it was lawful for him sometimes to reprove the other and to reduce him bring him into order if he went astray He leaves out what the Bishops work was he omits that clause Episcopus ut jus Divinum diceret for this was not to try Capital Crimes But Sir Henry Spelman tells us further that that Court had cognisance but of petty matters De causis Magnatum Potentiorum non cognovit Comes nam he ad Aulam Regiam deferende Pauperum tantum minus potentum judicabat Hinc Legibus nostris hodie prohibetur debili aut injuriarum actiones in Comitatu intendere si rei litigate valor non sit minor 40 solidis The Earl hath not cognisance of great mens business for such matters are to be brought into the Kings Courts he only judges poor mens Causes Hence it is that by our Law Actions for Debt and Trespasses are not to be commenced in the County Court if it be for above the value of 40 Shillings Judge now I pray you what all this makes to prove that Bishops have right to judge of Treason Felony and those transcendent Crimes which deserve death He then quotes Mr. Selden and makes him say in his Introduction to his Treatise of the Priviledges of the Barons of England that Omnes Praelati Magnates had this Priviledge till the Prelates lost it by the Parliament of 17 Car. 1. I find no such thing there he saith That the Prelacy had heretofore the first place in the Summons but that they had then lost it And this I observe further that Mr. Selden makes the whole upper House to be but one Estate whether the Bishops be there or No It was one Estate formerly when the Bishops had the Priviledge of sitting there and when they had the first place in the Summons and it was one Estate then in Mr. Seldens time when they had lost that Priviledge but our Assertor in the Printed Paper would take no notice of this Now I come to his Precedents he first begins with their Proxies and cites many Parliaments where Bishops gave Proxies which no man denies and they do it still only they give their Proxies now only to Bishops like themselves who are Members of the House not to such as are no Members as it seems they did then But giving Proxies to represent the whole Bench of Bishops or any one Bishop in any Judgment of death except in that one Parliament of 21 R. 2. I utterly deny Indeed he tells us of the 2. H. 4. and 2 H. 5. that they did it it there in those Parliaments but I dare say he cannot find it there I am sure I cannot and I do verily believe he never looked there but that he takes it upon trust out of the Margin of pag. 125. of Mr. Seldens Book of the Priviledges of the Baronage where indeed there is such a quotation but misplaced by the Printer having reference to what is said at the end of the Paragraph of Thomas Earl of Salisbury 2 H. 5. endeavouring to reverse the Attainder of his Father Iohn Earl of Salisbury who was attainted 2 H. 4. and not at all concerning what is said of Proxies in the first part of the Paragraph as our Assertor would here apply it Then he cites a Precedent or two to make out that Bishops were personally present at the giving of some Judgments of Death which if they be truly related he saith something but I believe they will be found to be of as little weight as all he said before His first is among the Pleas of the Crown 21 R. 2. of the Impeachment as he calls it of the Earl of Arundel and others by the Lords Appellants the Earls of Rutland Kent Huntington and others He saith the Earl of Arundel being brought to the Bar by the Lord Nevil Constable of the Tower that the Articles exhibited against him by the Lords Appellants were read to which he only pleaded two Pardons which Pardons not allowed the Lords Appellants demanded Judgment against him Whereupon the Lord Steward by the Assent of the King Bishops and Lords adjudged the said Earl guilty and Convict of all the Articles and thereby a Traitor to the King and Realm and that he should be therefore Hanged Drawn and Quartered This our Assertor saith who quotes Sir Robert Cottons Collections for it and there indeed it is so but methinks one should not venture to quote a Record upon any mans Allegation without consulting the Record it self and that I am sure he hath not done for it saith expresly that it was only the Lords Temporal and Sir Thomas Percy Proctor for the Prelats that gave that Judgment The words of the Record are Sur quoy le dit Duc de Lancaster per commandement du Roy toutz les Srs. Temporels Mr. Thomas Percy aiant poair sufficiant des Prelatz Clergie du Roialme d'Engleterre come piert de Record en le dit Parlement per assent du Roy agarderent le dit Counte d' Arundel coupable convict de toutz les pointz dount il est appellez per taunt luy ajuggerent Traitour au Roy au Roialme quil soit treinez penduz decollez quarterez Whereupon the said Duke of Lancaster by the Kings Command and all the Lords Temporal and Sir Thomas Percy being sufficiently empowered by the Bishops and Clergy of the Kingdom of England as appears upon Record in the said Parliament did by the Kings assent declare the said Earl of Arundel guilty and convict of all the points of which he was accused and therefore did adjudge him a Traitor to the King and Realm and that he should be drawn hanged his head cut off and body quartered You see the Bishops were none of them present but theit Procurator was to which in my Letter I have largely spoken and need not repeat it here He urges also a Precedent in this same Parliament of the Commons by the mouth of their Speaker Sir Iohn Bussy praying the King That for that divers Iudgments were heretofore undone for that the Clergy were not present that the Clergy would appoint some to be their Common Proctor with sufficient authority thereunto I have already shewed that this whole Parliament was repealed for the extravagant things that were done in it of which this was one And therefore nothing that was then done can signifie any thing to be a leading Case any ways to be followed And this as little as any except it could be made appear which I am confident it cannot that some Judgment had been reversed upon that account because the Prelates were not present and had not given their Assent to it Indeed 2 H. 5. Thomas Montacute Earl of Salisbury attempted it brought his Writ of Error to reverse the Judgment given 2 H. 4 against his Father Iohn Earl of Salisbury and did assign that for an Error as the Record saith Item Error de ceo que le dit John susdit Count dust forfaire terres tenements sans assent des Prelates qui sont Piers en Parlement les queux ne furent mye faits parties as Declaration Iuggementz avandits Item An Error in this that the foresaid Earl John should forfeit Lands and Tenements the Prelates not assenting who are Peers of Parliament yet were not at all made parties to the abovesaid Declaration and Iudgments But this was adjudged to be no Error and the Condemnation of his Father to have been just and Legal And I am very confident that this is the only Precedent of such an Attempt and yet it makes a stronger argument against it that it was endeavoured and rejected for now it is a Judged Case And besides as I have already observed this desire of the Commons of their making a Proctor shews what the opinion of those times was that the Bishops could not be personally present at such Judgments which is all that is now in question between us His next Precedent is 3 H. 5. when Rich. Earl of Cambridge and others were tried for Treason for levying War against the King the Bishops then personally sitting in Parliament as he saith and he bids us see the Record in the Tower which I dare say he had not done himself for then he would have found it contrary to what he asserts that Richard Earl of Cambridge and Henry Lord Scroope with him were not Tried nor condemned in Parliament as he saith they were but by a special Commission directed to the Duke of Clarence and other their Peers Earls and Barons at Southampton and were there condemned and executed but the whole Proceedings against them were afterwards brought into Parliament at the desire of the Commons and were there at their desire likewise ratified and confirmed and the Bishops then were and might be present for I look upon it as an Act of Parliament yet not attainting them but confirming their Attainder for they were Convicted Condemned and Attainted before at Southampton His last Chapter of Precedents from H. 8. to the 29 Eliz. is only of Bills of Attainder and so acknowledged by him and therefore Nothing to the purpose As I have said before those Bills are Laws though Private Laws whereto every Freeman of England doth consent either in Person or Represented and Bishops are or should be all present at the passing of them for then they act as Members of the House of Lords in their Legislative capacity But for their being Judges in any Trial of Life and Death or part of a Trial when the House proceeds in a Judicial way I see no reason by all that hath been said on the other side to change my opinion That they ought not Sir you see what is said on both sides be you Judge who is in the right FINIS
A LETTER OF A Gentleman to his Friend Shewing that the BISHOPS Are not to be JUDGES IN PARLIAMENT IN CASES CAPITAL Printed in the Year 1679. SIR SInce you desire that I would let you know my opinion whether or no the Bishops may be present and Vote Judicially in Capital Cases which come to be Judged in Parliament either in giving the Judgment itself or in resolving and determining of any circumstance preparatory and leading to that Judgment I must tell you that this is now become Vexata Quaestio The two Houses of Parliament having therein been of different Opinions the House of Peers declaring that the Lords Spiritual have a right to stay and sit in Court till the Court proceeds to the Vote of Guilty or Not Guilty and the House of Commons on the other side insisting That they ought not to have any Vote in the proceedings upon the Impeached Lords And this Difference between the Houses having been the unhappy occasion of Proroguing the Parliament may seem to lay an obligation upon every good English man if to me your satisfaction were not in the case as to wish and pray heartily that these differences may be well composed that no more Remora's may be to obstruct the proceedings of Parliament but that the two Houses may joyn with His Majesty to settle this distracted Kingdom and agree upon then apply all necessary remedies and strong ones they must be for the prevention of those mischiefs which the Enemies of the Protestant Religion and of this Government had been long Contriving and Plotting against us and were now well nigh the atchieving and putting in Execution if God of his infinite Mercy had not looked upon us As this I say ought to be every mans wish and prayer so it cannot but incite every man to satisfie himself and others where the Right is and what he ought to have in his wishes for that Right may prevail is the natural wish of every good man but good men many times differ in their apprehensions what is Right Therefore it deserves a strict inquiry into the Practice of the Parliaments of former times in such matters and well to consider upon what ground the Prelates were prohibited having Votes there in Cases of Blood For that is the Question now before us What was done heretofore and what is now to be done in Parliament that is to say in their Judicial way upon Tryals not in their Legislative capacity passing Acts of Attainder in which I know that Bishops have born a part but that is not now the question Nor do I meddle with the General Question How far forth Clergy-men in Orders are forbidden having any thing to do with Secular matters Nor what in that particular the Imperial Law requires as that Rescript of the Emperours Honorius and Theodosius which Enacts That Clergy-men shall have no communion with publick Functions or things appertaining to the Court Or the Decree of Iustinian That Bishops should not take upon them so much as the oversight of an Orphan nor the Proving of Wills saying it was a filthy thing crept in among them which appertained to the Master of his Revenue Nor what our Common Law of England seems to allow or disallow having provided a special Writ in the Register upon occasion of a Master of an Hospital being it seems a Clergy-man and chosen an Officer in a Mannor to which that Hospital did belong saying it was Contra Legem consuetudinem Regni non consonum It was contrary to the Law and Custom of the Kingdom and not agreeable to reason That he who had Cure of Souls and should spend his time in Prayer and Church-Duties should be made to attend upon Secular Employments I meddle not neither with what seems to be the Divine Law as having been the Practice of the Apostles and by them declared to be grounded upon Reason and to be but what in reason ought to be which was this That they should not leave the word of God and serve Tables though that was a Church-Office and yet they say it is not reason we should do that for their work was the Ministry of the Word and Prayer much less then were they to be employed in Secular affairs None of this I say is my business my task is only to inquire what the Law of Parliament is in this particular and what is so is the Law of the Land And my method shall be to run through all the Parliaments that are upon the Rolls in the Tower and take notice of all the Tryals there Recorded as well in Cases Capital as in those that were not so and shew the difference in the Parliamentary proceedings upon them how the Bishops and Prelates did commonly joyn with the Temporal Lords in Judging such as were not Capital and not yet always so when the Crimes were of a bigger magnitude but never but once when the Accusation was for a Capital Crime which was in the Duke of Suffolks Case 28. H. 6. when the whole proceeding was so irregular and Unparliamentary as it is to be wondered at but certainly never to be followed it is like the Bird in the Poet Rara avis in terris nigroque simillima cygno as shall be shewed more particularly when I take it up in its Order as it is mentioned upon the Rolls And so I come to my Narrative 4. E. 3. Roger Mortimer Earl of March Sir Simon Bereford and others were Accused and Tryed in Parliament And the Roll of that Parliament is so defaced as it cannot be read but 28. E. 3. Roger of Wigmore Cosin and Heir of that Earl of March desires that Attainder may be examined and by the whole proceedings there repeated it appears none of the Prelates were present the words are Dont le dit Sr. le Roi vous charge Countes Barons les Piers de son Roialme que de si come cestes choses touchent principalement a lui a vous a tout le people de son Roialme que vous faciez au dit Roger droit loial Iuggement come affiert a un tiel daver Therefore our said Lord the King charges you who are Earls Barons the Peers of the Realm that as these things chiefly concern him and you and all the people of the Kingdom so you give upon the said Roger a right and legal Iudgment as it belongs to such a one to have Then follows Les queux Countes Barons Piers les articles par eux examinez revindrent c. Which Earls Barons and Peers having examined the Articles returned c. And gave the Judgment which was that they should suffer death The Bishops cannot be understood to be comprized here under the general name of Peers since the Barons are first in rank and besides they cannot pretend to be Peers of the Realm 5. E. 3. The Parliament was declared to be called for the redress of the breach of the Laws and of the Peace of the Kingdom
authorised by them may be said to represent them and so he did but yet it shews that the Bishops as Bishops and Clergy men could not be there in their persons and that rather than they should be there present such an unusual thing should be admitted as that one Layman who else was no Peer nor had place in the House of Peers to vote there should be chosen by them to have all their Proxies put together and united in him to be disposed of by him as he should think good For it was never done but in this one Parliament there never was in no Parliament before or after such a Procuratorship or Proxy given And in this Parliament of 21. R. 2. it was thrice done first here to Sir Thomas Percy then the Parliament being adjourned to Shrewsbury it was there given it seems by vote only to William le Scrope Earl of Wilts for the words are Sur ce les ditz Prelatz Clergie nomerent ordenerent en Parlement per bouche William le Scrope Conte de Wilts commettant donant a luy pleine poair aussi avant en manere come feust comys a Mr. Thomas le Percy per devant Hereupon the said Prelates and Clergy named and appointed in Parliament by word of mouth William le Scrope Earl of Wilts and gave him the same power as full and in the same manner as before had been granted unto Sir Thomas le Percy Now Percy had it by Commission enrolled which happily was to make it more authentick because he was but a Commoner The third time it was done was in the business between the two Dukes of Hereford and Norfolk when by this Parliament sitting then at Shrewsbury that whole matter was referred to the King to be by him determined by the advice of certain Lords and Commoners there named and to them were joyned the Earls of Worcester and Wilts Procurators for the Clergy This I must say argues a great unanimity in the voting of the Prelates which it seems hath ever been but I must say it was most Unparliamentary never practiced but in that one Parliament of the 21. R. 2. which whole Parliament is repealed and all it did Nulled and made Void by Act of Parliament 1. H. 4. so as it cannot be urged as a Precedent to infer any thing upon it nor can it make any thing to prove a right in the Bishops of being personally present in matters of that nature but rather in my opinion strongly the contrary And one thing more would be observed which is that it seems by the Record that the whole Clergy of England joyned in making this Proctor and not only the Prelates who were Members of the House of Peers which seems very strange But more than all this whatever was done this Parliament signifies nothing the whole Parliament stands repealed by 1. H. 4. and all done in it declared Null and Void 1. H. 4. The Commons had desired that Sir William Rikhill who had been a Judge in the Common Pleas and had been sent by R. 2. to Calais to take the Confession of the Duke of Glocester who soon after was there murthered might be put to answer upon what account he did it He was under arrest for it and was brought into Parliament before the King and the two Houses the Lords Spiritual and Temporal and the Commons then assembled together The whole matter was examined the conclusion was saith the Record Sur ceo chascun Sr Temporel esteant en plein Parlement examine severalment sur la response du dit William dit quil avoit fait loyalnent quil ny avoit en luy aucun coupe Hereupon every Lord Temporal being in full Parliament severally asked concerning the answer of the said William said he had carried himself Loyally and that he had committed no fault There was no charge no impeachment against him so the Bishops might be and were present at his examination as the Commons also were but they must have no hand in giving any Judgment upon it because it might have been a preparatory to an Accusation and an Impeachment if he had not given so good satisfaction as it seems he did in the account he gave of his employment That Parliament Iohn Hall a Servant of the Duke of Norfolk's who had helped to murther the Duke of Glocester at Calais was tried before the King and the Lords Temporal The Record saith Il sembla au Roy a toutz les Srs. Temporels quil avoit deservi davoir si dure mort come la Ley luy pourroit donner Et sur ceo toutz les Srs. Temporelz per assent du Roy adjuggerent quil seroit treinez del Tower-hill jusques a les fourkes de Tyburn c. It seemed to the King and to all the Temporal Lords that he deserved as cruel a death as the Law could inflict And hereupon all the Temporal Lords with the assent of the King gave Iudgment that he should be drawn from Tower-hill to the Gallows at Tyburn c. there to be hanged c. 2 H 4. The first Writ de Haeretico comburendo was agreed upon only by the Lords Temporal it was in the Case of William Santre our St. Stephen the Protomartyr of England the Record is Item cest Mesquerdy un Brief fust fait as Meir Uiscountz de Londres per advis des Srs. Temporelx en Parlement de faire execution de William Sautre Item this Wednesday a Writ was framed by the advice of the Lords Temporal in Parliament directed to the Mayor and Sheriffs of London for the execution of William Sautre I doubt not but the Bishops and Clergy of those times were the chief promoters of this though not appearing to be Actors in it Which yet would not have been a direct condemnation of him as his Judges nor any thing to be determined by them tending to his conviction but only an advice given to the King to make it his Act under the Broad Seal to order his execution yet they then were not to have a hand even in a matter of this nature The same Parliament the Earls of Kent Huntington and Salisbury the Lord le Despencer and Sir Ralph Lumley who for levying War against the King had been taken and executed were by the Lords Temporal declared and adjudged Traitors and their Estates to be forfeited the names of the Lords that made this Declaration and gave this Judgment are there set down the Prince of Wales the first and the Lord le Scroope the last five and twenty in all Not a Bishop amongst them so much as to declare and judge it a Treason though the persons who had committed it were dead before So as it seems they must not have a hand neither in the Antecedent what is Preliminary and Preparatory to the death of a Man nor in the Consequent what is to be done after so far from being the Judges to try or condemn him 5. H. 4. The Earl
that the Archbishop was then charged with Treason Gervasius Dorobernensis saith he was charged with two things one not doing Justice in his Ecclesiastical Court to one Iohn who was Iohn the Mareschal that complained of the Archbishops detaining some Land from him the other that being sent for by the King upon occasion of Mareschals complaint he came not The first he excused laying the fault upon Mareschal himself for abusing the Court bringing veterum cantuum codicillum and old Song-Book to swear upon and refusing to swear super Evangelium ut moris est upon the Evangelists as the Custom is whereby he said he did Curiam suam infamare Defame his Court. The other he answered proving by two sufficient Witnesses Per duos legales viros that it was sickness hindred him and not any contempt This is the account which Gervasius gives and saith not a word of any Treason neither doth Matthew Paris nor Roger Hoveden who both of them give a relation of that proceeding at Northampton against the Archbishop And to say the truth it would be a strange High Treason only not to come being sent for by the King though there had been no sickness in the case at most it could have been but a High Contempt and punishable by Fine and Imprisonment or the like and probable it is that Fitz-Stephen who was a Creature of the Archbishops might represent it so only to draw more Odium upon the King for his severity against the Bishop even to an injustice when in truth there was no such thing However we may look upon it as but a weak President for the Bishops to lay any weight upon to prove their right to sit and vote and judge in a Capital cause Causa sanguinis being at the best but out of a blind Manuscript of an Author justly suspected of great partiality against the tenour of all the ancient Writers that give an account of the same business But we must go a step further to clear this matter in question for it seems some of the Bishops do say that though they will have no part in the Condemnation and pronouncing Judgment upon a Criminal person as to loss of Life or Member yet they may and will vote and Judge in such things as are but Preliminary and Preparatory to that condemnation and yet think they have no hand in bloud though they have a hand in doing that which will infallibly cause the taking away of of a mans Life and shedding of his Blood so they would divide two things which in truth have so near a relation and dependency the one upon the other as they are only separated by a little time coming between one thing to be done first and that being done the other must necessarily follow and be done presently after And they doing the former may be well said to do the latter and if any Law prohibit them from having to do with the latter the same Law doth and must prohibit them medling with the former It is a rule in Logick Causa causae est causa causati If the Judgments of the Bishops determine one thing which is the necessary cause of any other thing their Judgment may be said and really it doth determine the other thing As take for example the particular case upon which this Question hath been moved the Earl of Danbyes Pardon of the validity or invalidity whereof they will be Judges It is hoped they will be just Judges and incline neither way but according to the merits of the Cause before them so what their Judgment will be till they have heard all themselves cannot tell Now if by their Judgment the Pardon be determined to be invalid and illegal and that carry with it a conviction of the Crime of which he stands impeached as some will have it to do saying that the taking of a Pardon implies a guilt and is in Law a confession of the Crime pardoned and so his condemnation must necessarily follow even for Treason the impeachment being so doth not their Judgment subject him to that condemnation How then can they say we will have no part in condemning him Is not this something like the Frier in Chaucer that would have of a Capon the Liver of a Pig the Head yet would that nothing for him should be dead So they forsooth will take upon them to Judge his Pardon to be no Pardon which brings on infallibly his condemnation and yet say with that Frier God forbid he should die for us That we should have any hand in his bloud But certainly this will not pass for currant either in Foro Iudicii or Foro Conscientiae to excuse them from being Actors in his Condemnation To evade this some say the Bishops may be present and hear what will be said Pro and Con concerning this Pardon and those only shall deliver their opinions and judgments of it who are satisfied of the Validity and Legality of it but those amongst them who are of another mind shall withdraw and give no vote and then it cannot be said that any of them have a hand in condemning him But how this will sute with the Office of a Judge let any man judge whose duty it is to condemn the Guilty as well as to acquit the Innocent and who ought to do the one or the other in every business that comes before him as he finds ground for it upon hearing the Allegations and Proofs And besides it is most Unparliamentary for in Parliament all who are at the debate of a business ought to give their vote to the Question one way or other according to their sense of it and as they in their consciences think it just But to break thorough all at once they will have it That it is only by the Canon Law that this restraint is upon them and that the forbearance of their Predecessors being Papists and so subject to that Law was only in that respect which Law being of no force at present and taken away by Act of Parliament they are now at Liberty though in modesty they think sit sometimes to withdraw but have a right to continue sitting if they please To which in answer I shall say that I will not deny but that the Canon Law might give the first rise and a beginning to such an usage and no Law could be of greater force to introduce and establish such a thing as being that to which only the Clergy of those times would be subject conceiving themselves to be above and not bound by any other But it is most clear that it came afterwards to receive a Civil Sanction and to have not only the stamp of the Authority of Parliament set upon it by the continual practice there and we know that Consuetudo Parliamenti est Lex Parliamenti The Custom of Parliament is the Law of Parliament But that two several times there have been particular and express Confirmations and Ratifications of it in Parliament which makes it
upon the Trial of Commoners Though to speak the truth I doubt those Prelates did not much desire this Priviledge but the Salvo to their Right of sitting in all Parliaments to have been what they aimed at most in their Protestation and which they would have to be enrolled but the one could not be without the other and upon no terms would they admit the least scruple should be of their right to sit in Parliament which their withdrawing at that time might seem else to call in some question as they thought and therefore they would make that Protestation For that Popish Clergy was very ambitious and loved to have the rule over all persons and things we see it by Matthew Paris how he branded those Constitutions of Clarendon with terming them Consuetudines iniquas and the Archbishop Becket himself after he had sworn to them repented him of it and enjoyned a severe Penance to himself and suspended himself from the Office of the Altar for several months till he had the Popes Absolution This makes me doubt if the Clergy was of another mind in Richard the Seconds time and if they could not have been well enough contented to have continued sitting as Judges in all Cases if the Canon Law had not debarred them but that being they would make that Protestation consisting as I say of those two parts both which being so approved of by the Parliament and there enrolled became then and so continue to be the Law of the Kingdom For in those times all Laws were so made Only the substance of the Law was agreed upon in Parliament by King Lords and Commons and entred in the Journal Book And the Kings Justices did afterwards draw it up into form and then publish it to be the known standing Law of the Kingdom But that was not needful here because it was not a new thing that did then receive its first being Neither I say was it new before in Henry the Seconds time it appearing by what was then transacted that it was in usage in Henry the Firsts time only it was ratified in that Great Council of Clarendon under Henry the Second with a little more solemnity and the addition of an Oath for the better observance of it And we may carry it yet a little higher to Edward the Confessors days as appears by his Appeal against Earl Godwin in a Great Council which was their Parliament and how long it had been the use and practice before that God knows In E. 4 th time it was the declared Law of the Land you have it in the Year-Book of 10 E. 4. Term. Pas. n. 35. the words are Quant un Sr. est endite ceo serra maunde en le Parliament la le Seneschal d' Engleterre le mettra a respondre il dira De rien culpable se sera trie per Pares suos donque les Seigniors Espirituelx que ne poient consent al mort de home ferront un Procurator en le Parliament donque le Seneschal doit examiner primes le pluis puisne Seignior que est sil soit culpable issint separatim a toues les Seigniors queux sont la c. When a Lord is indicted it shall be returned into Parliament and there the Steward of England shall put him to answer and he shall say Not guilty and this shall be tried by his Peers and then the Lords Spiritual who may not consent to the death of any man shall make their Procurator in Parliament and then the Lord Steward shall ask the youngest Lord if he be Guilty and so severally all the Lords that are there c. This I alledge to shew that even by the Law of the Land the Bishops cannot be Judges in a Case Capital it is true here is mention made of their making a Proctor which was Error Temporis the Errour of those times grounded upon what was so lately done as they looked upon it though irregularly done in the last Parliament of R. 2. whom they considered as their last lawful King and in truth he was so the three Henries that came between being but Usurpers and therefore they had it seems a deference for what was then done though as I have already said it was never done before nor is it in truth a thing very practicable and not at all Parliamentary to have one man or two men as we see it was also done that Parliament represent the whole Bench of Bishops And more than all this as I have already observed which it seems was not then thought of that whole Parliament of R. 2. stands repealed and all that was done in it declared by a subsequent Act of Parliament to be Null and Void But this is but by the way my intent in quoting this Book Case is onely to shew that the Bishops were not excluded Judging in Capital Cases by the Canon Law alone but that the Law of the Land did likewise confirm it and the Courts of Westminster did so conceive of it So I think I may well conclude and with some confidence affirm that Bishops now are not to be Judges to Sit and Vote in Parliament in any Trial or part of a Trial that is in any circumstance which doth any ways lead or conduce to such a Trial of any Capital Offender but the whole Judgment is singly and wholly in the Lords Temporal and to them onely such Judgments do belong as was challenged by them in the Case of the Earl of Northumberland 5 H. 4. and is so declared to be in several other Cases upon the Rolls of Parliament And having thus delivered you my opinion and my grounds for that opinion I submit it to your judgment and rest SIR Your Humble Servant POSTSCRIPT SIR AS I was closing my Letter two Papers were brought me one in Written hand the other Printed which maintain an Opinion clean contrary to mine I shall tell you what they say and give my Answer to it then leave it to you to determine who is in the right The written Paper to prove their right of Judicature in all Cases none excepted declares Bishops to be Peers of the Land and a Third Estate in Parliament and therefore are not to be excluded from being Judges in all Cases as well Capital as other To prove them Peers of the Land he urges Statute Law and Common Law for the Statute Law he alledges the 25 of Ed. 3. c. 6. and the 4 of H. 5. c. 6. First For the Statute Law let me tell you It is not every expression Obiter upon the By that is in the Preamble of a Statute as this is of Bishops to be called Peers in these Statutes that makes a thing pass for Law except it be by way of Declaration declaring it to be a Law or reciting it as a Law before made And then I shall shew you how these two particular Statutes run and what they are That of the 25 E. 3. it is true hath in
the Preamble that the Prelates had prayed the King that their Temporalties thenceforth might not be seised upon for such contempts sith they were Peers of the Land that is by their own sayings they were Peers for so it was only the Statute doth not make them so The Record is that among the Petitions of the Clergy one is Come Ercevesques Evesques tiegnent lour Temporaltees du Roi en Chief pertant sont Pieres de la Terre come sont autres Countees Barons quil vous pleise a eux graunter que nul Iustice pur soul contemptz puisse desoremes lour Temporaltees faire prendre c. Seeing Archbishops and Bishops hold their Temporalties of the King in Capite and therefore are Peers of the Land as are other Earls and Barons that you will be pleased to grant unto them that no Iudge may henceforward for meer contempts cause their Temporalties to be seised The Answer is That the Law is so and cannot be changed but the King is willing that in such Cases a reasonable Fine may be taken So you see they indeed call themselves Peers which the King takes no notice of in his Answer but speaks to the matter of their Petition And even in his Answer intimates that they are not in the same condition with Earls and Barons for he saith the Law is so for them that is that they should forfeit their Temporalties for such Contempts which no man will say was the Law for Earls and Barons to forfeit their Lands for any Contempt but well were they liable perhaps to pay a good Fine for it So then I may say that those Bishops were a little mistaken to affirm that they were Peers of the Land just as other Earls and Barons are The other Statute is of the 4 H. 5. and is only concerning Ireland it saith That by a Statute in Ireland no Irishman was to be preferred to any Dignity in the Church and yet some were made Archbishops and Bishops and they make their Collations to Irish Clerks then follows And whereas they are said to be Peers of the Parliament in the same Land they bring with them Irish Servants to Parliaments and Councils who give intelligence to the Irish Rebels That Statute is now confirmed And what this makes to prove the English Bishops Peers of the Land I see not nor I think no body else can at most it can but declare them to be Peers of the Parliament of Ireland and it is too even for those Irish Bishops but that they are so said to be that is said to be Peers not that they are so But to prove that they are not Peers of England I think we have a better Law even Magna Charta it self It saith That every man who is tried at the Kings sute must be tried by his Peers Now if a Bishop be tried for any Capital offence he is tried by the Commoners and that is the Common Law of the Land it hath ever been so never otherwise then must Commoners be his Peers and he and Commoners must be Pares The Great Charter of Englands Liberties Magna Charta declares them so A Temporal Lord Duke Earl or Baron cannot be Judge in the Case of a Bishop except it be in Parliament where the Temporal Lords be the sole Judges and those to whom Judgment doth properly belong nor on the other side can any Bishop be their Judge how then can they be said to be Pares Fellow Peers For my part I see not Then for their being a Third Estate in Parliament for which that Writer alledges Mr. Seldens authority is a thing so contrary to Reason as I can no ways yield to it First let me lay this foundation that I do acknowledge the Subjects of England to be divided into three Estates The Nobility the Clergy and the Commonalty these are the several Estates of the Kingdom and the Bishops are part and the chief part of one of these viz. the Clergy And sometimes these three Estates have joyned in some transactions as 9 H. 5. in the ratification of a Peace with the King of France Charles the Sixth who had desired it should be so he having had it ratified in France by the three Estates there the Record saith Uolensque idem Serenissimus Dominus noster pro parte sua dictam pacem omnia singula contenta in ea modo consimili per ipsum tres Status Regni sui jurari firmari roborari prout ex dicte pacis tenore astringitur obligatur dictam pacem bene fideliter in omnibus se observanturum in verbo Regio ad Sancta Evangelia per ipsum corporaliter tacta juravit promisit ac dictos tres status viz. Prelatos Clerum Nobiles Magnates nec non Communitates dicti Regni sui secundo Maii ad Palatium suum Westminst ad majora firmitatem robur Pacis predicte fecit congregari quibus quidem tribus statibus per Cancellarium suum tenorem dicte Pacis singulos Articulos ejusdem seriose exponi fecit c. The King willing for his part that the said Peace and all the particulars of it should in like manner be sworn to confirmed and ratified by Him and the three Estates of his Kingdom according as he was obliged by the tenour of it to do did swear and promise laying his hand upon the holy Evangelists in the word of a King that he would well and faithfully observe and keep it in every circumstance And the said three Estates to wit the Prelates and Clergy for one the Nobles and Great men for another and the Commons for the third he caused to come before him the second of May at his Palace of Westminster for the better confirmation and strengthening of the Peace to which three Estates he caused his Chancellour to declare what the Peace was and every Article thereof c. Here indeed the Prelates and all the Clergy together with them are declared to be one of the three Estates of the Kingdom which is to be understood as they are assembled in the Convocation where all are present in their Persons or their Representatives but this is no part of the Parliament nor is it any ways entrusted with the Legislative power though it assemble in Parliament time And in 11 H. 7. the very same Case hapned again and the three Estates of the Kingdom joyned with the King in the Ratification of a Peace with France in the same manner But the three Estates of Parliament are clean another thing Each must have a Negative voice to all that passeth there If the Major part of the House of Commons be against any thing there proposed there is an end of it it is rejected It is the same in the House of Lords and the Bishops are intermingled with the Temporal Lords in making up that Majority as part of that Majority whereas were they one of the Estates reason would they should vote by