themselves separately from the other L ds which would make another Estate but they do not only not vote apart by themselves the whole body of them together but even that body is divided and separated within it self one part from another For the two Archbishops give their Votes after all the Nobility have given theirs and the rest of the Bishops between the Barons and the Viscounts so that the Barons excepted all the rest of the Peers Dukes Marquesses Earls and Viscounts divide the Archbishops from the Bishops If then they be an Estate it is an Estate within an Estate like a Nest of Boxes one within another which how agreeable it is to reason let any man judge Besides would it be for the honour of the House of Lords that two Estates must be put together to keep the ballance even with the House of Commons who are but one Estate and that their two should signifie no more than that one And most clearly it would be a great disparagement to the Peerage of the Kingdom the Temporal Lords and would make them to be a poor Estate that another Estate must be joyned to them to make up their Negative voice and set them upon even ground with the House of Commons But this is further to be said were the Bishops one of the Three Estates a Parliament could not be held without them no Law no Act of Parliament could be made if the Major part of the Bench of Bishops did not agree to it but we know it to be otherwise in point of fact Parliaments have sate without a Bishop and Acts of Parliament have been made the Bishops dissenting and our Law-Books say it may be so in point of Law That it hath been so Bishop Iewel acknowledges it in his Defence of the Apology of the Church of England p. 522. he bids you read the Statutes of Ed. 1. and you will find that in a Parliament solemnly holden by him at St. Edmunds Bury the Archbishops and Bishops were quite shut forth and yet the Parliament held on and good and wholsom Laws were there enacted the Record saying Habito Rex cum suis Baronibus Parliamento Clero excluso c. The King holding a Parliament with his Barons and excluding the Clergy c. Crompton hath this likewise in his Book of Courts under the Title Parliament p. 19. b. So certainly that King did not believe his Clergy to be a Third Estate of his Parliament or he would never have left them out for it must necessarily have followed that his Parliament would have been lame and imperfect But doubtless he knew the Law to be as all the Judges of England said it was in Henry the Eighths time when the question was as the Title of the Book Case runs in Keilways Reports p. 180. b. Lou Supreme Iurisdiction perteigne al Roy ou al Pape To whom the Supreme Iurisdiction belongs to the King or the Pope For that hath still been in competition between the Crown and that Clergy I mean the Popish Clergy It is in Dr. Standishes Case 7 H. 8. p. 184. b. Les Iustices disoient que nostre Sr. le Roy poit assez bien tener son Parlement per luy ses Temporal Seigniors per ses Commons tout sans les Spirituals Seigniors car les Spiritual Seigniors nont ascunt place en le Parlement chamber per reason de lour Spiritualtie meis solement per reason de lour Temporal possessions The Iudges said That our Lord the King might well enough hold his Parliament by himself and the Lords Temporal and his Commons wholly without Lords Spiritual for the Lords Spiritual have no place in Parliament by reason of their Spiritualty but by reason of their Temporal possessions that is holding their Lands their Temporal possessions in nature of Baronies sicut Baroniam as it is in the Constitutions of Clarendon not that they were truly and really Barons enobled in bloud but by their Tenure of such Land dignified to sit in Parliament and do the King service there as the Temporal Lords by their Tenure were bound to do For this was the Policy of William the First he divided all the Lands that escheated to him by his conquest into so many Knights Fees and so many Knights Fees he erected into a Barony the Temporalties of Bishops likewise and so of many Abbots and Priors he erected into Baronies all to hold of him in Capite and upon account of those Baronies both the Temporal Lords and the Spiritual Lords not only Bishops but also those Abbots and Priors had of right place in Parliament and were bound to serve him there Now I would ask if they all holding by one Tenure and by that Tenure sitting in Parliament could possibly be imagined to be two different Estates Certainly they could not be then two different Estates for they were all Feodal Barons And what hath since hapned to make a difference The change hath been only this The Temporal Lords holding so by their Tenure grew so numerous that King Iohn put them into two ranks of Barones Majores and Barones Minores and only the Majores had Writs of Summons to come to Parliament Afterwards in Richard the Seconds time Barons were created by Patent and so had Place and vote in Parliament I ask now if it be probable nay if it be possible that this should alter the constitution of Parliament that that House which before consisted but of one of the Estates should now be divided into two Estates They are still qualified to be Members of Parliament as before a Baron sate as a Baron an Earl as an Earl Being made by Patent or by Writ or by holding such a proportion of Land alters not the case as to their sitting in Parliament for it is being of such a degree which makes them Peers of Parliament how they rose to that degree is not material And what should make the Lords Spiritual who have received no change in their being called to be Members of that House to be now an Estate by themselves which they were not before I profess I see not the least colour of reason to think there should be any change but as they were in the beginning so they are still no other than Fellow Members of that House with the Temporal Lords and together make up one House But this is also to be considered that if the Bishops were a Third Estate of Parliament not only the Parliament could not be held without them but nothing could pass in Parliament that at least the Major part of them should not assent to But so far from that not only what we find in the Journals of former times but daily experience tells us that Acts have passed not only when the Major part of that Bench was against them but many times when the whole Bench was strongly of another mind 20 R. 2. The Bishops upon occasion of the Statute of Provisors enter a Protestation against whatsoever
should be done in derogation or restriction of the power of their Holy Father the Pope saying they were sworn to his Holiness and to the Court of Rome These were likely to make a good Third Estate of an English Parliament And is it not then a wonder that any Engiish man should desire to bring Popery in again for Bishops to controule both King and Parliament Would it not set even Monarchy it self one degree lower Sure it would But this is by the way Consider further that if they had had such a power of being a Third Estate in the days of Queen Elizabeth those good Acts for a Reformation in Religion had never pased and the Reformation had never been 1 Eliz. The Bill for restoring the first Fruits and Tenths to the Imperial Crown of England which passed February 4. The Bill for restoring the Supremacy to the Crown and repealing divers Acts made to the contrary which passed March 18. The Bill giving authority to the Queen upon avoidance of a Bishoprick to take some part of the Temporalties into her hands recompensing the same with Impropriate Parsonages which passed April 7. All the Bishops present were against the passing of these Bills And before that in Edward the Sixths time they were against the Bill for Priests to marry which passed Feb. 19. 2 E. 6. So the Bill for ordering Ecclesiastical Ministers giving power to Six Prelates and Six other men learned in the Laws to set down the form and manner of their Consecration which passed Ian. 25.3 E. 6. The Bill for nominating thirty two Persons to peruse the Ecclesiastical Laws which passed Ian. 31. The Bill for abolishing and putting away divers superstitious Books as Legends Missals Processionals and the like and taking away Images out of Churches and Chappels which passed also that Parliament All these good Bills the Bishops were against yet they passed into Laws and were the foundation of our Reformation which had they been a Third Estate had never been laid for those Bills had not passed But you will say perhaps that we need not fear such mischiefs and inconvenience from our Protestant Bishops and I grant it nor do I urge these things with any such apprehension I only shew you what the Popish Bishops did then and that if they had been a Third Estate such mischiefs would have followed upon it and thence to infer That they were not in those times so accounted and that our Protestant Bishops cannot then pretend to it now They then and These now having Place and Vote in Parliament upon the same terms But then we have good Authority to inform us which are truly the Three Estates King Iames seems to make it clear in a Speech he made at the Prorogation of the Parliament in the year 1605. the words are these As for the thing it self that is the Parliament it is composed of a Head and a Body The Head is the King the Body are the Members of the Parliament This Body again is subdivided into two parts the Vpper and the Lower House The Vpper House compounded partly of Nobility Temporal men who are Heritable Counsellours to the High Court of Parliament by the honour of their Creation and Lands And partly of Bishops Spiritual men who are likewise by the virtue of their Place and Dignity Counsellours Life Renters or Advitam of this Court. The other House is composed of Knights for the Shires and Gentry and Burgesses for the Towns But because the number would be infinite for all the Gentlemen and Burgesses to be present at every Parliament therefore a certain number is selected and chosen out of the great Body serving only for that Parliament where their Persons are the Representation of that Body You see that wise King makes the Body to consist of Two Parts the Upper House or the House of Lords to be one of those parts consisting of Lords Temporal and Lords Spiritual who together make one part And the House of Commons another part It is true he calls neither of them an Estate but most certain he cannot be thought to understand the Spiritual Lords to be an Estate by themselves making them to be but a Part of one of the Parts of that Body For by the same reason he may be said to make the House of Commons consist of two Estates saying it is composed of Knights of the Shires and Burgesses for the Towns But King Charles the First is plainer in his expressions in his Answer to the Nineteen Propositions sent to him from the two Houses Iune 2. 1642. He tells them That neither one Estate should transact what is proper for two nor two what is proper for three And in that same Answer he saith a little after It is most unreasonable that two Estates proposing something to the Third the Third should be bound to take no advice whether it were fit to pass but from those two who did propose it Nothing can be clearer than this to shew what the opinion of that good King was concerning the three Estates in Parliament And 2 H. 4. n. 32. It is so declared by the House of Commons even to the King himself and to the Lords That the three Estates of Parliament are the King the Lords Spiritual and Temporal and the Commons who should all be at an Vnity among themselves and therefore hearing there were some differences between the Lords they humbly prayed the King to compose them And Stephen Gardiner Bishop of Winchester sometime Lord Chancellor an ancient Parliament-man in Henry the Eighths time who well understood the constitution of Parliaments in his Letter to the Lord Protector in Edward the Sixths time which Letter is in the second Volume of the Book of Martyrs Printed in 1641. p. 7. doth acknowledge it and saith That the three Estates make a Law and compares the three Estates in Parliament to the three Christian Vertues Faith Hope and Charity and saith That it were the same absurdity and untruth to say the Higher House and the Lower House exclude the King in the Office of making Laws as it would be in Religion to say that Faith excludeth Charity in the Office of Justification Here you have the Testimony of a Bishop I confess a Popish Bishop as you may see by his application of this Simile to make Charity that is works of Charity to have a part in Justification But I meddle not with his Divinity As to that which he saith of the Estates in Parliament he is in the right and he was one that knew well enough what was due to the Order of Bishops even to the full extent of it and would not have shortned it the breadth of one hair yet he makes them not an Estate by themselves but as joyned with the Lords Temporal Then for the Common Law you have Finch in his Book of Law dedicated to King Iames the first Chapter of the second Book p. 21. who saith the very same thing in very plain terms His
and all other Parliaments when such matters are not in question But for such matters they say Non licet alicui eorum personaliter interesse And de jure non possumus nec debemus interesse It is not lawful to be present in person at any of them and rightly we cannot nor ought not to be present Can it then be thought they should lay claim to any right to what they say Non licet de jure non possumus nec debemus It is not lawful and by right we cannot nor ought not And to say their meaning was that by the Law of the Land or Custom of Parliament they might and that it was only the Canon Law which hindred them can have little colour for the Canon Law was to them above all Laws and what was forbidden by that Law they could not have a thought that it could in any sort be lawful for them to challenge as their right upon any account It is further observable here that they profess Quod de jure non possumus nec debemus dum de hujusmodi materiis agitur vel agetur quomodolibet interesse that is all the time that such matters are in agitation there is no exception of Preliminaries and Preparatories and of being present and having vote during all the debate till the pronouncing of Sentence for it is Dum de hujusmodi materiis agitur vel agetur the whole time from the beginning to the ending and when such businesses are to come on that is when they are going upon them and when they begin And then consider the close of this Record Quelle Protestation leve en plein Parlement al instance priere du dit Ercevesque les autres Prelatz susditz est enrolle ycy en Rolle du Parlement per commandement du Roy assent des Seigneurs Temporelz Comunes Which Protestation being read in full Parliament at the instant desire of the Archbishop and other the Prelates aforesaid is entred upon the Parliament Roll by the Kings command with the assent of the Lords Temporal and Commons Which is all the formality of passing Laws in Parliament that was used in those times Which was only to have it entred in the Roll or Journal Book that such a thing was agreed upon by the King and the two Houses then it was drawn into the form of a Law afterwards by the Justices and Kings Council when the Parliament was risen So as whatever was the Law before if it were only the Canon Law it is now come to be the Law and rule of Parliament and the Law of the Land but in truth it was so before and was always so 20. R. 2. Thomas Haxey Clerk had preferred a Bill in the House of Commons for regulating the outragious expences of the Kings House particularly of Bishops and Ladies De la multitude d' Evesques lour meignee aussi de plusours Dames lour meignee qui demeurnt en l hostel du Roy sont a ses coustages Of the many Bishops and their company and also of many Ladies and their company that live in the Kings House and at his charge The King being exceedingly moved at this some Bishops and Lords were sent to the Commons to let them know it and to enquire who had made that complaint the Commons delivered the Bill and his name who had exhibited it Haxey was for this tried and adjudged a Traitor and condemned to death for it Which Judgment by the way was most unjust and would not only have shaken but wholly destroyed the very foundation of Parliament deterring all men from representing there and seeking redress of any grievance publick or private had it continued in force and unquestioned but 1. H. 4. it was complained of as erroneous and Encontre droit la course qui avoit este devant en Parlementz Against right and the course of Parliaments and therefore Nostre Sr. le Roi del a viz assent de toutz les Srs. Spirituelx Temporelx ad ordeignez adjuggez que le dit Iuggement soit du tout cassez reversez repellez adnullez tenuz de nul force n'effect Our Lord the King by the advice and consent of all the Lords Spiritual and Temporal hath ordained and adjudged that the said Iudgment be wholly quashed reversed repealed made null and held to be of no force nor effect So this Judgment is damned with Bell Book and Candle one may say and at this the Lords Spiritual were present and had vote but not at the trial and condemnation of Haxey as appears by the Record which saith Fait a remembrer que mosquerdi aprez la Chandelure maintenant aprez le Iugement rendu devers Thomas Haxey Clereâ—que fust ajuggez eu Parlement a la mort come Traitour vindrent devant le Roy en Parlement ovek grand humilite l' Ercevesque de Cantirbirs toutz les autres Preiatz luy prierent de sa grace avoir pitie merci du dit Thomas de remitter l' execution Memorandum that the Wednesday after Candlemas day immediately after that Iudgment was given upon Thomas Haxey Clerk who was in Parliament judged to die as a Traitor the Archbishop of Canterbury and all the other Prelates came with great humility before the King in the Parliament and besought his Grace to have pity and compassion on the said Thomas and to remit his execution which the King granted So we see that after the Judgment given in Parliament the Bishops immediately came into the Parliament to beg for his pardon which shews they were not there before 21. R. 2. The Commons impeached Thomas Arundel Archbishop of Canterbury of high Treason and desired he should be put into safe custody it was answered that because it touched si haut personne so high a person the King would be advised Afterwards they come and pray that Judgment may be given according to their Impeachment and accusation of him Sur quoy nostre dit Sr. le Roy toutz le Srs. Temporelz Mr. Thomas le Percy eiant poair sufficient de les Prelatz Clergie du Roialme d' Engleterre come piert de record en le dit Parlement adjuggerent declarerent cest Article conuz per le dit Ercevesque pur Traison le dit Ercevesque pur Traitour sur ce est agarde quil soit banni ses Temporaltees seisis en main le Roy Whereupon our said Lord the King and all the Temporal Lords and Sir Thomas le Percy being sufficiently empowered from the Prelates and Clergy of the Kingdom of England as appears upon Record in Parliament judged and declared this Article acknowledged by the said Archbishop to be Treason and the said Archbishop to be a Traitor and thereupon awarded him to be banished and his Temporalties to be seised into the Kings hands Here the Bishops were not present in person but Sir Thomas le Percy as their Procurator and Proctor
authorised by them may be said to represent them and so he did but yet it shews that the Bishops as Bishops and Clergy men could not be there in their persons and that rather than they should be there present such an unusual thing should be admitted as that one Layman who else was no Peer nor had place in the House of Peers to vote there should be chosen by them to have all their Proxies put together and united in him to be disposed of by him as he should think good For it was never done but in this one Parliament there never was in no Parliament before or after such a Procuratorship or Proxy given And in this Parliament of 21. R. 2. it was thrice done first here to Sir Thomas Percy then the Parliament being adjourned to Shrewsbury it was there given it seems by vote only to William le Scrope Earl of Wilts for the words are Sur ce les ditz Prelatz Clergie nomerent ordenerent en Parlement per bouche William le Scrope Conte de Wilts commettant donant a luy pleine poair aussi avant en manere come feust comys a Mr. Thomas le Percy per devant Hereupon the said Prelates and Clergy named and appointed in Parliament by word of mouth William le Scrope Earl of Wilts and gave him the same power as full and in the same manner as before had been granted unto Sir Thomas le Percy Now Percy had it by Commission enrolled which happily was to make it more authentick because he was but a Commoner The third time it was done was in the business between the two Dukes of Hereford and Norfolk when by this Parliament sitting then at Shrewsbury that whole matter was referred to the King to be by him determined by the advice of certain Lords and Commoners there named and to them were joyned the Earls of Worcester and Wilts Procurators for the Clergy This I must say argues a great unanimity in the voting of the Prelates which it seems hath ever been but I must say it was most Unparliamentary never practiced but in that one Parliament of the 21. R. 2. which whole Parliament is repealed and all it did Nulled and made Void by Act of Parliament 1. H. 4. so as it cannot be urged as a Precedent to infer any thing upon it nor can it make any thing to prove a right in the Bishops of being personally present in matters of that nature but rather in my opinion strongly the contrary And one thing more would be observed which is that it seems by the Record that the whole Clergy of England joyned in making this Proctor and not only the Prelates who were Members of the House of Peers which seems very strange But more than all this whatever was done this Parliament signifies nothing the whole Parliament stands repealed by 1. H. 4. and all done in it declared Null and Void 1. H. 4. The Commons had desired that Sir William Rikhill who had been a Judge in the Common Pleas and had been sent by R. 2. to Calais to take the Confession of the Duke of Glocester who soon after was there murthered might be put to answer upon what account he did it He was under arrest for it and was brought into Parliament before the King and the two Houses the Lords Spiritual and Temporal and the Commons then assembled together The whole matter was examined the conclusion was saith the Record Sur ceo chascun Sr Temporel esteant en plein Parlement examine severalment sur la response du dit William dit quil avoit fait loyalnent quil ny avoit en luy aucun coupe Hereupon every Lord Temporal being in full Parliament severally asked concerning the answer of the said William said he had carried himself Loyally and that he had committed no fault There was no charge no impeachment against him so the Bishops might be and were present at his examination as the Commons also were but they must have no hand in giving any Judgment upon it because it might have been a preparatory to an Accusation and an Impeachment if he had not given so good satisfaction as it seems he did in the account he gave of his employment That Parliament Iohn Hall a Servant of the Duke of Norfolk's who had helped to murther the Duke of Glocester at Calais was tried before the King and the Lords Temporal The Record saith Il sembla au Roy a toutz les Srs. Temporels quil avoit deservi davoir si dure mort come la Ley luy pourroit donner Et sur ceo toutz les Srs. Temporelz per assent du Roy adjuggerent quil seroit treinez del Tower-hill jusques a les fourkes de Tyburn c. It seemed to the King and to all the Temporal Lords that he deserved as cruel a death as the Law could inflict And hereupon all the Temporal Lords with the assent of the King gave Iudgment that he should be drawn from Tower-hill to the Gallows at Tyburn c. there to be hanged c. 2 H 4. The first Writ de Haeretico comburendo was agreed upon only by the Lords Temporal it was in the Case of William Santre our St. Stephen the Protomartyr of England the Record is Item cest Mesquerdy un Brief fust fait as Meir Uiscountz de Londres per advis des Srs. Temporelx en Parlement de faire execution de William Sautre Item this Wednesday a Writ was framed by the advice of the Lords Temporal in Parliament directed to the Mayor and Sheriffs of London for the execution of William Sautre I doubt not but the Bishops and Clergy of those times were the chief promoters of this though not appearing to be Actors in it Which yet would not have been a direct condemnation of him as his Judges nor any thing to be determined by them tending to his conviction but only an advice given to the King to make it his Act under the Broad Seal to order his execution yet they then were not to have a hand even in a matter of this nature The same Parliament the Earls of Kent Huntington and Salisbury the Lord le Despencer and Sir Ralph Lumley who for levying War against the King had been taken and executed were by the Lords Temporal declared and adjudged Traitors and their Estates to be forfeited the names of the Lords that made this Declaration and gave this Judgment are there set down the Prince of Wales the first and the Lord le Scroope the last five and twenty in all Not a Bishop amongst them so much as to declare and judge it a Treason though the persons who had committed it were dead before So as it seems they must not have a hand neither in the Antecedent what is Preliminary and Preparatory to the death of a Man nor in the Consequent what is to be done after so far from being the Judges to try or condemn him 5. H. 4. The Earl
of Northumberland had Petitioned the King for his Pardon for having contrary to his Allegiance gathered Forces and given Liveries The King gave this Petition to the Judges to have their opinion of it the Lords Protested against it and said that the Judgment belonged to them and retained the business Et puis leve entendue la Petition les Srs. come Piers du Parlement a queux tielz Iugement apperteinnent de droit adjuggerent que ceo que fust fait per le Conte nestoit pas trahison mes trespas tant seulement Sur quoy le dit Conte molt humblement remercia le Roy les ditz Srs. ses Piers de lour droiturel Iugement And then the Petition being read and understood the Lords as Peers of Parliament to whom such Iudgments do of right appertain did give their Iudgment that what the Earl had done was no Treason but only a Trespass whereupon the said Earl did most humbly thank the King and the said Lords his Peers for their righteous Iudgment Now the Bishops could not be said to be his Peers which shews they were not there 7 H. 4. A Judgment was given much like to that in the 2 H. 4. The King commanded the Lords Temporal to deliver their advice concerning the Earl of Northumberland and the Lord Bardolph who had been killed at Bramham More in Yorkshire by the Sheriff of the County who therewith the Posse Comitatus encountred them in the field There were proceedings against them in the Court of Chivalry after their deaths upon certain Articles of Treason there exhibited against them These Articles were brought into Parliament upon reading of which those Lords Temporal adjudged their Crime to be Treason 5 H. 5. The Commons Baillerent une Petition delivered a Petition directed Al honorable Prince le Duc de Bedford Gardein d' Engleterre as tres sages Srs. de cest present Parlement To the honourable Prince the Duke of Bedford Gardian of England and to the most wise Lords of this present Parliament that Sir Iohn Oldcastle might be brought before them who was indicted and outlawed in the Kings Bench for Treason and excommunicated by the Archbishop of Canterbury for Heresie and that due execution might be done upon him according to their discretion by authority of Parliament Pur quoy agarde est per les Srs. avant ditz del assent de le dit Gardein a la priere susdit que le dit John come Traitor au Roy a son Royalme so it amesnez a la Tour de Londres dilloeques soit treinez parmi la cite de Londres as novelles Fourches en la paroche de St. Giles illoeques soit penduz ars pendant Wherefore it is adjudged by the Lords aforesaid with the assent of the said Gardian upon the foresaid Request that the said John as a Traitor to the King and his Realm be carried to the Tower of London and thence drawn through the City of London to the new Gallows in St. Giles Parish and there to be hanged and burnt hanging The question is now if it shall be understood that under the general expression of Les Srs. de cest present Parlement the Bishops were comprized and so to have been parties in this Judgment and I conceive not first because I observe that generally throughout all the Records and Journals of Parliament almost in all transactions but especially and constantly I find it so in matters of Judicature where they were present it is always mentioned and expressed so at That the Lords Spiritual and Temporal or That the Prelats and Earls and Barons did so and so as it was in the Cases before mention ed of Sir Iohn Lee Richard Lyons the Lord Latimer and the rest accused of misdemeanours And my other reason is that in this particular Case of Sir Iohn Oldcastle I find the Clergy had done their parts with him before declaring him an Heretick and turning him over to the Secular power as the words of the Excommunication run where after having expressed a great tenderness of the desperate condition of his Soul and much bewailed his obdurateness they do condemn him for a Heretick Relinquentes eum ex nunc tanquam Hereticum Iudicio Seculari Leaving him from thence forward as an Heretick to the Secular Iudgment So certainly those good men I mean those Popish Bishops would have no more to do with him as to his farther Execution that the world might see they were not Men of bloud 2. H. 6. Sir Iohn Mortimer had been committed to the Tower upon suspicion of Treason against Henry the Fifth and made an escape out of prison being taken again he was indicted of Treason at Guild-Hall The Indictment by the Kings command was returned into Chancery then brought into Parliament by the Bishop of Durham Lord Chancellour and by him Coram Humfrido Duce Gloucestriae who in the Kings absence was commissionated to call and hold that Parliament ac aliis Dominis Temporalibus in eodem Parliamento tune existentibus fuit liberatum Was delivered to Humfry Duke of Glocester and other the Lords Temporal being then in Parliament to be by them affirmed as it was and Sir Iohn Mortimer then brought before them and adjudged by them to be drawn hanged and quartered Et super hoc viso plenius intellecto Indictamento per dictum Ducem de avisamento dictorum Dominorum Temporalium ac ad requisitionem totius Communitatis in presenti Parliamento existentium auctoritate istius Parliamenti ordinatum est statutum c. quod ipse usque ad Turrim ducatur c. And hereupon the said Indictment being seen and well understood it was by the said Duke by the advice of the said Lords Temporal at the prayer of the whole Commonalty in this present Parliament and by the Authority thereof Ordered and Decreed c. that he should be led to the Tower and from thence drawn to Tyburn and there executed We see here the Bishops did not offer to advise so much as concerning the Indictment if it should be admitted of and received by the Parliament though a Bishop being Lord Chancellor was by vertue of his Office to bring it out of the Chancery and present it to the House as he did and there left it 28 H. 6. is the sole single President of Bishops being present and not only so but acting and bearing a principal part in a Judicial proceeding in Parliament in a Case that was in it self Capital though strangely shuffled off and Justice wholly eluded Ianuary 22. William de la Pole Duke of Suffolk preferred a Petition to the King complaining how he was defamed as if he were other than a true man to the King and the Realm and desiring that any man would say wherein that he might give his Answer thereunto Munday 26. the Commons sent some of their Fellows to the Chancellour who was Archbishop of York and a Cardinal praying him that whereas
that he was ill spoken of and defamed to the close of all the Judgment given by the King by the mouth of the Chancellour for his banishment in regard he had not put himself upon his Peerage which yet the Chancellour said the King did not do as his Judge for that he was not in the place of Judgment And it was an odd thing and unusual that some Prelates and some Lords should be sent down to the House of Commons to receive the Articles of this Impeachment All this was such a Hodge-podge of a Trial as no man can tell what to make of it nor can it be of any signification to be a president and a rule of proceeding in matters of that nature in Parliament But admit it had been never so regular it is but one single president of Bishops and Prelates acting in a Judicial capacity in a Capital cause in Parliament against multitudes excluding them it was once so and never but once And can that be thought sufficient to alter and change the constant course and practice of Parliaments which hath been otherwise Had it been questioned then and upon a debate and mature consideration been so resolved at that time this had signified something but it was done and no exception taken which they call a passing Sub silentio and more it was never done but once But Sir Edward Coke goes further and saith that two or three presidents are nothing if forty be contrary and it is so here he tells you too when it is that they signifie nothing that is Quand les Presidents passe sans challenge del partie ou debate des Iustices When they be not challenged by the party concerned or not considered of and debated by the Iudges as neither of them was here done it is in Slades case in the 4. Reports It is a rule in Law A facto ad jus non valet argumentum but it may withal be said and truly A saepe facto ad jus contra semel factum valet argumentum Upon the whole matter one may boldly affirm that this President of 28 H. 6. is no ground for the Bishops to build their claim upon of having a right to sit and vote in Parliament in Capital Causes 31 H. 6. is the Earl of Devonshire's Case the Record runs thus Be hit remembred that where the 14. day of March the said 31 year of this present Parliament Thomas Earl of Devonshire upon an Indictment of High Treason by him supposed to be done against the Kings honourable estate and person afore Humfrey Duke of Bucks Steward of England for that time assigned and of the same Treason by his Peers the noble Lords of this Royaume of England being in this said present Parliament was acquitted of all things contained in the same Indictment Now I suppose no man will say That the Bishops were either his Peers or Lords of the Realm 38 H. 6. The Lord Stanley was accused by the Commons for being in confederacy with the Duke of York and they desire he may be committed to prison the Answer is The King will be advised which is all was done And this is the last president of any Impeachment or of any person questioned in Parliament in a Judicial way that is upon the Rolls in the Tower And I do not remember that I have read or heard of any Trial in Parliament in a Judicial way since that time till the E. of Straffords in our memory whose Trial was compleated in that way but he was attainted and condemned by the Legislative power During all the Trial from the beginning to the end the Bishops were never present at any part of it And it yet appears upon the Journal Book of the House of Peers though many passages be razed but this is not That upon the 9. of March 1640. upon a Report brought in by the Lord Privy Seal of something concerning that business and a debate arising upon it the Bishops withdrew it being In agitatione cause sanguinis It is true there was in that same Parliament the February before an Impeachment of High Treason brought up from the House of Commons against the Lord Keeper Finch but it never came to Trial for he fairly ran away and got beyond Sea whereupon by the Order of the Lords Temporal a Proclamation was issued forth for him to appear the 10. of March following the words of the Proclamation are Rex Uice-comiti c. Cum Communitas Regni nostri Anglie in presenti Parliament Iohannem Dominum Finch de Fordich nuper Custodem Magni Sigilli Anglie de Alta Proditione accusaverit impetierit Cumque per Dominos Temporales in eodem Parliamento de assensu advisamento nostris Ordinatum existit quod Proclamatio per totum regnum nostrum Anglie publice fiat qd idem Iohannes Dominus Finch in propria persona sua compareat se reddat coram nobis prefatis Dominis decimo die Martii proxime futuro ad respondendum standum recto coram nobis prefatis Dominis ex hoc parte Nos volentes c. The King to the Sheriff c. Whereas our Commons of this our Kingdom of England have in this Parliament accused and impeached John Lord Finch of Fordich late Lord Keeper of the Great Seal of England of High Treason And whereas the Lords Temporal have in the same Parliament with our consent and advice Ordered a Proclamation to be published throughout our whole Kingdom of England that John Lord Finch do personally appear and yield up himself to us and the foresaid Lords upon the 10. of March next following to answer for his Treason and stand to the Iudgment of us and the foresaid Lords in that behalf We willing that the Order have its due effect do command and strictly enjoyn you that upon the receipt of these presents you do in all Cities Market Towns and such other places within your Bayliwick as to you shall seem expedient cause in our name to be publickly proclaimed That John Lord Finch do appear in person and render himself before us and the foresaid Lords in this present Parliament upon the 10. of March aforesaid to answer for the Treason aforesaid and stand to the Iudgment of us and the foresaid Lords in that behalf according to the tenor of the foresaid Order This was the Proclamation Ordered to be made onely by the Temporal Lords and no Bishops present yet was it no part of the Trial but meerly a course taken to have him in Court that he might be tried But because it looked towards a Trial the Bishops must have no hand in it And it is further observable in this president that the Kings learned Counsel was ordered to draw up this Proclamation according to the antient Parliamentary way which shews that it was the ancient Parliamentary way That only the Lords Temporal should be interested in such Proceedings and have the ordering of them and not at all the Bishops And I
upon the Trial of Commoners Though to speak the truth I doubt those Prelates did not much desire this Priviledge but the Salvo to their Right of sitting in all Parliaments to have been what they aimed at most in their Protestation and which they would have to be enrolled but the one could not be without the other and upon no terms would they admit the least scruple should be of their right to sit in Parliament which their withdrawing at that time might seem else to call in some question as they thought and therefore they would make that Protestation For that Popish Clergy was very ambitious and loved to have the rule over all persons and things we see it by Matthew Paris how he branded those Constitutions of Clarendon with terming them Consuetudines iniquas and the Archbishop Becket himself after he had sworn to them repented him of it and enjoyned a severe Penance to himself and suspended himself from the Office of the Altar for several months till he had the Popes Absolution This makes me doubt if the Clergy was of another mind in Richard the Seconds time and if they could not have been well enough contented to have continued sitting as Judges in all Cases if the Canon Law had not debarred them but that being they would make that Protestation consisting as I say of those two parts both which being so approved of by the Parliament and there enrolled became then and so continue to be the Law of the Kingdom For in those times all Laws were so made Only the substance of the Law was agreed upon in Parliament by King Lords and Commons and entred in the Journal Book And the Kings Justices did afterwards draw it up into form and then publish it to be the known standing Law of the Kingdom But that was not needful here because it was not a new thing that did then receive its first being Neither I say was it new before in Henry the Seconds time it appearing by what was then transacted that it was in usage in Henry the Firsts time only it was ratified in that Great Council of Clarendon under Henry the Second with a little more solemnity and the addition of an Oath for the better observance of it And we may carry it yet a little higher to Edward the Confessors days as appears by his Appeal against Earl Godwin in a Great Council which was their Parliament and how long it had been the use and practice before that God knows In E. 4 th time it was the declared Law of the Land you have it in the Year-Book of 10 E. 4. Term. Pas. n. 35. the words are Quant un Sr. est endite ceo serra maunde en le Parliament la le Seneschal d' Engleterre le mettra a respondre il dira De rien culpable se sera trie per Pares suos donque les Seigniors Espirituelx que ne poient consent al mort de home ferront un Procurator en le Parliament donque le Seneschal doit examiner primes le pluis puisne Seignior que est sil soit culpable issint separatim a toues les Seigniors queux sont la c. When a Lord is indicted it shall be returned into Parliament and there the Steward of England shall put him to answer and he shall say Not guilty and this shall be tried by his Peers and then the Lords Spiritual who may not consent to the death of any man shall make their Procurator in Parliament and then the Lord Steward shall ask the youngest Lord if he be Guilty and so severally all the Lords that are there c. This I alledge to shew that even by the Law of the Land the Bishops cannot be Judges in a Case Capital 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 Parliament of R. 2. whom they considered as their last lawful King and in truth he was so the three Henries that came between being but Usurpers and therefore they had it seems a deference for what was then done though as I have already said it was never done before nor is it in truth a thing very practicable and not at all Parliamentary to have one man or two men as we see it was also done that Parliament represent the whole Bench of Bishops And more than all this as I have already observed which it seems was not then thought of that whole Parliament of R. 2. stands repealed and all that was done in it declared by a subsequent Act of Parliament to be Null and Void But this is but by the way my intent in quoting this Book Case is onely to shew that the Bishops were not excluded Judging in Capital Cases by the Canon Law alone but that the Law of the Land did likewise confirm it and the Courts of Westminster did so conceive of it So I think I may well conclude and with some confidence affirm that Bishops now are not to be Judges to Sit and Vote in Parliament in any Trial or part of a Trial that is in any circumstance which doth any ways lead or conduce to such a Trial of any Capital Offender but the whole Judgment is singly and wholly in the Lords Temporal and to them onely such Judgments do belong as was challenged by them in the Case of the Earl of Northumberland 5 H. 4. and is so declared to be in several other Cases upon the Rolls of Parliament And having thus delivered you my opinion and my grounds for that opinion I submit it to your judgment and rest SIR Your Humble Servant POSTSCRIPT SIR AS I was closing my Letter two Papers were brought me one in Written hand the other Printed which maintain an Opinion clean contrary to mine I shall tell you what they say and give my Answer to it then leave it to you to determine who is in the right The written Paper to prove their right of Judicature in all Cases none excepted declares Bishops to be Peers of the Land and a Third Estate in Parliament and therefore are not to be excluded from being Judges in all Cases as well Capital as other To prove them Peers of the Land he urges Statute Law and Common Law for the Statute Law he alledges the 25 of Ed. 3. c. 6. and the 4 of H. 5. c. 6. First For the Statute Law let me tell you It is not every expression Obiter upon the By that is in the Preamble of a Statute as this is of Bishops to be called Peers in these Statutes that makes a thing pass for Law except it be by way of Declaration declaring it to be a Law or reciting it as a Law before made And then I shall shew you how these two particular Statutes run and what they are That of the 25 E. 3. it is true hath in
the Preamble that the Prelates had prayed the King that their Temporalties thenceforth might not be seised upon for such contempts sith they were Peers of the Land that is by their own sayings they were Peers for so it was only the Statute doth not make them so The Record is that among the Petitions of the Clergy one is Come Ercevesques Evesques tiegnent lour Temporaltees du Roi en Chief pertant sont Pieres de la Terre come sont autres Countees Barons quil vous pleise a eux graunter que nul Iustice pur soul contemptz puisse desoremes lour Temporaltees faire prendre c. Seeing Archbishops and Bishops hold their Temporalties of the King in Capite and therefore are Peers of the Land as are other Earls and Barons that you will be pleased to grant unto them that no Iudge may henceforward for meer contempts cause their Temporalties to be seised The Answer is That the Law is so and cannot be changed but the King is willing that in such Cases a reasonable Fine may be taken So you see they indeed call themselves Peers which the King takes no notice of in his Answer but speaks to the matter of their Petition And even in his Answer intimates that they are not in the same condition with Earls and Barons for he saith the Law is so for them that is that they should forfeit their Temporalties for such Contempts which no man will say was the Law for Earls and Barons to forfeit their Lands for any Contempt but well were they liable perhaps to pay a good Fine for it So then I may say that those Bishops were a little mistaken to affirm that they were Peers of the Land just as other Earls and Barons are The other Statute is of the 4 H. 5. and is only concerning Ireland it saith That by a Statute in Ireland no Irishman was to be preferred to any Dignity in the Church and yet some were made Archbishops and Bishops and they make their Collations to Irish Clerks then follows And whereas they are said to be Peers of the Parliament in the same Land they bring with them Irish Servants to Parliaments and Councils who give intelligence to the Irish Rebels That Statute is now confirmed And what this makes to prove the English Bishops Peers of the Land I see not nor I think no body else can at most it can but declare them to be Peers of the Parliament of Ireland and it is too even for those Irish Bishops but that they are so said to be that is said to be Peers not that they are so But to prove that they are not Peers of England I think we have a better Law even Magna Charta it self It saith That every man who is tried at the Kings sute must be tried by his Peers Now if a Bishop be tried for any Capital offence he is tried by the Commoners and that is the Common Law of the Land it hath ever been so never otherwise then must Commoners be his Peers and he and Commoners must be Pares The Great Charter of Englands Liberties Magna Charta declares them so A Temporal Lord Duke Earl or Baron cannot be Judge in the Case of a Bishop except it be in Parliament where the Temporal Lords be the sole Judges and those to whom Judgment doth properly belong nor on the other side can any Bishop be their Judge how then can they be said to be Pares Fellow Peers For my part I see not Then for their being a Third Estate in Parliament for which that Writer alledges Mr. Seldens authority is a thing so contrary to Reason as I can no ways yield to it First let me lay this foundation that I do acknowledge the Subjects of England to be divided into three Estates The Nobility the Clergy and the Commonalty these are the several Estates of the Kingdom and the Bishops are part and the chief part of one of these viz. the Clergy And sometimes these three Estates have joyned in some transactions as 9 H. 5. in the ratification of a Peace with the King of France Charles the Sixth who had desired it should be so he having had it ratified in France by the three Estates there the Record saith Uolensque idem Serenissimus Dominus noster pro parte sua dictam pacem omnia singula contenta in ea modo consimili per ipsum tres Status Regni sui jurari firmari roborari prout ex dicte pacis tenore astringitur obligatur dictam pacem bene fideliter in omnibus se observanturum in verbo Regio ad Sancta Evangelia per ipsum corporaliter tacta juravit promisit ac dictos tres status viz. Prelatos Clerum Nobiles Magnates nec non Communitates dicti Regni sui secundo Maii ad Palatium suum Westminst ad majora firmitatem robur Pacis predicte fecit congregari quibus quidem tribus statibus per Cancellarium suum tenorem dicte Pacis singulos Articulos ejusdem seriose exponi fecit c. The King willing for his part that the said Peace and all the particulars of it should in like manner be sworn to confirmed and ratified by Him and the three Estates of his Kingdom according as he was obliged by the tenour of it to do did swear and promise laying his hand upon the holy Evangelists in the word of a King that he would well and faithfully observe and keep it in every circumstance And the said three Estates to wit the Prelates and Clergy for one the Nobles and Great men for another and the Commons for the third he caused to come before him the second of May at his Palace of Westminster for the better confirmation and strengthening of the Peace to which three Estates he caused his Chancellour to declare what the Peace was and every Article thereof c. Here indeed the Prelates and all the Clergy together with them are declared to be one of the three Estates of the Kingdom which is to be understood as they are assembled in the Convocation where all are present in their Persons or their Representatives but this is no part of the Parliament nor is it any ways entrusted with the Legislative power though it assemble in Parliament time And in 11 H. 7. the very same Case hapned again and the three Estates of the Kingdom joyned with the King in the Ratification of a Peace with France in the same manner But the three Estates of Parliament are clean another thing Each must have a Negative voice to all that passeth there If the Major part of the House of Commons be against any thing there proposed there is an end of it it is rejected It is the same in the House of Lords and the Bishops are intermingled with the Temporal Lords in making up that Majority as part of that Majority whereas were they one of the Estates reason would they should vote by
it was lawful for him sometimes to reprove the other and to reduce him bring him into order if he went astray He leaves out what the Bishops work was he omits that clause Episcopus ut jus Divinum diceret for this was not to try Capital Crimes But Sir Henry Spelman tells us further that that Court had cognisance but of petty matters De causis Magnatum Potentiorum non cognovit Comes nam he ad Aulam Regiam deferende Pauperum tantum minus potentum judicabat Hinc Legibus nostris hodie prohibetur debili aut injuriarum actiones in Comitatu intendere si rei litigate valor non sit minor 40 solidis The Earl hath not cognisance of great mens business 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 Debt and Trespasses are not to be commenced in the County Court if it be for above the value of 40 Shillings Judge now I pray you what all this makes to prove that Bishops have right to judge of Treason Felony and those transcendent Crimes which deserve death He then quotes Mr. Selden and makes him say in his Introduction to his Treatise of the Priviledges of the Barons of England that Omnes Praelati Magnates had this Priviledge till the Prelates lost it by the Parliament of 17 Car. 1. I find no such thing there he saith That the Prelacy had heretofore the first place in the Summons but that they had then lost it And this I observe further that Mr. Selden makes the whole upper House to be but one Estate whether the Bishops be there or No It was one Estate formerly when the Bishops had the Priviledge of sitting there and when they had the first place in the Summons and it was one Estate then in Mr. Seldens time when they had lost that Priviledge but our Assertor in the Printed Paper would take no notice of this Now I come to his Precedents he first begins with their Proxies and cites many Parliaments where Bishops gave Proxies which no man denies and they do it still only they give their Proxies now only to Bishops like themselves who are Members of the House not to such as are no Members as it seems they did then But giving Proxies to represent the whole Bench of Bishops or any one Bishop in any Judgment of death except in that one Parliament of 21 R. 2. I utterly deny Indeed he tells us of the 2. H. 4. and 2 H. 5. that they did it it there in those Parliaments but I dare say he cannot find it there I am sure I cannot and I do verily believe he never looked there but that he takes it upon trust out of the Margin of pag. 125. of Mr. Seldens Book of the Priviledges of the Baronage where indeed there is such a quotation but misplaced by the Printer having reference to what is said at the end of the Paragraph of Thomas Earl of Salisbury 2 H. 5. endeavouring to reverse the Attainder of his Father Iohn Earl of Salisbury who was attainted 2 H. 4. and not at all concerning what is said of Proxies in the first part of the Paragraph as our Assertor would here apply it Then he cites a Precedent or two to make out that Bishops were personally present at the giving of some Judgments of Death which if they be truly related he saith something but I believe they will be found to be of as little weight as all he said before His first is among the Pleas of the Crown 21 R. 2. of the Impeachment as he calls it of the Earl of Arundel and others by the Lords Appellants the Earls of Rutland Kent Huntington and others He saith the Earl of Arundel being brought to the Bar by the Lord Nevil Constable of the Tower that the Articles exhibited against him by the Lords Appellants were read to which he only pleaded two Pardons which Pardons not allowed the Lords Appellants demanded Judgment against him Whereupon the Lord Steward by the Assent of the King Bishops and Lords adjudged the said Earl guilty and Convict of all the Articles and thereby a Traitor to the King and Realm and that he should be therefore Hanged Drawn and Quartered This our Assertor saith who quotes Sir Robert Cottons Collections for it and there indeed it is so but methinks one should not venture to quote a Record upon any mans Allegation without consulting the Record it self and that I am sure he hath not done for it saith expresly that it was only the Lords Temporal and Sir Thomas Percy Proctor for the Prelats that gave that Judgment The words of the Record are Sur quoy le dit Duc de Lancaster per commandement du Roy toutz les Srs. Temporels Mr. Thomas Percy aiant poair sufficiant des Prelatz Clergie du Roialme d'Engleterre come piert de Record en le dit Parlement per assent du Roy agarderent le dit Counte d' Arundel coupable convict de toutz les pointz dount il est appellez per taunt luy ajuggerent Traitour au Roy au Roialme quil soit treinez penduz decollez quarterez Whereupon the said Duke of Lancaster by the Kings Command and all the Lords Temporal and Sir Thomas Percy being sufficiently empowered by the Bishops and Clergy of the Kingdom of England as appears upon Record in the said Parliament did by the Kings assent declare the said Earl of Arundel guilty and convict of all the points of which he was accused and therefore did adjudge him a Traitor to the King and Realm and that he should be drawn hanged his head cut off and body quartered You see the Bishops were none of them present but theit Procurator was to which in my Letter I have largely spoken and need not repeat it here He urges also a Precedent in this same Parliament of the Commons by the mouth of their Speaker Sir Iohn Bussy praying the King That for that divers Iudgments were heretofore undone for that the Clergy were not present that the Clergy would appoint some to be their Common Proctor with sufficient authority thereunto I have already shewed that this whole Parliament was repealed 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 be 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 Judgment had been reversed upon that account because the Prelates were not present and had not given their Assent to it Indeed 2 H. 5. Thomas Montacute Earl of Salisbury attempted it brought his Writ of Error to reverse the Judgment given 2 H. 4 against his Father Iohn Earl of Salisbury and did assign that for an Error as the Record saith Item Error de ceo que le dit John susdit Count dust forfaire terres tenements sans assent des Prelates qui sont Piers en Parlement les queux ne furent mye faits parties as Declaration Iuggementz avandits Item An Error in this that the foresaid Earl John should forfeit Lands and Tenements the Prelates not assenting who are Peers of Parliament yet were not at all made parties to the abovesaid Declaration and Iudgments But this was adjudged to be no Error and the Condemnation of his Father to have been just and Legal And I am very confident that this is the only Precedent of such an Attempt and yet it makes a stronger argument against it that it was endeavoured and rejected for now it is a Judged Case And besides as I have already observed this desire of the Commons of their making a Proctor shews what the opinion of those times was that the Bishops could not be personally present at such Judgments which is all that is now in question between us His next Precedent is 3 H. 5. when Rich. Earl of Cambridge and others were tried for Treason for levying War against the King the Bishops then personally sitting in Parliament as he saith and he bids us see the Record in the Tower which I dare say he had not done himself for then he would have found it contrary to what he asserts that Richard Earl of Cambridge and Henry Lord Scroope with him were not Tried nor condemned in Parliament as he saith they were but by a special Commission directed to the Duke of Clarence and other their Peers Earls and Barons at Southampton and were there condemned and executed but the whole Proceedings against them were afterwards brought into Parliament at the desire of the Commons and were there at their desire likewise ratified and confirmed and the Bishops then were and might be present for I look upon it as an Act of Parliament yet not attainting them but confirming their Attainder for they were Convicted Condemned and Attainted before at Southampton His last Chapter of Precedents from H. 8. to the 29 Eliz. is only of Bills of Attainder and so acknowledged by him and therefore Nothing to the purpose As I have said before those Bills are Laws though Private Laws whereto every Freeman of England doth consent either in Person or Represented and 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 for their being Judges in any Trial of Life and Death or part of a Trial when the House proceeds in a Judicial way I see no reason by all that hath been said on the other side to change my opinion That they ought not Sir you see what is said on both sides be you Judge who is in the right FINIS