it Since it is agreed on both sides that the Bishops do sit in the House as Temporal Barons and in that respect do make up the Majority of Votes in the House of Lords it could not but seem unreasonable that they who voted as Barons in the House should have a Negative voice in another capacity and by this means they lost their distinct Negative voice because by the King's Writs they were to sit and vote with the Temporal Lords Just as it is in the Diets of Germany Since the distribution of that Assembly of the Estates of the Empire into the several Chambers the Prelates vote according to their Ranks the Three Electors in the Electoral College the other Bishops that are Princes of the Empire in the Chamber of Princes and those who are not Princes with the Counts and Barons So that here the Votes of the Bishops are mingled with the rest without a distinct Negative voice and yet no one questions but the Bishops do represent a distinct Estate of the Empire 3. This is a disparagement to the House of Lords that another Estate must be joyned with them to make up their Negative No more then to the Princes of the Empire to have the Bishops joyned with them when the Imperial Cities vote by themselves But what disparagement is this for those to make up the Majority of the Votes of the Baronage who sit there as Barons by Tenure by a Right as ancient as Will. the Conquerour by the Authour 's own confession 4. If the Bishops make a Third Estate then a Parlament could not be held without them But a Parlament hath sate excluso Clero as that of Ed. I and that it may do so in point of Law appears by the Resolution of the Iudges in Keilway's Reports because the Bishops sit in Parlament by reason of their Baronies This is the great Objection to which I shall give a full Answer 1. It is dangerous arguing from extraordinary Cases to the excluding any one of the Estates of the Kingdom from being represented in Parlament because no one can tell where this way of arguing will stop If a Parlament may be good without one Estate why not without another And we have seen an House of Lords excluded as unnecessary upon such kind of arguments because they sit in their own Persons and represent none but themselves If we once depart from the ancient and legal Constitution of Parlaments there will be no end of Alterations Every new Modeller of Government hath something to offer that looks like Reason at least to those whose interest it is to carry it on And if no Precedents can be found then they appeal to a certain invisible thing called the Fundamental Contract of the Nation which being a thing no where to be found may signify what any one pleaseth Suppose one extraordinary case happens through the disorder of Times that the Clergy have been left out in a Parlament what doth this signify towards altering the legal Constitution and constant Course of Parlaments which from the beginning of Parlaments in this Nation have had the Estate of the Clergy represented in them as sufficiently appears by Mr. Petyt's learned Preface to his late Discourse of the ancient Right of the Commons The first after King Ethelbert's Conversion was Commune Concilium tam Cleri quà m Populi That under Ina was omnium Episcoporum Principum Procerum Comitum omnium Sapientum Seniorum Populorum totius Regni That under Edmund the Elder was Concilium magnum Episcoporum Abbatum Fidelium Procerum Populorum I might adde many more as that at Becanceld under King Withred A. D. 694. Episcopis c. Ducibus Satrapis in unum glomeratis At Clovesho under Kenulphus of Mercia at Calecyth at London at Kingston Nay not one can be found by me in the Saxon times wherein the Bishops are not expresly mention'd So that if there be such a thing to be found as the Fundamental Contract of the Nation about the Constitution of Parlaments I do not question but they have their share in it Insomuch that Sir H. Spelman makes it his description of the Wittena-Gemot that in it as Mr. Petyt observes Convenêre Regni Principes tam Episcopi quà m Magistratus liberique homines i.e. it was an Assembly of the Three Estates So that before there were any such things as Baronies they were an essential part of the English Parlament And must all this clear and undoubted evidence from the first mention of Parlaments be rejected because once upon a time a certain King called a certain Parlament wherein upon some Distast between the King and the Clergy the other Estates continued sitting without them 2. This single Instance about the Parlament under Ed. I. is much misunderstood as will appear by these considerations 1. That the Clergy excluded themselves and were not shut out by the Act of the King and the other Estates For upon the Bull of Pope Boniface VIII forbidding the Clergy giving any more Subsidies which was procured by Archbishop Winchelsee as our Historians relate a Parlament being called by Ed. I. at Saint Edmondsbury on purpose for Subsidies the Clergy refuse upon the Pope's prohibition till they had consulted the Court of Rome and go away every one to their own homes notwithstanding which the King proceeds with the other two Estates and gets Subsidies from the Laiety So that the exclusion of the Clergy came from their own voluntary Act when the King desired no such thing nor the other two Estates but were all extremely provoked at this withdrawing of the Clergy That this Parlament was called purposely for the Subsidy appears by the Writ still upon Record wherein the Archbishop is summon'd to appear ad ordinandum de quantitate modo subsidii memorati 2. Whereas it is insinuated that great matters were done and good Laws passed when the Clergy were excluded I find no such thing It is true the confirmation of Magna Charta by Ed. I. which was a great thing indeed is said in the Statute-Books to be done the same year viz. 25 Ed. I. But that it could not be done in that Parlament I thus prove That Parlament was called crast Animarum the King appoints another at London crast Hilarii where the difference still continuing he appoints a new Parlament on the day of S. Peter ad Vincula or Lammas-day wherein he was reconciled to the Archbishop and Clergy Then Fealty is sworn to his Son before his going into Flanders and the King excused himself as to the great Taxes and Subsidies on the account of his Wars While he was about Winchelsea a Remonstrance is sent to him of the Grievances of the Nation in the name of the Archbishops Bishops Earls Barons and the whole Commons of England wherein they complain of illegal Taxes and the breach of Magna Charta The King gives a dilatory answer and passes over into Flanders
And the Bishops ' did not deny this but used prudential arguments to disswade the King from proceeding any farther the Appeal being made and that it was for the good of King and Kingdom for them to submit to the Prohibition And the Bishop of Chichester told Becket he made them go against the Constitutions of Clarendon which they had so lately sworn to observe in these remarkable words Quo contra nos venire compellitis interdicendo nè ei quod de nobis exigit adesse possumus Iudicio By which we see this Constitution is indeed an irrefragable Testimony but it is to prove that Bishops are bound to be present even in Cases of Treason when the King summons them And as to the case of Becket's Treason the same Bishop told him it lay in breaking his Oath about those Constitutions wherein the Rights of the Crown were declared And if this be not Treason by the Common Law Sir Edward Cook 's Preface to his fifth Book of Reports signifies nothing The late Authour of the Peerage and Iurisdiction of the Lords Spirituall takes it for granted that by the Constitution of Clarendon the Iurisdiction of Bishops was limited that it should not extend ad diminutionem membrorum vel ad mortem But the foregoing discourse hath I suppose made it evident that those words contain no Limitation but a Privilege or Indulgence to them with respect to the Canon-Law And he takes very needless pains to prove this to be declarative of the Common Law and that the Meeting at Clarendon was a full Parlament which are very much besides the business All that looks towards this matter is that he saith this Statute was confirmed by a Council at Westminster for which he cites Rog. Hoveden's Authority But I wish he had produced the Canon entire as he there found it for then the sense of it would have been better understood In this Synod at Westminster Richard Archbishop of Canterbury produceth several ancient Canons which he thought fit to be observed here Among the rest he mentions that of the Council of Toledo The words are these His qui in Sacris Ordinibus constituti sunt judicium sanguinis agitare non licet here he makes his c. and leaves out the Prohibition which declares the meaning and extent of this Canon Vnde prohibemus nè aut per se membrorum truncationes faciant aut inferendas judicent Wherefore we forbid them either to dismember any persons themselves or to give Iudgment for the doing of it Both which were practised in Spain in the time of the Council of Toledo which was the occasion of this Canon And then follows the Sanction of Deprivation if men did otherwise And what now doth this signifie more to the Constitution of Clarendon then that the same Canons were now revived which gave the occasion to that permission of withdrawing when the Sentence came to be pronounced as to dismembring or loss of Life But he urges farther about this Constitution that it must be so understood as to exclude the Bishops from all antecedent and praeliminary things which do relate or tend ad diminutionem c. or else saith he it must be onely the exemption of the Prelats from doing the Office of Executioners which is Non-sense Why so though it be not the whole sense of the Canon yet surely it is sense But he might have thought of giving Sentence which the Canons forbid and is different from Execution and doth not exclude the Bishops presence at Praeliminaries The Constitution of Westminster he saith is plainer Non debent agitare judicium sanguinis which he saith excludes the exercise of any Judicial Power in Cases of Bloud Whereas it appears by the Prohibition there extant nothing is forbidden but giving Sentence at which the Constitution of Clarendon allows them to withdraw 2. The second time we are told that the Exclusion of the Bishops in Cases Capital rereived a Confirmation in Parlament was the 11. of R. II. When the Archbishop and the other Bishops upon their withdrawing then from the Parlament in regard matters of Bloud were there to be agitated and determined in quibus non licet alicui eorum personaliter interesse as they say in which it was not lawfull for any of them to be present in person did therefore enter a Protestation with a Salvo to their Right of Sitting and Voting in that and all other Parlaments when such matters were not in Question which Protestation of theirs was at their desire enrolled in full Parlament by the King's Command with the Assent of the Lords Temporal and Commons So that it is here said to be a perfect and compleat Act of Parlament and if it had not been a Law before would then have been made one This is the substance of what is more largely insisted on in another place and what strength is there added shall be duely considered To understand this business aright it will be necessary to set down the Protestation it self at large as it is taken out of Courtney's Register and the Parlament-Rolls and then examine the Points that do arise from thence The Protestation runs thus In Dei nomine Amen Cùm de jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit necnon caeteros suos Suffraganeos Confratres Coëpiscopos Abbatésque Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertineat in Parlamentis Regis quibuscunque ut Pares Regni praedicti personaliter interesse ibidémque de Regni Negotiis aliis ibidem tractari consuetis cum caeteris dicti Regni Paribus aliis ibidem jus interessendi habentibus consulere tractare ordinare statuere diffinire ac caetera facere quae Parlamenti tempore ibidem imminent facienda in quibus omnibus singulis Nos Willielmus Cantuar. Archiepiscopus totius Angliae Primas Apostolicae sedis Legatus pro nobis nostrisque Suffraganeis Coëpiscopis Confratribus bus nec non Abbatibus Prioribus ac Praelatis omnibus supradictis protestamur eorum quilibet protestatur qui per se vel per Procuratorem hîc fuerit modò praesens publicè expressè quòd intendimus intendit volumus ac vult quilibet eorum in hoc praesenti Parlamento aliis ut Pares Regni praedicti more solito interesse consulere tractare ordinare statuere diffinire accaetera exercere cum caeteris jus interessendi habentibus in eisdem statu ordine nostris eorum cujuslibet in omnibus semper salvis Verùm quia in praesenti Parlamento agitur de nonnullis materiis in quibus non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet personaliter interesse ea propter pro nobis eorum quolibet protestamur eorum quilibet hîc praesens etiam protestatur quòd non intendimus nec volumus sicuti de jure non
them in Capital Causes seems to be of equal force against this Precedent viz. That this Parlament of the 21 R. II. and all that was done in it was repeal'd in the 1 H. IV. And if that be so and those Acts of State which then passed had not again been repealed 1 Ed. IV. then the Repealing of that of 1. Ed. III. signifies nothing and consequently the Affirmance of the first Iudgment against the two Spencers is good notwithstanding that Repeal And therefore that we may examine this matter to the bottom I shall set down the very words of the Authour of the Letter concerning it Speaking of the Declaration made by the Lawyers in the 10 Ed. IV. concerning the Bishops making a Procurator in Capital Causes he hath these words It is true here is mention made of their making a Proctor which was Error temporis the Errour of those times grounded upon what was so lately done as they looked upon it though irregularly done in the last Parlament of R. II. whom they consider'd as their lawfull King and in truth he was so the three Henry's that came between being but Vsurpers And again speaking of the same business of a Proctor in the 21 R. II. he hath this remarkable passage I have already shewed that this whole Parlament was repeal'd for the extravagant things that were done in it of which this was one And therefore nothing that was then done can signifie any thing to a leading case any ways to be followed and this as little as any except it could be made appear which I am confident it cannot that some Iudgment had been reversed upon that account because the Prelats were not present and had not given their assent to it Now if I can make out these two things 1. That the Parlament of R. II. was not legally repeal'd 2. That the Iudgment against the two Spencers was revers'd and that the Repeal of that Reversal in 1 Ed. III. was revok'd in 21 R. II. upon this very account because the Prelats were not present and had not given their assent to it I hope the Authour of the Letter will be satisfy'd that both this Precedent and the Case of a Proctor are very significant in this Cause and that there is a great difference between being confident and certain of any thing 1. That the Parlament of 21 R. II. was not legally repeal'd And for this I take the Authour 's own acknowledgment that R. II. was in truth lawfull King and that H. IV. was but an Vsurper Nay I add farther that R. II. was alive and in prison when H. IV. repeal'd the Parlament of 21 R. II. For so it is said in the very Act of Repeal that R. II. late King of England was pursued taken put in ward and yet remaineth in ward And now I leave it to the Authour of the Letter whether a Parlament call'd by a lawfull King and the Acts of it ought to be deem'd legally repeal'd by a Parlament that was call'd by an Usurper and held whilst the lawfull King was alive and detain'd in prison 2. That the Iudgment against the two Spencers was revers'd and the Repeal of the Reversal of it in 1 Ed. III. revok'd in 21 R. II. and that upon this very account because the Prelats were not present and had not given their assent to it which the Authour of the Letter is confident cannot be made appear That this Iudgment was reversed for this Reason I have already shewn viz. in the Parlament at York 15 Ed. II. And I shall now shew that the Repeal of that Reversal in 1 Edw. III. was revok'd in 21 R. II. and that upon the account mentioned For in this Parlament Tho. le Despenser Earl of Gloucester exhibited two Bills in which he prayeth that the Revocation of the Exile of the two Spencers in 15 Ed. II. might be brought before the King and confirmed and that the Repeal of the same made in the 1 Ed. III. might be revoked Of which Act of Repeal these Errours are assigned among others because the Prelats who are Peers of the Realm did not assent to the Iudgment and because it was made onely by the Earls and Barons Peers of the Realm c. and because it was made against the form of the Great Charter of England in which it is contain'd that no man shall be exil'd or otherwise destroyed but by the lawfull Iudgment of his Peers or by the Law of the Land So that it seems it was look'd upon as a breach of the Great Charter for the Temporal Lords to condemn a Peer without the Assent of the Bishops and that such a Iudgment was not esteem'd a lawfull Iudgment by his Peers And those Errours of the first Iudgment assign'd in the Revocation of it in 15 Ed. II. are allowed in this Parlament of 21 R. II. and that Revocation confirm'd and the Repeal of it in 1 Ed. III. revok'd upon the same account I shall onely observe that in this Parlament as before in 15 Ed. II. the Bishops are declared to be Peers Peers of the Realm Rot. 55. Peers in Parlament Rot. 56. 61 but most fully and distinctly in the Roll last cited Peers of the Realm in Parlament Of which farther use may be made in the last Chapter concerning the Peerage of the Bishops And now to sum up the force of this Precedent for the Iurisdiction of the Bishops in Cases of Treason Here is a Reversal of a Iudgment because made without the Assent of the Prelats by the Parlament at York in 15 Ed. II. And whereas it is said this Reversal was repeal'd and the first Iudgment affirm'd in 1 Ed. III. I have shew'd that this was no legal Repeal because Ed. II. was alive and lawfull King or else Ed. III. could never have been so in the time of that first Parlament of Ed. III. and consequently Ed. III. at that time was an Usurper and the Proceedings of that Parlament null and void So that the Reversal in 15 Ed. II. stands good notwithstanding the Repeal in 1 Ed. III. Besides that this Repeal whatever it was is solemnly revok'd in 21 R. II. And H. IV. who revers'd all the Proceedings of the Parlament of 21 R. II. during the life of R. II. is acknowledg'd by the Authour of the Letter to have been an Vsurper and R. II. to have been a lawfull King And now I think that this Precedent hath all the advantage that can be and that the Iurisdiction of the Bishops in Cases of Treason could not have been asserted in a higher manner then to have a Iudgment in Case of Treason solemnly revers'd in two Parlaments for this very cause because the Bishops who are Peers assented not to it And this Precedent own'd by the House of Commons in their Petition to have a Common Proctor appointed by the Clergy in this very Parlament of 21 R. II. as is acknowledg'd by the Authour of the Letter
the Prelats Counts and Barons that the Peers of the Realm may not be judged but in Parlament per lour Piers and by their Peers and after it follows that they may not lose their Temporalties Lands Goods and Chattels c. Who were capable of losing their Temporalties but the Prelats Therefore this Law must respect them as well as others As farther appears not onely by the Occasion but by the Consequent of it For it follows n. 8. that the Archbishop of Canterbury was admitted into the King's Presence and to answer for himself in Parlamentdevant les Piers before his Peers which the King granted So that the Rolls of Parlament put this matter beyond contradiction In 21 R. II. Thomas Arundel Archbishop of Canterbury was impeached of High Treason before the King and Lords in Parlament The King ' s answer was That forasmuch as this Impeachment did concern so high a Person Pier de son Roialm it is in the Record but left out in the Abridgment and a Peer of the Realm the King would be advised But soon after he was condemned for Treason by the House theProxie of the Bishops Sir Tho. Percy giving his Vote The force of this doth not lie barely in his being impeached before the House of Peers in time of Parlament but that the King called him in his Answer a Peer of the Realm And because two Laws were already passed the one that Peers were to try none but Peers 4 Ed. III. n. 6. the other that Peers were to be tried onely by their Peers 15 Ed. III. n. 7. the former of these the Authour of the Iurisdiction of the House of Peers asserted one well known to the Authour of the Letter would have onely looked on as a Temporary Order of the House But our greatest Lawyers are of another opinion And an eminent Lawyer still living urged this as an Act of Parlament because it is said that the King in full Parlament assented to it and he added that the words are both Affirmative and Negative they shall not be bound or charged to try any other then Peers but be thereof discharged and that therein they declare it to be against Law for them to exercise Iurisdiction on those who were not their Peers From whence it follows that since Stratford and Arundel Archbishops of Canterbury were allowed to be tried by the House of Peers without Impeachment from the Commons they were looked on as Peers by the whole House The latter Act the same Authour cannot deny to be a binding Law but he hath a strange fetch to avoid the force of it viz. that this Law was made with respect to the Case of Roger Mortimer 4 Ed. III. and not to the Case of Stratford then in Agitation which is without all colour of Reason For the Case then was of a different nature viz. about the Peers trying those who were not Peers as Sir Simon Bereford c but here the case was whether Peers should be tried by any others then their Peers and the King granted they should not Now upon this Stratford was allowed to be tried by his Peers in Parlament and therefore this Trial upon these Acts is an invincible Argument of the Peerage of the Bishops In 28 H. VI. when William de la Pole Duke of Suffolk waved being tried by his Peers and submitted to the King's Mercy the Record saith as the Authour of the Letter himself confesseth that Viscount Beaumont on the behalf of the LordsSpiritualand Temporal and by their advice assent and desire moved the King that a Protestation might be enter'd in the Parlament-Roll that this should not be nor turn in prejudice nor derogation of them their Heirs ne of their Successours in time coming but that they may have and enjoy their Liberties and Freedoms as largely as ever their Ancestours and Predecessours had or enjoy'd them before this time Which Sir R. Cotton more briefly expresseth n. 52. that neither they nor their Heirs should by this example be barred of their Peerage The Authour of the Letter more fully puts in Successours as well as Heirs for this Protestation was made in behalf of the Lords Spiritual as well as Temporal But very unfairly leaves out the most material words in the Record viz. after Freedoms in case of their Peerage And I appeal to the Authour himself whether these words be not in the Record and with what ingenuity they are left out I cannot understand I do not charge the Authour of the Letter himself with this but whosoever searched the Records for him hath dealt very unfaithfully with him And I suppose if he had seen this passage himself he would never have so peremptorily denied the Peerage of the Bishops nor asserted with so much assurance that they are onely to be tried by Commoners and that it was always so and never otherwise 2. Suppose the Bishops have been tried by Commoners out of Parlament this doth not take away their Right of Peerage in Parlament For all our dispute is concerning the Right of their Peerage in Parlament and if that be allowed we are not to dispute concerning the difference that in some respects may arise by Custom or practice of Common Law between Peers by Descent and Peers by Tenure in Right of their Baronies And therefore the Authour of the Peerage of the Lords Spiritual might have spared all the needless pains he takes about this for we do not contend that they have an Inheritable Peerage but that they are Peers in Parlament having a Right to sit and judge there by virtue of their Baronies But from hence he undertakes to prove that by Magna Charta they cannot be Iudges of such who are ennobled in Bloud This comes home to our present business and therefore must be considered 1. He saith that he who hath onely a Praedial or Feudal and not Personal Peerage can have no Iurisdiction but such as is suitable to the nature of his Peerage and therefore can onely extend to matters of property and possession and not to matters of Bloud But that this is a very trifling and ill-consider'd argument appears by this that he grants a Lord Keeper Lord Privy Seal Lord Treasurer to be Peers by their Offices for as he speaks after Regradation their Peerage is ended and he will not deny that these may sit as Iudges in Capital Cases although they be Peers onely by their Offices Those that are Peers in Parlament have Right to judge in all Cases that belong to the Iudicature of Parlament 2. He saith that the Reason of Magna Charta is that the Iudges and Prisoner may be under the same Circumstances But this kind of arguing as well excludes a Lord Keeper who is no Baron as a Bishop and supposes that mens capacity for Judgment depends upon perfect equality of Circumstances whereas Knowledge and Integrity go farther towards constituting one that is a Peer but in one respect a just
11 R. II. when matters grew so high between R. II. and the powerfull Lords and so many Favourites were to be impeached and among them Alexander Archbishop of York then it was a time to quote the Canons and to enter a Protestation and to withdraw If the Times were calmer and more settled or some great Reason moved them then they could stick to their Right of Peerage and make use of it either in Person or by Proxy as they thought convenient Nor was it so easy a matter to resolve what was Canon-Law in England but they might with some colour make use of either of these Pleas. For in this very Parlament 11 R. II. the Commons desire that those may be reputed Traitours who brought in the Pope's Bulls of Volumus Imponimus which shews that they did not think all Canon-Law that passed for such at Rome And 15 R. II. Sir Will. Brian was sent to the Tower for bringing a Bull from Rome which was judged prejudicial to the King and derogatory to his Laws And in 16 R. II. Will. Courtney Archbishop of Canterbury the same who enter'd the Protestation before mentioned makes another of a different kind owning the Rights of the Crown in opposition to the Pope's Encroachments Now by the same Reason no Canon made at Rome no Legatine or Synodal Constitutions could have any force against the King's Authority But the King himself being under a force at that time as he alwaies declared afterwards and that being as Knighton saith it was called Parlamentum sine Misericordia the King having tied himself up not to pardon any without consent of the Lords he might be willing to let the Bishops excuse themselves because that might give some colour to call in question the Proceedings then as it did 21 R. II. when all the Acts of this Parlament were nulled and the Lords and Commons might be very willing to let the Bishops withdraw that their business might proceed with less difficulty against all the King's Ministers So that here was a concurrence of many circumstances which made the Bishops think fit not to appear in the House this Parlament and the King Lords and Commons to be willing to receive their Protestation But in the Anti-Parlament to this that I mean 21 R. II. the Commons pray the King that since divers Iudgments were undone heretofore for that the Clergy were not present they might appoint some Common Proctor with sufficient Authority to that purpose This is a Passage which deserves consideration and tends very much to clear the whole matter For the House of Commons declare that divers Iudgments had been undone for want of the Presence of the Clergy Therefore their Concurrence in the judgment of the House of Commons was thought necessary to make a Iudgment valid A very late Authour finds himself so perplexed with this that he knows not how to get off from it He cannot deny this to be in the Rolls of Parlament and to be the first Petition of the Commons but then he blames them for rashness and errour and want of due Examination of Precedents As though it were possible for any man now to understand the Law and Practice better then the whole House of Commons then did He saith they were mistaken palpably de facto in saying that divers Iudgments have been heretofore undone and yet presently confesseth that the two Iudgments against the two Spencers were reversed for this Cause but he saith there are no more to be found Where doth he mean in his Study or not now extant in the Parlament-Rolls But have we all the Rolls of Parlament that were then in being or must men so boldly charge the House of Commons with Ignorance Errour breaking the Laws because they speak against their fancies But this Gentleman very peremptorily concludes the House of Commons then guilty of a very strange and unaccountable Oversight It is great pity a certain Gentleman had not been there to have searched Records for them and to have informed them better But we think a Iudgment of the whole House of Commons in such a Case declared in so solemn a manner without the least contradiction from the King or the Lords might deserve a little more respect and it had certainly had it if it had made for the other side But we see the House of Commons it self is reverenced or not as the Judgment of it serves mens purposes And yet this was more then the bare Iudgment of the House of Commons for a Petition was made upon it and that Petition granted and consequently a Common Proctor appointed and that Proctor allowed by King Lords and Commons So that this was a Judgment ratified by consent of the King and the whole Parlament For if a Petition were made on a false ground what had been more proper then for the Lords to have open'd this to the Commons and to have told them how unadvised and false their Iudgment was whereas the Lords consented and the Proctor was admitted and gave his Vote in the name of the Clergy But there is something more to confirm this Iudgment of the Commons and that is the Parlament 11 R. II. making Petition to the King that all Iudgments then given might be approved affirmed and stablished as a thing duely made for the Weal and Profit of the King our Sovereign Lord notwithstanding that the Lords Spiritual and their Procurators were absent at the time of the said Iudgments given What means this Petition if there had been no doubt at that time that these Judgments might be reversed as not duely made by reason of the absence of the Prelats The onely answer in my mind is that it was Error Temporis they were of that mind then but some are resolved to be of another now But from hence we plainly see that even in R. II ' s time the Concurrence of the Bishops was thought so necessary that one Parlament declared Iudgments had been reversed for want of it and that very Parlament wherein they absented themselves got a Clause inserted on purpose to prevent the nulling of those Iudgments which signified nothing to the Parlament 21 R. II. which reversed them all There is something more considerable to our purpose in this Parlament viz. that the same Authour produceth the Testimony of a MS. Chronicle which largely handles the Affairs of that Parlament wherein it is confessed that the Bishops by concurring with the Lords in the Revocation of the Earl of Arundel's Pardon did give Vote in a Case Capital for so the words are there cited Dederunt ergo locum Praelati judicio Sanguinis in hoc facto Which shews that the Bishops did then give their Votes about the validity of the Pardon which the Authour of that Chronicle indeed condemns them for and tells us some thought they incurred Irregularity by it From whence it follows that all the Penalty supposed to be incurred was onely Canonical but he never charges
contrary For it expresly saith that the Orders for keeping of the Peace agreed on by the Committee of Lords were read before the King the Bishops the Knights of Counties and the Commons and did please them all per nostre Seigneur le Roi Prelatz Countes Baronns autres Grantz auxint per les Chivalers de Countez gentz de Commun furent pleynment assentuz accordez And the same is immediately said of the Censures brought in by the Bishops Which made me extremely wonder at his saying that the Bishops returned no more whereas it is very plain they did not onely return but the Orders were read before them and they did give their assent to the Passing of them In the Parlament 11 R. II. that it was onely a voluntary withdrawing I prove from the concessions of the Authour of the Letter viz. that they might be present in all Acts of Attainder For it is evident from the printed Statutes that they proceeded by way of Attainder against the Ministers of State and therefore they might have been present if they pleased upon the Authour 's own grounds How is it then possible for him to understand de Iure non possumus in their Protestation 11 R. II. of the Law of the Land when he grants that in all Acts of Attainder they may de jure be present and give their Votes 2. When they did solemnly withdraw they took care to preserve their Right two ways 1. by Protestation 2. by Proxie 1. By Protestation saving their Right which was receiv'd by the House and enter'd of which before The late Authour of the Peerage and Iurisdiction of the Lords Spiritual will not allow the Protestation to be an argument of any Right neither saith he doth the permission or allowance of any Protestation yield the Right which the Protester is desirous to save but onely saves the Right which he had before if he had any Whereas the Authour of the Letter makes it as good as a Law being entred in the Iournal-Book that such a thing was agreed by the King and the two Houses I will not deny that the former Authour speaks more reasonably in this matter when he saith that the utmost a Protestation can doe is to anticipate a Conclusion or Estoppell i.e. to provide that the doing of any such Act as is contained in the Protestation shall not be construed to the prejudice of the Party so as to bar or conclude him from claiming afterwards that which in truth is his Right It is true this Protestation passed with greater solemnity then usually for it was with the consent of the King and both Houses but however it retained the nature of a Protestation And there was no distinction at that time between a Iournal-Book and the Rolls of Parlament For a good Authour assures us the Iournals of the Vpper House began 1 H. VIII and therefore the Authour of the Peerage c. deserved no such severe reproof on that account But this is all I plead for viz. that this Protestation was a Salvo to their Right which meeting with no contest or opposition in the Houses but passing with unanimous consent is a certain argument the Houses did not think there was any Law to exclude them And therefore the Authour of the Iudicature very well saith That had it not been for the Canon-Law for which he referrs to the Synodal Constitutions at Westminster 21 H. II. which is onely reviving the Council of Toledo's Canon they might have been present both by Common Law and by the Law of God 2. By Proxie or one common Procurator to appear in Parlament for them and to vote in the name of the whole Body This was receiv'd and allow'd 21 R. II. upon the Petition of the House of Commons because Iudgments had been reversed without their concurrence Against this the Authour of the Letter objects many things which are easily answer'd 1. That hence it appears they could not be personally present On the contrary from hence it follows they had a Parlamentary Right to be present although they said by Canon-Law they could not 2. That it was never practised but in this one Parlament That is strange when himself confesseth that it passed for good Law 10 Ed. IV. Term. Pasch. n. 35. and the same is cited by Stamford Placit Cor. l. 3. f. 153. To which judgment of the Lawyers and the greatest of their time for Littleton was then Judge 10 Ed. IV. we have a very extraordinary Answer called Error Temporis which will equally make void the Law or Iudgment of any Age. But is it possible that should pass for Law 10 Ed. IV. which was never practised but once 21 R. II. and the contrary practice had been onely allowed all the intermediate times Thus a short answer may be given to the Constitution of Clarendon it was Error Temporis to the allowing the Protestation 11 R. II. it was Error Temporis and so on to the end of the Chapter If there were any Error Temporis in this matter it lay in this that they took this Precedent 21 R. II. for a sufficient Ground that the Bishops should onely appear by Proxy in such Cases whereas the Canon-Law being taken away since the Reformation as to these matters their Right of Personal appearing doth return to them of course 3. That this Parlament was repealed 1 H. IV. But this I have answer'd already from his own words wherein he acknowledges him to be an Vsurper and consequently the Repeal not made by a legal Parlament And this Repeal was again taken off 1 Ed. IV. 4. That it is not at all Parlamentary for one or two men to represent a whole Body The consequence then is that they ought to enjoy their own Personal Right All that we urge from hence is that the Bishops kept up their Right still by their Proxies when they thought the Canons would not allow voting in their own Persons IV. Some of his Precedents do prove that after the Protestations and Proxies they did assert their own Personal Right and were present both at Examinations and at the whole Proceedings 1. At Examinations As in the Case of Sir William Rickill 1 H. IV. who was brought to Parlament before the King and the two Houses the Lords Spiritual and Temporal and the Commons then assembled together And he grants the Bishops were present at his Examination 2. At the whole Proceedings 28 H. VI. where he confesseth the Bishops were not onely personally present but did act and bear a principal part in aIudicialproceeding in Parlament in a Case that was in it self Capital viz. of William de la Pole Duke of Suffolk Which is very fully related by the Authour and needs no repetition All that he hath to say to this is that the whole Proceedings were irregular and not to be drawn into Precedent Whereas a great Lawyer in his time Sir E. C. made use of