Authority or weight enough to perswade the contrary or an alteration therein notwithstanding that complaint which he tells us was made in the 45 of E. 3. fol. by the two Houses Counts Barons and Commons to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per cet grant mischiefs dammages sont avenuz en temps passe pluis purroit eschire en temps avenir al disherison de la Coronne grant prejudice du Royalme Whereby great mischiefs and damages have happened in times past and more may fall out in time to come to the disherison of the Crown and great prejudice to the Realm And therefore they humbly pray the King that he would imploy Laymen This they had too much reason to desire then when the Pope had advanced his Authority over them and put them under Oaths of Canonical obedience which rendred them less fit to be intrusted in the Government of this Kingdom who were become Subjects of another Empire usurping continually upon us which will never be our Case again if the Bishops can help it CHAP. III. ANd now we proceed to the Precedents of which the Octavo Book principally consists which seem as that Author and the other in Folio would have it to be not only a discontinuance of the Right of the Bishops to judge in Capital Causes but an argumentative proof that they never had any because it can as they say be never proved to be otherwise Immemorial time I confess is a great evidence of the right whether In non user or user and a fair reason to allow or deny the pretence and therefore we will now consider the Precedents As for the argumentative and discoursive parts of those books they will fall in to be answered by way of Objection when we are discoursing and proving the affirmative part of the Question and will best be reproved by being placed near the light of our reasons for establishing the Right of the Prelates If we do not give some satisfaction to these Precedents whatever we shall say I know can signifie no more than an Argument to prove a thing not true which is possible de facto testified by unexceptionable witnesses for such the Precedents will be taken until exceptions are made to their Testimony The Precedents produced by the two Authors are mostly the same only the Octavo hath more than what the Folio Book hath recited The first case that the Octavo produceth against the Lords Spiritual their Right of being Judges in Parliament in Capital Causes is that of Roger Mortimer Earl of March Simon Beresford and others who were no Peers and yet tryed in Parliament and no Bishops present and we agree it probable for his reason because there is mention made of Counts Barons and Peers and Peers being named after Barons could not comprehend the Bishops And because we think it reasonable when the orders of that House are particularly enumerated that the order omitted should be intended absent but we will not allow but that Peers is and so is Grants comprehensive of Bishops Nor will we when the entry is General intend the Bishops absent except he cannot otherwise prove them absent which we mention in the entry once for all as just and common measures between us in this dispute It will appear true what we affirm of the words Peers and Grants by what follows And if we should not insist upon their being present when nothing appears to the contrary we should do wrong to the Cause But to come to the consideration of this Precedent Is this a just Precedent Is not Magna Charta hereby violated Are not the proceedings altogether illegal Here are Commoners tryed by Peers in Parliament It is well known that the high displeasure of the King was concerned and that he did interpose with a plenitude of Power in this particular case against the fundamental constitutions of the Government the greatest crime of this Earl was too much familiarity with the Kings Mother Indignation and Revenge and not Justice formed the Process It was proceeded to condemn him Judicio Zeli upon pretence of the Notoriety of the fact Sir Robert Cotton in his abridgment tells us Anno 4. Ed. 3. That the King charged the Peers who as Judges of the Land by the Kings assent adjudged that the said Roger as a Traytor should be drawn and hanged The Bishops were not present certainly they were none of the Judges that gave Judgment as the King pronounced without Cognisance of the Cause The King had more Honour for their Order than to call then to such Drudgery and service of the Crown The iniquity of the sentence appears by the reversal thereof in Parliament 25 Ed. 3. in which the Original Record is recited Sir Robert Cotton in his Abridgment tells us That this Earl being condemned of certain points whereof he deserved commendation and for other altogether untrue surmises there was a Bill brought into the Lords House for the reversal of the Judgment and it was reverst by Act of Parliament indeed it could not be otherways reverst for no Court can judicially reverse their own Judgment for Error in Law and Judgment in the Lords House being the dernier Resort cannot be repealed but undone it may be by themselves in their legislative Capacity Here saith the Octavo the Bishops were not present at the passing of that Bill but yet the Octavo Gentleman will not pretend that the Bishops are to be excluded in any Acts of Legislation Why therefore was he so willing to impose upon the people so falsely and unrighteously and to produce this as a Precedent against the Bishops Right of Session in matters of that Nature by himself recognized There is nothing can excuse him herein for he is certainly self-condemned of undue Art in thiâ— matter In 20 R. 2. the Case of Sir Thomas Haxey happen'd which the Octavo book page 20 produceth against us He was forsooth condemned in Parliament for that he had preferred a Bill in the House of Commons for regulating the outragious Expences of the Kings House particularly of Bishops and Ladies Haxey was for this tryed and condemned to death for it in Parliament And here appears to be no Bishops and there ought not to have been any for these reasons First that the Bishops were the parties wronged and therefore could not in any fitness give sentence But Secondly if that was not in the Case that that caus'd the process was Royall anger upon a great faction of State in which I believe the Bishops were not engaged made for deposing of Rich. the 2d that was understood by the King to be in acting and promoted by Sir Thomas Haxey by his Bill It was this made the sentence altogether abhorrent from legal justice in matter and form Here was a Tryall of a Commoner by Peers a matter made Treason that did participate nothing of the nature of Treason But the discreet Gentleman
the King for that office the best of those they know which are many times most unfit But this may be remedied when his Majesty shall please to give leave to the Clergy of the Diocess to choose their own Diocesan their Choice notwithstanding submitted to the Kings approbation and Confirmation which was permitted by Justinian the Emperor and was in use in several of the best Ages of the Church or by some other method which may be advised by his great Council whereby the greatest assurance may be given that the best and fittest persons be preferred to Bishopricks for the Common people are envious and suspicious and what ever may be done by bad means they always think is so But if Bishops were promoted to their Sees with the gratulations and applauses of the whole body of the Clergy of the respective Diocesses all that passeth under their advice and consent would likely meet with the general satisfactions of the people as it would well deserve as long as the Clergy can have any Authority with them That is as long as the Nation continues Christian But the general Corruption of Manners and decay of Piety is the great and truest cause why the Bishops unenvied enjoy no part of that honour that our Ancestors Wisdome and Piety conferred upon their order conformably to all other the Ancient Christian Governments But when Virtue and Piety shall recover their esteem the reverence of the Clergy will return We are not like long to expect this happy Change for Vice is now arrived to a Plethora and like to burst by its own excesses And we well hope that the mischiefs which we suffer will cure that evil from whence they spring and prevent the greater Calamities that it further threatens However it becomes all good men to assist to support the present Government which is the cheapest the surest and the next way to arrive at a happy constitution of things This was the design of the Author of the Grand Question After the publication of that Book I laid by all thoughts of publishing this Treatise But perceiving that notwithstanding what he hath said the Right yet remains controverted and a Book is since printed wherein several things are objected in prejudice of this Right and more is expected I did review these Papers wherein I found I had prevented those objections and with a little application they would appear insignificant I did resolve to make this publick And besides that I apprehended some things material to the Question were omitted by the Grand Question that a several way of speaking things to the same purpose hath its advantage Our great Courts affect to have several arguments on the same side in great Causes and our Reporters publish them Besides herein several things are occasionally discourst of which makes it of further usefulness to the publick Our adversaries also were treated too kindly by him and had deserved sharper reflections than he makes upon them for their false and perverse Reasonings and ought to lose that reputation which they abuse to the hurt of the Government And further I thought it not for the honour of our faculty that never fails to supply the worst cause with Advocates That a question of this Nature wherein both Church and State Religion and our Civil Policy is concerned and the Right thereof not only clear and evident in it self but also useful to the State should have not one of the Robe to plead for it The friends of the Cause will not grudge to read two Books for the Right as well as several against it and the Adversaries of our Cause ought to suffer the like trouble themselves which they occasion to others These Considerations did induce me to publish this Treatise I am well pleased that I am ingaged in a good Cause that was suited to one of my slender Abilities Right is so strong an Argument for it self that it wants only light to discover it Whereas an unrighteous cause stands in need of disguisings and shadowings and all the Artifices and fetches of the Wit of abler men to give that a Colour at least which is destitute of Law and Right THE CONTENTS CHAP. I. THe Nature of the Right the obligation to use it the obvious indications of it and the benefit which may be reasonably expected in the exercise of it How it came to be drawn into question and how it can be fairly determined how it hath been opposed and upon what Reasons and Evidence the Right doth rely Chap. II. The general prejudice against this Right from an Opinion conceived that the Clergy ought not to intermeddle in Secular Affairs remov'd That Bishops have been employed in the greatest trusts by Emperors not hindred by the Church but this hath been envy'd to them by the Pope Chap. III. The Precedents that are produc'd from the Parliament Rolls against this Right are considered They prove not pertinent at most but bare Neglects not Argumentative or concluding against the Right Chap. IV. This Right cannot be prejudic'd by non user The Nature of Prescription that the Right in question is not prescriptible The Original of this Right that it is incident to Baronage The Bishops when made Barons and for what reason That all Offices whether by Tenure or Creation are Indivisable Chap. V. Bishops never pretended the Assise of Clarendon when said to be absent Bishops sat in Judgment upon Becket and his Crime and Charge Treason by which it is demonstrated that the Assise of Clarendon only put them at liberty but not under restraint from using their Right of Judging in Capital Causes Chap. VI. Bishops sat in Judgment upon John Earl of Moreton after King John the Bishop of Coventry c. for Treason Chap. VII An Opinion prevail'd and continued long that no Judgment in Parliament where the Bishops were absent was good and their absence assigned for Error to reverse Judgment in Treason in Parliament prov'd by the Petition of the Commons 21 R. 2. upon their protestation made 11 R. 2. And by that protestation it is evident they had a Right and that they saved it by that protestation They pretended they could not attend the matters then treated of by reason of the Canon But alledged no Law for their absence Chap. VIII Of Canons Canon law What effect Canons can have upon a Civil Right The Canons prohibiting the use proves the Right Chap. IX Bishops made their Proxies in Capital Causes which proves their Right and their thereby being virtually present and the lawfulness of making Proxies and such as they made Chap. X. A Repeal of the Parliament 21 R. 2. No prejudice to what the Bishops did in making their Proxies The Opinion of Bishops presence being necessary in Parliament continued in time of H. 5. Chap. XI Bishops actually exercised this Authority in 28 H. 6. in the Case of William de la Pool Duke of Suffolk Opinion of the Judges that Bishops ought to make Proxies in the Tryal of a
sincerity and to make a Precedent where he could not find one for his turn he foists a Battery into the Case hoping that then the forward Reader would supply the Rest and smell blood in the Case which must be interdicted to a Bishops Cognizance But observe what an aking-tooth he hath against the Bishops Right for he could not but have in his mind what almost immediately after he writes down in his Octavo viz. the Case of Sir John Lee 24 E. 3. and of several persons 50 E. 3. and 51 E. 3. censured in Parliament by Bishops for misdemeanors And he saith well they might which certainly together with the Case of Michael de la Pooll 10 R. 2. he troubled himself to transcribe to make a shew of Number and false musters a sleight that must not pass upon the people and a Stratagem that will never get him any advantage towards a Victory We omitted to consider the Case of Sir William de Thorpe 50 E. 3. as it lies in order in his Book because we thought it more expedite to examine those that spake to the same thing together but now we will examine it The Record of a Judgment of death against him for Buggery was brought into Parliament saith the Octavo in full Parliament saith Sir Robert Cotton and the King caused it to be read before the Grants in Parliament The Bishops saith the Octavo could not be there because this was no imployment for them and thus he proves his cause it was so because it was so And for want of proof concludes he hath a very good Cause But he knows if he would tell us the truth that a full Parliament doth include Bishops that the Bishops are truly Grants and so called that the Bishops could not vanish away at the putting of the question But we should have had a most famous Record of that story and wonderful Accident The Cause of William de Weston and John de Gomenits 1 R. 2. was for traiterously surrendring Towns and Castles in Flanders to the Kings Enemies And the question was whether they behaved themselves well in their defence and did therein like valiant and faithful Commanders Whether the Towns could be preserved against the strength of the Enemies that did attach them Indeed not a very proper question for a Bishop to determine The Examination of the Charge and defence was committed to several Lords Temporal named in the Record But it must be observed though these Lords managed the Cause found the Towns upon Examination not of necessity but willfully delivered and agreed what Judgment should be pronounced against them Yet observe their Answers were put in full Parliament When the Judgment was pronouncing there was likewise sitting a full Parliament which the Octavo doth wilfully omit And the Record further saith that they were brought before the Seigniors in Parliament Friday the 27. of November and again before the said Lords Saturday the 28. of Nov. That all this while in the Record there is no mention of the Names of any particular Lords so that we hear nothing yet in the Record but of a full Parliament Seigniors in Parliament which are the most comprehensive terms and can and do include Bishops and strongly intend them included He that saith all excepts none the Record saith that when the Judgment was to be pronounced Les Seigniors dudit Parliament cestascavoir and then names the Duke of Lancaster Earls of Cambridge March Arundel Warwick Stafford Suffolk Salisbury Northumberland Lord Nevil and Clifford and other Lords Barons and Bannerets being then in Parliament had met and advised upon the matters before These Lords agreed it seems the Judgment for the whole House and it was pronounced in full Parliament and that in the Names and Authority of the whole Parliament Pray let it be observed that when the Record speaks of Seigniors in the first part of it no Lords are named and so all intended when afterwards he mentions the Lords the Record saith avantdits or foresaid Lords and no Lords named yet so that all the Lords of Parliament are then likewise included But when he names the Lords that had advised there is no avantdits or aforesaid Though the Octavo puts the avantdits or the aforesaid to the named Lords to the purpose that it may seem that no Lords were present in this Cause before in Parliament but those named and mentioned amongst the which there were no Bishops against the Faith of the Record To the Record I appeal Rot. Parl. 1 R. 2. Mem. 5. The next is Sir Ralph Ferrers his Case 4 R. 2. He was brought into Parliament and there tryed for Treason in holding intelligence with the French The Entry is It seem'd to the Lords of the Parliament that the said Sir Ralph was innocent This testimony too is argumentative and concludes Bishops not there because not expresly mentioned as they were in Alice Perries Case 1 R. 2. I never could have a good opinion of a cause that hath nothing but argumentative proofs for this reason because there are more things possible than ever happen'd but a reasoning Witness is always accounted a willing Witness and therefore a Witness suspectae fidei but most certain a Witness with a reason His testimony is no better than his reason But I pray must the Entries of the Clerks be so nicely weighed Are they so oracularly penned that every iota of the Journal must comprehend a Mystery of State and carry in it the very constitution of the Government must that be such and no other than short or large Entries make it Must a Criticism upon the Clerks form of Entry alter and refix the Government must it change and be ambulatory at the haste or leasure the short or more large Entry of the Clerk Did ever any wise man before this Criticiser ever determine questions of the greatest moment upon such trifling considerations or suspend the most momentous concerns of a Nation the very Government it self upon such a very slender thread But to leave no scope for such Cavillations we will turn him to the Parl. Rolls of 14 E. 3. Were not the Grants the Bishops as well as the Temporal Lords Are not both Bishops and Peers called Seigniors Are not Seigniors and Grants of the same import And as certainly this argumentative testimony makes no credit to the Cause nor to the Author of the Octavo who produc'd it The next Case is of the Bishop of Norwich 7 R. 2. who is brought to Judgment in Parliament amongst other offences for betraying Graveling to the French which was Treason And this cause the Record saith was heard before the Lords Temporal And here I will agree that the Bishops were not present but I will not allow that they were excluded And if that addition of Temporal had been to the Seigniors in Sir Ralph Ferrers Case or to the Grants in Sir Wil. Thorps I would have allowed the Bishops in those Cases not present likewise But why I pray may
Regni definitum est quod Comes Johannes disseiseretur de omnibus Tenementis suis in Anglia Castella sua obsiderentur This is a Cause of Treason for that Richard the First immediately upon the demise of the Crown was King It can be no objection that this was not a formal Parliament for whether it was or no it seems the Bishops power in that Cause was allowed That it was Commune Concilium Regni and had the Nature of a Parliament And that the Bishops therein had a parity of Authority with the Temporal Lords But soon after his return King Richard held a Parliament at Notingham Hoveden mentions the Bishops that were present by Name In which Parliament our Historian tells us That the King Petiit sibi Judicium fieri de Comite Johanne fratre suo qui contra fidelitatem quam ei juraverat Castella sua occupaverat terras suas transmarinas destruxerat foedus contra eum cum inimico suo Rege Franciae contra eum inierat And the like Justice he required against the Bishop of Coventry for that he had adher'd Regi Franciae Comiti Johanni inimicis suis and it was thereupon adjudged Judicatum saith Hoveden quod Comes Johannes Episcopus Coventrensis peremptoriè citarentur si intra quadraginta dies non venerint nec Juri steterint Judicaverunt Comitem demeruisse regnum Episcopum Coventrensem subjacere judicio Episcoporum in eo quod Episcopus erat Judicio Laicorum in eo quod ipse Vicecomes Regis extiterat You see here the Bishops zeal and Loyalty that they adjoyn'd the censure of the Church which they had power of as Bishops to a Civil punishment which they with the Temporal Barons had Authority to pronounce against One of their own Order who was guilty of a design to engage a Nation in a War by opposing the lawful Successour to the Crown and this being so great a Cause We hear nothing here of any scruple the Canon gave them nor mention of any Priviledge of an Ecclesiastick to be exempt from the Judgment of the secular Court In the same Parliament Giraldus de Canavilla was accus'd of harbouring of Pirats and Praeterea saith Hoveden appellaverunt eum de Laesurâ Regiae Majestatis in eo quod ipse ad vocationem Justitiariorum Regis venire noluit nec juri stare de praedictâ receptatione raptorum neque eos ad Justitiam Regis producere sed respondet se esse hominem Comitis Johannis velle in Curiâ suâ Juri stare Hoveden tells us all that were present at this great Council Hubert Arch-Bishop of Canterbury Galfridus Arch-Bishop of York Hugh Bishop of Durham Hugh Bishop of Lincoln William Bishop of Ely William Bishop of Hereford Henry Bishop of Worcester Henry Bishop of Exeter and John Bishop of Carlisle Earl David Brother of the King of Scots Hamelinus Earl de Warrenna Ranulfus Earl of Chester William Earl of Feriers William Earl of Salisbury and Roger Bigot Let any one judge if it was likely that the Bishops did withdraw in the Case of Earl John or the said Bishop when besides them there were but six Barons present at that Parliament What manner of great Council would this Parliament have been that had consisted but of six Barons of what Authority would such a Parliament have been in the absence of the King and a troubled Estate of the Kingdom CHAP. VII IN the time of Edward the Second in the two Judgments against the Spencers the Right of the Bishops to judge in capital Causes in Parliament was carried so high in opinion that their presence was thought necessary to give Authority and validity to the Judgment of the House of Lords in such Cases and their absence was assigned for Error for Reversal of those Judgments for an Error that appears in the irregularity of the Proceedings is an allowable Cause for vacating the Judgment by the same Court that gave it And so far did that Opinion prevail that the presence of the Lords Spiritual was necessary to give Authority to a Judgment of that House that for this Cause because the Prelates were absent that Judgment was reversed Which opinion did arise upon this mistake that because the Lords Spiritual was one of the two States that made the House of Lords nothing could be done without their concurrence But though they are a distinct State from the Temporal Lords they make but one House and they are both there under one Notion and Reason viz. as they are both Lords Spiritual and Temporal the Baronage of England But let any man tell me that can whether if the Lords Spiritual had not been understood Judges in Parliament in Capital Causes it could have been a question whether their absence could avoid the Judgment in the Case of the Spencers much less that such an opinion should prevail that the Judgment should be as it was for that reason reversed And tho' the Reversal of that Judgment was set aside and the Judgment affirmed in 1 E. 3. Yet the publick Recognition of the Bishops Right in the Reversal remains an undeniable Testimony to their Right of sitting Tho' the Reversal of that Judgment was not warrantable for the reason of the Bishops absence as it could not have been reversed by reason of the absence of as many Temporal Barons if there remained enough besides to make a House to give the Judgment And yet we find the Reversal of the Reversal reversed in 21 R. 2. and the Family of the Spencers restored in the person of the Earl of Glocester So prevalent was the opinion that the Bishops Concurrence was necessary in all capital Judgments in Parliament at that time For this see Sir Robert Cottons Abridgment fol. 373. Yet it is observable that the consequence from the Bishops being a third State and an Essential constituent part of that House to a necessity of their presence in all judicial matters even of Capital Offences and Treason did so stick with that Age for they then in that Age did no more know what three States served for or that they both made but one House than some in our time can tell how to find them For that very Reason in 21 R. 2. the first Petition that the Commons made in that Parliament to the King was for that diverse Judgments were heretofore undone for that the Clergy were not present The Commons prayed the King that the Clergy would appoint some to be their Common Proctor with sufficient Authority thereunto The Prelates therefore being severally examined appointed Sir Thomas de la Piercy to assent The words of which Petition and the procuratory Letters for greater Authority and more satisfaction I have thought fit to transcribe Nos Thomas Cantuar. Robertus Eborac Archiepiscopi ac Praelati Clerus utriusque Provinciae Cantuar. Ebor. jure Ecclesiarum nostrarum Temporalium earundem habentes jus interessendi in singulis Parliamentis Domini nostri Regis
Regni Angliae pro tempore celebrandis necnon tractandi expediendi in eisdem quantum ad singula in instanti Parliamento pro statu honore Domini nostri Regis nec non Regalie ac quiete pace tranquillitate Regni judicialiter justificandi venerabili viro D. Thomae Peircy ..... Nostram plenariam committimus potestatem ita ut singula per ipsum facta in praemissis perpetuis temporibus rata habeantur The Commons of England knew what they said and could not be mistaken in fact we know of no Judgments reversed but those of the Spencers But we have no Records or very few of the times before Edward the Third transmitted to us through the injury of the times but they then had certainly whereupon they grounded their petition upon which the said procuratory Letters were made which petition here follows in terminis Mecredy prochein ensuant les Communes monstrerent au Roy coment avant ces Jeures plusieurs jugements Ordinances faitez en temps des progenitors nostre Senior le Roy en le Parliement eiant estre repelles adnulles pur ceo que l'estat de Clergie ne fust prest en Parliament a la faisaunce des dits jugements Ordenances pur ceo prierent au Roy que pur surete de sa personne salvation de son Royalme les Evesques le Clergie ferroient un Procurator aver poiar sufficient pur consentir en leur nosme as toutes choses ordinances a justifieis en cest Parliament que sur ceo chescun Signior espiritual dirroit pleinenent son advys Sur qui les dits Seigniors Espiritual severalment examines se consenterent de Comettre lour plein poiar grantant en les parts nosmerent on especial Tho. Peircy Chivaler sur ceo baillerent au Roy une Schedule contenant lour dit poiar le quelle nostre Seignior le Roy receust commanda la dite Mecredy estre enter de record en Rol de Parliament deque cela Schedule le form sensuit But it is remarkable that this Petition was made in 21 R. 2. for that in the 11 R. 2. the Bishops had made their Protestation that by reason of a Canon they could not be present The words of the protestation we shall here transcribe Per encheson certeins mattires feurent mouvez en cest present Parliament toucherent overtement Cryme L'archevesque de Canterbiry les autres Prelates de sa province fierent une protestation en la fourme paroles qui suent In Dei nomine Amen Cum de Jure consuetudine Regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non caeteros suos Suffraganeos Confratres Coepiscopos Abbates Priores aliosque Praelatos quoscunque per Baroniam de Domino Rege tenentes pertinet in Parliamentis Regiis quibuscunque ut Pares Regni praedicti personaliter interesse ibidemque de Regni negotiis aliis ibi tractari consuetis cum caeteris Domini Regis Paribus aliis ibidem jus interessendi habentibus consulere tractare ordinare statuere definire ac caetera facere quae Parliamenti tempore ibidem invenerint faciend in quibus omnibus singulis nos Willielmus Cantuarien Archiepiscopus totius Angliae Primas Apostolicae sedis Legatus pro nobis nostrisque Suffraganeis Coepiscopis Confratribus necnon Abbatibus Prioribus ac Praelatis omnibus supradictis protestamur eorum quilibet protestatur qui per se vel procuratorem hic fuit modo praesens publicè expressè quod intendimus intendi volumus vult eorum quilibet in hoc presenti Parliamento aliis ut Pares Regni praedicti more solito interesse consulere tractare ordinare statuere definire ac caetera exercere cum caeteris jus interessendi habentibus in iisdem statu ordine nobis eorum cuilibet in omnibus semper salvis Verum quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet personaliter interesse ea propter pro nobis eorum quolibet protestamur eorum quilibet hic praesens etiam protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus intendit nec vult aliquis eorundem in praesenti Parliamento dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos nostrum quemlibet in ea parte penitus absentare Jure Paritatis nostrae cujuslibet eorum interessendi in dicto Parliamento quoad omnia singula inibi exercenda nostro eorum cujuslibet statui ordini congruentia in omnibus semper salvo Adhuc insuper protestamur eorum quilibet protestatur quod propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit vel vult quod processus habiti habendi in praesenti Parliamento super materiis auditis in quibus non possumus nec debemus ut praemittitur interesse quantum ad nos eorum quemlibet attinet futuris temporibus quomodolibet impugnentur infirmentur seu etiam revocentur Quelle protestation leu en plein Parliament al instance priere du dit L'archevesque les autres Prelates susditz inrollez ycy en rol du Parlement per Commandement du Roy assent des Signiors Temporeles Communes This the adversaries of the Bishops would have an Act of Parliament for that at the prayer of the Bishops by the Kings command with the assent of the Lords Temporal and Commons it was inrolled for that all the formalities that were used in these times in passing a Law was only to have the matter shortly entred in the Roll or Journal Book that such a thing was agreed upon by the King and two Houses which was drawn into the form of a Law afterwards by the Justices and Kings Councel when the Parliament was risen but this was never done in this Protestation and therefore we might say that it is not to be taken for a Law But we will admit it to be a Law yet it can be a Law only for that Case and can be extended no further Those Bishops protest but for whom For themselves only their own persons not their successors that by reason of the institution of the Canon they could not be present at certain matters to be treated of in the Parliament What those Canons were they do not tell us They had no other reason but the Canon to pretend at that time We hear not a word from them of the Assise of Clarendon And what was it that they protested Why only that they could not be present at what only at the matters aforesaid mentioned in the Petition and in that present Parliament But was this without any regard of their Right No they saved their Right their
yet when the business of the Parliament was extraordinary the Writs of Summons both to the Prelates and Barons had a Premonition that a Proxy should not be allowed unless they could not possibly be present dors claus 6 E. 3. m. 36. claus 1 R. 2. m. 37. 2 R. 2. m. 29. Nor was it unusual with the Prelates to make such their Procurators who were no Members of that House In that Parliament of Carlisle under E. 1. the Bishop of Exeter sends to the Parliament Henry de Pinkney Parson of Haughton as his Proxy The Bishop of Bath and Wells sends William of Charleton a Canon of his Church In the Parliament 17 R. 2. the Bishop of Norwich made Michael Cergeaux Dean of the Arches and others his Procurators In the same year the Bishop of Durham his Proxies are John of Burton Canon of Beudly and others In the Statute of Praemunire 16 R. 2. cap. 5. it is said that the advice of the Lords Spiritual being present and of the Procurators of them that were absent was demanded This making of others then Barons of Parliament Proxies is not without President likewise in the case of Temporal Lords Lit. Procurator Parl. 4 H. 5. Thomas de la War gave his Procuratory Letters to John Frank and Richard Hulme Clerks So that it appears that by the Law of Parliament the Proxies of the Bishops in the 21th of R. 2. were legal Proxies and consequently the Bishops there virtually Besides that the lawfulness thereof doth appear for that it was required of them by the Parliament that they should make their Proxies and be present by their Procurators for this reason lest otherwise the Proceedings in that Parliament should be void CHAP. X. IT is true that the Parliament 21 R. 2. was wholly repealed by 1 H. 4. but that was for a good reason indeed because that Parliament of 21 R. 2. had delegated their whole power to a few of their number who finally without any resort back to the House made and past Laws But did ever any man before the Octavo argue at this rate that because there is one error in a case for which the Judgment is reversed that therefore there was nothing in the case legal and well considered And therefore how unreasonable and false this way of arguing is and that it is disputing against fact we shall further shew and prove For a probable Opinion still continued of the necessity of the Bishops sitting which implies a clear Recognition of a Right for in the 2 H. 5 the Earl of Salisbury petitioned the House to reverse a Judgment given against the Earl his Father Anno 2 H. 4. the Error assigned was the Absence of the Spiritual Lords The Case was much debated but the Judgment affirmed as we allow it ought to be but we produce it as an irrefragable Testimony of the Bishops Right to sit for if that had not been allowed there could not have been the least colour in the case nor matter of debate CHHP. XI BUt tho' the Actual Exercise of the Bishops Right in their own Persons though whatsoever is done by a Deputy is done in the Right of him that makes the Deputation as every body knows was for some time discontinued tho' their Right in that time was most solemnly owned and recognized yet in 28 H. 6. we find them re-continuing the Exercise of that Right and Authority and in their own Persons sitting in Judgment upon William de la Pool Duke of Suffolk who was impeach'd of Treason by the Commons for that he had sold the Realm to the French King and had fortified Wallingford Castle for a place of Refuge The Impeachment of High Treason was brought from the House of Commons by several Lords Spiritual and Temporal sent thither by the King's Command the Ninth of March the Duke was brought from the Tower into the Presence of the King the Lords Spiritual and Temporal The Impeachment was read unto him The Thirteenth of March he was sent for to come before the King the Lords Spiritual and Temporal to answer to his Charge which he did On Tuesday the Seventeenth of March the King sent for all the Lords Spiritual and Temporal who were in Town They are named two Arch-Bishops and thirteen Bishops besides the Temporal Lords who being assembled the King sent for the Duke There was no Judgment given by the Parliament but he submitted to the King and the King gave him Penance which was that he should be absent for Five Years out of England The Lords Spiritual and Temporal by Viscount Beaumont declared to the King that this that was so decreed and done against the Person of the Duke proceeded not by their Advice and Council with this Protestation that it should not be nor turn in Prejudice nor Derogation of them their Heirs ne of their Successors in time coming but that they may have and enjoy their Liberty and Freedom as largely as ever their Ancestors or Predecessors had and enjoyed before this time Observe here that the Lords Spiritual were present at every Motion of this Cause This Cause was thrice before them no Exception taken to the Bishops being Judges They could not sit by Permission without Right if the Bishops had no Right to sit the Proceedings had been certainly erroneous For though one Judge's Absence if there be a Quorum will not vacate a Judgment yet if one sit in Judgment that is not an Authorized Judge the Proceeding is certainly erroneous and void Can any man believe that the Government should lose it self forget it s own Establishments in the highest concerns We may as soon believe that a man may forget his own name One positive Act of Session signifies more than 100 Omissions for if it had not been well understood that the Bishops had a Right to sit in Judgment in Capital Causes in Parliament they could never have been admitted they would never have presumed to endeavour it But with false Logick and absurd Reasonings and dislike to the Order it is become an Opinion in this Age because sometimes the Bishops absented that they have no Right But we have one thing further to add that declares an inherent Right in the Lords Spiritual to the Authority in question and that is an Opinion of the Judges 10 E. 4. 35. which says that the Lords Spiritual in case of a Tryal of a Temporal Peer in Parliament shall make a Procurator for then it seems an Opinion was received which was error temporis That it was indecent for Bishops to sit in their own persons in Judgment in such cases But they themselves are best Judges of what is indecent and unbecoming their Order for no man is obliged to any man but himself in the matters of Decency and the measures that make things decent or indecent is very mutable as changable and mutable as Customs Fashions and Opinions Besides that there is nothing that is very valuable and is of great concernment but can and
pleaded in Bar upon which the Defendant will be certainly relieved in Chancery may notwithstanding it hath not heretofore be hereafter allowed in our Law-Courts we should be in a great measure restored to our easie expedite cheap and certain Justice which the Methods of our Common Law-Courts hath most excellently provided until a Parliament sometime or other may consider whether it be not fit to take it quite down by inabling Courts of Law to do true Right in all Causes that shall come before them For nothing renders the Chancery tolerable but the mo exemplary Virtue and Great Endowments of our present Lord Chancellor in which he is not like to have a Successor But to return to the Curia Regis it was not only the great Judicature of the Nation formally but it was also materially our Parliament too That this Curia Regis was not without any more the Parliament of these times is evident first that the Curia Regis was summoned by a general Writ of Summons directed to the Sheriffs in this Form viz. Rex Vicecomiti Northamptoniae c. praecipimus tibi quod summoneri facias Archiepiscopos Episcopos Comites Barones Abbates Priores Milites Liberos homines qui de nobis tenent in Capite c. Rot. Claus 26 H. 3 M. 7. Dorso This must necessarily be this Curia Regis in Distinction to a Parliament For that in the Grand Charter of King John made in the last year of his Reign it was granted that Ad habendum Commune Concilium Regni de auxilio assidendo aliter quà m in tribus praedictis casibus i. e. Those cases of Aid to make the eldest Son a Knight to marry the eldest Daughter and of Ransom and de Scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per Literas nostras Et praeterea faciemus summoneri in generali per Vicecomites Ballivos nostros omnes alios qui in capite tenent de nobis At present we make no other use of this Grand Charter than to prove it a distinctive mark of a Parliament where the Summons are personal to the Bishops Earls and the greater Barons This Charter of King Johns declares the ancient usage of summoning the greater Barons by special Summons to them severally directed for that the Kings before him as Sir Henry Spelman in his Glossary p. 80. Propter crebra bella simultates quas aliquando habuêre cum his ipsis majoribus suis Baronibus alios etiam eorum interdum omitterent aegrè hoc ferentes Proceres Johannem adegêre sub magno sigillo Angliae pacisci ut Archiepiscopos Episcopos Comites majores Barones Regni sigillatim per Literas summoneri faceret By which it was provided that all the Barons should have pro more Summons to the Parliament that non of those great Barons should want his several Summons and they had anciently several Summons for in a general Summons no body was excluded By which it doth appear that the Council at Northampton wherein Thomas of Becket was brought in judgment was a Parliament and not the Curia Regis for that the Bishops had their several Writs of Summons which appears in that Fitz Stephens tells us as matter of observation that Thomas of Canterbury had not his Writ of Summons but was cited as a Criminal to answer which we before observed And this was but necessary that when the Tenents in capite or Barons which principally at least made the Parliament were to be consulted about some arduous Affairs that they should have notice and a solemn intimation thereof and their presence required and enjoyned by Writs to them particularly and personally directed Besides that it was agreeable to all the forms of Government then in use to have their ordinary and extraordinary Council For Omnes Germanicae Originis Reges atque Imperatores duplici Concilio antiquitùs utebantur altero statario qui Senatus dicitur ad res quotidianas altero evocato concilium aut conventus ordinum ad res momenti majoris as Grotius assures us Neither can it be denied by any man of modesty who hath heard any thing of the state of our Government before the Conquest and that knows that many ancient Burroughs send Burgesses to Parliament by Prescription and will consider the Records produced by Mr. Petit in his very learned and elaborate Book called The Ancient Right of the Commons of England to prove the Right of ancient Burroughs to send Members to Parliament who represent them but that such though not Suiters to the Curia Regis were Members de jure of the great Council of Parliament But the truth is they are not mentioned in any Record or History of any Parliament from the beginning of the Conquerours Reign to the end of Henry 3. as a distinct part of the Parliament of England their Numbers and Qualities were little and mean of no consideration in comparison to that great Body of the Baronage that constituted our Parliaments in that time but our Parliaments seem by the style used in Histories and Records to be onely the Baronage of England William the First in the fourth year of his Reign Consilio Baronum suorum saith Hoveden pag. 343. fecit summoneri per universos Consulatus Angliae Anglos nobiles sapientes sua lege eruditos ut eorum jura consuetudines ab ipsis audiret Those who were returned shewed what the Customs of the Kingdom were which with the assent of the same Barons were for the most part confirmed in that Assembly which was a Parliament of that time saith Mr. Selden Titles of Honour pag. 701. Amongst the Laws of Hen. 1. published by Mr. Abraham Whelock cap. 2. I find thus Forestas communi consensu Baronum in manu mea retinui sicut pater meus eas habuit And after Lagam Regis Edwardi vobis reddo cum illis emendationibus quibus pater meus emendavit consilio Baronum suorum The Parliament is styled Commune Concilium gentis Anglorum and at the same time Commune Concilium Baronum and also Clerus Populus Matth. Paris fol. 52 53 54. And this is sometimes called Communitas for that it represents the whole people and involves their consent Which appears by 48 H. 3. Pars unica M. 8. D. Haec est forma pacis à Domino Rege Domino Edwardo filio suo Praelatis Proceribus omnibus Communitate Regni Angliae communiter concorditer approbata And that Communitas Regni hath no other sense than commune concilium Regni and used as a comprehensive term of them that made it is evident for that it is said in the second Record Si videntur communitati Praelatorum Baronum And again Per consilium communitatis Praelatorum Baronum Further Magnates Vniversitas Regni sometimes used for the Parliament Matth Paris 659,666 And after King John's Charter wherein it was
Son hath the Question the Father is taken to be confessed in tormentis filii But for a further instance to make it appear how imcompetent the duty of a Magistrate is with the Nature of a Father I will observe that notwithstanding a Law was given to Adam and all his Sons to establish judicatures according to the Tradition of the Jews as may be seen in Mr. Selden his Book de jure Gentium secundum Hebraeos which Law by the way had been supervacaneous if the Power of a Prince did belong to Adam in the right of his paternity and a Government had been provided for them by their Birth Yet I say notwithstanding that There was such a Relaxation of Justice in the World before the Flood because it could be only administred by a Father or such who participated of the stock of love lodg'd in the common Father from whom his Children did derive their tenderness one to another as they themselves sprang from him That the World was grown so wicked with in 2 ages as men then liv'd from the creation that a Universal deluge was brought upon the World by the Just Judgment of God for the outragious insufferable Wickedness that had spread it self universally over mankind 8 Persons only excepted The overflowing deluge of Wickedness that caus'd the deluge of waters can't be imputed to a more probable cause than to the indulgence and impunity that the observed and understood nearness of Kindred that all men stood then in to one another must naturally occasion This is a sad consequence of that natural Love in Parents towards their Children which was intended for the propagation and advancement of mankind But since that now we are estranged one from another in remote and unknown degrees that prejudice is over Here is a gentleman to destroy the World another way and to undo us by unreasonable and unbounded power which is a like apt to make the World fit for another Universal destruction if it be not without more destroyed by it doth endeavor to turn the exercise of such power into a Right and to give it warranty from the Reason and way of our propagation and by this means to destroy us faster then we can be born and bred and impare the Generations of Mankind or render them extreamly miserable or wicked which is much worse extinguish the light of the world which is Love and Amity and destroy the encouragement and reason of almost all relative Morality What a Saturnine Father have we got to make a golden Age who ever would have thought that the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the most moving kindest most tender pleasing and beneficent instinct in Nature planted by God the Father of us all for the propagating educating and improving humane Nature should ever be made use of to found a Right of Tyranny and Arbitrary domination the greatest destroyer and depraver of Mankind What Monster hath this last Age produced a Christian a Father seriously endeavoring to persuade all Mankind to offer up their Children to Moloch the Saturn of the Easterlings who was but the Devil of Tyranny as the name imports This 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the true origen and Fountain of Love and Amity and the sociable Virtues which render men humane from whence flows all the happiness of mankind will by this Doctrine be corrupted and rendred unsincere and self designing For when a Father performs an Act of Generation it seems now he designs to add a slave to his Retinue and when a Child is born there is another item added to the inventory of his Estate If this Fountain be corrupted there can be nothing sincerely kind after it in humane Nature The Leviathan is out-done by this Gentleman and hath not performed half so renownedly in the great Work of depraving Humane Nature as our Patriarchal Knight will do if his Admirers can bring him into vogue and esteem For the Author of the Leviathan allowed something good in Humane Nature several equal propensions which he terms her Counsels and sometimes adventures to call the Laws of Nature But he concludes they are not practicable and they are only fools who govern themselves by them But this Gentlemen will not allow Nature to be good in her first institution and designment tho in this I think they are near agreeable that Mr. Hobs made the Pourtraiture of Humane Nature in an agreeableness to his own evil Ingeny And this Knight did set himself when he made this his draught of a Father he could have no other Original but himself or the Idea of the moross and sower Dr. P.H. his admired friend but by his Character he had at least misfigured his understanding and made it his own Nature by liking it 2ly No more of authority belong'd to Adam over his Children then does to any of his Children over his for that this Authority proceeds from Nature and Nature is a like in all men the duty of their education and the Authority over them that is competent to that purpose is as much incumbent upon them as upon the Protoplast the duty is so personal consisting 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that it cannot be transferred or permitted absolutely to any other person by the Parents nor can any man challenge a right to it or discharge the Father from it or require the same affection submission and reverence that is due from a Child to his Father To expect relative duties without Relation is most unnatural it is as impossible as incongruous and we may as well love and hate rejoyce and grieve without the proper objects and incitements of those passions The fundamental Rule of all morality is that of Simplicius 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It is as certain as any proposition in Euclid as the Doctrin of proportionable triangles and received as such by all the Masters of Moral Philosophy there is no other foundation of our duty to God or Man or towards our selves this rule must declare it and what ever is measured and allowed by this Rule is commonly called which is comprehensive of all that is honest just and fit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the application of this rule is called by St. Paul 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which when a man observes he is perfectly moral a man may as well pay his debts by giving away his Money be grateful to his benefactor by being beneficent to Strangers as perform that duty he ows his Father to any but he that is so It is impossible to separate the shadow from the Substance as to make that subsist by it self which grows by resultance from the state and condition of the person Or that without that state of the person from which it doth arise it should ever accrew 3ly Admitting Adam had a Soveraign Authority over all his descendents which must grow if there was any such thing from some positive institution and not from his paternity yet the natural Authority and duty of Parents towards their Children