and all other Parliaments when such matters are not in question But for such matters they say Non licet alicui eorum personaliter interesse And de jure non possumus nec debemus interesse It is not lawful to be present in person at any of them and rightly we cannot nor ought not to be present Can it then be thought they should lay claim to any right to what they say Non licet de jure non possumus nec debemus It is not lawful and by right we cannot nor ought not And to say their meaning was that by the Law of the Land or Custom of Parliament they might and that it was only the Canon Law which hindred them can have little colour for the Canon Law was to them above all Laws and what was forbidden by that Law they could not have a thought that it could in any sort be lawful for them to challenge as their right upon any account It is further observable here that they profess Quod de jure non possumus nec debemus dum de hujusmodi materiis agitur vel agetur quomodolibet interesse that is all the time that such matters are in agitation there is no exception of Preliminaries and Preparatories and of being present and having vote during all the debate till the pronouncing of Sentence for it is Dum de hujusmodi materiis agitur vel agetur the whole time from the beginning to the ending and when such businesses are to come on that is when they are going upon them and when they begin And then consider the close of this Record Quelle Protestation leve en plein Parlement al instance priere du dit Ercevesque les autres Prelatz susditz est enrolle ycy en Rolle du Parlement per commandement du Roy assent des Seigneurs Temporelz Comunes Which Protestation being read in full Parliament at the instant desire of the Archbishop and other the Prelates aforesaid is entred upon the Parliament Roll by the Kings command with the assent of the Lords Temporal and Commons Which is all the formality of passing Laws in Parliament that was used in those times Which was only to have it entred in the Roll or Journal Book that such a thing was agreed upon by the King and the two Houses then it was drawn into the form of a Law afterwards by the Justices and Kings Council when the Parliament was risen So as whatever was the Law before if it were only the Canon Law it is now come to be the Law and rule of Parliament and the Law of the Land but in truth it was so before and was always so 20. R. 2. Thomas Haxey Clerk had preferred a Bill in the House of Commons for regulating the outragious expences of the Kings House particularly of Bishops and Ladies De la multitude d' Evesques lour meignee aussi de plusours Dames lour meignee qui demeurnt en l hostel du Roy sont a ses coustages Of the many Bishops and their company and also of many Ladies and their company that live in the Kings House and at his charge The King being exceedingly moved at this some Bishops and Lords were sent to the Commons to let them know it and to enquire who had made that complaint the Commons delivered the Bill and his name who had exhibited it Haxey was for this tried and adjudged a Traitor and condemned to death for it Which Judgment by the way was most unjust and would not only have shaken but wholly destroyed the very foundation of Parliament deterring all men from representing there and seeking redress of any grievance publick or private had it continued in force and unquestioned but 1. H. 4. it was complained of as erroneous and Encontre droit la course qui avoit este devant en Parlementz Against right and the course of Parliaments and therefore Nostre Sr. le Roi del a viz assent de toutz les Srs. Spirituelx Temporelx ad ordeignez adjuggez que le dit Iuggement soit du tout cassez reversez repellez adnullez tenuz de nul force n'effect Our Lord the King by the advice and consent of all the Lords Spiritual and Temporal hath ordained and adjudged that the said Iudgment be wholly quashed reversed repealed made null and held to be of no force nor effect So this Judgment is damned with Bell Book and Candle one may say and at this the Lords Spiritual were present and had vote but not at the trial and condemnation of Haxey as appears by the Record which saith Fait a remembrer que mosquerdi aprez la Chandelure maintenant aprez le Iugement rendu devers Thomas Haxey Clereâ—que fust ajuggez eu Parlement a la mort come Traitour vindrent devant le Roy en Parlement ovek grand humilite l' Ercevesque de Cantirbirs toutz les autres Preiatz luy prierent de sa grace avoir pitie merci du dit Thomas de remitter l' execution Memorandum that the Wednesday after Candlemas day immediately after that Iudgment was given upon Thomas Haxey Clerk who was in Parliament judged to die as a Traitor the Archbishop of Canterbury and all the other Prelates came with great humility before the King in the Parliament and besought his Grace to have pity and compassion on the said Thomas and to remit his execution which the King granted So we see that after the Judgment given in Parliament the Bishops immediately came into the Parliament to beg for his pardon which shews they were not there before 21. R. 2. The Commons impeached Thomas Arundel Archbishop of Canterbury of high Treason and desired he should be put into safe custody it was answered that because it touched si haut personne so high a person the King would be advised Afterwards they come and pray that Judgment may be given according to their Impeachment and accusation of him Sur quoy nostre dit Sr. le Roy toutz le Srs. Temporelz Mr. Thomas le Percy eiant poair sufficient de les Prelatz Clergie du Roialme d' Engleterre come piert de record en le dit Parlement adjuggerent declarerent cest Article conuz per le dit Ercevesque pur Traison le dit Ercevesque pur Traitour sur ce est agarde quil soit banni ses Temporaltees seisis en main le Roy Whereupon our said Lord the King and all the Temporal Lords and Sir Thomas le Percy being sufficiently empowered from the Prelates and Clergy of the Kingdom of England as appears upon Record in Parliament judged and declared this Article acknowledged by the said Archbishop to be Treason and the said Archbishop to be a Traitor and thereupon awarded him to be banished and his Temporalties to be seised into the Kings hands Here the Bishops were not present in person but Sir Thomas le Percy as their Procurator and Proctor
upon the Trial of Commoners Though to speak the truth I doubt those Prelates did not much desire this Priviledge but the Salvo to their Right of sitting in all Parliaments to have been what they aimed at most in their Protestation and which they would have to be enrolled but the one could not be without the other and upon no terms would they admit the least scruple should be of their right to sit in Parliament which their withdrawing at that time might seem else to call in some question as they thought and therefore they would make that Protestation For that Popish Clergy was very ambitious and loved to have the rule over all persons and things we see it by Matthew Paris how he branded those Constitutions of Clarendon with terming them Consuetudines iniquas and the Archbishop Becket himself after he had sworn to them repented him of it and enjoyned a severe Penance to himself and suspended himself from the Office of the Altar for several months till he had the Popes Absolution This makes me doubt if the Clergy was of another mind in Richard the Seconds time and if they could not have been well enough contented to have continued sitting as Judges in all Cases if the Canon Law had not debarred them but that being they would make that Protestation consisting as I say of those two parts both which being so approved of by the Parliament and there enrolled became then and so continue to be the Law of the Kingdom For in those times all Laws were so made Only the substance of the Law was agreed upon in Parliament by King Lords and Commons and entred in the Journal Book And the Kings Justices did afterwards draw it up into form and then publish it to be the known standing Law of the Kingdom But that was not needful here because it was not a new thing that did then receive its first being Neither I say was it new before in Henry the Seconds time it appearing by what was then transacted that it was in usage in Henry the Firsts time only it was ratified in that Great Council of Clarendon under Henry the Second with a little more solemnity and the addition of an Oath for the better observance of it And we may carry it yet a little higher to Edward the Confessors days as appears by his Appeal against Earl Godwin in a Great Council which was their Parliament and how long it had been the use and practice before that God knows In E. 4 th time it was the declared Law of the Land you have it in the Year-Book of 10 E. 4. Term. Pas. n. 35. the words are Quant un Sr. est endite ceo serra maunde en le Parliament la le Seneschal d' Engleterre le mettra a respondre il dira De rien culpable se sera trie per Pares suos donque les Seigniors Espirituelx que ne poient consent al mort de home ferront un Procurator en le Parliament donque le Seneschal doit examiner primes le pluis puisne Seignior que est sil soit culpable issint separatim a toues les Seigniors queux sont la c. 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 Procurator in Parliament and then the Lord Steward shall ask the youngest Lord if he be Guilty and so severally all the Lords that are there c. This I alledge to shew that even by the Law of the Land the Bishops cannot be Judges in a Case Capital 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 Parliament of R. 2. whom they considered as their last lawful King and in truth he was so the three Henries that came between being but Usurpers and therefore they had it seems a deference for what was then done though as I have already said it was never done before nor is it in truth a thing very practicable and not at all Parliamentary to have one man or two men as we see it was also done that Parliament represent the whole Bench of Bishops And more than all this as I have already observed which it seems was not then thought of that whole Parliament of R. 2. stands repealed and all that was done in it declared by a subsequent Act of Parliament to be Null and Void But this is but by the way my intent in quoting this Book Case is onely to shew that the Bishops were not excluded Judging in Capital Cases by the Canon Law alone but that the Law of the Land did likewise confirm it and the Courts of Westminster did so conceive of it So I think I may well conclude and with some confidence affirm that Bishops now are not to be Judges to Sit and Vote in Parliament in any Trial or part of a Trial that is in any circumstance which doth any ways lead or conduce to such a Trial of any Capital Offender but the whole Judgment is singly and wholly in the Lords Temporal and to them onely such Judgments do belong as was challenged by them in the Case of the Earl of Northumberland 5 H. 4. and is so declared to be in several other Cases upon the Rolls of Parliament And having thus delivered you my opinion and my grounds for that opinion I submit it to your judgment and rest SIR Your Humble Servant POSTSCRIPT SIR AS I was closing my Letter two Papers were brought me one in Written hand the other Printed which maintain an Opinion clean contrary to mine I shall tell you what they say and give my Answer to it then leave it to you to determine who is in the right The written Paper to prove their right of Judicature in all Cases none excepted declares Bishops to be Peers of the Land and a Third Estate in Parliament and therefore are not to be excluded from being Judges in all Cases as well Capital as other To prove them Peers of the Land he urges Statute Law and Common Law for the Statute Law he alledges the 25 of Ed. 3. c. 6. and the 4 of H. 5. c. 6. First For the Statute Law let me tell you It is not every expression Obiter upon the By that is in the Preamble of a Statute as this is of Bishops to be called Peers in these Statutes that makes a thing pass for Law except it be by way of Declaration declaring it to be a Law or reciting it as a Law before made And then I shall shew you how these two particular Statutes run and what they are That of the 25 E. 3. it is true hath in
themselves separately from the other L ds which would make another Estate but they do not only not vote apart by themselves the whole body of them together but even that body is divided and separated within it self one part from another For the two Archbishops give their Votes after all the Nobility have given theirs and the rest of the Bishops between the Barons and the Viscounts so that the Barons excepted all the rest of the Peers Dukes Marquesses Earls and Viscounts divide the Archbishops from the Bishops If then they be an Estate it is an Estate within an Estate like a Nest of Boxes one within another which how agreeable it is to reason let any man judge Besides would it be for the honour of the House of Lords that two Estates must be put together to keep the ballance even with the House of Commons who are but one Estate and that their two should signifie no more than that one And most clearly it would be a great disparagement to the Peerage of the Kingdom the Temporal Lords and would make them to be a poor Estate that another Estate must be joyned to them to make up their Negative voice and set them upon even ground with the House of Commons But this is further to be said were the Bishops one of the Three Estates a Parliament could not be held without them no Law no Act of Parliament could be made if the Major part of the Bench of Bishops did not agree to it but we know it to be otherwise in point of fact Parliaments have sate without a Bishop and Acts of Parliament have been made the Bishops dissenting and our Law-Books say it may be so in point of Law That it hath been so Bishop Iewel acknowledges it in his Defence of the Apology of the Church of England p. 522. he bids you read the Statutes of Ed. 1. and you will find that in a Parliament solemnly holden by him at St. Edmunds Bury the Archbishops and Bishops were quite shut forth and yet the Parliament held on and good and wholsom Laws were there enacted the Record saying Habito Rex cum suis Baronibus Parliamento Clero excluso c. The King holding a Parliament with his Barons and excluding the Clergy c. Crompton hath this likewise in his Book of Courts under the Title Parliament p. 19. b. So certainly that King did not believe his Clergy to be a Third Estate of his Parliament or he would never have left them out for it must necessarily have followed that his Parliament would have been lame and imperfect But doubtless he knew the Law to be as all the Judges of England said it was in Henry the Eighths time when the question was as the Title of the Book Case runs in Keilways Reports p. 180. b. Lou Supreme Iurisdiction perteigne al Roy ou al Pape To whom the Supreme Iurisdiction belongs to the King or the Pope For that hath still been in competition between the Crown and that Clergy I mean the Popish Clergy It is in Dr. Standishes Case 7 H. 8. p. 184. b. Les Iustices disoient que nostre Sr. le Roy poit assez bien tener son Parlement per luy ses Temporal Seigniors per ses Commons tout sans les Spirituals Seigniors car les Spiritual Seigniors nont ascunt place en le Parlement chamber per reason de lour Spiritualtie meis solement per reason de lour Temporal possessions The Iudges said That our Lord the King might well enough hold his Parliament by himself and the Lords Temporal and his Commons wholly without Lords Spiritual for the Lords Spiritual have no place in Parliament by reason of their Spiritualty but by reason of their Temporal possessions that is holding their Lands their Temporal possessions in nature of Baronies sicut Baroniam as it is in the Constitutions of Clarendon not that they were truly and really Barons enobled in bloud but by their Tenure of such Land dignified to sit in Parliament and do the King service there as the Temporal Lords by their Tenure were bound to do For this was the Policy of William the First he divided all the Lands that escheated to him by his conquest into so many Knights Fees and so many Knights Fees he erected into a Barony the Temporalties of Bishops likewise and so of many Abbots and Priors he erected into Baronies all to hold of him in Capite and upon account of those Baronies both the Temporal Lords and the Spiritual Lords not only Bishops but also those Abbots and Priors had of right place in Parliament and were bound to serve him there Now I would ask if they all holding by one Tenure and by that Tenure sitting in Parliament could possibly be imagined to be two different Estates Certainly they could not be then two different Estates for they were all Feodal Barons And what hath since hapned to make a difference The change hath been only this The Temporal Lords holding so by their Tenure grew so numerous that King Iohn put them into two ranks of Barones Majores and Barones Minores and only the Majores had Writs of Summons to come to Parliament Afterwards in Richard the Seconds time Barons were created by Patent and so had Place and vote in Parliament I ask now if it be probable nay if it be possible that this should alter the constitution of Parliament that that House which before consisted but of one of the Estates should now be divided into two Estates They are still qualified to be Members of Parliament as before a Baron sate as a Baron an Earl as an Earl Being made by Patent or by Writ or by holding such a proportion of Land alters not the case as to their sitting in Parliament for it is being of such a degree which makes them Peers of Parliament how they rose to that degree is not material And what should make the Lords Spiritual who have received no change in their being called to be Members of that House to be now an Estate by themselves which they were not before I profess I see not the least colour of reason to think there should be any change but as they were in the beginning so they are still no other than Fellow Members of that House with the Temporal Lords and together make up one House But this is also to be considered that if the Bishops were a Third Estate of Parliament not only the Parliament could not be held without them but nothing could pass in Parliament that at least the Major part of them should not assent to But so far from that not only what we find in the Journals of former times but daily experience tells us that Acts have passed not only when the Major part of that Bench was against them but many times when the whole Bench was strongly of another mind 20 R. 2. The Bishops upon occasion of the Statute of Provisors enter a Protestation against whatsoever
should be done in derogation or restriction of the power of their Holy Father the Pope saying they were sworn to his Holiness and to the Court of Rome These were likely to make a good Third Estate of an English Parliament And is it not then a wonder that any Engiish man should desire to bring Popery in again for Bishops to controule both King and Parliament Would it not set even Monarchy it self one degree lower Sure it would But this is by the way Consider further that if they had had such a power of being a Third Estate in the days of Queen Elizabeth those good Acts for a Reformation in Religion had never pased and the Reformation had never been 1 Eliz. The Bill for restoring the first Fruits and Tenths to the Imperial Crown of England which passed February 4. The Bill for restoring the Supremacy to the Crown and repealing divers Acts made to the contrary which passed March 18. The Bill giving authority to the Queen upon avoidance of a Bishoprick to take some part of the Temporalties into her hands recompensing the same with Impropriate Parsonages which passed April 7. All the Bishops present were against the passing of these Bills And before that in Edward the Sixths time they were against the Bill for Priests to marry which passed Feb. 19. 2 E. 6. So the Bill for ordering Ecclesiastical Ministers giving power to Six Prelates and Six other men learned in the Laws to set down the form and manner of their Consecration which passed Ian. 25.3 E. 6. The Bill for nominating thirty two Persons to peruse the Ecclesiastical Laws which passed Ian. 31. The Bill for abolishing and putting away divers superstitious Books as Legends Missals Processionals and the like and taking away Images out of Churches and Chappels which passed also that Parliament All these good Bills the Bishops were against yet they passed into Laws and were the foundation of our Reformation which had they been a Third Estate had never been laid for those Bills had not passed But you will say perhaps that we need not fear such mischiefs and inconvenience from our Protestant Bishops and I grant it nor do I urge these things with any such apprehension I only shew you what the Popish Bishops did then and that if they had been a Third Estate such mischiefs would have followed upon it and thence to infer That they were not in those times so accounted and that our Protestant Bishops cannot then pretend to it now They then and These now having Place and Vote in Parliament upon the same terms But then we have good Authority to inform us which are truly the Three Estates King Iames seems to make it clear in a Speech he made at the Prorogation of the Parliament in the year 1605. the words are these As for the thing it self that is the Parliament it is composed of a Head and a Body The Head is the King the Body are the Members of the Parliament This Body again is subdivided into two parts the Vpper and the Lower House The Vpper House compounded partly of Nobility Temporal men who are Heritable Counsellours to the High Court of Parliament by the honour of their Creation and Lands And partly of Bishops Spiritual men who are likewise by the virtue of their Place and Dignity Counsellours Life Renters or Advitam of this Court. The other House is composed of Knights for the Shires and Gentry and Burgesses for the Towns But because the number would be infinite for all the Gentlemen and Burgesses to be present at every Parliament therefore a certain number is selected and chosen out of the great Body serving only for that Parliament where their Persons are the Representation of that Body You see that wise King makes the Body to consist of Two Parts the Upper House or the House of Lords to be one of those parts consisting of Lords Temporal and Lords Spiritual who together make one part And the House of Commons another part It is true he calls neither of them an Estate but most certain he cannot be thought to understand the Spiritual Lords to be an Estate by themselves making them to be but a Part of one of the Parts of that Body For by the same reason he may be said to make the House of Commons consist of two Estates saying it is composed of Knights of the Shires and Burgesses for the Towns But King Charles the First is plainer in his expressions in his Answer to the Nineteen Propositions sent to him from the two Houses Iune 2. 1642. He tells them That neither one Estate should transact what is proper for two nor two what is proper for three And in that same Answer he saith a little after It is most unreasonable that two Estates proposing something to the Third the Third should be bound to take no advice whether it were fit to pass but from those two who did propose it Nothing can be clearer than this to shew what the opinion of that good King was concerning the three Estates in Parliament And 2 H. 4. n. 32. It is so declared by the House of Commons even to the King himself and to the Lords That the three Estates of Parliament are the King the Lords Spiritual and Temporal and the Commons who should all be at an Vnity among themselves and therefore hearing there were some differences between the Lords they humbly prayed the King to compose them And Stephen Gardiner Bishop of Winchester sometime Lord Chancellor an ancient Parliament-man in Henry the Eighths time who well understood the constitution of Parliaments in his Letter to the Lord Protector in Edward the Sixths time which Letter is in the second Volume of the Book of Martyrs Printed in 1641. p. 7. doth acknowledge it and saith That the three Estates make a Law and compares the three Estates in Parliament to the three Christian Vertues Faith Hope and Charity and saith That it were the same absurdity and untruth to say the Higher House and the Lower House exclude the King in the Office of making Laws as it would be in Religion to say that Faith excludeth Charity in the Office of Justification Here you have the Testimony of a Bishop I confess a Popish Bishop as you may see by his application of this Simile to make Charity that is works of Charity to have a part in Justification But I meddle not with his Divinity As to that which he saith of the Estates in Parliament he is in the right and he was one that knew well enough what was due to the Order of Bishops even to the full extent of it and would not have shortned it the breadth of one hair yet he makes them not an Estate by themselves but as joyned with the Lords Temporal Then for the Common Law you have Finch in his Book of Law dedicated to King Iames the first Chapter of the second Book p. 21. who saith the very same thing in very plain terms His
words are these Lassemblie de ceux trois Estates c ' est assavoir Roy Nobilitie Commons qui sont le Corps del Realme est appel une Parlement lour decree un Act de Parlement car sans touts troys come si soit fait per Roy Seigniors mes rien parle del Commons nest ascun Act de Parlement The Assembly of the Three Estates that is to say King Nobles and Commons who are the Body of the Realm is called a Parliament and their Decree is an Act of Parliament for without all three as if it were done by the King and Lords and no mention of the Commons it is no Act of Parliament Can any thing be plainer You see now with how little appearance of truth the Writer of that Paper takes upon him to declare Bishops to be either Peers of the Land or one of the Three Estates and what ill Topicks he hath chosen to prove them to have right of Judicature in all Cases Criminal and Capital for that is his Assertion upon it For what he cites out of some year-Year-books that in some pleadings their Counsel calls them Peers will not make them so nay should the Judges themselves stile them Peers as perhaps they might complement the potent Clergy of those days it could not alter the Law of the Land which makes Commoners their Peers seeing they are to be tried by Commoners As for matter of Fact to prove that they have Judged in Capital Cases he cites the Protestation in the eleventh of R. 2. and then their making their Procurator and so Judging by Proxy in the 21 of R. 2. To which I need say nothing in this Postscript having so largely in my Letter treated of it Then he gives many Precedents of their voting in Bills of Attainder which is all Not to the purpose for that is not in Question Acts of Attainder are Laws and every Freeman is supposed to give his Consent to every Law either by his Representative or in Person if a Member of Parliament And Bishops being Members may I think claim to do it Personally So I have done with the Paper and come to the Printed Book stiled The Honours of the Lords Spiritual asserted And Six Chapters are taken up in blazoning their Honour which no body endeavours to take from them nor do I think it to be any part or degree of Honour to judge men to death It is certainly an employment which in my opinion no body will envy to any that hath it Then for those great Places which the Bishops enjoyed here in England mentioned in the fifth Chapter I no ways wonder at it we know that Popish Clergy had ambition enough to covet to have the whole rule and in those blind and superstitious times power enough to obtain what they had a mind to both Prince and People in a manner awed by them who yet sometimes would complain and break out a little as Scholars sometimes rise against their School-masters So 45 E. 3. The two Houses joyn Countes Barones Communes and represent to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per ent grant mischiefs dammages sont avenuz en temps passe pluis purroit eschier en temps avenir al disherison de la Coronne grant prejudice du Royalme Whereby great mischiefs and damages have happened in times past and more may fall out in time to come to the disherison of the Crown and great prejudice to the Realm And therefore they humbly pray the King that he would employ Laymen So 20 R. 2. The Commons complain That the King kept so many Bishops about him in his Court and advanced them and their followers Therefore you see it was not always pleasing to the Kingdom But all this is by the By though that Author takes a great deal of pains to enlarge himself upon this Subject which is not at all to our purpose nor deciding the point in question one way or other In his two last Chapters the seventh and the eighth only he toucheth upon it He first gives this for a Rule That it was the common usage and right of the Bishops in ancient times to sit and vote in Parliament in all Cases as well Criminal as otherwise either by themselves or their Proxies As for their Proxies as I have already said it was never done but in one Parliament which Parliament is repealed and all that was done in it of no signification And besides as I have already told you in my Letter if that Parliament had not been repealed yet that unparliamentary Nonsensical action of the whole Bench of Bishops and all the Clergy with them empowering one Man as they did Sir Thomas Percy to give one Vote for them all shews the manifest indispensable unlawfulness of their being Personally Present that rather than that should be such an Irrational Unprecedented thing should be admitted of which is my Answer to all that he saith and to the Precedent that he quotes out of the 21 of R. 2. Now let us examine what he saith of their being in Person present at such Trials He quotes Bromptons Chronicle reciting among the Laws of King Athelstan this concerning Bishops I will cite Brompton's words right as they are Episcopo jure pertinet omnem rectitudinem promovere Dei viz. seculi It appertains of right to a Bishop to promote that which is right both concerning God and the World A little after he saith Debet etiam sedulo pacem concordiam operari cum seculi Iudicibus He ought likewise diligently together with the secular Iudges to promote Peace and Concord After he saith Debent Episcopi cum seculi Iudicibus interesse Iudiciis ne permittant si possint ut aliqua pravitatum germina pullulaverint The Bishops ought to be present in Iudgments with the Secular Iudges not to suffer any buds of wickedness to sprout if they can hinder it Then he tells you what they must do in their Judgings see that every man have right that rich men do not oppress poor men nor Masters their Servants and the like and to look to Weights and Measures that there be no cozening nor cheating but that they may live like Christians Here is nothing of judging a Capital Crime far from it His next Authority is out of Sir Henry Spelmans Glossary upon the word Comes there it is Comes presidebat foro Comitatus non solus sed adjunctus Episcopo hic ut jus divinum alter ut humanum diceret alterque alteri auxilio esset consilio Presertim Episcopus Comiti Nam in hunc illi animadvertere sepe licuit errantem cohibere The Earl did preside in the County Court not alone but joyned with the Bishop He to deliver what was Gods Law the other what was Mans Law And that the one should help and counsel the other especially the Bishop to do it to the Earl for
that the Archbishop was then charged with Treason Gervasius Dorobernensis saith he was charged with two things one not doing Justice in his Ecclesiastical Court to one Iohn who was Iohn the Mareschal that complained of the Archbishops detaining some Land from him the other that being sent for by the King upon occasion of Mareschals complaint he came not The first he excused laying the fault upon Mareschal himself for abusing the Court bringing veterum cantuum codicillum and old song-Song-Book to swear upon and refusing to swear super Evangelium ut moris est upon the Evangelists as the Custom is whereby he said he did Curiam suam infamare Defame his Court. The other he answered proving by two sufficient Witnesses Per duos legales viros that it was sickness hindred him and not any contempt This is the account which Gervasius gives and saith not a word of any Treason neither doth Matthew Paris nor Roger Hoveden who both of them give a relation of that proceeding at Northampton against the Archbishop And to say the truth it would be a strange High Treason only not to come being sent for by the King though there had been no sickness in the case at most it could have been but a High Contempt and punishable by Fine and Imprisonment or the like and probable it is that Fitz-Stephen who was a Creature of the Archbishops might represent it so only to draw more Odium upon the King for his severity against the Bishop even to an injustice when in truth there was no such thing However we may look upon it as but a weak President for the Bishops to lay any weight upon to prove their right to sit and vote and judge in a Capital cause Causa sanguinis being at the best but out of a blind Manuscript of an Author justly suspected of great partiality against the tenour of all the ancient Writers that give an account of the same business But we must go a step further to clear this matter in question for it seems some of the Bishops do say that though they will have no part in the Condemnation and pronouncing Judgment upon a Criminal person as to loss of Life or Member yet they may and will vote and Judge in such things as are but Preliminary and Preparatory to that condemnation and yet think they have no hand in bloud though they have a hand in doing that which will infallibly cause the taking away of of a mans Life and shedding of his Blood so they would divide two things which in truth have so near a relation and dependency the one upon the other as they are only separated by a little time coming between one thing to be done first and that being done the other must necessarily follow and be done presently after And they doing the former may be well said to do the latter and if any Law prohibit them from having to do with the latter the same Law doth and must prohibit them medling with the former It is a rule in Logick Causa causae est causa causati If the Judgments of the Bishops determine one thing which is the necessary cause of any other thing their Judgment may be said and really it doth determine the other thing As take for example the particular case upon which this Question hath been moved the Earl of Danbyes Pardon of the validity or invalidity whereof they will be Judges It is hoped they will be just Judges and incline neither way but according to the merits of the Cause before them so what their Judgment will be till they have heard all themselves cannot tell Now if by their Judgment the Pardon be determined to be invalid and illegal and that carry with it a conviction of the Crime of which he stands impeached as some will have it to do saying that the taking of a Pardon implies a guilt and is in Law a confession of the Crime pardoned and so his condemnation must necessarily follow even for Treason the impeachment being so doth not their Judgment subject him to that condemnation How then can they say we will have no part in condemning him Is not this something like the Frier in Chaucer that would have of a Capon the Liver of a Pig the Head yet would that nothing for him should be dead So they forsooth will take upon them to Judge his Pardon to be no Pardon which brings on infallibly his condemnation and yet say with that Frier God forbid he should die for us That we should have any hand in his bloud But certainly this will not pass for currant either in Foro Iudicii or Foro Conscientiae to excuse them from being Actors in his Condemnation To evade this some say the Bishops may be present and hear what will be said Pro and Con concerning this Pardon and those only shall deliver their opinions and judgments of it who are satisfied of the Validity and Legality of it but those amongst them who are of another mind shall withdraw and give no vote and then it cannot be said that any of them have a hand in condemning him But how this will sute with the Office of a Judge let any man judge whose duty it is to condemn the Guilty as well as to acquit the Innocent and who ought to do the one or the other in every business that comes before him as he finds ground for it upon hearing the Allegations and Proofs And besides it is most Unparliamentary for in Parliament all who are at the debate of a business ought to give their vote to the Question one way or other according to their sense of it and as they in their consciences think it just But to break thorough all at once they will have it That it is only by the Canon Law that this restraint is upon them and that the forbearance of their Predecessors being Papists and so subject to that Law was only in that respect which Law being of no force at present and taken away by Act of Parliament they are now at Liberty though in modesty they think sit sometimes to withdraw but have a right to continue sitting if they please To which in answer I shall say that I will not deny but that the Canon Law might give the first rise and a beginning to such an usage and no Law could be of greater force to introduce and establish such a thing as being that to which only the Clergy of those times would be subject conceiving themselves to be above and not bound by any other But it is most clear that it came afterwards to receive a Civil Sanction and to have not only the stamp of the Authority of Parliament set upon it by the continual practice there and we know that Consuetudo Parliamenti est Lex Parliamenti The Custom of Parliament is the Law of Parliament But that two several times there have been particular and express Confirmations and Ratifications of it in Parliament which makes it