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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A44191	Lord Hollis, his remains being a second letter to a friend, concerning the judicature of the bishops in Parliament, in the vindication of what he wrote in his first : and in answer to ... The rights of the bishops to judge in capital cases in Parliament, cleared, &c. : it contains likewise part of his intended answer to a second tractate, entituled, The grand question touching the bishops right to vote in Parliament, stated and argued : to which are added Considerations, in answer to the learned author of The grand question, &c., by another hand : and reflections upon some passages in Mr. Hunt's Argument upon that subject, &c., by a third.; Second letter to a friend concerning the judicature of the bishops in Parliament	Holles, Denzil Holles, Baron, 1599-1680.; Holles, Denzil Holles, Baron, 1599-1680. Letter of a gentleman to his friend.; Atwood, William, d. 1705? Reflections upon Antidotum Britannicum.	1682 (1682)	Wing H2466; ESTC R17318	217,539	444

Baronies for ought appears of elder time which he denies any did before the time of William the first of which perhaps more anon doth believe that this Tenure was enacted by some Parliament in William's time preceding to this whose Journals or Records are now lost yet adds for a further Proof the Authority of an ancient Manuscript in his hand belonging it seems to the Abbey of Ramsey of Matth. Paris where over the Year 1070 are inserted these Words In this Year the Servitium Baroniae was imposed upon Ramsey This perhaps might equally concern other Abbies yet seems but a weak Proof of the matter in question as to the Bishops did not somewhat in Ingulphus and the subsequent Practice give some Light to the Business But neither Laws nor Practice ought to be forced or stretched to a greater Latitude than the natural Construction of the Words will bear It cannot reasonably be denied but that in the Times of our Ancestors when Learning in Lay-men was very rare that the Clergy bare a great sway in the Councils of Princes and Great Men who busied themselves in little more then Feats of Arms and Hospitality But the Clergy a wary and vigilant sort of People guided by the subtile Heads of Rome under whose Banner they always fought what under pretences of Piety Satisfaction for Sins commited Redemption of Souls out of Purgatory and what not captivated the Consciences and drained the Purses of most of the ignorant Multitude Nay so holy was their Function and so sacred their Persons that no Secular Tribunal was by them thought sanctified enough to question their Actions but they still pressed to be remitted to their own or by their Appeals to Rome frustrated the Designs of the Civil Magistrate William the first being desirous to put a stop to this exorbitant Pride and growing Power of these Men and yet not disgrace their Calling did as before is mentioned out of Mat. Paris ordain that the Clergy should not be wholly exempted from all Secular Service and probably might before that have altered their Tenure which most-what before was in Frankalmoign unto the Tenure in capite sicut Baroniam or in the nature of a Barony by which they were made subject to such Services as Tenants in cap. per Baroniam were tyed unto and were called to Parliaments and sate among the other Noble-Men and the Barons Peers being first summoned thereunto by the King 's Writ Most Men have considered the Nobilitas Major or those who constituted the House of Peers under a threefold Relation First as made Earls or Barons by Creation and an actual Ceremony of investure of Robes and a succeeding Charter and Writ to attend in Parliament when summoned The Charter comprehended some Limitation how the Honour should go or else some Pension to the Barons to support their Dignity and Title of which you may see more Examples in Mr. Selden's Tit. of Hon. Part 2. Cap. 5. Such I conceive was that Charter made by King Stephen to Mandevile Earl of Essex and renewed again by Maud the Empress the like was that of Miles Earl of Hertford granted by Maud and renewed by Hen. II. which Charter only served to convey the third penny of the County Now these Charters being usual as to Earls which was the highest Degree at that time and an actual Ceremony being also used in the making of Knights which was the lowest degree of Honour I see no reason but to believe that the same Ceremony of Invetisture was used to Barons which was the middle Degree Some Light is given to this by considering the Charter granted to the Lord Iohn Beauchamp of Holt. where the words are Ipsum Iohannem in unum Parium Baronum Regni nostri Angliae praefecimus volentes quod idem Johannes haeredes masculi de Corpore suo exeuntes statum Baronis obtineant ac Domini de Beauchamp Barones de Kiddermister nuncupenter In cujus rei Testimonium c. Here being in this Charter no words of Creation but all in the Praeterperfect Tense we have promoted must refer to some Act done before and this Charter served only to limit how the Estate should go Mr. Seld. Tit. Hon. Part 2. Cap. 5. p. 747. I edit in fol. I know reckons this as the first Creation of a Baron by Patent but doth not observe the words nor his own Subsequent Patents made to others where the words are in the Present Tense and constituent of the Honour granted viz. Praficimus constituimus creamus we do create promote and appoint Neither can I imagine what Right those Ancient Barons of which we have yet some left who were so before Rich. II. have to come this day in Robes had not their Ancestors been invested with them in their Creation and different from those of Earls Now this as it was the most ancient so was it the most honourable way of conferring Honours so was it also the most noble by which their Blood was not only enobled but also all other Rights and Priviledges competible to that Degree were given unto them and certainly we must make some difference between one made a Peer of the Kingdom by Charter and one so called in ordinary Speech of which Name no Man in the Kingdom but is in some sense capable we being all Peers to those of our own Degree Now of these Peers thus enobled by the Invetisture of Robes some were called to Parliament by Writ after the Ceremony of Invetisture had been performed and had never any Patent to limit the descent of the Honour Such had their Honour in fee-simple and it went to the Heirs general of which we have many Examples where the Sole Daughter and Heir of such a Baron hath not only conveyed the Honour to her Descendents but enjoyed the Title herself during Life Amongst many I will only instance in one Charles Longuevile Son and Heir to Susanna Heir general to the Barony de Grey of Ruthin left only one Daughter named Susanna Charles her Father was received in Parliament in his Robes in the latter end of King Charles the first his Reign he dying left the foresaid only Daughter who after his Death married Sir Henry Yelverton of Easton Manduit in Northamptonshire Baronet Sir Henry died leaving Sir Charles Yelverton Baronet his Son and Heir then a Minor Susanna enjoyed the Honour during her Life and at her Death left Charles still under Age who immediately possessed the Honour and at his full Age was called by Writ sate in his Robes in Parliament till he died which happened soon after his Age of twenty one without any issue leaving the Honour to Henry his Brother and Heir yet alive and under Age. See Sir William Dugdale's History of the Baronage Title Lord Grey first Part pag. 718 719. The second way by which some have conceived Barons were made hath been by Writ only without any other Formality or Ceremony whatsoever and of this

Proctor at the beginning of the Tryal as is manifest and agreed by all therefore the Crime charged upon the Clergy could not but be before any Proceedings against any of the Criminals except that preliminary Vote which made them guilty of Blood in that Chronicler's Sense In Conclusion there was no Act to revoke these Pardons but the King it seems caused Execution to be done upon his own Authority and those general Votes in which the Clergy were present so that after all this Attempt the Authority of this MSS is against him But after all this we have one help left saith the Author of the Letter for if this Action in this Parliament would do him any Service the whole Parliament was repealed in I Henry the Fourth and so no Authority to be laid upon it I but replyes the Grand Questionist the Author of the Letter admits that the three Henries Fourth Fifth and Sixth were Usurpers and therefore the Repeal of that Parliament void I acknowledge the Author of the Letter saith so but he is so to be understood as the Law is now taken not as it was then for we see Henry the Fourh in Parliament claimed the Crown as his Right as being Heir to Iohn of Gaunt fourth Son to Edward the Third whereas the Title of Mortimer who was by another Parliament declared next Heir arose by his Marriage with Philippa Daughter and Heir to Lionel Duke of Clarence who was the third Son to Edward the Third but it was never before determined that the Daughter of a third Brother should be preferred in Succession to the Crown to the Son of a Fourth We see Maud the Empress Daughter to Henry the First could not be received Queen though she attempted and sought for it neither ever had we a Queen since the Conquest till that time Nor can I divine how long it might have remained a Question had not that Controversie been determined by the happy Union of both Titles in Henry the Seventh who married the Daughter and Heir of the house of York The next Question will be how far Laws made by an Usurper generally received and accepted by the People upon the resignation of the immediate precedent Possessor shall be esteemed valid I fear if we make such Laws void we must find some new way to make many of ours good till Henry the Second Was not Robert eldest Son to William the First alive till toward the latter end of the Reign of Henry the First who about the eighth Year after he was King deprived him of his Eyes after which he lived a Prisoner twenty six Years William Rufus had no better Title than the Acceptance of the People and his Composition with his Brother Robert who resigned his Title for 3000 Marks per an Henry the First succeeds by Title no better till Robert's miserable Death which happened in the thirty fifth year of his Reign and about a year before his death After him Stephen steps into the Throne help'd by two powerful Friends the Bishop of Winchester the Popes Legate his own Brother and the Bishop of Salisbury his great Friend and this in the Life of Maud Daughter to Henry the First and his own Brother Theobald whose Title though bad was better than Stephen's they being both Grand-children to William the first by Adela his Daughter marryed to the Earl of Blois But for this great favour and their breach of Oath to Maud he promised great Immunities to the Church and amongst other that Clergy-men should not be bound to answer to secular Courts But by our Author's Logick this Concession was void and the Clergy had no reason to complain because the old Law was revived at Clarendon At last to sodder all a Composition was made that Henry Maud's Son should have the Crown after Stephen's death which was performed by her Consent Maud being then alive who having strugled for the Crown as much as she could was at last contented with this Composition which was the only legal Title King Stephen had and no more voluntary in Maud than was that of Richard the Second But at length Maud dyes and Henry the Second and his Son Richard the first enjoyed the Crown in their just Rights After their Death Iohn comes upon the Stage in the Life of Arthur his elder Brother's Son so that here we have another Usurper after whose death and the death of Arthur Henry the Third had a good Title whose Descendents enjoy it to our Time for the Quarrels between York and Lancaster were not about the Line but the Persons insomuch that till Henry the Third the best Title to the Crown was the Acceptance of the People and particular Compositions with those who had the greater Right Come we nearer home to the time of Henry the Seventh who after the Death of his Mother and his Marriage with the Daughter and Heir of Edward the Fourth was rightful King His Eldest Daughter was marryed into Scotland from whom our present King enjoys his Crowns upon an unquestionable Title We will now come to his Son Henry the Eighth he had two Daughters Mary and Elizabeth the first by Katharine his elder Brother Arthur his Relict the second by Anne of Bullein born in the Life of his first repudiated Wife Queen Katharine Mary was by Act of Parliament declared a Bastard as born within unlawful Espousals Elizabeth after the Disgrace of her Mother was served in the same kind yet we see both of them successively enjoyed the Crown by virtue of another Act which entailed it upon them with the approbation of the people whereas otherwise the true Right would have been in Mary Queen of Scots our present Sovereigns great Grand-mother I might pursue this Theme through France in the case of Hugh Capet through Spain in the family of the D. of Medina Celi and at present in Portugal but I will not go out of our own Kingdoms and have said enough to make it manifest that Laws may be made or repealed by such Kings as are in Possession by Composition or Resignation with the acceptance of the People else our unwary Author hath laid a foundation to overthrow or weaken not only most of our Laws but most of the Laws of Europe Over and above all this if the Laws of Henry the fourth fifth and sixth were not good why did not the Nobility made in that time get new Charters of Creation in Edward the fourth's time Nay what became of the whole Hierarchy Many of the Prelates and inferiour Clergy must of necessity be consecrated by those that were no Bishops and consequently their Consecration and Orders by them conferred were void and all our subsequent Clergy who derive their Authority from those who had no legal Right extinguished a thing in my Judgment worth consideration to such as would avoid Laws made by actual Kings though their just Title might be disputed His mentioning Oliver rather deserves pity for his Inadvertence than any other Answer

Coronae tenta coram Domino E. Rege in pleno Parliamento suo c. Mem. Thomas de Berkeley Miles venit coram Rege in pleno Parliamento suo allocutus de hoc c. about the murther of Edward the Second and asked how he would be tryed Ponit se super Patriam So twelve Knights were empannelled who did acquit him I do not look upon this as a Tryal by the House of Peers acting in their ordinary Judicial Capacity There was some other Court in those times in time of Parliament where the Peers probably were the principal Judges but then were added to them some great Officers of the Crown and of the Judges of Westminster-Hall before whom those Pleas of the Crown were held I confess this is to me Terra incognita a thing of which I can give no very good account But I think one may affirm with confidence that no Prelates were amongst them for they would have been mentioned if they had been there as in all Criminal Causes which were Capital or in any thing concerning such Causes I observe they were And even in this Case of Sir Thomas Berckley the next Parliament N. 18. it is said ●…tem en mesme le Parlement si prierent les Prelatz Countes 〈◊〉 Barons pout Mr. Thomas de Berkley a nostre Sur le Roy ●…il lui voustst deliver de meynprise c. Item in the same Parliament the Prelates Earls and Barons besought the King that he would set Sir Thomas Berkley at liberty from his Mainprize I do observe they are always named and never omitted if any else be named which is my Postulatum to our Asserter and not as he injuriously would put it upon me p. 56. of his Pamphlet That I should maintain That the Prelates are in all Cases particularly named or else they cannot be thought to be there and then to disprove it quotes a Bill of Subsidy where the words are Les Seigneurs Communes si sont assentez The Lords and Commons have agreed And Semble as Seigneurs du Parlement It seems to the Lords of Parliament and a hundred such instances more I know he may give And the Trifler could not but know that I could intend it of no other but of the matters in question which were Judgements in Criminal Causes And I shall add but this more to shew the improbability of the Prelates of those times being at all employed in Tryals of that nature and least of all that we should imagine they could be comprized under general expressions which if it were would argue an unquestionable right and title in them to such a Judicature Let us consider the Statute made but two years before it is 2 E. 3. c. 2. which confirms a Statute formerly made 27 E. 1. c. 3. which Enacts That the Justices of Gaol delivery which are sent down into the several Counties when they enquire of Felonies and Murthers if one of them be a Clerk then some discreet Knight of that County shall be associate to him that is the Lay-man and shall deliver the Gaol We see how careful they were then that no Church-man should take Cognizance of Matters of Blood Canon Law Common Law and Statute Law did prohibit it And now to follow my Gentleman to the Parliament 5 E. 3. in which he tells me I have not been fortunate in the choice of my Topick because that Parliament being called for the redress of the Peace and the Bishops saying It did not properly belong to them to give the King counsel for the keeping of the Peace of the Kingdome signified nothing But had they said it did not all belong to them it had been somewhat to the purpose But under this Gentlemans favour I think it is to the purpose to shew that the Bishops did then believe and acknowledge that it did not properly belong to them to look to the keeping of the Peace that it was not their proper work which implies that they conceived their duty and employment to lie another way And it is a strong argument à minore that if they might not do that and advise the King in doing what was necessary for the keeping of the Peace and punishing the breakers of it much less could they be put upon it to judge in Matters of Blood And for them to say that It did not properly belong to them was a little softer and more respectful to the King to excuse themselves from doing what he required of them for giving their advice than if they had bluntly said That it was not at all of their duty to give such advice which had grated a little too much and had been a kind of retorting it upon the King for requiring a thing in it self improper and unreasonable And yet they did as strongly put it off from themselves saying It did not properly belong to them for no prudent and sober man will do a thing that is not proper for him nor can it be required of him that he should So I think my Topick was very good and I may say I am not altogether unfortunate to have to deal with so weak and impertinent an Adversary What he saith in the Case of Sir John Grey and Sir William de la Zouch of Bishops that they are sometimes comprehended under the general word of Les Grantz I never denied it but in that place where the King did charge Toutz les Countes Barons autres Grantz en lour foies ligeances c. All the Earls Barons and other great men c. I say that Bishops cannot be comprehended there because in that place it can be understood but of such great persons whose Rank is after the Barons where I am sure no Clerk of the Parliament durst ever rank the Prelates And another Rule which I stand upon is That if any one Bench of the House of Peers be named and specified as that of Earls or Barons that of the Bishops if the Bishops were present is never left out but always first placed The next scratch he gives me is upon the Case of Sir William Thorp 25 E. 3. upon my inferring that by the General Term of the Grantz in that Parliament who approved of the Judgement of death given upon Thorp it cannot be supposed that the Bishops are understood because they tell the King that if such a Case should happen afterwards the King might call any of those Grantz whom he pleased and by their advice give such a Judgement of himself which I say could not be meant of Bishops because it was no employment for them to assist in Judgements of death Upon this my Gentleman is pleased in good serious earnest as he scoffingly expresses it to ask if this be not petere Principium to beg what I am to prove And I answer in true serious earnest that I do not petere Principium not beg the Question for the Question is first general Whether Bishops in Parliament can be employed in

and Temporal and of the Commons in Parliament in the passing of an Act of Parliament for when a thing is said to be enacted by the King with the advice and assent of the two Houses that advice and assent of the two Houses is their passing and enacting of it as to their part in it For any thing that is done in either House if the King be mentioned in it is said still to be done by him with the Advice and Consent of that House so in a Judgement judicially given by the House of Peers where anciently the King was often present when they acted judicially it is said to be given by the King by the advice of his Lords and here the Duke of Gloucester represented the Kings Person and held the Parliament by Special Commission so the Judgement is said to be given by him by the advice of the Lords Temporal And so the Lords 28H 6. when the King of himself gave the Judgement upon the Duke of Suffolk the Lords protested against it because it proceeded not by their advice and counsel For that is it which gives the form and being to the Judgement and stamps upon it the Authority of the Parliament Then he comes to a Precedent without debate as he calls it which is that of 28H 6. the Duke of Suffolk's case and confessed so by me as he saith but not truly For I do not allow it to be a just and legal precedent I do acknowledge that the Bishops were present all along the whole transaction of that business but as I said in my first Letter to you so I must and do say in this there was in it from the beginning to the end nothing regular nor according to the usage and practice of Parliaments Then it cannot be said to be a Precedent no more than a Monster that hath no shape nor limb of a true Child can be said to be a Child As for the particular deformities of this Monster for so I may term it they are already so fully deciphered in my former Letter as I will not now trouble you with them again So it shall pass at this time as he will have it for a Precedent without debate for it shall not be any further debated Only I must say still it is but a single Precedent and of what force that is or can be when the constant course and practice of Parliaments hath been to the contrary I leave it to you to judge One single Precedent against all other Parliaments is an unequal match one would think I have heard of a great conquering Prince that gave it for his Motto Souls contra omnes but I have not heard it said so of a Parliament Solum contra omnia The authority of any one Parliament I know to be very great yet it is a known Maxime in the Law Parliament poit errer A Parliament may err and another Parliament may mend what one doth amiss Parliament-men are men and may and do sometimes mistake as well as other men it is possible they did so 28H 6. and more than probable they did so because no other Parliament before nor since did ever do the like And for his Recapitulation of all the fore-mentioned Records in all twenty seven which he makes to prove that this was not a single Precedent as I affirm it to be all the rest as he saith concurring with it to admit Bishops to be Judges in Capital Cases I will only say Sit liber Iudex resort to the Records themselves and to what is already said in my former Letter and this and then judge if he saith true Then he hath a fling at me for what I say upon the Case of Nicholas de Segrave 33 E. 1. where he must give me leave to say with truth what he saith falsly of me upon several occasions which is this That he hath not set down things Faithfully and Ingenuously He saith Segrave came into full Parliament into the presence of the King the Arch-bishop of Canterbury and several Bishops Earls and Barons acknowledged his offence and submitted to the Kings pleasure Upon this he observes That here was no Iudicatory of Parliament and then adds that the King pardoned him De advisamento Comitum Baronum Magnatum aliorum By the advice of the Earls Barons Nobles and others You shall see now how faithful and ingenuous a dealer our Asserter is but certainly he takes all upon trust and takes not the pains to see any thing himself First I do acknowledge it was no formal Tryal for there was no impeachment nor Indictment against him but I must say it was Tantamount for he comes in upon Summons into the Parliament then sitting where the Prelates were among the rest of the Members of the House and how long they continued there it appears not by the Record but he being come Nicholas de Warwick the Kings Councel charged him and pressed matters against him And then the King as the Record saith willing to have the advice of the Earls Barons Nobles and others of his Counsel enjoyned them upon the Homage Fidelity and Allegiance which they owed him to give him faithful Counsel what punishment was fit to be inflicted upon such a fact so confessed Who all of them upon a serious debate and advising upon the matter and well weighing all the particulars of it and what was by the said Nicholas plainly and expressly acknowledged do say That such a man deserved to lose his life But afterwards the Record saith Dominus Rer tamen de gratia sua speciali pietate motus malens vitam quam mortem eorum qui se voluntati suae submittunt remittit eidem Nicholao Iudicium vitae membrorum But the King moved by his special grace and piety desiring rather the life than the death of those that submit to his will did remit unto the said Nicholas the Judgement of loss of Life or Member Here you see the King advised not with his Prelates but with the Earls Barons and other Nobles and what did they advise Not to pardon him as our Asserter will have it but they say he deserved death and then the King of himself would not have it go to that extremity Now whether this Judgement would have been final if they had pronounced sentence and adjudged him to death as they only said such a man deserved death or whether this was only to be preparatory to a Tryal and to proceed afterwards upon a formal Impeachment I confess it is not clear to me nor is it greatly material to our purpose only it shews the Bishops were to give no advice in it one way or other and it is rather stronger to prove they are not to meddle in such matters if it was but preparatory For it shews that in those Capital Cases they must have nothing to do with them to determine and judge any thing concerning them from one end to the other ab ovo usque ad mala as the

particularly In his Comment upon the 118 Psalm he saith speaking of those who interrupted them in their enquiry into the duty which they owed to the Commandments of God Non solum cum persequuntur aut litigare nobiscum volunt verum etiam cum obsequuntur honorant tamen cum suis vitiosis negotiosis cupiditatibùs adiuvandis ut occupemur eis nostra tempore impendamus efflagitant aut certè infirmos premunt ut causas suas ad nos deferre compellant quibus dicere non audemus dic homo quis me constituit Iudicem aut divisorem inter vos Constituit enim talibus causis Ecclesiasticos Apostolus Cognitores in foro prohibens jurgare Christianos Here is nothing of coercion in all this they acted not as Judges nay he complains that the Clergy-men themselves were persecuted and compelled to go to Law or if they seemed to shew them some respect and would be ruled by them and drew them from their occupations to compose things between them they would not drive them away and say who made me a Judge between you For the Apostle who forbids Christians going to Law makes the Clergy to be Cognitores Referees or Umpires between which is the greatest act of Charity that can be and most befitting the calling of the Ministers of Gods Word But what saith St. Austin a little after Good men he saith will hearken to us and seldome trouble us with their Secular affairs but others qui inter se pertinaciter agunt quando bonos premunt nostra Iudicata contemnunt faciunt que nobis perire tempora rebus eroganda divinis Good men will hearken to him he saith but those who are perverse do Iudicata contemnere despise his award of it which shews he took not upon him any authority of determining any thing And so in his 147th Epistle to Proculianus the Donatist he hath this passage Et homines quidem causas suas Seculares apud nos finire cupientes quando eis necessarii fuerimus sic nos Sanctos Dei servos appellant ut negotia terrae suae peragant aliquando agamus negotium salutis nostrae salutis ipsorum Non de auro non de argento non de fundis pecoribus pro quibus rebus quotidie submisso capite salutamur ut dissentiones hominum terminemus c. Nothing plainer than that all this is purely out of good will a work of Charity to those who desire him to determine their Secular differences in which the Clergy then had meerly an eye upon Gods Glory the good of their own Souls and of the Souls of those for whom they took that pains But all this is Nihil ad rem let the Clergy have right or no right to judge of Secular Causes it will not decide our Controversie Whether Bishops in Parliament can meddle in cases of Blood Hic Rodus Hic Saltus if we do all extravagate I must come back to this His next Chapter will be more to the purpose it is concerning the Constitutions of Clarendon and the Protestation of the Bishops 11 R. 2. These two particulars well cleared and no disguise put upon them will go a great way He begins with the Constitutions of Clarendon which he conceives to be that Bishops are thereby required to be present in the Kings Courts as other Barons are till they come to give Sentence as to dismembring or loss of life and his Method is to judge of them by these three ways 1. The occasion 2. The plain sense of the words according to their true reading 3. By the subsequent Practice upon this constitution in the Parliament at Northampton soon after 1. For the occasion this Author is pleased to say he can hardly believe I should betray so much unskilfulness in the affairs of those times as to say that the Bishops did then affect such a power of Judicature in Secular Causes and I think I have good warrant to be of that opinion Petrus Blesensis whom this Author cites as living in Henry the Second's time and knowing the whole proceedings of those Constitutions complains of it sufficiently In the first and genuine Edition of them Printed at Mentz in Quarto published by Busaeus the Jesuite in 1600 in his Treatise De institutione Episcopi p. 542. he hath this passage Illud coelestem exasperat iram plerisque discrimen damnationis accumulat quod quidam principes Sacerdotum seniores populi licet non dictent Iudicia Sanguinis eadem tamen tractent disputando disceptando de illis seque ideo immunes à culpa reputant quod mortis aut truncationis membrorum Iudicium discernentes à prounciatione duntaxat executione poenalis sententiae se absentant Sed quid hac simulatione perniciosius est Nunquid discutere definire licitum est quod pronunciare non licet This provokes Gods wrath and heaps up upon many a danger of damnation that some of the prime of Church-men and Elders of the People though they do not dictate Iudgements of Blood yet they debate them and dispute of them and therefore repute themselves free from fault in regard they have withdrawn themselves from being present at the pronouncing and giving order for the execution of the penal Iudgement though they had before agreed to the punishment of Death or loss of Limbs But what can be more pernicious than such dissembling Can it be lawful to debate and to determine a thing which it is unlawful to pronounce Then he compares them to King Saul that had resolved upon the destruction of David but would not that his hand should be upon him but that he should fall by the hands of the Philistines or to the Scribes and Pharisees that cryed out against our Saviour Crucifie him Crucifie him but said it was not lawful for them to put any man to death Is not this as good as Chaucer's Fryer that this Author quips me with p. 4. I do not say that Blesensis blamed all the Bishops for evading the Law in that manner he saith they were quidam Principes Sacerdotum some of the great Bishops But the Author would have it to be the Universal Practice and Opinion of all the Bishops and Clergy to understand the Constitution of Clarendon that they might continue to sit in Judgement till the Sentence was to be pronounced and in the Edition of Blesensis Printed at Paris in 1667. instead of quidam it is Printed quidem but by a manifest error which carries no sense with it and the Marginal Notes in both Editions shew it which is Abusus Clericorum qui causas sanguinis discutiunt marking out the abuse of them that did so This was obvious enough to the Author in his quotation of Blesensis therefore he might have spared the censure of my unskilfulness in the affairs of these times since I had such a Leader to follow as Blesensis and more have I cause to complain of his want of Charity to

by Usage or Allowance that 's denied Nay the Impossibility is manifest For I conceive by Law the King cannot make an Estate for if he could he might make a fourth a fifth or a sixth Estate and require consent from them all to the making any Law which would alter the Frame of the Government Mr. Prin hath very well proved them to be only a third Estate in Convocation from the manner of penning their Grants there to wit By the name of Prelates and Clergy of the Province of Canterbury and York orderly assembled in a Provincial Synod or Convocation may be ratified and confirmed in your Highness's Courn of Parliament with the Assent of the Lords Spiritual and Temporal not Prelates and Clergy as in their Grant Prin. fourth part of his Kalender p. 594 595. to these I might add many more Authorities Caudrey's Case Cook part 5. p. 8. Clerus tota Gens Laicalis but these eare enough and I take it a full Answer to his several Records urged to that purpose and for Explanation of the Author of the Letter who when he saith they are a third Estate of the Kingdom not of the Parliament that is to say not in that House of Parliament where they sit mixt with the Temporal Lords But should I admit them a third Estate in the Lords House as this Author and others contend they are and so a distinct Estate from the Lay-Lords What colour can they then have to judg a Peer upon an Impeachment for Life when themselves tho they sit among them are a distinct Estate from them and so no way their Peers which I take to be a very strong Argument ad Hominem I have thus past his first Assertion and given Answer to his Conceit of their being a third Estate in the Lords House if by it he mean an intire third Estate and not a part of it as I said before For when they act in Convocation they act with the rest of the Clergy as an intire third Estate can they that is the Bishops in the Lords House be more than part of a third Estate where they vote not as Bishops but as Barons as themselves would have it Certainly we must not shut out the Convocation to represent the Clergy if then the Bishops in Convocation represent but a part of the Clergy how they should be an intire Representative of them in another place whilst both are in being is to me a Riddle Let us now come to his argumentative part After he hath climbed a Ladder of five Steps he comes at last to this Conclusion That to sit in Iudgment with the Lords is not against Magna Charta What if this shall be granted him Doth it thence follow that they are such Peers as are enabled to try those in Capital Cases who are enobled in Blood and have inheritable Baronies in themselves by Creation Magna Charta is a general Charter which directs the Proceedings in the Tryal of all men by their Peers Who are Peers to one another is not there the Question neither doth the Author of the discourse of Peerage make any other use of it The ancient Canons forbid them to meddle at all in secular Affairs if therefore the Indulgence of Kings have admitted their Presence in Parliaments in some Cases doth it thence follow that they have Right to be there in all Cases or to try Peers for their Lives to whom they are no way equal The Author proceeds and in the next place insists upon the Forms of their Writs which are of the same kind with those of the other Barons which being not limited nor restrained neither ought their Power so to be The Weakness of this Argument is very apparent for by this he may infer that the Judges and some others had the same Right for Mr. Elsing in his Modus pag. 11. hath observed that the Writs were alike to the Lords to the Judges and some others in diverse years of Ed. 1. in most of Ed. 2. and many of Ed. 3. But the Words of these Writs though general were to be interpreted by the Practise of the Court and not contrarily Again there is a great deal of difference between giving Counsel in difficult matters according to their Writ and trying Men for their Lives an Employment no way proper for Messengers of Peace and Preachers of glad Tidings Lastly the Earls and Barons are Consiliarii nati Counsellors by their Birth and so have a natural Right to give Counsel in all Affairs being once assembled in Parliament and for that Reason upon the Death of the King the Nobilitas Major have all equal Right to meet in Council in order to a Successor so have not the Bishops nay though Privy Counsellors their Commission ceasing they have then no Right to come into Council with the other Lords In the next place he saith Men as certainly dye by Bills of Attainder where the Bishops have an undoubted Right to vote in their Legislative Capacity and therefore to vote in Cases of Blood is not incompatible with their Function To this I answer the Cases are very different as well to the matter of the Law as the Reason of it For first Custom or whoever gave them Right to sit in the Lords House in the Nature or amongst the temporal Barons though Ecclesiastical Persons did not restrain them as to their Concurrence in the making new Laws yet very well might as to their judging in some Laws already made so that the one is agreeable to the Laws of the Kingdom and the Laws of Parliament and the other not so And if any thing in that Particular had been contrary to the Holiness of their Calling or their Rules of Living it had been fit for them to have informed the King and Lords and not for them to take notice of it otherwise Nay in that very Case when that Bill shall come to be passed into a Law by the King the Lords Spiritual ought to absent themselves as it was held by Mr. Bagshaw a Reader of the Middle-Temple in the time of Arch-bishop Laud by whose Power he was then prohibited from farther Proceedings in his said Lectures Rush. Hist. Collect. part 2. pag. 990. Secondly the passing a new Law be it what it will doth not immediately but by Consequence may concern Blood Now the Bishops who are always supposed to incline to Mercy rather than Severity may perpetually with a good Conscience hinder the passing such a Bill as shall punish a Delinquent with Death who had not capitally offended before But when once a Man is capitally impeached for transgressing a known Law and Issue joyned thereupon 't is not now in their Power with a good Conscience to acquit the Guilty because they must there opine according to the Proofs before them which is a very strong Argument why they might be permitted to be present in the one Case and not in the other Lastly if this way of arguing

but of the better Opinion of such as were the Judges The Records of the Court were not to be denyed to any man others it seems might by understanding men concerned in the Cause The meaning of the Law I take to be that Cases of Right might be tryed here of any Value but criminal Cases were not medled withall I remember not to have read any where that Capitalia placita had that Signification our Author suggests Placita Coronae Placita Parliamentaria and Placita Communia I have met with but Capitalia Placita for Placita Capitalium criminum is new to me However the meaning of that be yet the Manuscript Life of Saint Cuthbert as to the thing it self will help us out He tells you it may be with as much Truth as Brompton that one Hamel the Son of Earl Godwin being imprisoned by the Earl of Northumberland his Friends earnestly interceded with the Earl that he might not loose his Head Here indeed we find a man imprisoned by an Earl Application made to the Earl in his behalf no mention of any Bishop any Tryal or any farther Proceeding in the business but the Tryal and the Bishops Presence at it are both supplyed by our Author who hath proved neither or produced greater Proof than the Authority of a loose Legend and that lame too and yet upon this he triumphs as if the Point were clearly gained when there is nothing of what he would have made good by him Is it not now a thousand Pities that so well sounding Words so well put together should signifie nothing The next Precedent our Author takes into Consideration is that of Nicholas Segrave cited by the Author of the Letter pag. 55. by this Author pag. 76. which he would evade by supposing the Bishops might be comprehended under the Name of Magnates or Counsellors and shews that some of the Bishops were probably then of his Counsel For a clear Answer to these Surmises I shall give you shortly the whole Case as you shall find it at large inter placita Parlam 33 Ed. 1. Riley pag. 266. Nicholas Segrave had Summons by the Sheriff and the Command of the King to answer to such things as should be objected against him and to hear and stand to what the Curia Domini Regis to wit the Parliament consideraret in praemissis Segrave upon this Summons Venit in pleno Parliamento in praesentiâ ipsius Domini Regis Arch. Cantuariensis plurimorum Episcopor Comitum Baronum aliorum de Consilio Regis tunc ibidem existentium Nicholas de Warwick perhaps the King's Atturney accuseth him of many and great Crimes which he offers to prove Segrave confesseth all submits to the King de alto basso Et super hoc Dom. Rex volens habere avisamentum Comitum Baronem Magnatum aliorum de consilio suo injunxit eisdem in Homagio fidelitate ligeantia quibus ei tenentur quod ipsum fideliter consulerent qualis poena pro tali facto sic cognito fueri infligenda The Comites Barones Magnates c. adjudge him worthy of Death After this the King pardons him and orders him to put in seven Sureties and to render himself a Prisoner at the King's Command and to be accountable to the King for the Issues of his Land held in his own or his Wifes Name This in short is the Case of Segrave in which it is very clear that at the Accusation the Bishops were present as of Right they might be but at the Tryal they are omitted Now to suppose them comprehended under a general Name and out of Order who were particularly expressed when their Presence was lawful is both unusual and unreasonable unusual because it is against the Rule of Law to comprehend the greater after the Nomination of the lesser and so to take the Bishops under the name of great Men who are constantly first named and were so here at the Beginning Secondly 't is unreasonable to make a different Construction of the same Words in different Cases or Laws now we know that in the Statute de Asportatis Religiosorum the Words are Comites Barones Magnates where we know the Bishops were not comprehended under the Name Magnates nor ought to be here and to suppose the contrary is against the Current of all Acts of Parliament and Records By the Magnates and alii de Consilio were meant the Judges and other Counsellors at Law whose Advice the King required as was very just and usual in those times 'T is likewise observable that the Word Consilio is written with an s which shews those Counsellors he advised with were not necessarily Members of Parliament for then the Word would have been written with a c Concilio His remarkable Precedent of the D'Spencers will stand him in as little stead in the Reign of Edward the Second they were both condemned and the Exilium Hugonis D'Spencer is to be seen in the old Natura brevium Those Judgments were afterward reversed at York in 15 Edward the Second but in 1 Edward the Third the first Judgments were affirmed and so they were look'd upon as condemned Persons which continued though themselves were dead for above seventy years til by the prevailing Party in 21 Richard the Second that Act was again called in question as void in regard the Bishops were absent and the Bishops desired to make a Proctor by the Commons which they accordingly did but at last through their exorbitant Proceedings that whole Parliament was repealed in 1 Henry the Fourth To this I have largely spoken before to which I shall refer the Reader with this farther Advertisement that in troublesome times things are not always carryed as they ought to be wherefore we are not always to look at what was but what ought to have been done neither are we to be governed by seeming Precedents such as sometimes as in the Case of Ship-money may be produced against Law I have before made it manifest that the Canons of the Church long before Lanfrank's time forbad Clergy-men to meddle either in Blood or secular Employments neither is it reasonable to believe the Laws of this Land were different from the general Rule incumbent upon all Clergy-men to observe especially when we see the Immunities granted them by King Stephen were so early recalled by Henry the Second and the Constitutions then made at Clarendon look'd upon as the ancient Customs of the Nation insomuch that the Discourser had very good reason to say 't was the common Usage which is the common Law of England Pag. 88. Our Author comes to the Examination of those Records urged against him and his Exceptions in general are First That they are Negative the Bishops were not present at Tryals of Blood therefore they had no Right to be present Secondly They were sometimes absent when they were not prohibited therefore their Absence was voluntary Thirdly they are sometimes comprehended under the

not pursue this Author in his Digression touching the ground and reason of the Trial by Peers since our Question is not what the Law may be in other Countries but what the Practice of our own is and of what sort of People those Peers are to be composed That is to say Whether the Jury for the Trial of Bishops shall be composed of Noble-Men or of Commoners In this he confesseth that the Lawyers and those of them who have most searched into Antiquity are of a different Opinion to what he maintains as to this Particular A shrewd Objection I take it this is for every one ought to be credited in his own Art and 't is ten to one the Generality of the Lawyers are rather in the right than Strangers to the Profession or Lawyers of a lower Rank than those great Masters have been But that he may say something he tells you that Mr. Selden not only in that confused Rapsody goes under his name but in his more elaborate second Edition of his Titles of Honour admits the Bishops to be Peers in which he hath corrected and left out the false or doubtful Passages of his first Edition and among the rest that Passage A Bishop shall not be tried by Peers in Capital Crimes What then doth this Omission supersede those Precedents laid down by him in that Rapsody as he calls it which was as much his as the other The leaving out that Passage might be a Neglect in the Printer I am sure 't is no Retractation of what he had said before Neither need I tell this Author how Books come sometimes to be corrupted Secondly He saith some things have been affirmed about this matter with as great Assurance as this is which have not been the constant Practice Coke he saith is positive in his third Instit. p. 30. That a Bishop should not be tried by Peers and in the same Page that a Noble-Man cannot wave his Trial by his Peers and put himself upon the Trial of the Country And doth this Author think the Law to be otherwise Yes he saith in the Record of 4. Edw. 3. That Thomas Lord Berkley put himself upon his Country I have a Transcript of the Record by me which I received from my learned and worthy Friend Mr. Atwood of Greys-Inn but because it is in Latine and agrees with the Abridgment by Sir Robert Cotton and review ed by Mr. Prin I shall not transcribe except two or three Lines Thomas de Barkele Miles venit coram Domino Rege in pleno Parliamento suo c. Cotton 4 E. 3. Numb 16 17. In a Plea of the Crown holden before the King this Parliament Thomas of Berkley Knight was arraigned for the Death of Edw. II. for that the said King was committed to the keeping of the said Thomas and Iohn Mautrevers at the Castle of Thomas at Berkley in Glocestershire where he was murthered Thomas pleads that he was sick at Beudl●…y without the said Castle at the Death of the said King and put himself upon the Trial of 12 Knights named in the Record by whom he was acquitted Here we have an Arraignment of Thomas de Berkele Knight in 4 Edw. 3. but none of Thomas Lord Berkele as this Author supposeth In 5 Edw. 3. Numb 15. I find the same Person at the request of the whole Estate discharged by the name of Sir Thomas Berkley so that it seems plain he was then no Peer and consequently no waver of Peerage in 14 Edw. 3. and in 4 Rich. 2. Cot. p. 187. I find him summoned to Parliament not before 14 Edw. 3. When any Noble Man had the Addition of Miles the name of his Barony was generally expressed and the word Dominus annexed Iohn de Beauchamp Militi Domino de Beauchamp 27 Hen. 6. Rob. de Hungerford Mil. Dom. de Moleyns and many others Insomuch that I am confident that in 4 E. 3. Thomas de Berkley had never been summoned and so not inter Barones Majores And the Milites were Tenants in Capite I have at last examined all the parts of this elaborate Treatise in which the Author hath endeavoured with all Art and Industry imaginable to support a declining Cause I have not to my Knowledg left any Argument unconsidered which hath been thought material by this Writer to be urged in defence of that Cause the Maintenance whereof he had undertaken I have been longer I confess in this Discourse than at first I thought to have been but this must be attributed to the Subtilty of my Adversary who by learned Digressions and cunning Insinuations hath indeed clouded the Truth and rendered it less visible to the Eyes of common Readers Notwithstanding what I have said if this Drudgery of being present as Judges in Criminal Cases or in the Trials of Noble-Men in Parliament be the Right of the Lords Spiritual in Parliament If the Embassadours of Christ the Messengers of Peace and the Preachers of Mercy and Reconciliation to God in Christ have more mind to be Executioners of God's strange Work than in what he delights If they delight rather to make Wounds than to bind them up let them enjoy that Burthen according to their Desire But their Pretences to it hitherto have been ineffectual and of late all Power of Judicature in Cases of Blood hath been denied them in several Parliaments by both Houses Neither hath this Author been yet so happy as to have produced any one clear Precedent where they have been present at the Trial and have given Votes for the acquittal or Condemnation of any Noble-Man brought to Judgment in Parliament in Cases of Blood Or that any of their Order have been in such Cases tried by Noble-Men or indeed have desired to be so tried Certainly this Nation together with the most of other Christians in Europe lived under the Papal Communion till the times of Reformation and therefore the Bishops here cannot reasonably be supposed to have enjoyed Priviledges different or greater than those enjoyed by their Fellows in other Places where they had the greatest as well Power as Honour But I think I may with Confidence affirm they were no where allowed to sit Inquisitors of Blood and not only to debate but at their Pleasure to give Sentence in such Cases as Secular Persons in Secular Courts I very well remember that in the Parliament begun here 1640 it was at the beginning thereof hotly debated in the Lords House whether any Bishop might be so much as of a Committee in any Parliamentary Examination in the Case of my Lord Strafford because it was a Case of Blood in which by Law they ought not to meddle the Debate was put off and the Bishops were willing to absent themselves according to the Opinion of one of their own Body and agreeable to the Practice and Usage of the Kingdom being only allowed by the Lords to enter a Protestation saving their Rights in that and

within Frank-pledges and be bound with Sureties to their good Behaviour Which Dr. Brady tells us and rightly enough if he speak of the Time of Edw. 1. was only for the ordinary Free-men or the Bulk and multitude of the Free-men or small Free-holders All that look'd upon themselves as Gentlemen at the least were without any manner of Representation and wherever they were interested appeared in Person and sometimes in very disorderly Multitudes Some sensible of the inconvenience of it and expence and trouble to themselves of their free Choice became incorporated by Charter as aforesaid being either the Kings Tenants or some inferiour Lords or it may be the Tenants of several Mannors joining together and their coming to Parliament or as the Burrough of St. Alban's pleads pro omnibus serviciis faciendis was a consequent upon their Incorporation Free-hold I take it was the occasion of all this though afterwards Traders might be admitted to Priviledges amongst them The Traders and Free-holders within Cities or Boroughs sent their Delegates whilst here as in Poland the Possessionati Men living upon their Lands in the Counties came to the General Councils in their own Persons Thus it was here till the 49th of H. the 3d as I think the Authorities formerly insisted on by Mr. Petyt in behalf of the Citizens and Burgesses and by me for the Possessionati in the Counties sufficiently Warrant Wherefore the Alteration which was made in the Government in the 49th of H. the 3d. if any were then made was the calling out some of these Proprietors Earones Comitatus to come in their own Persons and putting a Representation upon the rest which was most likely to be done by the Perswasion and Influence of the King though with the consent of the People And therefore I must say 't is most probable that what is by Mr. Cambden's Author transmitted to us as done a little before the Death of H. the 3d must have been some years af-the 49th and the Kings Victory at Evesham over the Great Barons whom he curb'd by the Less the Commons Which prevail'd on his side by whose Assistance he depriv'd many great Men of a judicial Power in Parliament and of the right to special Summons while the Commons had their Power preserved in their Representatives they were all interested in the Legislature as before But all the Great Barons had not their former Interest in the Supream Judicature and yet this variation in respect of the Great Lords was no change of the outward frame of the Government but only a diminution of the Priviledges of some particular Men. And though the bringing in Representations where no Representations were before altered the Frame and Appearance of the Government yet it did not the Constitution and fundamental Interest of Proprietors of Land with whom the Ballance of Power has ever been in this Nation the Foundation is and was the same like the same Soul animating the same Body when 't is greater and when by reason of Tumults and Seditions as we may call them in the Spirits 't is wasted from its Corpulency and thereby often brought to a more assured state of Health than ever before This more healthful State in a contracted Body of Proprietors of Land I yeild to have been setled in the Reign of H. the 3d. It happening that there were Writs to that Purpose just in the 49th 't is concluded that then it was first begun Whereas by the same Argument 't was in the 38th when two for every County were summoned to Parliament Vice omnium singulorum But if I should confine my self to Authorities within the time of the first Edward immediate Successor to H. the 3d I doubt not but there were enough to satisfy any unbyass'd Reader that the Commons such as are now represented by Knights Citizens and Burgesses had before the 49th of H. the 3d Shares or Votes in making of Laws for the Government of the Kingdom and had communication in Affairs of State otherwise then as represented by the Tenants in Capite notwithstanding Dr. Brady's Affirmation to the contrary In the 24th of E. 1. the Earls Barons Knights and others of the Kingdom which others was then and afterwards meant of the Commons of the Cities and Boroughs gave a Subsidy Sicut aliàs nobis progenitoribus nostris Regibus Angliae And sure Hen. the 3d could be but one Progenitor so that the Farones Minores the Free-holders of Land which ever since the 49th or some other Year of Hen. the 3ds Reign were represented by the Knights of the Counties who were not in those times to be sure confined to Knights by Tenure or Dubbing And the Commons of Cities and Burroughs at the least from within the Reign of King John to whom Hen. the 3d. immediately succeeded were Members of Parliament being Parties to Grants there made And omitting the Prescription of the Burrough of St. Albanes from within the time of the Progenitors of Edward the first to use but one Authority not mentioned in either of my Tracts In the 28 of E. 1. the Knights Citizens and Burgesses had been summoned to the Parliament at Westminster Nobiscum de diversis negotiis nos Populum Regni specialiter tangentibus tractatur and Writs issued out for their reasonable Expences prout aliis consuevit in casu consimili 1. Upon which 't is observable that de quibusdam arduis which is now in use in the Writs of Summons ought not to be restrained to a few great matters but extends to divers according to the different natures of matters brought before or appearing to them 2. That the Commons had not only an Assent without power of dissenting but they were to treat as well as the Peers 3. That their coming was not a new thing then as if begun but 35 Years ago in the 49th of H. 3. but it was of Custom and legal Prescription so far that it laid an Obligation upon the Subject to contribute to these Expences and surely an Usage of 35 Years would not be a sufficient Charge in Law 4. That though there is no Evidence that Representations for Counties were settled before the 49th of Hen. 3. Yet the Freeholders were often at Parliament by Representation and thence there was ground in reason to occasion the Custom that they should bear the Charges of them that they chose Nay if there were no actual Choice there was tacit Consent from which Custom may arise that those who were willing and at leisure to be at Council should answer for and have Contributions from the rest But let both Dr. Brady and Mr. Hunt consider the Precedents above mentioned of Coventry and Bridgwater which did not hold of the King and yet sent Burgesses to Parliament and let them give a categorical Answer whether they believe that the Majores Barones Regni and omnes alij holding in Capite mentioned in King John's Charter made