Difputes about the original rights of the

commoners in legiflating.

Leveller's horror of arifto

cracy.

precedent gave rife to many elaborate, and fome erudite, but all violent differtations upon the original feparate rights of the lords and commons.

These disputes became at last resolved into this fimple question, whether the commons. of England, reprefented by knights, citizens, and burgeffes freely chofen, had formerly (viz. before the 49th Hen. III. A. D. 1274) any vote or share in making the laws of the kingdom, or whether they were not made by the king, with the advice and confent of the magnates, proceres, optimates, nobiles, prelates, abbots, comites, earls, barons, wites, fapientes, &c. fummoned by the king? no description of whom answers to the modern idea of a member of the house of commons. Either alternative of this warmly contefted difpute, may, I conceive, be fafely adopted without the flightest abatement of that respect and fubmiffion, which every loyal fubject owes to the present form of the British conftitution.

The predominant feature of the republican, or independent, or levelling party has ever been a fovereign horror of any fuperiority of power in others; this therefore operated generally against the ariftocratic part of the conftitution; for the commonalty were in many

refpects

The

refpects certainly inferior to the peers of the
realm. The crown and the mitre however
were the hateful marks, at which they have
unwearily directed their rancorous fhafts of
difcontent. It has therefore been strenuously
and artfully argued, fuppofed, and affirmed,
that the spiritual lords make no constitutional
neceffary part of the house of peers.
fecond estate is constituted of both the spiritual
and temporal lords jointly; for" (fay they)
"though the archbishops and bishops are deno-
minated spiritual, yet they fit in parliament
as temporal barons only, (i. e.) by reason
of the temporal baronies annexed to their
bishopricks, and not as they are spiritual per-
Jons. And they further urge, in confirmation
of their opinion, first, That no bishop, not-
withstanding his election, confecration, con-
firmation, &c. can be a lord of, or fit in
parliament, till the king has granted to him

I.

* Lex Parliamentaria, p. 3. which refers to Cotton's Records, 709. 710. 4 Inft. 1. Hales of Parliaments, i. Finch's Nemotecnia, lib. ii. c. Sadler's Rights of the Kingdom, p. 79 to 93. Kelway's Reports, 184: Stanif. Pl. Cor. 153. See Bagfhaw's Readings, p. 17 to 21. N. B. Though this statute was repealed by queen Mary, yet that repeal was repealed by queen Elizabeth, &c. as the parliament at Bury, 24 Edw. I. 1 Eliz. all the acts about religion passed dissentientibus epifcopis. See Journal Dom. Procer. 11 H. VII. 27 Bro. Par. 107. Kelway, 184.

the,

The fecond eftate confifts of

the lords fpi

ritual and tem

poral.

the temporalities of the bifhoprick.

Secondly, That by virtue of the statute 1 Edw. VI. c. 2. ftill in force, the king may conftitute bishops by his letters patent only, without any election or confecration*; and thirdly, That

* Whoever believes that our bleffed Lord has established a church upon earth, must never lofe fight of the difference between the real fpiritual right, power, and jurifdiction of the paftors of that church, and the right, power, and jurifdiction, which they may derive from the civil establishment of religion. The real spiritual elevation to the epifcopal order or dignity can only be effected by the confecration, which no fovereign of this realm ever pretended or attempted to perform; and the validity of this confecration must depend upon the capacities or fpiritual qualifications of the parties confecrating and confecrated; if the latter be not in holy orders, and the former rightly ordained and confecrated, no one can be fo raised to the spiritual dignity of a bishop in the church of Christ, as to command the fpiritual obedience or fubmiffion of any member of his church. Neither the recommendation by conge d'elire, letter miffive, nor nomination and prefentation by letters patent under the great feal, nor confirmation, inveftiture, nor admiffion to the temporalities by the king, can change the quality of a man from lay to clerical, nor elevate him from fimple priesthood to the dignity of a bishop. The cafe is fimilar in the presentations, inftitutions, and inductions of the inferior clergy. The prefentation of the clerk to the bishop by the patron is a mere civil right given by the laws, which conftitute the civil establishment of religion, and may be exercised by a prefbyterian, quaker, or Jew, as well as by a member of the established church. By the inflitution, the bishop, in exercife of his real fpiritual power, or paftoral jurisdiction over a part of the church of

That parliaments have been, and may be holden, exclufo clero, exclufive of the bishops and clergy, and that fome of our most beneficial ftatutes have been enacted, whereto the whole body of the clergy diffented; all which, they fay, prove the bishops to be no essential part, or any of the three eftates of parliament. And in Trinity term, 7 H. VIII. it is agreed by all the judges of England, that the king may well hold his parliament by himself, and his lords temporal and commons, without any bishops or fpiritual lords at all.

Christ commits the care of the fouls of the parish to the charge of the clerk, who from that time becomes the fpiritual fubject of his bifhop. Inftitution therefore is properly the inveftiture of the Spiritual part of the benefice. The induction is directed by the civil establishment of religion, and is nothing more than an open and notorious delivery over to the clerk, of the corporal poffeffion of the church, to notify to the parishoners their new minifter, to whom tythes are to be paid; and this is pro- . perly the investiture of the temporal part of the benefice. Mr. Collier, fpeaking of Bishop Bonner's commiffion to execute all the branches of epifcopal authority under his highnefs Lord Cromwell, vicegerent and vicar general, &c. fays, (pt. ii. b. iii. p. 169.) " But if the church is a diftinct and entire fociety, if in pure fpirituals fhe is conftituted independent on all the kings on the earth; if fhe is furnished with powers fufficient to answer the ends of her charter; if these powers were fettled by our Saviour upon the apostles and their fucceffors to the world's end; if the hierarchy can make out this title, then must I crave leave to think thofe, who fuggefted the draught of this inftrument were no great divines," &c.

However

However it now appears unquestionable, that fince the conftitution excludes the bishops from judging and voting in no cafe whatever, it takes no more notice of their voluntary perfonal abfence or diffent, than of the difcretionary feceffion or proteft of any temporal peer; for the vote of the majority binds the diffenters and protefters as fully, as if they had affented to the queftion of debate. The right of entering a proteft is a fpecial privilege of the house of lords, as is that of voting by proxy *; but it weakens not the voice of the majority in any shape or degree whatever.

So late even as the 35 Edward III. A. D. 1360, feveral peereffes were fummoned to parliament, as Mary countess of Arundell, and nine others at the fame time; they were called ad colloquium & tractatum, by their proxies, a privilege peculiar to the peerage, to appear and act by proxy. King Edgar's charter to the Abbey of Crowland, A. D. 961, was with the confent of the nobles and abbeffes, who fubfcribed it; for many abbeffes were formerly fummoned to parliament, (Gurdon, vol. i. p. 202.) In thofe ancient times the lords were not obliged to make barons only their proxies in the houfe of lords, as the custom now is, but the bishops and parliamentary abbots ufually gave their letters of proxy to prebendaries, parfons, canonists, and such like, as appear in the Journals of the houfe of lords; but fince the first year of Henry VIII, there appear in the Journals no proxies, but fuch as were barons of parlia

ment.