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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
order_n	ancient_a	counsel_n	great_a	70	3	2.1183	3	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A44191	Lord Hollis, his remains being a second letter to a friend, concerning the judicature of the bishops in Parliament, in the vindication of what he wrote in his first : and in answer to ... The rights of the bishops to judge in capital cases in Parliament, cleared, &c. : it contains likewise part of his intended answer to a second tractate, entituled, The grand question touching the bishops right to vote in Parliament, stated and argued : to which are added Considerations, in answer to the learned author of The grand question, &c., by another hand : and reflections upon some passages in Mr. Hunt's Argument upon that subject, &c., by a third.; Second letter to a friend concerning the judicature of the bishops in Parliament	Holles, Denzil Holles, Baron, 1599-1680.; Holles, Denzil Holles, Baron, 1599-1680. Letter of a gentleman to his friend.; Atwood, William, d. 1705? Reflections upon Antidotum Britannicum.	1682 (1682)	Wing H2466; ESTC R17318	217,539	444

me p. 31. taxing me with representing those constitutions very unfairly which is an expression of one engaged in a party and not of one that only seeks for truth but to shew his Reading and Learning as I am afraid that Author doth who raiseth a great deal of dust meerly to blind mens eyes and mis lead them into errours and thus he commends himself for speaking mildly and much good may his mildness do him It is apparent that the Clergy were then very high having gotten a great head by the favour they had found from the Usurper King Stephen where on both sides they served one anothers turns and Henry the Second to bring things again into order call'd that great Counsel at Clarendon where by the Advice of the Prelates and the Nobility of the Realm a recapitulation was made of part of the ancient customs and priviledges under the former King and particularly under his Grand-father Henry the First which for the future he would have to be observed in the Kingdom and thus Propter dissentiones discordias saepe immergentes inter Clerum Iusticiarios Domini Regis Magnatum Regni There were sixteen of those Articles the eleventh was that they should hold their possessions of the King in Capite sicut Barcniam and should be answerable to the King for their Services and should as Barons interesse Judiciis Curiae Regis quousque perveniatur ad diminutionem Membrorum vel ad Mortem Here we see the occasion of that meeting at Clarendon it was to remove all causes of difference between the Great Bishops and the Civil Magistrates let us now see what was most likely to displease them it 's not probable it should be for being reduced to stand upon even ground with the rest of the Nobility and great men of the Realm but if in any thing they are made less and abridg'd of the powers which the others have it stands most with reason they should be troubled at that and to be forc'd to walk out of the Judgement-hall after they had cryed Crucifige is a great lessening of their figure I think more than if they had not at all meddled in it But this Worthy Author saith I have made use of the most Imperfect Copy of Matthew Paris and saith in the Vatican Copy and several MSS. it runs thus Debent interesse Judiciis Curiae Regis cum Baronibus donec perveniatur in Iudicio ad diminutionem Membrorum vel ad Mortem Now in my opinion this makes more against the sense he would put upon these words which is that they may stay and have a hand in managing the debate upon the Evidence and agreeing upon the Sentence but must be gone when it is pronounced which as I said before I look upon as a greater scorn put upon them as Blesensis saith Quid hac simulatione perniciosius est nunquid discutere definire licitum quod non licet pronunciare For I should think that mentioning in Iudicio in the second part should not have a different constructionthan Iudiciis Curiae in the first part For there the Judicia Curiae which they may be present at is to be understood of the whole proceeding from the bringing in of the Charge against a Criminal person to the pronouncing of the Sentence And can it be rationally thought that Iudicium in the second place should be meant only of the sentence which is the principal part and which the corruption of mans nature doth chiefly lead him unto The Poet saith Qui nolunt occidere quenquam Posse volunt This power of killing and slaying Potestas Iuvandi Nocendi is a pleasing thing and we are naturally angry with what abridgeth us of it So I must conclude this point that it 's most probable the Bishops were most scandalized at this eleventh Article Secondly Let us consider how to arrive at the true meaning of that constitution which must be by comparing the passages of these times together whereby we shall see how they understood it Yoyu have already heard what Petrus Blesensis judged of those who would retain that Image of Judicature how much he blamed them and what menaces of Gods Judgements he denounced against them for the words of that Constitution were not so clear and positive that it gave not Ansam disputandi to those whose Inclinations led them to turn it into another sense and content themselves to play at small Games rather than sit out altogether So the Wisdome of that time to make it yet more plain and take away all ambiguity moved the King to call another Great Council at Westminster in the year 1175. eleven years after Ad Emendationem Anglicanae Ecclesiae ex assensu Domini Regis Primorum omnium Regni where the third Article is His qui in Sacris ordinibus constituti sunt Iudicium Sanguinis agitare non licet unde prohibemus ne aut per se membrorum truncationes faciant aut inferendas judicent Quod siquis tale fecerit concessi ordinis privetur officio loco Inhibemus etiam sub interminatione anathematis ne quis Sacerdos habeat vicecomitum aut praeposit●… secularis officium It is not lawful for those who are in Holy Orders to act at all in Judgements of Blood wherefore we forbid them to have any thing to do with taking off mens Limbs or to judge of any such thing And if any do such a thing he shall be deprived of the office and dignity of his Orders And we also forbid under the pain of being Anathematized that no Priest shall take upon him the Office of a Sheriff or of a Secular Judge This makes it out plain what the sense of those times was that it was not lawful for them to act at all in cases of Blood and this is as much the Law of the Land as the Constitutions of Clarendon or as any other Statute Law But our Author p. 42. quarrels at this as only standing upon Roger Hoveden's authority and wishes he had produced the whole Canon entire for it Here you have two of our Ancient Historians that liv'd in these times and agree in Terminis upon the relation of what there passed But our Author is not satisfied tells us the Council of Toledo makes an c. and leaves out the prohibition which declares the meaning and extent of their Canon He will have this Prohibition and Sanction of deprivation to attend only upon the latter part that is if they do joyn in pronouncing the Sentence But where doth he find that distinction allowed it is what the Clergy have framed and imagined to themselves to give them some Power Admit we should allow them that it makes it not the more lawful for them there is still a Non licet which is subject to punishment and though the Ecclesiastical Law doth not go to that height to cut off a Member deprive him ab Officio Beneficio yet it may go less in a lower Sentence

the Government of the Church by the Imperial Law but not that I put any stress upon it but meerly to circumscribe the Question and keeping it within limits by a Negative declaring what it was not and an Affirmative expressing what it was how Bishops in Parliament could not Judicially act in Capital Cases Therefore were it all so as this learned Gentleman seems to infer that in France Spain Germany and those Northern Kingdoms which he mentions that Bishops were joyned with the Civil Magistrates in ordering the Publick Affairs of those Nations and that they had a share not only in the Legislative but in the Judiciary part as he alledgeth two Authors to prove it to have been in France it would not be of any signification to decide our Controversie for what is this to us to regulate our Parliaments and to operate on our Laws But first for matter of Fact as to France to which I can speak a little having spent many years in that Kingdom and I have by way of discourse informed my self from the Ambassadour who is here from that Crown who doth assure me that the Judges whom they call Counsellors and not Judges as we do who are Clergy-men as many there are joyned with the others of the Laity never sit in that Chamber of Parliament which trys Capital Causes which they call the Tournelle I believe the same may be observed in those other Countries which our Author mentions and I do not see how it could be otherwise the severity of the Canon Law being so strict in the prohibition of it But as I said before the Primitive Christians had that veneration for the Clergy and especially for the Bishops that they were still joyned with the Civil Magistrate in ordering the affairs both in Church and State The matters of the Church they determined Judicially in Secular affairs whether Criminal or other only by way of Counsel if the Civil Magistrate to whose Province they belonged did not do his part I am sure it was so in England Brompton in his Chronicle recites the Laws of King Athelstane in this particular I cited his very words in the original in my former Letter I shall now repeat them very faithfully in English He saith It appertains of right to a Bishop to promote that which is right both concerning God and the World A little after he addeth He ought likewise diligently together with the Secular Judges to promote Peace and Concord And soon upon it he hath this passage The Bishop ought to be present in Judgement with the Secular Judges not to suffer any buds of wickedness to sprout if he can hinder it His Presence and his Counsel was rather a check upon the Judge than to determine any thing in Secular affairs Sir Henry Spelman is a little more particular in delivering unto us the nature of that mixt Court it is in his Glossary upon the word Comes The Earl he saith did preside in that 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 it was lawful for him sometimes to reprove the other and to reduce him bring him into order if he went astray Then he tells us what the work of that Court was that it had cognizance but of petty matters That the Earl had not cognizance of great mens businesses 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 Debts and Trespasscs are not to be commenced in the County Court if it be for above the value of 40s It seems that in ancient times it was but one Court but each Judge had his proper work the Ecclesiastical Judge to distribute and deliver to them what was Gods Law the Secular Judge Mans Law And so it continued till William the First 's time who first separated the two Courts as appears by his Charter to Bishop Remigius which Mr. Selden relates in his Comment upon Eadmerus p. 167. which he saith the King did Communi Concilio Archiepiscoporum suorum raeterorum Episcoporum Abbatum omnium Principum regni sui In a Common Council by the advice of his Arch bishops and the rest of the Bishops and Abbots and all the great men of the Kingdom The words are Wherefore I command you and enjoyn you by my Royal authority that no Bishop nor Arch deacon presume to hold Plea in the Hundred Court any more upon the Episcopal Laws nor bring any Cause that pertains to the rule of Souls before the Judgement of Secular persons but that whoever is questioned according to the Episcopal Laws for any misdemeanour or fault shall come to that place which the Bishop shall chuse and nominate for that purpose and there shall make answer for himself and not in the Hundred Court but shall according to the Canons and the Episcopal Laws do that which is just and right both to God and to his Bishop This was again confirmed 2 R. 2. and so the Courts came to be divided as they continue to this day But nothing can be concluded out of that large Enumeration of the Bishops being admitted in those ancient times to Publick Councils which was more for their Advice and Counsel and Direction than to act any thing at all Authoritatively and Juridically and least of all to have any vote to determine any thing in Cases of Blood which the Canon Law made a Noli me tangere to them I deny not but before there were Christian Magistrates even in the Apostles times the Ministers of the Gospel did many times interpose and reconcile differences and sutes which many times happened amongst believers as St. Paul saith Is there not a wise man among you no not one that shall be able to judge between his Brethren Nor doth he exclude the Bishops that they may not come in as one of those wise men Yet 1 Cor. 6. 4. he seems to exclude them For he saith If then ye have judgement of things pertaining to this life set them to judge who are least esteemed in the Church Which doth seem to intimate as if he meant not the Bishops for sure they are not least esteemed But doth any man think that they were by this authorized to compel men to submit to their Judgement to punish or imprison or lay any corporal punishment upon them if they would not Indeed I cannot think so Nor do I find that St. Augustine was of that opinion the term he gives to those whom the Author of that Treatise will have to be Ecclesiastical Judges doth not imply so much rather the contrary methinks He calls them Cognitores which denotes rather one that took notice of such differences and would endeavour to compose them than a Judge to determine them which hath made me examine that passage more

but of the better Opinion of such as were the Judges The Records of the Court were not to be denyed to any man others it seems might by understanding men concerned in the Cause The meaning of the Law I take to be that Cases of Right might be tryed here of any Value but criminal Cases were not medled withall I remember not to have read any where that Capitalia placita had that Signification our Author suggests Placita Coronae Placita Parliamentaria and Placita Communia I have met with but Capitalia Placita for Placita Capitalium criminum is new to me However the meaning of that be yet the Manuscript Life of Saint Cuthbert as to the thing it self will help us out He tells you it may be with as much Truth as Brompton that one Hamel the Son of Earl Godwin being imprisoned by the Earl of Northumberland his Friends earnestly interceded with the Earl that he might not loose his Head Here indeed we find a man imprisoned by an Earl Application made to the Earl in his behalf no mention of any Bishop any Tryal or any farther Proceeding in the business but the Tryal and the Bishops Presence at it are both supplyed by our Author who hath proved neither or produced greater Proof than the Authority of a loose Legend and that lame too and yet upon this he triumphs as if the Point were clearly gained when there is nothing of what he would have made good by him Is it not now a thousand Pities that so well sounding Words so well put together should signifie nothing The next Precedent our Author takes into Consideration is that of Nicholas Segrave cited by the Author of the Letter pag. 55. by this Author pag. 76. which he would evade by supposing the Bishops might be comprehended under the Name of Magnates or Counsellors and shews that some of the Bishops were probably then of his Counsel For a clear Answer to these Surmises I shall give you shortly the whole Case as you shall find it at large inter placita Parlam 33 Ed. 1. Riley pag. 266. Nicholas Segrave had Summons by the Sheriff and the Command of the King to answer to such things as should be objected against him and to hear and stand to what the Curia Domini Regis to wit the Parliament consideraret in praemissis Segrave upon this Summons Venit in pleno Parliamento in praesentiâ ipsius Domini Regis Arch. Cantuariensis plurimorum Episcopor Comitum Baronum aliorum de Consilio Regis tunc ibidem existentium Nicholas de Warwick perhaps the King's Atturney accuseth him of many and great Crimes which he offers to prove Segrave confesseth all submits to the King de alto basso Et super hoc Dom. Rex volens habere avisamentum Comitum Baronem Magnatum aliorum de consilio suo injunxit eisdem in Homagio fidelitate ligeantia quibus ei tenentur quod ipsum fideliter consulerent qualis poena pro tali facto sic cognito fueri infligenda The Comites Barones Magnates c. adjudge him worthy of Death After this the King pardons him and orders him to put in seven Sureties and to render himself a Prisoner at the King's Command and to be accountable to the King for the Issues of his Land held in his own or his Wifes Name This in short is the Case of Segrave in which it is very clear that at the Accusation the Bishops were present as of Right they might be but at the Tryal they are omitted Now to suppose them comprehended under a general Name and out of Order who were particularly expressed when their Presence was lawful is both unusual and unreasonable unusual because it is against the Rule of Law to comprehend the greater after the Nomination of the lesser and so to take the Bishops under the name of great Men who are constantly first named and were so here at the Beginning Secondly 't is unreasonable to make a different Construction of the same Words in different Cases or Laws now we know that in the Statute de Asportatis Religiosorum the Words are Comites Barones Magnates where we know the Bishops were not comprehended under the Name Magnates nor ought to be here and to suppose the contrary is against the Current of all Acts of Parliament and Records By the Magnates and alii de Consilio were meant the Judges and other Counsellors at Law whose Advice the King required as was very just and usual in those times 'T is likewise observable that the Word Consilio is written with an s which shews those Counsellors he advised with were not necessarily Members of Parliament for then the Word would have been written with a c Concilio His remarkable Precedent of the D'Spencers will stand him in as little stead in the Reign of Edward the Second they were both condemned and the Exilium Hugonis D'Spencer is to be seen in the old Natura brevium Those Judgments were afterward reversed at York in 15 Edward the Second but in 1 Edward the Third the first Judgments were affirmed and so they were look'd upon as condemned Persons which continued though themselves were dead for above seventy years til by the prevailing Party in 21 Richard the Second that Act was again called in question as void in regard the Bishops were absent and the Bishops desired to make a Proctor by the Commons which they accordingly did but at last through their exorbitant Proceedings that whole Parliament was repealed in 1 Henry the Fourth To this I have largely spoken before to which I shall refer the Reader with this farther Advertisement that in troublesome times things are not always carryed as they ought to be wherefore we are not always to look at what was but what ought to have been done neither are we to be governed by seeming Precedents such as sometimes as in the Case of Ship-money may be produced against Law I have before made it manifest that the Canons of the Church long before Lanfrank's time forbad Clergy-men to meddle either in Blood or secular Employments neither is it reasonable to believe the Laws of this Land were different from the general Rule incumbent upon all Clergy-men to observe especially when we see the Immunities granted them by King Stephen were so early recalled by Henry the Second and the Constitutions then made at Clarendon look'd upon as the ancient Customs of the Nation insomuch that the Discourser had very good reason to say 't was the common Usage which is the common Law of England Pag. 88. Our Author comes to the Examination of those Records urged against him and his Exceptions in general are First That they are Negative the Bishops were not present at Tryals of Blood therefore they had no Right to be present Secondly They were sometimes absent when they were not prohibited therefore their Absence was voluntary Thirdly they are sometimes comprehended under the