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
it was lawful for him sometimes to reprove the other and to reduce him bring him into order if he went astray He leaves out what the Bishops work was he omits that clause Episcopus ut jus Divinum diceret for this was not to try Capital Crimes But Sir Henry Spelman tells us further that that Court had cognisance but of petty matters De causis Magnatum Potentiorum non cognovit Comes nam he ad Aulam Regiam deferende Pauperum tantum minus potentum judicabat Hinc Legibus nostris hodie prohibetur debili aut injuriarum actiones in Comitatu intendere si rei litigate valor non sit minor 40 solidis The Earl hath not cognisance of great mens business for such matters are to be brought into the Kings Courts he only judges poor mens Causes Hence it is that by our Law Actions for Debt and Trespasses are not to be commenced in the County Court if it be for above the value of 40 Shillings Judge now I pray you what all this makes to prove that Bishops have right to judge of Treason Felony and those transcendent Crimes which deserve death He then quotes Mr. Selden and makes him say in his Introduction to his Treatise of the Priviledges of the Barons of England that Omnes Praelati Magnates had this Priviledge till the Prelates lost it by the Parliament of 17 Car. 1. I find no such thing there he saith That the Prelacy had heretofore the first place in the Summons but that they had then lost it And this I observe further that Mr. Selden makes the whole upper House to be but one Estate whether the Bishops be there or No It was one Estate formerly when the Bishops had the Priviledge of sitting there and when they had the first place in the Summons and it was one Estate then in Mr. Seldens time when they had lost that Priviledge but our Assertor in the Printed Paper would take no notice of this Now I come to his Precedents he first begins with their Proxies and cites many Parliaments where Bishops gave Proxies which no man denies and they do it still only they give their Proxies now only to Bishops like themselves who are Members of the House not to such as are no Members as it seems they did then But giving Proxies to represent the whole Bench of Bishops or any one Bishop in any Judgment of death except in that one Parliament of 21 R. 2. I utterly deny Indeed he tells us of the 2. H. 4. and 2 H. 5. that they did it it there in those Parliaments but I dare say he cannot find it there I am sure I cannot and I do verily believe he never looked there but that he takes it upon trust out of the Margin of pag. 125. of Mr. Seldens Book of the Priviledges of the Baronage where indeed there is such a quotation but misplaced by the Printer having reference to what is said at the end of the Paragraph of Thomas Earl of Salisbury 2 H. 5. endeavouring to reverse the Attainder of his Father Iohn Earl of Salisbury who was attainted 2 H. 4. and not at all concerning what is said of Proxies in the first part of the Paragraph as our Assertor would here apply it Then he cites a Precedent or two to make out that Bishops were personally present at the giving of some Judgments of Death which if they be truly related he saith something but I believe they will be found to be of as little weight as all he said before His first is among the Pleas of the Crown 21 R. 2. of the Impeachment as he calls it of the Earl of Arundel and others by the Lords Appellants the Earls of Rutland Kent Huntington and others He saith the Earl of Arundel being brought to the Bar by the Lord Nevil Constable of the Tower that the Articles exhibited against him by the Lords Appellants were read to which he only pleaded two Pardons which Pardons not allowed the Lords Appellants demanded Judgment against him Whereupon the Lord Steward by the Assent of the King Bishops and Lords adjudged the said Earl guilty and Convict of all the Articles and thereby a Traitor to the King and Realm and that he should be therefore Hanged Drawn and Quartered This our Assertor saith who quotes Sir Robert Cottons Collections for it and there indeed it is so but methinks one should not venture to quote a Record upon any mans Allegation without consulting the Record it self and that I am sure he hath not done for it saith expresly that it was only the Lords Temporal and Sir Thomas Percy Proctor for the Prelats that gave that Judgment The words of the Record are Sur quoy le dit Duc de Lancaster per commandement du Roy toutz les Srs. Temporels Mr. Thomas Percy aiant poair sufficiant des Prelatz Clergie du Roialme d'Engleterre come piert de Record en le dit Parlement per assent du Roy agarderent le dit Counte d' Arundel coupable convict de toutz les pointz dount il est appellez per taunt luy ajuggerent Traitour au Roy au Roialme quil soit treinez penduz decollez quarterez Whereupon the said Duke of Lancaster by the Kings Command and all the Lords Temporal and Sir Thomas Percy being sufficiently empowered by the Bishops and Clergy of the Kingdom of England as appears upon Record in the said Parliament did by the Kings assent declare the said Earl of Arundel guilty and convict of all the points of which he was accused and therefore did adjudge him a Traitor to the King and Realm and that he should be drawn hanged his head cut off and body quartered You see the Bishops were none of them present but theit Procurator was to which in my Letter I have largely spoken and need not repeat it here He urges also a Precedent in this same Parliament of the Commons by the mouth of their Speaker Sir Iohn Bussy praying the King That for that divers Iudgments were heretofore undone for that the Clergy were not present that the Clergy would appoint some to be their Common Proctor with sufficient authority thereunto I have already shewed that this whole Parliament was repealed for the extravagant things that were done in it of which this was one And therefore nothing that was then done can signifie any thing to be a leading Case any ways to be followed And this as little as any except it could be made appear which I am confident it cannot that some Judgment had been reversed upon that account because the Prelates were not present and had not given their Assent to it Indeed 2 H. 5. Thomas Montacute Earl of Salisbury attempted it brought his Writ of Error to reverse the Judgment given 2 H. 4 against his Father Iohn Earl of Salisbury and did assign that for an Error as the Record saith Item Error de ceo que le dit John susdit Count dust forfaire terres tenements sans assent des Prelates qui sont Piers en Parlement les queux ne furent mye faits parties as Declaration Iuggementz avandits Item An Error in this that the foresaid Earl John should forfeit Lands and Tenements the Prelates not assenting who are Peers of Parliament yet were not at all made parties to the abovesaid Declaration and Iudgments But this was adjudged to be no Error and the Condemnation of his Father to have been just and Legal And I am very confident that this is the only Precedent of such an Attempt and yet it makes a stronger argument against it that it was endeavoured and rejected for now it is a Judged Case And besides as I have already observed this desire of the Commons of their making a Proctor shews what the opinion of those times was that the Bishops could not be personally present at such Judgments which is all that is now in question between us His next Precedent is 3 H. 5. when Rich. Earl of Cambridge and others were tried for Treason for levying War against the King the Bishops then personally sitting in Parliament as he saith and he bids us see the Record in the Tower which I dare say he had not done himself for then he would have found it contrary to what he asserts that Richard Earl of Cambridge and Henry Lord Scroope with him were not Tried nor condemned in Parliament as he saith they were but by a special Commission directed to the Duke of Clarence and other their Peers Earls and Barons at Southampton and were there condemned and executed but the whole Proceedings against them were afterwards brought into Parliament at the desire of the Commons and were there at their desire likewise ratified and confirmed and the Bishops then were and might be present for I look upon it as an Act of Parliament yet not attainting them but confirming their Attainder for they were Convicted Condemned and Attainted before at Southampton His last Chapter of Precedents from H. 8. to the 29 Eliz. is only of Bills of Attainder and so acknowledged by him and therefore Nothing to the purpose As I have said before those Bills are Laws though Private Laws whereto every Freeman of England doth consent either in Person or Represented and Bishops are or should be all present at the passing of them for then they act as Members of the House of Lords in their Legislative capacity But for their being Judges in any Trial of Life and Death or part of a Trial when the House proceeds in a Judicial way I see no reason by all that hath been said on the other side to change my opinion That they ought not Sir you see what is said on both sides be you Judge who is in the right FINIS
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