the Examination of a Case Capital What the importance of this phrase of full Parlament is will best appear by the use of it in the Records of that time 4 Ed. III. n. 6. Et est assentu accorde per nostre Seigneur le Roi touz les Grantz en pleyn Parlement Where it was agreed that the procedings at that time by the Lords against those who were not Peers should not be drawn into consequence and that the Peers should be charged onely to try Peers Which hath all the formality of an Act of Parlament and therefore all the Estates were present n. 8. Accorde est per nostre Seigneur le Roi son Conseil en pleyn Parlement Which was an Act of Pardon concerning those who followed the Earl of Lancaster 5 Ed. III. n. 10. we have the particular mention of the Bishops as some of those who do make a full Parlament Accorde est per nostre Seigneur le Roi Prelatz Countes Barons autres Grantz du Roialm en pleyn Parlement and n. 17. En pleyn Parlement si prierent les Prelatz Countes Barons autres Grantz de mesme le Parlement a nostre Seigneur le Roi c. 6 Ed. III. n. 5. the Archbishop of Canterbury made his Oration en pleyn Parlement which is explained by en la presence nostre Seigneur le Roi de touz les Prelatz autres Grantz n. 9. Si est accorde assentu per touz en pleyn Parlement who those were we are told before in the same number viz. les Prelatz Countes Baronns touz les autres somons a mesme le Parlement Which is the clearest explication of full Parlament in the presence of all those who were summon'd to Parlament From whence it follows that where a full Parlament was mention'd at that time the Bishops were certainly present and consequently did assist at the Trial of Thomas Lord Berkely who appeared before the King in full Parlament as Nich. de Segrave did 33 Ed. I. and there the Bishops are expresly mention'd as present as appears by what hath been said before concerning his Case 5 H. IV. Henry Hotspur Son to the Earl of Northumberland was declared a Traitour by the King and Lords in full Parlament and the same day the Father was upon examination acquitted of Treason by the Peers It is not said that this was done in full Parlament as the other was but there are several circumstances which make it very probable the Bishops were then present 1. When the Earl of Northumberland took his Oath of Fidelity to the King he did it saith the Record upon the Cross of the Archbishop which was to be carried before him if he went out of the House 2. The Archbishop of Canterbury pray'd the King that forasmuch as himself and other Bishops were suspected to be in Piercie's Conspiracy that the Earl might upon his Oath declare the truth who thereupon did clear them all Which shews that the Archbishop was then present in the House And for the same reason that he was present we may justly suppose the other Bishops to have been so too 3. The Earl of Northumberland beseeched the Lords and Earls and Commoners that if he brake this Oath they would intercede no more with the King for him Now the better to understand this we are to consider that H. IV. takes notice in his declaration upon the Rebellion of Sir Henry Piercy that the Earl of Northumberland and his Son gave out that they could have no access to the King but by the Mediation of the Bishops and Earls and therefore did beseech them to intercede with the King for them It is not then probable that those should be now left out when the words are large enough to comprehend them and no one circumstance is brought to exclude them For that general one of their not being Peers will be fully refuted afterwards But that which puts this out of dispute is 4. that the Record saith n. 17. the Commons not onely gave the King thanks for the pardon of the Earl of Northumberland but the Lords Spiritual and Temporal in these remarkable words Et auâ—i mesmes les CoÌ„es remercierment les Seigneurs Espirituelx Temporelx de lour bon droiturell judgment quils avoient fait come Piers du Parlement And likewise the Commons gave thanks to the Lords Spiritual and Temporal for the good and right Iudgment which they had given in this case as Peers of Parlament Which is a clear Precedent of the Bishops judging in a Capital Case and that as Peers 2 H. VI. n. 9. Iohn Lord Talbott had accused Iames Boteler Earl of Ormond of sundry Treasons before the King and his great Council and after before Iohn Duke of Bedford Constable of England The King takes advice of his Parlament about it and then it is expresly said in the Record De avisamento assensit Dominorum Spiritualium Temporalium ac Communitatis Regni Anglie in eodem Parlamento existent ' facta fuit quedam abolitio delationis nuntiationis detectionis predict c. Here the King adviseth with the Lords Spiritual in an accusation of Treason and therefore they must be present in the debates concerning it I leave now any considerate person to judge impartially on which side the Right lies For on the one side 1. There is the Constitution of Clarendon interpreted by H. II. and the Bishops at Northampton 2. A Protestation of their Right enter'd and allowed by King Lords and Commons 11 R. II. 3. A Reversing of Iudgments owned by Parlament for want of their presence 21 R. II. 4. A Preserving of their Right by Proxie when they thought their Personal attendance contrary to the Canons 5. A Bar to a total discontinuance of their personal Right by an allowed Precedent 28 H. VI. 6. A Restoring them to their former Right by removing of the force of the Canon-Law upon the Reformation 7. No one Law or Precedent produced for excluding them even in those Times when they thought the Canons did forbid their presence 8. Several Precedents upon Record wherein they were present at Examinations and Debates about Cases Capital On the other side 1. The Precedents are General and Negative 2. Or relating to such Cases wherein they are allowed to be present 3. Or of Iudgments condemned as erroneous by Parlament 4. Or of voluntary Withdrawing with Protestation of their Right and making of Proxies 5. Or of not being present at the passing of Iudgment out of regard to the Canon-Law And now on which side the Right lies let the Authour of the Letter himself judge CHAP. IV. The Peerage of the Bishops cleared how far they make a third Estate in Parlament Objections against it answered THERE remain Two things to be considered which are put in by way of Postscript by the Authour of the Letter the one concerns the Peerage of the Bishops the other their Being a Third Estate in Parlament 1.
possumus nec debemus intendit nec vult aliquis eorundem in praesenti Parlamento dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos eorum quemlibet in ea parte penitùs absentare jure Paritatis cujuslibet eorundem interessendi in dicto Parlamento quoad omnia singula mihi exercenda nostris eorum cujuslibet statu ordine congruentia in omnibus semper salvo Ad haec insuper protestamur eorum quilibet protestatur quòd propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit vel vult quòd processus habiti habendi in praesenti Parlamento super materiis antedictis in quibus non possumus nec debemus ut premittitur interesse quantum ad nos eorum quemlibet attinet futuris temporibus quomodolibet impugnentur infirmentur seu etiam infringentur This Protestation setting aside the legal Formalities of it consists of 3 parts 1. A Declaration of their undoubted Right as Peers of the Realm by virtue of their Baronies to Sit and Vote in all Debates of Parlament 2. Of their intention to withdraw this Parlament because several matters were to be handled at which it was not lawfull for them according to the Canons to be present 3. That by this absenting themselves they did not intend as far as concerned them to null the proceedings of that Parlament Here now arise three main Points to be discussed 1. Upon what Grounds the Prelats declared it was not lawfull for them to be present in Parlament at such matters 2. How far the Parlament's receiving that Protestation makes it a Law 3. Whether on supposition it were a part of Canon-Law then in force it continues so still since the Reformation 1. Upon what Grounds they declared it unlawfull for them to be present in Parlament at such matters One would think the very reading the Protestation were sufficient to convince any man for the Bishops declare as plainly as men could do that it was out of regard to the Canons of the Church and not from any Law of the Land For how was it possible that the same men should declare that by reason of their Baronies they had full Right to be personally present in all Debates of Parlament if there were some Law in force which made it unlawfull for them to be personally present The greater force there is in the Protestation 's being receiv'd in Parlament the greater strength there is in this Argument For if the Protestation 's being allowed by King Lords and Commons make it as the Authour of the Letter affirms a perfect and compleat Law then their Right to be present in all Debates of Parlament is a Law and so much the more considerable because it is no enacting Law making that to be so which was not before but declarative of what was confessed to be their undoubted Right by King Lords and Commons And therefore I do not wonder that the Authour of the Letter so conveniently to his purpose left out all the beginning of the Protestation which so fully clears the sense of the rest For the very same thing which afterwards the Bishops say they are forbid to doe by the Canons that is personaliter interesse to give their personal attendance they say at first by Right of their Peerage as Barons by tenure did belong to them for there the words are personaliter interesse too Therefore that personal attendance in such matters which they said was unlawfull to them by the Canons they challenge to themselves as their just Right by virtue of their Baronies But is it possible to imagine if they had been precluded from sitting by any antecedent Law that ever such a publick avowing their Right would have passed the King and both Houses So unsuccessfull hath the Authour of the Letter been in his Statute-Laws that there can be no stronger evidence of the Bishops Right to sit in such Cases then those which he produceth against them But he goes about to prove this Prohibition cannot be understood onely of the Canon-Law for the Canon-Law saith he 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 lawfull for them to challenge as their Right upon any account I confess I can see no force in this Reasoning For when a thing is forbidden to men meerly by a positive Law of the Church and the penalty of it is bare Irregularity by the Canons why may not such men challenge their own Right notwithstanding those Canons because the Irregularity might be dispensed with when the Pope saw convenient And by the Constitutions of Oâ—hobon which were made in the time of H. III. we find that if an Inferiour Clergy-man transgressed this Canon it was in the power of the Diocesan to absolve him from his Irregularity And this Canon was receiv'd and inforc'd most here in England on the inferiour Clergy as appears by the Canons of Stephen Langton in the Council of Oxford and other Synodall Constitutions here For it is a Rule in Lyndwood Clericus ex vi verbi non comprehendit Episcopum sed cum adjuncto sic in quantum illud adjunctum potest concernere Episcopum That by Clerici we are not to understand Bishops unless there be some adjunct that implieth it And among the Decretals there is one from Alexander III. to the Archbishop of Canterbury under the Title Nè Clerici to the same purpose Where the Glosse I grant comprehends Prelats therefore I will not deny but they were to be irregular by the Canon-Law as well as others But then we are to consider how far the Legatine Power vested in the Archbishop of Canterbury might extend in such a Case and that there was the same severity in the Canons against Clergy-men's taking upon them any Secular Office and yet in this very Parlament Thomas Arundell Bishop of Ely was Lord Chancellour and after him William of Wickham Bishop of Winchester and before them R. Baybroke Bishop of London and the Bishops of Durham and Exceter were Lords Treasurers under R. II. and in H. III's time we find 3 Clergy-men Lords Chief Iustices Pateshull Lovell and Mansell notwithstanding these Canons and in Edward III's time almost all the great Offices of the Court were executed by Clergy-men By which we see they did not think themselves so strictly bound to observe those Canons or it was so easy to be dispensed with that they had great Reason to insist upon the challenge of their own Right notwithstanding the Canon-Law The truth is the Canon-Law as it was managed in those days was one of the most mysterious pieces of Ecclesiasticall Policy it was an Engine which the artificial Church-men could screw up or let down as they pleased If it were in a matter likely to be prejudicial to their interest as it was most apparently the case in
time of the Earl of Strafford's Trial a Book being printed about the Privilege of Peers wherein this Protestation was mention'd hold was presently taken of it by Men who thought they could not compass their ends without removing the Bishops out of the House and when the Bishops insisted on their Right and could not be heard but at last were willing to salve their Right by Proxies the Lords of the Cabal prevailed with their friends to declare they would use no Proxies themselves and so by that artifice shut the Bishops out of Doors 4. The practice hath been so contrary since the Reformation that I find no manner of regard hath been shewed to it For the Archbishop of Canterbury was the first nominated in the Commission for the Trial of the Queen of Scots as appears by the Commission it self in Camden which is directly contrary to the Canon-Law Some distinguish the Bishops acting by Commission from their being Iudges in Parlament For which there is no manner of Reason with respect to the Canon-Law which is rather more express against any kind of Commissions in Cases of Bloud as appears by the Council of Toledo the Synodal Constitution and the Pope's Decretals And there hath never been any scruple about Divines sitting on the Crown-side as Iustices of the Peace when Sentence of death is pronounced nor in the Ordinary's declaring Legit or Non legit when a man's life depends upon it But which is yet more to our present purpose in the Parlament 22. May 1626. upon the Impeachment of the Earl of Bristol of high Treason 10 Bishops 10 Earls 10 Barons were appointed to examine the Evidence and upon their Report he was sent to the Tower by the whole House All which shews that there hath been no regard had to the force of the Canon-Law in this matter since the Reformation That being a Spirit lay'd long since by the Principles of our Church and it would be strange if some mens zeal against Popery should raise it again CHAP. III. The Precedents on both sides laid down those against the Bishops examined and answered II. I Now come to examine the Precedents and shall proceed therein according to due Order of Time And so the first is taken from the Saxon times viz. from Brompton's Relation about Edward the Confessour's appealing to the Earls and Barons about Earl Godwin's murthering of his Brother Alfred Here we see saith the Authour of the Letter it was onely ad Comites Barones that he appealed and they were onely to judge of it and not Bishops or Prelates I have 2 things to answer to this Precedent 1. That we have great reason to suspect the truth of it 2. That if it were true we have no reason to suspect the Bishops to be excluded 1. For the truth of the Story That there is great reason to suspect it appears in that it is the single relation of Brompton against the consent of the other Historians and some of them much ancienter and nearer to that time who mention K. Edward's charging Earl Godwin with the Death of his Brother not in Parlament but as they were at Table together at Winchester upon the occasion of a saying of Earl Godwin's upon the King 's Cup-bearer's stumbling with one foot and recovering with another See saith he how one Brother helps another Upon which Matt. Westminster Knighton and others say that the King charged him about the Death of his Brother Alfred Whatever the occasion was our best Historians of that time Malmsbury and Ingulphus say it was at an Entertainment at Winchester and that Earl Godwin died upon the place being choaked as they say with a Morsel of Bread he took with a great Execration upon himself if he were not innocent Knighton saith he was question'd for the Death of his Brother by Hardecnute and that he cleared himself by saying he did nothing but by the King's command But suppose Edward to be never so weak a Prince is it likely this should be done by an Appeal in Parlament by the King himself and that afterwards by the Judgment of his Earls and Barons he and his Sons and 12 Kinsmen should make the King amends by as much Gold and Silver as they could carry between their Arms Besides Brompton saith this was done by Godwin when he returned to England after King Edward's coming to the Throne whereas Malmsbury shews that it was through Earl Godwin's interest that ever he came to it and so the marrying his Daughter would make any one believe 2. But suppose it true What reason is there to conclude the Bishops not present who were never absent through all the Saxon times after Ethelbert's Conversion in any publick Councils of the Nation They had no Canon then to be afraid of for that of the Council of Toledo was brought in by Lanfranc And it was not against the practice of those Times For if we believe as true a Story as this of Brompton the Archbishop of Canterbury himself condemned King Edward's Mother Emma to a Trial by hot Irons which was present death without a Miracle and this it is said was done by the consent of the King and the Bishops which is as good a Precedent against Temporal Lords as the other is against the Bishops However this is certain that the Bishops then sate in the County-Court at all Iudgments And whereas the Authour of the Letter would avoid this by saying that no Capital Crimes were tried there the contrary is most certainly true For the Laws of King Edward as they were set forth by H. I. c. 31. mention the Capitalia Placita that were there held And the Authour of the MS. Life of S. Cuthbert saith that when one of Earl Godwin's Sons was Earl of Northumberland and one Hamel a very bad man was imprison'd by him his Friends interceded earnestly with him nè capite plecteretur that he should not lose his head By which it appears that Cases Capital were heard and determin'd in those Courts the Bishop and Earl sitting together in Iudgment And here the Point is plainly gain'd because the Authour of the Letter grants that the Bishops sate in all Iudgments in the County-Courts and then puts the matter upon this Issue whether Capital Crimes were there tried or not which I have clearly proved that they were But I shall make another advantage of this against the Authour of the Peerage c. for it plainly overthrows that confident Assertion of his That without doubt there was a Negative Custom that the Prelates should not exercise Iurisdiction in Capital Cases so ancient as to be part of the Fundamental Contract of the Nation It were a thousand pities that such well-sounding words so handsomely put together should signifie nothing I dare not be so positive as he is but am of opinion that if he could be perswaded to produce this Fundamental Contract of the Nation which I perceive he hath lying by him
To conclude this matter whether the Acts of Parlament which contain this declaration of the Peerage of Bishops and their Iurisdiction in Cases of Treason were sufficiently repeal'd or not this solemn Assertion of it in two several Parlaments together with the Petition of the Commons mentioned before are a most clear evidence that in the general Opinion of the King Lords and Commons this Iurisdiction did of right belong to the Bishops And I am sure they are a Demonstration against the Authour of the Peerage his Assertion of a Negative Custome ancient as the Constitution of the Nation that Prelats should not exercise Iurisdiction in Capital Cases For had this been a clear and undoubted Custom from the first original of this Nation it is morally impossible it could have entred into the minds of two Parlaments solemnly to have raised this doubt whether a Judgment given in a case of Treason by the Temporal Lords without the Assent of the Bishops were valid and to have determin'd that it was not when yet there was no manner of reason to imagine that the Bishops ever had any Jurisdiction in such Cases nay when there was an immemorial Custome and Usage to the contrary namely that the Temporal Lords had in all times exercised this Jurisdiction alone and the Bishops had been excluded from any share in it And in the Apology of Adam D'Orleton Bishop of Hereford and after of Winchester for his imprisoning R. de Baldock a great Confident of Hugh Despencer's he declares that the reason why he was carried to Newgate was through the violence of the People although saith he the Parlament then sitting there was no cause of fear but Justice would be done His words are Domino Rege Praelatis Comitibus ac aliis terrae Optimatibus Lundoniae tunc congregatis praesentibus pro Iustitia ibidem in Parlamento convocatis omnibus exhibenda Which shews that the Prelats then did sit in matters of Justice in the House of Lords and in Cases Capital for this R. de Baldock was arraigned at Hereford for the same Crimes that Hugh Despencer was But the main strength of the Cause is supposed to lie in the Precedents produced out of the Rolls of Parlament from the 4 Edw. III. to the 38 H. VI. The force of these Precedents will be better understood if we consider these things I. That many of them are meer Negative Testimonies So 4 Edw. III. at the Trial of Roger Mortimer it is said the Earls Barons and Peers of the Realm were present therefore the Bishops were not 5 Edw. III. onely the Great ones returned therefore the Bishops did not So in the Case of Sir Iohn Grey From whence he inferrs that the Bishops were not to Iudge so much as of a Battery 25 Edw. III. in Sir William Thorp's Case the Grantz de Parlament were asked their advice therefore not the Bishops 1 R. II. in the Case of Weston and Gomenitz the Bishops not mention'd but other Lords Barons and Bannerets Sir Ralph de Ferrer's Case 4 R. II. the Bishops not present because not comprised under les Seigneurs de Parlament The like in Sir Iohn Oldcastle ' s Case 5 H. V. The Question he saith is whether Bishops be comprehended under les Seigneurs de cest present Parlament In the Earl of Devonshire ' s Case 31 H. VI. the strength lies in this that the Peers are onely mention'd and he supposes no man will say the Bishops were his Peers or Lords of the Realm So that here are Eight Precedents that are no more then Negative Testimonies concerning which in general the Authour of the Iurisdiction of the House of Peers asserted hath a good observation viz. That one or two or twenty Precedents in the Negative nay I say more were the number equal as many in the Negative as in the Affirmative yet it could not disprove their Iurisdiction it would onely shew their Lordships were free Agents to doe it or not to doe it as they saw Cause but their Iurisdiction remained entire still to doe it whensoever they would So I say here supposing that the Spiritual Lords were not present in these Cases it onely shews that they were free Agents and might withdraw at some times and be present at others which cannot overthrow their Right for these Reasons 1. Several of his Negative Precedents if they prove any thing prove the Bishops were not there when he confesses they might have been there As 1. In Cases of Misdemeanours At the Trial of Sir Iohn de Lee 42 Ed. III. being charged with several Misdemeanours the Record saith the Prelats were present 50 Edw. III. Several persons were accused by the Commons for Misdemeanours and the Bishops he confesseth were present as Rich Lions Iohn Lord Latimer William Ellis Iohn Peecher Lord Iohn Nevil at all these Trials the Bishops saith he were present and no body says but they might So in the Case of Alice Perrers 50 Edw. III. the Record saith the Prelats were present and gave Iudgment as to Banishment and Forfeiture of her Estate 10 R. II. Mich. de la Pool Lord Chancellour was accused by the Commons for several Misdemeanours before the King Prelats and the Lords Here he yields the Prelats were Iudges of Misdemeanours together with other Lords And yet if several of his Negative Precedents do prove any thing they prove too much viz. that the Bishops ought not to be present at the Trial of Misdemeanours For he saith the Bishops were not present at the Trial of Weston and Gomenitz 1 R. II. nor at the Trial of the Bishop of Norwich 7 R. II. nor at such Iudgments as that of Sir William de Thorp 25 Edw. III. who was condemned for Bribery and yet he yields they were at the Trial of Mich. de la Pool 10 R. II. But if they ought not to be present at those of 25 Ed. III. and 1 R. II. and 7 R. II. neither ought they to have been present at the Trial of Mich. de la Pool Either therefore his argument doth not prove they were not present at the former being onely from general words or they ought not to have been present at the latter which he confesses they were This will best appear by comparing the Cases together 1 R. II. the Commons deliver in a Schedule to the Lords of their Demands before they would proceed to a Subsidy among which one was That all such who without cause had lost or given up any Castle or Town or Fortress to the dishonour of the King or dammage of the People may be put to their Answer before the Lords and Commons that Parlament Here was no particular Impeachment of these Persons but upon this the Lords sent for these two Persons who were Prisoners in the Tower upon this account and the Charge against them was delivering two Towns in Flanders without Commission Weston made a long and plausible Defence to which no
and fundamental Policy of that is the same with England and he that believed the Subjects made the Three Estates there could never believe the King to be one of them here The next Authority is of King Charles I. in his Answer to the 19 Propositions Iune 2. 1642. wherein he tells the two Houses that neither one Estate should transact what is proper for two nor two what is proper for three To which I answer that the Penner of that Answer was so intent upon the main business viz. that the two Houses could doe nothing without the King that he did not go about to dispute this matter with them whether the King were one of the Three Estates or not but taking their supposition for granted he shews that they could have no Authority to act without the King's concurrence But the unwary Concessions in that Answer were found of dangerous consequence afterwards when the King's enemies framed the Political Catechism out of them which is lately reprinted no doubt for the good of the People In 2 H. IV. n. 32. he makes the House of Commons to declare to the King and Lords that the Three Estates of the Parlament are the King the Lords Spiritual and Temporal Whereas the truth of that matter is this A difference had happen'd in the House of Lords between the Earl of Rutland and Lord Fitz-Walter whereupon the House of Commons go up to the King and the Lords and having it seems an Eloquent Speaker who ventured upon dangerous Metaphors he makes bold with the Similitude of the Trinity because that would help him to perswade them to Vnity but if he had left the King out he might have been suspected to have set up an Independent Power in the Three Estates therefore lest he should lose his Similitude which goes a great way with an eloquent man he strains another point and draws the King into his Trinity And is such an expression to be mention'd in comparison with the express Declaration but the year before 1 H. IV. of both Houses concerning the Three Estates in Parlament Next to this Similitude that of Stephen Gardiner ought to be mention'd who compared Faith Hope and Charity concurring to Iustification to the concurrence of the Three Estates in Parlament i.e. the King and two Houses to the making of Laws But I wonder the Authour of the Letter who expresseth so much dislike of his Divinity would take his Iudgment in Politicks But this notion of making the King one of the Three Estates how valuable soever it be to some men is it seems onely to be met with in some grave ancient Similitudes But of what Authority these are against the constant sense of Parlaments so fully declared I leave any man of understanding to judge For the judgment of eminent Lawyers he quotes but one in King Iames his time viz. Finch in his Book of Law l. 2. ch 1. who doth indeed in the words quoted by him make the King Lords and Commons to be the Three Estates But I can hardly imagine how a learned Lawyer could fall into such a gross mistake unless the Modus tenendi Parlamentum should give the occasion to it which was accounted no blind MS. in those days but a very great Treasure as appears by Sir E. Coke who cites it on all occasions And very few Lawyers had the judgment in Antiquity which Mr. Selden had who first discovered the just Age and Value of that MS. This Authour indeed towards the conclusion of his Treatise makes the King the first of the Estates but then he makes Six Estates in Parlament or Degrees as he calls them and delivers this for good doctrine at the very end of his Treatise that if any one of all these be summon'd and do not appear yet with him it is notwithstanding a full Parlament nay he expresly saith the King may hold a Parlament without a House of Lords But there are so many other such Positions discover'd by others in that Treatise that I need to say no more of it And as to this point of the King 's being one of the Estates in Parlament Sir Ed. Coke who otherwise too much admired that Treatise declares against it in the very beginning of his Treatise of the Parlament This Court saith he consisteth of the King's Majesty sitting there as in his Royal Politick capacity and of the Three Estates of the Realm viz. of the Lords Spiritual Archbishops and Bishops the Lords Temporal and the Commons of the Realm And however the Authour of the Letter may slight Mr. Selden's Judgment in this matter yet these two may be sufficient to weigh down the Scales against any one Lawyer 's Authority to the contrary especially since they were never suspected I dare say for any partiality towards the Clergy 3. But the Authour of the Letter thinks to carry this point by meer strength of Reason We must therefore diligently consider the force of his Arguments 1. If Bishops were one of the Estates in Parlament Reason would they should vote by themselves separately from other Lords which would make another Estate But they do not onely not vote apart by themselves the whole Body of them together but that Body is divided and separated within it self one part from another If both Houses ever sate together as some imagine and as they do in a neighbour Kingdom this way of Reasoning will make but one Estate in Parlament all that time But to give a clear answer to this objection I distinguish two things in the Bishops their Spiritual Capacity by which they represent and their Civil Capacity as Barons in which they vote according to the Rules of the House For the manner of giving their Votes is a thing under the Regulation of the House and depends upon Custom but their Spiritual Capacity as Bishops in which they represent doth not And the Reason of their sitting together with other Lords is upon the account of their Writs of Summons which as Mr. Selden confesseth ever since the latter end of Edw. III. hath been for the Bishops cum ceteris Prelatis Magnatibus Proceribus colloquium habere tractatum and therefore they are bound to sit together in the same place with the Temporal Lords or else they cannot advise and confer together And I leave the Authour of the Letter to consider whether his Reason or the King 's Writ ought to take place 2. If the Bishops were a Third Estate they must have a Negative voice to all that passeth there But the Bishops are intermingled with the Temporal Lords in making up the Majority as a part of it Since I have evidently proved the Clergy to be one of the Three Estates in Parlament if he be sure that every Estate ought to have a Negative voice then I am sure that this Objection lies more upon him to answer then upon the Bishops But to prevent any new disputes I shall return this Answer to
it Since it is agreed on both sides that the Bishops do sit in the House as Temporal Barons and in that respect do make up the Majority of Votes in the House of Lords it could not but seem unreasonable that they who voted as Barons in the House should have a Negative voice in another capacity and by this means they lost their distinct Negative voice because by the King's Writs they were to sit and vote with the Temporal Lords Just as it is in the Diets of Germany Since the distribution of that Assembly of the Estates of the Empire into the several Chambers the Prelates vote according to their Ranks the Three Electors in the Electoral College the other Bishops that are Princes of the Empire in the Chamber of Princes and those who are not Princes with the Counts and Barons So that here the Votes of the Bishops are mingled with the rest without a distinct Negative voice and yet no one questions but the Bishops do represent a distinct Estate of the Empire 3. This is a disparagement to the House of Lords that another Estate must be joyned with them to make up their Negative No more then to the Princes of the Empire to have the Bishops joyned with them when the Imperial Cities vote by themselves But what disparagement is this for those to make up the Majority of the Votes of the Baronage who sit there as Barons by Tenure by a Right as ancient as Will. the Conquerour by the Authour 's own confession 4. If the Bishops make a Third Estate then a Parlament could not be held without them But a Parlament hath sate excluso Clero as that of Ed. I and that it may do so in point of Law appears by the Resolution of the Iudges in Keilway's Reports because the Bishops sit in Parlament by reason of their Baronies This is the great Objection to which I shall give a full Answer 1. It is dangerous arguing from extraordinary Cases to the excluding any one of the Estates of the Kingdom from being represented in Parlament because no one can tell where this way of arguing will stop If a Parlament may be good without one Estate why not without another And we have seen an House of Lords excluded as unnecessary upon such kind of arguments because they sit in their own Persons and represent none but themselves If we once depart from the ancient and legal Constitution of Parlaments there will be no end of Alterations Every new Modeller of Government hath something to offer that looks like Reason at least to those whose interest it is to carry it on And if no Precedents can be found then they appeal to a certain invisible thing called the Fundamental Contract of the Nation which being a thing no where to be found may signify what any one pleaseth Suppose one extraordinary case happens through the disorder of Times that the Clergy have been left out in a Parlament what doth this signify towards altering the legal Constitution and constant Course of Parlaments which from the beginning of Parlaments in this Nation have had the Estate of the Clergy represented in them as sufficiently appears by Mr. Petyt's learned Preface to his late Discourse of the ancient Right of the Commons The first after King Ethelbert's Conversion was Commune Concilium tam Cleri quà m Populi That under Ina was omnium Episcoporum Principum Procerum Comitum omnium Sapientum Seniorum Populorum totius Regni That under Edmund the Elder was Concilium magnum Episcoporum Abbatum Fidelium Procerum Populorum I might adde many more as that at Becanceld under King Withred A. D. 694. Episcopis c. Ducibus Satrapis in unum glomeratis At Clovesho under Kenulphus of Mercia at Calecyth at London at Kingston Nay not one can be found by me in the Saxon times wherein the Bishops are not expresly mention'd So that if there be such a thing to be found as the Fundamental Contract of the Nation about the Constitution of Parlaments I do not question but they have their share in it Insomuch that Sir H. Spelman makes it his description of the Wittena-Gemot that in it as Mr. Petyt observes Convenêre Regni Principes tam Episcopi quà m Magistratus liberique homines i.e. it was an Assembly of the Three Estates So that before there were any such things as Baronies they were an essential part of the English Parlament And must all this clear and undoubted evidence from the first mention of Parlaments be rejected because once upon a time a certain King called a certain Parlament wherein upon some Distast between the King and the Clergy the other Estates continued sitting without them 2. This single Instance about the Parlament under Ed. I. is much misunderstood as will appear by these considerations 1. That the Clergy excluded themselves and were not shut out by the Act of the King and the other Estates For upon the Bull of Pope Boniface VIII forbidding the Clergy giving any more Subsidies which was procured by Archbishop Winchelsee as our Historians relate a Parlament being called by Ed. I. at Saint Edmondsbury on purpose for Subsidies the Clergy refuse upon the Pope's prohibition till they had consulted the Court of Rome and go away every one to their own homes notwithstanding which the King proceeds with the other two Estates and gets Subsidies from the Laiety So that the exclusion of the Clergy came from their own voluntary Act when the King desired no such thing nor the other two Estates but were all extremely provoked at this withdrawing of the Clergy That this Parlament was called purposely for the Subsidy appears by the Writ still upon Record wherein the Archbishop is summon'd to appear ad ordinandum de quantitate modo subsidii memorati 2. Whereas it is insinuated that great matters were done and good Laws passed when the Clergy were excluded I find no such thing It is true the confirmation of Magna Charta by Ed. I. which was a great thing indeed is said in the Statute-Books to be done the same year viz. 25 Ed. I. But that it could not be done in that Parlament I thus prove That Parlament was called crast Animarum the King appoints another at London crast Hilarii where the difference still continuing he appoints a new Parlament on the day of S. Peter ad Vincula or Lammas-day wherein he was reconciled to the Archbishop and Clergy Then Fealty is sworn to his Son before his going into Flanders and the King excused himself as to the great Taxes and Subsidies on the account of his Wars While he was about Winchelsea a Remonstrance is sent to him of the Grievances of the Nation in the name of the Archbishops Bishops Earls Barons and the whole Commons of England wherein they complain of illegal Taxes and the breach of Magna Charta The King gives a dilatory answer and passes over into Flanders In his absence the People refuse to pay the Taxes and the Lords combine
this as a sufficient Precedent in a Case of great moment about Commitment upon a general Accusation But there is not any Irregularity expressed or intimated in the Bishops appearing and judging as other Lords did and the Judgment was not reversed because of their being there as we have shewed others have been for their being absent V. None of all his Precedents do prove that the Bishops were ever excluded from sitting by any Vote of the House of Lords or Commons That they might voluntarily withdraw we deny not or not be present at giving of Iudgment out of regard to the Canons which is all that is proved by the Precedent of Iohn Hall 1 H. IV. of the Earls of Kent Huntington c. 2 H. IV. of Sir Iohn Oldcastle 5 H. V. and of Sir Iohn Mortimer 2 H. VI. And this we have made appear was done by them out of regard to the Canon-Law the force of which being taken away by the Reformation the Bishops are thereby restored to their just Parlamentary Right Neither can any Disusage be a bar to that Right since the ground of that Disusage was something then supposed to be in force which is now removed by the Reformation And I fear if this kind of arguing be sufficient to overthrow the Bishops Right much stronger of the same kind may be used to overthrow the King's Supremacy in mattters of Religion So great care ought men to have lest under the colour of a mighty zeal against Popery they do overthrow the very Principles of our Reformation VI. There are Precedents upon Record in the Rolls of Parlament which are not mention'd by the Authour of the Letter which do prove that the Bishops were present at the Examination of Treason and Capital Offences in Parlament And that within the time wherein he pretends to give an account of all the Trials recorded in the Rolls Which shews how easily men pass by those things they have no mind to see I begin with 4 Ed. III. and I must doe him that right as to say that he doth not onely mention the Trial of Roger Mortimer but of Sir Simon Bereford and others who were accused and tried in Parlament But pretending that the Roll of that Parlament is so defaced that it cannot be read he runs to that of 28 Ed. III. and so gently passes over all the other Trials which are in the Record and are more plain and express as to this matter Among the Articles against Roger Mortimer Ed. l of March one is that after he knew certainly the death of Edw. II. he made use of Instruments to perswade Edward Earl of Kent that King's Brother that he was still living and so drew him into a design for his Rescue for which he was attainted at Winchester and there suffer'd death for it Among these Instruments the chief was one Mautravers who for that Reason was attainted this Parlament and the words of the Record are Trestouz les Pieres Counts Barons assemblez a cest Parlement a West si ont examine estraitement sur ce sont assentuz accordez que John Mautravers si est culpable de la mort Esmon Count de Kent c. All the Peers Counts and Barons assembled in this present Parlament upon strict examination do assent and agree that John Mautravers is guilty of the death of Edmund Earl of Kent Here we have the strict Examination of a Capital Case in Parlament and all the Peers are said to be present at it It is used as an argument by the Authour of the Letter that in the case of Roger Mortimer the Bishops could not be comprized under the general name of Peers since the Barons are first in rank But here the Peers are mentioned before Counts and Barons and it will be impossible for him to assign any other Peers at that time that were named before them but the Prelats who frequently are so put in the Records of that time as in the same Parlament n. 12. Prelatz Countes Barons n. 13. Et per assent des ditz Prelatz Countes Barons so again n. 14. 15. 17. 24. 25. But the Authour of the Letter saith they cannot pretend to be Peers of the Realm Let him name then other Peers of the Realm at that time who were neither Counts nor Barons and were before them But if we are to judge who are Peers of the Realm by the Records of Parlament I do not question but I shall make it evident that the Bishops were so esteemed and that some persons who pretend to great skill in Records either have not searched so diligently or have not observed so carefully about this matter as they might have done But of this afterwards In the same Parlament Judgment was passed upon Boges de Boyons Iohn Deveril Thomas Gurnay William Ocle but being by way of Attainder and not upon particular examination which is mentioned in the case of Mautravers I pass them over In the Pleas of the Crown held before the King in this Parlament we find another Case which relates to our present debate viz. of Thomas Lord Berkely and Knight who was arraigned for the death of King Ed. II. who came before the King in pleno Parlamento in full Parlament and there pleaded Not guilty and declared he was ready to clear himself as the King's Court should advise Then they proceeded to particular examination of him how he could acquitt himself being Lord of the Castle where the King was murthered he being committed to his Custody and John Matravers He pleaded for himself that he was then sick at Bradley and knew nothing of it They charged him that the Keepers of the Castle were of his own appointing and therefore he was bound to answer for them He answer'd that they with Matravers having receiv'd the King into their custody he was not to be blamed for what they did and for this he put himself upon his Country At the day appointed for his Trial he appears again coram Domino Rege in pleno Parlamento and the Iury returned him Not guilty But because he appointed Gurney and Ocle to keep his Castle of Berkely by whom the King was murthered the King appoints him a day the next Parlament to hear his Sentence and in the mean time he was committed to the custody of Ralph Nevil Steward of the King's House In the next Parlament 5 Edw. III. n. 18. The Prelats Earls and Barons petition the King that he might be discharged of his mainprisors the which was granted and a farther day given him to appear next Parlament But we reade no more of him till the Summons he had 14 Ed. III. as one of the Lords in Parlament The great force of this Precedent lies in understanding what is meant by appearing before the King in full Parlament If under this the Bishops be comprehended then this will be an uncontroulable Precedent of the presence of the Bishops in
Concerning their Peerage To prove this two Statutes had been alledged 25 Ed. III. c. 6. and 4 H. V. c. 6. and the opinion of Iudges and Lawyers out of the Year-Books But although these had been very significant if they had been against them they have the hard fortune to signify nothing when they are for them A meer Protestation becomes good Law very substantial Law if it be supposed to make against the Bishops and yet in that very Protestation the Right of Peerage is expresly challenged as well as it is asserted and taken for granted in the Statutes mention'd Is that part of the Protestation invalid and must nothing pass for Law but what is against them Is it credible that a Right of Peerage should be owned and received in Acts of Parlament in Protestations in Year-Books time after time and no opposition made against it by the Temporal Lords all that time in case they believed the Bishops had challenged that which by no means did belong to them Did not the Temporal Lords understand their own Privileges or were they willing to suffer the Bishops to assume their Titles to themselves without the least check or contradiction and let their Protestations be enter'd in the Rolls of Parlament without any contrary Protestation I do not question but the Authour of the Letter did reade the Bishops Protestation at large in the Parlament-Rolls 11 R. II. And can any thing be plainer then that therein they challenge a Right of Peerage to themselves ut Pares Regni cum caeteris Regni Paribus c. And this Protestation he saith was enter'd by consent of the King Lords Temporal and Commons as is expressed in the Rolls Were the Temporal Lords awake or were they mean and low-spirited men No they were never higher then at this time when the King himself durst not withstand them What could it be then but meer conviction of their just Right of Peerage which made them suffer such a Protestation as that to pass after so solemn and unusual a manner and to be enrolled par Commandment du Roy assent des Seigneurs Temporels Communs as it is in the Rolls Was all this onely a Complement to the Potent Clergy at that time But who can imagine that King Lords and Commons should complement at that rate as to suffer the Bishops to challenge a Peerage to themselves in Parlament if they had not an undoubted Right to it This one argument is sufficient to convince any reasonable man Especially when we consider that in the same Parlament before the Protestation was brought in a motion was made n. 7. by all the Lords Spiritual and Temporal which they claimed come leur libertez franchise as their Liberty and Privilege that all weighty matters moved in this Parlament or to be moved in any to come touchant Pieres de la Terre concerning the Peers of the Realm should be determin'd adjudged and discussed by the course of Parlament and not by the Civil nor by the Common Law of the Land used in inferiour Courts of the Realm The which Claim Liberty and Franchise the King most willingly allowed and granted in full Parlament From whence it is evident that the King and Parlament did allow the Right of Peerage in the Lords Spiritual for it is said expresly in the Record that all the Spiritual as well as Temporal Lords joyned in this Claim which being allowed them in full Parlament is an evidence beyond contradiction of their Right of Peerage But against this no less is pretended then Magna Charta viz. that every man who is tried at the King's Suit must be tried by his Peers Now if a Bishop be tried for any Capital offence he is tried by the Commoners and that is the Common Law of England it hath ever been so never otherwise then must Commoners be his Peers and he and Commoners must be Pares To this Argument how strong soever it appears these two things may be justly answer'd 1. That the matter of Fact cannot be made out that a Bishop hath always been tried by Commoners 2. That if it could it doth not overthrow their Peerage in Parlament 1. That the matter of Fact cannot be made out viz. that if a Bishop be tried for a Capital Offence he is tried by the Commoners that it hath ever been so never otherwise For in 15 Ed. III. Iohn Stratford Archbishop of Canterbury was at the King's Suit accused of Capital Crimes viz. of no less then Treason and Conspiracy with the French King He put himself upon his Trial in Parlament A Parlament was called and he at first refused admission into the House which he challenged tanquam major Par Regni post Regem Uocem primam in Parlamento habere debens as the First Peer of the Realm after the King and having the first Uote in Parlament Upon which and the intercession of his Friends he is admitted into the House and there he put himself upon the Triall of his Peers At which time a great Debate arose in the House which continued a whole Week and it was resolved that the Peers should be tried onely by Peers in Parlament Whereupon the Archbishop had 12 Peers appointed to examine the Articles against him 4 Bishops viz. London Hereford Bath and Exceter 4 Earls Arundel Salisbury Huntingdon and Suffolk and 4 Barons Percy Wake Basset and Nevil Here we have all that can be desired in the case Here is a Bishop tried at the King's Suit and for a Capital Crime and yet not tried by Commoners but by his Peers and that after long debate in the House concerning it If it be said that he was tried by the Lords as Iudges in Parlament and not as his Peers it is answer'd 1. Then Bishops are Iudges in Parlament in Cases Capital for so this was and 4 Bishops appointed to examine it 2. The Debate in the House was about Trial of Peers by their Peers and upon that it was resolved that the Archbishop should be tried by the House For the King designed to have him tried in the Exchequer for the matters objected against him and the Steward of the King's House and Lord Chamberlain would not suffer him to enter into the House of Lords till he had put in his Answer in the Exchequer Upon which the great Debate arose and therefore the Resolution of the House is as full a Precedent in this Case as can be desired I do not deny that the Rolls of Parlament of that year seem to represent the 12 Peers as Birchington calls them not as appointed to examine the particular Case of Stratford but to draw up in form the desire of the Peers as to a Trial by their Peers in Parlament the which is extant in the Record 15 Ed. III. n. 7. However this Argument doth not lose its force as to the Peerage of the Bishops but it is rather confirmed by it For there they pray the King by the Assent of
the Prelats Counts and Barons that the Peers of the Realm may not be judged but in Parlament per lour Piers and by their Peers and after it follows that they may not lose their Temporalties Lands Goods and Chattels c. Who were capable of losing their Temporalties but the Prelats Therefore this Law must respect them as well as others As farther appears not onely by the Occasion but by the Consequent of it For it follows n. 8. that the Archbishop of Canterbury was admitted into the King's Presence and to answer for himself in Parlamentdevant les Piers before his Peers which the King granted So that the Rolls of Parlament put this matter beyond contradiction In 21 R. II. Thomas Arundel Archbishop of Canterbury was impeached of High Treason before the King and Lords in Parlament The King ' s answer was That forasmuch as this Impeachment did concern so high a Person Pier de son Roialm it is in the Record but left out in the Abridgment and a Peer of the Realm the King would be advised But soon after he was condemned for Treason by the House theProxie of the Bishops Sir Tho. Percy giving his Vote The force of this doth not lie barely in his being impeached before the House of Peers in time of Parlament but that the King called him in his Answer a Peer of the Realm And because two Laws were already passed the one that Peers were to try none but Peers 4 Ed. III. n. 6. the other that Peers were to be tried onely by their Peers 15 Ed. III. n. 7. the former of these the Authour of the Iurisdiction of the House of Peers asserted one well known to the Authour of the Letter would have onely looked on as a Temporary Order of the House But our greatest Lawyers are of another opinion And an eminent Lawyer still living urged this as an Act of Parlament because it is said that the King in full Parlament assented to it and he added that the words are both Affirmative and Negative they shall not be bound or charged to try any other then Peers but be thereof discharged and that therein they declare it to be against Law for them to exercise Iurisdiction on those who were not their Peers From whence it follows that since Stratford and Arundel Archbishops of Canterbury were allowed to be tried by the House of Peers without Impeachment from the Commons they were looked on as Peers by the whole House The latter Act the same Authour cannot deny to be a binding Law but he hath a strange fetch to avoid the force of it viz. that this Law was made with respect to the Case of Roger Mortimer 4 Ed. III. and not to the Case of Stratford then in Agitation which is without all colour of Reason For the Case then was of a different nature viz. about the Peers trying those who were not Peers as Sir Simon Bereford c but here the case was whether Peers should be tried by any others then their Peers and the King granted they should not Now upon this Stratford was allowed to be tried by his Peers in Parlament and therefore this Trial upon these Acts is an invincible Argument of the Peerage of the Bishops In 28 H. VI. when William de la Pole Duke of Suffolk waved being tried by his Peers and submitted to the King's Mercy the Record saith as the Authour of the Letter himself confesseth that Viscount Beaumont on the behalf of the LordsSpiritualand Temporal and by their advice assent and desire moved the King that a Protestation might be enter'd in the Parlament-Roll that this should not be nor turn in prejudice nor derogation of them their Heirs ne of their Successours in time coming but that they may have and enjoy their Liberties and Freedoms as largely as ever their Ancestours and Predecessours had or enjoy'd them before this time Which Sir R. Cotton more briefly expresseth n. 52. that neither they nor their Heirs should by this example be barred of their Peerage The Authour of the Letter more fully puts in Successours as well as Heirs for this Protestation was made in behalf of the Lords Spiritual as well as Temporal But very unfairly leaves out the most material words in the Record viz. after Freedoms in case of their Peerage And I appeal to the Authour himself whether these words be not in the Record and with what ingenuity they are left out I cannot understand I do not charge the Authour of the Letter himself with this but whosoever searched the Records for him hath dealt very unfaithfully with him And I suppose if he had seen this passage himself he would never have so peremptorily denied the Peerage of the Bishops nor asserted with so much assurance that they are onely to be tried by Commoners and that it was always so and never otherwise 2. Suppose the Bishops have been tried by Commoners out of Parlament this doth not take away their Right of Peerage in Parlament For all our dispute is concerning the Right of their Peerage in Parlament and if that be allowed we are not to dispute concerning the difference that in some respects may arise by Custom or practice of Common Law between Peers by Descent and Peers by Tenure in Right of their Baronies And therefore the Authour of the Peerage of the Lords Spiritual might have spared all the needless pains he takes about this for we do not contend that they have an Inheritable Peerage but that they are Peers in Parlament having a Right to sit and judge there by virtue of their Baronies But from hence he undertakes to prove that by Magna Charta they cannot be Iudges of such who are ennobled in Bloud This comes home to our present business and therefore must be considered 1. He saith that he who hath onely a Praedial or Feudal and not Personal Peerage can have no Iurisdiction but such as is suitable to the nature of his Peerage and therefore can onely extend to matters of property and possession and not to matters of Bloud But that this is a very trifling and ill-consider'd argument appears by this that he grants a Lord Keeper Lord Privy Seal Lord Treasurer to be Peers by their Offices for as he speaks after Regradation their Peerage is ended and he will not deny that these may sit as Iudges in Capital Cases although they be Peers onely by their Offices Those that are Peers in Parlament have Right to judge in all Cases that belong to the Iudicature of Parlament 2. He saith that the Reason of Magna Charta is that the Iudges and Prisoner may be under the same Circumstances But this kind of arguing as well excludes a Lord Keeper who is no Baron as a Bishop and supposes that mens capacity for Judgment depends upon perfect equality of Circumstances whereas Knowledge and Integrity go farther towards constituting one that is a Peer but in one respect a just
together and all things tend to an open Rebellion His Son Ed. II. calls a Parlament at London and promises a Confirmation of the Charter and that no Taxes should hereafter be raised either on Clergy or Laiety without their consent Which being sent over Edw. I. confirmed it with his own Seal which was all done within the compass of this year But he again ratified it in the Parlament 27 Ed. I. So that nothing was done in that Parlament at S. Edmondsbury but granting a 12 th of the Laiety to the King And when the great Laws were passed the King and Clergy were reconciled and they sate in Parlament And the Archbishop of Canterbury fell into the King's displeasure afterwards for being so active a promoter of them The summe then of this mighty argument is that the Lords and Commons once granted their own Subsidies without the concurrence of the Clergy therefore the Clergy are no essential part of the parlament 3. The Reason assigned in Keilway's Reports why the King may hold a Parlament without the Bishops is very insufficient viz. because they have no place in Parlament by reason of their Spiritualty but by reason of their Temporal possessions The insufficiency of which Reason will appear by two things 1. That it is not true as appears by this that the Clergy are one of the Estates of the Kingdom and all the Estates of the Kingdom must be represented in Parlament 2. Were it true it is no good Reason For why may they be excluded because they sit on the account of their Baronies Where lies the force of this Reason Is it because there will be Number enough without them That was the Rump's Argument against the Secluded Members And I hope the Authour of the Letter will not justify their Cause Or is it because they hold their Baronies by Tenure So did all the ancient Barons of England and why may the King hold his Parlament with the other Barons without the Bishops and not as well with the Bishops without the other Barons Which I do not see how it can be answer'd upon those grounds Suppose the Question had been thus put Since all the ancient Lords of Parlament were Barons by Tenure and Parlaments were held for many Ages without any Barons by Patent or by Writ why may not the King hold his Parlament after the ancient way onely with Barons by Tenure I do not see but as good a Reason may be given for this as that in Keilway's Reports All that I plead for is that our good ancient and legal Constitution of Parlament may not be changed for the sake of any single Precedents and rare Cases and obscure Reports built upon weak and insufficient Reasons For as the Authour of the Letter very well saith Consuetudo Parlamenti est Lex Parlamenti The constant Practice of Parlaments and not one single Instance is the Law of Parlaments And suppose that Precedent of 25 Ed. I. as full as could be wished in this case yet I return the answer of the Authour of the Letter in a like case This is but one single Precedent of a Parlament without Bishops against multitudes wherein they were present it was once so and never but once And can that be thought sufficient to alter and change the constant course and practice of Parlaments which hath been otherwise Nothing now remains but a severe reflexion on the Popish Bishops for opposing the Statute of Provisors and the several good Acts for the Reformation But what this makes against the Votes of Protestant Bishops is hard to understand If he thinks those could not make a good Third Estate in Parlament who took Oaths to the Pope contrary to their Allegeance and the interest of the Nation so do we If he have a great zeal for the Reformation so have all true Members of the Church of England who we doubt not will heartily maintain the Cause of our Church against the Vsurpations of Rome though the heat of others should abate For did not our Protestant Bishops seal the Reformation with their Bloud and defend it by their admirable Writings What Champions hath the Protestant Religion ever had to be compared in all respects with our Cranmer â—idley Iewel Bilson Morton Hall Davenant and many other Bishops of the Church of England And notwithstanding the hard fortune Archbishop Laud had in other respects not to be well understood in the Age he lived in yet his enemies cannot deny his Book to be written with as much strength and judgment against the Church of Rome as any other whatsoever I shall conclude with saying that the Clergy of the Church of England have done incomparably more Service against Popery from the Reformatition to this day then all the other Parties among us put together And that the Papists at this time wish for nothing more then to see men under a pretence of Zeal against Popery to destroy our Church and while they cry up Magna Charta to invade the legal Rights thereof and thereby break the first Chapter of it and from disputing the Bishops presence in Cases Capital to proceed to others and so by degrees to alter the ancient Constitution of our Parlaments which will unavoidably bring Anarchy and Confusion upon us from which as well as Popery Good Lord deliver us THE END Letter p. 1. Lett. p. 93. Lett. p. 3. 118. Lett. p. 66. P. 21. Lett. p. 2 3. Lett. p. 5. Lett. p. 86. Hincmar Epist de Ordine lalatii Concil Franc. c. 3. 9. Marculph Form l. 1. c. 25. Not. in Marc. p. 287. Concil Tolet 4. c. 75. 5. c. 7. 6. c. 17. 8. in Praef. 12. c. 1. 17. c. 1. 17. c. 1. Cont l. Tolet 13. c. 2. Rer. Aleman To. 2. Cod. Leg. Antiq. B. 362. Arumae de Comitiis â— 35. c. 4. â— 98. Goldast Bohem l. 5. c. 1. Bonfin dec 2. l. 1. Decret Ladiss p. 12. Starovolse â—olon p. 2â—5 Herburt Stat. Regni Pol. p. 263. Adam Brem de situ Dan. n. 85. Loccen Antiq Sâ—eco Goth. c. 8. Ius Aulicum Nâ—rveg c. 3. c. 36. Lett. p. 3 4. Stat. Merton c. 9. 20 H. 3. Dissert ad Flet. c. 9. § 2. Soz. hist. l. 1. c. 9. Capitul Carol Ludov l. 6. c. 281. ed. Lindenb c. 366. ed. Baluz Cod. Just. de Epise Audient l. 1. tit 4. c. 8. Cod. Theodos l. 16. tit 11. c. 1. Greg. NysS vit Greg. Basil. in ep Socr. l. 7. c. 37. Ambros. de Offic. l. 2. c. 24. Aug. ep 147. in Ps. 118. conc 24. Jac. Goth. in cod Theod. ad Extrav de Episc. judicio Concil Sardic c. 7. Balsam in Can. 4. Concil Chalced. Auth. Collat 1. tit 6. Novell 6. c. 2. Justin. Cod. l. 1. tit 3. c. 41. Cod. Theod. l. 16. tit 2. n. 38. Lindwood l. 3. de Testam Lett. p. 4. Lett. p. 68. Lett. p. 69. Lett. p.