concerning Breakers of Truce and a Proviso in it That this Act shall not extend to any Act or Ordinance made 2 H. 5. late indeed and not of right King of England But still he is acknowledged King of England de facto which goes a great way to authorize any thing done under their power Therefore 11 H. 7. c. 1. A Law is provided to indemnifie all persons that shall do service to the King in being whether he have right or no. As for what is said of the Bishops making their Common Proxy at the prayer of the House of Commons That their Proceedings might be valid and not questioned in future Parliaments by reason of their absence and that divers Judgements had been reversed because they were not present It is true it is so expressed in the Roll of that void Parliament which as it hath no authority nor validity in it self so it is very strange that if there had been ground for this apprehension there should remain nothing upon Record in all the Rolls of Parliament that ever any Judgement or any other act done in any Parliament had been so repealed We know it was once attempted 2 H. 5. by Thomas Montacute Earl of Salisbury as I told you in my former Letter who brought his Writ of Error to reverse the Judgement given against his Father 2 H. 4. because the Bishops as he alledges there being Peers of Parliament were not parties to that Judgement but it was declared to be no Error and his Petition was rejected And we know that in Edward the First 's time there was a Parliament held at St. Edmonds-bury Clero excluso not a Prelate admitted to it And in Henry the Eighth's time all the Judges of England declared it for Law That the King might hold a Parliament with his Lords Temporal and Commons altogether without the Lords Spiritual Tout sans les Spirituels Seigneurs it is in Keilwayes Reports in Dr. Standish's Case Therefore there is no reason to think that any Judgements were repealed upon the Bishops being absent seeing their presence is not of necessity for the constituting and sitting of a Parliament And especially not for the Judgements which we treat of in Capital Cases because by what appears upon Record and by all the Laws Canon Common and Statute Law they never were present I always except that Unparliamentary Extravagant Proceeding and Judgement of Henry the Sixth in the twenty eighth of his Reign upon William de la Pool Our Asserter tells us of some Judgements reversed 15 E. 2. particularly in the Case of the Spencers but he doth not tell us where he finds it nor I believe doth he know himself having only taken it up some where upon trust as he doth other things But in this 21 R. 2. upon the Petition of the Earl of Gloucester it appears by the Record of the proceedings against the two Spencers Father and Son in that 15 E. 2. which are there repeated at large that there was nothing Capital in their Case neither in the Charge nor in the Judgement so as this signifies nothing to the matter in question which is all can be said to it And as little shall I say to his witty allusion of bringing me to a sight of my self as Alexander did his Horse to the Sun that he might not kick only this I might say if I were as foul-mouthed as he that indeed such a scoffing injurious Scribbler were fitter to be answered with a kick than with fair reasoning by way of Argument Next we come to the 1 H. 4. Sir William Rickhill's Case where I think I should do well only to transcribe what he hath written to shew it needs no answer but that I should waste too much Ink and Paper I represented in my Letter to you that Rickill being sent for into Parliament no formal charge being against him to give an account only by what order he had taken the Duke of Gloucester's Confession at Calais which he did the Bishops present but when they came to consider what was to be done upon it then only the Lords Temporal were asked their opinion which I alledge to shew that the Bishops there were not advised with because it might be preparatory to a further proceeding by way of Tryal And this our Asserter says is to serve an Hypothesis and learnedly gives it us in Greek and bids the Reader judge and so do I. Then for the Tryal of Hall who was one of the murtherers of the Duke of Gloucester he hath the condescension to acknowledge it probable that the Bishops were not there but then saith that they left it to the Temporal Lords without any Impeachment to their right it being secured before by the security of a confessed Act of Parliament 11 R. 2. it is their Protestation he harps at And if I had as much Greek as he I would say it in Greek that he now doth serve an Hypothesis or in good English beg the Question for that is his meaning of serving an Hypothesis for the Right which the Bishops there saved he will have to be and hath forty times repeated it to judge Capitally when they please but I have clearly shewed it was not of their assisting in those Judgements as he still will have it to be but other Judgements and proceedings in Parliament where in truth they had a right to assist Then follows the Case of William Sautre 2 H. 4. where he is pleased to give me a wipe for stiling him the Protomartyr of England and out of his great reading informs that St. Alban lived some hundreds of years before him but he must give me leave to inform him that the common acceptation of Martyrs amongst us Protestants now is of such Orthodox persons as have suffered for the truth whom the Papists have put to death for Hereticks and this man was the first of them in England He hath some other notable Remarks one is that whereas I said that the Bishops and Clergy of those times were the chief Promoters of bringing him to his end which I meant of their declaring him an Heretick and then turning him over to the Secular Power he observes upon it That then they acted in a Capital Case which he saith makes against me And that if it was the Lords Temporal who signed the Warrant for his execution that the Bishops had no hand in it and so have escaped my lash but who were his Judges nondum constat I am sure it doth not constare to me to what purpose he saith all this which I do not find to make either for him or against me No more than what he saith of the Case of the Earls of Kent Huntington and Salisbury 2 H. 4. who he grants were declared and adjudged Traytors by the Temporal Lords and no Bishops present and then saith he will give a Parallel Case it is of the Earl of Cambridge and the Lord Scroope 3 H. 5. where the Bishops were present and
demand for I do very well know what judgments the Commons did then not intend which were all Judgments in Capital Cases for it is most clear by all Records of Parliament and all the vestigia that remain with us of the usage and proceedings of antient Parliaments that there is not the least colour for so much as a doubt or a suspition that the Prelates or Lords Spiritual could have any part in those Judgments And we know on the other side what judgments they had their shares in which were all Judgments in such Civil Causes as came into the Parliament and in Criminal Causes that were not Capital and the Commons then could intend none but these which was enough to satisfie me that this Petition of theirs at that time was no wayes contrary or repugnant to what I maintained And by the way methinks it is worth observation the reason they give of their desire that the Bishops would make a Proctor not so much for that that their presence there was of so absolute necessity as that what was done without them was in it self null and void but to put an end to all controversies which shews the Prelates had expressed some dissatisfaction and had gotten some things which had been done in their absence to be undone and Repealed which considering their power at that time and how all the Laity was in awe of them would have a great effect upon mens minds and make them do what else they would not have done and perhaps strain a point a little to satisfie them And still it shews that notwithstanding their absence they were good and valid till the same power that had made them did Repeal them And to shew what an ascendant the Prelates had over King and Parliament and the whole Kingdom at that time see what they did but the year before 20 R. 2. They declared unto the King in open Parliament That they were sworn to the Pope and See of Rome and if any thing were in Parliament attempted in restraint of the same they would in no wise assent thereunto but would utterly withstand the same and can we then wonder if the Commons were not very loth to displease them and willing to comply with them much rather than have a controversie with them and perhaps be fain at last to undo what they had done His fourth Postulatum is upon the Protestation of Viscount Beaumont in the name of the Lords Spiritual and Temporal in the Case of William de Pole Duke of Suffolk which hath been touched upon before wherein he now saith I have left out the most material words but what they are he expresseth not nor can I imagine what he means As I have already said I have been very particular in setting down every circumstance of the whole proceeding acknowledged the actings of the Prelates in it thoroughout as far forth as the Temporal Lords and then I say how upon the Kings giving Judgment upon the Duke that Viscount in the name of the Lords Spiritual and Temporal made that Protestation That it should not be nor turn in prejudice nor derogation of them their heirs ne of their Successors in time to come I think this was sufficient to shew that I did acknowledg all that could be pretended to for the Bishops Judicature in that business and what this Assertor would have more and wherein I have failed I can not imagine only I see he is a quick-sighted Gentleman and can see further into a Milstone than another man and spy a fault which another cannot see He hath a fifth Postulatum to whichI can say nothing for I understand not what he would be at he speaks of my accurateness in making a distinction between the Matter andForm of a Law and then saith He observes three things though he expresseth but two which he saith he shall have occasion to make use of hereafter when he comes to speak of the particular Cases and I must refer my Answer to what I shall there find when I believe I shall make it appear that he makes no great use of them nor of any other Argument that he brings And now I come to the particular Cases the first is 4 E. 3. of Roger Mortimer Earl of March being then condemned for Treason Here our Asserter saith That by 28 E 3. upon his Cousin Roger of Wigmore's petitioning to have this Judgment and Attainder reversed I acknowledg it to be an Attainder If I say truth say nothing to the purpose This is gentile language and which discovers my Gentlemans ignorance as well as his rudeness his ignorance in conceiving an Attainder to be only by a Law by an Act of Parliament in which Bishops may be present and if they were not so but did withdraw it was their own voluntary act and no diminution to their Rights I have already upon his second Postulatum handled this point so fully and made I think both his errour and the truth so clear as I need not say any thing more to it here Then it is a pretty Argument he brings against my saying That the Record being Les queur Counts Barons Piers les Articles per eur eramine rebindrent c. Which Earls Barons and Peers having examined the Articles returned c. It must be inferred that the Bishops cannot be comprehended under the word Peers since the Barons are named first To this his Answer is Well but I find the contrary Peers many times put before Barons particularly in Mr. Selden's Baronage p. 12. then he cites a Record of the Judgment against John Mautravers where it is said For which the said Peers of the Land and Judges of Parliament adjudge and award c. Doth this at all contradict my quotation of the Record in Roger of Mortimers Case but that it is as I say That the general word Peers is there put after the Barons and being so cannot comprehend Bishops because in some other Records that word is put before He talks of drawing arguments illogically I am sure this is so I would put him a Case he brings his Action of Slander against one for that at such a time in such a place he had spoken ill of him and said he was a lying Knave and other words that will bear an Action and proves it by witness That man proves by other Witnesses That at another time and in another place he had spoken very well of him and said He was a fine Gentleman I ask now if he would be satisfied with this and not stand upon it that he had proved his Plaint and expects a Verdict and Judgment upon it So may I say that my Precedent stands good and proves what I alledge it for and what he saith is not to the purpose But I will go further and make it appear that even his Precedents that he alledges make all for me and against himself and though he charges me with not being so good as my word saying That I
Canons when 't is for our Advantage to break them I might now proceed to the Examination of his Iast Head How far the Canon Law is at this day binding But because I would not leave any thing untaken notice of he thinks fit to make use of for the strengthening his Cause I shall speak something to what he farther urgeth He tells you out of Knighton That this Parliament was called Parliamentum sine Misericordiâ and that many Circumstances concurred which might make the Lords willing to admit of their Protestation because their business might proceed better against the King's Ministers He need not have urged Inducements to perswade the Lords to admit of their Protestation except he had first shewed they had Power to have refused it But by this Inducement he insinuates that the Bishops would probably have obstructed Justice against those wicked Ministers about the King What the Accusation was for which some of them were executed I shall let you seek in the Historians of those times being unwilling to rake into that Puddle any deeper I shall therefore leave this Parliament and the mysterious Canons as our Author well calls them and come to the Anti-Parliament to this held in 21 R. 2. where as he saith the King had a Mind to undoe what was done in the Parliament in 11 R. 2. which Intention this Author saith he had kept in his Mind ten Years by being willing to let the Bishops be absent in 11. that he might have that pretence to Question in this Anti-Parliament the things then done An undecent Charge he lays upon the King if it be well considered The Declaration by help of the Bishops that the King's Pardon granted in Parliament in 11. was revocable by the King was the Labour of his Ministers in 〈◊〉 which those Ministers prevailed in 〈◊〉 Measure but their Actions with 〈◊〉 â—…cceeding Murther of the D. of Gloâ—… the King's Uncle bred such a Jealousie and Distrust between the King and his People that I may call it the first Stone which left not rolling till it ended in the Ruine of that poor Prince who continued not King much more than a Year after and was soon after the Deprivation of his Crown deprived of his Life also What Art was used to make that Parliament subservient to their ends I need not tell you One of the first Attempts was what I touched before to make Pardons granted by the King in Parliament revocable at his Pleasure in this the Clergy were very instrumental After this the Commons come to do their Parts and they represent that divers Judgments had been undone heretofore for that the Clergy were not there present and therefore pray they might appoint some common Proctor with sufficient Authority to that Purpose From hence he infers two things First That the Commons thought their Presence necessary because Judgments had been undone for want of it Therefore their Concurrence in Judgment was thought necessary to make a Judgment valid Secondly That they should therefore make a common Proctor This is strange Logick Their Presence was thought necessary and Judgments undone for want of it therefore they ought to be present I think ought to have been the Consequent but the Commons pray that in that respect they should make a Proctor I should think now the true Inference ought to have been The Bishops and Clergy ought not to be personally present in Cases of Blood yet because it is fit they should be represented at least in some Cases let them nominate a common Proctor to be in their stead where their Concurrence is necessary This is Sense the other is contradictory 'T is evident by this Petition of the Commons that matter of Blood was to be treated of for there needed no Proctor for any other use since themselves might have been present And I think it very clear by the Year-book in 10 E. 4. that when Issue was once joyned 't was their Duty to absent themselves For that Book is that the Peer questioned may plead not guilty and then the Bishops to depart so that it is plain they were not to vote after Issue joyned in matters of Blood So Hakewell in his Modus Tenend pag. 84. before cited saith That to our days when Question is had of the Attainder of any Peer the Bishops are to depart Now I take the Law to be all one what â—…ue is joyned in a Capital Accusation so as there be any upon which the Court may proceed to Famination of the Cause and to Judgment accordingly As to our purpose in the case of the 〈◊〉 of Danby he pleads the King's Pardon the King's Counsel or the Commons demur The matter then in Issue upon the Demurrer is whether the Pardon is good in Law upon which the Bishops according to 10 E. 4. are to go out because if the Pardon be found invalid then must Sentence of Death be pronounced against the Criminal for I take the Law to be That the pleading a Pardon in Bar upon an Endictment or Impeachment is a Confession that all the matters contain'd in the Endictment or Impeachment are true and he shall never be admitted to plead Not Guilty afterward But this by the way Our Question is about the Commons Petition that they would make a Proctor which being in matter of Blood the Author of the Letter saith was the only time whether this was Error temporis as one saith the Error of that time or an inconsiderate rash Desire of the Commons as another is not necessary to enquire for it doth not appear that any Capital Judgments had been reversed by reason of their Absence so that their desire fails in the ground of it if they meant of Capital ones for the first Judgment against the Spencers was affirmed in 1 Ed. 3. and the Reversal made 15 Ed. 2. was made null so that the Commons it seems were ignorant in that and might be unadvised in the rest as they sometime have been Beside if he consult Sir Edward Coke in his 2 Instit. cap. de Asportatis religiosor pag. 586. he doth well excuse the Commons in shewing that the Bishops were present at the Charge against the Spencers in 1 Ed. 2. so that the Commons might not know how far the Bishops were conusant of the thing and looking only on the out-side were ignorant of the Act in 1 E. 3. for the Discourser saith there were no more No replyes the Grand Questionist not in his Study but the Commons might know of more for we have not all the Rolls What then This at best is but a Surmise and the two Judgments against the two Spencers were enough to make their Allegation true that divers Judgments had been reversed for that cause though it be not to excuse their Ignorance in not knowing that the first Judgment against them was revived by the Statute of 1 Ed. 3. And it seems strange to me that he that had so much
Name of Peers or Grands and therefore may be comprehended under those Names when the Name Prelate is not expressed If this Author can be driven out of these holds I shall believe he may fairly quit the Field without any Dishonour I shall begin with the Tryal of Roger Mortimer in 4 Edward the Third but we must fetch our Judgment from what was done in 28 Edward the Third where upon the desire of Roger Wigmore Cousin and Heir of Mortimer that Attainder was examined and all the Proceedings repeated and upon the whole matter the King charges the Earls and Barons the Peers of the Realm that for as much as these things principally concerned him and them and all the People of his Realm that they would do such Right and loyal Judgment as was fit for such a Person to have The Words upon the Record are Le Roy vous charge Counts Barons les Pieres de son Royaum que de si come cestes choses touchent principalment a luy a vous a tout le peuple de son Royaum que vous facies au dit Roger droit loial Iugement come attient a un tel d'avoir Which said Counts Barons and Peers of the Realm returned and gave their Judgment c. The Words are the King charges you Counts Barons the Peers of his Realm not as our Author renders the Words Earls Barons and Peers of the Realm as if Peers were there distinct from Earls and Barons when the Words import no more than who were those Peers to wit the Earls and Barons therefore the Author of the Letter had reason to say the Bishops were not there who were left out in the reference made by the King whose Words are To the Earls and Barons the Peers of the Realm Now if the Question be asked who are those must not the Answer be the Earls and Barons So that the Bishops must be comprehended under the Names of Earls and Barons or not at all From whence it will follow that this Negative is something more than a bare Negative we may at least call it Negativum praegnans a Negative big with an Affirmative for it is first told who were those Peers Secondly to whom those Judgments belonged Chiefly to the King and them and consequentially to all the Kingdom and whatever the Practise is now I think it not hard to prove that anciently no Judgment or very rarely any by the Lords in Parliament was complete in criminal Cases or Execution done till it was ratified by the King yet that I may render all possible Right to the Bishops the matter will bear I would easily grant that if they were at all summoned to that Parliament they might be present whilst the Proceedings against Mortimer were in reading but went away when the Lords proceeded to the consideration of what Judgment was to be given against him which was enough to give them knowledge of the matter in Agitation and as much as was requisite to make them Parties according to the Opinion of my Lord Coke before cited I said if they were summoned because in many ancient Parliaments I cannot find they had any Summons at all as in 49 Hen. 3. 23 Ed. 1. 28 Ed. 1. 1 Ed. 2. 16 Ed. 2. and 6 Ed. 3. but after that were never omitted so that 't is probable enough that they were not summoned in 4 Ed. 3. who were left out in the sixth year of the same King But in this I will not be positive because it may be the Rolls have been lost Pag. 94. He takes a more exact view of the Case of Mortimer in 4 Ed. 3. and presseth strongly to have it allowed that the Judgment against Mortimer and some others was by Act of Parliament because the Reversal of it in 28 E. 3. was by Act and therefore saith he we may justly suppose that the Judgment against them was ratified in Parliament beside some Historians say he was condemned Iudicio Parliamenti and his own Petition is that the Statute and Judgment may be reversed and annulled and from this infers that if the first Judgment was by Act of Parliament and the Bishops not there then they might not be present in their Legislative Right and if they were there then this Negative way of Argument proves nothing that is they de facto were not there therefore de jure they ought not to be there This I confess is subtle but not solid 't is all grounded upon no greater Authority than Supposition First the Reversal was by Act therefore the Judgment was so too this doth not follow for many Judgments in Parliament may be reversed by Act of Parliament which were not so pronounced His second Conjecture hath as little weight because some Historians say it was by Judgment in Parliament therefore by Act because it is not a Parliament without the King and Lords and Commons for except this be his Argument it is of no force at all for it might be and doubtless was by Judgment in the Lords House which in ordinary Speech was called Judgment in Parliament nay how often doth himself infer the Presence of the Bishops from the Words Full Parliament when the Commons were not concerned and indeed meant no more than a full House Lastly Wigmore desiring the Statute and Judgment might be reversed proves as little for every thing ordained that is Statutum is not presently an Act of Parliament though every Act be Statutum Beside I do not find Statutum in the Record but only the Word Judgment used so that for ought appears from our Author the Bishops might well be absent at the first Judgment against Mortimer and not comprehended under the Name of Peers They have less reason to think themselves included under the Name of Barons if we well consider the words of Petrus Blesensis who living in the time of Hen. 2. well knew both what Honour they had and what they pretended then to whose Words are Quidam Episcopi Regum munificientias Eleemosynas antiquorum abusivè Baronias regalia vocant in occasione turpissimae Servitutis seipsos Barones vocant Vereor ne de illis quereretur Dominus dicat Ipsi regnaverunt non ex me Principes extiterunt ego non cognovi scias te accepisse Pastoris officium non Baronis c. Vacuum a secularibus oportet esse animum Modis omnibus cura ne secularibus te involvas Pet. Blesens edit ult p. 551 552. By this learned Arch-Deacon in his Tractate de Institutione Episc. you may be satisfied that he did not believe that Bishopricks which arose from the Bounty of the King or Alms of the People were ever erected into Baronies by the King but abusively or wrongfully so called by themselves who being charged with the Service by the King had a mind to attribute to themselves the Name since they did the Service For he saith they did abusively or wrongfully call their Possessions Baronies
properly they had no Right thereto That all Judgments belonged to the King and Lords is only an Affirmation of the Arch-bishop but binds not the Commons See Posthu Cottoni p. 350. For I think it very plain that anciently the Commons as well as the Lords had their share in Judicature I shall touch some Records which the Reader may consult at leisure Rot. claus 12. E. 2. m. 5. in the Case of Hugh Audley and his Wife Margaret the Relict of Pierce Gaveston they petition'd to be restored to certain Lands given to Pierce A nostre Signure le Roy son Consâ—…l Prelatez Countes Barons del ' sa terre the Petition was brought into full Parliament and debated habito diligeâ—…i tractatu in pleno Parliamento tam per Prâ—…latos quam per Comites Barones totam Communitatem Regni Concordaâ—… Consideratum 't was ordained considered and agreed per Praelatos Comites Barones totâ—…m Communitatem Regni that all the King's Grants to the said Pierce Peter and his Wife should be revoked and the Deeds cancelled Et quod istud Iudicrum intretur in Rot. Parliament in Cancellariâ—… exinde â—…iur in scaccarium ad utrumque Bancum to be enrolled Nothing can be plainer than that this was a Judgment and no Act of Parliament and that not concerning Blood the Prelates concurred and that probably both Houses sate and voted together as one Body I shall add one Record more in a Capital Case and that is entred Rot. Patent 3 E. 3. pars prima me 33. The Case of Adam Orleton or Tarlton Bishop of Hereford and after of Worcester This Bishop was about 17 E. 2. convicted of Treason before Sir Henry Staunton and other Justices In 1 E. 3. he petitions that the Process and Record in which there was Error might be brought into Parliament and examined and he restored to his Estate Praetextu hujus petitionis mandatum fuit by a Writ Galfrido de Scroop who had the Record quod venire faceret recordum processum praedicta quae sunt in custodiâ suâ in pleuo Parliamenio where after he had assigned several Errors the Record concludes Et quia videtur Dom. Regi praefatis comitibus Proceribus Concilio Dom. Regis toti Communitati Regni convocatis ad Parliamentum quod praedictum recordum processus omnino erronea sunt rationibus praedictis concessum est quod eadem recorda processus adnullentur c. This was clearly a Judgment in Parliament in which the Commons were certainly present and that it was not an Act appears plainly for the Record was certified and Errors assigned and 't is worth observation that he did not assign for Error that he was before convicted by a common Jury but admitted it legal Next I think the Prelates were not Parties to the Reversal of the Judgment given in 17 E. 2. for it is coram Praefatis comitibus Proceribus c. though they were at the recital of the Errors neither is it much material for they might very well be Parties to the Examination of a Judgment in a Capital Case for whether they concurred either in affirming or reversing the Record that made them no Parties to the first Judgment but is only a Concurrence in Opinion that what before had been done by others was well or ill done by them I could cite many other Records where the Commons were present in Parliamentary Judgments but let these suffice But this may seem too large a Digression since I was upon the consideration of 5 E. 3. in which I say Secondly It doth not appear that this was an Advice taken up by themselves for the words are not fust avise par eux or ils furent d'avis it was thought fit by themselves but are et pour ceo que avis feust a eux that is because Advice was given them by others to go away they absented themselves probably in Obedience to those Laws which forbad their Presence And they returned no more saith the Author of the Letter p. 8. and the Advice was given by the Lords Temporal only No saith the Grand Questionist p. 102. The Bishops and Proctors of the Clergy went only into another Room to consult therein which was usual in those times I do not at all doubt but the Members of Parliament have several Rooms to retire to upon occasion but that in this Case they did go apart to consult and give Advice in this Business seems very unreasonable for any one to believe because they had but immediately before declared that the Consideration of such matters properly belonged not to them to meddle with and accordingly withdrew certainly no considerate Man will think they went to consult about what they in the same Breath said belonged not to them Besides we see the return of the Lords and Commons without any mention of the Bishops and the Advice given by them by the mouth of Sir Henry Beamont their Speaker which Advice was afterwards put into a Law and then the Prelates might be present tho they were not at giving the Advice For the Record saith It was enacted by the King Bishops Lords and Commons which then became a Law to which the Prelates might justly give their Consent in their Legislative Capacity whatever it concerned Where note that Sir Robert Cotton translates Grands Commons I think with good reason though carp't at by Mr. Prin in the Margine for we heard nothing of them before and soon after we find them named and undoubtedly concerned in all Proceedings before See Matth. Paris p. 55. Magnates Grands comprehends Counts Barons Knights or any other considerable Person together with many others which would be endless to quote Having before shewed that what our Author calls negative Precedents were not simply so and that the Author of the Letter had great reason to believe them absent where they were not named and where the Laws forbad their Presence especially having on his side the Authorities of 4 E. 3. Numb 1. of 1 H. 4. Numb 80. where the Temporal Lords assume unto themselves the power of judging Peers which Opinion is also made good by the late Votes of the Lords in Parliament May 15 1679. By the Case of Dr. Leighton in the Star-Chamber 6 Car. 1. It is evident that the Prelates were not look'd upon in the same sort that the Temporal Peers were for the Information against him was for writing a scandalous Book against the King Queen Peers and Prelates where Peers and Prelates are contra-distinguished and not taken synonymously as may be gathered by the Sentence and being another Body were judged as Peers to one another not to the Temporal Lords I come now to the Consideration of what he saith pag. 90. he there alledges that many of those the Author of the Letter calls Negative Precedents if they prove any thing prove too much for some of them admit they were not present
258 to A a 263 wherefore the Point of Conquest examined and what improvement is made of the admittance of it 293 to 300 Constitutions of Clarendon expounded and the Bishops Wings clipt there 144 to 166 Convocation of the Clergy 81 82 127 137 S 290 Corporations an account of them and of their ancient Interest in Parliament 276 to 286 3d part Coventry its first Representation in Parliament B b 279 Crimes some that did laedere Majestatem Regiam not capital 172 in marg Curia Regis of various Acceptation 150 Curia Regis how far Mr. W. and Mr. Hunt agree with the Author against Dr. Brady as to its being distinct from the General Council of the Nation V 204 Objection against them where their Notion of it differs from the Authors 205 particular Objections against Mr. W's Notion of it 209 X 210 Mr. Hunt's mistake about it 231 to Y 235 D. DAnby's Plea O 197 Demeasn the Kings of England never had all the Lands of the Kingdom in demeasn 3d part p. 253 to 255 Dictare Sententiam how understood N 179 Doctor Oates vndicated P 222 Doctor Standish his Case 47 S 291 E. EArls and Barons are the Peers of the Realm 22 23 24 R. 263 Earls and Barons consiliarij nati 138 Earl of Arundel's Case O 208 Earl of Hereford and Glocester their Case T 287 V 189 Earl Godwin his Appeal Q 227 Earl of Northumberland 51 54 R 274 275 Earl of Salisbury Kent Huntington their Case 50 Ellis William's Case 35 Errors none by the Bishops absence 47 Estate Bishops but part of a 3d Estate 80 to 85 Exegetical where words used exegetically 52 X 213 Explication of several words quosque Judicium pervenior 155 156 Exposition of words according to the standing 18 to 25 52 X 212 to Y 226 and Q 233 234 F. FErrer's Sir Ralph's Case 39 Fitstephen's Authority examined 77 Fortescuâ—… his Authority B b 271 Form of Writs no Proof of Right 86 Franck-pledges at a Great Council of the Kingdom and who within them B b 273 274 275 283 284 G. GEntlemen how became so C c 285 Glocester Earl and Hereford their Case T 287 and V 189 Godwin Earl his Appeal Q 227 Gomentez and Weston their Cases 37 Grants where the Bishops not comprehended under that word itsextent 32 S 278 279 Government the same before 49 H. 3. as since 3d part 271 to 290 Gurney Thomas 26 H. HAxy Thomas his Case 43 Henry Hotspur's Case S 281 282 283 Huntington's Earl Case 50 S 280 Hunt Mr. the Censure of his Book Pref. to the second Treatise His wrong Translation of non licet in mar 157 His Mistakes Y 229 c. Reasons why he might have spared his Censures Y 228 229 I. IMpeachment when by the Commons the Lords obliged to to try a Commoner 14 Interesse ubi judicium sanguinis tractatur vel exercetur prohibited 158 John Imperial's Case 39 R 264 Irregularity P 221 222 223 Judicial Power in Capital Cases denied the Bishops in the Northern Kingdoms 90 Judicial Power denied them here by Canon Common and Statute Law Vid. Bishops Absence not meerly from the Canons Judgments in which the Bishops had share 11 Judicium a word of various Acceptations 155 Judgments alledged to be void for the Absence of the Bishops 11 195 O 196 Judgments in Parliament and the Curia Regis how reconciled General Pref. V fin K. KEnt Earl S 280 King cannot make an Estate 126 127 King Stephen's Grants reversed at Clarendon 141 142 King Rich. II. undecently reflected on O 194 L. LAwyers confessedly differ from the Questionist as to the Trial of Bishops T 277 and V 194 Laws made upon a dubious Title good 45 46 P 209 to 214 Laws concerning the matter and manner of their making 44 45 Lay-men used to meet with the Clergy in their Councils 157 Lee Sir John's Case 35 Legislative Power in capital Matters allowed to Bishops yet no judicial Power inferred Gen. Pref. 87 88 131 132 and even that an Abuse crept in since Hen. VIII 88 London a Corporation at the Common Law B b 282 Lord Latimer Lions Richard c. 35 Lords of Parliament 36 Lords Temporal expresly named in the Record as sole Iudges 40 58 and R 276 S 280 M. MAnucaptors B b 274 March Earl 22 Mautraver's Case 20 51 279 S 280 281 ibid. Modus tenendi Parl. its Antiquity 121 Molross the Abby its Case and the Authority of that Book answered G 206 207 Mortimer Sir Iohn's case whether judg'd by Act of Parliament 56 to 59 R 262 Mortimer Roger's Case 14 and R 262 N. NAmes equivocal no good Argument from thence P 227 Nevel Lord 35 Nobilitas Major how made 113 Bishops no part of such Nobility S 287 Northumberland Earl R 51 54 274 275 O. OAts Dr. vindicated P 222 Objections from Reason against Mr. W. and Mr. Hunt where they differ from the Autthor's Notion of the Curia Regis 3d part 205 206 Ocle William 26 Old-Castle Sir John 55 Old Modus its Antiquity 121 Omnipotency and the Bishop's Affectation of it in what sense understood by Lord H. 152 153 Orlton's Case R 267 P. PArdons made revocable at Pleasure O 195 Parliament when the word first in use 121 Parliament at Clarendon 139 Peace of the Bishops refusing to give Counsel about it 30 31 R 266 269 Percy Henry's Case 53 Peers of the Realm who 20 21 Pessimae Consuetudines what 140 142 Petrus Blessensis his Testimony 97 98 125 167 168 R 261 Plain dealing 147 Plea of the Earl of Danby O 197 Pool William Duke of Suffolk 13 T 286 Pool Michael's Case 33 34 R 272 Presidents urged against Lord Hollis make for him 14 Proctors or Proxies why the Bishops desire to make them 12 concerning their making them 46 162 197 199 B 200 201 204 205 Proprietors of Land as such their Interest in the Great Council of the Kingdom Y 230 231 and B b 273 to 291 Protestations of the Lord Hollis his Sincerity 6 Protestation made by the Bishops 11 R 2 5 6 7 8 41 42 43 and O 185 to 194 Protestations in the names of the Lords Spiritual and Temporal 8 13 Protomartyr 49 Q. QUestion concerning the Bishops stated 10 11 R. REcapitulation of Arguments against the Bishops being Iudges in case of Blood N 184 Again more fully P 223 224. Q 225. S 277 Rickhil Sir William's Case 48 Reflections upon R. the 2d undecent O 194 Regradation of Peers V 190 S. SAlisbury Earl's Case 50 Sautree William's Case 49 Scheme of the Government as it anciently stood and now stands B b 271 to 291 Scripture against the Bishops their medling in Secular Affairs 134 Scroop Lord. 50 Segrave's Case 61 62 and Q 232 233. T 287 Seniores Populi who meant by them 167 170 Sinister ends in the Parliament 21 R. 2. O 195 Spencer's their Case 48 O 197 198. and Q 234 Standish his Case 47 and S 291 Statute 27. Ed. Ist. c. 3.
than the Suitors at the Curia being Summon'd The Legislative power they exercised as Members of the General Council or Parliament And the Iudicial power as Members of the Curia and were Members of the Curia as they held Lands of the King in Chief Whereas Men came to the Parliament generally upon the account of property in Land without consideration of tenure so it were free In short a Man may have that in an extraordinary capacity in Parliament which he has not there in an ordinary I likewise held that Becket was try'd for Misdemeanors only though according to the Language of those days they were crimina Laesae Majestatis and that the Tryal was in a bare Curia Regis when no more than Suitors to that were summoned Mr. Hunt 's Argument upon this follows If it was the Curia Regis wherein the ordinary Justice of the Nation was administred and not the Parliament was intended in the Assize of Clarendon in which the priviledge and indulgence under the quosque was allow'd to Bishops then the Assize of Clarendon is unduly urg'd against the Bishops judging in Cases of Blood in Parliament c. And consequently by the Assize of Clarendon the Bishops have no leave to withdraw If the Court wherein Thomas Becket was tryed was the Curia Regis then the Bishops judging in that Court in that cause doth most clearly declare that being a case in point that the quousque was an indulgence which they might use or wave Now to my thinking this seeming irrefragable Argument has no real force For not to mention his wrong interpretation of the Constitution of Clarendon nor yet his mistake of the Fact in relation to Becket 's Tryal as if he were Tryed for a Capital Offence In both which I doubt not but he will receive Conviction to the contrary from these two Learned Authors I am bold to say that there is no manner of consequence in the first Branch of his Dilemma which is the only thing that can lye upon me to answer And truly I conceive that it by no means follows that because the Curia Regis in the Constitution of Clarendon is not the whole Parliament but only that Court which either when a Parliament was held or when only a Council of Tenants in Capite or Lords assembled had the sole exercise of the Judicial Power that therefore Iudgements in Parliament before the Lords such as were Members of the Curia are not affected by that Constitution any more than we can now say the House of Lords cannot be concerned in any matter which does not belong to the whole Parliament I shall only add three Observations which may go far to put an end to this Controversie 1. That part of the Constitution of Clarendon which says of the Ecclesiastick Tenants in Chief Debent interesse Judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem was part of the avitae consuetudines ecclesiasticae If it had been a New Law then indeed whatever was not expresly forbidden were matter of Liberty But it being only in affirmance of the Ancient Law their Liberty went no further than the usage which was to be present only till such Causes came to be tryed 2. If Precedents are as Mr. Hunt censures them like an Oracle that will always give a Response agreeable to the Enquirer and Consulter then we must as I formerly did look to the Law in the Case without entring into the large Field of Precedents 3. If the Canons require the Bishops not to concern themselves in the Tryals of Capital Causes and those Canons have been sufficiently received to become the Law of the Land which these Authors prove undeniably then the Bishops must ever be supposed to have been absent when such matters came in question in Parliament unless they are mentioned there by name and cannot be comprehended under words common to them with the Temporal Lords any more than we can imagine that the Popish Lords who are excluded the Lords House by Act of Parliament yet still are Peers are Parties to any Judgement given by the Peers there SIR THE former trouble I gave you upon this Subject you pulled upon your self by desiring my opinion in it but for this I now give you I must beg your pardon it being singly upon my own account to do my self â—…ht and justifie what I then wrote to you against several aspersions cast upon me in a Pamphlet entituled The Right of Bishops to judge in Capital Cases in Parliament c. made it seems by the same person who had set out the other Pamphlet intituled The Honours of the Spiritual Lords asserted c. Of which I gave you some account in a Postscript to my former Letter and I think without any sharp reflection either upon that Author or his work The most I said was When I had instanced in three notorious falsifications of his The first is p. 112. where he quotes Mr. Selden to prove That the Spiritualty made their Proxies in Capital Causes in more Parliaments than the 21 R. 2. for that they did it likewise in the 2 H. 4. and 2 H. 5. which I shew was a mistake and only said he could not find it so in the Record it self but that he took it upon trust out of the Margin of Mr. Seldens book of the Priviledges of the Baronage p. 125. where there is such a quotation of the 2 H. 4. and the 2 H. 5. but wholly misapplyed by our Assertor of Honours for Mr. Selden alledges that Precedent to shew that whereas 2 H. 5. it was by the then Earl of Salisbury assigned as an error in the Attainder of his Father who was condemned of High-Treason in the 2 H. 4. because it was done Sans Assent des Prelates which are the words of the Record Without the Assent of the Prelates by the way speaks nothing of Proxies it was then adjudged to be no error and his Petition rejected which in truth is a strong Argument to prove that the Prelates had no right to be present at such Tryals and Judgments which is the main Question between us And though he being of another mind had maintained his opinion by so gross a prevarication I was so far from retorting it upon him with any bitterness saying It was disingenious and a suppressing of truth and not setting things down faithfully which is his ordinary language concerning me Or with insipid jeers saying I wear a sharp Sword a Trenchant Toledo as one of the younger house of great Alexander and that he brings me to the Sun like Alexanders Horse and telling of the Magical combate in Apuleius and a City of Birds in Aristophanes and such other scurralous passages as his Book is full of which shews the sweetness of the Gentlemans nature and the goodness of his cause which he maintains only by railing and false assertions Whereas I rather lessened his fault saying only that he was mistaken by being
a Capital crime High Treason and a Capital proceeding upon it We see the Sentence was far from Capital and could not have been such as it was if the Crime had been laid in the Accusation to be High Treason Roger de Hoveden in his relation of this business makes no mention of Treason He saith That the King calling a great Council at Northampton Taedium magnum fecit Archiepiscopo did a thing which much vexed the Arch-bishop which was that he caused his Horses to be put into the Arch bishops Inn whereupon the Arch-bishop sent the King word that he would not come to the Council till his Inn was cleared of those Horses yet upon the second day of the meeting the Arch bishop came into the Chapel where the Council sate and there desired the Kings leave that he might go over into France to visit Pope Alexander who was then there which the King denied him and said he should first answer for the injustice he had done to John the Marshal in his Court This John having complained to the King that he had had a long suit in the Arch bishops Court for some Land he held of him and could have no Iustice and that thereupon Curiam Archiepiscopi Sacramento falst ficaverat secundum consuetudinem Regni He had according to the custome of the Kingdom upon Oath charged the Court with wrong doing which I take to be a protesting against the proceeding of that Court and the Judgement there given in the nature of a Writ of Error The Arch-bishop answered to this That John had no injustice done him and that he brought into the Court a certain strange Book and would swear upon that how for want of Iustice he left my Court which the Officers that kept my Court looked upon as an injury done to me because it is the Law of the Kingdome Quod qui Curiam alterius falsificare voluerit oportet eum jurare super sacrosancta Evangelia Whoever will so charge a Court with false dealing must take his Oath upon the Holy Evangelists Notwithstanding this the King swore he would have Iustice done upon him Et Barones Curiae And the Barons of the Court gave Iudgement on him to be at the Kings mercy Which Iudgement the Arch-bishop going about to reverse Iudicium illud falsificare is the expression He was perswaded by the Barons to submit himself to the Kings mercy for a Fine of five hundred pounds Here is nothing in all this that can possibly infer any thing like Treason And it is something observable what both these Authors say of the Judgement given Gervasius saith Curiali Iudicio Episcoporum consensu condemnatus est as if the part of the Bishops in this judgement were something differing from the Act of the Court and not comprized in it Hoveden saith Barones Curiae Regis judicaverunt eum as if the Bishops had no hand in it at all Radulphus de Diceto Decanus Londinensis I suppose Dean of Pauls who lived in those times mentions this business he saith That the Arch-bishop was questioned upon John the Marshals complaint and fined 500 l. and that he was questioned likewise for moneys received by him when he was Chancellour for some Bishopricks and Abbies of which he had received the profits during their vacancies and that not finding the Bishops to be his friends he appealed from their Judgement but then the Proceres the Nobles though he appealed from their Judgement likewise yet they In eum nec confessum nec convictum sententiam intorserunt They wrested a Iudgement against him though he confessed nothing nor was at all convicted You see here is not a word of Treason laid to his charge nor nothing Capital or any thing towards it Matthew Paris tells you the same story and almost in the very same words Now let any man judge whether all those Historians concurring or single Fitz-Stephen disagreeing deserves more credit And that which hath greatest weight with me is the Argument drawn ex natura rei the crime which all agree that the Arch-bishop was charged with was his not appearing upon the Kings Summons which without a great and a very false Multiplying-Glass cannot appear to be any thing like Treason So I must conclude that since the Charge against him had nothing of Capital in it the proceedings upon it was not as against a Capital Offender not brought to Tryal as a Prisoner but came in upon a bare Summons and tarried there and returned at full liberty the Judgement neither of loss of Life nor Limb but meerly Pecuniary and as some of the Authors say compounded with for five hundred pounds I must I say conclude that this whole Case is nothing to our purpose and neither the Law nor usage of Parliament did bar the Bishops from being personally present at such a Tryal And now I come to the point of Peerage which I have so fully handled in my former Letter as I think I need not say much in this Our Asserter brings three Arguments to prove them to be Peers The first is That it is the general stile of all Parliaments from the beginning to be Generale Concilium Cleri Populi even before the coming in of the Normans which no man denies The businesses of the Church as well as of the Civil State are there determined the Writ of Summons shews it which saith That the King intending to call a Parliament Pro quibusdam arduis negotiis Nos Statum defensionem Regni Angliae Ecclesiae Anglicanae concernentibus Bishops and Temporal Lords are summoned and heretofore several others were summoned as Bannerets and sometimes other persons of Quality who likewise were not Peers and yet were called to the Parliaments as pleased the King and the Judges are so summoned at this day Super dictis negotiis tractaturi consilium suum impensuri Where the Bishops act as Bishops and what by the Law of the Land and the practice and usage of Parliaments they ought to do that they do and may do the Temporal Lords in like manner and so likewise the Judges every one acts in his Sphere but this neither gives the Bishops power to judge in Capital Causes if otherwise it be prohibited them nor doth it make them Peers no more than it did formerly the Bannerets and others for their being summoned to sit and vote in the House of Peers We had the experience of this the last Parliament a Baron pretending to a much ancienter station among the Peers by proving that his Ancestor had been summoned by one of our former Kings to sit more than once in the House of Lords yet not making it appear that that favour had been still continued to him and it being made appear on the other side that several Families in this Kingdom would have the same pretence upon the like ground it was the opinion of the House that he had no Right to it and consequently that his Ancestor was never acknowledged to
for he cannot but know out late King chose rather to loose his Life than resign his Power that he never had quiet Possession but a Prince always strugling against him nor had he the acceptance of the People or any thing but force to buoy him up which after his Death fail'd in his next Descendent By what I have said it may appear to any equal Judge that the Laws made 1 Henry 4. were good notwithstanding his pretended Usurpation And as to the thing it self that the Bishops Absence in cases of Blood doth not make a Judgment given void appears plainly by the Case of the Earl of Salisbury in 2 H. 5. who petitions that a Judgment given against the Father might be reversed and assigns for Error that the Bishops who were Peers of the Realm were not present and upon full hearing and debate it was adjudged no Error Now I appeal to this Author whither he can think that my Lord and his Counsel were so stupid as not to urge what they could think of for the advantage of the Earl and the Clergy for whatsoever other faults might be laid to the charge of his Parent the cause appears to be turn'd upon that hinge by all this we may well conclude that the Lords in that Parliament did not hold the Bishops such Peers as ought to be allowed Judges concerning the Life and Death of Noble-men This Judgment our Author hath not thought fit to take notice of which might be equivalent to error temporis for it was either ignorantia or neglectus rei But he tells you Edward the fourth repealed all again in which he is mistaken for Edward the fourth repealed nothing but what concerned the Title between York and Lancaster with some Charters to others I come now to his third head or point Whether supposing that the Bishops absented as he contends only upon the account of the Canon-Law in the times of Popery whether those Laws do continue in force now since the Reformation he thinks they do not In this I shall be very short and against his Reasons which are rather Surmises than other I shall return direct Authorities of Judges and Lawyers in point First he saith the Canon-Law was grounded upon a superstitious fancy that to be present in Cases of Blood brought upon them Irregularity and hath there a large Digression upon the Unreasonableness of the Canon-Law in many particulars I shall easily yield that many of the Rules brought upon the Church by the Papacy are full of Hypocrisie and self-ends but do not think that our Bishops did first forbear from bloody Tryals about Lanfranks time as if this Canon had been unknown in England till then almost 700 years after the first Council of Toledo for Sir Henry Spelman reckons that Canon to be Anno Christi 400. and William the first came in Anno 1066. And in this first Council this Canon is cited but it is more reasonably referred to the eleventh Council of Toledo and the sixth Canon which expresly forbids their medling in Blood 't will yet be about 500 years before Williams Time It is therefore more probable that their forbearance in those Cases proceeded not from any thing brought in by Laufrank but was received here long before from their obedience to the Apostolick Canons which did not only forbid their medling in Blood but in all secular Employments and were carefully observed till Constantine's time who flourished in the year of Christ 323. 'T is likely enough that the Liberty then taken by the Clergy was restrained in Spain by that Council And if our Author please to observe it till they came to be corrupted by Covetousness and Ambition their chiefest Employment was to make Peace between their Neighbours as Chancellors and Arbitrators rather than as Lawyers and Judges In earnest whoever shall consider the intricacy of the Laws of England as they are called the Common-Law will rather believe when they sate as Chief Justices if ever they did so their Seats were among others better versed in the Common Laws than themselves and they sate rather to direct what was equal according to the rules of Mercy than according to the rigorous balance of Justice This certainly was their Office when they sate with the Earl in the County-Court Mr. Lambert in his Laws of Edgar cap. 5. hath these words Celeberrimus autem ex omni satrapiâ conventus bis quotannis agitor cui quidem illius diocesis Episcopus Aldermannus intersunto quorum alter jura divina alter jura humana populum edoceto Here you see the Bishops Office was only to teach the People the Divine Law as the Earl or Alderman did those of the Land His next Suggestion is rather a Conjecture than a Proof to wit that this Canon was never received contrary to himself before or that if it were received it was in diminution of the King's Prerogative and so repealed by the Statute of 25 H. 8. cap. 19. He might as well have said That all the Ecclesiastical Laws as of Tithes Marriages probate of Wills and other Faculties now exercised in the Ecclesiastical Courts are against the King's Prerogative and therefore void What Success an Attempt of that Nature lately had he may easily call to mind But let me bring into his Remembrance what the Statute made in the same Parliament 25 H. 8. cap. 21. hath in the Preamble of it Whereas his Majesties Realm recognizeth no Superiour under God but only his Majesty hath been and is free from Subjection to any mans Laws but only such as have been devised made and ordained within this Realm for the Weal of the same or to such others as by the Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used among them and have bound themselves by long Custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as the ancient and accustomed Laws of the same by the said Sufference Consents and Customs and none otherwise We see here the Sense of the whole Parliament That such Laws as had been used and accustomed should be look'd upon as the Laws of the Kingdom and not of any foreign Prince or Prelate Now let him tell me what Laws were common to us with any foreign Prelate except the Ecclesiastical and Canon-Law which having been here used are acknowledged a part of the Laws of the Land by Usage and Sufferance of the People So that we have now a whole Parliament that they did not look upon these as against the Kings Prerogative and so null as this Author would have it but fully confirmed as part of the English Law Agreeable with this is my Lord Coke in Cawdrey's Case lib. 5. 32. b. It is says he Resolved and enacted by authority of Parliament that all Canons Constitutions Ordinances and Synodals
but of the better Opinion of such as were the Judges The Records of the Court were not to be denyed to any man others it seems might by understanding men concerned in the Cause The meaning of the Law I take to be that Cases of Right might be tryed here of any Value but criminal Cases were not medled withall I remember not to have read any where that Capitalia placita had that Signification our Author suggests Placita Coronae Placita Parliamentaria and Placita Communia I have met with but Capitalia Placita for Placita Capitalium criminum is new to me However the meaning of that be yet the Manuscript Life of Saint Cuthbert as to the thing it self will help us out He tells you it may be with as much Truth as Brompton that one Hamel the Son of Earl Godwin being imprisoned by the Earl of Northumberland his Friends earnestly interceded with the Earl that he might not loose his Head Here indeed we find a man imprisoned by an Earl Application made to the Earl in his behalf no mention of any Bishop any Tryal or any farther Proceeding in the business but the Tryal and the Bishops Presence at it are both supplyed by our Author who hath proved neither or produced greater Proof than the Authority of a loose Legend and that lame too and yet upon this he triumphs as if the Point were clearly gained when there is nothing of what he would have made good by him Is it not now a thousand Pities that so well sounding Words so well put together should signifie nothing The next Precedent our Author takes into Consideration is that of Nicholas Segrave cited by the Author of the Letter pag. 55. by this Author pag. 76. which he would evade by supposing the Bishops might be comprehended under the Name of Magnates or Counsellors and shews that some of the Bishops were probably then of his Counsel For a clear Answer to these Surmises I shall give you shortly the whole Case as you shall find it at large inter placita Parlam 33 Ed. 1. Riley pag. 266. Nicholas Segrave had Summons by the Sheriff and the Command of the King to answer to such things as should be objected against him and to hear and stand to what the Curia Domini Regis to wit the Parliament consideraret in praemissis Segrave upon this Summons Venit in pleno Parliamento in praesentiâ ipsius Domini Regis Arch. Cantuariensis plurimorum Episcopor Comitum Baronum aliorum de Consilio Regis tunc ibidem existentium Nicholas de Warwick perhaps the King's Atturney accuseth him of many and great Crimes which he offers to prove Segrave confesseth all submits to the King de alto basso Et super hoc Dom. Rex volens habere avisamentum Comitum Baronem Magnatum aliorum de consilio suo injunxit eisdem in Homagio fidelitate ligeantia quibus ei tenentur quod ipsum fideliter consulerent qualis poena pro tali facto sic cognito fueri infligenda The Comites Barones Magnates c. adjudge him worthy of Death After this the King pardons him and orders him to put in seven Sureties and to render himself a Prisoner at the King's Command and to be accountable to the King for the Issues of his Land held in his own or his Wifes Name This in short is the Case of Segrave in which it is very clear that at the Accusation the Bishops were present as of Right they might be but at the Tryal they are omitted Now to suppose them comprehended under a general Name and out of Order who were particularly expressed when their Presence was lawful is both unusual and unreasonable unusual because it is against the Rule of Law to comprehend the greater after the Nomination of the lesser and so to take the Bishops under the name of great Men who are constantly first named and were so here at the Beginning Secondly 't is unreasonable to make a different Construction of the same Words in different Cases or Laws now we know that in the Statute de Asportatis Religiosorum the Words are Comites Barones Magnates where we know the Bishops were not comprehended under the Name Magnates nor ought to be here and to suppose the contrary is against the Current of all Acts of Parliament and Records By the Magnates and alii de Consilio were meant the Judges and other Counsellors at Law whose Advice the King required as was very just and usual in those times 'T is likewise observable that the Word Consilio is written with an s which shews those Counsellors he advised with were not necessarily Members of Parliament for then the Word would have been written with a c Concilio His remarkable Precedent of the D'Spencers will stand him in as little stead in the Reign of Edward the Second they were both condemned and the Exilium Hugonis D'Spencer is to be seen in the old Natura brevium Those Judgments were afterward reversed at York in 15 Edward the Second but in 1 Edward the Third the first Judgments were affirmed and so they were look'd upon as condemned Persons which continued though themselves were dead for above seventy years til by the prevailing Party in 21 Richard the Second that Act was again called in question as void in regard the Bishops were absent and the Bishops desired to make a Proctor by the Commons which they accordingly did but at last through their exorbitant Proceedings that whole Parliament was repealed in 1 Henry the Fourth To this I have largely spoken before to which I shall refer the Reader with this farther Advertisement that in troublesome times things are not always carryed as they ought to be wherefore we are not always to look at what was but what ought to have been done neither are we to be governed by seeming Precedents such as sometimes as in the Case of Ship-money may be produced against Law I have before made it manifest that the Canons of the Church long before Lanfrank's time forbad Clergy-men to meddle either in Blood or secular Employments neither is it reasonable to believe the Laws of this Land were different from the general Rule incumbent upon all Clergy-men to observe especially when we see the Immunities granted them by King Stephen were so early recalled by Henry the Second and the Constitutions then made at Clarendon look'd upon as the ancient Customs of the Nation insomuch that the Discourser had very good reason to say 't was the common Usage which is the common Law of England Pag. 88. Our Author comes to the Examination of those Records urged against him and his Exceptions in general are First That they are Negative the Bishops were not present at Tryals of Blood therefore they had no Right to be present Secondly They were sometimes absent when they were not prohibited therefore their Absence was voluntary Thirdly they are sometimes comprehended under the