such Judgements and then particularly whether among the Grantz of that Parliament of 25 E. 3. that affirmed that Judgement against Thorp there were any Bishops And I infer there was none because they tell the King that hereafter even out of Parliament if any body else offend in like manner he may take any of them that is of those Grantz that now give him this advice to joyn in condemning him and by the Law of the Land a Bishop could not joyn therefore there was no Bishop amongst them And that by the Law Bishops and all Clergy-men were prohibited appears by the Act of Parliament of the second of that King which I mentioned before confirming one to the same purpose made in Edward the First 's time that No Clerk should be a Justice of Gaol-delivery for Tryal of Felons this I think is not petere Principium to prove the true meaning of what was done at that time in the House of Lords by what the Law of the Land had already established which must regulate what the House of Lords then did and doth shew there could be no Bishops in the number of those Grantz Then for what he saith of the Commons charging Michael de la Poole before the King Prelates and Lords which was in 10 R. 2. and parallelling his crime to that of Sir William Thorp who for it was condemned to dye upon which he will infer that Michael de la Poole was charged with a Capital crime and accused of it by the Commons before the Prelates as well as before the other Lords who gave their Judgements upon it He may examine the Record and he will find that the Impeachment was only for Misdemeanors cozening the King in an exchange of Land when he was Chancellour and some other miscarriages of that nature And it is the Impeachment which is in the nature of an Indictment that governs the Tryal be the crime what it will As it is laid in the Impeachment or the Indictment it must be so found upon the Tryal at the least it can be found no higher less haply it may be A man that is Indicted for a Misdemeanour cannot be found Capitally Guilty And though by a comparison by way of aggravation it was likened to Thorp's Case Michael de la Poole made it appear there was no resemblance between them And who will take pains to read the Record of Thorp which I dare say this Trifler never did nor scarce any Record will see that the ground of that Judgement which made it Capital was that himself had submitted to such a condition when he took upon him the Office of Chief Justice the words are Si sembla a eur le Jugement sur ceo rendu resonable depuis qil se obligea mesmes per son serement a tiel penance fil feist alencontre The Judgement given upon it seemed to them to be agreeing to reason since he had bound himself by his Oath unto such a punishment if he did contrary to his Oath And I must say it would go hard with a great many if every one should be hanged that cozens the King And it is a pretty remark of his upon Sir John Lee's Case 42 E. 3. that the Record saying That he was brought before the Prelates Dukes Earls Barons and some of the Commons c. He observes that if at this Tryal any thing had been objected which had been Capital the Bishops were present at it And I say he might have made a truer observation than that which is That they might be well assured that nothing Capital was to be objected because then the Bishops would not have been present And one thing I am sure is observable which is that the Bishops that is the Prelates are here recorded to be present and to be ranked before the Dukes Earls c. We are sure if any be specified they are and still ranked in the first place What my Gentleman means in what he saith upon the Tryals 50 E. 3. I understand not they are the Cases of Richard Lyons the Lord Latimer William Ellis the Lord Nevill and John Peach all these were only charged with Misdemeanors he saith their crimes were great and hainous and reckons the loss of Forts among them which he saith was a crime Capital in Gomenitz and Weston 1 R. 2. and that I acknowledge the Bishops to have been present at those Tryals But still this learned Gentleman who brags here that he will not suffer the World to be longer amused and imposed upon by my Notions doth himself still mistake the business not well understanding the nature of the thing he treats of Otherwise he would consider that the Tryal of a Criminal person must always be pursuant to his Charge which is a point I have already spoken to therefore I shall say little here only this that the Impeachment of the Commons against those persons was only for Misdemeanors their Tryal was accordingly and the Bishops were present And for what he saith of Gomenitz and Weston was clean another Case it was for betraying those Towns which they had undertaken to keep when the force upon them was not so great However it is not material what their Crime would appear to be upon proof but what their Charge was and that was Capital Then for what he adds of the Bishops being comprehended under the general Apellation of Les Seigneurs du Parlement The Lords of Parliament in several Cases which he there cites which he beats upon over and over again in so many several places of his Pamphlet and sets up like a Man of Straw of his own making to make sport with is what I never denied my Position is That I have still observed in all Tryals of Crimes when Bishops could be present it is so expressed that they were so as in all Crimes not Capital and I do not think one Instance can be given to the contrary And my other Position which I affirm with more confidence is That if any of the other ranks of the Lords be mentioned the Bishops are so likewise or else it is a certain argument that they were not there My Gentleman is a little put to his Trumps in the Case of Gomenitz and Weston 1 R. 2. That is so plain first the Commons coming and desiring That such as had lost Towns and Castles by their own default might be punished Per agard des Seigneurs Baronage By the Judgement of the Lords and Baronage whereupon those Lords commanded Gomenitz and Weston to be brought before them and upon a long hearing condemned them both to death And the Lords are particularly named the Duke of Lancaster first and ten more Earls and Barons by name of whom Roger Lord Clifford was the last and then a general clause Et plusours autres Setgneurs Barons Bannerettes And many other Lords Barons and Bannerets Now this is so plain and exclusive of all Prelates as my Gentleman is forced to confess that it seems
and Temporal and of the Commons in Parliament in the passing of an Act of Parliament for when a thing is said to be enacted by the King with the advice and assent of the two Houses that advice and assent of the two Houses is their passing and enacting of it as to their part in it For any thing that is done in either House if the King be mentioned in it is said still to be done by him with the Advice and Consent of that House so in a Judgement judicially given by the House of Peers where anciently the King was often present when they acted judicially it is said to be given by the King by the advice of his Lords and here the Duke of Gloucester represented the Kings Person and held the Parliament by Special Commission so the Judgement is said to be given by him by the advice of the Lords Temporal And so the Lords 28H 6. when the King of himself gave the Judgement upon the Duke of Suffolk the Lords protested against it because it proceeded not by their advice and counsel For that is it which gives the form and being to the Judgement and stamps upon it the Authority of the Parliament Then he comes to a Precedent without debate as he calls it which is that of 28H 6. the Duke of Suffolk's case and confessed so by me as he saith but not truly For I do not allow it to be a just and legal precedent I do acknowledge that the Bishops were present all along the whole transaction of that business but as I said in my first Letter to you so I must and do say in this there was in it from the beginning to the end nothing regular nor according to the usage and practice of Parliaments Then it cannot be said to be a Precedent no more than a Monster that hath no shape nor limb of a true Child can be said to be a Child As for the particular deformities of this Monster for so I may term it they are already so fully deciphered in my former Letter as I will not now trouble you with them again So it shall pass at this time as he will have it for a Precedent without debate for it shall not be any further debated Only I must say still it is but a single Precedent and of what force that is or can be when the constant course and practice of Parliaments hath been to the contrary I leave it to you to judge One single Precedent against all other Parliaments is an unequal match one would think I have heard of a great conquering Prince that gave it for his Motto Souls contra omnes but I have not heard it said so of a Parliament Solum contra omnia The authority of any one Parliament I know to be very great yet it is a known Maxime in the Law Parliament poit errer A Parliament may err and another Parliament may mend what one doth amiss Parliament-men are men and may and do sometimes mistake as well as other men it is possible they did so 28H 6. and more than probable they did so because no other Parliament before nor since did ever do the like And for his Recapitulation of all the fore-mentioned Records in all twenty seven which he makes to prove that this was not a single Precedent as I affirm it to be all the rest as he saith concurring with it to admit Bishops to be Judges in Capital Cases I will only say Sit liber Iudex resort to the Records themselves and to what is already said in my former Letter and this and then judge if he saith true Then he hath a fling at me for what I say upon the Case of Nicholas de Segrave 33 E. 1. where he must give me leave to say with truth what he saith falsly of me upon several occasions which is this That he hath not set down things Faithfully and Ingenuously He saith Segrave came into full Parliament into the presence of the King the Arch-bishop of Canterbury and several Bishops Earls and Barons acknowledged his offence and submitted to the Kings pleasure Upon this he observes That here was no Iudicatory of Parliament and then adds that the King pardoned him De advisamento Comitum Baronum Magnatum aliorum By the advice of the Earls Barons Nobles and others You shall see now how faithful and ingenuous a dealer our Asserter is but certainly he takes all upon trust and takes not the pains to see any thing himself First I do acknowledge it was no formal Tryal for there was no impeachment nor Indictment against him but I must say it was Tantamount for he comes in upon Summons into the Parliament then sitting where the Prelates were among the rest of the Members of the House and how long they continued there it appears not by the Record but he being come Nicholas de Warwick the Kings Councel charged him and pressed matters against him And then the King as the Record saith willing to have the advice of the Earls Barons Nobles and others of his Counsel enjoyned them upon the Homage Fidelity and Allegiance which they owed him to give him faithful Counsel what punishment was fit to be inflicted upon such a fact so confessed Who all of them upon a serious debate and advising upon the matter and well weighing all the particulars of it and what was by the said Nicholas plainly and expressly acknowledged do say That such a man deserved to lose his life But afterwards the Record saith Dominus Rer tamen de gratia sua speciali pietate motus malens vitam quam mortem eorum qui se voluntati suae submittunt remittit eidem Nicholao Iudicium vitae membrorum But the King moved by his special grace and piety desiring rather the life than the death of those that submit to his will did remit unto the said Nicholas the Judgement of loss of Life or Member Here you see the King advised not with his Prelates but with the Earls Barons and other Nobles and what did they advise Not to pardon him as our Asserter will have it but they say he deserved death and then the King of himself would not have it go to that extremity Now whether this Judgement would have been final if they had pronounced sentence and adjudged him to death as they only said such a man deserved death or whether this was only to be preparatory to a Tryal and to proceed afterwards upon a formal Impeachment I confess it is not clear to me nor is it greatly material to our purpose only it shews the Bishops were to give no advice in it one way or other and it is rather stronger to prove they are not to meddle in such matters if it was but preparatory For it shews that in those Capital Cases they must have nothing to do with them to determine and judge any thing concerning them from one end to the other ab ovo usque ad mala as the
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
Proctor at the beginning of the Tryal as is manifest and agreed by all therefore the Crime charged upon the Clergy could not but be before any Proceedings against any of the Criminals except that preliminary Vote which made them guilty of Blood in that Chronicler's Sense In Conclusion there was no Act to revoke these Pardons but the King it seems caused Execution to be done upon his own Authority and those general Votes in which the Clergy were present so that after all this Attempt the Authority of this MSS is against him But after all this we have one help left saith the Author of the Letter for if this Action in this Parliament would do him any Service the whole Parliament was repealed in I Henry the Fourth and so no Authority to be laid upon it I but replyes the Grand Questionist the Author of the Letter admits that the three Henries Fourth Fifth and Sixth were Usurpers and therefore the Repeal of that Parliament void I acknowledge the Author of the Letter saith so but he is so to be understood as the Law is now taken not as it was then for we see Henry the Fourh in Parliament claimed the Crown as his Right as being Heir to Iohn of Gaunt fourth Son to Edward the Third whereas the Title of Mortimer who was by another Parliament declared next Heir arose by his Marriage with Philippa Daughter and Heir to Lionel Duke of Clarence who was the third Son to Edward the Third but it was never before determined that the Daughter of a third Brother should be preferred in Succession to the Crown to the Son of a Fourth We see Maud the Empress Daughter to Henry the First could not be received Queen though she attempted and sought for it neither ever had we a Queen since the Conquest till that time Nor can I divine how long it might have remained a Question had not that Controversie been determined by the happy Union of both Titles in Henry the Seventh who married the Daughter and Heir of the house of York The next Question will be how far Laws made by an Usurper generally received and accepted by the People upon the resignation of the immediate precedent Possessor shall be esteemed valid I fear if we make such Laws void we must find some new way to make many of ours good till Henry the Second Was not Robert eldest Son to William the First alive till toward the latter end of the Reign of Henry the First who about the eighth Year after he was King deprived him of his Eyes after which he lived a Prisoner twenty six Years William Rufus had no better Title than the Acceptance of the People and his Composition with his Brother Robert who resigned his Title for 3000 Marks per an Henry the First succeeds by Title no better till Robert's miserable Death which happened in the thirty fifth year of his Reign and about a year before his death After him Stephen steps into the Throne help'd by two powerful Friends the Bishop of Winchester the Popes Legate his own Brother and the Bishop of Salisbury his great Friend and this in the Life of Maud Daughter to Henry the First and his own Brother Theobald whose Title though bad was better than Stephen's they being both Grand-children to William the first by Adela his Daughter marryed to the Earl of Blois But for this great favour and their breach of Oath to Maud he promised great Immunities to the Church and amongst other that Clergy-men should not be bound to answer to secular Courts But by our Author's Logick this Concession was void and the Clergy had no reason to complain because the old Law was revived at Clarendon At last to sodder all a Composition was made that Henry Maud's Son should have the Crown after Stephen's death which was performed by her Consent Maud being then alive who having strugled for the Crown as much as she could was at last contented with this Composition which was the only legal Title King Stephen had and no more voluntary in Maud than was that of Richard the Second But at length Maud dyes and Henry the Second and his Son Richard the first enjoyed the Crown in their just Rights After their Death Iohn comes upon the Stage in the Life of Arthur his elder Brother's Son so that here we have another Usurper after whose death and the death of Arthur Henry the Third had a good Title whose Descendents enjoy it to our Time for the Quarrels between York and Lancaster were not about the Line but the Persons insomuch that till Henry the Third the best Title to the Crown was the Acceptance of the People and particular Compositions with those who had the greater Right Come we nearer home to the time of Henry the Seventh who after the Death of his Mother and his Marriage with the Daughter and Heir of Edward the Fourth was rightful King His Eldest Daughter was marryed into Scotland from whom our present King enjoys his Crowns upon an unquestionable Title We will now come to his Son Henry the Eighth he had two Daughters Mary and Elizabeth the first by Katharine his elder Brother Arthur his Relict the second by Anne of Bullein born in the Life of his first repudiated Wife Queen Katharine Mary was by Act of Parliament declared a Bastard as born within unlawful Espousals Elizabeth after the Disgrace of her Mother was served in the same kind yet we see both of them successively enjoyed the Crown by virtue of another Act which entailed it upon them with the approbation of the people whereas otherwise the true Right would have been in Mary Queen of Scots our present Sovereigns great Grand-mother I might pursue this Theme through France in the case of Hugh Capet through Spain in the family of the D. of Medina Celi and at present in Portugal but I will not go out of our own Kingdoms and have said enough to make it manifest that Laws may be made or repealed by such Kings as are in Possession by Composition or Resignation with the acceptance of the People else our unwary Author hath laid a foundation to overthrow or weaken not only most of our Laws but most of the Laws of Europe Over and above all this if the Laws of Henry the fourth fifth and sixth were not good why did not the Nobility made in that time get new Charters of Creation in Edward the fourth's time Nay what became of the whole Hierarchy Many of the Prelates and inferiour Clergy must of necessity be consecrated by those that were no Bishops and consequently their Consecration and Orders by them conferred were void and all our subsequent Clergy who derive their Authority from those who had no legal Right extinguished a thing in my Judgment worth consideration to such as would avoid Laws made by actual Kings though their just Title might be disputed His mentioning Oliver rather deserves pity for his Inadvertence than any other Answer
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
and other Lords who were suspected to be of the Confederacy with the said Henry Hotspur alias Percy This was the work of Friday the 18th of February on Saturday the 19th the Commons give Thanks to the Lords Spiritual and Temporal for the rightful Judgment they had given as Peers of Parliament 5 H. 4 from N. 12 to N. 17. This is the whole Case as to Father and Son Now whether the Bishops were present at all these Proceedings and how far is the Question The Grand Questionist contends they were present at the Proceedings both against the Father and the Son at that against the Son from the word full Parliament which he seemeth to infer must include the Bishops and at that against the Father from the Thanks made by the House of Commons the next day after the acquittal of the Earl First as to the Son It appears plainly by the Historians of those times that he was slain in the fourth Year of the King in the life-time of the Father who soon after broke out into Rebellion so that at the time of Henry's Death he was only a Commoner and consequently not to receive any Judgment in the Lord's House alone nor could he be made a Traitor otherwise than by Act of Parliament so that the word full Parliament must either refer to some particular Act of Parliament made in his Case in which the Bishops might be present and the Commons concur or else the Proceedings were wholly irregular and contrary to their own Agreement in 4 E. 3. Now from an illegal Act no Right can be concluded As to the Earl himself we find him suddenly after in open Rebellion defeated and escaped into Scotland with Lord Bardolf and convicted of Treason by the Temporal Lords for not appearing upon Summons and all this within two Years after Now can it be reasonable to think that the Bishops were present at the acquittal of this very Lord in 5 H. 4. who were not present in 7 H. 4. which was but two Years after nor were present at a like Case in 2 H. 4. N. 30. against the Earl of Holland and others which was not three Years before Neither can any weight be laid upon the Thanks of the House of Commons which was only matter of Complement and performed at another time when the House was assembled upon other matters but seeing them there might extend their Thanks to them also who though they could not contribute did nothing to hinder the Clemency of the Temporal Lords towards the Earl besides at the same time it was accorded by the King and Lords upon the Desire of the Commons that certain ill Officers about the King should be discharged in which the Bishops might be Instrumental and very well deserve the Thanks of the Commons at which Desire of the Commons they might assist and be absent at the rest The Precedent of Iohn Lord Talbot will not avail him he exhibited an Accusation against the Earl of Ormond for certain Treasons by him committed this Accusation was in the Marshalsea before the Earl of Bedford Constable of England The King to put an end to this matter doth by Act of Parliament make an Abolition and Discharge of the said Accusation and Discovery The words are That the King by the Advice and Assent of the Lords Spiritual and Temporal and the Commons made an Abolition of the said Detection Whoever denied the Bishops Consent in a Legislative way and had it been otherwise the Commons could not have been I think regularly concerned 2. H. 6. N. 9. The Precedent of the Duke of Suffolk in 28 H. 6. I thought to have passed over being a Case as irregular in the Proceedings as unjust in those that put to death that unfortunate Man Much Art was used by the Court to have preserved him from the Envy of the People A Parliament assembled at Westminster after dismissed into London then prorogued to Leicester that dissolved and another called at Westminister in which the Duke appeared which exasperated the Commons against him But upon the whole Record it appears that no Issue was joyned for after Articles exhibited by the Commons and his denial of them March 14 at the least of the eight first and giving some Answers to others on the 17 th he was sent for again and the Chancellour acquainted him that he had not put himself upon his Peerage and now asketh him how he would be tried who instead of pleading put himself upon the King's Order who caused him to be banished for five Years By all this it appears here were no judicial Proceedings which could not be before Issue joyned so that although the Bishops were present at the reading of the Articles yet this can be no Precedent to entitle them to be present in judicial Proceedings in Capital Causes for here were none at all in this Case and till Issue joyned the Bishops are not bound to withdraw Neither ought it to seem strange that the Viscount Beaumont should make Protestation in the name of the Lords Spiritual and Temporal against these Proceedings which they finding to be extra-judicial in very many Particulars they did not know I mean the Bishops as well as some of the Lords what Construction might be made to their Prejudice for sometimes they met in one place sometimes in another and not always in the Parliament-House to consult of this Business Besides many things pass sub silentio which being questioned would not have been allowed these Observations being added to what hath been said by the Author of the Letter seems to me a full Answer to this Precedent in which the Protestatio is only Protestatio facti not Iuris I have thus put an end to the Examination of this third Chapter and fully considered all his Arguments and Precedents and come now to a view of his fourth and last Chapter CHAP. IV. IN this Chapter our Author hath employed all his Art to assert the Peerage of the Bishops and that they make a third Estate in Parliament in what sense they are called Peers as also that the entire Clergy met in Convocation make a third Estate I have largely shewed before and shall not now repeat I admit they are sometimes called Lords Spiritual tho not so before Rich. II. but Prelates or the like Peers of the Realm Peers in Parliament If by that Appellation you would make them Equals to the Nobilitas Major I think they never were yet have they many Privtledges in respect of their Seats and Episcopal Dignity in the Lords House and by reason of their most honourable Profession have all of them Precedence to Barons I admit also that the Clergy is really a third Estate and that the Bishops in respect that they are the Head of the Clergy may sometimes in ordinary Discourse be called so but are in truth never so exclusively to the rest of the Clergy they all making but one Body or third Estate fully represented
misled by the Printers misplacing the quotation so excusing him from any wilful error and purposely venting of untruths I do the like in another great falshood of his in the page following upon his citing a Record 21 R. 2. In the case of the Earl of Arundel which he makes to be That the Lord Steward by the assent of the King Bishops and Lords adjudged the said Earl guilty of Treason whereas the Record runs That the Lord Steward by the commandment of the King and all the Temporal Lords and Sr. Thomas Percy empowered by the Prelates and all the Clergy of the Kingdom judged him guilty c. This you see is a foul misrepresenting of his Precedent and imposing upon the Reader a falshood instead of a true Record for it shews that no Bishop was personally present and I make it out That the putting of a Lay-man in their steads is a strong evidence of the incapacity of all Clergy men to be any of them personally present at any of those Tryals Yet in this I rather excuse our bold Assertor shewing how he was misled here likewise by Sr. Robert Cottons Abridgment and only add this That methinks one should not venture to quote a Record upon any mans allegation without consulting the Record it self which I said I am sure he had not done which I think was as gentle a reprimand as could be and shews That I supposed him such a lover of truth as that if he had known it a falshood he would not have made use of it only he was deceived relying upon the authority of that learned Antiquary Sir Robert Cotton but in truth I am now of another mind and see my Gentleman hath a large Conscience and a mercenary Pen to publish any thing right or wrong to please those that set him on work His third notorious falshood is The Precedent which he cites of Richard Earl of Cambridge who he saith 3 H. 5. was tryed in Parliament upon an accusation of Treason and found guilty the Lords Spiritual being personally present and bids us see the Record of it in the Tower To which I only say That he had not done it himself for he would have found it contrary to what he asserts and that the Earl of Cambridge was tryed condemned and executed at Southampton by a special Commission and that his Attainder was afterwards brought into Parliament and there confirmed by Act of Parliament at which the Bishops might be present Now I pray you Sir do you judge if I gave him any occasion for such a reply as he hath made to me throughout from the beginning to the end of his Pamphlet and if he should not first have considered the Beam in his own eye and have purged himself and given the world satisfaction for these gross mistakes of his rather than add more to them as he hath done all along his book with language fitter for Billingsgate than for the eyes or ears of any sober man But I see it is the nature of the Beast as the Proverb is which he cannot help therefore we must take him as he is Naturam expellas furca licet usque recurret And now Sir I must beseech you to pardon the trouble I have given you with this long Recapitulation of those his falshoods in his former Pamphlet In which I have been the longer to set forth the advantage he gave to one that would have fallen soul upon him and how gently I dealt with him thereby to justifie or at least something excuse my sharpness with him now which I confess and am sorry for for his base return of scoffings and railings against me not fit for a Gentleman who deserved better at his hands and gave him not the least provocation for it But tread upon a Worm and it will turn again And so I shall apply my self to answer what he saith as to his Arguments in the maintenance of his Assertions which I think will not prove very convincing and will follow him as he sayes he would follow me step by step and I hope I shall make it appear that he hath made many a false step and will begin with his Postulata's as he calls them wherein he saith we do agree but he means I think like Dogs and Cats His first Postulatum is concerning the Protestation of the Bishops 11 R. 2. Wherein he saith we both agree that it is a Law But that I have not set it down faithfully leaving out the most considerable things in it because they make against me which if I have done I am a very bad man and may pass not as he stiles me for One of the younger house of great Alexander but rather of the house of this great Asserter himself who is the chief of the family of the Asserters of untruths His charge against me is for leaving out a passage in my recital of this Protestation which is what they say in the beginning of it and likewise towards the end of it claiming themselves to be Peers and that in right of their Peerage by the Laws and Customes of the Kingdom they ought to be personally present in all Parliaments Then he subjoyns another Protestation in the 28 H 6. which he saith also I have not cited faithfully and ingenuously as I ought to have done This is a great charge upon me if it be true that I have done any thing unfaithfully and disingenuously of which I hope I shall be able to purge my self And first give me leave to make a Protestation for my self in the general which I do upon the faith of a Christian and an honest Man and it is this That neither in the citing of these Records or any other throughout my Letter to you I have purposely and willingly left out or concealed any thing that I thought material because it made against my opinion But what I have written is the naked truth as I am fully perswaded in my Soul and Conscience and all that I have done in it hath been singly and meerly for the discovery of the truth and the satisfying of my self and others of which I take the searcher of all hearts to witness and let our Asserter say so much if he dares though for venting falshoods for truths I find him a daring man And now to come to these particulars I will first lay before you upon what ground and to what end I urged that Protestation of the Bishops 11 R. 2. It was for two reasons One to shew That it being at their desire enrolled in full Parliament by the assent of the King Lords Temporal and Commons it came to be the Law of the Land though it had not been so before The second thing was to shew that the Salvo of the Prelates in that Protestation extended only to their Right of Sitting in Parliament in other cases but not in Cases of Blood and that they did not therein at all pretend to that which I think I very clearly proved
would run through all the Tryals upon Record in that I have omitted four in that 4 E. 3. I shall give you an account of those Tryals in that Parliament and you will see that I could have no sinister end in not mentioning them and that all of them proved and confirmed my assertion that the Bishops had no part in any of them I expressed as much as was necessary to prove they were not present at Roger de Mortimers Earl of March who was the chief and the principal of those Delinquents and whose Tryal was the leading Case to all the rest I give you the words of the Record how after the exhibiting of the Articles against him the King bespake the Judges the Peers who were to judge him and charged them in these words Dont le dit Sr. le Roy vous charge Counts Barons les Piers de son Royalme que de st come cest choses touchent principalement a lui a vous a tout le people c. Therefore our said Lord the King charges you the Earls Barons Peers of his Realm that as these things chiefly concern him and you and all the people c. You give righteous Judgment I ask now if this be not as clear as the Sun at noon-day that by the words of this Record I charge you the Earls Barons Peers of the Realm which is the same as if he had said I charge you Earls and Barons who are the Peers of the Realm can be no otherwise understood but that only the Earls and Barons are the Peers that are there charged and none else to give this righteous Judgment The Earls and Barons are the two Species particularly enumerated and Peers is the genus which comprehends both And the same persons whom the King had so charged are they who tryed and gave Judgement upon the Earl of March as the Record shews it saying Les queux Countes Barons Piers c. did judge him guilty of those Treasons And the very same persons did give Judgement immediately in that very Parliament upon the rest viz. Sir Simon de Bereford John Mautravers Boeges de Bayons and the rest Therefore my not mentioning their Tryals which our Asserter lays to my charge as a Crime and a not doing what I had engaged my self to do which was to run through all the Tryals in those Parliament Rolls could not be designedly done with an intention to conceal any thing which made against me as it is maliciously and very falsely interpreted for they all made for me and it was a passing over sub silentio of so many Precedents that confirmed and fortified what I asserted And should you Sir ask me why I omitted the mentioning of them I profess I could give you no good account of it but that it was a meer inadvertency When the question first arose about the Judicature of the Bishops I took some short notes of some Copies of Records that I had and then seeing that all those particular Tryals in 4 E. 3. hung all upon one string and were managed by the same persons it seems I thought it then sufficient to set down the proceedings in the first which was the rule and foundation of the proceedings in the rest and afterwards when I came upon your request to take a little more pains in making my enquiry into the usage of ancient Parliaments I was afterwards more exact in it but when I wrote my Letter to you I made use of my notes which I had taken of the first Parliament and particularly of 4 E. 3. where these other Tryals as I say were left out But I shall now give you an account what they are and you will see it was not for my advantage to conceal them nor would it have been for our Asserters advantage if they had been mentioned but he quarrels at every thing Only give me leave before I come to that to set it down as a general Rule and a very true one That wherever there is an enumeration of particulars of several ranks and degrees which goes downwards beginning with the higher and ending with a lower and in the close a general expression is of Others to be added to and joined with them those others must not be of a higher rank and a superiour degree to that particular which is last mentioned but either of the same degree or of a lower This is a judged Case even in the business of Bishops in Cokes second Report in the Arch-bishop of Canterbury's Case p. 46. Ad este adjuge que Evesques ne sont include deins le Statute 13 Eliz. c. 10. It hath been adjudged that Bishops are not included in the Statute 13 Eliz. c. 10. which saith That Colledges Deans and Chapters Parsons Vicars and then concludes and Others having Spiritual Promotions that these last words cannot include Bishops for reasons before given which reasons are upon the Statute of 31 H. 8. concerning the dissolution of Abbies which mentioning their coming into the Kings hand by Renouncing Relinquishing Forfeiture Giving up c. and concludes with general words Or any other means this cannot be understood of an Act of Parliament which is a higher way of conveyance than any of those specified So Sir Edward Coke upon the Statute of Westminster the second c. 41. which saith Si Abbates Priores Custodes Hospitalium aliarum domorum Religiosarum c. hath this Comment Seeing this Act begins with Abbots c. and concludeth with other Religious Houses Bishops are not comprehended within this Act for they are superiour to Abbots c. and these words Other Religious Houses shall extend to Houses inferiour to them that were mentioned before So I conclude that the Record saying Earls and Barons and Peers c. the general words And Peers can comprehend none but some other Peers equal only or inferiour to Barons and not any above them as I am sure Bishops will say they are And I will tell you when those of a higher degree may and must be comprehended under a general expression that is when the Enumeration or Climax for so I may call it goes upwards beginning with a lower Rank and rising higher in those which they particularize As if it be said Barons Earls and all other Peers here Marquesses and Dukes will be comprehended and Bishops also would be if they were Peers which they are not but still I say if the enumeration descend none higher than the last mentioned can be understood to be meant by any general clause I think you are satisfied that the E. of March was Tryed and Judged only by the Temporal Lords to whom the K. had committed his Tryal and charged them only with it Sir Simon de Bereford was the next who was Tryed and by the same Persons the Record is Item en mesme le Parlement si chargea nostre Sur le Roy les ditz Countes Barons Piers a donner droit loyal Iugement come affiert
a Simon de Bereford Chebalier c. Item in the same Parliament our Lord the King charged the said Earls Barons and Peers to give a right and loyal Iudgement upon Sir Simon de Bereford c. It follows afterwards Si agarderent aviggerent les ditz Countes Barons Piers come Iuges du Parlement per assent du Roy que le dit Simon come treitre fast treisne pendu So the said Earls Barons and Peers as Iudges of Parliament did with the Kings assent award and adjudge Sir Simon de Bereford to be Drawn and Hanged You see the same persons were his Judges who had before Tryed and Condemned the Earl of March yet I must observe a little difference in the expressions The King in giving the charge to the Peers in the Earls Case the words of the Record are The King charges you Earls Barons Les Piers de son Royalme The Peers of his Realm which must be construed Who are the Peers or Being the Peers of his Realm And then their Judgement comes to be set down the Record saith Les queux Countes Barons Piers c. The which Earls Barons and Peers did so and so with a Conjunction Copulative and before Peers as if there were some other Peers after the Earls and Barons which if there were we are sure it could not be the Bishops which is all that we are to enquire into We know that heretofore the Kings of England did sometimes send Writs of Summons to other persons that were not Peers of the Realm but persons of Quality as Bannerets and some Officers as the Warden of the Cinque-Ports whom I find commonly to be the last set down in the List of those who were summoned And those persons so summoned came and attended the Parliament and had Voice and Vote with the Peers as Members of their House and as Peers pro tempore and might be comprized under the general name of Peers and being Lay-men might act as Peers in all Tryals and in all other Judgements of Parliament both Civil and Criminal even in Capital Causes but these could in no sort be esteemed to be Peers of the Realm though they might pass in a large acceptation and a vulgar construction of the expression be termed Peers in Parliament These now might be summoned to a Parliament or two or three Parliaments one after another as pleased the King and then be summoned no more if the King was otherwise minded and they could not pretend to have wrong done them their former Summons having been Ex mera gratia without any right of theirs to them So then I may conclude that it is all one whether you will take it as it is expressed in the Kings charge then The Earls Barons Peers of the Realm c. or as it is when they come to give Judgement and as it is likewise expressed in the Case of Sir Simon de Bereford The said Earls Barons and Peers c. and whether that Conjunction and before the word Peers be of any signification or no to mark out other Peers subsequent to the Barons is not material to what our Asserter would have to be understood of my leaving out any thing for it had all made for me and against him making it clear enough that the Bishops had no part in those Judgements The next Precedent is the Judgement of Iohn Mautravers the Record says Trestouz les Piers Countes Barons assemblez a ceste Parlement a Westminster 〈◊〉 on t examine estroitement sur ce sont assentuz accordez que John Mautravers 〈◊〉 est culpable c. All the Peers Earls and Barons assembled in this Parliament at Westminster have strictly examined and thereupon have agreed and accorded that John Mautravers is guilty c. I appeal now to any man that hath but common sense if it can be imagined that the Prelates or Bishops can be thought to be meant by that expression of All the Peers and if it be not the same in signification as when the King charged them to give righteous Judgement upon the Earl of March saying Si vous charge Countes Barons les Piers de mon Roialme c. And so I charge you Earls Barons the Peers of my Realm c. There the several ranks of Peers are first named and the general word which denotes their Quality common to both which makes them competent Judges of those matters that is their being Peers is put last And here in this Record concerning Mauâ—…avers it is put first Which comes all to one And it is further observable that at the time of that Parliament there were no Temporal Lords before Earls neither Dukes nor Marquesses So if any others were to be understood to be comprised under that General Title of Peers it could be only the Lords Spiritual which is a thing very ridiculous to believe Can it be thought nay can our Asserter himself think I trow not that when the other particular ranks and degrees of the Peerage are expressed and set down nominatim by name as one may say by Tale and by Token Earls and Barons that I say at the same time and to be joyned with them in the same action another rank of men viz. Bishops must pass under a General Title and that put in the first place as if Peerage were an Apellativum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to them or a Genus Imperfectum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the two Species the Lords Spiritual and Lords Temporal which Genus the Logicians define to be Quod speciebus suis non communicatur ex aequo sed alteri magis alteri minus uni speciei immediatè propriè alteri mediatè in ordine ad primariam And that so the Lords Spiritual should still be principally and chiefly meant by the General Name of Peers they Primariò and the Temporal Lords Secundarió Those Logical expressions I know our Asserter understands well who blames others for bringing Illogical arguments therefore I put this to him But that they are not at all Peers of the Realm to speak properly and truly and as they are in the eye of the Law though they have sometimes been stiled so both by themselves and others I have in my former Letter I think made it clear and all that our Asserter saith to the contrary hath not made me change my opinion and I shall say more to it when I come in course to answer what is there said by him In the mean time I shall only add this which I lay for a ground that I do verily believe no instance can be given of an enumeration of some particulars in an Universal Collective Proposition and to leave out that particular which is first in Rank and ought to be first named if any at all be named and to have that to be tacitely implied under the General Term the Signum Collectivum As in this Proposition All the Peers Earls and Baâ—…ons gave such a Iudgement This
Coronae tenta coram Domino E. Rege in pleno Parliamento suo c. Mem. Thomas de Berkeley Miles venit coram Rege in pleno Parliamento suo allocutus de hoc c. about the murther of Edward the Second and asked how he would be tryed Ponit se super Patriam So twelve Knights were empannelled who did acquit him I do not look upon this as a Tryal by the House of Peers acting in their ordinary Judicial Capacity There was some other Court in those times in time of Parliament where the Peers probably were the principal Judges but then were added to them some great Officers of the Crown and of the Judges of Westminster-Hall before whom those Pleas of the Crown were held I confess this is to me Terra incognita a thing of which I can give no very good account But I think one may affirm with confidence that no Prelates were amongst them for they would have been mentioned if they had been there as in all Criminal Causes which were Capital or in any thing concerning such Causes I observe they were And even in this Case of Sir Thomas Berckley the next Parliament N. 18. it is said â—…tem en mesme le Parlement si prierent les Prelatz Countes 〈◊〉 Barons pout Mr. Thomas de Berkley a nostre Sur le Roy â—…il lui voustst deliver de meynprise c. Item in the same Parliament the Prelates Earls and Barons besought the King that he would set Sir Thomas Berkley at liberty from his Mainprize I do observe they are always named and never omitted if any else be named which is my Postulatum to our Asserter and not as he injuriously would put it upon me p. 56. of his Pamphlet That I should maintain That the Prelates are in all Cases particularly named or else they cannot be thought to be there and then to disprove it quotes a Bill of Subsidy where the words are Les Seigneurs Communes si sont assentez The Lords and Commons have agreed And Semble as Seigneurs du Parlement It seems to the Lords of Parliament and a hundred such instances more I know he may give And the Trifler could not but know that I could intend it of no other but of the matters in question which were Judgements in Criminal Causes And I shall add but this more to shew the improbability of the Prelates of those times being at all employed in Tryals of that nature and least of all that we should imagine they could be comprized under general expressions which if it were would argue an unquestionable right and title in them to such a Judicature Let us consider the Statute made but two years before it is 2 E. 3. c. 2. which confirms a Statute formerly made 27 E. 1. c. 3. which Enacts That the Justices of Gaol delivery which are sent down into the several Counties when they enquire of Felonies and Murthers if one of them be a Clerk then some discreet Knight of that County shall be associate to him that is the Lay-man and shall deliver the Gaol We see how careful they were then that no Church-man should take Cognizance of Matters of Blood Canon Law Common Law and Statute Law did prohibit it And now to follow my Gentleman to the Parliament 5 E. 3. in which he tells me I have not been fortunate in the choice of my Topick because that Parliament being called for the redress of the Peace and the Bishops saying It did not properly belong to them to give the King counsel for the keeping of the Peace of the Kingdome signified nothing But had they said it did not all belong to them it had been somewhat to the purpose But under this Gentlemans favour I think it is to the purpose to shew that the Bishops did then believe and acknowledge that it did not properly belong to them to look to the keeping of the Peace that it was not their proper work which implies that they conceived their duty and employment to lie another way And it is a strong argument à minore that if they might not do that and advise the King in doing what was necessary for the keeping of the Peace and punishing the breakers of it much less could they be put upon it to judge in Matters of Blood And for them to say that It did not properly belong to them was a little softer and more respectful to the King to excuse themselves from doing what he required of them for giving their advice than if they had bluntly said That it was not at all of their duty to give such advice which had grated a little too much and had been a kind of retorting it upon the King for requiring a thing in it self improper and unreasonable And yet they did as strongly put it off from themselves saying It did not properly belong to them for no prudent and sober man will do a thing that is not proper for him nor can it be required of him that he should So I think my Topick was very good and I may say I am not altogether unfortunate to have to deal with so weak and impertinent an Adversary What he saith in the Case of Sir John Grey and Sir William de la Zouch of Bishops that they are sometimes comprehended under the general word of Les Grantz I never denied it but in that place where the King did charge Toutz les Countes Barons autres Grantz en lour foies ligeances c. All the Earls Barons and other great men c. I say that Bishops cannot be comprehended there because in that place it can be understood but of such great persons whose Rank is after the Barons where I am sure no Clerk of the Parliament durst ever rank the Prelates And another Rule which I stand upon is That if any one Bench of the House of Peers be named and specified as that of Earls or Barons that of the Bishops if the Bishops were present is never left out but always first placed The next scratch he gives me is upon the Case of Sir William Thorp 25 E. 3. upon my inferring that by the General Term of the Grantz in that Parliament who approved of the Judgement of death given upon Thorp it cannot be supposed that the Bishops are understood because they tell the King that if such a Case should happen afterwards the King might call any of those Grantz whom he pleased and by their advice give such a Judgement of himself which I say could not be meant of Bishops because it was no employment for them to assist in Judgements of death Upon this my Gentleman is pleased in good serious earnest as he scoffingly expresses it to ask if this be not petere Principium to beg what I am to prove And I answer in true serious earnest that I do not petere Principium not beg the Question for the Question is first general Whether Bishops in Parliament can be employed in
by the institutions of the Holy Canons to be personally present and that of Right they cannot nor ought to be there and therefore they do not intend in any sort quomodolibet to be present but wholly to absent themselves while those matters are handling Can any man now have the fore-head to maintain that they could have a thought of challenging still a right contrary to such prohibitions and to say that it was only the Canon Law that did prohibit them I say still that the Canon Law was to them above all Laws and the Prelates of those times conceived themselves to be above all other Laws even not to be subject to them but what the Canon Law did allow or forbid was accordingly by them held to be most lawful or unlawful The Salvo they add makes it clear Iure paritatis nostrae cujuâ—…ibet eorum interessendi in dicto Parliamento quoad omnia singula inibi exercenda nostris eorum cujuâ—…ibet Statui Ordini congruentia in omnibus salbis The right of our Parity and of every one of them that is our equal right in the general and of every one of us in particular with the rest of the Lords of being present and acting in the said Parliament as to all things and every thing befitting our State and Order always remaining unto us safe and entire Now I would ask if it can be imagined that they would by way of Protestation reserve to themselves a liberty when they pleased to do what they said was not lawful for them to do and that which of right and according to the Law to which they were subject and must obey they could not nor ought to meddle with And if such things can be thought to be Statui Ordini congruentia for their Salvo extends only to such things as are agreeable to their State and Order Indeed I think it a solecism to have such a thought And I know it will be excepted against that I do take Paritas here in such a sense and not to be Nomen Apellativum to signifie Peerage a rank of men but I consider how it is put that it is Paritas interessendi in Parliamento which in my opinion is proper to render a Parity or an equal right with others to be present in Parliament But let them construe it Peerage it matters not to me I have handled that point fully by it self in my former Letter and shall do it again in this before I make an end to shew I am not afraid of that expression and though in those times the Prelates gave themselves sometimes that Character that it did not at all belong unto them And he beats upon this again That this was left out purposely by me in my citing this Protestation which I have sufficiently cleared already amongst his Postulata's therefore I shall not trouble you with it again in this place In the Case of Thomas Haxey 20 R. 2. my Gentleman is so ingenious as to say He believes the Bishops were not present but then he tells you why because it was an erroneous Judgment and an Irregular Condemnation and so commends their Prudence And sure he hath been with some Witch to raise some of those Prelates from the Grave as the Witch of Endor did Samuel to tell him the true cause why they withdrew themselves and did then forbear to use their Right as he saith it is lawful for every man to do else he could never have hit so pat upon the true cause of their withdrawing whereas otherwise a man might say it was because they knew they had no right to be there and if it had been their right they should the rather have made use of it to prevent and hinder an unrighteous Judgement and have caused a righteous one to be given And more than that if it was their Right and that they had a calling to be there they were bound to attend the Service and I think it would have been a breach of Duty and a Sin in them to withdraw themselves from it And now I come to a Bundle of Words indeed it is what he says concerning their Proxies 21 R. 2. out of which one shall have much ado to pick some sense and what it is he would be at I will do my endeavour in it He first puts us in mind of his fifth Postulatum and of what he said there of the difference between the Matter of a Law and the Manner of its enacting and that a Law may be repealed for the Matter of it and yet the Manner of making it still hold good This I suppose he saith because I except against the authority which that Parliament at the desire of the Commons gave the Bishops to make their Common Procurator in regard that whole Parliament was afterwards repealed and consequently all it did made null and void Yes saith he the Parliament was repealed by 1 H. 4. because it condemned those who were his friends as Traytors to the King and Government yet the proceedings in that Parliament were just and lawful To which I answer That what was done that Parliament agreeing with the practice and usage of other Parliaments was certainly just for the Manner of the doing though the Matter might be repealed and made null But what was never done before in any Parliament nor any thing like it could not receive any stamp of Authority for its being done in this Parliament because the Parliament it self had no authority a subsequent Parliament repealing it and making it as if it had never been And this of all the Bishops joyning to make a Common Proctor was never done in any Parliament before nor since If any should object that Henry the Fourth was an Usurper and had no right nor Title to repeal former Parliaments nor to make any Laws This were an Objection if it should be allowed would have a long tail and carry a very bad consequence for it would sweep away at once all the good Laws that were made in three Kings raigns and would make such a Hiatus in our Statute Laws as would put things into a very great disorder We know that in Edward the Fourth's time which followed immediately after those three Henries in all the Acts of Parliament which passed when mention is made of any thing done in those Kings Reigns still what was done is allowed of and confirmed and to their Persons and Government the Parliament still gives this Character that they were Kings indeed but not of right Which implies the stamp of Soveraign power and authority to be set upon all their actions and so upon the Parliaments that were summoned and held by them and principally there because of the concurrence and conjunction of the whole Kingdome in all things there done Nay in some Acts of Parliament we find care taken that nothing should clash with what had been done in Parliament by some of those Kings as 14 E. 4. c. 4. there is a Statute
that I confess they might be so because it was in passing an Act of Parliament to confirm their Attainder But my Gentleman is mistaken as he commonly is almost in all his Assertions for the Cases are not parallel the Earls of Kent Huntington and Salisbury had no Tryal had not been legally condemned and attainted but being taken in Circester by the Townsmen rising upon them were by them in a tumultuary manner put to death and the House of Peers afterwards in a judicial way adjudged the fact of those Lords Treason and them Traytors and this was done only by the Temporal Lords who are there particularly named But the Earl of Cambridge and the Lord Scroope had been Tryed Condemned and Executed at Southampton and this Judgement afterwards was brought into Parliament and there confirmed by Act of Parliam where the Bishops were and might be present but our Asserter hath ill luck in all his allegations And he will have as ill luck in what he saith to the Earl of Northumberland's Case 5 H. 4. where I am sure he begs the Question and doth Disputare ex non concesso for whereever Lords or Peers of Parliament are mentioned he will have the Bishops to be comprehended whereas those general words as all other such are to be understood Secundum subjectam materiam If it be in a Case where the Bishops are particularly by the Law of the Land and the continual practice in the execution of that Law excluded and others are comprized under the same general expression it must be understood of them only and not of those upon whom there is such a bar Now they who will have the Bishops to be Peers do not make them the sole and only Peers but allow Earls and Barons to be Peers with them But I do not allow them to be Peers at all our Asserter will prove them to be Peers by two Records Mautravers Case 4 E. 3. and their Protestation 11 R. 2. I have already given an account of what is in Mautravers Case the words are All the Peers the Earls and Barons being met c. Is it not ridiculous to expound this that by All the Peers is meant only the Bishops as if the dignity of the Peerage did principally belong to them that they should be Peers Sans queue as the French denominate a thing that belongs to some particular person more properly and in a more eminent degree than it doth to any body else Or is it not more rational and indeed only so to understand this expression to import that the Earls and Barons were the Peers who then met and that saying All the Peers the Earls and Barons c. the Earls and Barons are an Exegesis an exposition of the foregoing general denomination of Peers so Mautravers Case makes nothing for him but much against him And as to their own Protestation 11 R. 2. indeed they call themselves Peers there but that doth not make them so I have spoken to this point already very fully and sorry I am that I am forced to do it again and to do it so often but he leads me to it who doth as the Proverb saith Reciprocare serram go over and over the same thing as much as ever any man did I think and as often mistake The force of my Argument to prove that by the general appellation of the Lords who protested against the Kings delivering the Earls Petition to the Judges to have their opinion and judged the fact themselves not to be Treason but a Trespass could not be meant Bishops because the Record saith Sur quoy le dit Conte molt humblement remercia le Roy les ditz Seigneurs ses Piers de lour droiturel Iugement Whereupon the said Earl very humbly thanked the King and the said Lords his Peers for their right Iudgement Now the Bishops could not be Peers to the Earl who could not try him nor be tryed by him they being to be tryed only by Commoners and Commoners to try them if there be occasion of which more shall be said afterwards in its proper place I will here only observe one thing that our Asserter hath it instead of Humbly thanked Humbly reverenceth the King which he takes out of the Pamphlet that goes under the name of Mr. Seldens Baronage which I have ever looked upon as a spurious Book not made by Mr. Selden who would never have so translated Remercia and being full of faults and falsehoods yet this Book and Sir Robert Cotton's Abridgment which hath likewise faults enough are the chief Oracles that he consults and which do many times deceive him as the ancient Oracles did those who resorted to them Of as little signification is what he adds of the Lords of Parliament declaring the action of Henry Percy who was killed at the Battel of Shrewsbury to be Treason where he doth assure you the Bishops were present and you shall have his Oath for it I dare say if you will And how doth he prove it Why saith he the Arch-bishop of Canterbury was present at the former Iudgement for in express words he prayed the King that forasmuch as he and other Bishops were suspected to have been of confederacy with Henry Percy that the Earl of Northumberland would now publish the truth whereupon the Earl by the Kings command upon his Oath purged them all And then learnedly argues That here was no departure of the Arch-bishop and of the other Bishops concerned And I believe him for in truth here is a good proof that they were all present but to be purged themselves that they should not be thought Criminal not to act as Judges which is what our worthy Asserter doth assert and what he would have us think that he fully proves which he doth more solito that is Cujus contrarium c. Then my Gentleman for he is an active Gentleman makes an Alman leap to the very end of the last leaf of Sir Robert Cotton's Abridgement where he finds a marginal note of Mr. Prynn's to this purpose That the three Estates must concur to make a Parliament or Richard the Third's title would still be ambiguous and this he thrusts in here by head and shoulders I understand not how to the present purpose I think only to have the occasion to say that Mr. Prynn knew better of Records and what Plein Parlament meaneth than I and another whom he joyns with me and twenty more such as we are which I deny not though he should add to the number himself and forty more who were no wiser than he who all of them would not make our ballance two grains the heavier Then he comes to the Case of the Earl of Northumberland and the Lord Bardolph 7 H. 4. which he saith I say is like to that of the Earls of Kent Huntington and Salisbury 2 H. 4. and that is true for in both those Cases those Lords after their deaths having had their lives taken from them in a
tumultuary way without any formal Tryal the business being brought into Parliament were by the Temporal Lords in a Judicial way of proceeding adjudged to be Traytors and their fact to be Treason But then he adds that I likewise make the Case of the Earl of Cambridge 3 H. 5. like to these which is not true being of a clean different nature an Act of Parliament which had its rise from a request of the House of Commons who brought it up to the Lords here I say the Bishops were and might be present That which he saith to the Case of Sir John Oldcastle 5 H. 5. is so threadbare with rubbing it over and over again and hath been so often said and so often answered as that it would too much trespass upon your patience Sir to trouble you with any one word of it more I think I have made it exceeding clear where under the general term of Lords of Parliament Bishops may be understood to be comprehended and where not Those particular Cases which he now brings to prove his Assertion are point blank against him that is the Case of Mautravers 4 E. 3. and of Gomenitz and Weston 1 R. 2. in that of Gomenitz many particular Lords are named several Earls and Barons and then a general clause Et plusieurs autres Seigneurs Barons Bannerettes Is it possible to think that Bishops come in that fag end Indeed I do observe one thing in this Case of Sautre which is not in any of the other I cannot say that I lay any great stress upon it yet something it is that the Record expresses that the Bishops had done with him declaring him a Heretick and then Relinquentes eum ex nunc Iudicio seculari Leaving him from henceforward to the Secular Judgement as if they should say They would have no more to do with him And as convincingly he argues in the Case of Sir John Mortimer 2 H. 6. He confesses with me that the Indictment found against him at the Guild hall was brought into Parliament before the Duke of Gloucester and the Lords Temporal Fuit liberatum It was there delivered to them and then he cites a Record as he makes it De advisamento dictorum Dominorum auctoritate istius Parliamenti ordinatum est statutum quod ipse usque ad Turrim ducatur By the advice of the said Lords it was ordained and enacted by authority of the said Parliament and by the advice of the said Lords Temporal that he should be led to the Tower These are his words and how he hath mangled and falsely rendred and expounded the Record you will judge by the words of the Record it self which I will here faithfully set down It is this Numb 18. Memorand quod 26. die Februarii anno praesenti de advisamento Dominorum Temporalium ac ad Supplicationem Communitatis Regni Angliae in praesenti Parliamento existentiam redditum fuit quoddam Iudicium versus Iohan. de Mortimer de Bishops Natfield in Comitatu Nertford Chevalier cujus quidem Iudicii recordum patet in Schedula per Iohannem Hals unum Iusticiariorum Domini Regis de banco edita praesenti Rotulo consuta Memor That the 26th of February of this present year by the advice of the Lords Temporal and at the Petition of the Commons in this present Parliament a certain Judgement was given upon Sir John Mortimer of Bishops-Hatfield in the County of Hertford Knight the Record of which Judgement appears in a Schedule drawn by John Hals one of the Justices of the Kings-bench and fastened to this Roll. Then follows the Schedule it self where is set down what past at Guild-hall upon the sinding of the Indictment and how that Indictment was brought into the Parliament Coram duce Bedfordiae ac aliis Dominis Temporalibus Before the Duke of Bedford and the other Lords Temporal and how Sir John Mortimer was brought before them by the Lieutenant of the Tower and how the Commons desired the Indictment might be affirmed and that Judgement might be given upon him Then follows Super hoc viso plenius intellecto Indictamento per dictum Ducem de advisamento dictorum Dominorum Temporalium ac ad requisitionem totius Communitatis authoritate istius Parliamenti ordinatum est statutum quod Indictamentum affirmetur praedictus Iohannes Mortimer de proditionibus praedictis sit convictus ad Turrim ducatur usque ad furcas de Tyburn trahatur super eas suspendatur c. Hereupon the Indictment being viewed and well understood it was by the foresaid Duke by the advice of the said Lords Temporal and at the request of all the Commons ordained and decreed that the Indictment should be affirmed and the foresaid John Mortimer stand convicted of his foresaid Treasons should be carried to the Tower then drawn to the Gallows at Tyburn and there hanged c. This was a Judgement of the House of Peers in their Judicial capacity upon an Impeachment and at the pursuit of the House of Commons who prosecuted and pressed the evidence before the Lords the words of the Record are Tota Communitas praefatum Indictamentum illud in omnibus fuxta vim formam effectum efusoem pro vero fideli Indictamento affirmat ac praefatis Duci ac aliis Dominis Temporalibus supplicat eadem Communitas quatenus iidem Dux Domini Indictamentum praedictum pro vero fideli Indictamento affirmare vellent quod executio dicti Iohannis Mortimer ut de proditionibus feloniis convicti fiat The whole House of Commons do affirm the foresaid Indictment to be in all points for the force form and effect thereof a true and legal Indictment and that execution of the said John Mortimer as of one convicted of the said Treasons and Felonies may follow This you see was a formal Tryal in all points and a Judgement upon it and so it is entred upon the Roll such a day 26 Februarii de advisamento Dominorum Temporalium ad Supplicationem Communitatis redditum fuit quoddam Iudicium versus Iohannem de Mortimer c. And our Asserter here tells us a tale of a Tub that the matter should be decreed after by Authority of Parliament of which the Bishops are an essential part and therefore were present which is an excellent Chimaeâ—…a as if the Advisamentum Dominorum Temporalium Authoritas Parliamenti were two distinct things and the work of several persons some actors in the one who were not so in the other and that the advice of the Lords Temporal had produced some other things which had a greater authority and that the Bishops had joyned in that which shews his ignorance in the course of Parliaments for the Judgement which is given Judicially in the House of Lords hath upon it the stamp and the authority of the whole Parliament and that Advisamentum of the Lords Temporal here was the Judgement as is the advice and assent of the Lords Spiritual
saying is neither in the Judgement it self nor any thing leading to it So he comes to the Arch-bishop Becket's Case where he notably spends his mouth but like an ill Hound all upon false Hunting and indeed runs riot so far as he is not to be lashed in He fills several leaves of his Book with Encomium's of the Popish Clergy because some of them sometimes did what it was their duty to do which doth not excuse them in the general current of their proceedings commonly to stand for the authority of the Pope and the See of Rome against the Regal power and the authority of Parliaments as they did 20 R. 2. saying They were sworn to the Pope and to that See and they would oppose whatever the King and the Temporal Lords should do En restriaion del Poair Apostoliqué ou derogagation de la libertoe de Saina Eglise In restraint of the Power Apostolick or derogation of the Liberty of Holy Church So he takes much pains to assert the Kings natural right to command his Subjects to serve him upon any emergency and so to make Clergy-men Justitiaries if he see cause for it Which then gives them power of Judicature and I do acknowledge it but it is to be understood of Judicature in such Cases as the Law of the Land allows we know they have been some of them Lord Chancellours Lord Treasurers Lord Privy Seal but can he shew me that any of them judged in Cases of Blood For this Case of Beckett's is certainly misrepresented in Fitz-Stephens manuscript We know there have been heretofore in many Counties Justices of Assize which have been Clergy-men joyned with others in Commission who were not Clergy-men to take Assizes in the County And the Act of Parliament 27 E. 1. c. 3. coming to give power to those Justices of Assize to deliver the Gaols and so to be made Justices of Gaol-delivery and try Felons and Murtherers it provides that if one of them be a Clerk then one of the most discreet Knights of the Shire shall be associated to him that is a Lay-man and be empowered by the Knights Writ to deliver the Gaols of the Shires and chasten and punish whom they shall find to be guilty And this Statute is confirmed 2 E. 3. c. 2. which makes it manifest what the intendment of the Law is in that particular that Clerks must not meddle to judge in Cases of Blood and must hold good even for Bishops who are all of them Clerks As for this Case of Beckets which only stands upon the credit of a Manuscript said to be made by Fitz-Stephens a Monk whom he characterizes for a sober and grave Historian and more solito out of the sweetness of his nature gives me a lash saying It is usual with me to let fall expressions to vilifie Testimonies and Precedents when they make against me and this because I stile it a Blind Manuscript and suspect the Author as partial having been a creature of Beckets and consequently no friend to the King And therefore I give rather credit to the unanimous consent of the Historians of those times who do not relate the passages of that Tryal to be as he makes them than I do to him and his Manuscript I call it a Blind Manuscript because it sees not the light lyes obscure in some bodies Closet Mr. Selden doth not tell where and I dare say our Asserter never saw it though he terms the Author a grave Historian His tale is how at that great Council at Northampton Archiepiscopus laesae Majestatis Coronae Regiae arguitur quia est a Rege citatus pro causa Iohannis neque venerat neque idonee se excusasset c. The Arch-bishop is questioned for Treason against the Crown of the King because he was summoned by the King in the Cause of John that is one John the Marshal who complained that the Arch-bishop had done him injustice in his Court and he neither came nor had sifficiently excused himself upon sickness or any other just reason which might necessarily hinder him whereupon he was condemned to forfeit his personal estate and the Bishops and Barons not agreeing who should pronounce the sentence they putting it off from one to another at last the King commanded the Bishop of Winchester to do it This is his story and one may think it a strange piece of Treason one not to come immediately upon a Summons to attend the King especially if it be true what all the Historians that write of those times have related of this business Gervasius Dorobernensis is an Author as Mr. Selden observes who lived in that age and one of whom Mr. Selden and all Antiquaries we are sure have a good opinion and though our Asserter is confident enough to affirm they all have so of Fitz-Stephen it is of what I do not find that much hath been said by them to shew that nor do I think that any of our Antiquaries but Mr. Selden doth so much as mention him And from Gervasius Dorobernensis we have this relation Rex praecepit praesules Proceres regni apud Northamptoniam una cum ipso Archiepiscopo convenire c. The King commanded the Prelates and Nobles of the Kingdome together with the Arch-bishop himself to meet at Northampton where the Arch-bishop was accused of many things first that he had not fully done justice to one John that had a suit before him then that upon this occasion being called into the Kings presence he neglected to come To this the Arch-bishop made answer That John had all the justice done him that was due to him that he had illegally defamed his Court that he would not swear upon the Evangelists as the custome is but upon an old Song-book which he brought with him But that being upon this summoned he came not into the Kings presence was not upon any contempt but that he was hindred by a great sickness and that he had excused himself by two competent witnesses whom he had sent for that purpose yet this served not his turn but Curiali Iudicio Episcoporum consensu condemnatus est He was condemned by the Iudgement of the Court the Bishops consenting to it that all his personal estate should be at the Kings disposing This now is delivered unto us by an unquestionable known Author who lived in that time Fitz-Stephen and he agree in the matter of the Accusation and agree in the Judgement but Fitz-Stephen lays it to be Crimen laesae Majestatis Coronae Regiae High-Treason which must be for not coming to the King when he was summoned Gervasius saith that he sent his excuse by two witnesses who testified that he was then very sick and not able to come which we all know to be a Lawful Essoine De malo lecti which cannot be disallowed but must excuse nay justifie any bodies absence Now can any body that is master of common sense believe Fitz-Stephens relation who will have this to be
be a Peer os the Realm and his Blood enobled which otherwise would have descended from him to his Posterity and to this present Baron who is since enobled by a later Creation but takes nothing from that Ancestor So then it is clear that sitting in the House of Peers and having a parity of Vote and enjoying many of the same priviledges with the Peers doth not in true and proper speaking make the Bishops Peers no more than 21 R. 2. Sir Thomas Percy sitting with the Peers and Voting with them as Procurator for the Bishops was thereby a Peer His next Argument is That in several Rolls of Parliament they are expressly called Peers which cannot be denied nor doth that make them Peers if the essential parts of Peerage be wanting to them We know that denominations are many times taken up in a large and improper sense for some circumstances some similitudes something which is extraneous unto them yet wherein they agree with things of another nature And so Bishops having place and vote in the House of Peers and joyning with the Peers of the Realm sitting in Parliament in all things with equal power uno excepto saving only in cases of Blood it is no wonder if they are often stiled Peers of Parliament But the Precedents he cites are falsly recited both in the Case of Mautravers and that of Gomenitz and Weston as I have shewed before His third Argument is That they have judged as Peers upon Peers of Parliament But I deny that they judge there as Peers but as called to the Parliament to be Members of the House of Lords as Bannerets were formerly and many principal Gentlemen who were still Commoners and some Officers as the Warden of the Cinque-Ports who was no Peer sometimes and yet summoned up to the House of Lords and all these judged such Peers as were tryed in those Parliaments in which they sate However that Bishops are not Peers of the Realm and so consequently not properly and truly Peers of Parliament though often called so I think will be clearly made out First I must as I have formerly done insist upon the Great Charter which Sir Edward Cooke saith is declaratory of the Principal grounds of the Fundamental Laws of England and which the Statute made 25 E. 3. Confirmatio Chartarum will have to be observed as the Common Law and all Judgements given against it to be undone and holden for nought this Law is certainly to be obeyed and what is done in observance of this Law is most legal And it enjoyning every man to be tryed by his Peers and Bishops being tryed by a Jury of Commoners Commoners are their Peers and they are Peers to Commoners and not Peers of the Realm Peers per eminentiam as I may call them or else Magna Charta is broken and made a Law of no authority 2. To be a Peer of the Realm their Blood must be enobled and their Persons dignified nor can they otherwise be put into the same rank with those who are so which would make but an ill accouplement and they would never draw well together Now Bishops do not sit in Parliament ratione Nobilitatis but ratione Officii as Stamford saith in his Pleas of the Crown p. 153. En respect de lour possession se launcient Baronies anneres a lour dignitées In respect of their possessions viz. the ancient Baronies annexed to their dignities 3. If they were Peers and their Persons enobled their Wives would be noble and have the priviledges of Peeresses being Married or Widows for Husband and Wife are one person in Law but we know they have no such priviledge which shews their Husbands to be no Peers 4. If Bishops were Peers of the Realm and any of them questioned for a Capital Crime in Parliament time they could be tryed and judged only by the House of Peers and by no other Court of Judicature The Lords could not avoid the trying of them themselves indeed any but Peers they may refuse except it be upon an Impeachment by the House of Commons for then they must retain it and proceed in it but not otherwise except they see some great cause for it Pro bono Publico as it is 1 R. 2. when the Commons desired that no suit between Party and Party should be undertaken and determined by the Lords or the Officers of the Council but that the Common Law might have its course except it be in such a business and against so great a person as one cannot else hope to have right done in it The same is confirmed 1 H. 4. which I alledge to justifie the Judicature of the House of Lords upon those who are not their Peers upon special occasion But for trying of their Peers is a duty incumbent upon them which they must perform and any Peer who is questioned may challenge it as his right and it cannot be denied him And therefore 4 E. 3. when they had upon the Kings earnest pressing them Tryed and Condemned Sir Simon de Bereford Sir Iohn Mautravers and other Commoners they make a Protestation that they nor their Successors Ne seroient mes tenus ne charges a rendre Iugements sur autres que sur lur Piers Should not be bound nor charged to give Iudgement upon any but their Peers But we know that they have sometimes turned off Bishops to Inferiour Courts as appears by the Record of it in the Exchequer the same 4 E. 3. Stephen Gravesend Bishop of London was complained of in Parliament by one Iohn de Wymburne for saying That if Edward the Second was yet living as he was informed he was in Corf-Castle he would assist him with all his power to re-establish him in his Throne Sir Edward Cooke saith that by order of Parliament the matter was referred to be tryed in the Kings-bench but the Record saith that the Parliament referred it to the Kings Council and appointed him to appear before them at Woodstock upon Sunday fortnight after Easter and that they turned him over to the Kings-bench to be Tryed by the Chief Justice Scroope and his fellow Judges Whereas had this Bishop been then accounted a Peer of the Realm he must have been Tryed in Parliament the Parliament being once possessed of his Cause and they could not have referred him to any other Judicature So here you have four Essential parts of Peerage all of them wanting in Bishops and the want but of one Essential part is enough to destroy the whole He can be no Peer of the Realm who is at the Kings sute Capitally Tryed by a Jury of Commoners if Magna Charta be good Law which is our All as we are Free-men Secondly He who is not himself enobled cannot be a Peer in equal rank to one that is For all Peers are equally Peers as we may say Peerage doth not recipere magis minus The meanest Baron is as much a Peer as the greatest Duke else they were not Peers it would be
Contradictio in adjecto an Imparity in a Parity Thirdly If the Husband be enobled the Wife must be so but the Wife of a Bishop is not enobled therefore the Person of her Husband is not for the Wife and the Husband are one Fourthly If a Bishop were a Peer he could in Parliament time be Tryed no where but in the House of Peers but Matter of Fact we find to be otherwise Therefore I think I may safely conclude that Bishops are no Peers But before I leave this point I must answer one thing which is said They say they hold by Baronage and therefore they are Barons as Fitz Stephen makes the Bishops in their altercation with the Temporal Lords about the pronunciation of the Sentence against the Arch-bishop saying Non sedemus hic Episcopi sed Barones Nos Barones vos Barones Pares hic sumus We sit not here in Parliament as Bishops but as Barons we are Barons and you are Barons Here we are Peers Fitz-Stephen's authority signifies nothing to me but this I know is said and believed by many therefore it must be answered to disabuse many who may think that holding by Barony creates a Baron which it doth no more than holding by Knights service makes a man a Knight or holding by Villanage makes a man a Villain which many do to this day even but here at East-Barnet and yet are good Free-men and no Villains for it works not upon the Person as Fleta saith l. 3. c. 13. the service they do is ratione tenementi non personae So the Bishops holding per Baronagium are thereby made subject to do the service of Barons and to obey the Kings Writ of Summons to attend the Parliament which makes them Lords of Parliament but affects not their person The Bishop of the Isle of Man is a Bishop as well as any of the rest first instituted by Pope Gregory the Fourth as Sir Edward Cooke saith but not holding by Baronage hath no place nor vote in Parliament We must know that this Tenure by Baronage was first created by William the First of all the Lands which held of the Crown in Capite consisting of so many Knights Fees these Lands were divided some to Lay-men some to Ecclesiastical persons And these were all bound to certain services though not all to the same and among others all to attend in Parliament whenever the King pleased to Summon them and so became Lords of Parliament This continued so till King Iohn's time when the number of the Temporal Lords growing so great and numerous that King made some alteration which certainly was setled and confirmed by Parliament but justly the time when this was done is not known the Record of it being lost The alteration was that none of the Temporal Lords should come to Parliament but such as received the Kings Writ a particular Summons for it These were called Barones Majores those who were not so summoned and so did not come to Parliament were stiled Barones Minores and were still Feodal Barons as before and held their Lands per Baronagium but were not Lords of Parliament Therefore it was not barely holding by Barony which made the person a Baron even in those times there was an act of the Kings requisite even in the Summoning of him to Parliament to make that Honour to affect and enoble the Person and so to fix it and make it hereditary in the Family which way of dignifying a Person continued till the eleventh year of Richard the Second when Iohn de Beauchamp Steward of the Houshold was first created by Patent Baron of Kiderminster since which time it hath still been practised to make them all Barons by Patent But the Bishops have still continued upon the first Institution of being by their Tenures obliged and accordingly Summoned to attend in Parliament which made them Lords of Parliament but not Peers of the Realm And now I come to his last point making them a Third Estate for which he cites the Bill presented to Richard the Third in his first Parliament where they are made so and to this I can oppose other passages in Parliament clean contrary as that 2 H. 4. where the Temporal Lords and they together are made to be one of the three Estates and other instances may be given of the same nature But let us a little consider how that Bill was framed 1 R. 3. it was first devised by certain Lords Spiritual and Temporal and other Nobles and notable Personages of the Commons a Party picked out and chosen for that purpose who presented it in the behalf and in the name of the Three Estates of this Realm of England and what was this to do to declare Edward the Fourth to have lived in adultery with Dame Elizabeth Gray whom he had married being precontracted to Dame Ellianor Bottiler daughter to the Earl of Shrewsbury and consequently all his Children Bastards Edward the Fifth a Bastard and Elizabeth his Sister a Bastard afterwards married to Henry the Seventh which entituled him and his Posterity to the Crown set an end to all the foregoing competitions and setled it as it is at this day this Bill as the Record saith was first presented and delivered to their Soveraign Lord the King that was to R. 3. whom they made so in the name and on the behalf of the said Three Estates out of Parliament and now by the said Three Estates assembled in Parliament ratified and confirmed And truly I must say this is not an authority to be bragged of for making the Bishops a Third Estate But then let us see if the Bishops sitting in the House of Lords have the necessary and essential qualifications of being a Third Estate in Parliament without which they cannot be a Third Estate there That the Clergy is one of the three Estates of the Realm and they the Principal and Chief of them no body denies And that they are Summoned to Parliament as a Third Estate of the Realm the dignified Clergy personally others of the Inferiour sort by their Procurators and Representatives is likewise confessed but not to have any part in making of Laws for the good Government of the Kingdom no not so much as in matters meerly concerning the Church but they may offer and propose and be consulted with but whatever they agree upon must come to the two Houses of Parliament and receive the stamp of their Authority before it can be presented to the King to become a Law and be binding to the People This is the work of the Convocation which meets at the same time with the Parliament and there is convened the Third Estate of the Realm Where the Bishops make the Upper House and there sit as Bishops according to their Spirituality But their Summons gives them another capacity which is to meet in the House of Lords and there Cum caeteris Praelatis Magnatibus Proceribus regni de arduis negotiis Statum regni Ecclesiae
from me and hath much more of reason and something though not much more of civility and fairness in the maintaining of it so as whether or no his reasons will convince me I know not but if they do I will certainly grant it for my Maxime is still Amicus Plato amicus Socrates sed magis amica Veritas The Writer of this Treatise intituled The Grand Question concerning the Bishops right to vote in Parliament in Cases Capital Stated and Argued doth state the Question right that is Whether the Bishops may be present and vote Judicially in Capital Cases which come to be judged in Parliament either in giving the Judgement it self or in resolving and determining any circumstance preparatory and leading to that Judgement Then he sets down some things granted on both sides as 1. That Bishops do sit in Parliament by vertue of their Baronies and are bound to serve the King there From this he infers they have a Right of Judicature which is not denied but the question is as he saith himself what this Judicature is 2 That they sit by the same kind of Writ that other Barons do Upon which he would infer that they are impowered and required to confer and treat of all the weighty affairs that shall be brought before them the King having not limited nor restrained the one more than the other But it follows not because all are called together by the same authority that therefore the same duty is incumbent upon all if there be a higher power that directs what every ones duty is to do when they are come together Now the King acts in a higher Sphere by the Law of the Land and the law and practice of Parliament which prohibits Bishops from meddling with judging of Capital Causes in Parliament nor did they ever do it but in one extravagant proceeding in 28 H. 6. where nothing was regular nor Parliamentary from the beginning to the end which I look upon as altogether insignificant to alter what is so setled by Law and constant Custome therefore the Kings Writ of Summons cannot dispence with that to make that lawful which in it self is unlawful as I have sufficiently proved it And I will now go a little further in it than I did before for hitherto I have only insisted upon the Law of Parliaments as a thing setled in Parliament by the Constituons of Clarendon in Henry the Second's time and the Protestation of the Bishops enrolled in Parliament by the King Lords and Commons 11 R. 2. but now I will deliver my opinion which I submit to better Judgements that they lye still under a Restraint by the Canon Law which by the Statute 25 H. 8. c. 12. which was repealed 1 and 2 Phil. and Mar. but revived 1 Eliz. is still of force where it is not repugnant to the Laws of the Realm which we are sure this branch of it restraining Bishops from judging Capitally is not so far from it that it is confirmed and strengthened by the Law of the Land 3. The third Particular in which he saith all agree is That they have their Votes in Bills of Attainder acting in their Legislative capacity which is as much a Case of Blood as the other and perhaps as much forbidden by the Canon But I desire this worthy Person to consider that the Practice of Parliament is the Law of Parliament and is the commanding Law for regulating the Proceedings of Parliament and that hath over-ruled this Point that in the making of a Law every Free-man of the Kingdom doth give his consent either explicitly if he be a Member of either House or implicitly by his Representative for every Free-man of the Kingdome is there present or represented And it is the Fundamental Constitution of our English Freedome that no man can be bound by any Law but what himself hath consented to now a Bill of Attainder is as much a Law as any Statute Law of the Kingdom Therefore Bishops have acted in a Legislative capacity to judge and condemn Capitally as several Precedents we have of it in Henry the Eight's time but not in a judicial capacity And to say the Canon Law prohibits one as much as the other the Statute of 25 H. 8. clears that point which takes away the force of the Canon in the one not to abridge Members of Parliament from voting in the Legislative way and strengthens it in the other forbidding Bishops to vote Judicially in Cases of Blood Yet if you will have me deliver you freely my opinion in it I think it is an abuse crept in since Henry the Eight's time for before none were judged by Bill but such as had been slain in open War or Tryed Condemned and Executed by Commission and then the proceedings brought into Parliament and there approved of and the Attainder confirmed but under Henry the Eighth several persons were condemned by Bill and the Earl of Strafford lately in our memories which seems now to be authorized by the Practice of Parliament Sir Edw. Cooke tells a story which he had from Sir Thomas Gaudy one of the Judges of the Kings-bench how the King had commanded Cromwel and the Earl of Essex to attend the Justices and know of them if a man who was forth coming should be condemned by Act of Parliament without being heard who after some fencing answered if it were so it could not be afterwards called into question and Cromwel himself was not long after so served but this is by the way Multa quae fieri non debent facta valent I have been a little the longer in these particulars because it will much smooth our way in the following discourse And this worthy Gentleman must give me leave to say That he needed not have put himself to all that trouble of his first Chapter in telling us of the mighty power the Clergy had in the Primitive times in the ordering of Secular affairs which certainly was more by way of Counsel than any thing of Authority by way of Judgement and in a Judicial way And he will avow to me I doubt not that the ministery of the word was a full employment for the Apostles and so for Bishops who call themselves their Successors as well as serving of Tables and other ministerial duties was a full employment for those whom he calls the Treasurers of the Church and therefore they said it for themselves and left it as a Rule for their Successors even to Bishops and all other dispencers of the Word and Sacraments that it was not reason they should leave the Word of God and serve Tables Which it seems was a Non est Consonum by the Law of God just as by the Common Law of the Kingdom a Writ was provided declaring it to be likewise a Non est Consonum and to be Contra morem Consuetudinem Regni that Clergy-men should be employed in Secular affairs This indeed I hinted at then as I gave also some little touch at
the Government of the Church by the Imperial Law but not that I put any stress upon it but meerly to circumscribe the Question and keeping it within limits by a Negative declaring what it was not and an Affirmative expressing what it was how Bishops in Parliament could not Judicially act in Capital Cases Therefore were it all so as this learned Gentleman seems to infer that in France Spain Germany and those Northern Kingdoms which he mentions that Bishops were joyned with the Civil Magistrates in ordering the Publick Affairs of those Nations and that they had a share not only in the Legislative but in the Judiciary part as he alledgeth two Authors to prove it to have been in France it would not be of any signification to decide our Controversie for what is this to us to regulate our Parliaments and to operate on our Laws But first for matter of Fact as to France to which I can speak a little having spent many years in that Kingdom and I have by way of discourse informed my self from the Ambassadour who is here from that Crown who doth assure me that the Judges whom they call Counsellors and not Judges as we do who are Clergy-men as many there are joyned with the others of the Laity never sit in that Chamber of Parliament which trys Capital Causes which they call the Tournelle I believe the same may be observed in those other Countries which our Author mentions and I do not see how it could be otherwise the severity of the Canon Law being so strict in the prohibition of it But as I said before the Primitive Christians had that veneration for the Clergy and especially for the Bishops that they were still joyned with the Civil Magistrate in ordering the affairs both in Church and State The matters of the Church they determined Judicially in Secular affairs whether Criminal or other only by way of Counsel if the Civil Magistrate to whose Province they belonged did not do his part I am sure it was so in England Brompton in his Chronicle recites the Laws of King Athelstane in this particular I cited his very words in the original in my former Letter I shall now repeat them very faithfully in English He saith It appertains of right to a Bishop to promote that which is right both concerning God and the World A little after he addeth He ought likewise diligently together with the Secular Judges to promote Peace and Concord And soon upon it he hath this passage The Bishop ought to be present in Judgement with the Secular Judges not to suffer any buds of wickedness to sprout if he can hinder it His Presence and his Counsel was rather a check upon the Judge than to determine any thing in Secular affairs Sir Henry Spelman is a little more particular in delivering unto us the nature of that mixt Court it is in his Glossary upon the word Comes The Earl he saith did preside in that County Court not alone but joyned with the Bishop he to deliver what was Gods Law the other what was Mans Law and that the one should help and counsel the other Especially the Bishop to do it to the Earl for it was lawful for him sometimes to reprove the other and to reduce him bring him into order if he went astray Then he tells us what the work of that Court was that it had cognizance but of petty matters That the Earl had not cognizance of great mens businesses for such matters are to be brought into the Kings Courts he only judges poor mens Causes Hence it is that by our Law Actions for Debts and Trespasscs are not to be commenced in the County Court if it be for above the value of 40s It seems that in ancient times it was but one Court but each Judge had his proper work the Ecclesiastical Judge to distribute and deliver to them what was Gods Law the Secular Judge Mans Law And so it continued till William the First 's time who first separated the two Courts as appears by his Charter to Bishop Remigius which Mr. Selden relates in his Comment upon Eadmerus p. 167. which he saith the King did Communi Concilio Archiepiscoporum suorum raeterorum Episcoporum Abbatum omnium Principum regni sui In a Common Council by the advice of his Arch bishops and the rest of the Bishops and Abbots and all the great men of the Kingdom The words are Wherefore I command you and enjoyn you by my Royal authority that no Bishop nor Arch deacon presume to hold Plea in the Hundred Court any more upon the Episcopal Laws nor bring any Cause that pertains to the rule of Souls before the Judgement of Secular persons but that whoever is questioned according to the Episcopal Laws for any misdemeanour or fault shall come to that place which the Bishop shall chuse and nominate for that purpose and there shall make answer for himself and not in the Hundred Court but shall according to the Canons and the Episcopal Laws do that which is just and right both to God and to his Bishop This was again confirmed 2 R. 2. and so the Courts came to be divided as they continue to this day But nothing can be concluded out of that large Enumeration of the Bishops being admitted in those ancient times to Publick Councils which was more for their Advice and Counsel and Direction than to act any thing at all Authoritatively and Juridically and least of all to have any vote to determine any thing in Cases of Blood which the Canon Law made a Noli me tangere to them I deny not but before there were Christian Magistrates even in the Apostles times the Ministers of the Gospel did many times interpose and reconcile differences and sutes which many times happened amongst believers as St. Paul saith Is there not a wise man among you no not one that shall be able to judge between his Brethren Nor doth he exclude the Bishops that they may not come in as one of those wise men Yet 1 Cor. 6. 4. he seems to exclude them For he saith If then ye have judgement of things pertaining to this life set them to judge who are least esteemed in the Church Which doth seem to intimate as if he meant not the Bishops for sure they are not least esteemed But doth any man think that they were by this authorized to compel men to submit to their Judgement to punish or imprison or lay any corporal punishment upon them if they would not Indeed I cannot think so Nor do I find that St. Augustine was of that opinion the term he gives to those whom the Author of that Treatise will have to be Ecclesiastical Judges doth not imply so much rather the contrary methinks He calls them Cognitores which denotes rather one that took notice of such differences and would endeavour to compose them than a Judge to determine them which hath made me examine that passage more
particularly In his Comment upon the 118 Psalm he saith speaking of those who interrupted them in their enquiry into the duty which they owed to the Commandments of God Non solum cum persequuntur aut litigare nobiscum volunt verum etiam cum obsequuntur honorant tamen cum suis vitiosis negotiosis cupiditatibùs adiuvandis ut occupemur eis nostra tempore impendamus efflagitant aut certè infirmos premunt ut causas suas ad nos deferre compellant quibus dicere non audemus dic homo quis me constituit Iudicem aut divisorem inter vos Constituit enim talibus causis Ecclesiasticos Apostolus Cognitores in foro prohibens jurgare Christianos Here is nothing of coercion in all this they acted not as Judges nay he complains that the Clergy-men themselves were persecuted and compelled to go to Law or if they seemed to shew them some respect and would be ruled by them and drew them from their occupations to compose things between them they would not drive them away and say who made me a Judge between you For the Apostle who forbids Christians going to Law makes the Clergy to be Cognitores Referees or Umpires between which is the greatest act of Charity that can be and most befitting the calling of the Ministers of Gods Word But what saith St. Austin a little after Good men he saith will hearken to us and seldome trouble us with their Secular affairs but others qui inter se pertinaciter agunt quando bonos premunt nostra Iudicata contemnunt faciunt que nobis perire tempora rebus eroganda divinis Good men will hearken to him he saith but those who are perverse do Iudicata contemnere despise his award of it which shews he took not upon him any authority of determining any thing And so in his 147th Epistle to Proculianus the Donatist he hath this passage Et homines quidem causas suas Seculares apud nos finire cupientes quando eis necessarii fuerimus sic nos Sanctos Dei servos appellant ut negotia terrae suae peragant aliquando agamus negotium salutis nostrae salutis ipsorum Non de auro non de argento non de fundis pecoribus pro quibus rebus quotidie submisso capite salutamur ut dissentiones hominum terminemus c. Nothing plainer than that all this is purely out of good will a work of Charity to those who desire him to determine their Secular differences in which the Clergy then had meerly an eye upon Gods Glory the good of their own Souls and of the Souls of those for whom they took that pains But all this is Nihil ad rem let the Clergy have right or no right to judge of Secular Causes it will not decide our Controversie Whether Bishops in Parliament can meddle in cases of Blood Hic Rodus Hic Saltus if we do all extravagate I must come back to this His next Chapter will be more to the purpose it is concerning the Constitutions of Clarendon and the Protestation of the Bishops 11 R. 2. These two particulars well cleared and no disguise put upon them will go a great way He begins with the Constitutions of Clarendon which he conceives to be that Bishops are thereby required to be present in the Kings Courts as other Barons are till they come to give Sentence as to dismembring or loss of life and his Method is to judge of them by these three ways 1. The occasion 2. The plain sense of the words according to their true reading 3. By the subsequent Practice upon this constitution in the Parliament at Northampton soon after 1. For the occasion this Author is pleased to say he can hardly believe I should betray so much unskilfulness in the affairs of those times as to say that the Bishops did then affect such a power of Judicature in Secular Causes and I think I have good warrant to be of that opinion Petrus Blesensis whom this Author cites as living in Henry the Second's time and knowing the whole proceedings of those Constitutions complains of it sufficiently In the first and genuine Edition of them Printed at Mentz in Quarto published by Busaeus the Jesuite in 1600 in his Treatise De institutione Episcopi p. 542. he hath this passage Illud coelestem exasperat iram plerisque discrimen damnationis accumulat quod quidam principes Sacerdotum seniores populi licet non dictent Iudicia Sanguinis eadem tamen tractent disputando disceptando de illis seque ideo immunes à culpa reputant quod mortis aut truncationis membrorum Iudicium discernentes à prounciatione duntaxat executione poenalis sententiae se absentant Sed quid hac simulatione perniciosius est Nunquid discutere definire licitum est quod pronunciare non licet This provokes Gods wrath and heaps up upon many a danger of damnation that some of the prime of Church-men and Elders of the People though they do not dictate Iudgements of Blood yet they debate them and dispute of them and therefore repute themselves free from fault in regard they have withdrawn themselves from being present at the pronouncing and giving order for the execution of the penal Iudgement though they had before agreed to the punishment of Death or loss of Limbs But what can be more pernicious than such dissembling Can it be lawful to debate and to determine a thing which it is unlawful to pronounce Then he compares them to King Saul that had resolved upon the destruction of David but would not that his hand should be upon him but that he should fall by the hands of the Philistines or to the Scribes and Pharisees that cryed out against our Saviour Crucifie him Crucifie him but said it was not lawful for them to put any man to death Is not this as good as Chaucer's Fryer that this Author quips me with p. 4. I do not say that Blesensis blamed all the Bishops for evading the Law in that manner he saith they were quidam Principes Sacerdotum some of the great Bishops But the Author would have it to be the Universal Practice and Opinion of all the Bishops and Clergy to understand the Constitution of Clarendon that they might continue to sit in Judgement till the Sentence was to be pronounced and in the Edition of Blesensis Printed at Paris in 1667. instead of quidam it is Printed quidem but by a manifest error which carries no sense with it and the Marginal Notes in both Editions shew it which is Abusus Clericorum qui causas sanguinis discutiunt marking out the abuse of them that did so This was obvious enough to the Author in his quotation of Blesensis therefore he might have spared the censure of my unskilfulness in the affairs of these times since I had such a Leader to follow as Blesensis and more have I cause to complain of his want of Charity to
with an evil Eye with much other such Language throughout his Book which the Reader may observe if he pleases He ought with more Reason to have considered the Age the Quality the Place this Octavo Gentleman beld at Court the Service he had done his Country both at home and abroad rather than to have loaden the Ashes of a dead Noble-Man with Revilings railing Language and Reproaches who was known to be a Person of so great Worth and Experience The Reader will pardon this Warmth in me when I hear a Person now at rest so slighted who had he been alive this little Gown-man durst not have approached without marks of Reverence and Submission But let us allow him to make up the shortness of his Reasoning by the length of his Railing Thirdly His Extravagancies are so numerous that nigh every Leaf hath somewhat or other of that Nature Conjectures and Surmises without any manner of Proof must pass for Demonstrations One while the Bishops are Spiritual Barons a Title I never remember given to them nay not so much as Lords Spiritual till the time of Rich. II. Another time Feudal Barons and that there was no other than Feudal Nobility Sometimes they are Barones Majores yet not enobled in Blood nor their Honour conferred upon them by any actual Ceremony or otherwise esteemed than Barons by Tenure and that William the Conqueror intended that as an Honour which themselves and all other Historians complain of as a Burthen That the Bishops in Parliament are a full third Estate and yet we know Acts are good when they are either excluded absent or oppose the passing them and yet they never represented any but themselves Sometime he is troubled that the Nomination of the Bishops is in the King These things cursorily observed by me makes his whole Book appear an indigested Lump fit to be lick'd over if so it may be brought into any form 'T is not unlike a Lottery where after a hundred Blanks you may chance get a Prize But I shall leave a further Examination of his crude Notions to another Hand who may be more concerned to detect his Errors than I am However I cannot omit the taking notice of his pompous Title â—…tis indeed a Titulus Sesquipetulcus Their Right unalterable in that place in the Government they now enjoy which Fancy is confirmed by a Consequence of his own making Page 122 That the Bishops cannot be detruded from that Place they bear in the Constitution of the Government for that no Government can legally or by any lawful Power be changed but must remain for ever once established and it cannot be less then Treason of State to attempt a Change No Authority in the World is competent to make any Alteration How false this Position is he will find if he consult the frequent Change of Governments since the Creation in the Jewish Grecian Roman nay in our Britannick State with many others in all parts of the World Neither can I imagine this Maxime can serve him to any other end than to arraign those Parliaments who have made Laws without them or that in 17 Car. 1. Anno 1642 which by Act took away their Seats in that House And lastly to accuse those as Traitours to the State if any hereafter shall attempt it I am confident no Parliament will endeavour to take from them their just Right but to say they cannot and that the Government cannot then subsist is as absurd as the other is unlikely I must further observe that this Author doth upon all Occasions blame those Persons who deny the Prelates that judicial Power in Capital Cases he would place in them as Enemies to the Government whereas he ought to know that Exceptio probat regulam in non exceptis He that gives them Authority in all things that are clear and denies it them in dubious doth more asserttheir Right then he that by giving it them in all things doth rather perplex it I have now done with this unwary Writer who whilst he seems so zealous for the Government doth himself in the main part of it unhinge and destroy it Doth he not Pag. 144. endeavour to destroy the most ancient Court of Chancery which he calls both a Reproach and Grievance to the Nation Doth he not spend some Leaves to shew how this may be effected by setting up as many Chancellours as there shall be Judges in Courts which must in the end be either wholly useless or run us upon an Arbitrary way of proceeding and put an end to all our ancient way of Trials by Iuries and leave all in the Breast of the Iudg to determine Let him not now think to take off the Envy of this by a fawning commendation of our present Lord Chancellour I am so well acquainted with the great Abilities and large Endowments of that Noble Person that I doubt not but his just Decrees in that Court will remain as perpetual Testimonies of his Conscientious Iustice and Equitable Distribution of it in that place in which he is now settled Nor can I believe he will be pleased with any tho never so due Commendations to the Disparagement of his worthy Predecessors or such as hereafter may succeed him in the most Honourable Station in which he now is worthily placed DId the Author of this Treatise believe that the Lord Bishops voting as Judges in Parliament in Cases of Life and Member could any way conduce either to their Honour or Greatness or the Good of the Church and Nation he would never have entred the List in this Quarrel being himself wholly conformable and in his Judgment fully approving the Polity of the Church of England as the best reformed of any other he knows having cleared herself from the Superstitious Formalities of the Church of Rome on the one hand and on the other not requiring from her Children under Terms of Communion any thing in which she may not lawfully as he thinks be obeyed But being fully convinced that their asserting this Right in themselves will bring forth no other Fruit except Envy to their Persons and perhaps sometime or other through the unequal Affections of a head-strong People Prejudice to their Functions I have been the more easily induced to make known my Thoughts herein I observe there have already been made publick six elaborate Treatises upon this Subject four asserting a Right in them to vote in Parliament in matters of Blood and two against it But because the last and most learned Tractate which goes under the name of the Grand Question c. is look'd upon and indeed is the most material I shall apply my self chiefly to the Examination of his Arguments and I hope discover the Errors Fallacies or Inconsequences of them He tells us at first that 't is granted on both sides that the Bishops sit in Parliament by virtue of their Baronies This I must take Liberty to question as doubtful still premising that Truth doth not lye in
testifies to have seen an Exemplification of it under the Great Seal of Ireland in the time of Henry the fourth testifying the same to have been sent into Ireland by Henry the second for a Form of holding Parliaments in that Kingdom So that we must either admit the Great Seal of Ireland to be forged or confess the Modus as ancient as Henry the second 's time Many admit that it was sent into Ireland as a Modus for that Country but was not so for England which seems to me unreasonable it not being likely we should give them a Patern different from our own who now observe most of the Rules there given Daniel Anno 1133 in the Life of Henry the first will tell you that in his time the word Parliament began to be in use after the Convocation of his Parliament at Salisbury in the 15th Year of his Reign Nay much ancienter even as old as Canutus if we believe the old Book of Sir Edmundsbury who in the fifth Year of his Reign summoned all his Prelates Nobles and Great Men to his Parliament as you may see more fully Rights of the Crown p. 100. By all which of much more that might be added we may see how dangerous it is to judg of Books by the promiscuous use of words I have made this short Digression to the end that what I shall say hereafter may be made clearer I shall now apply my self to the Case of the Clergy and consider their Right to sit in Parliament This Right of theirs must grow since the Conquest from the Tenure of their Land in Capite sicut Baroniam and consequently they cannot be reckoned but amongst the Barons by Tenure and are not properly Barons but Peers no way enobled in Blood nor of longer continuance than the Foundation upon which the Tenure is built continues Thus we see in the Dissolution of Monasteries the Tenure was extinguished The same in Bishopricks as that of Westminster and others where the Corporation being dissolved the Tenure as to them was extinguished I know very well they would not now be thought to sit Ratione Episcop Dignitatis as Bishops but as Barons In that famous Wrangle at Northampton touching Becket who should pronounce Sentence against him The Bishops tell the Lords Non sedemus hic Episcopi sed Barones nos Barones vos Barones pares hic sumus Fitst cap. 10. col 2. Seld. Tit. Hon. part 2. cap. 5. pag. 706. We sit not here Bishops but Barons We Barons and you Barons are here Peers or Equals Not meaning by these words that they were otherwise Peers than such as their Tenure made them which was only to hold in Cap. sicut Baroniam or in the nature of a Barony for although that tenere per Baroniam sicut Baroniam perhaps are all one neither of them imply a Barony but only the Services of a Barony which the Bishops by their Tenure were bound to perform as also the Abbots And I am the more confirmed in this Opinion because I do not find that any Examination was made what their Possessions were nor of how many Knights Fees they consisted but were they more or less the Tenure was the same whereas 't is probable the Possessions of some were above twenty Knights Fees the rate of an Earl others less than thirteen yet still the Tenure and Peerage was the same Neither is any Record or Patent produced nor I think can be where any Barony was annexed to their Possessions 'T is evident that out of one Bishoprick others have been taken as Peterborough out of Lincoln Oxford out of Gloster yet these Bishops came to Parliament and still under the same Tenure and Service In Edward the sixth's time Cranmer had his Episcopal Dignity during Pleasure Was he then a Baron at will We may safely conclude from the Complaint of all Historians of those Times that Tenure in Capite and their Services which arose by it was put upon them as a Burthen not as an Honour but imposed upon them to make them know they were Subjects which they could hardly be brought to believe having such Dependance upon Rome Yet was it not thought fit wholly to exclude them from all Councils and therefore this expedient was found out that they should hold their Lands by doing such Services as Barons did and sit amongst them in Parliament in the nature of Barons which they improved afterwards to the Appellation of themselves by the name of Barons but never could to equal Priviledges with those Persons who were truly such Petrus Blesensis in his Tractate de Institutione Episcopali hath these words which I have occasion to cite more at large towards the end of this Treatise pag. 129. Quidam Episcopi Regum munificentias eleemosynas antiquorum abusivè Baronias Regalia vocant in occasione turpissimae Servitutis se ipsos Barones vocant Some Bishops abusively call the Bounties of Princes and the Alms of their Ancestors Baronies and Royalties and taking occasion from that base Slavery he means certainly the Slavery in performing those Services put upon them by their Tenure call themselves Barons This he much and largely inveighs against from all which it may reasonably be collected that they gave themselves that Title rather than that it was given them by the King who yet sate in Parliament together with the other Barons not as a distinct Estate from them but involved with them as part of a third Estate which was intirely represented in Convocation For it seems to me very clearly that they never were a distinct Estate in Parliament if by Parliament you understand that part of it which consisted of Counts and Barons yet were they the chief and principal part of a third Estate in Parliament in respect of the Convocation which began continued and ended with it and where their Debates Gifts to the King and other Transactions bind only their own Body Neither is it reasonable to believe them a third Estate here otherwise than they are so accounted in other parts of the World to wit a part of that Body the Clergy who being a Select Portion or Lot of the Lords and Embassadours of Christ look'd upon themselves as not accountable to any Secular Tribunal Neither is it material whether they sate mixt with the Laity as perhaps they have sometimes done for this cannot alter their being a third Estate as Clergy-men let their Votes be gathered together or apart Indeed I cannot see how it is possible they should be a third Estate in that House where they sit among the Lords for besides their Unwillingness to own that they sit as Bishops but as Barons I would fain have any Man tell me how it comes to be so Dr. Heylin will tell you that Clerus was never taken for the Bishops distinct from the other Clergy By what Title do they then claim it by any Grant from the King that should be produced
their share in making new ones This one would think were enough to content them without desiring to have a Judicial Power in Cases of Blood which I doubt not to prove is by Law forbidden them But I fear the charging this Desire upon them is rather an Artifice of their Enemies who by assixing this Calumny upon them which indeed is not their Design labour to lessen them in the Estimation of the World and by that means bring into Contempt both their Persons and Callings Many Examples I confess are given where Christian Emperours and Princes have made use of the Service of Bishops as Counsellors Chancellors and Chief Justices and the like but upon Examination it will appear that as to our own Kingdom the Offices of these Persons were much mistaken The Office of Capitalis Justiciarius Angliae was not to sit and judge Causes among Associates as at this day but was the Chief Officer of the Nation had the Appellation of Prorex and had Power in the Absence of the King to displace any Officer of the Cinque-Ports and to do any thing as Vice-Roy and Protector of the Kingdom of which see at large Sir Henry Spelman's Glossary in the Word Capitalis Justiciarius Upon Examination it will be manifest that when they sate in any such places their Service rather was to direct the Conscience to make amicable ends of Controversies to preach Peace to others and pursue it themselves till the Subtilty of Rome turned Religion into Policy and destroyed the Power of it How far the Edicts of Princes were binding is not my Task to enquire but only how far that of their not medling in Blood was a part of the Law and Custom of this Kingdom and observed here But what I have said in this Chapter especially as to the Baronies of Bishops I have delivered by way of Proposal not Determination and upon a clear Answer of my Reasons shall be ready to retract any thing I have written CHAP. II. I Come now to the Examination of his second Chapter in which the Recognitions made at the Parliament held at Clarendon come under Examination together with the Protestation made 11 R. 2. I call it a Parliament because I find it generally so esteemed by our best Lawyers and I think denyed to be so by very few Mr. Selden calls it that great Parliament at Clarendon Tit. Hon. part 2. ch 5. p. 703. the first Edit in fol. Coo. 2. Instit. ch 2. p. 6. and in many other places Hoveden saith there met Clerus Populus Angliae Where note he makes Clerus comprehend Bishops Abbots and all Ecclesiastical Persons and Populus both Lords and Commons contrary to what Dr. Brady hath asserted but very weakly proved But before I enter into a more narrow Examination of this Statute I think it not amiss to give a short Account of the History of those times from William the First to the tenth year of Hen. the Second when this Meeting was with Relation only to the King and the Church It will not be denyed that William the First disclaimed all Title to the Crown of England by Conquest and swore to observe the Laws of Edw. the Confessor which were our Laws before yet notwithstanding it is generally agreed that he erected Tenures in Capite and Baronies and that amongst others he obliged the Bishops who before held their Lands in Frankalmoign to do Service to his Courts and to hold their Lands in Cap. sicut Baroniam and not to make their so frequent Appeals to Rome and Journeys thither without his License being a thing contrary to the known Laws of his Kingdom which is made evident by Sir Edward Cook in Cawdryes Case and Sir Roger Twysden in his Vindication of the Church of England in point of Schism These were the Servitutes ecclesiasticae and the Pessimae consuetudines so much complained of by Mat. Paris and other Monks of that Age. But however so it stood during the Times of Will the First Will. the Second and Hen. the First after whose Death Stephen without any Right and contrary to their Oaths made to Maud Daughter to Henry the First then alive by the Aid of the Bishops gets into the Throne and by their Power was kept there till a Composition was made with Maud. In Recompence of this their breach of Oath Stephen frees them and the rest of the Clergy from answering in any other Courts but Ecclesiastical by which they now look'd upon themselves as free from the secular Power because they were answerable for no Offences but in their Courts In this State of things Stephen dies and Hen. the Second Son to Maud according to Capitulation is received to the Crown who after he had setled his Affairs in Normandy resolves to do the like in England but fearing some Opposition to his Designs might arise from the Clergy he first calls together an Assembly or Council at Westminster in the ninth year of his Reign where he propounds That all such of the Clergy as should be taken and convicted for any heinous Crime should lose the Priviledge of the Church and be delivered to the civil Magistrate to be punished for their Offences as other the Kings Subjects were To this the Arch-bishop Becket with the rest of his Brethren refused to give their Consent as being against the Liberties of the Church which were confirmed to them by King Stephens Charter This Answer put the King to a second Question Whether the Arch-bishops and Bishops would submit themselves to the Laws and Customs observed by them in the time of his Grand-father Henry the First They answered equivocally They would their Order the Honour of God and the Holy Church in all things saved with which Answer the King was more enraged But the News of this Breach coming to Rome the Pope writes and sends a Messenger from Rome charges the Arch-bishop to make Peace with his Lord the King and to promise to observe his Laws without Exception The Arch-bishop thus humbled repairs to the King at Woodstock and there promises to observe the King's Laws so far forth as was required Upon this Submission the King having before broken up his Council at Westminster summons this Parliament to meet at Clarendon in the tenth Year of his Reign where he gives in Charge that they should call to Mind and put in Execution and Writing the Laws of his Grand-father Henry the First Of which these following were the chief First that there should be no Appeals to Rome without the Kings leave That Lay-men might handle cases of Tithes That no Arch-bishop or Bishop should excommunicate any person who held of the King in Cap. or interdict any official of his without his leave c. The eleventh of them was at large what we have now under Consideration which I shall repeat and translate as it ought to be by and by But by this short Relation I have made of the History of those
Law be what it will it cannot bind the King's Hands from making use of any of his Subjects in what he pleases though the Employment be forbidden by Law This is the Meaning our third Author gives of this Constitution and much good may it do him Our last Author in his Grand Question comes next to be examined in which I shall be more large because in him is concentred what the rest have said and his Cause defended with much Learning and variety of Reading He names the Constitutions of Clarendon and the Protestation in 11 R. 2. as the two main Laws against him The Constitutions of Clarendon which were no more than a Recognition of the ancient Laws and Customs of England not made but revived by Hen. the First and now confirmed by his Grand-son Hen. the Second he considers as the most material and is content this Cause should stand or fall by them He tells you the Constitution in Debate is the eleventh in number of which the Words are Archiepiscopi Episcopi universae Personae regni qui de Rege tenent in Capite habeant Possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis Ministris Regis faciant omnes consuetudines Regias Et ficut ceteri Barones debeant interesse Iudiciis curie Regis quousque perveniatur ad diminutionem Membrorum vel ad Mortem After the Words he gives us the Translation of them made by the Author of the Letter in the following manner The Arch-bishops and Bishops and all the dignified Clergy of the Land that hold of the King in Capite shall hold their Possessions of the King as a Barony and answer for their Estates unto the King's Justices and Ministers and shall observe and obey all the King's Laws and together with the other Barons they are to be present at all Judgments in the King's Courts till it comes to require either loss of Life or Member But pray Sir why did you not rather give us a Translation of these Words of your own If the Author of the Letter have made an imperfect Translation why did not you mend it I believe if this Author had found it would have advantaged his Cause some Exceptions would have been taken to the Translation I shall by and by give the Reader a full account of the true Sense of the whole Period but will first make appear the Unreasonableness of the Exposition he makes of the last Clause of it Et sicut caeteri Barones debent interesse judiciis Curiae Regis quousque perveniatur ad diminutionem Membrorum vel ad Mortem The Meaning he conceives to be That the Bishops are required to be present in the King's Courts as other Barons are till they come to give Sentence as to dismembring or loss of Life Why he translates Curiae Regis in the plural Number the Kings Courts which is in the singular the King's Court and in this place hath always been understood of the High Court of Parliament in which the other Barons had an Interest to be present as Judges and in which Sense it is very often taken as is made clear by Mr. Petit in his learned Discourse of the ancient Rights of the Commons of England Pref. pag. 45. out of Gervasius Dorobornensis pag. 1653. who speaking of the Election of Arch-bishop Lanfrank hath these Words Eligentibus eum Senioribus ejusdem ecclesiae cum Episcopis ac principibus Clero Populo Angliae in Curia Regis in assumptione Sanctae Mariae and another Author saith it was Consensu Consilio omnium Baronum suorum omniumque Episcoporum Abbatum totiusque Populi Angliae commisit ei Dorobornensem ecclesiam That this was a Parliament we have little Reason to doubt and that it was called Curia Regis See also Inter com T. Hill 17 E. 3. penes remem in Scacc. 29. 32 H. 3. mem 12. 13. in dors rot claus Consideratum fuit in Cur. nostra toto Parliamento nostro c. Wherein Cur. Regis totum Parl. are but expressive of the same thing and not two Courts as I think I very well know that Curia Regis had various acceptations sometime it signified that Court of Justice that at those times followed the King's Person sometime it was taken for Aula Regis where Entertainments and Feasts were made as we read often in our Historians but I take it here to be understood of the High Court of Parliament for the Reasons before touched and many others if any shall seem to doubt of it Next why doth he leave out Judiciis whereas the Words are The Bishops as the other Barons ought to be present Judiciis curiae Regis in Trials in the King's Court viz. the Parliament he renders they are to be present in the King's Courts To help himself under the covert of an ill Translation savours not of that candour justly to be expected from so learned a Person and one that seeketh after Truth rather than Victory but since this Author is a subtile and no loose Writer give me leave to guess at the Reason of it He saw plainly that had he fairly rendred the Words The Bishops as other Barons have Right to be present in all Causes Sentences or Judgments in the King's Court or Parliament till the Cause Sentence or Judgment come to concern Life or Member the Word Judiciis in the plural Number must have referred to other Judgments in other cases and then the latter clause till Judgment or Sentence came to concern Life or Member would have been clearly restrictive as to cases of Blood for to be present at the Judgments of the Court till Judgment is Non-sense except the Words be applyed to different cases Now this Interpretation would have quite destroyed his main Undertaking who at last gives a Sense of the Words not only coincident with that given by the Author of the Bishops Rights to which I have before spoken but contrary to the Votes of the Lords in Parliament who though they seem to admit their Presence in the hearing such a case yet will not admit them to have any part or voice in the judging of it Beside I must needs take notice that 't is a strange Translation of the words Quousque perveniatur or in judicio perveniatur ad diminutionem Membrorum vel ad mortem Till they come to give Sentence when the Words more naturally import till Judgment may be fulfilled in the cutting off of Member or Life which is Execution But I shall anon give him a more proper Translation of the Words in the mean time will consider all his Subterfuges and cunning Evasions by which he would give colour to his Interpretation First from the occasion the Author of the Letter pag. 73. had said The Prelates affected a kind of Omnipotency he conceives the Author means in Judicature and I conceive he made that Supposition because he judged it for his Advantage to suppose so
not that the thing was true or that the Author of the Letter gave him any cause to take up that Fancy Their Affectation of Omnipotency was not to be freed from that part of the Law of the Land which was agreeable with the Laws of the Church which they were content to submit to but their Desire was to be freed from those they thought were against them to wit to do Service to the King for their Lands to answer to his Justices and Ministers to be subject to the secular Power for any crimes they should commit These were the things they stormed at and were the Ecclesiastical Bondage and the wicked Constitutions Matt. Paris and other Historians of his Time so much exclaimed against because they would have had all their Affairs transacted in their own Courts so that our Author need not have spent ten Pages to prove what no body affirms Much of the Contests between the King and Clergy arose from the Charter granted by K. Stephen Anno 1136. That all Persons and Causes ecclesiastical should appertain only to ecclesiastical Judges which Charter whatever stir they made about it according to our Author's Logick was void for Maud the Empress Daughter to Henry the First third Son to William the First and so right Heir to the Crown was then alive to whom the Bishops and People had sworn Obedience and therefore King Stephen was as much an Usurper as Hen. the Fourth This Charter was the Latis offendiculi the stumbling Stone they could not escape and the meer restoring now at Clarendon the ancient Laws and Customs confirmed to the People by Hen. 1. was what gave them the greatest Disturbance not that they affected any Omnipotency of Judicature at least in cases of Blood insomuch that our Author had no reason to pin a Sense upon the Words of the Author of the Letter to which he had no Inducement from any Words of that Author Having done with the Occasion we come now to his second Enforcement of his Opinion viz. the plain meaning of the Words First he quarrels with the copy the Author of the Letter follows taken out of Matt. Paris and Wendover who notwithstanding in Mr. Selden's Opinion have best preserved the meaning of this Constitution Seld. tit hon part 2. pa. 703. 704. Though I do not grant his Vatican copy following as he saith Gerv. Doroberniensis is better yet for once I am content to follow his copy and admit the Words in Judicio to be inserted which are left out by Matt. Paris yet I think necessarily implyed but shall never yield to his unwarrantable construction of them which in conclusion amounts to this That the Bishops were bound to be in the Kings Courts in all Judgments till it came to Sentence of loss of Life and Member and then they might go out in obedience to the Canons of the Church if they pleased to which they pretended themselves bound in Conscience to give Obedience and that for this Reason the Pope marked this Constitution with a hoc tolerandum the others with hoc improbandum I confess I think the Interpretation of these Words contrary to their natural Sense and contrary to the Opinion and Practise of former times who have always understood them to import that the Clergy ought to be present in all Tryals in Parliament except in Tryals of Blood But before I proceed to make good the true Sense and Translation of these words it will be necessary to explain the Signification of some of them First Quousque usque quo dummodo praeterquam are often times indifferently taken as signifying the same thing and are limiting restraining Particles and used as Exceptions to something which went before 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 till what time till when so far forth except when or the like Secondly Iudicium signifies properly a Tryal at Law a Case a Suit or Process and is not taken for a definitive Sentence except when it is delivered as the Opinion of the Court resulting upon a precedent Tryal had before others in which he that pronounces Sentence hath not or very rarely more than a directive Power and do's not give his own single Opinion but the Sense of others in matters debated Actiones quarum causa in jus quisque vocatur quandoque dicuntur judicia Ut in L. in bon fid 13. de Usuris L. 4. C. tit 32. L. Mora S. in bo fid Theophilus refert in S. 1. de Act. quas Athenienses 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicebant Budaeus notat in communi Lingua Graeca per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 generali nomine dicebant litem actionem paenam mulctam judicium to wit the whole Proceedings Iudicium est legitima disceptatio duorum aut plurium coram judice Cale Dict. Calv. Lex juridcirca finem to the same purpose By these Authorities and many more 't is plain that Judicium Judgment comprehends the whole Proceedings in any Cause and not the Sentence only Pervenio signifies to arrive at or the Accomplishment or Bounds of any thing as pervenire ad metam is to arrive at or come to the Goal Ovid speaking of the Return made by the Eccho hath these Words Verba refert aures non pervenientia nostras Words that arrived not at our Ears they came not to the Terms or Bounds designed So pervenior in the Passive Voice must signifie to be arrived at or accomplished in That Judicium in our Case must be taken in the Sense I have given I shall evince from the general Opinion of Lawyers I shall begin with Magna Charta The Words there are judicium Parium and understood of a Tryal by his Equals The Question which is asked the Prisoners after their Plea is not who shall give Sentence upon thee but how wilt thou be tryed and they that give Sentence are not those that try them in criminal Cases nay their appealing to a Tryal by them is accounted a standing Mute The next Authority shall be from the Council at Westminster in the 22. year of Hen. 2. no more than twelve years after the Assize of Clarendon and as Hoveden saith taken out of the 11. of Toledo and summoned as Gervas of Canterbury saith In hoc consilio ad emendationem Ecclesiae Anglicanae ex assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula Amongst which this is one His qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut per se Membrorum truncationes faciant aut inferendas judicent That such as were in holy Orders should not agitate or meddle in Tryals of Blood as a thing unlawful for which Reason they are prohibited from cutting off any Member themselves or from giving their Opinions or Judgments that such Punishments ought to be inflicted This Synod we see was not only a Meeting of the Clergy but with them of the Primores Regni
and the Determinations promulgated by their Assent and the Assent of the King for the Lay-men did usually meet with the Clergy in their Councils in those days To which purpose see a Tractate of a late learned Writer in his Iani Angl. fac nov pag. 213. which came not to my hand till very lately Now whether this Agitation of the Clergy in matters of Blood had reference to the ordinary Courts of Justice in which they might not be present or to all in general is not material since it is only produced to shew the meaning of the Word and certainly if it be inclusive as to those Courts it is not exclusive to any other And Agitation in Tryals being naturally before Sentence Agitation in Tryals must extend to Preliminaries Let us now come to the Constitutions of Arch-bishop Langton in Linwood 'T is first found lib. 3. tit 29. Ne Clerici vel Mon. fo 269. ult edit Praesenti statuimus decreto c. Nec Jurisdictiones exerceant saeculares praesertim illas quibus judicium sanguinis est annexum His quoque duximus adjungendum ne scilicet judicium sanguinis in locis sacris tractetur in ecclesia videlicet vel in caemeterio Authoritate quoque Concilii districtius inhibemus ne quis Clericus beneficiatus vel in sacris ordinibus constitutus literas pro paena sanguinis infligenda scribere vel dictare praesumat vel ubi judicium sanguinis tractatur vel exercetur intersit The Sum of all which is that no Clergy-man should exercise Jurisdiction in any cause to which Sentence of Blood was annexed That no causes concerning Blood should be held in Churches or Church-yards Lastly that they should not be interessed where causes of Blood were handled nor should presume to write or dictate such Sentences to be inflicted To the same purpose are the Constit. of Othobon Ne cler advocat tit 7. p. 91. Let him look upon his own Authority out of Hostiensis Protestatio in judicio is meant of a Protestation in a Suit or Process I am sure these are Testimonies more than enough to shew the true meaning of judicium among Lawyers which is the only end for which I have produced them I shall now come to the true Translation of the Words but shall not follow Mr. Selden and after him the Author of the Letter in rendring Universae personae Regni all the dignified Clergy nor shall I allow of his Criticism of Persona or Personatus because for ought appears to me some Clergy-men who were not dignified might by License from the King purchase Lands held in Capite sicut Baroniam and thereupon think themselves exempt from this Law Having thus far cleared the way I come now to the true Translation of the Words themselves which are Archiepiscopi Episcopi Universae Personae Regni qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis Ministris Regis faciant omnes consuetudines regias Et sicut ceteri Barones debent interesse Judiciis Curie Regis quousque perveniatur in Judicio ad diminutionem Membrorum vel ad Mortem In English Let the Arch-bishops and Bishops and all Persons whatsoever of the Kingdom who hold of the King in Capite have their Possessions from the King in the Nature of a Barony and by reason thereof let them answer the King's Justices and Ministers and perform all Royal Customs And in like manner as the rest of the Barons 't is their Duty to be present at all Debates Process or Proceedings in the King's Court viz. the Parliament till what time so far forth or except when in the Tryal Debate or Process the loss of Life or Member may fall out to be the Upshot or Conclusion of the Case or the matter put in Issue In plain English in all cases where the Issue or Conclusion may fall out to be ended in loss of Life or Member they are by this Law to be absent Now I hope upon Issue joyn'd if the Impeachment be of a capital Crime the conclusion or upshot may happen to be found to concern Life or Member And that this is the true Sense and Construction of the Words I dare appeal to any Man who is so far Master of the Language as not to think fit to consound Moods Tenses and Numbers at Pleasure as this Author seems to do when he reads Curiae Regis the King's Courts which being in the singular Number resers only to the King 's great Court the Parliament the King's Courts in the plural Perveniatur in the Potential Mood when such a thing may be brought to pass with pervenitur in the Indicative Mood when such a thing is brought to pass that is as he erroneously translates till Sentence comes to be given And the Authorities before-cited evidently shew that the Writers of those Ages understood the Law in that sense To which Authorities I shall now add the Opinions of Mr. Selden Sir Edward Cook Mr. Hakewell and Fitz-Stephens a Writer of good esteem with our Author Mr. Selden Tit. Hon. part 2. ch 5. p. 704. explaining these Constitutions of Clarendon saith that the meaning of this in question is That the Bishops were to sit in Judgment with the rest of the Barons in all cases save in cases of Blood Now I hope every man will admit 't is a case of Blood before Sentence and that the Barons sit in Judgment when the Matter comes to be treated of before them Sir Edward Coke cap. de Asportatis Relig. cites the Parliament of 11 R. 2. where by their own acknowledgment they went out before any Debate their presence being prohibited by the Canon-Law Mr. Hakewel in his Mod. ten pag. 84. hath these words Therefore we see the Presence of the Bishops in Parliament in respect of their Baronies is Duousque perveniatur ad diminutionem c. for so even unto our times when Question is had of the Attainder of any Peer or other in Parliament the Arch-Bishops and Bishops depart the House and make their Proctors Here you see they are to depart when Question is had c. As to their making Proctors I shall speak more fully hereafter as also shall shew that the Canon Law both by these Constitutions and before them was part of the Consuetudines Regni yet this by the way appears plainly that the desire of the Cominons in 21 R. 2. that they might make Proctors must have reference to the beginning not the end of the Tryal when the naming them was useless But let me not do him wrong for pag. 33. he touches the Sense I have given but dislikes it viz. That the last Clause is not to be understood of the Sentence but of the kind and quality of the Cause that is they are to be present in the King's Courts till they come to a Cause where Life and Member are concerned This Sense certainly is near
comprehends them all so that our Question being concerning their Rights in Parliament if this be not meant of one it will neither advantage nor prejudice me but only shew how willing they were to break through all Rubs when they could in those times of their Power and the Blindness of the People The whole Sentence by our Author abridged to his purpose is as followeth Illud coelestem exasperat iram plerisque discrimen aeternae damnationis accumulat quod quidam principes sacerdotum seniores populi licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis seque ideo immunes à culpa reputant quod mortis truncationis Membrorum decernentes à pronunciatione duntaxat executione paenalis sententiae se absentent Sed quid hac simulatione perniciosius est Nunquid definire discutere licitum est quod pronunciare non licet In English This doth exasperate the Wrath of Heaven that certain of the Chief Priests or Bishops and Elders of the People notwithstanding they do not dictate or pronounce Judgments of Death yet they handle them in their Disputations and discussions of the same yet notwithstanding think themselves free from Guilt because though they Decree the Sentence of Death or loss of Members they only absent themselves at the pronunciation of the Penal Sentence But what is more pernicious than this Simulation Is it lawful to discuss and determine what is unlawful to pronounce And in the whole Treatise inveighs against the general neglect of the Bishops in performing their Duty not confining himself to any place and seems a prophetical description of the practise of the Inquisition afterward brought in by S. Dominick But if it were referred to the practise of some of the Bishops and Clergy of England probably it may be meant of such as were made Secular Judges or sate with the Earls in the County Court where they perhaps were present at the discussion though not at the Sentence which was left to be pronounced by the Secular Judge till after the time of Edw. 1. See 28 Edw. 1. c. 3. where it is ordained that the Justices appointed to take Assizes in every County where they do take as they be appointed Assizes shall remain together if they be Lay-men but if one of them be a Clerk then one of the most discreet Knights of the Shire being Associate to him that is a Lay-man by our Writ shall deliver the Goals of our Shires Here we see their Power though Justices to meddle in Capital Cases was prohibited nay some Records are in the Tower that when two have been commissioned as Judges for the same Circuit the Commission of the Clerk has been restrained to common Pleas that to the Lay-man unlimited see Iani Ang. facies nova pag. 209. 210. Shall we now believe that what was prohibited to Clerks in Edward the First his Time was permitted to them in the High Court of Parliament in subsequent times I have given my Reasons why I think Seniores Populi could not comprehend the Abbots Priors Lords and Commons yet if any man will contend this was a Parliament then must Seniores Populi comprehend amongst others the Commons and their Proceedings to be in a legislative way in which the Commons could only meddle and in which we deny not the Clergy to have their part so that this doubty Precedent will no way serve our Author's Turn His second Instance to make good his Assertion is taken from the Authority of Will. Fitz-Stephen a Monk of Canterbury in MSS. in Sir Rob. Cotton's Library and some other private hands in which he relates what happened to Arch-bishop Becket in the Contest between the King and him in the great Council at Northam ton called soon after Becket's obstinate Carriage at Clarendon in which Relation among others that Author hath these Words Secunda die considentibus Episcopis comitibus Barenibus Angliae omnibus Norpluribus Roffensis Episcopus quidam alius nondum venerat Archiep. lesae majestatis coronae regiae Arguitur quia se ut supra narratum est à rege citatus ro causa Johannis to wit Iohn the Marshal neque venerat neque idonee se excusasset Archiepiscopi depulsio nullum locum habuit Allegata tamen Johannis supradicti injuria jurisdictione hujus causae propria curiae suae integritate Rex exigit judicium Archiepiscopi nulla ratio est approbata Then after much debate who should do it Judgment was pronounced by the Bishop of Winchester which ended in the Confilcation of all his personal Estate The Sum of what Fitz-Stephen saith which is cap. 10. col 2. p. 21. in that Copy I have seen is this That when the Bishops and Barons of England and many of Nor. Normandy as Mr. Selden thinks were met together the Arch-bishop is there accused of Treason because having been cited by the King in the Cause of one Iohn he appeared not nor gave in a sufficient Excuse To let pass what is materially replyed by the Author of the Letter to this Authority I shall make some Observations of my own not yet taken Notice of First That this Assembly held at Northampon was not a Parliament but a great Counsel summoned by the King soon after Becket's stubborn carriage to his Prince at Clarendon to be advised by them how to humble that proud Man where it was lawful for him to use the Counfel of any of his Subjects of Normandy or others as he thought good who certainly in an English Parliament could not be admitted amongst the natural English Secondly we hear nothing of the rest of the Clergy nor the commons but of the Bishops Earls and Barons but that the Commons had allways right to appear in Parliament is learnedly made good by Mr. Petit in his Tractate of the ancient Rights of the Commons In the next place the relation of Fitz-Stephens is not only different from the relation of other Historians but in it self is subject to many Exceptions For first it is plain he was not accused of High Treason in the case of John the Marshal as he saith which appears by the Judgment of that Council which upon the whole matter reac'hd only a Confiscation of his personal Estate which shews clearly the Accusation was not in that Case for Treason because they here punished him with a lesser Punishment than was due to Treason now 't was not in their Power to change the nature of the Crime but must have either found him guilty of Treason or have acquitted him But the Truth is there was a second Accusation by the King about the same time and in the same Place concerning Accounts to the King of Receits during the Vacancy of the Sees of some Bishopricks when he was Chancellor to which he refused to give other Answer saying He was not cited in that Cause and over and above that he was fully
discharged of all Accounts whatsoever when he was made Arch-bishop but the Heats and Animosities occasioned hereupon made him appeal to Rome which being so immediately after and contrary to his Oath at Clarendon might be called by the Name of Treason in those Days yet it appears plainly that an Appeal to Rome was not in those times look'd upon as a Capital Crime To this Purpose see Spelman's Councils Tom. 2. fol. 119. Concilium Pan-Britan apud Pipewell Congregatis illic Archiepiscopis Britanniae quibusdam Norman Galliae Hiberniae Episcopis Abat c. infra nominat praesente etiam ipso Ricardo Rege An. Dom. 1189. 1 Ric. 1. The King having given the Arch-bishoprick of York Gaufrido fratri suo quondam Lincolniae electo The Arch. of Canterb. Calumniatus est consecrationem illius prohibuit ei ne ipse ab alio quam ab eo consecrationem seu sacerdotalem ordinem susciperet Super hoc appellant ad Dom. Papam coram Rege universis Episcopis Clero Populo chartam Willielmi Regis Bastardi in qua continebatur controversia quae olim vertebatur inter Cantuariensem Eboracensem ecclesias protulit Here you see an Appeal to Rome publickly made and the Appellant not questioned for Treason or any other Misdemeanour and this done in 1 Rich. 1. who was the Son of Hen. 2. But admit this Appeal or rather Perjury in that time had been a Capital Crime his Appeal here hindred the pronouncing any Judgment So that Fitz-Stephen is mistaken in the first Point for he was neither accused nor condemned of Treason in the cause of John the Marshal Secondly he tells you he was accused of Treason because being cited he did neither appear nor competently excuse himself which must be understood to be meant by some other Proctor or Advocate for if he did not appear 't is impossible he should excuse himself any other way for it is clear he was at Northampton Ipsa die venimus Northamptoniam saith Fitz-Stephen cap. 10. co 1. That the Court sate not till the second day after their coming and he made an Appearance on the third is confessed by the same Author who a little before tells you he sent quatuor Milites to give his Answer and the King's Exception was that he did not answer in his proper Person which certainly by Law he was not obliged to do so that here was but a Contempt of one day however they were resolved to proceed for the Arch-bishops Depulsio or answer for himself took not place for so I take the meaning of depulsio to be Archiepiscopi ratio nulla est habita Whether you take ratio for an Account which probably he might give as to 300 l. prerended to be due to John the Marshal or in any other Sense 't was not allowed Lastly you have these words Archiepiscopus autem quia sententiae vel recordationi Curia Regis non licet contradicere sustinuit consilio Episcoporum ad Acta ad mitigandum honorandum Regem solenni manuum ipsius missione quasi concessionis Judicii uti moris est ibi The Archbishop by the Counsel of the other Bishops because he might not contradict the Sentence and memorial of the Kings court submitted to their Acts to the end that by his Submission he might Honour the King and mitigate his Anger and yielded to the Judgment and put in for his Sureties all the Bishops except London of which notice was taken Can any thing now be clearer than this that he both appeared submitted to the Judgment and put in Sureties to perform it and that here could not be any formal accusation of Treason whatsoever the Counsellors might dispute among themselvs So that Fitz-Stephen's Relation as to this matter is not only contrary to the Judgment of the Court which condemned him not for Treason and contradictory to himself who making the Relation as an Historian of what was done in that case where himself was present must be supposed to write what in truth was the matter of Fact and not what was the Opinion or Discourse of others except he had told us so But this proud Prelate being as the King thought not sufficiently humbled by the Judgment aforesaid nor by many other Affronts put upon him by the King's Officers a new Crime as I touched before is found out against him for Accounts to the value of 3000 Marks to which he is required to answer and to which saith our Questionist he gave a dilatory Answer so that the King requires him to stand to the Judgment of the Court But the Answer he gave was this That the King knew well enough that before his Election to the See of Canterbury he was discharged and how the Prince the Barons of the Exchequer and Sir Robert Lucy Chief Justice gave him a Discharge for all Accounts and secular Receipts from the King and so free and clear was chosen to the See and would plead the same no more Was this now a dilatory Answer and not a clear Discharge What doth any Accountant in the Exchequer do more Neither could the Court expect being cited upon another Business he should bring his Discharge in his Pocket But what if this Accusation had been true Was this Treason If every Cheater had been a Traytor the King would have had enow to hang But this Storm went higher for Becket finding himself over-power'd by the King's Party and menacing Words from them comes in his Archiepiscopal Robes with a Cross in his hand and appeals to Rome for which he was blamed and sharply rebuked by his old Enemy the Arch-bishop of York and as Hoveden saith by London and others But by his Appeal he avoided all Sentences could be pronounced against him yet left his Enemies and the King much incensed against him Gervase of Canterbury tells you col 1392. that the King sitting upon his Throne it seems in a hurry for the Words are euntes discernite said going forth Consider what this perjured and contumacious Traytor ought to suffer Itur judicatur They went out and gave their Opinion for this could be no legal Judgment because first it was out of the place where the Council sate and his Appeal prevented all farther Proceedings as it was then held This is the Sum of the Story taken out of Daniel's History upon the Year 1164. as he saith particularly delivered according to the Writers of those Times who those were he tells you in his Preface Hoveden Giraldus Cambrensis Mat. Paris Mat. Westm. Rishanger and others By this Relation you may see the Credit of this grave MSS. Author who hath knit together so many Mistakes and different from the Relation of others of or near the same time But the Bishop is now gone though before his going the King expostulates the matter with him to whom he answered That he was summoned in the Cause of John the Marshal and would answer to no other
having then made his Appeal Neither to speak my Mind freely can I see how he could be accused of Treason for Who was the Accuser The King could not because by reason of the dignity of his Person no Averment could be made against him neither could any man be tryed but by his Peers Now we hear of no Articles exhibited no Jury summoned nor no legal Proceedings in case it had been a Parliament for though Mag. Charta was not so perfect as in Henry the Third's Time yet all Historians agree 't was granted in Henry the First 's Time of the chief Points whereof Stephen Langton Arch-bishop of Canterbury brought a Copy into the Parliament in King John's Time a worthy Prelate he was though an Italian though it were the Law of the Land before and though the Council of the King might in some Misdemeanours proceed arbitrarily yet in Treason they could not as is well observed by Mr. Selden Priv. of Bar. ca. 4. pa. 10. but they were in those Cases to be tryed by their Equals Co. 2. Inst. pag. 50. tells you 't was as ancient as William the First gives you an Example of Roger Earl of Hereford so tryed in his Time But we have not yet done with Fitz-Stephens for our Author tells you that the King upon the proud Answer of Becket charges the Bishops that together with the Barons by virtue of their Allegiance they would give Judgment upon the Arch-bishop They excuse themselves The King presseth them Fitz-Steph Words are Rex responso Archiep accepto instat Episcopis praecipiens obtestans per homagium fidelitatem sibi debitam juratam ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam c. This he translates That the Bishops together with the Barons would give Judgment upon the Arch-bishop This appears to be after his Appeal when the giving of Judgment or medling farther in the Business was refused beside the undue Translation of the Words which signifie no more but the desire of the King that they would tell him their Opinion touching the Arch-bishop I wish he would give me any good Authority where dictare Regi sententiam for sibi here is the same can signifie giving Judgment upon a Criminal as he translates them I know very well that dictare judicium may be taken to deliver any Sentence leisurely Linw. lib. 3. Ne Cler. vel Mon. where it is all one with dicere or suggerere sententiam Beside no such Sense can be affixed to these Words for the King's Question refers to them all in general but certainly the King did not mean they should all pronounce Sentence but only privately tell him their Thoughts yet from hence would our Author infer that this was a Parliament and that the Bishops had Power to give Judgment in Criminal Cases when he hath proved neither because in Truth this was only an Attempt of the King 's to draw them to his Party having then Intentions to send to Rome about this matter The Words of the Bishop of Chichester which he spake to Becket after his Appeal to Rome will do him as little Service for they import no more than that the Interdict laid upon him and the rest from doing any thing against him during his Absence hindred them from being present at such Proceedings against him as the King required from them 'T is not to be doubted but the King would have pressed them to deliver their Opinions whither his Appeal were Treason or not what their Judgment would have been no man knows If it had been a Parliament then summons must have been sent out for his Appearance and Proceedings by Bill of Attainder in a Legislative way not arbitrary in Cases Capital Seld. pri Bar. cap. 4. pag. 10. as before noted He closes this Head of Discourse with a pretended Confutation of the Author of the Tractate of Peerage a Book by some snarl'd at but by none answered but let us examine what they both say The Author of the Discourse of Peerage tells you pag. 14. and backs what he saith by the Authority of Justice Doddridge Sir Edward Cook and Mr. Selden that these were only certain Recapitulations of the King's Prerogative and the Peoples Right then sought to be infringed by the Pope and Clergy That these Recapitulations were avite consuetudines is confessed and that that Canon concerning Blood is as ancient in England as the Conquest our Author acknowledgeth that Gervasius Dorobernensis reckons this Article among the Laws then established from all which the Discourser of Peerage might very well argue That which was a Custom in Henry the First 's Time taken notice and allowed in Henry the Second's Time and of the beginning whereof there is no Memorial extant nor account to be given ought reasonably to be esteemed as part of the ancient Custom which is the common Law of the Kingdom All that the grand Questionist thinks fit to reply to this is that it is little to his Purpose because this Clause in Question is not a Limitation of their Power but a Priviledge and Indulgence for their Absence That this Fancy is erroneous I have before shewed from the natural Sense of that Clause as also that long before these Constitutions they were both by their own Canon Law and Custom of the Nation prohibited from being present in Cases and Consultations of Blood and that themselves admitted not only the Liberty but the Obligation by their constant Obedience given to that Law and Custom in absenting themselves in those Cases as the Author of the Letter hath asserted and shall by me be farther cleared in my Answer to his Precedents Now I do not think that this Author believeth that these Constitutions gave them a greater Liberty than they had before but if it found them bound that Statute left them so and was as all affirmative Statutes are though not introductory of a new Law yet are they corroborative of the old and in their Oath they swear Obedience to this Article as well as to the rest to wit that they would according to their Duty be present in all Proceedings in Parliament with the rest of the Barons except in Cases of Blood in which they tell us afterwards that it was not lawful for them to be present at any hand so that upon their Allowance there was more than a Liberty for there was a Law against them Beside could this Sense be allowed it would no way serve to make good his main Hypothesis that they might be present till the definitive Sentence came to be given for if the Law were obligatory as to any part why not to every part of it Our Aurhor is as little fortunate in his attempt to evade the Authority of Roger Hoveden pag. 40. who saith That 't was agreed in the Synod at Westminster that no Clergy-man should agitare Iudicium sanguints He tels you this was part of a Canon agreed at Toledo which
Ricard Archbishop of Canterbury thought fit to have received here and I think would inferr that here was no more done then a Proposal of this to be received not that itw as so But if we will believe Gervas Dorbernensis in 22 H. 2 fo 1429. An. 1175. he will tel you they went much farther His Words are Hoc concilio ad emendationem ecclesiae Anglicanae assensu Domini Regis Primorum omnium Regni haec promulgata sunt capitula Among which one is His qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut perse membrorum truncationes faciant aut inferendas judicent Here is not only a Proposition of the Arch-bishop but an Assent and Promulgation of the same by the King and chief of the Kingdom And the true Sense of that Canon which being so confirm'd had the force of a Law is That Clergy-men should not agitare or medle in any Tryal of Blood which certainly extends to Preliminaries but are prohibited to make Amputations themselves or give their Opinion or Judgment that such Amputations ought to be made by others Their presence at such Trials was unlawfull Non licet and their Acting prohibited So at last I have done with this clause and have shewd that it is not indulgent but restrictive that it was a custom in H. 1. time sworn to at Clarendon published at Westminster 12 years after and by all this made part of the Law of the Nation have answered all his Subterfuges and Evasions have shewed the Interpretation I have given was always received I expect now so much Ingenuity in this Author that he will either yield to my Sense or give another agreeable to the Rules of Grammar and the proper Signification of the Words and not take the Liberty to explain them at his Pleasure and confound Voices Moods and Numbers Insomuch that this Statute will remain Testimonium irrefragabile still and I am sure if he observes his due bounds he must give an Interpretation equipollent to to what I have given So hard it is for the greatest Wits to maintain an ill Cause I come now to the Consideration of the Protestation made in the Parliament held in 11. R. 2. which our Author saith much cleareth the whole Business especially the preface therof for the omission of which he blames the Author of the Letter I shall give it you in English which our Author hath not thought fit to do and by that means deprived many of his Readers of means to make a true Judgment of it In the Name of God Amen For as much as by the Law and Custom of the Kingdom of England it belongs to the Arch-bishop of Canterbury for the time being as also to the rest of his Suffragans Fellow-Brethren and fellow-Fellow-Bishops with the Abbots Priors and other Prelats whatever who hold of the King by Barony as Peers of the foresaid Kingdom to be personally present in the Parliaments of the King whatsoever and there with the rest of the Peers and others that have right to be there present concerning the arduous Affairs of the Nation and concerning other things there usualy to be treated of to Consult Treat Ordain Appoint and Define and other things to do which there in time of Parliament are prepared or fitted to be done In all and singular of which We William Arch-bishop of Canterbury Primate of England and Legate Apostolical for our selves our Suffragans our Felow-Bishops and Fellow-Brethren as also for the Abbots Priors and all the foresaid Prelates do protest and every one of them doth protest who either by himself or his Proctor shall be here Present at this time publickly and expresly that we intend and every one of us will in this present Parliament and others as Peers of the fore-said Kingdom after our accustomed manner be present to Consult Treat Ordain and Define and all other things ro exercise together with the rest that have right to be present in the same The Condition State and Order of us and every one of us being still saved But for as much as in this present Parliament some matters are to be treated of in which it is not lawful for us or any of them according to the Decrees of the Holy Church and the Canons thereof to be at any hand personally present For which Reason we for our selves and for every of them do protest and every one of them here doth also protest That we intend not nor will because according to the Law we cannot nor ought not be present in this present Parliament whilst such matters are or shall be treated of but that we and every one of them will upon that occasion all together absent our selves our right of Peerage and of theirs as to our and their being present in the said Parliament and as to our and every of their exercising and doing all and singular things our and their order in all things allways preserved And we farther protest and every one of them protesteth that by reason of this our absence we do not intend neither doth any one of them intend or will that the Trials or Proceedings had or to be had in this present Parliament upon those aforesaid matters in which we cannot nor ought not as is premised be present as much as in us lyes or any of them lyes shall in times to come be any way impugned weakened or broken He tells you that this Protestation saving the legall Formalities consists of three parts First a declaration of their undoubted Right as Peers of the Realm by virtue of their Baronies to sit and Vote in all Debates in Parliament Where by the way the words are de Regni negotiis not omnibus of the affairs of the Kingdom not all of them and aliquibus may as well be understood as omnibus and this appears soon after upon their own shewing for they tell you they intend to be present in this and all other Parliaments and presently after tell you it is not lawful for them to be present in this Parliament while such matters were handled to intend to be present and then tell you that 't is not lawful to be present in this Parliament shews that their Power was limited and not universal however upon this Protestation they went out at the Begining and made no Proctor for they tell you they ought not to be personally present at any hand where such Affairs are or would be treated of which certainly was before the definitive sentence so that the Canon required their absence at Preliminaries according to the sense of all times till these new expounders came in place I will not here dispute whether this Protestation be an act of Parliament with Submission to better Judgments I think it hard that what was intended as a Protestation should by Construction be advanced to an Act no more than his present Majesties Concessions upon the desire of
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
Reverence for the then House of Commons should have so little Respect to the Opinion of both Houses now for the Commons unanimously voted That the Bishops ought not to be present at any Debate concerning the Earl of Danby or the Lords in the Tower by them impeached of Treason Journ of Parl. pag. 258. and 267. The Lords about the same time voted That the Bishops were to go out when their Lordships proceeded to examine Guilty or Not Guilty This Author with great Confidence and little Respect affirms they have right to stay till the definitive Sentence is to be given But let me now admit that it was reasonable in the House of Commons to move that they might make a Proctor and that the Bishops had also Right to nominate one in Capital Cases yet certainly when they all absented themselves together 't was in their Choice whether they would make any or no and consequently their omitting it as in 11 R. 2. could be no cause to reverse a Judgment as the Commons alledged The Reason is as I touched before because they take notice of the matter in Question by hearing the Accusation read which is always done before they go away which is enough to make any Act good and to be said to pass by their Consent because they voluntarily absent themselves though with Allowance of the Lords where their Presence is not lawful Vid. Co. 2. Inst. de Asport Relig. pag. 586. So that the Reason of the House of Commons was every way weak and unsound In the next place let me examine what the Office of a Proctor is being made It is plain by the Imperial Law that a Proctor is in the Nature of an Attorney to appear and make Answer in the name of his Client to such things as the Court shall think fit to demand but never by that or any other had he Power to over-rule or contradict what was the sense of the Court. I have seen some ancient Precedents of Persons under the degree of Noble men made Proctors by the Bishops for which consult Mr. Selden's Privil of the Baron pag. 5. Hon. of the Lords Spir. pag. 27. Els. Mod. pag. 16. But in all Cases I have met with the ancient form runs thus At the Parliament at Carlisle under Edward the First the Words are Ad consentiendum quod tunc ibidem per dictos Prelatos Proceres contigerit ordinari Another in Edward the First 's time in a Parliament at Westm. runs thus Ad comparendum audiendum pro nobis in hoc Parliamento tractanda consentienda So that their Power was but to appear and hear for them what by others were to be treated and consented to Accordingly Mr. Selden saith that in Attainders upon Appeal they made their Proctors for assenting in Parliament I hear nothing of dissenting Seld. Privil Bar. pag. 5. Neither is it reasonable to believe the Lords would suffer any Commoner to sit and vote among them as Judges neither do we read of any place where such a Proctor was to sit having no right of his own to be there If you will say he was to sit upon the Bishops Bench and there to give his Vote you give the Bishops Power by their simple deed to give place and vote in Parliament which is as much as the King can do by his Letters Patents and by which the Patentee is enobled Neither is it just to think they could any way transfer a Right for others to judge for them where themselves were prohibited to be present or judge It appears that in the Parliament in 49th of Henry the Third there were a hundred and twenty Bishops Abbots Priors and Deans 't is not like there were many fewer in 21 Richard the Second who was not long after him Can any one now think the Lords would suffer Thomas Percy to dispose of a hundred and twenty Votes It had been much safer to have let the Clergy to have been personally present than to unite in one man a power to over-ballance them all I think it probable for the Reasons before given that their Proctor either sate among the mean Officers or that in those times the Lords and Commons sate together and that this Percy was one of those that served for his Country But against this is urged that in Edward the Third's Time there were distinct Houses though before that Time they might sit together Sir Ed. Coke Prin and others are of Opinion they sate together far in Edward the Third's Time why may not that be extended to his Son Richard the Second the exact time when they divided being not so exactly agreed upon I have before shewed out of Mr. Petit Rot. Parl. 2 Henry the Fifth pars 2. n. 10. that the Commonalty have ever been accounted a part of the Parliament I have also shewed out of Cambden Selden and others that Baronagium comprehended both Lords and Commons and in all Histories of those Times you shall frequently meet with Concilium Baronum Baronagium and the like Mr. Selden tells you Tit. Hon. part 2. chap. 5. no. 16. pag. 689. that the Burgesses of some good Towns as well as the Cinque-Ports which still retain the same name were called Barons In the seventeenth of King John dors claus memb 7. Baronib Germuthae Gipswici Norwici c. Mat. Paris Anno 1253. pag. 863. speaking of the Citizens of London hath these Words being englished Whom for the Dignity of the City and the ancient Liberties of the same we usually call Barons Of this Identity of Names we can give no better account than because they were usually joyned with the other Barons in great Councils of which there were also two sorts Gervasius Tilburiensis part 2. cap. 13. speaks of Barones majores and mineres Fitz-Steph cap. 11. mentions secunde dignitatis Barones In the Mag. Char. of King Iohn Mat. Par. Anno 1215. mentions a Summons to a Common Counsel of the greater Barons by the King 's Writ and of other Tenants in Cap. which were Barones minores by the Sheriff but all of them comprehended under the general Name of Barones or Baronagium under which general Name all meeting who had any Right to come either as Barons or Free-holders we have no reason to believe they did not all sit together in the same Counsel whereunto they were summoned under the same Name The old Modus put out in English by Hakewell with his seeming Approbation of the Book saith in his Chapter concerning Cases and Judgments that are heard that every degree might go by it self and consider of it by which it appears they then sate together 6 Edw. 3. Elsing p. 96. and 99. saith in two Parliaments they went apart and in one gave Subsidies apart The Case is in 50 Edward 3. where the cause of Summons being shew'd the Commons were willed to withdraw to their ancient place and consult among themselves proves no more than that
they had a place to go to when 't was fit they should consult apart not that they always did so no more than it doth that the Prelates sate not among the Lords because they sometimes went apart and had a place to go to as well as the Commons We know that 7 Iacobi when Prince Henry was created Prince of Wales they all sate together in the Court of Requests and may do again when the King pleaseth I have now done with this rather curious than necessary Question which I had not touched upon had not Percy 's place in Parliament given me occasion a little to search into it Yet I think it not amiss here to insert the Prayer of the Commons and the form of the Proxy made by the Clergy to Sir Thomas Percy in 21 Rich. 2. memb 6. no. 9. as it is at large upon the Record that the Reader may be able to give a rational Judgment both what his Power was and how the Clergy were represented by him The Commons first pray the King that whereas divers Judgments and Ordinances before time made in the time of his Progenitors had been recalled and made null because the Estate of the Clergy were not present Et pour ceo prierent au Roy que pour surety de sa person salvation de son royaum les Prelates le Elergy ferroient un Procurateur avet povoir sufficient pour consentir en leur nome a toutes choses ordonances a justifier en cest present Parlament que sur ceo chacun seigneur spirituel diront pleinment son avis Sur quoy le dicts seigneurs spirituels commetterent leur plein povoir generalment a un lay personne nomerent en especial Thomas Percy Chevalier sur ceo baillerent au Roy une schedule contenant leur povoir la quelle nostre seigneur le roy receust commanda le dit Mardy estre entre de record en rolle de Parlement de quelle cedule la form sensuit Nos Thomas Cantuariensis Robertus Ebor. Archiepiscopi ac praelati Clerici utriusque provinciae Cantuar. Eborac jure ecclesiarum earundem habentes jus inter essendi in singulis Parlamentis Domini nostri Regis regni Angl. pro tempore celebrandis nec non tractandi expediendi in eisdem quantum ad singula in instanti Parlamento pro statu honore Domini nostri Regis nec non Regaliae suae ac quiete pace tranquillitate regni judicialiter justificand Venerabili viro Domino Thomae de Percy Mil. nostram plenarie committimus potestatem ita ut singula per ipsum facta in praemissis perpetuis temporibus habeantur It is observable in this Prayer the Commons recite Ordinances as well as Judgments to have been made null by reason of the Bishops Absence and comprehended not Judgments alone Now of what Latitude Ordinances were taken whether temporary or otherwise look'd upon as Laws is not very certain Secondly they desire such a Proctor as might have Power to confent to such things as should be done Thirdly they naming a Lay-man who had no Right of his own to sit there and giving the King a Schedule of their Procuration was enough to make their Right be preserved to them without any explicite Consent by their Proctor or perhaps his being so much as present at any Debate But I now proceed to observe how ready our Author is to pick what Advantage he can against the Author of the Discourse of Peerage from the words by him quoted out of the Manuscript History written by the Abbot of Molros in Scotland where the King of England sent Bishop Fox as I remember to treat with the King of Scotland Iames the Fourth then there touching a Match between the Children of those two Princes 'T is a Book to be seen in some few hands and writes of the Parliament in 21 R. 2. The Author of the Discourse pag. 20. tells you that that Manuscript Author blames the Prelates much for the Opinion they gave generally about the Revocation of Pardons but in this as in many other Authorities that make against him our Author curtails the Words and cites no more than makes for his turn The Words at large are these Dederunt ergo locum judicio sanguinis in hoc facto Ita quod dubitabatur à pluribus si non incurrerent in poenam irregularitatis pro negotio memorato unde contigit quod propter istud minus peccatum inciderent in aliud majus peccatum consequentur ut laicam personam constituerent procuratorem pro iisdem qui illorum vice consentirent ad judicium sanguinis dandum in isto Parliamento si necesse foret occasio emersisset The Prelates by this act of theirs gave Allowance or Countenance to Tryals of Blood insomuch that it was doubted by many whether they did not fall under the Penalty of Irregularity by reason of the foresaid business from whence it happened that instead of that lesser Offence they fell into a greater by Consequence in that they made a Lay-man their Proctor who in their Room might consent to a Judgment of Blood to be given in that Parliament if it were needful or occasion had happened I have translated dare locum fudicio sanguinis to give way or Allowance to a Judgment of Blood because it appears by the subsequent Words he meant them so The use the Author of the Discourse of Peerage makes of these Words is to shew that the Canons were not the only Cause that hindred their presence in II Rich. 2. For then when they had no Encouragement from the King or Lords then they ought not at any hand to be present in such Cases but here in 21. when they had any Allowance or Connivence as to the Laws against them then the Canons were neglected altogether His Inference seems to me rational and good Oh! but saith the Grand Questionist they were present in voting the Pardon to the Earl of Arundel revocable Under his Favour I think he is mistaken for the Book warrants no such matter only tells you that they gave a general Vote that Pardon 's granted in Parliament were revocable by the King by consequence whereof some of those who were pardoned in 11. were executed in 21. which Votes I hope might pass though the Parties concerned were not present and this meaning the book seems to enforce For first that Author saith it was a doubt amongst many whether that act did not make them incur the Penalty of Irregularity which would have been none had they personally by their Votes revoked the Pardon granted to the Earl of Arundel Secondly he saith by making a Proctor in that Case of Blood they committed a greater Fault than the former but certainly the making a Lay Proctor was not a greater Fault than actual Allowance and personal voting in Blood which that Author charges them with Lastly they made a
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
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
when they might have been others that they were present when by his own Rules they should have been excluded either therefore the general words where they are not mentioned do not enforce their Absence or that they oughtto have been excluded at some other Trials where the Author of the Letter admits they were or might have been present The chief Case he instanceth in is that of Michael de la Pool Chancellour of England who was accused of many Misdemeanours by the House of Commons and as I think he would infer such as Thorp Chief Justice was found guilty of being Capital where the Author of the Letter saith the Bishops were not present yet allows them to have been present in the Case of this Chancellour a parallel Case as he saith with that of Thorp either therefore saith our Author they might have been present in the Case of Thorp or they should have been absent in Trial of Pool This is his Argument as near as I can gather out of his Words put together something obscurely I need give no other Answer to this than to lay before you the words of the Record This Accusation was exhibited by the Commons in 10 R. 2. against Michael de la Pool Lord Chancellour in full Parliament before the King Bishops and Lords and six Articles were objected by them against him The first was That he purchased Lands of the King of great value whilst he was Chancellour the other five as the Record saith were only Quarrels and of little concern To the first and most considerable the Chancellour put in a fair Answer the Commons reply and urge things to the utmost and amongst other things say That whereas by the Popes Provisions a Person was recommended to the Priory of St. Anthonies he the said Chancellour would not suffer him to be admitted till the Grantee had contracted to pay to the Chancellor and his Son 100 l. yearly and then parallel this with Thorp's Case and would have had the Chancellor in the same fault with Thorp for Bribery as a Judg and consequently incur the same Judgment The Chancellor replies and shews great difference between the Cases Upon the whole matter Judgment was given against him pursuant to the Accusation for Misdemeanours only in which the Bishops were and might be present and the parallelling it with Thorp's Case was only in the Management of the Cause by the Commons and no part of the Accusation Neither is it reasonable to believe that which our Author asserts in the same Page that the Prelates were free Agents and might withdraw at some times and be present at others as they saw cause For beside that this is contrary to the express Law of Clarendon which expresly declares that 't is their duty to be present in all Proceedings in Curia Regis which in that place must be understood of the Parliament because they were to be present with the other Lords tho I know that Curia Regis is sometimes taken in a more laxe Sense for all the Courts in Westminster are the King's Courts and unto which they were to give Obedience and Attendance in Cases not prohibited I say over and above this Act at Clarendon it seems to me very unreasonable to suppose that such a Body of Men had liberty to give their Attendance when they pleased without leave of the House or cause shewed why 't was fit they should be absent or that the Author of the Letter meant more when he saith they might have been present than that they were not prohibited by the Law of Clarendon which only had Relation to Matters of Blood But these Men had other Canons to go by when they thought fit as well as those of Toledo and 't is probable enough that the rest of the Noble-Men finding them most constant Factors for the Pope were willing enough to let them be absent upon any colourable Pretence when they desired it Is not one clear Precedent against them in point of greater weight than many dubious and equivocal ones which cannot without great Art be wire-drawn to speak to their advantage Let him consult the Discourse of Peerage pag. 17. The Case of the Earl of Northumberland 7 Hen. 4. Rot. processus cor Dom. Rege in Parl. in 5 Hen. 4. This Noble-Man came into Parliament and confessed before the King and Lords that he had done against his Allegiance in gathering Power and giving Liveries this Fact by the Lords was adjudged no Treason for which he gives Thanks to the Lords his Judges and a day after the Commons do the like where the Prelates are named as our Author affirms and to which I shall speak by and by But in 7 Hen. 4 the same Earl was in actual Rebellion in the North and his Forces dispersed by the Earl of Westmarland but he and the Lord Bardolf fled into Scotland the rest were most of them taken Prisoners This Case came into Parliament where the King commands the Lords Temporal Peers of the Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and Lord Bardolf Nothing can be plainer than that the King look'd upon the Lords Temporal as those Peers who were proper to give Judgment touching their Fellow Peers who had fled from Trial in a case of Blood The Record goes on the said Lords advised thereupon and gave Counsel to the King Then the said Lords Peers of the Realm by assent of the King order summoning the said Lords to appear at a day given or to stand convicted by Award of the Peers in Parliament The King farther demanded the Opinion of the Lords Temporal touching the Arch-bishop of York who was in the same Treason The Lords Temporal by the Assent of the King and by their Authority declared and awarded the said Earl and Lord to stand convict of Treason for not appearing upon Summons 'T is very clear that this whole Business was transacted by the Lords Temporal without the Bishops and with the Concurrence of the King 'T is not to be believed that the Bishops would have sate quiet had they thought themselves wronged in these Proceedings See the Discourse of Peerage pag. 17 18. I think it hardly possible to find a more clear Record in the Point than this is First here were two Noble Lords defeated in actual Rebellion and fled from Justice into Scotland The King upon this would not so much as consult with his Prelates knowing them by Law no proper Counsellours against Peers in matters of Blood applies himself to his Lords Temporal they order Proclamations by order of the King enjoyning the said Lords to appear at a day certain or to stand convict they not appearing are by Award of the Lords Temporal convicted of Treason and a Year after one is slain the other mortally wounded at Bramham-moor in York-shire Can any thing be more agreable to the Practice at this day against Men that fly from Justice and
are convicted for non-appearance He must have a new way of reasoning who considering that in 4 E. 3. the Earls and Barons are declared those Peers to whom such Judgments belong that in 5 E. 3. the Prelates declared that in a Case where Blood might be it belonged not to them to be present that in 7 R. 2. the Temporal Lords were only concerned in a Case where the Accusation was Treason with many other Cases that in 1 Hen. 4. the Lords are declared Judges in such matters that in 2 Hen. 4. in a like Trial or Judgment the Temporal Lords are all named who were the Judges that now in 7 Hen. 4. the Temporal Lords are again declared Judges and after all this that the Prelates should be deemed proper Judges in Cases of Blood upon bare Surmises and no direct Proof seems to me to savour of a Man wedded to an Opinion which he resolves to maintain when at last tho Precedents confirm what the Law is 't is that must determine the Controversy This I say in Relation to what Mr. Hunt objects This Precedent may in part serve to give answer to those Arguments drawn from the Identity of Names to the Identity of Right The Bishops saith the Grand Questionist are sometimes comprehended under the name of Grands Seigneurs and Peers therefore their Right is equal to all others who enjoy those Names How he attempts to make this good we shall see anon But first let him consider how weak a way of arguing this is we know nothing is more equivocal than Names Many are called Lords who had once that Name as Embassadors Chief Justice c. or such whose Fathers are Dukes so Earls Eldest Sons yet are indeed but Commoners so Baronagium comprehends all the whole Parliament Barons there are of the Cinque-Ports of the Exchequer and of some chief Towns as I have noted before from Mr. Selden so we are not to judg the Right from the Appellation but govern the Appellation by the Right The first Precedent he urges is pag. 96. where in 4 E. 3. an Act passed for Trial by Peers Cotton Numb 6. 'T is agreed unto by the King and all the Grands in full Parliament that tho the Lords had tried some who were not their Peers upon Accusation by the King in a summary way against Law it should be so no more If the Bishops were here comprehended under the Name of Grands so were the Commons too if it should be an Act of Parliament will he hence infer that the Commons have an equal Right with the Lords because they all are called Grands Who were esteemed Grands or Magnates see Matth. Paris in Anno Dom. 1100. Inhibitio ne qui Magnates viz. Comes Baro Miles seu aliqua alia notabilis Persona c. Here you see under Magnates are taken Earls Barons Knights or any other Person of Rank So Milites Comitatuum and Barones quinque portuum are called Magnates inter com brevia de term sctae trin Sct. Mich. An. 34. E. 1. penes rentem Dom. thesaurarij in Scaccario he that desires more let him consult Mr. Petyt's Learned Discourse of the ancient Rights of the Commons pag. 93 94. and in sundry other places I think therefore I may safely conclude this Point That where Grands are named alone there not only the Bishops but the Earls Barons Judges and Commons might be comprehended but where the Grands are mentioned after the Earls and Barons there the Bishops who ought first to be named shall never be taken in secondarily and by Implication Neither is it any thing to our Question whether it were for their Honour to be absent in some Cases as he intimates pag. 100. in the Case of Roger Mortimer but what the matter of Fact was Pag. 112. He would comprehend the Prelates among the Peers because in 4 E. 3. N. 3. The words are All the Peers Counts and Barons assembled in Parliament upon strict Examination do assent and agree that John Mautrevers is guilty of the Death of Edmund Earl of Kent Here he would infer that the Prelates were present at the Examination of that Capital Crime under the name of Peers because at that time there were no Dukes nor others of Superiour Degree to Earls but he doth not consider that the word Peers in this place doth only denote who those Peers then mentioned were Peers viz. Earls and Barons not Bishops as before Magnates viz. Comes Baro Miles c. As when we say a Noble-Man is to be tried by his Peers we understand only those that are truly so and not others that sometimes may be called so this is much cleared by the Record 2 Hen. 4. N. 30. The Lords Temporal by the Assent of the King adjudged Thomas Holland late Earl of Kent Iohn Holland late Earl of Huntington and others Traitors this Judgment was after the Parties were dead and but the second Successor after Edward the third Why did not now the Prelates come in and claim their Right Certainly they would have done it but that they knew the Law and Practice was against them what else is material in this Chapter hath been taken notice of by the Author of the Letter and others so that it needs no further Examination and I may safely conclude that where the Prelates are not named they are not understood Now that in this case the Bishops could not be meant by the word Peers is very plain from the Record it self For the fore-named Iohn Mautrevers being not in hold the said Peers do pray our Lord the King that search should be made for him throughout the Realm and a Reward promised Now if the Bishops were meant by the word Peers alone for Earls and Barons are named witness the Peers Earls and Barons then by Parity of Reason the said Peers should be meant only of the Bishops as if they alone had made the desire for the Apprehension of the said Matrevers and the Earls and Barons had been unconcerned which is absurd See 4 E. 3. Mem. 3. N. 3. Seld. Baron p. 13. Our Author concludes his third Chapter with the Case of Henry Hotspur the eldest Son of the Earl of Northumberland who for having levied War with others against the King was declared a Traitor being before slain in Battel by the King and Lords in full Parliament this was upon Friday the 18th of February upon the same Friday upon that Case and the Petition of the Earl Father to Henry and Examination of his Cause by the Lords as Peers of Parliament to whom such Judgment belonged for the King would then have referred the whole matter to the Judges he was declared innocent of Treason or Felony but only finable for Trespass at the King's Pleasure for which the said Earl gave Thanks to the King and Lords for their rightful Judgment and also at the same time purged upon his Oath the Arch-bishop of Canterbury the Duke of York
must now meet under such Qualifications and no other as were by him allowed them which by all Men is agreed to be as Tenants to the King in Capite for their Possessions which they held in the Nature and by the Service of Baronies This being so I see not what use he can make of the Distinction made in Parliament between the several Estates of the Clergy and Laity The Question is not Whether the Clergy and Laity are distinct Estates which no Man ever denied but whether the Bishops distinct from the other Clergy in Convocation be an entire third Estate in the Lord's House that they are so no Man hath yet proved His Authority out of Eadmerus speaking of what was done in Parliament in 3 Hen. 1. saith it was done Utriusque ordinis concordi Curâ sollicitudine by the unanimous care and trouble of both Orders Ranks or Degrees Why must Ordo signify an Estate rather than a Degree or Rank Now I hope Men of different Degrees may sit together without being different Estates Dukes Earls Marquesses Viscounts Barons now sit together yet may make but one Estate But let Ordo signify that Estate as he would have it and as he thinks it doth why must it signify an intire Estate or what doth it more import than that it was done by the Joint-Consent of the Lords and Commons who might then sit together and were not at any time left out as is sufficiently proved by Mr. Petyt Matth. Paris his Clerus and Populus and the other Cases by him there mentioned comprehended the whole Body of the Clergy and Laity met together in Parliament including as well the Inferiour Clergy as the Superiour sitting in their due Ranks All the rest of his Precedents made use of by him seem rather to enforce that the King is not a third Estate than that the Bishops are more than a part of a third Estate among the Lords But this Point whether the King be one Estate or not in Parliament and how an Head can be considered as no part of the Body I leave to others to dispute but must rest in this undeniable Conclusion that there can be no legal co-ordinate Power however the case stands for as in the Body natural nothing can be done without the concurrence of the Head So in the Body Politick nothing can justly be done without the concurrence of the King in matters of publick concern in Parliament except their Proceedings deviate from the ordinary Rules of the known Laws of England I have put off the Examination of the first part of his fourth Chapter that I might conclude this Discourse with an Answer to the Matters he there alledgeth He finds himself pressed with that strong Argument drawn as well from Magna Charta as from divers Precedents that the Bishops were not Peers to Noble-Men but were themselves tried by a common Jury in Matters Capital and therefore were not of Condition to try Noble-Men who had in themselves Inheritable Noble Blood To this Argument he opposes two things First That the matter of Fact cannot be made out that a Bishop hath always been tried by Commoners Secondly That if it could it doth not overthrow their Peerage in Parliament This second Assertion I will easily grant if by Peerage in Parliament be no more meant than a Community of Appellation by reason of their sitting amongst the Lords and their Precedence in place with some other Priviledges as to Amerciaments days of Grace and the like But certainly if it can be cleared that they have of right been tried by common Juries and that as well before as after the time of Henry the 8th Nay that they have not look'd upon the Lords in Parliament as their Peers and proper Judges I may then rationally conclude that they are not Peers in Parliament to that end to try or be tried by Noble-Men there It is plain by all our Law-books that out of Parliament no such Priviledg belongs to them For first out of Parliament over and above the express Authority of Stanford a Judg in Queen Mary's time Sir Edward Coke a great Judg in our time Mr. Selden a great Lawyer and Antiquary Mr. Cambden an Herauld great Scholar and Historian all agree that Bishops shall not be tried by Noble-Men and that manner of Triall hath never been put in use as to them Now if this be confessed to be the Law out of Parliament let the Author give me one Example that a Man of right ought for a like Offence to be tried by one sort of Jury out of Parliament and another in it The Case of Appeals under which Covert he endeavours to hide himself I shall discuss anon The Priviledg they claimed as Clerks was common to all other Clerks as well as to them but there are many Cases of Clerks tried in Secular Courts and the Trial allowed to be good to which purpose see Cook 's second Instit. 638 but never any Exception of theirs allowed of as if those Trials were illegal As to the Case of Bishops and their Trials by common Juries Mr. Selden is very clear and gives many Examples both before and after Hen. 8th's time which are not so to be slighted as this Author seems to do That of John de Isle the Bishop of Ely's Brother is full to the point where the Bishop was arraigned and upon Question how he would be tried stood upon his Priviledg as Clerk that he was a Member of the Pope's and therefore ought to be brought to his Answer before his Ordinary the Arch-bishop of Canterbury who was there ready to demand him affirming that he ought not to answer before a Lay-Judg this Plea was rejected and a day given to the Bishop and a Jury impannelled sworn and tried which shews he had his Challenge The Jury bring in their Verdict and find that the Bishop was not guilty of the Fellony laid to the Charge of John de Isle his Brother and his Companions but they find that after the Felony committed the said Bishop knowing that these Persons had committed Felony did receive and harbour them upon which a Writ was directed to enquire what Goods and Chattels he had and his Person upon request of the Arch-bishop delivered him to be kept as it behoved him to do Now let any Man judg whether here were not in every respect a legal proceeding The matter of Fact tried by the Verdict of twelve Men Inquisition made concerning his Goods Lands and Chattels himself the Crime being only receiving of Felons delivered to the Arch-bishop either to make his Purgation or to be kept in due manner Was here now any Willingness in the Court to break the Law as our Author saith pag. 146. or not rather a perfect Observation of it Is not this perfectly agreeable to what Dr. Ridley in his view of the Civil and Ecclesiastical Laws saith pag. 86. If a Clerk be first arrested by a Spiritual Judg and found
guilty he shall be degraded and delivered over to the Temporal Power But if he be first arrested by 〈◊〉 Secular Magistrate and tried and found guilty he shall be delivered to the Bishop to be deprived and then delivered back to Punishment The Precedent of Thomas Merks Bishop of Carlisle our Author allows to be against him but asks whether one Precedent before the time of Hen. 8th be sufficient to expound Magna Charta for in this Case the Immunities of the Church were considered and a Declaration by them that their Priviledges extended not to Treason But for a full Answer I say first that there are more Precedents than one but if there were not would not one with the constant Opinion of all Lawyers and Judges be enough to prevail with a dis-interested Man to believe that the Peers in Magna Charta and the Lex Terrae do not intend Bishops to be such Peers as are to receive their Trial by Noble-men But what Exception can be taken to those Cases after and in the time of Hen. 8th Did he not continue the Roman Religion all his time was it more against his Prerogative than of any of his Predecessors 'T is clear enough that the Proceedings before as well as after were according to Law notwithstanding the Clamour of the Clergy as is plain by Mr. Selden I shall now consider the Case of Adam de Orlton alias Tarlton Bishop of Hereford All Historians of those times as well as other later ones set sorth the violent Proceedings of the Clergy in that matter who took him twice out of the Hands of Justice But it appears by Mr. Selden by the Record Hill 17. E. 2. Rot. 87. Dors coram Rege that he was arraigned in the King's Bench and upon question how he would be tried refuseth to answer there Day is given and the Indictment brought into the Parliament where he makes the same Plea that he is by the Will of God and the Pope Bishop of Hereford and that he ought not to answer before that Court. Here you see whatever the Carriage of the Clergy was and what-ever Judgment was given against him His Exceptions were as much against any Trial in Parliament by the Lay-Lords as else-where And that consequently the Injury they conceived done to them was that they should be tried in any Secular Court whatsoever This you may see in Du Fresnes Glossary Verbo Par. The Trial he required was per Episcopos Pares suos By the Bishops his Peers This appears also by the Complaint of the Bishop of Ely that he was brought to be tried coram Laico Iudice before a Secular Judg. By this our Author's Mistake may appear who saith pag. 144. That they look'd upon themselves out of Parliament as having no Peers in Judgment but Bishops when it is evident by the Case of these Bishops that they made the same Exception as to their Trials before the Lords in Parliament that they did before the Secular Judges out of it and pretended they ought not to be tried before any Lay-Judges whatsoever Neither did they look upon themselves under the same Condition that Lay-Men were but being a distinct Body among themselves thought it reasonable to be judged by themselves only and in their own Courts an Innovation the Law never allowed or gave any Countenance unto I confess I cannot but wonder that any one Person of how great Parts soever should go about to contradict the Opinion of very many learned Judges who have all asserted the contrary to wit that Bishops ought to be tried by Commoners and no one Lawyer of any note that I know of hath hitherto maintained the contrary Methinks those of the Long-Robe should be tender in opposing the Judgments of Stanford Cook Doddridg and Selden except their Opinions were back'd by the Authority of Judges equal in Ability and Learning to those before named Having thus cleared the Precedents urged by Mr. Selden and others from the Exceptions of this Author let us now see what is alledged by him to prove that it was not always so but that sometimes they were tried by the Noble-Men as their Peers in Parliament And to that purpose he propounds the Case of Stratford Arch-bishop of Canterbury out of Arch-bishop Parker's Antiq. Ecclesiae Britan. who tells you that Stratford was at the King's Suit accused of Capital Crimes in the Exchequer that he put himself upon his Trial in Parliament that a Parliament was called and he after some Opposition admitted into the House and there as our Author saith put himself upon the Trial of his Peers this it seems is the Relation of Matth. Parker By the way whom he meant by his Peers doth not yet appear whether the Clergy only or the Lay-Lords But let us have recourse to the Record as it is abridged by Sir Robert Cotton 15 E. 3. Numb 8. The same day the King came into St. Edward's Chamber commonly called the Chamber de Pinct the painted Chamber before whom all the Lords and Commons the Arch-bishop of Canterbury humbled himself and required his Favour which he granted Afterwards the Arch-bishop desired that where he was defamed through the Realm he might be arraigned in open Parliament before his Peers probably by his Peers he understood the Bishops as others had done and not the Lay-Lords Besides this seems to be a Desire of his at a Conference before the King and Lords for it was in the painted Chamber whereas the Commons usually sate in the great Refectory now called Westminster-Hall Let us observe the King's Answer which was that he would attend the common Affairs and after hear others where we see the King did not grant his Desire but gave only a Dilatory Answer Lastly it doth not appear that he was ever arraigned in Parliament for the Record saith Numb 49. And it is to be remembred that all things touching the Arraignment of the Arch-bishop of Canterbury should remain with Sir William de Kedelsby Keeper of the Privy-Seal By which it is evident that these things were not then put into the Hands of Sir William de Kedelsby but to remain there where probably they were before and were only some Papers relating to what was before done in the Chequer for I find no Arraignment recorded about that time Two Yearsafter viz. 17 Edw. 3. Numb 22. All the Proceedings against the Arch-bishop were cancelled by order from the King so that nothing appears to have been done against him to any purpose either in Parliament or else-where 'T is true there was a continuance of the Parliament in 15 o from day to day for a Week about the Trial of Noble-Men that they should not be put to answer but in open Parliament by their Peers to which purpose there are named four Bishops four Earls and four Barons as a Committee to draw up the Plot. These Persons being in their Device assigned as hereafter doth ensue Under the Name of which Peers they
by the Earl of Gloster against whom the Bill was found whereas here the Reference is made by both and to the Kingalone Next we find the King here was present with the rest which was not usual if the Lords had proceeded judicially wherever the matter was heard whether in Parliament or else-where Besides it is observable that the word Consilium is twice written with an s whereas if it had been a Parliament the word would have been written with a c as was generally observed by the Writers of those Times In Conclusion this Record makes nothing either to the Bishops Power of judging in Criminal Cases or that Submission of a matter to the King should be a waver of Peerage but was a making the King an Arbitrator for they knew the Verdict was void being not upon Oath I have before denied that such Persons as sate in the Lord's House by virtue of their Office had any Right to be tried by Noble-Men except they had an inheritable Right of their own as well as their Office I am not therefore concerned to examine as to Predial Feudal or Personal Right what is urged by our Author or any other because I have throughout this Discourse maintained that no Man can have any Priviledg or Right of Trial but according to the nature of his Peerage which seems to me not only reasonable but within the plain meaning of Magna Charta that the Triers and Party tried ought to be of the same Condition and capable to undergo the same Penalties in like Case That what the Discourser hath said as to the Regradation of their Peerage when their Office shall be taken away means no more than that Officers shall no longer sit among the Peers not that they had any Right of Peerage during the continuance thereof tho they were placed among them by a particular Law or Usage Neither is our Author's Reason of any force that because Persons enobled in Blood in a Forreign Country shall not try a Peer of England therefore the Parity is not of Blood but of Priviledg in Parliament For he cannot but know that all Laws are originally made for the benefit of those who are born subject to them or adopted into them by Naturalization and such shall have the full benefit of all things appliable to their English Condition as if they were natural born-Subjects Others that are Strangers tho of equal or greater Quality shall not enjoy the Rights invested in the Natives by their Birth but only the Protection and Priviledge of the Laws of that Country where they are during their abode there Another Argument is drawn by our Author from the Proceedings in Cases of Appeal against a Noble-Man at the Suit of the Party He argues thus If in Appeal of Murther or the like at the suit of the Party a Noble-Man shall be tried by a Jury of good Free-holders then their Exemption from being always so tried proceeds from their sitting in Parliament and not from Nobility of Blood and therefore all those who have Right to sit in that House have Right to the same Priviledg But the Bishops have Right to sit in the same House and are called Barons therefore they ought to enjoy the same Priviledge other Barons have This Argument how specious soever it may appear is unconclusive in many respects First It doth not follow that those that have Priviledg to sit in the same House have the same Priviledges to all Intents and Purposes My Lords the Judges and all Justices of the Peace sit upon the same Bench and by the same Commission yet are not equal in all Circumstances Nay my Lords the Bishops themselves though they are of the same Order and Quality yet are not equal in Priviledges I have before shewed that there were Barones Minores who were not properly Barons but so called and might be left out at the King's Pleasure But such as are enobled in Blood may demand their Writs which the Barones Minores could not And if now the Bishops have that Right which is not certain it is because they are to summon the Clergy without which the Parliament would not be compleat as to the Convocation And were it not for that Reason the Bishops might be now wholly left out for they being only Barons by Tenure cannot be in any other Rank than were the Barones Minores who were left out at the King's Pleasure I have before asserted they hold their Possessions per Servitium Baroniae as a Burthen not Honour to them and their sitting among the Lords was only indulged to the Dignity of their Function as Bishops they being indeed no more than Commoners Neither secondly doth it any way follow that because Peers in some Cases shall be tried by a Common Jury therefore those who are properly Commoners and only priviledged to sit among the Lords should participate of the same Honour with them To examine farther into the Reason why in all Criminal Cases at the Suit of the King the Trial shall be by Peers not so in an Appeal for the same Crime Sir Edw. Coke will tell you One reason is because the Trial if it ought to be so must be before a Lord Steward and no Appeal can be brought before a Lord Steward who is but only Temporary but ought to be brought before the Judges in the King 's ordinary Courts of Justice We are likewise further to consider that Inequality of Persons is not of the Law of Nature but of Human Constitution and that the Statute of Magna Charta is but a Confirmation of our ancient Rights in which all Subjects were Pares But since it is apparent that ever since Magna Charta and perhaps long before the Trials at the Suit of the Party have been as they now are we must look upon them as a Branch of the common Law of England never taken away from the Commoners but that the King and Noble-Men as to what concerned the Crown were contented to introduce that manner of Trial as to the Nobles and long use and Custom hath now made it to be received as the Law of England yet the poor Commoner never received that way of Trial as to his own Right who look'd upon the Verdict of twelve substantial Men of his Neighbourhood as much better Security for them and their Heirs than a Trial upon Honour When upon their Appeal it would always have been in the Power of the King to name again the same Lords for Triers which they had before and by that means defeat them of the benefit of their Appeal to which the Law gives so great respect that upon an Appeal brought all Proceedings at the King's Suit should as has been taken for Law stay till the Appeal were determined because a particular wrong to a private Person in the Murther of an Husband or very near Relation is of greater Consideration to the Party than the general loss of a Subject is to the King I shall
Barons and all the Commonalty of the Kingdom or Land c. It doth not from hence necessarily follow that the Commons were then present for the word And may be taken exegetically and expositive and not introductive of any other Persons and the word Communitas doth many times extend to the Prelates and Barons therefore it is said Si videatur Communitati Praelatorum Baronum Here lies the force of all the Cavils upon the Records mentioning others besides Tenants in Capite and Mr. Hunt insists upon the same in effect with the very same Instance I shall here chiefly apply my self to Mr. W. and I cannot but observe that what I have here cited out of his Book either contains an Assertion without any manner of Proof offered or else the latter part is used for the Proof of the other but surely 't is an odd kind of Proof that And may be used exegetically because the word Communitas may extend to several Particulars and as well to Prelates and Barons as others when particularly exprest along with it which is no more than that the other words are exegetical or expositive of Communitas not that Comâ—…as or And joyned with it can be expositive of those other words Wherefore the Assertion that And may be used exegetically stands naked by it self without any colourable Cover or Support and I would gladly see at least some Colour for the Belief that the Conjunction And was ever used as expositive or exegetical of any word or words foregoing Indeed when 't is Husband and Wife they may notionally be the same in Affections and Desires and become one Flesh as Body and Soul make one Man But I think no Man will say that the Wife is exegetical of the Husband and is no more than what was mentioned before when the Husband was named nor will any but such as believe the Mortality of the Soul and that 't is nothing else but the Temperament of the Body or its animal Spirits suppose the Soul and Body to be the same indeed if they were the Body ought to stand by it self without mention of the Soul with a distinctive And. Till some one Instance can be produced in which Mr. W. can make it out to the common reason of Mankind that And ought to be used otherwise than as introductive of something not expresly mentioned before he must give me leave to think that in the matter of our Dispute And is necessarily introductive of some other Persons But according to the Rule of making And exegetical where 't is expressed in the Instance given in the Record 48 H. 3. Si videatur Communitati Praelaturum Baronum Et must by plain Consequence be exegetical of the Praelati and so the Barons were only the Community of or all the Praelates I take it to be obvious that And of it self can never be expositive the question then will be what may or ought to be the Exposition of words which singly taken are of more general or more restrained Senses and how far they may or ought to be enlarged or restrained according to their Position or according to the nature of the words which are used along with them And in my Opinion it is contrary to the Laws of Interpretation that a word used in a general Sense and as comprehending others should explain those others particularly set down as that Communitas which here Mr. W. would have taken in a general sense as not confined to one Order should explain what is meant by Praelates Peers and Barons before particularized on the other side words of a particular explicit meaning coming before or after one of more general import shall explain and restrain the general Sense Thus Praelatorum Baronum either before or after Communitar restrain that word Communitas to the Community of the Prelates and Barons and I dare say no one Record can be shewn of the times either before or after the 49th of Hen. 3. which will warrant a contrary Exposition of such Words And indeed there has no Reason been pretended why Communitas or Populus joyned to some Orders of Men expressed should be the same with what went before but what is a manifest begging of the Question and supposing that the Commons were not present in the General Councils at the Times the Records mention and therefore that the word Communitas or Populus was superfluous and referred to what was sufficiently exprest before was comprehensive of the foregoing Particulars as Mr. Hunt will have it this illogical Petitio principij is a Leaden Vein which runs through all Doctor Brady's Writings But let us a little observe the pennings of Records which may give Light to this matter you shall there find words of a restrained Sense following one of more general to be exegetical or explanatory of the general as the Peers Earls and Barons there Earls and Barons denote what Peers are meant because there might have been Bannerets an inferiour Order of Peers Then you shall find words of a limited Sense going before to be restrictive of a word following which otherwise would have had a more general Sense as Earls and Barons the Peers there the Earls and Barons are the only Peers But where 't is Earls Barons and Peers there neither the first nor the last words can be expositive because And severs them and consequently makes them to be of different Senses wherefore And is necessarily introductive of other Persons and the word Peers which without And might have been a Genus to the several Species of Earls and Barons must needs be an Inferiour Species under a Genus not there mentioned But still Peers could not have explained the Earls and Barons but Earls and Barons would be expositive of Peers which is more comprehensive in its Signification And thus where 't is Communitas Praelatorum Baronum Communitas is the Genus to these two Species and the more particular words restrain the Communitas to them wherefore 't is the whole Body of the Prelates and Barons and none else but where it is Praelati Comites Barones Populus or Communitas there the Populus or Communitas must be inferiour to the rest particularly mentioned being there is a descent from the higher Orders still to the lower if they begin at the bottom they end with the highest at least that which is added at the last must be something distinct or different from or not paticularly exprest in what went before which is enough for my purpose I shall close this with a few more Examples out of Records In a General Council of the Kingdom held in the fifth Year of King Iohn's Reign after he had married his second Wife having been divorced from the first the new Queen was solemnly crowned unanimi consensu concordi Voluntate Archiepiscoporum Episcoporum Comitum Baronum Cleri et Populi totius Regni Magna Charta was confirmed in a General Council of the
many all the Grantees were Tenants in Capite and owed the same entire Service that the first Grantee did 1. His Errours upon his first and second Heads cannot be truly shown unless they be fully transcribed in their full Dimensions When the Conqueror says he did innovate his Tenures in Capite and made all Men of great Estates Barons and by their Tenures and Estates Members of Parliament we then had such Laws quas vulgus elegerit and the nwe had materially our three Estates though not so well sized and sorted as since We had then I say many great Free-holders in every County that by their Tenures were Members of Parliament whereas now we have but two and tho the People did not not chuse them yet the Men of that Order seem chosen once for all interpretatively by the People in their consent to the Government In this Constitution scarce any Man that was fit to be chosen but was without the Peoples choice a Member of Parliament as there now are more who are fit to be chosen than they can chuse so that the Barones Minores were then instead of Knights of the Shire and the Barones Majores Bishops and Earls did then as now make the Parliament Besides Barones Majores and Minores there was at this time a distinction between the Barones Regis and Barones Regni which I will explain to prevent any Mistake that may grow thereupon The Barones Regni were Barons by Tenure and made part of the Government by the Constitution of the first William and so in process of Time called Barones Regni because they had by Continuance of that Constitution acquired a fixed Right to that Honour But because of the frequent Wars between the Barons and the Kings at that time they did omit to summon some who were Barons by Tenure and now duly called Barones Regni to Parliament and called others that had no Right to be called Ratione Tenurae and those they called Barones Regis This was ill taken by the Lords and was one of the occasions of their War with King Iohn upon which they obtained his Charter for Remedy as follows Barones Majores Regni sigillatim summoneri faceret the truth of this as to the Fact will appear by the History of those Times and that this is the reason of this distinction of Barones Regis and Barones Regni doth appear by the recited Charter of King Iohn where the Majores Barones are called Barones Regni for the Barons were more concerned for the losing of their Honours than they were at the Communication of the like Honour to others and with reason though all Honours are lessened by the numbers of those that participate of them The Inconveniency and Mischiefs of this Constitution were very great and very sensible by making the Government to consist of one Order there was no third to moderate and hold the Ballance I shall not here enlarge upon his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Conquest nor upon his Conjecture of one of the Occasions of the Barons Wars nor yet upon his notion of three Estates materially the same when but one Order and by the same reason if all were in one by virtue of his Spiritual and Temporal Power and he had by a Conquest all the property of the Nation here the Government was materially the same with Lords Spiritual and Temporal and Commons in his Belly as when he had disgorged and scattered abroad the Property and Power But to the purpose of the above-mentioned Heads 1. Whereas he will have it that only Bishops and Earls were Majores Barones it appears manifestly to the contrary from the words of King Iohn's Charter which he mistakes Submoneri faciemus Archiepiscopos Episcopos Abbates Comites Majores Barones Regni Sigillatim Here are Majores Barones Regni after Bishops and Earls And I need not here remind him of the Vanity of the Notion of making Majores Barones exegetical or comprehensive of what went before 'T is certain if Bishops were Majores Barones as well as Earls here are others intended also and why are not such as held whole Baronies as some did Great Barons Besides you shall find numbers of Barons to have received particular Summons even to the Wars according to the Provision in King Iohn's Charter for summoning the Majores Barones Sigillatim I will give him some Names and see whether he makes Earls of them all Three Bassets William de Harecourt Roger de Somerey Iohn Forreigner Extraneus Richard de Grey Ern. de Bosco c. But if all these were Earls what thinks he of the nine hundred and odd who received special Summons De veniendo ad Regem cum Equis Armis usque Berwicam super Twedam in the 29th of Edw. 1. 2. Whereas he will have it that the Barones Regni were Barons by Tenure and the Barones Regis by Call to Parliament he might have known that every Baro Regis was a Baron of the Kingdom but every Baron of the Kingdom was not Baro Regis in a strict Sense Wherefore accordingly King Iohn's Charter confines the special Summons which as I say was to the Curia Regis to such Great Barons of the Kingdom as held in Capite There being after Majores Barones Regni in a different Provision Et omnes alios qui de nobis tenent in Capite Wherefore when all the Barons of the Kingdom were summoned it took in the Majores and Minores both those that held in Capite and otherwise But when they are used distinctly 't is wholly contrary to his Supposition for the Barones Regis were properly and strictly they who held immediately of the King as all manner of Authorities warrant Indeed I am almost ashamed here to bring Proof of a thing so evident But he may please to observe that Thanus and Baro were always of the same Acceptation Thanus Regis was strictly he who held Lands of the King by any kind of Tenure and so was Baro Regis tho somtimes appropriated to him that held by Knights Service and an ordinary Thane was no more than an honest Free-holder by any sort of Tenure as appears by Dooms-day-Book it self But I conceive the Difference between Baro Regni and Regis is sufficiently shewn in this following Authority In the 23d of Hen. 2. Benedictus Abbas tells us the King summoned Magnum Concilium de Statutis Regni sui coram Episcopis Comitibus Baronibus Terrae coram eis per Concilium Comitum et Baronum Militum et hominum suorum he made the fam'd Assize at Northampton Here are Barones Terrae or Regni and Barones Milites et Homines sui Here either all the Barones Regni were Barones Regis or sui And then his distinction between Baro Regni and Baro Regis falls to the ground there being no Difference or else there is that very Difference I stand upon viz. That the Barones Regni were comprehensive of all sorts of Barons the
one another and through the Pride and Ambition of some who thought themselves above that Law And when the numbers of Frank-pledges had that happy Combination still been maintained would through the vast Multiplication of Proprietors have been too great to assemble together upon any Occasion requiring Counsel and serious Debates There is one Difficulty which arises upon the examining this point of Antiquity that is since we rarely meet with Authorities tho some there be which particularly describe such as Citizens and Burgesses as summoned to or present at the General Councils of the Kingdom What shall we think of them To which I am bold to say that even Citizens and Burgesses might have come under the Consideration of Free-holders inter liberos Regni tenentes or Barones Baronagium Barnagium or the like For either they were 1. Corporations by Charter Or 2. Corporations by Prescription And I think it will be probable at least that Property in Land the continuance of which in any Family made Nobility was the occasion of the Priviledges of them all And in such respect the Freemen there were numbred amongst the Nobles tho afterwards when Trade prevailed amongst them the Generality of them might be but quasi optimates and yet by Custom they obtained the name of Barones as in London Warwick the five Ports c. And probably upon the account of the first Erection But that I may not talk wholly at random I shall offer a Scheme of the ancient Polity in relation to them which at least will not be disproved For the first the Corporations by Charter they were of two kinds 1. Such as were incorporated by the King 2. Such as were incorporated by the Subject 1. Of those that were incorporated by the King there were Cities that is Boroughs which had a Bishop's See or else Boroughs only But the Episcopal See making the only difference they fall not here under any different Consideration I conceive that though to these at the time of the Incorporation the King granted several Franchises as Markets Fairs and the like Yet he gave no Right of sending Members to Parliament to them who had it not before but of them that were so incorporated some were Minores tenentes in Capite inferiour Tenants in Chief such as by King John's Charter were where not incorporated to be summoned in general to the Commune Concilium or Curia Regis Many of these for the sake of such Immunities as belonged to free Boroughs consented to be incorporated and thereupon they being one entire Body naturally fell into a Representation and answered together by their Head-boroughs or any other that they chose as one Tenant St. Albans I take it was of this kind the Burgesses of which pleaded that they held the said Vill of the King in Capite ipsi sicut caeteri Burgenses Regni ad Parliamenta Regis cum ea summoneri contigerit per duos comburgenses suos venire debeant prout totis retroactis temporibus venire consueverunt pro omnibus Servitus Regi faciendis quae quidem Servitia iidem Burgenses Antecessores sui Burgenses Villae praedictae tam tempore Domini Edwardi nuper Regis Angliae Patris Regis Progenitorum quam tempore Regis nunc semper ante instans Parliamentum ut pâ—…ittatur 〈◊〉 Nomina quorum Burgonsium sic praedictâ Villâ ad Parliamenta Regis veâ—…entium in rotulis Cancellariae semper irrotulata fuerunt I before had occasion to examine Dr. Brady's Interpretation of the Answer to the â—…ea here the Plea it self comes to be considered And whereas he renders pâ—…o oâ—…us Servitus in lieu of all Services I conceive the Sense to be no more than thus That they held of the King in Chief and that as other Burgesses of the Kingdom they were to be represented at the King's Parliaments when they happened to be summoned by two of their fellow-Burgesses as ever since they were incorporated they had used to come for the performing of any of their Services And that they had not forfeited their Charter nor ought their Corporation to be dissolved for that they had duly performed all their Services And for proof that to Parliament especially they had all along come by Representation they appeal to the Rolls of Chancery Certainly no Man before the Doctor thought that the coming to Parliament excused any Rent or other Service which was incumbent upon them But thus much is obvious from this that here were Minores Barones Tenants in Chief whose Tenure must have been created by Charter who were fallen into a Representation And that this was upon the account of Property in Land which occasioned their Services and their being united as one Tenant But besides these there were Tenants of Honours or Manors in the King's Hands or in the Subjects which were incorporated by the King's Charter and sent their Representatives to Parliament I shall instance only in a Corporation holding of a Subject but incorporated by the King's Charter King John by his Charter to William Brewer who in all likelihood was Lord of the Mannor of Brugwater or Bridgwater grants that Brugwater should be a free Burrough and that it should have Markets and Fairs And 26 of Edward the first when the first Roll of Burgesses begins we find Burgesses for Bridgwater entred amongst the rest And 't is observable that there is not to be found any Charter giving them the priviledg of sending Burgesses nor could such a Priviledg arise by Implication Wherefore they must necessarily have come upon the account of their Property in Land with no other Alteration than that their divided Interests were all conjoyn'd in one 2. But besides these there were some incorporated by Subjects Of those who incorporated them some had Regalia themselves as the Counts Palatine of Chester One of which Leofrick Brother to the Confessor in his life-time incorporated Coventry under the Prior and Monks of Chester Whereupon the Burghers of Coventry were represented in the General Councils of the Kingdom as one entire Body We find that it sent Burgesses to Parliament 26 Edw. 1. and from its first Corporation must needs have done so according to its Plea which was allowed 34 Edw. 1. For it pleads that it was neither Civitas Burgus nor Dominicum Regis That therefore it ought not to be taxt or taliated as such but was to be charged only when the whole County was charged or in the like Proportion and they pray that the Taxors and Collectors may not be suffered to distrain amongst them otherwise than it had been totis retroactis temporibus in all times past since they became one Body that is that ever since they were a Body they us'd not to be taxt as the King's Demesnes whether Cities Boroughs or Manors which might be out of Parliament and even when there was a Parliament they bore the heaviest Burthens But as the County as to the way
casu fieri consuevit Teste Rege apud Lancetost 18. die Octobris 34. FINIS ERRATA PAge 113. line 3. in Marg. read true way P. 117. l. 18. r. Bannerets Ib. l. 21. r. Banneret P. 122. l. 2. r. St. P. 144. l. 8. r. ingenuously So P. 145. l. 31. P. 160. l. 5 after the Word Barony add in the Margine viz. Ecclesiastical Persons P. 174. or 274. T l. 18. r. done P. 204. V l. 2. r. Counsel So l. 11. Ib. P. 212. X l. 22. r. permixtim P. 217. X l. 26. r. de tout le c. P. 220. l. 6. r. taken Other Literal Mistakes the Reader is desired to correct with his Pen. A TABLE of the Principal CONTENTS The Number of the Page being often mistaken through the Printers false counting to one another the Reader is desired where the Figures are wrong to observe the Letter which begins the Sheet A Page Abby of Molross O 206 207 Absence of the Bishops not merely from the Canon-Law 84 N 181 182 Adam de Orlton's Case R 267 T 180 Agitare Judicium Sanguinis prohibited H 101 and N 157 183 Allusion made by the Questionist not solid 165 Appeal to Rome no capital Crime antiently M 173 Appeal of Earl Godwin Q 227 Appeals in Trial V 191 192 193 Appellation ought to be governed by the Right S 278 Apostles their Rule p. 89 how far their Practice to be urged for Example now 133 Apostolick Canons against Clergy-Men their medling in Secular Affairs P 135 216 Arch-bishop Stratford's Case T 282 283 284 Arundel Earl his Case O 208 Assemby at Northampton no Parliament p. 170 171 172. Matters carried there in great Heat and no Iudgment of Treason given M 172 173 Attainders what they are 9 10 Augustine St. his Opinion 94 95 B. BArons how made enobled in Blood and how made 107 to 120 Barons by Blood and by Tenure different 78 118 119 120 Barones Majores who 78 Z 245 246 Barones Minores who 7 8 Barons Peer who 21 107 117 Barones Regis who 107 Z 247 to 250 Barones Regni who ibid. Baronagium and how comprehensive 107 P 202 203 Y 226 S 278 Becket not impeached of Treason from 65 to 70 and from 172 to N 180 Berkeley Sir Tho. his Case 28 29 V 196 Blesensis his Words marked 97 98 125 167 168 R 261 Bishops whether they sit in Parliament by vertue of any Baronies p. 106 108 and how 122 c. T 174 or 274 Bishops not Barons 77 108 19 123 124 125 Bishops how they sate with the Earls 91 92 93 145 P 217 Bishops Service and Tenure a Burthen 106 124 125 Their Tenure offects not their Persons 77 Bishops if a third Estate not capable to try a Peer 128 Bishops the form of their Writs no Argument of their Power 86 129 130 when present always exprest that they were 36 Bishops medling in Secular Affairs forbidden 129 135 P 216. Their Opposition to the King at Clarendon and from what Cause 141 Bishops Power clipt at Clarendon 99 O 144 when to go away in Criminal Cases 161 196 197 even in Acts of Parliament R 265 Bishops Absence not merely from the Canons 8 84 N 181 182 183 190 N 193 O Bishops Protestation p. 5 6 7 translated and explained 41 42 and N 185 to 194 Bishops not reckoned Nobles T 184 or 284 not called Lords till the time of Rich. II. 108 Bishop of Norwich his Case 40 Bishop of Carlile tried by a common Iury T 279 so Bishop of Ely 278 ibid. Bishops Absence no Error 47 Bishops had no Right to be present in the Debate and handling matters of Blood 143 Bishops not comprehended under the name of Peers or Grands if put after Earls and Barons 14 18 to 25 32 Bishops if others named always named where they are present 24 29 32 36 and that before others R 261 Bishops not Peers to Temporal Lords 71 to 99 S 280 Bishops sit in respect of Temporal Possessions 83 yet in the quality of Spiritual Persons T 174 or 274 and S 289 Bishops cannot sit in a double Capacity S 288 289 T 174 Bishops contended to be tried by their own Order T 181 or 281 whence their pretence of Immunity proceeded 153 Bishops to be tried by common Iuries T 277 to 282 Bishops their Equivocation 141 Bishops Messengers of Peace V 197 Bishops chief Employment to make Peace in civil Affairs antiently Counsellours not Iudges p. 89 91 their refusing to give Advice about keeping the Peace 30 31 266 and R 269 Bishops but part of a third Estate 80 to 85 and 126 127 137 S 290 Bishops in France never sit in that Chamber of Parliament which tries Capital Cases 90 Bishops never absent not prov'd Q 228 Bishops no where allowed to sit Inquisitors of Blood V 198 Bishops not summoned to Parliament several times Q 238 Bishops a Question whether they might be even of a Committee in matters of Blood V 199 Boeges de Bayon's Case 25 26 Brady Dr. his Assertions and Fancies condemned Pref. to the 2d Part and p. 189 in Marg. V X A a 204 205 224 227 Burroughs and Burgesses Z 237 238 C. CAmbridg Earl 50 Canons forbidding of Clergy-men to meddle in Capital Causes still in force 87 164 and P 217 to 222 Canons concerning Blood as anciently in England as the Conquest and part of the common Law N 181 182 Capitalis Justiciarius Angliae what Office 137 138 Capitalia placita what Q. 229 230 231 Chancellour when no Peer how tried T 285 286 Charter of King John the Author's Interpretation of it asserted against Dr. Brady X 206 207 against Mr. Hunt Z 237 to 242 Clarendon the meeting there a Parliament 139 Clarendon and the Parliament there considered 99 100 142 Clarendon Earl his Arguments against the pretended Conquest A a 260 to 263 Chivaler who B b 284 Clergy subjected to Baron-Service 112 140 Clergy their Power in Primitive-times 89 their Power in other Nations 90 Clerus never taken for the Bishops alone 126 Commons and Commonalty of the Kingdom where Records and Histories manifestly shew their Presence at Parliament before 49 Hen. 3â—… X 211 to Y 22â—… Commons their Vote in Danby's Case O 98 Commons sometimes meant by Grands R 270 S 279 226 3d Part anciently had their share in Judicature R 266 267 268 Commons always Members of Parliament 172 O 202 sâ—… together with the Lords in the times of Hen. I and King Stephen X 212 and long afterwards O 202 203 204 Mr. W's Grounds for the Belief that they had no Right to come to Parliament till 49 H. 3. answered and turned against him X 210 to Y 227 so Mr. Hunt's p. 221 222 223 Y 235 and to A a 268 Commons their Petition 21 R. 2. p. 11. and O 195 196 Community of Names no Argument of Right S 278 Concordia 4 E. 3. 27 R 263 Conquest disclaimed by William the first 139 A a 260 no Conquest
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.
and 2. Ed. 3. forbidding Churchmen to take Cognizance of Matters of Blood 30 33 64. and 169 Statute of Clarendon a binding Law and only affirmative of the old Law 153 Statute of Westminster Anno 1175 forbidding all Persons in Holy Orders Judicium Sanguinis agitare 101 102 157 Stephen Bishop of London tryed by a Common Iury. 27 Stephen King his Charter to the Clergy 140 153 Stratford Arch-Bishop his Case T 283 Succession to the Crown 209 to P 214 Suffolk Duke his Case 13 60. S 284 285 T. TAlbot Lord his Case S 285 Temporal Lords sole Iudges of Peers 40 56 R 276. S 280 Tenants in Capite more than they Members of Parliament before 49th H. 3d. yeilded in Effect by Mr. Hunt 264 to 268. 3d. Part. Tenure in Capite created 78 A a 253 Tenure in Capite Mr. Hunt's Mistakes about it 242 to A a 258 Tenure by Barony inferred no more than a Minor Baron 78 109 118 119 120 Thorp Sir William 32 33 Titles Vid. Succession to the Crown Treason declared by the Iudges in Parliament R 264 265 Trial of Bishops by a Common Iury. 26 27 T 278 279 Trials in Appeals and the reason thereof V 191 192 193 U. UTriusque ordinis consensus explained T 275 276 W. Waver of Peerage T 286 287 Westminster the Council there forbiding Churchmen to meddle in matters of Blood 101 102 157 Cicero de Senectute ult edit tom 4. f. 532. Jani Angl. facies nova p. 186. Habet Rex Curiam suam in concilio suo in Parliamentis suis ubi terminatae sunt dubitationes judiciorum novis injuriis emersis nova constituuntur remedia unicuique justitia prout meruerit retribuetur ibidem Fleta lib. 2. cap. 2. The passage relating to the constituting new remedies must needs here relate to the power of the Magnum concilium or curia in making Ordinances Vid. Jus Angl. ab antiquo Addit p. 40. Ib. p. 39. Jan. Angl. p. 186 189 190. Jan. Angl. c. p. 201. Ib. p. 199. Ib. p. 189. Mr. Hunt's Argument p. 17. Vid. p. 100. 139 to 166. Vid. p. 65 to 70 172 to 181. Dr. Stillingfleet says The King insisted on the receiving the Ancient Customes of Clarendon Answer to Cressy's Apol. p. 100. This received over all the Western Church Burnet's History of the Reformation f. 101. Mr. Hunt's Arg p. 6. Jan. Angl. facies nova à p. 186. to 219. Vid. p. 87 183 184 c. Page 7. Page 25. Page 24. Pag. 13 and Pag. 37 c. Page 38. Page 129. Gr. Qu. p. 1. Seld. Tit. hon p. 730. I edit fol. 19 Edw. 2. Seld. Tit. Hon. pag. 704. Mat Par. p 7. ult ed. Ad id temporis Mr. Hunt thinks that the Tenure made them Barons and that Tenure and Barronies were coincident Seld Tit. Hon. p. 699. and 700. a This I take to be the only true of enobling any body as to the Nobilitas Major Seld. Tit. Hon. par 2. cap. 5. cir finem Vid. Els 〈◊〉 p. 33. b See Mr. Seld. Jans Angl. facies altera ult edit p. 51. Seld. Tit. Hon. pag. 747. Dugd. Baron c Query Whether this Summons gave him other Title than a Minor Baron 7 Edw. 2. 7 Rich. 2. 7 Rich. 2. Vid. Cot. Post. â—…ls edit pag. 344. Seld. Tit. Hon. pag. 690. Part 2. c. 13. Fitstep c. 11. Matth. Paris Anno 1215. Hakewell pag. 4. Pâ—…in 591 c. Seld. Tit. Hon. part 2. p. 743 Cook 's Iuris of Courts Hakew. Mod. p. 135. Dan. Cron. Anno 1133. Rights of the Crown p. 100. Cook 's Preface to his 9th Report sets it out at large Fitst cap. 10 col 2. Seld. Tit. Hon. cap. 5. pag. 706. d N. B. their calling themselves Barons did not make them such who were at first summoned Ratione Episcopalis Dignitatis e Vid. Rot. Fin. 9. H. 3. me 3. 12. E. 2. Funivals c. 18. E. 2. Nevils c. Pet. Blesens yy 2. edit in Quarto or some Lines before see after p. 58 and p. 129. b wrongfully or contrary to the true use Kelway fol. 184. saith That the Convocation is not a part of the higher House neither the Bishops any part of it but sit there as they have Temporal Baronies But he doth not say the Convocation is not one Estate or part of the Parliament which however is but the Opinion of a Serjeant at Law Dr. Heylin's Stumbling-block Prin. fourth p. Kal. p. 594 595. Gr. q. p. 〈◊〉 Gr. q. p. 3. Els. p. 〈◊〉 Gr. q. p. 4. Hist. Coll. part 2. pag. 990. Gr. q. p. 6. Vid. Dan. p. 35. 46. Baker p. 26. 30. Gr. q. p. 6. N. B. Here he makes the whole Clergy to be one of the three Estates Il Nipotismo de Roma p. 37. Pad paolo de materie ecclesiastiche Our Bishops Rights pag. 61. Spel. Glos. verb. Cap. Justic. Co. 2. Inst. p. 26. Seld. tit hon part 2. p. 703. What Dr. Bradies Fancy is in that Particular let him make good if he can Coo. Cawdreys Case Twysden's Vind. of Schism In a Parliament held at Oxford Anno 1136. he grants by his Charter under his Hand That all Persons and Causes Ecclesiastical should appertain only to Ecclesiastical Judges Hon. of the Lords p. 26. Laws of Edg. ch 5. Coo. Mag. Cha. p. 488. Rejoin p. 5. Jour of â—…arl p. 258. Bishops Rights p. 139. 141. Gr. q. p. 19. Gr. q. p. 20. Petit pr. p. 45. Ger. Dorob p. 1653. 〈◊〉 E. 3. Gr. q. p. 20. Gr. q. p. 30. Seld. tit hon p. 703. Gr. q. p. 32. Hoveden f. 543. Ger. Dorob fo 1429. An. 1175. Non licet ought not to be translated it is not convenient as Mr. Hunt would have it and never hath that Signification but when a Law intervenes which makes it as well unlawful as inconvenient for every Law makes the Breach of it inconvenient Linw. lib. 3. tit 29. Ne qui Cler. Vid. Treat of the Nobil pag. 68. supposed to be by Doddridg Seld. tit hon p 704. Cook 2 Inst. pag. 587. Hakewell mod pa. 84. Adsint Fitz. cap. 10. col 12. Co. Ma. Ch. p. 585. Gr. q. p. 33. Gr. q. p. 34. That Edition in qâ—… 〈◊〉 〈◊〉 〈◊〉 certainly the best the latter ones being printed from that Copy Pet. Blâ—…n Y y 2. The critically learned Mr. Hunt in his undigested Lump instead of a methodical Discourse pag. 5â—… endeavours to cure the Ignorance of his Readers by telling them that by Principes Sacerdotum Seniores Populi the Bishops are only meant who from the Dignity and Worthiness of their Order are called Seniores a note of Dignity in all Countries He should have done well to have added Qâ—…m Principes Sacerdotum Sâ—…es populi as the first and best Edition of Petrus Blesensis hath it That Senior is a name of Honour he might have learn'd at School but that the Chief Priests and the Elders often mâ—…ned in Scripture were the same â—…ns he hath