Concerning the Bishops Right to Vote in Parliament in Capital Cases, Chapter 1

Concerning the Bishops Right to Vote in Parliament in Capital Cases · Chapter 1

THE GRAND QUESTION, Concerning the Bishops Right To VOTE in PARLAMENT In Cases Capital, STATED and ARGUED, FROM The Parlament-Rolls, and the History of former Times. WITH An Enquiry into their Peerage, and the Three Estates in Parlament.

LONDON, Printed for M. P. and sold by Richard Rumball Book-binder, at the Ball and Coffin in the Old Change, 1680.

THE CONTENTS.

CHAP. I.

THE Question stated; and general Prejudices removed.

CHAP. II.

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

CHAP. III.

The Precedents on both sides laid down: those against the Bishops examined and answered.

CHAP. IV.

The Peerage of the Bishops cleared; how far they make a third Estate in Parlament. Objections against it answered.

p. 1CHAP. 1.

The Question stated; and general Prejudices removed.

THE Question in debate, as it is stated by the Authour of the Letter, is, Letter p. 1.Whether the Bishops may be present and Vote Iudicially in Capital Cases, which come to be judged in Parlament, either in giving the Iudgment it self, or in resolving and determining any circumstance preparatory and leading to that Iudgment?

For our better proceeding towards a Resolution of this Question, it will be necessary to take notice of some things granted on both sides, which may prevent needless disputes, and be of great use in the following Debate.

1. It is granted, Lett. p. 93.That the Bishops do sit in Parlament by virtue of their Baronies, and are bound to serve the King there. And one part of the Service due to the King there, is to sit in Iudgment: for the Authour of the Book entitled, The Iurisdiction of the House of Peers asserted, proves p. 2at large, that the Right of Iudicature belongs to the Barons in Parlament; and that the Lords Spiritual have a considerable share therein, appears by this passage, in the Title-page of that Book, translated into English.

The Iudgment of the Lords Spiritual and Temporal is according to the Vse and Custom of Parlament.

The Vse and Custom of Parlament is the Law of Parlament.

The Law of Parlament is the Law of England.

The Law of England is the Law of the Land.

The Law of the Land is according to Magna Charta.

Therefore the Iudgment of the Lords Spiritual and Temporal is according to Magna Charta.

Some Right then of Iudicature in Parlament the Bishops have by Magna Charta: which, whatever it be, is as much theirs by that Charter as any Right of Temporal Persons; and cannot be invaded or taken from them without breach of that Charter, any more then the Rights of the Lords Temporal, or of any other Persons whatsoever. But how far that Right doth extend, is now the thing in Question.

p. 32. It is not denied, that the Bishops do sit in Parlament by the same kind of Writs that other Barons do. They are summon'd to advise and debate about the great and difficult Affairs of the Kingdom; cum Praelatis, Magnatibus & Proceribus dicti Regni nostri Angliae colloquium habere & tractatum; i. e. to joyn therein with the Bishops and other Lords of the Kingdom. So that by the King's Writ of Summons they are impower'd and requir'd to confer and treat of all the weighty Affairs that shall be brought before them. And no Instance is so much as offer'd to be produced of any Writ wherein the King doth limit and restrain the Bishops, any more then any other Lords of Parlament, as to any matter of Consultation, or Point of Judicature, belonging to that House. They have then by their Writ of Summons as good right to sit in all Cases, as in any: and since the other Lords by their Writs are summoned to advise with the Prelates in all matters that shall come before them, without limitation, it is not to be conceived how this can be done, if the Bishops in some of the most important Debates be excluded.

3. It is yielded,Lett. p. 3. 118. That if the House proceeds p. 4in a Legislative way by passing Bills of Attainder, the Bishops have a Right to sit and Vote therein as well as other Lords: at these it is said, that the Bishops are or should be all present at the passing of them, for then they act as Members of the House of Lords in their Legislative capacity. But men do as certainly die that are condemned in the Legislative, as in the Iudicial Way. Is not this then really as much a Case of Bloud as the other? If the Bishops should give their Votes in the Legislative way to condemn a Person for Treason, and yet think they had not Voted in a Case of Bloud; they would then indeed be like Chaucer's Frier, mention'd by the Authour of the Letter, that would have of a Capon the Liver, Lett. p. 66.and of a Pig the Head, yet would that nothing for him should be dead. Doth a Bill of Attainder cut of a man's Head without making it a Case of Bloud? There can be then no objection now made against the Bishops Right from any Canons of the Church; for those allow no such distinction of proceeding in the Legislative, or Iudicial Way.P. 21. And the late Authour of the Peerage and Iurisdiction of the Lords Spiritual doth grant, that the Canons do prohibit the Bishops voting in Bills of Attainder, p. 5as much as in any Case whatsoever.

But we are not to suppose a Person of such abilities as the Authour of the Letter, would go about to exclude the Bishops from their Right of Voting in a Iudicial way in Cases Capital, unless there were some great appearance of Law on his side; because he professes so great a Desire that Right may prevail; Lett. p. 2, 3.and that his design in writing was, to satisfy himself and others where that Right is. The discovery whereof is our present business. Yet before the Authour of the Letter comes to a close debate of the matter of Right, he lets fall some general Insinuations to create a prejudice in the Reader's mind, as to the Bishops meddling at all in Secular Affairs, as though it were inconsistent with their Function, and with some passages in the Imperial Law. And because men may sometimes doe more harm by what they tell us they will not say, then by what they do say; it will be fit to prevent the danger of such Insinuations, before we come to consider his Arguments.

1. The first is,Lett. p. 5. that meddling at all in Secular Affairs seems to be the doing that which the Apostles declared they would not doe, viz. leave the Word of God, and serve Tables. But are all Persons of Estates now p. 6bound to part with them, as the Christians then did? The serving of Tables was a full employment; and they who attended that Office were the Treasurers of the Church, to distribute to every one as they judged fit, out of the common Stock. Is it no Service to God, to doe Justice, and to shew Mercy? to attend upon the publick Affairs of the Kingdom, when they are called to it by their Sovereign? Or are all Bishops now in the same circumstances the Apostles were when the Christian Church was to be planted in the World, and so few persons as the 12 Apostles made choice of for that Work? Is there no difference to be made between a Church constituted and settled and incorporated into the Commonwealth, and one not yet formed, but labouring under great difficulties, and making its way through constant persecutions? May it not be as well argued, that Bishops are not to stay in one Countrey, nor to have any fixed habitation, because the Apostles passed from place to place preaching the Word of God? Doth not the Authour of the Letter himself confesse, that the Clergy are one of the Three Estates of the Kingdom? Lett. p. 86.and by the Act 8 Eliz. 1. the Clergy are called one of the greatest p. 7States of this Realm. And is there not then great Reason, that those who are the chief part of it, as he confesseth the Bishops to be, should have a share in affairs that concern the whole Nation? And would it not seem strange to the Christian World, that we alone of all the Kingdoms of Europe should exclude the Bishops from having an equal Interest with the other Estates in Parlament? For it were easy to prove from unquestionable Testimonies, that as soon as the Christian Religion was well settled in any of these Northern Kingdoms, the Bishops were admitted into all the publick Councils: and have so continued to this day, where the Convention of the Estates hath been kept up; Bohemia onelyonly excepted since the days of Sigismond.

I begin with France, where Hincmarus saith,Hincmar. Epist. de Ordine lalatii. there were two great Councils every year: one of the States of the Kingdom, for ordering the Affairs of the ensuing year, and redressing of Grievances; and in these the Bishops were always present: and the other of the King's Council, which managed the intervening Affairs; and into this the chief of the Bishops were chosen. It were endless to repeat the several Parlaments in France in the time of the Merovingian p. 8and Caroline Race, wherein Laws were passed, and the great Affairs of the Kingdom managed by the Bishops, Noblemen, and others. Those who have looked into the ancient Annals and Capitulars of France, cannot be ignorant of this. There is one thing remarkable to our purpose in the famous Council of Frankford, which opposed the Worship of Images so stoutly, viz. that after the matters of Religion were agreed, then, according to the Custom of that Age, the other Estates being present, they proceeded to other matters: and then Tassilo Duke of Bavaria was brought upon his Knees for Treason; and the Cause of Peter Bishop of Verdun was heard, who was likewise accused of Treason, and there purged himself. Concerning both which Cases there are 2 Canons still extant among the Canons of that Council:Concil. Franc. c. 3. & 9. and in another, the Bishops are appointed, by consent of the King, to doe Justice in their several Dioceses. And that they had not onelyonly a share in the Legislative, but in the Iudiciary part, appears by one of the ancient Formulae in Marculphus, Marculph. Form. l. 1. c. 25.where it is said, that the King sate in Judgment unà cum Dominis & Patribus nostris Episcopis, vel cum plurimis Optimatibus p. 9nostris; (vel, in the language of that Age, is the same with &.) This was the Palatine Court,Not. in Marc. p. 287. where Bignonius saith the greater Causes were heard, the King himself being present, (or the Comes Palatii,) Episcopis & Proceribus adsidentibus, the Bishops and Lords sitting in Iudicature together with him. And this was not onelyonly the Original of the Parlament of Paris, as a standing Court of Iudicature; but the like in England was the true foundation of the Supreme Court of Iudicature in the House of Peers. So that in the eldest and best times of France, after Christianity had prevailed there, neither consultation about publick Affairs, nor administration of Justice were thought inconsistent with the Function of Bishops.

In Spain, during the Gothick Power, all the great Affairs of the Kingdom, and even the Rights of their Princes, were debated and transacted by the greatest of the Clergy and Nobility together; as may be seen in the several Councils of Toledo in that time,Concil. Tolet. 4. c. 75. 5. c. 7. 6. c. 17. 8. in Praef. 12. c. 1. 17. c. 1. 17. c. 1. in the case of Suintilas, Sisenandus and others. And in one of them it is said, that after they had dispatched matters of Religion, they proceeded ad caeterarum Causarum negotia, to the handling of other Causes. Cont l. Tolet. 13. c. 2.In the 13. p. 10Council of Toledo, the Case of Impeachments of Treason is brought in; and Rules set down for due proceedings therein. And yet from one of these Councils of Toledo it is, that all the stir hath been made in the Canon-Law about Bishops not being present in cases of bloud.

In Germany, the first Laws that were ever published were those by Lotharius II. in Comitiis Regni, Rer. Aleman. To. 2. Cod. Leg. Antiq. B. 362.saith Goldastus; and there were present 33 Bishops, 34 Dukes, 72 Counts, besides the People. And by the Matriculation-Roll of the States of the Empire, it appears what a great Interest the Clergy have preserved ther in from the first times of the prevalecy of Christianity there.Arumae. de Comitiis …. 35. c. 4. …. 98. And Arumaeus, a considerable Protestant Lawyer of the Empire, saith, the Bishops of Germany sit in a double capacity in the Diets, both as Bishops, and as Princes of the Empire. And he commends the prudence of that Constitution with respect both to Iustice, and the Honour and Safety of Religion.

For the Kingdom of Bohemia,Goldast. Bohem. l. 5. c. 1. Goldastus, a learned Protestant, saith, that there, as in all other well-constituted Kingdoms among Christians, there were 3 Estates, of Prelats, Nobles, and Commons; and this continued, he saith, from p. 11the time Christianity was received, till the days of Sigismond.

No sooner was Christianity received in Hungary, Bonfin. dec. 2. l. 1.but their Princes, Stephanus and Ladislaus, called their great Councils of their Prelats and Nobles: and the Laws made in the Concilium Zabolchianum were passed by the King, Decret. Ladiss. p. 12.with all his Bishops and Nobles, and with the consent of the whole Clergy and People.

In Poland,Starovolse. …olon. p. 2…5. Starovolscius saith, that their Ancestours, after they received Christianity, out of regard to Religion, gave the Bishops the first place in the Senate; and admitted the Clergy to the great Offices of the Kingdom.Herburt. Stat. Regni Pol. p. 263. And Sigismond in his Constitution saith, the States of Poland consist of the Bishops, Barons, and Delegates, called Nuntii terrestres.

In the Northern Kingdoms, Adam. Brem. de situ Dan. n. 85.Adamus Bremensis saith, that the Bishops, after the People received Christianity, were receiv'd into their publick Councils.Loccen. Antiq. S…eco. Goth. c. 8. And Loccenius reckons up among the several Estates, the Bishops, Nobles, Knights, and Deputies of the Country and Cities. And it appears by the Hirdstraa,Ius Aulicum N…rveg. c. 3. c. 36. or the ancient Laws of Norway, the Bishops as well as Nobility were present in the Convention of the States, and all publick Councils.

p. 12The like might be proved here in the Saxon times, from the Conversion of Ethelbert downward. This is so very evident, that he must blind his eyes that doth not see it, if he doth but cast them on the History of those times.

These things I have laid together with all possible brevity and clearness, that in one view we may see a consent of all these parts of the Christian World, in calling Bishops to their publick Councils, and most solemn Debates; and how far they were from thinking such Imployments inconsistent with their Sacred Function, and charging them, that thereby they left the Word of God to serve Tables. Neither can this be looked on as any part of the Degeneracy of the Church, or the Policy of the Papacy; since, as the fore-cited Arumaeus saith, they were admitted to this honour before the Papal Power was advanced; and were so far from carrying on the Pope's designs, that they were, in most Countries, the greatest Opposers of them. And when the Popes began to set up their Monarchy, their business was, to draw them off from meeting in these Councils, under several pretences of Cases of Bloud, and other things; the better to keep them in a sole Dependency on themselves. p. 13As will appear by the following Discourse.

2. The next thing suggested is, that the Imperial Law doth forbid Clergy-men having any thing to doe with Secular matters.Lett. p. 3, 4. And for this a Rescript of Honorius and Theodosius is mentioned, and a Decree of Iustinian. To which I answer,

1. The Imperial Edicts are not the Law of England. Our dispute is about a Right by our own Laws; which a Rescript of Honorius and Theodosius can neither give nor take away. What would become of the whole frame of our Government, and of our just Rights and Properties, if the producing of Imperial Edicts would be sufficient to overthrow them? When the Bishops once pleaded hard in Parlament in behalf of an Imperial Constitution, lately adopted into the Canon-Law, the Answer given by all the Temporal Lords was,Stat. Merton c. 9. 20 H. 3. Nolumus leges Angliae mutare, quae huc usque usitatae sunt & approbatae. They did not mean, they would make no alterations in Parlament, for that very Parlament did so in several things: but their meaning was,Dissert. ad Flet. c. 9. § 2. as Mr. Selden observes, that they owned neither Canon nor Imperial Laws here, any farther then they were agreeable to the Laws of the Land.

p. 142. The Imperial Constitutions do give liberty to Church-men to have to doe in Secular Affairs. The Emperour Constantine, whose Constitutions deserve as great regard as those of Honorius and Theodosius, to shew his respect to the Christian Religion, permitted all men to bring their Causes before the Bishops, without ever going to the other Tribunals,Soz. hist. l. 1. c. 9. as Sozomen, a Lawyer of Constantinople, relates. And this is the true foundation of the Constitution De Episcopali Iudicio; as Gothofred confesseth. Which is at large inserted into the Capitulars, Capitul. Carol. & Ludov. l. 6. c. 281. ed. Lindenb. c. 366. ed. Baluz.with a more then usual introduction; and made a Law to all the Subjects of the Empire, Franks, Saxons, Lombards, Britons, &c. and therefore is more considerable to these parts then a bare Rescript of Honorius and Theodosius. And yet, these very Emperours,Cod. Just. de Epise. Audient. l. 1. tit. 4. c. 8. in a Constitution of theirs, do so far ratifie the Judgment of Bishops upon Trial by consent before them, that no Appeal doth lie from their Decree. What Rescript then is this of theirs which so utterly forbids Clegy-men having any thing to doe with publick Functions, or things appertaining to the Court? I suppose that Constitution of Honorius is meant, which confines the p. 15Bishops Power to what concerns Religion; and leaves other Causes to the ordinary Judges and the Course of Law. But two things are well observed by Iac. Gothofred concerning this Rescript of Honorius: Cod. Theodos. l. 16. tit. 11. c. 1.1. that it is meant of absolute and peremptory Judgment without Appeal; 2. that whatever is meant by it, not many years after, this Constitution was repealed by Honorius himself, and the Bishops sentence made as absolute as before. So that Honorius is clearly against him, if a man's second judgment and thoughts be better.

3. The practice of the best men in those Ages shews, that they thought no Law in force to forbid Church-men to meddle in Secular Affairs: as might be at large proved from the practice of Gregory Thaumaturgus and S. Basil in the East; Greg. NysS. vit. Greg. Basil. in ep. Socr. l. 7. c. 37.of Silvanus Bishop of Troas, of S. Ambrose, S. Augustine, and others of the greatest and most devout Church-men of those times.Ambros. de Offic. l. 2. c. 24. And S. Augustine was so far from thinking it unlawfull,Aug. ep. 147. in Ps. 118. conc. 24.Ps 118 that in his opinion S. Paul commanded the Bishops to doe it. Constituit enim talibus Causis Ecclesiasticos Apostolus Cognitores. And the learned Gothofred of Geneva saith,Jac. Goth. in cod▪ Theod. ad Extrav. de Episc. judicio. Mos hic frequens & legitimus eundi ad Iudices p. 16Episcopos. It was then a common and legal practice to go to Bishops as to their Iudges. Which would never have been, if there had been a Law in force to forbid Bishops meddling in Secular Affairs.

4. The Emperours still reserved to themselves the power of dispensing with their own Rescripts, and the Canons of the Church.Concil. Sardic. c. 7. Therefore the Council of Sardica, when it prohibits Bishops going to Court, excepts the Princes calling them thither. Upon which Balsamon hath this Note; that although the Canons prohibit, yet if the Emperour commands, the Bishops are bound to obey, and to doe what he commands them; without any fault either in the Emperour or them. And in other places he asserts the Emperour's power of dispensing with the strictest Canons against Church-mens meddling in Secular Affairs:Balsam. in Can. 4. Concil. Chalced. Thence he saith, the Metropolitan of Side was chief Minister of State under Michael Ducas; and the Bishop of Neocaesarea made the Laws of the Admiralty for Greece. And the Glosse upon Iustinian's Novells observes,Auth. Collat. 1. tit. 6. Novell. 6. c. 2. that Bishops may meddle with the Affairs of the Commonwealth, when their Prince calls them to it. And this is the present Case; for p. 17the Bishops are summon'd by the King's Writ to serve him in the publick Council of the Nation: and therefore no Imperial Rescript, if it were of force in England, could have any in this Case, which was allowed by the Imperial Laws themselves.

5. There is a great Mistake about Iustinian's Decree.Justin. Cod. l. 1. tit. 3. c. 41. For the Bishops are not so much as mention'd in it; but the Defensores Ecclesiarum; who were Lawyers, or Advocates of the Church: as appears by a Constitution of Honorius; where Gothofred proves they were not so much as in Orders.Cod. Theod. l. 16. tit. 2. n. 38. It is true, Iustinian doth appropriate the Probat of Wills to the Master of his Revenue; but the Law and Custom of England, Lindwood l. 3. de Testam.as Lindwood observes, hath alter'd that Constitution: and which must we regard more, Iustinian, or our own Laws?

I find one thing more suggested by way of Prejudice to the Cause in hand, viz. the Common Law of England, Lett. p. 4.which hath provided a Writ upon a Clergyman's being chosen an Officer in a Mannor, saying it was contra Legem & Consuetudinem Regni, & non consonum. The Argument had been altogether as good, if it had been taken from a Minister of a p. 18Parish not being capable of the Office of Constable; and it had as effectually proved that Clergy-men ought not to meddle in Secular Affairs.