immediately But I mnst needs say this Errour of Mr. Hunt's is the most excusable of any I meet with in his Book because the great Lord Cook leads him the way For he tells us and refers to the Mirror for Proof That by the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realin had all the Lands of England in demesne and les Grandes Mannors Royalties they reserved to themselves and of the Remnant they for the Defence of the Realm enfeoft the Barons of the Realm with such Jurisdiction as the Court Baron now hath and instituted the Free-holders to be Judges of the Court Baron Then he tells us in his second Institutes That till the Statute of 24. E. 3. whereby 't is provided that Alienations of Lands made by Tenants which held of H. 3. or of other Kings before him to hold of themselves should stand in force saving to the King his Prerogative of the time of his Great Grand-Father his Father and his own It was doubted whether the King's Tenant might have given part of the Tenancy to hold of himself Which is in Effect the same with Mr. Hunt's Notion of all the Tenants holding of the King in Chief 1. But 't is obvious that by what the Lord Cook said of the Laws of King Alfred and others whereby he supposes Tenures were erected not only of the King but of his Grantees who had their Court Barons His Opinion was that the King's Tenant might have granted out to hold of himself for otherwise how could he have had his Court of Tenants 2. Whereas he supposes that the Laws of King Alfred shew that the Kings had all the Lands in Demesne there is but one Law of King Alfred mentioned in the Mirror and that is for the great Councils assembling at London twice a year or oftner if need be Not any thing of Tenures 3. But amongst the Establishments made per cel estate per plusors Royes by several Kings in Parliament the Mirror says Assentus fuist que les choses suivant serrent appendant aux Roys al droit de la corone Soveraigne jurisdiction la Soveraign Signory c. come Franchises treasnre trove c. Then it goes on Ceux droits retiendrent les primers Roys delremnant de la terre enfefferont les Countees Barons c. Here 't is plain that no more than the Rights aforesaid amongst which Chief Cities Chief Ports and Great Mannors were named not all the Lands were retained by the first Kings And tho they are said to have Infeoff'd others of the rest of the Land to hold of them yet that does not necessarily imply that they had all in them before Nay the Mirror shews the contrary for it says That after God pleased to abate the British Nobility who used Force rather than Law he left the Realm to the most humble and simple of all the adjacent Countries the Saxons who came to conquer it from Almain de la quel gent il y eurent iesque quarant Soveraigns que touts soy tiendrent a Companions Amongst these forty Princes being equal and independent here was no King till they came to make a Choice And so the Mirror tells us they did having felt the smart of their Competitions Then Eslierent de eux un Roy a reigner sur eux Governer le People de dieu a Maintainer Defendre les Persons les Biens en quiet per les Rules de droit This shews they did not resign their Properties to the King for they chose him to defend them yet it seems they consented to take Grants from the King by such Services as were in common agreed upon And though they were principally from him as Head of the Body Politick yet any Man that observes the Forms of the Saxon Kings Grants will not think it a vain Imagination that such as I speak of should have been with universal Consent 4. But I cannot find any Warrant to question the Tenants Power at the Common Law to Grant out to hold of himself And I am sure there is an express Resolution for it in Dyer the Words are thus in English A Man seized of a Mannor in Fee held of the King in Capite before the Statute of Quia Emptores Enfeoffs J. S. of part of the demeans in Fee without saying more the Feofee enfeoffs another to hold of the Feoffor and his Heirs by 26 s. and 8 d. Rent for all Services The Land clearly is not held in Capite And the first Mesnalty is not held of the Feoffor as of the Mannor by Knights Service The Statute of 34 E. 3. mentioned before by the Lord Cook is not in the least contrary to this For whereas before Magna Charta the King's Tenant might have alien'd as he pleas'd and Magna Charta's Provision Quod nullus liber homo det de caetero amplius alicui vel vendat alicui de terrâ suâ quà m ut de residuo terrae suae possit sufficienter fieri Domino feodi servitium ei debitum quod pertinet ad feodum illud interpretatively gave a Fine to the King when his Tenant alien'd which was not due before that great Charter was made The Statute 34. E. 3. gave the King Fines for Alienations made in the time of any King even before the making of the Charter The Lord Cook cites an Answer to a Petition in Parliament 18. E. 1. Rex non vult aliquem medium which is no more than that he would not grant his Tenant who then petition'd Licence to alien However he had not forfeited his Land if he had alien'd but the King might have entred and seized the Land in the Name of Distress for a reasonable Fine for the Trespass Which the Lord Cook takes for the better Opinion And if the Land were forfeited to be sure the indivisible Service could not have been multiplied as Mr. Hunt imagines 'T is certain that tho at the Common Law the King or any other Lord might have distrained for his Services reserved upon the Original Grant in the Lands of any inferiour Grantee as well as in the Lands of his immediate Tenants yet there was this Inconvenience that the Wardships and Marriages were not so considerable when the Lands were parcell'd out and the Lands of the immediate Tenant who only was to be in Ward or to be married by the first Grantor were of less value Therefore was that Provision by Magna Charta by the Interpretation of which the King was to have Fines upon Alienations But tho the Inconvenience of Tenants aliening to hold of themselves was taken away by the Statute of Quia emptores Terrarum 18 Edw. 1. which gave Tenants free Power to alien their Lands and provided that the Alienees should hold of the Alienors immediate Lords with an Apportionment of Services Yet Licences of Alienation being
Barones Regis were the King's Tenants in Capite Amongst which there were Knights at least And the Homines sui I take it were his great Officers and Justices These made a Select Council acting in Parliament and out of it either in a full Body or contracted by Agreement as I could easily shew But the Tenants in Capite were the King 's ordinary Council and therefore manifestly the Assize there was drawn up and advised by them in full Parliament with the Consent of all the Barons of the Kingdom under which in those ancient Times omnes quodamodo ordines Regni continebantur as Mr. Cambden observes But 't is observable that here 't is Homines sui or Regis to shew that the Justices and others who came not upon the account of Free-hold but as the King's Servants were not to be termed Barones sui A few Years before this there was a Summons for an Assembly at this very place and 't was manifestly no more than a Curia Regis 1. Whereas there were the Barones Terrae at the last above named to this were summoned only Tenants in Capite 2. Whereas then they were to exercise a Legislative Power de Statutis Regni this was only for a Judicial Power such as Tenants in Capite exercised by themselves for 't was only upon the Case of Becket 3. Whereas the former was called Magnum Concilium de Statutis Regni this Magnum Concilium as some call it was but Curia Regis Barones Curiae Regis adjudicaverunt eum esse in Misericordia As Hoveden informs us Now the Question is Whether those Tenants in Capite the Barones Curiae were Barones Regis which that they were I think is very obvious they being by reason of holding of the King obliged to attend at his Court And that these were the King's Barons or Barons of his Court or owing Suit and Service there must needs be synonimous But utterly to silence this Gentleman he grants that Hen. I. was crown'd in an extraordinary Convention of the People that is more than Tenants in Chief consented to that Change in the Succession Now that very King's Charter says 't was Communi Concilio Baronum Regni when among these he comes to mention such as held of him in Chief he calls them his Barons emphatically not but that all were his Barons in a remote sense Si aliquis Baronum meorum vel Comitum sive aliorum qui de me tenent mortuus fuerit haeres suus non redimat Terram suam sicut faciebat tempore Fratris mei This Relief it seems in his Brother's time was uncertain and immoderate and was by him reduced to the old Standard as 't was in Canutus his time as appears by the Comparison of the Laws of both The Earls Relief was eight Horses four with Furniture four without besides Arms and a certain quantity of Gold The Thanus Regis primarius as in King Canutus his Law or qui ei proximus as in Henry the 1st paid for Hereot or Relief which there were synonimous four Horses two with Furniture two without c. The Mediocris Thanus paid one Horse with Furniture and other things more or less according to the Custom of the Places under different Laws Here was Thanus or Baro Regis primarius the same with Baro Major and Thanus Mediocris or Baro Minor one of the alij qui de nobis tenent in Capite mentioned in King John's Charter And surely no Man will say that this Relief was not payable because of tenure in Capite By the 17th of King John it had become customary for the Relief to be paid in Money as appears by his Charter Siquis Comitum vel Baronum nostrorum sive aliorum tenentium de nobis in Capite per Servitium Militare mortuus fuerit relevium debeat habeat hareditatem suam per antiquum relevium scilicet haeres vel haeredes Comitis de Baroniâ Comitis integrâ per centum libras haeres vel haeredes Militis de integro feudo Militis per centum solidos ad plus et qui minus debuerit minus vel secundum antiquam consuetudinem feudorum Here Baro noster was manifestly the same with Thanus Regis in the older Laws and Baro de Baroniá integrâ with Thanus primarius or qui ei proximus The Mediocris Thanus Regis was the Miles or libere tenens one holding in Chief by Knights Service by whatsoever Proportion of a Knights Fee And by this time I think 't is evident that they whom Mr. Hunt supposes to have been the only Barones Regni were in a strict Sense the Barones Regis and but part of the Barons of the Kingdom 3. Whereas he Imagines that if a Tenant in Capite by Knights Service granted out to never so many they all owed the same entire and indivisible Service to the King and were his Tenants in Capite in this he must needs have been mistaken But that I may not seem to misrepresent his Sense I shall transcribe his Words and then endeavour to bring them out of their Clouds The Feudal Baronage says he was as large and as numerous as the Tenures by Knights Service in Chief which were capable of being multiplied several ways for every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee In this Paragraph there are three postulata 1. That Tenure by Knights Service in Chief was Tenure by Barony 2. That every Tenure by Knights Service had some entire indivisible Service incident to it 3. That this entire indivisible Service was multiply'd to the benefit of the King upon the Tenants aliening any part of the Fee The two first I agree to his Hands but dispute the third I conceive with good reason For upon the first view 't is evident that if the Grantee of the King's Tenant in Chief by Knights Service would before the Statute of Quia emptores terrarum have been a Tenant in Chief by reason of the entire and indivisible Service incident to the Tenure of his Land by the same reason the Grantees of Land held of the King in Chief by Socage or other Free Tenure would have been Tenants in Capite because of Fealty which is as indivisible an incident to all other Free Tenures as Homage or any thing else belonging to Knights Service And by Consequence upon this Notion since the King even before the pretended Conquest had ratione Coronae the Supream Signiory of all the Land of the Kingdom as the Mirror shews All the Land of the Kingdom would have been held of the King immediately before the Statute of Quia Emptores terrarum And then to be sure ever after since that provided that Lands shall be held as the Feoffor held over which by this opinion must always have been of the King
of settled Prerogative were not taken away from the King he not being named in the Statute By that Statute indeed if a Tenant in Capite aliened with Licence the Alience became Tenant in Capite for the Statute divided the Signiory But how it could be at the Common Law in any other Case than that of Copartners who are but as one Heir and plac'd in the same Relation to the Lord I cannot imagine I find in the Statute of Ireland this of Copartners is mentioned as the Law of England In Regno nostro Angliae talis est Lex Consuetudo quod siquis tenuerit de nobis in Capite habuerit Filias heredes ipso patre defuncto antecessores nostri habuerunt semper nos habuimus cepimus homagium de omnibus hujusmodi Filiabus singulae earum tenerent de nobis in Capite in hoc Casu Which shews that the Case of Copartners being a single Instance of the continuance of the same immediate Service notwithstanding the division of the Fee was an Exception out of a general Rule But I dare say no body that understands any thing of the Feudal Law as it has been received in this or other Nations will be of Mr. Hunt's Opinion in this particular 3dly Mr. H. would have done well to have answered the Objections against the supposed Conquest before he concluded for it and I shall take it for granted 't is a Question heartily begg'd 'till I find an Answer to these Arguments in Ius Anglorum ab antiquo 1. That the Histories of those Times prove undeniably that William the first came in upon Terms which he swore to at his Coronation and solemnly confirmed afterwards This indeed was a Conquest in the Language of those times as 't was distinguish'd from an Hereditary Right but no otherwise Thus in King Iohn's time a Man pleads that his Father had such a thing de Conquestâ—… suo viz. by his own Purchase or Acquisition 2. That Dooms-day-Book it self demonstrates that Men enjoyed their Lands under their old Titles And those Laws of St. Edw. which the Histories assure us were confirmed by Compact with William the first without particular Confirmation of their Estates 3. That we have later Records of the allowance of Titles derived from before the Norman Acquisition nay even of the whole Palatinate of Chester the Title to which was laid only in Descent even after King William's Confirmation 4. That ancient Historians and Dooms-day-Book confirm the Opinion of that Judg in Edw. III. time who informs us that William the first disseized only them that were in Arms against him and forfeited by opposing that Title which the Nation received Till Mr. Hunt has answered these Arguments amongst others in Ius Anglorum ab antiquo I hope he will not be angry that some are so critical that they will not call the first William Conqueror especially since Conquestor and Conquestus cannot now be reduced to their old peaceable Signification And therefore are by no means to be admitted unless we take the sense of the Judicious Lord Clarendon who rebukes Mr. Hobbs for insisting upon William the first his Title by Conquest as being what he himself renounced and abdicated if he ever had it If Mr. Hobbs says that unhappy Great Man Had taken the pains and known where to have been informed of the Proceedings and Transactions of William the Conqueror he would have found Cause to believe that that great King did ever dexterously endeavour from the time that he was assured that his Possession would not be disturbed to divest himself of the Title of a Conqueror and made his legal Claim to what he had got by the Will of Edward the Confessor whose Name was precious to the Nation and who was known to have a great Friendship for that Prince who had now recovered what had been his And he knew so well the ill Consequence which must attend the very imagination that the Nation had lost its Propriety that he made haste to grant them an Assurance that they should still enjoy all the Benefits and Priviledges which were due to them by their own Laws and Customs By which they should be still governed as they were during that King's whole Reign who had enough of the unquestionable Demesnes and Lands belonging to the Crown of which he was then possest without a Rival and belonging to those Great Men who had perish'd with their Posterity in the Battel with Harold to distribute to those who had born such Shares and run such Hazards in his prosperous Adventure And those Laws and Customs which were before the Conquest are the same which the Nation and Kingdom have been since governed by to this day with the Addition of those Statutes and Acts of Parliament which are the Laws of the Successive Kings with which they have gratified their Subjects in providing such new Security for them and Advantages to the Publique as upon the Experience and Observation of the Ages and Times when they were made contributed to the Honour and Glory of the King as well as Happiness of the People Many of which are but the Copies and Transcripts of ancient Land-marks making the Characters more plain and legible of what had been practised and understood in the preceding Ages and the Observations thereof are of the same Profit and Convenience to the King and People And upon Mr. Hobbs his Supposition that William the first at his Reception had dispens'd with the Subjection of the Ecclesiasticks by the Oath he took not to infringe the Liberty of the Church The Lord Clarendon has to the same purpose with the former or rather as evidence that there was no colour of a Conquest these words They who know any thing of that time know that the Oath he took was the same and without any Alteration that all the former Kings since the Crown had rested on a single Head had taken which was at his Coronation after the Bishops and the Barons had taken their Oath to be his true and faithful Subjects The Arch-bishop who crowned him presented that Oath to him which he was to take himself which he willingly did to defend the holy Church of God and the Rectors of the same to govern the universal People subject to him justly to establish equal Laws and to see them justly executed Nor was he more wary in any thing than as hath been said before that the People might imagine that he pretended any other Title to the Government than by the Confessor tho it is true that he did by degrees introduce many of the Norman Customs which were found very useful or convenient and agreeable enough if not the same with what had been formerly practised And the common Reproach of the Laws being from time to time put into French carries no weight with it For there was before that time so rude a Collection of the Laws and in Languages so Forriegn to
Post-script which affirms That nothing can be the Concerns of Men united in any Polity but may be govern'd and ordered by the Laws of their Legislature for their good At least this shews how in matters of Notion and naked Rights great Wits may not only differ from others but from themselves But let us give the Argument raised from Conquest its full weight and see whether Mr. Hunt maintains our present Establishment upon clearer Grounds than they do who search Antiquity about the Point The absolute Power and Government of the Nation was by the right of Conquest setled in William the First and his Heirs this being so could not be parted with For it must be either voluntarily or by Compulsion For the first Sir Robert Filmer will tell you No Man can bind himself in a matter depending of his own Will there can be no Obligation which taketh State from the meer Will of him that bindeth himself If by Compulsion then they will tell you for the same Causes that a private Man may be relieved from his unjust and unreasonable Promise as that it was so grievous or for he was by Deceit or Fraud circumvented or induced thereunto by Terrour or Force or just Fear or by some great hurt even for the same causes the Prince or Princes may be restor'd in that which toucheth the diminishing of his or their Majesty If it be said That this would as well hold in relation to the Peoples parting with that Right which was once in them they will tell you that no Government can be exercised but Monarchy That no other Government is owned by God Almighty in the New or Old Testament but Monarchy That while God's People were without a King in Israel there was Confusion and Anarchy If Adam was no Monarch at least God himself was and 't was a Theocracy And therefore admit Paternal Power was not Monarchical yet a Man might as well seize upon a People without a Government as upon a piece of Land unoccupied And when once he became Conqueror he was let into a Divine Right of ordering arbitrarily all things within that district and could not depart from it And though every Monarch was not absolute for the Jewish Kings were not yet every Monarch by Conquest must needs be so being received without any Conditions or Limitations Now Mr. Hunt himself going chiefly to shew that Paternal Power was not as such absolute does not answer this Hypothesis and the Examination of it depends upon such searches into the bottom of things and the shewing them naked in their Metaphysical Existences that very few Men can judg of the Controversy at least not so many as may of the meaning of Writers and Records carefully compared together and in many places freed from all possible Ambiguity but still the more ambiguous they are the more evidently will they overthrow all those Pretences upon which these Notions are built For if the Records and Histories give such doubtful Responses as Mr. Hunt imagines then indeed we must look only to the present Government Whereas if Dr. Brady and his Friends could shew those ancient Authorities to be plainly on their side they would have many that would improve their Notion of the House of Commons their beginning by Rebellion into an Argument that they ought to be cast off as Usurpers upon the Divine Right of the Conqueror Or at least yeild but that one Point of the Conquest they will tell you agreeably to Mr. Hunt's Assertion that a Government by Conquest is unalterable by any lawful Power And as that is wholly different from a Government by consent whatever implies or admits of the consent of Subjects to the passing any Law is contrary to the Fundamentals of the Government and is like a Superstructure of Hay and Stubble whiâ—…h ought to be consumed Others will tell you that the most free Concessions of a Conquering Prince or one claiming under that Title and not departing with his Dominion can no more oblige himself or his Successors in any thing that may restrain his Soveraign Will and Pleasure than a Man can depart with the freedom of his Will And the most seeming Restraints can be no more than temporary Provisions or ordinary Methods of Ruling which the Prince as he found occasion might remove notwithstanding the strictest Clauses of Perpetuity they being of like Interpretation with such Passages as related to the continuance of the Jewish Law or Oeconomy which was to have no place in the New Heavens and new Earth But if they should yeild that all Grants and Charters c. are binding to the Prince who made them yet Sir Robert Filmer tells us expresly The Laws Ordinances Letters Patents Priviledges and Grants of Princes have no Force but during their Life if they be not ratified by the express Consent or at least by the sufferance of the Prince following who had knowledg thereof These Notions have more Favourers perhaps than there are Men of Judgment or Honesty enough to shew the weakness of them Nor has Mr. Hunt that I know of directly encountred them with his two-edg'd Weapon But if the supposed Fact which they are built upon be prov'd to be no more than Supposition all the most specious Superstructures are but Castles in the Air which vanish like Smoak ¶ Inter Communia brevia de Termino Michaelis Anno 34. Edwâ—… EX pacte eorundem hominum Regi est ostensum quod cum Uilla praedicta Civitas Burgus seu Dominicum Regis non erictat ut hominâ—… Uillâ—… predicte tanquam Cives Burgenses seu Tenentes de Domino Regis in alâ—…quibus auxilus 〈◊〉 seu contributionil us Regi seu progenitoril us suis concessis taxari consueberunt seu talliari sed tantum cum Communitate Coâ—… War Taxatores tamen Collectores XXX XX in 〈◊〉 praedicto homines praedictos tanquam Burgenses tarari XXX de bonis rebus suis ad opus Regis levare nituntur in ipsorum hominum â—…ampnum nori medicum gravamen depaâ—…perationem manifem Et quià Rex non vult quod iidem homines indebi è pregraventur in lâc parte â—…andat 〈◊〉 quod scrutaâ—… Rotulis Memorandis de consimilil us â—…enibus factis in Uillâ—… praeâ—…â tam tempore Regis quam progeâ—…orum suorum praedictorum si eis constare poterit evidenter quod praedicta Willa de Coventâ—… non siâ—… Civitas Burgus aut Manerium de antiquo Dominico Corone Regis ut praedictum est quod dicti homines simul cum aliis extra Civitates Burgos Maneria praedicta manentes ad huâ—…usmodi prestationem Regi faciendam â—…ari debeant semper haâ—…enus taâ—…ri conâ—…ueverunt tunc ipsos homines ad prestationem Regi ratione praedictae concessionis de XXX Regi ratione faciendum per praedictos Tatatores Collectores distringi non permittant aliter quam totis temporibus retroactis in hujusmodi
Lord HOLLIS HIS REMAINS BEING A Second Letter to a Friend Concerning the JUDICATURE OF THE BISHOPS IN PARLIAMENT In the Vindication of what he wrote in his First and in Answer to a Book since published against it Entituled The Rights of the Bishops to judge in Capital Cases in Parliament cleared c. It contains likewise part of his Intended Answer to a second Tractate Entituled The Grand Question touching the Bishops Right to Vote in Parliament Stated and Argued To which are added Considerations in Answer to the Learned Author of the Grand Question c. By another Hand And Reflections upon some passages in Mr. Hunt 's Argument upon that Subject c. By a Third London Printed for R. Janeway 1682. The GENERAL PREFACE THE name of the Lord Hollis is so well known both to the Active and Contemplative part of Mankind that no more need be said to recommend any Papers to the World than to give Assurance that they were his and by him Designed for the Press I am perswaded that most who Read the first of these ensuing Treatises and have been conversant in that Great Man 's Writings cannot but acknowledge this for the Genuine product of his large Soul and close way of Reasoning But besides the inward testimony of the thing it self we have other sufficient proof of its being Authentick from such as had the Honour of a familiarity with that Extraordinary Person in his life time to whom he communicated his thoughts on this Subject as he from time to time committed them to Paper He lived not to finish any more of his Answer to the Grand Question c. than what is now published but often affirmed that he had Conquer'd all the difficulties in it Nature was spent and all the Oyl of his Vital Lamp was consumed before he could advance further with his Pen And when we consider that he had past the Age of Man having arrived to his eighty first year and that he still continued Writing for Eternity when he was upon quitting this Mortal state we may well say that his Life went not out in a Snuff as most very aged men expire but that he ascended to Heaven in a bright flame which still continues to enlighten us that remain here below Surely I cannot be taxt of impertinence if I here strew upon his Herse some of Cicero 's happy flowers since one would think they sprung up now for this very purpose Est etiam quietae purae atque eleganter actae aetatis placida ac lenis senectus qualem accepimus Platonis qui uno octagesimo aetatis anno Scribens Mortuus est Let no Man say that it misbecame him to spend his time thus when he was posting to Eternity He had found Truth to stand in need of his Defence and his own Reputation was called in question upon his appearing for it And next to Devotion which without doubt had a due share of his time nothing perhaps can give a greater foretaste of the joys of Heaven than the sense of a Mans having fully vindicated Truth and his own good name The Author of the Considerations is likewise a person of great Age and well known for his great Learning Nor would his Name if made publick give any small Reputation to his Book But he is so sincere a Lover of Truth that I dare say he would not have any Man byast with a previous disposition to believe that there is more force in his Arguments than he finds but leaves them to their natural energy For me to pretend to give the Characters of such Authors as these two would he a presumption beyond what I am guilty of in putting some Papers of mine in the retinue of theirs But though my Character cannot do sufficient Right to either yet a Confutation of Mr. Hunt 's Errors may be a piece of Justice to the Lord Hollis who has been much undervalued by this warm Author And as Mr. Hunt is a Man justly in Reputation for his Parts and Literature unless it be shewn that his Authority is of no great weight in this sort of Learning he might wound by his Censure where he doth no great feats with his Argument I doubt not but he will pardon my freedom with him since he has used as much or more with what I have formerly published to the World Indeed by his Preface one would think that he had wrote before I had set out any thing relating to Antiquities But then he must needs have understood by way of Prophecy what I would say about the Curia Regis great part of which he makes use of and concerning the explication of King Iohn's Charter and several other things which he opposes I am sensible that enough has been said by the Two learned Authors on whose Papers mine attend to clear the Question concerning the Bishops Voting in Capital Cases in Parliament from all the dust raised by Mr. Hunt But he having put things together in another manner than had been done before some might think it requisite that there should be a particular Answer given to every thing of his that bears the face of an Argument both upon the account of the weight his Assertions may carry with many and the want of Judgement in others to apply what may be found in these Treatises to silence all Objections in how different a manner soever they may be repeated And truly this I had done according to my Talent but considering that those things are wrote for the Learned whose Judgements are too delicateisoon to rellish the same dish drest over and over again I thought it convenient to suspend the publication of what has occurr'd to me upon that Subject Nor shall I at present interpose in that Controversie any further than to free my self from a two-horned Argument which I were very dull not to perceive my self to be concerned in if not solely aim'd at by it Having first taken a difference between the Great or General Council of the Nation to which Proprietors of Lands as such had right to come till 49 H. 3. And the Curia Regis compos'd of the Kings immediate Tenants and Officers I had occasion to enquire into the nature of the Curia Regis mentioned in the Constitution of Clarendon which obliges the Ecclesiastick Tenants in Capite interesse judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem This I took to relate to Judgements in the Curia Regis as such And the ground of coming to the Great or General Council being different from that of coming to the Curia From thence I conceived might be gathered a sufficient Reason why the Bishops might have been allow'd to vote in a Legislative Capacity in cases of Blood And yet that practice might no ways extend to warrant their sitting as Iudges upon such Causes either when there was a bare Curia de More or when it sat within the General Council of the Kingdom more
than the Suitors at the Curia being Summon'd The Legislative power they exercised as Members of the General Council or Parliament And the Iudicial power as Members of the Curia and were Members of the Curia as they held Lands of the King in Chief Whereas Men came to the Parliament generally upon the account of property in Land without consideration of tenure so it were free In short a Man may have that in an extraordinary capacity in Parliament which he has not there in an ordinary I likewise held that Becket was try'd for Misdemeanors only though according to the Language of those days they were crimina Laesae Majestatis and that the Tryal was in a bare Curia Regis when no more than Suitors to that were summoned Mr. Hunt 's Argument upon this follows If it was the Curia Regis wherein the ordinary Justice of the Nation was administred and not the Parliament was intended in the Assize of Clarendon in which the priviledge and indulgence under the quosque was allow'd to Bishops then the Assize of Clarendon is unduly urg'd against the Bishops judging in Cases of Blood in Parliament c. And consequently by the Assize of Clarendon the Bishops have no leave to withdraw If the Court wherein Thomas Becket was tryed was the Curia Regis then the Bishops judging in that Court in that cause doth most clearly declare that being a case in point that the quousque was an indulgence which they might use or wave Now to my thinking this seeming irrefragable Argument has no real force For not to mention his wrong interpretation of the Constitution of Clarendon nor yet his mistake of the Fact in relation to Becket 's Tryal as if he were Tryed for a Capital Offence In both which I doubt not but he will receive Conviction to the contrary from these two Learned Authors I am bold to say that there is no manner of consequence in the first Branch of his Dilemma which is the only thing that can lye upon me to answer And truly I conceive that it by no means follows that because the Curia Regis in the Constitution of Clarendon is not the whole Parliament but only that Court which either when a Parliament was held or when only a Council of Tenants in Capite or Lords assembled had the sole exercise of the Judicial Power that therefore Iudgements in Parliament before the Lords such as were Members of the Curia are not affected by that Constitution any more than we can now say the House of Lords cannot be concerned in any matter which does not belong to the whole Parliament I shall only add three Observations which may go far to put an end to this Controversie 1. That part of the Constitution of Clarendon which says of the Ecclesiastick Tenants in Chief Debent interesse Judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem was part of the avitae consuetudines ecclesiasticae If it had been a New Law then indeed whatever was not expresly forbidden were matter of Liberty But it being only in affirmance of the Ancient Law their Liberty went no further than the usage which was to be present only till such Causes came to be tryed 2. If Precedents are as Mr. Hunt censures them like an Oracle that will always give a Response agreeable to the Enquirer and Consulter then we must as I formerly did look to the Law in the Case without entring into the large Field of Precedents 3. If the Canons require the Bishops not to concern themselves in the Tryals of Capital Causes and those Canons have been sufficiently received to become the Law of the Land which these Authors prove undeniably then the Bishops must ever be supposed to have been absent when such matters came in question in Parliament unless they are mentioned there by name and cannot be comprehended under words common to them with the Temporal Lords any more than we can imagine that the Popish Lords who are excluded the Lords House by Act of Parliament yet still are Peers are Parties to any Judgement given by the Peers there SIR THE former trouble I gave you upon this Subject you pulled upon your self by desiring my opinion in it but for this I now give you I must beg your pardon it being singly upon my own account to do my self â—…ht and justifie what I then wrote to you against several aspersions cast upon me in a Pamphlet entituled The Right of Bishops to judge in Capital Cases in Parliament c. made it seems by the same person who had set out the other Pamphlet intituled The Honours of the Spiritual Lords asserted c. Of which I gave you some account in a Postscript to my former Letter and I think without any sharp reflection either upon that Author or his work The most I said was When I had instanced in three notorious falsifications of his The first is p. 112. where he quotes Mr. Selden to prove That the Spiritualty made their Proxies in Capital Causes in more Parliaments than the 21 R. 2. for that they did it likewise in the 2 H. 4. and 2 H. 5. which I shew was a mistake and only said he could not find it so in the Record it self but that he took it upon trust out of the Margin of Mr. Seldens book of the Priviledges of the Baronage p. 125. where there is such a quotation of the 2 H. 4. and the 2 H. 5. but wholly misapplyed by our Assertor of Honours for Mr. Selden alledges that Precedent to shew that whereas 2 H. 5. it was by the then Earl of Salisbury assigned as an error in the Attainder of his Father who was condemned of High-Treason in the 2 H. 4. because it was done Sans Assent des Prelates which are the words of the Record Without the Assent of the Prelates by the way speaks nothing of Proxies it was then adjudged to be no error and his Petition rejected which in truth is a strong Argument to prove that the Prelates had no right to be present at such Tryals and Judgments which is the main Question between us And though he being of another mind had maintained his opinion by so gross a prevarication I was so far from retorting it upon him with any bitterness saying It was disingenious and a suppressing of truth and not setting things down faithfully which is his ordinary language concerning me Or with insipid jeers saying I wear a sharp Sword a Trenchant Toledo as one of the younger house of great Alexander and that he brings me to the Sun like Alexanders Horse and telling of the Magical combate in Apuleius and a City of Birds in Aristophanes and such other scurralous passages as his Book is full of which shews the sweetness of the Gentlemans nature and the goodness of his cause which he maintains only by railing and false assertions Whereas I rather lessened his fault saying only that he was mistaken by being
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
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
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
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
what Men may say of themselves or passeth under common Estimation of Men but what upon serious Examinition of the Question shall be found to be true I shall endeavour to make it appear that many who held Lands in Cap per Baroniam or per servitium Baroniae were not enobled in Blood nor had Right to demand their Writ of Summons as the Noble Barons had but were to expect the King's Will and Pleasure and were often left out These were secundae Dignitatis Barones or Barons by Tenure only of which some might probably be adopted into the Nobilitas Major afterwards as Barones adscriptij yet at first were not so and this was to them an Honour but to the Bishops a Burthen who held their Lands free before and had no Honour conferred upon them as the rest had For tho it be true that all the great Noble-Men held per Baroniam yet was it not their Tenure which gave them that Right as I shall shew by and by These second sort of Barons were called Barons Peers because they held of the King in Capite as his immediate Free-holders and were stiled Barones Regis for the Word imported then no more but Men holding of the King's Person in Capite These subdivided their Lands to others under the like Military Service these were likewise called Barons from their appearing at their Lord's Court called the Court Baron and Baronagium became a Word of general Signification comprehending those liberè Tenentes or Sutors to the Court Baron who together with the King 's immediate Tenants who were the Barones Regis that is the Kings immediate Free-holders made up the Communitas Angliae and comprehended all Persons except such as held in Villenage Besides these thus made by the King there were others some found here some brought out of Normandy of great Nobility and Extraction who had of their own great Possessions as Earldoms and Counties in this Country and others brought over with the Conquerour out of Normandy of an Inferiour Rank to whom he gave the like Honour out of the Lands of those adhered to Harold which all held of him per Baroniam but by Creation were many of them afterwards made of a higher Rank and were called Comites Regis and Majores Barones Regni they being possessed of the like Honours in their several Countries before The Bishops I conceive were not under any of these Ranks but were called to Parliaments ratione Episcopalis Dignitatis not ratione Tenurae only of which they complained as a Burthen Creation they had none to any higher Honour than Episcopal their Tenure could not give them a greater Honour than to be Barones minores or Barons Peers Neither can I find in any Act of Parliament or Record that they were called Lords before the time of Rich. II. and then first called Lords Spiritual to shew their Honour arose from their Spiritual Function and not from any Temporal Possessions nor the name of Barons applied to them except by themselves who perhaps finding the Burthen of their Service which before was free were willing that others should give them the Title tho there was no more reason that their Tenure by Baron Service should make them Barons than that Knight Service should make the Tenant a Knight Having thus cleared my way I shall in the next place shew that these Barones Minores or Barons Peers were sometimes summoned by Writs to Parliament and sometimes left out The Abbot of Feversham one under the same Rule with the Bishops was summoned to 12 Consecutive Parliaments as Tenant in capite per Baroniam and then left out 19 Edw. 2. Rot. penes remem Dom. Regis in Scall Thomas de Furnival had been sumoned to 30 Parliaments and yet upon an Amerciment in the Exchequer pleads he was no Baron now except he had held in Cap. per Baroniam or part of a Barony he could not have been summoned at all as a Member of Parliament Whether his Plea were allowed doth not appear upon the Record but by this and some other Records in my hand to the same purpose it seems to me that many that held per Baroniam were not Barons but at the best Bannerets or Barons Peers I cannot find by my utmost search that any thing hitherto hath madeit apparent that Baronies were ever annexed to the Possessions of the Bishops but Men have generally taken it for granted that they were so They say that William the first soon after his Reception to the Crown of England did introduce new Tenures and established Counties and Baronies and did then order that Bishops and the Parliamentary Clergy should hold per Baroniam or sicut Baroniam which the Learned Mr. Selden saith in the language of those Times signified the same thing For he saith that tenere de Rege in capite and habere possessiones sicut Baroniam and to be a Baron according to the Laws of those Times are synonimous Seld. Tit. Hon. part 2. pag. 704 Cook Hakewell and others say they hold per Baroniam But the Proofs any that I have met with offer to make good this Division by William or that Tenure per Baroniam did infer more when a minor Baron in my Judgment are not cogent What they urge is taken out of Wendover and from him transcribed by Matth. Paris He first greatly blaming the Act of William hath these Words Episcopatus Abbatias omnes quae Baronias tenebant catenus ab omni servitute saeculari libertatem habuerant sub servitute statuit militars irrotulans singulos Episcopatus Abbatias pro voluntate suâ quot Milites sibi successoribus suis Hostilitatis tempore voluit a singulis exhiberi That is He established under Military Service all Bishopricks and Abbeys which held Baronies and at that time had freedom from all Secular Service inrolling them all and appointing according to his Pleasure what Souldiers in time of War they should severally find unto him and his Successors Mr. Selden finding the contradiction in these Words that their Baronies which should have kept them as he thought free from Secular Service as the words import were the only thing that bound them to it thinks there ought to be a Parenthesis after Baronias in purâ perpetuâ eleemosina eatenus ab omni servitio saeculari c. and makes the words run thus All Bishops and Abbeys that held Baronies in Frankalmoign and in that respect freed from all Secular Service c. And backs this Conjecture by the Authority of Mr. Cambden who he conceives might have seen some Copy where those words were But he need not have put himself to the trouble of that Conjecture had he translated eatenus at that time as the word signifies and never that I know in that respect However finding further that this would not take away all doubt because the words refer not to all Bishopricks and Abbeys but to such only as then possessed
Opinion have been some Heraulds and have contended that by the Writ of Summons the Person was enobled and if his Descendents were so called for three Descents the Blood was enobled I conceive this Opinion to be erroneous For it is against a Maxime in Law that the King should pass any thing by Implication and as unreasonable to believe he might not have Liberty to require the Counsel of his Subjects without conferring an Honour upon them he did not intend Besides it will hence follow That during divers Parliaments of Edw. 1. almost all in Edw. 2. and many in Edw. 3. all the Judges King's Serjeants and many other were enobled for they had the same Writ the Barons had yet were never accounted such nay were often after such Summons omitted The known Case of Mounthermer is very pertinent to our purpose who having married the Relict of the Earl of Gloster who had a great part of the Earldom in Jointure her Husband was summoned as an Earl during the Minority of her Son but after he came of Age Mounthermer was summoned as a Baron during his own Life and after wholly omitted in his Descendents If it be said that his Summons enobled him but in regard his Descendents were not called the Blood was not enobled what will they then say to the Case of Radulphus de Camois who was summoned and his Son after him in 7 Edw. 2. yet in 7 Rich. 2. Claus. Memb. 32. in dors Thomas Camois the Grand-child was chosen one of the Knights for Surrey and discharged by the King 's Writ because he and his Ancestors were Baronets and the said Thomas was summoned and served in that Parliament not as a Baron but as a Barons Peer or Baronet which was an inferiour sort of Honour and signisied the same thing that Tenants in Cap. did in the time of King John But that these sorts of Peers were sometimes summoned and sometimes omitted at the King's Pleasure The only difference being that which appeared when they came thither the one appearing viz. The inheritable Barons in their Robes the others not but in Habits different from the Barons Now that there was this difference is made plain by those Authorities shall be produced under the next Head which is that there were a sort of Persons called Barons who were so by Tenure only that is to say who held of the King in Cap. and had such a number of Knights-fees and upon that account were summoned as Barons or rather as Barons Peers Mr. Selden seems to say in his Tit. Hon. Part 2. Sect. 17. pag. 690. That all Honorary Barons of that time whereof he speaks were for ought appears Barons only by Tenure The words are cautelous and his Expressions as became a Learned Man warily set down First Honorary Barons viz. Such as had the Honorary Name of Barons but not the Blood for such I take his meaning to be because he gives us no Definition of Honorary Barons nor why if it be admitted that Barons had their beginning from the number of Knight's fees which they held why Earls had not the like beginning who held of the King in Cap. as well as the others Now that there was a clear distinction between Barons enobled in Blood and those that held only in Cap. the one we find called Barones Majores the greater Barons the other Barones Minores lesser Barons The red Book in the Exchequer or Remembrancers Office attributed to Gervasius Tilburiensis speaks of it as an undoubted Truth Quidam c. Some hold of the King in Cap. things belonging to the Crown to wit greater or lesser Barons Quidam enim de Rege tenent in Capite quae ad Coronam pertinent Barones scil majores seu minores by which it appears they both held of the King in Cap. yet were distinguished into greater or lesser Fitstephens in the Life of Thomas of Becket Chap. 11. mentions Secundae Dignitatis Barones Barons of a second Degree Matth. Paris Anno 1215 hath these words Summoneri faciemus Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per Literas nostras Et praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Cap. tenent de nobis ad certum diem Here we see two different sorts of Barons the one summoned by the King 's Writ the other by the Sheriff The first sort by Writs sealed by the Chancellor the rest by Writs to the Sheriff yet both held in Capite But certainly omnes qui de Rege tenent in Capite must be understood with a reasonable Restriction For it will be very evident to any Man who shall examine the Inquisitions post Mortem remaining in the Tower that much Land held per Baroniam was in the Hands of private Men who were never reputed Barons neither could these Inquisitions be understood of Tenures from Mesne Lords and not from the King because all Tenures per Baroniam were Tenures in Capite which must be from the King Besides if the Tenure of Land made a Baron Why were not the Purchasers of those Lands by the King's Licence of Alienation ever after the Stat. of quia emptores Terrarum called to Parliament as Barons The Case of the Earl of Arundel 11 Hen. 6. will not mend the matter for his Ancestor was created by Writ and the Castle entailed upon him so that he was called to Parliament not by having the Land only but by virtue of the Creation of his Ancestor and the Entail upon it In so much that I still conceive that the ancient Nobility from whatsoever beginning it arose was made inheritable by Creation and Investiture of Robes upon which sometimes followed Cnarters which directed how it should descend and the Confusion in Historians hath proceeded from their not distinguishing Barons from Barons Peers so called not from their Parity in Honour but in Estate and Tenure but wanting Investiture were called or left out at the Pleasure of the King This Distinction is clearly mentioned in the old Modus tenendi Parliamentorum printed by Mr. Hakewell Summoneri debent omnes singuli Comites Barones eorum Pares All Earls and Barons ought to be summoned as also their Peers I know the Authority of this Treatise hath been questioned by some Learned Men but by none with more violence and less reason than by Mr. Prin in his fourth part of his Register of Writs p. 591. To which easie Answers may be given if we consider the Translators out of the Saxon Tongue might easily translate Words which they thought of an equivalent Signification by words in use at that time as Wittena Gemot for Parliament and the like Others of as great Judgment have as strenuously defended the Authority of it Sir Edward Cook in his Jurisdiction of the Court of Parliament strongly defends its Antiquity and Mr. Hakewell pag. 135.
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
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
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
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
in Convocation as I have sufficiently I hope made appear pag. 19 20 c. of this Discourse As also that they had the Appellation of Barons and Peers not that they really were so which must have enobled their Blood but in respect of their Tenure in Capite sicut Baroniam or per Servitium Baroniae and for the most part so called by themseves only Our Author's Suggestion p. 151. that they sit in Parliament in a double Capacity as it is new so is it not solid He saith when they sit in the House in a judicial way they sit only in the Capacity of Temporal Barons and that this appears by the Constitution of Clarendon where the King requires their Attendance as his Barons But that in their Legislative Way they have a farther Capacity as representing a third Estate in Parliament I say this Fancy is new for I do not believe any before him look'd upon them as representing a third Estate in Parliament and not representing it I know they have been said to sit in respect of their Possessions which are Temporal in their own nature but not so when given Deo Ecclesiae but that they sate in any other Quality than Spiritual Persons I never heard nor can conceive Methinks if they have a Capacity to sit in the Quality of Temporal Barons they should also have a Capacity to change their Spiritual Robes and put on Temporal The Constitutions of Clarendon he saith require their Attendance in Judicature as his Barons and from thence would infer they sit in the Quality of Temporal Barons But how doth this follow I hope they may sit as Spiritual Barons But when all is done this Allegation of his is not sincere for the words are Debent interesse judiciis curiae Regis sicut caeteri Barones or cum caeteris Baronibus that is to say 't is their Duty to be present in Trials in the King's Court with the other Barons or as the other Barons are there present which words are far from inferring that they sit there in the Quality of Temporal Barons no more than the Judges rather that they sit not as Barons at all but only amongst them who are so It is evident therefore that his first Argument drawn from the Constitutions of Clarendon is not solid His next Suggestion that they are a third Estate in Parliament if by Parliament he mean their Convention in Convocation from the issuing out of Writs to the Guardian of the Spiritualties in the Vacancy of the Episcopal See I shall not contend with him only I think it from hence plain that they have Right to sit as Members of the Convocation properly where with the rest of the Brethren they make up a third Estate in which Writs there is generally a Clause of Praemunientes added to shew that other Clerks are to be chosen to sit in Convocation for which reason the Guardians in their Vacancy have their Writs directed to them lest the Convocation should not be full Now how this can prove them a third Estate in the Lords House I should be glad this Author would instruct me so that his Conceit of their sitting there in a double Capacity is of no weight and all his Precedents cited to that purpose might have been spared which do not in the least measure prove that the Bishops sit in the Lords House as a third Estate because Clerks shall be chosen to sit in Convocation by Writs directed to the Guardians of the Spiritualties where there are no Bishops or when they are beyond Sea rather evinces the necessity of a Convocation to meet in Consultation as to Ecclesiastical Matters which are only proper for their Function Lastly Let it be observed that his Quotations out of the Author of the Letter pag. 93. as to Doctor Standish his Case are mistaken the Author's words are the Judges said The Lords Spiritual have no Place in Parliament by reason of their Spiritualties in which respect in truth their place is in Convocation but by reason of their Temporal Possessions that is holding their Tempoporal Possessions in nature of Baronies The Scope of that Book is to shew that a Parliament might be held without them who indeed were no Barons but had liberty to sit among them by an Indulgence in respect of their Possessions And at last I am perswaded our Author will hardly be bound by that Opinion for if that be true how can they sit there as a third Estate if their Right to sit there be only as Temporal Barons This Authority is only from Kelway 7 Hen. 8. 184. See the Case at large in Burnet Our Grand Questionist goes on and endeavours to prove and clear that intricate matter as it hath been made touching the Interest the Clergy then had in Parliaments as well as Convocations but chiefly to prove that all the Interest they had in Parliaments was not meerly upon the account of their Temporal Baronies which the Bishops and many of the Abbots then had this he saith is the great but common mistake of the Author of the Letter 'T is first to be observed that he hath not proved that to hold Land by Baron-Service and to be a Baron is all one which by me is left doubtful as appears by what is said in the first Chapter of this Treatise Neither see I any reason why tenere per Baroniam should make a Baron more than Tenere per Militare Servitium should make a Knight Secondly That what he now saith is only a Pursuit of his precedent Conceit that the Bishops sit in the Lord's House in a double Capacity because as he saith there is a Distinction made even in Parliament between the several Estates of the Clergy and Laity How far this is argumentative and how far his Precedents warrant what he affirms I shall examine by and by only in the mean time would desire him to tell me whether they could come to Parliament at all without first receiving the King's Writ and in the next place Whether the King 's Writ imply any other Capacity than as Spiritual Persons holding their Possessions per Servitium Baroniae and voting among the Lords in respect of their Lands which are in their own nature Temporal Estates in the Hands of Spiritual Persons but by their Dedication to God made spiritual also which is as much as can be drawn from what Mr. Selden saith in the place quoted by our Author pag. 151. That they met as Counsellors in the Saxon's time in their Wittena Gemot I will not deny but whether by virtue of any Writ Summons or rather by general Allowance as Counsellors or what other way he cannot prove Records there are none or very few and Historians give but a dark account of those Times and things then one but which way soever they then sate certainly by William I. their right of sitting was much altered the Frame of things being in some measure altered also in so much that they
bring in the Chancellour and Treasurer and such like Officers and that all Estates should enjoy their Liberties 15 E. 3. N. 6 7 8. Here was indeed a Matter concerning Trials of Noble-Men had under Consideration but never reduced to any Law as the Practice of subsequent Times and the late Bill of the Lords about Trials do enough manifest But doth it not appear by this Record that the Bishops were not reckoned Nobles of the Land when he finds the Chancellour and Treasurer and such like Officers attempted to be brought in at that time and so not to have had any Right before But saith our Author it after follows that they may not lose their Temporalities Lands Goods and Chattels Now none were capable to lose their Temporalities but Bishops therefore this Law must have respect to them as well as other Nobles of the Land The Answer to this is very easy that the Clergy who had then all Power did endeavour to bring in their Fellows the other great Officers who were almost all Church-men Simon Langham Arch-bishop of Canterbury was Chancellour William Molso Dean of St. Martins le Grand Receiver and Keeper of the Kings Treasure and Jewels with many others as you may find Baker p. 141. These had Temporalities to lose and such Officers the Church always hoped to have had of their own Tribe but as I said before of this Attempt came no other Effect than to shew their aspiring Thoughts And whatever Opinion the Author of the Iurisdiction of the House of Peers is of as to the Roll of 4 Edw. 3. I believe the Law at this day will not be so taken that a Chancellour being no Peer shall be so tried by reason of his Office I am sure my Lord Keeper Bridgman being no Peer never voted in the House of Lords and the present Lord Chancellour when he gives his Vote goes to his place as a Baron See Hakewell p. 114. Ancient Customs how these great Officers are placed in Parliament when they are Peers and when not and certainly if their placing be different their Trials ought to be so too Neither can it seem reasonable to any considerate Man that a Person though such an Officer should not be capacited to give his Vote as a Baron and yet by virtue of his Office should be tried by Noble-Men Therefore I must take leave to deny what he affirms that they are Peers by virtue of their Office or that they have Right to be present in Parliament in all Cases of Judicature so as to concur in Sentence with the Nobles of the Land as our Author affirms pag. 132. The King may make whom he pleases Chancellour and the Statute assigns his Place but he cannot vote there without the King's Letters Patents to that purpose as I conceive See Old Modus Hakewell p. 14. I have in the first Chapter of this Treatise spoken largely to that Point and shewed in what sense a Bishop may be called Peer of the Realm And pag. 90 and 91. have handled the matter of Proxies therefore may pass over the Case of Arch-bishop Arundel which our Author proposes pag. 128. To the Case of William de la Pool I have spoken before only shall here observe that the submitting his Cause to the King was no waver of his Peerage for the matter never came to any formal Issue consider thâ—… Case of Nicholas Segrave in 31 Edw. 1. Ridley p. 266. who being accused of many Crimes Segrave being summoned thereunto appears in full Parliament confesseth the Fact and submits to the King This was no Waver of any Legal Trial by his Peers nor any disrespect to the Lords who might otherwise have ordered the summoning a Jury to try the Fact but by the King's Pardon that labour was saved The like may be taken notice of in that famous Case between the Earl of Hereford and Essex against the Earl of Glovester and Hertford in 20 Edw. 1. Riley p. 74. Where upon a very long pleading the Case in effect proves to be but this The Earl of Hereford complains to the King of great Robberies Depredations and Murthers committed by the Earl of Glocester in his Lands in Brecknock after the King's Inhibition The King for Remedy of this appoints the Bishop of Ely William of Valence his Uncle Iohn Mettingham and Robert Hertford to hear the Complaints of the said Earl and also the Answer of the said Earl of Glocester and his Servants to the Complaint of the Earl of Hereford and to summon a Jury for the Trial of the same and also commanded Robert Tiptoft Iusticiario suo de Westwell to be there present and to summon the said Delinquents to be before the said Commissioners and that Enquiry should be made per Sacramentum tam Magnatnm quam aliorum proborum Hominum Legalium de partibus Walliae comitat Glocest. They that is the Magnates which it seems were Noble-Men excepted against the taking an Oath and said 't was unheard of and that they would do nothing sine consideratione Parium suorum The Jury give in their Verdict against Glocester the Parties all submit to the King who by the Advice of Arch-bishops Bishops Earls Barons and the rest of those who were of his Counsel declare that the Earl of Glocester had forfeited his Liberties c. The words are Videtur tam ipsi Dom. Regi quam caeteris Praelatis Magnatibus reliquis de Consilio ejus quoad Comitem Glocestriae quod Libertas sua praedicta viz. totum Regale in Terris suis praedictis de Mergannon cum pertinentiis pro se haeredibus suis foris facta est ratione delicti praedicti c. In this Record there are many things Observable First The Bishop of Ely here mentioned was not a Judg in this Case between the two Earls but joyned in Commission with others who were empowered to summon a Jury to enquire of the matter of Fact not to condemn either Party but was only in the nature of an Inquest or Grand-Jury in order to a Trial. 2. That Noble-Men Magnates such as refused to take an Oath were returned of the Jury 3. That the Verdict was given in to the Commissioners notwithstanding some of the Jury were not sworn 4. That the Jury was summoned out of several Counties viz. Glocestershire and Wales Lastly and that for which I have chiefly produced it that this Submission of both Parties to the King was no waver of their Peerage Neither doth it appear that this Award made by the King with the Consent of those Prelates Earls c. was made in Parliament tho it be inter Placita Parliamentaria but only by such private Counsellours as the King thought fit to make use of in that Affair That it was no Parliamentary Judgment is evident from these two Reasons First The putting themselves to the Reference of the King was no putting themselves upon any Trial by their Peers because that should have been done only
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
that of the Nation British Saxon Danish and Latine almost as unintelligible as either of the other that if they had been all digested into the English that was then spoken we should very little better have understood it than we do the French in which the Laws were afterwards rendred And it is no wonder since a Reduction into order was necessary that the King who was to look to the Execution took care to have them in that Language which himself best understood and from whence issued no Inconvenience the former remaining still in the Language in which they had been written CHAP. III. That Mr. Hunt himself in Effect grants that more than Tenants in Chief had right to come to the Great Council of the Nation in which the Nation 's Rights were involved I Do not deny says he but upon a Change in the Succession to the Crown there might have been in this time extraordinary Conventions of the People to declare their universal Assent for better assuring such Successors discountenancing the real Prince and preserving the Peace as in the Case of William the second Henry the first King Stephen and King John c. with an assent of such an Assembly as this at least King John should only if so have made his Kingdom Tributary to the Pope 1. Here he grants that sometimes more than Tenants in Capite assembled at Council 2. That to some purposes such Assemblies were needful not only to quiet the Minds of the People but to transfer over a National Right For he says if ever there were extraordinary Conventions which he owns to have been in some Cases then King John could have made the Kingdom Tributary only in such a Council viz. an extraordinary Convention Wherefore Government being as he says Rei Publicae Communis Sponsio he grants that the Government here was not absolutely in the King and his Tenants in Chief For if it had they might have disposed of all the Nation 's Rights Wherefore in effect he yields That the Men of that Order were not chosen once for all interpretatively by the People in their Consent to the Government But further if he yields us those Authorities which shew that the People of the Land the Free-holders used to assemble for the declaring their Assent to the Supream Governour with what colour can he set aside those Authorities which mention Assemblies to other purposes in as general Terms If an ordinary Free-holder was under the word Populus at an Election to the Crown or Recognition of a Title how comes the Signification to be restrained at other times Will not Vulgus Plebs Populus minor Laici mediocres and the like denote more than Tenants in Capite as well at one publick Assembly in the some King's Reign as at another Unless a prior Law be shewn which excludes the Commons from one Council but admits them to the other But I cannot find any thing more in this Supposition than a downright begging the Question Indeed if William the first made a Conquest of England so as that he divided out all the Lands of the Kingdom to be held of him in Chief And the Alienees of Tenants in Chief still held immediately of the King neither of which will readily be proved then indeed but not till then the Populus Minor at the Councils would be taken for the Tenants in Chief only But the admittance that the presence or consent of more than Tenants in Chief was at any time needful to any Act of rightful Civil Power wholly destroys the supposition of a Conquest unless we can believe that the conquer'd ought to give Laws to the Conqueror or that notwithstanding any kind of Establishment the dernier resort and Supremacy of Power is always in the People Which is a Notion that would unsetle all Governments making them precarious Whereas he himself tells us No Government can be legally or by any lawful Power chang'd but must remain for ever once establish'd CHAP. IV. That even according to Mr. Hunt's Notion of Tenure in Capite all Proprietors of Land as such had till the 49th of H. 3. right to come to Parliament THis though never so strange I think will be granted me that he does if he makes all the Free-holders of the Kingdom Tenants in Capite per Baroniam He supposes that the whole Kingdom was upon the matter turn'd into one great Mannor by William the First all Men made his Tenants And that all the great Possessions by which he must mean the Mannors of which others held were made Baronies Now this Feudal Baronage he says was capable of being multiplied several ways For every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee Since he uses this as a Proof of the Multiplication of Baronies according to the Argument Baron-Service was indivisible Thus every Proprietor as he had part of the divided Fee was part of the Baronage and consequently If all the Baronage both Spiritual and Temporal de jure ought to have Summons now to Parliament without respect to Estate or Tenure there would be a great many Pretenders But to be sure when all the Baronage were summoned antiently these inferior Tenants came by his own Rule as owing the Service of Barons and so ratione Tenurae were Barones Regni But the Baronage of England having been always in his Opinion the Lords Spiritual and Temporal and Nobility having been Foudal or because of the Feud the Burgesses being all according to him till about the time of H. 3. under Tenure by Baronage were as good Lords as the best And why were not honest Free-holders so too as well as Traders most of them then 't is likely Mechanicks CHAP. V. Whereas he would set aside the Questions of what the Government was till 49th of H. 3. as impertinent 1. His own Notion by which he would supplant the Labours of others destroys it self while mine maintains what he aims at 2. He puts such matter in Issue for asserting the present Government as can never be maintained 3. He yeilds so much of the Fact against me as sets aside the whole Foundation of his Postscript And yet admit he answers all Objections against his Postscript the Grounds which I go upon are of the most General Use. FOr preventing the Worlds being troubl'd with impertinent Labours and to divert those that thus employ themselves to Undertakings more useful to the Publick advantagious to themselves he thought fit to tell us that the Parliament was always materially the same But we are at a loss to know what he means by materially the same For 't is manifest that according to his Notion if the Government were from the time of our Dispute always in one it would have been materially the same as 't is now and
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
of charging or at least as to the Proportion but they having been at Parliament 26 E. 1. which was but eight Years before by Representatives of their own not of the County in general it shews how they had been taxt totis retroactis temporibus But besides the Charters of Counts Palatine erecting Corporations there were others granted by some who were particularly impowered to that purpose or however they might have been confirmed by the King afterwards But I shall give an Example of a Corporation raised by virtne of such a Power given by the King and confirmed afterwards Thurstinus Dei Gratiâ sciatis me dedisse concessisse Concilio Capituli Eborac Beverlac Concilio meorum Faronum meâ Cartâ confirmasse hominibus de Beverlaco omnes libertates iisdem legibus quibus ulli de Eborac habent in suâ Civitate praeterea enim non lateat vos quòd Dominus H. Rex noster concessit nobis potestatem faciendi de bonâ voluntate suâ sua Chartâ confirmavit Statuta nostra Leges nostras juxta formam Burgensium de Eborac c. H. Rex Angliae c. Sciatis me concessisse dedisse hâc Chartâ mea confirmasse Hominibus de Beverlaco liberum Burgagium secundum libertates Leges Consuetudines Burgens de Eboraco suam gildam Mercatorum cum placitis suis Feloneo cum omnibus liberis consuetudinibus libertatibus suis cum omnibus rebus sicut Thurstinus Archiepiscopus ea iis dedit c. There is another Confirmation by King Henry of the Charter by Thurstan and also William Arch-bishop of York to the same free-Borough And also another of King Richard wherein he mentions the Confirmation of the Bishop's Charters by his Grand-Father Tenentes de Villâ Beverlaci in auxiliis tam Regi quam Primogenitoribus cum Communitate praedict Comitatus semper hactenus non cum Communitate Civitatum Burgorum taxari contribuere consuevisse I need not go to prove that these came by reason of their Property in Land they being either the Kings Tenants or the Tenants of Subjects And whatever Priviledges their Interest might prevail with them to suffer to Traders amongst them 't is certain they were granted to the Free-holders 2. But then there were Corporations by Prescription where since now all the Free-men chuse it may seem more difficult to prove that they came upon the account of Property in Land Many of these received Charters in Confirmation of their Priviledges yet if they were taken away would remain good Corporations at the Common Law I may instance in London of which there is this memorable Passage in the Confessors Laws Debet etiam in London quae caput est regni legum semper Curia Domini Regis singulis septimanis die Lunae Hustingis sedere teneri And amongst other things quae huc usque consuetudines suas unâ semper inviolabilitate conservat King John's Charter provides for the ancient Liberties and free Customs of the City of London in particular and of all other Cities Burroughs Vills and Ports and some Charters of other Kings may seem more like new Grants than Confirmations of the old Priviledges But thus much is certain that those Cities Boroughs and Vills which had their Liberties and free Customs confirm'd by Magna Charta 9. H. 3. which was in the same Terms as to that part with King John's were Cities Burroughs and Vills at the Common Law And that we may frame an Idea of these we must have recourse to the old Saxon Laws By them it should seem that there was a greater equality amongst the Masters of Families than afterwards and the Law of Frank-pledges was well suited to such equality when no Man was above giving that Security to the Government upon which St. Edward's Law says Est quaedam summa maxima Securitas per quam omnes Statu firmissimo sustinentur ut unusquisque stabiliet se sub fidejussionis Securitate And as every City or Burrough was a Vill that being the Genus to both as well as an inferior Species the Law provided quod de omnibus Villis sub decimali fidejussione debebant esse universi of these Vills they that had special Priviledges Markets Fairs and the like were free Burroughs And as the Vills so the Burroughs at the Common Law were made up of a certain number of Free-men whose Property might extend far into the Counties These at first were under Tythings Afterwards as in the time of H. 1. Property falling into more Hands within the same Tract of Land or Precinct we find them answering for one another by Twentys the Headburrough was Aldermannus or Praepositus Villae or Burgi Every one of these as a Fidejussor I take it came anciently to the General Council of the Kingdom in his own Person if he pleas'd But very frequently they might intrust their Aldermannus or Headburrough to answer for them But the Franck-pledges discontinuing they might accustom themselves to electing of Members sometimes one sometimes more upon every Summons to Parliament And thereupon in every Burrough at the Common Law the Elections are by all the Free-men which answer to the Franck-pledges formerly except that 't is likely of Old all the Franck-pledges were very considerable Free-holders But still these Burroughs could not take in all the Free-holders nor yet the Vills as anciently consisting of clusters of Inhabitants But if any Man grew wealthy he loved to live by himself in some Castle or large Seat which he might build abroad in the Country Such look'd upon themselves to be too great to give Sureties for their good Behaviour as those that liv'd in Clusters did And by the time of Edw. the First Chivalers and their Children And I take it every considerable Free-holder was a Chivaler or Gentleman were exempted from the Law of Franck-pledges Doubtless every one of these as the Possessionati in Poland came to the General Councils in Person As the Lands were further improved and a free increase of Natures Stores made Men luxurious Great Men put themselves into Straits and were often obliged to sell their Inheritances and to manumit their Servants or release Servile Tenures and the Off-spring of these who themselves were Cheorls or Pesants were according to the Saxon Law which probably enough continued long after the Norman's Acquisition enobled or became Gentlemen by the Descent of five Hides of Land to the third or fourth Generation Thus together with the divisions of Lands amongst the several Children of great Proprietors and subdivisions downwards as the Families branch'd out the Numbers of Free-holders became by King Iohn's time little less than infinite tota regni Nobilitas quasi sub numero non cadebat And this sort of Nobility for the most part to be sure look'd upon themselves to be above Citizens or Burgers and scorn'd to be
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.
taught no body nor learnt himself and certainly the Addition of Populus will do him little Service But this Author would be an excellent Man were he as good at proving as propounding Vide before p. 18. and after p. 129. Mortes truncationes melius ut videtur Ian. Angl. fa. nov pag. 209. 210. N. B. Nothing urged by Mr. Hurt p. 62. does prove that Meeting a Parliament but such a Council as was free for the King to call of such Persons as he pleased I am sure here are neither Abbots nor Commons summoned I presume this Author never read Fitz-Stephens whose words are considentibus not consulentibus Episcopis We have seen such a Concilium magnum at York called by King Charles the First Arguitur I conceive doth more properly â—…gnifie to induce or argue a thing to be so as well as to blame or accuse and is more properly applyed to Arguments or Disceptations Fitz. cap. 10. col 2. N. B. In those times Treason in common Speech was a general name for all Offences the King thought did ledere Majestatem regiam till afterward the matter was better explained in 25 E. 3. Vid. Jani Anglor facies nova p. 199. Fitz. cap. 10. co 1. These Milites I conceive might be such as held in Capite and were sometime called Baronets or Barones minores Curia Regis was here the Kings Council then summoned Manuum depressio I take to be Submission Gr. q. p. 39. Mat. Paris Anno 1213. pa. 240. Seld. Pr. Bar. cap. 4. pag. 10. Gr. q. p. 40. Cook 2 Inst. 631. Seld. ubi supra Gr. q. p. 42 Gr. q. p. 42. Ger. Dor. An. 1175. Legis vigorem habeat quicquid de consilio de consensu Magn. Reipubl communi sponsione authoritate Regis sive principis praecedente juste fuerit definitum approbatum vid Bracton lib. 1. cap. 1. Gr. q. p. 44. N. B. who were these others Gr. q. p. 47. Mr. Hunt tells you p. 87. that if this be a Law it is a Law only for that case 'T is true the Protestation as such was personal to them but the Canons I hope that put them upon a Non licet and de jure non possumus were not personal also for here is a Prohibition both by the Canon Common and Statute Law Gr. q. p. 49. Gr. q. p. 51 52 c. Gr. q. p. 68. Gr. q. p. 41. Gr. q. p. 53. Gr. q. p. 53. Gr. q. p. 54. 〈◊〉 E 4. 3â—… 23 H. 6. no. 41. inter Petit connâ—… and many others Co. 2 Inst. pag. 286. Iourn of Parl. pag. 258. and 267. Co. 2. Inst. pag. 586. Seld. Priv. Bar. p. 5. Hon. of Bishops p. 27. Els. Mod. p. 16. Seld. Pr. oâ—… Bar. p. 5. Petit's anc Rights p. 62. Prin's Calender p. 56. and 160. Coo. 4. Inst. cap. 1. p. 2. Vid. Rot. Claus. 12 E. 2. m. 5. dorso Audley's Case judic per Prelatos Comites Barones totam communitatem Regni yet no Act. Vid. hic p. 133. Vid. etiam Rot. Parl. 50. Ed. 3. n. 131. 189. Cottoni Posth f. 349. Eliz. Burgh's Case Seld. tit hon p. 689. Ger. Tilb. Fitz. Mat. Paris Whether this was meant of a Parliament or other Council not material to this point the Reason being the same as to meeting upon Summons to the one or t'other Hakewell pa. 18. 21 R. 2. memb 6. N. B. 'T is plain by Clergy here was more meant than the Bishops only for the Abbots were reckoned as part of the Clergy I suppose Gr. q. p. 57. Sir William Dromond 's Life of Iames the Fourth pag. 200. ult Edit in octavo Discourse pag. 20. Gr. q. p. 57. Gr. q. p. 58. See Sir Hen. Wotton's Interest of the Princes of Christend this Question touched upon Gr. q. p. 64. Spel. Coun. tom 2. p. 8. Con. Tol. 11 Can. 6. Lamb. Laws Edgar cap. 5. Gr. q. p. 67. See the Provisos in the Acts. 25 H. 8. cap. 21. Co. lib. 2. 32 b. Gr. q. p. 68. Gr. q. p. 57. Whitgift was then Arch-bishop Cambd. An. Anno 1586. and Baker 391. Rush. hist. Col. part p. 61. Baker pag. 446. Gr. q. p. 69. Rush. hist. Coll. part 2. pag. 56. Rush. com 2. App. p. 15. Gr. q. p. 32. Journ of Parl. pag. 258. Vid. Hakewell mod p. 84. Gr. q. p. 70. Quaere What that Word then meant Gr. q. p. 73. Gr. q. p. 74. Spel. Gloss. word Comes p. 140. 141. Gr. q. p. 74. Gr. q. p. 77. Lett. p. 55. Gr. q. p. 76. Pla. Parl. 33 Ed. 1. a This Consilium Regis I take to be that steddy Counsel that always attended the King at his Parliament though perhaps not always Members See Coo. 2. Rep. Arch. Cant. Case Divers Cases to that purpose Gr. q. p. 79. Gr. q. p. 88. Gr. q. p. 88. Gr. q. p. 94. See before p. 18. in the Edition in Quarto Pet. Bles. 〈◊〉 edit p. 551. col 1 2. in fol. Idem p. 552. col 2. Cot. p. 85. 5 E. 3. m. 33. Rot. Parl. 4. E. 3. n. 6. 5 E 3. ubi supra N. B. Cotton Abridg. Counts and Barons by Lords as 〈◊〉 often does Gr. Qu. p. 95. Gr. Qu. p. 89. Cot. p. 392. Rot. Claus. 1 E. 3. m. 13. pro Episc. Hereford Gr. Qu. p. 102. * N. B. The King 's going to the holy Land was then in debate touching which the Bishops might well consult Matth. Paris p. 55. Magnates comprehendit Comes Baro miles seu aliqua alia notabiles Persona Vid. Mr. Petyt p. 101 94 95. N. B. The Abridger often translates Counts and Barons in the Record by the name of Lords only because when the Bishops were meant Lords Spiritual or some word equivalent was expressed Rush. Hist. Col. part 2. p. 55. Gr. Qu. p. 90. N. B. Though there were no particular Impeachment against Weston and Gomenes by the Commons yet the general one being the delivering Forts and Castles was Treason at the Examination of which the Prelates ought to be absent Vid. Gr. Qu. p. 92. Gr. Qu. p. 90. Rot. Proces in Parl. Gr. Qu. p. 117. Gr. Qu. p. 95. See before p. 131. the Records there cited Matth. Paris Anno 1100. Rot. cl 3. E. 2. m. 16. in dorso 34 Edw. 1. Gr. Qu p. 100. See before p. 131. N. B. The Iudgment may well be given after the Parties are dead an hundred Examples may be given where their Bones have bin burned their Bodies hanged c. contrary to what Mr. Hunt thinks 2 H. 4. N. 30 4 Edw. 3. 5 H. 4. N. 12. to 17. Gr. Qu. p. 119. 2 H. 6. N. 9. Viz. The Fact was not by their Advice which they desired to have entred Gr. Qu. p. 121. Gr. Qu p. 151. Gr. Qu. p. 151. 7 H. 8. p. 184. Grand Quest. p. 260. Vid. Dier fol. 60. Cromp. Jurisd Courts p. 2. Grand Quest. p. 124. Stanf lib. 1. cap. 3. Cook 3d Instit. â—…ol 30. Seld. Priv. of Bar. p. 45. and others Gr. Q.