Ricard Archbishop of Canterbury thought fit to have received here and I think would inferr that here was no more done then a Proposal of this to be received not that itw as so But if we will believe Gervas Dorbernensis in 22 H. 2 fo 1429. An. 1175. he will tel you they went much farther His Words are Hoc concilio ad emendationem ecclesiae Anglicanae assensu Domini Regis Primorum omnium Regni haec promulgata sunt capitula Among which one is His qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut perse membrorum truncationes faciant aut inferendas judicent Here is not only a Proposition of the Arch-bishop but an Assent and Promulgation of the same by the King and chief of the Kingdom And the true Sense of that Canon which being so confirm'd had the force of a Law is That Clergy-men should not agitare or medle in any Tryal of Blood which certainly extends to Preliminaries but are prohibited to make Amputations themselves or give their Opinion or Judgment that such Amputations ought to be made by others Their presence at such Trials was unlawfull Non licet and their Acting prohibited So at last I have done with this clause and have shewd that it is not indulgent but restrictive that it was a custom in H. 1. time sworn to at Clarendon published at Westminster 12 years after and by all this made part of the Law of the Nation have answered all his Subterfuges and Evasions have shewed the Interpretation I have given was always received I expect now so much Ingenuity in this Author that he will either yield to my Sense or give another agreeable to the Rules of Grammar and the proper Signification of the Words and not take the Liberty to explain them at his Pleasure and confound Voices Moods and Numbers Insomuch that this Statute will remain Testimonium irrefragabile still and I am sure if he observes his due bounds he must give an Interpretation equipollent to to what I have given So hard it is for the greatest Wits to maintain an ill Cause I come now to the Consideration of the Protestation made in the Parliament held in 11. R. 2. which our Author saith much cleareth the whole Business especially the preface therof for the omission of which he blames the Author of the Letter I shall give it you in English which our Author hath not thought fit to do and by that means deprived many of his Readers of means to make a true Judgment of it In the Name of God Amen For as much as by the Law and Custom of the Kingdom of England it belongs to the Arch-bishop of Canterbury for the time being as also to the rest of his Suffragans Fellow-Brethren and fellow-Fellow-Bishops with the Abbots Priors and other Prelats whatever who hold of the King by Barony as Peers of the foresaid Kingdom to be personally present in the Parliaments of the King whatsoever and there with the rest of the Peers and others that have right to be there present concerning the arduous Affairs of the Nation and concerning other things there usualy to be treated of to Consult Treat Ordain Appoint and Define and other things to do which there in time of Parliament are prepared or fitted to be done In all and singular of which We William Arch-bishop of Canterbury Primate of England and Legate Apostolical for our selves our Suffragans our Felow-Bishops and Fellow-Brethren as also for the Abbots Priors and all the foresaid Prelates do protest and every one of them doth protest who either by himself or his Proctor shall be here Present at this time publickly and expresly that we intend and every one of us will in this present Parliament and others as Peers of the fore-said Kingdom after our accustomed manner be present to Consult Treat Ordain and Define and all other things ro exercise together with the rest that have right to be present in the same The Condition State and Order of us and every one of us being still saved But for as much as in this present Parliament some matters are to be treated of in which it is not lawful for us or any of them according to the Decrees of the Holy Church and the Canons thereof to be at any hand personally present For which Reason we for our selves and for every of them do protest and every one of them here doth also protest That we intend not nor will because according to the Law we cannot nor ought not be present in this present Parliament whilst such matters are or shall be treated of but that we and every one of them will upon that occasion all together absent our selves our right of Peerage and of theirs as to our and their being present in the said Parliament and as to our and every of their exercising and doing all and singular things our and their order in all things allways preserved And we farther protest and every one of them protesteth that by reason of this our absence we do not intend neither doth any one of them intend or will that the Trials or Proceedings had or to be had in this present Parliament upon those aforesaid matters in which we cannot nor ought not as is premised be present as much as in us lyes or any of them lyes shall in times to come be any way impugned weakened or broken He tells you that this Protestation saving the legall Formalities consists of three parts First a declaration of their undoubted Right as Peers of the Realm by virtue of their Baronies to sit and Vote in all Debates in Parliament Where by the way the words are de Regni negotiis not omnibus of the affairs of the Kingdom not all of them and aliquibus may as well be understood as omnibus and this appears soon after upon their own shewing for they tell you they intend to be present in this and all other Parliaments and presently after tell you it is not lawful for them to be present in this Parliament while such matters were handled to intend to be present and then tell you that 't is not lawful to be present in this Parliament shews that their Power was limited and not universal however upon this Protestation they went out at the Begining and made no Proctor for they tell you they ought not to be personally present at any hand where such Affairs are or would be treated of which certainly was before the definitive sentence so that the Canon required their absence at Preliminaries according to the sense of all times till these new expounders came in place I will not here dispute whether this Protestation be an act of Parliament with Submission to better Judgments I think it hard that what was intended as a Protestation should by Construction be advanced to an Act no more than his present Majesties Concessions upon the desire of
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
yet he will not allow the Legislative Power to be in one here Every Government says he is the Representative of the People in what they are to be governed by it by their consent to it in the first erecting thereof they do trust their Governours with the Rule and Order of their Lives and Estates for the Common-Weal This seems to be his meaning of materially the same as 't is brought to shew that 't is not needful in order to the maintaining the present right of the Commons to shew That the Counties in all this time had their Representatives in Parliament by the formality of a Choice Which no Man that I know of has of late laboured to prove But if this be his meaning of materially the same then all Governments are materially the same Whereas they may be so formally as founded in the consent of the People which he presupposes But if William the First was an absolute Conqueror as he all along yeilds to Dr. Brady where was the consent of the People to his Government And how can a Government by consent now of constituent parts different from what he thinks ours was at the first Erection by the Conquest be either materially or formally the same with such a Government by Conquest But we must seek further for his meaning in materially the same He tells us the Parliament and the Curia Regis were materially the same that is as one would think there consisted of the same Members the only difference being laid to be in the nature of the Summons And yet he tells us that the ancient Burroughs sent Members to Parliament but that such were not Suitors to the Curia Regis How then were these materially the same Thus 't is plain that he has laid no manner of Foundation for our Government by King Lords and Commons or by King and three States which he takes to have been the Eâ—…entials of our Government from the Conquest but what himself undermines Whereas what I go upon prevents all manner of Pretences for unhinging of it and is the same in effect with what the Great Fortescue observed in the time of H. 6. Et in omnibus Nationum harum Regum earum temporibus regnum illud eisdem quibus jam regiter consuetudinibus continuè regulatum est quae si non optimae extitissent aliqui illorum justitiâ ratione vel affectione concitati eas mut assent Indeed this Assertion of that famous Chancellor has been much exploded by those who think that the altering of some Laws or Customs is a change of the Government And therefore say that he was greatly mistaken because many old Customs have been abolish'd Whereas he certainly meant it of the Fundamental Constitution Which as far as ever I could learn was and is that every Proprietor of Land especially should in the General Council of the Kingdom consent to the making those Laws under which they were to Live In the time of the Confessor as appears in the Transcript of his Laws there was a Folcmote or General Assembly of the People of all the Counties of England which was to be held once a Year on the Kalends of May to treat of all Matters of State and Publick Concern the very Law for such Assembly was received and confirmed in the 4th of William the First So that then by Law and of Right whatever was the Fact the People of all the Counties of England that is all the Members of the County Courts the Free-holders were to meet in a Great Council or Parliament as we now call it Admit that this is to be taken of every County respectively which were to make as many distinct Governments as Counties still the Adunatio Conciliorum or Calling together of the Counties and Hundreds as often as there was need which H. the â—…st promis'd by his Charter would come to the same thing And that all the Members of the several County Courts were Members of the Great or General Council and came accordingly if they pleased Not to mention the several Authorities by me formerly insisted on I conceive may appear by comparing two Authors of undoubted Credit and sufficient Antiquity who shew what the Great Council was in the time of Henry the second In the 16 of Henry the second that King held his Easter Court Baron at Windsor as Bromton shews us Rer tenuit Curiam suam in solemnitate Paschali Thither indeed were flock't most of the Nobility fere omnes Regni Anglae Episcopii Magnates But this being a Curia de more or an ordinary Court which no more than Tenants in Chief were obliged to take notice of nothing of universal Obligation could then be Establish'd Wherefore from hence the King went to London where as that Historian says de Coronatione Filij sui Henrici majores Regui sui Statutis magnum celebravit Concilium Gervasius who lived in that very time acquaints us particularly with the Summons and Appearance thereupon Convenerunt die Statuto ex mandato Regis ad Londoniam totius Angliae Episcopi Abbates Comites Barones Vice-comites Praepositi Aldermanni cum Fide-iussoribus suis. There assembled at London according to the King's Summons the Bishops Abbots Sheriffs the Heads of Hundreds and of Tythings with all the Frank-pledges throughout England unless the Fide-jussores Answer to the Manucaptores of which immediately If this take not in all the Free-holders of England I know not what will for he that was within no free-pledge or was no Fide-jussor was either an Out-Law or not his own Man but his that was to be answerable for him But every Master of a Family or Free-holder that was within the Protection of the Laws was one of the Frank-pledges And indeed Bronton tells us in express Terms that all the Libere sui Regni tenentes all the Free-holders of the Kingdom were there for they all swore Allegiance to the young King as well as to the Father Omnes Comites Barones liberos Regni sui tenentes devenire homines novi Regis Filij sui sibique super reliquias sanctorum Ligeantias Fidelitates jurare Fidelitate semper nihilominus suâ salvâ But if the Fidejussores mentioned in Gervasius were no more than the Manucaptores which used to answer for the Appearance of them that were chose to represent the Counties Cities and Boroughs in Parliament then here is positive proof of such Representation of the Commons as was in the times of Edw. I. Edw. II. and so downwards Yet 't is not improbable that the Pledges or Manucaptors for the Knights Citizens and Burgesses chose to parliament were introduced long after this time instead of the Fidejussors or Frank-pledges when that admirable ancient Polity about Frank-pledges became impracticable and was discontinued or broken through the general Corruption of Manners which rendred it impossible for whole Neighbourhoods to answer for
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
concerning Breakers of Truce and a Proviso in it That this Act shall not extend to any Act or Ordinance made 2 H. 5. late indeed and not of right King of England But still he is acknowledged King of England de facto which goes a great way to authorize any thing done under their power Therefore 11 H. 7. c. 1. A Law is provided to indemnifie all persons that shall do service to the King in being whether he have right or no. As for what is said of the Bishops making their Common Proxy at the prayer of the House of Commons That their Proceedings might be valid and not questioned in future Parliaments by reason of their absence and that divers Judgements had been reversed because they were not present It is true it is so expressed in the Roll of that void Parliament which as it hath no authority nor validity in it self so it is very strange that if there had been ground for this apprehension there should remain nothing upon Record in all the Rolls of Parliament that ever any Judgement or any other act done in any Parliament had been so repealed We know it was once attempted 2 H. 5. by Thomas Montacute Earl of Salisbury as I told you in my former Letter who brought his Writ of Error to reverse the Judgement given against his Father 2 H. 4. because the Bishops as he alledges there being Peers of Parliament were not parties to that Judgement but it was declared to be no Error and his Petition was rejected And we know that in Edward the First 's time there was a Parliament held at St. Edmonds-bury Clero excluso not a Prelate admitted to it And in Henry the Eighth's time all the Judges of England declared it for Law That the King might hold a Parliament with his Lords Temporal and Commons altogether without the Lords Spiritual Tout sans les Spirituels Seigneurs it is in Keilwayes Reports in Dr. Standish's Case Therefore there is no reason to think that any Judgements were repealed upon the Bishops being absent seeing their presence is not of necessity for the constituting and sitting of a Parliament And especially not for the Judgements which we treat of in Capital Cases because by what appears upon Record and by all the Laws Canon Common and Statute Law they never were present I always except that Unparliamentary Extravagant Proceeding and Judgement of Henry the Sixth in the twenty eighth of his Reign upon William de la Pool Our Asserter tells us of some Judgements reversed 15 E. 2. particularly in the Case of the Spencers but he doth not tell us where he finds it nor I believe doth he know himself having only taken it up some where upon trust as he doth other things But in this 21 R. 2. upon the Petition of the Earl of Gloucester it appears by the Record of the proceedings against the two Spencers Father and Son in that 15 E. 2. which are there repeated at large that there was nothing Capital in their Case neither in the Charge nor in the Judgement so as this signifies nothing to the matter in question which is all can be said to it And as little shall I say to his witty allusion of bringing me to a sight of my self as Alexander did his Horse to the Sun that he might not kick only this I might say if I were as foul-mouthed as he that indeed such a scoffing injurious Scribbler were fitter to be answered with a kick than with fair reasoning by way of Argument Next we come to the 1 H. 4. Sir William Rickhill's Case where I think I should do well only to transcribe what he hath written to shew it needs no answer but that I should waste too much Ink and Paper I represented in my Letter to you that Rickill being sent for into Parliament no formal charge being against him to give an account only by what order he had taken the Duke of Gloucester's Confession at Calais which he did the Bishops present but when they came to consider what was to be done upon it then only the Lords Temporal were asked their opinion which I alledge to shew that the Bishops there were not advised with because it might be preparatory to a further proceeding by way of Tryal And this our Asserter says is to serve an Hypothesis and learnedly gives it us in Greek and bids the Reader judge and so do I. Then for the Tryal of Hall who was one of the murtherers of the Duke of Gloucester he hath the condescension to acknowledge it probable that the Bishops were not there but then saith that they left it to the Temporal Lords without any Impeachment to their right it being secured before by the security of a confessed Act of Parliament 11 R. 2. it is their Protestation he harps at And if I had as much Greek as he I would say it in Greek that he now doth serve an Hypothesis or in good English beg the Question for that is his meaning of serving an Hypothesis for the Right which the Bishops there saved he will have to be and hath forty times repeated it to judge Capitally when they please but I have clearly shewed it was not of their assisting in those Judgements as he still will have it to be but other Judgements and proceedings in Parliament where in truth they had a right to assist Then follows the Case of William Sautre 2 H. 4. where he is pleased to give me a wipe for stiling him the Protomartyr of England and out of his great reading informs that St. Alban lived some hundreds of years before him but he must give me leave to inform him that the common acceptation of Martyrs amongst us Protestants now is of such Orthodox persons as have suffered for the truth whom the Papists have put to death for Hereticks and this man was the first of them in England He hath some other notable Remarks one is that whereas I said that the Bishops and Clergy of those times were the chief Promoters of bringing him to his end which I meant of their declaring him an Heretick and then turning him over to the Secular Power he observes upon it That then they acted in a Capital Case which he saith makes against me And that if it was the Lords Temporal who signed the Warrant for his execution that the Bishops had no hand in it and so have escaped my lash but who were his Judges nondum constat I am sure it doth not constare to me to what purpose he saith all this which I do not find to make either for him or against me No more than what he saith of the Case of the Earls of Kent Huntington and Salisbury 2 H. 4. who he grants were declared and adjudged Traytors by the Temporal Lords and no Bishops present and then saith he will give a Parallel Case it is of the Earl of Cambridge and the Lord Scroope 3 H. 5. where the Bishops were present and
comprehends them all so that our Question being concerning their Rights in Parliament if this be not meant of one it will neither advantage nor prejudice me but only shew how willing they were to break through all Rubs when they could in those times of their Power and the Blindness of the People The whole Sentence by our Author abridged to his purpose is as followeth Illud coelestem exasperat iram plerisque discrimen aeternae damnationis accumulat quod quidam principes sacerdotum seniores populi licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis seque ideo immunes à culpa reputant quod mortis truncationis Membrorum decernentes à pronunciatione duntaxat executione paenalis sententiae se absentent Sed quid hac simulatione perniciosius est Nunquid definire discutere licitum est quod pronunciare non licet In English This doth exasperate the Wrath of Heaven that certain of the Chief Priests or Bishops and Elders of the People notwithstanding they do not dictate or pronounce Judgments of Death yet they handle them in their Disputations and discussions of the same yet notwithstanding think themselves free from Guilt because though they Decree the Sentence of Death or loss of Members they only absent themselves at the pronunciation of the Penal Sentence But what is more pernicious than this Simulation Is it lawful to discuss and determine what is unlawful to pronounce And in the whole Treatise inveighs against the general neglect of the Bishops in performing their Duty not confining himself to any place and seems a prophetical description of the practise of the Inquisition afterward brought in by S. Dominick But if it were referred to the practise of some of the Bishops and Clergy of England probably it may be meant of such as were made Secular Judges or sate with the Earls in the County Court where they perhaps were present at the discussion though not at the Sentence which was left to be pronounced by the Secular Judge till after the time of Edw. 1. See 28 Edw. 1. c. 3. where it is ordained that the Justices appointed to take Assizes in every County where they do take as they be appointed Assizes shall remain together if they be Lay-men but if one of them be a Clerk then one of the most discreet Knights of the Shire being Associate to him that is a Lay-man by our Writ shall deliver the Goals of our Shires Here we see their Power though Justices to meddle in Capital Cases was prohibited nay some Records are in the Tower that when two have been commissioned as Judges for the same Circuit the Commission of the Clerk has been restrained to common Pleas that to the Lay-man unlimited see Iani Ang. facies nova pag. 209. 210. Shall we now believe that what was prohibited to Clerks in Edward the First his Time was permitted to them in the High Court of Parliament in subsequent times I have given my Reasons why I think Seniores Populi could not comprehend the Abbots Priors Lords and Commons yet if any man will contend this was a Parliament then must Seniores Populi comprehend amongst others the Commons and their Proceedings to be in a legislative way in which the Commons could only meddle and in which we deny not the Clergy to have their part so that this doubty Precedent will no way serve our Author's Turn His second Instance to make good his Assertion is taken from the Authority of Will. Fitz-Stephen a Monk of Canterbury in MSS. in Sir Rob. Cotton's Library and some other private hands in which he relates what happened to Arch-bishop Becket in the Contest between the King and him in the great Council at Northam ton called soon after Becket's obstinate Carriage at Clarendon in which Relation among others that Author hath these Words Secunda die considentibus Episcopis comitibus Barenibus Angliae omnibus Norpluribus Roffensis Episcopus quidam alius nondum venerat Archiep. lesae majestatis coronae regiae Arguitur quia se ut supra narratum est à rege citatus ro causa Johannis to wit Iohn the Marshal neque venerat neque idonee se excusasset Archiepiscopi depulsio nullum locum habuit Allegata tamen Johannis supradicti injuria jurisdictione hujus causae propria curiae suae integritate Rex exigit judicium Archiepiscopi nulla ratio est approbata Then after much debate who should do it Judgment was pronounced by the Bishop of Winchester which ended in the Confilcation of all his personal Estate The Sum of what Fitz-Stephen saith which is cap. 10. col 2. p. 21. in that Copy I have seen is this That when the Bishops and Barons of England and many of Nor. Normandy as Mr. Selden thinks were met together the Arch-bishop is there accused of Treason because having been cited by the King in the Cause of one Iohn he appeared not nor gave in a sufficient Excuse To let pass what is materially replyed by the Author of the Letter to this Authority I shall make some Observations of my own not yet taken Notice of First That this Assembly held at Northampon was not a Parliament but a great Counsel summoned by the King soon after Becket's stubborn carriage to his Prince at Clarendon to be advised by them how to humble that proud Man where it was lawful for him to use the Counfel of any of his Subjects of Normandy or others as he thought good who certainly in an English Parliament could not be admitted amongst the natural English Secondly we hear nothing of the rest of the Clergy nor the commons but of the Bishops Earls and Barons but that the Commons had allways right to appear in Parliament is learnedly made good by Mr. Petit in his Tractate of the ancient Rights of the Commons In the next place the relation of Fitz-Stephens is not only different from the relation of other Historians but in it self is subject to many Exceptions For first it is plain he was not accused of High Treason in the case of John the Marshal as he saith which appears by the Judgment of that Council which upon the whole matter reac'hd only a Confiscation of his personal Estate which shews clearly the Accusation was not in that Case for Treason because they here punished him with a lesser Punishment than was due to Treason now 't was not in their Power to change the nature of the Crime but must have either found him guilty of Treason or have acquitted him But the Truth is there was a second Accusation by the King about the same time and in the same Place concerning Accounts to the King of Receits during the Vacancy of the Sees of some Bishopricks when he was Chancellor to which he refused to give other Answer saying He was not cited in that Cause and over and above that he was fully
and other Lords who were suspected to be of the Confederacy with the said Henry Hotspur alias Percy This was the work of Friday the 18th of February on Saturday the 19th the Commons give Thanks to the Lords Spiritual and Temporal for the rightful Judgment they had given as Peers of Parliament 5 H. 4 from N. 12 to N. 17. This is the whole Case as to Father and Son Now whether the Bishops were present at all these Proceedings and how far is the Question The Grand Questionist contends they were present at the Proceedings both against the Father and the Son at that against the Son from the word full Parliament which he seemeth to infer must include the Bishops and at that against the Father from the Thanks made by the House of Commons the next day after the acquittal of the Earl First as to the Son It appears plainly by the Historians of those times that he was slain in the fourth Year of the King in the life-time of the Father who soon after broke out into Rebellion so that at the time of Henry's Death he was only a Commoner and consequently not to receive any Judgment in the Lord's House alone nor could he be made a Traitor otherwise than by Act of Parliament so that the word full Parliament must either refer to some particular Act of Parliament made in his Case in which the Bishops might be present and the Commons concur or else the Proceedings were wholly irregular and contrary to their own Agreement in 4 E. 3. Now from an illegal Act no Right can be concluded As to the Earl himself we find him suddenly after in open Rebellion defeated and escaped into Scotland with Lord Bardolf and convicted of Treason by the Temporal Lords for not appearing upon Summons and all this within two Years after Now can it be reasonable to think that the Bishops were present at the acquittal of this very Lord in 5 H. 4. who were not present in 7 H. 4. which was but two Years after nor were present at a like Case in 2 H. 4. N. 30. against the Earl of Holland and others which was not three Years before Neither can any weight be laid upon the Thanks of the House of Commons which was only matter of Complement and performed at another time when the House was assembled upon other matters but seeing them there might extend their Thanks to them also who though they could not contribute did nothing to hinder the Clemency of the Temporal Lords towards the Earl besides at the same time it was accorded by the King and Lords upon the Desire of the Commons that certain ill Officers about the King should be discharged in which the Bishops might be Instrumental and very well deserve the Thanks of the Commons at which Desire of the Commons they might assist and be absent at the rest The Precedent of Iohn Lord Talbot will not avail him he exhibited an Accusation against the Earl of Ormond for certain Treasons by him committed this Accusation was in the Marshalsea before the Earl of Bedford Constable of England The King to put an end to this matter doth by Act of Parliament make an Abolition and Discharge of the said Accusation and Discovery The words are That the King by the Advice and Assent of the Lords Spiritual and Temporal and the Commons made an Abolition of the said Detection Whoever denied the Bishops Consent in a Legislative way and had it been otherwise the Commons could not have been I think regularly concerned 2. H. 6. N. 9. The Precedent of the Duke of Suffolk in 28 H. 6. I thought to have passed over being a Case as irregular in the Proceedings as unjust in those that put to death that unfortunate Man Much Art was used by the Court to have preserved him from the Envy of the People A Parliament assembled at Westminster after dismissed into London then prorogued to Leicester that dissolved and another called at Westminister in which the Duke appeared which exasperated the Commons against him But upon the whole Record it appears that no Issue was joyned for after Articles exhibited by the Commons and his denial of them March 14 at the least of the eight first and giving some Answers to others on the 17 th he was sent for again and the Chancellour acquainted him that he had not put himself upon his Peerage and now asketh him how he would be tried who instead of pleading put himself upon the King's Order who caused him to be banished for five Years By all this it appears here were no judicial Proceedings which could not be before Issue joyned so that although the Bishops were present at the reading of the Articles yet this can be no Precedent to entitle them to be present in judicial Proceedings in Capital Causes for here were none at all in this Case and till Issue joyned the Bishops are not bound to withdraw Neither ought it to seem strange that the Viscount Beaumont should make Protestation in the name of the Lords Spiritual and Temporal against these Proceedings which they finding to be extra-judicial in very many Particulars they did not know I mean the Bishops as well as some of the Lords what Construction might be made to their Prejudice for sometimes they met in one place sometimes in another and not always in the Parliament-House to consult of this Business Besides many things pass sub silentio which being questioned would not have been allowed these Observations being added to what hath been said by the Author of the Letter seems to me a full Answer to this Precedent in which the Protestatio is only Protestatio facti not Iuris I have thus put an end to the Examination of this third Chapter and fully considered all his Arguments and Precedents and come now to a view of his fourth and last Chapter CHAP. IV. IN this Chapter our Author hath employed all his Art to assert the Peerage of the Bishops and that they make a third Estate in Parliament in what sense they are called Peers as also that the entire Clergy met in Convocation make a third Estate I have largely shewed before and shall not now repeat I admit they are sometimes called Lords Spiritual tho not so before Rich. II. but Prelates or the like Peers of the Realm Peers in Parliament If by that Appellation you would make them Equals to the Nobilitas Major I think they never were yet have they many Privtledges in respect of their Seats and Episcopal Dignity in the Lords House and by reason of their most honourable Profession have all of them Precedence to Barons I admit also that the Clergy is really a third Estate and that the Bishops in respect that they are the Head of the Clergy may sometimes in ordinary Discourse be called so but are in truth never so exclusively to the rest of the Clergy they all making but one Body or third Estate fully represented
by the Earl of Gloster against whom the Bill was found whereas here the Reference is made by both and to the Kingalone Next we find the King here was present with the rest which was not usual if the Lords had proceeded judicially wherever the matter was heard whether in Parliament or else-where Besides it is observable that the word Consilium is twice written with an s whereas if it had been a Parliament the word would have been written with a c as was generally observed by the Writers of those Times In Conclusion this Record makes nothing either to the Bishops Power of judging in Criminal Cases or that Submission of a matter to the King should be a waver of Peerage but was a making the King an Arbitrator for they knew the Verdict was void being not upon Oath I have before denied that such Persons as sate in the Lord's House by virtue of their Office had any Right to be tried by Noble-Men except they had an inheritable Right of their own as well as their Office I am not therefore concerned to examine as to Predial Feudal or Personal Right what is urged by our Author or any other because I have throughout this Discourse maintained that no Man can have any Priviledg or Right of Trial but according to the nature of his Peerage which seems to me not only reasonable but within the plain meaning of Magna Charta that the Triers and Party tried ought to be of the same Condition and capable to undergo the same Penalties in like Case That what the Discourser hath said as to the Regradation of their Peerage when their Office shall be taken away means no more than that Officers shall no longer sit among the Peers not that they had any Right of Peerage during the continuance thereof tho they were placed among them by a particular Law or Usage Neither is our Author's Reason of any force that because Persons enobled in Blood in a Forreign Country shall not try a Peer of England therefore the Parity is not of Blood but of Priviledg in Parliament For he cannot but know that all Laws are originally made for the benefit of those who are born subject to them or adopted into them by Naturalization and such shall have the full benefit of all things appliable to their English Condition as if they were natural born-Subjects Others that are Strangers tho of equal or greater Quality shall not enjoy the Rights invested in the Natives by their Birth but only the Protection and Priviledge of the Laws of that Country where they are during their abode there Another Argument is drawn by our Author from the Proceedings in Cases of Appeal against a Noble-Man at the Suit of the Party He argues thus If in Appeal of Murther or the like at the suit of the Party a Noble-Man shall be tried by a Jury of good Free-holders then their Exemption from being always so tried proceeds from their sitting in Parliament and not from Nobility of Blood and therefore all those who have Right to sit in that House have Right to the same Priviledg But the Bishops have Right to sit in the same House and are called Barons therefore they ought to enjoy the same Priviledge other Barons have This Argument how specious soever it may appear is unconclusive in many respects First It doth not follow that those that have Priviledg to sit in the same House have the same Priviledges to all Intents and Purposes My Lords the Judges and all Justices of the Peace sit upon the same Bench and by the same Commission yet are not equal in all Circumstances Nay my Lords the Bishops themselves though they are of the same Order and Quality yet are not equal in Priviledges I have before shewed that there were Barones Minores who were not properly Barons but so called and might be left out at the King's Pleasure But such as are enobled in Blood may demand their Writs which the Barones Minores could not And if now the Bishops have that Right which is not certain it is because they are to summon the Clergy without which the Parliament would not be compleat as to the Convocation And were it not for that Reason the Bishops might be now wholly left out for they being only Barons by Tenure cannot be in any other Rank than were the Barones Minores who were left out at the King's Pleasure I have before asserted they hold their Possessions per Servitium Baroniae as a Burthen not Honour to them and their sitting among the Lords was only indulged to the Dignity of their Function as Bishops they being indeed no more than Commoners Neither secondly doth it any way follow that because Peers in some Cases shall be tried by a Common Jury therefore those who are properly Commoners and only priviledged to sit among the Lords should participate of the same Honour with them To examine farther into the Reason why in all Criminal Cases at the Suit of the King the Trial shall be by Peers not so in an Appeal for the same Crime Sir Edw. Coke will tell you One reason is because the Trial if it ought to be so must be before a Lord Steward and no Appeal can be brought before a Lord Steward who is but only Temporary but ought to be brought before the Judges in the King 's ordinary Courts of Justice We are likewise further to consider that Inequality of Persons is not of the Law of Nature but of Human Constitution and that the Statute of Magna Charta is but a Confirmation of our ancient Rights in which all Subjects were Pares But since it is apparent that ever since Magna Charta and perhaps long before the Trials at the Suit of the Party have been as they now are we must look upon them as a Branch of the common Law of England never taken away from the Commoners but that the King and Noble-Men as to what concerned the Crown were contented to introduce that manner of Trial as to the Nobles and long use and Custom hath now made it to be received as the Law of England yet the poor Commoner never received that way of Trial as to his own Right who look'd upon the Verdict of twelve substantial Men of his Neighbourhood as much better Security for them and their Heirs than a Trial upon Honour When upon their Appeal it would always have been in the Power of the King to name again the same Lords for Triers which they had before and by that means defeat them of the benefit of their Appeal to which the Law gives so great respect that upon an Appeal brought all Proceedings at the King's Suit should as has been taken for Law stay till the Appeal were determined because a particular wrong to a private Person in the Murther of an Husband or very near Relation is of greater Consideration to the Party than the general loss of a Subject is to the King I shall
Kingdom 9 H. 3. 39 Years before the 49th of that King per Common assent tout de le Reaum and this in another Record is said to be Per le Roy Piers Commune de la terre And the Statute of Westminster the first eleven Years after 49. H. 3. was ordained per Passentments de Archievesques Evesques Abbies Priors Countees Barons Et tout la Comminalty de la terre illonques Summonees Now what Man of common Sense can believe that the Clerus Populus cotius Regni after the Comites Barones 5 Io. the Commune de la terre after the Peers 9. Hon. 3. and tout le Eomminalty de la terre after Countees and Barons 3 Edw. 1. were no more than the Prelates Earls and Barons indeed there being no Et between Baronum and Cleri 5 Io. were it not for other Records explanatory of the like there might be some Colour for Mr. Hunt's supposal that Eleri Populi were only comprehensive of the Orders foregoing and might be in the same sense with Communitas Archiepiscoporum Episcoporum Comitum Baronum But for the penning of Records both Mr. Hunt and Mr. W. know better than to think the Clerks in those times stuffed them with Tautologies Mr. Hunt's way of expressing the same Notion I shall soon consider more particularly But admit that my Interpretation of Records is generally erroneous yet 't is manifest that the Record which is cited and insisted on to warrant the contrary shews that there were other Persons at the General Council of the Kingdom besides Prelates Earls and Barons and that these were such as are now called Commons The Record was the form of Peace agreed on in the 48th Year of Hen. 3. it says Haec est forma Pacis a Domino Rege Domino Edwardo filio suo Praelatis Proceribus omnibus Communitate Regni Angliae communitèr concorditèr approbata c. Amongst other things 't was agreed ad Reformationem Statûs Regni Angliae that there should be chose in that Parliament three Men who should have Power from the King toname nine that should be the King 's standing Counsel and if any of the three displeased the Community of the Prelates and Barons or were by them thought unfitting for their Office Si videatur Communitati Praelatorum Baronum one or more should be placed in his or their Room per Concilium Communitatis Praelatorum Baronum and the Record concludes Haec autem ordinatio facta fuit apud London de Consensu Voluntate Praecepto Domini Regis necnon Praelatorum Baronum acetiam Communitatis tunc ibi presentium Upon this 't is observable 1. That et Communitas Regni in the beginning of the Record next after the Praelates and all the Peers must necessarily be the Commons of England nor can Et possibly be taken otherwise than as introductive of other Persons besides the Prelates and all the Peers before expresly mentioned for that the Record concludes as it were with an Intention of preventing all manner of expositive Cavils for having declared that the Ordinance then made was by the Consent Will and Authority of the King necnon and as well of the Prelates and Barons it adds Ac etiam Communitatis tune ibt presentium which must necessarily be and also of the Commons then and there present as well as the Prelates and Barons presentium being taking as relating to all that went before or and also of the Community of them that were then and there present that is all that were present were Parties to the Ordinance if the first then the Commens also were there by name if the second tho Communuas be not taken as an Appellative for the Commons of England yet that they were then and there present is as evident from the Record since it shews that others were present besides the King Prelates and all the Peers that those others were Parties to the Ordinance then made and as they could not possibly be of an higher Rank than what were before exprest but much less the same being so manifestly distinguished with an and also from what went before they must needs have been inferiour that is Commoners unless there was another Rank of Men that were neither Lords nor Commons but between both wherefore 't is a demonstration that there was then present and acting in a Legislative Capacity a Body of Commons over and above or distinct from the Prelates and all the Peers or Barons above mentioned 2. In this Parliament 48 H. 3. there was a particular matter referred by the King and that in a full Parliament of Prelates Peers or Barons and also the Commons to the Disposition and Management of the Prelates and Barons only and surely 't was no great thing for them to be empowered to remove or put in Electors of the King 's standing Counsel which was all that was referred to them without consulting the Commons upon every occasion But I cannot discern the least Consequence that because the word Communitas doth many times extend to the Prelates and Barons which as Mr. W. rightly observes it doth that therefore it must be limited to them and extend no further whatever words come between And I would thank him that should satisfy my reason how it is possible it should be confin'd to them when there comes and or and also to extend it farther If Mr. Hunt had observed how distinctly all the Orders of Parliament are mentioned in this Record viz. Praelati Proceres omnes Communitas Regni Angliae and again Praelati Barones ac etiam Communitas and had further observed how full and clear the Evidence is that all of them together referred or consented to the King 's referring the matter before taken notice of to the Earls and Barons only or to the Community or Generality of them from whom another Community the Communitas Regni Angliae then and there present was sufficiently distinguish'd in other parts of the Record and that that Affair was to be managed per Consilium Praelatorum Baronum he would never have insisted upon this as demonstration that Communitas Regni Angliae after Praelati Proceres omnes nay tho with an ac etiam has no other Sense than Commune Concilium Regni and was as a comprehensive Term of those that made it or was used exegetically as Mr. W. has it If it had been Praelati Proceres Commune Concilium Regni or Communitas Regni there because there is no discretive and or and also the latter might be comprehensive of the former But whatsoever may be said of the careless penning of Records or Histories anciently yet when there are numbers of Records or Histories expressing the Parties present at general Assemblies of the Kingdom some of the like penning with the aforesaid form of Peace 48 H. 3. some more express and particular if possible shall all the Clerks
that of the Nation British Saxon Danish and Latine almost as unintelligible as either of the other that if they had been all digested into the English that was then spoken we should very little better have understood it than we do the French in which the Laws were afterwards rendred And it is no wonder since a Reduction into order was necessary that the King who was to look to the Execution took care to have them in that Language which himself best understood and from whence issued no Inconvenience the former remaining still in the Language in which they had been written CHAP. III. That Mr. Hunt himself in Effect grants that more than Tenants in Chief had right to come to the Great Council of the Nation in which the Nation 's Rights were involved I Do not deny says he but upon a Change in the Succession to the Crown there might have been in this time extraordinary Conventions of the People to declare their universal Assent for better assuring such Successors discountenancing the real Prince and preserving the Peace as in the Case of William the second Henry the first King Stephen and King John c. with an assent of such an Assembly as this at least King John should only if so have made his Kingdom Tributary to the Pope 1. Here he grants that sometimes more than Tenants in Capite assembled at Council 2. That to some purposes such Assemblies were needful not only to quiet the Minds of the People but to transfer over a National Right For he says if ever there were extraordinary Conventions which he owns to have been in some Cases then King John could have made the Kingdom Tributary only in such a Council viz. an extraordinary Convention Wherefore Government being as he says Rei Publicae Communis Sponsio he grants that the Government here was not absolutely in the King and his Tenants in Chief For if it had they might have disposed of all the Nation 's Rights Wherefore in effect he yields That the Men of that Order were not chosen once for all interpretatively by the People in their Consent to the Government But further if he yields us those Authorities which shew that the People of the Land the Free-holders used to assemble for the declaring their Assent to the Supream Governour with what colour can he set aside those Authorities which mention Assemblies to other purposes in as general Terms If an ordinary Free-holder was under the word Populus at an Election to the Crown or Recognition of a Title how comes the Signification to be restrained at other times Will not Vulgus Plebs Populus minor Laici mediocres and the like denote more than Tenants in Capite as well at one publick Assembly in the some King's Reign as at another Unless a prior Law be shewn which excludes the Commons from one Council but admits them to the other But I cannot find any thing more in this Supposition than a downright begging the Question Indeed if William the first made a Conquest of England so as that he divided out all the Lands of the Kingdom to be held of him in Chief And the Alienees of Tenants in Chief still held immediately of the King neither of which will readily be proved then indeed but not till then the Populus Minor at the Councils would be taken for the Tenants in Chief only But the admittance that the presence or consent of more than Tenants in Chief was at any time needful to any Act of rightful Civil Power wholly destroys the supposition of a Conquest unless we can believe that the conquer'd ought to give Laws to the Conqueror or that notwithstanding any kind of Establishment the dernier resort and Supremacy of Power is always in the People Which is a Notion that would unsetle all Governments making them precarious Whereas he himself tells us No Government can be legally or by any lawful Power chang'd but must remain for ever once establish'd CHAP. IV. That even according to Mr. Hunt's Notion of Tenure in Capite all Proprietors of Land as such had till the 49th of H. 3. right to come to Parliament THis though never so strange I think will be granted me that he does if he makes all the Free-holders of the Kingdom Tenants in Capite per Baroniam He supposes that the whole Kingdom was upon the matter turn'd into one great Mannor by William the First all Men made his Tenants And that all the great Possessions by which he must mean the Mannors of which others held were made Baronies Now this Feudal Baronage he says was capable of being multiplied several ways For every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee Since he uses this as a Proof of the Multiplication of Baronies according to the Argument Baron-Service was indivisible Thus every Proprietor as he had part of the divided Fee was part of the Baronage and consequently If all the Baronage both Spiritual and Temporal de jure ought to have Summons now to Parliament without respect to Estate or Tenure there would be a great many Pretenders But to be sure when all the Baronage were summoned antiently these inferior Tenants came by his own Rule as owing the Service of Barons and so ratione Tenurae were Barones Regni But the Baronage of England having been always in his Opinion the Lords Spiritual and Temporal and Nobility having been Foudal or because of the Feud the Burgesses being all according to him till about the time of H. 3. under Tenure by Baronage were as good Lords as the best And why were not honest Free-holders so too as well as Traders most of them then 't is likely Mechanicks CHAP. V. Whereas he would set aside the Questions of what the Government was till 49th of H. 3. as impertinent 1. His own Notion by which he would supplant the Labours of others destroys it self while mine maintains what he aims at 2. He puts such matter in Issue for asserting the present Government as can never be maintained 3. He yeilds so much of the Fact against me as sets aside the whole Foundation of his Postscript And yet admit he answers all Objections against his Postscript the Grounds which I go upon are of the most General Use. FOr preventing the Worlds being troubl'd with impertinent Labours and to divert those that thus employ themselves to Undertakings more useful to the Publick advantagious to themselves he thought fit to tell us that the Parliament was always materially the same But we are at a loss to know what he means by materially the same For 't is manifest that according to his Notion if the Government were from the time of our Dispute always in one it would have been materially the same as 't is now and
casu fieri consuevit Teste Rege apud Lancetost 18. die Octobris 34. FINIS ERRATA PAge 113. line 3. in Marg. read true way P. 117. l. 18. r. Bannerets Ib. l. 21. r. Banneret P. 122. l. 2. r. St. P. 144. l. 8. r. ingenuously So P. 145. l. 31. P. 160. l. 5 after the Word Barony add in the Margine viz. Ecclesiastical Persons P. 174. or 274. T l. 18. r. done P. 204. V l. 2. r. Counsel So l. 11. Ib. P. 212. X l. 22. r. permixtim P. 217. X l. 26. r. de tout le c. P. 220. l. 6. r. taken Other Literal Mistakes the Reader is desired to correct with his Pen. A TABLE of the Principal CONTENTS The Number of the Page being often mistaken through the Printers false counting to one another the Reader is desired where the Figures are wrong to observe the Letter which begins the Sheet A Page Abby of Molross O 206 207 Absence of the Bishops not merely from the Canon-Law 84 N 181 182 Adam de Orlton's Case R 267 T 180 Agitare Judicium Sanguinis prohibited H 101 and N 157 183 Allusion made by the Questionist not solid 165 Appeal to Rome no capital Crime antiently M 173 Appeal of Earl Godwin Q 227 Appeals in Trial V 191 192 193 Appellation ought to be governed by the Right S 278 Apostles their Rule p. 89 how far their Practice to be urged for Example now 133 Apostolick Canons against Clergy-Men their medling in Secular Affairs P 135 216 Arch-bishop Stratford's Case T 282 283 284 Arundel Earl his Case O 208 Assemby at Northampton no Parliament p. 170 171 172. Matters carried there in great Heat and no Iudgment of Treason given M 172 173 Attainders what they are 9 10 Augustine St. his Opinion 94 95 B. BArons how made enobled in Blood and how made 107 to 120 Barons by Blood and by Tenure different 78 118 119 120 Barones Majores who 78 Z 245 246 Barones Minores who 7 8 Barons Peer who 21 107 117 Barones Regis who 107 Z 247 to 250 Barones Regni who ibid. Baronagium and how comprehensive 107 P 202 203 Y 226 S 278 Becket not impeached of Treason from 65 to 70 and from 172 to N 180 Berkeley Sir Tho. his Case 28 29 V 196 Blesensis his Words marked 97 98 125 167 168 R 261 Bishops whether they sit in Parliament by vertue of any Baronies p. 106 108 and how 122 c. T 174 or 274 Bishops not Barons 77 108 19 123 124 125 Bishops how they sate with the Earls 91 92 93 145 P 217 Bishops Service and Tenure a Burthen 106 124 125 Their Tenure offects not their Persons 77 Bishops if a third Estate not capable to try a Peer 128 Bishops the form of their Writs no Argument of their Power 86 129 130 when present always exprest that they were 36 Bishops medling in Secular Affairs forbidden 129 135 P 216. Their Opposition to the King at Clarendon and from what Cause 141 Bishops Power clipt at Clarendon 99 O 144 when to go away in Criminal Cases 161 196 197 even in Acts of Parliament R 265 Bishops Absence not merely from the Canons 8 84 N 181 182 183 190 N 193 O Bishops Protestation p. 5 6 7 translated and explained 41 42 and N 185 to 194 Bishops not reckoned Nobles T 184 or 284 not called Lords till the time of Rich. II. 108 Bishop of Norwich his Case 40 Bishop of Carlile tried by a common Iury T 279 so Bishop of Ely 278 ibid. Bishops Absence no Error 47 Bishops had no Right to be present in the Debate and handling matters of Blood 143 Bishops not comprehended under the name of Peers or Grands if put after Earls and Barons 14 18 to 25 32 Bishops if others named always named where they are present 24 29 32 36 and that before others R 261 Bishops not Peers to Temporal Lords 71 to 99 S 280 Bishops sit in respect of Temporal Possessions 83 yet in the quality of Spiritual Persons T 174 or 274 and S 289 Bishops cannot sit in a double Capacity S 288 289 T 174 Bishops contended to be tried by their own Order T 181 or 281 whence their pretence of Immunity proceeded 153 Bishops to be tried by common Iuries T 277 to 282 Bishops their Equivocation 141 Bishops Messengers of Peace V 197 Bishops chief Employment to make Peace in civil Affairs antiently Counsellours not Iudges p. 89 91 their refusing to give Advice about keeping the Peace 30 31 266 and R 269 Bishops but part of a third Estate 80 to 85 and 126 127 137 S 290 Bishops in France never sit in that Chamber of Parliament which tries Capital Cases 90 Bishops never absent not prov'd Q 228 Bishops no where allowed to sit Inquisitors of Blood V 198 Bishops not summoned to Parliament several times Q 238 Bishops a Question whether they might be even of a Committee in matters of Blood V 199 Boeges de Bayon's Case 25 26 Brady Dr. his Assertions and Fancies condemned Pref. to the 2d Part and p. 189 in Marg. V X A a 204 205 224 227 Burroughs and Burgesses Z 237 238 C. CAmbridg Earl 50 Canons forbidding of Clergy-men to meddle in Capital Causes still in force 87 164 and P 217 to 222 Canons concerning Blood as anciently in England as the Conquest and part of the common Law N 181 182 Capitalis Justiciarius Angliae what Office 137 138 Capitalia placita what Q. 229 230 231 Chancellour when no Peer how tried T 285 286 Charter of King John the Author's Interpretation of it asserted against Dr. Brady X 206 207 against Mr. Hunt Z 237 to 242 Clarendon the meeting there a Parliament 139 Clarendon and the Parliament there considered 99 100 142 Clarendon Earl his Arguments against the pretended Conquest A a 260 to 263 Chivaler who B b 284 Clergy subjected to Baron-Service 112 140 Clergy their Power in Primitive-times 89 their Power in other Nations 90 Clerus never taken for the Bishops alone 126 Commons and Commonalty of the Kingdom where Records and Histories manifestly shew their Presence at Parliament before 49 Hen. 3â—… X 211 to Y 22â—… Commons their Vote in Danby's Case O 98 Commons sometimes meant by Grands R 270 S 279 226 3d Part anciently had their share in Judicature R 266 267 268 Commons always Members of Parliament 172 O 202 sâ—… together with the Lords in the times of Hen. I and King Stephen X 212 and long afterwards O 202 203 204 Mr. W's Grounds for the Belief that they had no Right to come to Parliament till 49 H. 3. answered and turned against him X 210 to Y 227 so Mr. Hunt's p. 221 222 223 Y 235 and to A a 268 Commons their Petition 21 R. 2. p. 11. and O 195 196 Community of Names no Argument of Right S 278 Concordia 4 E. 3. 27 R 263 Conquest disclaimed by William the first 139 A a 260 no Conquest
providere debent indemnitatibus coronae regni hujus per Commune Concilium ibi providendum est ad insolentiam malefactorum reprimendam c. Leges Sanct. Ed. de Grove Vid Ius Angl. ab Antiq. Cap. 7. Dr. Brady says the Controversy is concerning matter of Fact only Against Jan. Angl. facies nova p. 1. * Sym. Dunel f. 243. Anno 1121. So Mat. West f. 352. 37. H. 3. †Ego enim quando voluero faciam ea satis summoneri propter mea dominica necessaria ad voluntatem meam Ian. Angl. p. 34. Spelm. Glos. tit Hund. Vid. Additions to Ius Angl. ab antiquo a p. 20. â—…d p. 32. Brompton f. 1060. Brompton An. 1170. Gervasii Crobica f. 1412. This Explanation is warranted by St. Edwardâ—… 〈◊〉 Habent etiam Aldermanni in Civitatibus in Burgis clausis murae val latâ—… in Castellis eandem Dignitatem Potestacem modum qualem habent praepositi Hundredorum Wapentachiorum Vid. Spel. Glos. Tit. Aldermannus * Jus Angl. ab antiq p. 192. Bromptor f. 10â—…1 Ex Blundel Brev. penes Rem R's in socio 23. E. 1. North Nomina duorum mil. Johannes Doyley de Stoke miles Willus Murdake miles Manucaptores Johannis Doyley mil. Ris. Bird de Stoke Wiliiel Ellis de eadem Many more of like nature Francus Plegius seu Fidejussor Spelm. Glos. Tit. Franc. pl. So nono H. 3. Milites libere tenentes omnes de Reg. Magna Charta cap. 38. 2 Inst. f. 76. Spelm. Glos. Tit. lib. hom ad Nobiles 〈◊〉 lim sâ—…tabunt 〈◊〉 〈◊〉 a majoribus ortos omniuo liberis Vid. Canâ—…den's Ordines Angl. f. 122. 1 Inst. f. â—…10 b. Rot. Parl. 8. E. 2. N. 233. Dr. Brady against Mr. Petyt p. 78. So if summoned to attend the Justices in Eire or the like Pro Burgensibus de Brugwater ut sit liber Burgus per Chartam Regis Johan factam Wi. Br. Cart. 11. Ed. 2. m. 5. n. â—…0 Cart. 11. E. 2. m. 5. n. 132. Vid. Prin. Regist. of Writs Inter Coima de term St. Mich. An. 34. Edw. 1. vid. part of it enforc't Jan. Angl. p. 241. Vid. at the end this inserted at large ¶ Vid. Prin's Regist. Charta Antiqua R. n. 18. Hen. I. Carta Ant'q R. n. 15. Ibid. n. 16. Rich. I. Inter Bre. dir Baron de Term. S. Trin. 8 Ed 2. penes Rem D. Thes. This like Coventry Leges Sanct. Ed. de Heretachiis Habeat omnis Dominus familiam inplegio suo L. Canuti c. 52. L. Sanct. Ed. de Friborgis Vid. Jus Ang. ab antiquo p. 13 14 15. L. de Friborg Aldermannus novemdecimorum in the Laws of H. 1. Spelm. Glos. Tit. Aldermannus Britton e. 29. p. 72. b. Vid. Stat. West 1. c. 10. 3. E. 1. the Coroner to be des plus loialz plus sages Chivalers Vid. etiam Ian. Ang. Facies nova p. 47. 48. Et si Cheorlmanâ—… romoveatur ut habeat quinque hidas terrae c. Et si Filius Filii ejus hoc assequatur ut tantum terrae habeat postea est qui nascetur ex cis sithercunde Generationis c. Leges Aldestani Bromton f. 846. Matth. Paris Edit Tig. f. 246. Dr. Brady's Glos p. 31. Vid. supra Vid. Jan. Ang. facies nova p. 66. Jan. Ang. c. p. 263. Additions to Jus Ang. p. 20. Vid. Mr. Selden Obj. against this answered Jan. Ang. a p. 250. ad 256. Rot. Claus. 38. H. 3. m 7. 12. Jani Angl. c. p. 244 Dr. Brady against Mr. Petyt p. 1. 2. Rot. Pat. 24. Ed. 1. N. 22. Jus Ang. p. 160. Stat. Stap. 27. Ed. 3. Rot. Parl. 8. Edw. 2. n. 2â—…3 See that Record vindicated from Dr. Brady's Misconstruction Jus Ang. ab antiq p. 28 29 30. Rot Claus. 28. E. 1. m. 12. dorso Mr. Hunt p. 149. Contrary to Dr. Brady against Mr. Petyt p. 210. Page 155. Page 156. Pag. 154 155. Page 154. Supra p. 271. Mr. Hunt p. 205. Page 206. Page 156. Mr. Hunt p. 122. Page 122. Post-scrip p. 33 This is begg'd throughout Mr. Hobbs's pernicious Dialogue between a Philosopher and Student of the Common Laws of England Power of Kings f. 1. Patriarcha p. 97. Mr. Hunt p. 6. p. 122. supra Vid. Power of Kings f. 1. Inter Record penes Reâ—… Dâ—… Thes in sceio remanen pro hominibus Ville de Coventre