AN ANSWER TO THE GENTLEMAN'S Letter to his Friend: SHOWING THAT BISHOPS MAY BE JUDGES IN Causes Capital.  PSAL. 82.1. 
Deus stat in Congregatione Dei: in medio Deorum judicat.  
LONDON, Printed by Tho. Braddyll for Robert Clavell at the Peacock in S. Paul's Churchyard, 1680.   

AN ANSWER TO THE GENTLEMAN's Letter to his Friend: SHOWING THAT BISHOPS MAY BE JUDGES IN CAUSES CAPITAL.  
SIR,  
I Thank you for the Gentleman's Letter you sent me, touching the Right of Bishops sitting as Judges in Cases Capital. This Order of Men is not Sacred enough, it seems, in the Constitution, to secure it against (the Iniquity of these last Times) Attempts of Rage and Extirpation.  
Not to mention Martin Marprelates, nor others of former Times; within our own Memory, Mr. Prym led up the Van against them (1640.) in a Book of this Title, viz. [Lord-Bishops, none of the Lords Bishops.] After their Divine or Apostolical Constitution, they began to question their Right to Sat in Parliament. This occasioned that Quodlibetical Question, [Whether the Bishops make a Fundamental and Essential part of the English Parliament. The Rational and Solid Answer to which Question was Printed in 1661., and now Reprinted (as then put forth at first) for the Information of some, the Confirmation of others, and the satisfaction of all.  
The Gentleman who wrote this Letter, seems to grant the Bishops a large share of Power within this Kingdom; yet as to Secular Matters, he does insinuate some kind of Prohibition they are supposed to lie under, though his Arguments are very inconsequent to prove it. The Rescript of Honorius (he saith) & Theodosius, & the Decree of Justinian forbidden them to have to do in Secular Matters? Therefore the Kings of England (who are of another Mind, upon good experience of their judgement and fidelity) may not admit them to have any Communion with Public Functions: Nor is the Argument less inconsequent, which the Gentleman insinuates from the Apostles Declaration and Practice. The Argument must be this, A few men are appointed by our Lord to propagate the Gospel, and plant the Christian Church all the world over; and they think it unreasonable they should neglect this generous Employment (imposed upon them immediately from Heaven, to serve Tables, that is, to relieve the Temporal Needs of indigent Disciples) therefore when the Church is generally established, Bishop's settled in every Diocese, and Ministers in every Parish, it is equally unreasonable that the King should intrust any of the Clergy with any Secular Employments.  
But after these By-blows, this Gentleman tells us, This is none of his business (which he had therefore done better to have let alone;) 'Tis the Critical point he stands upon, which he calls Vexata Quaestio, what is to be done in Parliament, that is, in their Judicial way upon Trials, not in their Legislative Capacity, passing Acts of Attainder, in which the Gentleman is pleased to confess [I know that Bishops have born a part; but (saith he) that is not now the Question, but only this, Whether the Lords Spiritual have a Right to stay and sit in Court, till the Court proceeds to the Vote of Guilty, or Not Guilty.] This Gentleman concludes, They ought not. But the Question truly and precisely stated, is only this; Whether of Right they may or may not? And having diligently examined what hath been said on both sides (as the Gentleman hath advised me) I profess to differ from him, finding no sufficient Reason to change my Opinion, which is for the Affirmative.  
But the better to carry on his Negative, this Gentleman falls upon Two Questions more, which may be thought preliminary to this other. The First is, touching the Peerage of the Lords Spiritual: The Second, Whether they make a Third Estate in Parliament? These two fall in collaterally, and must be considered before we fall upon his main Battalia, mustered up for the Defence of the Opinion we oppugn.  
1. That the Bishops make a Third Estate in Parliament, there is very much alleged in the Treatise forementioned (from the Examples of all Christian Kingdoms of the Gothick Model, from Titus Livius, Sir Edward Cook, the Parliament- Rolls of King Richard the Third, and the Recognition of the Lords Spiritual and Temporal with the Commons, 1 Eliz. 3. & 8. and what is argued from thence, p. 16, 17. of the Rebel's Plea, Printed 1660.) to which I shall add that Mr. Sheppard in his Grand Abridgement, and the Word Parliament tells us, That the Parliament in England is the Assembly of the King and the Three Estates of the Realm, viz. the Lords Spiritual, the Lords Temporal, and the Commons. And this Gentleman does acknowledge (p. 86) that the Subjects of England are divided into Three Estates, The Nobility the Clergy, and the Commonalty. These, he saith, are the several Estates of the Kingdom. But if the Bishops be not One of these Estates, than one of the Three Estates of the Kingdom is not Represented at all in Parliament (for he saith, (p. 88) that the Convocation where all the Clergy are present in their Persons, or their Representatives, is no part of the Parliament,) which is absurd. The Authority of Mr. Selden to the contraay, is most consonant to Reason; and the Practice at the Ratification of the Peace with the French King, 9 H. 5. & 11 H. 7. are further Confirmations of it.  
But this Gentleman saith (p. 88) The Three Estates of Parliament are clean another thing; each must have a Negative Voice to all that passeth there: I might take notice by the By of his Mistake herein; for there is nothing passeth where use is made of the Negative Voice: but I must observe, that this is a cleanly begging of the Question. As for the Bishops being intermingled with the Earls and Barons, and so if they be an Estate, it is an Estate within an Estate, like a Nest of Boxes, one within another, there is no absurdity at all in it: for when Christianity had prevailed (not to recur to the time when all the Members of Parliament sat in one House together) the Piety and Prudence of those times thought the State of the Church (with all its Rights and Interest) safe enough among the Nobility, without any peculiar Negative voice to secure it; and yet the Bishops Right of Protesting (upon just occasion) serves very well instead of such a Negative.  
But this Gentleman thinks it would be a great Disparagement to the Peerage of England, that Two Estates must be put together, to keep the Balance even with the House of Commons, who are but One Estate; and that their Two should signify no more than that One: (taking no notice how much more they signify, though they do very much,) To this I answer in the general, That Numbers of persons add no Right or Privilege to a Politic Estate: The Peerage of England had the same Power arid Dignity when they were not half so Numerous.  
But to be more particular, Experience tells us (and we have an Instance too fresh in memory) That neither the Bishop's Protestation, nor the Temporal Lords Negative Voice, nor the Kings Le Roy S'avisera, are sufficient to hold the Balance even when the Commons depart from the Principles of Honour, Justice, and Loyalty. And as they never pretended to be infallible, so have they not always been observed to be so calm and steady in their Proceed, as becomes the Wisdom and Honour of so Grave and Solemn a Convention. In 50 E. 3. they desired, that the Lord Latimer, the King's Chamberlain, (for pretended Oppression) might lose all his Offices, and be no longer of the King's Council; which the King granted; yet afterwards 51 E. 3. at the Request of the Commons themselves, he was restored to all, and declared innocent. This Gentleman was so sensible of this their Prejudice and Rashness (attended with so much Levity) that he could not pass it by, without setting some Remark upon it, p. 12.  
But when Justice, Loyalty and Honour governs their Debates and Resolutions, we may put the King, and (to use his own Illustration) all the Three Estates of Parliament into the same Nest of Boxes, and yet their respective Interests (which is the Interest of the whole Kingdom interwoven) will be secure, and preserved inviolate.  
But the Gentleman tells us further, That if the Bishops be one of the Three Estates, nothing can pass in Parliament without them. This may be generally true among States coordinate, without a Sovereign Head over them; and when a Rival is set up, to give Checkmate to the Sovereign Authority, as it was in the time of Hen. 8. mentioned by this Gentleman (at p. 92. when the Question was [To whom the Supreme Jurisdiction did belong, to the King, or to the Pope?] (In the time of such a Competition, the Crown is obliged to secure itself against such an Usurpation, and does most justly abandon the Clergy that sides with it.  
But 2. If Acts have passed without the Bishops, they have likewise done so (as by him is said) sometimes without the Commons. Egbert, who first united the Seven Kingdoms of the Saxons, under the common Name of England, he caused to be convened at London His Bishops and Peers of the highest Rank, to advise upon some course against the Danish Pirates, (this was a Military Business, and Bloodshed might have ensued upon the Stubbornness of those Pirates) who infested the Sea-Coast of England. And King Ethelwolph in Parliament or Assembly of his States, at Winchester, Anno 855. 
These Great Councils were the Parliaments of those Times, Let. p. 72.  by the Advide and Counsel of the Bishops and Nobility, confirmed unto the Clergy the Tenth Part of all men's Goods; and Ordered that the Tithe so confirmed unto them, should be free from all Secular Services and Impositions. And Wingate in his Abridgement, and the World Parliament, tells us, out of the Mirror of Justices, of an Act in Aelfred's Time, That Parliaments should be held twice a year, and oftener if need required. But (note, saith he) This was by the King and Lords only. And I believe we may observe the like practice among some of this Gentleman's Precedents.  
But it is much more satisfactory, when the Laws are Enacted by the Sovereign Authority, at the Request of the Commons, with the consent of the Lords Spiritual and Temporal; that is, by the King, with the joint Assent of the Three Estates of Parliament; let us not therefore dissolve or drive them away when we have them.  
That which is alleged out of Bishop Jewel and Crompton, 
p. 93. to 98.  I refer you to the Answer of the Quodlibetical Question for your satisfaction.  
That King James was of this Judgement, is evident from the very Words and Speech produced by this Gentleman to the contrary. The Parliament (saith he) is composed of a Head and a Body; The Head is the King, the Body are the Members of the Parliament: This Body again is subdivided into two parts; the Upper and the Lower House; the Upper House compounded partly of Nobility, Temporal men, who are Hereditable Counsellors to the High Court of Parliament, by the Honour of their Creation and Lands; and partly of Bishops, Spiritual men, who are likewise by virtue of their Place and Dignity, Counsellors ad vitam, Liferenters of this Court. The other House is composed of Knights for the Shires, and Gentry and Burgesses for the Towns.] Here we see, though the King makes but Two Houses, yet he does clearly distinguish them into Three Estates, though he does not call them so.  
To what is said by Stephen Gardiner and Finch, I oppose the Testimonies of Livy, Selden, Cook and Sheppard: To the Expressions of the Late King of B. Memory, in his Answer to the 19 Propos. (when he was fluctuating in the midst of a Storm gathering round about him,) and to the Declaration of the Commons, 2 H. 4. n. 32. I might Answer, That the Upper House, in a large sense consisting of Lords Spiritual and Temporal sitting and voting together) may be taken for One Estate: But taken precisely, and in a strict sense, as their Concerns and Interests are distinct, so they are clearly Two. But to those Authorities, I shall rather oppose the Act of Recognition; 1 Eliz. 3. Where the Lords Spiritual and Temporal, and the Commons in that Parliament Assembled, do Recognize the Queen's Majesty to be their true, lawful, and undoubted Sovereign Lieged Lady and Queen in these words, [We Your most Faithful, Loving, and Obedient Subjects, representing the Three Estates of this Realm] which evidently showeth the Queen was not (there) esteemed one. So when the Funerals of Hen. 5. were ended, the Three Estates did Assembled and Acknowledge his Son King. To think to elude such Evidence, by saying (as this Gentleman does in the like case) that such Expressions are delivered obiter, upon the By, is to make, what we fancy not, in any Statute, utterly void, and of none effect.  
The next Question concerns the Bishop's Peerage; For the Affirmative, we have these things to say,  
1. That the Prelates are called by the same Writ (for Form and Manner) with that directed to the Temporal Barons: so the Answer to the Quodlibetical Question: That they Sat and Vote there by a double capacity; as Bishop's first, in reference to their several Sees; and secondly, as Peers, in respect of their Baronies. Hereupon they affirm to the Lords Temporal in Parliament holden at Northampton Hen. 2. as Selden reports, We sit not here as Bishops only, but as Barons; we are Barons, and you are Barons; here we sit as Peers. And some Statutes call them Peers of the Land in terminis.  
2. 'Tis his Grace of Canterbury's Title, Primus Par Angliae. That the first Peer should be no Peer, is an unheard of Solecism. If he be a Peer, the rest of the Bishops are his Com-peers, what ever they are to the Lords Temporal. John Stratford Archbishop of that place, in the time of Ed. 3, claimed this Privilege in the Right of his See. And the Protestat. of W. Courtney, elsewhere mentioned, with the rest of the Bishops, is another pregnant Evidence to this purpose. And 25 Edw. 3. The Prelates put up this Petition to the King (as the Gentleman himself relates it, p. 83.) Seeing Archbishops and Bishops hold their Temporalties of the King in capite, and therefore are Peers of the Land as other Earls and Barons are, that you will be pleased to grant unto them, that no Judge may henceforward, for mere contempts, cause their Temporalties to be seized. Here we have a Prayer, that their Temporalties may not be seized, and the Reason of it; because they are Peers, as Earls and Barons are. The King grants their Petition, and allows the Reason. The King cannot err in Titles; his Allowance therefore is a sufficient confirmation of their Peerage. And this Gentleman, p. 93, etc. when he argues against their being a third Estate, he tells us, William the first erected the temporalties of Bishops into Baronies, to hold in capite; and upon account of those Baronies, both the Temporal Lords and Spiritual had of right place in Parliament, and were bound to serve him there. They were all Foedal Barons, all holding by one tenure, and by that tenure sitting in Parliament. And a little after he saith, They are still qualified to be Members of Parliament, as before, a Baron sat as a Baron, an Earl as an Earl. Being made by Patent, or by Writ, or by holding such a proportion of Land, altars not the Case as to their sitting in Parliament; for it is being of such a degree which makes them Peers of Parliament.] One would think this is clear enough for the Bishop's Peerage. But besides, either the Bishops sit in Parliament as Peers, or as Commoners: if as Commoners, than his own Argument, p. 90. will be returned upon him; Would it be for the Honour of the House of Lords, that Commoners must be put to them, to keep the Balance even with the House of Commons? And most clearly it would be a Disparagement to the Peerage of the Kingdom, the Temporal Lords, and would make them to be a poor Estate, that a number of Commoners must be joined to them, to make up their Negative Voice, and set them upon even ground with the House of Commons. But the truth is, the Bishops Sat and Vote in Parliament (as we said afore) by a double capacity; as Bishops, first, in reference to their several Sees; and secondly, as Peers, in regard of their Baronies. All the Lords are equal in respect of their Peerage, and so they make up but one House; but they are distinguished by their Nobility and Spirituality respectively, and so they make up two Estates distinct and different.  
But to prove that they are no Peers, 
Pag. 85. Cap. 14. & 29.  this Gentheman fetches an Argument from Magna Charta itself, I know it saith, Every man that is tried at the King's Suit, must be tried by his Peers, whether he be Amerced, or Imprisoned, or Disseised, or Outlawed, etc. it must be by his Peers. But this Argument makes clear against him; for he himself informs us, p. 11, 12. that the Lord Latimer, who was the King's Chamberlain, for Oppression in several places in Britain, and in England, was by the Bishops and Lords adjudged to be imprisoned, and put to Fine and Ransom; and the Lord John Nevil, a Privy Counsellor; for buying some Debts due by the King, at easy Rates, to make advantage to himself: He mentions some others, and concludes; At all these Trials the Bishops were present, and no body says but they might: which makes it evident (if the Law of Magna Charta were observed) that the Bishops sat as Peers in giving Judgement upon those Culprit-Lords.  
But for all this, the Gentleman hath a very strong Objection out of Magna Charta against the Bishop's Peerage; and 'tis this, If any Bishop be tried for any Capital Offence, 
Ibid. 85.  he is tried by the Commoners, and that is the Common Law and Practice of the Land; then (saith he) must Commoners be his Peers, and he and Commoners must be Pares. 
p. 86.  A Temporal Lord, Duke, Earl or Baron cannot be Judge in the case of a Bishop, (out of Parliament) nor can any Bishop be their Judge, how then can they be said to be Pares, Fellow-Peers? For my part (saith he) I see not. But I will undertake to read the Riddle to him: the King may restrain his Favours, and limit his Grants as himself pleaseth: the Dignities and Privileges of the Lords Spiritual are not Hereditary like those of the Lords Temporal, but only Personal, and conferred upon them in regard of their Holy Function. Hereupon, when they are impeached for any heinous Crime, which is supposed to desecrate their persons, they are interpretatively (though not formally) degraded 
* Privilegium personale amittitur, extincta persona cui id concessum est. And such persons are reputed dead in Law. , and by a Fiction of Law (not unusual) dead in that capacity, divested of their Peerage with their Spiritualities, and so (being in the sense of the Law reduced to that condition) they come to be tried as Commoners. And thus much for the Bishop's Peerage.  
3. For their Right to Sat as Judges in Cases Capital, as this Gentleman saith, p. 3. It deserves a strict enquiry, and we should do well to consider upon what ground the Prelates were prohibited having Votes in Cases of Blood. Such a Prohibition indeed is extant; but it is Authentical only in the Canon Law, as we shall evince anon: but this Law is Popish, grounded upon Principles of Superstition, Usurpation, and Papal Tyranny; and is very irrational and uncharitable, according to the usual practice of it. This I doubt not to make appear to the unprejudiced and impartial Reader.  
In the Interim, I think to remove a great mistake of this Gentleman, who tells us, that Mat. Paris a Monk, one that would not be partial for the Lords Temporal in relating matters, 
Let. p. 73.  to give them more power in Judicature, and less to the Lords Spiritual, than of right belonged to each, and looking upon this exclusion of the Prelates from the power of Judging in such cases, to be some diminution of their Omnipotency, which they were so ambitious of, he therefore ranks it amongst the Consuetudines iniquas, the wicked Customs of the former times. I say, herein the Gentleman has committed a great mistake. 'Tis true, their presence in Parliaments, at such Debates was debarred, and the restraint was put upon them by this Law, and none else: but so far were the Clergy of those times from ranking this Canon-Laws amongst those wicked Customs, that indeed they had it in too high a veneration; and this the Gentleman himself observes in divers places of his Letters, averring it to be that Law, to which only the Clergy of those times would be subject, conceiving themselves above, and not bound by any other. p. 68 And some Laws before that, p. 22. He confesseth, The Canon Law 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 Lawful for them to challenge, as their right upon any account. This Gentleman knew, they did look upon it as sacred: They appeal to it, and plead it for their exemption; and this he sets down with his own Hand (at p. 20.) in these words: Quid in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis alicui eorum juxta sacrorum Canonum instituta, quomodo libet personaliter interest: Because in this present Parliament some things are to be transacted, at which it is not lawful for us, by the Decrees of the Holy Canons to be personally present: This is the ground and reason of their protestation. The wicked Customs therefore which that Monk inveighs against, and which cost Becket so severe a Penance, must be sought for elsewhere, amongst the rest of those Sixteen Constitutions of Clarendon.  
But whatever Opinion the Clergy of those times had of this Canon, I doubt not to make it evident that it is grounded upon Principles of Superstition, 
Determ. 11.  for as the Reverend Davenant hath it, Quid impium, quid illicitum? What is in it that is impious, What that is unlawful, What that is contrary to the Office or Sacredness of a Priest where there is a just authority for it, to bridle and restrain such as are notoriously wicked, and disturbers of the Christian Commonwealth, by civil penalties, and corporal inflictions? The Angels of Heaven think it no way disagreeable, at God's command, to inflict corporal punishments upon the wicked. And why should the Angels of the Church at the appointment of the King, who is God's Image upon Earth, think it unlawful to adjudge the same wicked persons to deserve punishment? The Act and Exercise of civil Jurisdiction of its own nature is not disagreeable to the most holy person, nor any way opposite to the Sacerdotal Function. We have the Authority of God himself in the practice of his most Ancient Church, to justify this Jurisdiction. Under the Law God himself joined it to the Sacerdotal Office; it is not strange therefore, nor forbidden by Divine Law, that the Priest should obtain a Civil Jurisdiction. We find it exemplified in Eli and Samuel, and the Maccabees, 
See Numb. 25.7, 13.  and all that were invested with the Office of High Priest. This could not be expected amongst the Apostles, because then the Civil Magistrates were not Christians: yet S. Peter had once a supply of Civil Authority by a Miracle; and to show that it was not unlawful for an Apostle to give Sentence in Cases Capital, He pronounced Saphira's Doom for Sacrilege and Lying, Acts 5.9. Behold the feet of them which buried thy Husband, are at the Door, and shall carry thee out. But these New Masters of Israel were afraid a Sentence of Justice should defile them with the Blood of a Malefactor; like the Priests and Elders among the Jews, John 18.28. when they had bought and sold the Life of our Blessed Lord, and used all the Tricks that Craft and Malice could suborn to destroy him; so precise they were for all that, they would not go into pilate's Judgement Hall, lest they should be defiled and unfit to eat the Passover. 'Twas the Superstition of those Men, to think they could render the Priest's Office more Sacred, and put more veneration upon his person, than Gods own Institution had done. They would not have him interess or concern himself in a Case of Blood; lest it should desecrate and unhallow his Person, and slain his Function. But we know that all Virtue is Ornamental; and 'tis as well an Act of Justice, to condemn the Guilty, as to acquit the Innocent.  
2. Here is Usurpation in this Canon, and it is flatly against the King's Supremacy. By this means a Foreign Power restrains the Sovereign Authority of the Kingdom from commanding the Service, or making use of the Duty of his Subjects in such Cases. The Force of this Canon divided the Prelates of those times between the Prince and the Pope; either they did not understand, or they did wilfully neglect their Duty; and some Instances of the mischievous effects hereof this Gentleman gives us in his Letter. He tells us, p. 7, 8. 5 E. 3. The Parliament was declared to be called for the redress of the Breach of the Laws, and of the Peace of the Kingdom. And because the Prelates were of opinion, that it belonged not properly to them to give counsel about keeping the Peace, nor punishing such Evils, they went away by themselves, and they returned no more. Nor did their Disobedience stop here; but the Gentleman tells us further, at p. 96. That 20 R. 2. the Bishops upon occasion of the Statute of Provisors, enter a Protestation against whatsoever should be done in derogation or restriction of the Power of their Holy Father the Pope, saying, they were sworn to his Holiness, and to the Court of Rome. These, and the like Insolences were the Fruits of those Immunities which the Prelates of those times received by the Decrees of those Holy Canons.  
And as this Canon was grounded upon Superstition, and did confront the King's Supermacy, so the Practice of it (in those times) was irrational and uncharitable.  
First Irrational; for, 1. Why were the Prelates debarred the liberty of sitting Judges in such Cases? Was it because they wanted Knowledge, Reason, or Discretion? I suppose not: If it were not because they had too little, but too much of these Qualifications: That was Irrational.  
2. That the Prelates have been, and may be Judges of Misdemeanours, this Gentleman does grant, at p. 18. But there may be an Impeachment for sundry Offences under the name of Treason, which really, according to the Rule of Law, are no more than Misdemeanours. Why may not the Bishops sit as Judges in such Cases? Must the Culprit be delivered up to Justice upon such Impeachments, without any further Trial or Examination, what will it amount unto? This would be a kind of Hallifax-Law; and that's Irrational.  
3. In the Case of Sir John Oldcastle, this Gentleman tells us, 
Pag. 38, 39  The Popish Bishops did excommunicate and condemn him for an Heretic, and so turned him over to the Secular Judgement (for execution) yet certainly (saith this Gentlem. p. 39) those good men, I mean those Popish Bishops would have no more to do with him, as to his further Execution, that the World might see they were not men of Blood. So that 'tis pretended at least, that this Holy Canon (as they call it) was designed for Caution, that the Prelates might have no hand in Blood; and yet the practice is so irrational, it does not sufficiently prevent it. For in their Legislative capacity, this Gentleman grants, p. 3. that they may Sat, and Vote, and pass Bills of Attainder 
* He saith p. 51 the E. of strafford's Trial was completed that way. . And, p. 104. Acts of Attainder are Laws, and every Freeman is supposed to give his consent to every Law, either by his Representative, or in person, if a Memer of Parliament; and Bishops being Members, may, I think (saith he) claim to do it personally. And though there be a great stir about such things as are preliminary, and preparatory to Condemnation, 
Let. p. 71.  yet the Constitutions of Clarendon enjoined them to attend the Court quousque perveniatur ad diminutionem Membrorum, vel ad Mortem; till it comes to loss of Life or Member (which the Lawyers understand to be the Sentence of Guilty or Not Guilty.) Now I would fain be resolved, whether these proceed be not in agitatione causae sanguinis? 
p. 1.  whether according to this practice a Case of Blood be not all the while in agitation? And then reflecting upon the Gentleman's Rule in Logic, Causa causae est causa causati, and upon the Story of Chaucer's Friar, let the Reader please to peruse p. 64, 65, 66, of the Letter, and then judge whether the practice be not, (as I said) Irrational. And then,  
Secondly, This practice of those Popish times was uncharitable; for if the Bishops were debarred sitting as Judges in such Cases Capital, out of a suspicion of their Integrity, it was uncharitable to the Bishops; if out of a jealousy they might be too soft and yielding in their clemency, it were uncharitable to the Delinquent; if out of fear they might be too severe in point of Justice, it is uncharitable to the Commonwealth; for Discretion ought to take her Rules from Charity, when Pity, and when Severity are to be used for the advantage of the Public. Sometimes Justice may be provoked into Severity, and when Impeachments are preferred with rigour, 'tis possible the Prudence and Piety of such grave and holy persons intervening, a rash and unadvisable Sentence may be stopped and prevent a Deluge of Mischiefs, which might otherwise ensue. 
† See the Case, p. 26, 27, 28. of the Letter.  Had the Bishops been present at Haxeye's Trial, they might as well have prevented his Condemnation, as obtained his Pardon.  
The Canon-Law than gave the first rise and beginning to this Usage (as this Gentleman seems to acknowledge, p. 68) But the Ground of that Canon was Superstition, and it did confront the King's Supremacy, and was irrational and uncharitable in the practice of it: Let us therefore examine what Force it had, and by what Authority. That this was in use while the Pope had a concurrent Jurisdiction here, cannot be denied; but whether ever it received a Civil Sanction, and an express Ratification, and had the stamp of Parliament-Authority set upon it, is the matter now in question. And this I do steadfastly deny, and the Gentleman as earnestly affirm and contend for.  
To prove this, he does allege a double confirmation, and to give it the more Credit, he carries it up as high as the days of Edward the Confessor. But I desire the Reader to observe, that in the management of his Evidence, he turns an Indulgence into a Prohibition; a Privilege into a complete Act of Parliament; and a Protestation into a Statute.  
He does allege the Year-Book of 10 E. 4. Term. Pasch. n. 35. 
Let. p. 78.  Where we have set down the manner of their Trials in Parliament; [When a Lord is indicted, etc. he shall plead Not Guilty, and this shall be tried by his Peers; and then the Lords Spiritual, who may not consent to the Death of any man, shall make their Proctor, etc. This (saith he) I allege, to show that even by the Law of the Land, the Bishops cannot be Judges in a Case Capital.] Here the Gentleman says, Their making a Proctor; was Error Temporis; the Error of those Times. Why? Because that practice was not for his purpose. But, if, by the Law of the Land, he means the Statute-Law (as he seems to do) I must have a Writ of Error, to reverse his Judgement. For the Pope having then a concurrent Jurisdiction here in England, the Canon-Law was in force amongst them; and in declaring that the Lords Spiritual might not consent to the Death of any man, they have respect to the Prohibition of the Canon-Law, but this is not any the least confirmation of it.  
But this Gentleman will needs have it confirmed by a Civil Sanction, and so become the Law of the Kingdom.  
The first Confirmation, 
p. 69, etc.  he saith, was about the time of 10 H. 2. amongst the sixteen Constitutions of Clarendon, which (besides the Authority of Parliament (to make the Observation of them the more inviolable) were established by the Solemnity of an Oath, 
p. 72.  which is the greatest Obligation that Mankind is capable of, making even God a Party to it, to see it obeyed, and punish the Transgressor's. Here is a fair Plea for a solemn Confirmation, if the Gentleman were not partial or mistaken in the Business. But the Case was this, upon the account of their Immunities, the Prelates especially grew very remiss and careless of their Duties (as was noted formerly.) Hereupon, in that Great Council (which was then their Parliament) amongst the rest, the King made this, (the 11th. of those Constitutions,) The Archbishops, Bishops, & universae personae Regni, (not all the Dignified Clergy of the Land, 
p. 71.  as this Gentleman renders it, but) all persons whatsoever, who have a Tenure in capite, shall hold their possessions from the King as a Barony, and shall answer for their Estates unto the King's Justices and Ministers, and shall observe and obey all the King's Laws; and together with other Barons they are to be present in all Judgements in the King's Courts. [This is the Duty they are obliged and solemnly sworn to; and the follows an Indulgence or Privilege] till the Sentence comes to the loss of Life or Member; and here they are left to their Liberty to observe the Decree of the Holy Canon. 
p. 73.  Hereupon we may build our Faith, that there was really such as Usage (as this Gentleman infers) in ancient times, and that a liberty was left to continue it (according to the Canon, and in veneration of it) but that 'twas ratified and confirmed, we have not one Syllable to prove it.  
The Second Confirmation this Gentleman finds, was in 11 R. 2. upon the Protestation of the Archbishop, 
p. 18, etc. 71, etc.  for himself and the other Bishops. And here (after some fluctuation and unsteadiness,) p. 75. to make it a Law, he tells us, The subject matter enacted did consist of two Particulars; the one, That the Prelates had a Right to sit and vote in all other Businesses; the other, That they had no Right, nor was it lawful for them to be present in Parliament, when such Businesses were in question: But the Tenor of their Protestation is," That they intent to be present, to consult, to treat of, and to determine, in omnibus, in all things, saving their Rights, their State and Dignity. But because some things were to be transacted in that Parliament, at which, by the Decrees of the Sacred Canons, it was not lawful for them to be personally present, therefore they protested, that while such things were in agitation, they would absent themselves. Which Protestation, being read in Full Parliament, at the instance and prayer of the Archbishop and other Prelates, was entered upon the Parliament-Roll, by the King's Command, with the Assent of the Lords Temporal and Commons. This, the Gentleman will needs contend to be a Law of Parliament, (or a Law of the Land.) Why? Because it was entered in the Roll or Journal-Book, that such a thing was agreed upon by the King and Two Houses; Which (saith he) was all the Formality of passing Laws in Parliament, 
p. 23.  in those times. But what was it that the Bishops petitioned might be entered upon the Parliament-Roll? Was it the Decree of the Sacred Canons, which debarred their presence in the House at such Debates? That indeed had been somewhat to the purpose: but here was no such matter desired; it was their Protestation: and if every thing that is entered upon the Parliament-Roll by the Agreement of the King and the Two Houses, becomes an Act of Parliament forthwith, then let this Protestation, for the present, pass for an Act of Parliament; and we shall see anon what it will amount to.  
In the Interim let us return to the Constitutions of Clarendon, where there seems to be most colour for such a Confirmation. There we may observe Two things in that 11th. Constitution, a Duty enjoined, the Prelate's attendance at the King's Courts; and then a Liberty or Privilege indulged; That they may withdraw and forbear that attendance, when it comes to sentence for loss of Life or Member. That this is a Privilege or a Liberty, cannot be denied. Mat. Paris reckons it inter Libertates, amongst the Ancient Liberties 
* Let. p. 71. ; and this Gentleman could not choose but observe it, (though it was not for his purpose to distinguish this Privilege from the Injunction One would think (saith he) they (the Bishops) might look upon (it) as a Right and Privilege, to be exempt from being obliged to attend in such Cases, Cases of Blood. It a Privilege, than I may use or I may forbear it. To say, I may do such a thing, therefore I shall do it, is irrational; ill Logic, and worse Polity. Privileges, say the Lawyers, are Franchises and Liberties, or Immunities granted to a Person, an Office, or a Corporation. Such as have them, may either enjoy or refuse them. It is the Privilege of Attorneys and Clerks in they King's Bench, they cannot be pressed for Soldiers, they cannot be compelled to bear Offices in their Parishes; yet Volunteers they may be in both Cases. No man should be compelled to use his Privilege; for than his Franchise would be no Liberty, but the more enthral him. We may observe accordingly, that the Prelates very well understood this their Liberty; for sometimes they would use their Privilege, absent themselves, when Cases Capital were upon Trial, and withdraw, when Matters of Blood were in agitation; and this is obvious to every eye in the perusal of the Gentleman's Letters. But many times (which is very considerable in the Case) when they did withdraw, they either made a Proxy to represent them, or entered their Protestation to preserve their Rights. 'Tis true, the Gentleman does except against their way of Proxy's, as Unparliamentary; and three or four exceptions he hath, which are sufficient to elude and Testimony: For either it is Error Temporis, an Error of those times; of spoken obiter, upon the By, and of no importance; or it is unparliamentary and extravagant, or else Repealed: Such a provision of Evasions as may serve to help a man out of the Noose of any Argument that can be produced in Matters of this Nature.  
For the Protestation, he would elude the force of that, by saying, Their Salvo, that which they would ensure to themselves, is their Right of sitting to consult, 
p. 21.  treat of, and determine in that, and all other Parliaments, when Capital Cases are not in question: but there was no need of a Protestation to this effect: This was their Duty, to which the Clarendon Constitution, and a Solemn Oath obliged them. When men protest a Right, 'tis not to be understood of that Right which no man doubts of, and therefore is not liable to question; but of that Right which they give some colour to be questioned, because they decline and forbear the use and practice of it: This was a Right to debate, vote and sit as Judges in Cases Capital, if possibly the Decree of that Canon should come to be null (as now it is) or altered.  
I must not forget to tell you of two Rules observable about such Privileges as are granted to Subjects by the King, as this of the Clarendon Constitution was to the Prelates. The first is, That they are not to be understood to debar the King's Commands, nor aught to be a Supersedeas to his Sovereign Authority, for this were a derogation to his Royal Office, a diminution to his Crown and Dignity; not to be granted by him upon any pretence whatsoever. By the constitutions of Clarendon, the King did exempt the Bishops from attending his Court of Parliament at such Trials in Capital Cases in general; but he did not absolve them from their Duty and Obedience to his own special commands, upon any just occasion. Hereupon in the 11th. Hen. 2. Archbishop Becket, in a Solemn Council at Northampton, being accused of Treason, and other Misdemeanours, where Bishops were his Judges, as well as Temporal Lords; when those Lords and Bishops could not agree about pronouncing the Judgement, they putting it off from one to the other; at last the King commanded the Bishop of Winchester to do it. This happened soon after the Ratification of the Clarendon Constitution, which all the Lords and Bishops had taken their corporal Oath to observe for ever: And it is not to be imagined they could forget what had been so lately done amongst them; wherefore we must conclude that they did not take themselves to be obliged either by that Oath or Constitution, to absent themselves always from such Trials; for though the Constitution saith, Debent interesse judiciis curiae Regis, sicut caeteri Barones; That they ought, as well as other Barons, to attend all the Judgements of the King's Court; quousque perveniatur ad diminutionem membrorum, vel ad mortem; till the Matter comes to Sentence, for the loss of Life or Member.  
Yet (whatsoever William Lord Archbishop of Canterbury, and the rest of the Bishops had said in their Protestation, 11 R. 2.) The Constitution of Clarendon doth not say, Debent se absentare, that the Bishops ought to withdraw and absent themselves from such Sentence. 
p. 60, 61.  This Gentleman endeavours to invalidate this so pregnant an Evidence, because it is taken out of a Manuscript made by the Monk Stephanides; and none of the Ancient Historians of those times say any thing of Becket's being accused for Treason. But I must tell you, 'tis not the Print that adds Truth or Authority to any Writing; and I shall trust Mr. Selden's Judgement, rather than this Gentleman's Conjectures: Besides, A Negative Argument from Authority is of no force; for why do we read variety of Historians upon the same Subject; but because we suppose what one fails in for want of Memory or Information, another may supply by a better Diligence and Enquiry.  
The Second Rule observable in matters of Privilege, is this, Privilegia omnia sine prejudicio Tertii concedenda & concessa intelligenda sunt: We must understand all privileges that are granted, to be granted without any prejudice to any third person. Now this Gentleman quotes Brompton's Chronicle, 
p. 108.  reciting among the Laws of King Athelstan, this concerning Bishops; Debent Episcopi cum seculi Judicibus interesse Judiciis, ne permittant, si possint, ut aliqua pravitatum germina pullulaverint; The Bishops ought to be present in Judgements with the Secular Judges, not to suffer any Buds of wickedness to sprout up if they can hinder it. And does not the Law of God oblige such as are in Authority, to use their Power as well to rescue the oppressed, as to punish evil doers? Let us consult the wise man, Prov. 24.11, 12. If thou forbear to deliver them that are drawn unto death, and those that are ready to be slain; if thou sayest, Behold we knew it not; doth not he that pondereth the Heart consider it? and he that keepeth thy Soul, doth not he know it? and shall not he render to ●very man according to his works? This, saith the Author of the Synopsis, concerns especially such as are in Authority: And (as Dr. Tho. Cartwright comments upon the place) Quamvis periculum certum non sit, si tamen suspitio aliqua mortis imminentis justa subsit, non est cunctandum, donec morti quis adjudicatus fuerit; facilior enim est Liberatio, dum exitus adhuc dubius est, quam cum lata est Mortis sententia: And I must not omit what the same Author saith a little after; Quemadmodum autem insontes, si possis, non liberare; sic maleficorum, quantum in te est supplicium non promovere, atrox flagitium est: and for this, the said Cartwright quotes the same Solomon, Prov. 17.15. This is a matter of so great importance, every man who has a Right and Power of Judicature, ought especially to consider it. And if this Gentleman be as sincere in his Profession towards the Bishops (which I have no reason to question) as he is just and modest in saying, that he does not envy them their Honour. I hope he will be so ingenuous also, as not to deny the King their faithful counsel, nor the Country their pious Aid and Service.  
For the Body of his Epistle, it consists of Record and Precedents, which most men want means and opportunity to examine 
* This Task therefore is fallen into a more able hand. , and very many skill to construe and comment on: This is the Evidence which this Gentleman does produce, and that it may be the better understood, I shall lay down some undoubted Principles, Rules and Observations, that the Reader may the better judge of it. And I shall observe,  

1. The Lords Spiritual, being Barons, Peers, and Great men, they are many times comprehended under these Titles, when they are not styled by their proper and distinctive Names of Bishops or Prelates. I shall need to instance in no more than that of Magnates, Great men. In the Reign of Edrid (948) we read thus, 
Here Archbishops and Bishops are Magnates as well as others.  In Festo Nativitatis B. Mariae, cum universi Magnates Regni per Regium edictum summoniti, tam Archiepiscopi, & Episcopi, quam caeteritotius Regni Proceres, & Optimates Londini, etc.  
2. A Negative Argument from Authority is of no validity, v. g. Such a Writer does not report such a thing; therefore there was no such Matter: this does not follow.  
3. The practice of Ancient times, in the case before us, was very variable: For they were under the Pope's Jurisdiction, who kept the Canon-Law in force; and among the rest, this Canon touching the Bishop's Recess from all Trials in Cases capital. In obedience to which Canon they did, for the most part, absent themselves. But when H. 2. by the Constitution of Clarendon enjoined all Prelates, as well as other Barons, to attend his Courts, he granted them withal a Liberty or Privilege to absent themselves (if they should think good) from Trials of that nature: Hereupon they did sometimes use their Privilege, and absented themselves; sometimes they did refuse their Privilege, and sat as Judges.  
4. We may observe how the Matter was carried, running through all the Trials upon Record, as this Gentleman gives account of them 
† With what care and fidelity is left to others to examine and make report. , and in his Method.   
1. The first is 4 E. 3. in Mortimer's Case; where we have Earls, Barons, the Peers; afterwards, Earls, Barons and Peers: the Bishops may be comprehended under either Title of Barons or Peers; for they were both.  
5 E. 3. The Bishops would not understand their Duty at all: they would neither keep the peace, nor punish a Battery. This was a stupid Neglect; but signifies nothing to the deciding of the Controversy.  
3. 25 E. 3. The Bishops may be comprehended under the Name of Grantz, Magnates, the Great men.  
4. 42 E. 3. Here the Bishops were present by their title of Prelates.  
5. 50 E. 3. The Bishops were present at these Trials, yet two of the Delinquents were Lords.  
6. 1 R. 2. They were, and they were not present; the Case is doubtful.  
7. 3 R. 2. If the Bishops were not present, 'tis confessed they might have been; for what was done, was done by the Legislative Power, and in that capacity to pass Bills of Attainder, the Gentleman grants they have a Right.  
8. 4 R. 2. If the Bishops be Peers of the Realm, and Lords of Parliament, they might be comprehended there. To say they are always expressed by the Name of Prelates, is to beg the Question.  
9 7 R. 3. It seems the Lords Spiritual were absent.  
10. 10 R. 2. Here the Bishops were present, and judged of Misdemeanours, which (for aught we know) upon Trial, might have amounted to Merit of Death.  
11, 11 R. 2. The Bishops were virtually present by their Protestation.  
12. 20 R. 2. Thomas Haxey Clerk (whether he was a Member of the House may be a question) but his fault (however aggravated) seems to be but a Misdemeanour, at the Trial whereof, the Bishops had right undoubtedly to be present; whether they were present, seems doubtful: but 'tis most certain it had been more safe and charitable to prevent the Condemnation, than to run the hazard of an Aftergame, when he was condemned, to seek his Pardon.  
13. 21 R. 2. In this Parliament, the Bishops were present by their Representative, by Proxy, and that three several times, upon three several Occasions.  
14. 1 H. 4. Here they were present, but gave no Judgement.  
15. 2 H. 4. It does not appear that the Bishops were present.  
16. 5 H. 4. The Bishops may be comprehended under the title of Peers, and the Matter being found but a Trespass, their right of Sitting, the Gentleman cannot deny them.  
17. 7 H. 4. Here the King commanded the Advice only of the Lords Temporal, which was a special Case.  
18. 5 H. 5. Here the Bishops had declared Sr. John Oldcastle Heretic, and delivered the Prisoner over to the Secular Power; and yet in the Sentence, they may be comprised under the Title of The most wise Lords of this present Parliament.  
19 2 H. 6. It is not certain the Bishops did Vote.  
20. 28 H. 6. The two Archbishops and 13 Bishops were present, did Debate and Vote in the Case.  
21. 31 H. 6. The Bishops doubtless (as well as in the 28) were present, being Peers of the Realm, as I have proved.  
22. 38 H. 6. The Commons did accuse; the King answered, He would be advised; and so the Matter ended.  
Here we have 22 Precedents cited by this Gentleman, from the time of Clarendon Constitutions to the Trial of the E. of Strafford; whereof one is a special Case; three are insignificant and null, in regard there was either nothing at all done, or a stupid neglect of their Right, or a careless throwing off of all Duty. Four are doubtful; Ten are for their presence at such Trials, either in person under the Names and Titles of Bishops, Prelates, Peers, Great men, or Lords of Parliament; or present virtually, by their Proxies, or their Protestations; so that there are but four of all the 22, for their not appearing, or not voting at such Trials.  
5. For a Supersedeas to all further enquiry or dispute about this matter, we must take notice that the Canon which required the Bishops to withdraw at all Trials in Cases Capital, is abolished, and the Lords Spiritual are under no obligation to observe it. To say the Civil Sanction does still enforce it, is absurd; for what is that Civil Sanction but an Act of Parliament? and if an Act of Parliament hath abolished it, it has likewise abolished all other Acts, which might seem to ratify and confirm it; otherwise it should be abolished, and not abolished, taken away, and yet in force still; which are Contradictions, and absurd.  
The Gentleman takes notice of this to be the Bishop's Plea, (p. 67, 68) That it is only by the Canon Law that this restraint is upon them, and that the forbearance of their Predecessors being Papists, and so subject to that Law, was only in that respect; which Law being of no force at present, and taken away by Act of Parliament, they are now at liberty, though in Modesty they think fit sometimes to withdraw, but have a Right to continue sitting if they please.  
What does the Gentleman answer to this? He saith, I do not deny but the Canon Law might give the first rise to such an Usage; but it came afterward to receive a civil Sanction; the stamp of Parliament-Authority, and several confirmation, ibid. But I have evinced already that his Allegations do not prove what he pretends to undertake; and the practice of the Bishops withdrawing at such Trials, having no other bottom to rely on than the Canon Law, That being absolutely dissolved and broken by Act of Parliament, cannot now support it.  
6. And lastly, Seeing there is no other Authority to continue and inure this practice but that Popish Canon, I should think it a very dangerous thing (if the King should be severe) for any person to attempt it; for upon the Clergies submission to the King 25 H. 8.19. the Statute saith thus, [Be it therefore now enacted by Authority of this present Parliament, according to the said submission and petition of the said Clergy, that they nor any of them, from henceforth shall presume to attempt, allege, claim or put in ure any Constitutions or Ordinances, Provincials or Synodas, or any other Canons, unless the same Clergy may have the Kings most Royal Assent and Licence— upon pain of every one of the same Clergy, doing contrary to this Act, and being thereof convict, to suffer imprisonment, and make fine at the Kings Will.  
After those Precedents , the next the Gentleman meets with, was the Earl of strafford's, whose Trial in Parliament was completed in a Judicial way; but he was attainted and condemned by the Legislative Power, where this Gentleman does acknowledge a Right in the Bishops to be present. Why they did then withdraw themselves, such as were not Eye-witnesses or Observers of those times, may best learn from Mr. Hobbes his History of them.  
To conclude, the Author does protest, that he hath the very same Design, Aim, and Wishes with that Gentleman; for that Right may prevail is the natural wish of every good man. And the prevention of those Mischiefs which the Enemies to our Religion and Government have plotted, and do achieve to put in execution, has incited me to this task to satisfy myself and others, where the Right is. My Sentiments herein I humbly submit to the High and Honourable Court of Parliament; and if I have written any thing that gives a just cause of offence to my Superiors, I do here solemnly retract it.  
This Gentleman is Ingenuous, and leaves his Reader to his Liberty, to weigh the Arguments on both Sides, and judge for himself. I have taken the freedom he allows me, and delivered my Opinion: I pray take you the same course without Partiality, and then judge for yourself.  
FINIS.