Dom. 1164. In the Preamble it is Recognizantur Advice consuetudines which proves it is declarative of the Common Law The Eleventh Article runs in this manner Archiepiscopi Episcopi universa persona holding any Ecclesiastical Dignity qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis Ministris Regis sequantur faciant omnes consuetudines Regias sicut caeteri Barones debeant interesse judiciis curiae Regis cum Baronibus quousque perveniatur ad diminutionem membrorum vel ad mortem Here is their Jurisdiction expresly limited that it shall not extend ad diminutionem membrorum vel ad mortem And this Act of Parliament is declarative of the Common Law as appears by the Preamble and the construction of most Authors that mention it In this saith Doderidge certain Recapitulations are made of the Kings Prerogative and his Peoples Right then sought to be infringed by the Pope and his Clergy So saith my Lord Cook 2. Inst. 631. and Selden Titles of Honour 582. Seeing therefore there can be no time assigned when this ancient Custom which is here recapitulated was not consequently this limitation must be supposed to be as ancient as their sitting in the House of Lords But to prove that this Constitution of Clarendon as some call it is an Act of Parliament Matthew Paris saith Praesentibus etiam Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Proceribus Regni Roger of Hoveden saith expresly that Clerus Populus Regni were then assembled and so mentions it as a full Parliament Goldastus Constit Imper. Tom. 3. 347. saith There were added to the Clergy Nobiliores Antiquiores Regni Fitz Stephens calls it Generale Concilium And lastly our Common Lawyers do take it for granted and undisputable My Lord Cook in 2. Inst. 631 and 638. calls it The great Parliament that was held at Clarendon So Bracton lib. 3. f. 136. And this very Article above-mentioned is in all the said Authors and likewise in Roger of Wendover but that which is most considerable is that we have Gervasius Doroberniensis an Author that lived in that Age and a Person within Holy Orders too reckoning this very Article among the Laws that were made at that Parliament in the 68. Page of his Book But admitting it were no Parliament but only a great Councel of Peers yet that is as well for my purpose because that the Proceedings of such a Council are Matters of Record and therefore a Recognition or Declaration of ancient Customs and of the Common Law made in such a Council is as undeniable proof as if it were a Declaratory Act of Parliament for the force of such an Act is only in point of Evidence and doth not Enact or Constitute any new Law But as there is no question but that it is an Act of Parliament the Assembly being a Generale or Commune Concilium which is always understood of the Parliament Co. Inst. 110. a. So except it can be proved this Statute was repealed I have made good my Assertion without saying any more for admitting that it had not been so frequently practised as I in his proper place shall make appear it was yet still it is valid and a standing Law for no Statute loseth its force by Non-user Co. 1. Inst. 114. although Common Law or particular Customs may But this Statute we find was afterward confirmed for saith Roger de Hoveden a Monk p. 30. It was Ordained in a Councel at Westm. That no Clergy-man should Agitare Judicium c. and he that did was to be deprived of his Dignity and Orders That these Constitutions were punctually observed in after Ages is the next thing to be proved And the first that I shall mention is the Judgment against the Spencers 15 E. 2. The Lords Spiritual did withdraw as in right they ought These Spencers were men that were great Favourites of that King for they had succeeded Peter Gaveston both in the Kings Favour and in Places of Profit and Trust about Court and although the Lords had then prevailed with the King to consent to an Act of Parliament for their Banishment yet afterward the Tide turned the Spencers were called again to Court and their Enemies severally prosecuted whereupon the greatest part of them departed from Court and through the Interests which the Spencers had with the remaining Lords the Judgment which stood upon Record against them was reversed for several Errors one of which was The absence of the Prelates but notwithstanding this the Judgment is afterward Affirmed by an Act of Parliament in the first year of the succeeding King Vide 1 E. 3. c. 1 2. And that the Absence of the Prelates is no cause of Reversing a Judgment see the Case of the Earl of Salisbury who in the 2 of H. 5. petitioned the House of Lords to Reverse a Judgment that was given against the Earl his Father An. 2. H. 4. and Assigns for Error That the Lords Spiritual were absent The Case was very much Debated and at last it was adjudged no Error and accordingly the Judgment was Affirmed But of this I shall have occasion to treat more at large by and by See Cotton 539. Anno 4 E. 3. In the Parliament at Winchester Die Lunepost Festum Sancti Gregorii The Earl of Kent was brought before the Counts Barons autres Grandees Nobles in mesme le Parliament c. for Treason ders claus n. 38. Anno eodem in the Parliament at Westm. post Festum Sanctae Katherinae The Articles of Treason being read against Montimer Earl of March That he had procured the Death of the late King and had under-hand-dealing with the Scots at Stanhope Park and had been too familiar with the Queen-Mother by whom she was thought to have been with Child c. The King charged Les Counts Barons les Peers de son Royaume to give Judgment And then it follows that Judgment was given Per les dits Counts Barons les Peers de Royaume come Judges du Parliament Ibid. The King commanded Les dits Counts Barons Peers c. to give Judgment on Simon de Bereford Ibid. The King commanded the same against several others and accordingly John Matravers was judged Per les Peers Counts Barons assembles in Parliament And so were Four others in the same Parliament all for Treason and not one word of the Prelates either when the Articles were read or when Judgment was given For it is certain they are never spoken of in any Record but either by the Name of Archiepiscopi Episcopi c. or Prelati or some such Name which doth distinguish them from the Laity and if they be spoken of they are always first named and put before Les Counts Barons as at this day the Records are Entred by the Lords Spiritual and Temporal c. And for these two Reasons they could not be
described be sufficient 〈…〉 Judgment or Bill which shall pass the House of Lords then they may 〈◊〉 say that the whole House of Lords may depart from Parliament and agree before hand in the same manner to every Bill which shall 〈…〉 House of Commons and these with the Royal Assent shall be good Laws especially if it be as they say that the Clergy is one of the Three Estates of Parliament But then you will demand Why should the House of Lords suffer these things to be entred upon the Roll if they did not think that their Claims were legal c. To this it may be answered 〈…〉 is only a Register or Narrative of all the Matters of Fact that passed in the House of Lords and although the entring of a Passage upon the Roll makes is so Authentick that the Matter of Fact viz. that there was certainly such a passage 〈◊〉 undeniable yet it doth not follow that every thing that is entred upon the Roll is good Authority for Matter of Law except it appear by the Roll that it was taken for Law by the Vote and Resolution of the House and therefore although the House of Lords did suffer this Protestation to be entred upon the Roll yet it doth not follow that they did allow that every thing that the 〈◊〉 said was 〈◊〉 but only allowed it to be true that the Protestors did say so And besides the â—â—tring of a Protestation is a thing which is always reckoned the best Expedient for reconciling of Differences when begun or preventing of them before they are begun or at least for diverting them till a more seasonable time when the putting of the Matter to a Tryal would either prove dangerous or expensive of more time than the urgency of other more important Affairs then to be managed would allow and therefore the Request of Entring their Protestation is never upon any account whatsoever denied to those who have not a mind to be concluded by the then Proceedings and if there be any thing contained in the Protestation that is of an ill Complexion in the Judgment of the House either as tending to the Diminution of the Kings Prerogative the Authority of Parliament or otherwise â—â—â—â—…ying the Constitution of the Government the Prâ—â—â—â—â—â— ion is allowed to be Entred first and the Protestors punished for it when they have alone We find in the Reign of Rich. 2 two Bills passed the House of Commons the one against Provisors the other against Procurers of Process from the Court of Rome these Bills were violently opposed by the Clergy in the House of Lords but notwithstanding the Bills passed the House the Clergy in a great Rage depart the House and Protest against the Bills as abridging the Authority and Priviledges of the Holy Church which the Lords suffered to be entred and yet did not agree to those Allegations of the Clergy for the Royal Assent was given and they were always accounted good and firm Laws 13 R. 2. c. 2 and c. 3. We find also that in the time of his late Majesty Twelve Bishops departed the House and Protected against 〈◊〉 Orders 〈…〉 c. that should be made in their Absence which Protestatiâ—â—… at their Request was entred upon the Journal and 〈◊〉 was so far against the Sense of the House that they Voted it prejudicial to the Government and destructive of the very Being of Parliaments for which some of them were put into the Tâ—â—…er This I mention to shew that although the Matter of Protestation do 〈…〉 thwart the Genius and Disposition of the whole House yet the Request of having â—…ntred is never denied In the next place I shall consider the Roll of 21 Rich. 2. where the first Petition that the Commons made that Parliament to the King was For that divers 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 Percie their Proctor to Assent as by their Instrument appeareth Thus was the Practice of Constituting Proxies begun It is apparent to all men of Common Sense That if the Clergy were forbidden to give Judgment of Death by any Law or Rules whatsoever that Law was violated by their Constituting a Proxy as much as if they had been personally present Whether or no their Personal Presence was prohibited by the Law of England at this time I leave to the Judicious Reader to determine from what hath been said before If they were prohibited then certainly this Petition of the Commons was unwarrantable and contrary to Law It is not impossible that the House of Commons being but fallible men spurred on by too precipitant a Zeal and Eagerness for the accomplishment of a Business should be endeavouring to make sure work fall inconsiderately into another extream and through the want of due Examination of Precedents become guilty of a mistake I shall not trouble my self much in discoursing about the possibility of the thing for I shall make appear that it was actually so in our Case For 1. That which was the ground of the Petition of the Commons viz. That divers Judgments have been heretofore undone c. was a palpable mistake de facto It is true the two Judgments that were given against the two Spencers 15 E. 2. were reversed for this cause through the great favour and interest that they then had at Court And there is no question but these two Judgments were the ground of the Commons Petition made 21 R. 2. for there are no other Judgements to be found that were ever reversed for this cause but how well their Petition was grounded you may learn from 〈◊〉 E. 3. c. 1. Where this same Judgment is declared in Parliament to be good and that the aforesaid reversal was null and void and the two Spencers upon this Affirmance of the Judgment were Executed I suppose if the forwardness and Zeal of the Commons had given them time to search the Records with so much diligence that they might have found this they had not said For that divers Judgments have been heretofore undone c. 2. That in point of Law the absence of the Prelates makes not a Judgment erronious besides the Authority of that Record 1 E. 3. is further proved 1. From the Earl of Salisbury's Case 2. H. 5. who petitioned that the Judgment that was given against his Father might be Reversed and Assigns for Errour that it was not with the Assent of the Lords Spiritual who are Peers of the Realm the House of Lords upon Debate resolved that it was not Errour and therefore the Judgment was good 2ly If the Consent of the Clergy be absolutely necessary to every Judgment that passeth the House of Lords then consequently it must be necessary to every Act of Parliament There can no manner of Difference be Assigned between
the two Cases as to this Matter for their Power and Jurisdiction in Legislation is every whit as ample as their Power of Judicature and therefore their Concurrence is equally necessary in both Cases But it is a thing of dangerous Consequence to Assert that an Act of Parliament cannot be made without the Consent of the Clergy for it will make some of the best Laws that ever were made in England before the Reformation and which have ever been to this day accounted firm and established Laws of no force at all Most of the Statutes of Mortmain were made against the will of the Clergy and their Dissent is recorded The Statute De Aâ—â—…rtatis Religiosorum is Enacted by the King De Concilio Comitum Baronum Magnatum Procerum Regni sui Constatuum in Parliamentâ—… c. and yet proved by my Lord Cook in his Exposition of this Statute to be a good Law from the Testimony of many Records and Acts of Parliament that recite this Statute The Statute of 3 Rich. 2. c. 3. was made against the Clergy for the ill disposition of Dignities Offices Canonries Prebends and Parsonages and other Ecclesiastical Preferments upon lewd and licencious persons to the Scandal of Religion and the neglect of Divine Service c. The Clergy being somewhat displeased that any should undertake to reform them at the first reading of the Bill departed but notwithstanding the Bill past and is said to be Enacted by the King Nobles of the Land and the Commons leaving out the Clergy And yet this hath been allowed for an established Law by all the Judges See Roll 3 R. 2. n. 38. 40. The Statute of 7 R. 2. c. 12. was made to impower Justices of Peace to enquire of several grievous Extortions committed by the Bishops and their Officers to the great grievance and oppression of the Kings Liege People c. The bringing in of this Bill offended the Clergy more than the former insomuch that they left the House in a great Huff Protesting against the Bill as injurious to the Franchises and Jurisdiction of the Church yet notwithstanding it passed into a Law The Clergy were absent all the Parliament that was held 11 R. 2. and yet divers good and profitable Laws were made that Parliament never questioned for their Validity but always put in use as 11 R. 2. c. 7. about Merchants c. 8. concerning the granting of Annuities c. 9. concerning new Impositions c. 11. of Assizes and several others made in the absence of the Clergy I might for this enumerate all the Statutes of Provisors and the Statutes of Premunire for Suers of Appeals and other Process from Rome as 25 E. 3. c. 1. and 22. where the Names of the Clergy are left out and 13 Rich. 2. c. 2. and c. 3. where they were so far from Assenting that they entred Protestations against them because they abridged the Popes Authority as is before observed And the 16 R. 2. c. 5. passed against the will of the whole Clergy And so the Statute that was made in the same year about the Queens Marriage without the Kings Consent was made without the Concurrence of the Clergy for their Assent to it was special in this manner So far as it is agreeable to the Law of God and the Holy Church Which being conditional and under a Restraint was according to the Course of Parliaments accounted as no Assent at all and so it was specially Entred and yet none did ever question the Strength and Force of this Act. These Statutes being allowed by the Judges of England as Good and Authentick Laws although they were not agreed to by the Lords Spiritual do prove that the Concurrence of the Lords Spiritual is no more necessary to the Essence and Perfection of an Act of Parliament than the Concurrence of as many Temporal Lords Upon the whole Matter it appears to have been a very strange and unaccountable over-sight in the House of Commons at that time that they should be the first Introducers of an Innovation upon so false a Ground as theirs was But however this Practice being built upon so sandy a Foundation it seems had no long continuance for there doth not occur in any Author nor in the Abridgments of the Records any mention of more than Two Proxies the first was Sir Thomas de la Percie the second was Sir William de la Scroope who immediately succeeded him in this his New Office But seeing it is rash to Assert a Negative in a Matter of Fact it will be very satisfactory if any will inform us of any more and that may easily be done if there were any because none can act as a Proxy except his Procuratorship be Entred upon the Roll. Most of those Records that are Cited in the behalf of the Spiritual Lords are either such as were in those times when the Clergy put in Proxies as all those that are upon or after the 21 Rich. 2. and about the beginning of Hen. 4. Such is the Case of the Earl of Arundel for it appears by the Record that the Constitution of the Proxy was in N. 9. and the Arraignment of the Earl was not till N. 15 or 16. and therefore after the Proxy so that there was reason that the Records should be Entred by the King Bishops and Lords seeing the Bishops Deputy was present but it is no Argument of their personal presence Or else they are Cases of Bills of Attainder and that is not much to our purpose for those will as well prove that the House of Commons have sate Judicially upon Matters of Life and Death A Bill of Attainder is reckoned the strongest way because there is a Concurrence of all the Three Estates of both the Judicial and Legislative Power and that is necessary for making a Forfeiture of all manner of Rights Titles and Interests which otherwise are not Forfeitable And if at any time there was an opportunity for the Clergy to transgress the Laws both Ecclesiastical and Civil I mean the Statutes and Customs of this Realm which was connived at by the rest of the Lords and Commons I hope that will not be accounted a Precedent to overthrow a Custom of so Ancient a Date and so agreeable to the Fundamental Constitution of the Government and the Grounds and Reasons of the Common Law and also Confirmed by an Act of Parliament So by degrees the whole Method and Course of Parliamentary Proceedings may be altered and the very Being and Foundation of Parliaments shaken So we should have had the Lords refusal to Sequester the Earl of Danby from Parliament a Precedent if they had not afterward acknowledged it to have been an Errour We may find in many Cases the Lords Dispensing with Magna Charta 4 E. 3. n. 6. They passed Judgment of Death upon several Commoners 15 E. 3. We find several Particulars enumerated wherein the Commons complained of Breaches of Magna Charta and we are not sure that all these particular Cases were remedied and therefore must these stand all for Precedents At this Rate there are few Points of Law perhaps that will escape Doubt and Controversie for we shall have some of the Lords pretend they can transfer their Honours and so are able to make the Kings Enemies his Councellors because in Daincourts Case 4. Inst. 126. one Branch of the Family sate in the House by vertue of a Grant from the other Branch of the Family from the Raign of E. 2. to H. 6. And the Earldom of Chester was first granted 17 H. 3. and transferred 39 H. 3. And upon these Precedents there was an Attempt in the Lord Fitz-Walter's Case to make a Baron by Translation of interest Admitting therefore that Once or Twice or such a matter the Bishops have Voted in Capital Cases yet they cannot Controul an Antient and well established Custom though I am not apt to believe there are many such Cases However it was a very pleasant humour of a Gentleman that wrote lately of this matter and cited a Precedent in the Raign of R. 2. Of the Earl of Arundel and Wardor whereas there was no such Lord as Arundel and Wardor Created till King James his time Vide pa. ult so p. 30. He cites the Case of the Earl of Salisbury who in his Petition says the Prelates are Peers in Parliament and assigns for Error that they were Absent when Judgment was given against his Father and this is a good Precedent to prove the Prelates right to Vote in Capital Cases as Peers in Parliament Whereas the Petition was disallowed and the Judgment affirmed by the resolution of the whole House Such a way of arguing deserves some special animadversion But I shall supersede any further Consideration of the matter and shall conclude that without an Act of Parliament the Bishops can have no right to Vote in Capital Cases which if this present Parliament shall think fit to make it behoves all true Subjects to agree thereto FINIS Baker 124. Co. 2. Inst. 654. Baker 141. Vide Parliam held at Clarendon 11. H. 2. Fitz. Tit. Cor. pl. 417. 8 E. 2. 17 E. 2. 386. 19 E. 2. 233. Vide Co. â— Inst. 636.