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
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
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
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