their share in making new ones This one would think were enough to content them without desiring to have a Judicial Power in Cases of Blood which I doubt not to prove is by Law forbidden them But I fear the charging this Desire upon them is rather an Artifice of their Enemies who by assixing this Calumny upon them which indeed is not their Design labour to lessen them in the Estimation of the World and by that means bring into Contempt both their Persons and Callings Many Examples I confess are given where Christian Emperours and Princes have made use of the Service of Bishops as Counsellors Chancellors and Chief Justices and the like but upon Examination it will appear that as to our own Kingdom the Offices of these Persons were much mistaken The Office of Capitalis Justiciarius Angliae was not to sit and judge Causes among Associates as at this day but was the Chief Officer of the Nation had the Appellation of Prorex and had Power in the Absence of the King to displace any Officer of the Cinque-Ports and to do any thing as Vice-Roy and Protector of the Kingdom of which see at large Sir Henry Spelman's Glossary in the Word Capitalis Justiciarius Upon Examination it will be manifest that when they sate in any such places their Service rather was to direct the Conscience to make amicable ends of Controversies to preach Peace to others and pursue it themselves till the Subtilty of Rome turned Religion into Policy and destroyed the Power of it How far the Edicts of Princes were binding is not my Task to enquire but only how far that of their not medling in Blood was a part of the Law and Custom of this Kingdom and observed here But what I have said in this Chapter especially as to the Baronies of Bishops I have delivered by way of Proposal not Determination and upon a clear Answer of my Reasons shall be ready to retract any thing I have written CHAP. II. I Come now to the Examination of his second Chapter in which the Recognitions made at the Parliament held at Clarendon come under Examination together with the Protestation made 11 R. 2. I call it a Parliament because I find it generally so esteemed by our best Lawyers and I think denyed to be so by very few Mr. Selden calls it that great Parliament at Clarendon Tit. Hon. part 2. ch 5. p. 703. the first Edit in fol. Coo. 2. Instit. ch 2. p. 6. and in many other places Hoveden saith there met Clerus Populus Angliae Where note he makes Clerus comprehend Bishops Abbots and all Ecclesiastical Persons and Populus both Lords and Commons contrary to what Dr. Brady hath asserted but very weakly proved But before I enter into a more narrow Examination of this Statute I think it not amiss to give a short Account of the History of those times from William the First to the tenth year of Hen. the Second when this Meeting was with Relation only to the King and the Church It will not be denyed that William the First disclaimed all Title to the Crown of England by Conquest and swore to observe the Laws of Edw. the Confessor which were our Laws before yet notwithstanding it is generally agreed that he erected Tenures in Capite and Baronies and that amongst others he obliged the Bishops who before held their Lands in Frankalmoign to do Service to his Courts and to hold their Lands in Cap. sicut Baroniam and not to make their so frequent Appeals to Rome and Journeys thither without his License being a thing contrary to the known Laws of his Kingdom which is made evident by Sir Edward Cook in Cawdryes Case and Sir Roger Twysden in his Vindication of the Church of England in point of Schism These were the Servitutes ecclesiasticae and the Pessimae consuetudines so much complained of by Mat. Paris and other Monks of that Age. But however so it stood during the Times of Will the First Will. the Second and Hen. the First after whose Death Stephen without any Right and contrary to their Oaths made to Maud Daughter to Henry the First then alive by the Aid of the Bishops gets into the Throne and by their Power was kept there till a Composition was made with Maud. In Recompence of this their breach of Oath Stephen frees them and the rest of the Clergy from answering in any other Courts but Ecclesiastical by which they now look'd upon themselves as free from the secular Power because they were answerable for no Offences but in their Courts In this State of things Stephen dies and Hen. the Second Son to Maud according to Capitulation is received to the Crown who after he had setled his Affairs in Normandy resolves to do the like in England but fearing some Opposition to his Designs might arise from the Clergy he first calls together an Assembly or Council at Westminster in the ninth year of his Reign where he propounds That all such of the Clergy as should be taken and convicted for any heinous Crime should lose the Priviledge of the Church and be delivered to the civil Magistrate to be punished for their Offences as other the Kings Subjects were To this the Arch-bishop Becket with the rest of his Brethren refused to give their Consent as being against the Liberties of the Church which were confirmed to them by King Stephens Charter This Answer put the King to a second Question Whether the Arch-bishops and Bishops would submit themselves to the Laws and Customs observed by them in the time of his Grand-father Henry the First They answered equivocally They would their Order the Honour of God and the Holy Church in all things saved with which Answer the King was more enraged But the News of this Breach coming to Rome the Pope writes and sends a Messenger from Rome charges the Arch-bishop to make Peace with his Lord the King and to promise to observe his Laws without Exception The Arch-bishop thus humbled repairs to the King at Woodstock and there promises to observe the King's Laws so far forth as was required Upon this Submission the King having before broken up his Council at Westminster summons this Parliament to meet at Clarendon in the tenth Year of his Reign where he gives in Charge that they should call to Mind and put in Execution and Writing the Laws of his Grand-father Henry the First Of which these following were the chief First that there should be no Appeals to Rome without the Kings leave That Lay-men might handle cases of Tithes That no Arch-bishop or Bishop should excommunicate any person who held of the King in Cap. or interdict any official of his without his leave c. The eleventh of them was at large what we have now under Consideration which I shall repeat and translate as it ought to be by and by But by this short Relation I have made of the History of those
Lord HOLLIS HIS REMAINS BEING A Second Letter to a Friend Concerning the JUDICATURE OF THE BISHOPS IN PARLIAMENT In the Vindication of what he wrote in his First and in Answer to a Book since published against it Entituled The Rights of the Bishops to judge in Capital Cases in Parliament cleared c. It contains likewise part of his Intended Answer to a second Tractate Entituled The Grand Question touching the Bishops Right to Vote in Parliament Stated and Argued To which are added Considerations in Answer to the Learned Author of the Grand Question c. By another Hand And Reflections upon some passages in Mr. Hunt 's Argument upon that Subject c. By a Third London Printed for R. Janeway 1682. The GENERAL PREFACE THE name of the Lord Hollis is so well known both to the Active and Contemplative part of Mankind that no more need be said to recommend any Papers to the World than to give Assurance that they were his and by him Designed for the Press I am perswaded that most who Read the first of these ensuing Treatises and have been conversant in that Great Man 's Writings cannot but acknowledge this for the Genuine product of his large Soul and close way of Reasoning But besides the inward testimony of the thing it self we have other sufficient proof of its being Authentick from such as had the Honour of a familiarity with that Extraordinary Person in his life time to whom he communicated his thoughts on this Subject as he from time to time committed them to Paper He lived not to finish any more of his Answer to the Grand Question c. than what is now published but often affirmed that he had Conquer'd all the difficulties in it Nature was spent and all the Oyl of his Vital Lamp was consumed before he could advance further with his Pen And when we consider that he had past the Age of Man having arrived to his eighty first year and that he still continued Writing for Eternity when he was upon quitting this Mortal state we may well say that his Life went not out in a Snuff as most very aged men expire but that he ascended to Heaven in a bright flame which still continues to enlighten us that remain here below Surely I cannot be taxt of impertinence if I here strew upon his Herse some of Cicero 's happy flowers since one would think they sprung up now for this very purpose Est etiam quietae purae atque eleganter actae aetatis placida ac lenis senectus qualem accepimus Platonis qui uno octagesimo aetatis anno Scribens Mortuus est Let no Man say that it misbecame him to spend his time thus when he was posting to Eternity He had found Truth to stand in need of his Defence and his own Reputation was called in question upon his appearing for it And next to Devotion which without doubt had a due share of his time nothing perhaps can give a greater foretaste of the joys of Heaven than the sense of a Mans having fully vindicated Truth and his own good name The Author of the Considerations is likewise a person of great Age and well known for his great Learning Nor would his Name if made publick give any small Reputation to his Book But he is so sincere a Lover of Truth that I dare say he would not have any Man byast with a previous disposition to believe that there is more force in his Arguments than he finds but leaves them to their natural energy For me to pretend to give the Characters of such Authors as these two would he a presumption beyond what I am guilty of in putting some Papers of mine in the retinue of theirs But though my Character cannot do sufficient Right to either yet a Confutation of Mr. Hunt 's Errors may be a piece of Justice to the Lord Hollis who has been much undervalued by this warm Author And as Mr. Hunt is a Man justly in Reputation for his Parts and Literature unless it be shewn that his Authority is of no great weight in this sort of Learning he might wound by his Censure where he doth no great feats with his Argument I doubt not but he will pardon my freedom with him since he has used as much or more with what I have formerly published to the World Indeed by his Preface one would think that he had wrote before I had set out any thing relating to Antiquities But then he must needs have understood by way of Prophecy what I would say about the Curia Regis great part of which he makes use of and concerning the explication of King Iohn's Charter and several other things which he opposes I am sensible that enough has been said by the Two learned Authors on whose Papers mine attend to clear the Question concerning the Bishops Voting in Capital Cases in Parliament from all the dust raised by Mr. Hunt But he having put things together in another manner than had been done before some might think it requisite that there should be a particular Answer given to every thing of his that bears the face of an Argument both upon the account of the weight his Assertions may carry with many and the want of Judgement in others to apply what may be found in these Treatises to silence all Objections in how different a manner soever they may be repeated And truly this I had done according to my Talent but considering that those things are wrote for the Learned whose Judgements are too delicateisoon to rellish the same dish drest over and over again I thought it convenient to suspend the publication of what has occurr'd to me upon that Subject Nor shall I at present interpose in that Controversie any further than to free my self from a two-horned Argument which I were very dull not to perceive my self to be concerned in if not solely aim'd at by it Having first taken a difference between the Great or General Council of the Nation to which Proprietors of Lands as such had right to come till 49 H. 3. And the Curia Regis compos'd of the Kings immediate Tenants and Officers I had occasion to enquire into the nature of the Curia Regis mentioned in the Constitution of Clarendon which obliges the Ecclesiastick Tenants in Capite interesse judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem This I took to relate to Judgements in the Curia Regis as such And the ground of coming to the Great or General Council being different from that of coming to the Curia From thence I conceived might be gathered a sufficient Reason why the Bishops might have been allow'd to vote in a Legislative Capacity in cases of Blood And yet that practice might no ways extend to warrant their sitting as Iudges upon such Causes either when there was a bare Curia de More or when it sat within the General Council of the Kingdom more
than the Suitors at the Curia being Summon'd The Legislative power they exercised as Members of the General Council or Parliament And the Iudicial power as Members of the Curia and were Members of the Curia as they held Lands of the King in Chief Whereas Men came to the Parliament generally upon the account of property in Land without consideration of tenure so it were free In short a Man may have that in an extraordinary capacity in Parliament which he has not there in an ordinary I likewise held that Becket was try'd for Misdemeanors only though according to the Language of those days they were crimina Laesae Majestatis and that the Tryal was in a bare Curia Regis when no more than Suitors to that were summoned Mr. Hunt 's Argument upon this follows If it was the Curia Regis wherein the ordinary Justice of the Nation was administred and not the Parliament was intended in the Assize of Clarendon in which the priviledge and indulgence under the quosque was allow'd to Bishops then the Assize of Clarendon is unduly urg'd against the Bishops judging in Cases of Blood in Parliament c. And consequently by the Assize of Clarendon the Bishops have no leave to withdraw If the Court wherein Thomas Becket was tryed was the Curia Regis then the Bishops judging in that Court in that cause doth most clearly declare that being a case in point that the quousque was an indulgence which they might use or wave Now to my thinking this seeming irrefragable Argument has no real force For not to mention his wrong interpretation of the Constitution of Clarendon nor yet his mistake of the Fact in relation to Becket 's Tryal as if he were Tryed for a Capital Offence In both which I doubt not but he will receive Conviction to the contrary from these two Learned Authors I am bold to say that there is no manner of consequence in the first Branch of his Dilemma which is the only thing that can lye upon me to answer And truly I conceive that it by no means follows that because the Curia Regis in the Constitution of Clarendon is not the whole Parliament but only that Court which either when a Parliament was held or when only a Council of Tenants in Capite or Lords assembled had the sole exercise of the Judicial Power that therefore Iudgements in Parliament before the Lords such as were Members of the Curia are not affected by that Constitution any more than we can now say the House of Lords cannot be concerned in any matter which does not belong to the whole Parliament I shall only add three Observations which may go far to put an end to this Controversie 1. That part of the Constitution of Clarendon which says of the Ecclesiastick Tenants in Chief Debent interesse Judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem was part of the avitae consuetudines ecclesiasticae If it had been a New Law then indeed whatever was not expresly forbidden were matter of Liberty But it being only in affirmance of the Ancient Law their Liberty went no further than the usage which was to be present only till such Causes came to be tryed 2. If Precedents are as Mr. Hunt censures them like an Oracle that will always give a Response agreeable to the Enquirer and Consulter then we must as I formerly did look to the Law in the Case without entring into the large Field of Precedents 3. If the Canons require the Bishops not to concern themselves in the Tryals of Capital Causes and those Canons have been sufficiently received to become the Law of the Land which these Authors prove undeniably then the Bishops must ever be supposed to have been absent when such matters came in question in Parliament unless they are mentioned there by name and cannot be comprehended under words common to them with the Temporal Lords any more than we can imagine that the Popish Lords who are excluded the Lords House by Act of Parliament yet still are Peers are Parties to any Judgement given by the Peers there SIR THE former trouble I gave you upon this Subject you pulled upon your self by desiring my opinion in it but for this I now give you I must beg your pardon it being singly upon my own account to do my self â—…ht and justifie what I then wrote to you against several aspersions cast upon me in a Pamphlet entituled The Right of Bishops to judge in Capital Cases in Parliament c. made it seems by the same person who had set out the other Pamphlet intituled The Honours of the Spiritual Lords asserted c. Of which I gave you some account in a Postscript to my former Letter and I think without any sharp reflection either upon that Author or his work The most I said was When I had instanced in three notorious falsifications of his The first is p. 112. where he quotes Mr. Selden to prove That the Spiritualty made their Proxies in Capital Causes in more Parliaments than the 21 R. 2. for that they did it likewise in the 2 H. 4. and 2 H. 5. which I shew was a mistake and only said he could not find it so in the Record it self but that he took it upon trust out of the Margin of Mr. Seldens book of the Priviledges of the Baronage p. 125. where there is such a quotation of the 2 H. 4. and the 2 H. 5. but wholly misapplyed by our Assertor of Honours for Mr. Selden alledges that Precedent to shew that whereas 2 H. 5. it was by the then Earl of Salisbury assigned as an error in the Attainder of his Father who was condemned of High-Treason in the 2 H. 4. because it was done Sans Assent des Prelates which are the words of the Record Without the Assent of the Prelates by the way speaks nothing of Proxies it was then adjudged to be no error and his Petition rejected which in truth is a strong Argument to prove that the Prelates had no right to be present at such Tryals and Judgments which is the main Question between us And though he being of another mind had maintained his opinion by so gross a prevarication I was so far from retorting it upon him with any bitterness saying It was disingenious and a suppressing of truth and not setting things down faithfully which is his ordinary language concerning me Or with insipid jeers saying I wear a sharp Sword a Trenchant Toledo as one of the younger house of great Alexander and that he brings me to the Sun like Alexanders Horse and telling of the Magical combate in Apuleius and a City of Birds in Aristophanes and such other scurralous passages as his Book is full of which shews the sweetness of the Gentlemans nature and the goodness of his cause which he maintains only by railing and false assertions Whereas I rather lessened his fault saying only that he was mistaken by being
I say that if the Bishops did joyn in the Judgement it would have been so expressed and they would have been first named otherwise it is like an Et caetera in the beginning of an Enumeration which in the close and after an enumeration of some particulars may intimate a joyning of some others that are not particularly specified and named but is never put in the beginning And I think I may with confidence affirm That there is no example in all the Rolls of Parliament that any of the Benches of the House of Lords hath been particularly mentioned in any business and if the Prelates did likewise act in it that they were not also particularly mentioned and always in the first place nay before any other even before the Prince of Wales and the Princes of the Blood as may be seen in the Roll 28 E. 5. upon Roger of Wygmore's Petition the Record saith Le Roy â—…st venir devant lui les Prelatz Edward son fitz eisne Prince de Gales Henri Duc de Lancastre Countes Barons Piers le Iugement c. The King caused to be brought before him and the Prelates and Edward Prince of Wales his eldest Son and Henry Duke of Lancaster and the Earls Barons and Peers the Iudgement c. Now is it probable or can it be believed that the Decorum concerning the Bishops being in those times still so punctually observed and that respect always given to the Prelacy whenever they were concerned to mention them particularly and in their due place that they would in that Parliament of E. 3. be content to be comprized under a general notion and pass as a man may say Incognito when others have more respect shewed them to have their names recorded I do not think that the Clerk of the Parliament durst have been guilty of so great a disrespect to them Therefore we may well conclude that in this Judgement upon Mautravers the Prelates were not at all signified under the general word of Trestouz les Piers Countes Barons All the Peers Earls and Barons nor were they at all present or had any part in that Tryal no more than in that of Roger de Mortimer Earl of March The other persons judged that Parliament had all the same Judges and passed under the same Judicature The Record for Boeges de Bayons and John Deuerell is Item tieu Iugement est assentiez accorde que soit fait de Boeges de Bayons John Deuerell pur la cause susâ—…ite c. Item The same Judgement was agreed to and accorded to be given upon Boeges de Bayons and John Deuerell for the cause aforesaid c. The very same words are likewise for the Judgements upon Thomas de Gurney and William de Ocle And to prove it more authentically that they were all Ejusdem farinae of one and the same nature I will give you the Kings Writ that declares them to be so to the Lord Treasurer and Barons of the Exchequer commanding them so to inroll those Judgements and with them a kind of Protestation made by those Peers stiled a Concordia ne trahatur in Consequentiam An Agreement that it should not be drawn into Consequence That is Not made a Precedent to oblige and compel them to judge hereafter any but their Peers because of the Judgement they had then given against Sir Simon de Bereford John Mautravers and the rest who were Commoners For as for those who were their Peers they could not avoid the Trying of them particularly in Parliament where only a Peer of the Realm can be tryed in Parliament time which hath ever been the priviledge of the Peers and from which I shall in due time and place before I make an end draw I think an Argument not to be answered that the Bishops are not Peers for if they be Peers and questioned in Parliament time they must be Tryed in Parliament But 4 E. 3. Stephen Bishop of London having been complained of in Parliament for saying That if Edward the Second were still alive as he was informed that he was and in Corfe-Castle he would assist him with all his force to re-establish him in his Throne was by the Parliament referred for his Tryal to the Kings Counsel and by them to the Kings-Bench where putting himself super Patriam to be Tryed as all Commoners do a Jury was empannelled and the Tryal went on there in the Kings-Bench till at last he got the Kings Pardon This is Term. Pasc. 4 E. 3. rot 53. Now had the Bishop been truly and really a Peer of the Realm neither could the House of Peers have avoided the Trying of him themselves nor would he have submitted to a Tryal elsewhere out of Parliament the Parliament being once possessed of his Cause But this is by the by the Writ for inrolling those Judgements and the Concordia is In Memor and. Scaccarii inter Brevia directa Baronibus de Termino Sancti Hillarii Rot. 33. 5 E. 3. In these words Rex Thes. Baronib suis salutem Bittimus vobis sub pede Sigilli nostri quaedam Iudicia in Parliamento nostro apud Westmon nuper tento per Comites Barones at alios Pares regni nostri super Rogerum de Mortuo Mari quosdam alios reddita nec non quandam Concordiam per nos Pares praedictos nec non Communitatem Regni nostri in eodem Parliamento factam super praemissis Mandantes quod Iudicia Concordiam praedicta in Scaccario nostro praedicto coram vobis legi publicari ibidem seriatim irrotulari de caetero ibidem obserâ—…ari faciatis Teste me ipso apud Wyndesor 15. die Februarii Anno regni nostri 5. Per ipsum Regem Concilium The King to the Treasurer and Barons greeting We send you under our Seal certain Judgements given in our Parliament late at Westminster by the Earls Barons and other Peers of our Realm upon Roger of Mortimer and some others also an Agreement made in the same Parliament by Our Selves the foresaid Peers and the whole Commonaliy concerning the matters aforesaid commanding you that the said Judgements and Agreement you cause to be read in your presence in our Court of the Exchequer and there to be enrolled in course and duly observed Given under our Test at Windsor Febr. 15. in the fifth year of our Reign All this shews there was no variation in any of those Tryals but all went on pari passu in the same Method And it is not probable there could be any great change in their proceedings the Parliament continuing together so short a time but fifteen days in all as Mr. Pryn observes by the Writs of wages in his fourth Part which is concerning Parliamentary Writs And I think I may now say that few will believe I concealed these Precedents because they made against me The Case of Sir Thomas Berckley is of another nature his Tryal is said to be Inter Placita
a Capital crime High Treason and a Capital proceeding upon it We see the Sentence was far from Capital and could not have been such as it was if the Crime had been laid in the Accusation to be High Treason Roger de Hoveden in his relation of this business makes no mention of Treason He saith That the King calling a great Council at Northampton Taedium magnum fecit Archiepiscopo did a thing which much vexed the Arch-bishop which was that he caused his Horses to be put into the Arch bishops Inn whereupon the Arch-bishop sent the King word that he would not come to the Council till his Inn was cleared of those Horses yet upon the second day of the meeting the Arch bishop came into the Chapel where the Council sate and there desired the Kings leave that he might go over into France to visit Pope Alexander who was then there which the King denied him and said he should first answer for the injustice he had done to John the Marshal in his Court This John having complained to the King that he had had a long suit in the Arch bishops Court for some Land he held of him and could have no Iustice and that thereupon Curiam Archiepiscopi Sacramento falst ficaverat secundum consuetudinem Regni He had according to the custome of the Kingdom upon Oath charged the Court with wrong doing which I take to be a protesting against the proceeding of that Court and the Judgement there given in the nature of a Writ of Error The Arch-bishop answered to this That John had no injustice done him and that he brought into the Court a certain strange Book and would swear upon that how for want of Iustice he left my Court which the Officers that kept my Court looked upon as an injury done to me because it is the Law of the Kingdome Quod qui Curiam alterius falsificare voluerit oportet eum jurare super sacrosancta Evangelia Whoever will so charge a Court with false dealing must take his Oath upon the Holy Evangelists Notwithstanding this the King swore he would have Iustice done upon him Et Barones Curiae And the Barons of the Court gave Iudgement on him to be at the Kings mercy Which Iudgement the Arch-bishop going about to reverse Iudicium illud falsificare is the expression He was perswaded by the Barons to submit himself to the Kings mercy for a Fine of five hundred pounds Here is nothing in all this that can possibly infer any thing like Treason And it is something observable what both these Authors say of the Judgement given Gervasius saith Curiali Iudicio Episcoporum consensu condemnatus est as if the part of the Bishops in this judgement were something differing from the Act of the Court and not comprized in it Hoveden saith Barones Curiae Regis judicaverunt eum as if the Bishops had no hand in it at all Radulphus de Diceto Decanus Londinensis I suppose Dean of Pauls who lived in those times mentions this business he saith That the Arch-bishop was questioned upon John the Marshals complaint and fined 500 l. and that he was questioned likewise for moneys received by him when he was Chancellour for some Bishopricks and Abbies of which he had received the profits during their vacancies and that not finding the Bishops to be his friends he appealed from their Judgement but then the Proceres the Nobles though he appealed from their Judgement likewise yet they In eum nec confessum nec convictum sententiam intorserunt They wrested a Iudgement against him though he confessed nothing nor was at all convicted You see here is not a word of Treason laid to his charge nor nothing Capital or any thing towards it Matthew Paris tells you the same story and almost in the very same words Now let any man judge whether all those Historians concurring or single Fitz-Stephen disagreeing deserves more credit And that which hath greatest weight with me is the Argument drawn ex natura rei the crime which all agree that the Arch-bishop was charged with was his not appearing upon the Kings Summons which without a great and a very false Multiplying-Glass cannot appear to be any thing like Treason So I must conclude that since the Charge against him had nothing of Capital in it the proceedings upon it was not as against a Capital Offender not brought to Tryal as a Prisoner but came in upon a bare Summons and tarried there and returned at full liberty the Judgement neither of loss of Life nor Limb but meerly Pecuniary and as some of the Authors say compounded with for five hundred pounds I must I say conclude that this whole Case is nothing to our purpose and neither the Law nor usage of Parliament did bar the Bishops from being personally present at such a Tryal And now I come to the point of Peerage which I have so fully handled in my former Letter as I think I need not say much in this Our Asserter brings three Arguments to prove them to be Peers The first is That it is the general stile of all Parliaments from the beginning to be Generale Concilium Cleri Populi even before the coming in of the Normans which no man denies The businesses of the Church as well as of the Civil State are there determined the Writ of Summons shews it which saith That the King intending to call a Parliament Pro quibusdam arduis negotiis Nos Statum defensionem Regni Angliae Ecclesiae Anglicanae concernentibus Bishops and Temporal Lords are summoned and heretofore several others were summoned as Bannerets and sometimes other persons of Quality who likewise were not Peers and yet were called to the Parliaments as pleased the King and the Judges are so summoned at this day Super dictis negotiis tractaturi consilium suum impensuri Where the Bishops act as Bishops and what by the Law of the Land and the practice and usage of Parliaments they ought to do that they do and may do the Temporal Lords in like manner and so likewise the Judges every one acts in his Sphere but this neither gives the Bishops power to judge in Capital Causes if otherwise it be prohibited them nor doth it make them Peers no more than it did formerly the Bannerets and others for their being summoned to sit and vote in the House of Peers We had the experience of this the last Parliament a Baron pretending to a much ancienter station among the Peers by proving that his Ancestor had been summoned by one of our former Kings to sit more than once in the House of Lords yet not making it appear that that favour had been still continued to him and it being made appear on the other side that several Families in this Kingdom would have the same pretence upon the like ground it was the opinion of the House that he had no Right to it and consequently that his Ancestor was never acknowledged to
be a Peer os the Realm and his Blood enobled which otherwise would have descended from him to his Posterity and to this present Baron who is since enobled by a later Creation but takes nothing from that Ancestor So then it is clear that sitting in the House of Peers and having a parity of Vote and enjoying many of the same priviledges with the Peers doth not in true and proper speaking make the Bishops Peers no more than 21 R. 2. Sir Thomas Percy sitting with the Peers and Voting with them as Procurator for the Bishops was thereby a Peer His next Argument is That in several Rolls of Parliament they are expressly called Peers which cannot be denied nor doth that make them Peers if the essential parts of Peerage be wanting to them We know that denominations are many times taken up in a large and improper sense for some circumstances some similitudes something which is extraneous unto them yet wherein they agree with things of another nature And so Bishops having place and vote in the House of Peers and joyning with the Peers of the Realm sitting in Parliament in all things with equal power uno excepto saving only in cases of Blood it is no wonder if they are often stiled Peers of Parliament But the Precedents he cites are falsly recited both in the Case of Mautravers and that of Gomenitz and Weston as I have shewed before His third Argument is That they have judged as Peers upon Peers of Parliament But I deny that they judge there as Peers but as called to the Parliament to be Members of the House of Lords as Bannerets were formerly and many principal Gentlemen who were still Commoners and some Officers as the Warden of the Cinque-Ports who was no Peer sometimes and yet summoned up to the House of Lords and all these judged such Peers as were tryed in those Parliaments in which they sate However that Bishops are not Peers of the Realm and so consequently not properly and truly Peers of Parliament though often called so I think will be clearly made out First I must as I have formerly done insist upon the Great Charter which Sir Edward Cooke saith is declaratory of the Principal grounds of the Fundamental Laws of England and which the Statute made 25 E. 3. Confirmatio Chartarum will have to be observed as the Common Law and all Judgements given against it to be undone and holden for nought this Law is certainly to be obeyed and what is done in observance of this Law is most legal And it enjoyning every man to be tryed by his Peers and Bishops being tryed by a Jury of Commoners Commoners are their Peers and they are Peers to Commoners and not Peers of the Realm Peers per eminentiam as I may call them or else Magna Charta is broken and made a Law of no authority 2. To be a Peer of the Realm their Blood must be enobled and their Persons dignified nor can they otherwise be put into the same rank with those who are so which would make but an ill accouplement and they would never draw well together Now Bishops do not sit in Parliament ratione Nobilitatis but ratione Officii as Stamford saith in his Pleas of the Crown p. 153. En respect de lour possession se launcient Baronies anneres a lour dignitées In respect of their possessions viz. the ancient Baronies annexed to their dignities 3. If they were Peers and their Persons enobled their Wives would be noble and have the priviledges of Peeresses being Married or Widows for Husband and Wife are one person in Law but we know they have no such priviledge which shews their Husbands to be no Peers 4. If Bishops were Peers of the Realm and any of them questioned for a Capital Crime in Parliament time they could be tryed and judged only by the House of Peers and by no other Court of Judicature The Lords could not avoid the trying of them themselves indeed any but Peers they may refuse except it be upon an Impeachment by the House of Commons for then they must retain it and proceed in it but not otherwise except they see some great cause for it Pro bono Publico as it is 1 R. 2. when the Commons desired that no suit between Party and Party should be undertaken and determined by the Lords or the Officers of the Council but that the Common Law might have its course except it be in such a business and against so great a person as one cannot else hope to have right done in it The same is confirmed 1 H. 4. which I alledge to justifie the Judicature of the House of Lords upon those who are not their Peers upon special occasion But for trying of their Peers is a duty incumbent upon them which they must perform and any Peer who is questioned may challenge it as his right and it cannot be denied him And therefore 4 E. 3. when they had upon the Kings earnest pressing them Tryed and Condemned Sir Simon de Bereford Sir Iohn Mautravers and other Commoners they make a Protestation that they nor their Successors Ne seroient mes tenus ne charges a rendre Iugements sur autres que sur lur Piers Should not be bound nor charged to give Iudgement upon any but their Peers But we know that they have sometimes turned off Bishops to Inferiour Courts as appears by the Record of it in the Exchequer the same 4 E. 3. Stephen Gravesend Bishop of London was complained of in Parliament by one Iohn de Wymburne for saying That if Edward the Second was yet living as he was informed he was in Corf-Castle he would assist him with all his power to re-establish him in his Throne Sir Edward Cooke saith that by order of Parliament the matter was referred to be tryed in the Kings-bench but the Record saith that the Parliament referred it to the Kings Council and appointed him to appear before them at Woodstock upon Sunday fortnight after Easter and that they turned him over to the Kings-bench to be Tryed by the Chief Justice Scroope and his fellow Judges Whereas had this Bishop been then accounted a Peer of the Realm he must have been Tryed in Parliament the Parliament being once possessed of his Cause and they could not have referred him to any other Judicature So here you have four Essential parts of Peerage all of them wanting in Bishops and the want but of one Essential part is enough to destroy the whole He can be no Peer of the Realm who is at the Kings sute Capitally Tryed by a Jury of Commoners if Magna Charta be good Law which is our All as we are Free-men Secondly He who is not himself enobled cannot be a Peer in equal rank to one that is For all Peers are equally Peers as we may say Peerage doth not recipere magis minus The meanest Baron is as much a Peer as the greatest Duke else they were not Peers it would be
from me and hath much more of reason and something though not much more of civility and fairness in the maintaining of it so as whether or no his reasons will convince me I know not but if they do I will certainly grant it for my Maxime is still Amicus Plato amicus Socrates sed magis amica Veritas The Writer of this Treatise intituled The Grand Question concerning the Bishops right to vote in Parliament in Cases Capital Stated and Argued doth state the Question right that is Whether the Bishops may be present and vote Judicially in Capital Cases which come to be judged in Parliament either in giving the Judgement it self or in resolving and determining any circumstance preparatory and leading to that Judgement Then he sets down some things granted on both sides as 1. That Bishops do sit in Parliament by vertue of their Baronies and are bound to serve the King there From this he infers they have a Right of Judicature which is not denied but the question is as he saith himself what this Judicature is 2 That they sit by the same kind of Writ that other Barons do Upon which he would infer that they are impowered and required to confer and treat of all the weighty affairs that shall be brought before them the King having not limited nor restrained the one more than the other But it follows not because all are called together by the same authority that therefore the same duty is incumbent upon all if there be a higher power that directs what every ones duty is to do when they are come together Now the King acts in a higher Sphere by the Law of the Land and the law and practice of Parliament which prohibits Bishops from meddling with judging of Capital Causes in Parliament nor did they ever do it but in one extravagant proceeding in 28 H. 6. where nothing was regular nor Parliamentary from the beginning to the end which I look upon as altogether insignificant to alter what is so setled by Law and constant Custome therefore the Kings Writ of Summons cannot dispence with that to make that lawful which in it self is unlawful as I have sufficiently proved it And I will now go a little further in it than I did before for hitherto I have only insisted upon the Law of Parliaments as a thing setled in Parliament by the Constituons of Clarendon in Henry the Second's time and the Protestation of the Bishops enrolled in Parliament by the King Lords and Commons 11 R. 2. but now I will deliver my opinion which I submit to better Judgements that they lye still under a Restraint by the Canon Law which by the Statute 25 H. 8. c. 12. which was repealed 1 and 2 Phil. and Mar. but revived 1 Eliz. is still of force where it is not repugnant to the Laws of the Realm which we are sure this branch of it restraining Bishops from judging Capitally is not so far from it that it is confirmed and strengthened by the Law of the Land 3. The third Particular in which he saith all agree is That they have their Votes in Bills of Attainder acting in their Legislative capacity which is as much a Case of Blood as the other and perhaps as much forbidden by the Canon But I desire this worthy Person to consider that the Practice of Parliament is the Law of Parliament and is the commanding Law for regulating the Proceedings of Parliament and that hath over-ruled this Point that in the making of a Law every Free-man of the Kingdom doth give his consent either explicitly if he be a Member of either House or implicitly by his Representative for every Free-man of the Kingdome is there present or represented And it is the Fundamental Constitution of our English Freedome that no man can be bound by any Law but what himself hath consented to now a Bill of Attainder is as much a Law as any Statute Law of the Kingdom Therefore Bishops have acted in a Legislative capacity to judge and condemn Capitally as several Precedents we have of it in Henry the Eight's time but not in a judicial capacity And to say the Canon Law prohibits one as much as the other the Statute of 25 H. 8. clears that point which takes away the force of the Canon in the one not to abridge Members of Parliament from voting in the Legislative way and strengthens it in the other forbidding Bishops to vote Judicially in Cases of Blood Yet if you will have me deliver you freely my opinion in it I think it is an abuse crept in since Henry the Eight's time for before none were judged by Bill but such as had been slain in open War or Tryed Condemned and Executed by Commission and then the proceedings brought into Parliament and there approved of and the Attainder confirmed but under Henry the Eighth several persons were condemned by Bill and the Earl of Strafford lately in our memories which seems now to be authorized by the Practice of Parliament Sir Edw. Cooke tells a story which he had from Sir Thomas Gaudy one of the Judges of the Kings-bench how the King had commanded Cromwel and the Earl of Essex to attend the Justices and know of them if a man who was forth coming should be condemned by Act of Parliament without being heard who after some fencing answered if it were so it could not be afterwards called into question and Cromwel himself was not long after so served but this is by the way Multa quae fieri non debent facta valent I have been a little the longer in these particulars because it will much smooth our way in the following discourse And this worthy Gentleman must give me leave to say That he needed not have put himself to all that trouble of his first Chapter in telling us of the mighty power the Clergy had in the Primitive times in the ordering of Secular affairs which certainly was more by way of Counsel than any thing of Authority by way of Judgement and in a Judicial way And he will avow to me I doubt not that the ministery of the word was a full employment for the Apostles and so for Bishops who call themselves their Successors as well as serving of Tables and other ministerial duties was a full employment for those whom he calls the Treasurers of the Church and therefore they said it for themselves and left it as a Rule for their Successors even to Bishops and all other dispencers of the Word and Sacraments that it was not reason they should leave the Word of God and serve Tables Which it seems was a Non est Consonum by the Law of God just as by the Common Law of the Kingdom a Writ was provided declaring it to be likewise a Non est Consonum and to be Contra morem Consuetudinem Regni that Clergy-men should be employed in Secular affairs This indeed I hinted at then as I gave also some little touch at
the Government of the Church by the Imperial Law but not that I put any stress upon it but meerly to circumscribe the Question and keeping it within limits by a Negative declaring what it was not and an Affirmative expressing what it was how Bishops in Parliament could not Judicially act in Capital Cases Therefore were it all so as this learned Gentleman seems to infer that in France Spain Germany and those Northern Kingdoms which he mentions that Bishops were joyned with the Civil Magistrates in ordering the Publick Affairs of those Nations and that they had a share not only in the Legislative but in the Judiciary part as he alledgeth two Authors to prove it to have been in France it would not be of any signification to decide our Controversie for what is this to us to regulate our Parliaments and to operate on our Laws But first for matter of Fact as to France to which I can speak a little having spent many years in that Kingdom and I have by way of discourse informed my self from the Ambassadour who is here from that Crown who doth assure me that the Judges whom they call Counsellors and not Judges as we do who are Clergy-men as many there are joyned with the others of the Laity never sit in that Chamber of Parliament which trys Capital Causes which they call the Tournelle I believe the same may be observed in those other Countries which our Author mentions and I do not see how it could be otherwise the severity of the Canon Law being so strict in the prohibition of it But as I said before the Primitive Christians had that veneration for the Clergy and especially for the Bishops that they were still joyned with the Civil Magistrate in ordering the affairs both in Church and State The matters of the Church they determined Judicially in Secular affairs whether Criminal or other only by way of Counsel if the Civil Magistrate to whose Province they belonged did not do his part I am sure it was so in England Brompton in his Chronicle recites the Laws of King Athelstane in this particular I cited his very words in the original in my former Letter I shall now repeat them very faithfully in English He saith It appertains of right to a Bishop to promote that which is right both concerning God and the World A little after he addeth He ought likewise diligently together with the Secular Judges to promote Peace and Concord And soon upon it he hath this passage The Bishop ought to be present in Judgement with the Secular Judges not to suffer any buds of wickedness to sprout if he can hinder it His Presence and his Counsel was rather a check upon the Judge than to determine any thing in Secular affairs Sir Henry Spelman is a little more particular in delivering unto us the nature of that mixt Court it is in his Glossary upon the word Comes The Earl he saith did preside in that County Court not alone but joyned with the Bishop he to deliver what was Gods Law the other what was Mans Law and that the one should help and counsel the other Especially the Bishop to do it to the Earl for it was lawful for him sometimes to reprove the other and to reduce him bring him into order if he went astray Then he tells us what the work of that Court was that it had cognizance but of petty matters That the Earl had not cognizance of great mens businesses for such matters are to be brought into the Kings Courts he only judges poor mens Causes Hence it is that by our Law Actions for Debts and Trespasscs are not to be commenced in the County Court if it be for above the value of 40s It seems that in ancient times it was but one Court but each Judge had his proper work the Ecclesiastical Judge to distribute and deliver to them what was Gods Law the Secular Judge Mans Law And so it continued till William the First 's time who first separated the two Courts as appears by his Charter to Bishop Remigius which Mr. Selden relates in his Comment upon Eadmerus p. 167. which he saith the King did Communi Concilio Archiepiscoporum suorum raeterorum Episcoporum Abbatum omnium Principum regni sui In a Common Council by the advice of his Arch bishops and the rest of the Bishops and Abbots and all the great men of the Kingdom The words are Wherefore I command you and enjoyn you by my Royal authority that no Bishop nor Arch deacon presume to hold Plea in the Hundred Court any more upon the Episcopal Laws nor bring any Cause that pertains to the rule of Souls before the Judgement of Secular persons but that whoever is questioned according to the Episcopal Laws for any misdemeanour or fault shall come to that place which the Bishop shall chuse and nominate for that purpose and there shall make answer for himself and not in the Hundred Court but shall according to the Canons and the Episcopal Laws do that which is just and right both to God and to his Bishop This was again confirmed 2 R. 2. and so the Courts came to be divided as they continue to this day But nothing can be concluded out of that large Enumeration of the Bishops being admitted in those ancient times to Publick Councils which was more for their Advice and Counsel and Direction than to act any thing at all Authoritatively and Juridically and least of all to have any vote to determine any thing in Cases of Blood which the Canon Law made a Noli me tangere to them I deny not but before there were Christian Magistrates even in the Apostles times the Ministers of the Gospel did many times interpose and reconcile differences and sutes which many times happened amongst believers as St. Paul saith Is there not a wise man among you no not one that shall be able to judge between his Brethren Nor doth he exclude the Bishops that they may not come in as one of those wise men Yet 1 Cor. 6. 4. he seems to exclude them For he saith If then ye have judgement of things pertaining to this life set them to judge who are least esteemed in the Church Which doth seem to intimate as if he meant not the Bishops for sure they are not least esteemed But doth any man think that they were by this authorized to compel men to submit to their Judgement to punish or imprison or lay any corporal punishment upon them if they would not Indeed I cannot think so Nor do I find that St. Augustine was of that opinion the term he gives to those whom the Author of that Treatise will have to be Ecclesiastical Judges doth not imply so much rather the contrary methinks He calls them Cognitores which denotes rather one that took notice of such differences and would endeavour to compose them than a Judge to determine them which hath made me examine that passage more
particularly In his Comment upon the 118 Psalm he saith speaking of those who interrupted them in their enquiry into the duty which they owed to the Commandments of God Non solum cum persequuntur aut litigare nobiscum volunt verum etiam cum obsequuntur honorant tamen cum suis vitiosis negotiosis cupiditatibùs adiuvandis ut occupemur eis nostra tempore impendamus efflagitant aut certè infirmos premunt ut causas suas ad nos deferre compellant quibus dicere non audemus dic homo quis me constituit Iudicem aut divisorem inter vos Constituit enim talibus causis Ecclesiasticos Apostolus Cognitores in foro prohibens jurgare Christianos Here is nothing of coercion in all this they acted not as Judges nay he complains that the Clergy-men themselves were persecuted and compelled to go to Law or if they seemed to shew them some respect and would be ruled by them and drew them from their occupations to compose things between them they would not drive them away and say who made me a Judge between you For the Apostle who forbids Christians going to Law makes the Clergy to be Cognitores Referees or Umpires between which is the greatest act of Charity that can be and most befitting the calling of the Ministers of Gods Word But what saith St. Austin a little after Good men he saith will hearken to us and seldome trouble us with their Secular affairs but others qui inter se pertinaciter agunt quando bonos premunt nostra Iudicata contemnunt faciunt que nobis perire tempora rebus eroganda divinis Good men will hearken to him he saith but those who are perverse do Iudicata contemnere despise his award of it which shews he took not upon him any authority of determining any thing And so in his 147th Epistle to Proculianus the Donatist he hath this passage Et homines quidem causas suas Seculares apud nos finire cupientes quando eis necessarii fuerimus sic nos Sanctos Dei servos appellant ut negotia terrae suae peragant aliquando agamus negotium salutis nostrae salutis ipsorum Non de auro non de argento non de fundis pecoribus pro quibus rebus quotidie submisso capite salutamur ut dissentiones hominum terminemus c. Nothing plainer than that all this is purely out of good will a work of Charity to those who desire him to determine their Secular differences in which the Clergy then had meerly an eye upon Gods Glory the good of their own Souls and of the Souls of those for whom they took that pains But all this is Nihil ad rem let the Clergy have right or no right to judge of Secular Causes it will not decide our Controversie Whether Bishops in Parliament can meddle in cases of Blood Hic Rodus Hic Saltus if we do all extravagate I must come back to this His next Chapter will be more to the purpose it is concerning the Constitutions of Clarendon and the Protestation of the Bishops 11 R. 2. These two particulars well cleared and no disguise put upon them will go a great way He begins with the Constitutions of Clarendon which he conceives to be that Bishops are thereby required to be present in the Kings Courts as other Barons are till they come to give Sentence as to dismembring or loss of life and his Method is to judge of them by these three ways 1. The occasion 2. The plain sense of the words according to their true reading 3. By the subsequent Practice upon this constitution in the Parliament at Northampton soon after 1. For the occasion this Author is pleased to say he can hardly believe I should betray so much unskilfulness in the affairs of those times as to say that the Bishops did then affect such a power of Judicature in Secular Causes and I think I have good warrant to be of that opinion Petrus Blesensis whom this Author cites as living in Henry the Second's time and knowing the whole proceedings of those Constitutions complains of it sufficiently In the first and genuine Edition of them Printed at Mentz in Quarto published by Busaeus the Jesuite in 1600 in his Treatise De institutione Episcopi p. 542. he hath this passage Illud coelestem exasperat iram plerisque discrimen damnationis accumulat quod quidam principes Sacerdotum seniores populi licet non dictent Iudicia Sanguinis eadem tamen tractent disputando disceptando de illis seque ideo immunes à culpa reputant quod mortis aut truncationis membrorum Iudicium discernentes à prounciatione duntaxat executione poenalis sententiae se absentant Sed quid hac simulatione perniciosius est Nunquid discutere definire licitum est quod pronunciare non licet This provokes Gods wrath and heaps up upon many a danger of damnation that some of the prime of Church-men and Elders of the People though they do not dictate Iudgements of Blood yet they debate them and dispute of them and therefore repute themselves free from fault in regard they have withdrawn themselves from being present at the pronouncing and giving order for the execution of the penal Iudgement though they had before agreed to the punishment of Death or loss of Limbs But what can be more pernicious than such dissembling Can it be lawful to debate and to determine a thing which it is unlawful to pronounce Then he compares them to King Saul that had resolved upon the destruction of David but would not that his hand should be upon him but that he should fall by the hands of the Philistines or to the Scribes and Pharisees that cryed out against our Saviour Crucifie him Crucifie him but said it was not lawful for them to put any man to death Is not this as good as Chaucer's Fryer that this Author quips me with p. 4. I do not say that Blesensis blamed all the Bishops for evading the Law in that manner he saith they were quidam Principes Sacerdotum some of the great Bishops But the Author would have it to be the Universal Practice and Opinion of all the Bishops and Clergy to understand the Constitution of Clarendon that they might continue to sit in Judgement till the Sentence was to be pronounced and in the Edition of Blesensis Printed at Paris in 1667. instead of quidam it is Printed quidem but by a manifest error which carries no sense with it and the Marginal Notes in both Editions shew it which is Abusus Clericorum qui causas sanguinis discutiunt marking out the abuse of them that did so This was obvious enough to the Author in his quotation of Blesensis therefore he might have spared the censure of my unskilfulness in the affairs of these times since I had such a Leader to follow as Blesensis and more have I cause to complain of his want of Charity to
Times it may appear plainly that their yielding Obedience to the known Laws of the Kingdom in matters of Appeal appearing and answering in the King's Courts though it were the ancient Usage and Custom of the Realm was the thing that most vexed them and not how far their Presence was required in cases of Blood brought into Parliament in which they were contented to be limited by the Usage of that Court and to afford or forbear their Presence according to that Obligation which was incumbent upon them from the Canons of the Church invigorated by the constant Usage of the Nation If therefore I can make it good that the Bishops had no Right to be present in the Debate and handling matters of Blood and that that was the known Law and the Sense of this Act now before us and of the subsequent Protestation in 11. of R. 2. I shall think my self competently safe though some seeming Precedents and Records should be brought against me for it is the Law must be the Measure and Standard of our Actions and not always Records the Reasons whereof are sometimes obscure and the matter it self many times shortly rehearsed and not always legal I must confess this Author hath much laboured to fix a Sense upon this Article subservient to his Purpose but the more he struggles the more he is intangled 'T is worth Observation that four or five I suppose different Persons have written in the Defence of the Bishops Right to vote in Capital Causes in Parliament and having all of them a necessity to say something to this Law of Clarendon do all of them give different Interpretations of the meaning of it a great Argument of a weak Cause The first whose Title is The Honour of the Lords Spiritual c. I presume being satisfied with the general Sense which was put upon these Constitutions from all times from which it is always unsafe to vary and perceiving that those illegal Priviledges granted to them by King Stephen were by the reviving the Laws of Henry the First abolished doth ingeniously confess in three places pag. 26. at the end of the sixth Chapter and in the same page at the beginning of the seventh Chap. That at Clarendon their Wings were indeed much clip'd yet the Priviledge of sitting and voting in Parliament is left intire to them and tho' they never of late voted in Capital Cases yet they have ever made their Proxies as he hopes to make appear In Chapter the seventh he hath these words We confess as before for that they were Spiritual Persons they were not to sit in Capital Causes and loss of Limb but adds that long before they had exercised this Power By which Words it appears that in the Judgment of that Author whatever their Power and Practice was before yet that now by the Laws of Henry the First recognized at this Parliament at Clarendon that Power was taken away and not since practised That they had such Power before he endeavours to prove out of Compton and Spelman neither of which Authors make good any more than that the Bishop was Assessor with the Earl in the County-court which was only to advise him in point of Conscience not much unlike the Offices of our Surrogates who sit in consistory with the Bishops Chancellor in whom we know resides all the Power That this is so appears by the Laws of Edgar put out by Mr. Lambert who in his fifth Chapter hath these Words Centuriâ—… comitâ—…is quisqueâ—…t antea praescribitur interesto Celeberrimus autem ex omni Saâ—…ia bis quotannis conventus agitor cui cuidem illius Diocesis Episcopus senator intersunto quorum alter jura divina alter humana populum edoceto By which we see 't was the Office of the Bishop to direct the People in Divine Laws as it was of the Senator or Earl to teach them Humane of the same Opinion is Sir Edward Coo. 2 Instit. p. 488. Stat circumspecte agatis Lastly Chap. 8. pag. 32. he mentions the Council at Westminster that in regard they might not Agitare judicium sanguinis they had many times forborn to meddle in such Matters The whole Chapter is concerning Bills of Attainder now whether he meant that in such cases they did sometime absent themselves let himself explain This Author not fore-seeing the Advantage would be made of these Constitutions or else hoping to help himself upon the Power they had to make Proxies doth ingeniously confess the Truth but is deserted by all those of his Side who follow him The Author of the Rejoinder p. 5. tells you that the Constitutions of Clarendon permit the Bishops to be present and vote till it comes to loss of Life or Member which is not till the passing of Sentence upon the Prisoner I believed the loss of Life and Member was the Execution and if they may be there and vote till then they may be present as long as any other for when that is given all go away but if his Meaning be that they should go away when the Sentence is to be pronounced the precedent Words will not bear that Construction so that according to him this is rather an imping than clipping the Wings of the Bishops as the former Author affirmeth Beside this Exposition is contrary to the Votes of the Lords who tell you they must go away when their Lordships proceed to voting Guilty or Not Guilty which is before the definitive Sentence which is always given in the Presence of the Prisoner the other not Vide Iournal of Parl. pag. 258. 15 Maii 1679. in which they explained a former Vote made by their Lordships 13 Maii 1679. in which they had voted that the Lords Spiritual had Right to stay in Court in Capital Cases till Sentence or Judgment of Death came to be pronounced by which you see the House of Lords have disowned that Sense our late Interpreters would put upon the Words of this Constitution though themselves before had given colour to that Interpretation Our third Author intituled The Rights of the Bishops fairly passeth over this Law only tells you that a Bishop pronounced Sentence against Becket in case of Treason as Fitztephen a grave Author saith and farther tells you That though the Prince may indulge many Priviledges to his Clergy as this of not compelling them to vote in Parliament in cases of Blood where by the Canon Law they are prohibited yet that Law must yield to the Law of the Land but how if the Canon Law be part of the Law of the Land what 's then to be done which cannot devest the King of his Right of using his Subjects Clerks or not in any Places or Employments he shall think fit to employ them in or in which he may think them capable of doing Him or the Publick any Service This I confess is plain dealing and I wish it were not too much the Sense of some of our greatest Clerks that let the
Law be what it will it cannot bind the King's Hands from making use of any of his Subjects in what he pleases though the Employment be forbidden by Law This is the Meaning our third Author gives of this Constitution and much good may it do him Our last Author in his Grand Question comes next to be examined in which I shall be more large because in him is concentred what the rest have said and his Cause defended with much Learning and variety of Reading He names the Constitutions of Clarendon and the Protestation in 11 R. 2. as the two main Laws against him The Constitutions of Clarendon which were no more than a Recognition of the ancient Laws and Customs of England not made but revived by Hen. the First and now confirmed by his Grand-son Hen. the Second he considers as the most material and is content this Cause should stand or fall by them He tells you the Constitution in Debate is the eleventh in number of which the Words are Archiepiscopi Episcopi universae Personae regni qui de Rege tenent in Capite habeant Possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis Ministris Regis faciant omnes consuetudines Regias Et ficut ceteri Barones debeant interesse Iudiciis curie Regis quousque perveniatur ad diminutionem Membrorum vel ad Mortem After the Words he gives us the Translation of them made by the Author of the Letter in the following manner The Arch-bishops and Bishops and all the dignified Clergy of the Land that hold of the King in Capite shall hold their Possessions of the King as a Barony and answer for their Estates unto the King's Justices and Ministers and shall observe and obey all the King's Laws and together with the other Barons they are to be present at all Judgments in the King's Courts till it comes to require either loss of Life or Member But pray Sir why did you not rather give us a Translation of these Words of your own If the Author of the Letter have made an imperfect Translation why did not you mend it I believe if this Author had found it would have advantaged his Cause some Exceptions would have been taken to the Translation I shall by and by give the Reader a full account of the true Sense of the whole Period but will first make appear the Unreasonableness of the Exposition he makes of the last Clause of it Et sicut caeteri Barones debent interesse judiciis Curiae Regis quousque perveniatur ad diminutionem Membrorum vel ad Mortem The Meaning he conceives to be That the Bishops are required to be present in the King's Courts as other Barons are till they come to give Sentence as to dismembring or loss of Life Why he translates Curiae Regis in the plural Number the Kings Courts which is in the singular the King's Court and in this place hath always been understood of the High Court of Parliament in which the other Barons had an Interest to be present as Judges and in which Sense it is very often taken as is made clear by Mr. Petit in his learned Discourse of the ancient Rights of the Commons of England Pref. pag. 45. out of Gervasius Dorobornensis pag. 1653. who speaking of the Election of Arch-bishop Lanfrank hath these Words Eligentibus eum Senioribus ejusdem ecclesiae cum Episcopis ac principibus Clero Populo Angliae in Curia Regis in assumptione Sanctae Mariae and another Author saith it was Consensu Consilio omnium Baronum suorum omniumque Episcoporum Abbatum totiusque Populi Angliae commisit ei Dorobornensem ecclesiam That this was a Parliament we have little Reason to doubt and that it was called Curia Regis See also Inter com T. Hill 17 E. 3. penes remem in Scacc. 29. 32 H. 3. mem 12. 13. in dors rot claus Consideratum fuit in Cur. nostra toto Parliamento nostro c. Wherein Cur. Regis totum Parl. are but expressive of the same thing and not two Courts as I think I very well know that Curia Regis had various acceptations sometime it signified that Court of Justice that at those times followed the King's Person sometime it was taken for Aula Regis where Entertainments and Feasts were made as we read often in our Historians but I take it here to be understood of the High Court of Parliament for the Reasons before touched and many others if any shall seem to doubt of it Next why doth he leave out Judiciis whereas the Words are The Bishops as the other Barons ought to be present Judiciis curiae Regis in Trials in the King's Court viz. the Parliament he renders they are to be present in the King's Courts To help himself under the covert of an ill Translation savours not of that candour justly to be expected from so learned a Person and one that seeketh after Truth rather than Victory but since this Author is a subtile and no loose Writer give me leave to guess at the Reason of it He saw plainly that had he fairly rendred the Words The Bishops as other Barons have Right to be present in all Causes Sentences or Judgments in the King's Court or Parliament till the Cause Sentence or Judgment come to concern Life or Member the Word Judiciis in the plural Number must have referred to other Judgments in other cases and then the latter clause till Judgment or Sentence came to concern Life or Member would have been clearly restrictive as to cases of Blood for to be present at the Judgments of the Court till Judgment is Non-sense except the Words be applyed to different cases Now this Interpretation would have quite destroyed his main Undertaking who at last gives a Sense of the Words not only coincident with that given by the Author of the Bishops Rights to which I have before spoken but contrary to the Votes of the Lords in Parliament who though they seem to admit their Presence in the hearing such a case yet will not admit them to have any part or voice in the judging of it Beside I must needs take notice that 't is a strange Translation of the words Quousque perveniatur or in judicio perveniatur ad diminutionem Membrorum vel ad mortem Till they come to give Sentence when the Words more naturally import till Judgment may be fulfilled in the cutting off of Member or Life which is Execution But I shall anon give him a more proper Translation of the Words in the mean time will consider all his Subterfuges and cunning Evasions by which he would give colour to his Interpretation First from the occasion the Author of the Letter pag. 73. had said The Prelates affected a kind of Omnipotency he conceives the Author means in Judicature and I conceive he made that Supposition because he judged it for his Advantage to suppose so
comprehends them all so that our Question being concerning their Rights in Parliament if this be not meant of one it will neither advantage nor prejudice me but only shew how willing they were to break through all Rubs when they could in those times of their Power and the Blindness of the People The whole Sentence by our Author abridged to his purpose is as followeth Illud coelestem exasperat iram plerisque discrimen aeternae damnationis accumulat quod quidam principes sacerdotum seniores populi licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis seque ideo immunes à culpa reputant quod mortis truncationis Membrorum decernentes à pronunciatione duntaxat executione paenalis sententiae se absentent Sed quid hac simulatione perniciosius est Nunquid definire discutere licitum est quod pronunciare non licet In English This doth exasperate the Wrath of Heaven that certain of the Chief Priests or Bishops and Elders of the People notwithstanding they do not dictate or pronounce Judgments of Death yet they handle them in their Disputations and discussions of the same yet notwithstanding think themselves free from Guilt because though they Decree the Sentence of Death or loss of Members they only absent themselves at the pronunciation of the Penal Sentence But what is more pernicious than this Simulation Is it lawful to discuss and determine what is unlawful to pronounce And in the whole Treatise inveighs against the general neglect of the Bishops in performing their Duty not confining himself to any place and seems a prophetical description of the practise of the Inquisition afterward brought in by S. Dominick But if it were referred to the practise of some of the Bishops and Clergy of England probably it may be meant of such as were made Secular Judges or sate with the Earls in the County Court where they perhaps were present at the discussion though not at the Sentence which was left to be pronounced by the Secular Judge till after the time of Edw. 1. See 28 Edw. 1. c. 3. where it is ordained that the Justices appointed to take Assizes in every County where they do take as they be appointed Assizes shall remain together if they be Lay-men but if one of them be a Clerk then one of the most discreet Knights of the Shire being Associate to him that is a Lay-man by our Writ shall deliver the Goals of our Shires Here we see their Power though Justices to meddle in Capital Cases was prohibited nay some Records are in the Tower that when two have been commissioned as Judges for the same Circuit the Commission of the Clerk has been restrained to common Pleas that to the Lay-man unlimited see Iani Ang. facies nova pag. 209. 210. Shall we now believe that what was prohibited to Clerks in Edward the First his Time was permitted to them in the High Court of Parliament in subsequent times I have given my Reasons why I think Seniores Populi could not comprehend the Abbots Priors Lords and Commons yet if any man will contend this was a Parliament then must Seniores Populi comprehend amongst others the Commons and their Proceedings to be in a legislative way in which the Commons could only meddle and in which we deny not the Clergy to have their part so that this doubty Precedent will no way serve our Author's Turn His second Instance to make good his Assertion is taken from the Authority of Will. Fitz-Stephen a Monk of Canterbury in MSS. in Sir Rob. Cotton's Library and some other private hands in which he relates what happened to Arch-bishop Becket in the Contest between the King and him in the great Council at Northam ton called soon after Becket's obstinate Carriage at Clarendon in which Relation among others that Author hath these Words Secunda die considentibus Episcopis comitibus Barenibus Angliae omnibus Norpluribus Roffensis Episcopus quidam alius nondum venerat Archiep. lesae majestatis coronae regiae Arguitur quia se ut supra narratum est à rege citatus ro causa Johannis to wit Iohn the Marshal neque venerat neque idonee se excusasset Archiepiscopi depulsio nullum locum habuit Allegata tamen Johannis supradicti injuria jurisdictione hujus causae propria curiae suae integritate Rex exigit judicium Archiepiscopi nulla ratio est approbata Then after much debate who should do it Judgment was pronounced by the Bishop of Winchester which ended in the Confilcation of all his personal Estate The Sum of what Fitz-Stephen saith which is cap. 10. col 2. p. 21. in that Copy I have seen is this That when the Bishops and Barons of England and many of Nor. Normandy as Mr. Selden thinks were met together the Arch-bishop is there accused of Treason because having been cited by the King in the Cause of one Iohn he appeared not nor gave in a sufficient Excuse To let pass what is materially replyed by the Author of the Letter to this Authority I shall make some Observations of my own not yet taken Notice of First That this Assembly held at Northampon was not a Parliament but a great Counsel summoned by the King soon after Becket's stubborn carriage to his Prince at Clarendon to be advised by them how to humble that proud Man where it was lawful for him to use the Counfel of any of his Subjects of Normandy or others as he thought good who certainly in an English Parliament could not be admitted amongst the natural English Secondly we hear nothing of the rest of the Clergy nor the commons but of the Bishops Earls and Barons but that the Commons had allways right to appear in Parliament is learnedly made good by Mr. Petit in his Tractate of the ancient Rights of the Commons In the next place the relation of Fitz-Stephens is not only different from the relation of other Historians but in it self is subject to many Exceptions For first it is plain he was not accused of High Treason in the case of John the Marshal as he saith which appears by the Judgment of that Council which upon the whole matter reac'hd only a Confiscation of his personal Estate which shews clearly the Accusation was not in that Case for Treason because they here punished him with a lesser Punishment than was due to Treason now 't was not in their Power to change the nature of the Crime but must have either found him guilty of Treason or have acquitted him But the Truth is there was a second Accusation by the King about the same time and in the same Place concerning Accounts to the King of Receits during the Vacancy of the Sees of some Bishopricks when he was Chancellor to which he refused to give other Answer saying He was not cited in that Cause and over and above that he was fully
discharged of all Accounts whatsoever when he was made Arch-bishop but the Heats and Animosities occasioned hereupon made him appeal to Rome which being so immediately after and contrary to his Oath at Clarendon might be called by the Name of Treason in those Days yet it appears plainly that an Appeal to Rome was not in those times look'd upon as a Capital Crime To this Purpose see Spelman's Councils Tom. 2. fol. 119. Concilium Pan-Britan apud Pipewell Congregatis illic Archiepiscopis Britanniae quibusdam Norman Galliae Hiberniae Episcopis Abat c. infra nominat praesente etiam ipso Ricardo Rege An. Dom. 1189. 1 Ric. 1. The King having given the Arch-bishoprick of York Gaufrido fratri suo quondam Lincolniae electo The Arch. of Canterb. Calumniatus est consecrationem illius prohibuit ei ne ipse ab alio quam ab eo consecrationem seu sacerdotalem ordinem susciperet Super hoc appellant ad Dom. Papam coram Rege universis Episcopis Clero Populo chartam Willielmi Regis Bastardi in qua continebatur controversia quae olim vertebatur inter Cantuariensem Eboracensem ecclesias protulit Here you see an Appeal to Rome publickly made and the Appellant not questioned for Treason or any other Misdemeanour and this done in 1 Rich. 1. who was the Son of Hen. 2. But admit this Appeal or rather Perjury in that time had been a Capital Crime his Appeal here hindred the pronouncing any Judgment So that Fitz-Stephen is mistaken in the first Point for he was neither accused nor condemned of Treason in the cause of John the Marshal Secondly he tells you he was accused of Treason because being cited he did neither appear nor competently excuse himself which must be understood to be meant by some other Proctor or Advocate for if he did not appear 't is impossible he should excuse himself any other way for it is clear he was at Northampton Ipsa die venimus Northamptoniam saith Fitz-Stephen cap. 10. co 1. That the Court sate not till the second day after their coming and he made an Appearance on the third is confessed by the same Author who a little before tells you he sent quatuor Milites to give his Answer and the King's Exception was that he did not answer in his proper Person which certainly by Law he was not obliged to do so that here was but a Contempt of one day however they were resolved to proceed for the Arch-bishops Depulsio or answer for himself took not place for so I take the meaning of depulsio to be Archiepiscopi ratio nulla est habita Whether you take ratio for an Account which probably he might give as to 300 l. prerended to be due to John the Marshal or in any other Sense 't was not allowed Lastly you have these words Archiepiscopus autem quia sententiae vel recordationi Curia Regis non licet contradicere sustinuit consilio Episcoporum ad Acta ad mitigandum honorandum Regem solenni manuum ipsius missione quasi concessionis Judicii uti moris est ibi The Archbishop by the Counsel of the other Bishops because he might not contradict the Sentence and memorial of the Kings court submitted to their Acts to the end that by his Submission he might Honour the King and mitigate his Anger and yielded to the Judgment and put in for his Sureties all the Bishops except London of which notice was taken Can any thing now be clearer than this that he both appeared submitted to the Judgment and put in Sureties to perform it and that here could not be any formal accusation of Treason whatsoever the Counsellors might dispute among themselvs So that Fitz-Stephen's Relation as to this matter is not only contrary to the Judgment of the Court which condemned him not for Treason and contradictory to himself who making the Relation as an Historian of what was done in that case where himself was present must be supposed to write what in truth was the matter of Fact and not what was the Opinion or Discourse of others except he had told us so But this proud Prelate being as the King thought not sufficiently humbled by the Judgment aforesaid nor by many other Affronts put upon him by the King's Officers a new Crime as I touched before is found out against him for Accounts to the value of 3000 Marks to which he is required to answer and to which saith our Questionist he gave a dilatory Answer so that the King requires him to stand to the Judgment of the Court But the Answer he gave was this That the King knew well enough that before his Election to the See of Canterbury he was discharged and how the Prince the Barons of the Exchequer and Sir Robert Lucy Chief Justice gave him a Discharge for all Accounts and secular Receipts from the King and so free and clear was chosen to the See and would plead the same no more Was this now a dilatory Answer and not a clear Discharge What doth any Accountant in the Exchequer do more Neither could the Court expect being cited upon another Business he should bring his Discharge in his Pocket But what if this Accusation had been true Was this Treason If every Cheater had been a Traytor the King would have had enow to hang But this Storm went higher for Becket finding himself over-power'd by the King's Party and menacing Words from them comes in his Archiepiscopal Robes with a Cross in his hand and appeals to Rome for which he was blamed and sharply rebuked by his old Enemy the Arch-bishop of York and as Hoveden saith by London and others But by his Appeal he avoided all Sentences could be pronounced against him yet left his Enemies and the King much incensed against him Gervase of Canterbury tells you col 1392. that the King sitting upon his Throne it seems in a hurry for the Words are euntes discernite said going forth Consider what this perjured and contumacious Traytor ought to suffer Itur judicatur They went out and gave their Opinion for this could be no legal Judgment because first it was out of the place where the Council sate and his Appeal prevented all farther Proceedings as it was then held This is the Sum of the Story taken out of Daniel's History upon the Year 1164. as he saith particularly delivered according to the Writers of those Times who those were he tells you in his Preface Hoveden Giraldus Cambrensis Mat. Paris Mat. Westm. Rishanger and others By this Relation you may see the Credit of this grave MSS. Author who hath knit together so many Mistakes and different from the Relation of others of or near the same time But the Bishop is now gone though before his going the King expostulates the matter with him to whom he answered That he was summoned in the Cause of John the Marshal and would answer to no other
Canons when 't is for our Advantage to break them I might now proceed to the Examination of his Iast Head How far the Canon Law is at this day binding But because I would not leave any thing untaken notice of he thinks fit to make use of for the strengthening his Cause I shall speak something to what he farther urgeth He tells you out of Knighton That this Parliament was called Parliamentum sine Misericordiâ and that many Circumstances concurred which might make the Lords willing to admit of their Protestation because their business might proceed better against the King's Ministers He need not have urged Inducements to perswade the Lords to admit of their Protestation except he had first shewed they had Power to have refused it But by this Inducement he insinuates that the Bishops would probably have obstructed Justice against those wicked Ministers about the King What the Accusation was for which some of them were executed I shall let you seek in the Historians of those times being unwilling to rake into that Puddle any deeper I shall therefore leave this Parliament and the mysterious Canons as our Author well calls them and come to the Anti-Parliament to this held in 21 R. 2. where as he saith the King had a Mind to undoe what was done in the Parliament in 11 R. 2. which Intention this Author saith he had kept in his Mind ten Years by being willing to let the Bishops be absent in 11. that he might have that pretence to Question in this Anti-Parliament the things then done An undecent Charge he lays upon the King if it be well considered The Declaration by help of the Bishops that the King's Pardon granted in Parliament in 11. was revocable by the King was the Labour of his Ministers in 〈◊〉 which those Ministers prevailed in 〈◊〉 Measure but their Actions with 〈◊〉 â—…cceeding Murther of the D. of Gloâ—… the King's Uncle bred such a Jealousie and Distrust between the King and his People that I may call it the first Stone which left not rolling till it ended in the Ruine of that poor Prince who continued not King much more than a Year after and was soon after the Deprivation of his Crown deprived of his Life also What Art was used to make that Parliament subservient to their ends I need not tell you One of the first Attempts was what I touched before to make Pardons granted by the King in Parliament revocable at his Pleasure in this the Clergy were very instrumental After this the Commons come to do their Parts and they represent that divers Judgments had been undone heretofore for that the Clergy were not there present and therefore pray they might appoint some common Proctor with sufficient Authority to that Purpose From hence he infers two things First That the Commons thought their Presence necessary because Judgments had been undone for want of it Therefore their Concurrence in Judgment was thought necessary to make a Judgment valid Secondly That they should therefore make a common Proctor This is strange Logick Their Presence was thought necessary and Judgments undone for want of it therefore they ought to be present I think ought to have been the Consequent but the Commons pray that in that respect they should make a Proctor I should think now the true Inference ought to have been The Bishops and Clergy ought not to be personally present in Cases of Blood yet because it is fit they should be represented at least in some Cases let them nominate a common Proctor to be in their stead where their Concurrence is necessary This is Sense the other is contradictory 'T is evident by this Petition of the Commons that matter of Blood was to be treated of for there needed no Proctor for any other use since themselves might have been present And I think it very clear by the Year-book in 10 E. 4. that when Issue was once joyned 't was their Duty to absent themselves For that Book is that the Peer questioned may plead not guilty and then the Bishops to depart so that it is plain they were not to vote after Issue joyned in matters of Blood So Hakewell in his Modus Tenend pag. 84. before cited saith That to our days when Question is had of the Attainder of any Peer the Bishops are to depart Now I take the Law to be all one what â—…ue is joyned in a Capital Accusation so as there be any upon which the Court may proceed to Famination of the Cause and to Judgment accordingly As to our purpose in the case of the 〈◊〉 of Danby he pleads the King's Pardon the King's Counsel or the Commons demur The matter then in Issue upon the Demurrer is whether the Pardon is good in Law upon which the Bishops according to 10 E. 4. are to go out because if the Pardon be found invalid then must Sentence of Death be pronounced against the Criminal for I take the Law to be That the pleading a Pardon in Bar upon an Endictment or Impeachment is a Confession that all the matters contain'd in the Endictment or Impeachment are true and he shall never be admitted to plead Not Guilty afterward But this by the way Our Question is about the Commons Petition that they would make a Proctor which being in matter of Blood the Author of the Letter saith was the only time whether this was Error temporis as one saith the Error of that time or an inconsiderate rash Desire of the Commons as another is not necessary to enquire for it doth not appear that any Capital Judgments had been reversed by reason of their Absence so that their desire fails in the ground of it if they meant of Capital ones for the first Judgment against the Spencers was affirmed in 1 Ed. 3. and the Reversal made 15 Ed. 2. was made null so that the Commons it seems were ignorant in that and might be unadvised in the rest as they sometime have been Beside if he consult Sir Edward Coke in his 2 Instit. cap. de Asportatis religiosor pag. 586. he doth well excuse the Commons in shewing that the Bishops were present at the Charge against the Spencers in 1 Ed. 2. so that the Commons might not know how far the Bishops were conusant of the thing and looking only on the out-side were ignorant of the Act in 1 E. 3. for the Discourser saith there were no more No replyes the Grand Questionist not in his Study but the Commons might know of more for we have not all the Rolls What then This at best is but a Surmise and the two Judgments against the two Spencers were enough to make their Allegation true that divers Judgments had been reversed for that cause though it be not to excuse their Ignorance in not knowing that the first Judgment against them was revived by the Statute of 1 Ed. 3. And it seems strange to me that he that had so much
Reverence for the then House of Commons should have so little Respect to the Opinion of both Houses now for the Commons unanimously voted That the Bishops ought not to be present at any Debate concerning the Earl of Danby or the Lords in the Tower by them impeached of Treason Journ of Parl. pag. 258. and 267. The Lords about the same time voted That the Bishops were to go out when their Lordships proceeded to examine Guilty or Not Guilty This Author with great Confidence and little Respect affirms they have right to stay till the definitive Sentence is to be given But let me now admit that it was reasonable in the House of Commons to move that they might make a Proctor and that the Bishops had also Right to nominate one in Capital Cases yet certainly when they all absented themselves together 't was in their Choice whether they would make any or no and consequently their omitting it as in 11 R. 2. could be no cause to reverse a Judgment as the Commons alledged The Reason is as I touched before because they take notice of the matter in Question by hearing the Accusation read which is always done before they go away which is enough to make any Act good and to be said to pass by their Consent because they voluntarily absent themselves though with Allowance of the Lords where their Presence is not lawful Vid. Co. 2. Inst. de Asport Relig. pag. 586. So that the Reason of the House of Commons was every way weak and unsound In the next place let me examine what the Office of a Proctor is being made It is plain by the Imperial Law that a Proctor is in the Nature of an Attorney to appear and make Answer in the name of his Client to such things as the Court shall think fit to demand but never by that or any other had he Power to over-rule or contradict what was the sense of the Court. I have seen some ancient Precedents of Persons under the degree of Noble men made Proctors by the Bishops for which consult Mr. Selden's Privil of the Baron pag. 5. Hon. of the Lords Spir. pag. 27. Els. Mod. pag. 16. But in all Cases I have met with the ancient form runs thus At the Parliament at Carlisle under Edward the First the Words are Ad consentiendum quod tunc ibidem per dictos Prelatos Proceres contigerit ordinari Another in Edward the First 's time in a Parliament at Westm. runs thus Ad comparendum audiendum pro nobis in hoc Parliamento tractanda consentienda So that their Power was but to appear and hear for them what by others were to be treated and consented to Accordingly Mr. Selden saith that in Attainders upon Appeal they made their Proctors for assenting in Parliament I hear nothing of dissenting Seld. Privil Bar. pag. 5. Neither is it reasonable to believe the Lords would suffer any Commoner to sit and vote among them as Judges neither do we read of any place where such a Proctor was to sit having no right of his own to be there If you will say he was to sit upon the Bishops Bench and there to give his Vote you give the Bishops Power by their simple deed to give place and vote in Parliament which is as much as the King can do by his Letters Patents and by which the Patentee is enobled Neither is it just to think they could any way transfer a Right for others to judge for them where themselves were prohibited to be present or judge It appears that in the Parliament in 49th of Henry the Third there were a hundred and twenty Bishops Abbots Priors and Deans 't is not like there were many fewer in 21 Richard the Second who was not long after him Can any one now think the Lords would suffer Thomas Percy to dispose of a hundred and twenty Votes It had been much safer to have let the Clergy to have been personally present than to unite in one man a power to over-ballance them all I think it probable for the Reasons before given that their Proctor either sate among the mean Officers or that in those times the Lords and Commons sate together and that this Percy was one of those that served for his Country But against this is urged that in Edward the Third's Time there were distinct Houses though before that Time they might sit together Sir Ed. Coke Prin and others are of Opinion they sate together far in Edward the Third's Time why may not that be extended to his Son Richard the Second the exact time when they divided being not so exactly agreed upon I have before shewed out of Mr. Petit Rot. Parl. 2 Henry the Fifth pars 2. n. 10. that the Commonalty have ever been accounted a part of the Parliament I have also shewed out of Cambden Selden and others that Baronagium comprehended both Lords and Commons and in all Histories of those Times you shall frequently meet with Concilium Baronum Baronagium and the like Mr. Selden tells you Tit. Hon. part 2. chap. 5. no. 16. pag. 689. that the Burgesses of some good Towns as well as the Cinque-Ports which still retain the same name were called Barons In the seventeenth of King John dors claus memb 7. Baronib Germuthae Gipswici Norwici c. Mat. Paris Anno 1253. pag. 863. speaking of the Citizens of London hath these Words being englished Whom for the Dignity of the City and the ancient Liberties of the same we usually call Barons Of this Identity of Names we can give no better account than because they were usually joyned with the other Barons in great Councils of which there were also two sorts Gervasius Tilburiensis part 2. cap. 13. speaks of Barones majores and mineres Fitz-Steph cap. 11. mentions secunde dignitatis Barones In the Mag. Char. of King Iohn Mat. Par. Anno 1215. mentions a Summons to a Common Counsel of the greater Barons by the King 's Writ and of other Tenants in Cap. which were Barones minores by the Sheriff but all of them comprehended under the general Name of Barones or Baronagium under which general Name all meeting who had any Right to come either as Barons or Free-holders we have no reason to believe they did not all sit together in the same Counsel whereunto they were summoned under the same Name The old Modus put out in English by Hakewell with his seeming Approbation of the Book saith in his Chapter concerning Cases and Judgments that are heard that every degree might go by it self and consider of it by which it appears they then sate together 6 Edw. 3. Elsing p. 96. and 99. saith in two Parliaments they went apart and in one gave Subsidies apart The Case is in 50 Edward 3. where the cause of Summons being shew'd the Commons were willed to withdraw to their ancient place and consult among themselves proves no more than that
when they might have been others that they were present when by his own Rules they should have been excluded either therefore the general words where they are not mentioned do not enforce their Absence or that they oughtto have been excluded at some other Trials where the Author of the Letter admits they were or might have been present The chief Case he instanceth in is that of Michael de la Pool Chancellour of England who was accused of many Misdemeanours by the House of Commons and as I think he would infer such as Thorp Chief Justice was found guilty of being Capital where the Author of the Letter saith the Bishops were not present yet allows them to have been present in the Case of this Chancellour a parallel Case as he saith with that of Thorp either therefore saith our Author they might have been present in the Case of Thorp or they should have been absent in Trial of Pool This is his Argument as near as I can gather out of his Words put together something obscurely I need give no other Answer to this than to lay before you the words of the Record This Accusation was exhibited by the Commons in 10 R. 2. against Michael de la Pool Lord Chancellour in full Parliament before the King Bishops and Lords and six Articles were objected by them against him The first was That he purchased Lands of the King of great value whilst he was Chancellour the other five as the Record saith were only Quarrels and of little concern To the first and most considerable the Chancellour put in a fair Answer the Commons reply and urge things to the utmost and amongst other things say That whereas by the Popes Provisions a Person was recommended to the Priory of St. Anthonies he the said Chancellour would not suffer him to be admitted till the Grantee had contracted to pay to the Chancellor and his Son 100 l. yearly and then parallel this with Thorp's Case and would have had the Chancellor in the same fault with Thorp for Bribery as a Judg and consequently incur the same Judgment The Chancellor replies and shews great difference between the Cases Upon the whole matter Judgment was given against him pursuant to the Accusation for Misdemeanours only in which the Bishops were and might be present and the parallelling it with Thorp's Case was only in the Management of the Cause by the Commons and no part of the Accusation Neither is it reasonable to believe that which our Author asserts in the same Page that the Prelates were free Agents and might withdraw at some times and be present at others as they saw cause For beside that this is contrary to the express Law of Clarendon which expresly declares that 't is their duty to be present in all Proceedings in Curia Regis which in that place must be understood of the Parliament because they were to be present with the other Lords tho I know that Curia Regis is sometimes taken in a more laxe Sense for all the Courts in Westminster are the King's Courts and unto which they were to give Obedience and Attendance in Cases not prohibited I say over and above this Act at Clarendon it seems to me very unreasonable to suppose that such a Body of Men had liberty to give their Attendance when they pleased without leave of the House or cause shewed why 't was fit they should be absent or that the Author of the Letter meant more when he saith they might have been present than that they were not prohibited by the Law of Clarendon which only had Relation to Matters of Blood But these Men had other Canons to go by when they thought fit as well as those of Toledo and 't is probable enough that the rest of the Noble-Men finding them most constant Factors for the Pope were willing enough to let them be absent upon any colourable Pretence when they desired it Is not one clear Precedent against them in point of greater weight than many dubious and equivocal ones which cannot without great Art be wire-drawn to speak to their advantage Let him consult the Discourse of Peerage pag. 17. The Case of the Earl of Northumberland 7 Hen. 4. Rot. processus cor Dom. Rege in Parl. in 5 Hen. 4. This Noble-Man came into Parliament and confessed before the King and Lords that he had done against his Allegiance in gathering Power and giving Liveries this Fact by the Lords was adjudged no Treason for which he gives Thanks to the Lords his Judges and a day after the Commons do the like where the Prelates are named as our Author affirms and to which I shall speak by and by But in 7 Hen. 4 the same Earl was in actual Rebellion in the North and his Forces dispersed by the Earl of Westmarland but he and the Lord Bardolf fled into Scotland the rest were most of them taken Prisoners This Case came into Parliament where the King commands the Lords Temporal Peers of the Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and Lord Bardolf Nothing can be plainer than that the King look'd upon the Lords Temporal as those Peers who were proper to give Judgment touching their Fellow Peers who had fled from Trial in a case of Blood The Record goes on the said Lords advised thereupon and gave Counsel to the King Then the said Lords Peers of the Realm by assent of the King order summoning the said Lords to appear at a day given or to stand convicted by Award of the Peers in Parliament The King farther demanded the Opinion of the Lords Temporal touching the Arch-bishop of York who was in the same Treason The Lords Temporal by the Assent of the King and by their Authority declared and awarded the said Earl and Lord to stand convict of Treason for not appearing upon Summons 'T is very clear that this whole Business was transacted by the Lords Temporal without the Bishops and with the Concurrence of the King 'T is not to be believed that the Bishops would have sate quiet had they thought themselves wronged in these Proceedings See the Discourse of Peerage pag. 17 18. I think it hardly possible to find a more clear Record in the Point than this is First here were two Noble Lords defeated in actual Rebellion and fled from Justice into Scotland The King upon this would not so much as consult with his Prelates knowing them by Law no proper Counsellours against Peers in matters of Blood applies himself to his Lords Temporal they order Proclamations by order of the King enjoyning the said Lords to appear at a day certain or to stand convict they not appearing are by Award of the Lords Temporal convicted of Treason and a Year after one is slain the other mortally wounded at Bramham-moor in York-shire Can any thing be more agreable to the Practice at this day against Men that fly from Justice and
and other Lords who were suspected to be of the Confederacy with the said Henry Hotspur alias Percy This was the work of Friday the 18th of February on Saturday the 19th the Commons give Thanks to the Lords Spiritual and Temporal for the rightful Judgment they had given as Peers of Parliament 5 H. 4 from N. 12 to N. 17. This is the whole Case as to Father and Son Now whether the Bishops were present at all these Proceedings and how far is the Question The Grand Questionist contends they were present at the Proceedings both against the Father and the Son at that against the Son from the word full Parliament which he seemeth to infer must include the Bishops and at that against the Father from the Thanks made by the House of Commons the next day after the acquittal of the Earl First as to the Son It appears plainly by the Historians of those times that he was slain in the fourth Year of the King in the life-time of the Father who soon after broke out into Rebellion so that at the time of Henry's Death he was only a Commoner and consequently not to receive any Judgment in the Lord's House alone nor could he be made a Traitor otherwise than by Act of Parliament so that the word full Parliament must either refer to some particular Act of Parliament made in his Case in which the Bishops might be present and the Commons concur or else the Proceedings were wholly irregular and contrary to their own Agreement in 4 E. 3. Now from an illegal Act no Right can be concluded As to the Earl himself we find him suddenly after in open Rebellion defeated and escaped into Scotland with Lord Bardolf and convicted of Treason by the Temporal Lords for not appearing upon Summons and all this within two Years after Now can it be reasonable to think that the Bishops were present at the acquittal of this very Lord in 5 H. 4. who were not present in 7 H. 4. which was but two Years after nor were present at a like Case in 2 H. 4. N. 30. against the Earl of Holland and others which was not three Years before Neither can any weight be laid upon the Thanks of the House of Commons which was only matter of Complement and performed at another time when the House was assembled upon other matters but seeing them there might extend their Thanks to them also who though they could not contribute did nothing to hinder the Clemency of the Temporal Lords towards the Earl besides at the same time it was accorded by the King and Lords upon the Desire of the Commons that certain ill Officers about the King should be discharged in which the Bishops might be Instrumental and very well deserve the Thanks of the Commons at which Desire of the Commons they might assist and be absent at the rest The Precedent of Iohn Lord Talbot will not avail him he exhibited an Accusation against the Earl of Ormond for certain Treasons by him committed this Accusation was in the Marshalsea before the Earl of Bedford Constable of England The King to put an end to this matter doth by Act of Parliament make an Abolition and Discharge of the said Accusation and Discovery The words are That the King by the Advice and Assent of the Lords Spiritual and Temporal and the Commons made an Abolition of the said Detection Whoever denied the Bishops Consent in a Legislative way and had it been otherwise the Commons could not have been I think regularly concerned 2. H. 6. N. 9. The Precedent of the Duke of Suffolk in 28 H. 6. I thought to have passed over being a Case as irregular in the Proceedings as unjust in those that put to death that unfortunate Man Much Art was used by the Court to have preserved him from the Envy of the People A Parliament assembled at Westminster after dismissed into London then prorogued to Leicester that dissolved and another called at Westminister in which the Duke appeared which exasperated the Commons against him But upon the whole Record it appears that no Issue was joyned for after Articles exhibited by the Commons and his denial of them March 14 at the least of the eight first and giving some Answers to others on the 17 th he was sent for again and the Chancellour acquainted him that he had not put himself upon his Peerage and now asketh him how he would be tried who instead of pleading put himself upon the King's Order who caused him to be banished for five Years By all this it appears here were no judicial Proceedings which could not be before Issue joyned so that although the Bishops were present at the reading of the Articles yet this can be no Precedent to entitle them to be present in judicial Proceedings in Capital Causes for here were none at all in this Case and till Issue joyned the Bishops are not bound to withdraw Neither ought it to seem strange that the Viscount Beaumont should make Protestation in the name of the Lords Spiritual and Temporal against these Proceedings which they finding to be extra-judicial in very many Particulars they did not know I mean the Bishops as well as some of the Lords what Construction might be made to their Prejudice for sometimes they met in one place sometimes in another and not always in the Parliament-House to consult of this Business Besides many things pass sub silentio which being questioned would not have been allowed these Observations being added to what hath been said by the Author of the Letter seems to me a full Answer to this Precedent in which the Protestatio is only Protestatio facti not Iuris I have thus put an end to the Examination of this third Chapter and fully considered all his Arguments and Precedents and come now to a view of his fourth and last Chapter CHAP. IV. IN this Chapter our Author hath employed all his Art to assert the Peerage of the Bishops and that they make a third Estate in Parliament in what sense they are called Peers as also that the entire Clergy met in Convocation make a third Estate I have largely shewed before and shall not now repeat I admit they are sometimes called Lords Spiritual tho not so before Rich. II. but Prelates or the like Peers of the Realm Peers in Parliament If by that Appellation you would make them Equals to the Nobilitas Major I think they never were yet have they many Privtledges in respect of their Seats and Episcopal Dignity in the Lords House and by reason of their most honourable Profession have all of them Precedence to Barons I admit also that the Clergy is really a third Estate and that the Bishops in respect that they are the Head of the Clergy may sometimes in ordinary Discourse be called so but are in truth never so exclusively to the rest of the Clergy they all making but one Body or third Estate fully represented
casu fieri consuevit Teste Rege apud Lancetost 18. die Octobris 34. FINIS ERRATA PAge 113. line 3. in Marg. read true way P. 117. l. 18. r. Bannerets Ib. l. 21. r. Banneret P. 122. l. 2. r. St. P. 144. l. 8. r. ingenuously So P. 145. l. 31. P. 160. l. 5 after the Word Barony add in the Margine viz. Ecclesiastical Persons P. 174. or 274. T l. 18. r. done P. 204. V l. 2. r. Counsel So l. 11. Ib. P. 212. X l. 22. r. permixtim P. 217. X l. 26. r. de tout le c. P. 220. l. 6. r. taken Other Literal Mistakes the Reader is desired to correct with his Pen. A TABLE of the Principal CONTENTS The Number of the Page being often mistaken through the Printers false counting to one another the Reader is desired where the Figures are wrong to observe the Letter which begins the Sheet A Page Abby of Molross O 206 207 Absence of the Bishops not merely from the Canon-Law 84 N 181 182 Adam de Orlton's Case R 267 T 180 Agitare Judicium Sanguinis prohibited H 101 and N 157 183 Allusion made by the Questionist not solid 165 Appeal to Rome no capital Crime antiently M 173 Appeal of Earl Godwin Q 227 Appeals in Trial V 191 192 193 Appellation ought to be governed by the Right S 278 Apostles their Rule p. 89 how far their Practice to be urged for Example now 133 Apostolick Canons against Clergy-Men their medling in Secular Affairs P 135 216 Arch-bishop Stratford's Case T 282 283 284 Arundel Earl his Case O 208 Assemby at Northampton no Parliament p. 170 171 172. Matters carried there in great Heat and no Iudgment of Treason given M 172 173 Attainders what they are 9 10 Augustine St. his Opinion 94 95 B. BArons how made enobled in Blood and how made 107 to 120 Barons by Blood and by Tenure different 78 118 119 120 Barones Majores who 78 Z 245 246 Barones Minores who 7 8 Barons Peer who 21 107 117 Barones Regis who 107 Z 247 to 250 Barones Regni who ibid. Baronagium and how comprehensive 107 P 202 203 Y 226 S 278 Becket not impeached of Treason from 65 to 70 and from 172 to N 180 Berkeley Sir Tho. his Case 28 29 V 196 Blesensis his Words marked 97 98 125 167 168 R 261 Bishops whether they sit in Parliament by vertue of any Baronies p. 106 108 and how 122 c. T 174 or 274 Bishops not Barons 77 108 19 123 124 125 Bishops how they sate with the Earls 91 92 93 145 P 217 Bishops Service and Tenure a Burthen 106 124 125 Their Tenure offects not their Persons 77 Bishops if a third Estate not capable to try a Peer 128 Bishops the form of their Writs no Argument of their Power 86 129 130 when present always exprest that they were 36 Bishops medling in Secular Affairs forbidden 129 135 P 216. Their Opposition to the King at Clarendon and from what Cause 141 Bishops Power clipt at Clarendon 99 O 144 when to go away in Criminal Cases 161 196 197 even in Acts of Parliament R 265 Bishops Absence not merely from the Canons 8 84 N 181 182 183 190 N 193 O Bishops Protestation p. 5 6 7 translated and explained 41 42 and N 185 to 194 Bishops not reckoned Nobles T 184 or 284 not called Lords till the time of Rich. II. 108 Bishop of Norwich his Case 40 Bishop of Carlile tried by a common Iury T 279 so Bishop of Ely 278 ibid. Bishops Absence no Error 47 Bishops had no Right to be present in the Debate and handling matters of Blood 143 Bishops not comprehended under the name of Peers or Grands if put after Earls and Barons 14 18 to 25 32 Bishops if others named always named where they are present 24 29 32 36 and that before others R 261 Bishops not Peers to Temporal Lords 71 to 99 S 280 Bishops sit in respect of Temporal Possessions 83 yet in the quality of Spiritual Persons T 174 or 274 and S 289 Bishops cannot sit in a double Capacity S 288 289 T 174 Bishops contended to be tried by their own Order T 181 or 281 whence their pretence of Immunity proceeded 153 Bishops to be tried by common Iuries T 277 to 282 Bishops their Equivocation 141 Bishops Messengers of Peace V 197 Bishops chief Employment to make Peace in civil Affairs antiently Counsellours not Iudges p. 89 91 their refusing to give Advice about keeping the Peace 30 31 266 and R 269 Bishops but part of a third Estate 80 to 85 and 126 127 137 S 290 Bishops in France never sit in that Chamber of Parliament which tries Capital Cases 90 Bishops never absent not prov'd Q 228 Bishops no where allowed to sit Inquisitors of Blood V 198 Bishops not summoned to Parliament several times Q 238 Bishops a Question whether they might be even of a Committee in matters of Blood V 199 Boeges de Bayon's Case 25 26 Brady Dr. his Assertions and Fancies condemned Pref. to the 2d Part and p. 189 in Marg. V X A a 204 205 224 227 Burroughs and Burgesses Z 237 238 C. CAmbridg Earl 50 Canons forbidding of Clergy-men to meddle in Capital Causes still in force 87 164 and P 217 to 222 Canons concerning Blood as anciently in England as the Conquest and part of the common Law N 181 182 Capitalis Justiciarius Angliae what Office 137 138 Capitalia placita what Q. 229 230 231 Chancellour when no Peer how tried T 285 286 Charter of King John the Author's Interpretation of it asserted against Dr. Brady X 206 207 against Mr. Hunt Z 237 to 242 Clarendon the meeting there a Parliament 139 Clarendon and the Parliament there considered 99 100 142 Clarendon Earl his Arguments against the pretended Conquest A a 260 to 263 Chivaler who B b 284 Clergy subjected to Baron-Service 112 140 Clergy their Power in Primitive-times 89 their Power in other Nations 90 Clerus never taken for the Bishops alone 126 Commons and Commonalty of the Kingdom where Records and Histories manifestly shew their Presence at Parliament before 49 Hen. 3â—… X 211 to Y 22â—… Commons their Vote in Danby's Case O 98 Commons sometimes meant by Grands R 270 S 279 226 3d Part anciently had their share in Judicature R 266 267 268 Commons always Members of Parliament 172 O 202 sâ—… together with the Lords in the times of Hen. I and King Stephen X 212 and long afterwards O 202 203 204 Mr. W's Grounds for the Belief that they had no Right to come to Parliament till 49 H. 3. answered and turned against him X 210 to Y 227 so Mr. Hunt's p. 221 222 223 Y 235 and to A a 268 Commons their Petition 21 R. 2. p. 11. and O 195 196 Community of Names no Argument of Right S 278 Concordia 4 E. 3. 27 R 263 Conquest disclaimed by William the first 139 A a 260 no Conquest
Northampton make fully against him as also his Fancy that the Bishops had Right to be present till the definitive Sentence concerning Blood was to be given is against the Opinion of both Houses in the last Parliament Sixthly I have shewed that the Protestation made 11 Richard the Second if it were not a Law was a solemn Confession by themselves that the Canon-Law was against them and further given great Probability that there was in it respect had to the established Law of the Kingdom Seventhly I prove that the Canons are still in force that they are a part of the Law of England and not to be annulled but by act of Parliament and that Irregularity is not taken away by the Reformation Lastly I have given clear Answers to all his pretended Authorities and Reasons urged in his second Chapter and shewed that they are either not to the Purpose or misapplyed or against him I should now come to examine his Precedents in his third Chapter and assert the manner of Tryal of Bishops by common Juries but that is fully done by the learned Author of the Discourse of Peerage and for Precedents if there were any as I think there are not yet the Law being against him they would signifie little Yet least he should think himself neglected I shall in the next Chapter take them into Consideration CHAP. III. I Will not be long in the Examination of his Precedents because in my Opinion the Lords in the last Parliament have determined the Controversie For our Author contends that the Bishops have Right to be present till the definitive Sentence comes to be given and longer if they please for he sets them at Liberty Now the Lords in their explanatory Votes made May 15. 1679. have declared That the Bishops have Right to sit in Court till the Court proceed to the Vote of Guilty or Not Guilty Tho' this their Lordships have now admitted be a Liberty greater than I think their Predecessors ever enjoyed who in Cases of Blood went out at the beginning yet this Vote takes from them all Power Judicature as Peers to the Lords for it gives them no Liberty to pass any Vote but only allows them to sit as Spectators but reserves the Judgment to themselves I perceive this Author is not willing to give much credit to the Relation of Brompton touching what he reporteth of the King 's appealing Earl God-win of the Death of his Brother I will not concern my self in this matter it being before the Conquest and a Story in which the Relaters much differ some say 't was at the Table others in Council why not in both next his Appeal is to the Earls and Barons I wonder our Author doth not say that the Bishops were here meant by Barons For if there were then no Barons some others must be comprehended under that name and not long after our Author tells you the Bishops were comprehended under that Name in the case of Hamel Vid. Leg. Edvar conf cap. 8. nono de decimis apibus where the Name Barons is used before the Conquest I will not give overmuch credit to this Relation of Brompton the rather because William of Malmsbury looks upon it as a Romance for he saith Rumigeruli spargunt Cronica tacent Yet perhaps Brompton's Authority may go hand in hand with Fitz-Stephen But admitting the Story had some Truth in it his Endeavour to prove the Bishops present is not unpleasant He tells you after the Conversion of Ethelbert they were never absent in any Councils of the Nation that were Publick and that there was then no Canon to be afraid of for the Council of Toledo was brought in by Lanfrank some time after First he assumes a Negative they were never absent which cannot be proved except by one who had lived all those times Next he tells you they had no Canon to be afraid of it seems they lived then without Rule I do not believe this Author would have them do so still Thirdly he saith that Council of Toledo take the first or the eleventh the last of them about five hundred years before was first brought in by Lanfrank I think the substance of that Council was observed before but not established as a Canon till the Synod at Westminster of which I have spoke before The Story of the Arch-bishops condemning Queen Emma might be as true as that other of Godwin and both Romantick but however he tells you the Bishops did certainly sit in the County-Courts at all Judgments What their Office was in those Courts I have told you before out of the Laws of Alfred as also you may find the same in Sir Henry Spelman's Gloss. verb. Comes pag. 140 141. where he at large discourses of the Causes to be tryed in those Courts and tells you they were only for the ease of the Poor and things of small value and that the great and powerful men had their Tryals in the Kings Courts and more to the same purpose which the Reader may peruse if he see good and in part are transcribed by the Author of the Letter pag. 108 109 110. Now let any man judge whether the Opinion of Sir Henry Spelman or his Conjecture of Capitalia placita and the Legend of Saint Cuthbert be of most Credit The Author of the Letter tells you that no Capital Crimes were triable in the County-Court But our Author tells us out of the Laws of Edw. the Confes. set out by Henry the first mention is made of Capitalia placita cap. 31. The Title of the Chapter is De Capitalibus Placitis The words follow In summis capitalibus placitis unus Hundredus aut comitatus judicetur à duobus non unus duos judicet Sic inter judices studia diversa sunt ut alii sic alii aliâ—…er fuisse tendunt vincat sententia meliorum cui justicia magis acquieverit Interesse comitatui debent Episcopi Comites caeterae potestates qui dei leges seculi negotia justâ consideratione diffiniant Recordatione curiae Regis nulli negare licet alias licebit per intelligibiles homines placiti nemo de Capitalibus placitis testimonio convincatur c. Unusquisque per pares suos judicandus est In this obscure Law there is nothing at all that sounds like a Tryal in Criminal Matters except our Author will say that in such Cases no man shall be convicted by Witnesses when there is no other way to try matter of Fact except his own Confession for the Words are that no man may be convicted by Testimony Next it is plain Summa and Capitalia placita are joyned together one explaining the other so that I conceive nothing more is meant than considerable Cases where the matter in Law was dubious to the Judges who were not one Bishop and one Earl but Bishops Earls and other great men and the Judgment was not to be given according to the major
but of the better Opinion of such as were the Judges The Records of the Court were not to be denyed to any man others it seems might by understanding men concerned in the Cause The meaning of the Law I take to be that Cases of Right might be tryed here of any Value but criminal Cases were not medled withall I remember not to have read any where that Capitalia placita had that Signification our Author suggests Placita Coronae Placita Parliamentaria and Placita Communia I have met with but Capitalia Placita for Placita Capitalium criminum is new to me However the meaning of that be yet the Manuscript Life of Saint Cuthbert as to the thing it self will help us out He tells you it may be with as much Truth as Brompton that one Hamel the Son of Earl Godwin being imprisoned by the Earl of Northumberland his Friends earnestly interceded with the Earl that he might not loose his Head Here indeed we find a man imprisoned by an Earl Application made to the Earl in his behalf no mention of any Bishop any Tryal or any farther Proceeding in the business but the Tryal and the Bishops Presence at it are both supplyed by our Author who hath proved neither or produced greater Proof than the Authority of a loose Legend and that lame too and yet upon this he triumphs as if the Point were clearly gained when there is nothing of what he would have made good by him Is it not now a thousand Pities that so well sounding Words so well put together should signifie nothing The next Precedent our Author takes into Consideration is that of Nicholas Segrave cited by the Author of the Letter pag. 55. by this Author pag. 76. which he would evade by supposing the Bishops might be comprehended under the Name of Magnates or Counsellors and shews that some of the Bishops were probably then of his Counsel For a clear Answer to these Surmises I shall give you shortly the whole Case as you shall find it at large inter placita Parlam 33 Ed. 1. Riley pag. 266. Nicholas Segrave had Summons by the Sheriff and the Command of the King to answer to such things as should be objected against him and to hear and stand to what the Curia Domini Regis to wit the Parliament consideraret in praemissis Segrave upon this Summons Venit in pleno Parliamento in praesentiâ ipsius Domini Regis Arch. Cantuariensis plurimorum Episcopor Comitum Baronum aliorum de Consilio Regis tunc ibidem existentium Nicholas de Warwick perhaps the King's Atturney accuseth him of many and great Crimes which he offers to prove Segrave confesseth all submits to the King de alto basso Et super hoc Dom. Rex volens habere avisamentum Comitum Baronem Magnatum aliorum de consilio suo injunxit eisdem in Homagio fidelitate ligeantia quibus ei tenentur quod ipsum fideliter consulerent qualis poena pro tali facto sic cognito fueri infligenda The Comites Barones Magnates c. adjudge him worthy of Death After this the King pardons him and orders him to put in seven Sureties and to render himself a Prisoner at the King's Command and to be accountable to the King for the Issues of his Land held in his own or his Wifes Name This in short is the Case of Segrave in which it is very clear that at the Accusation the Bishops were present as of Right they might be but at the Tryal they are omitted Now to suppose them comprehended under a general Name and out of Order who were particularly expressed when their Presence was lawful is both unusual and unreasonable unusual because it is against the Rule of Law to comprehend the greater after the Nomination of the lesser and so to take the Bishops under the name of great Men who are constantly first named and were so here at the Beginning Secondly 't is unreasonable to make a different Construction of the same Words in different Cases or Laws now we know that in the Statute de Asportatis Religiosorum the Words are Comites Barones Magnates where we know the Bishops were not comprehended under the Name Magnates nor ought to be here and to suppose the contrary is against the Current of all Acts of Parliament and Records By the Magnates and alii de Consilio were meant the Judges and other Counsellors at Law whose Advice the King required as was very just and usual in those times 'T is likewise observable that the Word Consilio is written with an s which shews those Counsellors he advised with were not necessarily Members of Parliament for then the Word would have been written with a c Concilio His remarkable Precedent of the D'Spencers will stand him in as little stead in the Reign of Edward the Second they were both condemned and the Exilium Hugonis D'Spencer is to be seen in the old Natura brevium Those Judgments were afterward reversed at York in 15 Edward the Second but in 1 Edward the Third the first Judgments were affirmed and so they were look'd upon as condemned Persons which continued though themselves were dead for above seventy years til by the prevailing Party in 21 Richard the Second that Act was again called in question as void in regard the Bishops were absent and the Bishops desired to make a Proctor by the Commons which they accordingly did but at last through their exorbitant Proceedings that whole Parliament was repealed in 1 Henry the Fourth To this I have largely spoken before to which I shall refer the Reader with this farther Advertisement that in troublesome times things are not always carryed as they ought to be wherefore we are not always to look at what was but what ought to have been done neither are we to be governed by seeming Precedents such as sometimes as in the Case of Ship-money may be produced against Law I have before made it manifest that the Canons of the Church long before Lanfrank's time forbad Clergy-men to meddle either in Blood or secular Employments neither is it reasonable to believe the Laws of this Land were different from the general Rule incumbent upon all Clergy-men to observe especially when we see the Immunities granted them by King Stephen were so early recalled by Henry the Second and the Constitutions then made at Clarendon look'd upon as the ancient Customs of the Nation insomuch that the Discourser had very good reason to say 't was the common Usage which is the common Law of England Pag. 88. Our Author comes to the Examination of those Records urged against him and his Exceptions in general are First That they are Negative the Bishops were not present at Tryals of Blood therefore they had no Right to be present Secondly They were sometimes absent when they were not prohibited therefore their Absence was voluntary Thirdly they are sometimes comprehended under the