the Duke of Suffolk had that same day in his own declaration confessed that there was a very heavy rumour and noise of infamy upon him he would let the King know it that he might be committed to ward after the course of Law in eschewing of inconveniencies that may sue thereupon hereafter they are the words of the Record The next day Tuesday the Chancellour acquainted the King and the Lords with it and asked the Lords what should be done upon the Commons request The Judges were asked what the Law was in this matter the Chief Justice answered for the rest that in these general Terms of Slander and Infamy many things may be understood which deserve not imprisonment but he desired more time to consider of it with his Fellows The Lords staid not for their return but all of them from the lowest to the highest were of one opinioa that he should not be committed to ward till the Specialty of the matter were declared Wednesday the 28. the Chancellour and other Lords were sent down by the Kings commandment to the House of Commons and the Speaker declared unto them That seeing special matter was required they had daily information from several parts of England that the Realm was sold to the Kings Adversary of France by the Duke of Suffolk and that he had fortified Wallingford Castle to be a place of refuge unto them and this the Commons do think is special matter of suspicion of Treason laid to his charge for which he ought to be committed and therefore it was the desire of the Commons that he might be so upon which desire he was sent to the Tower The seventh of February the Chancellour again and several Lords both Spiritual and Temporal were by the Kings command sent again to the House of Commons and the Speaker William Tresham gave them a Bill containing several Articles of High Treason against the said Duke which Bill he in their names desired Ut in presenti Parliamento inactitaretur to be inrolled in Parliament and the Duke upon it to be proceeded against The twelfth of February this Bill was read in the House of Lords and it was thought fit by all the Lords that the Justices should have a Copy of it and report their advice what should be done but the King would have it respited till he was otherwise advised The seventh of March next following it was thought fit by the most part of the Lords that the Duke should then come to his Answer The ninth of March the Lords were again sent down to the Commons at their request and another Bill was delivered to them containing certain Articles of misprisions and horrible offences committed by the Duke which they desired might be Enacted in this High Court of Parliament so is the expression and he to be proceeded against The same day the Duke of Suffolk was brought from the Tower by vertue of the Kings Writ into the presence of the King and the Lords Spiritual and Temporal in the Parliament Chamber both the Bills of the Articles were read unto him of which he desired Copies which was granted and to be nearer at hand to give in his Answer and come to his Trial the King by the advice of the Lords committed him to the ward of three persons Esquires to be kept in a Tower within the Kings Palace of Westminster The thirteenth of March he was sent for to come before the King and the Lords Spiritual and Temporal to answer to his Charge which he did denying all of Treason laid unto him and excusing the rest The fourteenth the Chief Justice rehearsed to the Lords by the Kings commandment what had passed the day before and asked them what advice they would give which they put off till Munday the sixteenth and that day nothing was done Then Tuesday the seventeenth the King sent for all the Lords Spiritual and Temporal who were in Town into his innest Chamber with a Gabel Window over a Cloyster within the Palace of Westminster The Lords are all named viz. the two Archbishops the Duke of Buckingham thirteen Bishops six Earls two Viscounts two Abbots the Prior of St. Iohn and nineteen Barons who being assembled the King sent for the Duke of Suffolk who came and was upon his knees all the time the Chancellour spake unto him who by the Kings commandment remembred what passed at his Trial and particularly that he had not then put himself upon his Peerage and asked him now what he had more to say The Duke said that not departing from his Answers and Declarations he did wholly submit himself to the Kings rule and governance to do with him as he list Whereupon the Chancellour who as I said before was Archbishop of York and a Cardinal by the Kings commandment said unto him Sir I conceive that you not departing from your Answers and Declarations in the matters aforesaid not putting you upon your Peerage submit you wholly to the Kings rule and governance wherefore the King commandeth me to say to you that as touching the great and horrible things in the first Bill comprised the King boldeth you neither declared nor changed And as touching the second Bill touching misprisions which be not Criminal the King by force of your submission by his own advice and not reporting him to the advice of his Lords nor by way of Iudgment for he is not in place of Iudgment putteth you to his rule and governance that is to say that you before the first of May shall absent your self out of the Realm of England unto the end of five years but you may abide in the Realm of France or in any other Lordships or places being under his obeissance and you shall not bear malice to any man for any thing done to you in this Parliamont And forthwith the Viscount Beaument on the behalf of the said Lords Spiritual and Temporal and by their advice assent and desire recited said and declared to the Kings Highness That this that was so decreed and done by his Excellency concerning the person of the said Duke proceeded not by their advice and counsel but was done by the Kings own demeanance and rule therefore they besought the King that this their Saying might be enacted in the Parliament Roll for their more declaration hereafter with this Pretestation that it should not be nor turn in prejudice nor derogation of them their Heirs ne of their Successors in time coming but that they may have and enjoy their Liberties and Freedom as largely as ever their Ancestors or Predecessors had and enjoyed before this time I have been the more large in this account which I have given of this Trial marking out every step of the proceedings in it that whosoever reads it may see how irregular and extravagant it was from the beginning to the end from the Commons first desiring that the Duke of Suffolk should be committed upon so sleight a ground as his complaining in the House of Lords
themselves separately from the other L ds which would make another Estate but they do not only not vote apart by themselves the whole body of them together but even that body is divided and separated within it self one part from another For the two Archbishops give their Votes after all the Nobility have given theirs and the rest of the Bishops between the Barons and the Viscounts so that the Barons excepted all the rest of the Peers Dukes Marquesses Earls and Viscounts divide the Archbishops from the Bishops If then they be an Estate it is an Estate within an Estate like a Nest of Boxes one within another which how agreeable it is to reason let any man judge Besides would it be for the honour of the House of Lords that two Estates must be put together to keep the ballance even with the House of Commons who are but one Estate and that their two should signifie no more than that one And most clearly it would be a great disparagement to the Peerage of the Kingdom the Temporal Lords and would make them to be a poor Estate that another Estate must be joyned to them to make up their Negative voice and set them upon even ground with the House of Commons But this is further to be said were the Bishops one of the Three Estates a Parliament could not be held without them no Law no Act of Parliament could be made if the Major part of the Bench of Bishops did not agree to it but we know it to be otherwise in point of fact Parliaments have sate without a Bishop and Acts of Parliament have been made the Bishops dissenting and our Law-Books say it may be so in point of Law That it hath been so Bishop Iewel acknowledges it in his Defence of the Apology of the Church of England p. 522. he bids you read the Statutes of Ed. 1. and you will find that in a Parliament solemnly holden by him at St. Edmunds Bury the Archbishops and Bishops were quite shut forth and yet the Parliament held on and good and wholsom Laws were there enacted the Record saying Habito Rex cum suis Baronibus Parliamento Clero excluso c. The King holding a Parliament with his Barons and excluding the Clergy c. Crompton hath this likewise in his Book of Courts under the Title Parliament p. 19. b. So certainly that King did not believe his Clergy to be a Third Estate of his Parliament or he would never have left them out for it must necessarily have followed that his Parliament would have been lame and imperfect But doubtless he knew the Law to be as all the Judges of England said it was in Henry the Eighths time when the question was as the Title of the Book Case runs in Keilways Reports p. 180. b. Lou Supreme Iurisdiction perteigne al Roy ou al Pape To whom the Supreme Iurisdiction belongs to the King or the Pope For that hath still been in competition between the Crown and that Clergy I mean the Popish Clergy It is in Dr. Standishes Case 7 H. 8. p. 184. b. Les Iustices disoient que nostre Sr. le Roy poit assez bien tener son Parlement per luy ses Temporal Seigniors per ses Commons tout sans les Spirituals Seigniors car les Spiritual Seigniors nont ascunt place en le Parlement chamber per reason de lour Spiritualtie meis solement per reason de lour Temporal possessions The Iudges said That our Lord the King might well enough hold his Parliament by himself and the Lords Temporal and his Commons wholly without Lords Spiritual for the Lords Spiritual have no place in Parliament by reason of their Spiritualty but by reason of their Temporal possessions that is holding their Lands their Temporal possessions in nature of Baronies sicut Baroniam as it is in the Constitutions of Clarendon not that they were truly and really Barons enobled in bloud but by their Tenure of such Land dignified to sit in Parliament and do the King service there as the Temporal Lords by their Tenure were bound to do For this was the Policy of William the First he divided all the Lands that escheated to him by his conquest into so many Knights Fees and so many Knights Fees he erected into a Barony the Temporalties of Bishops likewise and so of many Abbots and Priors he erected into Baronies all to hold of him in Capite and upon account of those Baronies both the Temporal Lords and the Spiritual Lords not only Bishops but also those Abbots and Priors had of right place in Parliament and were bound to serve him there Now I would ask if they all holding by one Tenure and by that Tenure sitting in Parliament could possibly be imagined to be two different Estates Certainly they could not be then two different Estates for they were all Feodal Barons And what hath since hapned to make a difference The change hath been only this The Temporal Lords holding so by their Tenure grew so numerous that King Iohn put them into two ranks of Barones Majores and Barones Minores and only the Majores had Writs of Summons to come to Parliament Afterwards in Richard the Seconds time Barons were created by Patent and so had Place and vote in Parliament I ask now if it be probable nay if it be possible that this should alter the constitution of Parliament that that House which before consisted but of one of the Estates should now be divided into two Estates They are still qualified to be Members of Parliament as before a Baron sate as a Baron an Earl as an Earl Being made by Patent or by Writ or by holding such a proportion of Land alters not the case as to their sitting in Parliament for it is being of such a degree which makes them Peers of Parliament how they rose to that degree is not material And what should make the Lords Spiritual who have received no change in their being called to be Members of that House to be now an Estate by themselves which they were not before I profess I see not the least colour of reason to think there should be any change but as they were in the beginning so they are still no other than Fellow Members of that House with the Temporal Lords and together make up one House But this is also to be considered that if the Bishops were a Third Estate of Parliament not only the Parliament could not be held without them but nothing could pass in Parliament that at least the Major part of them should not assent to But so far from that not only what we find in the Journals of former times but daily experience tells us that Acts have passed not only when the Major part of that Bench was against them but many times when the whole Bench was strongly of another mind 20 R. 2. The Bishops upon occasion of the Statute of Provisors enter a Protestation against whatsoever
Et pur ce que a vis feust a les ditz Prelatz quil ne attenoit pas proprement a eux de conseiler du garde de la pees ne de chastiement des tielx malueis si alexent mesmes les Prelatz c. And because the Prelates were of opinion that it belonged not properly to them to give Counsel about keeping the Peace nor punishing such evils they went away by themselves and they returned no more Et les ditz Countes Barones autres Grantz per eux mesmes And the said Earls Barons and other great ones went by themselves and these return and by the mouth of the Lord Beaumont declare their opinions what was to be done Commissioners to be appointed in every County of the best men des plus grantz they to be Gardeins de mesme le Comte Guardians or Conservators of the County These Commissions afterwards brought into Parliament were read and approved by Nostre Sr. le Roi les Countes Barons autres Grantz our Lord the King the Earls Barons and other great ones no Bishops so much as to hear the Commissions read because they were to enquire into all Crimes as well Capital as other the Prelates must have no hand in it In the same Parliament Sir Iohn Grey and Sir Will de la Zouch had quarrelled in the Kings presence Sir Iohn had mis mein au cotel laid his hand upon his Sword they had been imprisoned and the business brought into Parliament Le Roi chargea de par la bouche le dit Mr. Geffrey le Scrope toutzles Countes Barons autre Grantz en les foies ligeances queulx ils devoient au Roi de lui conseiller ce quil devoit faire de si grand excesse fait en sa presance The King by the mouth of Sir Geffrey Scrope charged all the Earls Barons and other great ones in their Faith and Allegiance which they ow him to give him Counsel what he ought to do upon such an exorbitancy committed in his presence they go and consider of it acquit Zouch judge Grey to Prison here were no Bishops neither to Judge so much as of a Battery 25. E. 3. The proceedings and Judgment of death against Sir Will. de Thorp Chief Justice for Bribery were brought into Parliament which the King caused to be read Overtement devaut les Grantz de Parlement pur saver ent lour avys examine sur ceo chescun aprez autre si sembla a eux toutz c. To be read openly before the Grantz the great men of Parliament to have their advice upon it and being all asked one after another it seemed to them all that they were very just Et sur ceo il fut accorde par les Grantz de mesme le Parlement que si nul autre tiel cas aveigne que nostre Sr. Le Roi preigne lui des Grantz que lui plairra pur per lour bon a vis faire ceo que pleise a sa Roiale Seignurie Vpon this it was agreed by those Grantz those Great men of the Parliament that if any such other case should happen our Lord the King might take any one of those Grantz those Great men whom he should please to do by their good advice what he should think good It cannot be understood any Bishops were here under the name of Grantz and to be of the number of those whom the King should take to assist and advise him in such other Judgments of death for the time to come if occasion were which could be no employment for Bishops being to give Judgments of death 42. E. 3. Sir Iohn de Lee Steward of the Kings House charged with several misdemeanors the Record saith Et apres manger vindrent les Prelats Dues Countes Barons ascuns des Cōes illoeques feust fait venir Mr. Iohn de Lee c. And after they had eaten the Prelats Dukes Earls Barons and some of the Commons came and Sir John de Lee was fetcht thither c. The business was there heard and he was sent to prison Here the Prelats were present for the Crime was not Capital 50. E. 3. Several persons are accused even by the Commons for misdemeanors and the Bishops present at their Trials and Judgments as Richard Lyons who had been Farmer of the Customs the Lord Latimer who was the Kings Chamberlain for Oppression in several places in Britain and in England he was by the Bishops and Lords adjudged to be imprisoned and put to Fine and Ransom and then the Commons desired he might lose all his Offices and no longer be of the Kings Council which the King granted Yet after this 51. E. 3. at the request of the Commons themselves he was restored to all and declared innocent which I take notice of by the way At this Parlament of 50. William Ellis of Yarmouth as privy and accessary to the misdemeanors of Lyons Iohn Peach of London for getting a Monopoly of sweet Wines the Lord Iohn Nevil a Privy Counsellor for buying some debts due by the King at easie prizes to make advantage to himself At all these Trials the Bishops were present and no body says but they might 1. R. 2. William de Weston and Iohn de Gomenitz were tried for surrendring Towns and Castles in Flanders to the Kings Enemies they had put in their Answers Friday Nov. 22. Saturday they are brought to the Parlament and Sir Richard le Scrope Steward of the Kings House A commandement de Seigneurs avant-ditz By the command of the Lords aforesaid told them That the foresaid Lords and the Record tells you who those Lords were cest assavoir to wit the Duke of Lancaster the Earls of Cambridge March Arundel Warwick Stafford Suffolk Salisbury and Northumberland and the Lord Nevil Lord Clifford plusours autres Seigneurs Barons Bannerettes esteants au dit Parlement savoient assemblez avisez Many other Lords Barons and Bannerets being in the said Parliament had met and advised upon it from the time they had put in their Answers and found they were not satisfactory and then gave sentence saying that those Lords had adjudged them to death first Weston was called and this said to him and then Gomenitz Here was none of the Prelats named and it cannot be imagined they should be under the general expression autres Seignieurs Barons Bannerettes And other Lords Barons and Bannerets after the naming of two Barons for if there had been Bishops they would have been named before them Observe likewise that no Bishops were present from the time that the Prisoners Answers came in to have Vote and determine concerning any part of their Answer Pardon or whatever they had pleaded In the same Parliament and the very next thing upon the Roll is the Case of Alice Perrers accused for breach of an Ordinance made 50 E. 3. against Womens medling with State Affairs there the Record saith that she was Fait venir
devant les Prelats les Seignieurs du Parlement pour y respondre Made to come before the Prelats and the Lords of the Parliament to make answer and then follows Et sur ceo par commandement des Prelats Seignieurs le dit Mr. Richard le Scrope rehercea l'Ordonance And then by the command of the Prelates and Lords the said Sir Richard le Scrope rehearsed the Ordinance And then she was heard to the particulars with which she was charged and at last was adjudged to be banished and forfeit her Estate Observe in the Trial of Weston and Gomenitz that only those Temporal Lords there named had met and considered of the Answers put in by them as preparatory for the Trial and Judgment and no Bishop present there And here in the Trial of Alice Perrers which followed immediately after it is particularly expressed that they were present and did Vote and Judge as far forth as the Lords Temporal 3 R. 2. The two Merchants that had killed Iohn Imperial a Publick Minister sent from Genoa an Act of Parliament passed to make it Treason the Bishops had no Vote in the passing of this Act the Record saith Fait a remembrer que cest darrein Ait issint faite si fust fait par les Iustices en presence du Roy des Seigneurs Temporelz en ce Parlement Memorandum that this last Act so made was drawn by the Iudges in the presence of the King and the Lords Temporal in this Parliament They were not so much as present when the Judges were in the preparing of it 4 R. 2. Sir Ralph de Ferrers arrested by the Duke of Lancaster upon suspicion of Treason for holding intelligence with the French brought into Parliament and there tried Semblast as Seigneurs du Parlement que le dit Mr. Rauf estoit innocent It seemed to the Lords of the Parliament that Sir Ralph was innocent Can any man think the Bishops were there and comprised under the general expression of les Seigneurs du Parlement When they were present it is always particularly expressed as in Alice Perrers Case 1 R. 2. and all those questioned and punished for misdemeanors 50 E. 3. the Lord Latimer and Lyosn c. Alice Perrers was Fait venir devant les Prelats Seigneurs du Parlement was made to come before the Prelates and Lords of Parliament They were Judged by the Bishops and Lords the Record saith 7 R. 2. The Bishop of Norwich who had undertaken an expedition into France and not performed the conditions was charged with several miscarriages and misdemeanours in his employment and one crime capital which was betraying Graveling to the French for 10000 Franks in Gold of which yet he cleared himself Yet that being in for one of his charges none of the Bishops were present at his Trial but Michael de la Pool gave this Judgment at the last Le Roi nostre Sr. a bien entendu ce que vous a vez dit ent a eu bone deliberation avec les Srs. Temporalz semble au Roi as Srs. Temporalz avant-ditz que vos responses ne sont rien a propos Parquoy del assent des Countes Barons autres Srs. Temporelz en cest Parlement est assentuz accordez que vous soiez en la merci le Roy mis a fin a raunceon Our Lord the King hath well heard what you have said and hath with his Lords Temporal well considered of it and it seems to him and to the Lords Temporal aforesaid that your answers are nothing to the purpose Therefore by the consent of the Earls Barons and other Lords Temporal in this Parlement it is agreed that you shall be at the Kings mercy and put to fine and ransom The Chancellor likewise gave judgment in the same way that Parliament on Sir William de Elmham Sir Thomas Trivet and others for giving up Holds and Fortresses and taking money for them 10 R. 2. Michael de la Pool Lord Chancellor was accused by the Commons for several misdemeanors devant le Roi Prelatz Seigneurs Before the King Prelates and Lords Here the Prelates are Judges of misdemeanors together with the other Lords 11. R. 2. The five Lords Appellants the Duke of Gloucester Earls of Derby Arundel Worcester and Earl Marshal making their Protestations that what they attempted touching their Appeals was for the honour of God safety of the King the Realm and their own Lives The Archbishop of Canterbury for himself and the whole Clergy of his Province entred a Protestation and the Bishops of Durham and Carlisle did the like That they absented themselves from Parliament in regard such matters were to be there agitated but with a Salvo to their right Which some will have to be understood of a right to be present even when those matters were in agitation and that it was only upon some prudential consideration that they did withdraw But this could no ways be their meaning but they protested their having a right to sit and Vote in Parliament upon all other occasions in the general Though upon that occasion they might not be present The words of their Protestation make it evident Nos Willielmus Cant. Archi-Episcopus pro nobis suffraganeis Coepiscopis c. protestamur quod intendimus intendi volumus in hoc presenti Parlemento aliis interesse consulere tractare statuere definire c. ac cetera exercere cum ceteris jus interessendi habentibus in omnibus in eisdem statu ordine nostro semper salvis Uerum quia in presenti Parliamento agitur de nonnullis materiis in quibus non licet nobis alicui eorum juxta sacrorum Canonum instituta quomodolibet personaliter interesse eo propter potestamur quod non intendimus nec volumus sicuti de Iure non possumus nec debemus dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos penitus absentare c. We William Archbishop of Canterbury for our selves our Suffragans and fellow Bishops protest that we do intend and will be thought so to do to be present in this and other Parliaments to consult treat of and determine c. and do other things together with others who have right to be here in all matters our state and order always saved unto us entire in the same But because in this Parliament some matters will be agitated at any one of which by the institutions of the holy Canon Law we cannot be personally present we do therefore protest that we intend not nor will not as by the Law we ought not nor can we in in any sort be present whilst any of those matters are in debate or coming into debate but we will absent our selves altogether c. It is plain by the Record that what they will have to be Salvum to them is their sitting and acting consulere tractare statuere To consult treat of and determine in that
can give you an ancient President out of the Placita Parliamentaria in the 33 of Ed. 1. Nicolas de Segrave being with the King in an Expedition into Scotland had a quarrel with Iohn de Crumbwell left the Kings Army and went to fight with Crumbwell in France He was for this by the Kings command at his return summoned to appear in Parliament which he did Uenit in pleno Parliamento in presentia ipsius Domini Regis Archiepiscopi Cantuariensis plurimorum Episcoporum Comitum Baronum aliorum de Consilio Domini Regis tunc ibidem existentium He came into the Parliament before the King the Archbishop of Canterbury and many other Bishops Earls Barons and others of the Kings Counsel there present The business is opened before them by Nicolas de Warwick who charged him with leaving the King amongst his Enemies and doing what in him lay to expose him unto their power whether the Bishops continued in Parliament to hear this appears not by the Record but it appears clearly that they were not to meddle in it not so much as to advise upon it for it follows Et super hoc Dominus Rex volens habere avisiamentum Comitum Baronum Magnatum aliorum de Consilio suo injunxit eisdem in homagio fidelitate ligiancia quibus ei tenentur quod ipsum fideliter consulerent qualis poena pro tali facto sic cognito fuerit infligenda Qui omnes habito super hoc diligenti tractatu avisiamento consideratis intellectis omnibus in dicto facto contentis per predictum Nicolaum plene expresse cognitis dicunt Quod hujusmodi meretur penam amissionis vite The King willing to have the advice of the Earls Barons and other great men of his Counsel injoyned them upon the Homage Fidelity and Allegeance which they owe him to give him faithful Counsel what punishment was to be inflicted upon such a crime so confessed who all upon a serious debate and advising upon the matter and well weighing all the particulars of it and what was by the said Nicolas expresly acknowledged do say That such a man deserved to lose his life but the King pardoned him afterwards Still you see Bishops are not so much as advised withal in a Case of Life and Death This we see hath been the usage in Parliament all along since the Journals and Records can give us any light of what was there done And out of History I can go further and cite you an ancienter President than all these In Edward the Confessors time who in a Parliament convened in London as Brompton relates it in his Chronicle Col. 937. upon Earl Godwin's appearing there who was said to have formerly murthered Alfred the Kings Brother presently cried out Proditor Godwine ego te appello de morte Alfredi fratis mei quem proditionaliter occidisti cui Godwinus se excusando respondit Domine mi Rex salva reverentia gratia vestra pace dominatione fratrem vestrum nunquam prodidi nec occidi unde super hoc pono me in consideratione Curie vestre Tunc dixit Rex Carissimi Domini Comites Barones terre qui estis homines mei legii hic congregati appellum meum responsumque Godwini audistis volo quod inter nos rectum judicium decernatis debitam justiciam faciatis Comitibus vero Baronibus super hoc ad invicem tractantibus c. Thou Traitor Godwin I do accuse thee of the death of my Brother Alfred whom thou didst treacherously kill whom Godwin answered excusing himself My King with reverence to your Grace and to your Government and with your good leave I have not used treachery to your Brother nor have I killed him and of this I refer my self to the Iudgment of your Court. Then the King said Dear Lords Earls and Barons of the Land who are my Liege People here assembled you have heard my Appeal and Godwins Answer I will have you to decree righteous Iudgment betwixt us and to do that Iustice which ought to be done And the Earls and Barons debating this among themselves some were of one opinion some of another and at last they agreed to offer the King a great sum of money and to beseech him that he would take off his displeasure from Earl Godwin and pardon him The Historian adds Quorum considerationi Rex contradicere nolens quicquid judicaverant per omnia ratificavit Whose opinion the King not willing to contradict agreed to and ratified all that they had done Here we see it was only Ad Comites Barones that he appealed and they were only to Judge of it and no Bishops nor Prelates But some I hear alledge a President in 11 H. 2. of Archbishop Becket who was at a great Council Solemne Consilium at Northampton accused of Treason and other misdemeanors where Bishops were his Judges as well as Temporal Lords This they fetch out of Mr. Seldens Titles of Honour who cites for it a Manuscript made by a Monk called Stephanides or Fitz-Stephen and there it is said that the Archbishop was accused Lese Majestatis Regie Corone quia est a Rege citatus in causa Johannis neque venerat neque idonee se excusasset Accused of Treason because being summoned by the King in the Cause of one John le Mareschal and he neither came himself nor sent a sufficient excuse and that for it he was sentenced to forfeit all his Movables and that the Lords and the Bishops could not agree upon pronouncing the Judgment they putting it off from one to the other and that at last the King commanded the Bishop of Winchester to do it This is what that Manuscript saith But none of the ancient Historians of those times say any thing of his being accused of Treason And which makes it the more unlikely is that it was soon after that solemn ratification of the Constitutions of Clarendon which all both Bishops and Lords had sworn to observe for ever declaring them then to be the Law of the Land and to be Consuetudines Libertates antecessorum suorum The Customs and Priviledges of their Ancestors which makes me say it was rather a Declaring what was the Law before than making a new Law though what was then done was sufficient to make it a Law if it had not been so before And one of these Constitutions was that the Prelates of the Church should not Interesse judiciis Curie Regis Be present at the Iudgments given in the Kings Courts when loss of Members or Life was in question This great Council or Parliament was in February at Clarendon and the other at Northampton was in October following so it is not likely they should so soon forget and do contrary to what they had bound themselves to so lately by a solemn Oath publickly in open Parliament And I think one may modestly affirm that it was a mistake in the Writer of that Manuscript to say
and all other Parliaments when such matters are not in question But for such matters they say Non licet alicui eorum personaliter interesse And de jure non possumus nec debemus interesse It is not lawful to be present in person at any of them and rightly we cannot nor ought not to be present Can it then be thought they should lay claim to any right to what they say Non licet de jure non possumus nec debemus It is not lawful and by right we cannot nor ought not And to say their meaning was that by the Law of the Land or Custom of Parliament they might and that it was only the Canon Law which hindred them can have little colour for the Canon Law was to them above all Laws and what was forbidden by that Law they could not have a thought that it could in any sort be lawful for them to challenge as their right upon any account It is further observable here that they profess Quod de jure non possumus nec debemus dum de hujusmodi materiis agitur vel agetur quomodolibet interesse that is all the time that such matters are in agitation there is no exception of Preliminaries and Preparatories and of being present and having vote during all the debate till the pronouncing of Sentence for it is Dum de hujusmodi materiis agitur vel agetur the whole time from the beginning to the ending and when such businesses are to come on that is when they are going upon them and when they begin And then consider the close of this Record Quelle Protestation leve en plein Parlement al instance priere du dit Ercevesque les autres Prelatz susditz est enrolle ycy en Rolle du Parlement per commandement du Roy assent des Seigneurs Temporelz Comunes Which Protestation being read in full Parliament at the instant desire of the Archbishop and other the Prelates aforesaid is entred upon the Parliament Roll by the Kings command with the assent of the Lords Temporal and Commons Which is all the formality of passing Laws in Parliament that was used in those times Which was only to have it entred in the Roll or Journal Book that such a thing was agreed upon by the King and the two Houses then it was drawn into the form of a Law afterwards by the Justices and Kings Council when the Parliament was risen So as whatever was the Law before if it were only the Canon Law it is now come to be the Law and rule of Parliament and the Law of the Land but in truth it was so before and was always so 20. R. 2. Thomas Haxey Clerk had preferred a Bill in the House of Commons for regulating the outragious expences of the Kings House particularly of Bishops and Ladies De la multitude d' Evesques lour meignee aussi de plusours Dames lour meignee qui demeurnt en l hostel du Roy sont a ses coustages Of the many Bishops and their company and also of many Ladies and their company that live in the Kings House and at his charge The King being exceedingly moved at this some Bishops and Lords were sent to the Commons to let them know it and to enquire who had made that complaint the Commons delivered the Bill and his name who had exhibited it Haxey was for this tried and adjudged a Traitor and condemned to death for it Which Judgment by the way was most unjust and would not only have shaken but wholly destroyed the very foundation of Parliament deterring all men from representing there and seeking redress of any grievance publick or private had it continued in force and unquestioned but 1. H. 4. it was complained of as erroneous and Encontre droit la course qui avoit este devant en Parlementz Against right and the course of Parliaments and therefore Nostre Sr. le Roi del a viz assent de toutz les Srs. Spirituelx Temporelx ad ordeignez adjuggez que le dit Iuggement soit du tout cassez reversez repellez adnullez tenuz de nul force n'effect Our Lord the King by the advice and consent of all the Lords Spiritual and Temporal hath ordained and adjudged that the said Iudgment be wholly quashed reversed repealed made null and held to be of no force nor effect So this Judgment is damned with Bell Book and Candle one may say and at this the Lords Spiritual were present and had vote but not at the trial and condemnation of Haxey as appears by the Record which saith Fait a remembrer que mosquerdi aprez la Chandelure maintenant aprez le Iugement rendu devers Thomas Haxey Clereâ—que fust ajuggez eu Parlement a la mort come Traitour vindrent devant le Roy en Parlement ovek grand humilite l' Ercevesque de Cantirbirs toutz les autres Preiatz luy prierent de sa grace avoir pitie merci du dit Thomas de remitter l' execution Memorandum that the Wednesday after Candlemas day immediately after that Iudgment was given upon Thomas Haxey Clerk who was in Parliament judged to die as a Traitor the Archbishop of Canterbury and all the other Prelates came with great humility before the King in the Parliament and besought his Grace to have pity and compassion on the said Thomas and to remit his execution which the King granted So we see that after the Judgment given in Parliament the Bishops immediately came into the Parliament to beg for his pardon which shews they were not there before 21. R. 2. The Commons impeached Thomas Arundel Archbishop of Canterbury of high Treason and desired he should be put into safe custody it was answered that because it touched si haut personne so high a person the King would be advised Afterwards they come and pray that Judgment may be given according to their Impeachment and accusation of him Sur quoy nostre dit Sr. le Roy toutz le Srs. Temporelz Mr. Thomas le Percy eiant poair sufficient de les Prelatz Clergie du Roialme d' Engleterre come piert de record en le dit Parlement adjuggerent declarerent cest Article conuz per le dit Ercevesque pur Traison le dit Ercevesque pur Traitour sur ce est agarde quil soit banni ses Temporaltees seisis en main le Roy Whereupon our said Lord the King and all the Temporal Lords and Sir Thomas le Percy being sufficiently empowered from the Prelates and Clergy of the Kingdom of England as appears upon Record in Parliament judged and declared this Article acknowledged by the said Archbishop to be Treason and the said Archbishop to be a Traitor and thereupon awarded him to be banished and his Temporalties to be seised into the Kings hands Here the Bishops were not present in person but Sir Thomas le Percy as their Procurator and Proctor
of Northumberland had Petitioned the King for his Pardon for having contrary to his Allegiance gathered Forces and given Liveries The King gave this Petition to the Judges to have their opinion of it the Lords Protested against it and said that the Judgment belonged to them and retained the business Et puis leve entendue la Petition les Srs. come Piers du Parlement a queux tielz Iugement apperteinnent de droit adjuggerent que ceo que fust fait per le Conte nestoit pas trahison mes trespas tant seulement Sur quoy le dit Conte molt humblement remercia le Roy les ditz Srs. ses Piers de lour droiturel Iugement And then the Petition being read and understood the Lords as Peers of Parliament to whom such Iudgments do of right appertain did give their Iudgment that what the Earl had done was no Treason but only a Trespass whereupon the said Earl did most humbly thank the King and the said Lords his Peers for their righteous Iudgment Now the Bishops could not be said to be his Peers which shews they were not there 7 H. 4. A Judgment was given much like to that in the 2 H. 4. The King commanded the Lords Temporal to deliver their advice concerning the Earl of Northumberland and the Lord Bardolph who had been killed at Bramham More in Yorkshire by the Sheriff of the County who therewith the Posse Comitatus encountred them in the field There were proceedings against them in the Court of Chivalry after their deaths upon certain Articles of Treason there exhibited against them These Articles were brought into Parliament upon reading of which those Lords Temporal adjudged their Crime to be Treason 5 H. 5. The Commons Baillerent une Petition delivered a Petition directed Al honorable Prince le Duc de Bedford Gardein d' Engleterre as tres sages Srs. de cest present Parlement To the honourable Prince the Duke of Bedford Gardian of England and to the most wise Lords of this present Parliament that Sir Iohn Oldcastle might be brought before them who was indicted and outlawed in the Kings Bench for Treason and excommunicated by the Archbishop of Canterbury for Heresie and that due execution might be done upon him according to their discretion by authority of Parliament Pur quoy agarde est per les Srs. avant ditz del assent de le dit Gardein a la priere susdit que le dit John come Traitor au Roy a son Royalme so it amesnez a la Tour de Londres dilloeques soit treinez parmi la cite de Londres as novelles Fourches en la paroche de St. Giles illoeques soit penduz ars pendant Wherefore it is adjudged by the Lords aforesaid with the assent of the said Gardian upon the foresaid Request that the said John as a Traitor to the King and his Realm be carried to the Tower of London and thence drawn through the City of London to the new Gallows in St. Giles Parish and there to be hanged and burnt hanging The question is now if it shall be understood that under the general expression of Les Srs. de cest present Parlement the Bishops were comprized and so to have been parties in this Judgment and I conceive not first because I observe that generally throughout all the Records and Journals of Parliament almost in all transactions but especially and constantly I find it so in matters of Judicature where they were present it is always mentioned and expressed so at That the Lords Spiritual and Temporal or That the Prelats and Earls and Barons did so and so as it was in the Cases before mention ed of Sir Iohn Lee Richard Lyons the Lord Latimer and the rest accused of misdemeanours And my other reason is that in this particular Case of Sir Iohn Oldcastle I find the Clergy had done their parts with him before declaring him an Heretick and turning him over to the Secular power as the words of the Excommunication run where after having expressed a great tenderness of the desperate condition of his Soul and much bewailed his obdurateness they do condemn him for a Heretick Relinquentes eum ex nunc tanquam Hereticum Iudicio Seculari Leaving him from thence forward as an Heretick to the Secular Iudgment So certainly those good men I mean those Popish Bishops would have no more to do with him as to his farther Execution that the world might see they were not Men of bloud 2. H. 6. Sir Iohn Mortimer had been committed to the Tower upon suspicion of Treason against Henry the Fifth and made an escape out of prison being taken again he was indicted of Treason at Guild-Hall The Indictment by the Kings command was returned into Chancery then brought into Parliament by the Bishop of Durham Lord Chancellour and by him Coram Humfrido Duce Gloucestriae who in the Kings absence was commissionated to call and hold that Parliament ac aliis Dominis Temporalibus in eodem Parliamento tune existentibus fuit liberatum Was delivered to Humfry Duke of Glocester and other the Lords Temporal being then in Parliament to be by them affirmed as it was and Sir Iohn Mortimer then brought before them and adjudged by them to be drawn hanged and quartered Et super hoc viso plenius intellecto Indictamento per dictum Ducem de avisamento dictorum Dominorum Temporalium ac ad requisitionem totius Communitatis in presenti Parliamento existentium auctoritate istius Parliamenti ordinatum est statutum c. quod ipse usque ad Turrim ducatur c. And hereupon the said Indictment being seen and well understood it was by the said Duke by the advice of the said Lords Temporal at the prayer of the whole Commonalty in this present Parliament and by the Authority thereof Ordered and Decreed c. that he should be led to the Tower and from thence drawn to Tyburn and there executed We see here the Bishops did not offer to advise so much as concerning the Indictment if it should be admitted of and received by the Parliament though a Bishop being Lord Chancellor was by vertue of his Office to bring it out of the Chancery and present it to the House as he did and there left it 28 H. 6. is the sole single President of Bishops being present and not only so but acting and bearing a principal part in a Judicial proceeding in Parliament in a Case that was in it self Capital though strangely shuffled off and Justice wholly eluded Ianuary 22. William de la Pole Duke of Suffolk preferred a Petition to the King complaining how he was defamed as if he were other than a true man to the King and the Realm and desiring that any man would say wherein that he might give his Answer thereunto Munday 26. the Commons sent some of their Fellows to the Chancellour who was Archbishop of York and a Cardinal praying him that whereas
that he was ill spoken of and defamed to the close of all the Judgment given by the King by the mouth of the Chancellour for his banishment in regard he had not put himself upon his Peerage which yet the Chancellour said the King did not do as his Judge for that he was not in the place of Judgment And it was an odd thing and unusual that some Prelates and some Lords should be sent down to the House of Commons to receive the Articles of this Impeachment All this was such a Hodge-podge of a Trial as no man can tell what to make of it nor can it be of any signification to be a president and a rule of proceeding in matters of that nature in Parliament But admit it had been never so regular it is but one single president of Bishops and Prelates acting in a Judicial capacity in a Capital cause in Parliament against multitudes excluding them it was once so and never but once And can that be thought sufficient to alter and change the constant course and practice of Parliaments which hath been otherwise Had it been questioned then and upon a debate and mature consideration been so resolved at that time this had signified something but it was done and no exception taken which they call a passing Sub silentio and more it was never done but once But Sir Edward Coke goes further and saith that two or three presidents are nothing if forty be contrary and it is so here he tells you too when it is that they signifie nothing that is Quand les Presidents passe sans challenge del partie ou debate des Iustices When they be not challenged by the party concerned or not considered of and debated by the Iudges as neither of them was here done it is in Slades case in the 4. Reports It is a rule in Law A facto ad jus non valet argumentum but it may withal be said and truly A saepe facto ad jus contra semel factum valet argumentum Upon the whole matter one may boldly affirm that this President of 28 H. 6. is no ground for the Bishops to build their claim upon of having a right to sit and vote in Parliament in Capital Causes 31 H. 6. is the Earl of Devonshire's Case the Record runs thus Be hit remembred that where the 14. day of March the said 31 year of this present Parliament Thomas Earl of Devonshire upon an Indictment of High Treason by him supposed to be done against the Kings honourable estate and person afore Humfrey Duke of Bucks Steward of England for that time assigned and of the same Treason by his Peers the noble Lords of this Royaume of England being in this said present Parliament was acquitted of all things contained in the same Indictment Now I suppose no man will say That the Bishops were either his Peers or Lords of the Realm 38 H. 6. The Lord Stanley was accused by the Commons for being in confederacy with the Duke of York and they desire he may be committed to prison the Answer is The King will be advised which is all was done And this is the last president of any Impeachment or of any person questioned in Parliament in a Judicial way that is upon the Rolls in the Tower And I do not remember that I have read or heard of any Trial in Parliament in a Judicial way since that time till the E. of Straffords in our memory whose Trial was compleated in that way but he was attainted and condemned by the Legislative power During all the Trial from the beginning to the end the Bishops were never present at any part of it And it yet appears upon the Journal Book of the House of Peers though many passages be razed but this is not That upon the 9. of March 1640. upon a Report brought in by the Lord Privy Seal of something concerning that business and a debate arising upon it the Bishops withdrew it being In agitatione cause sanguinis It is true there was in that same Parliament the February before an Impeachment of High Treason brought up from the House of Commons against the Lord Keeper Finch but it never came to Trial for he fairly ran away and got beyond Sea whereupon by the Order of the Lords Temporal a Proclamation was issued forth for him to appear the 10. of March following the words of the Proclamation are Rex Uice-comiti c. Cum Communitas Regni nostri Anglie in presenti Parliament Iohannem Dominum Finch de Fordich nuper Custodem Magni Sigilli Anglie de Alta Proditione accusaverit impetierit Cumque per Dominos Temporales in eodem Parliamento de assensu advisamento nostris Ordinatum existit quod Proclamatio per totum regnum nostrum Anglie publice fiat qd idem Iohannes Dominus Finch in propria persona sua compareat se reddat coram nobis prefatis Dominis decimo die Martii proxime futuro ad respondendum standum recto coram nobis prefatis Dominis ex hoc parte Nos volentes c. The King to the Sheriff c. Whereas our Commons of this our Kingdom of England have in this Parliament accused and impeached John Lord Finch of Fordich late Lord Keeper of the Great Seal of England of High Treason And whereas the Lords Temporal have in the same Parliament with our consent and advice Ordered a Proclamation to be published throughout our whole Kingdom of England that John Lord Finch do personally appear and yield up himself to us and the foresaid Lords upon the 10. of March next following to answer for his Treason and stand to the Iudgment of us and the foresaid Lords in that behalf We willing that the Order have its due effect do command and strictly enjoyn you that upon the receipt of these presents you do in all Cities Market Towns and such other places within your Bayliwick as to you shall seem expedient cause in our name to be publickly proclaimed That John Lord Finch do appear in person and render himself before us and the foresaid Lords in this present Parliament upon the 10. of March aforesaid to answer for the Treason aforesaid and stand to the Iudgment of us and the foresaid Lords in that behalf according to the tenor of the foresaid Order This was the Proclamation Ordered to be made onely by the Temporal Lords and no Bishops present yet was it no part of the Trial but meerly a course taken to have him in Court that he might be tried But because it looked towards a Trial the Bishops must have no hand in it And it is further observable in this president that the Kings learned Counsel was ordered to draw up this Proclamation according to the antient Parliamentary way which shews that it was the ancient Parliamentary way That only the Lords Temporal should be interested in such Proceedings and have the ordering of them and not at all the Bishops And I