THE GRAND QUESTION Concerning the Bishops Right To VOTE in PARLAMENT In Cases Capital STATED and ARGUED FROM The Parlament-Rolls and the History of former Times WITH An Enquiry into their Peerage and the Three Estates in Parlament LONDON Printed for M. P. and sold by Richard Rumball Book-binder at the Ball and Coffin in the Old Change 1680. THE CONTENTS CHAP. I. THE Question stated and general Prejudices removed CHAP. II. The Right in point of Law debated Concerning the Constitution of Clarendon and the Protestation 11. R. 2. CHAP. III. The Precedents on both sides laid down those against the Bishops examined and answered CHAP. IV. The Peerage of the Bishops cleared how far they make a third Estate in Parlament Objections against it answered CHAP. 1. The Question stated and general Prejudices removed THE Question in debate as it is stated by the Authour of the Letter is Whether the Bishops may be present and Vote Iudicially in Capital Cases which come to be judged in Parlament either in giving the Iudgment it self or in resolving and determining any circumstance preparatory and leading to that Iudgment For our better proceeding towards a Resolution of this Question it will be necessary to take notice of some things granted on both sides which may prevent needless disputes and be of great use in the following Debate 1. It is granted That the Bishops do sit in Parlament by virtue of their Baronies and are bound to serve the King there And one part of the Service due to the King there is to sit in Iudgment for the Authour of the Book entitled The Iurisdiction of the House of Peers asserted proves at large that the Right of Iudicature belongs to the Barons in Parlament and that the Lords Spiritual have a considerable share therein appears by this passage in the Title-page of that Book translated into English The Iudgment of the Lords Spiritual and Temporal is according to the Vse and Custom of Parlament The Vse and Custom of Parlament is the Law of Parlament The Law of Parlament is the Law of England The Law of England is the Law of the Land The Law of the Land is according to Magna Charta Therefore the Iudgment of the Lords Spiritual and Temporal is according to Magna Charta Some Right then of Iudicature in Parlament the Bishops have by Magna Charta which whatever it be is as much theirs by that Charter as any Right of Temporal Persons and cannot be invaded or taken from them without breach of that Charter any more then the Rights of the Lords Temporal or of any other Persons whatsoever But how far that Right doth extend is now the thing in Question 2. It is not denied that the Bishops do sit in Parlament by the same kind of Writs that other Barons do They are summon'd to advise and debate about the great and difficult Affairs of the Kingdom cum Praelatis Magnatibus Proceribus dicti Regni nostri Angliae colloquium habere tractatum i. e. to joyn therein with the Bishops and other Lords of the Kingdom So that by the King 's Writ of Summons they are impower'd and requir'd to confer and treat of all the weighty Affairs that shall be brought before them And no Instance is so much as offer'd to be produced of any Writ wherein the King doth limit and restrain the Bishops any more then any other Lords of Parlament as to any matter of Consultation or Point of Judicature belonging to that House They have then by their Writ of Summons as good right to sit in all Cases as in any and since the other Lords by their Writs are summoned to advise with the Prelates in all matters that shall come before them without limitation it is not to be conceived how this can be done if the Bishops in some of the most important Debates be excluded 3. It is yielded That if the House proceeds in a Legislative way by passing Bills of Attainder the Bishops have a Right to sit and Vote therein as well as other Lords at these it is said that the Bishops are or should be all present at the passing of them for then they act as Members of the House of Lords in their Legislative capacity But men do as certainly die that are condemned in the Legislative as in the Iudicial Way Is not this then really as much a Case of Bloud as the other If the Bishops should give their Votes in the Legislative way to condemn a Person for Treason and yet think they had not Voted in a Case of Bloud they would then indeed be like Chaucer's Frier mention'd by the Authour of the Letter that would have of a Capon the Liver and of a Pig the Head yet would that nothing for him should be dead Doth a Bill of Attainder cut of a man's Head without making it a Case of Bloud There can be then no objection now made against the Bishops Right from any Canons of the Church for those allow no such distinction of proceeding in the Legislative or Iudicial Way And the late Authour of the Peerage and Iurisdiction of the Lords Spiritual doth grant that the Canons do prohibit the Bishops voting in Bills of Attainder as much as in any Case whatsoever But we are not to suppose a Person of such abilities as the Authour of the Letter would go about to exclude the Bishops from their Right of Voting in a Iudicial way in Cases Capital unless there were some great appearance of Law on his side because he professes so great a Desire that Right may prevail and that his design in writing was to satisfy himself and others where that Right is The discovery whereof is our present business Yet before the Authour of the Letter comes to a close debate of the matter of Right he lets fall some general Insinuations to create a prejudice in the Reader 's mind as to the Bishops meddling at all in Secular Affairs as though it were inconsistent with their Function and with some passages in the Imperial Law And because men may sometimes doe more harm by what they tell us they will not say then by what they do say it will be fit to prevent the danger of such Insinuations before we come to consider his Arguments 1. The first is that meddling at all in Secular Affairs seems to be the doing that which the Apostles declared they would not doe viz. leave the Word of God and serve Tables But are all Persons of Estates now bound to part with them as the Christians then did The serving of Tables was a full employment and they who attended that Office were the Treasurers of the Church to distribute to every one as they judged fit out of the common Stock Is it no Service to God to doe Justice and to shew Mercy to attend upon the publick Affairs of the Kingdom when they are called to it by their Sovereign Or are all Bishops now
11 R. II. when matters grew so high between R. II. and the powerfull Lords and so many Favourites were to be impeached and among them Alexander Archbishop of York then it was a time to quote the Canons and to enter a Protestation and to withdraw If the Times were calmer and more settled or some great Reason moved them then they could stick to their Right of Peerage and make use of it either in Person or by Proxy as they thought convenient Nor was it so easy a matter to resolve what was Canon-Law in England but they might with some colour make use of either of these Pleas. For in this very Parlament 11 R. II. the Commons desire that those may be reputed Traitours who brought in the Pope's Bulls of Volumus Imponimus which shews that they did not think all Canon-Law that passed for such at Rome And 15 R. II. Sir Will. Brian was sent to the Tower for bringing a Bull from Rome which was judged prejudicial to the King and derogatory to his Laws And in 16 R. II. Will. Courtney Archbishop of Canterbury the same who enter'd the Protestation before mentioned makes another of a different kind owning the Rights of the Crown in opposition to the Pope's Encroachments Now by the same Reason no Canon made at Rome no Legatine or Synodal Constitutions could have any force against the King's Authority But the King himself being under a force at that time as he alwaies declared afterwards and that being as Knighton saith it was called Parlamentum sine Misericordia the King having tied himself up not to pardon any without consent of the Lords he might be willing to let the Bishops excuse themselves because that might give some colour to call in question the Proceedings then as it did 21 R. II. when all the Acts of this Parlament were nulled and the Lords and Commons might be very willing to let the Bishops withdraw that their business might proceed with less difficulty against all the King's Ministers So that here was a concurrence of many circumstances which made the Bishops think fit not to appear in the House this Parlament and the King Lords and Commons to be willing to receive their Protestation But in the Anti-Parlament to this that I mean 21 R. II. the Commons pray the King that since divers Iudgments were undone heretofore for that the Clergy were not present they might appoint some Common Proctor with sufficient Authority to that purpose This is a Passage which deserves consideration and tends very much to clear the whole matter For the House of Commons declare that divers Iudgments had been undone for want of the Presence of the Clergy Therefore their Concurrence in the judgment of the House of Commons was thought necessary to make a Iudgment valid A very late Authour finds himself so perplexed with this that he knows not how to get off from it He cannot deny this to be in the Rolls of Parlament and to be the first Petition of the Commons but then he blames them for rashness and errour and want of due Examination of Precedents As though it were possible for any man now to understand the Law and Practice better then the whole House of Commons then did He saith they were mistaken palpably de facto in saying that divers Iudgments have been heretofore undone and yet presently confesseth that the two Iudgments against the two Spencers were reversed for this Cause but he saith there are no more to be found Where doth he mean in his Study or not now extant in the Parlament-Rolls But have we all the Rolls of Parlament that were then in being or must men so boldly charge the House of Commons with Ignorance Errour breaking the Laws because they speak against their fancies But this Gentleman very peremptorily concludes the House of Commons then guilty of a very strange and unaccountable Oversight It is great pity a certain Gentleman had not been there to have searched Records for them and to have informed them better But we think a Iudgment of the whole House of Commons in such a Case declared in so solemn a manner without the least contradiction from the King or the Lords might deserve a little more respect and it had certainly had it if it had made for the other side But we see the House of Commons it self is reverenced or not as the Judgment of it serves mens purposes And yet this was more then the bare Iudgment of the House of Commons for a Petition was made upon it and that Petition granted and consequently a Common Proctor appointed and that Proctor allowed by King Lords and Commons So that this was a Judgment ratified by consent of the King and the whole Parlament For if a Petition were made on a false ground what had been more proper then for the Lords to have open'd this to the Commons and to have told them how unadvised and false their Iudgment was whereas the Lords consented and the Proctor was admitted and gave his Vote in the name of the Clergy But there is something more to confirm this Iudgment of the Commons and that is the Parlament 11 R. II. making Petition to the King that all Iudgments then given might be approved affirmed and stablished as a thing duely made for the Weal and Profit of the King our Sovereign Lord notwithstanding that the Lords Spiritual and their Procurators were absent at the time of the said Iudgments given What means this Petition if there had been no doubt at that time that these Judgments might be reversed as not duely made by reason of the absence of the Prelats The onely answer in my mind is that it was Error Temporis they were of that mind then but some are resolved to be of another now But from hence we plainly see that even in R. II ' s time the Concurrence of the Bishops was thought so necessary that one Parlament declared Iudgments had been reversed for want of it and that very Parlament wherein they absented themselves got a Clause inserted on purpose to prevent the nulling of those Iudgments which signified nothing to the Parlament 21 R. II. which reversed them all There is something more considerable to our purpose in this Parlament viz. that the same Authour produceth the Testimony of a MS. Chronicle which largely handles the Affairs of that Parlament wherein it is confessed that the Bishops by concurring with the Lords in the Revocation of the Earl of Arundel's Pardon did give Vote in a Case Capital for so the words are there cited Dederunt ergo locum Praelati judicio Sanguinis in hoc facto Which shews that the Bishops did then give their Votes about the validity of the Pardon which the Authour of that Chronicle indeed condemns them for and tells us some thought they incurred Irregularity by it From whence it follows that all the Penalty supposed to be incurred was onely Canonical but he never charges
them in Capital Causes seems to be of equal force against this Precedent viz. That this Parlament of the 21 R. II. and all that was done in it was repeal'd in the 1 H. IV. And if that be so and those Acts of State which then passed had not again been repealed 1 Ed. IV. then the Repealing of that of 1. Ed. III. signifies nothing and consequently the Affirmance of the first Iudgment against the two Spencers is good notwithstanding that Repeal And therefore that we may examine this matter to the bottom I shall set down the very words of the Authour of the Letter concerning it Speaking of the Declaration made by the Lawyers in the 10 Ed. IV. concerning the Bishops making a Procurator in Capital Causes he hath these words It is true here is mention made of their making a Proctor which was Error temporis the Errour of those times grounded upon what was so lately done as they looked upon it though irregularly done in the last Parlament of R. II. whom they consider'd as their lawfull King and in truth he was so the three Henry's that came between being but Vsurpers And again speaking of the same business of a Proctor in the 21 R. II. he hath this remarkable passage I have already shewed that this whole Parlament was repeal'd for the extravagant things that were done in it of which this was one And therefore nothing that was then done can signifie any thing to a leading case any ways to be followed and this as little as any except it could be made appear which I am confident it cannot that some Iudgment had been reversed upon that account because the Prelats were not present and had not given their assent to it Now if I can make out these two things 1. That the Parlament of R. II. was not legally repeal'd 2. That the Iudgment against the two Spencers was revers'd and that the Repeal of that Reversal in 1 Ed. III. was revok'd in 21 R. II. upon this very account because the Prelats were not present and had not given their assent to it I hope the Authour of the Letter will be satisfy'd that both this Precedent and the Case of a Proctor are very significant in this Cause and that there is a great difference between being confident and certain of any thing 1. That the Parlament of 21 R. II. was not legally repeal'd And for this I take the Authour 's own acknowledgment that R. II. was in truth lawfull King and that H. IV. was but an Vsurper Nay I add farther that R. II. was alive and in prison when H. IV. repeal'd the Parlament of 21 R. II. For so it is said in the very Act of Repeal that R. II. late King of England was pursued taken put in ward and yet remaineth in ward And now I leave it to the Authour of the Letter whether a Parlament call'd by a lawfull King and the Acts of it ought to be deem'd legally repeal'd by a Parlament that was call'd by an Usurper and held whilst the lawfull King was alive and detain'd in prison 2. That the Iudgment against the two Spencers was revers'd and the Repeal of the Reversal of it in 1 Ed. III. revok'd in 21 R. II. and that upon this very account because the Prelats were not present and had not given their assent to it which the Authour of the Letter is confident cannot be made appear That this Iudgment was reversed for this Reason I have already shewn viz. in the Parlament at York 15 Ed. II. And I shall now shew that the Repeal of that Reversal in 1 Edw. III. was revok'd in 21 R. II. and that upon the account mentioned For in this Parlament Tho. le Despenser Earl of Gloucester exhibited two Bills in which he prayeth that the Revocation of the Exile of the two Spencers in 15 Ed. II. might be brought before the King and confirmed and that the Repeal of the same made in the 1 Ed. III. might be revoked Of which Act of Repeal these Errours are assigned among others because the Prelats who are Peers of the Realm did not assent to the Iudgment and because it was made onely by the Earls and Barons Peers of the Realm c. and because it was made against the form of the Great Charter of England in which it is contain'd that no man shall be exil'd or otherwise destroyed but by the lawfull Iudgment of his Peers or by the Law of the Land So that it seems it was look'd upon as a breach of the Great Charter for the Temporal Lords to condemn a Peer without the Assent of the Bishops and that such a Iudgment was not esteem'd a lawfull Iudgment by his Peers And those Errours of the first Iudgment assign'd in the Revocation of it in 15 Ed. II. are allowed in this Parlament of 21 R. II. and that Revocation confirm'd and the Repeal of it in 1 Ed. III. revok'd upon the same account I shall onely observe that in this Parlament as before in 15 Ed. II. the Bishops are declared to be Peers Peers of the Realm Rot. 55. Peers in Parlament Rot. 56. 61 but most fully and distinctly in the Roll last cited Peers of the Realm in Parlament Of which farther use may be made in the last Chapter concerning the Peerage of the Bishops And now to sum up the force of this Precedent for the Iurisdiction of the Bishops in Cases of Treason Here is a Reversal of a Iudgment because made without the Assent of the Prelats by the Parlament at York in 15 Ed. II. And whereas it is said this Reversal was repeal'd and the first Iudgment affirm'd in 1 Ed. III. I have shew'd that this was no legal Repeal because Ed. II. was alive and lawfull King or else Ed. III. could never have been so in the time of that first Parlament of Ed. III. and consequently Ed. III. at that time was an Usurper and the Proceedings of that Parlament null and void So that the Reversal in 15 Ed. II. stands good notwithstanding the Repeal in 1 Ed. III. Besides that this Repeal whatever it was is solemnly revok'd in 21 R. II. And H. IV. who revers'd all the Proceedings of the Parlament of 21 R. II. during the life of R. II. is acknowledg'd by the Authour of the Letter to have been an Vsurper and R. II. to have been a lawfull King And now I think that this Precedent hath all the advantage that can be and that the Iurisdiction of the Bishops in Cases of Treason could not have been asserted in a higher manner then to have a Iudgment in Case of Treason solemnly revers'd in two Parlaments for this very cause because the Bishops who are Peers assented not to it And this Precedent own'd by the House of Commons in their Petition to have a Common Proctor appointed by the Clergy in this very Parlament of 21 R. II. as is acknowledg'd by the Authour of the Letter
Answer was given yet both were condemned to die The Bishop of Norwich was charged with several Miscarriages and Misdemeanours saith he why might not the Bishops be present at this Trial To that he saith he was charged with one Capital Crime viz. betraying Graveling to the French but he confesseth he cleared himself of this before they came to Iudgment and yet he would have the Bishops excluded at this Iudgment and that of Sir William Elmham Sir Thomas Trivet and others but confesses they were present at the Trial and Iudgment of Mich. de la Pool Let us then see what kind of Trial this was He was impeached in the name of the Commons of England and 6 Articles were exhibited against him The main were concerning defrauding the King and misimploying the Aids granted to the King last Parlament whereby much mischief happen'd to the Kingdom as may appear by the Rolls and the Articles printed in Knighton Upon these Articles the Record saith that the Commons prayed that Iudgment of Death might pass upon him as it did upon Sir William de Thorp for receiving 20 li. by way of Bribery And yet this Iudgment of Sir William de Thorp is one of the Precedents against the Bishops being present when he allows that they were present at the whole Trial of this Mich. de la Pool when a great Minister of State was so hotly charged by the Commons for offences of so great a nature and which in their Judgment deserved no less then Death From whence it follows by his own confession that the Bishops may be present when the Ministers of State are impeached by the Commons of such Crimes which in their Iudgment deserve no less then Death 2. In Acts of Attainder when the Houses proceed in a Legislative way he grants the Bishops may be present and yet if some of his Precedents signifie any thing they prove they ought not to be present at the passing of them As 1. In the Case of Roger Mortimer and others accused and tried in Parlament 4 Ed. III. He confesseth the Roll cannot be read and therefore referrs to 28 Ed. III. where Roger of Wigmore desires that the Attainder may be examin'd which was reversed by Act of Parlament and therefore we may justly suppose the Iudgment given against him was ratified in Parlament And some of our Historians say he was condemned judicio Parlamenti And in the Petition of Roger Wigmore he prays that the said Statute and Iudgment may be reversed and annulled If therefore the Prelats could not be present here then they are not to be present in the Legislative way If they were present in Acts of Attainder then this general Negative way of arguing proves nothing for then the Bishops were comprehended under the name of Peers which without any Reason he saith the Bishops cannot pretend to be when it is notorious that they challenged it in Parlament 11 R. II. and it was then allowed as well as their Protestation 2. In the case of the Murther of Iohn Imperial 3 R. II. an Act of Parlament passed to make it Treason and he proves the Bishops had no Vote in it nor were present at the preparing it And yet he confesses that the Bishops have a right to sit in all Acts of Attainder because they sit then in their Legislative capacity Therefore these Negative Precedents prove nothing 2. The insufficiency of these Negative Precedents appears by this that we can make it appear by good Testimonies that the Bishops have been often comprehended under the general Titles of Grantz Peers and Lords of Parlament without any express mention made of them And because the great force of many of his Testimonies lies wholly in this that the Bishops are not comprehended under the names of Grantz Seigneurs and Peers I shall endeavour to make it clear beyond exception that if the Precedents must be determined by the general words all the advantage lies on the Bishops side It is certain that in elder times the Baronagium Anglie did take in all the Lords of Parlament both Spiritual and Temporal But I betake my self to the expressions used in the Records and because the matter of the debate is confined within the times of Ed. II. and IV. I shall take notice of the language of Parlament within that time reserving that of their Peerage to the proper place for it I begin as the Authour of the Letter doth with 4 Edw. III. and in that year n. 6. the Record runs thus Et est assentu accorde per nostre Seigneur le Roi tout le Grantz en plcyn Parlement where a Law was passed concerning Trial by Peers and in the passing of a Law our Authour allows the Bishops to be present But it is more plain n. 12. Accorde per nostre Seigneur le Roi les Grantz de mesinme le Parlement It is agreed by the King and the Great ones in Parlament But that the Bishops are comprehended under theseGrantzis evident for it is there said that the Petitions of Edmund Earl of Kent and Margaret Countess of Kent to which that Agreement referrs were read before the King the Prelats the Counts the Barons and other Grantz of the Parlament In the same year n. 14. we meet with les Preres des Prielatz autres Grantz the Petition of the Bishops and other Great men and then it follows Nostre Seigneur le Roi en pleyn Parlement per assent accord prieres conseal des ditz Prelatz autres Grantz Our Lord the King in full Parlament by the assent accord petition and advice of the said Prelats and other Grantz Which shews that they are some of the Grantz of Parlament 5 Ed. III. n. 3. Touz les Prelatz autres Grantz n. 13. Grantz in general is used in the Debate between the Abbot of Crowland and Sir Thomas Wake and n. 15. le Roi as autres Grantz en pleyn Parlement n. 16. Item fu accorde per le Roi touz le Grantz en mesme le Parlement auxibien per Prelatz come per autres It was agreed by the King and the Great men of the Parlament as well by the Prelats as others Nothing can be plainer then that here the Bishops are called Grantz as well as the other Lords of Parlament 6 Ed. III. n. 1. Devant nostre Seigneur le Roi touz le Prelatz autres Grantz The Articles were read before the King the Prelats and other Great men If the Bishops had not been comprehended under Grantz the Record would have onely used Grantz and not autres Grantz But the same expression is again used n. 5. In the second part of the Rolls of that year n. 1. we find three several ways of expressing the Persons then present the first les Prelatz Countes Baronns autres Grantz du Parlement the next is queux Prelatz autres Grantz the third is touz le Grantz en mesme
the Examination of a Case Capital What the importance of this phrase of full Parlament is will best appear by the use of it in the Records of that time 4 Ed. III. n. 6. Et est assentu accorde per nostre Seigneur le Roi touz les Grantz en pleyn Parlement Where it was agreed that the procedings at that time by the Lords against those who were not Peers should not be drawn into consequence and that the Peers should be charged onely to try Peers Which hath all the formality of an Act of Parlament and therefore all the Estates were present n. 8. Accorde est per nostre Seigneur le Roi son Conseil en pleyn Parlement Which was an Act of Pardon concerning those who followed the Earl of Lancaster 5 Ed. III. n. 10. we have the particular mention of the Bishops as some of those who do make a full Parlament Accorde est per nostre Seigneur le Roi Prelatz Countes Barons autres Grantz du Roialm en pleyn Parlement and n. 17. En pleyn Parlement si prierent les Prelatz Countes Barons autres Grantz de mesme le Parlement a nostre Seigneur le Roi c. 6 Ed. III. n. 5. the Archbishop of Canterbury made his Oration en pleyn Parlement which is explained by en la presence nostre Seigneur le Roi de touz les Prelatz autres Grantz n. 9. Si est accorde assentu per touz en pleyn Parlement who those were we are told before in the same number viz. les Prelatz Countes Baronns touz les autres somons a mesme le Parlement Which is the clearest explication of full Parlament in the presence of all those who were summon'd to Parlament From whence it follows that where a full Parlament was mention'd at that time the Bishops were certainly present and consequently did assist at the Trial of Thomas Lord Berkely who appeared before the King in full Parlament as Nich. de Segrave did 33 Ed. I. and there the Bishops are expresly mention'd as present as appears by what hath been said before concerning his Case 5 H. IV. Henry Hotspur Son to the Earl of Northumberland was declared a Traitour by the King and Lords in full Parlament and the same day the Father was upon examination acquitted of Treason by the Peers It is not said that this was done in full Parlament as the other was but there are several circumstances which make it very probable the Bishops were then present 1. When the Earl of Northumberland took his Oath of Fidelity to the King he did it saith the Record upon the Cross of the Archbishop which was to be carried before him if he went out of the House 2. The Archbishop of Canterbury pray'd the King that forasmuch as himself and other Bishops were suspected to be in Piercie's Conspiracy that the Earl might upon his Oath declare the truth who thereupon did clear them all Which shews that the Archbishop was then present in the House And for the same reason that he was present we may justly suppose the other Bishops to have been so too 3. The Earl of Northumberland beseeched the Lords and Earls and Commoners that if he brake this Oath they would intercede no more with the King for him Now the better to understand this we are to consider that H. IV. takes notice in his declaration upon the Rebellion of Sir Henry Piercy that the Earl of Northumberland and his Son gave out that they could have no access to the King but by the Mediation of the Bishops and Earls and therefore did beseech them to intercede with the King for them It is not then probable that those should be now left out when the words are large enough to comprehend them and no one circumstance is brought to exclude them For that general one of their not being Peers will be fully refuted afterwards But that which puts this out of dispute is 4. that the Record saith n. 17. the Commons not onely gave the King thanks for the pardon of the Earl of Northumberland but the Lords Spiritual and Temporal in these remarkable words Et auâ—i mesmes les CoÌ„es remercierment les Seigneurs Espirituelx Temporelx de lour bon droiturell judgment quils avoient fait come Piers du Parlement And likewise the Commons gave thanks to the Lords Spiritual and Temporal for the good and right Iudgment which they had given in this case as Peers of Parlament Which is a clear Precedent of the Bishops judging in a Capital Case and that as Peers 2 H. VI. n. 9. Iohn Lord Talbott had accused Iames Boteler Earl of Ormond of sundry Treasons before the King and his great Council and after before Iohn Duke of Bedford Constable of England The King takes advice of his Parlament about it and then it is expresly said in the Record De avisamento assensit Dominorum Spiritualium Temporalium ac Communitatis Regni Anglie in eodem Parlamento existent ' facta fuit quedam abolitio delationis nuntiationis detectionis predict c. Here the King adviseth with the Lords Spiritual in an accusation of Treason and therefore they must be present in the debates concerning it I leave now any considerate person to judge impartially on which side the Right lies For on the one side 1. There is the Constitution of Clarendon interpreted by H. II. and the Bishops at Northampton 2. A Protestation of their Right enter'd and allowed by King Lords and Commons 11 R. II. 3. A Reversing of Iudgments owned by Parlament for want of their presence 21 R. II. 4. A Preserving of their Right by Proxie when they thought their Personal attendance contrary to the Canons 5. A Bar to a total discontinuance of their personal Right by an allowed Precedent 28 H. VI. 6. A Restoring them to their former Right by removing of the force of the Canon-Law upon the Reformation 7. No one Law or Precedent produced for excluding them even in those Times when they thought the Canons did forbid their presence 8. Several Precedents upon Record wherein they were present at Examinations and Debates about Cases Capital On the other side 1. The Precedents are General and Negative 2. Or relating to such Cases wherein they are allowed to be present 3. Or of Iudgments condemned as erroneous by Parlament 4. Or of voluntary Withdrawing with Protestation of their Right and making of Proxies 5. Or of not being present at the passing of Iudgment out of regard to the Canon-Law And now on which side the Right lies let the Authour of the Letter himself judge CHAP. IV. The Peerage of the Bishops cleared how far they make a third Estate in Parlament Objections against it answered THERE remain Two things to be considered which are put in by way of Postscript by the Authour of the Letter the one concerns the Peerage of the Bishops the other their Being a Third Estate in Parlament 1.
Judge then bare Inheritance of Honour can do But to give a full Answer to this Argument on which that Authour lays so much weight and challenges any Person to give a rational account wherein the advantage of a man's being tried by his Peers doth consist I shall 1 shew that this was not the Reason of Trial by Peers 2 give a brief account of the true and original Reason of it 1. That this was not the Reason 1. Not in the Judgment of the Peers themselves as that Authour hath himself sufficiently proved when he takes so much pains to prove p. 3. that a Writ of Summons to Parlament doth not ennoble the Bloud and consequently doth not put persons into equality of Circumstances with those whose Bloud is ennobled and yet he grants that those who sate in the House of Peers by virtue of their Summons did judge as Peers as is manifest from his own Precedents p. 15. from the 4 Edw. 3. From whence it follows that this was not thought to be the Reason by the Peers themselves in Parlament 2. That this was not the Reason in the Judgment of our greatest Lawyers because they tell us that where this Reason holds yet it doth not make men Judges As for instance those who are ennobled by Bloud if they be not Lords of Parlament are not to be Judges in the case of one ennobled by Bloud Onely a Lord of the Parlament of England saith Coke shall be tried by his Peers being Lords of Parlament and neither Noblemen of any other Country nor others that are called Lords and are no Lords of Parlament are accounted Pares Peers within this Statute Therefore the Parity is not of Bloud but of Privilege in Parlament 3. The Practice it self shews that this was not the Reason For this Reason would equally hold whether the Trial be at the King's Suit or the Suit of the party but in the latter case as in an appeal for Murther a man whose bloud is ennobled must be tried by those whose bloud is not ennobled even by an Ordinary Iury of 12 men And I desire our Authour to consider what becomes of the inheritable quality of Bloud in this case when Life and Fortune lies at the mercy of 12 substantial Free-holders who it is likely do not set such a value upon Nobility as Noble-men themselves do and yet our Law which surely is not against Magna Charta allows an Ordinary Iury at the Suit of the party to sit in Judgment upon the greatest Noble-men Therefore this Reason can signifie nothing against the Bishops who are Lords in Parlament as I have already proved 2. I shall give a brief account of the true and original Reason of this Trial by Peers without which that Authour it seems is resolved to conclude that the Iurisdiction of the Bishops in Capital Cases is an abuse of Magna Charta and a Violation offer'd to the Liberties of English Subjects As to the general Reason of the Trial by Peers it is easie to conceive it to have risen from the care that was taken to prevent any unfair proceedings in what did concern the Lives and Fortunes of men From hence Tacitus observes of the old Germans that their Princes who were chosen in their great Councils to doe justice in the several Provinces had some of the People joyned with them both for Advice and Authority These were Assessours to the Judges that mens lives and fortunes might not depend on the pleasure of one man and they were chosen out of the chief of the People none but those who were born free being capable of this honour In the latter times of the German State before the subduing it by Charlemagn some learned men say their Iudges were chosen out of the Colleges of Priests especially among the Saxons After their being conquer'd by him there were 2 Courts of Judicature established among them as in other parts of the German Empire 1. One ordinary and Popular viz. by the Comites or great Officers sent by the Emperour into the several Districts and the Scabini who were Assistants to the other and were generally chosen by the People The number of these at first was uncertain but in the Capitulars they are required to be seven who were always to assist the Comes in passing Judgments But Ludovicus Pius in his second Capitular A. D. 819. c. 2. enlarged their number to 12. And if they did not come along with him they were to be chosen out of the most substantial Free-holders of the County for the words are De melioribus illius Comitatûs suppleat numerum duodenarium This I take to be the true Original of our Juries For our Saxon Laws were taken very much from the Laws of the Christian Emperours of the Caroline Race as I could at large prove if it were not impertinent to our business and thence discover a great mistake of our Lawyers who make our ancient Laws and Customs peculiar to our selves As in this very case of Trial by Peers which was the common practice of these parts of the World Therefore Otto Frisingensis takes notice of it as an unusual thing in Hungary Nulla sententia à Principe sicut apud nos moris est per pares suos exposcitur sola sed Principis voluntas apud omnes pro ratione habetur that they were not judged by their Peers but by the Will of their Prince Which shews that this way of Trial was looked on as the practice of the Empire and as preventing the inconveniences of arbitrary Government And it was established in the Laws of the Lombards and the Constitutions of Sicily In the one it is said to be Iudicium Parium in the other proborum virorum In the Saxon Laws of King Ethelred at Wanting c. 4. 12 Freemen are appointed to be sworn to doe Iustice among their neighbours in every Hundred Those in the Laws of Alfred are rather 12 Compurgators then Iudges however some make him the Authour of the Trial by Peers in England But by whomsoever it was brought into request here it was no other way of Trial then what was ordinary in other parts of Europe and was a great instance of the moderation of the Government of the Northern Kingdoms 2. There was an extraordinary or Royal Court of Iudicature and that either by way of Appeal which was allowed from inferiour Courts or in the Causes of Great men which were reserved to this Supreme Court. In which either the King himself was present or the Comes Palatii who was Lord High Steward and all the Great persons were Assessours to him In such a Court Brunichildis was condemned in France and Tassilo Duke of Bavaria in the Empire and Ernestus and other Great men A. D. 861 and Erchingerus and Bartoldus under Conradus the last of the French Race And among the Causes expresly reserved for this Supreme Court were those which concerned the Prelats as well as the
Nobles Vt Episcopi Abbates Comites potentiores quique si causam inter se habuerint ac se pacificare noluerint ad nostram jubeantur venire praesentiam neque illorum contentio aliubi judicetur But in this Court they challenged that as their privilege to be tried by their Peers who were called Pares Curiae So the Emperour Sigismund in his Protestation before the States of the Empire Cùm secundùm juris communis dispositionem nec non usum morem stylum consuetudinem sacri Romani Imperii feudalis contentio per Dominum feudi ac Pares Curiae terminanda sit c. And again nisi Parium nostrae Curiae arbitrio So likewise in France as Tilius saith Haec judiciorum ratio ut de causis feudalibus judicent Feudales Pares in Gallia est perantiqua So in Fulbertus one Count sends word to another that their Cause should not be determin'd nisi in Conventu Parium suorum And many other examples might be produced but these are sufficient to make us understand the true Original of this Right of Peerage which was from the Feodal Laws and all those who held of the same Lord and by the same Tenure were said to be Pares Peers And therefore since the Bishops in England were Barons by Tenure ever since William I. by consequence they were Peers to other Barons and had the same original Right of Trial by other Barons as their Peers holding by the same Tenure and sitting in the same Court. And thus I hope I have given what that Authour so impatiently desired viz. a rational account of the Trial by Peers and have thereby shewed that this is so far from being any disadvantage to the Bishops Cause that it adds very much to the Iustice of it And that this is so far from being a violation of Magna Charta that it is within the intention and meaning of it I thus prove In the 14. ch of Magna Charta we read Comites Barones non amercientur nisi per Pares suos but by the Common Law the Amerciament of a Bishop is the same with that of a Lay-Baron and therefore in the sense of the Law they are looked on as Peers And all the Parlamentary Barons whether Bishops or Abbots were amerced as Barons Thence 15 Edw. 2. a Writ was directed to the Justices of the Common Pleas that they should not amerce the Abbot of Crowland tanquam Baro because he did not hold per Baroniam aut partem Baroniae And it is confessed by the most learned Lawyers that the Lords Spiritual do enjoy the same legal Privileges in other respects which the Temporal Barons do as in real Actions to have a Knight returned in their Iury as to a day of Grace hunting in the King's Forests Scandalum Magnatum c. Now since the Law of England allows onely a double Parity viz. as to Lords of Parlament and Commons whether Knights Esquires Gentlemen or Yeomen without any consideration of the great inequality of circumstances among them Yeomen having as little sense of Gentility as Commons can have of the privileges of Nobles it is apparent that this Trial by Peers was not founded upon equality of circumstances and that in all reason those who do enjoy the legal Privileges of Peers are to be looked on as such by Magna Charta But the great Objection is that the Lawyers are of another opinion as to this Trial by Peers and not onely the common sort who take all upon Trust which they find in the modern Law-Books but those who have searched most into Antiquity such as Mr. Selden and Sir Edw. Coke To this therefore I answer 1. The Authour of the Peerage c. proves the Bishops are not Peers because not to be tried by Peers This consequence Mr. Selden utterly denies for he saith it is true and plain that the Bishops have been Peers For which he quotes the Bishop of Winchester's Case who was question'd in the King's Bench for leaving the Parlament at Salisbury in the beginning of Ed. III. and he pleaded to the declaration quod ipse est unus e Paribus Regni that he was one of the Peers of the Realm which he saith was allowed in Court And from other Book-cases and Parlament-Rolls he there evidently proves that the Bishops were Peers which he not onely asserts in that confused Rhapsodie which went abroad under his name but in his elaborate Work of the last Edition of his Titles of Honour in which he corrected and left out the false or doubtfull passages of his first Edition And among the rest that passage wherein this Authour triumphs A Bishop shall not be tried by Peers in Capital Crimes The same thing I confess is said in the Privileges of the Baronage which he there calls a point of Common Law as it is distinguished from Acts of Parlament i. e. the custom and practice hath been so And the onely evasion he hath for Magna Charta is this that it is now to be interpreted according to the current practice and not by the literal interpretation of the Words Which is an admirable answer if one well considers it and justifies all violations of Magna Charta if once they obtain and grow into Custom For then no matter for the express words of Magna Charta if the contrary practice hath been received and allowed in legal proceedings This is to doe by Magna Charta as the Papists doe by the Scriptures viz. make it a meer Nose of Wax and say it is to be interpreted according to the Practice of the Church 2. Some things are affirmed about this matter with as great assurance as this is which have not been the constant practice Coke is positive that Bishops are not to be tried by their Peers but so he is in the same page that a Nobleman cannot wave his Trial by his Peers and put himself upon the Trial of the Countrey Whereas it is said in the Record 4 Ed. III. that Thomas Lord Berkely ponit se super Patriam put himself upon his Countrey and was tried by a Jury of 12 Knights And 28 H. VI. the Duke of Suffolk declined the Trial of his Peers and submitted to the King's mercy By which it appears that this was a Privilege which was not to be denied them if they challenged it but at least before 15 Ed. III. they might wave it if they pleased and after that too if they were tried out of Parlament For this Trial by Peers was intended for a security against arbitrary Power in taking away mens Lives and therefore it was allowed at the King's Suit but not at the Suit of the Party But if Bishops were tried out of Parlament and did voluntarily decline the challenge of this Privilege this is no argument at all against their Right of Peerage and so I find some say it was in the Case of Fisher Bishop of
Rochester in H. VIII ' s time which is the great Precedent in the Law-Books 3. The method of Proceeding as to the Trial of Bishops by Common Iuries while the Pope's Power continued in England is not so clear that any forcible Argument can be drawn from thence Because the Bishops then looked on themselves as having no Peers out of Parlament in point of Judgment but Bishops As in the famous Case of Adam Bishop of Hereford under Edw. II. who was rescued from the King's Bench by his Brethren the Bishops because they looked on his appearing there as a Violation of the Liberties of the Church I do not go about to defend these Proceedings but I am sure the Authour of the Peerage c. very much misrepresents this business for he makes it as if the Bishop were legally convicted in Court by a common Iury and that after conviction he was deliver'd to the Archbishop to the intent as he supposes that he should be degraded Whereas in truth the Bishops carried him out of the Court without his giving any Answer to the Endictment and when he was absent the King commanded the Iury to bring in their Verdict and without ever being heard to make any Defence for himself they found him guilty in all the Articles laid to his Charge That Authour very freely bestows the terms of Impudence on the Bishops of that time and Ignorance on those who go about to defend them but I desire to know whether of these two makes a man thus misrepresent a matter of fact For it was so far from being true that upon Conviction he was deliver'd to the Archbishop to be degraded that he never appeared in Court after but continued under the Archbishop's care till after a while he fully reconciled him to the King notwithstanding the Jury found him guilty of Treason I desire to be informed whether we are to understand Magna Charta by such a Trial as this Whether he were judged by his Peers I know not but I am sure he was not by the Law of the Land which I think is as good a part of Magna Charta as the other And this our Historians tell us is the First Instance of any Trial of this kind of any Bishop in England which hath too much of force and violence in it to be a good Interpreter of Magna Charta The Second Precedent is verbatim out of Mr. Selden concerning Iohn de Isle and the Bishop of Ely his Brother which concerns such matters wherein himself confesses the Privilegium Clericale was allowed and the Record saith the Archbishop entering his plea that he was to be deliver'd to him as a member of his Church he was accordingly deliver'd after the Jury had given in their Verdict Which shews indeed the good will that was then used to take away even the allowed Privileges of the Clergy by common Juries And this is another stout Interpreter of Magna Charta when Bracton Briton Fleta Stat. West 1. Articuli Cleri c. 15. are confessed even by Sir Edw. Coke to be so clear in the Clergie's behalf in these matters The Third Precedent which is likewise out of the same Authour is of Thomas Merks Bishop of Carlisle who for his fidelity to R. II. and the true Heirs of the Crown against the Usurpation of H. IV. was found guilty of Treason by a common Iury. But Mr. Selden is so ingenuous as to take notice that the Writ directed to the Justices had in it a Non obstante to a Statute lately made at Westminster Licèt in Stat. apud Westm. nuper edito inter caetera continetur quòd nullus Archiep. nec Episcopus coram Iusticiariis nostris occasione alicujus criminis impetatur absque speciali praecepto nostro quousque c. Which was read in Court but the Judges urging that the Liberties of the Church did not extend to high Treason then it is said he did ponere se super Patriam just as Thomas Lord Berkely did 4 Ed. III. This is the onely Precedent that proves that a Bishop before the time of H. VIII did put himself upon a common Iury and yet we find as good a Precedent of this sort concerning an allowed Peer of the Realm And whether this single Precedent be sufficient to interpret Magna Charta against the plain sense of the words and to make a constant practice I leave any rational man to judge But if this were yielded in Cases of high Treason wherein the Privilege of Clergy holds not especially since the Statutes 25 Ed. III. c. 4. and 4 H. IV. c. 2 3. Mr. Selden tells them that there is no consequence from hence because they are not to be tried by Peers therefore they are not Peers since the Common Law may limit this Privilege of Peers in one particular case which may hold in all others As it is no diminution to the Peerage of the Temporal Lords to be tried by a common Iury at the Suit of the Party I conclude the Answer to this Argument as Mr. Camden doth his Discourse about this subject who having proved that the Bishops do enjoy all other Privileges of Peers except this of being tried by them which he seems to attribute to a kind of Revenge upon them for pleading such exemptions by the Canon-Law after all he leaves it to the Lawyers to determine whether this be juris explorati The meaning of which I am sure is not as the Authour of the Letter expresseth it that it was always so and never otherwise But the great difficulty to some is that a Praedial or Feudal Barony doth not ennoble the Bloud and therefore can give no Right of Peerage Whereas it is well known that all the Baronies of England were such from the Conquerour's time till after the Barons Wars when for Reason of State it was thought necessary to make the Nobility more dependant on the Crown And all that were Barons were Pares i. e. Peers So du Fresn quotes an old Poem of the Common Laws of England Barons nous appellons les Piers del Realm In France from whence our Baronies first came Ecclesiastical Persons with praedial Baronies are thought as capable of Peerage as any For there at first all the Barones Regni who both in France and England were the same with the Barones Regis however some of late have distinguished them sate in the great Council and all publick Affairs passed through them and they were judged by their own Order and these were called Pares Regni among whom the Bishops were comprehended At last Lewis VII A. D. 1179. as most Authours agree chose Twelve out of the great number of the Peers of France of which half the number were Bishops who held feudal Baronies of the King and the Archbishop of Rheims is the First of the whole Number And because these enjoy'd greater Privileges then other Peers their number was increased by particular Favour but the ancient
not mention'd in the Abridgment n. 11. Domino Rege tribus Regni Statibus in presenti Parlamento existentibus the King and the Three Estates of the Realm being present in Parlament Nothing can be plainer then that the King is none and that the Three Estates of the Kingdom are the Three Estates in Parlament 11 H. VI. n. 24. Lord Cromwell Treasurer exhibits a Petition in Parlament wherein he saith the estate and necessity of the King and of the Realm have been notified to the Three Estates of the Land assembled in Parlament In an Appendix annexed to the Rolls of Parlament that year the Duke of Bedford saith in his Petition to the King how that in your last Parlament yit liked your Highness by yadvis of Three Estates of his Land to will me c. 23 H. VI. n. 11. Presente Domino Rege tribus Regni Statibvs in presenti Parlamento existentibus c. 28 H. VI. n. 9. Domino Rege tribus Regni Statibus in pleno Parlamento comparentibus c. After these I shall insist upon the Precedents cited by the Authour of the Letter himself viz. the Ratification of the Peace with France by the Thrée Estates 9 H. V. and 11 H. VII which he alledges as an extraordinary thing that the Three Estates joyned in these Transactions whereas in truth it was nothing but a Ratification of the Peace in Parlament and consequently those Three Estates of the Kingdom are the Three Estates of Parlament For the Parlament was then sitting at both these Ratifications and no other Assembly of the Thrée Estates was ever known in England Walsingham saith that H. V. called aParlament which was sitting at that time for the King kept S. George's Feast at Windsor that year from thence he went to the Parlament at London which ended within a Month and the Ratification of the Peace bears date May 2. Judge then whether these were not the Three Estates in Parlament But to prove this more fully It seems by 23 H. VI. n. 24. that a Statute was made in the time of H. V. that no Peace should be made with France without the consent of the Three Estates of both Realms which was then repealed But whom they meant by the Thrée Estates here in the time of H. VI. appears by 28 H. VI. n. 9. when the Chancellour in the presence of the King gave thanks to the Three Estates and prorogued the Parlament where it is plain the Three Estates in Parlament were meant and that the King could be none of them In 38 H. VI. n. 38. the Chancellour again in the presence of the King and of the Three Estates having given thanks to all the Estates dissolved the Parlament But that which puts this matter out of doubt is that in the Parlament 1 H. VI. the Queen Dowager in her Petition mentions the Ratification made in Parlament 9 H. V. and saith it was not onely sworn by the King but by the Thrée Estates of the Kingdom of England Cest assavoir les Prelatz Nobles Grands per les Comuns de mesm le Roialm Dengleterre that is to say by the Prelats Nobles and other Grandees and by the Commons of the Realm of England as appears more fully saith that Petition by the Records and Acts of the said Parlament And the King there declares in four several Instruments that the said Articles of Peace were approved and ratified by Authority of Parlament in these words Qui quidem Pax Tractatus conclusio concordia omnesque Articuli contenti in eisdem in Parlamento dicti Patris nostri apud Westm. 2 0 die Maii A. R. 9. tento Auctoritate ejusdem Parlamenti approbati laudati auctorizati acceptati Nothing can be plainer from hence then that the Three Estates of the Kingdom were no other then the Three Estates in Parlament And the same appears by another Petition of the same Queen 2 H. VI. n. 19. For latter Times I shall instance onely in the Parlament 1 Eliz. c. 3. wherein the Lords Spiritual and Temporal and Commons declare that they do represent in Parlament the Thrée Estates of the Realm From whence it follows 1. That the Three Estates of the Kingdom must be represented in Parlament 2. That the Lords Spiritual and Temporal and the Commons do represent those Three Estates of the Kingdom and therefore are the Three Estates in Parlament 3. That the King can be none of the Estates in Parlament because he doth not represent any of the Estates of the Kingdom And it is a wonder to me that any man who considers the Constitution of the Government of Europe and how agreeable it was in all the Kingdoms of it as to the Assemblies of the Three Estates could ever take the King to be one of the Three Estates in Parlament For the Question would seem ridiculous to persons of any other Nation if we should ask them whether the King was reckon'd among the tres Ordines Regni For by the Three Estates they all mean the Three Ranks of men the Clergy Nobility and Commonalty But the Authour of the Letter could not deny that these were the Three Estates of the Kingdom but he saith the Three Estates of Parlament are clean another thing which I may reasonably suppose is sufficiently disproved by the foregoing Discourse But he quotes several Authorities for what he saith which must now be examined and will appear to be of no weight if compared with the evidence already given on the other side The first Authority is of King Iames in his Speech at the Prorogation of the Parlament 1605. wherein he saith the Parlament consists of a Head and a Body the King is the Head the Body are the Members of the Parlament This Body is subdivided into two parts the Vpper and the Lower House The Vpper consists of the Nobility and the Bishops the Lower of Knights and Burgesses The force of the Argument lies in King Iames his making the Bishops but a Part of the Vpper House but that this doth not exclude their being a Third Fstate I prove by a Parallel Instance In 5 H. IV. the Bishop of London being Chancellour compared the Parlament to a Body as King Iames did but he made the Chùrch the Right Hand the Temporal Lords the Left Hand and the Commonaltie the other Members yet presently after he calls these the several Estates which the King had called to Parlament But that the Bishops sitting in the same House with the Temporal Lords doth not hinder their being a distinct Estate will appear when we come to answer his Reasons And for King Iames his sense as to this matter we may fully understand it by this passage in his Advice to his Son As the whole Subjects of our Countrey by the ancient and fundamental Policy of our Kingdom are divided into Three Estates c. These words are spoken of the Kingdom of Scotland but the ancient
In his absence the People refuse to pay the Taxes and the Lords combine together and all things tend to an open Rebellion His Son Ed. II. calls a Parlament at London and promises a Confirmation of the Charter and that no Taxes should hereafter be raised either on Clergy or Laiety without their consent Which being sent over Edw. I. confirmed it with his own Seal which was all done within the compass of this year But he again ratified it in the Parlament 27 Ed. I. So that nothing was done in that Parlament at S. Edmondsbury but granting a 12 th of the Laiety to the King And when the great Laws were passed the King and Clergy were reconciled and they sate in Parlament And the Archbishop of Canterbury fell into the King's displeasure afterwards for being so active a promoter of them The summe then of this mighty argument is that the Lords and Commons once granted their own Subsidies without the concurrence of the Clergy therefore the Clergy are no essential part of the parlament 3. The Reason assigned in Keilway's Reports why the King may hold a Parlament without the Bishops is very insufficient viz. because they have no place in Parlament by reason of their Spiritualty but by reason of their Temporal possessions The insufficiency of which Reason will appear by two things 1. That it is not true as appears by this that the Clergy are one of the Estates of the Kingdom and all the Estates of the Kingdom must be represented in Parlament 2. Were it true it is no good Reason For why may they be excluded because they sit on the account of their Baronies Where lies the force of this Reason Is it because there will be Number enough without them That was the Rump's Argument against the Secluded Members And I hope the Authour of the Letter will not justify their Cause Or is it because they hold their Baronies by Tenure So did all the ancient Barons of England and why may the King hold his Parlament with the other Barons without the Bishops and not as well with the Bishops without the other Barons Which I do not see how it can be answer'd upon those grounds Suppose the Question had been thus put Since all the ancient Lords of Parlament were Barons by Tenure and Parlaments were held for many Ages without any Barons by Patent or by Writ why may not the King hold his Parlament after the ancient way onely with Barons by Tenure I do not see but as good a Reason may be given for this as that in Keilway's Reports All that I plead for is that our good ancient and legal Constitution of Parlament may not be changed for the sake of any single Precedents and rare Cases and obscure Reports built upon weak and insufficient Reasons For as the Authour of the Letter very well saith Consuetudo Parlamenti est Lex Parlamenti The constant Practice of Parlaments and not one single Instance is the Law of Parlaments And suppose that Precedent of 25 Ed. I. as full as could be wished in this case yet I return the answer of the Authour of the Letter in a like case This is but one single Precedent of a Parlament without Bishops against multitudes wherein they were present it was once so and never but once And can that be thought sufficient to alter and change the constant course and practice of Parlaments which hath been otherwise Nothing now remains but a severe reflexion on the Popish Bishops for opposing the Statute of Provisors and the several good Acts for the Reformation But what this makes against the Votes of Protestant Bishops is hard to understand If he thinks those could not make a good Third Estate in Parlament who took Oaths to the Pope contrary to their Allegeance and the interest of the Nation so do we If he have a great zeal for the Reformation so have all true Members of the Church of England who we doubt not will heartily maintain the Cause of our Church against the Vsurpations of Rome though the heat of others should abate For did not our Protestant Bishops seal the Reformation with their Bloud and defend it by their admirable Writings What Champions hath the Protestant Religion ever had to be compared in all respects with our Cranmer â—idley Iewel Bilson Morton Hall Davenant and many other Bishops of the Church of England And notwithstanding the hard fortune Archbishop Laud had in other respects not to be well understood in the Age he lived in yet his enemies cannot deny his Book to be written with as much strength and judgment against the Church of Rome as any other whatsoever I shall conclude with saying that the Clergy of the Church of England have done incomparably more Service against Popery from the Reformatition to this day then all the other Parties among us put together And that the Papists at this time wish for nothing more then to see men under a pretence of Zeal against Popery to destroy our Church and while they cry up Magna Charta to invade the legal Rights thereof and thereby break the first Chapter of it and from disputing the Bishops presence in Cases Capital to proceed to others and so by degrees to alter the ancient Constitution of our Parlaments which will unavoidably bring Anarchy and Confusion upon us from which as well as Popery Good Lord deliver us THE END Letter p. 1. Lett. p. 93. Lett. p. 3. 118. Lett. p. 66. P. 21. Lett. p. 2 3. Lett. p. 5. Lett. p. 86. Hincmar Epist de Ordine lalatii Concil Franc. c. 3. 9. Marculph Form l. 1. c. 25. Not. in Marc. p. 287. Concil Tolet 4. c. 75. 5. c. 7. 6. c. 17. 8. in Praef. 12. c. 1. 17. c. 1. 17. c. 1. Cont l. Tolet 13. c. 2. Rer. Aleman To. 2. Cod. Leg. Antiq. B. 362. Arumae de Comitiis â— 35. c. 4. â— 98. Goldast Bohem l. 5. c. 1. Bonfin dec 2. l. 1. Decret Ladiss p. 12. Starovolse â—olon p. 2â—5 Herburt Stat. Regni Pol. p. 263. Adam Brem de situ Dan. n. 85. Loccen Antiq Sâ—eco Goth. c. 8. Ius Aulicum Nâ—rveg c. 3. c. 36. Lett. p. 3 4. Stat. Merton c. 9. 20 H. 3. Dissert ad Flet. c. 9. § 2. Soz. hist. l. 1. c. 9. Capitul Carol Ludov l. 6. c. 281. ed. Lindenb c. 366. ed. Baluz Cod. Just. de Epise Audient l. 1. tit 4. c. 8. Cod. Theodos l. 16. tit 11. c. 1. Greg. NysS vit Greg. Basil. in ep Socr. l. 7. c. 37. Ambros. de Offic. l. 2. c. 24. Aug. ep 147. in Ps. 118. conc 24. Jac. Goth. in cod Theod. ad Extrav de Episc. judicio Concil Sardic c. 7. Balsam in Can. 4. Concil Chalced. Auth. Collat 1. tit 6. Novell 6. c. 2. Justin. Cod. l. 1. tit 3. c. 41. Cod. Theod. l. 16. tit 2. n. 38. Lindwood l. 3. de Testam Lett. p. 4. Lett. p. 68. Lett. p. 69. Lett. p.