concerning Breakers of Truce and a Proviso in it That this Act shall not extend to any Act or Ordinance made 2 H. 5. late indeed and not of right King of England But still he is acknowledged King of England de facto which goes a great way to authorize any thing done under their power Therefore 11 H. 7. c. 1. A Law is provided to indemnifie all persons that shall do service to the King in being whether he have right or no. As for what is said of the Bishops making their Common Proxy at the prayer of the House of Commons That their Proceedings might be valid and not questioned in future Parliaments by reason of their absence and that divers Judgements had been reversed because they were not present It is true it is so expressed in the Roll of that void Parliament which as it hath no authority nor validity in it self so it is very strange that if there had been ground for this apprehension there should remain nothing upon Record in all the Rolls of Parliament that ever any Judgement or any other act done in any Parliament had been so repealed We know it was once attempted 2 H. 5. by Thomas Montacute Earl of Salisbury as I told you in my former Letter who brought his Writ of Error to reverse the Judgement given against his Father 2 H. 4. because the Bishops as he alledges there being Peers of Parliament were not parties to that Judgement but it was declared to be no Error and his Petition was rejected And we know that in Edward the First 's time there was a Parliament held at St. Edmonds-bury Clero excluso not a Prelate admitted to it And in Henry the Eighth's time all the Judges of England declared it for Law That the King might hold a Parliament with his Lords Temporal and Commons altogether without the Lords Spiritual Tout sans les Spirituels Seigneurs it is in Keilwayes Reports in Dr. Standish's Case Therefore there is no reason to think that any Judgements were repealed upon the Bishops being absent seeing their presence is not of necessity for the constituting and sitting of a Parliament And especially not for the Judgements which we treat of in Capital Cases because by what appears upon Record and by all the Laws Canon Common and Statute Law they never were present I always except that Unparliamentary Extravagant Proceeding and Judgement of Henry the Sixth in the twenty eighth of his Reign upon William de la Pool Our Asserter tells us of some Judgements reversed 15 E. 2. particularly in the Case of the Spencers but he doth not tell us where he finds it nor I believe doth he know himself having only taken it up some where upon trust as he doth other things But in this 21 R. 2. upon the Petition of the Earl of Gloucester it appears by the Record of the proceedings against the two Spencers Father and Son in that 15 E. 2. which are there repeated at large that there was nothing Capital in their Case neither in the Charge nor in the Judgement so as this signifies nothing to the matter in question which is all can be said to it And as little shall I say to his witty allusion of bringing me to a sight of my self as Alexander did his Horse to the Sun that he might not kick only this I might say if I were as foul-mouthed as he that indeed such a scoffing injurious Scribbler were fitter to be answered with a kick than with fair reasoning by way of Argument Next we come to the 1 H. 4. Sir William Rickhill's Case where I think I should do well only to transcribe what he hath written to shew it needs no answer but that I should waste too much Ink and Paper I represented in my Letter to you that Rickill being sent for into Parliament no formal charge being against him to give an account only by what order he had taken the Duke of Gloucester's Confession at Calais which he did the Bishops present but when they came to consider what was to be done upon it then only the Lords Temporal were asked their opinion which I alledge to shew that the Bishops there were not advised with because it might be preparatory to a further proceeding by way of Tryal And this our Asserter says is to serve an Hypothesis and learnedly gives it us in Greek and bids the Reader judge and so do I. Then for the Tryal of Hall who was one of the murtherers of the Duke of Gloucester he hath the condescension to acknowledge it probable that the Bishops were not there but then saith that they left it to the Temporal Lords without any Impeachment to their right it being secured before by the security of a confessed Act of Parliament 11 R. 2. it is their Protestation he harps at And if I had as much Greek as he I would say it in Greek that he now doth serve an Hypothesis or in good English beg the Question for that is his meaning of serving an Hypothesis for the Right which the Bishops there saved he will have to be and hath forty times repeated it to judge Capitally when they please but I have clearly shewed it was not of their assisting in those Judgements as he still will have it to be but other Judgements and proceedings in Parliament where in truth they had a right to assist Then follows the Case of William Sautre 2 H. 4. where he is pleased to give me a wipe for stiling him the Protomartyr of England and out of his great reading informs that St. Alban lived some hundreds of years before him but he must give me leave to inform him that the common acceptation of Martyrs amongst us Protestants now is of such Orthodox persons as have suffered for the truth whom the Papists have put to death for Hereticks and this man was the first of them in England He hath some other notable Remarks one is that whereas I said that the Bishops and Clergy of those times were the chief Promoters of bringing him to his end which I meant of their declaring him an Heretick and then turning him over to the Secular Power he observes upon it That then they acted in a Capital Case which he saith makes against me And that if it was the Lords Temporal who signed the Warrant for his execution that the Bishops had no hand in it and so have escaped my lash but who were his Judges nondum constat I am sure it doth not constare to me to what purpose he saith all this which I do not find to make either for him or against me No more than what he saith of the Case of the Earls of Kent Huntington and Salisbury 2 H. 4. who he grants were declared and adjudged Traytors by the Temporal Lords and no Bishops present and then saith he will give a Parallel Case it is of the Earl of Cambridge and the Lord Scroope 3 H. 5. where the Bishops were present and
demand for I do very well know what judgments the Commons did then not intend which were all Judgments in Capital Cases for it is most clear by all Records of Parliament and all the vestigia that remain with us of the usage and proceedings of antient Parliaments that there is not the least colour for so much as a doubt or a suspition that the Prelates or Lords Spiritual could have any part in those Judgments And we know on the other side what judgments they had their shares in which were all Judgments in such Civil Causes as came into the Parliament and in Criminal Causes that were not Capital and the Commons then could intend none but these which was enough to satisfie me that this Petition of theirs at that time was no wayes contrary or repugnant to what I maintained And by the way methinks it is worth observation the reason they give of their desire that the Bishops would make a Proctor not so much for that that their presence there was of so absolute necessity as that what was done without them was in it self null and void but to put an end to all controversies which shews the Prelates had expressed some dissatisfaction and had gotten some things which had been done in their absence to be undone and Repealed which considering their power at that time and how all the Laity was in awe of them would have a great effect upon mens minds and make them do what else they would not have done and perhaps strain a point a little to satisfie them And still it shews that notwithstanding their absence they were good and valid till the same power that had made them did Repeal them And to shew what an ascendant the Prelates had over King and Parliament and the whole Kingdom at that time see what they did but the year before 20 R. 2. They declared unto the King in open Parliament That they were sworn to the Pope and See of Rome and if any thing were in Parliament attempted in restraint of the same they would in no wise assent thereunto but would utterly withstand the same and can we then wonder if the Commons were not very loth to displease them and willing to comply with them much rather than have a controversie with them and perhaps be fain at last to undo what they had done His fourth Postulatum is upon the Protestation of Viscount Beaumont in the name of the Lords Spiritual and Temporal in the Case of William de Pole Duke of Suffolk which hath been touched upon before wherein he now saith I have left out the most material words but what they are he expresseth not nor can I imagine what he means As I have already said I have been very particular in setting down every circumstance of the whole proceeding acknowledged the actings of the Prelates in it thoroughout as far forth as the Temporal Lords and then I say how upon the Kings giving Judgment upon the Duke that Viscount in the name of the Lords Spiritual and Temporal made that Protestation That it should not be nor turn in prejudice nor derogation of them their heirs ne of their Successors in time to come I think this was sufficient to shew that I did acknowledg all that could be pretended to for the Bishops Judicature in that business and what this Assertor would have more and wherein I have failed I can not imagine only I see he is a quick-sighted Gentleman and can see further into a Milstone than another man and spy a fault which another cannot see He hath a fifth Postulatum to whichI can say nothing for I understand not what he would be at he speaks of my accurateness in making a distinction between the Matter andForm of a Law and then saith He observes three things though he expresseth but two which he saith he shall have occasion to make use of hereafter when he comes to speak of the particular Cases and I must refer my Answer to what I shall there find when I believe I shall make it appear that he makes no great use of them nor of any other Argument that he brings And now I come to the particular Cases the first is 4 E. 3. of Roger Mortimer Earl of March being then condemned for Treason Here our Asserter saith That by 28 E 3. upon his Cousin Roger of Wigmore's petitioning to have this Judgment and Attainder reversed I acknowledg it to be an Attainder If I say truth say nothing to the purpose This is gentile language and which discovers my Gentlemans ignorance as well as his rudeness his ignorance in conceiving an Attainder to be only by a Law by an Act of Parliament in which Bishops may be present and if they were not so but did withdraw it was their own voluntary act and no diminution to their Rights I have already upon his second Postulatum handled this point so fully and made I think both his errour and the truth so clear as I need not say any thing more to it here Then it is a pretty Argument he brings against my saying That the Record being Les queur Counts Barons Piers les Articles per eur eramine rebindrent c. Which Earls Barons and Peers having examined the Articles returned c. It must be inferred that the Bishops cannot be comprehended under the word Peers since the Barons are named first To this his Answer is Well but I find the contrary Peers many times put before Barons particularly in Mr. Selden's Baronage p. 12. then he cites a Record of the Judgment against John Mautravers where it is said For which the said Peers of the Land and Judges of Parliament adjudge and award c. Doth this at all contradict my quotation of the Record in Roger of Mortimers Case but that it is as I say That the general word Peers is there put after the Barons and being so cannot comprehend Bishops because in some other Records that word is put before He talks of drawing arguments illogically I am sure this is so I would put him a Case he brings his Action of Slander against one for that at such a time in such a place he had spoken ill of him and said he was a lying Knave and other words that will bear an Action and proves it by witness That man proves by other Witnesses That at another time and in another place he had spoken very well of him and said He was a fine Gentleman I ask now if he would be satisfied with this and not stand upon it that he had proved his Plaint and expects a Verdict and Judgment upon it So may I say that my Precedent stands good and proves what I alledge it for and what he saith is not to the purpose But I will go further and make it appear that even his Precedents that he alledges make all for me and against himself and though he charges me with not being so good as my word saying That I
tumultuary way without any formal Tryal the business being brought into Parliament were by the Temporal Lords in a Judicial way of proceeding adjudged to be Traytors and their fact to be Treason But then he adds that I likewise make the Case of the Earl of Cambridge 3 H. 5. like to these which is not true being of a clean different nature an Act of Parliament which had its rise from a request of the House of Commons who brought it up to the Lords here I say the Bishops were and might be present That which he saith to the Case of Sir John Oldcastle 5 H. 5. is so threadbare with rubbing it over and over again and hath been so often said and so often answered as that it would too much trespass upon your patience Sir to trouble you with any one word of it more I think I have made it exceeding clear where under the general term of Lords of Parliament Bishops may be understood to be comprehended and where not Those particular Cases which he now brings to prove his Assertion are point blank against him that is the Case of Mautravers 4 E. 3. and of Gomenitz and Weston 1 R. 2. in that of Gomenitz many particular Lords are named several Earls and Barons and then a general clause Et plusieurs autres Seigneurs Barons Bannerettes Is it possible to think that Bishops come in that fag end Indeed I do observe one thing in this Case of Sautre which is not in any of the other I cannot say that I lay any great stress upon it yet something it is that the Record expresses that the Bishops had done with him declaring him a Heretick and then Relinquentes eum ex nunc Iudicio seculari Leaving him from henceforward to the Secular Judgement as if they should say They would have no more to do with him And as convincingly he argues in the Case of Sir John Mortimer 2 H. 6. He confesses with me that the Indictment found against him at the Guild hall was brought into Parliament before the Duke of Gloucester and the Lords Temporal Fuit liberatum It was there delivered to them and then he cites a Record as he makes it De advisamento dictorum Dominorum auctoritate istius Parliamenti ordinatum est statutum quod ipse usque ad Turrim ducatur By the advice of the said Lords it was ordained and enacted by authority of the said Parliament and by the advice of the said Lords Temporal that he should be led to the Tower These are his words and how he hath mangled and falsely rendred and expounded the Record you will judge by the words of the Record it self which I will here faithfully set down It is this Numb 18. Memorand quod 26. die Februarii anno praesenti de advisamento Dominorum Temporalium ac ad Supplicationem Communitatis Regni Angliae in praesenti Parliamento existentiam redditum fuit quoddam Iudicium versus Iohan. de Mortimer de Bishops Natfield in Comitatu Nertford Chevalier cujus quidem Iudicii recordum patet in Schedula per Iohannem Hals unum Iusticiariorum Domini Regis de banco edita praesenti Rotulo consuta Memor That the 26th of February of this present year by the advice of the Lords Temporal and at the Petition of the Commons in this present Parliament a certain Judgement was given upon Sir John Mortimer of Bishops-Hatfield in the County of Hertford Knight the Record of which Judgement appears in a Schedule drawn by John Hals one of the Justices of the Kings-bench and fastened to this Roll. Then follows the Schedule it self where is set down what past at Guild-hall upon the sinding of the Indictment and how that Indictment was brought into the Parliament Coram duce Bedfordiae ac aliis Dominis Temporalibus Before the Duke of Bedford and the other Lords Temporal and how Sir John Mortimer was brought before them by the Lieutenant of the Tower and how the Commons desired the Indictment might be affirmed and that Judgement might be given upon him Then follows Super hoc viso plenius intellecto Indictamento per dictum Ducem de advisamento dictorum Dominorum Temporalium ac ad requisitionem totius Communitatis authoritate istius Parliamenti ordinatum est statutum quod Indictamentum affirmetur praedictus Iohannes Mortimer de proditionibus praedictis sit convictus ad Turrim ducatur usque ad furcas de Tyburn trahatur super eas suspendatur c. Hereupon the Indictment being viewed and well understood it was by the foresaid Duke by the advice of the said Lords Temporal and at the request of all the Commons ordained and decreed that the Indictment should be affirmed and the foresaid John Mortimer stand convicted of his foresaid Treasons should be carried to the Tower then drawn to the Gallows at Tyburn and there hanged c. This was a Judgement of the House of Peers in their Judicial capacity upon an Impeachment and at the pursuit of the House of Commons who prosecuted and pressed the evidence before the Lords the words of the Record are Tota Communitas praefatum Indictamentum illud in omnibus fuxta vim formam effectum efusoem pro vero fideli Indictamento affirmat ac praefatis Duci ac aliis Dominis Temporalibus supplicat eadem Communitas quatenus iidem Dux Domini Indictamentum praedictum pro vero fideli Indictamento affirmare vellent quod executio dicti Iohannis Mortimer ut de proditionibus feloniis convicti fiat The whole House of Commons do affirm the foresaid Indictment to be in all points for the force form and effect thereof a true and legal Indictment and that execution of the said John Mortimer as of one convicted of the said Treasons and Felonies may follow This you see was a formal Tryal in all points and a Judgement upon it and so it is entred upon the Roll such a day 26 Februarii de advisamento Dominorum Temporalium ad Supplicationem Communitatis redditum fuit quoddam Iudicium versus Iohannem de Mortimer c. And our Asserter here tells us a tale of a Tub that the matter should be decreed after by Authority of Parliament of which the Bishops are an essential part and therefore were present which is an excellent Chimaeâ—…a as if the Advisamentum Dominorum Temporalium Authoritas Parliamenti were two distinct things and the work of several persons some actors in the one who were not so in the other and that the advice of the Lords Temporal had produced some other things which had a greater authority and that the Bishops had joyned in that which shews his ignorance in the course of Parliaments for the Judgement which is given Judicially in the House of Lords hath upon it the stamp and the authority of the whole Parliament and that Advisamentum of the Lords Temporal here was the Judgement as is the advice and assent of the Lords Spiritual
properly they had no Right thereto That all Judgments belonged to the King and Lords is only an Affirmation of the Arch-bishop but binds not the Commons See Posthu Cottoni p. 350. For I think it very plain that anciently the Commons as well as the Lords had their share in Judicature I shall touch some Records which the Reader may consult at leisure Rot. claus 12. E. 2. m. 5. in the Case of Hugh Audley and his Wife Margaret the Relict of Pierce Gaveston they petition'd to be restored to certain Lands given to Pierce A nostre Signure le Roy son Consâ—…l Prelatez Countes Barons del ' sa terre the Petition was brought into full Parliament and debated habito diligeâ—…i tractatu in pleno Parliamento tam per Prâ—…latos quam per Comites Barones totam Communitatem Regni Concordaâ—… Consideratum 't was ordained considered and agreed per Praelatos Comites Barones totâ—…m Communitatem Regni that all the King's Grants to the said Pierce Peter and his Wife should be revoked and the Deeds cancelled Et quod istud Iudicrum intretur in Rot. Parliament in Cancellariâ—… exinde â—…iur in scaccarium ad utrumque Bancum to be enrolled Nothing can be plainer than that this was a Judgment and no Act of Parliament and that not concerning Blood the Prelates concurred and that probably both Houses sate and voted together as one Body I shall add one Record more in a Capital Case and that is entred Rot. Patent 3 E. 3. pars prima me 33. The Case of Adam Orleton or Tarlton Bishop of Hereford and after of Worcester This Bishop was about 17 E. 2. convicted of Treason before Sir Henry Staunton and other Justices In 1 E. 3. he petitions that the Process and Record in which there was Error might be brought into Parliament and examined and he restored to his Estate Praetextu hujus petitionis mandatum fuit by a Writ Galfrido de Scroop who had the Record quod venire faceret recordum processum praedicta quae sunt in custodiâ suâ in pleuo Parliamenio where after he had assigned several Errors the Record concludes Et quia videtur Dom. Regi praefatis comitibus Proceribus Concilio Dom. Regis toti Communitati Regni convocatis ad Parliamentum quod praedictum recordum processus omnino erronea sunt rationibus praedictis concessum est quod eadem recorda processus adnullentur c. This was clearly a Judgment in Parliament in which the Commons were certainly present and that it was not an Act appears plainly for the Record was certified and Errors assigned and 't is worth observation that he did not assign for Error that he was before convicted by a common Jury but admitted it legal Next I think the Prelates were not Parties to the Reversal of the Judgment given in 17 E. 2. for it is coram Praefatis comitibus Proceribus c. though they were at the recital of the Errors neither is it much material for they might very well be Parties to the Examination of a Judgment in a Capital Case for whether they concurred either in affirming or reversing the Record that made them no Parties to the first Judgment but is only a Concurrence in Opinion that what before had been done by others was well or ill done by them I could cite many other Records where the Commons were present in Parliamentary Judgments but let these suffice But this may seem too large a Digression since I was upon the consideration of 5 E. 3. in which I say Secondly It doth not appear that this was an Advice taken up by themselves for the words are not fust avise par eux or ils furent d'avis it was thought fit by themselves but are et pour ceo que avis feust a eux that is because Advice was given them by others to go away they absented themselves probably in Obedience to those Laws which forbad their Presence And they returned no more saith the Author of the Letter p. 8. and the Advice was given by the Lords Temporal only No saith the Grand Questionist p. 102. The Bishops and Proctors of the Clergy went only into another Room to consult therein which was usual in those times I do not at all doubt but the Members of Parliament have several Rooms to retire to upon occasion but that in this Case they did go apart to consult and give Advice in this Business seems very unreasonable for any one to believe because they had but immediately before declared that the Consideration of such matters properly belonged not to them to meddle with and accordingly withdrew certainly no considerate Man will think they went to consult about what they in the same Breath said belonged not to them Besides we see the return of the Lords and Commons without any mention of the Bishops and the Advice given by them by the mouth of Sir Henry Beamont their Speaker which Advice was afterwards put into a Law and then the Prelates might be present tho they were not at giving the Advice For the Record saith It was enacted by the King Bishops Lords and Commons which then became a Law to which the Prelates might justly give their Consent in their Legislative Capacity whatever it concerned Where note that Sir Robert Cotton translates Grands Commons I think with good reason though carp't at by Mr. Prin in the Margine for we heard nothing of them before and soon after we find them named and undoubtedly concerned in all Proceedings before See Matth. Paris p. 55. Magnates Grands comprehends Counts Barons Knights or any other considerable Person together with many others which would be endless to quote Having before shewed that what our Author calls negative Precedents were not simply so and that the Author of the Letter had great reason to believe them absent where they were not named and where the Laws forbad their Presence especially having on his side the Authorities of 4 E. 3. Numb 1. of 1 H. 4. Numb 80. where the Temporal Lords assume unto themselves the power of judging Peers which Opinion is also made good by the late Votes of the Lords in Parliament May 15 1679. By the Case of Dr. Leighton in the Star-Chamber 6 Car. 1. It is evident that the Prelates were not look'd upon in the same sort that the Temporal Peers were for the Information against him was for writing a scandalous Book against the King Queen Peers and Prelates where Peers and Prelates are contra-distinguished and not taken synonymously as may be gathered by the Sentence and being another Body were judged as Peers to one another not to the Temporal Lords I come now to the Consideration of what he saith pag. 90. he there alledges that many of those the Author of the Letter calls Negative Precedents if they prove any thing prove too much for some of them admit they were not present
would run through all the Tryals upon Record in that I have omitted four in that 4 E. 3. I shall give you an account of those Tryals in that Parliament and you will see that I could have no sinister end in not mentioning them and that all of them proved and confirmed my assertion that the Bishops had no part in any of them I expressed as much as was necessary to prove they were not present at Roger de Mortimers Earl of March who was the chief and the principal of those Delinquents and whose Tryal was the leading Case to all the rest I give you the words of the Record how after the exhibiting of the Articles against him the King bespake the Judges the Peers who were to judge him and charged them in these words Dont le dit Sr. le Roy vous charge Counts Barons les Piers de son Royalme que de st come cest choses touchent principalement a lui a vous a tout le people c. Therefore our said Lord the King charges you the Earls Barons Peers of his Realm that as these things chiefly concern him and you and all the people c. You give righteous Judgment I ask now if this be not as clear as the Sun at noon-day that by the words of this Record I charge you the Earls Barons Peers of the Realm which is the same as if he had said I charge you Earls and Barons who are the Peers of the Realm can be no otherwise understood but that only the Earls and Barons are the Peers that are there charged and none else to give this righteous Judgment The Earls and Barons are the two Species particularly enumerated and Peers is the genus which comprehends both And the same persons whom the King had so charged are they who tryed and gave Judgement upon the Earl of March as the Record shews it saying Les queux Countes Barons Piers c. did judge him guilty of those Treasons And the very same persons did give Judgement immediately in that very Parliament upon the rest viz. Sir Simon de Bereford John Mautravers Boeges de Bayons and the rest Therefore my not mentioning their Tryals which our Asserter lays to my charge as a Crime and a not doing what I had engaged my self to do which was to run through all the Tryals in those Parliament Rolls could not be designedly done with an intention to conceal any thing which made against me as it is maliciously and very falsely interpreted for they all made for me and it was a passing over sub silentio of so many Precedents that confirmed and fortified what I asserted And should you Sir ask me why I omitted the mentioning of them I profess I could give you no good account of it but that it was a meer inadvertency When the question first arose about the Judicature of the Bishops I took some short notes of some Copies of Records that I had and then seeing that all those particular Tryals in 4 E. 3. hung all upon one string and were managed by the same persons it seems I thought it then sufficient to set down the proceedings in the first which was the rule and foundation of the proceedings in the rest and afterwards when I came upon your request to take a little more pains in making my enquiry into the usage of ancient Parliaments I was afterwards more exact in it but when I wrote my Letter to you I made use of my notes which I had taken of the first Parliament and particularly of 4 E. 3. where these other Tryals as I say were left out But I shall now give you an account what they are and you will see it was not for my advantage to conceal them nor would it have been for our Asserters advantage if they had been mentioned but he quarrels at every thing Only give me leave before I come to that to set it down as a general Rule and a very true one That wherever there is an enumeration of particulars of several ranks and degrees which goes downwards beginning with the higher and ending with a lower and in the close a general expression is of Others to be added to and joined with them those others must not be of a higher rank and a superiour degree to that particular which is last mentioned but either of the same degree or of a lower This is a judged Case even in the business of Bishops in Cokes second Report in the Arch-bishop of Canterbury's Case p. 46. Ad este adjuge que Evesques ne sont include deins le Statute 13 Eliz. c. 10. It hath been adjudged that Bishops are not included in the Statute 13 Eliz. c. 10. which saith That Colledges Deans and Chapters Parsons Vicars and then concludes and Others having Spiritual Promotions that these last words cannot include Bishops for reasons before given which reasons are upon the Statute of 31 H. 8. concerning the dissolution of Abbies which mentioning their coming into the Kings hand by Renouncing Relinquishing Forfeiture Giving up c. and concludes with general words Or any other means this cannot be understood of an Act of Parliament which is a higher way of conveyance than any of those specified So Sir Edward Coke upon the Statute of Westminster the second c. 41. which saith Si Abbates Priores Custodes Hospitalium aliarum domorum Religiosarum c. hath this Comment Seeing this Act begins with Abbots c. and concludeth with other Religious Houses Bishops are not comprehended within this Act for they are superiour to Abbots c. and these words Other Religious Houses shall extend to Houses inferiour to them that were mentioned before So I conclude that the Record saying Earls and Barons and Peers c. the general words And Peers can comprehend none but some other Peers equal only or inferiour to Barons and not any above them as I am sure Bishops will say they are And I will tell you when those of a higher degree may and must be comprehended under a general expression that is when the Enumeration or Climax for so I may call it goes upwards beginning with a lower Rank and rising higher in those which they particularize As if it be said Barons Earls and all other Peers here Marquesses and Dukes will be comprehended and Bishops also would be if they were Peers which they are not but still I say if the enumeration descend none higher than the last mentioned can be understood to be meant by any general clause I think you are satisfied that the E. of March was Tryed and Judged only by the Temporal Lords to whom the K. had committed his Tryal and charged them only with it Sir Simon de Bereford was the next who was Tryed and by the same Persons the Record is Item en mesme le Parlement si chargea nostre Sur le Roy les ditz Countes Barons Piers a donner droit loyal Iugement come affiert
a Simon de Bereford Chebalier c. Item in the same Parliament our Lord the King charged the said Earls Barons and Peers to give a right and loyal Iudgement upon Sir Simon de Bereford c. It follows afterwards Si agarderent aviggerent les ditz Countes Barons Piers come Iuges du Parlement per assent du Roy que le dit Simon come treitre fast treisne pendu So the said Earls Barons and Peers as Iudges of Parliament did with the Kings assent award and adjudge Sir Simon de Bereford to be Drawn and Hanged You see the same persons were his Judges who had before Tryed and Condemned the Earl of March yet I must observe a little difference in the expressions The King in giving the charge to the Peers in the Earls Case the words of the Record are The King charges you Earls Barons Les Piers de son Royalme The Peers of his Realm which must be construed Who are the Peers or Being the Peers of his Realm And then their Judgement comes to be set down the Record saith Les queux Countes Barons Piers c. The which Earls Barons and Peers did so and so with a Conjunction Copulative and before Peers as if there were some other Peers after the Earls and Barons which if there were we are sure it could not be the Bishops which is all that we are to enquire into We know that heretofore the Kings of England did sometimes send Writs of Summons to other persons that were not Peers of the Realm but persons of Quality as Bannerets and some Officers as the Warden of the Cinque-Ports whom I find commonly to be the last set down in the List of those who were summoned And those persons so summoned came and attended the Parliament and had Voice and Vote with the Peers as Members of their House and as Peers pro tempore and might be comprized under the general name of Peers and being Lay-men might act as Peers in all Tryals and in all other Judgements of Parliament both Civil and Criminal even in Capital Causes but these could in no sort be esteemed to be Peers of the Realm though they might pass in a large acceptation and a vulgar construction of the expression be termed Peers in Parliament These now might be summoned to a Parliament or two or three Parliaments one after another as pleased the King and then be summoned no more if the King was otherwise minded and they could not pretend to have wrong done them their former Summons having been Ex mera gratia without any right of theirs to them So then I may conclude that it is all one whether you will take it as it is expressed in the Kings charge then The Earls Barons Peers of the Realm c. or as it is when they come to give Judgement and as it is likewise expressed in the Case of Sir Simon de Bereford The said Earls Barons and Peers c. and whether that Conjunction and before the word Peers be of any signification or no to mark out other Peers subsequent to the Barons is not material to what our Asserter would have to be understood of my leaving out any thing for it had all made for me and against him making it clear enough that the Bishops had no part in those Judgements The next Precedent is the Judgement of Iohn Mautravers the Record says Trestouz les Piers Countes Barons assemblez a ceste Parlement a Westminster 〈◊〉 on t examine estroitement sur ce sont assentuz accordez que John Mautravers 〈◊〉 est culpable c. All the Peers Earls and Barons assembled in this Parliament at Westminster have strictly examined and thereupon have agreed and accorded that John Mautravers is guilty c. I appeal now to any man that hath but common sense if it can be imagined that the Prelates or Bishops can be thought to be meant by that expression of All the Peers and if it be not the same in signification as when the King charged them to give righteous Judgement upon the Earl of March saying Si vous charge Countes Barons les Piers de mon Roialme c. And so I charge you Earls Barons the Peers of my Realm c. There the several ranks of Peers are first named and the general word which denotes their Quality common to both which makes them competent Judges of those matters that is their being Peers is put last And here in this Record concerning Mauâ—…avers it is put first Which comes all to one And it is further observable that at the time of that Parliament there were no Temporal Lords before Earls neither Dukes nor Marquesses So if any others were to be understood to be comprised under that General Title of Peers it could be only the Lords Spiritual which is a thing very ridiculous to believe Can it be thought nay can our Asserter himself think I trow not that when the other particular ranks and degrees of the Peerage are expressed and set down nominatim by name as one may say by Tale and by Token Earls and Barons that I say at the same time and to be joyned with them in the same action another rank of men viz. Bishops must pass under a General Title and that put in the first place as if Peerage were an Apellativum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to them or a Genus Imperfectum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the two Species the Lords Spiritual and Lords Temporal which Genus the Logicians define to be Quod speciebus suis non communicatur ex aequo sed alteri magis alteri minus uni speciei immediatè propriè alteri mediatè in ordine ad primariam And that so the Lords Spiritual should still be principally and chiefly meant by the General Name of Peers they Primariò and the Temporal Lords Secundarió Those Logical expressions I know our Asserter understands well who blames others for bringing Illogical arguments therefore I put this to him But that they are not at all Peers of the Realm to speak properly and truly and as they are in the eye of the Law though they have sometimes been stiled so both by themselves and others I have in my former Letter I think made it clear and all that our Asserter saith to the contrary hath not made me change my opinion and I shall say more to it when I come in course to answer what is there said by him In the mean time I shall only add this which I lay for a ground that I do verily believe no instance can be given of an enumeration of some particulars in an Universal Collective Proposition and to leave out that particular which is first in Rank and ought to be first named if any at all be named and to have that to be tacitely implied under the General Term the Signum Collectivum As in this Proposition All the Peers Earls and Baâ—…ons gave such a Iudgement This
I say that if the Bishops did joyn in the Judgement it would have been so expressed and they would have been first named otherwise it is like an Et caetera in the beginning of an Enumeration which in the close and after an enumeration of some particulars may intimate a joyning of some others that are not particularly specified and named but is never put in the beginning And I think I may with confidence affirm That there is no example in all the Rolls of Parliament that any of the Benches of the House of Lords hath been particularly mentioned in any business and if the Prelates did likewise act in it that they were not also particularly mentioned and always in the first place nay before any other even before the Prince of Wales and the Princes of the Blood as may be seen in the Roll 28 E. 5. upon Roger of Wygmore's Petition the Record saith Le Roy â—…st venir devant lui les Prelatz Edward son fitz eisne Prince de Gales Henri Duc de Lancastre Countes Barons Piers le Iugement c. The King caused to be brought before him and the Prelates and Edward Prince of Wales his eldest Son and Henry Duke of Lancaster and the Earls Barons and Peers the Iudgement c. Now is it probable or can it be believed that the Decorum concerning the Bishops being in those times still so punctually observed and that respect always given to the Prelacy whenever they were concerned to mention them particularly and in their due place that they would in that Parliament of E. 3. be content to be comprized under a general notion and pass as a man may say Incognito when others have more respect shewed them to have their names recorded I do not think that the Clerk of the Parliament durst have been guilty of so great a disrespect to them Therefore we may well conclude that in this Judgement upon Mautravers the Prelates were not at all signified under the general word of Trestouz les Piers Countes Barons All the Peers Earls and Barons nor were they at all present or had any part in that Tryal no more than in that of Roger de Mortimer Earl of March The other persons judged that Parliament had all the same Judges and passed under the same Judicature The Record for Boeges de Bayons and John Deuerell is Item tieu Iugement est assentiez accorde que soit fait de Boeges de Bayons John Deuerell pur la cause susâ—…ite c. Item The same Judgement was agreed to and accorded to be given upon Boeges de Bayons and John Deuerell for the cause aforesaid c. The very same words are likewise for the Judgements upon Thomas de Gurney and William de Ocle And to prove it more authentically that they were all Ejusdem farinae of one and the same nature I will give you the Kings Writ that declares them to be so to the Lord Treasurer and Barons of the Exchequer commanding them so to inroll those Judgements and with them a kind of Protestation made by those Peers stiled a Concordia ne trahatur in Consequentiam An Agreement that it should not be drawn into Consequence That is Not made a Precedent to oblige and compel them to judge hereafter any but their Peers because of the Judgement they had then given against Sir Simon de Bereford John Mautravers and the rest who were Commoners For as for those who were their Peers they could not avoid the Trying of them particularly in Parliament where only a Peer of the Realm can be tryed in Parliament time which hath ever been the priviledge of the Peers and from which I shall in due time and place before I make an end draw I think an Argument not to be answered that the Bishops are not Peers for if they be Peers and questioned in Parliament time they must be Tryed in Parliament But 4 E. 3. Stephen Bishop of London having been complained of in Parliament for saying That if Edward the Second were still alive as he was informed that he was and in Corfe-Castle he would assist him with all his force to re-establish him in his Throne was by the Parliament referred for his Tryal to the Kings Counsel and by them to the Kings-Bench where putting himself super Patriam to be Tryed as all Commoners do a Jury was empannelled and the Tryal went on there in the Kings-Bench till at last he got the Kings Pardon This is Term. Pasc. 4 E. 3. rot 53. Now had the Bishop been truly and really a Peer of the Realm neither could the House of Peers have avoided the Trying of him themselves nor would he have submitted to a Tryal elsewhere out of Parliament the Parliament being once possessed of his Cause But this is by the by the Writ for inrolling those Judgements and the Concordia is In Memor and. Scaccarii inter Brevia directa Baronibus de Termino Sancti Hillarii Rot. 33. 5 E. 3. In these words Rex Thes. Baronib suis salutem Bittimus vobis sub pede Sigilli nostri quaedam Iudicia in Parliamento nostro apud Westmon nuper tento per Comites Barones at alios Pares regni nostri super Rogerum de Mortuo Mari quosdam alios reddita nec non quandam Concordiam per nos Pares praedictos nec non Communitatem Regni nostri in eodem Parliamento factam super praemissis Mandantes quod Iudicia Concordiam praedicta in Scaccario nostro praedicto coram vobis legi publicari ibidem seriatim irrotulari de caetero ibidem obserâ—…ari faciatis Teste me ipso apud Wyndesor 15. die Februarii Anno regni nostri 5. Per ipsum Regem Concilium The King to the Treasurer and Barons greeting We send you under our Seal certain Judgements given in our Parliament late at Westminster by the Earls Barons and other Peers of our Realm upon Roger of Mortimer and some others also an Agreement made in the same Parliament by Our Selves the foresaid Peers and the whole Commonaliy concerning the matters aforesaid commanding you that the said Judgements and Agreement you cause to be read in your presence in our Court of the Exchequer and there to be enrolled in course and duly observed Given under our Test at Windsor Febr. 15. in the fifth year of our Reign All this shews there was no variation in any of those Tryals but all went on pari passu in the same Method And it is not probable there could be any great change in their proceedings the Parliament continuing together so short a time but fifteen days in all as Mr. Pryn observes by the Writs of wages in his fourth Part which is concerning Parliamentary Writs And I think I may now say that few will believe I concealed these Precedents because they made against me The Case of Sir Thomas Berckley is of another nature his Tryal is said to be Inter Placita
such Judgements and then particularly whether among the Grantz of that Parliament of 25 E. 3. that affirmed that Judgement against Thorp there were any Bishops And I infer there was none because they tell the King that hereafter even out of Parliament if any body else offend in like manner he may take any of them that is of those Grantz that now give him this advice to joyn in condemning him and by the Law of the Land a Bishop could not joyn therefore there was no Bishop amongst them And that by the Law Bishops and all Clergy-men were prohibited appears by the Act of Parliament of the second of that King which I mentioned before confirming one to the same purpose made in Edward the First 's time that No Clerk should be a Justice of Gaol-delivery for Tryal of Felons this I think is not petere Principium to prove the true meaning of what was done at that time in the House of Lords by what the Law of the Land had already established which must regulate what the House of Lords then did and doth shew there could be no Bishops in the number of those Grantz Then for what he saith of the Commons charging Michael de la Poole before the King Prelates and Lords which was in 10 R. 2. and parallelling his crime to that of Sir William Thorp who for it was condemned to dye upon which he will infer that Michael de la Poole was charged with a Capital crime and accused of it by the Commons before the Prelates as well as before the other Lords who gave their Judgements upon it He may examine the Record and he will find that the Impeachment was only for Misdemeanors cozening the King in an exchange of Land when he was Chancellour and some other miscarriages of that nature And it is the Impeachment which is in the nature of an Indictment that governs the Tryal be the crime what it will As it is laid in the Impeachment or the Indictment it must be so found upon the Tryal at the least it can be found no higher less haply it may be A man that is Indicted for a Misdemeanour cannot be found Capitally Guilty And though by a comparison by way of aggravation it was likened to Thorp's Case Michael de la Poole made it appear there was no resemblance between them And who will take pains to read the Record of Thorp which I dare say this Trifler never did nor scarce any Record will see that the ground of that Judgement which made it Capital was that himself had submitted to such a condition when he took upon him the Office of Chief Justice the words are Si sembla a eur le Jugement sur ceo rendu resonable depuis qil se obligea mesmes per son serement a tiel penance fil feist alencontre The Judgement given upon it seemed to them to be agreeing to reason since he had bound himself by his Oath unto such a punishment if he did contrary to his Oath And I must say it would go hard with a great many if every one should be hanged that cozens the King And it is a pretty remark of his upon Sir John Lee's Case 42 E. 3. that the Record saying That he was brought before the Prelates Dukes Earls Barons and some of the Commons c. He observes that if at this Tryal any thing had been objected which had been Capital the Bishops were present at it And I say he might have made a truer observation than that which is That they might be well assured that nothing Capital was to be objected because then the Bishops would not have been present And one thing I am sure is observable which is that the Bishops that is the Prelates are here recorded to be present and to be ranked before the Dukes Earls c. We are sure if any be specified they are and still ranked in the first place What my Gentleman means in what he saith upon the Tryals 50 E. 3. I understand not they are the Cases of Richard Lyons the Lord Latimer William Ellis the Lord Nevill and John Peach all these were only charged with Misdemeanors he saith their crimes were great and hainous and reckons the loss of Forts among them which he saith was a crime Capital in Gomenitz and Weston 1 R. 2. and that I acknowledge the Bishops to have been present at those Tryals But still this learned Gentleman who brags here that he will not suffer the World to be longer amused and imposed upon by my Notions doth himself still mistake the business not well understanding the nature of the thing he treats of Otherwise he would consider that the Tryal of a Criminal person must always be pursuant to his Charge which is a point I have already spoken to therefore I shall say little here only this that the Impeachment of the Commons against those persons was only for Misdemeanors their Tryal was accordingly and the Bishops were present And for what he saith of Gomenitz and Weston was clean another Case it was for betraying those Towns which they had undertaken to keep when the force upon them was not so great However it is not material what their Crime would appear to be upon proof but what their Charge was and that was Capital Then for what he adds of the Bishops being comprehended under the general Apellation of Les Seigneurs du Parlement The Lords of Parliament in several Cases which he there cites which he beats upon over and over again in so many several places of his Pamphlet and sets up like a Man of Straw of his own making to make sport with is what I never denied my Position is That I have still observed in all Tryals of Crimes when Bishops could be present it is so expressed that they were so as in all Crimes not Capital and I do not think one Instance can be given to the contrary And my other Position which I affirm with more confidence is That if any of the other ranks of the Lords be mentioned the Bishops are so likewise or else it is a certain argument that they were not there My Gentleman is a little put to his Trumps in the Case of Gomenitz and Weston 1 R. 2. That is so plain first the Commons coming and desiring That such as had lost Towns and Castles by their own default might be punished Per agard des Seigneurs Baronage By the Judgement of the Lords and Baronage whereupon those Lords commanded Gomenitz and Weston to be brought before them and upon a long hearing condemned them both to death And the Lords are particularly named the Duke of Lancaster first and ten more Earls and Barons by name of whom Roger Lord Clifford was the last and then a general clause Et plusours autres Setgneurs Barons Bannerettes And many other Lords Barons and Bannerets Now this is so plain and exclusive of all Prelates as my Gentleman is forced to confess that it seems
a Capital crime High Treason and a Capital proceeding upon it We see the Sentence was far from Capital and could not have been such as it was if the Crime had been laid in the Accusation to be High Treason Roger de Hoveden in his relation of this business makes no mention of Treason He saith That the King calling a great Council at Northampton Taedium magnum fecit Archiepiscopo did a thing which much vexed the Arch-bishop which was that he caused his Horses to be put into the Arch bishops Inn whereupon the Arch-bishop sent the King word that he would not come to the Council till his Inn was cleared of those Horses yet upon the second day of the meeting the Arch bishop came into the Chapel where the Council sate and there desired the Kings leave that he might go over into France to visit Pope Alexander who was then there which the King denied him and said he should first answer for the injustice he had done to John the Marshal in his Court This John having complained to the King that he had had a long suit in the Arch bishops Court for some Land he held of him and could have no Iustice and that thereupon Curiam Archiepiscopi Sacramento falst ficaverat secundum consuetudinem Regni He had according to the custome of the Kingdom upon Oath charged the Court with wrong doing which I take to be a protesting against the proceeding of that Court and the Judgement there given in the nature of a Writ of Error The Arch-bishop answered to this That John had no injustice done him and that he brought into the Court a certain strange Book and would swear upon that how for want of Iustice he left my Court which the Officers that kept my Court looked upon as an injury done to me because it is the Law of the Kingdome Quod qui Curiam alterius falsificare voluerit oportet eum jurare super sacrosancta Evangelia Whoever will so charge a Court with false dealing must take his Oath upon the Holy Evangelists Notwithstanding this the King swore he would have Iustice done upon him Et Barones Curiae And the Barons of the Court gave Iudgement on him to be at the Kings mercy Which Iudgement the Arch-bishop going about to reverse Iudicium illud falsificare is the expression He was perswaded by the Barons to submit himself to the Kings mercy for a Fine of five hundred pounds Here is nothing in all this that can possibly infer any thing like Treason And it is something observable what both these Authors say of the Judgement given Gervasius saith Curiali Iudicio Episcoporum consensu condemnatus est as if the part of the Bishops in this judgement were something differing from the Act of the Court and not comprized in it Hoveden saith Barones Curiae Regis judicaverunt eum as if the Bishops had no hand in it at all Radulphus de Diceto Decanus Londinensis I suppose Dean of Pauls who lived in those times mentions this business he saith That the Arch-bishop was questioned upon John the Marshals complaint and fined 500 l. and that he was questioned likewise for moneys received by him when he was Chancellour for some Bishopricks and Abbies of which he had received the profits during their vacancies and that not finding the Bishops to be his friends he appealed from their Judgement but then the Proceres the Nobles though he appealed from their Judgement likewise yet they In eum nec confessum nec convictum sententiam intorserunt They wrested a Iudgement against him though he confessed nothing nor was at all convicted You see here is not a word of Treason laid to his charge nor nothing Capital or any thing towards it Matthew Paris tells you the same story and almost in the very same words Now let any man judge whether all those Historians concurring or single Fitz-Stephen disagreeing deserves more credit And that which hath greatest weight with me is the Argument drawn ex natura rei the crime which all agree that the Arch-bishop was charged with was his not appearing upon the Kings Summons which without a great and a very false Multiplying-Glass cannot appear to be any thing like Treason So I must conclude that since the Charge against him had nothing of Capital in it the proceedings upon it was not as against a Capital Offender not brought to Tryal as a Prisoner but came in upon a bare Summons and tarried there and returned at full liberty the Judgement neither of loss of Life nor Limb but meerly Pecuniary and as some of the Authors say compounded with for five hundred pounds I must I say conclude that this whole Case is nothing to our purpose and neither the Law nor usage of Parliament did bar the Bishops from being personally present at such a Tryal And now I come to the point of Peerage which I have so fully handled in my former Letter as I think I need not say much in this Our Asserter brings three Arguments to prove them to be Peers The first is That it is the general stile of all Parliaments from the beginning to be Generale Concilium Cleri Populi even before the coming in of the Normans which no man denies The businesses of the Church as well as of the Civil State are there determined the Writ of Summons shews it which saith That the King intending to call a Parliament Pro quibusdam arduis negotiis Nos Statum defensionem Regni Angliae Ecclesiae Anglicanae concernentibus Bishops and Temporal Lords are summoned and heretofore several others were summoned as Bannerets and sometimes other persons of Quality who likewise were not Peers and yet were called to the Parliaments as pleased the King and the Judges are so summoned at this day Super dictis negotiis tractaturi consilium suum impensuri Where the Bishops act as Bishops and what by the Law of the Land and the practice and usage of Parliaments they ought to do that they do and may do the Temporal Lords in like manner and so likewise the Judges every one acts in his Sphere but this neither gives the Bishops power to judge in Capital Causes if otherwise it be prohibited them nor doth it make them Peers no more than it did formerly the Bannerets and others for their being summoned to sit and vote in the House of Peers We had the experience of this the last Parliament a Baron pretending to a much ancienter station among the Peers by proving that his Ancestor had been summoned by one of our former Kings to sit more than once in the House of Lords yet not making it appear that that favour had been still continued to him and it being made appear on the other side that several Families in this Kingdom would have the same pretence upon the like ground it was the opinion of the House that he had no Right to it and consequently that his Ancestor was never acknowledged to
be a Peer os the Realm and his Blood enobled which otherwise would have descended from him to his Posterity and to this present Baron who is since enobled by a later Creation but takes nothing from that Ancestor So then it is clear that sitting in the House of Peers and having a parity of Vote and enjoying many of the same priviledges with the Peers doth not in true and proper speaking make the Bishops Peers no more than 21 R. 2. Sir Thomas Percy sitting with the Peers and Voting with them as Procurator for the Bishops was thereby a Peer His next Argument is That in several Rolls of Parliament they are expressly called Peers which cannot be denied nor doth that make them Peers if the essential parts of Peerage be wanting to them We know that denominations are many times taken up in a large and improper sense for some circumstances some similitudes something which is extraneous unto them yet wherein they agree with things of another nature And so Bishops having place and vote in the House of Peers and joyning with the Peers of the Realm sitting in Parliament in all things with equal power uno excepto saving only in cases of Blood it is no wonder if they are often stiled Peers of Parliament But the Precedents he cites are falsly recited both in the Case of Mautravers and that of Gomenitz and Weston as I have shewed before His third Argument is That they have judged as Peers upon Peers of Parliament But I deny that they judge there as Peers but as called to the Parliament to be Members of the House of Lords as Bannerets were formerly and many principal Gentlemen who were still Commoners and some Officers as the Warden of the Cinque-Ports who was no Peer sometimes and yet summoned up to the House of Lords and all these judged such Peers as were tryed in those Parliaments in which they sate However that Bishops are not Peers of the Realm and so consequently not properly and truly Peers of Parliament though often called so I think will be clearly made out First I must as I have formerly done insist upon the Great Charter which Sir Edward Cooke saith is declaratory of the Principal grounds of the Fundamental Laws of England and which the Statute made 25 E. 3. Confirmatio Chartarum will have to be observed as the Common Law and all Judgements given against it to be undone and holden for nought this Law is certainly to be obeyed and what is done in observance of this Law is most legal And it enjoyning every man to be tryed by his Peers and Bishops being tryed by a Jury of Commoners Commoners are their Peers and they are Peers to Commoners and not Peers of the Realm Peers per eminentiam as I may call them or else Magna Charta is broken and made a Law of no authority 2. To be a Peer of the Realm their Blood must be enobled and their Persons dignified nor can they otherwise be put into the same rank with those who are so which would make but an ill accouplement and they would never draw well together Now Bishops do not sit in Parliament ratione Nobilitatis but ratione Officii as Stamford saith in his Pleas of the Crown p. 153. En respect de lour possession se launcient Baronies anneres a lour dignitées In respect of their possessions viz. the ancient Baronies annexed to their dignities 3. If they were Peers and their Persons enobled their Wives would be noble and have the priviledges of Peeresses being Married or Widows for Husband and Wife are one person in Law but we know they have no such priviledge which shews their Husbands to be no Peers 4. If Bishops were Peers of the Realm and any of them questioned for a Capital Crime in Parliament time they could be tryed and judged only by the House of Peers and by no other Court of Judicature The Lords could not avoid the trying of them themselves indeed any but Peers they may refuse except it be upon an Impeachment by the House of Commons for then they must retain it and proceed in it but not otherwise except they see some great cause for it Pro bono Publico as it is 1 R. 2. when the Commons desired that no suit between Party and Party should be undertaken and determined by the Lords or the Officers of the Council but that the Common Law might have its course except it be in such a business and against so great a person as one cannot else hope to have right done in it The same is confirmed 1 H. 4. which I alledge to justifie the Judicature of the House of Lords upon those who are not their Peers upon special occasion But for trying of their Peers is a duty incumbent upon them which they must perform and any Peer who is questioned may challenge it as his right and it cannot be denied him And therefore 4 E. 3. when they had upon the Kings earnest pressing them Tryed and Condemned Sir Simon de Bereford Sir Iohn Mautravers and other Commoners they make a Protestation that they nor their Successors Ne seroient mes tenus ne charges a rendre Iugements sur autres que sur lur Piers Should not be bound nor charged to give Iudgement upon any but their Peers But we know that they have sometimes turned off Bishops to Inferiour Courts as appears by the Record of it in the Exchequer the same 4 E. 3. Stephen Gravesend Bishop of London was complained of in Parliament by one Iohn de Wymburne for saying That if Edward the Second was yet living as he was informed he was in Corf-Castle he would assist him with all his power to re-establish him in his Throne Sir Edward Cooke saith that by order of Parliament the matter was referred to be tryed in the Kings-bench but the Record saith that the Parliament referred it to the Kings Council and appointed him to appear before them at Woodstock upon Sunday fortnight after Easter and that they turned him over to the Kings-bench to be Tryed by the Chief Justice Scroope and his fellow Judges Whereas had this Bishop been then accounted a Peer of the Realm he must have been Tryed in Parliament the Parliament being once possessed of his Cause and they could not have referred him to any other Judicature So here you have four Essential parts of Peerage all of them wanting in Bishops and the want but of one Essential part is enough to destroy the whole He can be no Peer of the Realm who is at the Kings sute Capitally Tryed by a Jury of Commoners if Magna Charta be good Law which is our All as we are Free-men Secondly He who is not himself enobled cannot be a Peer in equal rank to one that is For all Peers are equally Peers as we may say Peerage doth not recipere magis minus The meanest Baron is as much a Peer as the greatest Duke else they were not Peers it would be
the Government of the Church by the Imperial Law but not that I put any stress upon it but meerly to circumscribe the Question and keeping it within limits by a Negative declaring what it was not and an Affirmative expressing what it was how Bishops in Parliament could not Judicially act in Capital Cases Therefore were it all so as this learned Gentleman seems to infer that in France Spain Germany and those Northern Kingdoms which he mentions that Bishops were joyned with the Civil Magistrates in ordering the Publick Affairs of those Nations and that they had a share not only in the Legislative but in the Judiciary part as he alledgeth two Authors to prove it to have been in France it would not be of any signification to decide our Controversie for what is this to us to regulate our Parliaments and to operate on our Laws But first for matter of Fact as to France to which I can speak a little having spent many years in that Kingdom and I have by way of discourse informed my self from the Ambassadour who is here from that Crown who doth assure me that the Judges whom they call Counsellors and not Judges as we do who are Clergy-men as many there are joyned with the others of the Laity never sit in that Chamber of Parliament which trys Capital Causes which they call the Tournelle I believe the same may be observed in those other Countries which our Author mentions and I do not see how it could be otherwise the severity of the Canon Law being so strict in the prohibition of it But as I said before the Primitive Christians had that veneration for the Clergy and especially for the Bishops that they were still joyned with the Civil Magistrate in ordering the affairs both in Church and State The matters of the Church they determined Judicially in Secular affairs whether Criminal or other only by way of Counsel if the Civil Magistrate to whose Province they belonged did not do his part I am sure it was so in England Brompton in his Chronicle recites the Laws of King Athelstane in this particular I cited his very words in the original in my former Letter I shall now repeat them very faithfully in English He saith It appertains of right to a Bishop to promote that which is right both concerning God and the World A little after he addeth He ought likewise diligently together with the Secular Judges to promote Peace and Concord And soon upon it he hath this passage The Bishop ought to be present in Judgement with the Secular Judges not to suffer any buds of wickedness to sprout if he can hinder it His Presence and his Counsel was rather a check upon the Judge than to determine any thing in Secular affairs Sir Henry Spelman is a little more particular in delivering unto us the nature of that mixt Court it is in his Glossary upon the word Comes The Earl he saith did preside in that County Court not alone but joyned with the Bishop he to deliver what was Gods Law the other what was Mans Law and that the one should help and counsel the other Especially the Bishop to do it to the Earl for it was lawful for him sometimes to reprove the other and to reduce him bring him into order if he went astray Then he tells us what the work of that Court was that it had cognizance but of petty matters That the Earl had not cognizance of great mens businesses 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 Debts and Trespasscs are not to be commenced in the County Court if it be for above the value of 40s It seems that in ancient times it was but one Court but each Judge had his proper work the Ecclesiastical Judge to distribute and deliver to them what was Gods Law the Secular Judge Mans Law And so it continued till William the First 's time who first separated the two Courts as appears by his Charter to Bishop Remigius which Mr. Selden relates in his Comment upon Eadmerus p. 167. which he saith the King did Communi Concilio Archiepiscoporum suorum raeterorum Episcoporum Abbatum omnium Principum regni sui In a Common Council by the advice of his Arch bishops and the rest of the Bishops and Abbots and all the great men of the Kingdom The words are Wherefore I command you and enjoyn you by my Royal authority that no Bishop nor Arch deacon presume to hold Plea in the Hundred Court any more upon the Episcopal Laws nor bring any Cause that pertains to the rule of Souls before the Judgement of Secular persons but that whoever is questioned according to the Episcopal Laws for any misdemeanour or fault shall come to that place which the Bishop shall chuse and nominate for that purpose and there shall make answer for himself and not in the Hundred Court but shall according to the Canons and the Episcopal Laws do that which is just and right both to God and to his Bishop This was again confirmed 2 R. 2. and so the Courts came to be divided as they continue to this day But nothing can be concluded out of that large Enumeration of the Bishops being admitted in those ancient times to Publick Councils which was more for their Advice and Counsel and Direction than to act any thing at all Authoritatively and Juridically and least of all to have any vote to determine any thing in Cases of Blood which the Canon Law made a Noli me tangere to them I deny not but before there were Christian Magistrates even in the Apostles times the Ministers of the Gospel did many times interpose and reconcile differences and sutes which many times happened amongst believers as St. Paul saith Is there not a wise man among you no not one that shall be able to judge between his Brethren Nor doth he exclude the Bishops that they may not come in as one of those wise men Yet 1 Cor. 6. 4. he seems to exclude them For he saith If then ye have judgement of things pertaining to this life set them to judge who are least esteemed in the Church Which doth seem to intimate as if he meant not the Bishops for sure they are not least esteemed But doth any man think that they were by this authorized to compel men to submit to their Judgement to punish or imprison or lay any corporal punishment upon them if they would not Indeed I cannot think so Nor do I find that St. Augustine was of that opinion the term he gives to those whom the Author of that Treatise will have to be Ecclesiastical Judges doth not imply so much rather the contrary methinks He calls them Cognitores which denotes rather one that took notice of such differences and would endeavour to compose them than a Judge to determine them which hath made me examine that passage more
however the Civil Sanction may impose what punishment such a misdemeanour may deserve Caetera desiderantur FINIS CONSIDERATIONS Touching that QUESTION Whether the PRELATES Have Right to sit among the LORDS And VOTE with them in PARLIAMENT IN Capital Cases When the Lords sit in their Judicial way of Proceeding upon the Tryal of any of their Peers In which it is asserted That they have no Right to Sit and Vote with them in such Cases Neither can it be made appear they have ever practised the same In Answer to the Reasons and Records urged by the Learned Author of the Grand Question c. LONDON Printed in the Year 1682. To the Reader THis Tractate which is now made publick was written soon after the Publication of that Book intituled The Grand Question concerning the Bishops Right to vote in Parliament in Cases Capital stated and argued c. It hath lain by the Author many Months and should still have continued in the Dark had not the unseasonable thrusting into the World of a Book called An Argument for the Bishops Right in judging in Capital Cases in Parliament For their Right unalterable to that place in the Government they now enjoy by one Thomas Hunt Esq stirred up the Pens of others and the desire of Friends me among them to assert as I believe the contrary Truth I assure the Reader I did not at all guess the Author of the Grand Question when I took into my thoughts the Consideration of his Book Fame hath since put it upon a Person of so great Worth and Learning in all sorts of Literature and for whom I have not only a particular Honour my self but the present and future Times will look upon as one of the greatest Champions of the English Church against Popish Superstition and Idolatry I should difficultly have been engaged in this Contest did I not know the Modesty and Ingenuity of this Learned Person is so great that he will not take it ill to have his Reasons examined by a far less knowing Pen which shall be always ready to submit to better Judgments I have examined this Author Chapter by Chapter have given Answers to his Reasons and shewed the Infirmity of those Records he hath thought proper to urge for his Opinion and have given some other of my own not taken notice of by him I hope material to that end for which they are alleged I was not willing to trust too much to Abridgments nor had either the Time or Convenience to search the Originals and therefore had recourse for some to a very near Relation of my own who is well stored with that sort of Treasure and who never denied me the use of any thing in his well-furnish'd Library I desired from him Truth is but one but Men may vary in their Apprehensions concerning it As to others which I could not be supplied with from him I must acknowledg my self deeply obliged to my much honoured and very learned Friend Mr. William Petyt of the Inner Temple who was not only pleased to read over the ensuing Treatise but to give me the sight of a rich Magazine of the Transcripts of Records which he hath fairly written by him as also to give me the Copies of some necessary to my purpose which I either had not or not so fully as from him The Wrold hath already seen something of his and may in due time expect more in Reply to the learned Dr. Brady in whom I find various and useful Learning but if I may have leave to say so one misled in some measure by different Notions of Words and Interpretations of them contrary to their known and common Acceptation Some part of his Book hath been already considered by the Author of Jani Anglorum facies altera But the intire Answer to it we must expect from Mr. Petyt who hath favoured me with the sight of a short Specimen of a greater Work to follow I must not here forget my very deserving and worthy Friend Mr. Atwood of Grays-Inn whose Assistance I received in transcribing some Records for me He is a Person whom God hath endowed with a good Estate and a large measure of Knowledg for the few Years he hath hitherto spent in the World and who I speak it to the shame of most of our young Men spends his time in Studies useful to himself and to the Kingdom in which he lives Having already seen from his youthful Labours so good Effects we may well expect from his more mature Judgment things of greater Advantage to the learned part of this Nation But let us now return to Mr. Hunt a good Protestant he appears to be in his Postscript which in these unconstant times deserves Commendation and in his Book he shews himself a Man of various reading and learning with a competent Knowledg in the Tongues but otherwise if I much mistake not a Man of confused and undigested Notions by which he forces things to serve his turn contrary to their true meaning from meer Conjectures and Surmises of his own without any colour of Demonstration His whole Book consists of three Parts Argumentative Invective or Reproachful and Extravagant or Conjectural I cannot compare his Argumentative Part better than to a gleaning after a full Vintage There is nothing in it which had not been soreseen by the Author of the Grand Question and pressed by him with much more Learning Subtilty and Closeness of arguing or else wholly left out as unconclusive to the matter he had in hand of whom it may be said what was once of Hector in another Case Si Pergama dextra defendi possent etiam hâc defensa fuissent What is by me said in answer to his Arguments in this Treatise must be left to the Judgment of such as shall read it The second Part is invective reproachful and unsavoury in which I would advise no Writer to follow his Steps Soft Words and strong Arguments may convince a Reader whom railing Language will but exasperate I shall name some few of that sort that he may not think I accuse him falsly In his Preface he blames the Author of the Grand Question for treating his Adversaries too kindly who deserved sharper Reflections then he hath given them 'T is plain by the 25th Page of his Book that he knew the Octavo Gentleman as he calls him on whom he there ironically bestows the Title of discrect Gentleman and instances in his Talk against Bishops when he was young which he could not leave when he was old This Person he charges with Falshood unrighteous dealing imposing upon the People Self-Condemnation undue Art and such Stuff Pag. 13. with a design to shut the Bishops out of the House an Extravagant Surmise of his own without any Colour given by the Author of the Leter Pag. 37. want of Candor Integrity c. Pag. 38. Iniquity Prevarication Petulancy Spight inveterate Displeasure Grinning whetting his Teeth and squinting upon them
Name of Peers or Grands and therefore may be comprehended under those Names when the Name Prelate is not expressed If this Author can be driven out of these holds I shall believe he may fairly quit the Field without any Dishonour I shall begin with the Tryal of Roger Mortimer in 4 Edward the Third but we must fetch our Judgment from what was done in 28 Edward the Third where upon the desire of Roger Wigmore Cousin and Heir of Mortimer that Attainder was examined and all the Proceedings repeated and upon the whole matter the King charges the Earls and Barons the Peers of the Realm that for as much as these things principally concerned him and them and all the People of his Realm that they would do such Right and loyal Judgment as was fit for such a Person to have The Words upon the Record are Le Roy vous charge Counts Barons les Pieres de son Royaum que de si come cestes choses touchent principalment a luy a vous a tout le peuple de son Royaum que vous facies au dit Roger droit loial Iugement come attient a un tel d'avoir Which said Counts Barons and Peers of the Realm returned and gave their Judgment c. The Words are the King charges you Counts Barons the Peers of his Realm not as our Author renders the Words Earls Barons and Peers of the Realm as if Peers were there distinct from Earls and Barons when the Words import no more than who were those Peers to wit the Earls and Barons therefore the Author of the Letter had reason to say the Bishops were not there who were left out in the reference made by the King whose Words are To the Earls and Barons the Peers of the Realm Now if the Question be asked who are those must not the Answer be the Earls and Barons So that the Bishops must be comprehended under the Names of Earls and Barons or not at all From whence it will follow that this Negative is something more than a bare Negative we may at least call it Negativum praegnans a Negative big with an Affirmative for it is first told who were those Peers Secondly to whom those Judgments belonged Chiefly to the King and them and consequentially to all the Kingdom and whatever the Practise is now I think it not hard to prove that anciently no Judgment or very rarely any by the Lords in Parliament was complete in criminal Cases or Execution done till it was ratified by the King yet that I may render all possible Right to the Bishops the matter will bear I would easily grant that if they were at all summoned to that Parliament they might be present whilst the Proceedings against Mortimer were in reading but went away when the Lords proceeded to the consideration of what Judgment was to be given against him which was enough to give them knowledge of the matter in Agitation and as much as was requisite to make them Parties according to the Opinion of my Lord Coke before cited I said if they were summoned because in many ancient Parliaments I cannot find they had any Summons at all as in 49 Hen. 3. 23 Ed. 1. 28 Ed. 1. 1 Ed. 2. 16 Ed. 2. and 6 Ed. 3. but after that were never omitted so that 't is probable enough that they were not summoned in 4 Ed. 3. who were left out in the sixth year of the same King But in this I will not be positive because it may be the Rolls have been lost Pag. 94. He takes a more exact view of the Case of Mortimer in 4 Ed. 3. and presseth strongly to have it allowed that the Judgment against Mortimer and some others was by Act of Parliament because the Reversal of it in 28 E. 3. was by Act and therefore saith he we may justly suppose that the Judgment against them was ratified in Parliament beside some Historians say he was condemned Iudicio Parliamenti and his own Petition is that the Statute and Judgment may be reversed and annulled and from this infers that if the first Judgment was by Act of Parliament and the Bishops not there then they might not be present in their Legislative Right and if they were there then this Negative way of Argument proves nothing that is they de facto were not there therefore de jure they ought not to be there This I confess is subtle but not solid 't is all grounded upon no greater Authority than Supposition First the Reversal was by Act therefore the Judgment was so too this doth not follow for many Judgments in Parliament may be reversed by Act of Parliament which were not so pronounced His second Conjecture hath as little weight because some Historians say it was by Judgment in Parliament therefore by Act because it is not a Parliament without the King and Lords and Commons for except this be his Argument it is of no force at all for it might be and doubtless was by Judgment in the Lords House which in ordinary Speech was called Judgment in Parliament nay how often doth himself infer the Presence of the Bishops from the Words Full Parliament when the Commons were not concerned and indeed meant no more than a full House Lastly Wigmore desiring the Statute and Judgment might be reversed proves as little for every thing ordained that is Statutum is not presently an Act of Parliament though every Act be Statutum Beside I do not find Statutum in the Record but only the Word Judgment used so that for ought appears from our Author the Bishops might well be absent at the first Judgment against Mortimer and not comprehended under the Name of Peers They have less reason to think themselves included under the Name of Barons if we well consider the words of Petrus Blesensis who living in the time of Hen. 2. well knew both what Honour they had and what they pretended then to whose Words are Quidam Episcopi Regum munificientias Eleemosynas antiquorum abusivè Baronias regalia vocant in occasione turpissimae Servitutis seipsos Barones vocant Vereor ne de illis quereretur Dominus dicat Ipsi regnaverunt non ex me Principes extiterunt ego non cognovi scias te accepisse Pastoris officium non Baronis c. Vacuum a secularibus oportet esse animum Modis omnibus cura ne secularibus te involvas Pet. Blesens edit ult p. 551 552. By this learned Arch-Deacon in his Tractate de Institutione Episc. you may be satisfied that he did not believe that Bishopricks which arose from the Bounty of the King or Alms of the People were ever erected into Baronies by the King but abusively or wrongfully so called by themselves who being charged with the Service by the King had a mind to attribute to themselves the Name since they did the Service For he saith they did abusively or wrongfully call their Possessions Baronies
and Royalties and themselves Barons both blaming and threating them from God for so doing and involving themselves in Secular Matters This Author flourished in the time of Hen. II. ancient enough to know the truth and how they were look't upon in those days Moreover I do not find it can be made appear except conjecturally that they were ever present where they were not first named The Honour of their Function makes them be called before Dukes and Earls and being by that reason Pralati leâ—… no Man deprive them of their Right and by Post-Position make them post Lati. Lastly This Person being executed in 4 Edw. 3. as appears by the Record in 28 E. 3. Cot. p. 85. without any Accusation or Answer makes me believe the Bishops being Men of Piety would not by their Prefence countenance so illegal a thing tho they had had Right without entring their Protestation manifesting their dislike of it neither do I believe their Spirits so humble to suffer a Post-Position of their Titles But this whole matter will I conceive be better cleared if I shall acquaint the Reader with something more concerning this Roger Earl of March than hath yet come to this learned Person 's Knowledg In 5 Edw. 3. the very next Year after the summary Judgment was given against Mortimer and Matrevers a Commoner at the Complaint of the King we find inter Brevia Baronibus direct 5 E. 3. m. 33. penes rememorat Dom. Regis in Sâ—…cio that those Judgments were per Comites Barones alios Pares Regni not a Syllable of the Prelates nor can the word alios take them in since in the whole current of Records the Prelates were never placed after Earls and Barons And the alij Pares were either such as might be extraordinarily summoned an usual Practice at that time or they were the Barons Peers viz. Barones Minores besides the succeeding words clear the Point For there was in 4 E. 3. an Agreement and Concordia made by the Lords and Commons that such Proceedings should not for the future be drawn into Example to judg Commoners to death upon Summary Articles without any Concurrence from them Now this Concord was made by the Temporal Lords not by the Prelates but per nos Pares praedictos nec non Communitatem Regni in eodem Parliamento Now in 4 E. 3. the Reference was made to the Earls and Barons the Peers to whom of right such Judgments belonged and no Prelates comprehended and here they are called Pares praedicti Add to this Rot. Parl. 13 E. 3. Numb 8. Le grant des Graunts where an Aid was granted to the King then in war with France The Record saith Les Countes Barouns esteantzen dit Parlement Granteront pour eiix pour leur Peers de la terre qui teignent per Baronie la desme garb la disme tuzon la disme Aignel de touts leur demaignes Terres Now if the Prelates were understood by the word Peers in this place then it must be granted that the Earls and Barons taxed the Prelates who always taxed themselves and the inferiour Clergy in Convocation But the succeeding words will clear the matter which run thus in the same Record Et pour ceo quil fu aviis as Prelatez Countes Barouns autres Graunts que pour les ploite des besognes c. the Record is touching a speedy Supply to the King Here we see where the Bishops were concerned they were named which shews they were no more comprehended under Peers before than under the word Magnates in this Clause I could multiply Records to this purpose and am confident no clear Example can be given where they were necessarily comprehended after Counts and Barons The next Authority he quotes to weaken the Authority of those he calls Negative Precedents is the case of the Murther of Iohn Imperiall a publick Minister sent from Genoa This Case I conceive is not truly stated by the Author of the Letter and misapplied by the Grand Questionist The Point in question in the Record was what Offence the Murther of this publick Minister was which matter was referred to the Judges for their Advice who agreed that it was Treason within the Statute of 25 E. 3. This their Judgment was confirmed in Parliament whilst the Doubt was in Agitation among the Judges 't was not material who was there But after they had given their Sense what was meant by this Confirmation in Parliament is the next Question Whether more were meant than an approving of the Opinion given by the Judges by them drawn up in form and this may well be the meaning of that whole Proceeding which Practice is usual in our days but cannot be called a Judgment in Parliament tho it might be their Opinion But if you will rather believe it to be by Act of Parliament then must the Commons be Parties of whom we hear no mention nor any Statute to that purpose extant that I can find and in that Case the Bishops might have been present if they would and whether they were or not is not material Vid. Cot. 3. R. 2. N. 38. p. 183. Yea in Acts of Parliament when the Sentence comes to be given they are to withdraw as it was held by Mr. Edward Bagshaw a learned Reader of the middle Temple who for some Opinions by him held touching the Bishops was by the Power of Arch-bishop Laud suspended from proceeding in his reading Rushw. Hist. Coll. Tom. 2. p. 990. The next Precedent is in 5 E. 3. Which in conclusion will do him as little Service as the former The Author of the Letter pag. 7 8. tells us that that Parliament was summoned for redress of the Breach of the Law and the Peace of the Kingdom and the Record saith further that 't was to consult touching Lands in Guienne and the Marriage of the King in which the Bishops went away and returned no more I confess I know no reason but they might have staid it seems they thought otherwise being in all likelihood privy to some Actions to be treated there wherein Sentence of Blood might be pronounced But be their reason what you will their words are these Et pour ceo que avisefust a les dits Prelates qu'il nattient proprement a eux de Counseiller de la gard de la paix de chastiment de tels malvois s'allerent mesmes les Prelates Which words do not only import that they voluntarily went away but that it did properly behove them not to be present in such matters or to give Counsel for the Punishment of such Crimes The same word is used in 1 Hen. 4. Cot. p. 392. where the King by the mouth of the Arch-bishop of Canterbury declares that the Commons in that Case were only Petitioners and that all Judgments belonged to him and the Lords belonged that is the Commons had no Right thereto so here nattient proprement is that
when they might have been others that they were present when by his own Rules they should have been excluded either therefore the general words where they are not mentioned do not enforce their Absence or that they oughtto have been excluded at some other Trials where the Author of the Letter admits they were or might have been present The chief Case he instanceth in is that of Michael de la Pool Chancellour of England who was accused of many Misdemeanours by the House of Commons and as I think he would infer such as Thorp Chief Justice was found guilty of being Capital where the Author of the Letter saith the Bishops were not present yet allows them to have been present in the Case of this Chancellour a parallel Case as he saith with that of Thorp either therefore saith our Author they might have been present in the Case of Thorp or they should have been absent in Trial of Pool This is his Argument as near as I can gather out of his Words put together something obscurely I need give no other Answer to this than to lay before you the words of the Record This Accusation was exhibited by the Commons in 10 R. 2. against Michael de la Pool Lord Chancellour in full Parliament before the King Bishops and Lords and six Articles were objected by them against him The first was That he purchased Lands of the King of great value whilst he was Chancellour the other five as the Record saith were only Quarrels and of little concern To the first and most considerable the Chancellour put in a fair Answer the Commons reply and urge things to the utmost and amongst other things say That whereas by the Popes Provisions a Person was recommended to the Priory of St. Anthonies he the said Chancellour would not suffer him to be admitted till the Grantee had contracted to pay to the Chancellor and his Son 100 l. yearly and then parallel this with Thorp's Case and would have had the Chancellor in the same fault with Thorp for Bribery as a Judg and consequently incur the same Judgment The Chancellor replies and shews great difference between the Cases Upon the whole matter Judgment was given against him pursuant to the Accusation for Misdemeanours only in which the Bishops were and might be present and the parallelling it with Thorp's Case was only in the Management of the Cause by the Commons and no part of the Accusation Neither is it reasonable to believe that which our Author asserts in the same Page that the Prelates were free Agents and might withdraw at some times and be present at others as they saw cause For beside that this is contrary to the express Law of Clarendon which expresly declares that 't is their duty to be present in all Proceedings in Curia Regis which in that place must be understood of the Parliament because they were to be present with the other Lords tho I know that Curia Regis is sometimes taken in a more laxe Sense for all the Courts in Westminster are the King's Courts and unto which they were to give Obedience and Attendance in Cases not prohibited I say over and above this Act at Clarendon it seems to me very unreasonable to suppose that such a Body of Men had liberty to give their Attendance when they pleased without leave of the House or cause shewed why 't was fit they should be absent or that the Author of the Letter meant more when he saith they might have been present than that they were not prohibited by the Law of Clarendon which only had Relation to Matters of Blood But these Men had other Canons to go by when they thought fit as well as those of Toledo and 't is probable enough that the rest of the Noble-Men finding them most constant Factors for the Pope were willing enough to let them be absent upon any colourable Pretence when they desired it Is not one clear Precedent against them in point of greater weight than many dubious and equivocal ones which cannot without great Art be wire-drawn to speak to their advantage Let him consult the Discourse of Peerage pag. 17. The Case of the Earl of Northumberland 7 Hen. 4. Rot. processus cor Dom. Rege in Parl. in 5 Hen. 4. This Noble-Man came into Parliament and confessed before the King and Lords that he had done against his Allegiance in gathering Power and giving Liveries this Fact by the Lords was adjudged no Treason for which he gives Thanks to the Lords his Judges and a day after the Commons do the like where the Prelates are named as our Author affirms and to which I shall speak by and by But in 7 Hen. 4 the same Earl was in actual Rebellion in the North and his Forces dispersed by the Earl of Westmarland but he and the Lord Bardolf fled into Scotland the rest were most of them taken Prisoners This Case came into Parliament where the King commands the Lords Temporal Peers of the Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and Lord Bardolf Nothing can be plainer than that the King look'd upon the Lords Temporal as those Peers who were proper to give Judgment touching their Fellow Peers who had fled from Trial in a case of Blood The Record goes on the said Lords advised thereupon and gave Counsel to the King Then the said Lords Peers of the Realm by assent of the King order summoning the said Lords to appear at a day given or to stand convicted by Award of the Peers in Parliament The King farther demanded the Opinion of the Lords Temporal touching the Arch-bishop of York who was in the same Treason The Lords Temporal by the Assent of the King and by their Authority declared and awarded the said Earl and Lord to stand convict of Treason for not appearing upon Summons 'T is very clear that this whole Business was transacted by the Lords Temporal without the Bishops and with the Concurrence of the King 'T is not to be believed that the Bishops would have sate quiet had they thought themselves wronged in these Proceedings See the Discourse of Peerage pag. 17 18. I think it hardly possible to find a more clear Record in the Point than this is First here were two Noble Lords defeated in actual Rebellion and fled from Justice into Scotland The King upon this would not so much as consult with his Prelates knowing them by Law no proper Counsellours against Peers in matters of Blood applies himself to his Lords Temporal they order Proclamations by order of the King enjoyning the said Lords to appear at a day certain or to stand convict they not appearing are by Award of the Lords Temporal convicted of Treason and a Year after one is slain the other mortally wounded at Bramham-moor in York-shire Can any thing be more agreable to the Practice at this day against Men that fly from Justice and
guilty he shall be degraded and delivered over to the Temporal Power But if he be first arrested by 〈◊〉 Secular Magistrate and tried and found guilty he shall be delivered to the Bishop to be deprived and then delivered back to Punishment The Precedent of Thomas Merks Bishop of Carlisle our Author allows to be against him but asks whether one Precedent before the time of Hen. 8th be sufficient to expound Magna Charta for in this Case the Immunities of the Church were considered and a Declaration by them that their Priviledges extended not to Treason But for a full Answer I say first that there are more Precedents than one but if there were not would not one with the constant Opinion of all Lawyers and Judges be enough to prevail with a dis-interested Man to believe that the Peers in Magna Charta and the Lex Terrae do not intend Bishops to be such Peers as are to receive their Trial by Noble-men But what Exception can be taken to those Cases after and in the time of Hen. 8th Did he not continue the Roman Religion all his time was it more against his Prerogative than of any of his Predecessors 'T is clear enough that the Proceedings before as well as after were according to Law notwithstanding the Clamour of the Clergy as is plain by Mr. Selden I shall now consider the Case of Adam de Orlton alias Tarlton Bishop of Hereford All Historians of those times as well as other later ones set sorth the violent Proceedings of the Clergy in that matter who took him twice out of the Hands of Justice But it appears by Mr. Selden by the Record Hill 17. E. 2. Rot. 87. Dors coram Rege that he was arraigned in the King's Bench and upon question how he would be tried refuseth to answer there Day is given and the Indictment brought into the Parliament where he makes the same Plea that he is by the Will of God and the Pope Bishop of Hereford and that he ought not to answer before that Court. Here you see whatever the Carriage of the Clergy was and what-ever Judgment was given against him His Exceptions were as much against any Trial in Parliament by the Lay-Lords as else-where And that consequently the Injury they conceived done to them was that they should be tried in any Secular Court whatsoever This you may see in Du Fresnes Glossary Verbo Par. The Trial he required was per Episcopos Pares suos By the Bishops his Peers This appears also by the Complaint of the Bishop of Ely that he was brought to be tried coram Laico Iudice before a Secular Judg. By this our Author's Mistake may appear who saith pag. 144. That they look'd upon themselves out of Parliament as having no Peers in Judgment but Bishops when it is evident by the Case of these Bishops that they made the same Exception as to their Trials before the Lords in Parliament that they did before the Secular Judges out of it and pretended they ought not to be tried before any Lay-Judges whatsoever Neither did they look upon themselves under the same Condition that Lay-Men were but being a distinct Body among themselves thought it reasonable to be judged by themselves only and in their own Courts an Innovation the Law never allowed or gave any Countenance unto I confess I cannot but wonder that any one Person of how great Parts soever should go about to contradict the Opinion of very many learned Judges who have all asserted the contrary to wit that Bishops ought to be tried by Commoners and no one Lawyer of any note that I know of hath hitherto maintained the contrary Methinks those of the Long-Robe should be tender in opposing the Judgments of Stanford Cook Doddridg and Selden except their Opinions were back'd by the Authority of Judges equal in Ability and Learning to those before named Having thus cleared the Precedents urged by Mr. Selden and others from the Exceptions of this Author let us now see what is alledged by him to prove that it was not always so but that sometimes they were tried by the Noble-Men as their Peers in Parliament And to that purpose he propounds the Case of Stratford Arch-bishop of Canterbury out of Arch-bishop Parker's Antiq. Ecclesiae Britan. who tells you that Stratford was at the King's Suit accused of Capital Crimes in the Exchequer that he put himself upon his Trial in Parliament that a Parliament was called and he after some Opposition admitted into the House and there as our Author saith put himself upon the Trial of his Peers this it seems is the Relation of Matth. Parker By the way whom he meant by his Peers doth not yet appear whether the Clergy only or the Lay-Lords But let us have recourse to the Record as it is abridged by Sir Robert Cotton 15 E. 3. Numb 8. The same day the King came into St. Edward's Chamber commonly called the Chamber de Pinct the painted Chamber before whom all the Lords and Commons the Arch-bishop of Canterbury humbled himself and required his Favour which he granted Afterwards the Arch-bishop desired that where he was defamed through the Realm he might be arraigned in open Parliament before his Peers probably by his Peers he understood the Bishops as others had done and not the Lay-Lords Besides this seems to be a Desire of his at a Conference before the King and Lords for it was in the painted Chamber whereas the Commons usually sate in the great Refectory now called Westminster-Hall Let us observe the King's Answer which was that he would attend the common Affairs and after hear others where we see the King did not grant his Desire but gave only a Dilatory Answer Lastly it doth not appear that he was ever arraigned in Parliament for the Record saith Numb 49. And it is to be remembred that all things touching the Arraignment of the Arch-bishop of Canterbury should remain with Sir William de Kedelsby Keeper of the Privy-Seal By which it is evident that these things were not then put into the Hands of Sir William de Kedelsby but to remain there where probably they were before and were only some Papers relating to what was before done in the Chequer for I find no Arraignment recorded about that time Two Yearsafter viz. 17 Edw. 3. Numb 22. All the Proceedings against the Arch-bishop were cancelled by order from the King so that nothing appears to have been done against him to any purpose either in Parliament or else-where 'T is true there was a continuance of the Parliament in 15 o from day to day for a Week about the Trial of Noble-Men that they should not be put to answer but in open Parliament by their Peers to which purpose there are named four Bishops four Earls and four Barons as a Committee to draw up the Plot. These Persons being in their Device assigned as hereafter doth ensue Under the Name of which Peers they
not pursue this Author in his Digression touching the ground and reason of the Trial by Peers since our Question is not what the Law may be in other Countries but what the Practice of our own is and of what sort of People those Peers are to be composed That is to say Whether the Jury for the Trial of Bishops shall be composed of Noble-Men or of Commoners In this he confesseth that the Lawyers and those of them who have most searched into Antiquity are of a different Opinion to what he maintains as to this Particular A shrewd Objection I take it this is for every one ought to be credited in his own Art and 't is ten to one the Generality of the Lawyers are rather in the right than Strangers to the Profession or Lawyers of a lower Rank than those great Masters have been But that he may say something he tells you that Mr. Selden not only in that confused Rapsody goes under his name but in his more elaborate second Edition of his Titles of Honour admits the Bishops to be Peers in which he hath corrected and left out the false or doubtful Passages of his first Edition and among the rest that Passage A Bishop shall not be tried by Peers in Capital Crimes What then doth this Omission supersede those Precedents laid down by him in that Rapsody as he calls it which was as much his as the other The leaving out that Passage might be a Neglect in the Printer I am sure 't is no Retractation of what he had said before Neither need I tell this Author how Books come sometimes to be corrupted Secondly He saith some things have been affirmed about this matter with as great Assurance as this is which have not been the constant Practice Coke he saith is positive in his third Instit. p. 30. That a Bishop should not be tried by Peers and in the same Page that a Noble-Man cannot wave his Trial by his Peers and put himself upon the Trial of the Country And doth this Author think the Law to be otherwise Yes he saith in the Record of 4. Edw. 3. That Thomas Lord Berkley put himself upon his Country I have a Transcript of the Record by me which I received from my learned and worthy Friend Mr. Atwood of Greys-Inn but because it is in Latine and agrees with the Abridgment by Sir Robert Cotton and review ed by Mr. Prin I shall not transcribe except two or three Lines Thomas de Barkele Miles venit coram Domino Rege in pleno Parliamento suo c. Cotton 4 E. 3. Numb 16 17. In a Plea of the Crown holden before the King this Parliament Thomas of Berkley Knight was arraigned for the Death of Edw. II. for that the said King was committed to the keeping of the said Thomas and Iohn Mautrevers at the Castle of Thomas at Berkley in Glocestershire where he was murthered Thomas pleads that he was sick at Beudlâ—…y without the said Castle at the Death of the said King and put himself upon the Trial of 12 Knights named in the Record by whom he was acquitted Here we have an Arraignment of Thomas de Berkele Knight in 4 Edw. 3. but none of Thomas Lord Berkele as this Author supposeth In 5 Edw. 3. Numb 15. I find the same Person at the request of the whole Estate discharged by the name of Sir Thomas Berkley so that it seems plain he was then no Peer and consequently no waver of Peerage in 14 Edw. 3. and in 4 Rich. 2. Cot. p. 187. I find him summoned to Parliament not before 14 Edw. 3. When any Noble Man had the Addition of Miles the name of his Barony was generally expressed and the word Dominus annexed Iohn de Beauchamp Militi Domino de Beauchamp 27 Hen. 6. Rob. de Hungerford Mil. Dom. de Moleyns and many others Insomuch that I am confident that in 4 E. 3. Thomas de Berkley had never been summoned and so not inter Barones Majores And the Milites were Tenants in Capite I have at last examined all the parts of this elaborate Treatise in which the Author hath endeavoured with all Art and Industry imaginable to support a declining Cause I have not to my Knowledg left any Argument unconsidered which hath been thought material by this Writer to be urged in defence of that Cause the Maintenance whereof he had undertaken I have been longer I confess in this Discourse than at first I thought to have been but this must be attributed to the Subtilty of my Adversary who by learned Digressions and cunning Insinuations hath indeed clouded the Truth and rendered it less visible to the Eyes of common Readers Notwithstanding what I have said if this Drudgery of being present as Judges in Criminal Cases or in the Trials of Noble-Men in Parliament be the Right of the Lords Spiritual in Parliament If the Embassadours of Christ the Messengers of Peace and the Preachers of Mercy and Reconciliation to God in Christ have more mind to be Executioners of God's strange Work than in what he delights If they delight rather to make Wounds than to bind them up let them enjoy that Burthen according to their Desire But their Pretences to it hitherto have been ineffectual and of late all Power of Judicature in Cases of Blood hath been denied them in several Parliaments by both Houses Neither hath this Author been yet so happy as to have produced any one clear Precedent where they have been present at the Trial and have given Votes for the acquittal or Condemnation of any Noble-Man brought to Judgment in Parliament in Cases of Blood Or that any of their Order have been in such Cases tried by Noble-Men or indeed have desired to be so tried Certainly this Nation together with the most of other Christians in Europe lived under the Papal Communion till the times of Reformation and therefore the Bishops here cannot reasonably be supposed to have enjoyed Priviledges different or greater than those enjoyed by their Fellows in other Places where they had the greatest as well Power as Honour But I think I may with Confidence affirm they were no where allowed to sit Inquisitors of Blood and not only to debate but at their Pleasure to give Sentence in such Cases as Secular Persons in Secular Courts I very well remember that in the Parliament begun here 1640 it was at the beginning thereof hotly debated in the Lords House whether any Bishop might be so much as of a Committee in any Parliamentary Examination in the Case of my Lord Strafford because it was a Case of Blood in which by Law they ought not to meddle the Debate was put off and the Bishops were willing to absent themselves according to the Opinion of one of their own Body and agreeable to the Practice and Usage of the Kingdom being only allowed by the Lords to enter a Protestation saving their Rights in that and
in that Letter to which I refer my self But for these omissions which he makes so criminal As for the first concerning my not expressing that they made their Peerage a ground of their Protestation I answer That since what I conceived and maintained to have been their end in their Protestation which was Only to assert and lay claim to their Right of being present in Parliament in all other matters but matters of Blood was not at all controverted by me but that to which I fully agreed in omnibus I did not think it at all necessary nor proper to insert what moved them to make such a Protestation but only so much as was to the purpose for what I alledged that Precedent The matter of their Peerage is another point for which in truth there is little ground notwithstanding all their claim to it and that it be sometimes attributed unto them by such as desire to please them and perhaps by many ignorantly and mislead to it in regard of their sitting in the Upper House of Parliament and having a Parity of Vote with the Temporal Lords in the Legislative part and likewise in the judicial part of that House in all other Cases but of Blood from which they have been particularly debarred both by their own Canon Law and afterwards by the Law of the Land and the custome and usage of Parliament which may very well make many persons not considering the true nature of Peerage nor examining with care and diligence what in that particular our Law saith and what hath been the usage of Parliament give them that Appellation But I have in my former Letter cleared also this point I think very fully and shall say more to it in this when I come to answer that Article hereafter in course as our Assertor brings me to it for this now is but by the way upon occasion of this his first Postulatum And now for his other charge upon my unfaithful citing the Protestation in 28 H. 6. leaving out how the Lords Spiritual and Temporal joyned in challenging their Right of Judicature and that the Judgment given by the King concerning the Duke of Suffolk should not turn to their prejudice but they and their Successors should enjoy their liberties in case of their Peerage hereafter as freely and as largely as their Ancestors had before them I shall give a like answer to this as I did to the other I concealed nothing that was necessary and proper to be said which may appear by my letting forth particularly the whole proceeding in that Tryal step by step how the Prelates joyned in the management of it from the beginning to the end therefore certainly it had been no more a disadvantage to me to acknowledge that the Prelates claimed such a Right in a verbal Protestation than that they did actually exercise it as I say they did all along in the whole transaction of that business Therefore if it was designedly done it was a weak design in me my end was only to shew the palpable extravagances of that Tryal and of the Kings taking upon himself to give the Judgment and so mentioned the Lords Protesting against it in which the Prelates joyned with the Temporal Lords as well as they had in all the foregoing passages of it for the matter of their Peerage I reserved it still to be spoken to in a clause apart by it self when it comes to be the proper subject matter in question I did it in my former Letter to you and I shall do the same in this His second Postulatum is concerning Attainders in which he saith we both agree that Bishops may and ought to be present and yet Attainders saith he are matters of Blood and learnedly he adds That it is not material in the Judgment of any considering person which way a mans life is taken away whether by way of Attainder or by Impeachment and infers further That the Canon Law which by a jeer he saith I call the Law of Laws is not so indispensibly obliging And our Asserter it seems puts himself into the rank of those considering persons that make an Attainder and an Impeachment two distinct species or kinds of proceeding against a Criminal person to take away Life saying it is not material which of the two wayes life is taken away whether by Attainder or Impeachment Oh the Ignoramus that wants a considering Cap to judge aright and know what an Attainder is which is what follows upon the Conviction and Condemnation of the guilty Person be it upon an Impeachment in Parliament and Tryal there in a judicial way or by an Act of Parliament in the Legislative way or by a special Commission of Oyer and Terminer under the great Seal the Attainder is the Result and Consequent of those three wayes of Tryal and Condemnation and not a distinct thing running in a different channel from an Impeachment or from any of the other wayes of Tryal being the end and consequent as I say of all Tryals when the person is found Guilty The Term Attainder or Attainted implies so much which our Etymologists derive from the Latin Attingere to Touch or Reach to a thing Now a Criminal person is touched or reached unto and seized upon by the Law upon an Impeachment and Tryal in Parliament or by a Tryal out of Parliament by Commission as well as by an Act of Parliament so I think one may give it this Definition That it is a Notion in Law whereby the Law reacheth and seiseth upon a Condemned person taints his Blood and divesteth him of all his Priviledges both in publick and private concerns which he enjoyed before as a Free Man of England Besides our confident Asserter doth not consider the nature of the Question in controversy which is not Whether a Bishop quatenus a Bishop an Ecclesiastical person in holy Orders may be present as a Judge in any case when matters of Blood are agitated and whether the Canon Law be so obliging as that in no case he may but whether by the Law of the Land and the custome and usage of Parliament the Bishops be forbidden it when the House of Peers acts in a judicial capacity to condemn any body and not when they pass an Act of Parliament for it and I think it is clearly made out That they may in the latter case passing a Law for it and not in the former to act as Judges in a judicial way His third Postulatum is concerning the Petition of the Commons 21 R. 2. That in regard divers Judgments in Parliament had been heretofore undone and repealed for that the Lords Spiritual were not present at them the King would command them to make some their common Procurator with sufficient authority thereunto which would put an end to all controversies To this he saith That for me to demand what in particular those Judgments were at this distance of time is neither equitable nor rational And truely I made no such
Northampton make fully against him as also his Fancy that the Bishops had Right to be present till the definitive Sentence concerning Blood was to be given is against the Opinion of both Houses in the last Parliament Sixthly I have shewed that the Protestation made 11 Richard the Second if it were not a Law was a solemn Confession by themselves that the Canon-Law was against them and further given great Probability that there was in it respect had to the established Law of the Kingdom Seventhly I prove that the Canons are still in force that they are a part of the Law of England and not to be annulled but by act of Parliament and that Irregularity is not taken away by the Reformation Lastly I have given clear Answers to all his pretended Authorities and Reasons urged in his second Chapter and shewed that they are either not to the Purpose or misapplyed or against him I should now come to examine his Precedents in his third Chapter and assert the manner of Tryal of Bishops by common Juries but that is fully done by the learned Author of the Discourse of Peerage and for Precedents if there were any as I think there are not yet the Law being against him they would signifie little Yet least he should think himself neglected I shall in the next Chapter take them into Consideration CHAP. III. I Will not be long in the Examination of his Precedents because in my Opinion the Lords in the last Parliament have determined the Controversie For our Author contends that the Bishops have Right to be present till the definitive Sentence comes to be given and longer if they please for he sets them at Liberty Now the Lords in their explanatory Votes made May 15. 1679. have declared That the Bishops have Right to sit in Court till the Court proceed to the Vote of Guilty or Not Guilty Tho' this their Lordships have now admitted be a Liberty greater than I think their Predecessors ever enjoyed who in Cases of Blood went out at the beginning yet this Vote takes from them all Power Judicature as Peers to the Lords for it gives them no Liberty to pass any Vote but only allows them to sit as Spectators but reserves the Judgment to themselves I perceive this Author is not willing to give much credit to the Relation of Brompton touching what he reporteth of the King 's appealing Earl God-win of the Death of his Brother I will not concern my self in this matter it being before the Conquest and a Story in which the Relaters much differ some say 't was at the Table others in Council why not in both next his Appeal is to the Earls and Barons I wonder our Author doth not say that the Bishops were here meant by Barons For if there were then no Barons some others must be comprehended under that name and not long after our Author tells you the Bishops were comprehended under that Name in the case of Hamel Vid. Leg. Edvar conf cap. 8. nono de decimis apibus where the Name Barons is used before the Conquest I will not give overmuch credit to this Relation of Brompton the rather because William of Malmsbury looks upon it as a Romance for he saith Rumigeruli spargunt Cronica tacent Yet perhaps Brompton's Authority may go hand in hand with Fitz-Stephen But admitting the Story had some Truth in it his Endeavour to prove the Bishops present is not unpleasant He tells you after the Conversion of Ethelbert they were never absent in any Councils of the Nation that were Publick and that there was then no Canon to be afraid of for the Council of Toledo was brought in by Lanfrank some time after First he assumes a Negative they were never absent which cannot be proved except by one who had lived all those times Next he tells you they had no Canon to be afraid of it seems they lived then without Rule I do not believe this Author would have them do so still Thirdly he saith that Council of Toledo take the first or the eleventh the last of them about five hundred years before was first brought in by Lanfrank I think the substance of that Council was observed before but not established as a Canon till the Synod at Westminster of which I have spoke before The Story of the Arch-bishops condemning Queen Emma might be as true as that other of Godwin and both Romantick but however he tells you the Bishops did certainly sit in the County-Courts at all Judgments What their Office was in those Courts I have told you before out of the Laws of Alfred as also you may find the same in Sir Henry Spelman's Gloss. verb. Comes pag. 140 141. where he at large discourses of the Causes to be tryed in those Courts and tells you they were only for the ease of the Poor and things of small value and that the great and powerful men had their Tryals in the Kings Courts and more to the same purpose which the Reader may peruse if he see good and in part are transcribed by the Author of the Letter pag. 108 109 110. Now let any man judge whether the Opinion of Sir Henry Spelman or his Conjecture of Capitalia placita and the Legend of Saint Cuthbert be of most Credit The Author of the Letter tells you that no Capital Crimes were triable in the County-Court But our Author tells us out of the Laws of Edw. the Confes. set out by Henry the first mention is made of Capitalia placita cap. 31. The Title of the Chapter is De Capitalibus Placitis The words follow In summis capitalibus placitis unus Hundredus aut comitatus judicetur à duobus non unus duos judicet Sic inter judices studia diversa sunt ut alii sic alii aliâ—…er fuisse tendunt vincat sententia meliorum cui justicia magis acquieverit Interesse comitatui debent Episcopi Comites caeterae potestates qui dei leges seculi negotia justâ consideratione diffiniant Recordatione curiae Regis nulli negare licet alias licebit per intelligibiles homines placiti nemo de Capitalibus placitis testimonio convincatur c. Unusquisque per pares suos judicandus est In this obscure Law there is nothing at all that sounds like a Tryal in Criminal Matters except our Author will say that in such Cases no man shall be convicted by Witnesses when there is no other way to try matter of Fact except his own Confession for the Words are that no man may be convicted by Testimony Next it is plain Summa and Capitalia placita are joyned together one explaining the other so that I conceive nothing more is meant than considerable Cases where the matter in Law was dubious to the Judges who were not one Bishop and one Earl but Bishops Earls and other great men and the Judgment was not to be given according to the major
but of the better Opinion of such as were the Judges The Records of the Court were not to be denyed to any man others it seems might by understanding men concerned in the Cause The meaning of the Law I take to be that Cases of Right might be tryed here of any Value but criminal Cases were not medled withall I remember not to have read any where that Capitalia placita had that Signification our Author suggests Placita Coronae Placita Parliamentaria and Placita Communia I have met with but Capitalia Placita for Placita Capitalium criminum is new to me However the meaning of that be yet the Manuscript Life of Saint Cuthbert as to the thing it self will help us out He tells you it may be with as much Truth as Brompton that one Hamel the Son of Earl Godwin being imprisoned by the Earl of Northumberland his Friends earnestly interceded with the Earl that he might not loose his Head Here indeed we find a man imprisoned by an Earl Application made to the Earl in his behalf no mention of any Bishop any Tryal or any farther Proceeding in the business but the Tryal and the Bishops Presence at it are both supplyed by our Author who hath proved neither or produced greater Proof than the Authority of a loose Legend and that lame too and yet upon this he triumphs as if the Point were clearly gained when there is nothing of what he would have made good by him Is it not now a thousand Pities that so well sounding Words so well put together should signifie nothing The next Precedent our Author takes into Consideration is that of Nicholas Segrave cited by the Author of the Letter pag. 55. by this Author pag. 76. which he would evade by supposing the Bishops might be comprehended under the Name of Magnates or Counsellors and shews that some of the Bishops were probably then of his Counsel For a clear Answer to these Surmises I shall give you shortly the whole Case as you shall find it at large inter placita Parlam 33 Ed. 1. Riley pag. 266. Nicholas Segrave had Summons by the Sheriff and the Command of the King to answer to such things as should be objected against him and to hear and stand to what the Curia Domini Regis to wit the Parliament consideraret in praemissis Segrave upon this Summons Venit in pleno Parliamento in praesentiâ ipsius Domini Regis Arch. Cantuariensis plurimorum Episcopor Comitum Baronum aliorum de Consilio Regis tunc ibidem existentium Nicholas de Warwick perhaps the King's Atturney accuseth him of many and great Crimes which he offers to prove Segrave confesseth all submits to the King de alto basso Et super hoc Dom. Rex volens habere avisamentum Comitum Baronem Magnatum aliorum de consilio suo injunxit eisdem in Homagio fidelitate ligeantia quibus ei tenentur quod ipsum fideliter consulerent qualis poena pro tali facto sic cognito fueri infligenda The Comites Barones Magnates c. adjudge him worthy of Death After this the King pardons him and orders him to put in seven Sureties and to render himself a Prisoner at the King's Command and to be accountable to the King for the Issues of his Land held in his own or his Wifes Name This in short is the Case of Segrave in which it is very clear that at the Accusation the Bishops were present as of Right they might be but at the Tryal they are omitted Now to suppose them comprehended under a general Name and out of Order who were particularly expressed when their Presence was lawful is both unusual and unreasonable unusual because it is against the Rule of Law to comprehend the greater after the Nomination of the lesser and so to take the Bishops under the name of great Men who are constantly first named and were so here at the Beginning Secondly 't is unreasonable to make a different Construction of the same Words in different Cases or Laws now we know that in the Statute de Asportatis Religiosorum the Words are Comites Barones Magnates where we know the Bishops were not comprehended under the Name Magnates nor ought to be here and to suppose the contrary is against the Current of all Acts of Parliament and Records By the Magnates and alii de Consilio were meant the Judges and other Counsellors at Law whose Advice the King required as was very just and usual in those times 'T is likewise observable that the Word Consilio is written with an s which shews those Counsellors he advised with were not necessarily Members of Parliament for then the Word would have been written with a c Concilio His remarkable Precedent of the D'Spencers will stand him in as little stead in the Reign of Edward the Second they were both condemned and the Exilium Hugonis D'Spencer is to be seen in the old Natura brevium Those Judgments were afterward reversed at York in 15 Edward the Second but in 1 Edward the Third the first Judgments were affirmed and so they were look'd upon as condemned Persons which continued though themselves were dead for above seventy years til by the prevailing Party in 21 Richard the Second that Act was again called in question as void in regard the Bishops were absent and the Bishops desired to make a Proctor by the Commons which they accordingly did but at last through their exorbitant Proceedings that whole Parliament was repealed in 1 Henry the Fourth To this I have largely spoken before to which I shall refer the Reader with this farther Advertisement that in troublesome times things are not always carryed as they ought to be wherefore we are not always to look at what was but what ought to have been done neither are we to be governed by seeming Precedents such as sometimes as in the Case of Ship-money may be produced against Law I have before made it manifest that the Canons of the Church long before Lanfrank's time forbad Clergy-men to meddle either in Blood or secular Employments neither is it reasonable to believe the Laws of this Land were different from the general Rule incumbent upon all Clergy-men to observe especially when we see the Immunities granted them by King Stephen were so early recalled by Henry the Second and the Constitutions then made at Clarendon look'd upon as the ancient Customs of the Nation insomuch that the Discourser had very good reason to say 't was the common Usage which is the common Law of England Pag. 88. Our Author comes to the Examination of those Records urged against him and his Exceptions in general are First That they are Negative the Bishops were not present at Tryals of Blood therefore they had no Right to be present Secondly They were sometimes absent when they were not prohibited therefore their Absence was voluntary Thirdly they are sometimes comprehended under the