Authority or weight enough to perswade the contrary or an alteration therein notwithstanding that complaint which he tells us was made in the 45 of E. 3. fol. by the two Houses Counts Barons and Commons to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per cet grant mischiefs dammages sont avenuz en temps passe pluis purroit eschire en temps avenir al disherison de la Coronne grant prejudice du Royalme Whereby great mischiefs and damages have happened in times past and more may fall out in time to come to the disherison of the Crown and great prejudice to the Realm And therefore they humbly pray the King that he would imploy Laymen This they had too much reason to desire then when the Pope had advanced his Authority over them and put them under Oaths of Canonical obedience which rendred them less fit to be intrusted in the Government of this Kingdom who were become Subjects of another Empire usurping continually upon us which will never be our Case again if the Bishops can help it CHAP. III. ANd now we proceed to the Precedents of which the Octavo Book principally consists which seem as that Author and the other in Folio would have it to be not only a discontinuance of the Right of the Bishops to judge in Capital Causes but an argumentative proof that they never had any because it can as they say be never proved to be otherwise Immemorial time I confess is a great evidence of the right whether In non user or user and a fair reason to allow or deny the pretence and therefore we will now consider the Precedents As for the argumentative and discoursive parts of those books they will fall in to be answered by way of Objection when we are discoursing and proving the affirmative part of the Question and will best be reproved by being placed near the light of our reasons for establishing the Right of the Prelates If we do not give some satisfaction to these Precedents whatever we shall say I know can signifie no more than an Argument to prove a thing not true which is possible de facto testified by unexceptionable witnesses for such the Precedents will be taken until exceptions are made to their Testimony The Precedents produced by the two Authors are mostly the same only the Octavo hath more than what the Folio Book hath recited The first case that the Octavo produceth against the Lords Spiritual their Right of being Judges in Parliament in Capital Causes is that of Roger Mortimer Earl of March Simon Beresford and others who were no Peers and yet tryed in Parliament and no Bishops present and we agree it probable for his reason because there is mention made of Counts Barons and Peers and Peers being named after Barons could not comprehend the Bishops And because we think it reasonable when the orders of that House are particularly enumerated that the order omitted should be intended absent but we will not allow but that Peers is and so is Grants comprehensive of Bishops Nor will we when the entry is General intend the Bishops absent except he cannot otherwise prove them absent which we mention in the entry once for all as just and common measures between us in this dispute It will appear true what we affirm of the words Peers and Grants by what follows And if we should not insist upon their being present when nothing appears to the contrary we should do wrong to the Cause But to come to the consideration of this Precedent Is this a just Precedent Is not Magna Charta hereby violated Are not the proceedings altogether illegal Here are Commoners tryed by Peers in Parliament It is well known that the high displeasure of the King was concerned and that he did interpose with a plenitude of Power in this particular case against the fundamental constitutions of the Government the greatest crime of this Earl was too much familiarity with the Kings Mother Indignation and Revenge and not Justice formed the Process It was proceeded to condemn him Judicio Zeli upon pretence of the Notoriety of the fact Sir Robert Cotton in his abridgment tells us Anno 4. Ed. 3. That the King charged the Peers who as Judges of the Land by the Kings assent adjudged that the said Roger as a Traytor should be drawn and hanged The Bishops were not present certainly they were none of the Judges that gave Judgment as the King pronounced without Cognisance of the Cause The King had more Honour for their Order than to call then to such Drudgery and service of the Crown The iniquity of the sentence appears by the reversal thereof in Parliament 25 Ed. 3. in which the Original Record is recited Sir Robert Cotton in his Abridgment tells us That this Earl being condemned of certain points whereof he deserved commendation and for other altogether untrue surmises there was a Bill brought into the Lords House for the reversal of the Judgment and it was reverst by Act of Parliament indeed it could not be otherways reverst for no Court can judicially reverse their own Judgment for Error in Law and Judgment in the Lords House being the dernier Resort cannot be repealed but undone it may be by themselves in their legislative Capacity Here saith the Octavo the Bishops were not present at the passing of that Bill but yet the Octavo Gentleman will not pretend that the Bishops are to be excluded in any Acts of Legislation Why therefore was he so willing to impose upon the people so falsely and unrighteously and to produce this as a Precedent against the Bishops Right of Session in matters of that Nature by himself recognized There is nothing can excuse him herein for he is certainly self-condemned of undue Art in thiâ— matter In 20 R. 2. the Case of Sir Thomas Haxey happen'd which the Octavo book page 20 produceth against us He was forsooth condemned in Parliament for that he had preferred a Bill in the House of Commons for regulating the outragious Expences of the Kings House particularly of Bishops and Ladies Haxey was for this tryed and condemned to death for it in Parliament And here appears to be no Bishops and there ought not to have been any for these reasons First that the Bishops were the parties wronged and therefore could not in any fitness give sentence But Secondly if that was not in the Case that that caus'd the process was Royall anger upon a great faction of State in which I believe the Bishops were not engaged made for deposing of Rich. the 2d that was understood by the King to be in acting and promoted by Sir Thomas Haxey by his Bill It was this made the sentence altogether abhorrent from legal justice in matter and form Here was a Tryall of a Commoner by Peers a matter made Treason that did participate nothing of the nature of Treason But the discreet Gentleman
resolved what to do desired of the Earls of Leicester and Cornwall that he might have time untill the morrow And the morrow being Sunday time was given until the Munday and then the Bishops came to Becket and advised him for avoiding danger and scandal to submit himself to the Kings Will which if he should do jam audierint in Curiâ Regis perjurii Crimen sibi imponi tanquam proditorem judicandum eò quod terreno Domino honorem terrenum non servaret cum avitas consuetudines Regni observaturum firmasset ad quas specialiter observare jurisjurandi nova se illos astrixerat Religione And now sure it will be believed that Becket was accused in this Parliament of Treason for Treason was his Crime not allowing the King with the consent of his States to make any Laws but such as he should approve aggravated with perjury for he had sworn himself to observe them After Becket had given the Bishops an obstinate and resolute Answer to adhere to his Treasonable Practices to disallow the Authority of the King and States in the Laws called the Assise of Clarendon and to oppose the observance of them Observe what Gervasius saith discesserunt Episcopi ad Curiam properantes By and by Becket comes too but the Bishops were there before him carrying the Cross himself which the King as well as the Bishops took to be a coming armed Upon which saith Gervasius vocatis Episcopis proceribus gravem grandem Rex deponit querimoniam quod Archiepiscopus sic armatus in Curiam veniens ipsum suos omnes inauditâ saeculis formâ naevo notaverit proditoris Whereupon the Bishops by the Mouth of Hilaris Cicestrensis a Bishop more eloquent than the rest thus said to Becket Quandoque ait fuisti Archiepiscopus tenebamur tibi obedire sed quia Domino Regi fidelitatem jurasti hoc est vitam membra terrenam dignitatem sibi per te salvam fore consuetudines quas ipse repetit conservandas tu niteris eas destruere cum praecipue spectant ad terrenam sui degnitatem honorem idcirco te reum perjurii dicimus perjuro Archiepiscopo de caetero obedire non habemus This I take to be a judging in Treason But this the Bishops did for their part as Bishops and Suffragans they did withdraw their obedience from their Metropolitan which was as much as in them lay to deprive him a conviction it was of the Guilt not indeed judicium sanguinis But this is not all for observe what our said Author saith further they going away the King saith to them discernite quid perjurus contumax proditor debeat sustinere Itur judicatur à quo vel qualiter judicium pronuntiandum esset informatur In which matter Stephanides as he is cited by Mr. Selden in his Titles of Honour in the Folio Edition fol. 705. tells us how it was consulted and debated between the Bishops the Spiritual Barons and the Temporal Barons for saith he de proferendo judicio distantia fuit inter Episcopos Barones utrisque alteri illud imponentibus utrisque se excusantibus Aiunt Barones vos Episcopi pronuntiare debetis sententiam ad nos non pertinet nos Laici sumus vos personae Ecclesiasticae sicut ille Consacerdotes ejus Coepiscopi ejus Ad haec aliquis Episcoporum Imo vestri potius est hoc officii non nostri non enim est hoc judicium Ecclesiasticum sed Seculare non sedemus hic Episcopi sed Barones Nos Barones vos Barones pares hic sumus Ordinis autem Nostri rationi frustra innitimini quia si in nobis ordinationem attenditis in ipso similiter attendere debetis eo autem ipso quod Episcopi sumus non possumus Archiepiscopum dominum nostrum judicare By which dispute by the way it doth appear that both the Bishops and Temporal Lords did take themselves to be equally constituted Judges and Peers by reason of their common Baronage in this Case of Becket a Cause of Treason the Bishops owned and avowed a Right of judging him as Barons They did not excuse themselves upon the score of the Canon alledged but from the indecency in respect of the relation that they stood in to the Criminal he being their Superiour and Metropolitan they seem'd willing to decline the making of the Sentence Whether any Judgment was pronounced by whom or what the Judgment was is not certain the Historians differing thereupon But when he went out of the Court he was call'd by the people as he past Traytor and perjured Traytor as the King before had called him And if this be not the clearest proof of Beckets being accused of Treason and the Bishops judging in a capital Cause in Parliament there can be nothing proved to satisfaction Besides that all that writ of his story are unwilling Witnesses they magnify excuse and justify the man all along extolling his virtues They call him Saint Pater Patriae so Gervasius does Coll. 1393. and Martyr Let the Reader consider what is here faithfully recited and then let him tell what Opinion he hath of the Candor of the Octavo Gentleman who could find no fault in Thomas Becket for he saith Folio 62. That Gervasius Dorobernensis saith that Becket was charged with two things Injustice to John Marshall and his own contempt in not appearing to the Kings Summons This Author had nothing of his own knowledge to charge upon him and saith that Stephanides is not to be regarded because he was Beckets friend and an obscure Author it may be not yet come into his Study The Author had reason to see no faults in Becket or to forget them all for the good service the insolencies of that man hath done towards the Scandal of the Order But we have not mispent our own time neither will the Reader regret our length in this matter for this single Case consider'd gives a Resolution to the Question and puts the Right of the Bishops to sit in capital Causes out of all doubt This Case will let in light for the true understanding of the Assise of Clarendon For it must be noted that the Great Parliament of Clarendon was held by Henry the 2. about the latter end of January in the tenth year of his Reign the Bishops and Lords were all Sworn to observe the Statutes there made called the Assise of Clarendon called the Avitae consuetudines Regni of which the Law aforementioned was one This Law therefore must be interpreted in such a sense for that the words will bear it and can be intended in no other than that which may consist with the proceedings in the Case of Arch-Bishop Becket and with the Oaths of all the Bishops and Peers and the great men taken but a short time before to observe the Statutes of Clarendon Now if the whole Order of capital Causes had been intended to be excepted by that Statute above
continue them great The contempt of the Bishops and Clergy the great cause of our evil State at present out of which we cannot recover but by an excellent Clergy and a high esteem of them with the people The Postscript ERRATA PAge 13. Line 18. read they p. 15. l. 15. r. Taxeotam Buleutam p. 19. l. 9. r. Blaesensis p. 23. l. 4. r. can p. 44. l. ult dele as p. 51. l. 22. to but add not l. ult to usage add other p. 57. l. 29. r. hucusque p. 130. dele in p. 165. l. 8. r. here p. 167. r. interpolatis p. 180. l. 3. dele them to r. send l. 29. to fit add to mention p. 206. l. 29. r. injurious p 240. l. ult dele near POSTSCRIPT P. 32. l. 1. r. he made his natural Sons first noble l. 7. r. Eufame p. 34. l. 1. r. is not subject p. 42. l. 25. r. decedents p. 45. l. 30. r. he p. 46. l. 8. r. more cruel p. 58. l. 18. r. futility p. 59. l 26. r. being What else is escaped the Reader is desired to correct by reason of the Authors absence from the Press The Argument CHAP. I. IN this question the Constitution of the Government is concerned and the Right of a most principal constituent part and that in a matter of the highest Trust which if truly a Right can be no more relinquished as the Nature of this Right is than a trust can be betrayed a duty and a Right denyed to be paid and performed or the Constitution of the Government changed For of such a Nature doth appear to be the Right in pretence and Controversy of the Lords the Bishops to have judgment in the House of Lords in Capital Causes For by their being made Barons they owed their judgments in such Causes as a service to the King at first by their Tenures in Baronage for though since they are become Barones Rescriptitii or Barons by Writ their duty is not abated And besides the Cognisance of such Causes become their own Right being a part of and belonging to the dignity and office of a Baron And it likewise became an appointment in the Government in which the whole Community have their Interest for that is principally provided for and procured in all Governments whose greatest concern it is to have Justice done against all Criminals and to have great and wise just and good men in the Administrations of Justice and other great offices of the Government The people of England did anciently understand the benefit of this Constitution when nothing but the Baronage of England the Lords Spiritual and Temporal could resist the Torrent of Arbitrary Government And it may be easily understood too that nothing but the Baronage of England is able to support the Throne For that Monarchy unless so supported is the weakest and most precarious and dependent Government in the World except it be supported with an Army and turned into a Tyranny That the Throne should be established by Natural and gentle provisions and the Government fixed is every mans greatest interest If the Lords Temporal have more under command and a larger Potestas jubendi yet the Lords Spiritual out-did them Authoritate suadendi and had more voluntary obedience The Lords Spiritual have several Advantages as they are Novi homines men chosen out of Thousands for an excellent Character and Spirit and need not want any accomplishments if duely chosen and preferred for the discharge of the greatest Provinces that are to be managed by wisdome and integrity and therefore they cannot be well wanted in any Ministries in the Government to which they are bespoken and have a legal designation Since this Authority by the very opening of the Cause doth appear probably belonging to the Bishops and if so that it cannot without breach of their duty that they owe to all the parts of the Government and the whole Community depart from it it may surely be insisted upon disputed and maintained by them without blame or imputation But so unhappily it falls out that the very disputing and contending of this Matter by reason of the unseasonableness of the dispute and the delays that were thereby given to the most important business of the Nation to the great hazard as some think of the summ of Affairs was very mischievous to the publick And now both parties are charging one another with all the mischiefs and the delays that this Controversy hath given to publick proceeding or can with any probability be thought to have occasioned And there are not men wanting on either side within doors and without that are forward enough to charge all those mischiefs as deserved by their oppoposite party which may eventually happen hereupon Who sees not how fatal this Controversy is like to prove to one or other of the Litigants and to the Government in consequence if this Cause cannot be duely heard and considered and be determined upon its own Merits without undue Censures and Reflections on either side Since at last the contenders themselves must be the Judges and give judgment in the Cause or it can never be quieted and have an end I am sure passion is no equal Judge and Arbiter and men angred and provoked have not the same sentiments of the same things as when calm and serene And because there is no common Judicature it ought to be considered by both parties with all equality of judgment and an exact pondering and weighing of the reasons offered on either side for that otherwise it can never be fairly decided but must for ever remain a Controversy to the immediate overthrow and destruction of the Government or over-ruled by the force and Power of a most dangerous consequence in the course of time to the Government and will be a laying of the Axe to the very root of the Tree and will put the Government it self into a State of War between the several constituent parts of it and given an occasion for one part to usurp upon another until the tone and frame of Goverment become changed and at last fall into ruine I am very well aware of the gravity of the Question and its importance the high honour and regard that is due to the House of Commons in Parliament what commendations are due to them in their persons for their zeal and endeavour by all means if it be possible to save the Nation Religion and Government And what a great Capacity that House in its very constitution in the first designation of the Government and by their mighty growth in power and interest in the Course of time have in procuring the publick good and that they cannot have any interest divided from the common Weal I must do them right and with the greatest clearness and satisfaction I determine with my self that their zeal for public Justice against unpardonable offences in their judgment and a prejudicate opinion they had conceived of the Spiritual Lords unindifferency how duely will appear by
will take notice of nothing that is faulty in this Case but that this proceeding tends to abridge freedom of speech in Parliament which he loved from his youth which we do not blame in him As he did also to talk against Bishops which he cannot depart from when he is old But in the first of Hen. 4. this Judgment of Attainder was repealed and annull'd as he himself tells us Fol. 25. And here the Lords Spiritual were Judges which must be remark't for the honour of their Order that though they were the pars laesa by that fault such as it was yet notwithstanding they concurred readily to the repealing the Judgment But by this it appears that the Bishops did agreeable to their rightful Authority sit in Judgment in Parliament in capital Causes and therefore in consequence because it is a Case of his own production he ought to allow that the Bishops might have had Session in the Repeal of the Attainder of Roger Earl of March if it had been or could have been repealed by Judgment or a judicial Act of the Lords House For will this renownedly wise-man for avoiding of this his own testimony which he hath justly produced though it proves to testify against himself say that the Bishops can be present at repealing of a Judgment of Condemnation but not present at confirming any Doth not it in this proceeding come before them in Judgment and consideration Whether the sentence shall be repealed or affirmed and is not this with a witness a question of blood The Judgment being upon an appeal or review must be final peremptory and decretory and is more a question of blood than the Cause can be reckoned and deem'd to be upon the first Instance Or doth he think fit that there should be two sorts of Judges appointed a hanging Judge and a saving Judge if he doth I am sure he will not be able to find an employment for a just Judge So that I think to all men that can consider we have sufficiently vacated that testimony that the Cases of the Earl March and Haxey's seem'd to give against us and they are fairly come over to our side And we have provided herein sufficiently for the recovering of all men into an indifferency against the Prejudices this Octavo by its great Esteem hath done to their Judgments The Third Precedent is 15 E. 3. That Parliament was declared to be called for the Redress of the breach of the Laws and of the Peace of the Kingdom and as the Octavo hath it Fol. 8. because the Prelates were of opinion that it belonged not properly to them to give Councel about keeping the peace nor punishing such evils they went away by themselves and returned no more saith he but that is out of the Record so ready this Authour in Octavo is to shut them out of the House but I pray would not the Temporal Lords if the King had consulted the Parliament in matters Ecclesiastical have in like manner departed but would such departure of the Temporal Lords exclude them from having any thing to do in the Affairs of the Church Why then are the Bishops treated in their Right so unequally And this must serve for an Answer to the Folio p. 17. where he is very large in reciting Records of process and Proclamation against the Earl of Northumberland agreed only by Lords If a Liturgy or book of Canons were to be established by Law the Bishops certainly would have the forming of them The Octavo saith that Commissions were then framed by the Counts Barons and other Grants and brought into Parliament but no Bishop was present so much as to hear the Commissions read because they were to enquire into all Crimes as well Capital as others And for affirming this for all that can appear to us he only consulted his Will and pleasure like an honest man to the cause he defends for he hath not told us from any Record what the Nature of these Commissions were But we observe that though this Parliament was called for matters of the peace yet the Bishops had their Summons and it was not a Parliament excluso Clero The Bishops it seems upon the opening of the Parliament and the causes of convening modestly it seem'd declared that they were not competent as not perhaps studied in Pleas of the Crown or perhaps had not been so observant in fact of the matters of grievance What harm in all this they that cannot propound may judge of Expedients propounded and so did they for it doth appear by the Record 6 E. 3. N. 3. that the Results of the Temporal Lords were approved in full Parliament by the King Bishops Lords and Commons which the Folio agrees But it seems modesty is a dangerous thing and not to be forward to judge and determine though the matter be not understood may be a good Cause to turn a Judge out of his Office and forfeit his Judicature Besides the principal business of this Parliament was Legislation in which the Prelates have an undisputed Right of Session and may they not advise upon what they make into a Law May not they consider of the matter that is to pass into a Law in all the steps it makes But it is admirable what the Folio Book saith viz. that by this Record it is evident that the Prelates have no judicial power over any personal Crimes which are not Parliamentary I suppose he means Crimes not debated in Parliament This doth very much fortify the foundations and grounds of his discourse What are the grounds of his discourse I shall never be able to find out except it be an over-weening Opinion of himself to meddle with these matters which seem too high for him and to which the reading of my Lords Cooks Institutes and the broken Commentaries of the Law will never render any man competent It s true the Bishops have never any power and Cognizance of any Causes except they are commissionated thereto out of Parliament But as true it is of the Temporal Lords and therefore whatsoever advantage this will do his Cause with all my heart let him take it The next Case produced as a Precedent for them is the Case of Sir William de La Zouch and Sir John Gray for a quarrel in the Kings presence they were both committed to the Tower and after brought into Parliament no Bishops there It is a Case that could not be judged there neither was it but one of them was discharged because no probable matter of offence against him and the other remanded to the Tower I suppose to be proceeded against as the Law required Is this cause I pray to his purpose have not the Prelates judgment in causes of Trespass that properly come before that House by his own Confession And yet the Octavo remarks here that no Bishops were present to judge so much as of a Battery though the Record warrants him to say only an Assault But out of his great
as many of them as were most proper to judge or assist in the Judgment as the Case did require were appointed by the King or his Capitalis Justiciarius And that it was so in Fact appears by that Famous Cause wherein Arch-bishop Lanfranck recovered against Odo Bishop of Baieux Earl of Kent Eadmerus Hist Nov. l. 1. f. 9. tells us That there was Principum Conventus an Assembly of Barons at Pinneden in Kent and that the Kings Precept was Rex quatenus adunatis primoribus probis viris non solum de Comitatu Cantiae sed de aliis Comitatibus Angliae Querele Lanfranci in medium ducerentur examinarentur determinarentur disposito itaque saith he principum Conventus apud Pinneden Gaufridus Episcopus Constantiensis vir ea tempestate praedives in Anglia Vice Regis for Odo Bishop of Baieux one of the Litigants was at that time the Justiciarius Angliae justitiam de suis querelis strenuissimè jussus fecit where we see Godfrey at the King's Precept took so many Barons of that Country or of any other where any of the Lands lay as Assistants to him For our Historian saith that Lanfranck though Godfred pronounced the Judgment did recover judicio Baronum qui placita tenuerunt The probi homines were such by whom the truth of the matter might be better understood and did probably enquire of it who did accord and agree the Judgment to be right Lanfranc did recover ex communi omnium astipulatione judicio as our Historian also informs us I might cite many more Records of the Method of the Administration of Justice in this Curia Regis but I should be too long in this matter not being strictly necessary to the Question in hand though the understanding of the Nature of this Court and the Constitution of the Government at this time will many ways inserve to the clearing the Right thereof In this Court Peers were tryed all Pleas of the Crown heard and whatever is now the Business of the Courts of Common Pleas and Exchequer was dispatch'd in this Curia Regis Here Fines were levyed as appears by a Record furnished to us by Sir Hen. Spelman in his Gloss f. 279. the word Fines There men famous for their Skill in the Law did attend and by this Judicature some place was assigned them where they were to hear such Causes as were referred and sent down to them and it is very possible that Fines may be levyed i. e. Concord made of the thing in pretence that was referred to them and it may be true that in a Charter of a Grant of Conusance of Causes Words may be conteined for excluding the Intromissions of the Justices of the one Bench and the other For such Charters never want words These matters are produced by Sir Edward Coke in his Preface to the Eighth Report to prove that the Common Pleas was a Court before the Magna Charta of King John for that these matters are in time before that Charter but these Justices were no other than Ministers to the Curia Regis They were not such Justices as now make that Court all Common Pleas being now appropriated to their Judicature For the Writs before that Charter were returnable coram me vel Justitia mea Glanvil l. 1. cap 6. but after that Charter they were returnable coram Justiciariis meis apud Westmonasterium Bracton l. 2. cap. 32. But before this all Common Pleas were adjudged in the Curia Regis and that Court did send down the Cause to such as did attend that Court to receive its References By Magna Charta cap. 11. it was provided Communia placita non sequantur Curiam nostram sed teneantur in aliquo certo loco And now Writs were made returnable there the Common Pleas were taken out of the Jurisdiction of the Curia Regis one Judicature was appointed for all Causes between the Subjects and one place of Attendance for Litigants By this Provision Justice was administred without Noise and Tumult the Administration of it committed to men of Skill and to such who might be answerable for their Judgments and from whom it might be appealed But after Magna Charta made by King John and confirmed by H. 3 9. the Authority continued of the Justitia or capitalis Justiciarius to him was the resort for Writs from whence all Judicial Authority was still derived He did direct and bound the Justice of the Court of Common Pleas by such Formula's as were allowed in the Curia Regis where the Chancellor and his Colledge of Clerks did attend for the forming of Writs according to the nature of the Complaint with the Allowance of that Court but the Authority of this Court ceasing and the Office of this great Justiciary about the end of H. 3. we find in the Statutes of Glouc. 6 E. 1. c. 7. Laws for a Writ of Entry to be granted to the Reversioner where Tenant in Dower Aliens in Fee though her Alienation was a Forfeiture of that Estate at Common Law But it seems there had been no such Writ yet formed and the Chancellor had no such Power of forming a new Writ That Statute provides that in that Case there shall be a Writ of Entry thereof made in Chancery which is called A Writ of Entry in casu proviso And for that Power might not be wanting in the Chancellor to issue out new Writs where no Writs before formed were fitted to the Case So that Writs in Cases of like reason had been granted by W. 2. cap. 24. it was provided quotiescunque evenerit in Cancellaria quod in uno casu reperitur Breve in consimili casu cadente simili indigente remedio concordent Clerici de Cancellaria in Brevi faciendo Whereas in the full Authority of the Court of the Curia Regis no Right could have failed of a Remedy For Jura sunt matres Actionum But Derivative Authorities are always stricti Juris no Rights are now remediable but where they are in a Parity of Reason or Analogy with such Rights as had received relief in the time of that Great and Original Judicature So inconvenient are those Reformations that reform by pulling down Want of Authority to do Right is a greater Fault in Government than the allowance of a Power that may be abused to Wrong and Oppression But this is the true reason why we have so many Causes irremediable at Common Law petitioning for relief at this day in our Court of Chancery though if the Statute of Westm 2. before-mentioned were well improved the Defects of our Law would not be so shameful and notorious By what hath been said it appears that the Common Pleas was not an Original Court or a Court of ordinary Jurisdiction in the First Constitution of the Government and such it remains and continues to this time For that Court cannot proceed to Judgment in any Cause without an Original Writ out of Chancery though a late Statute makes their
AN ARGUMENT FOR THE Bishops Right In Judging in CAPITAL CAUSES IN PARLIAMENT For their RIGHT unalterable to that Place in the GOVERNMENT that they now enjoy With several Observations upon the Change of our English Government since the Conquest To which is added a Postscript being a Letter to a Friend for Vindicating the Clergy and rectifying some mistakes that are mischievous and dangerous to our Government and Religion By THO. HUNT Esquire In Turbas Discordias pessimo cuique plurima vis Pax quies bonis artibus indigent Tacit. Hist l. 4. LONDON Printed for Thomas Fox at the Angel and Star in Westminster-Hall 1682. THE PREFACE THis Argument for the Bishops Right of judging in Capital Causes in Parliament for their being one of the three States of the Realm and that their Right is unalterable by Law was written above two years since and prepared for the Press time enough to be made publick against an expected Session of Parliament in October 1679. But the Parliament being prorogued from that time until January the Author was willing to respite the Publication to advise with his second thoughts and again to review what he had written in a case of this weight and moment and the rather for that he had but a short time allowed him for its composure Since that there has been published by an excellent person a Book in vindication of their Right of judging called The Grand Question sufficient to give satisfaction if the world were just and impartial and disposed to make right Judgment in the Cause It may well be reasonably expected that Christian People should not be only just but favourable to any pretence of a Christian Bishop to any secular trust that does not lessen the dignity of the Office and seems unworthy of his Character which as it exempts him from mean and sordid offices and affairs of an inferior and more private concernment so it commends him to the Government of matters of a more publick and universal influence such as require the most improved wisdom and learning and a noble virtue It seems to me most unreasonable that those that are the great and principal Expounders of the Christian Law which gives Law to all Laws and instructs men to discharge their several Offices both publick and private that those who are the great Guides of our Consciences and by whose Directions and Institutions we form our Judgments in the greatest intricacies and doubts that perplex humane affairs that the Guides of a Religion which is formed all to life and practice for the making Governments equal and private men good and obedient which is little else but an Obligation to Justice and Charity and principally pursues that which is the end design and whole business of Government I say it seems to me most absurd and incongruous that this Order of men at any time ought to be shut out of that Council and Court where Laws are made and Rules given for the Government of a Christian Common-wealth where the most difficult and intricate causes are to be heard and determined and where an unlimited power remains of censuring the Actions of the greatest men and the administration of publick affairs and the safety of the Nation are consulted which cannot be long preserved but by pursuing the dictates of a wise Religion Such is the Christian Religion if any other we should dishonour it by comparing it to the best Paganism became despicable and abandoned soon after its publication Yet Tully in his Oration ad Pontifices magnifies the wisdom of the Romans as Divine in advancing the Pagan Priests to the highest places in their Common-wealth by which the Common-wealth he saith was preserved Cum multa Divinitùs Pontifices à Majoribus nostris inventa atque instituta sunt tum nihil praeclarius quam quod vos eosdem Religionibus Deorum immortalium summae Reipublicae praeesse voluerunt Vt amplissimi clarissimi Cives Rempublicam bene gerendo Religiones sapientèr interpretando Rempublicam conservarent Such an Opinion more duly and with better reason our Ancestors conceived of the advantage that might accrue to the Nation by advancing the Prelates of the Church into the Civil Government Thereupon they have made them necessary to it and framed the Government in a sort to depend upon them and left it scarce able to maintain it self without them in its present constitution The Temporal Barons will soon find themselves unable to maintain their own dignity and to sustain that province that is allotted to them in the Government unassisted with the Interest and authority of the Prelates the Spiritual Barons a mighty Power if they be as they ought to be of venerable esteem with the people If the present Bishops are not all so happy as to possess such an esteem we know what cause to assign for the same viz. the unhappy Schism that hath too long continued in our Church hath for its own Justification after they are almost sham'd out of the scruples which first caused the separation sought occasions against the Persons of the Bishops and rather than they will want faults to complain of the Order it self must be loaded with all the faults of all the Bishops in all Countries and Ages and they adventure now to disparage their persons for the sake of their office But sure it is a folly that can fall upon no people but such who by the evils they feel or fear are vext out of their understanding to suppress any Office that is necessary to any Common-wealth in any form of Government for the faults of the Officers for the time being But too true it is that a form of Government while established may be so utterly misunderstood by the most when it is not or not duly administred that a true and exact description of it and a discourse of the Offices and Functions of the several parts of the Government would be taken by them for some Vtopian Common wealth or no better please them than a description of the strength of an impregnable Fort once the Security of the Nation when invested by the Enemy A Lecture of a learned Physician of the Vsus Partium will not give sight to a blind Eye nor motion to a withered hand and no body is warmed or comforted by a painted fire But God be thanked we are not yet destitute of the benefits of a good Government Another cause I apprehend may much lessen the Bishops in the esteem of the People and make them want that Reputation that is necessary to every Governour in proportion to his Charge is their manner of promotion The Ministers of State whose business it ought to be to understand the true Characters of men that are preferred to that Office are often mistaken however in this Course they seem not to be promoted for their own Merit but at the pleasure of the great Courtiers and at best the Ministers of State can do no more than recommend to
either not against us or for us And all along observe the candor and integrity of the Author We shall further shew how absurd his Reasonings are to make those Precedents to conclude any thing for his purpose We will also with the clearest demonstration prove That the Assize of Clarendon establisheth the Bishops Authority and right to judge in capital Causes in Parliament And likewise that the protestation made by the Bishops 11. R. 2. is a most solemn Recognition of their Right that the Bishops have sate in Judgment in the greatest capital Causes in Parliament that ever happened that this their Authority hath been exercised in their own Persons and by their Proxies and recognized by Parliaments and other great Courts of Judicature but never before this time brought into Question That no Canon could lessen the Right at most it is but a Councel for their guidance in the exercise of their Authority which they might observe as they please That the Popes Canon Law was never received into England that prohibits Bishops to judge in capital Causes That the Bishops have declined to assist in pronounceing the Sentence of death sometimes as undecent for their Order but notwithstanding and without being contrary to the example and practice of their Predecessors the Bishops may judge upon the Plea of the Earl of Danby's Pardon For that if they do judge the Pardon not good the Earl is not therefore to be condemned And for the better clearing the Bishops Right and for the establishing the Government we shall prove that the Spiritual Lords are Peers of the Realm and one of the three States and an essential part of the Government which no legal power can charge or alter Lastly we shall repel the calumnies of the Adversaries in this cause by which they indeavour to render the Prelates unworthy of their Right and to put them amongst the prodigi furiosi that are scarce allowed to be Proprietors of their own And conclude our Discourse with a just Apology for the Lords the Bishops CHAP. II. ANd First I begin with the Octavo which in the Introduction to his Precedents saith That he will not meddle with the General Question How far forth Clergy-men in Orders are forbidden having any thing to do with secular matters nor what in that particular the Imperial Law requires as that Rescript of the Emperor Honorous and Theodosius which Enacts that Clergy-men shall have no communion with publick Functions or things appertaining to the Court or the Decree of Justinian That Bishops should not take upon them so much as the Oversight of an Orphan nor the proving of Wills saying It was a filthy thing crept in amongst them which appertained to the Master of his Revenue Nor what our common Law of England seems to allow or disallow having provided a special Writ in the Register upon occasion of a Master of an Hospital being it seems a Clergy-man and chosen an Officer in a Mannor to which that Hospital did belong saying it was Contra Legem consuetudinem Regni non consonum It was contrary to the Law and Custom of the Kingdom and not agreeable to reason That he who had cure of Souls and should spend his time in Prayer and Church duties should be made to attend upon Secular imployments I meddle not neither saith he with what seems to be the Divine Law as having been the practice of the Apostles and by them declared to be grounded upon reason and to be what in reason ought to be which was this That they should not leave the word of God and serve Tables though that was a Church Office and yet they say it is not reason we should do that for their work was the Ministry of the Word and Prayer much less then were they to be employed in secular affairs This with great skill he prefixes to his precedents which make the Law of Parliament which is the Law of the Land he saith and after he had said all that he could to make the very pretence it self unlawful and to perswade the shutting of the Bishops out of the House for altogether he subjoyns his Precedents he thought certainly that when he had placed the Precedents in such a light they must look all of that colour and have that appearance which he indeavours too by other arts to give them But we shall spoil his design in a very few words which the observant Reader will apprehend how pertinent it is and satisfactory to what is objected in the recited Preface though we do not for brevity sake apply our answer to every particular of his Discourse We say therefore we can't think the Clergy fit for Proctors Publick Notaries and Scriveners or Ushers of Court or other subservient offices nor fit to make Constables Tythingmen and Scavengers nor to keep watch and ward and to be a Hayward or Bayliff of his Worships Mannors and Townships Or that they should be Merchants or Farmers or interpose in a-any Secular affairs for gain That it was declined by the Pastors and Teachers of the Church as an indignity for them to administer to Tables i. e. to the Provisions of Charity in their Church-feast and they ought to keep far off from a suspition of filthy Lucre nay not to preach principally for gain or make a gain of Godliness By the Imperial Law accordingly they were discharged from the trouble of being Tutors and Curators of Orphans nay where the Law had designed them that care by their relation to the Orphans out of respect to their dignity they were discharged by the Law that they might not incur unkindness to the neglect of their relations nor yet be incumbred with such private attendances to divert them from their great Cure Though the Presbytery might be admitted ad Tutelam Legitimam by their own consent and this was made Law by Justinian Cod. L. 1. By which Law it appears not a Judgment of Incompetency in Clergy-men to intermedle in Secular affairs but an honourable exemption of the Bishops from such private concernments was the reason of that Law It was further provided by a Law of Justinian Cod. L. 1. That Priests should not be made of Court-Officers but those that were so made might continue the reason of the Law is contained in it because that such a man was Enutritus in Executionibus vehementibus seu asperis his quae ex ea re accidunt peccatis Non utique aequum fuerit modo quidem illico esse Taxeatam Buleatam facere omnium acerbissima mox autem Sacerdotem ordinari humanitate innocentia exponentem dogmata In all this the honour of the Church was consulted But business of weight and trust was committed to them Valent. Valens appointed Bishops to set the price of goods sold with this reason Negotiatores ne modum mercandi videantur excedere Episcopi Christiani quibus verus cultus est adjuvare pauperes provideant Justin 79. Novel submits Monks to
to whom such Judgment doth of Right appertain did give their Judgment He concludes that the Bishops could not he said to be his Peers which shews they were not there But he must give us leave with much better Logick to conclude that they were present and We with reason presume because they are Peers of Parliament for so the Record is not his Peers for he fallaciously changeth the Terms they were there except he can prove them absent if common Right is not Reason of presumption no presumption can be reasonable But we can prove to him they were there And thereby in consequence we have another proof that they are Peers Sir Robert Cottons Abridgment tells us 5 H. 4. Fol. 426. that at the same time the Arch-Bishops and Bishops at their own request and therefore certainly then present were purged from suspicion of Treason by the said Earl And at the same time I pray observe Sir Henry Piercy his levying of War was adjudged Treason by the King and Lords in full Parliament Note that here is said to be a full Parliament and yet nothing in the Entry but the stile of Lords So various and contingent in respect of form are the Entries which ought to be observed But to review and consider again the Case of John Hall condemned in Parliament for Treason for murdering the Duke of Glocester And to this place I have reserved the Case of the two Merchants that killed John Imperial an Ambassadour of Genoua for both Cases are of the same nature and must receive the same answer and that is this The Statute of the 25 E. 3. was made to declare certain matters Treason and to be so judged in ordinary Judicatures but withall that Statute did provide that if any other Case supposed Treason do happen it shall be shewed to the King and Parliament whether it ought to be judged Treason Concerning which the King and Parliament do and are to declare by their Legislative power as it is agreed by all and as they did in the Case of John Imperial as appears by that Record expresly So that though the Bishops were not present at the Judgment of John Hall they might have been it must be confessed by our Adversary if the Judgment against John Hall was by the Legislative Power as it must be By this it appears how false an Argument this of his is To conclude no Right from absence for it is plain here it proves too much it proves a thing notoriously false a thing false by the confession of our Adversary and from what any falshood may be inferred is not it self true but stands reproved by the falshood and absurdity of what follows in consequence thereof But this is too Solemn Reproof of so frivolous an Argument for it is no more in effect than this That no man can have an Authority but what he is always in the exercise of The Octavo goes on and remembers that in the 2 H. 4. the first Writ de Haeretico comburendo was framed by the Lords Temporal only and without question it was so For the order of proceedings in Case of Hereticks Convict so required it The Bishops are upon the Matter the pars laesa in Heresy The authority of the Church is therein offended and it was not therefore proper for an Ecclesiastick to be an Actor therein The Author doth improve this as he doth all things that he can with any manner of colour to render the Order of Bishops hated and disesteemed which is the publick establishment the legal provision for the Government and guidance of Religion What mischief then is he a doing How great is his fault to deprave that provision to destroy their Reputation and Esteem with the people to destroy all their authority as much as in him lyeth His utmost endeavours are not thereto wanting to make their Ministries useless and to frustrate the provisions of the Law and the care of the Government in the highest concernment of the Nation Doth this become a great man I will not say a good man God rebuke him To lessen the Authority and disrepute and dishonour any Order of men or any Constitution that can be any ways useful to the publick is a great fault but this of his is a most enormous offence But what can be inferred from hence against the Order of the Bishops may be with like unworthiness inferred against the Christian Religion it self For it may be as well concluded that the Christian Religion is a bad Religion for that men of that denomination in the general Apostasie by pretence of Warranty from that Religion though it gave none murdered innocents As that the practices of the Bishops of that Religion so depraved do reflect any dishonour against the Bishops of reformed Christianity And this Answer will suffice too for the Case of Sir John Old-Castle As for the Earls of Kent Huntingdon and Salisbury the Lord le Despencer and Sir Ralph Lumley before that executed and declared Traytors in Parliament by the Lords Temporal only in the Parliament of the 2 H. 4. and the Earl of Northumberland and Lord Bardolph against whom it was proceeded in a Court of Chivalry after their death who were declared Traytors after they were dead in the Parliament in the 7 H. 4. I hope the Octavo Gentleman and all that are at present of his Opinion will take this for a sufficient Answer if we had no more to say that it was irregular very irregular indeed to condemn men after they were dead when he himself would set aside the Authority of the Case of William de la Poole in 28 H. 6. in Parliament where the Bishops were present which though he saith is the sole single precedent of Bishops acting in Capital Causes We shall therein convict him to be a man of Will to have lost himself in his passions and his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And enter that Case with a cloud of other testimonies and reasons that affirm I will not stick to say demonstrate so as such matters can be demonstrated with a moral demonstration such as shall leave no doubt with any man of the Bishops Right of judging in Capital causes in Parliament But We shall further add for Answer that the Temporal Lords did not herein exercise the Office of a Judge For it could be no Judgment they delivered It was only an officious declaration an avowing of the justness of the slaughter of these great men and to enter themselves of the other side But is it as reasonable for this Writer to fore-judge the Bishops of their Franchise and to have it seized because they would not be guilty of a misuser thereof and would not consent to so insolent a thing as to judge men unheard nay when dead and they could not be heard And to kill over again the murdered Lords for so they are in consideration of the Law who are not by legal process condemned and executed I cannot but observe in many of
Regni definitum est quod Comes Johannes disseiseretur de omnibus Tenementis suis in Anglia Castella sua obsiderentur This is a Cause of Treason for that Richard the First immediately upon the demise of the Crown was King It can be no objection that this was not a formal Parliament for whether it was or no it seems the Bishops power in that Cause was allowed That it was Commune Concilium Regni and had the Nature of a Parliament And that the Bishops therein had a parity of Authority with the Temporal Lords But soon after his return King Richard held a Parliament at Notingham Hoveden mentions the Bishops that were present by Name In which Parliament our Historian tells us That the King Petiit sibi Judicium fieri de Comite Johanne fratre suo qui contra fidelitatem quam ei juraverat Castella sua occupaverat terras suas transmarinas destruxerat foedus contra eum cum inimico suo Rege Franciae contra eum inierat And the like Justice he required against the Bishop of Coventry for that he had adher'd Regi Franciae Comiti Johanni inimicis suis and it was thereupon adjudged Judicatum saith Hoveden quod Comes Johannes Episcopus Coventrensis peremptoriè citarentur si intra quadraginta dies non venerint nec Juri steterint Judicaverunt Comitem demeruisse regnum Episcopum Coventrensem subjacere judicio Episcoporum in eo quod Episcopus erat Judicio Laicorum in eo quod ipse Vicecomes Regis extiterat You see here the Bishops zeal and Loyalty that they adjoyn'd the censure of the Church which they had power of as Bishops to a Civil punishment which they with the Temporal Barons had Authority to pronounce against One of their own Order who was guilty of a design to engage a Nation in a War by opposing the lawful Successour to the Crown and this being so great a Cause We hear nothing here of any scruple the Canon gave them nor mention of any Priviledge of an Ecclesiastick to be exempt from the Judgment of the secular Court In the same Parliament Giraldus de Canavilla was accus'd of harbouring of Pirats and Praeterea saith Hoveden appellaverunt eum de Laesurâ Regiae Majestatis in eo quod ipse ad vocationem Justitiariorum Regis venire noluit nec juri stare de praedictâ receptatione raptorum neque eos ad Justitiam Regis producere sed respondet se esse hominem Comitis Johannis velle in Curiâ suâ Juri stare Hoveden tells us all that were present at this great Council Hubert Arch-Bishop of Canterbury Galfridus Arch-Bishop of York Hugh Bishop of Durham Hugh Bishop of Lincoln William Bishop of Ely William Bishop of Hereford Henry Bishop of Worcester Henry Bishop of Exeter and John Bishop of Carlisle Earl David Brother of the King of Scots Hamelinus Earl de Warrenna Ranulfus Earl of Chester William Earl of Feriers William Earl of Salisbury and Roger Bigot Let any one judge if it was likely that the Bishops did withdraw in the Case of Earl John or the said Bishop when besides them there were but six Barons present at that Parliament What manner of great Council would this Parliament have been that had consisted but of six Barons of what Authority would such a Parliament have been in the absence of the King and a troubled Estate of the Kingdom CHAP. VII IN the time of Edward the Second in the two Judgments against the Spencers the Right of the Bishops to judge in capital Causes in Parliament was carried so high in opinion that their presence was thought necessary to give Authority and validity to the Judgment of the House of Lords in such Cases and their absence was assigned for Error for Reversal of those Judgments for an Error that appears in the irregularity of the Proceedings is an allowable Cause for vacating the Judgment by the same Court that gave it And so far did that Opinion prevail that the presence of the Lords Spiritual was necessary to give Authority to a Judgment of that House that for this Cause because the Prelates were absent that Judgment was reversed Which opinion did arise upon this mistake that because the Lords Spiritual was one of the two States that made the House of Lords nothing could be done without their concurrence But though they are a distinct State from the Temporal Lords they make but one House and they are both there under one Notion and Reason viz. as they are both Lords Spiritual and Temporal the Baronage of England But let any man tell me that can whether if the Lords Spiritual had not been understood Judges in Parliament in Capital Causes it could have been a question whether their absence could avoid the Judgment in the Case of the Spencers much less that such an opinion should prevail that the Judgment should be as it was for that reason reversed And tho' the Reversal of that Judgment was set aside and the Judgment affirmed in 1 E. 3. Yet the publick Recognition of the Bishops Right in the Reversal remains an undeniable Testimony to their Right of sitting Tho' the Reversal of that Judgment was not warrantable for the reason of the Bishops absence as it could not have been reversed by reason of the absence of as many Temporal Barons if there remained enough besides to make a House to give the Judgment And yet we find the Reversal of the Reversal reversed in 21 R. 2. and the Family of the Spencers restored in the person of the Earl of Glocester So prevalent was the opinion that the Bishops Concurrence was necessary in all capital Judgments in Parliament at that time For this see Sir Robert Cottons Abridgment fol. 373. Yet it is observable that the consequence from the Bishops being a third State and an Essential constituent part of that House to a necessity of their presence in all judicial matters even of Capital Offences and Treason did so stick with that Age for they then in that Age did no more know what three States served for or that they both made but one House than some in our time can tell how to find them For that very Reason in 21 R. 2. the first Petition that the Commons made in that Parliament to the King was for that diverse Judgments were heretofore undone for that the Clergy were not present The Commons prayed the King that the Clergy would appoint some to be their Common Proctor with sufficient Authority thereunto The Prelates therefore being severally examined appointed Sir Thomas de la Piercy to assent The words of which Petition and the procuratory Letters for greater Authority and more satisfaction I have thought fit to transcribe Nos Thomas Cantuar. Robertus Eborac Archiepiscopi ac Praelati Clerus utriusque Provinciae Cantuar. Ebor. jure Ecclesiarum nostrarum Temporalium earundem habentes jus interessendi in singulis Parliamentis Domini nostri Regis
his qui in sacris ordinibus constituti judicium sanguinis agitare unde saith the Canon Prolibemus ne aut per se membrorum truncationes faciant a very fitting Employment for a Bishop aut inferendas judicent and after all this we have still our old Answer upon which we will ever insist it is but a Canon and can make no Alteration in the Rights of Government For tho' Gervasius Dorob tells us In hoc Concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula yet the Canons of this Council are not Laws For that our Historian does not tell us of any Parliament then held or that they were confirmed in Parliament and the good liking of Great Men out of Parliament will not confirm nay not justifie the Canons if they cannot justifie themselves in Parliament Besides that these Canons were not made into Laws we will offer two Reasons 1st For that amongst these Canons there is one that disposeth of the Right of Patronage against the Law as it hath been before and since taken and that is this Nulli liceat Ecclesiam nomine dotalitii ad aliquem transferre vel pro presentatatione alicui personae pecuniam vel aliquod emolumentum pacto interveniente recipere quod si quis fecerit in jure convictus vel confessus fuerit ipsum tam Regia quam nostra freti autoritate patricinio ejusdem Ecclesiae in perpetuum privari statuimus which was never most certainly Law Secondly If this had been a Law the other Canon before-mentioned made by Stephen Arch-bishop of Canterbury was idle nay presumptuous for offering to derogate from a Canon made a Law about 47 years before But however Canons confirmed by Law remain but Canons still and the Breach of them not punished as the Breach of Laws nor no Innovation made thereby upon a civil Right of which before and after more As to the Second Canon we observe how dutiful this Canon in the Stile of it behaves it self towards the Civil Government in that Clerks should not exercise Jurisdiction where Judgment of Blood is to be given under the soft word Statuimus that they should not Literas pro poena sanguinis infligenda scribere that is sign an Order for the Execution of a Condemned Man or be present at the Sentence is under the districtiùs inhibemus but the doing of this is not declared to be a Sin he that is contravenient to the Canon is not thereby to become irregular to be punished by his Superior or to incurr Excommunication or any Censure the Clergy are not declared by this Canon to be incompetent Judges it only declares them unworthy of the Protection of the Church the meaning of it is Judge not least ye be judged If you judge the Laicks they will judge you This is the Scandal for which the Privilegium Clericale will be lost So that upon the whole matter this Canon is but Advice and Counsel and offers reasons to the Choice and Approbation rather than a Command under the Authority of the Church in a Council But let it be what it will if the Canon had been most peremptory in its Prohibition and had lighten'd and thunder'd in its Denunciatiations it would have been of no force to alter the Government or discharge a Judge from doing his Duty but this is farther to be duely observed that this Canon could not be broken if the Law had not been otherwise than these Canons direct and therefore these Canons produced by our Adversaries are the greatest Testimonies to the Right we defend and a practice agreeable thereto Doth not the Canon suppose that a Beneficed Clerk or one in Holy Orders was sometimes in Commission for judging in Capital Causes For certainly the Canon did not prohibit them to murder or enjoyn them not to write Letters to subborn men to kill What can be the meaning of the Canon but this supposing a Beneficed Clerk to be made a Judge of Life and Death to assist in a Commission of Oyer Terminer or Goal-delivery that he should be enjoyned not to pronounce the Sentence or to sign the Order or Calendar for Execution But if he were not a Judge how possibly could he sign an Order for Execution By the other words of the Canon Nec intersit ubi judicium sanguinis tractatur he can be forbidden onely to be present and assisting as a Judge or Officer at the pronouncing of Sentence for it can be no fault sure nor ever was intended by any Canon to be made one for any Clerk to hear a Court pronounce a Judgment of Death or Mutilation or to see a Malefactor executed What therefore can be more evident than that the Bishops did withdraw not for want of Right of Session but they pretended the Canon because they did not like the Causes But further that nothing more than what we have shewed was understood to be done in that Protestation by those times they must be allowed at least to know their own Opinions doth appear for that notwithstanding the Protestation of the Bishops aforementioned the great Council of the Kingdom did not think the Authority of a Parliament when the Bishops were absent unquestionable This Opinion we do not go about to maintain but this we conclude that there could never have been such an Opinion if the Bishops had been denied Right of Session in Capital Causes in that time CHAP. IX THE Commons of England in the 21 R. 2 pray that the Bishops might make their Proxy which they did thrice in that Parliament once by Procuratory Letters to Sir Thomas Percy as is before recited and afterwards William la Scroop Earl of Wilts was made their Procurator and a third time the Earls of Worcester and Wilts were made their Procurators in the matter between the two Dukes of Hereford and Norfolk That it may the better appear that the Bishops were virtually present by their Proxy it ought to appear that they were allowed to make Proxies and that the Lords Spiritual did so as well as the Temporal Lords The first mention of Proxies that occurs in the memory of our Parliaments is in the Parliament of Carlisle under E. 1. and that is of the Bishops Proxies The words are these Quia omnes Praelati tunc plenariè non venerunt receptis quibusdam procurationibus Praelator qui venire non poterant adjornantur And in a Parliament held at Westminster under Ed. 2. dors clauso Ed. 2. m. 11. the Bishops of Durham and Carlisle remaining upon the Defence of the Marches of Scotland are severally commanded to stay there and in the Writ this Clause was added to both of them Sed Procurat vestrum sufficienter instructum ad dictum diem locum mittatis ad consentiendum his quae tunc ibidem praedictos Praelatos Proceres contigerit ordinari Though generally Proxies were admitted to both Spiritual and Temporal Lords
Fortunes to their Children but what they themselves could deserve viz. Hate and Infamy All Usurpation and Encroachment of Power is to be opposed where it can be lawfully as the greatest Mischief and the Ministers to the Designs hated and detested as the most pernicious and loathsome Vermine CHHP. XV. BUt to return agreable to this Policy of Sovereign Princes who had the Donation of Bishopricks of advancing Bishops to the highest secular Dignities and Trust William the Conqueror did create Bishops into Barons and exacted the Services and Counsells of Barons in the Great Council of the Kingdom by putting their Lands under Tenure by Barony he gave them no new Endowments but as a Conqueror he confirmed their Ancient Possessions under a new reserv'd Tenure and annex'd to their Order a Secular Honor a successive Baronage Since the Conquerour the title of Baron took the place of that of Thane which was likewise a Feudal Honour in the Saxons time By William the Conquerour Baronies were feudal and in congruity to the State of the Lay Nobles he made the Bishops feudal Barons for there was no other than feudal Nobility at that time It will not be amiss nor time mispent here to give a short account of the Government in the Conquerours time of the Baronage by him introduced and the policy thereof and of the change made in the Baronage of England in after time Because from thence we must derive the Bishops Right now in question which is included and virtually contained in their Right of Baronage Hereby it will appear that the Bishops were of the Barones majores and of the Barones majores the first in Dignity that they became feudal Barons in the Conquerour's time and when the reason of our Baronage changed and no man continued a Baron ratione tenurae it cannot with reason be said that the Bishops are Barons onely for the sake of their Lands which our Adversaries do insist upon for that they think it is an abatement to the Honour of Peerage and a prejudice to their Right in question but because it has been said before by men of Authority in the Law and grown up to be a vulgar error we will now discharge the mistake by affixing here the History and Reason of the change It was the policy of the first William for some are so critical they will not call him Conquerour to create new Tenures upon all the great Possessions of the Realm and impose upon the principal men to hold their Lands of him in capite under such Services that were necessary in peace and war for State and Justice and by putting all the considerable men of the Realm under Oaths of Fealty incident to those Tenures besides the Oaths of Allegeance he provided for the establishment of his Conquest or his possession of the Crown without title The principal men of the Realm both Ecclesiastical and Lay hereby were not onely obliged to support but to become part of the Government and were obliged to be Ministers of Justice and also Members of the great Council of the Kingdom or Parliament which was now to be made up principally of his Dependents by which he changed the constitution of the great Council in the Saxons times in the balance of that equal sort of Government the consequent mischiefs whereof this Kingdom laboured under untill we recovered it again by an equal representative of the Commons in Parliament in the time of King Henry the Third The power of the Baronage proved equally oppressive to the people and came in that time to be reduced irreverent to the Crown By this policy the Conquerour intended to establish his Conquest to secure to himself and his posterity the Imperial Crown of England imagining that otherwise he should have been but a precarious King He had now turn'd the Kingdom upon the matter into one great Mannor and kept his Courts called the Curia Regis in the nature of a Sovereign Court Baron now become more frequented and solemn than that Court was before the Conquest thrice in every Year at stated Times and Places viz. at Easter at Winchester at Whitsuntide at Westminster and at Christmas at Gloucester at these times and places all his Tenants which were all the considerable Free-holders of England attended of course and upon a General Summons at any other time or place appointed by the King as his Affairs did require they were bound likewise to attend In these Courts the Suitors swore Fealty did renew and confirm their Obligations to the Crown and the King became more assured of their Allegiance by their Personal Attendance and by his Royal Entertainments of them at such times In these Courts they recognized their own Services and the Rights of the King their Lord and assessed Aids and Estuage Prestations due to the Crown by their Tenures upon themselves to which in general they were obliged by their Tenures In these Conventions the Right of the Suitors the King's Tenants were adjudged as Private Lords had Judgment of the Right of Lands in pretence held of them in Fee in their several Manors as they have to this day But if Right was not done by the Lord the Cause was to be removed to this Curia Regis the King being Lord Paramount of whom all Estates mediately or immediately were held Which appears by the Form of the Writ of Right now in use which we will transcribe N. B. precipimus tibi quod sine dilatione plenum Rectum teneas A. de B. de uno Messuagio L. in I quae clamat tenere de te per liberum Servitium unius denarii per annum pro omni servitio quod W. de T. ei deforciat nisi feceris Vicecomes faciatne amplius inde Clamorem audiamus pro defectu Recti The Common Pleas was not then a Court and at this time the Appeal and resort to the King was in this Court if Justice was not done by the Lord or Sheriff So that the greatest part of the Justice of the Nation was administred in those Assemblies But it must not be understood that this vast Convention was a Court of Judicature for every Cause neither that it was formally a Parliament without some farther Act of the King for erecting that Convention into the great Council of the Nation But in this Curia Regis they were obliged to answer the King's Writs of Summons Writs of Commission and obey his Appointments in the Ordinary Administration of Justice in which the Capitalis Justiciarius or Justitia was to preside That this was not a Judicature the vast numbers of those that made it the inequality of the Persons considered under the Common Reason of being Tenants in Capite and Barons whereby they became indifferently members of the Curia Regis besides the neglect that must necessarily be presumed in the greatest part of such a Body to the business of Jurisdiction and judging of Rights without particular Designation thereto do sufficiently argue and evince But
Judgments good without an Original upon a Verdict If the Causes that are properly now of the cognisance of that Court of Common Pleas had been allotted to that Court Originally when the distribution of Administration of Justice was made in the Constitution of the Government that Court by its proper Authority and its own Process would have done Justice to all its Suitors without first expecting a Writ out of Chancery to bring the Cause before them or leaving any right without remedy to complain in Chancery of the defects of Justice in that Court But that Law of Magna Charta cap. 11. before-mentioned which erected the Court of Common Pleas fix'd the Judges and appropriated civil Causes to their Judicature no longer now ambulatory was the first step that was made to reduce the Court of Barons called Curia Domini Regis in which the Capitalis Justiciarius did preside Yet still this Court continued a Court of Pleas of the Crown and Appeals and for those that had the Priviledge of that Court as Officers Dependents Suitors as appears by Bracton l. 3. cap. 7. Rex habet unam propriam Curiam sicut Aulam Regiam Justitiarios Capitales qui proprias causas Regias terminant aliorum omnium per querelam i. e. Appeal vel per privilegium seu libertatem This Sir Edward Coke imagines is meant of the Kings Bench but that must be a mistake for sicut Aula Regia is not competent to that Court as now the Capitales Justitiarii were not the Chief Justices we now have For the Office of the Capitalis Justitiarius did yet continue But then that which follows in Bracton the description of the Justices of the Court he before spake of puts the matter out of doubt Item saith he Justitiariorum quidam sunt capitales generales perpetui majores à latere Regis residentes which terms are agreeable to none but the Barons But this sort of Judicature was not fit for continuance and the Barons were to be reduced they were dismist of this Jurisdiction about the time that change was made in reference to them in the Parliament for as long as they continued in their numbers and power so great as they were both Courts and Parliaments were troubled with tumultuous heaps of people brought thither by the Barons to countenance their pretences of which who will may see enough in Eadmerus And this reducement was I doubt not about the end of the Reign of H. 3. when the first Writs were issued to chuse Knights of the Shire Philip Basset was the last of these Capitales Justitiarii Sir Henry Spelmans Glossary p. 415. And then the Court of Kings Bench came to have such Judges as at this day ad obitum H. 3. 1272. Summorum Angliae Justitiariorum authoritas cessarit postea Capitales Justitiarii ad placita coram Rege tenenda appellati sunt saith an ancient Anonymous Author quoted by Sir Hen. Spelman Glossary 406. That ancient Style of Capitalis Justitiarius Angliae is now allowed to the Chief Justice of the Kings Bench though his legal Style is Capitalis Justitiarius ad placita coram Rege tenenda 2 E. 1. Radulphus Hengham was made the first Chief Justice of the Kings Bench as Sir Henry Spelmans Glossary 416. But the Chief Justices of the Common Pleas were first made about the time of King John's Magna Charta when that Court was fixed as is before remembered Sir Henry Spelman out of Florilegus tells us Martin Peteshus was Chief Justice of the Common Pleas 1 H. 3. Neither did E. 1. trust the Barons with the Government of his Revenue as it was before the Capitalis Justic and the power of the Barons was reduced but he made Adam de Stratton a Clerk Chief Baron but in what time of his Reign doth not appear But they continued after they were reduced from the business of the Kings Bench and from that of the Court of Common Pleas to have the Government of the Revenue and making a Court of Exchequer And they still continued the Exercise of their ancient ordinary Right and judged Common Pleas in the Exchequer until the 28 E. 1. And then in the Statute called Articuli super Cartas cap. 4. it was enacted That no Common Pleas shall be henceforth held in the Exchequer contrary to the form of the Great Charter Their exercising their power lastly in that Court may be the reason why the Judges of that Court are called Barons Sir Henry Spelman saith he hath an uninterrupted Succession of the Barons of the Exchequer from the sixth year of Edward the Second by which it appears that the present Constitution was established after the Kings Bench and Common Pleas were made such as they now are But there was one Power and Authority that was inseparable from the Baronage and that is the Tryal of Peers the ancient Curia Regis continues to this day to that purpose as it must no other provision being ever since made therein This is the ancient Court of Peers the Curia Regis when revived The Power and Authority of the ancient Capitalis Justitiarius is as often revived as that Court is erected for Tryal for Offices at Common Law can be no more nor less than the Law appointed That he is called High Steward is no Objection to us for so was the Capitalis Justitiarius called and Justitiarius and Seneschallus are used one for another in the Language of those times Sir Henry Spelmans Glossary 403. And this is the true reason I humbly conceive of that Tradition that the High Steward by the Kings constituting him such hath such mighty powers that are fit to be trusted with him no longer than while he is busie about that piece of Justice for which he is appointed and he is not to receive his Commission but just at his entry upon the business of the Court and not before The power of this Capitalis Justitiarius was the same with that of the Mair of the Palace in France from whence the Conquerour brought this Office which was the same or greater with the Authority of the Praefectus Praetorio amongst the Romans It is a thing to be wished that Gentlemen that apply themselves to the study of Antiquities that relate to our Laws and Government would design to adorn and cultivate the present Laws and to make out their reasonableness rather than to innovate upon us by bringing back what is obsolete rejected and antiquated and that they would contribute what they can to refine it from many absurd reasons that dishonour our Faculty which are the best our Books afford even for some of the Regulae juris I shall instance onely in one or two of them Why the Father cannot inherit the Lands of the Son it is told us for a reason in our Books that Terra est quid ponderosum and will not ascend in the right line whereas the true reason is this the Lord that first granted the Fee neglected the Father gave
it to the Son and his Descendents and to the Family he should derive from himself and when this was alienated in Fee the descent of it was directed agreeably to the manner and direction of the first Collation If the Father gave the Son the Estate there was a Tenure created of the Father as there was in all Feofments of the Feoffer before the Statute of Quia emptores terrarum and it is a Rule in Law that a man cannot be haeres dominus Stamford's Exposition of the Prerogative chap. 5. fol. 23. B. If before the Statute of Quia emptores the eldest Son had enfeoffed the middlemost to hold of him and had taken his Homage the middlemost dieth without Issue the youngest should have had the Land and not the eldest Howbeit if there were no youngest Son or any other Heir than the Feoffor might claim the Land again by Escheat and not otherwise Another is this for a reason in our Law why the Children of several venters shall not inherit each others Lands it is told us it is so because they are but of the half blood to one another and therefore the Brother of the first venter shall not succeed to the State of the Brother by a second venter which dies without Issue But the Land must descend to the Uncle But this Uncle can be but of the half blood to the Nephew and the very reason that is given for the Law makes the Law unreasonable But the true reason why the Brothers of different venters cannot inherit each other is a disallowance that our Ancestors the Saxons had of second Marriages they as most of the Germane Nations esteeming them as concubinat and at best but as permitted Fornication So Tacitus tells us in his Book de moribus Germanorum that they did not allow of Second Marriages Ne non maritum sed matrimonium ament non nuptam sed nuptias and agreable to this Opinion are descents governed in several Countries in Germany at this day This tho' it is apt to excite all Gentlemen of the Robe never to acquiesce in any reason of the Law that is not sence which if they do they will forfeit their Reason and Judgment I should not have been so impertinent as to have mentioned in this Discourse but that this dealing in Causes without the exercise of clear reason about them hath brought it to pass that much of our Law will not sort to Natural Reason and Justice and this gave one great occasion to the Rise and Growth of the Court of Chancery Since it came in my way to shew the Original of the other Courts and the Reader may wonder that there is nothing in Antiquity that gives Authority to so celebrated and so busie a Court as this is at this day I will here offer an account of the Rise and Growth of it which will prepare the way for taking of it down which is no less a Reproach than it is a Grievance to the Nation There is nothing so great a Reproach to a Nation than to have Laws that are confessedly not good and equal to continue them and yet to allow of an Authority to reproach them with Iniquity that our Courts of Law should be under Rules and Obligations to pronounce Judgments which a single Gentleman shall authoritatively controul and condemn as unrighteous that Law and Equity should be Opposites That a Judgment must be made up and formd in a Case and what is equal just and fit therein must not be considered though it can be and will in another Court have a judicial Consideration Our Judges at Law take themselves bound not to hear or regard the Allegations of the Defendants against the Plaintiffs pretence which ought in good reason to bar them therein or at least qualifie the Judgments when the same matter shall be heard in Chancery and prevail either wholly to set aside or to qualifie the same Judgments This is not only to be complain'd of as derogatory to the Reputation of the Wisdom of the Nation but is insufferably oppressive to the Subject by the multiplicity of Suits tedious and vexatious Delays Nay by this ill Contrivance the Expences sometimes equal sometimes exceed the Value of the Right which is litigated and which is worse the Event of the Suit is very uncertain and fortuitous But this is not all our Law it seems is not a Rule that extends it self to all Causes and we have Rights confessedly such and which can be judicially remedied to which the Common Law extends no Relief For a thousand Causes in a year are for that reason heard in the Court of Chancery Two such Reproaches no Nation but ours hath ever yet incurr'd or suffer'd For Law and Equity is no where else opposed and every Right hath his Remedy by the Law of the Country but ours The first great occasion to the rise of the Chancery was Feoffments made upon Trust to uses in the time of our Warring about the Title of the Crown to avoid Forfeitures The Judges in tenderness to the Condition and necessity of those times did judge that an Use was no Right though most certainly it is For it is jus ad rem that nothing might be forfeited when it depended upon chance whether a man should be a good Subject or a Traitor And the same consideration easily admitted of any Authority that would interpose to relieve against those who would abuse or deny such Trusts and no body brought into question that authority by which a piece of justice so necessary to the Nation was administred Another great reason of the business of the Court of Chancery is that which we before-mentioned that we have not improv'd the Statute of Westm 2 C. 24. And a third is the ill conducting of our Laws our Ancient Judges were infected with the Monkery of that time men of no Learning and of a vain Subtilty The Theology of those times was insipid and most trifling and the Administration of Justice agreably turned into a vain art of disputing the apices juris and a subtilty was used too fine for business and to govern the affairs of Men that governed themselves by none of those Superfineries They argued without Discourse or discoursed from positive Rules or Presidents which were almost the same with them as Rules of Law and not from the true Merits of the Cause and its own particular reasons of Right And the Common Law which is Lex non scripta i. e. that which a wise Judicature should declare upon the consideration of the present Case was by the Proceedings of our Courts turn'd into a Lex scripta positive and inflexible and the Rule of Justice could not accomodate it self to every Case according to the Exigency of Right and Justice But if it were consider'd that there can be no Prescription against Justice that no Presidents where a Right hath not been relieved can be pretended why it should not be assisted hereafter And if a matter
pleaded in Bar upon which the Defendant will be certainly relieved in Chancery may notwithstanding it hath not heretofore be hereafter allowed in our Law-Courts we should be in a great measure restored to our easie expedite cheap and certain Justice which the Methods of our Common Law-Courts hath most excellently provided until a Parliament sometime or other may consider whether it be not fit to take it quite down by inabling Courts of Law to do true Right in all Causes that shall come before them For nothing renders the Chancery tolerable but the mo exemplary Virtue and Great Endowments of our present Lord Chancellor in which he is not like to have a Successor But to return to the Curia Regis it was not only the great Judicature of the Nation formally but it was also materially our Parliament too That this Curia Regis was not without any more the Parliament of these times is evident first that the Curia Regis was summoned by a general Writ of Summons directed to the Sheriffs in this Form viz. Rex Vicecomiti Northamptoniae c. praecipimus tibi quod summoneri facias Archiepiscopos Episcopos Comites Barones Abbates Priores Milites Liberos homines qui de nobis tenent in Capite c. Rot. Claus 26 H. 3 M. 7. Dorso This must necessarily be this Curia Regis in Distinction to a Parliament For that in the Grand Charter of King John made in the last year of his Reign it was granted that Ad habendum Commune Concilium Regni de auxilio assidendo aliter quà m in tribus praedictis casibus i. e. Those cases of Aid to make the eldest Son a Knight to marry the eldest Daughter and of Ransom and de Scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per Literas nostras Et praeterea faciemus summoneri in generali per Vicecomites Ballivos nostros omnes alios qui in capite tenent de nobis At present we make no other use of this Grand Charter than to prove it a distinctive mark of a Parliament where the Summons are personal to the Bishops Earls and the greater Barons This Charter of King Johns declares the ancient usage of summoning the greater Barons by special Summons to them severally directed for that the Kings before him as Sir Henry Spelman in his Glossary p. 80. Propter crebra bella simultates quas aliquando habuêre cum his ipsis majoribus suis Baronibus alios etiam eorum interdum omitterent aegrè hoc ferentes Proceres Johannem adegêre sub magno sigillo Angliae pacisci ut Archiepiscopos Episcopos Comites majores Barones Regni sigillatim per Literas summoneri faceret By which it was provided that all the Barons should have pro more Summons to the Parliament that non of those great Barons should want his several Summons and they had anciently several Summons for in a general Summons no body was excluded By which it doth appear that the Council at Northampton wherein Thomas of Becket was brought in judgment was a Parliament and not the Curia Regis for that the Bishops had their several Writs of Summons which appears in that Fitz Stephens tells us as matter of observation that Thomas of Canterbury had not his Writ of Summons but was cited as a Criminal to answer which we before observed And this was but necessary that when the Tenents in capite or Barons which principally at least made the Parliament were to be consulted about some arduous Affairs that they should have notice and a solemn intimation thereof and their presence required and enjoyned by Writs to them particularly and personally directed Besides that it was agreeable to all the forms of Government then in use to have their ordinary and extraordinary Council For Omnes Germanicae Originis Reges atque Imperatores duplici Concilio antiquitùs utebantur altero statario qui Senatus dicitur ad res quotidianas altero evocato concilium aut conventus ordinum ad res momenti majoris as Grotius assures us Neither can it be denied by any man of modesty who hath heard any thing of the state of our Government before the Conquest and that knows that many ancient Burroughs send Burgesses to Parliament by Prescription and will consider the Records produced by Mr. Petit in his very learned and elaborate Book called The Ancient Right of the Commons of England to prove the Right of ancient Burroughs to send Members to Parliament who represent them but that such though not Suiters to the Curia Regis were Members de jure of the great Council of Parliament But the truth is they are not mentioned in any Record or History of any Parliament from the beginning of the Conquerours Reign to the end of Henry 3. as a distinct part of the Parliament of England their Numbers and Qualities were little and mean of no consideration in comparison to that great Body of the Baronage that constituted our Parliaments in that time but our Parliaments seem by the style used in Histories and Records to be onely the Baronage of England William the First in the fourth year of his Reign Consilio Baronum suorum saith Hoveden pag. 343. fecit summoneri per universos Consulatus Angliae Anglos nobiles sapientes sua lege eruditos ut eorum jura consuetudines ab ipsis audiret Those who were returned shewed what the Customs of the Kingdom were which with the assent of the same Barons were for the most part confirmed in that Assembly which was a Parliament of that time saith Mr. Selden Titles of Honour pag. 701. Amongst the Laws of Hen. 1. published by Mr. Abraham Whelock cap. 2. I find thus Forestas communi consensu Baronum in manu mea retinui sicut pater meus eas habuit And after Lagam Regis Edwardi vobis reddo cum illis emendationibus quibus pater meus emendavit consilio Baronum suorum The Parliament is styled Commune Concilium gentis Anglorum and at the same time Commune Concilium Baronum and also Clerus Populus Matth. Paris fol. 52 53 54. And this is sometimes called Communitas for that it represents the whole people and involves their consent Which appears by 48 H. 3. Pars unica M. 8. D. Haec est forma pacis à Domino Rege Domino Edwardo filio suo Praelatis Proceribus omnibus Communitate Regni Angliae communiter concorditer approbata And that Communitas Regni hath no other sense than commune concilium Regni and used as a comprehensive term of them that made it is evident for that it is said in the second Record Si videntur communitati Praelatorum Baronum And again Per consilium communitatis Praelatorum Baronum Further Magnates Vniversitas Regni sometimes used for the Parliament Matth Paris 659,666 And after King John's Charter wherein it was
afterwards sensible of the Injustice and Irregularity of their Proceedings in judging and condemning Commoners and for the avoiding of the like for time to come an Act of Parliament was made which followeth viz. El est assensu accord per nostre Seigniour le Roy touts les gents en plein Parlement per tant que les dits Peres come Judges du Parlement pristerint en le presence nostre Seigniour le Roy a faire a render les dits judgments passant du Roy sur ascun de ceux que n'estoient pas leur Peres ce que encheson de murdre de Seignior Lige destruction de celuy que fu sipres de Sank Royal fits du Roy que per les dits Peres que ore sont ou les Peres que serront en temps aveniz ne soient mes tenus ne charge a rendre judgments sur auter que sur lour peres ne ace fair mes eiont les peres de la terre poer eins de ceo pur tout Jours ore venu soient discharges quietes qui les avant dits judgments ore rendus ne soient ensample nen sequence en temps avenir per quoi les dits peres puissent estre charges desore judges autres que lour peres contre la ley de la terre si autiel case deveigne que Dieu defend Rot. Parl. 4 E. 3. 11. 6. This the Author of the grand Question concerning the Judicature of the House of Peers would have but an Order of the House and no Act of Parliament because it served his purpose to have it so but for no other reason which he offers in that Book but that it was an Act of Parliament will appear by a Record which my worthy Friend Mr. Petyt a most Industrious and Sagacious Enquirer into the Records of Elder Times hath furnished to me which is a Writ directed to the Barons of the Exchequer wherein the afore-recited Record is mentioned and called an Act of Parliament viz. Rex Thes Baronibus suis de scaccariis salutem mittimus nobis sub pede sigilli nostri quaedam Judicia in Parliamento nostro apud Westm nuper tent ' per Comites Barones alios Pares Regni super Rogero de Mortuo Mari quosdam alios reddita necnon quondam Concordiam per nos Pares praedict ' necnon Communitatem Regni nostri in eodem Parl. to fact ' super premissis mandamas quod Judicia Concordiam praedict ' in Scaccario nostro praedict ' coram vobis legi publicari ibid. seriatim in Rotulari de caetero ibid. observari Fac ' Teste meipso apud Windsor 15. die Februarii Anno Regni nostri quinti adhuc Brevia directa Baronibus de termino Sancti Hilar. anno 5 E. 3. R. 33. penes Rememor Domini Regis in Scaccario To compleat our Argument the Concordia appears now an Act of Parliament to the purpose that the Lords should not give Judgment upon others than their Peers yet we find the Bishops afterwards judged in Parliament and that in times near the making of this Act when we may be allowed to presume they knew this Law and besides the practice hath been conformable to the Law since as our Adversary confesseth and particularly to mention no more the Bishop of Norwich in the 7 R. 2. And Thomas Arundel Arch-bishop of Canterbury 21 R. 2. both for Treason were tryed in Parliament by Peers which Cases are before mentioned to another purpose There was likewise an Act of Parliament made 13 E. 3. n. 7. that the Nobles of the Land should not be put to answer but in open Parliament by their Peers but two years after that Act was repealed otherwise we should not have since heard of Tryals of Bishops by common Juries in Capital Causes And when the Lay-peers can again procure and provide for themselves such a Law they will not I hope envy the Bishops if they find them therein included CHAP. XIX BUt after all that hath been said it will be yet necessary to advertise the Reader for informing and settling a true Judgment of the Right of the Cause that in Questions of this Nature we can only arrive to a moral Certainty which is made by incomparably the greatest probability That we cannot be answered but by producing something at least equally probable to all the several parts of our Discourse that are to the question if by any Objection they should render any one part of our Discourse doubtful they would do nothing except they can do so to all the rest which can be done only by offering something more probable For when many probabilities are concurring to prove the same thing they do not singly stand upon their own Credit but they are all assisted by their Conjunction and give Aids mutually to support every one single probability This is but necessary to be said for that I see this Question will be kept up and defended with Obstinacy Passion Interest and unreasonable Contention And farther that it is very undecent that a question of this Greatness concerning a matter grave and important should be endlesly vexed with trifling Objections of the Nequam ingeniosi To prevent therefore the Caprice Captions Cavillations trifling Criticisms forcing of a Grammatical Sence of Words against their true and easie meaning most agreable to the subject matter to the occasion of speaking of them and their probable intendment and to the understanding of the Times when they were spoken And that we may be no longer or more troubled with their Opposings to that which is fairly probable an imagination of something barely possible and which otherwise doth appear notoriously false That Objections neither from the loose Stile especially of partial Historians nor from Records of Matters dark and obscure which leave us in doubt of their true meaning and therefore can be no ground for Argument nor from the various sence of words which they make to stand for this or that as it serves their turn At which rate nothing will be certain because few words have one single determinate Sence may any longer continue the Subterfuge of a desperate Cause and matter of endless Dispute I appeal to the World whether such like Objections deserve an Answer for to some of these Topicks whatever shall be produced by our Adversaries will be reduced And whether they are not rude and imperious to the Dignity of the Right in question to draw it to a Tryal by such mean and incompetent ways and unjust measures as they are otherwise in the Management of this Question to the persons of those that are concerned in it It is with passion to be resented that so noble a Question should be tryed by such means and incompetent ways of Probation and by such unnatural measures which can be endured by none but such who have no measures of Right but an agreableness to their own Projects and who are upon the search
the Reformation to which the Bishops did not assent and would never have passed if they had had a Negative upon them But by his Favor these Instances of his are great Arguments of those Bishops their Sincerity For they must needs be under great and violent Prejudices Besides every great man as the Author of the Letter well knows is apt to value himself and cares not to be accounted a light man and the higher in place the more unwilling to be found in a Mistake and they are not content if Old Men Quae juvenes dedicere senes perdenda fateri There is good Hopes therefore that our Rightfully Reformed Bishops will be the last that will give up the Cause of Reformed Christianity and will not be out-done by the Popish Bishops in Constancy when they have a better Cause I must likewise take notice to do the Spiritual Lords Justice of the Behavior of the Gentleman in Folio towards the Bishops He takes notice and that dutifully of the Satyrical so he calls it Language of the Pamphleteers against the Court and the greatest Scurrilities with which the House of Commons are aspersed but has not heard sure of any against the Bishops and the whole Ecclesiastical Order For he makes not the least mention of any such But because they shall not escape besides that in his Book he declaims 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 against the Order and seems so fond of this Office that he forbids all other the use of the Cart he tells the Story of Hephestion and Craterus the one of which loved Alexander and the other the King By this Apologue I doubt not but he intended a Slander and to signifie thereby supprestly a lewd Reproach viz. that the Bishops are not true Servants of the King and Government but of themselves than which a falser thing I hope cannot be said nor a more malitious thing imagined if not true For he may know that they are better men in their true Character than his Loyal Patriots that are true to the King and House of Commons For they have I doubt not I am sure they ought to have a care of the whole Government in the Integrity of its Constitution The Bishops well know how much the People are concerned in the Greatness of the House of Lords which establisheth the Throne and makes and supports the King Great and by their Power and Interest make his Government equal to which they contribute no small Share for to them is entrusted by the Authothority of our Lord Christ the Conduct of Religion and that mighty and momentous Office hath commended them and advanced them to the State of Peerage and will continue them in great Authority with the People as long as the Nation continues in any degree Religious The Temporal Baronage cannot want them in the Support of that mighty Province that belongs to that House In them the People will find their Interest as long as they can value Wisdom and Religion that is as long as they are Christian Men and by them the Kingly Office will find it self served as long as true Religion and Wisdom can minister to the Support of Government and wise and good men under the greatest Trust and in the highest Dignity in the Government can be fit Councellors and Ministers of State The Octavo hath also a hint to this purpose for pag. 30. where he brings in the Case of Thomas Arundel Arch-bishop of Canterbury when all the Bishops made Sir Thomas Piercy their Procurator he says That uniting in one man argued a great Unanimity in the Voting of the Prelates which seems saith he hath ever been The meaning of this is a sly Disparagement of the Bishops in their Voting viz. that have one Common Tie and Dependency upon the Crown that determines them to their Interest and produces the Unanimity of Voting But are the Bishops more depending because they once for all received their Temporalities from the King than the Temporal Lords who are commoly Officers of State and otherwise depend upon their Prince's Favor Is not the Bishops Advancement rather a Reward to their Eminent Services performed in the matter of Religon of the greatest Importance certainly to the State and a Recognition of the excellent Character of those men that are preferred to that Office than a Bribe upon their Actings after they have that Favor irrevocable Do not we know that the Services of Church-men are rewardable upon the Churches Stock and that the King need not impair the Royal Treasure to pay Thanks to Episcopal Men whose Worth doth bespeak the Royal Favor to that Preferment and Advancement Are not the Temporalities of the Church the King 's only to give but not to retain What evil Prejudice or Obligation can this be to any man to serve the King unfaithfully who hath chosen him perhaps though there were others but as equally fit for that Office For we ought to suppose no other disposition of those Dignities than what is just and fit in our general Discourses however things are administred in particular Cases Is not this an Office together with its maintenance of the Provision of the Law and not of the King But to remove that Scandal of their Unanimity in voting which some have reproached with a scoffing Term of a dead Weight it may be considered that Men of the best Judgments and Honesty mostly agree That Variety of Judgments proceeds oftner from Passion and Interest than from Difficulty of the matter debated It mostly grows either from want of Integrity or want of Judgment Agreement in Votes is an Argument therefore of true Judgment and unbiassed Integrity As it is also farther of a good Correspondence amongst themselves of previous Debates and more mature Deliberation Besides that it is no unusual thing in difficult and lubricous Affairs for many to compromise the matters to a few or to the Majority of their own Numbers and abide the Result of the major part But because this matter of Exception to the Integrity of my Lords the Bishops in the great Affair now in Agitation is argumentum ad hominem and gives Prejudice to the true Right and Merits of the Cause and is the most prevalent and hopeful Argument if not the only one that our Adversaries can rely upon For whatever the Causa justifica or Pretence be for the espousing of any Opinion or part of any Controversie if the Causa suasoria the Inducement and true moving cause thereto be strong and persuasive the slightest Reasons will be a pretence for Confidence and the smallest Color of Right shall prevail finally and in the last Issue especially where the Parties concerned must judge or by their Power can make their Will and determinate Resolves to obtain to the biggest purposes I will therefore farther add that we well know what a high Esteem their true Character doth deserve That they are intended the Light of the World the Salt of the Earth If the Salt hath lost its Savor