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
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
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
of settled Prerogative were not taken away from the King he not being named in the Statute By that Statute indeed if a Tenant in Capite aliened with Licence the Alience became Tenant in Capite for the Statute divided the Signiory But how it could be at the Common Law in any other Case than that of Copartners who are but as one Heir and plac'd in the same Relation to the Lord I cannot imagine I find in the Statute of Ireland this of Copartners is mentioned as the Law of England In Regno nostro Angliae talis est Lex Consuetudo quod siquis tenuerit de nobis in Capite habuerit Filias heredes ipso patre defuncto antecessores nostri habuerunt semper nos habuimus cepimus homagium de omnibus hujusmodi Filiabus singulae earum tenerent de nobis in Capite in hoc Casu Which shews that the Case of Copartners being a single Instance of the continuance of the same immediate Service notwithstanding the division of the Fee was an Exception out of a general Rule But I dare say no body that understands any thing of the Feudal Law as it has been received in this or other Nations will be of Mr. Hunt's Opinion in this particular 3dly Mr. H. would have done well to have answered the Objections against the supposed Conquest before he concluded for it and I shall take it for granted 't is a Question heartily begg'd 'till I find an Answer to these Arguments in Ius Anglorum ab antiquo 1. That the Histories of those Times prove undeniably that William the first came in upon Terms which he swore to at his Coronation and solemnly confirmed afterwards This indeed was a Conquest in the Language of those times as 't was distinguish'd from an Hereditary Right but no otherwise Thus in King Iohn's time a Man pleads that his Father had such a thing de Conquestâ—… suo viz. by his own Purchase or Acquisition 2. That Dooms-day-Book it self demonstrates that Men enjoyed their Lands under their old Titles And those Laws of St. Edw. which the Histories assure us were confirmed by Compact with William the first without particular Confirmation of their Estates 3. That we have later Records of the allowance of Titles derived from before the Norman Acquisition nay even of the whole Palatinate of Chester the Title to which was laid only in Descent even after King William's Confirmation 4. That ancient Historians and Dooms-day-Book confirm the Opinion of that Judg in Edw. III. time who informs us that William the first disseized only them that were in Arms against him and forfeited by opposing that Title which the Nation received Till Mr. Hunt has answered these Arguments amongst others in Ius Anglorum ab antiquo I hope he will not be angry that some are so critical that they will not call the first William Conqueror especially since Conquestor and Conquestus cannot now be reduced to their old peaceable Signification And therefore are by no means to be admitted unless we take the sense of the Judicious Lord Clarendon who rebukes Mr. Hobbs for insisting upon William the first his Title by Conquest as being what he himself renounced and abdicated if he ever had it If Mr. Hobbs says that unhappy Great Man Had taken the pains and known where to have been informed of the Proceedings and Transactions of William the Conqueror he would have found Cause to believe that that great King did ever dexterously endeavour from the time that he was assured that his Possession would not be disturbed to divest himself of the Title of a Conqueror and made his legal Claim to what he had got by the Will of Edward the Confessor whose Name was precious to the Nation and who was known to have a great Friendship for that Prince who had now recovered what had been his And he knew so well the ill Consequence which must attend the very imagination that the Nation had lost its Propriety that he made haste to grant them an Assurance that they should still enjoy all the Benefits and Priviledges which were due to them by their own Laws and Customs By which they should be still governed as they were during that King's whole Reign who had enough of the unquestionable Demesnes and Lands belonging to the Crown of which he was then possest without a Rival and belonging to those Great Men who had perish'd with their Posterity in the Battel with Harold to distribute to those who had born such Shares and run such Hazards in his prosperous Adventure And those Laws and Customs which were before the Conquest are the same which the Nation and Kingdom have been since governed by to this day with the Addition of those Statutes and Acts of Parliament which are the Laws of the Successive Kings with which they have gratified their Subjects in providing such new Security for them and Advantages to the Publique as upon the Experience and Observation of the Ages and Times when they were made contributed to the Honour and Glory of the King as well as Happiness of the People Many of which are but the Copies and Transcripts of ancient Land-marks making the Characters more plain and legible of what had been practised and understood in the preceding Ages and the Observations thereof are of the same Profit and Convenience to the King and People And upon Mr. Hobbs his Supposition that William the first at his Reception had dispens'd with the Subjection of the Ecclesiasticks by the Oath he took not to infringe the Liberty of the Church The Lord Clarendon has to the same purpose with the former or rather as evidence that there was no colour of a Conquest these words They who know any thing of that time know that the Oath he took was the same and without any Alteration that all the former Kings since the Crown had rested on a single Head had taken which was at his Coronation after the Bishops and the Barons had taken their Oath to be his true and faithful Subjects The Arch-bishop who crowned him presented that Oath to him which he was to take himself which he willingly did to defend the holy Church of God and the Rectors of the same to govern the universal People subject to him justly to establish equal Laws and to see them justly executed Nor was he more wary in any thing than as hath been said before that the People might imagine that he pretended any other Title to the Government than by the Confessor tho it is true that he did by degrees introduce many of the Norman Customs which were found very useful or convenient and agreeable enough if not the same with what had been formerly practised And the common Reproach of the Laws being from time to time put into French carries no weight with it For there was before that time so rude a Collection of the Laws and in Languages so Forriegn to
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
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
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
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
and the Determinations promulgated by their Assent and the Assent of the King for the Lay-men did usually meet with the Clergy in their Councils in those days To which purpose see a Tractate of a late learned Writer in his Iani Angl. fac nov pag. 213. which came not to my hand till very lately Now whether this Agitation of the Clergy in matters of Blood had reference to the ordinary Courts of Justice in which they might not be present or to all in general is not material since it is only produced to shew the meaning of the Word and certainly if it be inclusive as to those Courts it is not exclusive to any other And Agitation in Tryals being naturally before Sentence Agitation in Tryals must extend to Preliminaries Let us now come to the Constitutions of Arch-bishop Langton in Linwood 'T is first found lib. 3. tit 29. Ne Clerici vel Mon. fo 269. ult edit Praesenti statuimus decreto c. Nec Jurisdictiones exerceant saeculares praesertim illas quibus judicium sanguinis est annexum His quoque duximus adjungendum ne scilicet judicium sanguinis in locis sacris tractetur in ecclesia videlicet vel in caemeterio Authoritate quoque Concilii districtius inhibemus ne quis Clericus beneficiatus vel in sacris ordinibus constitutus literas pro paena sanguinis infligenda scribere vel dictare praesumat vel ubi judicium sanguinis tractatur vel exercetur intersit The Sum of all which is that no Clergy-man should exercise Jurisdiction in any cause to which Sentence of Blood was annexed That no causes concerning Blood should be held in Churches or Church-yards Lastly that they should not be interessed where causes of Blood were handled nor should presume to write or dictate such Sentences to be inflicted To the same purpose are the Constit. of Othobon Ne cler advocat tit 7. p. 91. Let him look upon his own Authority out of Hostiensis Protestatio in judicio is meant of a Protestation in a Suit or Process I am sure these are Testimonies more than enough to shew the true meaning of judicium among Lawyers which is the only end for which I have produced them I shall now come to the true Translation of the Words but shall not follow Mr. Selden and after him the Author of the Letter in rendring Universae personae Regni all the dignified Clergy nor shall I allow of his Criticism of Persona or Personatus because for ought appears to me some Clergy-men who were not dignified might by License from the King purchase Lands held in Capite sicut Baroniam and thereupon think themselves exempt from this Law Having thus far cleared the way I come now to the true Translation of the Words themselves which 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 sicut ceteri Barones debent interesse Judiciis Curie Regis quousque perveniatur in Judicio ad diminutionem Membrorum vel ad Mortem In English Let the Arch-bishops and Bishops and all Persons whatsoever of the Kingdom who hold of the King in Capite have their Possessions from the King in the Nature of a Barony and by reason thereof let them answer the King's Justices and Ministers and perform all Royal Customs And in like manner as the rest of the Barons 't is their Duty to be present at all Debates Process or Proceedings in the King's Court viz. the Parliament till what time so far forth or except when in the Tryal Debate or Process the loss of Life or Member may fall out to be the Upshot or Conclusion of the Case or the matter put in Issue In plain English in all cases where the Issue or Conclusion may fall out to be ended in loss of Life or Member they are by this Law to be absent Now I hope upon Issue joyn'd if the Impeachment be of a capital Crime the conclusion or upshot may happen to be found to concern Life or Member And that this is the true Sense and Construction of the Words I dare appeal to any Man who is so far Master of the Language as not to think fit to consound Moods Tenses and Numbers at Pleasure as this Author seems to do when he reads Curiae Regis the King's Courts which being in the singular Number resers only to the King 's great Court the Parliament the King's Courts in the plural Perveniatur in the Potential Mood when such a thing may be brought to pass with pervenitur in the Indicative Mood when such a thing is brought to pass that is as he erroneously translates till Sentence comes to be given And the Authorities before-cited evidently shew that the Writers of those Ages understood the Law in that sense To which Authorities I shall now add the Opinions of Mr. Selden Sir Edward Cook Mr. Hakewell and Fitz-Stephens a Writer of good esteem with our Author Mr. Selden Tit. Hon. part 2. ch 5. p. 704. explaining these Constitutions of Clarendon saith that the meaning of this in question is That the Bishops were to sit in Judgment with the rest of the Barons in all cases save in cases of Blood Now I hope every man will admit 't is a case of Blood before Sentence and that the Barons sit in Judgment when the Matter comes to be treated of before them Sir Edward Coke cap. de Asportatis Relig. cites the Parliament of 11 R. 2. where by their own acknowledgment they went out before any Debate their presence being prohibited by the Canon-Law Mr. Hakewel in his Mod. ten pag. 84. hath these words Therefore we see the Presence of the Bishops in Parliament in respect of their Baronies is Duousque perveniatur ad diminutionem c. for so even unto our times when Question is had of the Attainder of any Peer or other in Parliament the Arch-Bishops and Bishops depart the House and make their Proctors Here you see they are to depart when Question is had c. As to their making Proctors I shall speak more fully hereafter as also shall shew that the Canon Law both by these Constitutions and before them was part of the Consuetudines Regni yet this by the way appears plainly that the desire of the Cominons in 21 R. 2. that they might make Proctors must have reference to the beginning not the end of the Tryal when the naming them was useless But let me not do him wrong for pag. 33. he touches the Sense I have given but dislikes it viz. That the last Clause is not to be understood of the Sentence but of the kind and quality of the Cause that is they are to be present in the King's Courts till they come to a Cause where Life and Member are concerned This Sense certainly is near
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
they had a place to go to when 't was fit they should consult apart not that they always did so no more than it doth that the Prelates sate not among the Lords because they sometimes went apart and had a place to go to as well as the Commons We know that 7 Iacobi when Prince Henry was created Prince of Wales they all sate together in the Court of Requests and may do again when the King pleaseth I have now done with this rather curious than necessary Question which I had not touched upon had not Percy 's place in Parliament given me occasion a little to search into it Yet I think it not amiss here to insert the Prayer of the Commons and the form of the Proxy made by the Clergy to Sir Thomas Percy in 21 Rich. 2. memb 6. no. 9. as it is at large upon the Record that the Reader may be able to give a rational Judgment both what his Power was and how the Clergy were represented by him The Commons first pray the King that whereas divers Judgments and Ordinances before time made in the time of his Progenitors had been recalled and made null because the Estate of the Clergy were not present Et pour ceo prierent au Roy que pour surety de sa person salvation de son royaum les Prelates le Elergy ferroient un Procurateur avet povoir sufficient pour consentir en leur nome a toutes choses ordonances a justifier en cest present Parlament que sur ceo chacun seigneur spirituel diront pleinment son avis Sur quoy le dicts seigneurs spirituels commetterent leur plein povoir generalment a un lay personne nomerent en especial Thomas Percy Chevalier sur ceo baillerent au Roy une schedule contenant leur povoir la quelle nostre seigneur le roy receust commanda le dit Mardy estre entre de record en rolle de Parlement de quelle cedule la form sensuit Nos Thomas Cantuariensis Robertus Ebor. Archiepiscopi ac praelati Clerici utriusque provinciae Cantuar. Eborac jure ecclesiarum earundem habentes jus inter essendi in singulis Parlamentis Domini nostri Regis regni Angl. pro tempore celebrandis nec non tractandi expediendi in eisdem quantum ad singula in instanti Parlamento pro statu honore Domini nostri Regis nec non Regaliae suae ac quiete pace tranquillitate regni judicialiter justificand Venerabili viro Domino Thomae de Percy Mil. nostram plenarie committimus potestatem ita ut singula per ipsum facta in praemissis perpetuis temporibus habeantur It is observable in this Prayer the Commons recite Ordinances as well as Judgments to have been made null by reason of the Bishops Absence and comprehended not Judgments alone Now of what Latitude Ordinances were taken whether temporary or otherwise look'd upon as Laws is not very certain Secondly they desire such a Proctor as might have Power to confent to such things as should be done Thirdly they naming a Lay-man who had no Right of his own to sit there and giving the King a Schedule of their Procuration was enough to make their Right be preserved to them without any explicite Consent by their Proctor or perhaps his being so much as present at any Debate But I now proceed to observe how ready our Author is to pick what Advantage he can against the Author of the Discourse of Peerage from the words by him quoted out of the Manuscript History written by the Abbot of Molros in Scotland where the King of England sent Bishop Fox as I remember to treat with the King of Scotland Iames the Fourth then there touching a Match between the Children of those two Princes 'T is a Book to be seen in some few hands and writes of the Parliament in 21 R. 2. The Author of the Discourse pag. 20. tells you that that Manuscript Author blames the Prelates much for the Opinion they gave generally about the Revocation of Pardons but in this as in many other Authorities that make against him our Author curtails the Words and cites no more than makes for his turn The Words at large are these Dederunt ergo locum judicio sanguinis in hoc facto Ita quod dubitabatur à pluribus si non incurrerent in poenam irregularitatis pro negotio memorato unde contigit quod propter istud minus peccatum inciderent in aliud majus peccatum consequentur ut laicam personam constituerent procuratorem pro iisdem qui illorum vice consentirent ad judicium sanguinis dandum in isto Parliamento si necesse foret occasio emersisset The Prelates by this act of theirs gave Allowance or Countenance to Tryals of Blood insomuch that it was doubted by many whether they did not fall under the Penalty of Irregularity by reason of the foresaid business from whence it happened that instead of that lesser Offence they fell into a greater by Consequence in that they made a Lay-man their Proctor who in their Room might consent to a Judgment of Blood to be given in that Parliament if it were needful or occasion had happened I have translated dare locum fudicio sanguinis to give way or Allowance to a Judgment of Blood because it appears by the subsequent Words he meant them so The use the Author of the Discourse of Peerage makes of these Words is to shew that the Canons were not the only Cause that hindred their presence in II Rich. 2. For then when they had no Encouragement from the King or Lords then they ought not at any hand to be present in such Cases but here in 21. when they had any Allowance or Connivence as to the Laws against them then the Canons were neglected altogether His Inference seems to me rational and good Oh! but saith the Grand Questionist they were present in voting the Pardon to the Earl of Arundel revocable Under his Favour I think he is mistaken for the Book warrants no such matter only tells you that they gave a general Vote that Pardon 's granted in Parliament were revocable by the King by consequence whereof some of those who were pardoned in 11. were executed in 21. which Votes I hope might pass though the Parties concerned were not present and this meaning the book seems to enforce For first that Author saith it was a doubt amongst many whether that act did not make them incur the Penalty of Irregularity which would have been none had they personally by their Votes revoked the Pardon granted to the Earl of Arundel Secondly he saith by making a Proctor in that Case of Blood they committed a greater Fault than the former but certainly the making a Lay Proctor was not a greater Fault than actual Allowance and personal voting in Blood which that Author charges them with Lastly they made a
are convicted for non-appearance He must have a new way of reasoning who considering that in 4 E. 3. the Earls and Barons are declared those Peers to whom such Judgments belong that in 5 E. 3. the Prelates declared that in a Case where Blood might be it belonged not to them to be present that in 7 R. 2. the Temporal Lords were only concerned in a Case where the Accusation was Treason with many other Cases that in 1 Hen. 4. the Lords are declared Judges in such matters that in 2 Hen. 4. in a like Trial or Judgment the Temporal Lords are all named who were the Judges that now in 7 Hen. 4. the Temporal Lords are again declared Judges and after all this that the Prelates should be deemed proper Judges in Cases of Blood upon bare Surmises and no direct Proof seems to me to savour of a Man wedded to an Opinion which he resolves to maintain when at last tho Precedents confirm what the Law is 't is that must determine the Controversy This I say in Relation to what Mr. Hunt objects This Precedent may in part serve to give answer to those Arguments drawn from the Identity of Names to the Identity of Right The Bishops saith the Grand Questionist are sometimes comprehended under the name of Grands Seigneurs and Peers therefore their Right is equal to all others who enjoy those Names How he attempts to make this good we shall see anon But first let him consider how weak a way of arguing this is we know nothing is more equivocal than Names Many are called Lords who had once that Name as Embassadors Chief Justice c. or such whose Fathers are Dukes so Earls Eldest Sons yet are indeed but Commoners so Baronagium comprehends all the whole Parliament Barons there are of the Cinque-Ports of the Exchequer and of some chief Towns as I have noted before from Mr. Selden so we are not to judg the Right from the Appellation but govern the Appellation by the Right The first Precedent he urges is pag. 96. where in 4 E. 3. an Act passed for Trial by Peers Cotton Numb 6. 'T is agreed unto by the King and all the Grands in full Parliament that tho the Lords had tried some who were not their Peers upon Accusation by the King in a summary way against Law it should be so no more If the Bishops were here comprehended under the Name of Grands so were the Commons too if it should be an Act of Parliament will he hence infer that the Commons have an equal Right with the Lords because they all are called Grands Who were esteemed Grands or Magnates see Matth. Paris in Anno Dom. 1100. Inhibitio ne qui Magnates viz. Comes Baro Miles seu aliqua alia notabilis Persona c. Here you see under Magnates are taken Earls Barons Knights or any other Person of Rank So Milites Comitatuum and Barones quinque portuum are called Magnates inter com brevia de term sctae trin Sct. Mich. An. 34. E. 1. penes rentem Dom. thesaurarij in Scaccario he that desires more let him consult Mr. Petyt's Learned Discourse of the ancient Rights of the Commons pag. 93 94. and in sundry other places I think therefore I may safely conclude this Point That where Grands are named alone there not only the Bishops but the Earls Barons Judges and Commons might be comprehended but where the Grands are mentioned after the Earls and Barons there the Bishops who ought first to be named shall never be taken in secondarily and by Implication Neither is it any thing to our Question whether it were for their Honour to be absent in some Cases as he intimates pag. 100. in the Case of Roger Mortimer but what the matter of Fact was Pag. 112. He would comprehend the Prelates among the Peers because in 4 E. 3. N. 3. The words are All the Peers Counts and Barons assembled in Parliament upon strict Examination do assent and agree that John Mautrevers is guilty of the Death of Edmund Earl of Kent Here he would infer that the Prelates were present at the Examination of that Capital Crime under the name of Peers because at that time there were no Dukes nor others of Superiour Degree to Earls but he doth not consider that the word Peers in this place doth only denote who those Peers then mentioned were Peers viz. Earls and Barons not Bishops as before Magnates viz. Comes Baro Miles c. As when we say a Noble-Man is to be tried by his Peers we understand only those that are truly so and not others that sometimes may be called so this is much cleared by the Record 2 Hen. 4. N. 30. The Lords Temporal by the Assent of the King adjudged Thomas Holland late Earl of Kent Iohn Holland late Earl of Huntington and others Traitors this Judgment was after the Parties were dead and but the second Successor after Edward the third Why did not now the Prelates come in and claim their Right Certainly they would have done it but that they knew the Law and Practice was against them what else is material in this Chapter hath been taken notice of by the Author of the Letter and others so that it needs no further Examination and I may safely conclude that where the Prelates are not named they are not understood Now that in this case the Bishops could not be meant by the word Peers is very plain from the Record it self For the fore-named Iohn Mautrevers being not in hold the said Peers do pray our Lord the King that search should be made for him throughout the Realm and a Reward promised Now if the Bishops were meant by the word Peers alone for Earls and Barons are named witness the Peers Earls and Barons then by Parity of Reason the said Peers should be meant only of the Bishops as if they alone had made the desire for the Apprehension of the said Matrevers and the Earls and Barons had been unconcerned which is absurd See 4 E. 3. Mem. 3. N. 3. Seld. Baron p. 13. Our Author concludes his third Chapter with the Case of Henry Hotspur the eldest Son of the Earl of Northumberland who for having levied War with others against the King was declared a Traitor being before slain in Battel by the King and Lords in full Parliament this was upon Friday the 18th of February upon the same Friday upon that Case and the Petition of the Earl Father to Henry and Examination of his Cause by the Lords as Peers of Parliament to whom such Judgment belonged for the King would then have referred the whole matter to the Judges he was declared innocent of Treason or Felony but only finable for Trespass at the King's Pleasure for which the said Earl gave Thanks to the King and Lords for their rightful Judgment and also at the same time purged upon his Oath the Arch-bishop of Canterbury the Duke of York
bring in the Chancellour and Treasurer and such like Officers and that all Estates should enjoy their Liberties 15 E. 3. N. 6 7 8. Here was indeed a Matter concerning Trials of Noble-Men had under Consideration but never reduced to any Law as the Practice of subsequent Times and the late Bill of the Lords about Trials do enough manifest But doth it not appear by this Record that the Bishops were not reckoned Nobles of the Land when he finds the Chancellour and Treasurer and such like Officers attempted to be brought in at that time and so not to have had any Right before But saith our Author it after follows that they may not lose their Temporalities Lands Goods and Chattels Now none were capable to lose their Temporalities but Bishops therefore this Law must have respect to them as well as other Nobles of the Land The Answer to this is very easy that the Clergy who had then all Power did endeavour to bring in their Fellows the other great Officers who were almost all Church-men Simon Langham Arch-bishop of Canterbury was Chancellour William Molso Dean of St. Martins le Grand Receiver and Keeper of the Kings Treasure and Jewels with many others as you may find Baker p. 141. These had Temporalities to lose and such Officers the Church always hoped to have had of their own Tribe but as I said before of this Attempt came no other Effect than to shew their aspiring Thoughts And whatever Opinion the Author of the Iurisdiction of the House of Peers is of as to the Roll of 4 Edw. 3. I believe the Law at this day will not be so taken that a Chancellour being no Peer shall be so tried by reason of his Office I am sure my Lord Keeper Bridgman being no Peer never voted in the House of Lords and the present Lord Chancellour when he gives his Vote goes to his place as a Baron See Hakewell p. 114. Ancient Customs how these great Officers are placed in Parliament when they are Peers and when not and certainly if their placing be different their Trials ought to be so too Neither can it seem reasonable to any considerate Man that a Person though such an Officer should not be capacited to give his Vote as a Baron and yet by virtue of his Office should be tried by Noble-Men Therefore I must take leave to deny what he affirms that they are Peers by virtue of their Office or that they have Right to be present in Parliament in all Cases of Judicature so as to concur in Sentence with the Nobles of the Land as our Author affirms pag. 132. The King may make whom he pleases Chancellour and the Statute assigns his Place but he cannot vote there without the King's Letters Patents to that purpose as I conceive See Old Modus Hakewell p. 14. I have in the first Chapter of this Treatise spoken largely to that Point and shewed in what sense a Bishop may be called Peer of the Realm And pag. 90 and 91. have handled the matter of Proxies therefore may pass over the Case of Arch-bishop Arundel which our Author proposes pag. 128. To the Case of William de la Pool I have spoken before only shall here observe that the submitting his Cause to the King was no waver of his Peerage for the matter never came to any formal Issue consider thâ—… Case of Nicholas Segrave in 31 Edw. 1. Ridley p. 266. who being accused of many Crimes Segrave being summoned thereunto appears in full Parliament confesseth the Fact and submits to the King This was no Waver of any Legal Trial by his Peers nor any disrespect to the Lords who might otherwise have ordered the summoning a Jury to try the Fact but by the King's Pardon that labour was saved The like may be taken notice of in that famous Case between the Earl of Hereford and Essex against the Earl of Glovester and Hertford in 20 Edw. 1. Riley p. 74. Where upon a very long pleading the Case in effect proves to be but this The Earl of Hereford complains to the King of great Robberies Depredations and Murthers committed by the Earl of Glocester in his Lands in Brecknock after the King's Inhibition The King for Remedy of this appoints the Bishop of Ely William of Valence his Uncle Iohn Mettingham and Robert Hertford to hear the Complaints of the said Earl and also the Answer of the said Earl of Glocester and his Servants to the Complaint of the Earl of Hereford and to summon a Jury for the Trial of the same and also commanded Robert Tiptoft Iusticiario suo de Westwell to be there present and to summon the said Delinquents to be before the said Commissioners and that Enquiry should be made per Sacramentum tam Magnatnm quam aliorum proborum Hominum Legalium de partibus Walliae comitat Glocest. They that is the Magnates which it seems were Noble-Men excepted against the taking an Oath and said 't was unheard of and that they would do nothing sine consideratione Parium suorum The Jury give in their Verdict against Glocester the Parties all submit to the King who by the Advice of Arch-bishops Bishops Earls Barons and the rest of those who were of his Counsel declare that the Earl of Glocester had forfeited his Liberties c. The words are Videtur tam ipsi Dom. Regi quam caeteris Praelatis Magnatibus reliquis de Consilio ejus quoad Comitem Glocestriae quod Libertas sua praedicta viz. totum Regale in Terris suis praedictis de Mergannon cum pertinentiis pro se haeredibus suis foris facta est ratione delicti praedicti c. In this Record there are many things Observable First The Bishop of Ely here mentioned was not a Judg in this Case between the two Earls but joyned in Commission with others who were empowered to summon a Jury to enquire of the matter of Fact not to condemn either Party but was only in the nature of an Inquest or Grand-Jury in order to a Trial. 2. That Noble-Men Magnates such as refused to take an Oath were returned of the Jury 3. That the Verdict was given in to the Commissioners notwithstanding some of the Jury were not sworn 4. That the Jury was summoned out of several Counties viz. Glocestershire and Wales Lastly and that for which I have chiefly produced it that this Submission of both Parties to the King was no waver of their Peerage Neither doth it appear that this Award made by the King with the Consent of those Prelates Earls c. was made in Parliament tho it be inter Placita Parliamentaria but only by such private Counsellours as the King thought fit to make use of in that Affair That it was no Parliamentary Judgment is evident from these two Reasons First The putting themselves to the Reference of the King was no putting themselves upon any Trial by their Peers because that should have been done only
other Cases Now this very Question seems to me an over-ruling ours for if it were then a Question whether they might be of a Committee in Cases of Blood where the Judges were often joyned with the Lords it can be no doubt but that they ought not to be admitted to give their Votes as Judges in the like Cases in their Persons REFLECTIONS UPON Antidotum Britannicum AND Mr. Hunt's late Book and Post-script As far as concerns the Controversy between Doctor Brady and the Authorof Jani Anglorum facies nova and of Jus Anglorum ab Antiquo London Printed Anno 1682. CHAP. I. The true and essential Difference between the General Council of the Kingdom and the Curia Regis maintained against Dr. Brady Mr. W. and Mr. Hunt with a short Account of some Reasons why Mr. Hunt might have spared his Censures upon them who apply themselves to the Study of Antiquities SInce Dr. Brady received a Reply two of my Brethren of the Gown Mr. W. and Mr. Hunt both of Greys-Inn have appeared in print in behalf of the King's Tenants in Capite and will needs have it that these ingrost the Right of coming to Parliament as one calls it or the Magnum Concilium as the other till 49 of Hen. 3. One professes that he never read what has been wrote upon this Subject either by Mr. Petyt or me The other slights it all as a Dispute not worth the Cost and Pains spent about it and grants many of Dr. Brady's Hypotheses but denies his Consequences and so allows him to be a good Antiquary but an ill Logician That there was a Curia Regis or Common Council of the Tenants in Chief such especially as held of the King by Knights Service distinct from the Great Council of the Nation or Parliament In which Curia the King's Tenants granted to the King Auxilia Aids and did act many things in relation to their Tenures Both agree with me directly against Dr. Brady who will have it that all the King's Tenants by Knights Service never met in any Council or Court but thereby it became the General Council of the Nation or Parliament In which since he is opposed by these two learned Authors agreeing with me they have given so much Credit to my Notion that they have prevented that further trouble which I might have given the inquisitive World upon that point If I can free my self from the force of these Gentlemens Arguments or Objections upon those things wherein I differ from them I think I need not fear the empty Thunder of Men of other Professions but may look upon my Notions as sufficiently established Both Mr. W. and Mr. Hunt are Men of much longer standing and greater natural and acquired Parts then I can pretend to yet if I have the good fortune to fall into the Paths of ancient Truth no modern Authorities ought to beat me out of them They both will have it that the Tenants in Chief were the only Members of the Curia Regis which was held for Matters within the King 's ordinary Power and of the Magnum Concilium or Parliament where the extraordinary Power was exercised Against them both before I examine their supposed grounds from Authority this obvious Objection in reason may be urged If all the Tenants in Capite by Knights Service were obliged to attend in the Curiâ either by virtue of their Tenure as one takes it or of general Summons as the other and the consent of none but such Tenants were requisite for passing of Laws in Parliament what reason can be assigned why Laws might not have been made in the Curia and so that have become a Parliament when ever the King pleased to declare it so Can a more particular Summons and notice of Arduous Affairs which is Mr. Hunt's Notion lay a greater Obligation upon them to be present who however were bound to come And if they were bound to come can Absence be reasonably pleaded to free any from the Obligation of what was then agreed on Indeed Dr. Brady who will have it that every full Confluence of the Tenants in Chief by Knights Service to Counsel was a General Council of the Nation supposes that even before King John's Charter and while he thinks that they were to come to Parliament ex More without Summons if but a few appeared it was no General Council which is an absurd Supposal unless there was before that a Law in being that they should not act without a certain number as supposing that forty were to make a full House as now 't is said to be with the Commons for otherwise they who did appear did according to the general Rule of making Laws bind them who were absent through their own default But if we consider how contrary it was to the Usage of those Times to make Laws or insert Clauses or Words idle or unnecessary we shall not easily believe that they would according to Mr. Hunt's Supposal have made Provision for the particular summoning of those for arduous Affairs who were obliged to attend at the Council without such Summons Indeed I am aware that Dr. Brady hath charged me with putting such a sense upon King John's Charter as would imply a needless Provision The Doctor tells us that by King John's Charter the Cause of Summons was to be exprest and from thence he would infer that it was a Great Council there intended for saith he such Provision were needless if there had been but one Cause for which they were to be summoned which he urges as the Consequence of my interpreting that Summons there provided for to have been only for raising such Aids in the Curia as could be imposed upon the King 's immediate Tenants and none else Now admit that this had been to a Parliament and had taken in all manner of Charges to be laid upon the Subject if the raising of Taxes were the only work of a Parliament the providing that they should have notice when a Tax had been required would have been as impertinent and if the Parliament had any other Power this Provision had been as defective as he supposes 't was according to my rendring superfluous For that Summons mentioned in King John's Charter is restrained and limited to the granting of Aids but there is not one word or syllable of making or enacting Laws which is the main business of Parliaments and therefore this must be intended of some Inferiour Counsel and not of the General Council of the Kingdom But if the Charter be taken to be meant only of raising such Aids as lay upon none but the King's Tenants if those Aids branch themselves into Escuage and Tallage here were two Causes of Summons as the one or the other was required or if only such Aid as Escuage was within the Provision still the Cause or the Occasion of raising the Escuage might be different and therefore the cause of Summons more than
one nay some might have been obliged to attend upon one Cause of Summons exprest which were not upon another for if the King had an Occasion of transporting an Army beyond Sea in that case only they that held by the Service of going into forreign Parts together with such as were tied to general Service were obliged to attend and liable to pay Escuage upon their default to be taxed by them who were present according to the Obligation of their Tenure If the Tenure were to go into Scotland or Wales they could not by reason of their Tenure be compelled to go else-where whereas the Attendance at the King's Court ex more was what I take it lay upon every Tenant in Chief holding by Knights Service Ratione Tenurae and was not superseded by King Iohn's Charter but still they that were not present were concluded as to all Acts of the King's Court Baron either in Criminal or Civil Causes as much as in the Court-Baron of an Inferiour Lord the Suitors present may proceed to all Judgments within the Cognizance of their respective Courts where through the common neglect of the Suitors the Steward for the most part gives Judgment by himself Mr. W. who was the first Author of a Lawyer that ran Counter to me makes a distinction between a Parliament and a Curia Regis which I conceive to be without any difference in Relation to the several Powers of the Curia and the Great Council of the Nation except that 't was less in that which is now called the Parliament than 't was in the Curia for he says that to the Curia the Tenants were obliged to come Ratione Tenurae but to the other they could not come but ex Gratia Regis Upon which 't is further observable 1st That he yields that the Commons others beside the Tenants in Chief had as much right as the Tenants in Chief to come to the Parliament before the 49th Hen. 3. for he grants that they too came sometimes before that time ex Gratia 2dly Whereas he supposes that King Iohn's Charter of Resignation was void not being in Magno Concilio though 't was in Communi Concilio Faronum he assignes no reason in the World for it's being void for admit that to the Commune Concilium Faronum or Curia the Tenants in Capite came Ratione Tenurae and to the General Council of the Kingdom ex Gratia which he subjoyns as the Ground for avoiding that ignominious Resignation which he agrees with me contrary to Dr. Brady to have been made in the Curia Regis and not in the General Council of the Kingdom does it follow that because they had no Right to come to the General Council though they had to the Curia that therefore a Resignation in the Curia was not good nay does it not follow that because they had no Right to come to the General Council therefore the King might exercise his absolute Power in such a Counsel as he should think fit to call and might oblige the Nation in any Act of his done by such Advice or Consent Nay rather if there were a Counsel where they might ex 〈◊〉 be present which Mr. W. makes the same with Ratione Tenurae does it not follow that there would be less Obligation upon them from any Act done in the General Council of the Kingdom where they had no Right to be present and so no consent of theirs could be urged to inforce the Obligation than from the Determinations of that Counsel where they were necessary Members But Mr. W. his Grounds for his Belief that the Commons had no Right to come to the General Council of the Kingdom before the 49th of Hen. 3. are two 1st That in the 45th of Hen. 3. only three were ordered to be Representatives for every County the Year I take to have been mistaken by the Printer for the Settlement and Reformation of the Government which he mentions was in the 48th and that he means that Settlement and not one before in the 42d is evident by his citing Si videatur Communitati Praelatorum â—…ronum which is in the Record of the 48th and not in any of the 42d that I have seen But 't is evident by the Record that the three he mentions were assigned for the Electors of a standing Counsel to the King which was to act out of Parliament as well as in but with no Authority in Legislation besides admit that they were intrusted with all the Power of the Counties I cannot find any force in the Argument that because a Representative was then agreed on therefore they had no Right to come before that time in their own Persons But indeed in the 42d of that King there was a Representive of the Commons who were in those times accounted only the Citizens and Burgesses this was pur espargner les Costs des Communs to spare the Charges of the Commous which I use not to shew that all such came any otherwise than two for a place But that the settling a Representative is an Argument that before that time they came in greater Numbers 2dly His second Argument is the Authority of Pollidore Virgil which proves wholly against him for it says that the Populus rarely were consulted with before the time of Hen. I. Adeo ut ab Henrico primo id Institutum Iure Manasse diâ—…i possit Even he allows the Right of the Commons to be a constituent part of Parliament to have been an Institution or a settled Right long before the 49th of Hen. 3. no less than one hundred forty nine Years And in the Case of Godsoll and others against Sir Christopher Heydon my Lord Cook affirmed that he had seen a Record in the time of Hen. I. of the Commons Degrees and Seats in Parliament his words are these En Ancient temps tout le Parliament sea insimul le Separation fuit Par le desire del Commons mes â—…ent obstant ils font forsque un mese ieo aie veiw un Record 30 H. 1. de lour Degrees Seats That the Commons were Members of the General Councils of the Kingdom in the time of Hen. I I think is very plain when we find even at Synods Assemblies for Ecclesiastical Affairs Nobilitas Populusque minor and Laici tam divices quam mediocres But that they then had any Order and certain Seats there I cannot readily believe And indeed we find that in the Reign of King Stephen who immediately succeed Hen. I. 't is spoke of as customary for the Uulgus or Commons which were Infinita Multituto Plebis to come as Members of the Great Council and to intermix themselves with Men of the greatest Quality as 't is usual in Crouds Uulgo etiam confusè permixtum ut solct se ingerente 3dly Mr. W. his third Argument is that where a Record makes mention of Arch-bishops Bishops Abbots Priors
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
having then made his Appeal Neither to speak my Mind freely can I see how he could be accused of Treason for Who was the Accuser The King could not because by reason of the dignity of his Person no Averment could be made against him neither could any man be tryed but by his Peers Now we hear of no Articles exhibited no Jury summoned nor no legal Proceedings in case it had been a Parliament for though Mag. Charta was not so perfect as in Henry the Third's Time yet all Historians agree 't was granted in Henry the First 's Time of the chief Points whereof Stephen Langton Arch-bishop of Canterbury brought a Copy into the Parliament in King John's Time a worthy Prelate he was though an Italian though it were the Law of the Land before and though the Council of the King might in some Misdemeanours proceed arbitrarily yet in Treason they could not as is well observed by Mr. Selden Priv. of Bar. ca. 4. pa. 10. but they were in those Cases to be tryed by their Equals Co. 2. Inst. pag. 50. tells you 't was as ancient as William the First gives you an Example of Roger Earl of Hereford so tryed in his Time But we have not yet done with Fitz-Stephens for our Author tells you that the King upon the proud Answer of Becket charges the Bishops that together with the Barons by virtue of their Allegiance they would give Judgment upon the Arch-bishop They excuse themselves The King presseth them Fitz-Steph Words are Rex responso Archiep accepto instat Episcopis praecipiens obtestans per homagium fidelitatem sibi debitam juratam ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam c. This he translates That the Bishops together with the Barons would give Judgment upon the Arch-bishop This appears to be after his Appeal when the giving of Judgment or medling farther in the Business was refused beside the undue Translation of the Words which signifie no more but the desire of the King that they would tell him their Opinion touching the Arch-bishop I wish he would give me any good Authority where dictare Regi sententiam for sibi here is the same can signifie giving Judgment upon a Criminal as he translates them I know very well that dictare judicium may be taken to deliver any Sentence leisurely Linw. lib. 3. Ne Cler. vel Mon. where it is all one with dicere or suggerere sententiam Beside no such Sense can be affixed to these Words for the King's Question refers to them all in general but certainly the King did not mean they should all pronounce Sentence but only privately tell him their Thoughts yet from hence would our Author infer that this was a Parliament and that the Bishops had Power to give Judgment in Criminal Cases when he hath proved neither because in Truth this was only an Attempt of the King 's to draw them to his Party having then Intentions to send to Rome about this matter The Words of the Bishop of Chichester which he spake to Becket after his Appeal to Rome will do him as little Service for they import no more than that the Interdict laid upon him and the rest from doing any thing against him during his Absence hindred them from being present at such Proceedings against him as the King required from them 'T is not to be doubted but the King would have pressed them to deliver their Opinions whither his Appeal were Treason or not what their Judgment would have been no man knows If it had been a Parliament then summons must have been sent out for his Appearance and Proceedings by Bill of Attainder in a Legislative way not arbitrary in Cases Capital Seld. pri Bar. cap. 4. pag. 10. as before noted He closes this Head of Discourse with a pretended Confutation of the Author of the Tractate of Peerage a Book by some snarl'd at but by none answered but let us examine what they both say The Author of the Discourse of Peerage tells you pag. 14. and backs what he saith by the Authority of Justice Doddridge Sir Edward Cook and Mr. Selden that these were only certain Recapitulations of the King's Prerogative and the Peoples Right then sought to be infringed by the Pope and Clergy That these Recapitulations were avite consuetudines is confessed and that that Canon concerning Blood is as ancient in England as the Conquest our Author acknowledgeth that Gervasius Dorobernensis reckons this Article among the Laws then established from all which the Discourser of Peerage might very well argue That which was a Custom in Henry the First 's Time taken notice and allowed in Henry the Second's Time and of the beginning whereof there is no Memorial extant nor account to be given ought reasonably to be esteemed as part of the ancient Custom which is the common Law of the Kingdom All that the grand Questionist thinks fit to reply to this is that it is little to his Purpose because this Clause in Question is not a Limitation of their Power but a Priviledge and Indulgence for their Absence That this Fancy is erroneous I have before shewed from the natural Sense of that Clause as also that long before these Constitutions they were both by their own Canon Law and Custom of the Nation prohibited from being present in Cases and Consultations of Blood and that themselves admitted not only the Liberty but the Obligation by their constant Obedience given to that Law and Custom in absenting themselves in those Cases as the Author of the Letter hath asserted and shall by me be farther cleared in my Answer to his Precedents Now I do not think that this Author believeth that these Constitutions gave them a greater Liberty than they had before but if it found them bound that Statute left them so and was as all affirmative Statutes are though not introductory of a new Law yet are they corroborative of the old and in their Oath they swear Obedience to this Article as well as to the rest to wit that they would according to their Duty be present in all Proceedings in Parliament with the rest of the Barons except in Cases of Blood in which they tell us afterwards that it was not lawful for them to be present at any hand so that upon their Allowance there was more than a Liberty for there was a Law against them Beside could this Sense be allowed it would no way serve to make good his main Hypothesis that they might be present till the definitive Sentence came to be given for if the Law were obligatory as to any part why not to every part of it Our Aurhor is as little fortunate in his attempt to evade the Authority of Roger Hoveden pag. 40. who saith That 't was agreed in the Synod at Westminster that no Clergy-man should agitare Iudicium sanguints He tels you this was part of a Canon agreed at Toledo which