1. The Founder and Patron of all Bishopricks.

IT appeareth by our Books, Co. Litt. f. 97. a 134. a. 344. a. Co. 2. Inst. f. 3. Stat. 25. E. 1. Carlisle. that all Arch-Bishops and Bishops of England have been founded by the Kings of England; and therefore it hath been declared in Parliament, that the Holy Church of England was founded in the State of Prelacy within this Realm, by the King and his Progenitors. But here then may be queried, who were the first Founders of the Bishopricks in Wales?

It is answered, 10. H 4.6. b. Co. Litt. 97. [...]o. 2. Inst. f. 195. On the Stat. of West. 1. c. 17. That the Bishopricks in Wales were founded by the Princes of Wales; and the Principality of Wales was holden of the King of England, as of his Crown: and when the Prince of Wales committed Treason, Rebellion, &c. the Principality was forfeited, and the Patronages of the Bishops annexed to the Crown of England. So as the King is to have Pensions for his Chaplains, and Corodies for his Vadelers, of them, as of Bishops founded by himself.

2. To whom the Custody of the Spiritualties and Temporalties of Bishops do appertain, Sede Vacante. Co. 2. Inst. 15. West. 1. c 21. Magna Charta, 5. Prerog Regis, c. 14. Rolls Abr. 2. p. f. 223.

THe Custody of the Temporalties of every Arch-Bishop and Bishop (says Coke) within the Realm, and of such. Abbies and Priories as were of the King's [Page 6]Foundation, after the same became void, belonged to the King, during the Vaca­tion thereof by his Prerogative. For, as the Spiritualties belonged, during that time, to the Dean and Chapter, de Communi Jure, or to some other Ecclesiastical Person, by Prescription or Composition; so the Temporalties came to the King as Founder. And this doth belong to the King, being Patronus & Protector Eccle­siae, in so high a Prerogative incident to his Crown, as no Subject can claim the Temporalties of an Arch-Bishop, or Bishop, when they fall, by Grant or Prescri­ption.

3. How Bishops were, and how now made.

IT is apparented by our Books of Law and History, Co. Lit. f. 134. a. 344. a. Co. Lib. 3 Dean and Chapt. of Norwich 's case, Rolls Rep. 2. part, f. 102. Davy's Rep. f. 46. a. de Capitula­riter congregatis that at the first all the Bi­shopricks in England were Donative, per Traditionem Baculi; i. e. the Crosier, which was the Pastoral Staff: and Annuli, the Ring, whereby he was married to the Church. King Henry the first being requested by the Bishop of Rome to make them elective, refused it. But King John, by his Charter, bearing Date, Quinto Junti, Anno Decimo Septimo, granted that the Bishopricks should be Eligible; which afterwards was confirmed by divers Acts of Parliament. And afterward the manner and order, as well of Election of Arch-Bishops and Bishops, as for the Confirmation of the Election and Consecration, is enacted and expressed in the Sta­tute of the Twenty fifth of Henry the Eighth. But by the Statute of the thirty first of Henry the Eighth, and the first of Edward the Sixth, they were made Dona­tive by the King's Letters Patents. Both which Statutes are repealed, and the Sta­tute of the twenty fifth of Henry the Eighth, doth yet remain in full force and effect.

4. Their Jurisdiction, what, and whence derived.

AS to the Jurisdiction and Authority that appertains to Bishops, are conside­rable two Particulars.

1. Whence this Jurisdiction is derived.

2. The Extent and Subject Matters of this Jurisdiction.

5. Their Courts.

THe Courts wherein the Bishops exercise their Jurisdiction in Matters Spiritual, or Ecclesiastical, are these following.

6. By whom only Bishops are commanded to certifie.

IT is to be known, that none but the King's Courts of Record; Co. Litt. [...]. 4. [...] 10 [...] [...] 2. [...] 325. as the Court of Common Pleas, the King's Bench, Justices of Goal-Delivery, and the like, can write to the Bishop, to certifie Bastardy, Mulierty, Loyalty of Matrimony, and the like Ecclesiastical Matters. For, 'tis a Rule in Law, that none but the King can write to the Bishop to certifie: and therefore no inferior Court, as London, Norwich, York, or any other Corporation, can write to the Bishop to certifie; but in those Cases the Plea must be removed into the Court of Common Pleas, and that Court must write to the Bishop, and then remand the Record again. And this was done in respect of the Honour and Reverence which the Law gave to the Bi­shop, being an Ecclesiastical Judge, and a Lord of Parliament, by reason of the Ba­rony which every Bishop hath. And this was the reason a Quare Impedit did lie of a Church in Wales, in the County next adjoyning, for that the Lordships Marchers could not write to the Bishop; neither shall Cognizance be granted in a Quare Impedit, because the Inferior Court cannot write to the Bishop. And herewith a­greeth Antiquity; Nullus alius praeter Regem, potest Episcopo demandare inquisitionem faciendam. Bracton.

7. Bishops Proceedings in Ecclesiastical Courts, under the Name, Style, Seal of the Bishops, how warrantable.

At the Session of Parliament holden, Anno 4 ^o. Jac. Co. 2. I [...] [...] 685, 686. [...] Lib. 12 [...] upon a Branch of an Act made at the first Session, in the first Year of King James his Reign, for Continuance and Reviving divers Statutes, it was enacted, that an Act made in the first Year of Queen Mary, Stat. 2. c. 2. entituled, An Act for Repeal of certain Statutes made in the time of King Edward the sixth, should stand repealed and void. A doubt was moved concerning the Bishops; which was divided into two Questions.

1. Whether any Bishop made, especially since the first day of that first Session of Parliament, were lawful or no?

2. Whether the Proceedings in the Bishops, or other Ecclesiastical Courts, be­ing made under the Name, Style and Seal of the Bishops, were warranted by Law?

And the reason of these two Doubts was this: By the Statute of 1 E. 6 c. 2. it was enacted, that Bishops should not be Elective, as before that time they had been; but Donative, by the King's Letters Patents.

Secondly, By the said Act is provided, that all Summons, Citations, and Pro­cess in Ecclesiastical Courts should be made in the Name and Style of the King, and that their Process should be sealed with a Seal of the King's Arms, &c.

And it was strongly urged, that this Act of the first of Edward the Sixth was now in force; and consequently, all Bishops made (at the least, since it became of force) by Election, &c. and not by Donation, according to the said Act of the first of Edward the Sixth, are unlawful; and all their Process, Proceedings, being in their own Names, Styles and Seals (where, by the said Act, they ought to have been in the King's Name, and under his Seal) were all unlawful and void. And to prove that the said Act of Ann. 1. Ed. 6. was now in force, they alledged that this Act of the first of Edward the Sixth was repealed by the said Act of the first of Mary above mentioned; which Act of Repeal, being repealed by the said Branch of the first of Jacobus, consequently the said Act of the first of Edward the Sixth was thereby revived. For when an Act of Repeal is repealed, the first Act that [Page 12]was repealed, is revived; and herewith agreeth the Book-Case, in the fifteenth of Edward the Third. Tit. Petition. Pl. 2. And this is true, and cannot be denied.

The King having understanding hereof, and being informed of the Consequents thereof, being matters tending not only to the infinite prejudice of his Subjects in Cases of great Importance (especially, if any Diocess had no Lawful Bishop, or Ordinary; but, to the scandal and impeachment of his Majesty's Justice, not only in those Proceedings, but also in Administration of Justice, in certain Cases, in his Courts of Common Law at Westminster) commanded his two Chief Justices to consider of the said Objections, and to inform him of the true State thereof; that either the scruple conceived might be cleared and satisfied, or the Inconvenience (if any were) timely provided for, and prevented: who, upon timely considera­tion had of the said Objection, agreed the Law to be (as the said Case was put) as it had been taken. But upon further search and consideration had, other manifest and direct matters were found to satisfie and clear the said scruple and question; which afterwards was agreed and resolved accordingly, by the Chief Baron, and other Judges then attending in the Upper House of Parliament.

For the understanding whereof it is to be observed, that the said Act of the first of Edward the Sixth was repealed by three several Acts of Parliament; viz.

1. By the said Statute of Ann. 1. Mar. in the whole.

2. By the Act of 1. & 2. Ph. & Mar. c. 8. by sufficient words, as concerning the Name, Style and Seal of their Process, &c.

And Lastly, By the Statute of 1. Eliz. c. 1. the whole Act of 1. E. 6. is also re­pealed.

For, Leges posteriores priores contrarias abbrogant. And as a Man that is strongly bound with three Cords, or Ligaments, albeit one or two of them be untied, or cut asunder, remains bound notwithstanding, by and with the second or third, which remain firm and untouched; so a Statute repealed by force of three several Acts re­mains repealed so long as any of them remain in force, albeit one or two of them be made void. And therefore, although the Act of 1. Mar. be repealed by 1. Jac. yet the other two Acts remaining in force, the Act of Ann. Prim. E. 6. re­mains repealed.

First therefore, As to the Name, Style and Seal, &c. in Ecclesiastical Courts, it is enacted by the 1. & 2. Ph. & Mar. c. 8. in these words.

And the Ecclesiastical Jurisdiction of the Arch-Bishops, Bishops and Ordinaries to be in the same state for Process of Suits, punishment of Crimes, and Execution of Censures of the Church, with knowledge of Causes belonging to the same; and as large in those points as the said Jurisdiction was in Ann. 20. H. 8.

By which Clause, if the Act of Repeal of 1. Mar. (now repealed) had never been made, the Act of 1. E. 6. as to the Name, Style and Seal in Ecclesiastical Proceed­ings, had been repealed by this latter Act of 1. & 2. Ph. & Mar.

Secondly, But it was objected, that the Act of 1. & 2. Ph. & Mar. (which is the second Cord or Ligament) is repealed by the Act of 1. Eliz. c. 1. To this it was answered, and resolved, that this second Cord or Ligament remains in force: for, true it is, that the Act of 1. Eliz. repeals the Act of 1. & 2. Ph. & Mar. Secun­dum quid, but not Simpliciter; for the Act of 1. Eliz. doth repeal every Branch and Article of 1. & 2. Ph. & Mar. other than for such Branches as therein be except­ed. And afterwards, by another Branch of the said Act of 1. Eliz. it is enacted, that all other Laws and Statutes repealed, and made void by the said Act of 1. & 2. of Ph. & Mar. and not in that Act specially mentioned and revived, should stand, remain, and be repealed and void, as the same were before the making of that Act. But that Act of 1. Ed. 6. (as it hath been often said) is sufficiently repealed by the Act of 1. & 2. Ph. & Mar. as to the Name, Style and Seal, &c. and the Act of 1. Ed. 6. is not specially mentioned and revived by the Act of 1. Eliz. so the same remain repealed, by the Act of 1. & 2. Ph. & Mar.

Thirdly, The third Act, which clearly repeals and annuls the Act of 1 Ed. 6. as well for the making and constituting Bishops, as for the Name, Style and Seal of Process, is the Act of 1. Eliz. c. 1. for that Act doth revive the Act of 25. H. 8. c. 20. and further enacteth, that the same shall stand in full force and effect, to all intents, Constitutions and Purposes. By which Act of 25. H. 8. it is enacted as followeth.

And that of every Avoidance of any Arch-Bishoprick or Bishoprick, the Kin [...] ▪ his Heirs and Successors, may grant to the Prior and Covent, or to the Dean and Chapter, a License under the Great Seal, as of old time hath been accustomed to proceed to an Election of an Arch-Bishop, or Bishop; with a Letter Missive, containing the Name of the Person which they shall elect and chuse, &c. And according to this Statute, revived by Ann. 1. Eliz. all Arch-Bishops and Bishops at this day be made: and if they were made according to the Act of 1. E. 6. they were unlawful.

And further, it is enacted by the said Act of 25 H. 8. That every Person chosen, elected, invested and consecrated Arch-Bishop or Bishop, according to the form and effect of this Act, &c. shall do and execute, in every thing and things, touching the same; as any Arch-Bishop or Bishop of this Realm, &c. might at any time heretofore do. Which later Branch doth extend to all Process and Proceedings in Ecclesiastical Courts, and that the same shall be in such sort as the same were before the Act of 25. H. 8. and before that Act, the Name, Style and Seal of their Process, &c. were as now they be.

And the said Act of 1. Eliz. reviving the Act of 25. H. 8. doth impliedly re­peal the Act of 1. E. 6. which had repealed the 25. H. 8. in both the said points: For, as by repealing of a Repeal, the first Act is revived; so by reviving of an Act repealed, the Act of Repeal is made of no force.

8. The Bishops with what Council assisted.

Every Bishop is assisted with a Council. For, Co. Lib. 3. Le cafe del Dean & Cha­piter. f. 75. a. seeing it was impossible that the Church of God should continue without Sects and Heresies, it was in Chri­stian Policy thought necessary, that every Bishop should be assisted with a Coun­cil, and with a Chapter; and that for two Reasons.

1. To consult with them in matters of difficulty, and to assist the Bishop in deciding of Controversies in point of Religion. And to this purpose every Bi­shop hath a Chair.

2. To consent to every grant the Bishop shall make to bind his Successors; for the Law did not judge it reasonable to repose such Confidence in him alone. At first all the Possessions were to the Bishop, after, a certain Portion was assigned to the Chapter; therefore the Chapter was before they had any Possessions. And of Common Right the Bishop is Patron of all the Prebends, because their Posses­sions were derived from him. So that so long as the Bishoprick continues (the Dean and Chapter being his Counsel) remains, though they have no Possessions, as at first they were, when the Bishoprick consisted all of Spiritualty.

Of their Dominion and Property.

HEretofore Bishops, with the Confirmation of the Dean and Chapter, Co. Litt. 44. a. might have made Leases for Lives or Years, without Limitation or Stint. And [Page 14]so might they have made Gifts in Tall, and Estates in Fee, at their Will and Pleasure. Whereupon, not only great decay of Divine Service, but Dilapi­dations, and other Inconveniences ensued: and they were disabled and restrain­ed by several Acts of Parliament, to make any Estate, or Conveyance to the King at all, or to the Subject; but there is excepted out of the Restraint or Dis­ability, Leases for three Lives, or twenty one Years, with Reservation of Rent, and with other Provisions and Limitations.

To be short, as the Bishops cannot utterly divest themselves of their Lands and Revenues, so ought not their Rights to be liable to the Sacrilegious Rapine of others; for, Quod datum est Ecclesiae, Deo datum est. Which sacred Maxim the Roal Martyr very well understood, when he used these very words, viz.

There are ways enough to repair the Breaches of the State, without the Ruines of the Church; as I would be a Restorer of one, so I would not be an Oppressor of the other, under the pretence of Publick Debts. The Occasions contracting them were bad enough, but such a discharging of them would be much worse. I pray God neither I, nor mine, may be acces­sary to either.

And indeed, well might this most Religious Prince thus pray; for, without doubt, the Sin of Sacrilege is a very horrid Crime. Proximum Sacrilegio Crimen est, quod Majestatis dicitur, Treason is a petty Sin, in respect of Sacrilege. St. Austin seems to give the Reason; Tanto gravius est peccatum, quanto commit­ti non potest, nisi in Deum. Thou that abhorrest Idols, committest thou Sacrilege? Which words of the Apostle St. Paul are specially to be noted by them that pre­tend mainly against Superstition and Idolatry, yet are hotly set for Sacrilege.

Further, As this Sin of Sacrilege in its own Nature is very abominable, so it is dangerous more ways than one.

1. To private Men that commit it. Make them like a Wheel, as Stubble before the Wind, fill their faces with shame, who said, Let us take the Houses of God to our selves in possession, Psal. 83.

2. To more publick Persons, even to the Heads, and Principal Members of the Commonwealth, the Kings and Princes thereof; see Daniel c. 5. concern­ing Belshazzar.

Our own Annals tell us of King William Rufus and his Nephew, the Son of Robert, Duke of Normandy; both slain in Hunting, in the same Forest that the Conqueror his Father, and Grandfather to his Nephew, had made, and himself had augmented, with the utter Ruin of many Chappels, Churches and Religi­ous Houses.

3. To the Commonwealth it self. This Sin in Achan became not a Snare to himself, in which he was taken; but all Israel was troubled by the sin of that one Achan; Joshua c. 7.

But after all this, it may be demanded of me, whether this will take away the nature of sin from the Alienation of Church-Lands, that it is done by a National Assembly of the States in Parliament?

I answer, that this will not take from Sacrilege the nature of sin, that it is [Page 15]done by a National Assembly, giving their Sanction thereunto: for the Pro­ceedings and Sanctions of a National Council must be by Rule from God; o­therwise they become more out of measure sinful, than Actions of like Quality in private Men. The Laws of State are not therefore just, because enacted by the State; but when they agree with the common Rules of Justice, that God has bestowed upon the Sons of Men.

To conclude, To do that by a Law, which should be enacted for preventi­on of Sin, and not for Commission, is to make it the more sinful. Shall the Throne of Iniquity have Fellowship with thee, that frameth mischief by a Law?

10. What the King hath after the Death of every Bishop.

IT appeareth by many Records in the Reign of Henry the Third, Co. 2. Inst. 491. 1. Co. 4. Inst. f. 388. and Ed­ward the Second; that, by the Law and Custom of England, no Bishop could make his Will of his Goods or Chattels coming of his Bishoprick, &c. without the King's License.

The Bishops, that they might freely make their Wills, yielded to give to the King, after their Deceases respectively, for ever, six things.

• 1. Their best Horse, or Palfrey, with Bridle and Saddle.
• 2. A Cloak with a Cape.
• 3. One Cup with a Cover.
• 4. One Bason and Ewer.
• 5. One Ring of Gold.
• 6. His Kennel of Hounds.

For these a Writ issueth out of the Exchequer after the Decease of Every Bishop.

11. Bishopricks whether Saleable.

AS, In omni re nascitur res quae ipsam rem exterminat, Co. 2. Just. f. 15. (as the Worm in the Wood, or the Moth in the Cloth, and the like) so often times no Profes­sion receives a greater blow, than by one of their own Coat. For Ranulph, an Ecclesiastical Person, and King William Rufus his Chaplain, was a Factor for the King in making Merchandize of Church-Livings; in as much as when any Arch-Bishoprick, Bishoprick, or Monastery became void,

First, He perswaded the King to keep void a long time; and converted the Profits thereof, sometime by Letting, and sometime by Sale of the same: [Page 16]whereby the Temporalties were exceedingly wasted and destroyed.

Secondly, after a long time no man was preferred to them, per Traditionem Annuli & Baculi; by Livery of Seizan, as the old fashion was; but by Bargain and Sale from the King, to him that would give most: by means whereof the Church was stuffed with unworthy and insufficient Men; and many Men of lively Wits, and towardliness in Learning, despairing of Preferment, turned their Studies to other Professions. This Ranulph, for serving the King's Turns, was advan­ced; first, To be the King's Chancellor, and after to be Bishop of Durham. Who after his Advancement to so high Dignities, made them Servants to his Sacrilegious and Symoniacal Designs. King Henry the First, seeing this mis­chief, and foreseeing the great inconvenience that would follow thereupon, was contented, for his own time, to bind his own hands; to the end the Church now naked and bare, might receive some comfort, and have means to provide things necessary for their Profession and Calling. He thereupon, at his Coro­nation made a Charter to this effect. Vide Magna Charta. c. 1. Quia Regnum oppressum erat injustis exactio­nibus, ego, in Respectu Dei, & amore quem erga vos omnes habeo, Sanctam Dei Ec­clesiam imprimis liberam facio, Ita quod nec vendam, nec ad firmam ponam, nec Mor­tuo Archiepiscopo, sive Episcopo, vel Abbate, aliquid accipiam de Domino Ecclesiae, vel hominibus ejus, donec Successor eam ingrediatur, & omnes malas Consuetudines, quibus Regnum Angliae opprimebatur, inde aufero.

He committed the said Ranulph, then Bishop of Durham, to Prison for his intolerable Misdeeds and Injuries to the Church: where he lived without love, and died without pity, saving of those that thought it pity he lived so long.

I will close this Section with a Sentiment of the Imperial Law, touching buy­ing and selling.

Non pretio, C. 1.3.31: sed precibus ordinetur Antistes. Tantum ab ambitu debet esse sepositus, ut quaeratur cogendus, rogatus recedat, invitatus effugiat, sola illa suffragetur necessitas excusandi. Profecto enim indignus est Sacerdotio, nisi fuerit ordinatus invitus. Ne­mo gradum Sacerdotii pretii venalitate mercetur, quantum quisque mereatur, non quan­tum dare sufficiat, aestimetur.

Episcopus non pretio, sed precibus ordinandus est. Gothofredus.

12. Their Right of Sitting in Parliament.

THe Spiritual Lords do sit in the King's great Council in Parliament, by the same Right that the Temporal Lords do; and that is by reason of their Ancient Baronies. For, although originally, all the Possessions of Bishops, Ab­bots and Priors were given and holden in Frankalmoigne; yet, shortly after the Norman Conquest, their Tenures were altered, viz. Per Baroniam; as appeareth by Mathew Paris, Anno 1070. 66. and of that Tenure have continued ever since, as shall be apparented by the Consultations of Clarendon, in the Reign of Henry the Second; by Glanvil, and other Authorities.

In the Constitution held at Clarendon, Co. 2. Inst. f. 6. tempore H. 2. Ann. 1164. Certain Re­capitulations of the Prerogative of the King and his People, then sought to be infringed by the Pope and his Clergy; it is thus expressed in the eleventh Ar­ticle, Archiepiscopi & Episcopi, & universa persona Regni, qui de Rege tenent in Ca­pite, [Page 17] [...] possessiones suas de Rege sicut Baroniam & inde respondeant Justatiarii [...], [...] Regis & sicut Caeteri Baro [...] debeam interesse Curiae Regis cum Baronibus q [...] ­usqu [...] perveniatur ad diminutionem Membrorum, vel mortem.

2. Glanvil, the most ancient Writer of the Laws of this Realm now extant, [...] hath these words; Notandum autem, quod nec Episcopus, nec Abbas quia eorum Baroniae sunt de Elcemesyna Regis, & Antecessoris ejus, non possunt de Dominicis suts aliquam partem dare ad Remanentiam, sine assensu, & Confirmatione Domini Regis.

3. My third Authority shall be a notable Record in the Reign of Henry the Third; and it is this.

Mandatum est omnibus Episcopis qui Conventuri sunt apud Glocestriam die Sabba thi in Crastino Sanctae Katharinae firmiter inhibendo, quod sicut Baronias suas, Rot Pat. [...] 3.2. part. [...] de Pro [...]e fact. Epi [...]. quas de Rege tenent) diligunt, nullo modo praesumant Consilium tenere de aliquibus quae ad Coro­nam Regis pertinent, vel quae personam Regis, vel Statum suum, vel Statum Concilii sui contingunt. Scituri pro certo quod si fecerint, Rex inde se capiet ad Baronias suas.

4. Mr. Cambden in his Britannia tells us, that the two Arch-Bishops, and all the Bishops of England, be Barons of the Kingdom and Parliament, unto whom by Right and Custom it appertains, as to Peers of the Kingdom, to be with the rest of the Peers personally present at all Parliaments whatsoever; there to con­sult, to handle, to ordain, decree and determine, in regard of the Baronies which they hold of the King. For William the first a thing the Church-men of that time complained of, but those in the Age ensuing accounted it their greatest Honour) ordained Bishopricks and Abbies, which hold Baronies in pure, and perpetual Alms, and until that time, were free from all Secular Service; to be under Military, or Knight-Service; enrolling every Bishoprick and Abbey at Will and Pleasure, and appointing how many Soldiers he would have every one of them to find for him and his Successors, in the time of Hostility and War. From that time, ever since (says he) those Ecclesiastical Persons enjoyed all the Immunities that Barons of the King­dom did, saving only they were not to be judged by their Peers.

5. Sir Edward Coke, in several places of his Works, asserts, Co. 2. Inst. f. 3, 79 585. Co. Lit. 97. a. 94. a. C [...]. 4 Inst f. 361. that the Bishops of England have been founded by the Kings of England, and do hold of the King by Barony, and have been all called by Writ to the Court of Parliament, and are Lords of Parliament.

To what has been said in the proof of the Bishops Right, of sitting in Parlia­ment, this may be added; Judge D [...]d [...]idg in his Treatise of Nobility concerning Ba­rons by Ten [...]re That it appeareth by all ancient Writers of our Laws and Histories, that the Arch-Bishops and Bishops of the Realm, in the an­tient Saxons days; as well during the time that this Realm was divided into di­vers Kingdoms, as also after the uniting of them into one Monarchy, were cal­led to the Parliament, or Assembly of States or Wise Men; not so much in re­spect of their Tenure; for, in those days all their Tenures were (as is said be­fore) by Frankalmoigne: but especially for that Laws and Counsels of Men are then most currant and commendable, and have a more blessed issue and success, when they are grounded upon the fear of God, the Root and Beginning of all true Wisdom. And therefore our wise and Religious Ancestors called to their General Council, or Witten A [...]mote, or Court of Wisdom (as they called it) those chief and principal Persons of the Clergy; which, by their Place and Profession, by their Gravities, Learning and Wisdom, might best advise what was the Law of God's acceptable Will and Pleasure, that they might frame their Humane Laws answerable; or, at least, not contrary and repugnant thereunto.

To Second Judge Dodridge in the Probation of our Bishops sitting in the As­sembly of States, or Wise Men, before the Conquest, I shall offer these Autho­rities following.

At a Parliament holden by King Inas, Anno Domini 727. the Statutes began thus; Ego Inas Dei beneficio Rex, suasu & Instituto Cenredi patris mei, Hedda & Erkenwaldi Episcoporum meorum, omnium Senatorum meorum &c.

The Conclusion of the Parliament holden, Ann. 940. by King Athelstan, at Grately, was thus. All this was enacted in the great Synod; whereat was the Arch-Bishop Wolfehelme, with all the Noble Men, and Wise men, which King Athelstan called together. Co. Lit. 110. a. Co. 2. Inst. 268.

King Edovard, and Phlegmond. Arch-Bishop of Canterbury, assembled a great Council of Bishops, and other faithful People, &c. Matth. Westm. Lib. 1. sub Ann. 905.

Ingulphus, who died before 1109. saith: Rex Eldvedus convocavit Magnates Episcopos, Proceres & Optimates ad tractandum de publicis negotiis Regni: Co. 4. Inst. f. 3.

The Reader may see more of this matter in the Preface of the Ninth Part of Coke's Reports.

13. Their Right of making Proxies, whensoever Question is had of the Attainder of any Peer.

IT appears by our Books of Law, that ever when Question is had of any At­tainder of any Peer in Parliament, they depart the Higher House, and make their Procurators. For, by the Decrees of the Church, they may not be Judges of Life and Death.

In the tenth Year of Edward the Fourth, 10. E. 4.6. b. it is said by Littleton; Quantum Seignior est indict, &c. Ceo serra mand en le Parliament, & la le Seignior, Senes­chall d'Anglete'rre luy mitta as Respons & il dirra de Rieu culpable & ceo serra trie per pares suos, &c. donques les Seignieurs Spirituels, que ne poient consent al mort de home, ferrount un Procurator en le Parliament.

When a Lord is indicted, it shall be returned into Parliament, and there the Steward of England shall put him to answer, and he shall say, 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 Procurators in Parliament.

Stamford, Lib. 3. f. 153. A, B. in his Pleas of the Crown, informeth us; Que Evesque ne ount lieu en Parliament en Respect de lour nobilitie, mes en respect de lour Possession [...] L'an­tient Baronies annexes a lour Dignities. And he further says, that a Peer indicted of Treason or Felony, may, if the King please, be arraigned of it in Parlia­ment: and then the Lords Spiritual shall make a Procurator for them. Eo que per le Canonicall Leges, ils mesmes ne doint condemner asuma Mort.

Mr. Justice Dodridge, on the Constitution of Clarenden of Henry the Second, before-mentioned, tells us thus. Here we see (says he) the Presence of the Bi­shops in the Parliament in respect of their Baronies: Quousque perveniatur ad diminutionem, &c. For ever unto our times, when Question is had of any At­tainder of any Peer in Parliament, they depart the Higher House, and make their Procurators. Vide, His Treatise of the Barons of the Realm.

A Peer of the Realm (says Coke) being indicted of Treason or Felony, Co. 3 Inst f. [...]1. or of Misprision, and duly transmitted to the Lords, may be arraigned thereof in the Upper House of Parliament; but then there must be appointed a Steward of England, who shall put him to answer. And if he plead, Not Guilty, he shall be tryed per Pares suos; and then the Lords Spiritual must withdraw, and make their Proxies.

Again, says Coke, A Peer of the Realm, being indicted of Treason, Co. 4. Inst [...] or Fe­lony, or Misprision of Treason, may be arraigned thereof in Parliament, a Lord Steward being appointed: and then the Lords Spiritual shall make a Pro­curator for them.

By these four Authors, Littleton, Stamford, Dodridge and Coke (on whose Sleeve I should as soon pin my Faith, as upon any four Lawyers, famous in their Profession, since my first Admittance into an Inns of Court;) It is asserted, that the Prelates, upon their withdrawing in Capital Cases, have a Right to make their Procurators. They depart the House, not by vertue of any Rule at the Common Law, but in vertue of an old Ecclesiastical Canon. They make their Proxies, not as they are Spiritual Persons, but in respect of their Tem­poral Baronies. To be short, If I should hear, that the Opinion of these four most eminent Lawyers is over-ruled by our Sages, by vertue of that Spell called Error Temporis, it will cast me undoubtedly, not into an Admiration, but an Extasie.

14. Statutes where made without them.

ALthough the Bishops have a Right of sitting in Parliament, and ought al­ways to be called to that great Council, yet Statutes have been good with­out their Lordships. And that in three several Cases.

1. If they voluntarily absent themselves, then may the King, the Nobles and Commons make an Act of Parliament without them. As, where any Offender is to be attainted of High Treason, or Felony, and the Bishops absent themselves, and the Act proceed, the Act is good and perfect.

2. If they be present, and refuse to give any Voices, and the Act proceed; the Act of Parliament is good without them.

3. Where the Voices in Parliament ought to be absolute, either in the Affir­mative or Negative, and they give their Voices with Limitation or Condition, and the Act proceeds; the Act is good, for their Conditional Voices are no Voices. Examples for these Particulars the Reader may find in Coke's 2. Inst. f. 585, 588.

Note, Albeit Statutes have been made without the Bishops, yet they are ac­counted one of the Estates of Parliament: as it appears by my Lord Coke, in the very beginning of the fourth Part of his Institutes. But it is pretended by some, that they are not: for if they were, then should they discuss Mat­ters separately, by themselves, from the other Lords, as the Commons now do.

I deny the Consequence; for our Books tell us; That, at the first, both Houses sate together. Pray, how many Estates were they then? if it be answered, that there were but two; why? then this shews that two Estates may discuss Matters together, both in one and the same House.

15. Their Privileges, as they are Lords of Parliament.

THe Bishops, in the Right of their Temporal Baronies, do enjoy all the Im­munities that the Nobility, and Peers of Parliament do; saving only, they are not to be judged by their Peers. And the reason of this is, because the Bishops cannot pass, in like Cases, upon the Tryal of any other of the Peers; for that they are prohibited by the Canons of the Church, to be Judges of Life and Death. And reason would, that the other Peers should not try them: for this Tryal should be mutual, for as much as it is performed upon their Ho­nours, without any Oath taken.

Now, the Privileges that the Bishops claim, as Peers of the Realm are such as these following.

1. The Person of a Bishop shall not be arrested, in Debt, or Trespass, by his Body.

2. If a Bishop be Demandant, or Plaintiff; Tenant, or Defendant, there must be a Knight returned of his Jury, or else the Array may be quashed.

3. Arch-Bishops and Bishops are not bound to attend Leets, nor to take the Oath there administred.

4. A Day of Grace is never granted, where a Bishop is Tenant or Defen­dant.

5. If a Bishop be Defendant in Star-Chamber, or Court of Chancery, a Sub­poena shall not be awarded; but a Letter from the Lord Chancellor, or Lord Keeper, in lieu thereof.

6. Every Arch Bishop or Bishop coming to the King at his Commandment, and passing by any of the King's Forests, may hunt and kill one or two of the King's Deer.

7. If a Bishop be Party to a Suit, and would be essoigned; he that casts the Essoigne out, must put in Sureties to prove the Cause. Which is not usual in the Case of a Common Person.

[Page 21]8. If a Plaintiff recover against a Bishop, in an Action of Debt, or Trespass, upon such a Plea pleaded by him, or other Default in him; so that a Fine there­by doth grow to the King, and thereupon a Capias p [...]o Fine issueth out against him; this shall not prejudice the Bishop, so as the Plaintiff may thereby take ad­vantage by Prayer, that the Bishop shall abide in Execution. &c.

9. Whereas by a Statute made in 32. H. 8 c 16. it is enacted, that the Sub­jects of the Realm shall not keep in their Families, or Houses, above the number of four Strangers born; nevertheless, by a Proviso in the said Act, every Lord of Parliament hath his Privilege allowed unto him, to keep in his Family the number of six Strangers born: any thing in that Act to the contrary not­withstanding.

10. By the Statute of West. 1. c. 34. If any Person shall divulge false Tales of any of the Lords of Parliament, by which Dissention may be betwixt the Commons and them, the Offender is to be imprisoned until he bring forth the Author.

In brief; My Lords, the Bishops (as 'tis said before) may challenge a Fruiti­on of all the Privileges, in virtue of their Baronies, that the Lords Temporal can by virtue of theirs; saving only, the Bishops cannot be tryed by their Peers. Which manner of Tryal was (as I am informed) brought into this Realm by William the Conqueror, being answerable to the Norman and French Laws, and agreeable to the Customs Feudal; where almost all the Controver­sies arising between the Sovereign and his Vassal are tryed, per Judicium Parium suorum.

16. Their Precedency.

SIr Edward Coke, treating on the Statute of the thirty first of Henry the Eighth, c. 10. concerning the Precedency of the King's great Officers, hath these same words.

And first, Cok [...] 4. Inst. 36 [...] for the Lords Spiritual (who sit in Parliament on the King's Right Hand) amongst themselves.

1. The Arch-Bishop of Canterbury.

2. The Arch-Bishop of York on the same form.

3. The Bishop of London.

4. The Bishop of Durham.

5. The Bishop of Winchester.

And then all the other Bishops of both Provinces shall sit, and be placed after their Antienties, as before this Act was accustomed.

But having regard to the Lords, and Noble Peers of the Realm, both the Arch-Bi­shops have place above all the great Officers and Nobility in Parliament, Council and Commissions, saving in the Star-Chamber, the Lord Chancellor, or Lord Keeper hath the Precedency of them. But the other Bishops have place above all the Barons of the Realm; because they hold their Bishopricks of the King, per Baroniam; but they give place to Viscounts, Earls, Marquesses and Dukes.

Note, that in the penning of all Acts of Parliament, the Lords Spiritual have the Preseance of the Lords Temporal.

And this shall suffice for the placing of the Lords Spiritual in Parliament, &c. according to Sir Edward Coke. I will offer something out of Mr. Seagar, the famous Herauld, touching Preseance in Provincial Assemblies and elsewhere.

When the Arch-Bishop of Canterbury sitteth in his Provincial Assembly, he hath on his Right Hand the Arch-Bishop of York, and next unto him the Bishop of Winchester; and on the Left Hand the Bishop of London. But if it fall out, that the Arch-Bishop of Caenterbury be not there, by the Vacation of his See; then the Arch-Bishop of York is to take his place: who admitteth the Bishop of London on his Right Hand, and the Bishop of Winchester to his Left; the rest sitting as they are Elders by Consecration. C. Lib. 4. c. 24. Of Honours Mi­litary and Civil.

A Bishop must do Reverence unto his Father at home; but, being in the Church, the Father shall follow him.

Between two Equals, he that is in his own Jurisdiction shall precede. As if an Arch-Bishop do come into a Diocess of a Bishop; notwithstanding he is a Person of more Dignity, yet ought he give Honour unto the Bishop, because his Presence doth not cancel his Authority. C. Lab. 4. c. 24. Of Honour, Mili­tary and Civil.

17. Their Excommunications.

EXcommunication (that is, the greatest Judgment upon Earth, being that which is ratified in Heaven) will be the better understood by these Parti­cularities.

1. Its Definition.

2. Its Division.

3. The Writs that belong to it.

4. By whom it ought to be cerified.

5. The Power of it in a Christian Church.

1. Of a Function, which hath a Jurisdiction.

UNder this Rank may be placed Deans and Arch-Deacons.

2. Of a Spiritual Administration with a Cure.

UNder this Form I place Parsons and Vicars.

3. Of those who have neither Cure, nor Jurisdiction.

UNder this same Order I set Probendaries, and Chaplains.

The Immunities of the Clergy in General.

THe Kings of England, out of a zeal and desire they had, to grace and ho­nour their Learned and Godly Clergy, were pleased to confer on them several Immunities: such as these following.

1. Co. 2. Inst s. 3. & 4. The Clergy were discharged of Purveyance for their own proper Goods.

2. Coke. No Demesne, or proper Court for the necessary use of any Ecclesiastical Person ought to be taken for the King's Carriage, but they are exempted by the antient Law of England, from any such Carriage.

3. Coke. If a Man holdeth Lands or Tenements, by reason whereof, upon Electi­on to serve in a Temporal Office: If this Man be made an Ecclesiastical Per­son, within Holy Orders, he ought not to be elected to any such Office. And if he be, he may have the King's Writ for his Discharge.

4. Co. Lit. f. 70. b. co. 2 Inst. 4. Ecclesiasticals are not bound to serve in Person at the Wars.

5. Coke. All Ecclesiastical Persons ought to be quit, and discharged of Tolls and Customs, Avirage, Pontage, Paviage, and the like, for their Ecclesiastical Goods; and if they be molested therefore, they have a Writ for their Dis­charge.

If any Ecclesiastical Person be in fear or doubt, that his Goods, or Chattels, Coke. or Beasts, or the Goods of his Farmer, &c. should be taken by the Ministers of the King, for the business of the King, he may purchase a Protection, Cum Clausula Nolumus.

7. Distresses shall not be taken by Sheriffs, or other of the King's Ministers, Coke. in the Inheritance of the Church, wherewith it was antiently endowed.

8. If any Ecclesiastical Person acknowledge a Statute-Merchant, Coke. or Statute-Staple, or a Recognizance in the nature of a Statute-Staple; his Body shall not be taken by force of any Process thereupon.

9. If a Person be bound in a Recognizance in Chancery, Coke. or in any other Court, and he pay not the Sum at the day; by the Common Law, if the Person had nothing but Ecclesiastical Goods, the Recognizee could not have a Levari facias to the Sheriff, to levy the same of these Goods: but the Writ ought to be directed to the Bishop of the Diocess, to leavy the same of his Ecclesiastical Goods.

10. In Action brought against a Person (wherein a Capias lieth;) For example, Coke. an Account the Sheriff returns, Quod Clericus est beneficiatus, nullum habens Lai­cum feodum; in which he may be summoned: In this case the Plaintiff cannot have a Capias to the Sheriff, to take the Body of the Person; but he shall have a Writ to the Bishop, to cause the Person to come and appear.

11. Ecclesiastical Persons are not bound to appear at Tourns, Marlb. c. 10. or Views of Frank-pledge.

12. Co. 2. Inst. f. 29. If any Ecclesiastical Person be amerced (though Amerciaments belong to the King) yet he shall not be amerced, in respect of his Ecclesiastical Promotion or Benefice, but in respect of his Lay-Fee.

13. He that is within Holy Orders, hath this Privilege; Co. 2. Inst. 637. that albeit he have had the Privilege of his Clergy for a Felony, he may have his Clergy after­wards again: and so cannot a Lay-man.

14. No Clerk within Holy Orders, though he had a Knight's Fee, was com­pellable to be Knighted, according to the Statute, De Militibus; of the first of Edward the Second.

15. At the Common Law, at the first, Hobart 's Rep. f. 288. the Benefit of the Clergy was not al­lowed but to Clerks in holy Orders, Secular and Religious.

16. If any Lay-men, with force, and strong hand, do enter upon, Co. Inst. 54. or keep the Possession, either of the Church, or of any of the Houses or Glebe, &c. be­longing thereunto; the Incumbent, upon Certificate thereof of the Bishop, or without Certificate, upon his own surmise, may have a Writ to the Sheriff, De vi Laica amovenda: By which the Sheriff is commanded in these words; Praci­pimus quod omnem Vim Laicam seu armatam, quae se tenet in dictae Ecclesiae seu domi­bus eidem annexis, ad pacem nostram in Com. tuo perturband. sine dilatione amoveas, & si quos in hac parte resistentes invenerts, eos per Corpora sua attachias & in prisona nostra salvo Custodias, &c.

17. Ecclesiastical Livings are said to be in Abeyance: Co. Lit. 341. a. and this was provided by the Providence and Wisdom of the Law. And therefore, no Act of a Vi­car-Predecessor should make a discontinuance, to take away the Entry of his [Page 34]Successor, and to drive him to a real Action, whereby he should be destitute of maintenance in the mean time.

18. A general Accusation against a Parson, or Vicar, not good: and there­fore, in a Quare Impedit against the Bishop, it is not a good Plea to alledge that the Presentee is a Schismatick in general; but he ought to express Schism in particular. But it is otherwise for the putting a Coroner out of his Office; for there is a general Suggestion in the Writ, that he is, Persona minus Idonea, is e­nough, and not Traversable.

19. Co. Li [...]. 8.14. a. Lab. 11. f. 70. a. And last, Statutes which restrain Alienation of Ecclesiastical Livings, bind the King, though not named.

I shall conclude the whole Discourse with my hearty Prayer to God Almigh­ty; that he would be pleased, always to defend the Church of England against the fierce Attempts of Halting Loyola, and Crook-back'd Hudibras.

The one would destroy her Priests: The other would devour her Patrimony.

The one would introduce the Pomp of Superstitious Tyranny: The other would bring in the Meanness of Fantastick Anarchy.