it not be with as much fairness concluded that the Bishops were present because the addition of Temporal is not made to Seigniors and Grants in the said Cases of Sir Ralph Ferrers and Sir Wil. Thorp as it can be that they were absent in the hearing of the said Cases because the word Prelate or Bishop is not in those Entries expressed If he will be just and change the Tables He must yield us the Argument for he knows that there is no establishment in the Modus tenendi Parliamentum directing the Forms of Entries or any solemnes formulae whose import and value is ascertained and made indisputable but are to be expounded by an easy interpretation such as we use when we make fair constructions in common speech But to give this another Answer The Arguer is herein guilty of that fallacy which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or non causa pro causa And his Witness doth not speak ad idem The Bishop was an Ecclesiastical person and though the Bishops might try a Temporal Lord for the same offence yet they would not consent to try a Bishop and forgo that great priviledge of the Clergy with so much earnestness defended in that Age to be exempt from secular Judicatures They would not be present to try because of the person of the Defendant which cannot be drawn into Argument to prove that they had no cognizance of the Cause with any fairness But further the Octavo doth afterwards produce a Testimony that doth contradict this last Testimony in the point for which he produc'd it It is the Case of Thomas Arundel Arch-Bishop of Canterbury 21 R. 2. The Bishops pronounced Judgment against him in Treason by their Proxy They can it seems upon great Reasons wave that priviledge and submit a great Malefactor of their own Order to Justice as they did in the Case of Becket heretofore So that you see here they used a Jurisdiction in a Cause of Treason in the Case of Thomas Arundel which the Bishops could not have used without a Right And the Case of the Bishop of Norwich is only an omission consistent with a Right The Case of Sir William Rikehill is next in order who was sent by R. 2. to Calais to take the Confession of the Duke of Glocester who soon after was Murdered The Judge was arrested and brought into Parliament before the King Lords Spiritual and Temporal and Commons the whole matter was examined and the Judge was examined Here is likewise a clear Case for the Bishops an Instance wherein they did take cognizance of a Capital Cause in Parliament But the Octavo hath a Shift for us and says that there was no impeachment or charge against the Judge and so the Bishops might be present at his Examination Let the Reader here observe the sleights wriglings and prevarications of this Octavo Author Whatever the World thinks of this Author I am much dissatisfyed about him and cannot believe him a man indifferent and impartial in this Enquiry In his observations of the Parliament of the 15 E. 3. the Bishops he saith vanished like lightning they went away immediately at the opening That matters of the Peace in general were to be treated of wherein Blood and Member might not at all be concerned for all that appears They went away and as he would have it they returned no more and they must not hear so much as a Commission of the Peace read But here in this Case of Rikehill they may examine a Murder He will say I am sure that though the Bishops did examine it they could make no judgment of the matter But who will believe him In the Case of de la Zouch and Gray he observes that Bishops could not be present so much as at a Battery though there was no Battery in the Case and yet he allows them to judge of all misdemeanors in the same little Book I observe but these things of many more of like nature which the Reader may observe of himself in that little Octavo that the World may judge how unjustly he deals in this Cause with what iniquity and prevarication he manages a noble question of Right concerning the Government of the Kingdom With what petulancy spight and inveterate displeasure he useth the Bishops That he is grinning at them whetting his teeth and squinting upon them perpetually with an evil Eye He oppugns their Right with Cavillations upon the Clerks Entries with what is in the Record and what is not and what he is pleased to add of his own upon them and with Precedents that reprove one another Had it not been more fair for him to have stated the Right upon a probable result of all the Records considered together than to make their Right sometimes more sometimes less sometimes to affirm sometimes to deny their Right in the same little Octavo He cannot sure think that every Judgment that hath been given upon deliberation in the greatest Judicature can uncontroulably make the Law much less a Fact much less an Omission a Negative that can operate nothing If nothing be Law but what hath always and constantly been done in the same manner and form and all circumstances the same as this Author it seems would have it and nothing true Theology according to Vincentius Lirinensis his Rule but what hath been received ab omnibus ubique semper We can have no Law nor no Theology Vain and idle opinions must be discharged such as can have no consideration with wise men and the Law must be declared by the Nature of Government reason and the general order of things But we have made too long an Excursion We must return to a further consideration of Rikehil his Case And now I submit it to any impartial man whether the Judge could be arrested and brought under an Arrest into the Parliament and be examined and not accused The very next Case he recites is that of John Hall in which we find nothing but an Examination and confessal upon which he was condemned as a Traytor And so would it have fared with Sir William Rikehil without doubt if he had been guilty and had confessed Neither the Octavo nor Sir Robert Cotton mentions any formality more against the one than the other The House of Lords are not tyed to Formalities in their proceedings like other inferior Judicatures and the more inferior any Court is the more regular forms are exacted and that with great reason which we will not hear treat of Besides in the Case of the Earl of Northumberland recited in the Octavo Book Fol. 34. in 5 H. 4. a Judgment was given against him for an offence upon a petition which he exhibited for a pardon of the same offence But in the Case of the Earl of Northumberland I pray observe what the Octavo saith in reference to our question After he hath recited part of the Record in these words The petition being read and understood the Lords as Peers of Parliament
Authority or weight enough to perswade the contrary or an alteration therein notwithstanding that complaint which he tells us was made in the 45 of E. 3. fol. by the two Houses Counts Barons and Commons to the King how the Government of the Kingdom had been a long time in the hands of the Clergy Per cet grant mischiefs dammages sont avenuz en temps passe pluis purroit eschire 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 imploy Laymen This they had too much reason to desire then when the Pope had advanced his Authority over them and put them under Oaths of Canonical obedience which rendred them less fit to be intrusted in the Government of this Kingdom who were become Subjects of another Empire usurping continually upon us which will never be our Case again if the Bishops can help it CHAP. III. ANd now we proceed to the Precedents of which the Octavo Book principally consists which seem as that Author and the other in Folio would have it to be not only a discontinuance of the Right of the Bishops to judge in Capital Causes but an argumentative proof that they never had any because it can as they say be never proved to be otherwise Immemorial time I confess is a great evidence of the right whether In non user or user and a fair reason to allow or deny the pretence and therefore we will now consider the Precedents As for the argumentative and discoursive parts of those books they will fall in to be answered by way of Objection when we are discoursing and proving the affirmative part of the Question and will best be reproved by being placed near the light of our reasons for establishing the Right of the Prelates If we do not give some satisfaction to these Precedents whatever we shall say I know can signifie no more than an Argument to prove a thing not true which is possible de facto testified by unexceptionable witnesses for such the Precedents will be taken until exceptions are made to their Testimony The Precedents produced by the two Authors are mostly the same only the Octavo hath more than what the Folio Book hath recited The first case that the Octavo produceth against the Lords Spiritual their Right of being Judges in Parliament in Capital Causes is that of Roger Mortimer Earl of March Simon Beresford and others who were no Peers and yet tryed in Parliament and no Bishops present and we agree it probable for his reason because there is mention made of Counts Barons and Peers and Peers being named after Barons could not comprehend the Bishops And because we think it reasonable when the orders of that House are particularly enumerated that the order omitted should be intended absent but we will not allow but that Peers is and so is Grants comprehensive of Bishops Nor will we when the entry is General intend the Bishops absent except he cannot otherwise prove them absent which we mention in the entry once for all as just and common measures between us in this dispute It will appear true what we affirm of the words Peers and Grants by what follows And if we should not insist upon their being present when nothing appears to the contrary we should do wrong to the Cause But to come to the consideration of this Precedent Is this a just Precedent Is not Magna Charta hereby violated Are not the proceedings altogether illegal Here are Commoners tryed by Peers in Parliament It is well known that the high displeasure of the King was concerned and that he did interpose with a plenitude of Power in this particular case against the fundamental constitutions of the Government the greatest crime of this Earl was too much familiarity with the Kings Mother Indignation and Revenge and not Justice formed the Process It was proceeded to condemn him Judicio Zeli upon pretence of the Notoriety of the fact Sir Robert Cotton in his abridgment tells us Anno 4. Ed. 3. That the King charged the Peers who as Judges of the Land by the Kings assent adjudged that the said Roger as a Traytor should be drawn and hanged The Bishops were not present certainly they were none of the Judges that gave Judgment as the King pronounced without Cognisance of the Cause The King had more Honour for their Order than to call then to such Drudgery and service of the Crown The iniquity of the sentence appears by the reversal thereof in Parliament 25 Ed. 3. in which the Original Record is recited Sir Robert Cotton in his Abridgment tells us That this Earl being condemned of certain points whereof he deserved commendation and for other altogether untrue surmises there was a Bill brought into the Lords House for the reversal of the Judgment and it was reverst by Act of Parliament indeed it could not be otherways reverst for no Court can judicially reverse their own Judgment for Error in Law and Judgment in the Lords House being the dernier Resort cannot be repealed but undone it may be by themselves in their legislative Capacity Here saith the Octavo the Bishops were not present at the passing of that Bill but yet the Octavo Gentleman will not pretend that the Bishops are to be excluded in any Acts of Legislation Why therefore was he so willing to impose upon the people so falsely and unrighteously and to produce this as a Precedent against the Bishops Right of Session in matters of that Nature by himself recognized There is nothing can excuse him herein for he is certainly self-condemned of undue Art in thiâ— matter In 20 R. 2. the Case of Sir Thomas Haxey happen'd which the Octavo book page 20 produceth against us He was forsooth condemned in Parliament for that he had preferred a Bill in the House of Commons for regulating the outragious Expences of the Kings House particularly of Bishops and Ladies Haxey was for this tryed and condemned to death for it in Parliament And here appears to be no Bishops and there ought not to have been any for these reasons First that the Bishops were the parties wronged and therefore could not in any fitness give sentence But Secondly if that was not in the Case that that caus'd the process was Royall anger upon a great faction of State in which I believe the Bishops were not engaged made for deposing of Rich. the 2d that was understood by the King to be in acting and promoted by Sir Thomas Haxey by his Bill It was this made the sentence altogether abhorrent from legal justice in matter and form Here was a Tryall of a Commoner by Peers a matter made Treason that did participate nothing of the nature of Treason But the discreet Gentleman
will take notice of nothing that is faulty in this Case but that this proceeding tends to abridge freedom of speech in Parliament which he loved from his youth which we do not blame in him As he did also to talk against Bishops which he cannot depart from when he is old But in the first of Hen. 4. this Judgment of Attainder was repealed and annull'd as he himself tells us Fol. 25. And here the Lords Spiritual were Judges which must be remark't for the honour of their Order that though they were the pars laesa by that fault such as it was yet notwithstanding they concurred readily to the repealing the Judgment But by this it appears that the Bishops did agreeable to their rightful Authority sit in Judgment in Parliament in capital Causes and therefore in consequence because it is a Case of his own production he ought to allow that the Bishops might have had Session in the Repeal of the Attainder of Roger Earl of March if it had been or could have been repealed by Judgment or a judicial Act of the Lords House For will this renownedly wise-man for avoiding of this his own testimony which he hath justly produced though it proves to testify against himself say that the Bishops can be present at repealing of a Judgment of Condemnation but not present at confirming any Doth not it in this proceeding come before them in Judgment and consideration Whether the sentence shall be repealed or affirmed and is not this with a witness a question of blood The Judgment being upon an appeal or review must be final peremptory and decretory and is more a question of blood than the Cause can be reckoned and deem'd to be upon the first Instance Or doth he think fit that there should be two sorts of Judges appointed a hanging Judge and a saving Judge if he doth I am sure he will not be able to find an employment for a just Judge So that I think to all men that can consider we have sufficiently vacated that testimony that the Cases of the Earl March and Haxey's seem'd to give against us and they are fairly come over to our side And we have provided herein sufficiently for the recovering of all men into an indifferency against the Prejudices this Octavo by its great Esteem hath done to their Judgments The Third Precedent is 15 E. 3. That Parliament was declared to be called for the Redress of the breach of the Laws and of the Peace of the Kingdom and as the Octavo hath it Fol. 8. because the Prelates were of opinion that it belonged not properly to them to give Councel about keeping the peace nor punishing such evils they went away by themselves and returned no more saith he but that is out of the Record so ready this Authour in Octavo is to shut them out of the House but I pray would not the Temporal Lords if the King had consulted the Parliament in matters Ecclesiastical have in like manner departed but would such departure of the Temporal Lords exclude them from having any thing to do in the Affairs of the Church Why then are the Bishops treated in their Right so unequally And this must serve for an Answer to the Folio p. 17. where he is very large in reciting Records of process and Proclamation against the Earl of Northumberland agreed only by Lords If a Liturgy or book of Canons were to be established by Law the Bishops certainly would have the forming of them The Octavo saith that Commissions were then framed by the Counts Barons and other Grants and brought into Parliament but no Bishop was present so much as to hear the Commissions read because they were to enquire into all Crimes as well Capital as others And for affirming this for all that can appear to us he only consulted his Will and pleasure like an honest man to the cause he defends for he hath not told us from any Record what the Nature of these Commissions were But we observe that though this Parliament was called for matters of the peace yet the Bishops had their Summons and it was not a Parliament excluso Clero The Bishops it seems upon the opening of the Parliament and the causes of convening modestly it seem'd declared that they were not competent as not perhaps studied in Pleas of the Crown or perhaps had not been so observant in fact of the matters of grievance What harm in all this they that cannot propound may judge of Expedients propounded and so did they for it doth appear by the Record 6 E. 3. N. 3. that the Results of the Temporal Lords were approved in full Parliament by the King Bishops Lords and Commons which the Folio agrees But it seems modesty is a dangerous thing and not to be forward to judge and determine though the matter be not understood may be a good Cause to turn a Judge out of his Office and forfeit his Judicature Besides the principal business of this Parliament was Legislation in which the Prelates have an undisputed Right of Session and may they not advise upon what they make into a Law May not they consider of the matter that is to pass into a Law in all the steps it makes But it is admirable what the Folio Book saith viz. that by this Record it is evident that the Prelates have no judicial power over any personal Crimes which are not Parliamentary I suppose he means Crimes not debated in Parliament This doth very much fortify the foundations and grounds of his discourse What are the grounds of his discourse I shall never be able to find out except it be an over-weening Opinion of himself to meddle with these matters which seem too high for him and to which the reading of my Lords Cooks Institutes and the broken Commentaries of the Law will never render any man competent It s true the Bishops have never any power and Cognizance of any Causes except they are commissionated thereto out of Parliament But as true it is of the Temporal Lords and therefore whatsoever advantage this will do his Cause with all my heart let him take it The next Case produced as a Precedent for them is the Case of Sir William de La Zouch and Sir John Gray for a quarrel in the Kings presence they were both committed to the Tower and after brought into Parliament no Bishops there It is a Case that could not be judged there neither was it but one of them was discharged because no probable matter of offence against him and the other remanded to the Tower I suppose to be proceeded against as the Law required Is this cause I pray to his purpose have not the Prelates judgment in causes of Trespass that properly come before that House by his own Confession And yet the Octavo remarks here that no Bishops were present to judge so much as of a Battery though the Record warrants him to say only an Assault But out of his great
of the Commoners which are Knights should be impannelled upon a Jury where either a Spiritual or Temporal Baron is concern'd besides that I find a single Remembrance as high as 13 E. 3. in Brooks Tryal 142. the Reports of that year are not printed of the Bishops Right of Peerage in a Capital Cause the Book is Evesque est Peere de Realme serva try per Peres in Crime But how this Right came to be discontinued and to lose remembrance we shall presently account for but I cannot think it Sence which some of our Lawyers have said for this purpose that a Bishop his being a Baron is Ratione Tenurae and not personal which is all one as to say that the Bishop is a Baron but his Person is not a Baron but his Peerage and Baronage is no other in truth than an Honor accumulated upon the Person of a Bishop together with his Office But to excuse them they thought themselves obliged to give a reason why Bishops are not as the Law is taken to be tryed by Peers but by a Common Jury which grew into practice by accident and was not ever so in probability but certainly is very irregular and extream incongruous and therefore to give a good reason for it is too hard a task to be undertaken and he that will undertake to give a reason of that which is unreasonable and go about to prove a thing fit which is incongruous must likely speak things equally incongruous absurd and unreasonable But to speak what the truth is in this matter the Bishops and the whole Order of Clergy did challenge to be exempt from the Jurisdiction of Secular Courts but the Bishops as is objected never waved their jus paritatis upon Arraignment in inferior Courts They only never insisted upon it For they had a better way to escape by setting up the pretended Rights and Priviledges of their Order and that Church for exempting themselves from the Jurisdiction of the Temporal Courts and by this means they did escape unpunished for the most part Though there were several Abatements made by the provision of the Laws and the Wisdom of the Judges to their unreasonable pretences therein yet they always got off by their pretended priviledge if not with impunity yet with some protection at least from Justice and farther they thought perhaps they might at least avoid being thought guilty of the Crimes objected whilst they used this pretence for a reason why they would not make a Defence And sure in all Offences but Treason they escaped with their Lives before the Statutes that took away the benefit of Clergy in some Cases of the greatest Guilt and even in the Case of Treason the Criminal ever had the Advocation and Intercession of the Church-power and Interest because the priviledge they contended for was so great and valuable a Concernment as they esteem'd it to the Order of the Clergy But by this means the memory of the Use of this Right and Priviledge was lost and the Detestation of a Crime in a Prelate provided him a speedy and ready Justice such as was at hand and at length Bishops themselves unadvisedly and being born down by the Common Opinion thus grounded and occasioned did submit to Tryals by Juries It is enough to have given an account how this Anamolous piece of Law came about But Anamolous Cases never make Rules nor destroy any Nor is it to be drawn into consequence whatever is a departure from the Establishment to destroy it quite Positive Constitutions of which no Reasons can be given why they are so can infer or argue nothing Reason cannot make Law though it is a fair inducement but our Reason is most perversly imployed when it proceeds from the Irregularities that happen in Human Affairs and are shuffled upon us by length of time by violence and iniquity and a heap of Accidents to argue us into more and to refix that which is regular and remains firm In quo quis peccat in eo punietur Is it not enough that the Order now suffers a diminution of their dignity by reason of the contumacy of the Popish Prelates their Predecessors and that their Refusals to submit to Temporal Justice are visited upon the Succession Severe enough this is in it self But why should any man expect that this Age in consequence of this should be persuaded and reasoned to exclude the Bishops out of their remaining right 'T is no more to be expected than that a man that hath one hand withered and mortified with the Palsie should be persuaded to cut off the other for conformity We know how the Prelates fell from their primitive Dignity of being tried by those of their own Order and were submitted to be tried by Juries of Commoners It would be therefore consonant and agreeable to the Dignity of Barons and Lords of Parliament for such the Bishops are that they be restored to their ancient right in the matters of Trials as mistaken Law is rectified by an Act of Parliament A wise Act of State it would be to redintegrate the Honour of the Baronage of England the whole Baronage suffering dishonour by a mutilation of so Honourable a Privilege in one of the membra dividentia of that body whilest the Bishops are thrown to common Jurors Especially since the incongruity thereof hath given occasion to some men to question one another of the jura paritatis which belongs to the Prelates and to dispute their right of Session in that House in one of the most important Concerns of the Government But however this Irregularity is discoursed it doth not affect the Right of the Prelates now in dispute for though Bishops are tried by Commoners out of Parliament as the Law is now generally taken yet that they are to be tried by Peers in Parliament our Adversaries do not deny And that they may and ought to sit in judgment upon Temporal Lords in Parliament in Capital Causes we have clearly proved So that the Reciprocal of a Bishops being judged and judging in Capital Causes in Parliament is intire and in this they continue duly pares But that it may not depend upon our Adversaries Concessions that Bishops may be tried by Peers in Parliament for he is not always constant to himself and may take back what he hath yielded we shall here subjoyn a short demonstrative proof that the Bishops ought to be tried by Peers in Parliament And that they have been declared and taken for Peers and under that Character tried when if they had not been reckoned and deemed Peers they could not have received Tryal in Parliament and it is thus Edward the Third had prevailed with the Lords against their good will to condemn the Earl of March Sir Simon Beresford John Matrevers Boys de Boyons John Devard Thomas de Gowrney William Ogle for the Murder of Edward the Second his Father and the Earl of Kent all of them Commoners but the Earl of March The Lords were