Concerning the Bishops Right to Vote in Parliament in Capital Cases, Chapter 2

Concerning the Bishops Right to Vote in Parliament in Capital Cases · Chapter 2

p. 18CHAP. II.

The Right in point of Law debated. Concerning the Constitution of Clarendon, and the Protestation 11 R. 2.

HAving removed these general Prejudices, I now come to debate more closely the main Point. For the Authour of the Letter undertakes to prove, that Bishops cannot by Law give Votes in Capital Cases in Parlament.Lett. p. 68. Which he doth two ways: 1. by Statute-Law; 2. by Use and Custome, which he saith is Parlament-Law: and for this he produceth many Precedents.

I. For Statute-Law; two Ratifications, he saith, there have been of it in Parlament; by the Constitutions of Clarendon, and the 11 R. 2.

1. The Constitutions of Clarendon; Lett. p. 69.which he looks on as the more considerable, because they were not the enacting of p. 19new Laws, but a declaration of what was before. And for the same Reason I value them too, and shall be content this Cause stand or fall by them.

The Constitution in debate is the 11^th, which is thus repeated and translated in the Letter. Archiepiscopi, Episcopi, & universae Personae Regni qui de Rege tenent in Capite, habeant possessiones suas de Rege, sicut Baroniam, & inde Respondeant Iusticiariis & Ministris Regis, & sequantur & faciant omnes consuetudines Regias: Et sicut ceteri Barones, debent interesse judiciis Curie Regis, quousque perveniatur ad diminutionem membrorum, vel ad mortem.

The Archbishops, Bishops, and all the dignified Clergy of the Land that hold of the King in Capite, shall hold their possessions from the King, as a Barony, and answer for their estates unto the King's Iustices and Ministers, and shall observe and obey all the King's Laws: And together with the other Barons, they are to be present at all Iudgments in the King's Courts, till it come to require either losse of Member or Life.

The Argument from hence he enforceth from the solemn Recognition and publick confirmation of these Constitutions, p. 20Lett. p. 71, 72.and the Oath taken to observe them; from whence he concludes this to be Testimonium irrefragabile, An irrefragable and invincible Testimony. And so I foresee it will prove, but to a quite contrary purpose from what he intended it.

The whole Question depends upon the meaning of the latter Clause of this Constitution. The meaning he gives of it is this, Lett. p. 61.that the Prelats of the Church should not be present at the Iudgments given in the King's Courts when losse of Member or Life was in question.

The meaning of it I conceive to be this, that the Bishops are required to be present in the King's Courts as other Barons are, till they come to give Sentence as to Dismembring, or loss of Life.

Whether of these is the true meaning is now to be considered: and that will best be discovered these three ways. 1. By the Occasion. 2. By the plain Sense of the words according to their true Reading. 3. By the subsequent Practice upon this Constitution in the Parlament at Northampton soon after.

1. By the Occasion. The Authour of the Letter assigns that Occasion for this Constitution, for which there is not the least colour; viz. That the Prelats of that p. 21time were ambitious of a kind of Omnipotency,Lett. p. 73. (in Judicature I suppose he means,) and that to restrain their power of Judging Capital Cases this Constitution was made: and because this seemed to be a diminution of their Power, therefore Matt. Paris ranks it among the Consuetudines iniquas, the wicked Customs of the former times. For all which there is not the least shadow of Proof; besides that it is so repugnant to the History of those Times, that I can hardly believe a Person of so much Learning and Judgment, as is commonly said to be the Authour of the Letter, could betray so much unskilfulness in the Affairs of those Times. For this is so far from being true, that the Bishops did then affect such a Power of Iudging in all Secular Causes, that they looked on their attendance in the King's Court in the Trial of Causes, as a burthen which they would fain have been rid of; because they accounted it a Mark of Subjection to the Civil Power, and contrary to that Ecclesiastical Liberty, or Independency on Princes, which from the days of Gregory VII. they had been endeavouring to set up. Which H. II. being very sensible of, resolved to tie them to the Service of their Baronies, and to an attendance p. 22on the King's Courts together with other Barons. But lest they should pretend any force on their Consciences, as to the Canons of the Church, this Constitution doth not require, but suffers them to withdraw, when they came to Sentence in matters of Bloud. And that this was the true Occasion, I prove by these two invincible Arguments.

1. By the complaint which they made of the Baronies, as too great a mark of Subjection to the Civil Power. This is plain from Matt.Paris Matt. Paris ad A. D. 1070.himself, to whom the Authour of the Letter refers: for when he speaks of William the Conquerour's bringing the Temporalties of the Bishops into the condition of Baronies, i. e. forcing them to hold them of him in Chief upon certain Duties and Services, he calls it Constitutionem pessimam, a most wicked Constitution; just as he calls the Customs of Clarendon Consuetudines iniquas, wicked Customs. And he adds, that many were banished rather then they would submit to that Constitution. For their Privileges were so great with the Frank-almoign they enjoy'd in the Saxon times, and their desires so hearty (especially among the Monks, who from Edgar's time had gotten into most Cathedral Churches) to advance p. 23the Papal Monarchy, that they rather chose to quit all, then to give up the Cause of the Churche's Liberty by accepting of Baronies. Therefore Matt. Paris calls the Rolls that were made of the Services belonging to these Baronies, Rotulas Ecclesiasticae Servitutis, the Rolls of Ecclesiastical Slavery; then which nothing could be more contrary to that Ecclesiastical Liberty which was then setting up by Pope Hildebrand. And to put this out of all dispute, Petrus Blesensis, a Name well known in this dispute, in that very Book where he complains of the Bishops Hypocrisy about Cases of Bloud, in being present at hearing and trying Causes, but going out at Sentence, complains likewise of their Baronies, as those which gave occasion to that Hypocrisy, and as the marks of the vilest Slavery. Pet. Bles. de Institut. Episc. p. 451.Et in occasione turpissimae Servitutis seipsos Barones appellant. They may think it an honour to be called the King's Barons, but he accounts it the greatest Slavery; and applies that place of Scripture to them, They have reigned, but not by me; they are become Princes, and I know them not. Now Pet. Blesensis lived in the time of H. II. and knew the whole proceedings of the Constitutions of Clarendon, and was p. 24a zealous maintainer of Becket's Cause, or, which was all one, of the Liberties of the Church, as they call'd them, against the Civil Power.

2. By the fierce Contest between the Civil and Ecclesiastical Power, about the Liberties of Church-men. This was carried on from the time that William I. brought them into Subjection by their Baronies: his Sons stood upon the Rights of the Crown; whilst Anselm and his Brethren struggled all they could, but to little purpose, till after the death of H. I. Then Stephen, to gratifie the great Prelates, by whose favour he came to the Crown, yielded all they desired: but he soon repented, and they were even with him for it. Malmsbury takes particular notice, that he yielded they should have their Possessions free and absolute; Malmsbur. hist. Novell. p. 100. b.and they promised onelyonly a conditional Allegeance to him, as long as he maintained the Liberties of the Church. When K. Stephen broke the Canons, as they said, by imprisoning 2 Bishops, the Bishop of Winchester and his Brethren summon'd him to answer it before them in Council; and there declared, that the King had nothing to doe with Church-men, till the Cause was first heard and determined by themselves. p. 25All his time, they had no regard to his Authority, when it contradicted their Wills: and when the Peace was made between Him and H. II. Radulphus de Diceto takes notice that the Power of the Clergy increased by it.Rad. de Diceto Imag. histor. p. 509. 528. In this state H. II. found things,Gul. Neuburg. l. 2. c. 16. when Gul. Neuburgensis saith, the great business of the Church-men was to preserve their Liberties. Upon this the great Quarrel between Him and Becket began: this made the King search what the Rights of the Crown were which his Ancestours challenged; to these he was resolved to make Becket and his Brethren submit. For this purpose the Parlament was called at Clarendon, and after great debates the 16 Constitutions were produced; which were those the King was resolved to maintain, and he made the Bishops as well as others swear to observe them. Now when the rest of them relate to some Exemptions and Privileges which the Church-men challenged to themselves, about their Courts, Excommunications, Appeals, and such like, and which the King thought fit to restrain them in; (From whence in Becket's Epistles it is said,Bar. ad A. D. 1164. n. 3. those Constitutions were framed ad ancillandam Ecclesiam, to bring the Church in subjection, as Baronius shews p. 26out of the Vatican Copy. And Fitz-Stephen Fitz-Stephen vit. Th. Beck. M S.saith, All the Constitutions of Clarendon were for suppressing the Liberty of the Church, and oppressing the Clergy: I say, considering this,) is there not then great Reason to understand this 11^th. Constitution after the same manner: viz. that notwithstanding K. Stephen's Grant, H. II. would make them hold by Baronies, and doe all the Service of Barons in the King's Courts, as other Barons did; and he would allow them no other Privilege, but that of withdrawing when they came to Sentence in a Case of Bloud? What is there in this sense, but what is easy and natural, and fully agreeable to the state of those Times? whereas there is not the least foundation for the pretence of the Bishops affecting to be present in all Causes, which the King must restrain by this Constitution.

This sense of it is not onelyonly without ground, but is absolutely repugnant to all the History of that Age. For if this Constitution was intended to restrain the Bishops from trying Causes of Bloud, then the Bishops did desire to be present in those Causes, and the King would not suffer them. Whereas it is evident that the Bishops pretended scruple of Conscience from p. 27the Canons, that they could not be present; but in truth stood upon their Exemption from the Service of Barons, which they call'd Ecclesiastical Slavery. And therefore that could not be the sense of the Constitution, to restrain them in that which they desired to be freed from, and which by this Constitution of Clarendon was plainly forced upon them against their wills. For Lanfranc had brought the Canon of the 11^th. Council of Toledo into England, Spelm. Concil. To. 2. p. 8, 9, 11.That no Bishop or Clergyman should condemn a man to death, or give vote in the Sentence of Condemnation: at which Council were present 2 Archbishops, 12 Bishops, and 21 Abbots. And before H. II'^s time this Canon of Toledo was received into the Body of the Canon-Law, made by Ivo, Burchardus, Regino, and Gratian who lived in the time of K. Stephen: and when they saw such a Canon so generally received, is there not far greater Reason to think they desired to withdraw, then that they should press to be present, and the King restrain them? But the Constitution is so framed on purpose, to let them understand, that the King expected in all Iudgments they should doe their Duty, as other Barons: but lest they should think he purposely designed p. 28to make them break the Canons, he leaves them at liberty to withdraw when Sentence was to be given. So that I can hardly doubt but the Authour of the Letter, if he please calmly to reflect upon the whole matter, will see reason to acknowledge his mistake; and that this Constitution was so far from intending to restrain the Bishops from all Iudicature in Cases of Bloud, that, on the contrary, it was purposely framed to oblige them to be present, and to act in such Causes as the other Barons did, at least till the Cause was ripe for Sentence: which last Point the King was content to yield to them, out of regard and reverence to the Canons of the Church. For the words of the Law are not words of Prohibition and restraint from any thing, but of Obligation to a Duty; which was, to be present and serve in the King's Courts of Iudicature, in like manner as the other Barons did.

From all which it is evident, I think, beyond contradiction, that the Occasion of this Law was not the Ambition of the Prelates, P. 73.(as the Authour of the Letter suggests) to thrust themselves into this kind of Iudicature; but an Ambition of a worse kind, (though quite contrary) p. 29viz. under a pretence of Ecclesiastical Liberty and Privilege, to exempt themselves from the Service of the King and Kingdom, to which by virtue of their Baronies they were bound, sicut caeteri Barones, as well as the other Barons. And therefore it is so far from being true, that the Bishops exercise of this Iurisdiction together with the Temporal Lords is a Relique of Popery, and one of the Encroachments of the Clergy in those Times of Ignorance and Usurpation, as some well-meaning Protestants are now made to believe; that, on the contrary, the Exemption of the Clergy from this kind of Secular Iudicature was one of the highest Points of Popery, and that which the Pope and his Adherents contested for with more zeal then for any Article of the Creed. This was one of those Privileges which Thomas Becket said Christ purchased for his Church with his bloud, and in the obstinate defence whereof against the King he himself at last lost his life. And now to put the matter beyond all doubt, I appeal to any man skill'd in the History of those Times, whether Thomas Becket opposed the Constitutions of Clarendon to the death, and broke the Oath he had taken to observe them, because by them (among other p. 30things) the Bishops were excluded from Iudicature in Cases of Bloud; or for the quite contrary reason, (among others) because this Service of the King in his Courts, impos'd on them by virtue of their Baronies, was look'd upon by him as a violation of the Privileges of the Church, and a badge of Ecclesiastical Slavery, which by all means he desir'd to cast off. And if the latter be the true Reason, I leave it to the impartial Reader, and even to the Authour of the Letter himself upon second thoughts, whether he have not widely mistaken both the Occasion and Meaning of this Law.

2. Let us consider the plain Sense of the words according to the true reading of them. The Authour of the Letter hath made use of the most imperfect Copy, viz. that in Matt. Paris; I cannot tell for what reason, unless it be that in the last Clause [in Iudicio] is there left out, which is put in in the Copy extant in Gervase, and in the Vatican Copy, and in several MSS. in all which it runs thus, Et sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus, usque perveniatur in judicio ad diminutionem membrorum, vel ad mortem. Now here are two things to be distinguished.

p. 311. Something expresly required of the Bishops as to their presence in the King's Courts, viz. that they must attend as other Barons, and sit together with them: and therefore it is expressed twice; Et sicut caeteri Barones, in the beginning of that Clause, and cum Baronibus, again after, and debent interesse, in the middle. And can any one soberly think, that the meaning of all this is, they must not be present in cases of Bloud? No: the Constitution saith, they ought to be present as other Barons, and sit with other Barons in the Trials of the King's Courts. And yet the Authour of the Letter doth (to speak mildly) very unfairly represent this Constitution, as if it did forbid the Prelats to be at all present in the Iudgments of the King's Courts in Cases of Bloud; and that in express words. For, speaking of the Constitutions of Clarendon, he hath this passage,pag. 61. And one of these Constitutions was, that the Prelats of the Church should not interesse Iudiciis Curie Regis, be present at the Iudgments given in the Kings Courts. Whereas this Constitution (as he himself cites it afterwards) runs thus, debent interesse Iudiciis Curie Regis, quousque, &c. they ought to be present in the Iudgments of the King's Courts, till it come to loss of p. 32Members or Life. So that this Law expresly says, that they ought to be present in the Iudgments of the King's Courts, till it come, &c. And when it comes to loss of Members or Life, it doth not say (as the Authour of the Letter affirms) that they should not be present then, nor do the words of the Constitution imply any such thing; but only require (as I shall evidently make appear) their presence so far; and when it should come to Sentence, leaves them at liberty to withdraw in obedience to the Canons of the Church, which they pretended themselves bound in Conscience to observe. And this is the true Reason why, among the 16 Constitutions of Clarendon, Baronius ad Ann. 1164.(whereof 10 were condemned, 6 tolerated, but none approv'd, by Pope Alex. III.) this 11. was one of the 6 which escaped with an Hoc toleravit, this the Pope was content to tolerate; because in the last Clause of it there was regard had to the Canons of the Church. Of this misrepresentation of the Constitution under debate, though it might have deserved a more severe animadversion, I shall say no more, because I have no design to provoke the Authour or any body else, but onelyonly to convince them.

2. Something allowed to the Bishops as p. 33peculiar to themselves, viz. That when the Court hath proceeded so far in judicio, in a particular Trial, (for before it is Iudiciis in general) that Sentence was to be given either as to dismembring, or loss of life, then they are at liberty; but till then they are required. As, suppose Charles V. had required the Protestant Princes to attend him to Masse, as other Princes did; onelyonly when the Mass-Bell tinckled they might withdraw; would not any reasonable man understand by this, that they were obliged to their Attendance till then? So it is here: the King commands their Attendance till it comes to such a point; therefore before it comes thither, their presence is plainly required by this Constitution. And so in stead of there being a Statute-Law to exclude the Bishops at such Trials, there is one to require their presence in judicio, in the proceedings of such a Trial, till it comes to Sentence. All that can be said in this case is, that the last Clause is not to be understood of the Sentence, but of the Kind or quality of the Cause; i. e. they are to be present in the King's Courts, till they come to a Cause wherein a man's Life or Members are concerned. But that this cannot be the meaning will appear.

p. 341. There is a great deal of difference between quousque perveniatur ad judicium mutilationis membrorum, vel mortis, that might have been understood of a Cause of Bloud; and quousque perveniatur in judicio ad mutilationem membrorum, vel ad mortem, for this supposeth a Trial already begun, and the Bishops present so far in it; but when it comes to the point of mutilation or death, then they have leave to withdraw. So that this last Clause must either be understood of Execution, which no one can think proper for the King's Courts; or for the Sentence given by the Court, which is most agreeable.

2. The Sense is best understood by the Practice of that Age. For, if the meaning of the Constitution had been, they must not be present in any Cause of Bloud, and the Bishops had all sworn to observe it; can we imagine we should find them practising the contrary so soon after? And for this I appeal to Petrus Blesensis, Pet. Bles. de Instit. Episc. p. 454.whose words are so material to this purpose, that I shall set them down. Principes Sacerdotum & Seniores Populi, licèt non dictent judicia sanguinis, eadem tamen tractant disputando & disceptando de illis; séque ideo immunes à culpa reputant, quòd mortis aut truncationis membrorum judícium decernentes, p. 35à pronuntiatione duntaxat & executione poenalis sententiae se absentent. Whereby it is evident that the Bishops were present at all Debates, and gave Votes in Causes of Bloud; but they absented themselves from the Sentence, and the Execution of it. It is true, Pet. Blesensis finds fault with them for this. But what is that to the Law, or to the practice of that Age? I do not question, but Pet. Blesensis condemned the observation of the other Constitutions of Clarendon, as well as this; and in all probability this passage of his was levelled at those Bishops who did observe this 11. Constitution.

3. We have a plain way to understand the meaning of this Constitution, by what happen'd soon after in the Parlament at Northampton, which was summon'd upon Becket's Obstinacy and Contempt of the King's Authority: where Fitz-stephen saith, he was accused of Treason; and the Bishops sate together with other Barons; and because it did not come to a sentence of Death, after great debate between the other Lords and the Bishops about pronouncing the Sentence, the Bishop of Winchester did it. Wherein we have as plain evidence as can be desired, that the Bishops did sit with the other Barons, and p. 36vote with them in a case of Treason.

To this Precedent the Authour of the Letter answers several things.

1. That none of the ancient Historians of those Times say any thing of his being accused of Treason:Lett. p. 60. and therefore he thinks one may modestly affirm,pag. 62. that it was a mistake in Fitz-stephen to say so. But what if H. II. and Becket himself both confess that he was charged with Treason?Vol. Epistol. Becket in Bibl. Cotton. MS. l. 1. ep. 65. H. II. in his Letter to Reginaldus saith, that by consent of his Barons and Clergy he had sent Ambassadours to Pope Alexander, with this Charge, that if he did not free him from that Traitour Becket, he and his Kingdom would renounce all Obedience to him. And Becket did not think this a bare term of reproach; for in one of his Letters he saith, that defending the Liberties of the Church laesae Majestatis reatus sub persecutore nostro est,Ep. 52. was looked on as Treason by the King. Gervas. Chronic. p. 1391.And even Gervase himself, to whom the Authour of the Letter appeals, saith, some of his friends came to him at Northampton, and told him, if he did not submit to the King, he would be proceeded against as a Traitour, for breaking the Allegeance he had promised to the King, when he did swear to observe the ancient Customs at Clarendon. And p. 37Fitz-stephen saith, Fitz-stephen Vit. Th. Becket. de Concilio apud Clarendon.the King's Council at Clarendon said it was Treason, or taking the King's Crown from his head, to deny him the Rights of his Ancestours.

2. That it was a strange kind of Treason Becket was charged with at Northampton, Lett. p. 63.viz. for not coming when the King sent for him; which at the most was onelyonly a high Contempt; and Fitz-stephen, who was a Creature of the Archbishop's, might represent it so, to draw an odium on the King. And therefore he looks on this as a weak precedent for the Bishops to lay any weight upon, being at best out of a blind MS. of an Authour justly suspected of partiality, against the tenour of all the ancient Writers that give an account of the same business. What truth there is in this last suggestion appears in part already, and will do more by what follows. Must all the unprinted Records be answered with saying they are blind MSS? I cannot but take notice how unreasonable a way of answering this is. It is like turning of that pressing Instance, of the Bishops making a Proctor in Capital Cases, by saying it was Error temporis; pag. 79.which because it will answer all Instances whatsoever as well as that, is therefore an answer to none. Just so it is equally an answer to all MSS, p. 38to say they are blind; and to all printed Books too, because they were once MSS, and, for any thing that appears to the contrary, as blind as Fitz-stephen's. For surely no authority is added to a Book by its being printed; unless in the opinion of the common people, who are said to take all for true that is in Print. I do not go about to parallel Fitz-stephen with Parlament-Rolls; but I say, his Authority is very good, being present upon the place, and the best we have, of all the proceedings in the Parlament at Northampton. And if the Authour of the Letter had taken the pains to peruse him, he would not have contemned the Precedent drawn from thence; which being so near the Parlament at Clarendon, (that, as himself confesseth,pag. 61. the one was in February, the other in October following,) it gives the best Light into this matter of any thing in that Age; and being not yet fully printed, it will be worth our while to set it down. Mr. Selden hath indeed printed very exactly the Proceedings of the first Iudgment upon Becket, Titles of Honour, p. 2. c. 5. n. 20.about the Cause of Contempt, for not coming upon the King's Summons, at the complaint of Iohn the Marshall; wherein the Bishops did certainly sit in Iudgment p. 39upon him with the other Barons: but there is a farther strength in this Precedent, not yet taken notice of. Which is, that after this Iudgment passed, Becket behaved himself with so great insolency towards the King and the Bishops, upon the King's calling him to farther account, for many other things laid to his Charge, as diverting the King's Treasure, and applying it to his own use, and great Accounts to the King while he was Chancellour, &c. that the King required him to stand to the Iudgment of his Court. Becket gave a dilatory Answer: the King summons the Bishops, and Earls and Barons, to give Iudgment against him: the Bishops tell the King, Becket had appealed to the Pope, and prohibited them to give any farther Judgment upon any Secular Complaint against him. Whereupon the King sent some Earls and Barons to him, to expostulate the matter, since he was the King's Subject, and had so lately sworn to the Constitutions at Clarendon; and to know whether he would give Security to the King about making up his Accounts, and stand to the Judgment of his Court. Becket refuseth to give answer to any thing, but the Cause of Iohn the Marshall, for which he was summoned to appear; p. 40slights his Oath, as contrary to the Rights of the Church, and confirms his Appeal to the Pope. And such an owning of the Pope's Power, in derogation to the Rights of the Crown, Sir Edward Cook saith was Treason by the ancient Common Law, before any Statutes were made. However, the King charges the Bishops by virtue of their Allegeance, that, together with the Barons, they would give Iudgment upon the Archbishop. They excused themselves on the account of the Archbishop's Prohibition. The King replied, That had no force against the Constitution of Clarendon, so lately made and acknowledged by them. The words of Fitz-stephen are these: Rex, responso Archiepiscopi accepto, instat Episcopis, praecipiens & obtestans per homagium & fidelitatem sibi debitam & juratam, ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam. Illi se excusare coeperunt per interpositam Archiepiscopi Prohibitionem. Rex non acquievit, asserens, quòd non teneat haec ejus simplex Prohibitio contra hoc quod Clarendonae factum & initum fuerat. So that H. II. in the Parlament at Northampton declared, that Bishops were bound, by virtue of the Constitution of Clarendon, to be present, and to give their Votes in p. 41cases of Treason. And the Bishops' did not deny this, but used prudential arguments to disswade the King from proceeding any farther, the Appeal being made; and that it was for the good of King and Kingdom, for them to submit to the Prohibition. And the Bishop of Chichester told Becket, he made them go against the Constitutions of Clarendon, which they had so lately sworn to observe; in these remarkable words; Quo contra nos venire compellitis, interdicendo, nè ei quod de nobis exigit adesse possumus Iudicio. By which we see this Constitution is indeed an irrefragable Testimony; but it is to prove that Bishops are bound to be present even in Cases of Treason, when the King summons them. And as to the case of Becket's Treason, the same Bishop told him, it lay in breaking his Oath about those Constitutions, wherein the Rights of the Crown were declared. And if this be not Treason by the Common Law, Sir Edward Cook's Preface to his fifth Book of Reports signifies nothing.

The late Authour of the Peerage and Iurisdiction of the Lords Spirituall takes it for granted,pag. 14. that by the Constitution of Clarendon the Iurisdiction of Bishops was limited, that it should p. 42not extend ad diminutionem membrorum, vel ad mortem. But the foregoing discourse hath, I suppose, made it evident, that those words contain no Limitation, but a Privilege or Indulgence to them with respect to the Canon-Law. And he takes very needless pains to prove this to be declarative of the Common Law; and that the Meeting at Clarendon was a full Parlament: which are very much besides the business.

All that looks towards this matter, is, that he saith, this Statute was confirmed by a Council at Westminster; for which he cites Rog. Hoveden's Authority. But I wish he had produced the Canon entire as he there found it; for then the sense of it would have been better understood. In this Synod at Westminster, Richard Archbishop of Canterbury produceth several ancient Canons, which he thought fit to be observed here. Among the rest, he mentions that of the Council of Toledo. The words are these: His qui in Sacris Ordinibus constituti sunt, judicium sanguinis agitare non licet; here he makes his &c. and leaves out the Prohibition which declares the meaning and extent of this Canon: Vnde prohibemus, nè aut per se membrorum truncationes faciant, aut p. 43inferendas judicent; Wherefore we forbid them, either to dismember any persons themselves, or to give Iudgment for the doing of it. Both which were practised in Spain in the time of the Council of Toledo, which was the occasion of this Canon. And then follows the Sanction of Deprivation if men did otherwise. And what now doth this signifie more to the Constitution of Clarendon, then that the same Canons were now revived, which gave the occasion to that permission of withdrawing, when the Sentence came to be pronounced as to dismembring, or loss of Life?

But he urges farther about this Constitution, pag. 18.that it must be so understood, as to exclude the Bishops from all antecedent and praeliminary things which do relate or tend ad diminutionem, &c. or else, saith he, it must be onelyonly the exemption of the Prelats from doing the Office of Executioners, which is Non-sense. Why so? though it be not the whole sense of the Canon, yet surely it is sense. But he might have thought of giving Sentence, which the Canons forbid, and is different from Execution, and doth not exclude the Bishops presence at Praeliminaries. The Constitution of Westminster, he saith, is plainer, Non debent agitare judicium sanguinis; p. 44which, he saith, excludes the exercise of any Judicial Power in Cases of Bloud. Whereas it appears by the Prohibition there extant, nothing is forbidden but giving Sentence; at which the Constitution of Clarendon allows them to withdraw.

2. The second time we are told that the Exclusion of the Bishops in Cases Capital rereived a Confirmation in Parlament,Lett. p. 73. was the 11. of R. II. When the Archbishop and the other Bishops, upon their withdrawing then from the Parlament, in regard matters of Bloud were there to be agitated and determined, in quibus non licet alicui eorum personaliter interesse, as they say, in which it was not lawfull for any of them to be present in person, did therefore enter a Protestation, with a Salvo to their Right of Sitting and Voting in that and all other Parlaments, when such matters were not in Question: which Protestation of theirs was at their desire enrolled in full Parlament by the King's Command, with the Assent of the Lords Temporal and Commons. So that it is here said to be a perfect and compleat Act of Parlament; and if it had not been a Law before, would then have been made one. This is the substance of what is more largely insisted p. 45on in another place; …. 19▪ &c.and what strength is there added shall be duely considered.

To understand this business aright, it will be necessary to set down the Protestation it self at large, as it is taken out of Courtney's Register,Rot. Parl. 11 R. 2. n. 9. and the Parlament-Rolls; and then examine the Points that do arise from thence. The Protestation runs thus.

In Dei nomine Amen. Cùm de jure & consuetudine Regni Angliae, ad Archiepiscopum Cantuariensem, qui pro tempore fuerit, necnon caeteros suos Suffraganeos, Confratres & Coëpiscopos, Abbatésque & Priores, aliosque Praelatos quoscunque, per Baroniam de Domino Rege tenentes, pertineat in Parlamentis Regis quibuscunque, ut Pares Regni praedicti, personaliter interesse, ibidémque de Regni Negotiis, & aliis ibidem tractari consuetis, cum caeteris dicti Regni Paribus, & aliis ibidem jus interessendi habentibus, consulere, tractare, ordinare, statuere, & diffinire, ac caetera facere quae Parlamenti tempore ibidem imminent facienda; in quibus omnibus & singulis, Nos Willielmus Cantuar. Archiepiscopus, totius Angliae Primas, & Apostolicae sedis Legatus, pro nobis, nostrisque Suffraganeis, Coëpiscopis, & Confratribus, p. 46bus, nec non Abbatibus, Prioribus, ac Praelatis omnibus supradictis, protestamur, & eorum quilibet protestatur, qui per se, vel per Procuratorem hîc fuerit modò praesens, publicè & expressè, quòd intendimus, & intendit, volumus, ac vult quilibet eorum, in hoc praesenti Parlamento, & aliis, ut Pares Regni praedicti, more solito interesse, consulere, tractare, ordinare, statuere, & diffinire, accaetera exercere, cum caeteris jus interessendi habentibus in eisdem, statu & ordine nostris & eorum cujuslibet in omnibus semper salvis. Verùm quia in praesenti Parlamento 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 hîc praesens etiam protestatur, quòd non intendimus, nec volumus, sicuti de jure non possumus, nec debemus, intendit, nec vult aliquis eorundem, in praesenti Parlamento, dum de hujusmodi materiis agitur, vel agetur, quomodolibet interesse; sed nos, & eorum quemlibet, in ea parte penitùs absentare, jure Paritatis & cujuslibet eorundem interessendi in dicto Parlamento, quoad omnia & singula mihi exercenda, nostris & eorum cujuslibet statu & ordine congruentia, in omnibus semper p. 47salvo. Ad haec insuper protestamur, & eorum quilibet protestatur, quòd propter hujusmodi absentiam, non intendimus, nec volumus, nec eorum aliquis intendit vel vult, quòd processus habiti & habendi in praesenti Parlamento super materiis antedictis, in quibus non possumus, nec debemus, ut premittitur, interesse, quantum ad nos & eorum quemlibet attinet, futuris temporibus quomodolibet impugnentur, infirmentur, seu etiam infringentur.

This Protestation, setting aside the legal Formalities of it, consists of 3 parts. 1. A Declaration of their undoubted Right as Peers of the Realm, by virtue of their Baronies, to Sit and Vote in all Debates of Parlament. 2. Of their intention to withdraw this Parlament, because several matters were to be handled, at which it was not lawfull for them, according to the Canons, to be present. 3. That by this absenting themselves they did not intend, as far as concerned them, to null the proceedings of that Parlament.

Here now arise three main Points to be discussed.

1. Upon what Grounds the Prelats declared, it was not lawfull for them to be present in Parlament, at such matters?

p. 482. How far the Parlament's receiving that Protestation makes it a Law?

3. Whether on supposition it were a part of Canon-Law then in force, it continues so still since the Reformation?

1. Upon what Grounds they declared it unlawfull for them to be present in Parlament, at such matters? One would think the very reading the Protestation were sufficient to convince any man; for the Bishops declare as plainly as men could do, that it was out of regard to the Canons of the Church, and not from any Law of the Land. For how was it possible that the same men should declare, that by reason of their Baronies they had full Right to be personally present in all Debates of Parlament, if there were some Law in force which made it unlawfull for them to be personally present? The greater force there is in the Protestation's being receiv'd in Parlament, the greater strength there is in this Argument. For if the Protestation's being allowed by King, Lords and Commons, make it (as the Authour of the Letter affirms) a perfect and compleat Law, then their Right to be present in all Debates of Parlament is a Law; and so much the more considerable, because it is no enacting Law, p. 49making that to be so, which was not before, but declarative of what was confessed to be their undoubted Right by King, Lords and Commons. And therefore I do not wonder, that the Authour of the Letter, so conveniently to his purpose, left out all the beginning of the Protestation, which so fully clears the sense of the rest. For the very same thing which afterwards the Bishops say they are forbid to doe by the Canons, that is, personaliter interesse, to give their personal attendance, they say at first, by Right of their Peerage, as Barons by tenure, did belong to them; for there the words are personaliter interesse too. Therefore that personal attendance in such matters which they said was unlawfull to them by the Canons, they challenge to themselves as their just Right by virtue of their Baronies. But is it possible to imagine, if they had been precluded from sitting by any antecedent Law, that ever such a publick avowing their Right would have passed the King and both Houses? So unsuccessfull hath the Authour of the Letter been in his Statute-Laws, that there can be no stronger evidence of the Bishops Right to sit in such Cases, then those which he produceth against them.

p. 50But he goes about to prove this Prohibition cannot be understood onelyonly of the Canon-Law: Lett. p. 21, 22.for the Canon-Law, saith he, was to them above all Laws; and what was forbidden by that Law, they could not have a thought, that it could in any sort be lawfull for them to challenge as their Right, upon any account. I confess I can see no force in this Reasoning: For when a thing is forbidden to men meerly by a positive Law of the Church, and the penalty of it is bare Irregularity by the Canons; why may not such men challenge their own Right notwithstanding those Canons, because the Irregularity might be dispensed with, when the Pope saw convenient? And by the Constitutions of O…hobon, Const. Othob. c. Nè Clerici.which were made in the time of H. III. we find, that if an Inferiour Clergy-man transgressed this Canon, it was in the power of the Diocesan to absolve him from his Irregularity. And this Canon was receiv'd and inforc'd most here in England on the inferiour Clergy, as appears by the Canons of Stephen Langton in the Council of Oxford, Spelman. Conc. To. 2. p. 183. p. 451.and other Synodall Constitutions here.Lyndwood ad tit. de Loc. & cond. c. vendentes. Si quis Clericus. For it is a Rule in Lyndwood, Clericus ex vi verbi non comprehendit Episcopum, sed cum adjuncto, sic in quantum illud adjunctum potest concernere Episcopum. p. 51That by Clerici we are not to understand Bishops, unless there be some adjunct that implieth it.Decretal. l. 3. tit. 50. c. 5. And among the Decretals there is one from Alexander III. to the Archbishop of Canterbury, under the Title Nè Clerici, to the same purpose. Where the Glosse, I grant, comprehends Prelats; therefore I will not deny, but they were to be irregular by the Canon-Law, as well as others. But then, we are to consider, how far the Legatine Power vested in the Archbishop of Canterbury might extend in such a Case; and that there was the same severity in the Canons against Clergymen's taking upon them any Secular Office: and yet in this very Parlament, Thomas Arundell Bishop of Ely was Lord Chancellour, and after him William of Wickham Bishop of Winchester, and before them R. Baybroke Bishop of London; and the Bishops of Durham and Exceter were Lords Treasurers under R. II. and in H. III's time we find 3 Clergy-men Lords Chief Iustices, Pateshull, Lovell and Mansell, notwithstanding these Canons; and in Edward III's time almost all the great Offices of the Court were executed by Clergymen. By which we see they did not think themselves so strictly bound to observe those Canons; or it was so easy to be p. 52dispensed with, that they had great Reason to insist upon the challenge of their own Right, notwithstanding the Canon-Law.

The truth is, the Canon-Law, as it was managed in those days, was one of the most mysterious pieces of Ecclesiasticall Policy: it was an Engine, which the artificial Church-men could screw up or let down as they pleased. If it were in a matter likely to be prejudicial to their interest, (as it was most apparently the case in 11 R. II. when matters grew so high between R. II. and the powerfull Lords, and so many Favourites were to be impeached, and among them Alexander Archbishop of York,) then it was a time to quote the Canons, and to enter a Protestation, and to withdraw: If the Times were calmer and more settled, or some great Reason moved them, then they could stick to their Right of Peerage, and make use of it, either in Person, or by Proxy, as they thought convenient. Nor was it so easy a matter to resolve what was Canon-Law in England, but they might with some colour make use of either of these Pleas. Rot. Parlam. 11 R. 2. p. 1. n. 26.For in this very Parlament 11 R. II. the Commons desire that those may be reputed Traitours who brought p. 53in the Pope's Bulls of Volumus & Imponimus: which shews that they did not think all Canon-Law that passed for such at Rome. And 15 R. II. Sir Will. Brian was sent to the Tower, for bringing a Bull from Rome which was judged prejudicial to the King, and derogatory to his Laws. And in 16 R. II. Will. Courtney, Archbishop of Canterbury, (the same who enter'd the Protestation before mentioned,) makes another of a different kind, owning the Rights of the Crown in opposition to the Pope's Encroachments. Now, by the same Reason, no Canon made at Rome, no Legatine or Synodal Constitutions, could have any force against the King's Authority. But the King himself being under a force at that time, as he alwaies declared afterwards, and that being,Knighton p. 2701. as Knighton saith it was called, Parlamentum sine Misericordia, the King having tied himself up, not to pardon any without consent of the Lords; he might be willing to let the Bishops excuse themselves; because that might give some colour to call in question the Proceedings then, as it did 21 R. II. when all the Acts of this Parlament were nulled: and the Lords and Commons might be very willing to let the Bishops p. 54withdraw, that their business might proceed with less difficulty against all the King's Ministers. So that here was a concurrence of many circumstances, which made the Bishops think fit not to appear in the House, this Parlament; and the King, Lords and Commons to be willing to receive their Protestation. But in the Anti-Parlament to this, that I mean 21 R. II. the Commons pray the King, that since divers Iudgments were undone heretofore, for that the Clergy were not present, they might appoint some Common Proctor with sufficient Authority to that purpose. This is a Passage which deserves consideration, and tends very much to clear the whole matter.

For the House of Commons declare, that divers Iudgments had been undone for want of the Presence of the Clergy. Therefore their Concurrence, in the judgment of the House of Commons, was thought necessary to make a Iudgment valid. A very late Authour finds himself so perplexed with this, that he knows not how to get off from it.A Discourse of the Peerage and Jurisdiction of the Lords Spiritual, p. 26. He cannot deny this to be in the Rolls of Parlament, and to be the first Petition of the Commons: but then he blames them for rashness and errour, and want of due Examination of p. 55Precedents. As though it were possible for any man now, to understand the Law and Practice better then the whole House of Commons then did. He saith, they were mistaken palpably de facto, in saying that divers Iudgments have been heretofore undone; and yet presently confesseth, that the two Iudgments against the two Spencers were reversed for this Cause; but he saith, there are no more to be found. Where doth he mean? in his Study? or not now extant in the Parlament-Rolls? But have we all the Rolls of Parlament that were then in being? or must men so boldly charge the House of Commons with Ignorance, Errour, breaking the Laws, because they speak against their fancies? But this Gentleman very peremptorily concludes the House of Commons then guilty of a very strange and unaccountable Oversight. It is great pity, a certain Gentleman had not been there to have searched Records for them, and to have informed them better. But we think a Iudgment of the whole House of Commons in such a Case, declared in so solemn a manner, without the least contradiction from the King or the Lords, might deserve a little more respect; and it had certainly had it, if it had made for p. 56the other side. But we see the House of Commons it self is reverenced, or not, as the Judgment of it serves mens purposes. And yet this was more then the bare Iudgment of the House of Commons: for a Petition was made upon it, and that Petition granted; and consequently a Common Proctor appointed, and that Proctor allowed by King, Lords and Commons. So that this was a Judgment ratified by consent of the King and the whole Parlament. For, if a Petition were made on a false ground, what had been more proper, then for the Lords to have open'd this to the Commons, and to have told them how unadvised and false their Iudgment was? whereas the Lords consented, and the Proctor was admitted, and gave his Vote in the name of the Clergy. But there is something more to confirm this Iudgment of the Commons, and that is, the Parlament 11 R. II. making Petition to the King, that all Iudgments then given might be approved, affirmed and stablished, as a thing duely made for the Weal and Profit of the King our Sovereign Lord, notwithstanding that the Lords Spiritual and their Procurators were absent at the time of the said Iudgments given. What means this Petition, if there had p. 57been no doubt at that time, that these Judgments might be reversed, as not duely made, by reason of the absence of the Prelats? The onelyonly answer in my mind is, that it was Error Temporis, they were of that mind then, but some are resolved to be of another now.

But from hence we plainly see, that even in R. II'^s time the Concurrence of the Bishops was thought so necessary, that one Parlament declared Iudgments had been reversed for want of it; and that very Parlament wherein they absented themselves, got a Clause inserted on purpose to prevent the nulling of those Iudgments: which signified nothing to the Parlament 21 R. II. which reversed them all.

There is something more considerable to our purpose in this Parlament; viz. that the same Authour produceth the Testimony of a MS. Chronicle, Discourse of the Peerage, &c. p. 20.which largely handles the Affairs of that Parlament, wherein it is confessed, that the Bishops, by concurring with the Lords in the Revocation of the Earl of Arundel's Pardon, did give Vote in a Case Capital: for so the words are there cited, Dederunt ergo locum Praelati judicio Sanguinis in hoc facto. Which shews that the Bishops did p. 58then give their Votes about the validity of the Pardon: which the Authour of that Chronicle indeed condemns them for, and tells us some thought they incurred Irregularity by it. From whence it follows, that all the Penalty supposed to be incurred was onelyonly Canonical; but he never charges them with going against the Law or Custom of Parlament therein.

But the Authour of the Letter saith,Lett. p. 30. Whatever was done this Parlament signifies nothing, because the whole Parlament stands repealed by 1 H. IV. and all done in it delcared null and void. Yet, to our comfort,p. 79. the same Authour tells us, the three Henry's were Usurpers; and therefore I desire to be satisfied, whether an Vsurper, by a Parlament of his calling, can null and repeal what was done by a King and his Parlament. If he may, then the King lost his Title to the Crown by the late Vsurpers; if not, then the Parlament 21 R. II. could not be repealed by that 1 H. IV. If the Authour of the Letter had considered this, he is a Person of too great Judgment and Loyalty, to have mention'd, more then once, the Repeal of that Parlament, Lett. p. 8…. pag. 115.by the subsequent Parlament 1 H. IV.

From all this we see, that by the Judgment p. 59of the whole Parlament, both 11 R. II. and 21 R II. the Bishops had a right to sit, so far that Iudgments were reversed where they were not present; and therefore all the pretence they could have for withdrawing must be from the Canon-Law: which although not sufficient to bind them, if the matter had been contested, yet it served them for a very colourable pretence of absenting themselves in such dangerous times, as those of 11 R. II.

Here the Authour of the Peerage and Iurisdiction of the Lords Spiritual thinks he brings seasonable relief to the Cause, pag. 19.when he undertakes to prove, that the Bishops withdrawing was not meerly on the account of the Canon-Law. This, I confess, is home to the business, If he can make it out. (1.) He saith, there was an Act of Parlament before, that did expresly prohibit them to excercise Iurisdiction in those Cases. This we utterly deny. And the Constitution of Clarendon, to which he refers, proves the contrary. (2.) The Bishops made bold with the Canons when they thought fit,p 20. as 21 R. II. But how could they doe that, unless they had a Parlamentary Right to be present? He saith, the Constituting a Proxy was as p. 60great a violation of the Canons, as being personally present: and what then? therefore the Parlament would not have suffered them to doe that, if there had been a Law to exclude them. How doth this prove that the Bishops did not withdraw on the account of the Canons II R. II. because they made a Proxie 21 R. II? But why did they not appear personally, if they had no regard to the Canons; when the receiving their Proxie shewed they had a legal Right to appear? But he grievously mistakes the meaning of the Canon of Stephen Langton in Lyndwood, when he interprets Literas pro poena sanquinis instigenda scribere vel dictare, against making of Proxies; which is onelyonly meant of giving or writing the Sentence for Execution. p. 21.(3.) He saith, they were excluded by ancient Custom; which, by a very subtle way of reasoning, he proves to have been part of the Fundamental Contract of the Nation, as he speaks. Seeing then, saith he, it is without doubt that there was such a Custom, that the Prelats should not exercise Iurisdiction in Capital Cases; (not so altogether without doubt, unless it were better proved then we have yet seen it;) and there is no Record that doth mention when it did begin, p. 61nor any time when it could be said there never was such an Vsage; (yes, before the Council of Toledo being published in Spain, and receiv'd here;) it must of necessity be supposed, that it is as ancient as the Government it self, and part of the Fundamental Contract of the Nation. Which looks so like a Iesuitical Argument, that one would have thought he had been proving Transubstantiation by it. For just thus the Argument runs at this day among that Party; There was a time when it was reciev'd, and no time can be instanced in wherein it was not, therefore it was a part of the Fundamental Religion of Iesus Christ. the plain Answer in both cases is the same: If we can produce unquestionable Authority to which a Doctrine or Practice is repugnant, we are not obliged to assign any punctual time in which it must first come in. But in this case, we do assign the very time and occasion of the Bishops absenting themselves in Capital Iudgments, and that was from the receiving the Canon of the Council of Toledo here: For no such practice can ever be proved before. And therefore this can never be proved to be any part of the ancient Common Law of England. And that this came in by way p. 62of imitation of other Countries, appears by the citing the Council of Toledo both by Lanfranc and Richard in the Council of Winchester. pag. 23.(4.) He saith, the Practice is ancienter then any of the Canons of the Church. But how doth that appear? The eldest Canon he can find is that of Stephen Langton in Lyndwood, which was made above 50 years after the Parlament at Clarendon. But we have made it evident, there was a Canon receiv'd here in Lanfranc's time, long before the Constitution of Clarendon. And so a full Answer is given to these Objections.

But we are told, by the Authour of the Letter, that the Bishops Protestation being receiv'd and enter'd in the Roll, or Iournal-Book, makes it to pass for a Law, it being agreed to by the King and two Houses; so as whatever was the Law before, if it were onelyonly the Canon-Law, it is now come to be the Law and Rule of Parlament, and the Law of the Land.

2. This is therefore the second Point to be examined, Whether the receiving this Protestation amounts to a Law of Exclusion? which it can by no means do for these two Reasons: 1. from the nature of Protestations in general, 2. from the particular nature of this Protestation.

p. 631. From the nature of Protestations in general. For a Protestation is onelyonly a Declaration of their minds that make it, and not of theirs who receive it, or suffer it to be enter'd in the Acts or Records of the Court; unless it be receiv'd in such a manner, as implies their consent. For, the very next Parlament after this, 13 R. II. the two Archbishops, in the name of the whole Clergy, enter a Protestation, That they gave no assent to any Law or Statute made in restraint of the Pope's Authority; and it is said in the Rolls of Parlament, that at their requests these Protestations were enrolled. Will any man hence inferre, that these Protestations were made Acts of Parlament? If the Cause would have born any better, a Person of so much skill in proceedings of Parlament would never have used such an Argument as this. Besides, it is a Rule in Protestations, Sum. l. 1. de Constit. n 18. pag. 24.Si Protestatio in Iudicio fiat, semper per contrarium actum tollitur, saith Hostiensis; A Protestation, although allowed in Court, is taken off by a subsequent Act contrary to it. Which shews, that a Protestation can never have the force of a Law; because it may be destroy'd by the Act of the Parties themselves. If therefore the Bishops did afterwards act contrary to this Protestation, p. 64they took away all the force of it.

2. The particular nature of this Protestation is such, as doth most evidently preserve their Right to be personally present on the account of their Peerage and Baronies; and the great design of a Protestation is, to preserve a Right notwithstanding some Act which seems to destroy it; as thier absenting themselves on the account of the Canons might seem to doe. But of this already.

3. We are now to consider the third Point, Whether, on supposition that on the account of the Canon-Law, the Bishops had always withdrawn in the time of Popery, that had continued in force still since the Reformation? I think not, upon these Reasons.

1. Because the Canon-Law was founded upon a Superstitious fancy, viz. that if Clergy-men be present in Causes of Bloud, they contract Irregularity ex defectu perfectae Lenitatis, Man…al. c. 27.as the excellent Canonist, Navarr, saith, because it argues a want of perfect Lenity. But if we consider the cases they allow, which do not incurre Irregularity, and those they do not allow, which do incurre it, we shall find all this stir in the Canon-Law about this matter to be onelyonly a Superstitious kind of Hypocrisy.

p. 651. If a man in Orders gives another man Weapons, without which he could not defend himself, and by those weapons he maims him that assaulted him; this doth not make him irregular: but if he kills him, it doth: and yet the Canons make the case of Dismembring and Death the same.

2. It makes a man act against the Law or Nature to prevent Irregularity. For they say, if it be for the defence of Father or Mother, or preventing the ruin of his Country, although the Cause be never so just, a Clergy-man that dismembers, or takes away another's life, is irregular.

3. If a Clergy-man discovers Treason, or accuses another for Treason, without a Protestation, that he doth not doe it with a design to have him punished; he is irregular: but if he makes that Protestation, although death follows, he is not.

4. If a Clergy-man be in an Army, and perswades the Souldiers to fight manfully, and kill as many as they can; this doth not make him irregular; ny, although he beats them, if they will not fight: but if he happens to kill an enemy himself, then he is.

5. If he gives a Souldier a Sword or a p. 66Gun, by which he dispatches his enemies, if he did it with a particular intention that he should slay or maim them, he is irregular; if onelyonly with a general intention, that he should overcome, he is not. This being somewhat a nice Case, the Canonists take more then usual pains to prove it. And from hence they defend their Priests and Iesuits in the Indies, who carry the Cross before their Armies into the Field, and encourage them to kill all they can: and yet Navarr saith, they are so far from being irregular, that they are regularissimi, as his word is.

6. If a man, to gain an Indulgence, carries a faggot to burn an Heretick, if it be with a design to take away his life, he is irregular: but if he be hanged first, or dead before it be thrown into the fire, then he is not.

7. If a man in Orders helps a Chirurgeon in cutting off a man's Leg, he is not irregular: but if a man be justly condemned to have his Leg cut off, if he then gives any assistence, he is irregular: because the one is moved out of Mercy, and the other out of Justice.

8. If the Bishops sit and condemn a man for Heresy, and deliver him over to p. 67the Secular Power for Execution; yet they free this from Irregularity, or else the practice of the Inquisition were lost. This seems a very difficult Case: but the Canonists salve this,Covarruv. ad Clem. fi surios. p. 2. § 5. n. 6. by saying that the Inquisitours, when they deliver them over to the Secular Power, do pray that they may not be hurt either Wind or Lim; as it appears by the Forms used in the Directorium Inquisitorum. And if this be not the height of Hypocrisie, let the World judge. And therefore this part of the Canon-Law is not consistent with the Sincerity of the Reformation.

2. This part of Canon-Law is inconsistent with the King's Power over Ecclesiastical Persons. For it supposeth them liable to the penalty of a Law, which he hath no cognisance of, and derives no force or authority from him: which tends to the diminution of the King's Prerogative Royal, and therefore it is nulled by the Stat. 25▪ H. VIII. c. 19. I do very much question whether this ever were any part of the Canon-Law of England, notwithstanding the Pope's Decretals; i. e. whether these Canons ever received confirmation by the Royal Authority, either in Synodal Constitutions, or elsewhere. And it would be a very hard p. 68case, if our Kings had not the same Privileges which are allow'd in Popish Countries; viz. that nothing passes for Canon-Law within their Territories, till it pass the examination of the King's Council, and approbation by his Authority. Thence in France nothing passes without the King's Pareatis; nor in Spain or Flanders, without the King of Spain's Placet; no nor in the Kingdom of Naples, without the Royal Exequatur. It is well known, that the 6. Book of Decretals was not allowed in France, because of the quarrel between the King and Boniface VIII. and that even the Council of Trent it self was not allowed by Philip II. till it had been strictly examined by the King's Council, that nothing might be allowed which tended to the diminution of his Prerogative. How then will men justifie the making that a part of the Canon-Law of England, which was repugnant to the Rights of the Crown, and deprives the King of the Power of taking advice of those of his Subjects, whom he hath summon'd for that end?

3. The Sanction of this Law is ceased, which was Irregularity: And some of our most Learned Iudges have declared, that is taken away by the Reformation. But p. 69in case any be of another opinion, I shall urge them with this inconveniency; viz. that the great Instrument of discovering the Plot falls under Irregularity by it. For it is most certain, by the Canon-Law, that a man in Orders accusing others of Treason, without making his due Protestation in Court, is Irregular. But if this be now thought unreasonable, as it is, in the person of an Accuser, why should it not be so in the case of Iudges? And if the Irregularity be taken away, then the Sanction is gone: and if the Sanction be taken off in a meer positive Law, the force of the Law is gone too. And therefore this Canon-Law, which forbids Clergymen being present in Capital Cases, and giving Votes therein, is wholly taken away by the Reformation. And we do not find any mention of it for 80 years and more after the Reformation; till about the time of the Earl of Strafford's Trial, a Book being printed about the Privilege of Peers, wherein this Protestation was mention'd, hold was presently taken of it, by Men who thought they could not compass their ends without removing the Bishops out of the House: and when the Bishops insisted on their Right, and could not be heard, but at last were willing to salve p. 70their Right by Proxies; the Lords of the Cabal prevailed with their friends, to declare they would use no Proxies themselves, and so by that artifice shut the Bishops out of Doors.

4. The practice hath been so contrary, since the Reformation, that I find no manner of regard hath been shewed to it. For the Archbishop of Canterbury was the first nominated in the Commission for the Trial of the Queen of Scots; as appears by the Commission it self in Camden; Camden. Annal. A. D. 1586.which is directly contrary to the Canon-Law. Some distinguish the Bishops acting by Commission, from their being Iudges in Parlament. For which there is no manner of Reason with respect to the Canon-Law, which is rather more express against any kind of Commissions in Cases of Bloud; as appears by the Council of Toledo, the Synodal Constitution, and the Pope's Decretals. And there hath never been any scruple about Divines sitting on the Crown-side as Iustices of the Peace, Vid. Lyndwood in Constit. Othob. c. Nè Clerici. v. In eisdem.when Sentence of death is pronounced; nor in the Ordinary's declaring Legit, or Non legit, when a man's life depends upon it. But, which is yet more to our present purpose, in the Parlament 22. May 1626. upon the Impeachment of the Earl of Bristol p. 71of high Treason, 10 Bishops, 10 Earls, 10 Barons, were appointed to examine the Evidence; and upon their Report he was sent to the Tower by the whole House. All which shews, that there hath been no regard had to the force of the Canon-Law in this matter since the Reformation: That being a Spirit lay'd long since by the Principles of our Church; and it would be strange, if some mens zeal against Popery should raise it again.