TWO TREATISES  
The FIRST, Proving both by HISTORY & RECORD THAT THE BISHOPS ARE A Fundamental & Essential Part OF OUR English Parliament: The SECOND, That they may be JUDGES IN Capital Cases.  
LONDON, Printed by Tho. Braddyll for Robert Clavell at the Peacock in S. Paul's Churchyard, 1680.   

THAT THE BISHOPS MAKE A FUNDAMENTAL & ESSENTIAL PART OF THE English Parliament.  
THough the Demerits of this Sacred Order of men is sufficiently known and acknowledged, though their Sufferings in the late ill times are notorious to the whole world, and no less a Scandal to this Nation, I speak of those who then traitorously usurped the Name and Title of the Supreme Authority of England; yet there are not still wanting those of the old Leaven, who endeavour to embroil us again, who still raise and maintain the old Scruples and Jealousies, and endeavour as much as in them lies, to put us again into the old and preternatural Ferments of 42: 'tis strange you will say, that a Nation should be twice undone by the same ways and method; that the evil success we all of us felt (save those of the Independent Faction) should not deter us from endeavouring the like unsetlements for the future; I wish our Fears and Jealousies were groundless; but so long as the old and baffled Arguments are rallied by such men, so long as they proceed to make ill use of the Indulgence of their Prince and his Government under whom they live in peace, and endeavour to unravel the Constitutions of our Parliaments, hereby to bring us into the Disorders under which we so lately groaned, and out of which, by the goodness of God, we are now in safety escaped, it will not (I hope) be thought unseasonable to any person who is a Friend to his Prince or Country, or to himself in his own quiet and settlement which he now enjoys, to mind and to advise him (I hope 'tis no ill counsel) stare super vias antiquas, to tread in and keep to the old paths. Regia via est tuta via; the King's way is the safest and best of ways. Let us then in the Name of God see what were the ancient usages, the old Constitutions under which we and our Forefathers were happy, our ancient Kingdom so famous throughout the whole Civilised World, hath flourished, and become so renowned as erst it hath been: And seeing a great Question hath of late, and is now again raised concerning the Sacred Order of Bishops, as to their Right of being and voting in our Parliaments, we shall endeavour to evince and prove this great Point, which 'tis hoped may in a good measure contribute to the allaying the heats of this sort of men amongst us, and who seem to be the most busy and forward in these embroilments. And that we may the more orderly and methodically proceed to evince what we have undertaken, and in regard this Question is about the very Constitution of our Government, we can, I think, do no better than to make use herein of the good old Maxim and Rule de Legibus & longa consuetudine. Si de interpretatione Legis quaeritur, inprimis inspiciendum est, quo jure Civitas retro in hujusmodi casibus usa fuerit: Consuetudo enim optima interpretatio Legis est. If you would know the true sense and interpretation of any Law, you must especially look to the practice and usage of the Law; for that Custom is the best interpretation of the Law. We now seem (at least some party amongst us) to question whether our Bishops are an Essential part of the Parliament; which, together with His Majesty, as to the Enacting of Laws, and giving of Aids and Subsidies, is the old Government under which England hath heretofore to the envy of our Neighbours, flourished and been happy. — Foelices nimium bona si sua norant Angli.  
That we may then (I say) put this Question out of question, we shall endeavour to prove by two sorts of Arguments; of which one shall be De Jure, and the other De Facto: the one derived from that Original Right which is vested in them; the other from the constant Exercise and continual practice by which that Right hath been enjoyed in all times foregoing.  
And first we shall begin with the proofs de jure, and therein first with that which doth occur in the Laws of King Athelston, one of the first Monarches of the English Saxons. Among which there is a Chapter (it is chap. 11.) entitled De officio Episcopi & quid pertinet ad officium ejus; that is to say, Touching the office of a Bishop, and that which doth of right belong unto it. In which Chapter it is thus declared, viz. Episcopo jure pertinet omnem rectitudinem promovere, Dei scilicet & seculi etc. 
(†) Spelm. Couns p. 402.  & convenit ut per consilium & testimonium ejus omne Legis scitum, & Burgi mensura, & omne pondus sit secundum dictionem ejus institutum; that is to say, it belongeth of right unto the Bishop, to promote Justice in matters which concern both the Church and State, and unto him it appertaineth, that by his Counsel and Award, all Laws, and Weights, and Measures, be ordained throughout the Kingdom.  
2. Next we will have recourse to the old Record entitled, Modus tenendi Parliamentum; In which it is affirmed, Ad Parliamentum Summoniri & venire debere Archiepiscopos, Episcopos, Abbates, Priores, & alios majores Cleri, qui tenent per Comitatum aut Baroniam ratione hujus modi tenurae; 
(*) Modus tenendi Parliamentum.  That all the Archbishops, Bishops, Abbats, Priors, and other Prelates of the Church, who hold their Lands either by an Earls Fee, or a Baron's Fee, were to be summoned, and come to Parliament in regard of their Tenure.  
3. Next, look we on the Chartularies of King Henry the first, recognized in full Parliament at Clarendon, under Henry the second, where they are called Avitas consuetudines, which declare it thus, Archiepiscopi, Episcopi, & universae Personae qui de Rege tenent in capite, habeant possessiones suas de Rege sic ut Baroniam, etc. Et sicut caeteri Barones debent interesse judiciis Curiae Regis cum Baronibus, quousque pervenerit ad diminutionem membrorum vel ad mortem 
(*) Math. Paris in H. 2.  The meaning is in brief, that Archbishops, Bishops, and all other Ecclesiastical Persons which hold in Capite of the King, are to have and hold their Lands in Barony, and that they ought as Barons to be present in all Judgements with the other Barons in the Court of Parl. until the very Sentence of Death or Mutilation (which was very common in those times) was to be pronounced. And then they commonly did use to withdraw themselves, not out of any incapacity supposed to be in them by the Law of Engl. but out of a restraint imposed upon them by the Can. of the Church of Rome.  
4. In the Great Charter made by King John, in the last of his Reign, we have the form of summoning a Parliament, and calling those together who have Votes therein, thus expressed at large. Ad habendum commune concilium Regni de auxilio assidendo, etc. Et de scutagiis assidendis, faciemus summoneri Archiepisc. Abbates, Comites, & majores Barones Regni sigillatim per literas nostras, & praeterea summoneri faciemus in generali per Vicecom. & Ballivos nostros omnes alios qui in Capite tenent ad certum diem, scil. ad terminum 40 dierum ad minus, & ad certum locum, etc. 
(†) Id. in Job.  In which we have not only a most evident Proof, that the Bishops are of right to be called to Parliament, for granting Subsidies and Escuage, and treating of the great Affairs which concern the Kingdom, but that they are to be summoned by particular Letters, as well as the Earls & Barons, or either of them; A form or copy of which Summons issued in the time of the said King John, is extant on Record, and put in Print not many 
(*) P. 1. 20. 5.  years since in the Titles of Honour.  
5. We have it thus in the Magna Charta of King Henry the 3 d. the Birthright of the English Subject, according as it stands translated in the Book of Statutes. First we have granted to God, and by this our present Charters have confirmed for us, and our Heirs for ever, That the Church of England shall be free, and shall enjoy all her whole Rights and Liberties inviolable, 
(†) Magna Charta c. 1.  But it is a known Right and Liberty of the Church of England, that all the Bishops, and many of the greater Clergy (and peradventure also the Inferior Clergy in the said King's time) had their Votes in Parliament; and therefore is to be preserved inviolable by the Kings of England, their Heirs and Successors for ever. Which Charter, as it was confirmed by a Curse denounced on all the Infringers of it, by Boniface Archbishop of Canterbury, 
(*) Math. Par. in H. 3.  and ratified, in no fewer than 80. suceedings Parliaments: So was it Enacted in the Reign of Hdward the first, That it should be sent under the great Seal of England, to all the Cathedral Churches of the Kingdom, to be read twice a year before the People; (†) That they should be ready four times a year in a full County Court, 
(*) 28 E. 1. c. 1.  and finally that all Judgements given against it should be void and null; 
(†) 28 E. 1. c. 2.  the Application of which last Clause I refer to those, to whom the rectifiing of the Error (which to the contrary thereof hath been committed) doth of right belong. 
(*) 28 E. 1. c. 3.   
6. We have the Protestation of John Stratford Arch Bishop of Canterbury, in the time of King Edward the 3 d. who being in disfavour with the King, and denied entrance into the House of Peers, challenged his Place, and Suffrage there, as the first Peer of the Realm, and One that ought to have the first voice in Parliament in right of his See.  
But hear him speak his own words, which are these that follow, Amici (for he spoke to those that took witness of it) Rex me ad hoc Parliamentum scripto suo vocavit, & ego tanquam major par Regni post Regem, & primam voce habere debens in Parliamento, jura Ecclesiae meae Cantuariensis vendico & ideo ingressum in Parliamento peto 
(†) Antiqui. Brit. in Gati. Stratford.  which makes it plain enough, that the Archbishop did not challenge a place in Parliament, as the first Peer of the Realm, either by way of favour, or custom only, but as a power and privilege as he ought to have (habere debent are the words) in the Right of his See.  
7. And lastly, there is the protestation on Record, of all the Bishops in the Reign of King Richard the 2 d. at what time William Courtney was Archbishop of Canterbury: who being to withdraw themselves from the House of Peers, at the pronouncing of the Sentence of Death on some guilty Lords, first made their Procurators to supply their rooms, and then put up their Protestations to preserve their Rights; the sum whereof, for as much as doth concern this business in their own words thus; De jure, & consuetudine Regni Angliae ad Archiepiscopum Cantuariensem, qui pro tempore fuerit, nec non caeteros Suffraganoes, confratres, & compatres, Abbates & Priores, aliosque Prelalatos quoscunque per Baroniam de Domino Rege tenentes, Pertinet, in Parliamentis Regis quibuscunque, ut Pares Regni praedicti personaliter interesse ibidemque de Regni negotiis, ac aliis tractari consuetis cum caeteris dicti Regni paribus, & aliis ibidem jus interessendi habentibus Consulere, & Tractare, Ordinare, Statuere, & Definire, ac caetera facere quae Parliamento ibidem imminent facienda. 
(†) In vita Gu. Courtney  It appertains say they, both by Right and Custom to the Archbishop of Canterbury for the time being, as also unto all the rest of his Compeers, as well as the Suffragan Bishops, as to the Abbots, Priors and other Prelates whatsoever, which hold their Land by Barony of our Lord the King, to be personally present at all Parliaments as Peers of the Realm, and there together with the rest of the Peers, and all other, which have Right to be therein present to Consult, treat of, and Ordain, and finally to determine and establish all such things, and matters, as are accustomably handled, and ordained in Parliaments. Which sets the matter as I take it beyond all dispute, as to the first of these two heads, or sorts of Arguments, whereby I was to prove this point, which were those de jure.  
Let us next see whether this Right of theirs be confirmed and countenanced by continual practice, and that they have not lost it by Discontinuance; which is my second kind of Argument, those I mean de facto. And in this way of proof, we can go as high, as the first preaching of the Gospel to the English Saxons, and so descend unto those last times without interruption. By which it will appear, that Christianity in this Nation, and the Bishop's Votes in Parliaments, and Common Councils, are of like Antiquity.  
For first, no sooner had King Ethelbert received the Gospel, but presently we read, that as well the Clergy, as the Laity, were summoned to the Common Council: which the Saxons sometimes called Mycell Synoth, the great Assembly, and sometimes Witennegemote, the Council or Assembly of the Wise men of the Realm, Anno 605. Ethelbertus Rex in fide corroboratus Catholica, etc. Cantuariae convocavit Commune Consilium tam Cleri, quam Populi; King 
(†) H. Spelman in Conc. p. 116.  Ethelbert, as my Author hath it, being confirmed in the Faith in the year 605. (which was but nine years after his Conversion) together with Berha his Queen, their Son Thalbald, the Reverend Archbishop Augustine, and all the rest of the Nobility, did solemnize the Feast of Christ's Nativity in the City of Canterbury; and did there cause to be assembled on the 9th. of January, the Common Council of his Kingdom, as well the Clergy, as the Lay-Subject; by whose Consent and Approbation he caused the Monastery by him built, to be dedicated to the honour of God Almighty, by the hand of Augustine.  
And though no question other Examples of this kind may be found amongst the Saxon Heptarchies, yet being the West Saxon Kingdom did in fine prevail, and united all the rest into one Monarchy, we shall apply ourselves unto that more punctually and with greater care.  
I. And first we read of Egbert, who first united the seven Kingdoms of the Saxons under the common name of England, that he caused to be convened at London his Bishops, and the Peers of the highest Rank, pro consilio capiendo adversus Danicos Pyratas, 
(*) Charta Whitlagii Mercyorum Regis ap. Ingulph.  to advise upon some course against the Danish Pirates, who infested the Sea-coast of England.  
II. Another Parliament or Council (call it which you will) called at Kingbury, Anno 855, in the time of Ethelwolph, the Son of Egbert, pro negotiis Regni, 
(†) Charta Bertult mer. Regis ap. Ingulf.  to treat of the Affairs of the Kingdom; the Acts whereof are ratified and subscribed by the Bishops, Abbots, and other great men of the Realm.  
III. We find that the same King Ethelwolph in a Parliament, or Assembly of his States at Winchester, Anno 855. Cum consilio Episcoporum & Principum, 
(*) Ingulf. Croyland. hist  by the Advice 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 ab omnibus secularibus Servitutibus, from all secular Services and Impositions.  
iv The two Charters were issued out by Athelstone , Consilio Wifelmi Archiepiscopi mei, & aliorum Episcoporum meorum, 
(†) Ap. eund. p. 402, 403.  by the advice of Wiselme his Archbishop, and his other Bishops.  
And V That Ina in the year 902. caused the great Council of his Realm to be Assembled, consisting ex Episcopis, Principibus, Proceribus, etc. of Bishops, Princes, Nobles, Earls, and of all the wise men, Elders, and people of the whole Kingdom, and there Enacted divers Laws for the weal of this Realm. 
(*) Ap. eund. p, 219.  We also read this in the Reign of Edrid, Anno 948. viz. in festo igitur Nativitatis Beatae Mariae cum universi Magnates Regni per Regium Edictum summoniti, tam Archiepiscopi & Episcopi, ac Abbates, quam caeteri totius Regni Proceres & Optimates Londini convenissent ad tractandum de negotiis publicis totius Regni; 
(†) Id. ibid. p. 497. edit. Lond.  That in the Feast of the Nativity of the Blessed Virgin, the great men of the Realm, that is to say, Archbishops, Bishops, Abbots, Nobles, Peers, were summoned by the King's Writ to appear at London, to handle and conclude about the public Affairs of the Kingdom. Mention of which Assembly is made again at the Foundation and Endowment of the Abbey of Crowland; 
(†) Mad p. 500  and afterwards a Confirmation of the same by Edgar, Anno 966. Praesentibus Archiepiscopis, Episcopis, Abbatibus, & Optimatibus Regni; 
(*) Id. p. 5. p. 1. 50.  In the presence of Archbishops, Bishops, Abbots, and Peers of the Realm. The like Convention of Estates we find to have been called by Canutus the Dane, after the death of Edm. Ironside, for the settling of the Crown on his own head, of which thus the Author, 
(†) Rog. Hoved. Annal pag. prior p. 250.  Cujus post mortem Rex Canutus omnes Episcopos, & Deuces, nec non & Principes, cunctosque Optimates gentis Angliae, Londini congregari jussit. Where we still find the Bishops to be called to Parliament, as well as the Dukes, Princes, and the rest of the Nobility; and to be ranked and marshaled first (which clearly shows that they were always reckoned for the first Estate) before the greatest and most eminent of the Secular Peers. And so we find it also in a Charter of King Edward the Confessor, the last King of the Saxon Race) by which he granted certain Lands and Privileges to the Church of Westminster, An. 1066. Cum Concilio & Decreto Archiepiscoporum, Episcoporum, Comitum, aliorumque Optimatum; 
(*) ap. H. Spel. in Concil. p. 630.  with the Counsel and Decree of the Archbishops, Bishops, Earls, and others of his Nobles. And all this while the Bishops and other Prelates of the Church did hold by no other Tenure than in pura & perpetua Eleemosyna; 
(†) Camden in Brit.  or frank Almoygne, as our Lawyers call it; and therefore sat in Parliament in no other capacity than as Spiritual persons merely; who by their extraorinary knowledge in the Word of God, and in such other parts of Learning as the world than knew, were thought best able to direct and advise their Princes in all points of difficulty. But when the Norman Conqueror had possessed the State, than the case was altered. The Prelates of the Church were no longer suffered to hold their Land in Frank Almoigne, as before they did, or to be free from Secular Services and Commands, as before they were. Although they kept their Lands, yet they changed their Tenure, and by the Conqueror were ordained to hold their Lands sub militari servitute, 
(*) Mat. Paris in Will. 1. An. 1070.  either in Capite, or by Baronage, or some such military hold, and thereby were compellable to aid the King in all times of War, with Men, Arms, and Horses, as the Lay-Subjects of the same Tenors were required to do.  
Which though it were conceived to be a great Disfranchisement at first, and an heavy burden to the Prelacy, yet it conduced at last to their greater honour, in giving them a further Title to their Place in Parliament, than that which formerly they could pretend to. Before, they claimed a place therein ratione Officii, only by reason of their Offices, or Spiritual Dignities; but after this, by reason also of those Baronies, which were erected, and annexed to their several Dignities; En respect de leur possessions l'antient Baronies annexes a leur Dignities 
(†) Stratford Pleas. l. 3.  as our Lawyers have it. From this time forwards we must look upon them in the House of Parliament, not as Bishops only, but as Peers and Barons of the Realm also; and so themselves affirmed to the Temporal Lords in the Parliament holden at Northampton, under Henry the Second. Non sedemus hic Episcopi, said Barones, Pares hic sumus: 
(*) Selden titles of hon. p 2. 18.  We sit not here, say they, as Bishops only, but as Barons; we are Barons, and you are Barons; here we sit as Peers. Which last is also verified in terminis, by the words of a Statute, or Act of Parliament, wherein the Bishops are acknowledged to be Peers of the Land.  
But to proceed more particularly to our proofs de facto, after the alteration of their Tenors by the Norman Conqueror; we find a Parliament assembled in the fifth year of that King, wherein are present Episcopi, Abbates, Comites, & Primates totius Angliae, (†) the 
(*) Math. Paris in Willi elmo 1.  Bishops, Abbot's Earls, and the rest of the Baronage of England.  
And 3ly. In the ninth year of William Rufus, an old Author telleth us, de Regni statu acturus, Episcopos, Abbates, & quoscunque Regni Proceres in unum praecepti sui sanctione egit, that being to consult of the Affairs of the Kingdom, he called together by his Writ the Bishops, Abbots and all the Peers of the Realm, 
(†) Edmor hist. Mov. l. 2.   
And 2ly. During the Reign of King Henry the first, for we will take but one example out of each King's Reign, though each King's Reign would yield us more) a Parliament was called at London. wherein were many things dispatched, aa well of Ecclesiastical, as Secular nature, the Bishops, and Abbot's being present with the other Lords; Coacto apud Londinium Magno Episcoporum & Procerum, Abbatumque concilio, multa Ecclesiasticarum, & Secularium rerum ordinata negotia, decisa Litigia, saith the Monk of Malmsbury 
(†) Malmbs. Hist. Reg. Ang. l. 5.  and of this Parliament it is, I take it, that Edmor speaketh Hist. Novel. l. 4. p. 91.  
Proceed we 4ly. to King Henry the second (for King Stephen's Reign was so full of Wars and Tumults, that there is very little to be found of Parliaments) and there we find the Bishops with the other Peers, convened in Parliament for the determination of the points in controversy between Alphonso King of Castille and Sancho King of Navarre, referred by com-promise to the King of England, and here determined by King Henry amongst other things. Habito cum Episcopis, Comitibus & Baronibus cum deliberatione Consilio, as in Roger Hoveden 
(†) Hoveden. Annal. pac. Rose in H. 2.   
5ly. Next time comes Richard the first, his Son; during whose Imprisonment by the D. of Austria, his Brother John then Earl of Moriton, endeavoured by force and cunning in Normandy to set the Crown on his own head; which caused Hubert the Archbishop of Canterbury, to call a Parliament (Convocatis coram eo Episcopis, Comitibus & Baronibus Regni, 
(†) Id. in joh.  wherein the Bishops, Earls, and Barons, did with one consent agree to seize on his Estate, and suppress his power, the better to preserve the Kingdom in Wealth, Peace, and Safety.  
6ly. After succeeded John, and he calls a Parliament, wherein were certain Laws made for the defence of this Kingdom, Communi assensu Archiepiscoporum, Episcoporum, Comitum, Baronum & omnium fidelium suorum Angliae, by the Common Counsel and Assent of the Archbishops, Bishops, Earls, Barons, and the rest of his Liege's. (Remember what was said before touching the Writ of Summons in the said King's time) from this time till the last Parliament of King Charles, there is no Kings Reign of which we have not many, (though not all) the Acts of Parliament still it Print amongst us. Nor is there any Act of Parliament in the Printed Books, to the Enacting of which the Bishop's Approbation and Consent is not plainly specified, either in the general Proem set before the Acts, or in the Body of the Acts themselves, as by the Books themselves doth at large appear.  
7ly. And to this kind of proof may be further added the Form and manner of the Writ, by which the Prelates in all times have been called to Parliament, being the very Law Verbatim, with that which is directed to the Temporal Barons, save that the Spiritual Lords are commanded to attend the Service, in fide & dilectione, the Temporal in fide & Homagio, and of late times in fide & Ligeantia quibus nobis tenemini. A Form or Copy of which Summons as ancient as King John's time, is still reserved upon Record, directed Nominatim to the Archbishop of Canterbury; 
(†) Titles of Hon. part 2. cap. 1.  and then a Scriptum est similiter to the residue of the Bishops, Abbots, Earls and Barons. Then add the Privilege of Parliament for themselves and their Servants, during the time of the Sessions, the Liberty to kill and take one or two of the King's Deer, as they pass by any of his Forests in coming to Parliament upon his Commandment, 
(*) Charta de forest. cap.  their enjoying of the same Immunities, which are and have been heretofore enjoyed by the Temporal Barons; 
(†) Camden in Briiania.  and tell me if the Bishops did not sit in Parliament by as good a Title as the Temporal Lords, and therefore Essential, Fundamental parts of the Court of Parliament.  
By this Discourse it may appear, that the Bishops Sat and Vote in Parliament by a double capacity; as Bishops, first in reference to their several Sees; and secondly, as Peers, in regard of their Baronies. In both respects accounted one of the Three Estates, and the first also of the Three, as from the Premises may be gathered without any great trouble. But in so nice a point as this, we shall not only build upon general Inferences, but particular Evidences.  
And first it is affirmed by Titus Livius, in his Relation of the Life and Reign of King Henry the 5th, That when his Funerals were ended, the three Estates of the Realm of England did assemble together, and declare his Son King Henry the 6th. being an Infant of 8 Months old, to be their Sovereign Lord, (†) as his Heir and Successor. And three Estates there 
(*) Tit. Liv. M. S. in Bib. Bodl.  could not be to perform that Service, unless the Bishops were acknowledged to be one of the number.  
2ly, In the Parliament Rolls of King Richard the third, there is mention of a Bill or Parchment presented to that Prince, being then Duke of Gloucester, on the behalf, and in the Name of the Three Estates of the Realm of England, that is to wit, the Lords Spiritual and Temporal, and of the Commons by name; which forasmuch as neither the said Three Estates, nor the persons which delivered it on their behalf, were then assembled in form of Parliament, was afterwards in the first Parliament of that King, by the same Three Estates Assembled in this present Parliament (I speak the very words of the Act itself) and by Authority of the same Enrolled, Recorded, and Approved; 
(*) An. Speed in K. R. 3▪  and at the request and by the assent of the Three Estates of this Realm, that is to say, the Lords Spiritual and Temporal, and Commons of this Land Assembled in this present Parliament, and by Authority of the same it be pronounced, decreed, and declared, that our said Sovereign Lord the King was and is the very and undoubted Heir of this Realm of England, etc.  
And 3ly, So it is acknowledged in a (†) Statute of 1 El. c. 3. where 
1 Eliz. c. 3  the Lords Spiritual and Temporal, and the Commons in that Parliament assembled, being said expressly and in terminis to represent the three Estates of the Realm of England, did recognize the Queen's Majesty to be their True, Lawful, and undoubted Sovereign Lieged Lady and Queen. And in a Statute of the 8th. year of the said Queen's Reign, the Bishops and Clergy are declared to be the greatest Estates of the Realm, and called the High Estate of Prelacy, in another place.  
It may perhaps be thought unnecessary or impertinent, to add the Testimony and Authority of a private person to that which hath been said by our Laws and Statutes. But being it is such a Person as was accounted for the Oracle of the Law when he served in Parliament, his Judgement may be taken for a creditable and sufficient Evidence in the present Case. It is the Testimony and Authority of Sir Edward Coke, successively Chief Justice of either Bench; who in his Book Concerning the Jurisdiction of Courts, speaks thus of Parliaments, 
(†) Coke of Parl. fol. 1.  This Court (saith he) consisteth of the King's Majesty sitting there as in his Royal Politic Capacity, and of the Three Estates of the Realm, viz. of the Lords Spiritual, Archbishops and Bishops, who sit there by Succession in respect of their Counties, Baronies, parcel of their Bishoprics which they hold also in their Politic Capacity; and every one of these when any Parliament is to be holden, aught ex debito Justitiae to have a Writ of Summons. Secondly, The Lords Temporal, Dukes, Marquesses, Earls, Viscounts and Barons, who sit there by reason of their Dignities, which they hold by Descent or Creation, and likewise every one of these being of full age, aught to have a Writ of Summons ex debito Justitiae. The Third Estate is the Commons of the Realm, whereof there be Knights of Shires or Counties, Citizens of Cities, and Burgesses of burgh's. All which are respectively Elected by the Shires or Counties, Cities and Burroughs, by force of the Kings Writ ex debito Justitiae, and none of them ought to be omitted: And these represent all the Commons of the whole Realm, and are trusted for them. So He: and this is plain enough beyond exception.  
Add hereunto ex abundanti, that in all Christian Kingdoms of the Gothick Model, there are no more nor fewer than three Estates, convented at the Will and Pleasure of the Supreme Prince, for their assistance and advice in Affairs of consequence; that is to say, the Bishops and other Ecclesiastical persons, who are always one, the Nobles for themselves, and the Commissioners for the Commons of their several Provinces; for so we find it in the Constitutions of the Roman Empire, and the Realms of Spain, the Kingdoms of France, Poland, Hungary, together with those of Denmark, Sweden, and the Realm of Scotland. And it were strange if in the Constitution of the English Parliaments, or Conventus Ordinum, the Bishops should have been left out, and none at all elected to present the Clergy. But being admitted with the rest in those public Meetings, and being looked on as the First Estate in the Style of that Court, it must needs be, that their Exclusion shakes the very Fundamentals of the said Assemblies, and makes the whole Body to be maimed and mutilated for want of such a principal Member, so necessary to the making up of the whole Compositum.  
But against all this it is objected, first, that some Acts have passed in Parliament, to which the Prelates did not Vote, nor could be present in the House when the Bill was passed; as in the sentencing to death or mutilation of a guilty Person: as doth appear by the Laws and Constitutions recognized at Clarendon, and the following practice. This hath been touched on before, and we told you then, that this restraint was laid upon them, not by the common Law of England, or any Act or Ordinance of the House of Peers, by which they were disabled to attend that service. It was their own voluntary Act, none compelled them to it, but only out of a conformity to some former Canons, ad Sanctorum Canonum instituta, 
(†) Antiqui. Brit. in Gul. Courtney.  (as their own words are) by which it was not lawful for the Clergy Men, to be either Judges or Assessors in causa sanguinis 
(*) Constitut. Othob. Fol. 45. . And yet they took such care to preserve their Interest, that they did not only give their Proxies for there presenting of their Persons, but did put up their protestations, with a salvo jure, for the preserving of their Rights for the time to come: Jure Paritatis & interessendi in dicto Parliamento 
(†) Antiqu. Brit. in Gul. Courtney.  quoad omnia & singula ibi exercendi in omnibus semper salvo, as the manner was; Examples of which are as full and frequent, as their withdrawing themselves on the said occasions.  
But then the main Objection is, that as some Acts have passed in Parliament, absentibus Prelatis, when the Bishops did absent themselves of their own accord; so many things have been transacted in the Parliament Excluso Clero, when the Clergy had been excluded or put out of the House by some Act or Ordinance. A Precedent for this hath been found and published by such as envied that poor remnant of the Church's honour: though possibly they will find themselves deceived in their greatest hopes, and yet the evidence will not serve to evince the cause. The Author of the Pamphlet entitled, the Prerogative and practice of Parliaments, first lays this Tenet for his ground, That many good Acts of Parliament may be made, though the Archbishops, and Bishops should not consent unto them (†) (which is a point 
(*) Printed at Lond, 1628. p. 31.  that no man doubts of, considering how easily their Negative may be overruled by the far greater number of the Secular Peers.) Then he adds that in a Parliament held at St. Edmundsbury, 1196. in the Reign of Edward the first, a Statute was made by the King, the Barons, and the Commons, excluso Clero, and for the proof hereof refers us unto Bishop Jewel.  
Now Bishop Jewill saith indeed, That in a Parliament held at St. Edmundsbury by King Edward the first, Anno 1296. the Archbishops and Bishops were quite shut forth, and yet the Parliament held, and good and wholesome Laws were there Enacted, the departing or absence of the Lords Spiritual notwithstanding. 
(†) Defence of the Apol. part 6. c. 2. S. 1.  In the Records whereof it is written thus, Habito Rex cum Baronibus suis Parliamento, & Clero excluso, statutum est, etc. The King keeping the Parliament with his Barons, the Clergy, (that is to say, the Archbishops, and Bishops,) being shut forth, it was enacted, etc. Wherein who doth not see, if he hath any eyes, that by this reason, (if the proof be good) many good Acts of Parliament may be made, though the Commons either out of absence or opposition should not consent unto the same; of whose consent unto that Statute (whosoever it was) there is as little to be found in that Record, as the concurrence of the Bishops, But for answer unto so much of this Record so often spoke of, and applauded, as concerns the Bishops, we say, that this (if it be truly sensed, as I think it is not) was the particular Act of an Angry and Offended King against his Clergy, not to be drawn into example as a proof or Argument against a most clear, known and undoubted Right.  
The Cause stood thus, A Constitution had been made by Boniface the 8th, Ne aliqua collecta ex ecclesiasticis proventibus Regi, aut cuivis alii Principi concedatur; 
(†) Math. West. in E. 1.  that Clergymen should not pay any Tax or Tallage unto Kings or Princes out of their Spiritual Preferments without the leave of the Pope. Under pretence whereof, the Clergy at this Parliament at St. Edmonsbury, refused to be contributory to the King's occasions, when the Lay-Members of the House had been forwards in it. The King being herewith much offended, gives them a further Day to consider of it, Adjourning the Parliament to London, there to begin on the morrow after St. Hilaries Day; and in the mean time commanded all their Barns to be fast sealed up. The day being come, and the Clergy still persisting in their former obstinacy, Excluso è Parliamento Clero Consilium Rex cum solis Baronibus & populo habuit, totumque statim Clerum protectione sua privavit; 
(*) Antiqu. Brit. in R. Winchelsey.  The King (saith the Historian) excluding the Clergy out of the Parliament, advised with his Barons, and his People only, what was best to be done; by whose Advice he put the Clergy out of his protection, and thereby forced them to conform to his Will and Pleasure.  
This is the Summa totalis of the Business, and comes unto no more but this, that a particular course was advised in Parliament on a particular Displeasure taken by the King against the Body of his Clergy then convened together, for their particular refusal to contribute to his Wants and Wars, the better to reduce them to their natural Duty. Which makes not any thing at all against the Right of Bishops in the House of Peers, or for excluding them that House, or for the validity of such Acts as are made in Parliament during the time of such exclusion; especially considering that the King shortly after called his States together, and did excuse himself for many extravagant Acts which he had committed 
(†) Wolsingh. in E. 1. An. 1297.  against the Liberties of the Subject, (whereof this was one) laying the blame thereof on his great occasions, and the necessity which the Wars which he had abroad did impose upon him.  
And so much as in Answer unto that Record, supposing that the words thereof be rightly sensed, as I think they are not, and that by Clerus there, we are to understand Archbishops and Bishops, as I think we be not, there being no Record (I dare boldly say it) either of History or Law, in which the word Clerus serves to signify the Archbishops and Bishops, exclusive of the other Clergy, or any Writing whatsoever, wherein it doth either notsignifie the whole Clergy generally, or the inferior Clergy only exclusive of the Archbishops, Bishops, and other Prelates. Therefore in answer unto that so much applauded Cavil of Excluso Clero, from what Record soever it either hath been hitherto, or shall hereafter be produced, I shall propose it to the consideration of the sober Reader, whether by Clerus in that place, or in any other of that kind and time, we must not understand the Inferior Clergy, as they stand distinguished in the Laws from my Lords the Bishops.  
For howsoever it be true that Clerus in the Ecclesiastical Notion of the Word doth signify the whole Clergy generally, Archbishops, Bishops, Priests and Deacons; yet in the Legal notion of it, it stands distinguished from the Prelates, and signifieth only the inferior Clergy. Thus do we find the ecclesiastics of this Realm divided into Prelates, men of Religion, and other Clerks, 3 E. 1. c. 1. the Seculars either into Prelates and Clerks, 9 E. 2. c. 3. 1 R. 2. c, 3. or Prelates and Clerks Beneficed, 18 E. 3. c. 2. or generally into the Prelates and the Clergy, 9 E. 2. c. 15. 14 E. c. 1. & 3. 18 E. 3. 2, 7. & 25 E. 3. 2, 4. & 8 Hen. 6. c. 1. And in all Acts and Grants of Subsidies made by the Clergy to the Kings or Queens of England since the 32 d. of H. 8, (when the Clergy-Subsidies first began to be confirmed by Act of Parliament.  
So also in the Latin Idiom, which comes nearest home, Nos Praelati & Clerus, in the submission of the Clergy to King H. 8. 
(†) Regist. Watham.  and in the Sentence of Divorce against Anne of Cleve 
(*) Regist. Cranmer.  and in the Instrument of the Grant of the Clergy-Subsidies presented to the Kings of England ever since the 27th. of Queen Eliz. and in the form of the Certificates (per 
(†) Stat. 8 Eliz. c. 17. & ever since.  Praelatos & Clerum) returned by every Bishop to the Lord High Treasurer, and finally, Nos Episcopi & Clerus Cantuariensis Provinciae in hac Synodo more nostro solito, dum Regni Parliamentum celebratur, Congregati. 
(*) Stat. 1. Phil. & Mary, c. 8.  In the Petition to K. Philip and Mary, about the Confirmation of the Abbey-Lands to the Patentees; so that though many Statutes have been made in these latter times, Excluso Clero, the Clergy, that is to say, the inferior Clergy (who anciently had their place in Parliaments) being quite shut out, and utterly excluded from those public Councils; yet this proves nothing to the Point, that any Act of Parliament hath been counted good, to which the Bishops were not called, or at the making of which Act they either were shut out by Force, or excluded by Cunning.  
But then, besides the so much celebrated Argument of excluso Clero, the Author of the Pamphlet before remembered, hath told us somewhat on the credit of Kilbancies book; In which the Justices are made to say 7 Hen. 8. That our Sovereign Lord the King, may well hold his Parliament by him, and his Temporal Lords, and by the Commons also, without the Spiritual Lords, for that the Spiritual Lords have not any place in the Parliament Chamber, by reason of their Spiritualities, but by reason of their Temporal Possessions. But first this is but the Opinion of a private man, of no Authority or Esteem for aught we can can find) in the Realm of England, and therefore not concluding in so great a business. And 2dly. admitting him to be a man of more note and credit than perhaps he was, yet he must needs fall short in all respects, both for Abilities and Reputation of Chief Justice Coke, whose Judgement to the contrary we have seen before. But 3ly, it runs cross to the ancient practice of the Saxon Times, in which the Bishops sat in Parliament as Spiritual Persons, without relation to their Temporal Possessions, or their Baron's Fees, as afterwards in the Reign of the Norman Kings. And finally, admitting that Kilbancies' Plea were of weight enough to keep the Bishops down from rising to their place in Parliament, it must be strong enough to exclude all the Temporal Lords; The Temporal Lords being called to Parliament on no other ground, than for the Temporal possessions which they hold by Barony. Adeo argumenta ab absurdo petita, ineptos habent exitus, said Lactantius truly, It is the Fate (said he) of ill chosen Premises, that they produce ridiculous and absurd Conclusions.  
There remains one Objection more, and indeed the greatest, not extant in the Pamphlet before remembered, though possibly promoted and occasioned by it; that is to say, that the Bishops are excluded from their Place and Vote by Act of Prrliament, deliberately made and passed by the King's consent. For answer whereunto, it will be necessary first to state this Question, viz: Whether that any two of the the three Estates, concurring or agreeing together, may conclude any thing which tends to the Subversion of the third. Bodinus that renwoned Statesman, hath resolved it negatively, and determined thus; Nihil a duobus ordinibus discerni posse, quo uni ex tribus incommodum inferatur, etc. 
(†) Bodin de Rep. l. 3. c. 7.  That nothing can be done by two of the three Estates, to the disprofit of the third, in case the point proposed be such as concerns them severally; and he resolved thus in favour of the Commons of the Realm of France, who were upon the point of being excluded from the Parliament, or Convention of the three Estates, if he had not notably bestirred himself in their behalf (he being then a Delegate or Commissioner for one of the Provinces) and by his diligence and care preserved their Interests; and to preseve their Interest, he insisted chiefly on the ancient custom of the Realm of France, as also on the Realm of Spain and England, and the Roman Empire; in each of which it was received for a ruled Case, Nihil a duobus ordinibus statui posse, quo uni ex tribus prejudicium crearetur, That nothing could be done by any of the two Estates, unto the prejudice of the third.  
And if it were a ruled Case; then in the English Parliaments, there is no reason why it should be otherwise in the present times, the Equity and Justice of it being still the same, and the same reasons for it now as forcible as they could be then. Had it been otherwise resolved of in the former ages, wherein the Clergy were so prevalent in all public Counsels, how easy a matter had it been for them, either by joining with all the Nobility to exclude the Commons, or by joining with the Commonalty to exclude the Nobles? Or having too much Conscience to venture in so great a change, and alteration, so incompatible, Inconsistent with the Constitution of a Parliament; how easily might they have suppressed the Potency, and impair the Privileges of either of the other two, by by working on the humours or affections of the one to keep down the other?  
Nor doth it help the matter in the least degree to say that the Exclusion of the Bishops from the House of Peers, was not done merely by the procurement of some of the other two Estates, but by the Assent of the King, of whom the Laws say He can do no wrong, and by an Act of Parliament whereof our Lawyers say, que nul doit imaginer chose dishonourable, that no man is to think 
(†) Plowden in Come.  dishonourable. For we know well in what condition the King was when he passed that Act, to what extremities he was reduced, on what terms he stood, how he was forced to withdraw from his City of London, to part with his dear Wife and Children, and in a word, so overpowered by the prevailing Party in the two Houses of Parliament, that it was not safe for him (as his Case then was) to deny them any thing. And for the Act of Parliament, thus insisted on, besides that the Bill had been rejected when it was first brought unto the Lords, and that the greater part of the Lords were frighted out of the House, when contrary unto the course of Parliament it was brought again; it is a point resolved both in Law and Reason, that the Parliament can do nothing to the destruction of itself, and that such Acts as are under a constraint, are not good and valid, whereof we have a fair example in the book of Statutes. 
(†) 15 Ed. 3.   
For whereas the King had granted certain Articles pretended to be granted in the Form of a Statute, expressly contrary to the Laws of the Realm, and his own Prerogative and Rights Royal (mark it, for this is just the case) which he had yielded to eschew the dangers, which by denying of the same were like to follow in the same Parliament, it was repealed in these following words; It seemed good to the said Earls, Barons, and other wise men, that since the Statute did not proceed of our Free Will, the same be void, and ought not to have the name nor strength of a Statute, and therefore by their Counsel and Assent we have decreed the said Statute to be void, etc. Or if it should not be repealed in a Formal Manner; yet is this Act however gotten, void in effect already by a former Statute, in which it was enacted in full Parliament, and at the self same place where this Act was gained, That the Great Charter by which and many other Titles, the Bishops held their place in Parliament) should be kept in all points, and if any Statute be made to the contrary, it shall be held for none. 
(*) 42 Ed. 3. c. 6. 1.   
More Arguments than these against the Bishop's Place and Vote in Parliament I have not where found. And these being answered and refelled, I hope the point in question hath been fairly proved, viz. That the Bishops make a Fundamental and Essential part of our English Parliaments.   

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. Prynn 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 and 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. by the Advice 
These Great Councils were the Parliaments of those Times, Let. p. 72.  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 Word 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, I refer you to the Answer of the Quodlibetical Question for your 
p. 93. to 98.  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 Assemble 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 Lord, 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, this Gentleman fetches 
Pag. 85. Cap. 14, & 29.  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, he is tried by 
Ibid. 85.  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. A Temporal Lord, Duke, Earl 
p. 86.  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, to give them 
Let. p. 73.  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: Quia 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, for as the Reverend Davenant hath 
Determ. 11.  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 
See Numb. 25. 7, 13.  the Maccabees, 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 Supremacy, 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 Member 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, yet the Constitutions of Clarendon enjoined them 
Let. p. 71.  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 sanguims? whether accoording 
p. 1.  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, he saith, was about the time of 10 H. 
p. 69, etc.  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 
p. 72.  of an Oath, 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, 
p. 71.  (not all the Dignified Clergy of the Land, 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 then 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. Hereupon we may 
p. 73.  build our Faith, that there was really such an 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. 
p. 18, etc. 71, etc.  2. upon the Protestation of the Archbishop, 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, in 
p. 23.  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. If 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 any Testimony: For either it is Error Temporis, an Error of those times; or 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, 
p. 21.  is their Right of sitting to consult, 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 Constitutions, 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. This Gentleman endeavours to invalidate this so pregnant 
p. 60, 61.  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, reciting among 
p. 108.  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 every 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, In Festo Nativitatis B. Mariae, cum universi Magnates 
Here Archbishops and Bishops are Magnates as well as others.  Regni per Regium edictum summoniti, tam Archiepiscopi, & Episcopi, quam caeteri totius 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 De linquents 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 Archibishops 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 confirmations, 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 Synodals, 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.