a Capital crime High Treason and a Capital proceeding upon it We see the Sentence was far from Capital and could not have been such as it was if the Crime had been laid in the Accusation to be High Treason Roger de Hoveden in his relation of this business makes no mention of Treason He saith That the King calling a great Council at Northampton Taedium magnum fecit Archiepiscopo did a thing which much vexed the Arch-bishop which was that he caused his Horses to be put into the Arch bishops Inn whereupon the Arch-bishop sent the King word that he would not come to the Council till his Inn was cleared of those Horses yet upon the second day of the meeting the Arch bishop came into the Chapel where the Council sate and there desired the Kings leave that he might go over into France to visit Pope Alexander who was then there which the King denied him and said he should first answer for the injustice he had done to John the Marshal in his Court This John having complained to the King that he had had a long suit in the Arch bishops Court for some Land he held of him and could have no Iustice and that thereupon Curiam Archiepiscopi Sacramento falst ficaverat secundum consuetudinem Regni He had according to the custome of the Kingdom upon Oath charged the Court with wrong doing which I take to be a protesting against the proceeding of that Court and the Judgement there given in the nature of a Writ of Error The Arch-bishop answered to this That John had no injustice done him and that he brought into the Court a certain strange Book and would swear upon that how for want of Iustice he left my Court which the Officers that kept my Court looked upon as an injury done to me because it is the Law of the Kingdome Quod qui Curiam alterius falsificare voluerit oportet eum jurare super sacrosancta Evangelia Whoever will so charge a Court with false dealing must take his Oath upon the Holy Evangelists Notwithstanding this the King swore he would have Iustice done upon him Et Barones Curiae And the Barons of the Court gave Iudgement on him to be at the Kings mercy Which Iudgement the Arch-bishop going about to reverse Iudicium illud falsificare is the expression He was perswaded by the Barons to submit himself to the Kings mercy for a Fine of five hundred pounds Here is nothing in all this that can possibly infer any thing like Treason And it is something observable what both these Authors say of the Judgement given Gervasius saith Curiali Iudicio Episcoporum consensu condemnatus est as if the part of the Bishops in this judgement were something differing from the Act of the Court and not comprized in it Hoveden saith Barones Curiae Regis judicaverunt eum as if the Bishops had no hand in it at all Radulphus de Diceto Decanus Londinensis I suppose Dean of Pauls who lived in those times mentions this business he saith That the Arch-bishop was questioned upon John the Marshals complaint and fined 500 l. and that he was questioned likewise for moneys received by him when he was Chancellour for some Bishopricks and Abbies of which he had received the profits during their vacancies and that not finding the Bishops to be his friends he appealed from their Judgement but then the Proceres the Nobles though he appealed from their Judgement likewise yet they In eum nec confessum nec convictum sententiam intorserunt They wrested a Iudgement against him though he confessed nothing nor was at all convicted You see here is not a word of Treason laid to his charge nor nothing Capital or any thing towards it Matthew Paris tells you the same story and almost in the very same words Now let any man judge whether all those Historians concurring or single Fitz-Stephen disagreeing deserves more credit And that which hath greatest weight with me is the Argument drawn ex natura rei the crime which all agree that the Arch-bishop was charged with was his not appearing upon the Kings Summons which without a great and a very false Multiplying-Glass cannot appear to be any thing like Treason So I must conclude that since the Charge against him had nothing of Capital in it the proceedings upon it was not as against a Capital Offender not brought to Tryal as a Prisoner but came in upon a bare Summons and tarried there and returned at full liberty the Judgement neither of loss of Life nor Limb but meerly Pecuniary and as some of the Authors say compounded with for five hundred pounds I must I say conclude that this whole Case is nothing to our purpose and neither the Law nor usage of Parliament did bar the Bishops from being personally present at such a Tryal And now I come to the point of Peerage which I have so fully handled in my former Letter as I think I need not say much in this Our Asserter brings three Arguments to prove them to be Peers The first is That it is the general stile of all Parliaments from the beginning to be Generale Concilium Cleri Populi even before the coming in of the Normans which no man denies The businesses of the Church as well as of the Civil State are there determined the Writ of Summons shews it which saith That the King intending to call a Parliament Pro quibusdam arduis negotiis Nos Statum defensionem Regni Angliae Ecclesiae Anglicanae concernentibus Bishops and Temporal Lords are summoned and heretofore several others were summoned as Bannerets and sometimes other persons of Quality who likewise were not Peers and yet were called to the Parliaments as pleased the King and the Judges are so summoned at this day Super dictis negotiis tractaturi consilium suum impensuri Where the Bishops act as Bishops and what by the Law of the Land and the practice and usage of Parliaments they ought to do that they do and may do the Temporal Lords in like manner and so likewise the Judges every one acts in his Sphere but this neither gives the Bishops power to judge in Capital Causes if otherwise it be prohibited them nor doth it make them Peers no more than it did formerly the Bannerets and others for their being summoned to sit and vote in the House of Peers We had the experience of this the last Parliament a Baron pretending to a much ancienter station among the Peers by proving that his Ancestor had been summoned by one of our former Kings to sit more than once in the House of Lords yet not making it appear that that favour had been still continued to him and it being made appear on the other side that several Families in this Kingdom would have the same pretence upon the like ground it was the opinion of the House that he had no Right to it and consequently that his Ancestor was never acknowledged to
one nay some might have been obliged to attend upon one Cause of Summons exprest which were not upon another for if the King had an Occasion of transporting an Army beyond Sea in that case only they that held by the Service of going into forreign Parts together with such as were tied to general Service were obliged to attend and liable to pay Escuage upon their default to be taxed by them who were present according to the Obligation of their Tenure If the Tenure were to go into Scotland or Wales they could not by reason of their Tenure be compelled to go else-where whereas the Attendance at the King's Court ex more was what I take it lay upon every Tenant in Chief holding by Knights Service Ratione Tenurae and was not superseded by King Iohn's Charter but still they that were not present were concluded as to all Acts of the King's Court Baron either in Criminal or Civil Causes as much as in the Court-Baron of an Inferiour Lord the Suitors present may proceed to all Judgments within the Cognizance of their respective Courts where through the common neglect of the Suitors the Steward for the most part gives Judgment by himself Mr. W. who was the first Author of a Lawyer that ran Counter to me makes a distinction between a Parliament and a Curia Regis which I conceive to be without any difference in Relation to the several Powers of the Curia and the Great Council of the Nation except that 't was less in that which is now called the Parliament than 't was in the Curia for he says that to the Curia the Tenants were obliged to come Ratione Tenurae but to the other they could not come but ex Gratia Regis Upon which 't is further observable 1st That he yields that the Commons others beside the Tenants in Chief had as much right as the Tenants in Chief to come to the Parliament before the 49th Hen. 3. for he grants that they too came sometimes before that time ex Gratia 2dly Whereas he supposes that King Iohn's Charter of Resignation was void not being in Magno Concilio though 't was in Communi Concilio Faronum he assignes no reason in the World for it's being void for admit that to the Commune Concilium Faronum or Curia the Tenants in Capite came Ratione Tenurae and to the General Council of the Kingdom ex Gratia which he subjoyns as the Ground for avoiding that ignominious Resignation which he agrees with me contrary to Dr. Brady to have been made in the Curia Regis and not in the General Council of the Kingdom does it follow that because they had no Right to come to the General Council though they had to the Curia that therefore a Resignation in the Curia was not good nay does it not follow that because they had no Right to come to the General Council therefore the King might exercise his absolute Power in such a Counsel as he should think fit to call and might oblige the Nation in any Act of his done by such Advice or Consent Nay rather if there were a Counsel where they might ex 〈◊〉 be present which Mr. W. makes the same with Ratione Tenurae does it not follow that there would be less Obligation upon them from any Act done in the General Council of the Kingdom where they had no Right to be present and so no consent of theirs could be urged to inforce the Obligation than from the Determinations of that Counsel where they were necessary Members But Mr. W. his Grounds for his Belief that the Commons had no Right to come to the General Council of the Kingdom before the 49th of Hen. 3. are two 1st That in the 45th of Hen. 3. only three were ordered to be Representatives for every County the Year I take to have been mistaken by the Printer for the Settlement and Reformation of the Government which he mentions was in the 48th and that he means that Settlement and not one before in the 42d is evident by his citing Si videatur Communitati Praelatorum â—…ronum which is in the Record of the 48th and not in any of the 42d that I have seen But 't is evident by the Record that the three he mentions were assigned for the Electors of a standing Counsel to the King which was to act out of Parliament as well as in but with no Authority in Legislation besides admit that they were intrusted with all the Power of the Counties I cannot find any force in the Argument that because a Representative was then agreed on therefore they had no Right to come before that time in their own Persons But indeed in the 42d of that King there was a Representive of the Commons who were in those times accounted only the Citizens and Burgesses this was pur espargner les Costs des Communs to spare the Charges of the Commous which I use not to shew that all such came any otherwise than two for a place But that the settling a Representative is an Argument that before that time they came in greater Numbers 2dly His second Argument is the Authority of Pollidore Virgil which proves wholly against him for it says that the Populus rarely were consulted with before the time of Hen. I. Adeo ut ab Henrico primo id Institutum Iure Manasse diâ—…i possit Even he allows the Right of the Commons to be a constituent part of Parliament to have been an Institution or a settled Right long before the 49th of Hen. 3. no less than one hundred forty nine Years And in the Case of Godsoll and others against Sir Christopher Heydon my Lord Cook affirmed that he had seen a Record in the time of Hen. I. of the Commons Degrees and Seats in Parliament his words are these En Ancient temps tout le Parliament sea insimul le Separation fuit Par le desire del Commons mes â—…ent obstant ils font forsque un mese ieo aie veiw un Record 30 H. 1. de lour Degrees Seats That the Commons were Members of the General Councils of the Kingdom in the time of Hen. I I think is very plain when we find even at Synods Assemblies for Ecclesiastical Affairs Nobilitas Populusque minor and Laici tam divices quam mediocres But that they then had any Order and certain Seats there I cannot readily believe And indeed we find that in the Reign of King Stephen who immediately succeed Hen. I. 't is spoke of as customary for the Uulgus or Commons which were Infinita Multituto Plebis to come as Members of the Great Council and to intermix themselves with Men of the greatest Quality as 't is usual in Crouds Uulgo etiam confusè permixtum ut solct se ingerente 3dly Mr. W. his third Argument is that where a Record makes mention of Arch-bishops Bishops Abbots Priors
from me and hath much more of reason and something though not much more of civility and fairness in the maintaining of it so as whether or no his reasons will convince me I know not but if they do I will certainly grant it for my Maxime is still Amicus Plato amicus Socrates sed magis amica Veritas The Writer of this Treatise intituled The Grand Question concerning the Bishops right to vote in Parliament in Cases Capital Stated and Argued doth state the Question right that is Whether the Bishops may be present and vote Judicially in Capital Cases which come to be judged in Parliament either in giving the Judgement it self or in resolving and determining any circumstance preparatory and leading to that Judgement Then he sets down some things granted on both sides as 1. That Bishops do sit in Parliament by vertue of their Baronies and are bound to serve the King there From this he infers they have a Right of Judicature which is not denied but the question is as he saith himself what this Judicature is 2 That they sit by the same kind of Writ that other Barons do Upon which he would infer that they are impowered and required to confer and treat of all the weighty affairs that shall be brought before them the King having not limited nor restrained the one more than the other But it follows not because all are called together by the same authority that therefore the same duty is incumbent upon all if there be a higher power that directs what every ones duty is to do when they are come together Now the King acts in a higher Sphere by the Law of the Land and the law and practice of Parliament which prohibits Bishops from meddling with judging of Capital Causes in Parliament nor did they ever do it but in one extravagant proceeding in 28 H. 6. where nothing was regular nor Parliamentary from the beginning to the end which I look upon as altogether insignificant to alter what is so setled by Law and constant Custome therefore the Kings Writ of Summons cannot dispence with that to make that lawful which in it self is unlawful as I have sufficiently proved it And I will now go a little further in it than I did before for hitherto I have only insisted upon the Law of Parliaments as a thing setled in Parliament by the Constituons of Clarendon in Henry the Second's time and the Protestation of the Bishops enrolled in Parliament by the King Lords and Commons 11 R. 2. but now I will deliver my opinion which I submit to better Judgements that they lye still under a Restraint by the Canon Law which by the Statute 25 H. 8. c. 12. which was repealed 1 and 2 Phil. and Mar. but revived 1 Eliz. is still of force where it is not repugnant to the Laws of the Realm which we are sure this branch of it restraining Bishops from judging Capitally is not so far from it that it is confirmed and strengthened by the Law of the Land 3. The third Particular in which he saith all agree is That they have their Votes in Bills of Attainder acting in their Legislative capacity which is as much a Case of Blood as the other and perhaps as much forbidden by the Canon But I desire this worthy Person to consider that the Practice of Parliament is the Law of Parliament and is the commanding Law for regulating the Proceedings of Parliament and that hath over-ruled this Point that in the making of a Law every Free-man of the Kingdom doth give his consent either explicitly if he be a Member of either House or implicitly by his Representative for every Free-man of the Kingdome is there present or represented And it is the Fundamental Constitution of our English Freedome that no man can be bound by any Law but what himself hath consented to now a Bill of Attainder is as much a Law as any Statute Law of the Kingdom Therefore Bishops have acted in a Legislative capacity to judge and condemn Capitally as several Precedents we have of it in Henry the Eight's time but not in a judicial capacity And to say the Canon Law prohibits one as much as the other the Statute of 25 H. 8. clears that point which takes away the force of the Canon in the one not to abridge Members of Parliament from voting in the Legislative way and strengthens it in the other forbidding Bishops to vote Judicially in Cases of Blood Yet if you will have me deliver you freely my opinion in it I think it is an abuse crept in since Henry the Eight's time for before none were judged by Bill but such as had been slain in open War or Tryed Condemned and Executed by Commission and then the proceedings brought into Parliament and there approved of and the Attainder confirmed but under Henry the Eighth several persons were condemned by Bill and the Earl of Strafford lately in our memories which seems now to be authorized by the Practice of Parliament Sir Edw. Cooke tells a story which he had from Sir Thomas Gaudy one of the Judges of the Kings-bench how the King had commanded Cromwel and the Earl of Essex to attend the Justices and know of them if a man who was forth coming should be condemned by Act of Parliament without being heard who after some fencing answered if it were so it could not be afterwards called into question and Cromwel himself was not long after so served but this is by the way Multa quae fieri non debent facta valent I have been a little the longer in these particulars because it will much smooth our way in the following discourse And this worthy Gentleman must give me leave to say That he needed not have put himself to all that trouble of his first Chapter in telling us of the mighty power the Clergy had in the Primitive times in the ordering of Secular affairs which certainly was more by way of Counsel than any thing of Authority by way of Judgement and in a Judicial way And he will avow to me I doubt not that the ministery of the word was a full employment for the Apostles and so for Bishops who call themselves their Successors as well as serving of Tables and other ministerial duties was a full employment for those whom he calls the Treasurers of the Church and therefore they said it for themselves and left it as a Rule for their Successors even to Bishops and all other dispencers of the Word and Sacraments that it was not reason they should leave the Word of God and serve Tables Which it seems was a Non est Consonum by the Law of God just as by the Common Law of the Kingdom a Writ was provided declaring it to be likewise a Non est Consonum and to be Contra morem Consuetudinem Regni that Clergy-men should be employed in Secular affairs This indeed I hinted at then as I gave also some little touch at
Law be what it will it cannot bind the King's Hands from making use of any of his Subjects in what he pleases though the Employment be forbidden by Law This is the Meaning our third Author gives of this Constitution and much good may it do him Our last Author in his Grand Question comes next to be examined in which I shall be more large because in him is concentred what the rest have said and his Cause defended with much Learning and variety of Reading He names the Constitutions of Clarendon and the Protestation in 11 R. 2. as the two main Laws against him The Constitutions of Clarendon which were no more than a Recognition of the ancient Laws and Customs of England not made but revived by Hen. the First and now confirmed by his Grand-son Hen. the Second he considers as the most material and is content this Cause should stand or fall by them He tells you the Constitution in Debate is the eleventh in number of which the Words are Archiepiscopi Episcopi universae Personae regni qui de Rege tenent in Capite habeant Possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis Ministris Regis faciant omnes consuetudines Regias Et ficut ceteri Barones debeant interesse Iudiciis curie Regis quousque perveniatur ad diminutionem Membrorum vel ad Mortem After the Words he gives us the Translation of them made by the Author of the Letter in the following manner The Arch-bishops and Bishops and all the dignified Clergy of the Land that hold of the King in Capite shall hold their Possessions of the King as a Barony and answer for their Estates unto the King's Justices and Ministers and shall observe and obey all the King's Laws and together with the other Barons they are to be present at all Judgments in the King's Courts till it comes to require either loss of Life or Member But pray Sir why did you not rather give us a Translation of these Words of your own If the Author of the Letter have made an imperfect Translation why did not you mend it I believe if this Author had found it would have advantaged his Cause some Exceptions would have been taken to the Translation I shall by and by give the Reader a full account of the true Sense of the whole Period but will first make appear the Unreasonableness of the Exposition he makes of the last Clause of it Et sicut caeteri Barones debent interesse judiciis Curiae Regis quousque perveniatur ad diminutionem Membrorum vel ad Mortem The Meaning he conceives to be That the Bishops are required to be present in the King's Courts as other Barons are till they come to give Sentence as to dismembring or loss of Life Why he translates Curiae Regis in the plural Number the Kings Courts which is in the singular the King's Court and in this place hath always been understood of the High Court of Parliament in which the other Barons had an Interest to be present as Judges and in which Sense it is very often taken as is made clear by Mr. Petit in his learned Discourse of the ancient Rights of the Commons of England Pref. pag. 45. out of Gervasius Dorobornensis pag. 1653. who speaking of the Election of Arch-bishop Lanfrank hath these Words Eligentibus eum Senioribus ejusdem ecclesiae cum Episcopis ac principibus Clero Populo Angliae in Curia Regis in assumptione Sanctae Mariae and another Author saith it was Consensu Consilio omnium Baronum suorum omniumque Episcoporum Abbatum totiusque Populi Angliae commisit ei Dorobornensem ecclesiam That this was a Parliament we have little Reason to doubt and that it was called Curia Regis See also Inter com T. Hill 17 E. 3. penes remem in Scacc. 29. 32 H. 3. mem 12. 13. in dors rot claus Consideratum fuit in Cur. nostra toto Parliamento nostro c. Wherein Cur. Regis totum Parl. are but expressive of the same thing and not two Courts as I think I very well know that Curia Regis had various acceptations sometime it signified that Court of Justice that at those times followed the King's Person sometime it was taken for Aula Regis where Entertainments and Feasts were made as we read often in our Historians but I take it here to be understood of the High Court of Parliament for the Reasons before touched and many others if any shall seem to doubt of it Next why doth he leave out Judiciis whereas the Words are The Bishops as the other Barons ought to be present Judiciis curiae Regis in Trials in the King's Court viz. the Parliament he renders they are to be present in the King's Courts To help himself under the covert of an ill Translation savours not of that candour justly to be expected from so learned a Person and one that seeketh after Truth rather than Victory but since this Author is a subtile and no loose Writer give me leave to guess at the Reason of it He saw plainly that had he fairly rendred the Words The Bishops as other Barons have Right to be present in all Causes Sentences or Judgments in the King's Court or Parliament till the Cause Sentence or Judgment come to concern Life or Member the Word Judiciis in the plural Number must have referred to other Judgments in other cases and then the latter clause till Judgment or Sentence came to concern Life or Member would have been clearly restrictive as to cases of Blood for to be present at the Judgments of the Court till Judgment is Non-sense except the Words be applyed to different cases Now this Interpretation would have quite destroyed his main Undertaking who at last gives a Sense of the Words not only coincident with that given by the Author of the Bishops Rights to which I have before spoken but contrary to the Votes of the Lords in Parliament who though they seem to admit their Presence in the hearing such a case yet will not admit them to have any part or voice in the judging of it Beside I must needs take notice that 't is a strange Translation of the words Quousque perveniatur or in judicio perveniatur ad diminutionem Membrorum vel ad mortem Till they come to give Sentence when the Words more naturally import till Judgment may be fulfilled in the cutting off of Member or Life which is Execution But I shall anon give him a more proper Translation of the Words in the mean time will consider all his Subterfuges and cunning Evasions by which he would give colour to his Interpretation First from the occasion the Author of the Letter pag. 73. had said The Prelates affected a kind of Omnipotency he conceives the Author means in Judicature and I conceive he made that Supposition because he judged it for his Advantage to suppose so
Canons when 't is for our Advantage to break them I might now proceed to the Examination of his Iast Head How far the Canon Law is at this day binding But because I would not leave any thing untaken notice of he thinks fit to make use of for the strengthening his Cause I shall speak something to what he farther urgeth He tells you out of Knighton That this Parliament was called Parliamentum sine Misericordiâ and that many Circumstances concurred which might make the Lords willing to admit of their Protestation because their business might proceed better against the King's Ministers He need not have urged Inducements to perswade the Lords to admit of their Protestation except he had first shewed they had Power to have refused it But by this Inducement he insinuates that the Bishops would probably have obstructed Justice against those wicked Ministers about the King What the Accusation was for which some of them were executed I shall let you seek in the Historians of those times being unwilling to rake into that Puddle any deeper I shall therefore leave this Parliament and the mysterious Canons as our Author well calls them and come to the Anti-Parliament to this held in 21 R. 2. where as he saith the King had a Mind to undoe what was done in the Parliament in 11 R. 2. which Intention this Author saith he had kept in his Mind ten Years by being willing to let the Bishops be absent in 11. that he might have that pretence to Question in this Anti-Parliament the things then done An undecent Charge he lays upon the King if it be well considered The Declaration by help of the Bishops that the King's Pardon granted in Parliament in 11. was revocable by the King was the Labour of his Ministers in 〈◊〉 which those Ministers prevailed in 〈◊〉 Measure but their Actions with 〈◊〉 â—…cceeding Murther of the D. of Gloâ—… the King's Uncle bred such a Jealousie and Distrust between the King and his People that I may call it the first Stone which left not rolling till it ended in the Ruine of that poor Prince who continued not King much more than a Year after and was soon after the Deprivation of his Crown deprived of his Life also What Art was used to make that Parliament subservient to their ends I need not tell you One of the first Attempts was what I touched before to make Pardons granted by the King in Parliament revocable at his Pleasure in this the Clergy were very instrumental After this the Commons come to do their Parts and they represent that divers Judgments had been undone heretofore for that the Clergy were not there present and therefore pray they might appoint some common Proctor with sufficient Authority to that Purpose From hence he infers two things First That the Commons thought their Presence necessary because Judgments had been undone for want of it Therefore their Concurrence in Judgment was thought necessary to make a Judgment valid Secondly That they should therefore make a common Proctor This is strange Logick Their Presence was thought necessary and Judgments undone for want of it therefore they ought to be present I think ought to have been the Consequent but the Commons pray that in that respect they should make a Proctor I should think now the true Inference ought to have been The Bishops and Clergy ought not to be personally present in Cases of Blood yet because it is fit they should be represented at least in some Cases let them nominate a common Proctor to be in their stead where their Concurrence is necessary This is Sense the other is contradictory 'T is evident by this Petition of the Commons that matter of Blood was to be treated of for there needed no Proctor for any other use since themselves might have been present And I think it very clear by the Year-book in 10 E. 4. that when Issue was once joyned 't was their Duty to absent themselves For that Book is that the Peer questioned may plead not guilty and then the Bishops to depart so that it is plain they were not to vote after Issue joyned in matters of Blood So Hakewell in his Modus Tenend pag. 84. before cited saith That to our days when Question is had of the Attainder of any Peer the Bishops are to depart Now I take the Law to be all one what â—…ue is joyned in a Capital Accusation so as there be any upon which the Court may proceed to Famination of the Cause and to Judgment accordingly As to our purpose in the case of the 〈◊〉 of Danby he pleads the King's Pardon the King's Counsel or the Commons demur The matter then in Issue upon the Demurrer is whether the Pardon is good in Law upon which the Bishops according to 10 E. 4. are to go out because if the Pardon be found invalid then must Sentence of Death be pronounced against the Criminal for I take the Law to be That the pleading a Pardon in Bar upon an Endictment or Impeachment is a Confession that all the matters contain'd in the Endictment or Impeachment are true and he shall never be admitted to plead Not Guilty afterward But this by the way Our Question is about the Commons Petition that they would make a Proctor which being in matter of Blood the Author of the Letter saith was the only time whether this was Error temporis as one saith the Error of that time or an inconsiderate rash Desire of the Commons as another is not necessary to enquire for it doth not appear that any Capital Judgments had been reversed by reason of their Absence so that their desire fails in the ground of it if they meant of Capital ones for the first Judgment against the Spencers was affirmed in 1 Ed. 3. and the Reversal made 15 Ed. 2. was made null so that the Commons it seems were ignorant in that and might be unadvised in the rest as they sometime have been Beside if he consult Sir Edward Coke in his 2 Instit. cap. de Asportatis religiosor pag. 586. he doth well excuse the Commons in shewing that the Bishops were present at the Charge against the Spencers in 1 Ed. 2. so that the Commons might not know how far the Bishops were conusant of the thing and looking only on the out-side were ignorant of the Act in 1 E. 3. for the Discourser saith there were no more No replyes the Grand Questionist not in his Study but the Commons might know of more for we have not all the Rolls What then This at best is but a Surmise and the two Judgments against the two Spencers were enough to make their Allegation true that divers Judgments had been reversed for that cause though it be not to excuse their Ignorance in not knowing that the first Judgment against them was revived by the Statute of 1 Ed. 3. And it seems strange to me that he that had so much
when they might have been others that they were present when by his own Rules they should have been excluded either therefore the general words where they are not mentioned do not enforce their Absence or that they oughtto have been excluded at some other Trials where the Author of the Letter admits they were or might have been present The chief Case he instanceth in is that of Michael de la Pool Chancellour of England who was accused of many Misdemeanours by the House of Commons and as I think he would infer such as Thorp Chief Justice was found guilty of being Capital where the Author of the Letter saith the Bishops were not present yet allows them to have been present in the Case of this Chancellour a parallel Case as he saith with that of Thorp either therefore saith our Author they might have been present in the Case of Thorp or they should have been absent in Trial of Pool This is his Argument as near as I can gather out of his Words put together something obscurely I need give no other Answer to this than to lay before you the words of the Record This Accusation was exhibited by the Commons in 10 R. 2. against Michael de la Pool Lord Chancellour in full Parliament before the King Bishops and Lords and six Articles were objected by them against him The first was That he purchased Lands of the King of great value whilst he was Chancellour the other five as the Record saith were only Quarrels and of little concern To the first and most considerable the Chancellour put in a fair Answer the Commons reply and urge things to the utmost and amongst other things say That whereas by the Popes Provisions a Person was recommended to the Priory of St. Anthonies he the said Chancellour would not suffer him to be admitted till the Grantee had contracted to pay to the Chancellor and his Son 100 l. yearly and then parallel this with Thorp's Case and would have had the Chancellor in the same fault with Thorp for Bribery as a Judg and consequently incur the same Judgment The Chancellor replies and shews great difference between the Cases Upon the whole matter Judgment was given against him pursuant to the Accusation for Misdemeanours only in which the Bishops were and might be present and the parallelling it with Thorp's Case was only in the Management of the Cause by the Commons and no part of the Accusation Neither is it reasonable to believe that which our Author asserts in the same Page that the Prelates were free Agents and might withdraw at some times and be present at others as they saw cause For beside that this is contrary to the express Law of Clarendon which expresly declares that 't is their duty to be present in all Proceedings in Curia Regis which in that place must be understood of the Parliament because they were to be present with the other Lords tho I know that Curia Regis is sometimes taken in a more laxe Sense for all the Courts in Westminster are the King's Courts and unto which they were to give Obedience and Attendance in Cases not prohibited I say over and above this Act at Clarendon it seems to me very unreasonable to suppose that such a Body of Men had liberty to give their Attendance when they pleased without leave of the House or cause shewed why 't was fit they should be absent or that the Author of the Letter meant more when he saith they might have been present than that they were not prohibited by the Law of Clarendon which only had Relation to Matters of Blood But these Men had other Canons to go by when they thought fit as well as those of Toledo and 't is probable enough that the rest of the Noble-Men finding them most constant Factors for the Pope were willing enough to let them be absent upon any colourable Pretence when they desired it Is not one clear Precedent against them in point of greater weight than many dubious and equivocal ones which cannot without great Art be wire-drawn to speak to their advantage Let him consult the Discourse of Peerage pag. 17. The Case of the Earl of Northumberland 7 Hen. 4. Rot. processus cor Dom. Rege in Parl. in 5 Hen. 4. This Noble-Man came into Parliament and confessed before the King and Lords that he had done against his Allegiance in gathering Power and giving Liveries this Fact by the Lords was adjudged no Treason for which he gives Thanks to the Lords his Judges and a day after the Commons do the like where the Prelates are named as our Author affirms and to which I shall speak by and by But in 7 Hen. 4 the same Earl was in actual Rebellion in the North and his Forces dispersed by the Earl of Westmarland but he and the Lord Bardolf fled into Scotland the rest were most of them taken Prisoners This Case came into Parliament where the King commands the Lords Temporal Peers of the Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and Lord Bardolf Nothing can be plainer than that the King look'd upon the Lords Temporal as those Peers who were proper to give Judgment touching their Fellow Peers who had fled from Trial in a case of Blood The Record goes on the said Lords advised thereupon and gave Counsel to the King Then the said Lords Peers of the Realm by assent of the King order summoning the said Lords to appear at a day given or to stand convicted by Award of the Peers in Parliament The King farther demanded the Opinion of the Lords Temporal touching the Arch-bishop of York who was in the same Treason The Lords Temporal by the Assent of the King and by their Authority declared and awarded the said Earl and Lord to stand convict of Treason for not appearing upon Summons 'T is very clear that this whole Business was transacted by the Lords Temporal without the Bishops and with the Concurrence of the King 'T is not to be believed that the Bishops would have sate quiet had they thought themselves wronged in these Proceedings See the Discourse of Peerage pag. 17 18. I think it hardly possible to find a more clear Record in the Point than this is First here were two Noble Lords defeated in actual Rebellion and fled from Justice into Scotland The King upon this would not so much as consult with his Prelates knowing them by Law no proper Counsellours against Peers in matters of Blood applies himself to his Lords Temporal they order Proclamations by order of the King enjoyning the said Lords to appear at a day certain or to stand convict they not appearing are by Award of the Lords Temporal convicted of Treason and a Year after one is slain the other mortally wounded at Bramham-moor in York-shire Can any thing be more agreable to the Practice at this day against Men that fly from Justice and
are convicted for non-appearance He must have a new way of reasoning who considering that in 4 E. 3. the Earls and Barons are declared those Peers to whom such Judgments belong that in 5 E. 3. the Prelates declared that in a Case where Blood might be it belonged not to them to be present that in 7 R. 2. the Temporal Lords were only concerned in a Case where the Accusation was Treason with many other Cases that in 1 Hen. 4. the Lords are declared Judges in such matters that in 2 Hen. 4. in a like Trial or Judgment the Temporal Lords are all named who were the Judges that now in 7 Hen. 4. the Temporal Lords are again declared Judges and after all this that the Prelates should be deemed proper Judges in Cases of Blood upon bare Surmises and no direct Proof seems to me to savour of a Man wedded to an Opinion which he resolves to maintain when at last tho Precedents confirm what the Law is 't is that must determine the Controversy This I say in Relation to what Mr. Hunt objects This Precedent may in part serve to give answer to those Arguments drawn from the Identity of Names to the Identity of Right The Bishops saith the Grand Questionist are sometimes comprehended under the name of Grands Seigneurs and Peers therefore their Right is equal to all others who enjoy those Names How he attempts to make this good we shall see anon But first let him consider how weak a way of arguing this is we know nothing is more equivocal than Names Many are called Lords who had once that Name as Embassadors Chief Justice c. or such whose Fathers are Dukes so Earls Eldest Sons yet are indeed but Commoners so Baronagium comprehends all the whole Parliament Barons there are of the Cinque-Ports of the Exchequer and of some chief Towns as I have noted before from Mr. Selden so we are not to judg the Right from the Appellation but govern the Appellation by the Right The first Precedent he urges is pag. 96. where in 4 E. 3. an Act passed for Trial by Peers Cotton Numb 6. 'T is agreed unto by the King and all the Grands in full Parliament that tho the Lords had tried some who were not their Peers upon Accusation by the King in a summary way against Law it should be so no more If the Bishops were here comprehended under the Name of Grands so were the Commons too if it should be an Act of Parliament will he hence infer that the Commons have an equal Right with the Lords because they all are called Grands Who were esteemed Grands or Magnates see Matth. Paris in Anno Dom. 1100. Inhibitio ne qui Magnates viz. Comes Baro Miles seu aliqua alia notabilis Persona c. Here you see under Magnates are taken Earls Barons Knights or any other Person of Rank So Milites Comitatuum and Barones quinque portuum are called Magnates inter com brevia de term sctae trin Sct. Mich. An. 34. E. 1. penes rentem Dom. thesaurarij in Scaccario he that desires more let him consult Mr. Petyt's Learned Discourse of the ancient Rights of the Commons pag. 93 94. and in sundry other places I think therefore I may safely conclude this Point That where Grands are named alone there not only the Bishops but the Earls Barons Judges and Commons might be comprehended but where the Grands are mentioned after the Earls and Barons there the Bishops who ought first to be named shall never be taken in secondarily and by Implication Neither is it any thing to our Question whether it were for their Honour to be absent in some Cases as he intimates pag. 100. in the Case of Roger Mortimer but what the matter of Fact was Pag. 112. He would comprehend the Prelates among the Peers because in 4 E. 3. N. 3. The words are All the Peers Counts and Barons assembled in Parliament upon strict Examination do assent and agree that John Mautrevers is guilty of the Death of Edmund Earl of Kent Here he would infer that the Prelates were present at the Examination of that Capital Crime under the name of Peers because at that time there were no Dukes nor others of Superiour Degree to Earls but he doth not consider that the word Peers in this place doth only denote who those Peers then mentioned were Peers viz. Earls and Barons not Bishops as before Magnates viz. Comes Baro Miles c. As when we say a Noble-Man is to be tried by his Peers we understand only those that are truly so and not others that sometimes may be called so this is much cleared by the Record 2 Hen. 4. N. 30. The Lords Temporal by the Assent of the King adjudged Thomas Holland late Earl of Kent Iohn Holland late Earl of Huntington and others Traitors this Judgment was after the Parties were dead and but the second Successor after Edward the third Why did not now the Prelates come in and claim their Right Certainly they would have done it but that they knew the Law and Practice was against them what else is material in this Chapter hath been taken notice of by the Author of the Letter and others so that it needs no further Examination and I may safely conclude that where the Prelates are not named they are not understood Now that in this case the Bishops could not be meant by the word Peers is very plain from the Record it self For the fore-named Iohn Mautrevers being not in hold the said Peers do pray our Lord the King that search should be made for him throughout the Realm and a Reward promised Now if the Bishops were meant by the word Peers alone for Earls and Barons are named witness the Peers Earls and Barons then by Parity of Reason the said Peers should be meant only of the Bishops as if they alone had made the desire for the Apprehension of the said Matrevers and the Earls and Barons had been unconcerned which is absurd See 4 E. 3. Mem. 3. N. 3. Seld. Baron p. 13. Our Author concludes his third Chapter with the Case of Henry Hotspur the eldest Son of the Earl of Northumberland who for having levied War with others against the King was declared a Traitor being before slain in Battel by the King and Lords in full Parliament this was upon Friday the 18th of February upon the same Friday upon that Case and the Petition of the Earl Father to Henry and Examination of his Cause by the Lords as Peers of Parliament to whom such Judgment belonged for the King would then have referred the whole matter to the Judges he was declared innocent of Treason or Felony but only finable for Trespass at the King's Pleasure for which the said Earl gave Thanks to the King and Lords for their rightful Judgment and also at the same time purged upon his Oath the Arch-bishop of Canterbury the Duke of York
bring in the Chancellour and Treasurer and such like Officers and that all Estates should enjoy their Liberties 15 E. 3. N. 6 7 8. Here was indeed a Matter concerning Trials of Noble-Men had under Consideration but never reduced to any Law as the Practice of subsequent Times and the late Bill of the Lords about Trials do enough manifest But doth it not appear by this Record that the Bishops were not reckoned Nobles of the Land when he finds the Chancellour and Treasurer and such like Officers attempted to be brought in at that time and so not to have had any Right before But saith our Author it after follows that they may not lose their Temporalities Lands Goods and Chattels Now none were capable to lose their Temporalities but Bishops therefore this Law must have respect to them as well as other Nobles of the Land The Answer to this is very easy that the Clergy who had then all Power did endeavour to bring in their Fellows the other great Officers who were almost all Church-men Simon Langham Arch-bishop of Canterbury was Chancellour William Molso Dean of St. Martins le Grand Receiver and Keeper of the Kings Treasure and Jewels with many others as you may find Baker p. 141. These had Temporalities to lose and such Officers the Church always hoped to have had of their own Tribe but as I said before of this Attempt came no other Effect than to shew their aspiring Thoughts And whatever Opinion the Author of the Iurisdiction of the House of Peers is of as to the Roll of 4 Edw. 3. I believe the Law at this day will not be so taken that a Chancellour being no Peer shall be so tried by reason of his Office I am sure my Lord Keeper Bridgman being no Peer never voted in the House of Lords and the present Lord Chancellour when he gives his Vote goes to his place as a Baron See Hakewell p. 114. Ancient Customs how these great Officers are placed in Parliament when they are Peers and when not and certainly if their placing be different their Trials ought to be so too Neither can it seem reasonable to any considerate Man that a Person though such an Officer should not be capacited to give his Vote as a Baron and yet by virtue of his Office should be tried by Noble-Men Therefore I must take leave to deny what he affirms that they are Peers by virtue of their Office or that they have Right to be present in Parliament in all Cases of Judicature so as to concur in Sentence with the Nobles of the Land as our Author affirms pag. 132. The King may make whom he pleases Chancellour and the Statute assigns his Place but he cannot vote there without the King's Letters Patents to that purpose as I conceive See Old Modus Hakewell p. 14. I have in the first Chapter of this Treatise spoken largely to that Point and shewed in what sense a Bishop may be called Peer of the Realm And pag. 90 and 91. have handled the matter of Proxies therefore may pass over the Case of Arch-bishop Arundel which our Author proposes pag. 128. To the Case of William de la Pool I have spoken before only shall here observe that the submitting his Cause to the King was no waver of his Peerage for the matter never came to any formal Issue consider thâ—… Case of Nicholas Segrave in 31 Edw. 1. Ridley p. 266. who being accused of many Crimes Segrave being summoned thereunto appears in full Parliament confesseth the Fact and submits to the King This was no Waver of any Legal Trial by his Peers nor any disrespect to the Lords who might otherwise have ordered the summoning a Jury to try the Fact but by the King's Pardon that labour was saved The like may be taken notice of in that famous Case between the Earl of Hereford and Essex against the Earl of Glovester and Hertford in 20 Edw. 1. Riley p. 74. Where upon a very long pleading the Case in effect proves to be but this The Earl of Hereford complains to the King of great Robberies Depredations and Murthers committed by the Earl of Glocester in his Lands in Brecknock after the King's Inhibition The King for Remedy of this appoints the Bishop of Ely William of Valence his Uncle Iohn Mettingham and Robert Hertford to hear the Complaints of the said Earl and also the Answer of the said Earl of Glocester and his Servants to the Complaint of the Earl of Hereford and to summon a Jury for the Trial of the same and also commanded Robert Tiptoft Iusticiario suo de Westwell to be there present and to summon the said Delinquents to be before the said Commissioners and that Enquiry should be made per Sacramentum tam Magnatnm quam aliorum proborum Hominum Legalium de partibus Walliae comitat Glocest. They that is the Magnates which it seems were Noble-Men excepted against the taking an Oath and said 't was unheard of and that they would do nothing sine consideratione Parium suorum The Jury give in their Verdict against Glocester the Parties all submit to the King who by the Advice of Arch-bishops Bishops Earls Barons and the rest of those who were of his Counsel declare that the Earl of Glocester had forfeited his Liberties c. The words are Videtur tam ipsi Dom. Regi quam caeteris Praelatis Magnatibus reliquis de Consilio ejus quoad Comitem Glocestriae quod Libertas sua praedicta viz. totum Regale in Terris suis praedictis de Mergannon cum pertinentiis pro se haeredibus suis foris facta est ratione delicti praedicti c. In this Record there are many things Observable First The Bishop of Ely here mentioned was not a Judg in this Case between the two Earls but joyned in Commission with others who were empowered to summon a Jury to enquire of the matter of Fact not to condemn either Party but was only in the nature of an Inquest or Grand-Jury in order to a Trial. 2. That Noble-Men Magnates such as refused to take an Oath were returned of the Jury 3. That the Verdict was given in to the Commissioners notwithstanding some of the Jury were not sworn 4. That the Jury was summoned out of several Counties viz. Glocestershire and Wales Lastly and that for which I have chiefly produced it that this Submission of both Parties to the King was no waver of their Peerage Neither doth it appear that this Award made by the King with the Consent of those Prelates Earls c. was made in Parliament tho it be inter Placita Parliamentaria but only by such private Counsellours as the King thought fit to make use of in that Affair That it was no Parliamentary Judgment is evident from these two Reasons First The putting themselves to the Reference of the King was no putting themselves upon any Trial by their Peers because that should have been done only
than the Suitors at the Curia being Summon'd The Legislative power they exercised as Members of the General Council or Parliament And the Iudicial power as Members of the Curia and were Members of the Curia as they held Lands of the King in Chief Whereas Men came to the Parliament generally upon the account of property in Land without consideration of tenure so it were free In short a Man may have that in an extraordinary capacity in Parliament which he has not there in an ordinary I likewise held that Becket was try'd for Misdemeanors only though according to the Language of those days they were crimina Laesae Majestatis and that the Tryal was in a bare Curia Regis when no more than Suitors to that were summoned Mr. Hunt 's Argument upon this follows If it was the Curia Regis wherein the ordinary Justice of the Nation was administred and not the Parliament was intended in the Assize of Clarendon in which the priviledge and indulgence under the quosque was allow'd to Bishops then the Assize of Clarendon is unduly urg'd against the Bishops judging in Cases of Blood in Parliament c. And consequently by the Assize of Clarendon the Bishops have no leave to withdraw If the Court wherein Thomas Becket was tryed was the Curia Regis then the Bishops judging in that Court in that cause doth most clearly declare that being a case in point that the quousque was an indulgence which they might use or wave Now to my thinking this seeming irrefragable Argument has no real force For not to mention his wrong interpretation of the Constitution of Clarendon nor yet his mistake of the Fact in relation to Becket 's Tryal as if he were Tryed for a Capital Offence In both which I doubt not but he will receive Conviction to the contrary from these two Learned Authors I am bold to say that there is no manner of consequence in the first Branch of his Dilemma which is the only thing that can lye upon me to answer And truly I conceive that it by no means follows that because the Curia Regis in the Constitution of Clarendon is not the whole Parliament but only that Court which either when a Parliament was held or when only a Council of Tenants in Capite or Lords assembled had the sole exercise of the Judicial Power that therefore Iudgements in Parliament before the Lords such as were Members of the Curia are not affected by that Constitution any more than we can now say the House of Lords cannot be concerned in any matter which does not belong to the whole Parliament I shall only add three Observations which may go far to put an end to this Controversie 1. That part of the Constitution of Clarendon which says of the Ecclesiastick Tenants in Chief Debent interesse Judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem was part of the avitae consuetudines ecclesiasticae If it had been a New Law then indeed whatever was not expresly forbidden were matter of Liberty But it being only in affirmance of the Ancient Law their Liberty went no further than the usage which was to be present only till such Causes came to be tryed 2. If Precedents are as Mr. Hunt censures them like an Oracle that will always give a Response agreeable to the Enquirer and Consulter then we must as I formerly did look to the Law in the Case without entring into the large Field of Precedents 3. If the Canons require the Bishops not to concern themselves in the Tryals of Capital Causes and those Canons have been sufficiently received to become the Law of the Land which these Authors prove undeniably then the Bishops must ever be supposed to have been absent when such matters came in question in Parliament unless they are mentioned there by name and cannot be comprehended under words common to them with the Temporal Lords any more than we can imagine that the Popish Lords who are excluded the Lords House by Act of Parliament yet still are Peers are Parties to any Judgement given by the Peers there SIR THE former trouble I gave you upon this Subject you pulled upon your self by desiring my opinion in it but for this I now give you I must beg your pardon it being singly upon my own account to do my self â—…ht and justifie what I then wrote to you against several aspersions cast upon me in a Pamphlet entituled The Right of Bishops to judge in Capital Cases in Parliament c. made it seems by the same person who had set out the other Pamphlet intituled The Honours of the Spiritual Lords asserted c. Of which I gave you some account in a Postscript to my former Letter and I think without any sharp reflection either upon that Author or his work The most I said was When I had instanced in three notorious falsifications of his The first is p. 112. where he quotes Mr. Selden to prove That the Spiritualty made their Proxies in Capital Causes in more Parliaments than the 21 R. 2. for that they did it likewise in the 2 H. 4. and 2 H. 5. which I shew was a mistake and only said he could not find it so in the Record it self but that he took it upon trust out of the Margin of Mr. Seldens book of the Priviledges of the Baronage p. 125. where there is such a quotation of the 2 H. 4. and the 2 H. 5. but wholly misapplyed by our Assertor of Honours for Mr. Selden alledges that Precedent to shew that whereas 2 H. 5. it was by the then Earl of Salisbury assigned as an error in the Attainder of his Father who was condemned of High-Treason in the 2 H. 4. because it was done Sans Assent des Prelates which are the words of the Record Without the Assent of the Prelates by the way speaks nothing of Proxies it was then adjudged to be no error and his Petition rejected which in truth is a strong Argument to prove that the Prelates had no right to be present at such Tryals and Judgments which is the main Question between us And though he being of another mind had maintained his opinion by so gross a prevarication I was so far from retorting it upon him with any bitterness saying It was disingenious and a suppressing of truth and not setting things down faithfully which is his ordinary language concerning me Or with insipid jeers saying I wear a sharp Sword a Trenchant Toledo as one of the younger house of great Alexander and that he brings me to the Sun like Alexanders Horse and telling of the Magical combate in Apuleius and a City of Birds in Aristophanes and such other scurralous passages as his Book is full of which shews the sweetness of the Gentlemans nature and the goodness of his cause which he maintains only by railing and false assertions Whereas I rather lessened his fault saying only that he was mistaken by being
demand for I do very well know what judgments the Commons did then not intend which were all Judgments in Capital Cases for it is most clear by all Records of Parliament and all the vestigia that remain with us of the usage and proceedings of antient Parliaments that there is not the least colour for so much as a doubt or a suspition that the Prelates or Lords Spiritual could have any part in those Judgments And we know on the other side what judgments they had their shares in which were all Judgments in such Civil Causes as came into the Parliament and in Criminal Causes that were not Capital and the Commons then could intend none but these which was enough to satisfie me that this Petition of theirs at that time was no wayes contrary or repugnant to what I maintained And by the way methinks it is worth observation the reason they give of their desire that the Bishops would make a Proctor not so much for that that their presence there was of so absolute necessity as that what was done without them was in it self null and void but to put an end to all controversies which shews the Prelates had expressed some dissatisfaction and had gotten some things which had been done in their absence to be undone and Repealed which considering their power at that time and how all the Laity was in awe of them would have a great effect upon mens minds and make them do what else they would not have done and perhaps strain a point a little to satisfie them And still it shews that notwithstanding their absence they were good and valid till the same power that had made them did Repeal them And to shew what an ascendant the Prelates had over King and Parliament and the whole Kingdom at that time see what they did but the year before 20 R. 2. They declared unto the King in open Parliament That they were sworn to the Pope and See of Rome and if any thing were in Parliament attempted in restraint of the same they would in no wise assent thereunto but would utterly withstand the same and can we then wonder if the Commons were not very loth to displease them and willing to comply with them much rather than have a controversie with them and perhaps be fain at last to undo what they had done His fourth Postulatum is upon the Protestation of Viscount Beaumont in the name of the Lords Spiritual and Temporal in the Case of William de Pole Duke of Suffolk which hath been touched upon before wherein he now saith I have left out the most material words but what they are he expresseth not nor can I imagine what he means As I have already said I have been very particular in setting down every circumstance of the whole proceeding acknowledged the actings of the Prelates in it thoroughout as far forth as the Temporal Lords and then I say how upon the Kings giving Judgment upon the Duke that Viscount in the name of the Lords Spiritual and Temporal made that Protestation That it should not be nor turn in prejudice nor derogation of them their heirs ne of their Successors in time to come I think this was sufficient to shew that I did acknowledg all that could be pretended to for the Bishops Judicature in that business and what this Assertor would have more and wherein I have failed I can not imagine only I see he is a quick-sighted Gentleman and can see further into a Milstone than another man and spy a fault which another cannot see He hath a fifth Postulatum to whichI can say nothing for I understand not what he would be at he speaks of my accurateness in making a distinction between the Matter andForm of a Law and then saith He observes three things though he expresseth but two which he saith he shall have occasion to make use of hereafter when he comes to speak of the particular Cases and I must refer my Answer to what I shall there find when I believe I shall make it appear that he makes no great use of them nor of any other Argument that he brings And now I come to the particular Cases the first is 4 E. 3. of Roger Mortimer Earl of March being then condemned for Treason Here our Asserter saith That by 28 E 3. upon his Cousin Roger of Wigmore's petitioning to have this Judgment and Attainder reversed I acknowledg it to be an Attainder If I say truth say nothing to the purpose This is gentile language and which discovers my Gentlemans ignorance as well as his rudeness his ignorance in conceiving an Attainder to be only by a Law by an Act of Parliament in which Bishops may be present and if they were not so but did withdraw it was their own voluntary act and no diminution to their Rights I have already upon his second Postulatum handled this point so fully and made I think both his errour and the truth so clear as I need not say any thing more to it here Then it is a pretty Argument he brings against my saying That the Record being Les queur Counts Barons Piers les Articles per eur eramine rebindrent c. Which Earls Barons and Peers having examined the Articles returned c. It must be inferred that the Bishops cannot be comprehended under the word Peers since the Barons are named first To this his Answer is Well but I find the contrary Peers many times put before Barons particularly in Mr. Selden's Baronage p. 12. then he cites a Record of the Judgment against John Mautravers where it is said For which the said Peers of the Land and Judges of Parliament adjudge and award c. Doth this at all contradict my quotation of the Record in Roger of Mortimers Case but that it is as I say That the general word Peers is there put after the Barons and being so cannot comprehend Bishops because in some other Records that word is put before He talks of drawing arguments illogically I am sure this is so I would put him a Case he brings his Action of Slander against one for that at such a time in such a place he had spoken ill of him and said he was a lying Knave and other words that will bear an Action and proves it by witness That man proves by other Witnesses That at another time and in another place he had spoken very well of him and said He was a fine Gentleman I ask now if he would be satisfied with this and not stand upon it that he had proved his Plaint and expects a Verdict and Judgment upon it So may I say that my Precedent stands good and proves what I alledge it for and what he saith is not to the purpose But I will go further and make it appear that even his Precedents that he alledges make all for me and against himself and though he charges me with not being so good as my word saying That I
a Simon de Bereford Chebalier c. Item in the same Parliament our Lord the King charged the said Earls Barons and Peers to give a right and loyal Iudgement upon Sir Simon de Bereford c. It follows afterwards Si agarderent aviggerent les ditz Countes Barons Piers come Iuges du Parlement per assent du Roy que le dit Simon come treitre fast treisne pendu So the said Earls Barons and Peers as Iudges of Parliament did with the Kings assent award and adjudge Sir Simon de Bereford to be Drawn and Hanged You see the same persons were his Judges who had before Tryed and Condemned the Earl of March yet I must observe a little difference in the expressions The King in giving the charge to the Peers in the Earls Case the words of the Record are The King charges you Earls Barons Les Piers de son Royalme The Peers of his Realm which must be construed Who are the Peers or Being the Peers of his Realm And then their Judgement comes to be set down the Record saith Les queux Countes Barons Piers c. The which Earls Barons and Peers did so and so with a Conjunction Copulative and before Peers as if there were some other Peers after the Earls and Barons which if there were we are sure it could not be the Bishops which is all that we are to enquire into We know that heretofore the Kings of England did sometimes send Writs of Summons to other persons that were not Peers of the Realm but persons of Quality as Bannerets and some Officers as the Warden of the Cinque-Ports whom I find commonly to be the last set down in the List of those who were summoned And those persons so summoned came and attended the Parliament and had Voice and Vote with the Peers as Members of their House and as Peers pro tempore and might be comprized under the general name of Peers and being Lay-men might act as Peers in all Tryals and in all other Judgements of Parliament both Civil and Criminal even in Capital Causes but these could in no sort be esteemed to be Peers of the Realm though they might pass in a large acceptation and a vulgar construction of the expression be termed Peers in Parliament These now might be summoned to a Parliament or two or three Parliaments one after another as pleased the King and then be summoned no more if the King was otherwise minded and they could not pretend to have wrong done them their former Summons having been Ex mera gratia without any right of theirs to them So then I may conclude that it is all one whether you will take it as it is expressed in the Kings charge then The Earls Barons Peers of the Realm c. or as it is when they come to give Judgement and as it is likewise expressed in the Case of Sir Simon de Bereford The said Earls Barons and Peers c. and whether that Conjunction and before the word Peers be of any signification or no to mark out other Peers subsequent to the Barons is not material to what our Asserter would have to be understood of my leaving out any thing for it had all made for me and against him making it clear enough that the Bishops had no part in those Judgements The next Precedent is the Judgement of Iohn Mautravers the Record says Trestouz les Piers Countes Barons assemblez a ceste Parlement a Westminster 〈◊〉 on t examine estroitement sur ce sont assentuz accordez que John Mautravers 〈◊〉 est culpable c. All the Peers Earls and Barons assembled in this Parliament at Westminster have strictly examined and thereupon have agreed and accorded that John Mautravers is guilty c. I appeal now to any man that hath but common sense if it can be imagined that the Prelates or Bishops can be thought to be meant by that expression of All the Peers and if it be not the same in signification as when the King charged them to give righteous Judgement upon the Earl of March saying Si vous charge Countes Barons les Piers de mon Roialme c. And so I charge you Earls Barons the Peers of my Realm c. There the several ranks of Peers are first named and the general word which denotes their Quality common to both which makes them competent Judges of those matters that is their being Peers is put last And here in this Record concerning Mauâ—…avers it is put first Which comes all to one And it is further observable that at the time of that Parliament there were no Temporal Lords before Earls neither Dukes nor Marquesses So if any others were to be understood to be comprised under that General Title of Peers it could be only the Lords Spiritual which is a thing very ridiculous to believe Can it be thought nay can our Asserter himself think I trow not that when the other particular ranks and degrees of the Peerage are expressed and set down nominatim by name as one may say by Tale and by Token Earls and Barons that I say at the same time and to be joyned with them in the same action another rank of men viz. Bishops must pass under a General Title and that put in the first place as if Peerage were an Apellativum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to them or a Genus Imperfectum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the two Species the Lords Spiritual and Lords Temporal which Genus the Logicians define to be Quod speciebus suis non communicatur ex aequo sed alteri magis alteri minus uni speciei immediatè propriè alteri mediatè in ordine ad primariam And that so the Lords Spiritual should still be principally and chiefly meant by the General Name of Peers they Primariò and the Temporal Lords Secundarió Those Logical expressions I know our Asserter understands well who blames others for bringing Illogical arguments therefore I put this to him But that they are not at all Peers of the Realm to speak properly and truly and as they are in the eye of the Law though they have sometimes been stiled so both by themselves and others I have in my former Letter I think made it clear and all that our Asserter saith to the contrary hath not made me change my opinion and I shall say more to it when I come in course to answer what is there said by him In the mean time I shall only add this which I lay for a ground that I do verily believe no instance can be given of an enumeration of some particulars in an Universal Collective Proposition and to leave out that particular which is first in Rank and ought to be first named if any at all be named and to have that to be tacitely implied under the General Term the Signum Collectivum As in this Proposition All the Peers Earls and Baâ—…ons gave such a Iudgement This
Coronae tenta coram Domino E. Rege in pleno Parliamento suo c. Mem. Thomas de Berkeley Miles venit coram Rege in pleno Parliamento suo allocutus de hoc c. about the murther of Edward the Second and asked how he would be tryed Ponit se super Patriam So twelve Knights were empannelled who did acquit him I do not look upon this as a Tryal by the House of Peers acting in their ordinary Judicial Capacity There was some other Court in those times in time of Parliament where the Peers probably were the principal Judges but then were added to them some great Officers of the Crown and of the Judges of Westminster-Hall before whom those Pleas of the Crown were held I confess this is to me Terra incognita a thing of which I can give no very good account But I think one may affirm with confidence that no Prelates were amongst them for they would have been mentioned if they had been there as in all Criminal Causes which were Capital or in any thing concerning such Causes I observe they were And even in this Case of Sir Thomas Berckley the next Parliament N. 18. it is said â—…tem en mesme le Parlement si prierent les Prelatz Countes 〈◊〉 Barons pout Mr. Thomas de Berkley a nostre Sur le Roy â—…il lui voustst deliver de meynprise c. Item in the same Parliament the Prelates Earls and Barons besought the King that he would set Sir Thomas Berkley at liberty from his Mainprize I do observe they are always named and never omitted if any else be named which is my Postulatum to our Asserter and not as he injuriously would put it upon me p. 56. of his Pamphlet That I should maintain That the Prelates are in all Cases particularly named or else they cannot be thought to be there and then to disprove it quotes a Bill of Subsidy where the words are Les Seigneurs Communes si sont assentez The Lords and Commons have agreed And Semble as Seigneurs du Parlement It seems to the Lords of Parliament and a hundred such instances more I know he may give And the Trifler could not but know that I could intend it of no other but of the matters in question which were Judgements in Criminal Causes And I shall add but this more to shew the improbability of the Prelates of those times being at all employed in Tryals of that nature and least of all that we should imagine they could be comprized under general expressions which if it were would argue an unquestionable right and title in them to such a Judicature Let us consider the Statute made but two years before it is 2 E. 3. c. 2. which confirms a Statute formerly made 27 E. 1. c. 3. which Enacts That the Justices of Gaol delivery which are sent down into the several Counties when they enquire of Felonies and Murthers if one of them be a Clerk then some discreet Knight of that County shall be associate to him that is the Lay-man and shall deliver the Gaol We see how careful they were then that no Church-man should take Cognizance of Matters of Blood Canon Law Common Law and Statute Law did prohibit it And now to follow my Gentleman to the Parliament 5 E. 3. in which he tells me I have not been fortunate in the choice of my Topick because that Parliament being called for the redress of the Peace and the Bishops saying It did not properly belong to them to give the King counsel for the keeping of the Peace of the Kingdome signified nothing But had they said it did not all belong to them it had been somewhat to the purpose But under this Gentlemans favour I think it is to the purpose to shew that the Bishops did then believe and acknowledge that it did not properly belong to them to look to the keeping of the Peace that it was not their proper work which implies that they conceived their duty and employment to lie another way And it is a strong argument à minore that if they might not do that and advise the King in doing what was necessary for the keeping of the Peace and punishing the breakers of it much less could they be put upon it to judge in Matters of Blood And for them to say that It did not properly belong to them was a little softer and more respectful to the King to excuse themselves from doing what he required of them for giving their advice than if they had bluntly said That it was not at all of their duty to give such advice which had grated a little too much and had been a kind of retorting it upon the King for requiring a thing in it self improper and unreasonable And yet they did as strongly put it off from themselves saying It did not properly belong to them for no prudent and sober man will do a thing that is not proper for him nor can it be required of him that he should So I think my Topick was very good and I may say I am not altogether unfortunate to have to deal with so weak and impertinent an Adversary What he saith in the Case of Sir John Grey and Sir William de la Zouch of Bishops that they are sometimes comprehended under the general word of Les Grantz I never denied it but in that place where the King did charge Toutz les Countes Barons autres Grantz en lour foies ligeances c. All the Earls Barons and other great men c. I say that Bishops cannot be comprehended there because in that place it can be understood but of such great persons whose Rank is after the Barons where I am sure no Clerk of the Parliament durst ever rank the Prelates And another Rule which I stand upon is That if any one Bench of the House of Peers be named and specified as that of Earls or Barons that of the Bishops if the Bishops were present is never left out but always first placed The next scratch he gives me is upon the Case of Sir William Thorp 25 E. 3. upon my inferring that by the General Term of the Grantz in that Parliament who approved of the Judgement of death given upon Thorp it cannot be supposed that the Bishops are understood because they tell the King that if such a Case should happen afterwards the King might call any of those Grantz whom he pleased and by their advice give such a Judgement of himself which I say could not be meant of Bishops because it was no employment for them to assist in Judgements of death Upon this my Gentleman is pleased in good serious earnest as he scoffingly expresses it to ask if this be not petere Principium to beg what I am to prove And I answer in true serious earnest that I do not petere Principium not beg the Question for the Question is first general Whether Bishops in Parliament can be employed in
particularly In his Comment upon the 118 Psalm he saith speaking of those who interrupted them in their enquiry into the duty which they owed to the Commandments of God Non solum cum persequuntur aut litigare nobiscum volunt verum etiam cum obsequuntur honorant tamen cum suis vitiosis negotiosis cupiditatibùs adiuvandis ut occupemur eis nostra tempore impendamus efflagitant aut certè infirmos premunt ut causas suas ad nos deferre compellant quibus dicere non audemus dic homo quis me constituit Iudicem aut divisorem inter vos Constituit enim talibus causis Ecclesiasticos Apostolus Cognitores in foro prohibens jurgare Christianos Here is nothing of coercion in all this they acted not as Judges nay he complains that the Clergy-men themselves were persecuted and compelled to go to Law or if they seemed to shew them some respect and would be ruled by them and drew them from their occupations to compose things between them they would not drive them away and say who made me a Judge between you For the Apostle who forbids Christians going to Law makes the Clergy to be Cognitores Referees or Umpires between which is the greatest act of Charity that can be and most befitting the calling of the Ministers of Gods Word But what saith St. Austin a little after Good men he saith will hearken to us and seldome trouble us with their Secular affairs but others qui inter se pertinaciter agunt quando bonos premunt nostra Iudicata contemnunt faciunt que nobis perire tempora rebus eroganda divinis Good men will hearken to him he saith but those who are perverse do Iudicata contemnere despise his award of it which shews he took not upon him any authority of determining any thing And so in his 147th Epistle to Proculianus the Donatist he hath this passage Et homines quidem causas suas Seculares apud nos finire cupientes quando eis necessarii fuerimus sic nos Sanctos Dei servos appellant ut negotia terrae suae peragant aliquando agamus negotium salutis nostrae salutis ipsorum Non de auro non de argento non de fundis pecoribus pro quibus rebus quotidie submisso capite salutamur ut dissentiones hominum terminemus c. Nothing plainer than that all this is purely out of good will a work of Charity to those who desire him to determine their Secular differences in which the Clergy then had meerly an eye upon Gods Glory the good of their own Souls and of the Souls of those for whom they took that pains But all this is Nihil ad rem let the Clergy have right or no right to judge of Secular Causes it will not decide our Controversie Whether Bishops in Parliament can meddle in cases of Blood Hic Rodus Hic Saltus if we do all extravagate I must come back to this His next Chapter will be more to the purpose it is concerning the Constitutions of Clarendon and the Protestation of the Bishops 11 R. 2. These two particulars well cleared and no disguise put upon them will go a great way He begins with the Constitutions of Clarendon which he conceives to be that Bishops are thereby required to be present in the Kings Courts as other Barons are till they come to give Sentence as to dismembring or loss of life and his Method is to judge of them by these three ways 1. The occasion 2. The plain sense of the words according to their true reading 3. By the subsequent Practice upon this constitution in the Parliament at Northampton soon after 1. For the occasion this Author is pleased to say he can hardly believe I should betray so much unskilfulness in the affairs of those times as to say that the Bishops did then affect such a power of Judicature in Secular Causes and I think I have good warrant to be of that opinion Petrus Blesensis whom this Author cites as living in Henry the Second's time and knowing the whole proceedings of those Constitutions complains of it sufficiently In the first and genuine Edition of them Printed at Mentz in Quarto published by Busaeus the Jesuite in 1600 in his Treatise De institutione Episcopi p. 542. he hath this passage Illud coelestem exasperat iram plerisque discrimen damnationis accumulat quod quidam principes Sacerdotum seniores populi licet non dictent Iudicia Sanguinis eadem tamen tractent disputando disceptando de illis seque ideo immunes à culpa reputant quod mortis aut truncationis membrorum Iudicium discernentes à prounciatione duntaxat executione poenalis sententiae se absentant Sed quid hac simulatione perniciosius est Nunquid discutere definire licitum est quod pronunciare non licet This provokes Gods wrath and heaps up upon many a danger of damnation that some of the prime of Church-men and Elders of the People though they do not dictate Iudgements of Blood yet they debate them and dispute of them and therefore repute themselves free from fault in regard they have withdrawn themselves from being present at the pronouncing and giving order for the execution of the penal Iudgement though they had before agreed to the punishment of Death or loss of Limbs But what can be more pernicious than such dissembling Can it be lawful to debate and to determine a thing which it is unlawful to pronounce Then he compares them to King Saul that had resolved upon the destruction of David but would not that his hand should be upon him but that he should fall by the hands of the Philistines or to the Scribes and Pharisees that cryed out against our Saviour Crucifie him Crucifie him but said it was not lawful for them to put any man to death Is not this as good as Chaucer's Fryer that this Author quips me with p. 4. I do not say that Blesensis blamed all the Bishops for evading the Law in that manner he saith they were quidam Principes Sacerdotum some of the great Bishops But the Author would have it to be the Universal Practice and Opinion of all the Bishops and Clergy to understand the Constitution of Clarendon that they might continue to sit in Judgement till the Sentence was to be pronounced and in the Edition of Blesensis Printed at Paris in 1667. instead of quidam it is Printed quidem but by a manifest error which carries no sense with it and the Marginal Notes in both Editions shew it which is Abusus Clericorum qui causas sanguinis discutiunt marking out the abuse of them that did so This was obvious enough to the Author in his quotation of Blesensis therefore he might have spared the censure of my unskilfulness in the affairs of these times since I had such a Leader to follow as Blesensis and more have I cause to complain of his want of Charity to
Times it may appear plainly that their yielding Obedience to the known Laws of the Kingdom in matters of Appeal appearing and answering in the King's Courts though it were the ancient Usage and Custom of the Realm was the thing that most vexed them and not how far their Presence was required in cases of Blood brought into Parliament in which they were contented to be limited by the Usage of that Court and to afford or forbear their Presence according to that Obligation which was incumbent upon them from the Canons of the Church invigorated by the constant Usage of the Nation If therefore I can make it good that the Bishops had no Right to be present in the Debate and handling matters of Blood and that that was the known Law and the Sense of this Act now before us and of the subsequent Protestation in 11. of R. 2. I shall think my self competently safe though some seeming Precedents and Records should be brought against me for it is the Law must be the Measure and Standard of our Actions and not always Records the Reasons whereof are sometimes obscure and the matter it self many times shortly rehearsed and not always legal I must confess this Author hath much laboured to fix a Sense upon this Article subservient to his Purpose but the more he struggles the more he is intangled 'T is worth Observation that four or five I suppose different Persons have written in the Defence of the Bishops Right to vote in Capital Causes in Parliament and having all of them a necessity to say something to this Law of Clarendon do all of them give different Interpretations of the meaning of it a great Argument of a weak Cause The first whose Title is The Honour of the Lords Spiritual c. I presume being satisfied with the general Sense which was put upon these Constitutions from all times from which it is always unsafe to vary and perceiving that those illegal Priviledges granted to them by King Stephen were by the reviving the Laws of Henry the First abolished doth ingeniously confess in three places pag. 26. at the end of the sixth Chapter and in the same page at the beginning of the seventh Chap. That at Clarendon their Wings were indeed much clip'd yet the Priviledge of sitting and voting in Parliament is left intire to them and tho' they never of late voted in Capital Cases yet they have ever made their Proxies as he hopes to make appear In Chapter the seventh he hath these words We confess as before for that they were Spiritual Persons they were not to sit in Capital Causes and loss of Limb but adds that long before they had exercised this Power By which Words it appears that in the Judgment of that Author whatever their Power and Practice was before yet that now by the Laws of Henry the First recognized at this Parliament at Clarendon that Power was taken away and not since practised That they had such Power before he endeavours to prove out of Compton and Spelman neither of which Authors make good any more than that the Bishop was Assessor with the Earl in the County-court which was only to advise him in point of Conscience not much unlike the Offices of our Surrogates who sit in consistory with the Bishops Chancellor in whom we know resides all the Power That this is so appears by the Laws of Edgar put out by Mr. Lambert who in his fifth Chapter hath these Words Centuriâ—… comitâ—…is quisqueâ—…t antea praescribitur interesto Celeberrimus autem ex omni Saâ—…ia bis quotannis conventus agitor cui cuidem illius Diocesis Episcopus senator intersunto quorum alter jura divina alter humana populum edoceto By which we see 't was the Office of the Bishop to direct the People in Divine Laws as it was of the Senator or Earl to teach them Humane of the same Opinion is Sir Edward Coo. 2 Instit. p. 488. Stat circumspecte agatis Lastly Chap. 8. pag. 32. he mentions the Council at Westminster that in regard they might not Agitare judicium sanguinis they had many times forborn to meddle in such Matters The whole Chapter is concerning Bills of Attainder now whether he meant that in such cases they did sometime absent themselves let himself explain This Author not fore-seeing the Advantage would be made of these Constitutions or else hoping to help himself upon the Power they had to make Proxies doth ingeniously confess the Truth but is deserted by all those of his Side who follow him The Author of the Rejoinder p. 5. tells you that the Constitutions of Clarendon permit the Bishops to be present and vote till it comes to loss of Life or Member which is not till the passing of Sentence upon the Prisoner I believed the loss of Life and Member was the Execution and if they may be there and vote till then they may be present as long as any other for when that is given all go away but if his Meaning be that they should go away when the Sentence is to be pronounced the precedent Words will not bear that Construction so that according to him this is rather an imping than clipping the Wings of the Bishops as the former Author affirmeth Beside this Exposition is contrary to the Votes of the Lords who tell you they must go away when their Lordships proceed to voting Guilty or Not Guilty which is before the definitive Sentence which is always given in the Presence of the Prisoner the other not Vide Iournal of Parl. pag. 258. 15 Maii 1679. in which they explained a former Vote made by their Lordships 13 Maii 1679. in which they had voted that the Lords Spiritual had Right to stay in Court in Capital Cases till Sentence or Judgment of Death came to be pronounced by which you see the House of Lords have disowned that Sense our late Interpreters would put upon the Words of this Constitution though themselves before had given colour to that Interpretation Our third Author intituled The Rights of the Bishops fairly passeth over this Law only tells you that a Bishop pronounced Sentence against Becket in case of Treason as Fitztephen a grave Author saith and farther tells you That though the Prince may indulge many Priviledges to his Clergy as this of not compelling them to vote in Parliament in cases of Blood where by the Canon Law they are prohibited yet that Law must yield to the Law of the Land but how if the Canon Law be part of the Law of the Land what 's then to be done which cannot devest the King of his Right of using his Subjects Clerks or not in any Places or Employments he shall think fit to employ them in or in which he may think them capable of doing Him or the Publick any Service This I confess is plain dealing and I wish it were not too much the Sense of some of our greatest Clerks that let the
comprehends them all so that our Question being concerning their Rights in Parliament if this be not meant of one it will neither advantage nor prejudice me but only shew how willing they were to break through all Rubs when they could in those times of their Power and the Blindness of the People The whole Sentence by our Author abridged to his purpose is as followeth Illud coelestem exasperat iram plerisque discrimen aeternae damnationis accumulat quod quidam principes sacerdotum seniores populi licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis seque ideo immunes à culpa reputant quod mortis truncationis Membrorum decernentes à pronunciatione duntaxat executione paenalis sententiae se absentent Sed quid hac simulatione perniciosius est Nunquid definire discutere licitum est quod pronunciare non licet In English This doth exasperate the Wrath of Heaven that certain of the Chief Priests or Bishops and Elders of the People notwithstanding they do not dictate or pronounce Judgments of Death yet they handle them in their Disputations and discussions of the same yet notwithstanding think themselves free from Guilt because though they Decree the Sentence of Death or loss of Members they only absent themselves at the pronunciation of the Penal Sentence But what is more pernicious than this Simulation Is it lawful to discuss and determine what is unlawful to pronounce And in the whole Treatise inveighs against the general neglect of the Bishops in performing their Duty not confining himself to any place and seems a prophetical description of the practise of the Inquisition afterward brought in by S. Dominick But if it were referred to the practise of some of the Bishops and Clergy of England probably it may be meant of such as were made Secular Judges or sate with the Earls in the County Court where they perhaps were present at the discussion though not at the Sentence which was left to be pronounced by the Secular Judge till after the time of Edw. 1. See 28 Edw. 1. c. 3. where it is ordained that the Justices appointed to take Assizes in every County where they do take as they be appointed Assizes shall remain together if they be Lay-men but if one of them be a Clerk then one of the most discreet Knights of the Shire being Associate to him that is a Lay-man by our Writ shall deliver the Goals of our Shires Here we see their Power though Justices to meddle in Capital Cases was prohibited nay some Records are in the Tower that when two have been commissioned as Judges for the same Circuit the Commission of the Clerk has been restrained to common Pleas that to the Lay-man unlimited see Iani Ang. facies nova pag. 209. 210. Shall we now believe that what was prohibited to Clerks in Edward the First his Time was permitted to them in the High Court of Parliament in subsequent times I have given my Reasons why I think Seniores Populi could not comprehend the Abbots Priors Lords and Commons yet if any man will contend this was a Parliament then must Seniores Populi comprehend amongst others the Commons and their Proceedings to be in a legislative way in which the Commons could only meddle and in which we deny not the Clergy to have their part so that this doubty Precedent will no way serve our Author's Turn His second Instance to make good his Assertion is taken from the Authority of Will. Fitz-Stephen a Monk of Canterbury in MSS. in Sir Rob. Cotton's Library and some other private hands in which he relates what happened to Arch-bishop Becket in the Contest between the King and him in the great Council at Northam ton called soon after Becket's obstinate Carriage at Clarendon in which Relation among others that Author hath these Words Secunda die considentibus Episcopis comitibus Barenibus Angliae omnibus Norpluribus Roffensis Episcopus quidam alius nondum venerat Archiep. lesae majestatis coronae regiae Arguitur quia se ut supra narratum est à rege citatus ro causa Johannis to wit Iohn the Marshal neque venerat neque idonee se excusasset Archiepiscopi depulsio nullum locum habuit Allegata tamen Johannis supradicti injuria jurisdictione hujus causae propria curiae suae integritate Rex exigit judicium Archiepiscopi nulla ratio est approbata Then after much debate who should do it Judgment was pronounced by the Bishop of Winchester which ended in the Confilcation of all his personal Estate The Sum of what Fitz-Stephen saith which is cap. 10. col 2. p. 21. in that Copy I have seen is this That when the Bishops and Barons of England and many of Nor. Normandy as Mr. Selden thinks were met together the Arch-bishop is there accused of Treason because having been cited by the King in the Cause of one Iohn he appeared not nor gave in a sufficient Excuse To let pass what is materially replyed by the Author of the Letter to this Authority I shall make some Observations of my own not yet taken Notice of First That this Assembly held at Northampon was not a Parliament but a great Counsel summoned by the King soon after Becket's stubborn carriage to his Prince at Clarendon to be advised by them how to humble that proud Man where it was lawful for him to use the Counfel of any of his Subjects of Normandy or others as he thought good who certainly in an English Parliament could not be admitted amongst the natural English Secondly we hear nothing of the rest of the Clergy nor the commons but of the Bishops Earls and Barons but that the Commons had allways right to appear in Parliament is learnedly made good by Mr. Petit in his Tractate of the ancient Rights of the Commons In the next place the relation of Fitz-Stephens is not only different from the relation of other Historians but in it self is subject to many Exceptions For first it is plain he was not accused of High Treason in the case of John the Marshal as he saith which appears by the Judgment of that Council which upon the whole matter reac'hd only a Confiscation of his personal Estate which shews clearly the Accusation was not in that Case for Treason because they here punished him with a lesser Punishment than was due to Treason now 't was not in their Power to change the nature of the Crime but must have either found him guilty of Treason or have acquitted him But the Truth is there was a second Accusation by the King about the same time and in the same Place concerning Accounts to the King of Receits during the Vacancy of the Sees of some Bishopricks when he was Chancellor to which he refused to give other Answer saying He was not cited in that Cause and over and above that he was fully
Ricard Archbishop of Canterbury thought fit to have received here and I think would inferr that here was no more done then a Proposal of this to be received not that itw as so But if we will believe Gervas Dorbernensis in 22 H. 2 fo 1429. An. 1175. he will tel you they went much farther His Words are Hoc concilio ad emendationem ecclesiae Anglicanae assensu Domini Regis Primorum omnium Regni haec promulgata sunt capitula Among which one is His qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut perse membrorum truncationes faciant aut inferendas judicent Here is not only a Proposition of the Arch-bishop but an Assent and Promulgation of the same by the King and chief of the Kingdom And the true Sense of that Canon which being so confirm'd had the force of a Law is That Clergy-men should not agitare or medle in any Tryal of Blood which certainly extends to Preliminaries but are prohibited to make Amputations themselves or give their Opinion or Judgment that such Amputations ought to be made by others Their presence at such Trials was unlawfull Non licet and their Acting prohibited So at last I have done with this clause and have shewd that it is not indulgent but restrictive that it was a custom in H. 1. time sworn to at Clarendon published at Westminster 12 years after and by all this made part of the Law of the Nation have answered all his Subterfuges and Evasions have shewed the Interpretation I have given was always received I expect now so much Ingenuity in this Author that he will either yield to my Sense or give another agreeable to the Rules of Grammar and the proper Signification of the Words and not take the Liberty to explain them at his Pleasure and confound Voices Moods and Numbers Insomuch that this Statute will remain Testimonium irrefragabile still and I am sure if he observes his due bounds he must give an Interpretation equipollent to to what I have given So hard it is for the greatest Wits to maintain an ill Cause I come now to the Consideration of the Protestation made in the Parliament held in 11. R. 2. which our Author saith much cleareth the whole Business especially the preface therof for the omission of which he blames the Author of the Letter I shall give it you in English which our Author hath not thought fit to do and by that means deprived many of his Readers of means to make a true Judgment of it In the Name of God Amen For as much as by the Law and Custom of the Kingdom of England it belongs to the Arch-bishop of Canterbury for the time being as also to the rest of his Suffragans Fellow-Brethren and Fellow-Bishops with the Abbots Priors and other Prelats whatever who hold of the King by Barony as Peers of the foresaid Kingdom to be personally present in the Parliaments of the King whatsoever and there with the rest of the Peers and others that have right to be there present concerning the arduous Affairs of the Nation and concerning other things there usualy to be treated of to Consult Treat Ordain Appoint and Define and other things to do which there in time of Parliament are prepared or fitted to be done In all and singular of which We William Arch-bishop of Canterbury Primate of England and Legate Apostolical for our selves our Suffragans our Felow-Bishops and Fellow-Brethren as also for the Abbots Priors and all the foresaid Prelates do protest and every one of them doth protest who either by himself or his Proctor shall be here Present at this time publickly and expresly that we intend and every one of us will in this present Parliament and others as Peers of the fore-said Kingdom after our accustomed manner be present to Consult Treat Ordain and Define and all other things ro exercise together with the rest that have right to be present in the same The Condition State and Order of us and every one of us being still saved But for as much as in this present Parliament some matters are to be treated of in which it is not lawful for us or any of them according to the Decrees of the Holy Church and the Canons thereof to be at any hand personally present For which Reason we for our selves and for every of them do protest and every one of them here doth also protest That we intend not nor will because according to the Law we cannot nor ought not be present in this present Parliament whilst such matters are or shall be treated of but that we and every one of them will upon that occasion all together absent our selves our right of Peerage and of theirs as to our and their being present in the said Parliament and as to our and every of their exercising and doing all and singular things our and their order in all things allways preserved And we farther protest and every one of them protesteth that by reason of this our absence we do not intend neither doth any one of them intend or will that the Trials or Proceedings had or to be had in this present Parliament upon those aforesaid matters in which we cannot nor ought not as is premised be present as much as in us lyes or any of them lyes shall in times to come be any way impugned weakened or broken He tells you that this Protestation saving the legall Formalities consists of three parts First a declaration of their undoubted Right as Peers of the Realm by virtue of their Baronies to sit and Vote in all Debates in Parliament Where by the way the words are de Regni negotiis not omnibus of the affairs of the Kingdom not all of them and aliquibus may as well be understood as omnibus and this appears soon after upon their own shewing for they tell you they intend to be present in this and all other Parliaments and presently after tell you it is not lawful for them to be present in this Parliament while such matters were handled to intend to be present and then tell you that 't is not lawful to be present in this Parliament shews that their Power was limited and not universal however upon this Protestation they went out at the Begining and made no Proctor for they tell you they ought not to be personally present at any hand where such Affairs are or would be treated of which certainly was before the definitive sentence so that the Canon required their absence at Preliminaries according to the sense of all times till these new expounders came in place I will not here dispute whether this Protestation be an act of Parliament with Submission to better Judgments I think it hard that what was intended as a Protestation should by Construction be advanced to an Act no more than his present Majesties Concessions upon the desire of
the Lords and Commons in the case of some of the late Traitors should have the like construction and the entring into the Roll by the Clerk was no more then entring into the Lords Journal now But since our Author hath made his Observations let him give me leave also to make mine First This protestation is cunningly worded by their own Direction therefore their calling themselves Peers of the Realm doth not make them such in any new sense neither doth entring in their Journal Book do more than make it a Record and render them liable to Punishment if any thing unfit in it shall be taken notice of An example of this we have in the Bishops Protestation 1641. That all Laws to be made in their forced Absence should be void which could not any way weaken them or ours here that they should be good any ways strengthen those Laws then made The next thing observable is that he saith 'T is their undoubted Right as Peers of the Realm by virtue of their Baronies to sit and vote in all Debates in Parliament In which Assertion he begs two things first That they sit there by Vertue of their Baronies whereas he hath not proved they ever had any except tenere sicut or quasi per Baroniam or per servitium Baroniae be equivalent with esse Baronem which I cannot so easily admit though they call themselves so and in ordinary Speech may be so called by others that Question having never been determined though admitted in Pleading by Counsel The Reasons of my Doubts I have given in my first Chapter and shall submit them to more learned Judgments They say here they sit as Barons but allow that they have no Right to judge in those Cases then in Agitation and notwithstanding it should be true that William the First divided the Kingdom into Counties and Baronies to hold of him in Capite a County to contain twenty Knights Fees a Barony thirteen or thereabout it doth not appear that every Bishop had thirteen Knights Fees or that some of them had not above twenty yet all of them held equally in Capite sicut Baroniam and sate there among the Nobility as Associates to them I shall farther observe that their Right to sit and vote there was more solito as they had usually done and this with a Salvo or Saving to their State and Order so that except our Author had first proved that 't was their usual manner to vote and judge in matters of Blood and that this was agreeable to their State and Order which themselves deny he hath done nothing for they pretend not to any other Right but what they usually enjoyed and what was agreeable to their State and Order Let now our Author take what Advantage he can from the Preface to the Protestation for the Omission of which he so much blames the Pen-man of the Letter The second matter he affirms and attempts to prove is that their absenting themselves was merely in obedience to the Canons of the Church and not out of Respect to any other Law Yet Sir William Baker's Continuer pag. 478. ult Edit saith their Absence was not from their Obedience to the Canon-Law only but according to the Practise of the Kingdom to this day by which it seems he look'd upon it as the common Practise for them to do so For he tells you 't was impossible they should claim such a Right by virtue of their Baronies or that the Lords should allow such a Protestation if there were any other Law against them then in force And that if this Protestation were a Law the Case was more strong on their side for then it declares they had that Right they pretended to by Law Should I admit this for once Doth it not also as solemnly declare that in Cases of Blood they are barred by the Canon-Law and so make that Bar a part of the matter enacted But for a fuller Answer and Discharge of what he urgeth without repeating what I have said before as to the Protestation it self let me put him in mind what I doubt not he knows that all Arguments ab impossibili or Deductions ad impossibile are the weakest ways of Demonstration and never used where any other can be brought which at best in this Case can only argue a Neglect in the Lords But secondly he may be advertised that all protestations are entered according to the desire of the Protestors and not made an Act of the House Lastly all this is but what they usually did and hath not relation to any other Matter than what was their Custom and was agreeable to their State and order which was to absent themselves in cases of Blood His Digression afterward for for two or three Leaves about the Power of of the Pope or his Legate to dispense with Irregularity which here he calls a Penalty in another place the Sanction it self together with the mystery of the Canon-Law serves in my Judgment to no other end but to shew the Bishops were generally Time-servers and forced Polity and Religion to bend to their turns forgetting that nothing is profitable which is not first Just. However we do not hear of any Dispensation granted here either by the Pope or his Legate and I would be glad this Author did let us know that his Opinion is that the Pope or Legate have a legal Power to to dispence with those Canons established in Councils and received by a Nation I always did believe that those that attributed to the Pope a greater Power then I do did not look upon him under any other Notion than as one trusted to keep and not to break the Canons Having thus cleared the Protestation from his Objections let us examine the clear meaning of it This Author saith that the very reading it is sufficient to convince any man that the Canons were the only cause of their absence I will not deny but that it might him but do not believe it hath Reason to force others to be of this mind For if two Laws were against them to wit the Canon-Law and the Common-Law confirmed in Parliament 't was not unusual for those sort of men to express which of them they had most mind to But beside this I find no Absurdity to affirm they took notice of both though more obscurely of the last by a Non licet to the one by a de jure non possumns to the other 'T is not lawful for us at any hand by the first viz. the Canons which are to us a greater Law than any other Next by the Law of the Land de jure non possunius Not that in it self our Presence in all Cases were unlawful if the Canons were not in the way But there is also another Law which prohibits us from being present in those Cases in which otherwise we might have thought it reasonable to have given our Assistance who are no such strict Observers of the
for he cannot but know out late King chose rather to loose his Life than resign his Power that he never had quiet Possession but a Prince always strugling against him nor had he the acceptance of the People or any thing but force to buoy him up which after his Death fail'd in his next Descendent By what I have said it may appear to any equal Judge that the Laws made 1 Henry 4. were good notwithstanding his pretended Usurpation And as to the thing it self that the Bishops Absence in cases of Blood doth not make a Judgment given void appears plainly by the Case of the Earl of Salisbury in 2 H. 5. who petitions that a Judgment given against the Father might be reversed and assigns for Error that the Bishops who were Peers of the Realm were not present and upon full hearing and debate it was adjudged no Error Now I appeal to this Author whither he can think that my Lord and his Counsel were so stupid as not to urge what they could think of for the advantage of the Earl and the Clergy for whatsoever other faults might be laid to the charge of his Parent the cause appears to be turn'd upon that hinge by all this we may well conclude that the Lords in that Parliament did not hold the Bishops such Peers as ought to be allowed Judges concerning the Life and Death of Noble-men This Judgment our Author hath not thought fit to take notice of which might be equivalent to error temporis for it was either ignorantia or neglectus rei But he tells you Edward the fourth repealed all again in which he is mistaken for Edward the fourth repealed nothing but what concerned the Title between York and Lancaster with some Charters to others I come now to his third head or point Whether supposing that the Bishops absented as he contends only upon the account of the Canon-Law in the times of Popery whether those Laws do continue in force now since the Reformation he thinks they do not In this I shall be very short and against his Reasons which are rather Surmises than other I shall return direct Authorities of Judges and Lawyers in point First he saith the Canon-Law was grounded upon a superstitious fancy that to be present in Cases of Blood brought upon them Irregularity and hath there a large Digression upon the Unreasonableness of the Canon-Law in many particulars I shall easily yield that many of the Rules brought upon the Church by the Papacy are full of Hypocrisie and self-ends but do not think that our Bishops did first forbear from bloody Tryals about Lanfranks time as if this Canon had been unknown in England till then almost 700 years after the first Council of Toledo for Sir Henry Spelman reckons that Canon to be Anno Christi 400. and William the first came in Anno 1066. And in this first Council this Canon is cited but it is more reasonably referred to the eleventh Council of Toledo and the sixth Canon which expresly forbids their medling in Blood 't will yet be about 500 years before Williams Time It is therefore more probable that their forbearance in those Cases proceeded not from any thing brought in by Laufrank but was received here long before from their obedience to the Apostolick Canons which did not only forbid their medling in Blood but in all secular Employments and were carefully observed till Constantine's time who flourished in the year of Christ 323. 'T is likely enough that the Liberty then taken by the Clergy was restrained in Spain by that Council And if our Author please to observe it till they came to be corrupted by Covetousness and Ambition their chiefest Employment was to make Peace between their Neighbours as Chancellors and Arbitrators rather than as Lawyers and Judges In earnest whoever shall consider the intricacy of the Laws of England as they are called the Common-Law will rather believe when they sate as Chief Justices if ever they did so their Seats were among others better versed in the Common Laws than themselves and they sate rather to direct what was equal according to the rules of Mercy than according to the rigorous balance of Justice This certainly was their Office when they sate with the Earl in the County-Court Mr. Lambert in his Laws of Edgar cap. 5. hath these words Celeberrimus autem ex omni satrapiâ conventus bis quotannis agitor cui quidem illius diocesis Episcopus Aldermannus intersunto quorum alter jura divina alter jura humana populum edoceto Here you see the Bishops Office was only to teach the People the Divine Law as the Earl or Alderman did those of the Land His next Suggestion is rather a Conjecture than a Proof to wit that this Canon was never received contrary to himself before or that if it were received it was in diminution of the King's Prerogative and so repealed by the Statute of 25 H. 8. cap. 19. He might as well have said That all the Ecclesiastical Laws as of Tithes Marriages probate of Wills and other Faculties now exercised in the Ecclesiastical Courts are against the King's Prerogative and therefore void What Success an Attempt of that Nature lately had he may easily call to mind But let me bring into his Remembrance what the Statute made in the same Parliament 25 H. 8. cap. 21. hath in the Preamble of it Whereas his Majesties Realm recognizeth no Superiour under God but only his Majesty hath been and is free from Subjection to any mans Laws but only such as have been devised made and ordained within this Realm for the Weal of the same or to such others as by the Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used among them and have bound themselves by long Custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as the ancient and accustomed Laws of the same by the said Sufference Consents and Customs and none otherwise We see here the Sense of the whole Parliament That such Laws as had been used and accustomed should be look'd upon as the Laws of the Kingdom and not of any foreign Prince or Prelate Now let him tell me what Laws were common to us with any foreign Prelate except the Ecclesiastical and Canon-Law which having been here used are acknowledged a part of the Laws of the Land by Usage and Sufferance of the People So that we have now a whole Parliament that they did not look upon these as against the Kings Prerogative and so null as this Author would have it but fully confirmed as part of the English Law Agreeable with this is my Lord Coke in Cawdrey's Case lib. 5. 32. b. It is says he Resolved and enacted by authority of Parliament that all Canons Constitutions Ordinances and Synodals
provincial that have been by common Use allowed shall be of force and not to be taken away but by Act of Parliament Now himself confesses that the Canons are against him then may I well conclude that the Law is against him since all Canons then in use are part of the Law at present Page 68. He tells you the Sanction of this Law which was Irregularity is now ceased and that some of our most learned Judges have declared that is taken away by the Reformation First I am to learn that Irregularity was the Sanction of the Law I always understood that the Sanction of a Law was the matter established by it obedience to which was required under the Penalty of Irregularity but I will not stand upon that which if true would open a door to disanul all Laws made under a Penalty by pardoning that But the fore-going Statute of 25 H. 8. cap. 21. clearly shews that all Canons accustomably used are still in force Who hath then taken off the Penalty If no body then their forbearance in Cases of Blood ought still to be observed in obedience to them Of this opinion were the Parliament both Lords and Commons in the Case of the Earl of Strafford whom this Author is pleased to honour with the name of a Cabal as also the Proclamation to call in my Lord Keeper Finch who was then fled both which were done in the Absence and after the Bishops were withdrawn and after William Bishop of Lincoln had given his opinion they ought so to do and are taken notice of by the Author of the Letter pag. 51 52 53. and by him very materially observed that that Proclamation against my Lord Finch was drawn by the Judges by order of the Lords Temporal after the old Parliamentary way from whence it is easie to infer that it was the old Parliamentary way for the Judges to draw up such Proclamations by Command of the Lords Temporal and that the Clergy medled not in those matters To all that hath been said to this purpose he hath either given no answer or what makes against him He tells you that my Lord of Canterbury was first named in Commission for the Tryal of the Queen of Scots This signifies little for here he was only a Commissioner but no Judge in Parliament Secondly That though the Queen could not dispense with the Law in general as to all Individuals yet to any one she might and the express naming him a Commissioner might amount to a Dispensation Thirdly though the Arch-bishop was named yet he was not present at the Tryal whose Names you may see in Cambden's Annals anno 1586. and therefore the Canon was observed for what other reason could be given for his refraining that Service but because by it he might have become irregular I shall add one or two Authorities more and so conclude the point Arch-bishop Abbot in King Iames his time hunting in one of his own Parks shooting at a Deer by an unfortunate Glance of his Arrow kill'd his Keeper much Debate there was whether this Act had made him irregular and that it did so was strongly argued by Williams Bishop of Lincoln then Lord Keeper who said that by the Canon-Law then in force he was ipso facto irregular Here you see the Canon-Law was then deemed in force and Irregularity to be by it contracted At last Commissioners were appointed to examine the business whose Names you may see in Rushworth both Divines Civilians and Common Lawyers After a full Debate they agreed he was not irregular for this was no Crime and therefore by Law could not contract Irregularity for by Law the Arch-bishop was allowed to hunt this accident being only Chance Medley could not bring any Guilt upon him But there was not the least Doubt made of the Canons being in force and that Punishment might be inflicted upon the Breakers of them Baker's Chron. pag. 446. who being then a man of good Age made this Relation upon his own knowledge This may serve in Answer to his Reflection upon Dr. Oates that he hath incurred Irregularity by his Discovery of the Horrid Plot not yet fully examined for this Discovery was but his Duty so far was it from being a Crime that it deserved and hath already found some Reward from his Majesty Of the same Opinion was Arch-bishop Laud with the rest in the Star-Chamber in the Censure of Dr. Leighton where Arch-bishop Laud would not suffer any corporal Punishment to be inflicted upon him until he was first degraded nor his Ears to be cropt in St. Paul's Church-yard because the Ground was consecrated now Degradation and Consecration of Places are the Fruits of the Canon-Law Lastly one Madie was in the High Commission Court Pas. 4 Car. 1. declared irregular and deprived for the same having first as was alledged preached after Suspension By all which it plainly appears that Irregularity may be incurred at this day and therefore those Canons not against the King's Prerogative nor consequently taken away by the Act of 25 Hen. 8. but that Irregularity may still be contracted by the breach of them I have now done with his two first Chapters which contain the substance of his whole Book and have shewed First that it is not clear that Bishops were Barons otherwise than by Appellation that they were never enobled in Blood that no Instrument can be produced what Baronies were annexed to their several Possessions whose Bishopricks have the Title common to other Noblemen as Lincoln Carlisle Bath Worcester York and others which is not usual that one should be Duke or Earl and another Baron of the same place beside the superfetation of Baronies by dividing one Bishoprick into several Baronies But that it is much more reasonable to believe that their Tenure in Cap. by Baronage Service which was imposed upon them as a burthen not an honour might cause them to be called to Parliament as Barones minores lesser Barons but not left out at the King's Pleasure as the lesser Barons were because they were to summon the Clergy to Convocation Secondly I have made it apparent that the Convocation is properly the third Estate in Parliament of which they constitute the upper House and not other than a part of a third Estate among the Lords Thirdly Admitting they were a third Estate in the Lords House entire as some think there could be no colour for their Tryal of a Noble-man who is a Member of another Estate Fourthly the Canons of the Council of Toledo were not the first cause of their absenting themselves in cases of Blood Fifthly I have vindicated the Parliament at Clarendon from all his Exceptions and made it very plain by the natural construction of the Words as well as by the Interpretation of his own Author Fitz-Stephens they are not to be present at any Consultations or Debates where the end may be Blood and that the Proceedings in the Council at
casu fieri consuevit Teste Rege apud Lancetost 18. die Octobris 34. FINIS ERRATA PAge 113. line 3. in Marg. read true way P. 117. l. 18. r. Bannerets Ib. l. 21. r. Banneret P. 122. l. 2. r. St. P. 144. l. 8. r. ingenuously So P. 145. l. 31. P. 160. l. 5 after the Word Barony add in the Margine viz. Ecclesiastical Persons P. 174. or 274. T l. 18. r. done P. 204. V l. 2. r. Counsel So l. 11. Ib. P. 212. X l. 22. r. permixtim P. 217. X l. 26. r. de tout le c. P. 220. l. 6. r. taken Other Literal Mistakes the Reader is desired to correct with his Pen. A TABLE of the Principal CONTENTS The Number of the Page being often mistaken through the Printers false counting to one another the Reader is desired where the Figures are wrong to observe the Letter which begins the Sheet A Page Abby of Molross O 206 207 Absence of the Bishops not merely from the Canon-Law 84 N 181 182 Adam de Orlton's Case R 267 T 180 Agitare Judicium Sanguinis prohibited H 101 and N 157 183 Allusion made by the Questionist not solid 165 Appeal to Rome no capital Crime antiently M 173 Appeal of Earl Godwin Q 227 Appeals in Trial V 191 192 193 Appellation ought to be governed by the Right S 278 Apostles their Rule p. 89 how far their Practice to be urged for Example now 133 Apostolick Canons against Clergy-Men their medling in Secular Affairs P 135 216 Arch-bishop Stratford's Case T 282 283 284 Arundel Earl his Case O 208 Assemby at Northampton no Parliament p. 170 171 172. Matters carried there in great Heat and no Iudgment of Treason given M 172 173 Attainders what they are 9 10 Augustine St. his Opinion 94 95 B. BArons how made enobled in Blood and how made 107 to 120 Barons by Blood and by Tenure different 78 118 119 120 Barones Majores who 78 Z 245 246 Barones Minores who 7 8 Barons Peer who 21 107 117 Barones Regis who 107 Z 247 to 250 Barones Regni who ibid. Baronagium and how comprehensive 107 P 202 203 Y 226 S 278 Becket not impeached of Treason from 65 to 70 and from 172 to N 180 Berkeley Sir Tho. his Case 28 29 V 196 Blesensis his Words marked 97 98 125 167 168 R 261 Bishops whether they sit in Parliament by vertue of any Baronies p. 106 108 and how 122 c. T 174 or 274 Bishops not Barons 77 108 19 123 124 125 Bishops how they sate with the Earls 91 92 93 145 P 217 Bishops Service and Tenure a Burthen 106 124 125 Their Tenure offects not their Persons 77 Bishops if a third Estate not capable to try a Peer 128 Bishops the form of their Writs no Argument of their Power 86 129 130 when present always exprest that they were 36 Bishops medling in Secular Affairs forbidden 129 135 P 216. Their Opposition to the King at Clarendon and from what Cause 141 Bishops Power clipt at Clarendon 99 O 144 when to go away in Criminal Cases 161 196 197 even in Acts of Parliament R 265 Bishops Absence not merely from the Canons 8 84 N 181 182 183 190 N 193 O Bishops Protestation p. 5 6 7 translated and explained 41 42 and N 185 to 194 Bishops not reckoned Nobles T 184 or 284 not called Lords till the time of Rich. II. 108 Bishop of Norwich his Case 40 Bishop of Carlile tried by a common Iury T 279 so Bishop of Ely 278 ibid. Bishops Absence no Error 47 Bishops had no Right to be present in the Debate and handling matters of Blood 143 Bishops not comprehended under the name of Peers or Grands if put after Earls and Barons 14 18 to 25 32 Bishops if others named always named where they are present 24 29 32 36 and that before others R 261 Bishops not Peers to Temporal Lords 71 to 99 S 280 Bishops sit in respect of Temporal Possessions 83 yet in the quality of Spiritual Persons T 174 or 274 and S 289 Bishops cannot sit in a double Capacity S 288 289 T 174 Bishops contended to be tried by their own Order T 181 or 281 whence their pretence of Immunity proceeded 153 Bishops to be tried by common Iuries T 277 to 282 Bishops their Equivocation 141 Bishops Messengers of Peace V 197 Bishops chief Employment to make Peace in civil Affairs antiently Counsellours not Iudges p. 89 91 their refusing to give Advice about keeping the Peace 30 31 266 and R 269 Bishops but part of a third Estate 80 to 85 and 126 127 137 S 290 Bishops in France never sit in that Chamber of Parliament which tries Capital Cases 90 Bishops never absent not prov'd Q 228 Bishops no where allowed to sit Inquisitors of Blood V 198 Bishops not summoned to Parliament several times Q 238 Bishops a Question whether they might be even of a Committee in matters of Blood V 199 Boeges de Bayon's Case 25 26 Brady Dr. his Assertions and Fancies condemned Pref. to the 2d Part and p. 189 in Marg. V X A a 204 205 224 227 Burroughs and Burgesses Z 237 238 C. CAmbridg Earl 50 Canons forbidding of Clergy-men to meddle in Capital Causes still in force 87 164 and P 217 to 222 Canons concerning Blood as anciently in England as the Conquest and part of the common Law N 181 182 Capitalis Justiciarius Angliae what Office 137 138 Capitalia placita what Q. 229 230 231 Chancellour when no Peer how tried T 285 286 Charter of King John the Author's Interpretation of it asserted against Dr. Brady X 206 207 against Mr. Hunt Z 237 to 242 Clarendon the meeting there a Parliament 139 Clarendon and the Parliament there considered 99 100 142 Clarendon Earl his Arguments against the pretended Conquest A a 260 to 263 Chivaler who B b 284 Clergy subjected to Baron-Service 112 140 Clergy their Power in Primitive-times 89 their Power in other Nations 90 Clerus never taken for the Bishops alone 126 Commons and Commonalty of the Kingdom where Records and Histories manifestly shew their Presence at Parliament before 49 Hen. 3â—… X 211 to Y 22â—… Commons their Vote in Danby's Case O 98 Commons sometimes meant by Grands R 270 S 279 226 3d Part anciently had their share in Judicature R 266 267 268 Commons always Members of Parliament 172 O 202 sâ—… together with the Lords in the times of Hen. I and King Stephen X 212 and long afterwards O 202 203 204 Mr. W's Grounds for the Belief that they had no Right to come to Parliament till 49 H. 3. answered and turned against him X 210 to Y 227 so Mr. Hunt's p. 221 222 223 Y 235 and to A a 268 Commons their Petition 21 R. 2. p. 11. and O 195 196 Community of Names no Argument of Right S 278 Concordia 4 E. 3. 27 R 263 Conquest disclaimed by William the first 139 A a 260 no Conquest
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 a Book since published against it Entituled 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 London Printed for R. Janeway 1682. The GENERAL PREFACE THE name of the Lord Hollis is so well known both to the Active and Contemplative part of Mankind that no more need be said to recommend any Papers to the World than to give Assurance that they were his and by him Designed for the Press I am perswaded that most who Read the first of these ensuing Treatises and have been conversant in that Great Man 's Writings cannot but acknowledge this for the Genuine product of his large Soul and close way of Reasoning But besides the inward testimony of the thing it self we have other sufficient proof of its being Authentick from such as had the Honour of a familiarity with that Extraordinary Person in his life time to whom he communicated his thoughts on this Subject as he from time to time committed them to Paper He lived not to finish any more of his Answer to the Grand Question c. than what is now published but often affirmed that he had Conquer'd all the difficulties in it Nature was spent and all the Oyl of his Vital Lamp was consumed before he could advance further with his Pen And when we consider that he had past the Age of Man having arrived to his eighty first year and that he still continued Writing for Eternity when he was upon quitting this Mortal state we may well say that his Life went not out in a Snuff as most very aged men expire but that he ascended to Heaven in a bright flame which still continues to enlighten us that remain here below Surely I cannot be taxt of impertinence if I here strew upon his Herse some of Cicero 's happy flowers since one would think they sprung up now for this very purpose Est etiam quietae purae atque eleganter actae aetatis placida ac lenis senectus qualem accepimus Platonis qui uno octagesimo aetatis anno Scribens Mortuus est Let no Man say that it misbecame him to spend his time thus when he was posting to Eternity He had found Truth to stand in need of his Defence and his own Reputation was called in question upon his appearing for it And next to Devotion which without doubt had a due share of his time nothing perhaps can give a greater foretaste of the joys of Heaven than the sense of a Mans having fully vindicated Truth and his own good name The Author of the Considerations is likewise a person of great Age and well known for his great Learning Nor would his Name if made publick give any small Reputation to his Book But he is so sincere a Lover of Truth that I dare say he would not have any Man byast with a previous disposition to believe that there is more force in his Arguments than he finds but leaves them to their natural energy For me to pretend to give the Characters of such Authors as these two would he a presumption beyond what I am guilty of in putting some Papers of mine in the retinue of theirs But though my Character cannot do sufficient Right to either yet a Confutation of Mr. Hunt 's Errors may be a piece of Justice to the Lord Hollis who has been much undervalued by this warm Author And as Mr. Hunt is a Man justly in Reputation for his Parts and Literature unless it be shewn that his Authority is of no great weight in this sort of Learning he might wound by his Censure where he doth no great feats with his Argument I doubt not but he will pardon my freedom with him since he has used as much or more with what I have formerly published to the World Indeed by his Preface one would think that he had wrote before I had set out any thing relating to Antiquities But then he must needs have understood by way of Prophecy what I would say about the Curia Regis great part of which he makes use of and concerning the explication of King Iohn's Charter and several other things which he opposes I am sensible that enough has been said by the Two learned Authors on whose Papers mine attend to clear the Question concerning the Bishops Voting in Capital Cases in Parliament from all the dust raised by Mr. Hunt But he having put things together in another manner than had been done before some might think it requisite that there should be a particular Answer given to every thing of his that bears the face of an Argument both upon the account of the weight his Assertions may carry with many and the want of Judgement in others to apply what may be found in these Treatises to silence all Objections in how different a manner soever they may be repeated And truly this I had done according to my Talent but considering that those things are wrote for the Learned whose Judgements are too delicateisoon to rellish the same dish drest over and over again I thought it convenient to suspend the publication of what has occurr'd to me upon that Subject Nor shall I at present interpose in that Controversie any further than to free my self from a two-horned Argument which I were very dull not to perceive my self to be concerned in if not solely aim'd at by it Having first taken a difference between the Great or General Council of the Nation to which Proprietors of Lands as such had right to come till 49 H. 3. And the Curia Regis compos'd of the Kings immediate Tenants and Officers I had occasion to enquire into the nature of the Curia Regis mentioned in the Constitution of Clarendon which obliges the Ecclesiastick Tenants in Capite interesse judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem This I took to relate to Judgements in the Curia Regis as such And the ground of coming to the Great or General Council being different from that of coming to the Curia From thence I conceived might be gathered a sufficient Reason why the Bishops might have been allow'd to vote in a Legislative Capacity in cases of Blood And yet that practice might no ways extend to warrant their sitting as Iudges upon such Causes either when there was a bare Curia de More or when it sat within the General Council of the Kingdom more