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
of Northumberland had Petitioned the King for his Pardon for having contrary to his Allegiance gathered Forces and given Liveries The King gave this Petition to the Judges to have their opinion of it the Lords Protested against it and said that the Judgment belonged to them and retained the business Et puis leve entendue la Petition les Srs. come Piers du Parlement a queux tielz Iugement apperteinnent de droit adjuggerent que ceo que fust fait per le Conte nestoit pas trahison mes trespas tant seulement Sur quoy le dit Conte molt humblement remercia le Roy les ditz Srs. ses Piers de lour droiturel Iugement And then the Petition being read and understood the Lords as Peers of Parliament to whom such Iudgments do of right appertain did give their Iudgment that what the Earl had done was no Treason but only a Trespass whereupon the said Earl did most humbly thank the King and the said Lords his Peers for their righteous Iudgment Now the Bishops could not be said to be his Peers which shews they were not there 7 H. 4. A Judgment was given much like to that in the 2 H. 4. The King commanded the Lords Temporal to deliver their advice concerning the Earl of Northumberland and the Lord Bardolph who had been killed at Bramham More in Yorkshire by the Sheriff of the County who therewith the Posse Comitatus encountred them in the field There were proceedings against them in the Court of Chivalry after their deaths upon certain Articles of Treason there exhibited against them These Articles were brought into Parliament upon reading of which those Lords Temporal adjudged their Crime to be Treason 5 H. 5. The Commons Baillerent une Petition delivered a Petition directed Al honorable Prince le Duc de Bedford Gardein d' Engleterre as tres sages Srs. de cest present Parlement To the honourable Prince the Duke of Bedford Gardian of England and to the most wise Lords of this present Parliament that Sir Iohn Oldcastle might be brought before them who was indicted and outlawed in the Kings Bench for Treason and excommunicated by the Archbishop of Canterbury for Heresie and that due execution might be done upon him according to their discretion by authority of Parliament Pur quoy agarde est per les Srs. avant ditz del assent de le dit Gardein a la priere susdit que le dit John come Traitor au Roy a son Royalme so it amesnez a la Tour de Londres dilloeques soit treinez parmi la cite de Londres as novelles Fourches en la paroche de St. Giles illoeques soit penduz ars pendant Wherefore it is adjudged by the Lords aforesaid with the assent of the said Gardian upon the foresaid Request that the said John as a Traitor to the King and his Realm be carried to the Tower of London and thence drawn through the City of London to the new Gallows in St. Giles Parish and there to be hanged and burnt hanging The question is now if it shall be understood that under the general expression of Les Srs. de cest present Parlement the Bishops were comprized and so to have been parties in this Judgment and I conceive not first because I observe that generally throughout all the Records and Journals of Parliament almost in all transactions but especially and constantly I find it so in matters of Judicature where they were present it is always mentioned and expressed so at That the Lords Spiritual and Temporal or That the Prelats and Earls and Barons did so and so as it was in the Cases before mention ed of Sir Iohn Lee Richard Lyons the Lord Latimer and the rest accused of misdemeanours And my other reason is that in this particular Case of Sir Iohn Oldcastle I find the Clergy had done their parts with him before declaring him an Heretick and turning him over to the Secular power as the words of the Excommunication run where after having expressed a great tenderness of the desperate condition of his Soul and much bewailed his obdurateness they do condemn him for a Heretick Relinquentes eum ex nunc tanquam Hereticum Iudicio Seculari Leaving him from thence forward as an Heretick to the Secular Iudgment So certainly those good men I mean those Popish Bishops would have no more to do with him as to his farther Execution that the world might see they were not Men of bloud 2. H. 6. Sir Iohn Mortimer had been committed to the Tower upon suspicion of Treason against Henry the Fifth and made an escape out of prison being taken again he was indicted of Treason at Guild-Hall The Indictment by the Kings command was returned into Chancery then brought into Parliament by the Bishop of Durham Lord Chancellour and by him Coram Humfrido Duce Gloucestriae who in the Kings absence was commissionated to call and hold that Parliament ac aliis Dominis Temporalibus in eodem Parliamento tune existentibus fuit liberatum Was delivered to Humfry Duke of Glocester and other the Lords Temporal being then in Parliament to be by them affirmed as it was and Sir Iohn Mortimer then brought before them and adjudged by them to be drawn hanged and quartered Et super hoc viso plenius intellecto Indictamento per dictum Ducem de avisamento dictorum Dominorum Temporalium ac ad requisitionem totius Communitatis in presenti Parliamento existentium auctoritate istius Parliamenti ordinatum est statutum c. quod ipse usque ad Turrim ducatur c. And hereupon the said Indictment being seen and well understood it was by the said Duke by the advice of the said Lords Temporal at the prayer of the whole Commonalty in this present Parliament and by the Authority thereof Ordered and Decreed c. that he should be led to the Tower and from thence drawn to Tyburn and there executed We see here the Bishops did not offer to advise so much as concerning the Indictment if it should be admitted of and received by the Parliament though a Bishop being Lord Chancellor was by vertue of his Office to bring it out of the Chancery and present it to the House as he did and there left it 28 H. 6. is the sole single President of Bishops being present and not only so but acting and bearing a principal part in a Judicial proceeding in Parliament in a Case that was in it self Capital though strangely shuffled off and Justice wholly eluded Ianuary 22. William de la Pole Duke of Suffolk preferred a Petition to the King complaining how he was defamed as if he were other than a true man to the King and the Realm and desiring that any man would say wherein that he might give his Answer thereunto Munday 26. the Commons sent some of their Fellows to the Chancellour who was Archbishop of York and a Cardinal praying him that whereas
the Preamble that the Prelates had prayed the King that their Temporalties thenceforth might not be seised upon for such contempts sith they were Peers of the Land that is by their own sayings they were Peers for so it was only the Statute doth not make them so The Record is that among the Petitions of the Clergy one is Come Ercevesques Evesques tiegnent lour Temporaltees du Roi en Chief pertant sont Pieres de la Terre come sont autres Countees Barons quil vous pleise a eux graunter que nul Iustice pur soul contemptz puisse desoremes lour Temporaltees faire prendre c. Seeing Archbishops and Bishops hold their Temporalties of the King in Capite and therefore are Peers of the Land as are other Earls and Barons that you will be pleased to grant unto them that no Iudge may henceforward for meer contempts cause their Temporalties to be seised The Answer is That the Law is so and cannot be changed but the King is willing that in such Cases a reasonable Fine may be taken So you see they indeed call themselves Peers which the King takes no notice of in his Answer but speaks to the matter of their Petition And even in his Answer intimates that they are not in the same condition with Earls and Barons for he saith the Law is so for them that is that they should forfeit their Temporalties for such Contempts which no man will say was the Law for Earls and Barons to forfeit their Lands for any Contempt but well were they liable perhaps to pay a good Fine for it So then I may say that those Bishops were a little mistaken to affirm that they were Peers of the Land just as other Earls and Barons are The other Statute is of the 4 H. 5. and is only concerning Ireland it saith That by a Statute in Ireland no Irishman was to be preferred to any Dignity in the Church and yet some were made Archbishops and Bishops and they make their Collations to Irish Clerks then follows And whereas they are said to be Peers of the Parliament in the same Land they bring with them Irish Servants to Parliaments and Councils who give intelligence to the Irish Rebels That Statute is now confirmed And what this makes to prove the English Bishops Peers of the Land I see not nor I think no body else can at most it can but declare them to be Peers of the Parliament of Ireland and it is too even for those Irish Bishops but that they are so said to be that is said to be Peers not that they are so But to prove that they are not Peers of England I think we have a better Law even Magna Charta it self It saith That every man who is tried at the Kings sute 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 the Land it hath ever been so never otherwise then must Commoners be his Peers and he and Commoners must be Pares The Great Charter of Englands Liberties Magna Charta declares them so A Temporal Lord Duke Earl or Baron cannot be Judge in the Case of a Bishop except it be in Parliament where the Temporal Lords be the sole Judges and those to whom Judgment doth properly belong nor on the other side can any Bishop be their Judge how then can they be said to be Pares Fellow Peers For my part I see not Then for their being a Third Estate in Parliament for which that Writer alledges Mr. Seldens authority is a thing so contrary to Reason as I can no ways yield to it First let me lay this foundation that I do acknowledge the Subjects of England to be divided into three Estates The Nobility the Clergy and the Commonalty these are the several Estates of the Kingdom and the Bishops are part and the chief part of one of these viz. the Clergy And sometimes these three Estates have joyned in some transactions as 9 H. 5. in the ratification of a Peace with the King of France Charles the Sixth who had desired it should be so he having had it ratified in France by the three Estates there the Record saith Uolensque idem Serenissimus Dominus noster pro parte sua dictam pacem omnia singula contenta in ea modo consimili per ipsum tres Status Regni sui jurari firmari roborari prout ex dicte pacis tenore astringitur obligatur dictam pacem bene fideliter in omnibus se observanturum in verbo Regio ad Sancta Evangelia per ipsum corporaliter tacta juravit promisit ac dictos tres status viz. Prelatos Clerum Nobiles Magnates nec non Communitates dicti Regni sui secundo Maii ad Palatium suum Westminst ad majora firmitatem robur Pacis predicte fecit congregari quibus quidem tribus statibus per Cancellarium suum tenorem dicte Pacis singulos Articulos ejusdem seriose exponi fecit c. The King willing for his part that the said Peace and all the particulars of it should in like manner be sworn to confirmed and ratified by Him and the three Estates of his Kingdom according as he was obliged by the tenour of it to do did swear and promise laying his hand upon the holy Evangelists in the word of a King that he would well and faithfully observe and keep it in every circumstance And the said three Estates to wit the Prelates and Clergy for one the Nobles and Great men for another and the Commons for the third he caused to come before him the second of May at his Palace of Westminster for the better confirmation and strengthening of the Peace to which three Estates he caused his Chancellour to declare what the Peace was and every Article thereof c. Here indeed the Prelates and all the Clergy together with them are declared to be one of the three Estates of the Kingdom which is to be understood as they are assembled in the Convocation where all are present in their Persons or their Representatives but this is no part of the Parliament nor is it any ways entrusted with the Legislative power though it assemble in Parliament time And in 11 H. 7. the very same Case hapned again and the three Estates of the Kingdom joyned with the King in the Ratification of a Peace with France in the same manner But the three Estates of Parliament are clean another thing Each must have a Negative voice to all that passeth there If the Major part of the House of Commons be against any thing there proposed there is an end of it it is rejected It is the same in the House of Lords and the Bishops are intermingled with the Temporal Lords in making up that Majority as part of that Majority whereas were they one of the Estates reason would they should vote by
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
A LETTER OF A Gentleman to his Friend Shewing that the BISHOPS Are not to be JUDGES IN PARLIAMENT IN CASES CAPITAL Printed in the Year 1679. SIR SInce you desire that I would let you know my opinion whether or no the Bishops may be present and Vote Judicially in Capital Cases which come to be Judged in Parliament either in giving the Judgment itself or in resolving and determining of any circumstance preparatory and leading to that Judgment I must tell you that this is now become Vexata Quaestio The two Houses of Parliament having therein been of different Opinions the House of Peers declaring that the Lords Spiritual have a right to stay and sit in Court till the Court proceeds to the Vote of Guilty or Not Guilty and the House of Commons on the other side insisting That they ought not to have any Vote in the proceedings upon the Impeached Lords And this Difference between the Houses having been the unhappy occasion of Proroguing the Parliament may seem to lay an obligation upon every good English man if to me your satisfaction were not in the case as to wish and pray heartily that these differences may be well composed that no more Remora's may be to obstruct the proceedings of Parliament but that the two Houses may joyn with His Majesty to settle this distracted Kingdom and agree upon then apply all necessary remedies and strong ones they must be for the prevention of those mischiefs which the Enemies of the Protestant Religion and of this Government had been long Contriving and Plotting against us and were now well nigh the atchieving and putting in Execution if God of his infinite Mercy had not looked upon us As this I say ought to be every mans wish and prayer so it cannot but incite every man to satisfie himself and others where the Right is and what he ought to have in his wishes for that Right may prevail is the natural wish of every good man but good men many times differ in their apprehensions what is Right Therefore it deserves a strict inquiry into the Practice of the Parliaments of former times in such matters and well to consider upon what ground the Prelates were prohibited having Votes there in Cases of Blood For that is the Question now before us What was done heretofore and what is now to be done in Parliament that is to say in their Judicial way upon Tryals not in their Legislative capacity passing Acts of Attainder in which I know that Bishops have born a part but that is not now the question Nor do I meddle with the General Question How far forth Clergy-men in Orders are forbidden having any thing to do with Secular matters Nor what in that particular the Imperial Law requires as that Rescript of the Emperours Honorius and Theodosius which Enacts That Clergy-men shall have no communion with publick Functions or things appertaining to the Court Or the Decree of Iustinian That Bishops should not take upon them so much as the oversight of an Orphan nor the Proving of Wills saying it was a filthy thing crept in among them which appertained to the Master of his Revenue Nor what our Common Law of England seems to allow or disallow having provided a special Writ in the Register upon occasion of a Master of an Hospital being it seems a Clergy-man and chosen an Officer in a Mannor to which that Hospital did belong saying it was Contra Legem consuetudinem Regni non consonum It was contrary to the Law and Custom of the Kingdom and not agreeable to reason That he who had Cure of Souls and should spend his time in Prayer and Church-Duties should be made to attend upon Secular Employments I meddle not neither with what seems to be the Divine Law as having been the Practice of the Apostles and by them declared to be grounded upon Reason and to be but what in reason ought to be which was this That they should not leave the word of God and serve Tables though that was a Church-Office and yet they say it is not reason we should do that for their work was the Ministry of the Word and Prayer much less then were they to be employed in Secular affairs None of this I say is my business my task is only to inquire what the Law of Parliament is in this particular and what is so is the Law of the Land And my method shall be to run through all the Parliaments that are upon the Rolls in the Tower and take notice of all the Tryals there Recorded as well in Cases Capital as in those that were not so and shew the difference in the Parliamentary proceedings upon them how the Bishops and Prelates did commonly joyn with the Temporal Lords in Judging such as were not Capital and not yet always so when the Crimes were of a bigger magnitude but never but once when the Accusation was for a Capital Crime which was in the Duke of Suffolks Case 28. H. 6. when the whole proceeding was so irregular and Unparliamentary as it is to be wondered at but certainly never to be followed it is like the Bird in the Poet Rara avis in terris nigroque simillima cygno as shall be shewed more particularly when I take it up in its Order as it is mentioned upon the Rolls And so I come to my Narrative 4. E. 3. Roger Mortimer Earl of March Sir Simon Bereford and others were Accused and Tryed in Parliament And the Roll of that Parliament is so defaced as it cannot be read but 28. E. 3. Roger of Wigmore Cosin and Heir of that Earl of March desires that Attainder may be examined and by the whole proceedings there repeated it appears none of the Prelates were present the words are Dont le dit Sr. le Roi vous charge Countes Barons les Piers de son Roialme que de si come cestes choses touchent principalement a lui a vous a tout le people de son Roialme que vous faciez au dit Roger droit loial Iuggement come affiert a un tiel daver Therefore our said Lord the King charges you who are Earls Barons the Peers of the Realm that as these things chiefly concern him and you and all the people of the Kingdom so you give upon the said Roger a right and legal Iudgment as it belongs to such a one to have Then follows Les queux Countes Barons Piers les articles par eux examinez revindrent c. Which Earls Barons and Peers having examined the Articles returned c. And gave the Judgment which was that they should suffer death The Bishops cannot be understood to be comprized here under the general name of Peers since the Barons are first in rank and besides they cannot pretend to be Peers of the Realm 5. E. 3. The Parliament was declared to be called for the redress of the breach of the Laws and of the Peace of the Kingdom
Et pur ce que a vis feust a les ditz Prelatz quil ne attenoit pas proprement a eux de conseiler du garde de la pees ne de chastiement des tielx malueis si alexent mesmes les Prelatz c. And because the Prelates were of opinion that it belonged not properly to them to give Counsel about keeping the Peace nor punishing such evils they went away by themselves and they returned no more Et les ditz Countes Barones autres Grantz per eux mesmes And the said Earls Barons and other great ones went by themselves and these return and by the mouth of the Lord Beaumont declare their opinions what was to be done Commissioners to be appointed in every County of the best men des plus grantz they to be Gardeins de mesme le Comte Guardians or Conservators of the County These Commissions afterwards brought into Parliament were read and approved by Nostre Sr. le Roi les Countes Barons autres Grantz our Lord the King the Earls Barons and other great ones no Bishops so much as to hear the Commissions read because they were to enquire into all Crimes as well Capital as other the Prelates must have no hand in it In the same Parliament Sir Iohn Grey and Sir Will de la Zouch had quarrelled in the Kings presence Sir Iohn had mis mein au cotel laid his hand upon his Sword they had been imprisoned and the business brought into Parliament Le Roi chargea de par la bouche le dit Mr. Geffrey le Scrope toutzles Countes Barons autre Grantz en les foies ligeances queulx ils devoient au Roi de lui conseiller ce quil devoit faire de si grand excesse fait en sa presance The King by the mouth of Sir Geffrey Scrope charged all the Earls Barons and other great ones in their Faith and Allegiance which they ow him to give him Counsel what he ought to do upon such an exorbitancy committed in his presence they go and consider of it acquit Zouch judge Grey to Prison here were no Bishops neither to Judge so much as of a Battery 25. E. 3. The proceedings and Judgment of death against Sir Will. de Thorp Chief Justice for Bribery were brought into Parliament which the King caused to be read Overtement devaut les Grantz de Parlement pur saver ent lour avys examine sur ceo chescun aprez autre si sembla a eux toutz c. To be read openly before the Grantz the great men of Parliament to have their advice upon it and being all asked one after another it seemed to them all that they were very just Et sur ceo il fut accorde par les Grantz de mesme le Parlement que si nul autre tiel cas aveigne que nostre Sr. Le Roi preigne lui des Grantz que lui plairra pur per lour bon a vis faire ceo que pleise a sa Roiale Seignurie Vpon this it was agreed by those Grantz those Great men of the Parliament that if any such other case should happen our Lord the King might take any one of those Grantz those Great men whom he should please to do by their good advice what he should think good It cannot be understood any Bishops were here under the name of Grantz and to be of the number of those whom the King should take to assist and advise him in such other Judgments of death for the time to come if occasion were which could be no employment for Bishops being to give Judgments of death 42. E. 3. Sir Iohn de Lee Steward of the Kings House charged with several misdemeanors the Record saith Et apres manger vindrent les Prelats Dues Countes Barons ascuns des Cōes illoeques feust fait venir Mr. Iohn de Lee c. And after they had eaten the Prelats Dukes Earls Barons and some of the Commons came and Sir John de Lee was fetcht thither c. The business was there heard and he was sent to prison Here the Prelats were present for the Crime was not Capital 50. E. 3. Several persons are accused even by the Commons for misdemeanors and the Bishops present at their Trials and Judgments as Richard Lyons who had been Farmer of the Customs the Lord Latimer who was the Kings Chamberlain for Oppression in several places in Britain and in England he was by the Bishops and Lords adjudged to be imprisoned and put to Fine and Ransom and then the Commons desired he might lose all his Offices and no longer be of the Kings Council which the King granted Yet after this 51. E. 3. at the request of the Commons themselves he was restored to all and declared innocent which I take notice of by the way At this Parlament of 50. William Ellis of Yarmouth as privy and accessary to the misdemeanors of Lyons Iohn Peach of London for getting a Monopoly of sweet Wines the Lord Iohn Nevil a Privy Counsellor for buying some debts due by the King at easie prizes to make advantage to himself At all these Trials the Bishops were present and no body says but they might 1. R. 2. William de Weston and Iohn de Gomenitz were tried for surrendring Towns and Castles in Flanders to the Kings Enemies they had put in their Answers Friday Nov. 22. Saturday they are brought to the Parlament and Sir Richard le Scrope Steward of the Kings House A commandement de Seigneurs avant-ditz By the command of the Lords aforesaid told them That the foresaid Lords and the Record tells you who those Lords were cest assavoir to wit the Duke of Lancaster the Earls of Cambridge March Arundel Warwick Stafford Suffolk Salisbury and Northumberland and the Lord Nevil Lord Clifford plusours autres Seigneurs Barons Bannerettes esteants au dit Parlement savoient assemblez avisez Many other Lords Barons and Bannerets being in the said Parliament had met and advised upon it from the time they had put in their Answers and found they were not satisfactory and then gave sentence saying that those Lords had adjudged them to death first Weston was called and this said to him and then Gomenitz Here was none of the Prelats named and it cannot be imagined they should be under the general expression autres Seignieurs Barons Bannerettes And other Lords Barons and Bannerets after the naming of two Barons for if there had been Bishops they would have been named before them Observe likewise that no Bishops were present from the time that the Prisoners Answers came in to have Vote and determine concerning any part of their Answer Pardon or whatever they had pleaded In the same Parliament and the very next thing upon the Roll is the Case of Alice Perrers accused for breach of an Ordinance made 50 E. 3. against Womens medling with State Affairs there the Record saith that she was Fait venir
devant les Prelats les Seignieurs du Parlement pour y respondre Made to come before the Prelats and the Lords of the Parliament to make answer and then follows Et sur ceo par commandement des Prelats Seignieurs le dit Mr. Richard le Scrope rehercea l'Ordonance And then by the command of the Prelates and Lords the said Sir Richard le Scrope rehearsed the Ordinance And then she was heard to the particulars with which she was charged and at last was adjudged to be banished and forfeit her Estate Observe in the Trial of Weston and Gomenitz that only those Temporal Lords there named had met and considered of the Answers put in by them as preparatory for the Trial and Judgment and no Bishop present there And here in the Trial of Alice Perrers which followed immediately after it is particularly expressed that they were present and did Vote and Judge as far forth as the Lords Temporal 3 R. 2. The two Merchants that had killed Iohn Imperial a Publick Minister sent from Genoa an Act of Parliament passed to make it Treason the Bishops had no Vote in the passing of this Act the Record saith Fait a remembrer que cest darrein Ait issint faite si fust fait par les Iustices en presence du Roy des Seigneurs Temporelz en ce Parlement Memorandum that this last Act so made was drawn by the Iudges in the presence of the King and the Lords Temporal in this Parliament They were not so much as present when the Judges were in the preparing of it 4 R. 2. Sir Ralph de Ferrers arrested by the Duke of Lancaster upon suspicion of Treason for holding intelligence with the French brought into Parliament and there tried Semblast as Seigneurs du Parlement que le dit Mr. Rauf estoit innocent It seemed to the Lords of the Parliament that Sir Ralph was innocent Can any man think the Bishops were there and comprised under the general expression of les Seigneurs du Parlement When they were present it is always particularly expressed as in Alice Perrers Case 1 R. 2. and all those questioned and punished for misdemeanors 50 E. 3. the Lord Latimer and Lyosn c. Alice Perrers was Fait venir devant les Prelats Seigneurs du Parlement was made to come before the Prelates and Lords of Parliament They were Judged by the Bishops and Lords the Record saith 7 R. 2. The Bishop of Norwich who had undertaken an expedition into France and not performed the conditions was charged with several miscarriages and misdemeanours in his employment and one crime capital which was betraying Graveling to the French for 10000 Franks in Gold of which yet he cleared himself Yet that being in for one of his charges none of the Bishops were present at his Trial but Michael de la Pool gave this Judgment at the last Le Roi nostre Sr. a bien entendu ce que vous a vez dit ent a eu bone deliberation avec les Srs. Temporalz semble au Roi as Srs. Temporalz avant-ditz que vos responses ne sont rien a propos Parquoy del assent des Countes Barons autres Srs. Temporelz en cest Parlement est assentuz accordez que vous soiez en la merci le Roy mis a fin a raunceon Our Lord the King hath well heard what you have said and hath with his Lords Temporal well considered of it and it seems to him and to the Lords Temporal aforesaid that your answers are nothing to the purpose Therefore by the consent of the Earls Barons and other Lords Temporal in this Parlement it is agreed that you shall be at the Kings mercy and put to fine and ransom The Chancellor likewise gave judgment in the same way that Parliament on Sir William de Elmham Sir Thomas Trivet and others for giving up Holds and Fortresses and taking money for them 10 R. 2. Michael de la Pool Lord Chancellor was accused by the Commons for several misdemeanors devant le Roi Prelatz Seigneurs Before the King Prelates and Lords Here the Prelates are Judges of misdemeanors together with the other Lords 11. R. 2. The five Lords Appellants the Duke of Gloucester Earls of Derby Arundel Worcester and Earl Marshal making their Protestations that what they attempted touching their Appeals was for the honour of God safety of the King the Realm and their own Lives The Archbishop of Canterbury for himself and the whole Clergy of his Province entred a Protestation and the Bishops of Durham and Carlisle did the like That they absented themselves from Parliament in regard such matters were to be there agitated but with a Salvo to their right Which some will have to be understood of a right to be present even when those matters were in agitation and that it was only upon some prudential consideration that they did withdraw But this could no ways be their meaning but they protested their having a right to sit and Vote in Parliament upon all other occasions in the general Though upon that occasion they might not be present The words of their Protestation make it evident Nos Willielmus Cant. Archi-Episcopus pro nobis suffraganeis Coepiscopis c. protestamur quod intendimus intendi volumus in hoc presenti Parlemento aliis interesse consulere tractare statuere definire c. ac cetera exercere cum ceteris jus interessendi habentibus in omnibus in eisdem statu ordine nostro semper salvis Uerum quia in presenti Parliamento agitur de nonnullis materiis in quibus non licet nobis alicui eorum juxta sacrorum Canonum instituta quomodolibet personaliter interesse eo propter potestamur quod non intendimus nec volumus sicuti de Iure non possumus nec debemus dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos penitus absentare c. We William Archbishop of Canterbury for our selves our Suffragans and fellow Bishops protest that we do intend and will be thought so to do to be present in this and other Parliaments to consult treat of and determine c. and do other things together with others who have right to be here in all matters our state and order always saved unto us entire in the same But because in this Parliament some matters will be agitated at any one of which by the institutions of the holy Canon Law we cannot be personally present we do therefore protest that we intend not nor will not as by the Law we ought not nor can we in in any sort be present whilst any of those matters are in debate or coming into debate but we will absent our selves altogether c. It is plain by the Record that what they will have to be Salvum to them is their sitting and acting consulere tractare statuere To consult treat of and determine in that
and all other Parliaments when such matters are not in question But for such matters they say Non licet alicui eorum personaliter interesse And de jure non possumus nec debemus interesse It is not lawful to be present in person at any of them and rightly we cannot nor ought not to be present Can it then be thought they should lay claim to any right to what they say Non licet de jure non possumus nec debemus It is not lawful and by right we cannot nor ought not And to say their meaning was that by the Law of the Land or Custom of Parliament they might and that it was only the Canon Law which hindred them can have little colour for the Canon Law was to them above all Laws and what was forbidden by that Law they could not have a thought that it could in any sort be lawful for them to challenge as their right upon any account It is further observable here that they profess Quod de jure non possumus nec debemus dum de hujusmodi materiis agitur vel agetur quomodolibet interesse that is all the time that such matters are in agitation there is no exception of Preliminaries and Preparatories and of being present and having vote during all the debate till the pronouncing of Sentence for it is Dum de hujusmodi materiis agitur vel agetur the whole time from the beginning to the ending and when such businesses are to come on that is when they are going upon them and when they begin And then consider the close of this Record Quelle Protestation leve en plein Parlement al instance priere du dit Ercevesque les autres Prelatz susditz est enrolle ycy en Rolle du Parlement per commandement du Roy assent des Seigneurs Temporelz Comunes Which Protestation being read in full Parliament at the instant desire of the Archbishop and other the Prelates aforesaid is entred upon the Parliament Roll by the Kings command with the assent of the Lords Temporal and Commons Which is all the formality of passing Laws in Parliament that was used in those times Which was only to have it entred in the Roll or Journal Book that such a thing was agreed upon by the King and the two Houses then it was drawn into the form of a Law afterwards by the Justices and Kings Council when the Parliament was risen So as whatever was the Law before if it were only the Canon Law it is now come to be the Law and rule of Parliament and the Law of the Land but in truth it was so before and was always so 20. R. 2. Thomas Haxey Clerk had preferred a Bill in the House of Commons for regulating the outragious expences of the Kings House particularly of Bishops and Ladies De la multitude d' Evesques lour meignee aussi de plusours Dames lour meignee qui demeurnt en l hostel du Roy sont a ses coustages Of the many Bishops and their company and also of many Ladies and their company that live in the Kings House and at his charge The King being exceedingly moved at this some Bishops and Lords were sent to the Commons to let them know it and to enquire who had made that complaint the Commons delivered the Bill and his name who had exhibited it Haxey was for this tried and adjudged a Traitor and condemned to death for it Which Judgment by the way was most unjust and would not only have shaken but wholly destroyed the very foundation of Parliament deterring all men from representing there and seeking redress of any grievance publick or private had it continued in force and unquestioned but 1. H. 4. it was complained of as erroneous and Encontre droit la course qui avoit este devant en Parlementz Against right and the course of Parliaments and therefore Nostre Sr. le Roi del a viz assent de toutz les Srs. Spirituelx Temporelx ad ordeignez adjuggez que le dit Iuggement soit du tout cassez reversez repellez adnullez tenuz de nul force n'effect Our Lord the King by the advice and consent of all the Lords Spiritual and Temporal hath ordained and adjudged that the said Iudgment be wholly quashed reversed repealed made null and held to be of no force nor effect So this Judgment is damned with Bell Book and Candle one may say and at this the Lords Spiritual were present and had vote but not at the trial and condemnation of Haxey as appears by the Record which saith Fait a remembrer que mosquerdi aprez la Chandelure maintenant aprez le Iugement rendu devers Thomas Haxey Clereâ—que fust ajuggez eu Parlement a la mort come Traitour vindrent devant le Roy en Parlement ovek grand humilite l' Ercevesque de Cantirbirs toutz les autres Preiatz luy prierent de sa grace avoir pitie merci du dit Thomas de remitter l' execution Memorandum that the Wednesday after Candlemas day immediately after that Iudgment was given upon Thomas Haxey Clerk who was in Parliament judged to die as a Traitor the Archbishop of Canterbury and all the other Prelates came with great humility before the King in the Parliament and besought his Grace to have pity and compassion on the said Thomas and to remit his execution which the King granted So we see that after the Judgment given in Parliament the Bishops immediately came into the Parliament to beg for his pardon which shews they were not there before 21. R. 2. The Commons impeached Thomas Arundel Archbishop of Canterbury of high Treason and desired he should be put into safe custody it was answered that because it touched si haut personne so high a person the King would be advised Afterwards they come and pray that Judgment may be given according to their Impeachment and accusation of him Sur quoy nostre dit Sr. le Roy toutz le Srs. Temporelz Mr. Thomas le Percy eiant poair sufficient de les Prelatz Clergie du Roialme d' Engleterre come piert de record en le dit Parlement adjuggerent declarerent cest Article conuz per le dit Ercevesque pur Traison le dit Ercevesque pur Traitour sur ce est agarde quil soit banni ses Temporaltees seisis en main le Roy Whereupon our said Lord the King and all the Temporal Lords and Sir Thomas le Percy being sufficiently empowered from the Prelates and Clergy of the Kingdom of England as appears upon Record in Parliament judged and declared this Article acknowledged by the said Archbishop to be Treason and the said Archbishop to be a Traitor and thereupon awarded him to be banished and his Temporalties to be seised into the Kings hands Here the Bishops were not present in person but Sir Thomas le Percy as their Procurator and Proctor
that he was ill spoken of and defamed to the close of all the Judgment given by the King by the mouth of the Chancellour for his banishment in regard he had not put himself upon his Peerage which yet the Chancellour said the King did not do as his Judge for that he was not in the place of Judgment And it was an odd thing and unusual that some Prelates and some Lords should be sent down to the House of Commons to receive the Articles of this Impeachment All this was such a Hodge-podge of a Trial as no man can tell what to make of it nor can it be of any signification to be a president and a rule of proceeding in matters of that nature in Parliament But admit it had been never so regular it is but one single president of Bishops and Prelates acting in a Judicial capacity in a Capital cause in Parliament against multitudes excluding them it was once so and never but once And can that be thought sufficient to alter and change the constant course and practice of Parliaments which hath been otherwise Had it been questioned then and upon a debate and mature consideration been so resolved at that time this had signified something but it was done and no exception taken which they call a passing Sub silentio and more it was never done but once But Sir Edward Coke goes further and saith that two or three presidents are nothing if forty be contrary and it is so here he tells you too when it is that they signifie nothing that is Quand les Presidents passe sans challenge del partie ou debate des Iustices When they be not challenged by the party concerned or not considered of and debated by the Iudges as neither of them was here done it is in Slades case in the 4. Reports It is a rule in Law A facto ad jus non valet argumentum but it may withal be said and truly A saepe facto ad jus contra semel factum valet argumentum Upon the whole matter one may boldly affirm that this President of 28 H. 6. is no ground for the Bishops to build their claim upon of having a right to sit and vote in Parliament in Capital Causes 31 H. 6. is the Earl of Devonshire's Case the Record runs thus Be hit remembred that where the 14. day of March the said 31 year of this present Parliament Thomas Earl of Devonshire upon an Indictment of High Treason by him supposed to be done against the Kings honourable estate and person afore Humfrey Duke of Bucks Steward of England for that time assigned and of the same Treason by his Peers the noble Lords of this Royaume of England being in this said present Parliament was acquitted of all things contained in the same Indictment Now I suppose no man will say That the Bishops were either his Peers or Lords of the Realm 38 H. 6. The Lord Stanley was accused by the Commons for being in confederacy with the Duke of York and they desire he may be committed to prison the Answer is The King will be advised which is all was done And this is the last president of any Impeachment or of any person questioned in Parliament in a Judicial way that is upon the Rolls in the Tower And I do not remember that I have read or heard of any Trial in Parliament in a Judicial way since that time till the E. of Straffords in our memory whose Trial was compleated in that way but he was attainted and condemned by the Legislative power During all the Trial from the beginning to the end the Bishops were never present at any part of it And it yet appears upon the Journal Book of the House of Peers though many passages be razed but this is not That upon the 9. of March 1640. upon a Report brought in by the Lord Privy Seal of something concerning that business and a debate arising upon it the Bishops withdrew it being In agitatione cause sanguinis It is true there was in that same Parliament the February before an Impeachment of High Treason brought up from the House of Commons against the Lord Keeper Finch but it never came to Trial for he fairly ran away and got beyond Sea whereupon by the Order of the Lords Temporal a Proclamation was issued forth for him to appear the 10. of March following the words of the Proclamation are Rex Uice-comiti c. Cum Communitas Regni nostri Anglie in presenti Parliament Iohannem Dominum Finch de Fordich nuper Custodem Magni Sigilli Anglie de Alta Proditione accusaverit impetierit Cumque per Dominos Temporales in eodem Parliamento de assensu advisamento nostris Ordinatum existit quod Proclamatio per totum regnum nostrum Anglie publice fiat qd idem Iohannes Dominus Finch in propria persona sua compareat se reddat coram nobis prefatis Dominis decimo die Martii proxime futuro ad respondendum standum recto coram nobis prefatis Dominis ex hoc parte Nos volentes c. The King to the Sheriff c. Whereas our Commons of this our Kingdom of England have in this Parliament accused and impeached John Lord Finch of Fordich late Lord Keeper of the Great Seal of England of High Treason And whereas the Lords Temporal have in the same Parliament with our consent and advice Ordered a Proclamation to be published throughout our whole Kingdom of England that John Lord Finch do personally appear and yield up himself to us and the foresaid Lords upon the 10. of March next following to answer for his Treason and stand to the Iudgment of us and the foresaid Lords in that behalf We willing that the Order have its due effect do command and strictly enjoyn you that upon the receipt of these presents you do in all Cities Market Towns and such other places within your Bayliwick as to you shall seem expedient cause in our name to be publickly proclaimed That John Lord Finch do appear in person and render himself before us and the foresaid Lords in this present Parliament upon the 10. of March aforesaid to answer for the Treason aforesaid and stand to the Iudgment of us and the foresaid Lords in that behalf according to the tenor of the foresaid Order This was the Proclamation Ordered to be made onely by the Temporal Lords and no Bishops present yet was it no part of the Trial but meerly a course taken to have him in Court that he might be tried But because it looked towards a Trial the Bishops must have no hand in it And it is further observable in this president that the Kings learned Counsel was ordered to draw up this Proclamation according to the antient Parliamentary way which shews that it was the ancient Parliamentary way That only the Lords Temporal should be interested in such Proceedings and have the ordering of them and not at all the Bishops And I
can give you an ancient President out of the Placita Parliamentaria in the 33 of Ed. 1. Nicolas de Segrave being with the King in an Expedition into Scotland had a quarrel with Iohn de Crumbwell left the Kings Army and went to fight with Crumbwell in France He was for this by the Kings command at his return summoned to appear in Parliament which he did Uenit in pleno Parliamento in presentia ipsius Domini Regis Archiepiscopi Cantuariensis plurimorum Episcoporum Comitum Baronum aliorum de Consilio Domini Regis tunc ibidem existentium He came into the Parliament before the King the Archbishop of Canterbury and many other Bishops Earls Barons and others of the Kings Counsel there present The business is opened before them by Nicolas de Warwick who charged him with leaving the King amongst his Enemies and doing what in him lay to expose him unto their power whether the Bishops continued in Parliament to hear this appears not by the Record but it appears clearly that they were not to meddle in it not so much as to advise upon it for it follows Et super hoc Dominus Rex volens habere avisiamentum Comitum Baronum Magnatum aliorum de Consilio suo injunxit eisdem in homagio fidelitate ligiancia quibus ei tenentur quod ipsum fideliter consulerent qualis poena pro tali facto sic cognito fuerit infligenda Qui omnes habito super hoc diligenti tractatu avisiamento consideratis intellectis omnibus in dicto facto contentis per predictum Nicolaum plene expresse cognitis dicunt Quod hujusmodi meretur penam amissionis vite The King willing to have the advice of the Earls Barons and other great men of his Counsel injoyned them upon the Homage Fidelity and Allegeance which they owe him to give him faithful Counsel what punishment was to be inflicted upon such a crime so confessed who all upon a serious debate and advising upon the matter and well weighing all the particulars of it and what was by the said Nicolas expresly acknowledged do say That such a man deserved to lose his life but the King pardoned him afterwards Still you see Bishops are not so much as advised withal in a Case of Life and Death This we see hath been the usage in Parliament all along since the Journals and Records can give us any light of what was there done And out of History I can go further and cite you an ancienter President than all these In Edward the Confessors time who in a Parliament convened in London as Brompton relates it in his Chronicle Col. 937. upon Earl Godwin's appearing there who was said to have formerly murthered Alfred the Kings Brother presently cried out Proditor Godwine ego te appello de morte Alfredi fratis mei quem proditionaliter occidisti cui Godwinus se excusando respondit Domine mi Rex salva reverentia gratia vestra pace dominatione fratrem vestrum nunquam prodidi nec occidi unde super hoc pono me in consideratione Curie vestre Tunc dixit Rex Carissimi Domini Comites Barones terre qui estis homines mei legii hic congregati appellum meum responsumque Godwini audistis volo quod inter nos rectum judicium decernatis debitam justiciam faciatis Comitibus vero Baronibus super hoc ad invicem tractantibus c. Thou Traitor Godwin I do accuse thee of the death of my Brother Alfred whom thou didst treacherously kill whom Godwin answered excusing himself My King with reverence to your Grace and to your Government and with your good leave I have not used treachery to your Brother nor have I killed him and of this I refer my self to the Iudgment of your Court. Then the King said Dear Lords Earls and Barons of the Land who are my Liege People here assembled you have heard my Appeal and Godwins Answer I will have you to decree righteous Iudgment betwixt us and to do that Iustice which ought to be done And the Earls and Barons debating this among themselves some were of one opinion some of another and at last they agreed to offer the King a great sum of money and to beseech him that he would take off his displeasure from Earl Godwin and pardon him The Historian adds Quorum considerationi Rex contradicere nolens quicquid judicaverant per omnia ratificavit Whose opinion the King not willing to contradict agreed to and ratified all that they had done Here we see it was only Ad Comites Barones that he appealed and they were only to Judge of it and no Bishops nor Prelates But some I hear alledge a President in 11 H. 2. of Archbishop Becket who was at a great Council Solemne Consilium at Northampton accused of Treason and other misdemeanors where Bishops were his Judges as well as Temporal Lords This they fetch out of Mr. Seldens Titles of Honour who cites for it a Manuscript made by a Monk called Stephanides or Fitz-Stephen and there it is said that the Archbishop was accused Lese Majestatis Regie Corone quia est a Rege citatus in causa Johannis neque venerat neque idonee se excusasset Accused of Treason because being summoned by the King in the Cause of one John le Mareschal and he neither came himself nor sent a sufficient excuse and that for it he was sentenced to forfeit all his Movables and that the Lords and the Bishops could not agree upon pronouncing the Judgment they putting it off from one to the other and that at last the King commanded the Bishop of Winchester to do it This is what that Manuscript saith But none of the ancient Historians of those times say any thing of his being accused of Treason And which makes it the more unlikely is that it was soon after that solemn ratification of the Constitutions of Clarendon which all both Bishops and Lords had sworn to observe for ever declaring them then to be the Law of the Land and to be Consuetudines Libertates antecessorum suorum The Customs and Priviledges of their Ancestors which makes me say it was rather a Declaring what was the Law before than making a new Law though what was then done was sufficient to make it a Law if it had not been so before And one of these Constitutions was that the Prelates of the Church should not Interesse judiciis Curie Regis Be present at the Iudgments given in the Kings Courts when loss of Members or Life was in question This great Council or Parliament was in February at Clarendon and the other at Northampton was in October following so it is not likely they should so soon forget and do contrary to what they had bound themselves to so lately by a solemn Oath publickly in open Parliament And I think one may modestly affirm that it was a mistake in the Writer of that Manuscript to say
upon the Trial of Commoners Though to speak the truth I doubt those Prelates did not much desire this Priviledge but the Salvo to their Right of sitting in all Parliaments to have been what they aimed at most in their Protestation and which they would have to be enrolled but the one could not be without the other and upon no terms would they admit the least scruple should be of their right to sit in Parliament which their withdrawing at that time might seem else to call in some question as they thought and therefore they would make that Protestation For that Popish Clergy was very ambitious and loved to have the rule over all persons and things we see it by Matthew Paris how he branded those Constitutions of Clarendon with terming them Consuetudines iniquas and the Archbishop Becket himself after he had sworn to them repented him of it and enjoyned a severe Penance to himself and suspended himself from the Office of the Altar for several months till he had the Popes Absolution This makes me doubt if the Clergy was of another mind in Richard the Seconds time and if they could not have been well enough contented to have continued sitting as Judges in all Cases if the Canon Law had not debarred them but that being they would make that Protestation consisting as I say of those two parts both which being so approved of by the Parliament and there enrolled became then and so continue to be the Law of the Kingdom For in those times all Laws were so made Only the substance of the Law was agreed upon in Parliament by King Lords and Commons and entred in the Journal Book And the Kings Justices did afterwards draw it up into form and then publish it to be the known standing Law of the Kingdom But that was not needful here because it was not a new thing that did then receive its first being Neither I say was it new before in Henry the Seconds time it appearing by what was then transacted that it was in usage in Henry the Firsts time only it was ratified in that Great Council of Clarendon under Henry the Second with a little more solemnity and the addition of an Oath for the better observance of it And we may carry it yet a little higher to Edward the Confessors days as appears by his Appeal against Earl Godwin in a Great Council which was their Parliament and how long it had been the use and practice before that God knows In E. 4 th time it was the declared Law of the Land you have it in the Year-Book of 10 E. 4. Term. Pas. n. 35. the words are Quant un Sr. est endite ceo serra maunde en le Parliament la le Seneschal d' Engleterre le mettra a respondre il dira De rien culpable se sera trie per Pares suos donque les Seigniors Espirituelx que ne poient consent al mort de home ferront un Procurator en le Parliament donque le Seneschal doit examiner primes le pluis puisne Seignior que est sil soit culpable issint separatim a toues les Seigniors queux sont la c. When a Lord is indicted it shall be returned into Parliament and there the Steward of England shall put him to answer and he shall say Not guilty and this shall be tried by his Peers and then the Lords Spiritual who may not consent to the death of any man shall make their Procurator in Parliament and then the Lord Steward shall ask the youngest Lord if he be Guilty and so severally all the Lords that are there c. This I alledge to shew that even by the Law of the Land the Bishops cannot be Judges in a Case Capital it is true here is mention made of their making a Proctor which was Error Temporis the Errour of those times grounded upon what was so lately done as they looked upon it though irregularly done in the last Parliament of R. 2. whom they considered as their last lawful King and in truth he was so the three Henries that came between being but Usurpers and therefore they had it seems a deference for what was then done though as I have already said it was never done before nor is it in truth a thing very practicable and not at all Parliamentary to have one man or two men as we see it was also done that Parliament represent the whole Bench of Bishops And more than all this as I have already observed which it seems was not then thought of that whole Parliament of R. 2. stands repealed and all that was done in it declared by a subsequent Act of Parliament to be Null and Void But this is but by the way my intent in quoting this Book Case is onely to shew that the Bishops were not excluded Judging in Capital Cases by the Canon Law alone but that the Law of the Land did likewise confirm it and the Courts of Westminster did so conceive of it So I think I may well conclude and with some confidence affirm that Bishops now are not to be Judges to Sit and Vote in Parliament in any Trial or part of a Trial that is in any circumstance which doth any ways lead or conduce to such a Trial of any Capital Offender but the whole Judgment is singly and wholly in the Lords Temporal and to them onely such Judgments do belong as was challenged by them in the Case of the Earl of Northumberland 5 H. 4. and is so declared to be in several other Cases upon the Rolls of Parliament And having thus delivered you my opinion and my grounds for that opinion I submit it to your judgment and rest SIR Your Humble Servant POSTSCRIPT SIR AS I was closing my Letter two Papers were brought me one in Written hand the other Printed which maintain an Opinion clean contrary to mine I shall tell you what they say and give my Answer to it then leave it to you to determine who is in the right The written Paper to prove their right of Judicature in all Cases none excepted declares Bishops to be Peers of the Land and a Third Estate in Parliament and therefore are not to be excluded from being Judges in all Cases as well Capital as other To prove them Peers of the Land he urges Statute Law and Common Law for the Statute Law he alledges the 25 of Ed. 3. c. 6. and the 4 of H. 5. c. 6. First For the Statute Law let me tell you It is not every expression Obiter upon the By that is in the Preamble of a Statute as this is of Bishops to be called Peers in these Statutes that makes a thing pass for Law except it be by way of Declaration declaring it to be a Law or reciting it as a Law before made And then I shall shew you how these two particular Statutes run and what they are That of the 25 E. 3. it is true hath in
should be done in derogation or restriction of the power of their Holy Father the Pope saying they were sworn to his Holiness and to the Court of Rome These were likely to make a good Third Estate of an English Parliament And is it not then a wonder that any Engiish man should desire to bring Popery in again for Bishops to controule both King and Parliament Would it not set even Monarchy it self one degree lower Sure it would But this is by the way Consider further that if they had had such a power of being a Third Estate in the days of Queen Elizabeth those good Acts for a Reformation in Religion had never pased and the Reformation had never been 1 Eliz. The Bill for restoring the first Fruits and Tenths to the Imperial Crown of England which passed February 4. The Bill for restoring the Supremacy to the Crown and repealing divers Acts made to the contrary which passed March 18. The Bill giving authority to the Queen upon avoidance of a Bishoprick to take some part of the Temporalties into her hands recompensing the same with Impropriate Parsonages which passed April 7. All the Bishops present were against the passing of these Bills And before that in Edward the Sixths time they were against the Bill for Priests to marry which passed Feb. 19. 2 E. 6. So the Bill for ordering Ecclesiastical Ministers giving power to Six Prelates and Six other men learned in the Laws to set down the form and manner of their Consecration which passed Ian. 25.3 E. 6. The Bill for nominating thirty two Persons to peruse the Ecclesiastical Laws which passed Ian. 31. The Bill for abolishing and putting away divers superstitious Books as Legends Missals Processionals and the like and taking away Images out of Churches and Chappels which passed also that Parliament All these good Bills the Bishops were against yet they passed into Laws and were the foundation of our Reformation which had they been a Third Estate had never been laid for those Bills had not passed But you will say perhaps that we need not fear such mischiefs and inconvenience from our Protestant Bishops and I grant it nor do I urge these things with any such apprehension I only shew you what the Popish Bishops did then and that if they had been a Third Estate such mischiefs would have followed upon it and thence to infer That they were not in those times so accounted and that our Protestant Bishops cannot then pretend to it now They then and These now having Place and Vote in Parliament upon the same terms But then we have good Authority to inform us which are truly the Three Estates King Iames seems to make it clear in a Speech he made at the Prorogation of the Parliament in the year 1605. the words are these As for the thing it self that is the Parliament it is composed of a Head and a Body The Head is the King the Body are the Members of the Parliament This Body again is subdivided into two parts the Vpper and the Lower House The Vpper House compounded partly of Nobility Temporal men who are Heritable Counsellours to the High Court of Parliament by the honour of their Creation and Lands And partly of Bishops Spiritual men who are likewise by the virtue of their Place and Dignity Counsellours Life Renters or Advitam of this Court. The other House is composed of Knights for the Shires and Gentry and Burgesses for the Towns But because the number would be infinite for all the Gentlemen and Burgesses to be present at every Parliament therefore a certain number is selected and chosen out of the great Body serving only for that Parliament where their Persons are the Representation of that Body You see that wise King makes the Body to consist of Two Parts the Upper House or the House of Lords to be one of those parts consisting of Lords Temporal and Lords Spiritual who together make one part And the House of Commons another part It is true he calls neither of them an Estate but most certain he cannot be thought to understand the Spiritual Lords to be an Estate by themselves making them to be but a Part of one of the Parts of that Body For by the same reason he may be said to make the House of Commons consist of two Estates saying it is composed of Knights of the Shires and Burgesses for the Towns But King Charles the First is plainer in his expressions in his Answer to the Nineteen Propositions sent to him from the two Houses Iune 2. 1642. He tells them That neither one Estate should transact what is proper for two nor two what is proper for three And in that same Answer he saith a little after It is most unreasonable that two Estates proposing something to the Third the Third should be bound to take no advice whether it were fit to pass but from those two who did propose it Nothing can be clearer than this to shew what the opinion of that good King was concerning the three Estates in Parliament And 2 H. 4. n. 32. It is so declared by the House of Commons even to the King himself and to the Lords That the three Estates of Parliament are the King the Lords Spiritual and Temporal and the Commons who should all be at an Vnity among themselves and therefore hearing there were some differences between the Lords they humbly prayed the King to compose them And Stephen Gardiner Bishop of Winchester sometime Lord Chancellor an ancient Parliament-man in Henry the Eighths time who well understood the constitution of Parliaments in his Letter to the Lord Protector in Edward the Sixths time which Letter is in the second Volume of the Book of Martyrs Printed in 1641. p. 7. doth acknowledge it and saith That the three Estates make a Law and compares the three Estates in Parliament to the three Christian Vertues Faith Hope and Charity and saith That it were the same absurdity and untruth to say the Higher House and the Lower House exclude the King in the Office of making Laws as it would be in Religion to say that Faith excludeth Charity in the Office of Justification Here you have the Testimony of a Bishop I confess a Popish Bishop as you may see by his application of this Simile to make Charity that is works of Charity to have a part in Justification But I meddle not with his Divinity As to that which he saith of the Estates in Parliament he is in the right and he was one that knew well enough what was due to the Order of Bishops even to the full extent of it and would not have shortned it the breadth of one hair yet he makes them not an Estate by themselves but as joyned with the Lords Temporal Then for the Common Law you have Finch in his Book of Law dedicated to King Iames the first Chapter of the second Book p. 21. who saith the very same thing in very plain terms His
words are these Lassemblie de ceux trois Estates c ' est assavoir Roy Nobilitie Commons qui sont le Corps del Realme est appel une Parlement lour decree un Act de Parlement car sans touts troys come si soit fait per Roy Seigniors mes rien parle del Commons nest ascun Act de Parlement The Assembly of the Three Estates that is to say King Nobles and Commons who are the Body of the Realm is called a Parliament and their Decree is an Act of Parliament for without all three as if it were done by the King and Lords and no mention of the Commons it is no Act of Parliament Can any thing be plainer You see now with how little appearance of truth the Writer of that Paper takes upon him to declare Bishops to be either Peers of the Land or one of the Three Estates and what ill Topicks he hath chosen to prove them to have right of Judicature in all Cases Criminal and Capital for that is his Assertion upon it For what he cites out of some Year-books that in some pleadings their Counsel calls them Peers will not make them so nay should the Judges themselves stile them Peers as perhaps they might complement the potent Clergy of those days it could not alter the Law of the Land which makes Commoners their Peers seeing they are to be tried by Commoners As for matter of Fact to prove that they have Judged in Capital Cases he cites the Protestation in the eleventh of R. 2. and then their making their Procurator and so Judging by Proxy in the 21 of R. 2. To which I need say nothing in this Postscript having so largely in my Letter treated of it Then he gives many Precedents of their voting in Bills of Attainder which is all Not to the purpose for that is not in Question Acts of Attainder are Laws and every Freeman is supposed to give his Consent to every Law either by his Representative or in Person if a Member of Parliament And Bishops being Members may I think claim to do it Personally So I have done with the Paper and come to the Printed Book stiled The Honours of the Lords Spiritual asserted And Six Chapters are taken up in blazoning their Honour which no body endeavours to take from them nor do I think it to be any part or degree of Honour to judge men to death It is certainly an employment which in my opinion no body will envy to any that hath it Then for those great Places which the Bishops enjoyed here in England mentioned in the fifth Chapter I no ways wonder at it we know that Popish Clergy had ambition enough to covet to have the whole rule and in those blind and superstitious times power enough to obtain what they had a mind to both Prince and People in a manner awed by them who yet sometimes would complain and break out a little as Scholars sometimes rise against their School-masters So 45 E. 3. The two Houses joyn Countes Barones Communes and represent to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per ent grant mischiefs dammages sont avenuz en temps passe pluis purroit eschier en temps avenir al disherison de la Coronne grant prejudice du Royalme Whereby great mischiefs and damages have happened in times past and more may fall out in time to come to the disherison of the Crown and great prejudice to the Realm And therefore they humbly pray the King that he would employ Laymen So 20 R. 2. The Commons complain That the King kept so many Bishops about him in his Court and advanced them and their followers Therefore you see it was not always pleasing to the Kingdom But all this is by the By though that Author takes a great deal of pains to enlarge himself upon this Subject which is not at all to our purpose nor deciding the point in question one way or other In his two last Chapters the seventh and the eighth only he toucheth upon it He first gives this for a Rule That it was the common usage and right of the Bishops in ancient times to sit and vote in Parliament in all Cases as well Criminal as otherwise either by themselves or their Proxies As for their Proxies as I have already said it was never done but in one Parliament which Parliament is repealed and all that was done in it of no signification And besides as I have already told you in my Letter if that Parliament had not been repealed yet that unparliamentary Nonsensical action of the whole Bench of Bishops and all the Clergy with them empowering one Man as they did Sir Thomas Percy to give one Vote for them all shews the manifest indispensable unlawfulness of their being Personally Present that rather than that should be such an Irrational Unprecedented thing should be admitted of which is my Answer to all that he saith and to the Precedent that he quotes out of the 21 of R. 2. Now let us examine what he saith of their being in Person present at such Trials He quotes Bromptons Chronicle reciting among the Laws of King Athelstan this concerning Bishops I will cite Brompton's words right as they are Episcopo jure pertinet omnem rectitudinem promovere Dei viz. seculi It appertains of right to a Bishop to promote that which is right both concerning God and the World A little after he saith Debet etiam sedulo pacem concordiam operari cum seculi Iudicibus He ought likewise diligently together with the secular Iudges to promote Peace and Concord After he saith Debent Episcopi cum seculi Iudicibus interesse Iudiciis ne permittant si possint ut aliqua pravitatum germina pullulaverint The Bishops ought to be present in Iudgments with the Secular Iudges not to suffer any buds of wickedness to sprout if they can hinder it Then he tells you what they must do in their Judgings see that every man have right that rich men do not oppress poor men nor Masters their Servants and the like and to look to Weights and Measures that there be no cozening nor cheating but that they may live like Christians Here is nothing of judging a Capital Crime far from it His next Authority is out of Sir Henry Spelmans Glossary upon the word Comes there it is Comes presidebat foro Comitatus non solus sed adjunctus Episcopo hic ut jus divinum alter ut humanum diceret alterque alteri auxilio esset consilio Presertim Episcopus Comiti Nam in hunc illi animadvertere sepe licuit errantem cohibere The Earl did preside in the County Court not alone but joyned with the Bishop He to deliver what was Gods Law the other what was Mans Law And that the one should help and counsel the other especially the Bishop to do it to the Earl for