time of the Earl of Strafford's Trial a Book being printed about the Privilege of Peers wherein this Protestation was mention'd hold was presently taken of it by Men who thought they could not compass their ends without removing the Bishops out of the House and when the Bishops insisted on their Right and could not be heard but at last were willing to salve their Right by Proxies the Lords of the Cabal prevailed with their friends to declare they would use no Proxies themselves and so by that artifice shut the Bishops out of Doors 4. The practice hath been so contrary since the Reformation that I find no manner of regard hath been shewed to it For the Archbishop of Canterbury was the first nominated in the Commission for the Trial of the Queen of Scots as appears by the Commission it self in Camden which is directly contrary to the Canon-Law Some distinguish the Bishops acting by Commission from their being Iudges in Parlament For which there is no manner of Reason with respect to the Canon-Law which is rather more express against any kind of Commissions in Cases of Bloud as appears by the Council of Toledo the Synodal Constitution and the Pope's Decretals And there hath never been any scruple about Divines sitting on the Crown-side as Iustices of the Peace when Sentence of death is pronounced nor in the Ordinary's declaring Legit or Non legit when a man's life depends upon it But which is yet more to our present purpose in the Parlament 22. May 1626. upon the Impeachment of the Earl of Bristol of high Treason 10 Bishops 10 Earls 10 Barons were appointed to examine the Evidence and upon their Report he was sent to the Tower by the whole House All which shews that there hath been no regard had to the force of the Canon-Law in this matter since the Reformation That being a Spirit lay'd long since by the Principles of our Church and it would be strange if some mens zeal against Popery should raise it again CHAP. III. The Precedents on both sides laid down those against the Bishops examined and answered II. I Now come to examine the Precedents and shall proceed therein according to due Order of Time And so the first is taken from the Saxon times viz. from Brompton's Relation about Edward the Confessour's appealing to the Earls and Barons about Earl Godwin's murthering of his Brother Alfred Here we see saith the Authour of the Letter it was onely ad Comites Barones that he appealed and they were onely to judge of it and not Bishops or Prelates I have 2 things to answer to this Precedent 1. That we have great reason to suspect the truth of it 2. That if it were true we have no reason to suspect the Bishops to be excluded 1. For the truth of the Story That there is great reason to suspect it appears in that it is the single relation of Brompton against the consent of the other Historians and some of them much ancienter and nearer to that time who mention K. Edward's charging Earl Godwin with the Death of his Brother not in Parlament but as they were at Table together at Winchester upon the occasion of a saying of Earl Godwin's upon the King 's Cup-bearer's stumbling with one foot and recovering with another See saith he how one Brother helps another Upon which Matt. Westminster Knighton and others say that the King charged him about the Death of his Brother Alfred Whatever the occasion was our best Historians of that time Malmsbury and Ingulphus say it was at an Entertainment at Winchester and that Earl Godwin died upon the place being choaked as they say with a Morsel of Bread he took with a great Execration upon himself if he were not innocent Knighton saith he was question'd for the Death of his Brother by Hardecnute and that he cleared himself by saying he did nothing but by the King's command But suppose Edward to be never so weak a Prince is it likely this should be done by an Appeal in Parlament by the King himself and that afterwards by the Judgment of his Earls and Barons he and his Sons and 12 Kinsmen should make the King amends by as much Gold and Silver as they could carry between their Arms Besides Brompton saith this was done by Godwin when he returned to England after King Edward's coming to the Throne whereas Malmsbury shews that it was through Earl Godwin's interest that ever he came to it and so the marrying his Daughter would make any one believe 2. But suppose it true What reason is there to conclude the Bishops not present who were never absent through all the Saxon times after Ethelbert's Conversion in any publick Councils of the Nation They had no Canon then to be afraid of for that of the Council of Toledo was brought in by Lanfranc And it was not against the practice of those Times For if we believe as true a Story as this of Brompton the Archbishop of Canterbury himself condemned King Edward's Mother Emma to a Trial by hot Irons which was present death without a Miracle and this it is said was done by the consent of the King and the Bishops which is as good a Precedent against Temporal Lords as the other is against the Bishops However this is certain that the Bishops then sate in the County-Court at all Iudgments And whereas the Authour of the Letter would avoid this by saying that no Capital Crimes were tried there the contrary is most certainly true For the Laws of King Edward as they were set forth by H. I. c. 31. mention the Capitalia Placita that were there held And the Authour of the MS. Life of S. Cuthbert saith that when one of Earl Godwin's Sons was Earl of Northumberland and one Hamel a very bad man was imprison'd by him his Friends interceded earnestly with him nè capite plecteretur that he should not lose his head By which it appears that Cases Capital were heard and determin'd in those Courts the Bishop and Earl sitting together in Iudgment And here the Point is plainly gain'd because the Authour of the Letter grants that the Bishops sate in all Iudgments in the County-Courts and then puts the matter upon this Issue whether Capital Crimes were there tried or not which I have clearly proved that they were But I shall make another advantage of this against the Authour of the Peerage c. for it plainly overthrows that confident Assertion of his That without doubt there was a Negative Custom that the Prelates should not exercise Iurisdiction in Capital Cases so ancient as to be part of the Fundamental Contract of the Nation It were a thousand pities that such well-sounding words so handsomely put together should signifie nothing I dare not be so positive as he is but am of opinion that if he could be perswaded to produce this Fundamental Contract of the Nation which I perceive he hath lying by him
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
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.
the force of a Law because it may be destroy'd by the Act of the Parties themselves If therefore the Bishops did afterwards act contrary to this Protestation they took away all the force of it 2. The particular nature of this Protestation is such as doth most evidently preserve their Right to be personally present on the account of their Peerage and Baronies and the great design of a Protestation is to preserve a Right notwithstanding some Act which seems to destroy it as thier absenting themselves on the account of the Canons might seem to doe But of this already 3. We are now to consider the third Point Whether on supposition that on the account of the Canon-Law the Bishops had always withdrawn in the time of Popery that had continued in force still since the Reformation I think not upon these Reasons 1. Because the Canon-Law was founded upon a Superstitious fancy viz. that if Clergy-men be present in Causes of Bloud they contract Irregularity ex defectu perfectae Lenitatis as the excellent Canonist Navarr saith because it argues a want of perfect Lenity But if we consider the cases they allow which do not incurre Irregularity and those they do not allow which do incurre it we shall find all this stir in the Canon-Law about this matter to be onely a Superstitious kind of Hypocrisy 1. If a man in Orders gives another man Weapons without which he could not defend himself and by those weapons he maims him that assaulted him this doth not make him irregular but if he kills him it doth and yet the Canons make the case of Dismembring and Death the same 2. It makes a man act against the Law or Nature to prevent Irregularity For they say if it be for the defence of Father or Mother or preventing the ruin of his Country although the Cause be never so just a Clergy-man that dismembers or takes away another's life is irregular 3. If a Clergy-man discovers Treason or accuses another for Treason without a Protestation that he doth not doe it with a design to have him punished he is irregular but if he makes that Protestation although death follows he is not 4. If a Clergy-man be in an Army and perswades the Souldiers to fight manfully and kill as many as they can this doth not make him irregular ny although he beats them if they will not fight but if he happens to kill an enemy himself then he is 5. If he gives a Souldier a Sword or a Gun by which he dispatches his enemies if he did it with a particular intention that he should slay or maim them he is irregular if onely with a general intention that he should overcome he is not This being somewhat a nice Case the Canonists take more then usual pains to prove it And from hence they defend their Priests and Iesuits in the Indies who carry the Cross before their Armies into the Field and encourage them to kill all they can and yet Navarr saith they are so far from being irregular that they are regularissimi as his word is 6. If a man to gain an Indulgence carries a faggot to burn an Heretick if it be with a design to take away his life he is irregular but if he be hanged first or dead before it be thrown into the fire then he is not 7. If a man in Orders helps a Chirurgeon in cutting off a man's Leg he is not irregular but if a man be justly condemned to have his Leg cut off if he then gives any assistence he is irregular because the one is moved out of Mercy and the other out of Justice 8. If the Bishops sit and condemn a man for Heresy and deliver him over to the Secular Power for Execution yet they free this from Irregularity or else the practice of the Inquisition were lost This seems a very difficult Case but the Canonists salve this by saying that the Inquisitours when they deliver them over to the Secular Power do pray that they may not be hurt either Wind or Lim as it appears by the Forms used in the Directorium Inquisitorum And if this be not the height of Hypocrisie let the World judge And therefore this part of the Canon-Law is not consistent with the Sincerity of the Reformation 2. This part of Canon-Law is inconsistent with the King's Power over Ecclesiastical Persons For it supposeth them liable to the penalty of a Law which he hath no cognisance of and derives no force or authority from him which tends to the diminution of the King's Prerogative Royal and therefore it is nulled by the Stat. 25 H. VIII c. 19. I do very much question whether this ever were any part of the Canon-Law of England notwithstanding the Pope's Decretals i. e. whether these Canons ever received confirmation by the Royal Authority either in Synodal Constitutions or elsewhere And it would be a very hard case if our Kings had not the same Privileges which are allow'd in Popish Countries viz. that nothing passes for Canon-Law within their Territories till it pass the examination of the King's Council and approbation by his Authority Thence in France nothing passes without the King's Pareatis nor in Spain or Flanders without the King of Spain's Placet no nor in the Kingdom of Naples without the Royal Exequatur It is well known that the 6. Book of Decretals was not allowed in France because of the quarrel between the King and Boniface VIII and that even the Council of Trent it self was not allowed by Philip II. till it had been strictly examined by the King's Council that nothing might be allowed which tended to the diminution of his Prerogative How then will men justifie the making that a part of the Canon-Law of England which was repugnant to the Rights of the Crown and deprives the King of the Power of taking advice of those of his Subjects whom he hath summon'd for that end 3. The Sanction of this Law is ceased which was Irregularity And some of our most Learned Iudges have declared that is taken away by the Reformation But in case any be of another opinion I shall urge them with this inconveniency viz. that the great Instrument of discovering the Plot falls under Irregularity by it For it is most certain by the Canon-Law that a man in Orders accusing others of Treason without making his due Protestation in Court is Irregular But if this be now thought unreasonable as it is in the person of an Accuser why should it not be so in the case of Iudges And if the Irregularity be taken away then the Sanction is gone and if the Sanction be taken off in a meer positive Law the force of the Law is gone too And therefore this Canon-Law which forbids Clergy-men being present in Capital Cases and giving Votes therein is wholly taken away by the Reformation And we do not find any mention of it for 80 years and more after the Reformation till about the
it would not amount to so much as a blind Manuscript If it be said that Brompton onely mentions Earls and Barons and Bishops were not then made Barons I answer that Baronies were brought into England by the Conquerour and therefore Brompton must speak improperly and consequently taking it onely for a Title of Honour he means no more then those who were the Great men of that time and so may take in the Bishops too of which more afterwards But there is one thing more in the Laws of H. I. which were onely a restoring K. Edward's Laws that implies that Bishops had then a Power of Judging in Cases Capital which is c. 58. Qui occiderit Episcopum sit in arbitrio Principis Episcoporum He that killed a Bishop was to be left to the Will of the King and the Bishops Which shews that they were to hear and examine the whole Evidence and to give Judgment according to it After the Saxon times the first Precedent produced is of the 33 Edw. I. concerning Nicolas Segrave who was summon'd to appear in Parlament and after his Offences were open'd the King advises onely with the Temporal Lords who declared such a man deserved to lose his Life But is he sure the Bishops were not present No he saith that doth not appear by the Record but it appears clearly they were not to meddle with it How so The King declares that he would have the Advice Comitum Baronum Magnatum aliorum de Consilio suo But is he sure they are not comprehended under Magnates and that there were no Clergy-men at that time of the King's Counsel What thinks he is William de Hamilton Dean of York who was made Lord Chancellour Ian. 16. 33 Edw. I. and this Parlament was held the next Sunday after S. Matthias which was the latter end of February And in the 35. year Ralph de Baldock Bishop of London was made Lord Chancellour and scarce any other but Church-men had that Office all his days The Bishop of Bath and Wells was Chancellour near twenty years of his Reign after him the Bishop of Ely after him the Dean of Chichester and then comes the Dean of York And among the Lords Treasurers of his time were the Archdeacon of Dorset the Abbot of Westminster two Bishops of Bath and Wells whereof one was Treasurer at this time These two I hope we may suppose to be of the King's Counsel in this business who we are certain were both Church-men And if they adjudged Nic. de Segrave worthy of death who so likely to deliver that Judgment as the Chancellour But suppose these were not there whom doth he mean by the Magnates then distinct from Earls and Barons who were of the House of Peers Mr. Selden will inform him if he needs it that there were no Dukes till the II. of Edw. III. nor the Title of Marquess till R. II. nor of Vicount till H. VI. And yet here were Magnates in Parlament who were neither Earls nor Barons and therefore we must in all reason understand the great Church-men who were not so nice of meddling with Criminal Causes in Parlament of the highest nature in the time of Edw. I. As appears by the great Cause so much agitated in Parlament 20 Edw. I. concerning the Earls of Hereford and Gloucester where this latter is charged with raising Arms without Commission and committing Murthers and horrible Devastations in the Lands belonging to the other and the King in Parlament appoints the Bishop of Ely with others to be a Committee for examination of this matter And when they had both submitted to the King's Pleasure we have these remarkable words in the Placita Parlamentaria Per Consilium Archiepiscoporum Episcoporum Comitum Baronum ceterorumque de Consilio suo existentium facere volens in premissis ut voluntas sua justa sit rationabilis prout decet eorumque assensum in premissis petiit Consilium Propter quod habito tractatu diligenti coram ipso Domino Rege Consilio suo super predictis tam ipsi Domino Regi quam ceteris Prelatis Magnatibus singulis de Consilio suo videtur quoad Comit. Gloucestr and then follows the Sentence which I confess did not extend to Life but to a Forfeiture of his Estate to the King However we see hereby that the Bishops were present at all the praeliminary Debates and the King asked their Advice so that they had their Votes in the Sentence whether it should extend to Life or not In the Reign of Edw. II. we meet with a remarkable Precedent in behalf of the Bishops Right which is of a Iudgment reversed made by the Lords without the Prelats viz. the Iudgment against the two Spencers 15 E. II. which Iudgment is said to be passed at Oxford that year but in the Parlament at York the same year it was nulled and made void before the King Lords and Commons and one of the Reasons given for it is because the Lords Spiritual who were Peers assented not to it This Precedent had been cited and allowed by Mr. Pryn in his Plea for the Lords and therefore it is to be wonder'd the Authour of the Letter takes no notice of it But the later Authour of the Discourse about the Bishops Peerage and Iurisdiction owns the truth of the thing saying that the two Iudgments aganst the two Spencers were reversed 15 Edw. II. for this Cause through the great favour and interest they then had at Court But then he thinks he hath taken off the force of this Precedent by saying that 1 Edw. III. c. 1. this Iudgment is declared good and therefore the said Reversal null and void and the two Spencers upon this affirmance of the Iudgment were executed This last Assertion every one knows to be a grievous mistake that hath but looked into our History for the Spencers were executed before Edw. III. came to the Crown the elder in October 19 Edw. II. the other the latter end of November 20 Edw. II. And whereas he insists upon the Affirmance of the Iudgment 1 Edw. III. he had done well to have look'd a little farther and then he would have found that Act also repealed 21 R. II. So that if the Act of 1 Ed. III. which affirms the first Judgment may seem to take off the force of this Precedent the repealing of that Act in the 21 R. II. restores it again and leaves it in its full force Especially if it be considered that the Act of 1 Ed. III. was not barely repealed but declar'd in Parlament to be unlawfull because Ed. II. was living and true King and imprison'd by his Subjects at the time of that very Parlament of 1 Ed. III. Thus far this Precedent is good But I will conceal nothing that may with any colour be objected against it And I cannot deny but what the Authour of the Letter objects against the Bishops constituting a Proctor to represent
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
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
and fundamental Policy of that is the same with England and he that believed the Subjects made the Three Estates there could never believe the King to be one of them here The next Authority is of King Charles I. in his Answer to the 19 Propositions Iune 2. 1642. wherein he tells the two Houses that neither one Estate should transact what is proper for two nor two what is proper for three To which I answer that the Penner of that Answer was so intent upon the main business viz. that the two Houses could doe nothing without the King that he did not go about to dispute this matter with them whether the King were one of the Three Estates or not but taking their supposition for granted he shews that they could have no Authority to act without the King's concurrence But the unwary Concessions in that Answer were found of dangerous consequence afterwards when the King's enemies framed the Political Catechism out of them which is lately reprinted no doubt for the good of the People In 2 H. IV. n. 32. he makes the House of Commons to declare to the King and Lords that the Three Estates of the Parlament are the King the Lords Spiritual and Temporal Whereas the truth of that matter is this A difference had happen'd in the House of Lords between the Earl of Rutland and Lord Fitz-Walter whereupon the House of Commons go up to the King and the Lords and having it seems an Eloquent Speaker who ventured upon dangerous Metaphors he makes bold with the Similitude of the Trinity because that would help him to perswade them to Vnity but if he had left the King out he might have been suspected to have set up an Independent Power in the Three Estates therefore lest he should lose his Similitude which goes a great way with an eloquent man he strains another point and draws the King into his Trinity And is such an expression to be mention'd in comparison with the express Declaration but the year before 1 H. IV. of both Houses concerning the Three Estates in Parlament Next to this Similitude that of Stephen Gardiner ought to be mention'd who compared Faith Hope and Charity concurring to Iustification to the concurrence of the Three Estates in Parlament i.e. the King and two Houses to the making of Laws But I wonder the Authour of the Letter who expresseth so much dislike of his Divinity would take his Iudgment in Politicks But this notion of making the King one of the Three Estates how valuable soever it be to some men is it seems onely to be met with in some grave ancient Similitudes But of what Authority these are against the constant sense of Parlaments so fully declared I leave any man of understanding to judge For the judgment of eminent Lawyers he quotes but one in King Iames his time viz. Finch in his Book of Law l. 2. ch 1. who doth indeed in the words quoted by him make the King Lords and Commons to be the Three Estates But I can hardly imagine how a learned Lawyer could fall into such a gross mistake unless the Modus tenendi Parlamentum should give the occasion to it which was accounted no blind MS. in those days but a very great Treasure as appears by Sir E. Coke who cites it on all occasions And very few Lawyers had the judgment in Antiquity which Mr. Selden had who first discovered the just Age and Value of that MS. This Authour indeed towards the conclusion of his Treatise makes the King the first of the Estates but then he makes Six Estates in Parlament or Degrees as he calls them and delivers this for good doctrine at the very end of his Treatise that if any one of all these be summon'd and do not appear yet with him it is notwithstanding a full Parlament nay he expresly saith the King may hold a Parlament without a House of Lords But there are so many other such Positions discover'd by others in that Treatise that I need to say no more of it And as to this point of the King 's being one of the Estates in Parlament Sir Ed. Coke who otherwise too much admired that Treatise declares against it in the very beginning of his Treatise of the Parlament This Court saith he consisteth of the King's Majesty sitting there as in his Royal Politick capacity and of the Three Estates of the Realm viz. of the Lords Spiritual Archbishops and Bishops the Lords Temporal and the Commons of the Realm And however the Authour of the Letter may slight Mr. Selden's Judgment in this matter yet these two may be sufficient to weigh down the Scales against any one Lawyer 's Authority to the contrary especially since they were never suspected I dare say for any partiality towards the Clergy 3. But the Authour of the Letter thinks to carry this point by meer strength of Reason We must therefore diligently consider the force of his Arguments 1. If Bishops were one of the Estates in Parlament Reason would they should vote by themselves separately from other Lords which would make another Estate But they do not onely not vote apart by themselves the whole Body of them together but that Body is divided and separated within it self one part from another If both Houses ever sate together as some imagine and as they do in a neighbour Kingdom this way of Reasoning will make but one Estate in Parlament all that time But to give a clear answer to this objection I distinguish two things in the Bishops their Spiritual Capacity by which they represent and their Civil Capacity as Barons in which they vote according to the Rules of the House For the manner of giving their Votes is a thing under the Regulation of the House and depends upon Custom but their Spiritual Capacity as Bishops in which they represent doth not And the Reason of their sitting together with other Lords is upon the account of their Writs of Summons which as Mr. Selden confesseth ever since the latter end of Edw. III. hath been for the Bishops cum ceteris Prelatis Magnatibus Proceribus colloquium habere tractatum and therefore they are bound to sit together in the same place with the Temporal Lords or else they cannot advise and confer together And I leave the Authour of the Letter to consider whether his Reason or the King 's Writ ought to take place 2. If the Bishops were a Third Estate they must have a Negative voice to all that passeth there But the Bishops are intermingled with the Temporal Lords in making up the Majority as a part of it Since I have evidently proved the Clergy to be one of the Three Estates in Parlament if he be sure that every Estate ought to have a Negative voice then I am sure that this Objection lies more upon him to answer then upon the Bishops But to prevent any new disputes I shall return this Answer to
it Since it is agreed on both sides that the Bishops do sit in the House as Temporal Barons and in that respect do make up the Majority of Votes in the House of Lords it could not but seem unreasonable that they who voted as Barons in the House should have a Negative voice in another capacity and by this means they lost their distinct Negative voice because by the King's Writs they were to sit and vote with the Temporal Lords Just as it is in the Diets of Germany Since the distribution of that Assembly of the Estates of the Empire into the several Chambers the Prelates vote according to their Ranks the Three Electors in the Electoral College the other Bishops that are Princes of the Empire in the Chamber of Princes and those who are not Princes with the Counts and Barons So that here the Votes of the Bishops are mingled with the rest without a distinct Negative voice and yet no one questions but the Bishops do represent a distinct Estate of the Empire 3. This is a disparagement to the House of Lords that another Estate must be joyned with them to make up their Negative No more then to the Princes of the Empire to have the Bishops joyned with them when the Imperial Cities vote by themselves But what disparagement is this for those to make up the Majority of the Votes of the Baronage who sit there as Barons by Tenure by a Right as ancient as Will. the Conquerour by the Authour 's own confession 4. If the Bishops make a Third Estate then a Parlament could not be held without them But a Parlament hath sate excluso Clero as that of Ed. I and that it may do so in point of Law appears by the Resolution of the Iudges in Keilway's Reports because the Bishops sit in Parlament by reason of their Baronies This is the great Objection to which I shall give a full Answer 1. It is dangerous arguing from extraordinary Cases to the excluding any one of the Estates of the Kingdom from being represented in Parlament because no one can tell where this way of arguing will stop If a Parlament may be good without one Estate why not without another And we have seen an House of Lords excluded as unnecessary upon such kind of arguments because they sit in their own Persons and represent none but themselves If we once depart from the ancient and legal Constitution of Parlaments there will be no end of Alterations Every new Modeller of Government hath something to offer that looks like Reason at least to those whose interest it is to carry it on And if no Precedents can be found then they appeal to a certain invisible thing called the Fundamental Contract of the Nation which being a thing no where to be found may signify what any one pleaseth Suppose one extraordinary case happens through the disorder of Times that the Clergy have been left out in a Parlament what doth this signify towards altering the legal Constitution and constant Course of Parlaments which from the beginning of Parlaments in this Nation have had the Estate of the Clergy represented in them as sufficiently appears by Mr. Petyt's learned Preface to his late Discourse of the ancient Right of the Commons The first after King Ethelbert's Conversion was Commune Concilium tam Cleri quà m Populi That under Ina was omnium Episcoporum Principum Procerum Comitum omnium Sapientum Seniorum Populorum totius Regni That under Edmund the Elder was Concilium magnum Episcoporum Abbatum Fidelium Procerum Populorum I might adde many more as that at Becanceld under King Withred A. D. 694. Episcopis c. Ducibus Satrapis in unum glomeratis At Clovesho under Kenulphus of Mercia at Calecyth at London at Kingston Nay not one can be found by me in the Saxon times wherein the Bishops are not expresly mention'd So that if there be such a thing to be found as the Fundamental Contract of the Nation about the Constitution of Parlaments I do not question but they have their share in it Insomuch that Sir H. Spelman makes it his description of the Wittena-Gemot that in it as Mr. Petyt observes Convenêre Regni Principes tam Episcopi quà m Magistratus liberique homines i.e. it was an Assembly of the Three Estates So that before there were any such things as Baronies they were an essential part of the English Parlament And must all this clear and undoubted evidence from the first mention of Parlaments be rejected because once upon a time a certain King called a certain Parlament wherein upon some Distast between the King and the Clergy the other Estates continued sitting without them 2. This single Instance about the Parlament under Ed. I. is much misunderstood as will appear by these considerations 1. That the Clergy excluded themselves and were not shut out by the Act of the King and the other Estates For upon the Bull of Pope Boniface VIII forbidding the Clergy giving any more Subsidies which was procured by Archbishop Winchelsee as our Historians relate a Parlament being called by Ed. I. at Saint Edmondsbury on purpose for Subsidies the Clergy refuse upon the Pope's prohibition till they had consulted the Court of Rome and go away every one to their own homes notwithstanding which the King proceeds with the other two Estates and gets Subsidies from the Laiety So that the exclusion of the Clergy came from their own voluntary Act when the King desired no such thing nor the other two Estates but were all extremely provoked at this withdrawing of the Clergy That this Parlament was called purposely for the Subsidy appears by the Writ still upon Record wherein the Archbishop is summon'd to appear ad ordinandum de quantitate modo subsidii memorati 2. Whereas it is insinuated that great matters were done and good Laws passed when the Clergy were excluded I find no such thing It is true the confirmation of Magna Charta by Ed. I. which was a great thing indeed is said in the Statute-Books to be done the same year viz. 25 Ed. I. But that it could not be done in that Parlament I thus prove That Parlament was called crast Animarum the King appoints another at London crast Hilarii where the difference still continuing he appoints a new Parlament on the day of S. Peter ad Vincula or Lammas-day wherein he was reconciled to the Archbishop and Clergy Then Fealty is sworn to his Son before his going into Flanders and the King excused himself as to the great Taxes and Subsidies on the account of his Wars While he was about Winchelsea a Remonstrance is sent to him of the Grievances of the Nation in the name of the Archbishops Bishops Earls Barons and the whole Commons of England wherein they complain of illegal Taxes and the breach of Magna Charta The King gives a dilatory answer and passes over into Flanders
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.