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
Et pur ce que a vis feust a les ditz Prelatz quil ne attenoit pas proprement a eux de conseiler du garde de la pees ne de chastiement des tielx malueis si alexent mesmes les Prelatz c. And because the Prelates were of opinion that it belonged not properly to them to give Counsel about keeping the Peace nor punishing such evils they went away by themselves and they returned no more Et les ditz Countes Barones autres Grantz per eux mesmes And the said Earls Barons and other great ones went by themselves and these return and by the mouth of the Lord Beaumont declare their opinions what was to be done Commissioners to be appointed in every County of the best men des plus grantz they to be Gardeins de mesme le Comte Guardians or Conservators of the County These Commissions afterwards brought into Parliament were read and approved by Nostre Sr. le Roi les Countes Barons autres Grantz our Lord the King the Earls Barons and other great ones no Bishops so much as to hear the Commissions read because they were to enquire into all Crimes as well Capital as other the Prelates must have no hand in it In the same Parliament Sir Iohn Grey and Sir Will de la Zouch had quarrelled in the Kings presence Sir Iohn had mis mein au cotel laid his hand upon his Sword they had been imprisoned and the business brought into Parliament Le Roi chargea de par la bouche le dit Mr. Geffrey le Scrope toutzles Countes Barons autre Grantz en les foies ligeances queulx ils devoient au Roi de lui conseiller ce quil devoit faire de si grand excesse fait en sa presance The King by the mouth of Sir Geffrey Scrope charged all the Earls Barons and other great ones in their Faith and Allegiance which they ow him to give him Counsel what he ought to do upon such an exorbitancy committed in his presence they go and consider of it acquit Zouch judge Grey to Prison here were no Bishops neither to Judge so much as of a Battery 25. E. 3. The proceedings and Judgment of death against Sir Will. de Thorp Chief Justice for Bribery were brought into Parliament which the King caused to be read Overtement devaut les Grantz de Parlement pur saver ent lour avys examine sur ceo chescun aprez autre si sembla a eux toutz c. To be read openly before the Grantz the great men of Parliament to have their advice upon it and being all asked one after another it seemed to them all that they were very just Et sur ceo il fut accorde par les Grantz de mesme le Parlement que si nul autre tiel cas aveigne que nostre Sr. Le Roi preigne lui des Grantz que lui plairra pur per lour bon a vis faire ceo que pleise a sa Roiale Seignurie Vpon this it was agreed by those Grantz those Great men of the Parliament that if any such other case should happen our Lord the King might take any one of those Grantz those Great men whom he should please to do by their good advice what he should think good It cannot be understood any Bishops were here under the name of Grantz and to be of the number of those whom the King should take to assist and advise him in such other Judgments of death for the time to come if occasion were which could be no employment for Bishops being to give Judgments of death 42. E. 3. Sir Iohn de Lee Steward of the Kings House charged with several misdemeanors the Record saith Et apres manger vindrent les Prelats Dues Countes Barons ascuns des Cōes illoeques feust fait venir Mr. Iohn de Lee c. And after they had eaten the Prelats Dukes Earls Barons and some of the Commons came and Sir John de Lee was fetcht thither c. The business was there heard and he was sent to prison Here the Prelats were present for the Crime was not Capital 50. E. 3. Several persons are accused even by the Commons for misdemeanors and the Bishops present at their Trials and Judgments as Richard Lyons who had been Farmer of the Customs the Lord Latimer who was the Kings Chamberlain for Oppression in several places in Britain and in England he was by the Bishops and Lords adjudged to be imprisoned and put to Fine and Ransom and then the Commons desired he might lose all his Offices and no longer be of the Kings Council which the King granted Yet after this 51. E. 3. at the request of the Commons themselves he was restored to all and declared innocent which I take notice of by the way At this Parlament of 50. William Ellis of Yarmouth as privy and accessary to the misdemeanors of Lyons Iohn Peach of London for getting a Monopoly of sweet Wines the Lord Iohn Nevil a Privy Counsellor for buying some debts due by the King at easie prizes to make advantage to himself At all these Trials the Bishops were present and no body says but they might 1. R. 2. William de Weston and Iohn de Gomenitz were tried for surrendring Towns and Castles in Flanders to the Kings Enemies they had put in their Answers Friday Nov. 22. Saturday they are brought to the Parlament and Sir Richard le Scrope Steward of the Kings House A commandement de Seigneurs avant-ditz By the command of the Lords aforesaid told them That the foresaid Lords and the Record tells you who those Lords were cest assavoir to wit the Duke of Lancaster the Earls of Cambridge March Arundel Warwick Stafford Suffolk Salisbury and Northumberland and the Lord Nevil Lord Clifford plusours autres Seigneurs Barons Bannerettes esteants au dit Parlement savoient assemblez avisez Many other Lords Barons and Bannerets being in the said Parliament had met and advised upon it from the time they had put in their Answers and found they were not satisfactory and then gave sentence saying that those Lords had adjudged them to death first Weston was called and this said to him and then Gomenitz Here was none of the Prelats named and it cannot be imagined they should be under the general expression autres Seignieurs Barons Bannerettes And other Lords Barons and Bannerets after the naming of two Barons for if there had been Bishops they would have been named before them Observe likewise that no Bishops were present from the time that the Prisoners Answers came in to have Vote and determine concerning any part of their Answer Pardon or whatever they had pleaded In the same Parliament and the very next thing upon the Roll is the Case of Alice Perrers accused for breach of an Ordinance made 50 E. 3. against Womens medling with State Affairs there the Record saith that she was Fait venir
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