon Law-Courts hath most excellently provi­ded, until a Parliament, sometime, or other, may consider, whether it be not fit to take it quite down, by inabling Courts of Law, to do true Right in all Causes that shall come before them: For nothing renders the Chancery tole­rable, but the mo: exemplary Virtue, and Great Endowments of our present Lord Chan­cellor, in which he is not like to have a Succes­sor.

But to return to the Curia Regis, it was not only the great Judicature of the Nation formal­ly; but it was also materially our Parliament too.

That this Curia Regis was not without any more, the Parliament of these times, is evident: first, that the Curia Regis, was summoned by a general Writ of Summons, directed to the Sheriffs in this Form, viz. Rex Vicecomiti Nor­thamptoniae, &c. praecipimus tibi quod summone­ri facias Archiepiscopos, Episcopos, Comites, Baro­nes, Abbates, Priores, Milites, & Liberos homi­nes, qui de nobis tenent in Capite, &c. Rot. Claus. 26 H. 3 M. 7. Dorso. This must necessarily be this Curia Regis, in Distinction to a Parlia­ment.

For that in the Grand Charter of King John, made in the last year of his Reign, it was grant­ed, that Ad habendum Commune Concilium Regni, de auxilio assidendo, (aliter quàm in tribus praedi­ctis casibus; i. e. Those cases of Aid, to make the eldest Son a Knight to marry the eldest Daugh­ter, and of Ransom, and de Scutagiis assidendis) faciemus summoneri Archiepiscopos, Episcopos, Abba­tes, & Comites, & majores Barones Regni, sigillatim per Literas nostras. Et praeterea faciemus summo­neri in generali per Vicecomites & Ballivos nostros omnes alios, qui in capite tenent de nobis.

At present we make no other use of this Grand Charter, than to prove it a distinctive mark of a Parliament, where the Summons are personal to the Bishops, Earls, and the greater Barons. This Charter of King Johns declares the ancient usage of summoning the greater Barons, by spe­cial Summons to them severally directed; for that the Kings before him, as Sir Henry Spelman in his Glossary p. 80. Propter crebra bella & simulta­tes, quas aliquando habuêre cum his ipsis majoribus suis Baronibus, alios etiam eorum interdum omitte­rent, & aegrè hoc ferentes Proceres Johannem ade­gêre sub magno sigillo Angliae pacisci, ut Archiepisco­pos, Episcopos, Comites, & majores Barones Regni, sigillatim per Literas summoneri faceret. By which it was provided, that all the Barons should have pro more Summons to the Parliament, that non of those great Barons should want his several Summons, and they had anciently several Sum­mons, [Page 150] for in a general Summons no body was excluded. By which it doth appear that the Council at Northampton wherein Thomas of Bec­ket was brought in judgment, was a Parliament, and not the Curia Regis; for that the Bishops had their several Writs of Summons, which ap­pears in that Fitz Stephens tells us as matter of observation, that Thomas of Canterbury had not his Writ of Summons, but was cited as a Cri­minal to answer; which we before observed.

And this was but necessary, that when the Te­nents in capite, or Barons, which principally at least made the Parliament, were to be consulted about some arduous Affairs, that they should have notice and a solemn intimation thereof, and their presence required and enjoyned, by Writs to them particularly and personally directed.

Besides that, it was agreeable to all the forms of Government then in use, to have their ordi­nary and extraordinary Council. For, Omnes Germanicae Originis Reges atque Imperatores, du­plici Concilio antiquitùs utebantur, altero statario, qui Senatus dicitur ad res quotidianas, altero evoca­to, concilium aut conventus ordinum ad res momen­ti majoris; as Grotius assures us.

Neither can it be denied by any man of mo­desty, who hath heard any thing of the state of our Government before the Conquest, and that knows that many ancient Burroughs send Bur­gesses to Parliament by Prescription, and will consider the Records produced by Mr. Petit, in [Page 151] his very learned and elaborate Book called, The Ancient Right of the Commons of England, to prove the Right of ancient Burroughs to send Mem­bers to Parliament who represent them; but that such, though not Suiters to the Curia Regis, were Members de jure of the great Council of Parliament. But the truth is, they are not men­tioned in any Record or History of any Parlia­ment, from the beginning of the Conquerours Reign to the end of Henry 3. as a distinct part of the Parliament of England, their Numbers and Qualities were little and mean, of no con­sideration in comparison to that great Body of the Baronage that constituted our Parliaments in that time; but our Parliaments seem by the style used in Histories and Records, to be onely the Baronage of England. William the First in the fourth year of his Reign, Consilio Baronum suo­rum (saith Hoveden, pag. 343.) fecit summoneri per universos Consulatus Angliae, Anglos nobiles & sapi­entes, & sua lege eruditos, ut eorum & jura & consuetudines ab ipsis audiret. Those who were returned shewed what the Customs of the King­dom were; which with the assent of the same Barons were for the most part confirmed in that Assembly, which was a Parliament of that time saith Mr. Selden, Titles of Honour, pag. 701.

Amongst the Laws of Hen. 1. published by Mr. Abraham Whelock, cap. 2. I find thus; Fore­stas communi consensu Baronum in manu mea reti­nui, sicut pater meus eas habuit. And after, Lagam [Page 152] Regis Edwardi vobis reddo, cum illis emendationi­bus quibus pater meus emendavit consilio Baronum suorum. The Parliament is styled Commune Con­cilium gentis Anglorum; and at the same time, Commune Concilium Baronum; and also Clerus & Populus, Matth. Paris, fol. 52, 53, 54. And this is sometimes called Communitas, for that it repre­sents the whole people, and involves their con­sent. Which appears by 48 H. 3. Pars unica M. 8. D. Haec est forma pacis à Domino Rege, & Do­mino Edwardo filio suo, Praelatis & Proceribus omnibus, & Communitate Regni Angliae, commu­niter & concorditer approbata. And that Commu­nitas Regni hath no other sense than commune concilium Regni, and used as a comprehensive term of them that made it, is evident; for that it is said in the second Record, Si videntur com­munitati Praelatorum & Baronum. And again, Per consilium communitatis Praelatorum & Baro­num. Further, Magnates & Ʋniversitas Regni, sometimes used for the Parliament, Matth Paris 659,666. And after King John's Charter, where­in it was established, that those that were not Ba­rones majores, qui tenent de nobis in capite, should be generally summoned. It is observable, that the Barones minores are so mentioned, as if the name of Barons were not to belong to them. Agree­able thereto is that we have mentioned in the style of our Parliaments, of Milites liberè tenen­tes, & alii fideles, and are all involved in this general, Et universi de Baronagio Regni Angliae. [Page 153] Several Instances of this are in Mr. Petyt, afore­mentioned, p. 111, 112, 113, 114, 115, 116. besides that, many Instances of the like Stile of Parliaments in those times are obvious.

That our Parliaments in those times were thus constituted, is so clear, that it cannot be dis­sembled: But I do not deny, but upon a change in the Succession to the Crown, there might have been in this time extraordinary Conventi­ons of the People, to declare their Universal Assent, for better assuring such Successor, dis­countenancing the Rival Prince, and preserv­ing the Peace; as in the Case of William the Second, Henry the first, King Stephen, and King John, which hath been usual in other Countreys, in mighty Distresses of State; such were in use amongst the Jews. Josephus calls such an Assembly, [...]. Grotius, in his Annot. p. 200. rells us, Solitos fuisse Judae­os interdum in rebus ad summam Religionis, aut Imperii spectantibus advocare ad Synedrium quot­quot habere poterant tribuum primores, aliisve ho­noribus praeditos, ut quod constituerunt legis potius a populo probatae, quam Senatus consulti haberet auctoritatem. With the assent of such an Assem­bly as this; at least King John should only (if so) have made this Kingdom Tributary to the Pope; though I believe, what he did in it, he did without, and against the Assent of that Par­liament, in which he could only therefore offer to do it. He did no more effectivè, than of [Page 154] Right he could, which is nothing. That which was done, was without the Consent of his Bi­shops and Barons, as appears by a Letter of his to the Pope, in those words recited by Mr. Pe­tyt, in his mentioned Book, Cum Comites & Ba­rones Angliae, nobis devoti essent antequam Nos, & nostram Terram Domino vestro subjicere curas­semus, Extunc in Nos specialiter ob hoc sicut pub­licè dicunt violenter insurgunt. And by another Letter of his, to the Pope, recited, p. 163. Wherein he complains of the Bishops Disobe­dience on this Occasion; which I the rather take notice of, that the Cause of our Govern­ment might not be betrayed, by depending upon such weak Inferences as those, viz. that there was a House of Commons at that time, which did not consent to the vassallating of the Kingdom, by King John to the Pope: For that otherwise, it could have been validly done. And that, if our present House of Commons, in the same Form as it is now constituted, was not in Being ever after the Conquest, it is not therefore an Essential part of our Government: For if our Government must take its Fate up­on such Issues as these, I am sure we shall not long hold it. The greatest Truths are betray­ed by weak Proofs, and the clearest Right, sometimes lost, by putting it upon an uncertain or improbable Issue. This is certain, that what­ever thing of Government is introduced by the Consent of the Prince, and that Alteration as­sented [Page 155] to, and embraced, avowed and owned by every man of the Community, by Actions, and other open Declarations of a full Consent; and this continued for Centuries of Years; and in all that time, applauded, and found agreable to the Interest of the Prince and People, and the Old Government abolish'd and impractica­ble, the very matter of its ceasing; and it be­come a thing impossible, as well as not desire­able to restore it. I say, whatever Constituti­on is thus introduced and established, is as un­moveable as unalterable, (or no Government is) as if it had been ever so: For there can be no Government in this World that is eternal; how this Change came, we shall speak to by and by.

But for the sake of Truth, I must confess, that I have no reason to believe, that the Coun­ties, in all this time, had their Representatives in Parliament, by the formality of a Choice. But this is a great mistake, that the People can­not be represented, but by such as are from time to time chosen by them; when as every Government is the Representative of the Peo­ple, in what they are to be governed by it, and by their Consent to it in the first erecting there­of, they do trust their Governors with the Rule and Order of their Lives and Estates, for the Common-weal: For Government, as well as Law, is Republicae communis sponsio, to use Bra­cton's Words. I cannot easily tell which is more [Page 156] eligible for the assuring us of good Men in the Common Council of the Kingdom, whether the Choice, and Designation of a Person there­to by his Character, and a General Rule, or by the contingent Suffrages of the People: But they are, I am sure, as much our Representa­tives, who are appointed thereto by the Con­stitutions of the Government, embraced and consented to by the People, as those are, whom the People nominate for that purpose. I know no reason therefore why any should think, that nothing is stable in our Government, but what hath been ever so, and in the same Form; or that any man should be so affrighted with the Objection (as if it made our Government shake, which some slight Antiquaries, for little Learn­ing in Antiquity will serve for that purpose) That our Parliament was not at all times such it is at this day. It sufficeth to me that it was always materially the same. When the Con­queror did innovate his Tenures in Capite, and made all men of great Estates, Barons; and by their Tenures and Estates, Members of Par­liament, we had then such Laws, quas vulgus elegerit; and then we had materially our three Estates, though not so well sized and sorted as since. I thought fit to say this, for the prevent­ing the World's being troubled with such Im­pertinent Labors, and to divert those that thus employ themselves to undertakings more useful to the Publick, and advantageous to themselves.

We had then (I say) many great Freeholders in every County, that by their Tenures were Members of Parliament, whereas now we have but two; and though the People did not chuse them, yet the men of that Order seem chosen once for all interpretatively, by the People in their consent to the Government; and they might be reasonably presumed to be faithful to the Commonweal, from their own great Con­cernments therein. In this Constitution scarce any man that was fit to be chosen, but was with­out the Peoples choice a Member of Parliament; as now they have more who are fit to be chosen than they can chuse. So that the Barones mino­res were then instead of Knights of the Shire; and the Barones majores Bishops and Earls did then as now make the Parliament.

Besides the Barones majores and minores, there was at this time a distinction between the Baro­nes Regis and Barones Regni, which I will here explain, to prevent any mistake that may grow thereupon, The Barones Regni were Barons by Tenure, and made part of the Government by the Constitution of the first William; and so in process of time called Barones Regni, because they had by continuance of that Constitution ac­quired a fixed right to that Honour. But be­cause of the frequent Wars between the Barons and the Kings at that time, they did omit to summon some who were Barons by Tenure, and now duly called Barones Regni to Parliament, [Page 158] and called others to Parliament that had no right to be called ratione tenurae, and these they called Barones Regis. This was ill taken by the Lords, and was one of the occasions of their War with King John; upon which they did ob­tain his Charter for remedy as followeth; Baro­nes majores Regni sigillatim summoniri faceret. The truth of this as to the fact will appear by the Histories of those times; and that this is the reason of that distinction of Barones Regis and Barones Regni, doth appear by the recited Char­ter of King John, where the majores Barones are called Barones Regni; for the Barons were more concerned for the losing of their Honours, than they were at the communication of the like Ho­nours to others, and with reason; though all Honours are lessened by the numbers of those participate of them.

The inconveniences and mischiefs of this Con­stitution were very great and very sensible, by making the Government consist of one Order; there was no third to moderate and hold the ba­lance. The Honour of the great Nobility was lessened, by an Equality of Suffrage in the great Council of the Kingdom, yielded to the Tenents in capite, and were not so concerned to support the Dignity of the Crown for the maintaining their own, which in that Constitution could not be great. It had the faults of either House, and the virtues of neither: they pressed hard upon the King, and were uneasie and oppressive to the [Page 159] People: they were not reverent of the Crown, nor tender of common right. The great Char­ter provides against the Oppressions of great men, as it doth for bounding the Prerogative. Our mixt Monarchy was out of tune, by the Aristocratical Power of the Baronage, now be­come too excessive by the policy of the Con­querour, by advancing too great numbers to that Dignity, too great to depend upon the Crown, or to be govern'd by it unassisted. That which the first William intended and designed for the establishment of his Conquest, and of the Peace of the Kingdom, made it very easie to afflict bad Princes. But by several steps we re­covered, being taught and instructed to it by our Experience, and the sufferance of great Ca­lamities, such a Representative, that might most certainly effect what in all Ages was intended and designed, that nothing should be Law or ci­villy just, but what the People assent to, by which their Persons and Rights are secured and defended, which is the sole end of Government.

But evident it is, that this more equal & clear re­presentative, which we now enjoy in our House of Commons, grew upon the reducement of the excessive number of Barons, so great that it made them a Tumult rather than an Assembly, and for the reducement of the power of the greater Ba­rons: for in the Parliament of 49 H. 3. when but 25 Lay Barons were summoned, tho' in the 41 year of his Reign he numbered 250 great Baronies in [Page 160] England, we find Writs for electing to a Parlia­ment at London, two Knights, Citizens, and Burgesses, and Barons for the Cinque-Ports: before that time, none were found, nor any Foot-steps of Right for the Counties sending Knights to Parliament; though there is a clear Right appears for the Burroughs to send Bur­gesses; which we shall speak to afterwards.

It will not be impertinent, here to add, that the Government of Scotland, which runs paral­lel almost to our English Government, found it inconvenient, that all the Tenants in Capite should resort to their Parliaments; and there­fore, they were reduc'd in this manner; viz. their Barones Minores, or Tenants in Capite, in every County, choose two of ther own num­ber to Parliaments; which, at this day, they call the Barons for Counties: whereas, all our Free-holders choose their Knights of the Shire; and our Elections are not restrained to Tenants in Capite. And this made it more reasonable for our Representatives of Shires (together with the Burgesses) to become, in process of time, a distinct Lower House; whereas, their Barons of Shires set together with the Lords, and vote in Common with them. The Knights of the Shire, which made the principal part of the Re­presentative of the Commons, having no Rela­tion to the House of Peers, or the Baronage of England; because, chosen by all the Feee-hol­ders indifferently, though not Tenants in Capite.

But to return to our History that deduceth the Change of our Government. That some great matters for publick Good and Establish­ment of the peace of the King and Kingdom, was treated of in this Parliament, (they did to be sure establish this new Form of a Parliament) will appear by a Form of a Writ of Summons, to the Bishop of Durham, to that Parliament; which I will here transcribe. Henricus Dei gratia, Rex Angliae, Dominus Hiberniae, & Dux Aquitaniae, venerabili in Christo patri R. Episcopo Dunelmensi salutem. Cum post gravia turbationum discriminia dudum habita in Regno Nostro, Charis­simus filius Edwardus primogenitus noster, pro pace in regno nostro assecuranda, & firmanda obses tra­ditus extitisset & jam sedata (benedictus Deus) turbatione praedicta super deliberatione ejusdem salu­briter providenda & plena securitate, & tranquilli­tate pacis ad honorem Dei, & utilitate totius Regni nostri firmanda, & totaliter complenda ac super quibusdam aliis Regni nostri negotiis, quae sine Con­silio vestro, & aliorum Praelatorum, & magnatum nostrorum nolumus expediri, cum eisdem tractatum habere nos oportet; vobis mandamus, Rogantes in fide & dilectione quibus nobis tenemini, quod omni oc­casione postposita, & negotiis aliis praetermissis sitis ad nos Londiniis in octabis Sancti Hilarii proxi­mo futuris, nobiscum & cum praedictis Prelatis, & magnatibus nostris, quos ibidem vocari secimus su­per praemissis tractaturis, & consilium impensuris, & hoc sicut nos & honorem nostrum, & vestrum, [Page 162] necnon & communem Regni nostri tranquillitatem diligitis, nullatenus omittatis Dors. Claus. 49 H. 3. M. 11. in Scedulae.

I strongly incline to believe, That this King did call in the Commons by their representatives, (the Barones Minores being discharged) to mo­derate between him and his Barons, which be­came after (to be sure, however it was before) the standing Representative of the people. Something 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 [Page 163] 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 [Page 164] 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 [Page 166] 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 [Page 167] 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 Summons to Parliament, and the Stile of Barons, it was less difficult for those Great Barons, to procure a Law to exclude the rest wholly from having a­ny Right to sit in the Parliaments under the name of Tenant in Chief only. And to this purpose, doubtless, saith Mr. Selden, some Law was afterwards made, that none should come to Parliament, as a Baron, (that is, by vertue of his Tenure) but such as should have several Writs of Summons directed to them; in which number, not only all those of the Ancient and Greater Barons were comprehended; but others to whom Writs should be directed; which is in effect, that no Tenure should any longer make a Baron of the Kingdom; but that the Writ of Summons only should make a Baron.

It is not improbable for the reasons afore­mentioned, that such Law was made the 49 H. 3. and farther, for that we find, that the Abbot of Leicester, in the 26 E. 3. was discharged from being summoned to Parliament amongst other reasons, that he was not summoned to Parlia­ment before 49th. year of H. 3. and after that Interpotalis vicibus; as if part of the Constituti­on had been that those of the Ecclesiasticks, who at that time were accounted the Barones Majores; so declared by having Writs of Sum­mons [Page 168] to Parliament, should have Writs of Sum­mons to Parliament, thence after in Successi­on: And herewith agreeth Mr. Cambden. Brit. fo. Henricus tertius ex tantâ multitudine quae sedi­tiosa & turbulenta fuit, optimos quosque rescripto ad Comitia Parliamentaria evocaverit, ille enim (ex satis antiquo scriptore loquor) post magnas per­turbationes, & enormes vexationes, inter ipsum Regem & Simonem de Montfort, & alios Baro­nes, motas & sopitas? statuit & ordinavit quod om­nes illi Comites & Barones Regni Angliae quibus ip­se Rex dignatus est brevia summonitionum dirige­re venierent ad Parliamentum.

CHAP. XVI.

SO that it appears clearly, that the Feudal Ba­ronies about this time were quite discharg­ed so far, that no man by a feudal Barony had any Right to sit in Parliament; and those that were feudal Barons before this time, by the Alie­nation of their Baronies afterwards did not cease to be Barons: But for that the Majores Barones, and such as had then Writs of Summons, and were appointed to make the House of Lords for after time, were then Barons by Tenure: It continued an Opinion some time, that no man was bound to answer such Writs of Sum­mons; but those that were bound thereto by [Page 169] their Tenures; thence it was, that after this Constitution, many that were feudal Barons be­fore, have taken a Liberty to entail their Ba­ronies with the Lands that were held per Baro­niam, upon the Heirs Males, whereby the Heirs general, or next Heir Female were excluded; and an Heir of the half Blood hath enjoyed the Honor with the Lands by vertue of the Entail. We will trouble the Reader with one Instance of this kind; and that is as late as Q. E. Wil­liam Lord Paget of Beaudesert, entailed the Ba­ronies of Longdon and Haywood, by Fine, which descended to Henry his Son and Heir, who had Elizabeth, his Daughter and Heir died, 11 Eliz. after whose Death, Thomas, Brother, and Heir Male of Henry, entered into the Baronies afore­said, and was summoned to Parliament. This was allowable, because the Honor of the Name and Family was thereby better supported, and the Office of a Baron continued in the Family; and the Duty of it better performed by such direction of the Descent.

And we do also observe, that after the rea­son of being a Baron from Tenure did cease, the following times kept the Old Form of Speech, & tenere per Baroniam, was used com­monly to denote a man a Baron.

That the Law is as we have said, appears for that an Issue at Law, whether Baron, or not, ought to be tried by the Parliament Records of his Summons and Session there as a Baron, [Page 170] and not by the Records of the Exchequer to prove the Tenure. I will not therefore trouble the Reader with what is reported to us in our Year-books, nor my self in reconciling the seeming disagreements there about this matter, onely thus, that the Judges have sometimes spo­ken cum vulgo, and not agreeable to the true notion of the Law, and that they did not judge according to Law in the case of Thomas de Fur­nival. But, the Barons being anciently first so by Tenure did so stick with the Judges, that they allowed Thomas de Furnivals Plea, that he did not hold per Baroniam, to discharge him from being a Baron, though he had been summoned as a Baron, and sate in several Parliaments as such. But of this more hereafter.

For that which now made Parliamentary Ba­rons was, the receiving of a Writ of Summons to Parliament. Before the 49 H. 3. The Bishops were of the number of those that were majores Barones, and had Writs of Summons to Parlia­ment among the rest of the great men, before the making of the Law aforesaid; and they by this new Constitution became Barons for them and their Successors, not by Tenure any longer no more than the great Lay Barons, but by vir­tue of the Writ of Summons, and by the afore remember'd Constitution and Law made some time about the 49 H. 3.

And though the Lands of the Bishops in the time of the Conquerour, which were put un­der [Page 171] that Tenure, be alienated or exchanged as they might have been, I am sure if they are not before the Statute of Queen Elizabeth put a re­straint upon them, yet the Succession of the Bi­shops to their Baronies remains.

It is a question I know, whether a Bi­shop can demand his Writ to Parliament, before the restitution of the Temporalities, upon his Consecration: there are valuable Opinions on both sides; but if the restitution of the Tem­poralities must be first made, it is I conceive up­on no other reason, than that he is not complete­ly Bishop before that is done, no more than a Rector is a complete Rector after Institution be­fore Induction be made; though he ought (I conceive) to have his Writ upon Consecration, because upon vacancy of the See, the Guardian of the Spiritualities used anciently to have a Writ of Summons to Parliaments; as Diocesans themselves.

And now the Baronage Secular is affixed to Families, and the Spiritual Baronage to the Of­fice and Succession. And now Birth designs the Temporal Baron, and Consecration of the Bi­shop designs the Spiritual Baron; nay single Ele­ction without Confirmation or Consecration. If elected onely, they were summoned to Parlia­ment by the addition of Electi; if confirmed and not consecrated, then they are in the Writ of Summons styled Electi & Confirmati. And Mr. Selden further tells us, that there never was [Page 172] any that had the Title of a Bishop in England, and of the Kings Creation since the Normans, but was a Baron of Parliament; and though the Regular Barons, and such of them who had Writs were discharged upon their Prayer, and omitted to be 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, Ʋt 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, [Page 175] 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 [Page 176] 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 [Page 177] 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. [Page 178] 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: ‘[Page 179]Praelati, Proceres, missisque Potentibus Ʋrbes.’

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. [Page 180] 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, [Page 181] 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, [Page 182] are the King, the Lords Spiritual and Tempo­ral, and the Commons: But this is the first time, that an Address of a House of Com­mons, was so nicely considered: And that the Form and Letter of it should be the measure of Law and of the Government. There was also a phantastick Letter, written by Stephen Gardi­ner, printed it seems in the Book of Martyrs, wherein that Bishop talks of three States, in which he must needs reckon the King for one: For he could not leave him out of the Govern­ment; and he had no more Christian Graces than Faith, Hope and Charity, which he attri­butes to this Ternary of States of his own ma­king. But if he had four of those Graces, there had been four States, if six of those Graces, to have match'd them in number, he would have found three States in the House of Commons, viz. Knights, Citizens and Burgesses, and have made six States.

It seems too, King James made a Speech in Parliament, wherein he was pleased to use his Logick; and liked, it seems, the Ramistical way of Dichotomies. The truth is, he had more Lo­gick than a wise King could tell how to bestow. For in that Speech, he saith, The Parliament is composed of a Head and a Body, himself and the Parliament. This Body is sub-divided into two parts, the upper House, and the lower House. The upper House into two, Lords Spi­ritual and Temporal; the lower House into [Page 183] 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 'twas 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 [Page 184] 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 'tis 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 [Page 185] 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 [Page 186] 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. [Page 187] 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 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 [Page 188] 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, [Page 189] 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. [Page 190] 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. [Page 191] 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 [Page 193] 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.

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 [Page 194] 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, [Page 196] 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 [Page 198] 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 [Page 200] 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? 'Tis 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, [Page 201] 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 [Page 202] 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 afterwards sensible of the Injustice and Irregularity of their Proceed­ings, in judging and condemning Commoners; and for the avoiding of the like for time to come, an Act of Parliament was made which followeth, viz. El est assensu & accord per nostre Seigniour le Roy, & touts les gents en plein Parle­ment, per tant que les dits Peres come Judges du Parlement pristerint en le presence nostre Seigniour le Roy, a faire & a render les dits judgments passant du Roy, sur ascun de ceux que n'estoient pas leur Pe­res, & ce que encheson de murdre de Seignior Lige, & destruction de celuy que fu sipres de Sank Royal, & fits du Roy, que per les dits Peres, que ore sont ou les Peres que serront en temps aveniz ne soient, [Page 203] mes tenus ne charge a rendre judgments sur auter que sur lour peres ne ace fair mes eiont les peres de la terre poer eins de ceo pur tout Jours ore venu soient discharges & quietes & qui les avant dits judgments ore rendus ne soient ensample nen se­quence en temps avenir per quoi les dits peres puis­sent estre charges desore judges autres que lour peres contre la ley de la terre si autiel case deveigne, que Dieu defend. Rot. Parl. 4 E. 3. 11. 6.

This the Author of the grand Questi­on concerning the Judicature of the House of Peers, would have but an Order of the House, and no Act of Parliament, because it served his purpose to have it so; but for no other reason which he offers in that Book: but that it was an Act of Parliament, will appear by a Record, which my worthy Friend Mr. Petyt, a most In­dustrious and Sagacious Enquirer into the Re­cords of Elder Times, hath furnished to me, which is a Writ directed to the Barons of the Exchequer, wherein the afore-recited Record is mentioned, and called an Act of Parliament, viz. Rex Thes. & Baronibus suis de scaccariis salu­tem; mittimus nobis sub pede sigilli nostri quaedam Ju­dicia in Parliamento nostro apud Westm. nuper tent' per Comites, Barones, & alios Pares Regni, super Ro­gero de Mortuo Mari, & quosdam alios reddita, nec­non quondam Concordiam per nos & Pares praedict', necnon Communitatem Regni nostri in eodem Parl. to fact' super premissis mandamas quod Judicia & Concordiam praedict', in Scaccario nostro praedict' [Page 204] coram vobis legi & publicari, & ibid. seriatim, in Rotulari, & de caetero ibid. observari Fac'. Teste meipso apud Windsor. 15. die Februarii, Anno Reg­ni nostri quinti, adhuc Brevia directa Baronibus de termino, Sancti Hilar. anno 5 E. 3. R. 33. penes Rememor. Domini Regis in Scaccario.

To compleat our Argument, the Concordia appears now an Act of Parliament to the purpose, that the Lords should not give Judgment up­on others than their Peers; yet we find the Bi­shops afterwards judged in Parliament, and that in times near the making of this Act, when we may be allowed to presume they knew this Law (and besides the practice hath been conformable to the Law, since, as our Adversary confesseth) and particularly to mention no more, the Bishop of Norwich, in the 7 R. 2. And Thomas Arundel, Arch-bishop of Canterbury, 21 R. 2. both for Treason, were tryed in Parliament, by Peers; which Cases are before mentioned to another purpose.

There was likewise an Act of Parliament, made 13 E. 3. n. 7. that the Nobles of the Land should not be put to answer, but in open Parliament, by their Peers: but two years after that Act was repealed; otherwise we should not have since heard of Tryals of Bishops by common Ju­ries in Capital Causes. And when the Lay­peers can again procure and provide for them­selves such a Law, they will not, I hope, envy the Bishops, if they find them therein included.

CHAP. XIX.

BUt after all that hath been said, it will be yet necessary to advertise the Reader for informing and settling a true Judgment of the Right of the Cause, that in Questions of this Nature, we can only arrive to a moral Certain­ty, which is made by incomparably the great­est probability. That we cannot be answered, but by producing something, at least, equally probable to all the several parts of our Discourse that are to the question, if by any Objection they should render any one part of our Dis­course doubtful, they would do nothing, except they can do so to all the rest; which can be done only by offering something more probable. For when many probabilities are concurring to prove the same thing, they do not singly stand upon their own Credit; but they are all assist­ed by their Conjunction, and give Aids mutu­ally to support every one single probability. This is but necessary to be said, for that I see this Question will be kept up and defended, with Obstinacy, Passion, Interest, and unreaso­nable Contention.

And farther, that it is very undecent, that a question of this Greatness, concerning a mat­ter grave and important, should be endlesly [Page 206] vexed with trifling Objections of the Nequam ingeniosi. To prevent therefore the Caprice, Cap­tions, Cavillations, trifling Criticisms, forcing of a Grammatical Sence of Words, against their true and easie meaning, most agreable to the subject matter, to the occasion of speaking of them, and their probable intendment, and to the understanding of the Times when they were spoken. And that we may be no longer, or more troubled with their Opposings to that which is fairly probable, an imagination of some­thing barely possible, and which otherwise doth appear notoriously false. That Objections nei­ther from the loose Stile, especially of partial Historians, nor from Records of Matters dark and obscure, which leave us in doubt of their true meaning, and therefore can be no ground for Argument; nor from the various sence of words, which they make to stand for this or that, as it serves their turn. At which rate nothing will be certain, because few words have one single determinate Sence, may any longer continue the Subterfuge of a desperate Cause, and matter of endless Dispute. I appeal to the World, whether such like Objections de­serve an Answer, (for to some of these Topicks, whatever shall be produced by our Adversaries will be reduced:) And whether they are not rude and imperious to the Dignity of the Right in question, to draw it to a Tryal, by such mean and incompetent ways, and unjust mea­sures, [Page 207] as they are otherwise in the Management of this Question, to the persons of those that are concerned in it.

It is with passion to be resented, that so no­ble a Question should be tryed by such means, and incompetent ways of Probation, and by such unnatural measures, which can be endured by none but such, who have no measures of Right, but an agreableness to their own Pro­jects; and who are upon the search of Colors and Pretences, to change and alter our Govern­ment, or hurt it in a Vital part, and begin with the Bishops, to take down our Government.

CHAP. XX.

I Have farther this just Caution to add, for the warding of some other undue prejudices in the Consideration of this question, that our Government did not continue the same after, and before the Conquest; and that the Govern­ment upon the Conquest, hath received since many beneficial Alterations. That the Bishops Right must be considered in Analogy to those several Alterations, and in consequence, they ought not to be considered as Barons by Te­nure, when Tenure ceased to be the reason of Baronage. The contrary whereof, I find insi­sted upon, and made the reason, why Bishops [Page 206] [...] [Page 207] [...] [Page 208] must not be tried by Peers. And the same rea­son will serve to eject them out of the House at the Kings pleasure; because forsooth several Ba­rons by Tenure have been omitted in Summons to Parliament, and no Lay Baron now (they say) is summoned upon that score; but for that he is a Baron by Writ or by Patent, which makes a permanent Nobility in their Families.

But that which is now our Government, in what it differs from what it was anciently, as it is not less rightfully our Government because it was not ever such, so it deserves our greatest zele to defend it because it is much better.

Governments are (I am sure ours is) [...], form'd and fashioned and refined by long experience: they are not perfected as soon as made, they have their Infant state as well as Men. The elder and first times are the Child­hood of Government, and of the World; Anti­quitas seculi juventas mundi. It is egregious folly in any man, to attempt to reduce us back again to the rudeness of the first Ages, and to all the inconveniences that have been discharged and filed off insensibly by Experience and Wisdom the daughters of Time, in a long series of Ages. We neither eat, drink, nor cloath our selves, nor build after the manner of our Ancestours, but according to our improved Inventions.

It is time ill spent by some of the Antiquaries, to go about to refix the present established Go­vernment, by endeavouring to find out the Re­cords, wherein it appears to have been other, of which we have some published, and are threat­ned with more. But they will have no other effect (I hope) than to provoke us to give God thanks for the wisdom of our Forefathers, and that they have left us a Government much bet­ter than what they found, more just and peace­able, and better established for a lasting continu­ance: Though they perversly design it as an Ar­tifice to overturn the State, and to evacuate our most refined and wisest Constitutions. For that they can find something before then, they would note them to want Authority and Justice. We ought (say they) to have recourse to the primi­tive Laws of the State, which have been abo­lished by unjust Customs and Usurpations. This is a Game at which we are sure to lose all, no­thing will be found just in this Balance. And by these means some base Factors for Slavery are contriving the ruine of our Liberty: but this they will effect when they shall have persuaded us to suffer again all the incommodities and coursnesses of Life, which our Ancestors suffered because they were no better instructed: ‘Frugibus inventis ad glandes velle reverti.’

The great change that was made in the Ba­ronage of England which we have observed, was remedial and healthful. Its Goodness doth [Page 210] appear by the thorough Cure it made of our Disorders: for we have not since relaps'd into these Evils, from which we recover'd by that Change. It was Legal, and with full Consent of the whole Community: For it was introdu­ced without Noise, without Opposition or Di­spute; nay, without Observation: So that we hear not how it was done; but only perceive the Change. These are sure Signs, that we ar­rived by this Change, where our Government did at first design us; and that we were agre­able to this Alteration, to its first Intentions. That all Parties herein received their Satisfacti­ons, and found their Interest, that no body was aggrieved at it, neither did it raise Won­der in any man; it was every man's Desire and easie Expectation, which I believe are the true Reasons why this Change is not more re­mark'd in our Histories. But pity it is, that through the Injury of Time, and (what is rea­sonably suspected) the Iniquity of Corrupt Mi­nisters; that we want our Records of that time, which could not have fail'd, telling us, the whole Secret, by what means the In­ducements thereto, the Methods whereby, and the exact time when we made our Alterations in our Government, materially, and in its essen­tial parts always the same.

Of this our Records, if they had been pre­served to us intire, would have inform'd us; but alas, we have but a few Remains of them.

And of those that have arrived us, many are but References and Recitals in other Re­cords, not the Original Records themselves, by which the Original Records escaped an utter Oblivion against the Will of our Civil Expur­gatories.

But of such that remain, the most laudable Use of them, is, to give Authority to the pre­sent State of our Government; and we ought with good reason to interpret them in an agre­ableness to the present Establishment, because the Change we suffer'd, was easie and natural, ex Hercule pedem, to invert the Proverb: For it is easier to know what Foot will fit Hercu­les, than to fit an Hercules to a Foot given.

CHAP. XXI.

THough our Government hath always con­sisted of the same constituent parts; yet they have been ill sized, and proportioned and unduely placed, not well joyned or united, or so blended, that neither could perform their Offices or proper Functions.

The Baronage of England was an over-grown part, and did by its Excess and extravagant Bulk, disorder the whole Oeconomy of our Govern­ment, and became it self less useful. The Ho­nor [Page 212] of the Baronage was lessened to nothing by the Numbers thereof; they did not find themselves so much obliged, to support the Majesty of the King, for the Preservation of their own Grandeur, as our great Barons are in our present Constitution. The People were in some sort represented by them, as they were a great Body of the Chiefest Free-holders; but they had a power to oppress them, and they were not obliged by so strong a Tye, and plain Duty to a care of the People, because not cho­sen by them; and by that Choice, put under a more clear and strict Trust of taking care of their Rights. In this Constitution, neither King, Lords nor Commons had their Ends; and there­fore would not have the old Constitution revi­ved, if it were possible.

When the Representatives of the People, which make the House of Commons, were joyn­ed with the Lords, and sate in one House, they could not discharge that Office of a Represen­tative, so well, as since they are divided from them and make a distinct House. They could not well use that Freedom of Speech and De­bate, under the Observation of the great Lords, upon whom the Principal Gentlemen had great Dependencies. Their Consent was often very improperly such; for he only truly and natu­rally consents, who hath entire Freedom to dissent, Si vis scire an velim, effice ut possim nolle.

In the granting Aids for the Support of the Government, and Defence of the Kingdom, a Matter of the greatest Importance, the Clergy, Nobility, and Commons stood divided, and could not, as the Ancient Constitution was, by one Act of State, be regularly and propor­tionably taxed, according to the Exigency of the Affairs, and their respective Abilities; but those three Orders taxed themselves in such measures as they pleased, which made the King­dom Geryon-like, a Monster of three Bo­dies.

Their several Concessions, by this means, not likely to be always equal, and in the whole not competent to the instant necessity.

The Bishops, Abbots, and other Ecclesiasti­cal persons of the Saxons time, held their Lands free from all Secular Services; besides, Tri­noda Necessitas, viz. Expedition, i. e. Supply for War, pontium & arcium extructio. But King Ethelbald did grant, that the Ecclesiasticks should be freed from all publick Charges, except for the Building and Repairing of Castles and Bridges, Ingulphus, pag. 853. The like Immuni­ty was allowed to the Clergy of the Empire, by Honorius and Theodosius, Lib. 4. Cod. Just. de priv. Dom. Aug. By the Great Charter their Priviledges were confirmed. And for this rea­son the Clergy have taken themselves not of Right chargeable to Aids granted to the King by Parliament. This Exemption hath been en­vied [Page 214] to them, and made matter of Reproach, though unduely in after Ages. But notwith­standing this Exemption, they have aided the Crown with Supplies frequently; yet in such manner as asserted and saved their ancient Pri­viledge of being exempt, that is, they would not suffer themselves to be involved in a gene­ral Law; but of their own Freedom and Will, gave to the King; which Concessions were not­withstanding not legal, unless confirmed by Parliament, to whom belonged always the power of judging of the Freedom and Ends of giving Aids and Benevolences, and the necessi­ty that required them. But in the last Ages, they have, for their Commendation and Honor, waved their pretences of Priviledge and Ex­emption; and for the sake of Common Justice, and the Publick Weal, for avoiding, being thought less in their Duty to the Publick, than their Order required. And for the better ascer­taining, and more equally adjusting the Par­liamentary Aids, they have submitted to be tax­ed by Acts of Parliament.

The Commons in Parliament we find as late as Henry 7. taxing only the Commons, and that by Indenture between them and the King (This Form of Grant, is utterly exclusive of the Lords Power, to charge the quantum, times of Payment, or ways of Levying of the Aids granted) wherein they subject all Lands to the Levies thereof; but the Lands of the Lords in [Page 215] Parliament, or Land amortis'd to the Church. Such an Indenture was made in Parliament held at Westminster, 10 H. 7. and is pleaded at large in Rastals Entr. fol. 135. But of late our Govern­ment hath cleared it self from that grand incon­veniency.

The Commons in Parliament, and those whom they represent, being far the greatest Proprie­tors, they reasonably challenge it their Right, to propound all Aids, and appointing the Le­vies and Methods of raising them, which (be­cause it must be agreed, that the Commons in no congruity can tax the Lords authoritatively, or impose upon them) must have civilem intelle­ctum, that is, the Commons in a Bill of Aids do propound, that they will agree on the behalf of the Commonalty, that they shall be taxed as the Bill propounds, if the Lords for their part will agree the same.

CHAP. XXII.

NEither was our ancient Government with­out great faults and inconveniences in the conduct of Religion, the principal care of all Governments on the one side, by confounding Administrations, which should have been kept distinct; which was the fault of our Govern­ment in the Saxons time, and by utterly dis­joyning [Page 216] and severing the Church and State, and not tying the Ecclesiasticks to a just dependency upon the State, which was the Evil of after times; that is to say, the Ecclesiasticks were left to themselves to convene Councils, and to make Canons, without any dependence upon, or re­lation to Parliaments. The Constitution was such in the Saxons time, that the Synods or Councils which govern'd in Religious matters were the same, with their great Council or Par­liament: By these means all the Rules and Or­ders that were made in the matters of Religion were not Canons, which are of the nature of Councils, but Laws, and obliged those that con­travened them to temporal punishment. The Church was thereby turned into a Dynasty, and Religion was against its nature promoted by force, which can onely truly obtain by persuasi­on. And wheresoever this is in practice and use, the Clergy to the great scandal of their Office, will be entituled to all the Severities that shall be inflicted upon Dissenters. Heretofore the Coun­cils of the Church, and the Authority of the State, were unduly confounded.

After that we had Legatine Councils, and Provincials convened by the Archbishops as they pleased, not under the observation and controll of the Civil Power; by which many inconveniences were occasioned, many em­broilments of the people happened, the Autho­rity of the Prince lessened, and Civil Rights en­croached [Page 217] upon; the validity of several good Laws made in Parliament disputed, clamoured against, and sentenced as unlawful; for want of a due subservience and dependence of the Ec­clesiastical Conventions on Parliaments. We had Imperium in Imperio, or at least a Kingdom divi­ded against it self. This fault in our Govern­ment was help'd by Edward the Third, our Eng­lish Justinian; he in the several Writs of Sum­mons of the Bishops to Parliament, made it a settled Rule, that the clause of Praemunientes should be inserted, requiring them therein to warn respectively, Priorem & Capitulum Ecclesiae vestrae C. ac Archidiaconos, totúmque Clerum ve­strae Diocesis; quòd iidem Prior (which if a Ca­thedral is the same as a Dean) & Archidiaconi, to­túsque Clerus vestrae Diocesis, quòd iidem Prior & Archidiaconi in propriis personis suis, & dictum Ca­pitulum per unum, idámque Clerus per duos Procu­ratores idoneos, plenam ac sufficientem potestatem ab ipsis Capitulo & Clero habentes, praedictis die & loco personaliter intersint, ad consentiendum his quae tunc ibidem de communi concilio ipsius Regni nostri, Divinâ favente Clementiâ contigerit, ordinari. And accordingly the several Bishops, in obedience to such like Writs of Summons to Parliament to them directed, summoned or warned their Deans or Priors, Archdeacons, and the Clergy by their Proxies; which have since made the Convoca­tions, or the Ecclesiastical Council of the King­dom, and are to meet at every Session of Parlia­ment, [Page 218] 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 [Page 221] 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 [Page 222] 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.

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. [Page 223] 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, [Page 222] 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) to depend upon the Will of the Prince, nor of Single Persons, that bore a part in the Government for their time, nor be prejudiced in Succession by their Lachesse.

The same Priviledge doth belong to the Spiritual Baronage, the successive Nobility of this Realm; and a Writ of Summons to Parlia­ment can be no more refused any of them, or any of their Successors, than it can to any of the Tem­poral Baronage. I cannot but upon a review of our Government, applaud our happiness that we enjoy, and were born to so excellent a Govern­ment, without our Sweat and Contrivance; which was arrived to by several slow Steps, and beaten out by the long experience of former Ages.

But it is a portentous thing, and of ill, very ill Omen, that a Government so Venerable and August, so Wise, Beneficial and desireable, should be assaulted with peevish Dotages, fro­ward Petulances, and childish Cavillations: And that some Brain-sick, foolish Antiquaries, Rakers in the Rubbish of Time, should ima­gine, that they can barter away our Govern­ment [Page 225] for mouldy Bread and clouted Shoes: But these we have before obviated. Another sort we have before engaged, to consider in their ill Treatment of the Bishops in their hand­ling this Question of their Right we now de­fend. To which I will now proceed.

CHAP. XXIV.

FOr I am not now insensible of the great Prejudices that lie against the Right of the question, from those Calumnies that are thrown upon the Order: And that no reason, not the clearest Demonstration will be admitted to any Degree of satisfaction, until this be removed. Men's understandings are mingled with their in­terests and Passions. It is a hard matter not to see the person in the Cause; and if the person is dis-esteemed, his Right cannot be equally fa­vour'd: Nay which is more, if our Adversaries can persuade the World, that the Bishops will abuse this their Right, nothing will be able to keep off this Conclusion, that they have none.

We most duly therefore here complain of the dishonest Artifice used by the Gentlemen, that we have undertaken in this Cause, viz. That they seek all occasions of lessening the esteem of the Bishops; and of them, they speak what they will. He that can believe what he will, [Page 225] is an Infidel, and he that does what he will, is a man of no Conscience; and he that can speak what he will, wants Truth and Candor: But of a culpable sort of Wilfulness we finde these two Authors very blameable.

We must complain of these fierce disputants, that they strive unlawfully, they contend with passion, and a keen Animosity; they strike as well as argue, they lay about them right or wrong, to assault and wound the Persons, whose Right they oppose. A wound and Dishonour do they give to their own hurt.

The first and greatest Injustice they do to the Cause against all Right and Reason, of which sure they must be self-condemned, is an odious Remembrance of any thing culpable in the whole Succession of Bishops, in the times of the low­est Degeneracy of the Christian Religion, and of the heighth of Papal Usurpation and Tyran­ny; which was more heavy in those times, up­on the Rights of the Bishops, than upon those of the Crown.

When Princes thorough their own Weak­ness, or to serve their Interest, or to support their defective Titles to their Crowns, or for ob­taining dispensations from his Holiness, for an unwarrantable Marriage, or for other Ends and Reasons could not, or would not defend the Bishops and their Rights.

The very order of Bishops in those times was attempted upon, to be annulled by that Oecume­call [Page 226] Usurper. It was disputed and boldly main­tained in the Council of Trent that the Bishops were only jure Pontificio, and had no Authority in the Church, but such as his Holiness would vouchsafe them. It was endeavoured to make them but his Substitutes: He pretended Powers to create and translate them, diminish or en­large their Dioceses; gave them more or less Authority, did suspend them also, and deprive them; and pretended, that they had only a vicarious and precarious Authority from him; and in such Measures as he should think fit to limit and appoint. Were not Provisions and Reservations first made by the Pope, upon Be­nefices belonging to Churchmen? The Statute of the 25 E. 3. gave their Presentations to the King, when the Pope usurped upon them, as a Fortification against his Usurpation and Invasi­on. Did he not urge his Canon upon them, that they should not agitare judicium sanguinis, so much talk'd of in this Question, that he might strip them out of their Secular Greatness, that he might the better go over them, and tread upon them and their Ecclesiastical Rights?

Is there no Consideration to be had by those Gentlemen, in this Case of the Error temporis, or Vitia Temporum; They will snatch at this un­duely when it seems for their turn; but can they think that any Bishop, under a Protestant Sovereign, will ever return under the old Yoak?

And yet the business of Provisions, Reservati­ons and Dispensations, and of Pluralties, must be laid at the Bishops Door (yea, though Dis­pensation of Pluralties, is now established by Statute Law,) with all the Usurpations exerci­sed by the Pope, the First-born of the Chil­dren of Pride, to which they willingly-unwil­lingly were forced to submit.

But how unrighteous a thing is it to load the Order it self with all the Miscarriages of a long Course of Succession? as if the Faults of the Bi­shops in all Ages, did stick to their respective Chairs, and had passed into the Office it self.

But it is no wonder, that they remember the Faults of those Bishops unduely, to the Dis­paragement and Dishonor of the Order and Succession: When the Folio turns matter of Commendation into Reproach, and calls their contending for due Administration of Justice and Laws, Clamors for the Breach of Magna Charta.

By this he sems to argue them guilty of af­fecting Temporal Power, and intermedling un­duely in Secular Affairs.

CHAP. XXV.

BUT to discharge this Imputation, we will shortly remember, how modest they have always been in the exercise of their Ecclesiasti­cal Office; and how faithful they have always been in former Ages, to that Temporal Trust which the Laws and Constitutions of this Go­vernment, hath annexed to the Spiritual Of­fice of a Bishop.

The Bishops challenge nothing to belong to them of Divine Right, but the Exercise of their Ministry in the Cure of Souls.

They do not assume the Office of themselves, but are appointed thereto by the Sovereign Pow­er; and therefore the Bench of Bishops are not answerable for every one of their Order. They rightfully acknowledge the Right of Investiture, and Collation of Bishopricks to be in the King, subject to Royal Exemptions and Priviledges from their ordinary Right. From which Ex­emptions Mr. Selden is too forward to conclude his Doctrine of Erastianism, for that the Ex­ercise of their Function may be restrained, as well in reference to Persons or Territories, by the Civil Authority.

Their Convocations are convened by the King's Writ; they debate nothing without his [Page 229] Leave. Their Results become Canons, and re­ceive Sanction by the Royal Authority, and do not pretend to infringe any Temporal or Civil Right or Law. And besides, their Convocati­ons are always to be held, sittting Parliaments, and no longer, not at any other times: And whatever they debate or resolve, is under the Observation of Parliament. Nequid detrimenti capiat Respublica.

The Bishops make no Laws about Religion apart by themselves, neither have they any Ne­gative against any that are propounded, and therefore are not answerable for any that are made or not made. They have not the definiti­on of Heresie, but the Law hath declared it since the Reformation. And the Writ De Heretico comburendo is since abrogated by the Christian Temper of a Parliament, principally consisting of such Members, that were conformable to the Institutions of the Church of England; that is, the legal Establishments of this our Christian Commonwealth.

The Church of England is no more her own present Establishments, than the present thoughts of any man is the man himself; as the thoughts of a man are more refined and unreprovable as the man grows wiser, so do the Laws and Consti­tutions, the Orders and Rules of a Church or Christian Republick, alter, amend, and improve, as the Wisdom and Virtue, Religion and Devo­tion of the Government, and the principal parts [Page 230] thereof in Church or State increaseth or advan­ceth.

Our Bishops have had, and that with the greatest reason, greater apprehensions of Schism and Separation, than of Errors in Opinion which occasioned it, as of worse importance to the Christian Faith than the Errors themselves. Be­sides, that a man cannot help being mistaken in many things; but it is in every mans power to be modest and peaceable, and wise to sobriety, and hold the unity of the faith in the bond of peace and charity, and not to revile and deprave that which hath the publick approbation, though he cannot thereto fully assent. It is great iniquity and unrighteousness, to pretend to Liberty of Conscience as their right, and in the mean time not to tolerate the publick appointments, and what is authoritatively allowed and approved.

If Controvertible Opinions are allowed a Warrant for making a Sect and separate Commu­nion, and Churches are denominated and di­stinguished by them; and consequently such Opinions are advanced unduly unto the same ne­cessity of belief as Articles of Faith: what will become of the Christian Verity? where will it be recognized and purely professed? how distin­guished? how understood? how ascertained amidst the number of Opinions contended for, by the several dogmatizing Sectaries, with more zele than the undoubted and uncontrovertible Articles of Faith?

Nay, I will adventure to say further on their behalf, that Schismatical Separations would not offend them, (so little do they affect to be Ma­gisterial) but for that if this Disease should grow Epidemical, there would be no such thing as a Christian Church, and the Christian Religi­on would perish from the earth without a mi­racle.

It is onely designed by our Church, that those whose Subscriptions are required, should there­by onely signifie their allowance of the Litur­gy and Articles, as fit to be used and allowable. What Plea then can our Separatists have for a Toleration for themselves; who by their Sepa­ration seem unwilling to tolerate the publick Establishment, either from our Governours Ci­vil or Ecclesiastical, or from one another in their divided ways.

To reform or change to these mens pleasures is impossible, for that they cannot (they posi­tively differing from each other) be all pleased in any one possible Establishment. Besides that, untill we cease to be Schismaticks, and to be of separate and divided Communions upon the score of any dislike, or but probable exception to what is publickly received or allowed, the altering any thing for our satisfaction, will be but applying the Cure to the Symptoms, a cut­ting off one head of the Hydra. By this way to effect an union is as impossible as it would be to empty the Ocean, without stopping the cur-of the Rivers.

The Bishops are (as all men, by how much they are better learned, are) of the greatest Moderation in Opinions, and can tell how due­ly to rate and value them (according to the Prejudice or Advantage they do to the Ends of our Religon) those several Opinions, that have been contended with furious and rending Zeal, in the several Ages of the Church, to the Scandal of that peaceable Institution.

They can have a better Opinion of that man who hath unhappily entertained the less proba­ble side of the Questions controverted, if he o­pines with Modesty, than they have of him, that holds the most probable part thereof, with a Sectary-Zeal, Seperation from, Contempt and Disdain of those of a different persuasion. Their Moderation is known unto all men, of it their Opposers have had very sensible Experience, the several Dissenters cannot disown it; but must confess, that they have had severally kinder U­sage from the Episcopal Men, than their several Parties have from one another.

By their Learning, Wisdom and Moderation, which is most eminently known and observed in many of them, and hath recommended them to the highest Esteem they must be allowed, their Enemies being Judges, to be the fittest Arbiters of the Controversies, and the most like­ly and probable Procurers of the Peace of Chri­stendome.

All the Dissenting Parties have reason to look upon them, as their Common Sanctuary, and Defence against the Outrages of each other.

But in this they must be pardoned, if they, being under a Law or Rule of their Superiors (made, as they think, in a matter lawful) act accordingly, and do not disobey for their sake who think otherwise, though in the mean time they pity their Scruples.

Indeed the Terms of the Nonconforming Ministers have been made hard upon them; But that hath been from Reasons of State, which the late unhappy Wars occasioned, and they were ejected out of their Livings by Statute-Law. And on the other side it is true, that many men, not to fit for that Holy Function have enjoyed Church Benefices; but neither this can the Bishops help: For they cannot reject a Clerk presented to a Benefice, or eject him, but as the Law will, (so sacred is the Right of Patronage, and so fixed by the Law, are Ministers in their Livings) which is not Nice in the manners of Clerks, and the Bishops cannot be severer than the Laws.

So that if some men, not of the most unblama­ble conversations, have kept their Livings, and some of very unexceptionable Lives have been ejected: The unhappy Nonconformists are di­rected where to make their Complaint.

But as there is little Cause of complaint, on this part of the Episcopal Authority and functi­on, [Page 234] viz. Their Superintendency over the Pa­stors of their Dioceses: So we shall observe how they have behaved themselves in the Exercise of the Power of the Keys: For what is done there­in by their Chancellors and Officials, to whom Custom hath given some Powers and Authori­rity, which cannot be check'd and controul'd by the Bishops themselves, they are not to ac­count, neither are they answerable for the Lay-Zeal that hath made the Condition of Excom­municants so very afflictive. For whatever some men please to think, the Laity have out-done the Ecclesiasticks in the Excesses of intemperate Zeal, as they are most apt, and prone by their Ignorance to Superstition. No man can pass under the Admonitions of the Church, and be suspended from the Holy Mysteries, until he hath made Satisfaction for his disorderly walk­ing, or Spiritual Pride, in breaking Order; but he is presently given up by the Laity to Satan. I mean, he suffers beyond the first In­tention of the Church in her Discipline. Seve­rities enacted by the Law of the State, which if reversed by that Authority that established them, and a civil Process were enacted for the Ecclesiastical Courts, in Causes of a Temporal Nature, which are appointed by Law to their cognizance. I persuade my self, we should hear of no more Complaints against them in the Exercise of the Power of the Keys.

For we observe, that they exercise the Pow­er of the Keys with deference to the Secular Magistrates. They never presume to excom­municate the Prince, least they should thereby lessen his Authority, and shock the Govern­ment: For that all Government is establish­ed by the Honor and Reverence of the Gover­nor, according to that Saying of Aristotle, [...], Dissolution of Government doth easily follow the Contempt of the Governor. As Kings are not subject to Penal Laws, nor to be coerced by Penalties: So true it is also, what Balsamo hath noted, ad 12 Canonem Synod. Ancyranae, Imperatoriâ un­ctione penitentiam tolli.

Neither do they presume in Reverence to the King, to excommunicate his Counsellors, and Ministers of State and Justice: For so it was declared amongst other of the Avitae consue­tudines of this Realm, by the Assize of Claren­don, Nullus qui de Rege teneat in Capite, nec ali­quis dominicorum ministrorum ejus excommunice­tur, nisi prius Dominus Rex conveniatur. In which our Bishops are agreable to the Ancients. Hil­debert Cenoman, after Bishop of Tours, who lived about the eleventh Century, says he, Apud Se­renissimum Regem opus est exhortatione potius quam increpatione, Concilio quam praeceptis, doctrinâ quam virgâ. Ivo, Bishop of Chartres, in his Apology for communicating.— Gervasius saith thus, Quos culpatorum Regia Potestas, aut in gratiam be­nignitatis [Page 236] receperit, aut mensae suae participes fece­rit, eos etiam Sacerdotum & populorum conventus suscipere in Ecclesiastica Communione debebit; ut quod principalis pietas recipit, nec à Sacerdotibus Dei alienum habeatur.

Thus while the Bishops are not guilty of mean and unfaithful flatteries, they do not par­ticipate of the pride of the Bishops of Rome, or the irreverence and sawciness of a Presbyterian Consistory against their Princes and Govern­ours.

Neither do they call up any criminal cause originally to their examination, but pronounce the sentence of Excommunication on such one­ly as first are civilly convict of a crime; save that matters of Incontinency are by the Common Law submitted to their Censure, for that by the venerable gravity of the Judge, and by the more private examination of such offences, the mo­desty of the Nation is best preserved, which is a surer defensative against the rifeness of such crimes, perhaps than the sharpest punishments.

If they do excommunicate any man without a just cause, or do not absolve the Excommuni­cate when he hath made his satisfactions, the Bi­shop is compellable by the Authority of the Kings Courts to assoil the man, under the pain of having his Temporalities seized into the Kings hands, though he is not restored without the Episcopal Absolution. For it is fit they should finally judge in their own proper Province; and [Page 237] they must not, they cannot relax the Laws of Christ, nor administer the power of the Keys of binding and losing, by any other measures, for any power on earth. But against this power of the Kings Courts they do not dispute or declare, but have recognized it by their submission, and they can submit to the penalties, without com­plaining of this civil constitution. Nay, in the general order they approve it, though in a par­ticular case perhaps they do not, because they cannot obey.

Our Bishops do not encroach any Temporal Authority in ordine ad spiritualia; that stale pre­tence by which the Bishop of Rome hath arri­ved to his exorbitant power, and by which the Scotch Presbyters would have acquired the like over Kings and Governours. Their Authority always administers to and assists but never thwarts or contradicts the Temporal. They have accommodated their power of the Keys, to the vindication of our established Government against the attempts of Arbitrary Power, to which their Allegeance to the King, and the re­gard of the publick Peace, did oblige them. For such Attempts are mostly the ruin of those that make them, always bring the Government it self into the greatest danger, and sometimes prove the ruin both of the Government and the Nation.

This was required of them as an indispensible duty, they being a principal part of the Go­vernment; [Page 238] and the present Bishops Successours to all their Rights, have no reason to decline their example, if they have the like cause.

The Bishops anciently were sturdy opposers of King John, when he designed to put this King­dom into vassallage to the Pope, and thereupon he writes to the Pope thus as followeth: In con­spectu paternitatis vestrae humiliamus ad gratias mul­tiplices, prout meliùs scimus & possumus, exhiben­das, pro cura & sollicitudine, quam ad desensionem nostram & Regni nostri Angliae, paterna vestra be­nevolentia indesinenter apponit, licèt duritia Praela­torum Angliae & inobedientia impediant vestrae pro­vesionis effectum. Pat. 17 Joannis R. M. 15. as I find it related by Mr. Petit, in his book entitu­led, The ancient Right of the Commons of England asserted.

About the 24 H. 3. Edmund then Archbishop of Canterbury, at a Synod held at Westminster, the King being present, Candelis acceptis, & pro­jectis, ac extinctis, Chartam Libertatum violantes, vel sinistrè interpretantes, excommunicantur. Mat. Paris, p. 151. About 13 years after, viz. in 37 H. 3. Boniface then Archbishop of Canterbury, the sentence of Excommunication is again re­peated against those, Qui Ecclesiasticas Libertates vel antiquas Regni Consuetudines in Chartis com­munium Libertatum & de Foresta concessas quascun­que, arte vel ingenio violaverunt. Fleta l. 2. c. 42. Dors. Claus. 37 H. 3. membr. 9. Additament. ad Mat. Paris, p. 117. Which Sentence of Excom­munication [Page 239] was ratified and confirmed in a Par­liament held that year as followeth: Noverint universi quòd Dominus Rex Angliae, illustris Comes Norfolk & Mareschallus Angliae, H. Comes Here­ford & Essex, J. Comes de Warewico, Petrus à Sa­baudia, ceteríque magnates Angliae, 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 quàm 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 [Page 240] 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, Ʋsum Clavium Divino Juri congruum, & poenarum injunctionem Canonibus & Legibus con­sentaneum, summae potestates solent approbare; at (que) 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 [Page 242] 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 [Page 243] 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 [Page 244] Causes, which must be allowed a clear Ar­gument for their Right of Judgment in such Causes. For the Spiritual and Temporal Lords, though two States, make but one House upon the Reasons afore-mentioned, according to the general Understanding and Usage of former A­ges. But upon this Supposition, he tells us of several Bills that gave furtherance to the Re­formation, to which the Bishops did not assent, and would never have passed, if they had had a Negative upon them. But by his Favor, these Instances of his, are great Arguments of those Bishops their Sincerity: For they must needs be under great and violent Prejudices: Besides, e­very great man (as the Author of the Letter well knows) is apt to value himself, and cares not to be accounted a light man; and the high­er in place, the more unwilling to be found in a Mistake; and they are not content, if Old Men,

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 [Page 245] 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 [Page 246] 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, [Page 247] 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, [Page 249] 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, 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 [Page 250] 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. [Page 251] 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 [Page 253] 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,