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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A44191	Lord Hollis, his remains being a second letter to a friend, concerning the judicature of the bishops in Parliament, in the vindication of what he wrote in his first : and in answer to ... The rights of the bishops to judge in capital cases in Parliament, cleared, &c. : it contains likewise part of his intended answer to a second tractate, entituled, The grand question touching the bishops right to vote in Parliament, stated and argued : to which are added Considerations, in answer to the learned author of The grand question, &c., by another hand : and reflections upon some passages in Mr. Hunt's Argument upon that subject, &c., by a third.; Second letter to a friend concerning the judicature of the bishops in Parliament	Holles, Denzil Holles, Baron, 1599-1680.; Holles, Denzil Holles, Baron, 1599-1680. Letter of a gentleman to his friend.; Atwood, William, d. 1705? Reflections upon Antidotum Britannicum.	1682 (1682)	Wing H2466; ESTC R17318	217,539	444

were good it would follow that the Commons ought to have equal Power with the Lords in all other Cases because they have with them an equal Power in passing Bills The néxt Section consists in blaming the Insinuation of his Adversary who saith their medling with secular Affairs was against the Apostles Practise though in a matter concerning the Church mentions the Rescript of Honorius and Theodosius and so passeth that point In which it appears he insinuates no more than William the First ordained who appointed that they should meddle with nothing but what concerned the rule of Souls and govern themselves according to the Rules of the Church so that you see the Canons of the Church were considered in their Admission to sit What he saith in Opposition to this is that it is a part of God's Service to do Justice and Mercy and to attend the publick Affairs of the Kingdom when they shall be thereunto called that the Bishops now are not under the same Circumstances the Apostles were when the Christian Church was to be planted and now when it is constituted that the Apostles travelled from Place to Place which the Bishops are not now bound to do that the Clergy are one yea the chiefest of the three Estates and therefore reasonable they should be concerned in the Affairs which concern the whole Nation and after that produces Examples out of the Practise of other Nations which at best signifies nothing to ours neither is what he saith any way argumentative to his Advantage except he had first proved that he that first appointed them to preach the Gospel and attend the Affairs of the Church did not think that Employment enough to spend their whole time in And although the Apostles who were Messengers did go about their Errands to several Places whither they were sent it doth not appear that St. James who was a Bishop and not an Apostle except we shall call him the Thirteenth ever parted from Jerusalem but attended the business of the Church there But since this Author hath thought fit to put us upon this Question let us examine it a little higher 'T will be undoubtedly agreed on all hands that our Saviour did not delegate to others a greater Power than God had given him the Exercise of to himself But it is clear in the Case of the Young Man Luke 12. 14. who would have had him command his Brother to divide the Inheritance with him Man who made me a Judge and a Divider That is none hath made me so because his Kingdom was not of this World that is consisted not in secular things The next place I shall remember is 2 Ep. Tim. chap. 2. vers 4. No man that warreth intangleth himself with the Affairs of this Life that he may please him that hath chosen him to be a Souldier Hugo Grotius upon this place will tell you that this is a Similitude taken from the Roman Law which would not suffer any Souldier to be employed in any Affairs but Military quotes the Law and the Practise tells you out of Florus that Posthumius a man of consular Dignity was punished for appointing his Souldiers to assist him in his Field 'T is true the Words are general but being applyed to Timothy who was then employed in a Spiritual course of Life they cannot think to please him who set them on Work if they be engaged in secular Matters which have not some immediate Reference to the Church And I believe no temporal Prince would take it well that his Ambassador should engage himself in the Affairs of any other Prince without his particular Commission This Sense is generally embraced though in our Question we exclude not all secular Matters but Blood only The third place I will mention is the seventh and eightieth Apostolick Canons 〈◊〉 Presbyter aut Diaconus nequaquam seculares curas adsumat sin aliter dejiciatur Let no Bishop Presbyter or Deacon at any hand take upon him the Care of Secular things and he that doth let him be deposed I suppose here are some Testimonies more than a thousand years ancienter than any Council of Toledo against their medling in Blood for Qui includit omne excludit nihil If all secular Employments be forbidden then the medling in Blood is not excluded It cannot seem to me reasonable that we should use those Arguments as Bishop Davenant and others do against the Usurpation of the Pope in things of this Nature which may with as much force be retorted upon our selves I am not ignorant what is usually replyed by men of a contrary Judgment and hath been learnedly and candidly put together by the Author of the Honour of the Lords Spiritual asserted who hath written with more Clearness and equal Reason I think to those of that side who have come after him Far be it from me to envy the Honour of the Clergy in their several Degrees and Orders or to think the Ambassadors of God should live basely or sordidly and not be used with all due Respect among men Neither is it any way reasonable that they who in an afflicted Church lived upon the general Contribution of the Saints should be put to such Streights in a flourishing one but all this is to be understood with that necessary Limitation that no Employment should take them off from their main Business the Care of the Churches committed to their Charge If they can satisfie themselves that their Spiritual Work is not enough to take up their whole time let them in God's name be engaged in secular Offices but I think if the greatest part of their Power were not transferred to their Chancellors and Lay-officers there would be time little enough left them for secular things I remember to have read in a Book called Il Nipotismo the design whereof is to shew the Corruption of the Church of Rome in the matter of their Nephews that about 226 years after Christ when the Clergy began to appropriate Lands to the use of the Church they began to grow proud covetous and negligent in their over-sight of the Churches to the same Purpose you may peruse a Book of Father Paoles de materie ecclesi●… And truly this is the general complaint of Petrus Blesensis an Author our learned Adversary makes some use of in many of his Epistles and Sermons insomuch that I wish there were not Truth in that Report that upon the too great Splendour of the Churches Poison was sowed among them Certainly this Kingdom hath given them a great share in the Government which hath not only allowed them the first Rank in the Estates of the Nation but hath by Law made them appear to be so in the Convocation where they have both an upper and lower House where they give Subsidies make Laws for the Church and where a part of them sit among the Lords not only to press the Allowance of those Laws by the Civil Power but also to have

saying is neither in the Judgement it self nor any thing leading to it So he comes to the Arch-bishop Becket's Case where he notably spends his mouth but like an ill Hound all upon false Hunting and indeed runs riot so far as he is not to be lashed in He fills several leaves of his Book with Encomium's of the Popish Clergy because some of them sometimes did what it was their duty to do which doth not excuse them in the general current of their proceedings commonly to stand for the authority of the Pope and the See of Rome against the Regal power and the authority of Parliaments as they did 20 R. 2. saying They were sworn to the Pope and to that See and they would oppose whatever the King and the Temporal Lords should do En restriaion del Poair Apostoliqué ou derogagation de la libertoe de Saina Eglise In restraint of the Power Apostolick or derogation of the Liberty of Holy Church So he takes much pains to assert the Kings natural right to command his Subjects to serve him upon any emergency and so to make Clergy-men Justitiaries if he see cause for it Which then gives them power of Judicature and I do acknowledge it but it is to be understood of Judicature in such Cases as the Law of the Land allows we know they have been some of them Lord Chancellours Lord Treasurers Lord Privy Seal but can he shew me that any of them judged in Cases of Blood For this Case of Beckett's is certainly misrepresented in Fitz-Stephens manuscript We know there have been heretofore in many Counties Justices of Assize which have been Clergy-men joyned with others in Commission who were not Clergy-men to take Assizes in the County And the Act of Parliament 27 E. 1. c. 3. coming to give power to those Justices of Assize to deliver the Gaols and so to be made Justices of Gaol-delivery and try Felons and Murtherers it provides that if one of them be a Clerk then one of the most discreet Knights of the Shire shall be associated to him that is a Lay-man and be empowered by the Knights Writ to deliver the Gaols of the Shires and chasten and punish whom they shall find to be guilty And this Statute is confirmed 2 E. 3. c. 2. which makes it manifest what the intendment of the Law is in that particular that Clerks must not meddle to judge in Cases of Blood and must hold good even for Bishops who are all of them Clerks As for this Case of Beckets which only stands upon the credit of a Manuscript said to be made by Fitz-Stephens a Monk whom he characterizes for a sober and grave Historian and more solito out of the sweetness of his nature gives me a lash saying It is usual with me to let fall expressions to vilifie Testimonies and Precedents when they make against me and this because I stile it a Blind Manuscript and suspect the Author as partial having been a creature of Beckets and consequently no friend to the King And therefore I give rather credit to the unanimous consent of the Historians of those times who do not relate the passages of that Tryal to be as he makes them than I do to him and his Manuscript I call it a Blind Manuscript because it sees not the light lyes obscure in some bodies Closet Mr. Selden doth not tell where and I dare say our Asserter never saw it though he terms the Author a grave Historian His tale is how at that great Council at Northampton Archiepiscopus laesae Majestatis Coronae Regiae arguitur quia est a Rege citatus pro causa Iohannis neque venerat neque idonee se excusasset c. The Arch-bishop is questioned for Treason against the Crown of the King because he was summoned by the King in the Cause of John that is one John the Marshal who complained that the Arch-bishop had done him injustice in his Court and he neither came nor had sifficiently excused himself upon sickness or any other just reason which might necessarily hinder him whereupon he was condemned to forfeit his personal estate and the Bishops and Barons not agreeing who should pronounce the sentence they putting it off from one to another at last the King commanded the Bishop of Winchester to do it This is his story and one may think it a strange piece of Treason one not to come immediately upon a Summons to attend the King especially if it be true what all the Historians that write of those times have related of this business Gervasius Dorobernensis is an Author as Mr. Selden observes who lived in that age and one of whom Mr. Selden and all Antiquaries we are sure have a good opinion and though our Asserter is confident enough to affirm they all have so of Fitz-Stephen it is of what I do not find that much hath been said by them to shew that nor do I think that any of our Antiquaries but Mr. Selden doth so much as mention him And from Gervasius Dorobernensis we have this relation Rex praecepit praesules Proceres regni apud Northamptoniam una cum ipso Archiepiscopo convenire c. The King commanded the Prelates and Nobles of the Kingdome together with the Arch-bishop himself to meet at Northampton where the Arch-bishop was accused of many things first that he had not fully done justice to one John that had a suit before him then that upon this occasion being called into the Kings presence he neglected to come To this the Arch-bishop made answer That John had all the justice done him that was due to him that he had illegally defamed his Court that he would not swear upon the Evangelists as the custome is but upon an old song-Song-book which he brought with him But that being upon this summoned he came not into the Kings presence was not upon any contempt but that he was hindred by a great sickness and that he had excused himself by two competent witnesses whom he had sent for that purpose yet this served not his turn but Curiali Iudicio Episcoporum consensu condemnatus est He was condemned by the Iudgement of the Court the Bishops consenting to it that all his personal estate should be at the Kings disposing This now is delivered unto us by an unquestionable known Author who lived in that time Fitz-Stephen and he agree in the matter of the Accusation and agree in the Judgement but Fitz-Stephen lays it to be Crimen laesae Majestatis Coronae Regiae High-Treason which must be for not coming to the King when he was summoned Gervasius saith that he sent his excuse by two witnesses who testified that he was then very sick and not able to come which we all know to be a Lawful Essoine De malo lecti which cannot be disallowed but must excuse nay justifie any bodies absence Now can any body that is master of common sense believe Fitz-Stephens relation who will have this to be

Opinion have been some Heraulds and have contended that by the Writ of Summons the Person was enobled and if his Descendents were so called for three Descents the Blood was enobled I conceive this Opinion to be erroneous For it is against a Maxime in Law that the King should pass any thing by Implication and as unreasonable to believe he might not have Liberty to require the Counsel of his Subjects without conferring an Honour upon them he did not intend Besides it will hence follow That during divers Parliaments of Edw. 1. almost all in Edw. 2. and many in Edw. 3. all the Judges King's Serjeants and many other were enobled for they had the same Writ the Barons had yet were never accounted such nay were often after such Summons omitted The known Case of Mounthermer is very pertinent to our purpose who having married the Relict of the Earl of Gloster who had a great part of the Earldom in Jointure her Husband was summoned as an Earl during the Minority of her Son but after he came of Age Mounthermer was summoned as a Baron during his own Life and after wholly omitted in his Descendents If it be said that his Summons enobled him but in regard his Descendents were not called the Blood was not enobled what will they then say to the Case of Radulphus de Camois who was summoned and his Son after him in 7 Edw. 2. yet in 7 Rich. 2. Claus. Memb. 32. in dors Thomas Camois the Grand-child was chosen one of the Knights for Surrey and discharged by the King 's Writ because he and his Ancestors were Baronets and the said Thomas was summoned and served in that Parliament not as a Baron but as a Barons Peer or Baronet which was an inferiour sort of Honour and signisied the same thing that Tenants in Cap. did in the time of King John But that these sorts of Peers were sometimes summoned and sometimes omitted at the King's Pleasure The only difference being that which appeared when they came thither the one appearing viz. The inheritable Barons in their Robes the others not but in Habits different from the Barons Now that there was this difference is made plain by those Authorities shall be produced under the next Head which is that there were a sort of Persons called Barons who were so by Tenure only that is to say who held of the King in Cap. and had such a number of Knights-fees and upon that account were summoned as Barons or rather as Barons Peers Mr. Selden seems to say in his Tit. Hon. Part 2. Sect. 17. pag. 690. That all Honorary Barons of that time whereof he speaks were for ought appears Barons only by Tenure The words are cautelous and his Expressions as became a Learned Man warily set down First Honorary Barons viz. Such as had the Honorary Name of Barons but not the Blood for such I take his meaning to be because he gives us no Definition of Honorary Barons nor why if it be admitted that Barons had their beginning from the number of Knight's fees which they held why Earls had not the like beginning who held of the King in Cap. as well as the others Now that there was a clear distinction between Barons enobled in Blood and those that held only in Cap. the one we find called Barones Majores the greater Barons the other Barones Minores lesser Barons The red Book in the Exchequer or Remembrancers Office attributed to Gervasius Tilburiensis speaks of it as an undoubted Truth Quidam c. Some hold of the King in Cap. things belonging to the Crown to wit greater or lesser Barons Quidam enim de Rege tenent in Capite quae ad Coronam pertinent Barones scil majores seu minores by which it appears they both held of the King in Cap. yet were distinguished into greater or lesser Fitstephens in the Life of Thomas of Becket Chap. 11. mentions Secundae Dignitatis Barones Barons of a second Degree Matth. Paris Anno 1215 hath these words Summoneri faciemus Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per Literas nostras Et praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Cap. tenent de nobis ad certum diem Here we see two different sorts of Barons the one summoned by the King 's Writ the other by the Sheriff The first sort by Writs sealed by the Chancellor the rest by Writs to the Sheriff yet both held in Capite But certainly omnes qui de Rege tenent in Capite must be understood with a reasonable Restriction For it will be very evident to any Man who shall examine the Inquisitions post Mortem remaining in the Tower that much Land held per Baroniam was in the Hands of private Men who were never reputed Barons neither could these Inquisitions be understood of Tenures from Mesne Lords and not from the King because all Tenures per Baroniam were Tenures in Capite which must be from the King Besides if the Tenure of Land made a Baron Why were not the Purchasers of those Lands by the King's Licence of Alienation ever after the Stat. of quia emptores Terrarum called to Parliament as Barons The Case of the Earl of Arundel 11 Hen. 6. will not mend the matter for his Ancestor was created by Writ and the Castle entailed upon him so that he was called to Parliament not by having the Land only but by virtue of the Creation of his Ancestor and the Entail upon it In so much that I still conceive that the ancient Nobility from whatsoever beginning it arose was made inheritable by Creation and Investiture of Robes upon which sometimes followed Cnarters which directed how it should descend and the Confusion in Historians hath proceeded from their not distinguishing Barons from Barons Peers so called not from their Parity in Honour but in Estate and Tenure but wanting Investiture were called or left out at the Pleasure of the King This Distinction is clearly mentioned in the old Modus tenendi Parliamentorum printed by Mr. Hakewell Summoneri debent omnes singuli Comites Barones eorum Pares All Earls and Barons ought to be summoned as also their Peers I know the Authority of this Treatise hath been questioned by some Learned Men but by none with more violence and less reason than by Mr. Prin in his fourth part of his Register of Writs p. 591. To which easie Answers may be given if we consider the Translators out of the Saxon Tongue might easily translate Words which they thought of an equivalent Signification by words in use at that time as Wittena Gemot for Parliament and the like Others of as great Judgment have as strenuously defended the Authority of it Sir Edward Cook in his Jurisdiction of the Court of Parliament strongly defends its Antiquity and Mr. Hakewell pag. 135.

not pursue this Author in his Digression touching the ground and reason of the Trial by Peers since our Question is not what the Law may be in other Countries but what the Practice of our own is and of what sort of People those Peers are to be composed That is to say Whether the Jury for the Trial of Bishops shall be composed of Noble-Men or of Commoners In this he confesseth that the Lawyers and those of them who have most searched into Antiquity are of a different Opinion to what he maintains as to this Particular A shrewd Objection I take it this is for every one ought to be credited in his own Art and 't is ten to one the Generality of the Lawyers are rather in the right than Strangers to the Profession or Lawyers of a lower Rank than those great Masters have been But that he may say something he tells you that Mr. Selden not only in that confused Rapsody goes under his name but in his more elaborate second Edition of his Titles of Honour admits the Bishops to be Peers in which he hath corrected and left out the false or doubtful Passages of his first Edition and among the rest that Passage A Bishop shall not be tried by Peers in Capital Crimes What then doth this Omission supersede those Precedents laid down by him in that Rapsody as he calls it which was as much his as the other The leaving out that Passage might be a Neglect in the Printer I am sure 't is no Retractation of what he had said before Neither need I tell this Author how Books come sometimes to be corrupted Secondly He saith some things have been affirmed about this matter with as great Assurance as this is which have not been the constant Practice Coke he saith is positive in his third Instit. p. 30. That a Bishop should not be tried by Peers and in the same Page that a Noble-Man cannot wave his Trial by his Peers and put himself upon the Trial of the Country And doth this Author think the Law to be otherwise Yes he saith in the Record of 4. Edw. 3. That Thomas Lord Berkley put himself upon his Country I have a Transcript of the Record by me which I received from my learned and worthy Friend Mr. Atwood of Greys-Inn but because it is in Latine and agrees with the Abridgment by Sir Robert Cotton and review ed by Mr. Prin I shall not transcribe except two or three Lines Thomas de Barkele Miles venit coram Domino Rege in pleno Parliamento suo c. Cotton 4 E. 3. Numb 16 17. In a Plea of the Crown holden before the King this Parliament Thomas of Berkley Knight was arraigned for the Death of Edw. II. for that the said King was committed to the keeping of the said Thomas and Iohn Mautrevers at the Castle of Thomas at Berkley in Glocestershire where he was murthered Thomas pleads that he was sick at Beudl●…y without the said Castle at the Death of the said King and put himself upon the Trial of 12 Knights named in the Record by whom he was acquitted Here we have an Arraignment of Thomas de Berkele Knight in 4 Edw. 3. but none of Thomas Lord Berkele as this Author supposeth In 5 Edw. 3. Numb 15. I find the same Person at the request of the whole Estate discharged by the name of Sir Thomas Berkley so that it seems plain he was then no Peer and consequently no waver of Peerage in 14 Edw. 3. and in 4 Rich. 2. Cot. p. 187. I find him summoned to Parliament not before 14 Edw. 3. When any Noble Man had the Addition of Miles the name of his Barony was generally expressed and the word Dominus annexed Iohn de Beauchamp Militi Domino de Beauchamp 27 Hen. 6. Rob. de Hungerford Mil. Dom. de Moleyns and many others Insomuch that I am confident that in 4 E. 3. Thomas de Berkley had never been summoned and so not inter Barones Majores And the Milites were Tenants in Capite I have at last examined all the parts of this elaborate Treatise in which the Author hath endeavoured with all Art and Industry imaginable to support a declining Cause I have not to my Knowledg left any Argument unconsidered which hath been thought material by this Writer to be urged in defence of that Cause the Maintenance whereof he had undertaken I have been longer I confess in this Discourse than at first I thought to have been but this must be attributed to the Subtilty of my Adversary who by learned Digressions and cunning Insinuations hath indeed clouded the Truth and rendered it less visible to the Eyes of common Readers Notwithstanding what I have said if this Drudgery of being present as Judges in Criminal Cases or in the Trials of Noble-Men in Parliament be the Right of the Lords Spiritual in Parliament If the Embassadours of Christ the Messengers of Peace and the Preachers of Mercy and Reconciliation to God in Christ have more mind to be Executioners of God's strange Work than in what he delights If they delight rather to make Wounds than to bind them up let them enjoy that Burthen according to their Desire But their Pretences to it hitherto have been ineffectual and of late all Power of Judicature in Cases of Blood hath been denied them in several Parliaments by both Houses Neither hath this Author been yet so happy as to have produced any one clear Precedent where they have been present at the Trial and have given Votes for the acquittal or Condemnation of any Noble-Man brought to Judgment in Parliament in Cases of Blood Or that any of their Order have been in such Cases tried by Noble-Men or indeed have desired to be so tried Certainly this Nation together with the most of other Christians in Europe lived under the Papal Communion till the times of Reformation and therefore the Bishops here cannot reasonably be supposed to have enjoyed Priviledges different or greater than those enjoyed by their Fellows in other Places where they had the greatest as well Power as Honour But I think I may with Confidence affirm they were no where allowed to sit Inquisitors of Blood and not only to debate but at their Pleasure to give Sentence in such Cases as Secular Persons in Secular Courts I very well remember that in the Parliament begun here 1640 it was at the beginning thereof hotly debated in the Lords House whether any Bishop might be so much as of a Committee in any Parliamentary Examination in the Case of my Lord Strafford because it was a Case of Blood in which by Law they ought not to meddle the Debate was put off and the Bishops were willing to absent themselves according to the Opinion of one of their own Body and agreeable to the Practice and Usage of the Kingdom being only allowed by the Lords to enter a Protestation saving their Rights in that and