other Cases Now this very Question seems to me an over-ruling ours for if it were then a Question whether they might be of a Committee in Cases of Blood where the Judges were often joyned with the Lords it can be no doubt but that they ought not to be admitted to give their Votes as Judges in the like Cases in their Persons REFLECTIONS UPON Antidotum Britannicum AND Mr. Hunt's late Book and Post-script As far as concerns the Controversy between Doctor Brady and the Authorof Jani Anglorum facies nova and of Jus Anglorum ab Antiquo London Printed Anno 1682. CHAP. I. The true and essential Difference between the General Council of the Kingdom and the Curia Regis maintained against Dr. Brady Mr. W. and Mr. Hunt with a short Account of some Reasons why Mr. Hunt might have spared his Censures upon them who apply themselves to the Study of Antiquities SInce Dr. Brady received a Reply two of my Brethren of the Gown Mr. W. and Mr. Hunt both of Greys-Inn have appeared in print in behalf of the King's Tenants in Capite and will needs have it that these ingrost the Right of coming to Parliament as one calls it or the Magnum Concilium as the other till 49 of Hen. 3. One professes that he never read what has been wrote upon this Subject either by Mr. Petyt or me The other slights it all as a Dispute not worth the Cost and Pains spent about it and grants many of Dr. Brady's Hypotheses but denies his Consequences and so allows him to be a good Antiquary but an ill Logician That there was a Curia Regis or Common Council of the Tenants in Chief such especially as held of the King by Knights Service distinct from the Great Council of the Nation or Parliament In which Curia the King's Tenants granted to the King Auxilia Aids and did act many things in relation to their Tenures Both agree with me directly against Dr. Brady who will have it that all the King's Tenants by Knights Service never met in any Council or Court but thereby it became the General Council of the Nation or Parliament In which since he is opposed by these two learned Authors agreeing with me they have given so much Credit to my Notion that they have prevented that further trouble which I might have given the inquisitive World upon that point If I can free my self from the force of these Gentlemens Arguments or Objections upon those things wherein I differ from them I think I need not fear the empty Thunder of Men of other Professions but may look upon my Notions as sufficiently established Both Mr. W. and Mr. Hunt are Men of much longer standing and greater natural and acquired Parts then I can pretend to yet if I have the good fortune to fall into the Paths of ancient Truth no modern Authorities ought to beat me out of them They both will have it that the Tenants in Chief were the only Members of the Curia Regis which was held for Matters within the King 's ordinary Power and of the Magnum Concilium or Parliament where the extraordinary Power was exercised Against them both before I examine their supposed grounds from Authority this obvious Objection in reason may be urged If all the Tenants in Capite by Knights Service were obliged to attend in the Curiâ either by virtue of their Tenure as one takes it or of general Summons as the other and the consent of none but such Tenants were requisite for passing of Laws in Parliament what reason can be assigned why Laws might not have been made in the Curia and so that have become a Parliament when ever the King pleased to declare it so Can a more particular Summons and notice of Arduous Affairs which is Mr. Hunt's Notion lay a greater Obligation upon them to be present who however were bound to come And if they were bound to come can Absence be reasonably pleaded to free any from the Obligation of what was then agreed on Indeed Dr. Brady who will have it that every full Confluence of the Tenants in Chief by Knights Service to Counsel was a General Council of the Nation supposes that even before King John's Charter and while he thinks that they were to come to Parliament ex More without Summons if but a few appeared it was no General Council which is an absurd Supposal unless there was before that a Law in being that they should not act without a certain number as supposing that forty were to make a full House as now 't is said to be with the Commons for otherwise they who did appear did according to the general Rule of making Laws bind them who were absent through their own default But if we consider how contrary it was to the Usage of those Times to make Laws or insert Clauses or Words idle or unnecessary we shall not easily believe that they would according to Mr. Hunt's Supposal have made Provision for the particular summoning of those for arduous Affairs who were obliged to attend at the Council without such Summons Indeed I am aware that Dr. Brady hath charged me with putting such a sense upon King John's Charter as would imply a needless Provision The Doctor tells us that by King John's Charter the Cause of Summons was to be exprest and from thence he would infer that it was a Great Council there intended for saith he such Provision were needless if there had been but one Cause for which they were to be summoned which he urges as the Consequence of my interpreting that Summons there provided for to have been only for raising such Aids in the Curia as could be imposed upon the King 's immediate Tenants and none else Now admit that this had been to a Parliament and had taken in all manner of Charges to be laid upon the Subject if the raising of Taxes were the only work of a Parliament the providing that they should have notice when a Tax had been required would have been as impertinent and if the Parliament had any other Power this Provision had been as defective as he supposes 't was according to my rendring superfluous For that Summons mentioned in King John's Charter is restrained and limited to the granting of Aids but there is not one word or syllable of making or enacting Laws which is the main business of Parliaments and therefore this must be intended of some Inferiour Counsel and not of the General Council of the Kingdom But if the Charter be taken to be meant only of raising such Aids as lay upon none but the King's Tenants if those Aids branch themselves into Escuage and Tallage here were two Causes of Summons as the one or the other was required or if only such Aid as Escuage was within the Provision still the Cause or the Occasion of raising the Escuage might be different and therefore the cause of Summons more than
by Usage or Allowance that 's denied Nay the Impossibility is manifest For I conceive by Law the King cannot make an Estate for if he could he might make a fourth a fifth or a sixth Estate and require consent from them all to the making any Law which would alter the Frame of the Government Mr. Prin hath very well proved them to be only a third Estate in Convocation from the manner of penning their Grants there to wit By the name of Prelates and Clergy of the Province of Canterbury and York orderly assembled in a Provincial Synod or Convocation may be ratified and confirmed in your Highness's Courn of Parliament with the Assent of the Lords Spiritual and Temporal not Prelates and Clergy as in their Grant Prin. fourth part of his Kalender p. 594 595. to these I might add many more Authorities Caudrey's Case Cook part 5. p. 8. Clerus tota Gens Laicalis but these eare enough and I take it a full Answer to his several Records urged to that purpose and for Explanation of the Author of the Letter who when he saith they are a third Estate of the Kingdom not of the Parliament that is to say not in that House of Parliament where they sit mixt with the Temporal Lords But should I admit them a third Estate in the Lords House as this Author and others contend they are and so a distinct Estate from the Lay-Lords What colour can they then have to judg a Peer upon an Impeachment for Life when themselves tho they sit among them are a distinct Estate from them and so no way their Peers which I take to be a very strong Argument ad Hominem I have thus past his first Assertion and given Answer to his Conceit of their being a third Estate in the Lords House if by it he mean an intire third Estate and not a part of it as I said before For when they act in Convocation they act with the rest of the Clergy as an intire third Estate can they that is the Bishops in the Lords House be more than part of a third Estate where they vote not as Bishops but as Barons as themselves would have it Certainly we must not shut out the Convocation to represent the Clergy if then the Bishops in Convocation represent but a part of the Clergy how they should be an intire Representative of them in another place whilst both are in being is to me a Riddle Let us now come to his argumentative part After he hath climbed a Ladder of five Steps he comes at last to this Conclusion That to sit in Iudgment with the Lords is not against Magna Charta What if this shall be granted him Doth it thence follow that they are such Peers as are enabled to try those in Capital Cases who are enobled in Blood and have inheritable Baronies in themselves by Creation Magna Charta is a general Charter which directs the Proceedings in the Tryal of all men by their Peers Who are Peers to one another is not there the Question neither doth the Author of the discourse of Peerage make any other use of it The ancient Canons forbid them to meddle at all in secular Affairs if therefore the Indulgence of Kings have admitted their Presence in Parliaments in some Cases doth it thence follow that they have Right to be there in all Cases or to try Peers for their Lives to whom they are no way equal The Author proceeds and in the next place insists upon the Forms of their Writs which are of the same kind with those of the other Barons which being not limited nor restrained neither ought their Power so to be The Weakness of this Argument is very apparent for by this he may infer that the Judges and some others had the same Right for Mr. Elsing in his Modus pag. 11. hath observed that the Writs were alike to the Lords to the Judges and some others in diverse years of Ed. 1. in most of Ed. 2. and many of Ed. 3. But the Words of these Writs though general were to be interpreted by the Practise of the Court and not contrarily Again there is a great deal of difference between giving Counsel in difficult matters according to their Writ and trying Men for their Lives an Employment no way proper for Messengers of Peace and Preachers of glad Tidings Lastly the Earls and Barons are Consiliarii nati Counsellors by their Birth and so have a natural Right to give Counsel in all Affairs being once assembled in Parliament and for that Reason upon the Death of the King the Nobilitas Major have all equal Right to meet in Council in order to a Successor so have not the Bishops nay though Privy Counsellors their Commission ceasing they have then no Right to come into Council with the other Lords In the next place he saith Men as certainly dye by Bills of Attainder where the Bishops have an undoubted Right to vote in their Legislative Capacity and therefore to vote in Cases of Blood is not incompatible with their Function To this I answer the Cases are very different as well to the matter of the Law as the Reason of it For first Custom or whoever gave them Right to sit in the Lords House in the Nature or amongst the temporal Barons though Ecclesiastical Persons did not restrain them as to their Concurrence in the making new Laws yet very well might as to their judging in some Laws already made so that the one is agreeable to the Laws of the Kingdom and the Laws of Parliament and the other not so And if any thing in that Particular had been contrary to the Holiness of their Calling or their Rules of Living it had been fit for them to have informed the King and Lords and not for them to take notice of it otherwise Nay in that very Case when that Bill shall come to be passed into a Law by the King the Lords Spiritual ought to absent themselves as it was held by Mr. Bagshaw a Reader of the Middle-Temple in the time of Arch-bishop Laud by whose Power he was then prohibited from farther Proceedings in his said Lectures Rush. Hist. Collect. part 2. pag. 990. Secondly the passing a new Law be it what it will doth not immediately but by Consequence may concern Blood Now the Bishops who are always supposed to incline to Mercy rather than Severity may perpetually with a good Conscience hinder the passing such a Bill as shall punish a Delinquent with Death who had not capitally offended before But when once a Man is capitally impeached for transgressing a known Law and Issue joyned thereupon 't is not now in their Power with a good Conscience to acquit the Guilty because they must there opine according to the Proofs before them which is a very strong Argument why they might be permitted to be present in the one Case and not in the other Lastly if this way of arguing
not that the thing was true or that the Author of the Letter gave him any cause to take up that Fancy Their Affectation of Omnipotency was not to be freed from that part of the Law of the Land which was agreeable with the Laws of the Church which they were content to submit to but their Desire was to be freed from those they thought were against them to wit to do Service to the King for their Lands to answer to his Justices and Ministers to be subject to the secular Power for any crimes they should commit These were the things they stormed at and were the Ecclesiastical Bondage and the wicked Constitutions Matt. Paris and other Historians of his Time so much exclaimed against because they would have had all their Affairs transacted in their own Courts so that our Author need not have spent ten Pages to prove what no body affirms Much of the Contests between the King and Clergy arose from the Charter granted by K. Stephen Anno 1136. That all Persons and Causes ecclesiastical should appertain only to ecclesiastical Judges which Charter whatever stir they made about it according to our Author's Logick was void for Maud the Empress Daughter to Henry the First third Son to William the First and so right Heir to the Crown was then alive to whom the Bishops and People had sworn Obedience and therefore King Stephen was as much an Usurper as Hen. the Fourth This Charter was the Latis offendiculi the stumbling Stone they could not escape and the meer restoring now at Clarendon the ancient Laws and Customs confirmed to the People by Hen. 1. was what gave them the greatest Disturbance not that they affected any Omnipotency of Judicature at least in cases of Blood insomuch that our Author had no reason to pin a Sense upon the Words of the Author of the Letter to which he had no Inducement from any Words of that Author Having done with the Occasion we come now to his second Enforcement of his Opinion viz. the plain meaning of the Words First he quarrels with the copy the Author of the Letter follows taken out of Matt. Paris and Wendover who notwithstanding in Mr. Selden's Opinion have best preserved the meaning of this Constitution Seld. tit hon part 2. pa. 703. 704. Though I do not grant his Vatican copy following as he saith Gerv. Doroberniensis is better yet for once I am content to follow his copy and admit the Words in Judicio to be inserted which are left out by Matt. Paris yet I think necessarily implyed but shall never yield to his unwarrantable construction of them which in conclusion amounts to this That the Bishops were bound to be in the Kings Courts in all Judgments till it came to Sentence of loss of Life and Member and then they might go out in obedience to the Canons of the Church if they pleased to which they pretended themselves bound in Conscience to give Obedience and that for this Reason the Pope marked this Constitution with a hoc tolerandum the others with hoc improbandum I confess I think the Interpretation of these Words contrary to their natural Sense and contrary to the Opinion and Practise of former times who have always understood them to import that the Clergy ought to be present in all Tryals in Parliament except in Tryals of Blood But before I proceed to make good the true Sense and Translation of these words it will be necessary to explain the Signification of some of them First Quousque usque quo dummodo praeterquam are often times indifferently taken as signifying the same thing and are limiting restraining Particles and used as Exceptions to something which went before 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 till what time till when so far forth except when or the like Secondly Iudicium signifies properly a Tryal at Law a Case a Suit or Process and is not taken for a definitive Sentence except when it is delivered as the Opinion of the Court resulting upon a precedent Tryal had before others in which he that pronounces Sentence hath not or very rarely more than a directive Power and do's not give his own single Opinion but the Sense of others in matters debated Actiones quarum causa in jus quisque vocatur quandoque dicuntur judicia Ut in L. in bon fid 13. de Usuris L. 4. C. tit 32. L. Mora S. in bo fid Theophilus refert in S. 1. de Act. quas Athenienses 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicebant Budaeus notat in communi Lingua Graeca per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 generali nomine dicebant litem actionem paenam mulctam judicium to wit the whole Proceedings Iudicium est legitima disceptatio duorum aut plurium coram judice Cale Dict. Calv. Lex juridcirca finem to the same purpose By these Authorities and many more 't is plain that Judicium Judgment comprehends the whole Proceedings in any Cause and not the Sentence only Pervenio signifies to arrive at or the Accomplishment or Bounds of any thing as pervenire ad metam is to arrive at or come to the Goal Ovid speaking of the Return made by the Eccho hath these Words Verba refert aures non pervenientia nostras Words that arrived not at our Ears they came not to the Terms or Bounds designed So pervenior in the Passive Voice must signifie to be arrived at or accomplished in That Judicium in our Case must be taken in the Sense I have given I shall evince from the general Opinion of Lawyers I shall begin with Magna Charta The Words there are judicium Parium and understood of a Tryal by his Equals The Question which is asked the Prisoners after their Plea is not who shall give Sentence upon thee but how wilt thou be tryed and they that give Sentence are not those that try them in criminal Cases nay their appealing to a Tryal by them is accounted a standing Mute The next Authority shall be from the Council at Westminster in the 22. year of Hen. 2. no more than twelve years after the Assize of Clarendon and as Hoveden saith taken out of the 11. of Toledo and summoned as Gervas of Canterbury saith In hoc consilio ad emendationem Ecclesiae Anglicanae ex assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula Amongst which this is one His qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut per se Membrorum truncationes faciant aut inferendas judicent That such as were in holy Orders should not agitate or meddle in Tryals of Blood as a thing unlawful for which Reason they are prohibited from cutting off any Member themselves or from giving their Opinions or Judgments that such Punishments ought to be inflicted This Synod we see was not only a Meeting of the Clergy but with them of the Primores Regni
providere debent indemnitatibus coronae regni hujus per Commune Concilium ibi providendum est ad insolentiam malefactorum reprimendam c. Leges Sanct. Ed. de Grove Vid Ius Angl. ab Antiq. Cap. 7. Dr. Brady says the Controversy is concerning matter of Fact only Against Jan. Angl. facies nova p. 1. * Sym. Dunel f. 243. Anno 1121. So Mat. West f. 352. 37. H. 3. †Ego enim quando voluero faciam ea satis summoneri propter mea dominica necessaria ad voluntatem meam Ian. Angl. p. 34. Spelm. Glos. tit Hund. Vid. Additions to Ius Angl. ab antiquo a p. 20. â—…d p. 32. Brompton f. 1060. Brompton An. 1170. Gervasii Crobica f. 1412. This Explanation is warranted by St. Edwardâ—… 〈◊〉 Habent etiam Aldermanni in Civitatibus in Burgis clausis murae val latâ—… in Castellis eandem Dignitatem Potestacem modum qualem habent praepositi Hundredorum Wapentachiorum Vid. Spel. Glos. Tit. Aldermannus * Jus Angl. ab antiq p. 192. Bromptor f. 10â—…1 Ex Blundel Brev. penes Rem R's in socio 23. E. 1. North Nomina duorum mil. Johannes Doyley de Stoke miles Willus Murdake miles Manucaptores Johannis Doyley mil. Ris. Bird de Stoke Wiliiel Ellis de eadem Many more of like nature Francus Plegius seu Fidejussor Spelm. Glos. Tit. Franc. pl. So nono H. 3. Milites libere tenentes omnes de Reg. Magna Charta cap. 38. 2 Inst. f. 76. Spelm. Glos. Tit. lib. hom ad Nobiles 〈◊〉 lim sâ—…tabunt 〈◊〉 〈◊〉 a majoribus ortos omniuo liberis Vid. Canâ—…den's Ordines Angl. f. 122. 1 Inst. f. â—…10 b. Rot. Parl. 8. E. 2. N. 233. Dr. Brady against Mr. Petyt p. 78. So if summoned to attend the Justices in Eire or the like Pro Burgensibus de Brugwater ut sit liber Burgus per Chartam Regis Johan factam Wi. Br. Cart. 11. Ed. 2. m. 5. n. â—…0 Cart. 11. E. 2. m. 5. n. 132. Vid. Prin. Regist. of Writs Inter Coima de term St. Mich. An. 34. Edw. 1. vid. part of it enforc't Jan. Angl. p. 241. Vid. at the end this inserted at large ¶ Vid. Prin's Regist. Charta Antiqua R. n. 18. Hen. I. Carta Ant'q R. n. 15. Ibid. n. 16. Rich. I. Inter Bre. dir Baron de Term. S. Trin. 8 Ed 2. penes Rem D. Thes. This like Coventry Leges Sanct. Ed. de Heretachiis Habeat omnis Dominus familiam inplegio suo L. Canuti c. 52. L. Sanct. Ed. de Friborgis Vid. Jus Ang. ab antiquo p. 13 14 15. L. de Friborg Aldermannus novemdecimorum in the Laws of H. 1. Spelm. Glos. Tit. Aldermannus Britton e. 29. p. 72. b. Vid. Stat. West 1. c. 10. 3. E. 1. the Coroner to be des plus loialz plus sages Chivalers Vid. etiam Ian. Ang. Facies nova p. 47. 48. Et si Cheorlmanâ—… romoveatur ut habeat quinque hidas terrae c. Et si Filius Filii ejus hoc assequatur ut tantum terrae habeat postea est qui nascetur ex cis sithercunde Generationis c. Leges Aldestani Bromton f. 846. Matth. Paris Edit Tig. f. 246. Dr. Brady's Glos p. 31. Vid. supra Vid. Jan. Ang. facies nova p. 66. Jan. Ang. c. p. 263. Additions to Jus Ang. p. 20. Vid. Mr. Selden Obj. against this answered Jan. Ang. a p. 250. ad 256. Rot. Claus. 38. H. 3. m 7. 12. Jani Angl. c. p. 244 Dr. Brady against Mr. Petyt p. 1. 2. Rot. Pat. 24. Ed. 1. N. 22. Jus Ang. p. 160. Stat. Stap. 27. Ed. 3. Rot. Parl. 8. Edw. 2. n. 2â—…3 See that Record vindicated from Dr. Brady's Misconstruction Jus Ang. ab antiq p. 28 29 30. Rot Claus. 28. E. 1. m. 12. dorso Mr. Hunt p. 149. Contrary to Dr. Brady against Mr. Petyt p. 210. Page 155. Page 156. Pag. 154 155. Page 154. Supra p. 271. Mr. Hunt p. 205. Page 206. Page 156. Mr. Hunt p. 122. Page 122. Post-scrip p. 33 This is begg'd throughout Mr. Hobbs's pernicious Dialogue between a Philosopher and Student of the Common Laws of England Power of Kings f. 1. Patriarcha p. 97. Mr. Hunt p. 6. p. 122. supra Vid. Power of Kings f. 1. Inter Record penes Reâ—… Dâ—… Thes in sceio remanen pro hominibus Ville de Coventre
by the institutions of the Holy Canons to be personally present and that of Right they cannot nor ought to be there and therefore they do not intend in any sort quomodolibet to be present but wholly to absent themselves while those matters are handling Can any man now have the fore-head to maintain that they could have a thought of challenging still a right contrary to such prohibitions and to say that it was only the Canon Law that did prohibit them I say still that the Canon Law was to them above all Laws and the Prelates of those times conceived themselves to be above all other Laws even not to be subject to them but what the Canon Law did allow or forbid was accordingly by them held to be most lawful or unlawful The Salvo they add makes it clear Iure paritatis nostrae cujuâ—…ibet eorum interessendi in dicto Parliamento quoad omnia singula inibi exercenda nostris eorum cujuâ—…ibet Statui Ordini congruentia in omnibus salbis The right of our Parity and of every one of them that is our equal right in the general and of every one of us in particular with the rest of the Lords of being present and acting in the said Parliament as to all things and every thing befitting our State and Order always remaining unto us safe and entire Now I would ask if it can be imagined that they would by way of Protestation reserve to themselves a liberty when they pleased to do what they said was not lawful for them to do and that which of right and according to the Law to which they were subject and must obey they could not nor ought to meddle with And if such things can be thought to be Statui Ordini congruentia for their Salvo extends only to such things as are agreeable to their State and Order Indeed I think it a solecism to have such a thought And I know it will be excepted against that I do take Paritas here in such a sense and not to be Nomen Apellativum to signifie Peerage a rank of men but I consider how it is put that it is Paritas interessendi in Parliamento which in my opinion is proper to render a Parity or an equal right with others to be present in Parliament But let them construe it Peerage it matters not to me I have handled that point fully by it self in my former Letter and shall do it again in this before I make an end to shew I am not afraid of that expression and though in those times the Prelates gave themselves sometimes that Character that it did not at all belong unto them And he beats upon this again That this was left out purposely by me in my citing this Protestation which I have sufficiently cleared already amongst his Postulata's therefore I shall not trouble you with it again in this place In the Case of Thomas Haxey 20 R. 2. my Gentleman is so ingenious as to say He believes the Bishops were not present but then he tells you why because it was an erroneous Judgment and an Irregular Condemnation and so commends their Prudence And sure he hath been with some Witch to raise some of those Prelates from the Grave as the Witch of Endor did Samuel to tell him the true cause why they withdrew themselves and did then forbear to use their Right as he saith it is lawful for every man to do else he could never have hit so pat upon the true cause of their withdrawing whereas otherwise a man might say it was because they knew they had no right to be there and if it had been their right they should the rather have made use of it to prevent and hinder an unrighteous Judgement and have caused a righteous one to be given And more than that if it was their Right and that they had a calling to be there they were bound to attend the Service and I think it would have been a breach of Duty and a Sin in them to withdraw themselves from it And now I come to a Bundle of Words indeed it is what he says concerning their Proxies 21 R. 2. out of which one shall have much ado to pick some sense and what it is he would be at I will do my endeavour in it He first puts us in mind of his fifth Postulatum and of what he said there of the difference between the Matter of a Law and the Manner of its enacting and that a Law may be repealed for the Matter of it and yet the Manner of making it still hold good This I suppose he saith because I except against the authority which that Parliament at the desire of the Commons gave the Bishops to make their Common Procurator in regard that whole Parliament was afterwards repealed and consequently all it did made null and void Yes saith he the Parliament was repealed by 1 H. 4. because it condemned those who were his friends as Traytors to the King and Government yet the proceedings in that Parliament were just and lawful To which I answer That what was done that Parliament agreeing with the practice and usage of other Parliaments was certainly just for the Manner of the doing though the Matter might be repealed and made null But what was never done before in any Parliament nor any thing like it could not receive any stamp of Authority for its being done in this Parliament because the Parliament it self had no authority a subsequent Parliament repealing it and making it as if it had never been And this of all the Bishops joyning to make a Common Proctor was never done in any Parliament before nor since If any should object that Henry the Fourth was an Usurper and had no right nor Title to repeal former Parliaments nor to make any Laws This were an Objection if it should be allowed would have a long tail and carry a very bad consequence for it would sweep away at once all the good Laws that were made in three Kings raigns and would make such a Hiatus in our Statute Laws as would put things into a very great disorder We know that in Edward the Fourth's time which followed immediately after those three Henries in all the Acts of Parliament which passed when mention is made of any thing done in those Kings Reigns still what was done is allowed of and confirmed and to their Persons and Government the Parliament still gives this Character that they were Kings indeed but not of right Which implies the stamp of Soveraign power and authority to be set upon all their actions and so upon the Parliaments that were summoned and held by them and principally there because of the concurrence and conjunction of the whole Kingdome in all things there done Nay in some Acts of Parliament we find care taken that nothing should clash with what had been done in Parliament by some of those Kings as 14 E. 4. c. 4. there is a Statute
concerning Breakers of Truce and a Proviso in it That this Act shall not extend to any Act or Ordinance made 2 H. 5. late indeed and not of right King of England But still he is acknowledged King of England de facto which goes a great way to authorize any thing done under their power Therefore 11 H. 7. c. 1. A Law is provided to indemnifie all persons that shall do service to the King in being whether he have right or no. As for what is said of the Bishops making their Common Proxy at the prayer of the House of Commons That their Proceedings might be valid and not questioned in future Parliaments by reason of their absence and that divers Judgements had been reversed because they were not present It is true it is so expressed in the Roll of that void Parliament which as it hath no authority nor validity in it self so it is very strange that if there had been ground for this apprehension there should remain nothing upon Record in all the Rolls of Parliament that ever any Judgement or any other act done in any Parliament had been so repealed We know it was once attempted 2 H. 5. by Thomas Montacute Earl of Salisbury as I told you in my former Letter who brought his Writ of Error to reverse the Judgement given against his Father 2 H. 4. because the Bishops as he alledges there being Peers of Parliament were not parties to that Judgement but it was declared to be no Error and his Petition was rejected And we know that in Edward the First 's time there was a Parliament held at St. Edmonds-bury Clero excluso not a Prelate admitted to it And in Henry the Eighth's time all the Judges of England declared it for Law That the King might hold a Parliament with his Lords Temporal and Commons altogether without the Lords Spiritual Tout sans les Spirituels Seigneurs it is in Keilwayes Reports in Dr. Standish's Case Therefore there is no reason to think that any Judgements were repealed upon the Bishops being absent seeing their presence is not of necessity for the constituting and sitting of a Parliament And especially not for the Judgements which we treat of in Capital Cases because by what appears upon Record and by all the Laws Canon Common and Statute Law they never were present I always except that Unparliamentary Extravagant Proceeding and Judgement of Henry the Sixth in the twenty eighth of his Reign upon William de la Pool Our Asserter tells us of some Judgements reversed 15 E. 2. particularly in the Case of the Spencers but he doth not tell us where he finds it nor I believe doth he know himself having only taken it up some where upon trust as he doth other things But in this 21 R. 2. upon the Petition of the Earl of Gloucester it appears by the Record of the proceedings against the two Spencers Father and Son in that 15 E. 2. which are there repeated at large that there was nothing Capital in their Case neither in the Charge nor in the Judgement so as this signifies nothing to the matter in question which is all can be said to it And as little shall I say to his witty allusion of bringing me to a sight of my self as Alexander did his Horse to the Sun that he might not kick only this I might say if I were as foul-mouthed as he that indeed such a scoffing injurious Scribbler were fitter to be answered with a kick than with fair reasoning by way of Argument Next we come to the 1 H. 4. Sir William Rickhill's Case where I think I should do well only to transcribe what he hath written to shew it needs no answer but that I should waste too much Ink and Paper I represented in my Letter to you that Rickill being sent for into Parliament no formal charge being against him to give an account only by what order he had taken the Duke of Gloucester's Confession at Calais which he did the Bishops present but when they came to consider what was to be done upon it then only the Lords Temporal were asked their opinion which I alledge to shew that the Bishops there were not advised with because it might be preparatory to a further proceeding by way of Tryal And this our Asserter says is to serve an Hypothesis and learnedly gives it us in Greek and bids the Reader judge and so do I. Then for the Tryal of Hall who was one of the murtherers of the Duke of Gloucester he hath the condescension to acknowledge it probable that the Bishops were not there but then saith that they left it to the Temporal Lords without any Impeachment to their right it being secured before by the security of a confessed Act of Parliament 11 R. 2. it is their Protestation he harps at And if I had as much Greek as he I would say it in Greek that he now doth serve an Hypothesis or in good English beg the Question for that is his meaning of serving an Hypothesis for the Right which the Bishops there saved he will have to be and hath forty times repeated it to judge Capitally when they please but I have clearly shewed it was not of their assisting in those Judgements as he still will have it to be but other Judgements and proceedings in Parliament where in truth they had a right to assist Then follows the Case of William Sautre 2 H. 4. where he is pleased to give me a wipe for stiling him the Protomartyr of England and out of his great reading informs that St. Alban lived some hundreds of years before him but he must give me leave to inform him that the common acceptation of Martyrs amongst us Protestants now is of such Orthodox persons as have suffered for the truth whom the Papists have put to death for Hereticks and this man was the first of them in England He hath some other notable Remarks one is that whereas I said that the Bishops and Clergy of those times were the chief Promoters of bringing him to his end which I meant of their declaring him an Heretick and then turning him over to the Secular Power he observes upon it That then they acted in a Capital Case which he saith makes against me And that if it was the Lords Temporal who signed the Warrant for his execution that the Bishops had no hand in it and so have escaped my lash but who were his Judges nondum constat I am sure it doth not constare to me to what purpose he saith all this which I do not find to make either for him or against me No more than what he saith of the Case of the Earls of Kent Huntington and Salisbury 2 H. 4. who he grants were declared and adjudged Traytors by the Temporal Lords and no Bishops present and then saith he will give a Parallel Case it is of the Earl of Cambridge and the Lord Scroope 3 H. 5. where the Bishops were present and
saying is neither in the Judgement it self nor any thing leading to it So he comes to the Arch-bishop Becket's Case where he notably spends his mouth but like an ill Hound all upon false Hunting and indeed runs riot so far as he is not to be lashed in He fills several leaves of his Book with Encomium's of the Popish Clergy because some of them sometimes did what it was their duty to do which doth not excuse them in the general current of their proceedings commonly to stand for the authority of the Pope and the See of Rome against the Regal power and the authority of Parliaments as they did 20 R. 2. saying They were sworn to the Pope and to that See and they would oppose whatever the King and the Temporal Lords should do En restriaion del Poair Apostoliqué ou derogagation de la libertoe de Saina Eglise In restraint of the Power Apostolick or derogation of the Liberty of Holy Church So he takes much pains to assert the Kings natural right to command his Subjects to serve him upon any emergency and so to make Clergy-men Justitiaries if he see cause for it Which then gives them power of Judicature and I do acknowledge it but it is to be understood of Judicature in such Cases as the Law of the Land allows we know they have been some of them Lord Chancellours Lord Treasurers Lord Privy Seal but can he shew me that any of them judged in Cases of Blood For this Case of Beckett's is certainly misrepresented in Fitz-Stephens manuscript We know there have been heretofore in many Counties Justices of Assize which have been Clergy-men joyned with others in Commission who were not Clergy-men to take Assizes in the County And the Act of Parliament 27 E. 1. c. 3. coming to give power to those Justices of Assize to deliver the Gaols and so to be made Justices of Gaol-delivery and try Felons and Murtherers it provides that if one of them be a Clerk then one of the most discreet Knights of the Shire shall be associated to him that is a Lay-man and be empowered by the Knights Writ to deliver the Gaols of the Shires and chasten and punish whom they shall find to be guilty And this Statute is confirmed 2 E. 3. c. 2. which makes it manifest what the intendment of the Law is in that particular that Clerks must not meddle to judge in Cases of Blood and must hold good even for Bishops who are all of them Clerks As for this Case of Beckets which only stands upon the credit of a Manuscript said to be made by Fitz-Stephens a Monk whom he characterizes for a sober and grave Historian and more solito out of the sweetness of his nature gives me a lash saying It is usual with me to let fall expressions to vilifie Testimonies and Precedents when they make against me and this because I stile it a Blind Manuscript and suspect the Author as partial having been a creature of Beckets and consequently no friend to the King And therefore I give rather credit to the unanimous consent of the Historians of those times who do not relate the passages of that Tryal to be as he makes them than I do to him and his Manuscript I call it a Blind Manuscript because it sees not the light lyes obscure in some bodies Closet Mr. Selden doth not tell where and I dare say our Asserter never saw it though he terms the Author a grave Historian His tale is how at that great Council at Northampton Archiepiscopus laesae Majestatis Coronae Regiae arguitur quia est a Rege citatus pro causa Iohannis neque venerat neque idonee se excusasset c. The Arch-bishop is questioned for Treason against the Crown of the King because he was summoned by the King in the Cause of John that is one John the Marshal who complained that the Arch-bishop had done him injustice in his Court and he neither came nor had sifficiently excused himself upon sickness or any other just reason which might necessarily hinder him whereupon he was condemned to forfeit his personal estate and the Bishops and Barons not agreeing who should pronounce the sentence they putting it off from one to another at last the King commanded the Bishop of Winchester to do it This is his story and one may think it a strange piece of Treason one not to come immediately upon a Summons to attend the King especially if it be true what all the Historians that write of those times have related of this business Gervasius Dorobernensis is an Author as Mr. Selden observes who lived in that age and one of whom Mr. Selden and all Antiquaries we are sure have a good opinion and though our Asserter is confident enough to affirm they all have so of Fitz-Stephen it is of what I do not find that much hath been said by them to shew that nor do I think that any of our Antiquaries but Mr. Selden doth so much as mention him And from Gervasius Dorobernensis we have this relation Rex praecepit praesules Proceres regni apud Northamptoniam una cum ipso Archiepiscopo convenire c. The King commanded the Prelates and Nobles of the Kingdome together with the Arch-bishop himself to meet at Northampton where the Arch-bishop was accused of many things first that he had not fully done justice to one John that had a suit before him then that upon this occasion being called into the Kings presence he neglected to come To this the Arch-bishop made answer That John had all the justice done him that was due to him that he had illegally defamed his Court that he would not swear upon the Evangelists as the custome is but upon an old Song-book which he brought with him But that being upon this summoned he came not into the Kings presence was not upon any contempt but that he was hindred by a great sickness and that he had excused himself by two competent witnesses whom he had sent for that purpose yet this served not his turn but Curiali Iudicio Episcoporum consensu condemnatus est He was condemned by the Iudgement of the Court the Bishops consenting to it that all his personal estate should be at the Kings disposing This now is delivered unto us by an unquestionable known Author who lived in that time Fitz-Stephen and he agree in the matter of the Accusation and agree in the Judgement but Fitz-Stephen lays it to be Crimen laesae Majestatis Coronae Regiae High-Treason which must be for not coming to the King when he was summoned Gervasius saith that he sent his excuse by two witnesses who testified that he was then very sick and not able to come which we all know to be a Lawful Essoine De malo lecti which cannot be disallowed but must excuse nay justifie any bodies absence Now can any body that is master of common sense believe Fitz-Stephens relation who will have this to be
from me and hath much more of reason and something though not much more of civility and fairness in the maintaining of it so as whether or no his reasons will convince me I know not but if they do I will certainly grant it for my Maxime is still Amicus Plato amicus Socrates sed magis amica Veritas The Writer of this Treatise intituled The Grand Question concerning the Bishops right to vote in Parliament in Cases Capital Stated and Argued doth state the Question right that is Whether the Bishops may be present and vote Judicially in Capital Cases which come to be judged in Parliament either in giving the Judgement it self or in resolving and determining any circumstance preparatory and leading to that Judgement Then he sets down some things granted on both sides as 1. That Bishops do sit in Parliament by vertue of their Baronies and are bound to serve the King there From this he infers they have a Right of Judicature which is not denied but the question is as he saith himself what this Judicature is 2 That they sit by the same kind of Writ that other Barons do Upon which he would infer that they are impowered and required to confer and treat of all the weighty affairs that shall be brought before them the King having not limited nor restrained the one more than the other But it follows not because all are called together by the same authority that therefore the same duty is incumbent upon all if there be a higher power that directs what every ones duty is to do when they are come together Now the King acts in a higher Sphere by the Law of the Land and the law and practice of Parliament which prohibits Bishops from meddling with judging of Capital Causes in Parliament nor did they ever do it but in one extravagant proceeding in 28 H. 6. where nothing was regular nor Parliamentary from the beginning to the end which I look upon as altogether insignificant to alter what is so setled by Law and constant Custome therefore the Kings Writ of Summons cannot dispence with that to make that lawful which in it self is unlawful as I have sufficiently proved it And I will now go a little further in it than I did before for hitherto I have only insisted upon the Law of Parliaments as a thing setled in Parliament by the Constituons of Clarendon in Henry the Second's time and the Protestation of the Bishops enrolled in Parliament by the King Lords and Commons 11 R. 2. but now I will deliver my opinion which I submit to better Judgements that they lye still under a Restraint by the Canon Law which by the Statute 25 H. 8. c. 12. which was repealed 1 and 2 Phil. and Mar. but revived 1 Eliz. is still of force where it is not repugnant to the Laws of the Realm which we are sure this branch of it restraining Bishops from judging Capitally is not so far from it that it is confirmed and strengthened by the Law of the Land 3. The third Particular in which he saith all agree is That they have their Votes in Bills of Attainder acting in their Legislative capacity which is as much a Case of Blood as the other and perhaps as much forbidden by the Canon But I desire this worthy Person to consider that the Practice of Parliament is the Law of Parliament and is the commanding Law for regulating the Proceedings of Parliament and that hath over-ruled this Point that in the making of a Law every Free-man of the Kingdom doth give his consent either explicitly if he be a Member of either House or implicitly by his Representative for every Free-man of the Kingdome is there present or represented And it is the Fundamental Constitution of our English Freedome that no man can be bound by any Law but what himself hath consented to now a Bill of Attainder is as much a Law as any Statute Law of the Kingdom Therefore Bishops have acted in a Legislative capacity to judge and condemn Capitally as several Precedents we have of it in Henry the Eight's time but not in a judicial capacity And to say the Canon Law prohibits one as much as the other the Statute of 25 H. 8. clears that point which takes away the force of the Canon in the one not to abridge Members of Parliament from voting in the Legislative way and strengthens it in the other forbidding Bishops to vote Judicially in Cases of Blood Yet if you will have me deliver you freely my opinion in it I think it is an abuse crept in since Henry the Eight's time for before none were judged by Bill but such as had been slain in open War or Tryed Condemned and Executed by Commission and then the proceedings brought into Parliament and there approved of and the Attainder confirmed but under Henry the Eighth several persons were condemned by Bill and the Earl of Strafford lately in our memories which seems now to be authorized by the Practice of Parliament Sir Edw. Cooke tells a story which he had from Sir Thomas Gaudy one of the Judges of the Kings-bench how the King had commanded Cromwel and the Earl of Essex to attend the Justices and know of them if a man who was forth coming should be condemned by Act of Parliament without being heard who after some fencing answered if it were so it could not be afterwards called into question and Cromwel himself was not long after so served but this is by the way Multa quae fieri non debent facta valent I have been a little the longer in these particulars because it will much smooth our way in the following discourse And this worthy Gentleman must give me leave to say That he needed not have put himself to all that trouble of his first Chapter in telling us of the mighty power the Clergy had in the Primitive times in the ordering of Secular affairs which certainly was more by way of Counsel than any thing of Authority by way of Judgement and in a Judicial way And he will avow to me I doubt not that the ministery of the word was a full employment for the Apostles and so for Bishops who call themselves their Successors as well as serving of Tables and other ministerial duties was a full employment for those whom he calls the Treasurers of the Church and therefore they said it for themselves and left it as a Rule for their Successors even to Bishops and all other dispencers of the Word and Sacraments that it was not reason they should leave the Word of God and serve Tables Which it seems was a Non est Consonum by the Law of God just as by the Common Law of the Kingdom a Writ was provided declaring it to be likewise a Non est Consonum and to be Contra morem Consuetudinem Regni that Clergy-men should be employed in Secular affairs This indeed I hinted at then as I gave also some little touch at
having then made his Appeal Neither to speak my Mind freely can I see how he could be accused of Treason for Who was the Accuser The King could not because by reason of the dignity of his Person no Averment could be made against him neither could any man be tryed but by his Peers Now we hear of no Articles exhibited no Jury summoned nor no legal Proceedings in case it had been a Parliament for though Mag. Charta was not so perfect as in Henry the Third's Time yet all Historians agree 't was granted in Henry the First 's Time of the chief Points whereof Stephen Langton Arch-bishop of Canterbury brought a Copy into the Parliament in King John's Time a worthy Prelate he was though an Italian though it were the Law of the Land before and though the Council of the King might in some Misdemeanours proceed arbitrarily yet in Treason they could not as is well observed by Mr. Selden Priv. of Bar. ca. 4. pa. 10. but they were in those Cases to be tryed by their Equals Co. 2. Inst. pag. 50. tells you 't was as ancient as William the First gives you an Example of Roger Earl of Hereford so tryed in his Time But we have not yet done with Fitz-Stephens for our Author tells you that the King upon the proud Answer of Becket charges the Bishops that together with the Barons by virtue of their Allegiance they would give Judgment upon the Arch-bishop They excuse themselves The King presseth them Fitz-Steph Words are Rex responso Archiep accepto instat Episcopis praecipiens obtestans per homagium fidelitatem sibi debitam juratam ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam c. This he translates That the Bishops together with the Barons would give Judgment upon the Arch-bishop This appears to be after his Appeal when the giving of Judgment or medling farther in the Business was refused beside the undue Translation of the Words which signifie no more but the desire of the King that they would tell him their Opinion touching the Arch-bishop I wish he would give me any good Authority where dictare Regi sententiam for sibi here is the same can signifie giving Judgment upon a Criminal as he translates them I know very well that dictare judicium may be taken to deliver any Sentence leisurely Linw. lib. 3. Ne Cler. vel Mon. where it is all one with dicere or suggerere sententiam Beside no such Sense can be affixed to these Words for the King's Question refers to them all in general but certainly the King did not mean they should all pronounce Sentence but only privately tell him their Thoughts yet from hence would our Author infer that this was a Parliament and that the Bishops had Power to give Judgment in Criminal Cases when he hath proved neither because in Truth this was only an Attempt of the King 's to draw them to his Party having then Intentions to send to Rome about this matter The Words of the Bishop of Chichester which he spake to Becket after his Appeal to Rome will do him as little Service for they import no more than that the Interdict laid upon him and the rest from doing any thing against him during his Absence hindred them from being present at such Proceedings against him as the King required from them 'T is not to be doubted but the King would have pressed them to deliver their Opinions whither his Appeal were Treason or not what their Judgment would have been no man knows If it had been a Parliament then summons must have been sent out for his Appearance and Proceedings by Bill of Attainder in a Legislative way not arbitrary in Cases Capital Seld. pri Bar. cap. 4. pag. 10. as before noted He closes this Head of Discourse with a pretended Confutation of the Author of the Tractate of Peerage a Book by some snarl'd at but by none answered but let us examine what they both say The Author of the Discourse of Peerage tells you pag. 14. and backs what he saith by the Authority of Justice Doddridge Sir Edward Cook and Mr. Selden that these were only certain Recapitulations of the King's Prerogative and the Peoples Right then sought to be infringed by the Pope and Clergy That these Recapitulations were avite consuetudines is confessed and that that Canon concerning Blood is as ancient in England as the Conquest our Author acknowledgeth that Gervasius Dorobernensis reckons this Article among the Laws then established from all which the Discourser of Peerage might very well argue That which was a Custom in Henry the First 's Time taken notice and allowed in Henry the Second's Time and of the beginning whereof there is no Memorial extant nor account to be given ought reasonably to be esteemed as part of the ancient Custom which is the common Law of the Kingdom All that the grand Questionist thinks fit to reply to this is that it is little to his Purpose because this Clause in Question is not a Limitation of their Power but a Priviledge and Indulgence for their Absence That this Fancy is erroneous I have before shewed from the natural Sense of that Clause as also that long before these Constitutions they were both by their own Canon Law and Custom of the Nation prohibited from being present in Cases and Consultations of Blood and that themselves admitted not only the Liberty but the Obligation by their constant Obedience given to that Law and Custom in absenting themselves in those Cases as the Author of the Letter hath asserted and shall by me be farther cleared in my Answer to his Precedents Now I do not think that this Author believeth that these Constitutions gave them a greater Liberty than they had before but if it found them bound that Statute left them so and was as all affirmative Statutes are though not introductory of a new Law yet are they corroborative of the old and in their Oath they swear Obedience to this Article as well as to the rest to wit that they would according to their Duty be present in all Proceedings in Parliament with the rest of the Barons except in Cases of Blood in which they tell us afterwards that it was not lawful for them to be present at any hand so that upon their Allowance there was more than a Liberty for there was a Law against them Beside could this Sense be allowed it would no way serve to make good his main Hypothesis that they might be present till the definitive Sentence came to be given for if the Law were obligatory as to any part why not to every part of it Our Aurhor is as little fortunate in his attempt to evade the Authority of Roger Hoveden pag. 40. who saith That 't was agreed in the Synod at Westminster that no Clergy-man should agitare Iudicium sanguints He tels you this was part of a Canon agreed at Toledo which
Ricard Archbishop of Canterbury thought fit to have received here and I think would inferr that here was no more done then a Proposal of this to be received not that itw as so But if we will believe Gervas Dorbernensis in 22 H. 2 fo 1429. An. 1175. he will tel you they went much farther His Words are Hoc concilio ad emendationem ecclesiae Anglicanae assensu Domini Regis Primorum omnium Regni haec promulgata sunt capitula Among which one is His qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut perse membrorum truncationes faciant aut inferendas judicent Here is not only a Proposition of the Arch-bishop but an Assent and Promulgation of the same by the King and chief of the Kingdom And the true Sense of that Canon which being so confirm'd had the force of a Law is That Clergy-men should not agitare or medle in any Tryal of Blood which certainly extends to Preliminaries but are prohibited to make Amputations themselves or give their Opinion or Judgment that such Amputations ought to be made by others Their presence at such Trials was unlawfull Non licet and their Acting prohibited So at last I have done with this clause and have shewd that it is not indulgent but restrictive that it was a custom in H. 1. time sworn to at Clarendon published at Westminster 12 years after and by all this made part of the Law of the Nation have answered all his Subterfuges and Evasions have shewed the Interpretation I have given was always received I expect now so much Ingenuity in this Author that he will either yield to my Sense or give another agreeable to the Rules of Grammar and the proper Signification of the Words and not take the Liberty to explain them at his Pleasure and confound Voices Moods and Numbers Insomuch that this Statute will remain Testimonium irrefragabile still and I am sure if he observes his due bounds he must give an Interpretation equipollent to to what I have given So hard it is for the greatest Wits to maintain an ill Cause I come now to the Consideration of the Protestation made in the Parliament held in 11. R. 2. which our Author saith much cleareth the whole Business especially the preface therof for the omission of which he blames the Author of the Letter I shall give it you in English which our Author hath not thought fit to do and by that means deprived many of his Readers of means to make a true Judgment of it In the Name of God Amen For as much as by the Law and Custom of the Kingdom of England it belongs to the Arch-bishop of Canterbury for the time being as also to the rest of his Suffragans Fellow-Brethren and Fellow-Bishops with the Abbots Priors and other Prelats whatever who hold of the King by Barony as Peers of the foresaid Kingdom to be personally present in the Parliaments of the King whatsoever and there with the rest of the Peers and others that have right to be there present concerning the arduous Affairs of the Nation and concerning other things there usualy to be treated of to Consult Treat Ordain Appoint and Define and other things to do which there in time of Parliament are prepared or fitted to be done In all and singular of which We William Arch-bishop of Canterbury Primate of England and Legate Apostolical for our selves our Suffragans our Felow-Bishops and Fellow-Brethren as also for the Abbots Priors and all the foresaid Prelates do protest and every one of them doth protest who either by himself or his Proctor shall be here Present at this time publickly and expresly that we intend and every one of us will in this present Parliament and others as Peers of the fore-said Kingdom after our accustomed manner be present to Consult Treat Ordain and Define and all other things ro exercise together with the rest that have right to be present in the same The Condition State and Order of us and every one of us being still saved But for as much as in this present Parliament some matters are to be treated of in which it is not lawful for us or any of them according to the Decrees of the Holy Church and the Canons thereof to be at any hand personally present For which Reason we for our selves and for every of them do protest and every one of them here doth also protest That we intend not nor will because according to the Law we cannot nor ought not be present in this present Parliament whilst such matters are or shall be treated of but that we and every one of them will upon that occasion all together absent our selves our right of Peerage and of theirs as to our and their being present in the said Parliament and as to our and every of their exercising and doing all and singular things our and their order in all things allways preserved And we farther protest and every one of them protesteth that by reason of this our absence we do not intend neither doth any one of them intend or will that the Trials or Proceedings had or to be had in this present Parliament upon those aforesaid matters in which we cannot nor ought not as is premised be present as much as in us lyes or any of them lyes shall in times to come be any way impugned weakened or broken He tells you that this Protestation saving the legall Formalities consists of three parts First a declaration of their undoubted Right as Peers of the Realm by virtue of their Baronies to sit and Vote in all Debates in Parliament Where by the way the words are de Regni negotiis not omnibus of the affairs of the Kingdom not all of them and aliquibus may as well be understood as omnibus and this appears soon after upon their own shewing for they tell you they intend to be present in this and all other Parliaments and presently after tell you it is not lawful for them to be present in this Parliament while such matters were handled to intend to be present and then tell you that 't is not lawful to be present in this Parliament shews that their Power was limited and not universal however upon this Protestation they went out at the Begining and made no Proctor for they tell you they ought not to be personally present at any hand where such Affairs are or would be treated of which certainly was before the definitive sentence so that the Canon required their absence at Preliminaries according to the sense of all times till these new expounders came in place I will not here dispute whether this Protestation be an act of Parliament with Submission to better Judgments I think it hard that what was intended as a Protestation should by Construction be advanced to an Act no more than his present Majesties Concessions upon the desire of
Canons when 't is for our Advantage to break them I might now proceed to the Examination of his Iast Head How far the Canon Law is at this day binding But because I would not leave any thing untaken notice of he thinks fit to make use of for the strengthening his Cause I shall speak something to what he farther urgeth He tells you out of Knighton That this Parliament was called Parliamentum sine Misericordiâ and that many Circumstances concurred which might make the Lords willing to admit of their Protestation because their business might proceed better against the King's Ministers He need not have urged Inducements to perswade the Lords to admit of their Protestation except he had first shewed they had Power to have refused it But by this Inducement he insinuates that the Bishops would probably have obstructed Justice against those wicked Ministers about the King What the Accusation was for which some of them were executed I shall let you seek in the Historians of those times being unwilling to rake into that Puddle any deeper I shall therefore leave this Parliament and the mysterious Canons as our Author well calls them and come to the Anti-Parliament to this held in 21 R. 2. where as he saith the King had a Mind to undoe what was done in the Parliament in 11 R. 2. which Intention this Author saith he had kept in his Mind ten Years by being willing to let the Bishops be absent in 11. that he might have that pretence to Question in this Anti-Parliament the things then done An undecent Charge he lays upon the King if it be well considered The Declaration by help of the Bishops that the King's Pardon granted in Parliament in 11. was revocable by the King was the Labour of his Ministers in 〈◊〉 which those Ministers prevailed in 〈◊〉 Measure but their Actions with 〈◊〉 â—…cceeding Murther of the D. of Gloâ—… the King's Uncle bred such a Jealousie and Distrust between the King and his People that I may call it the first Stone which left not rolling till it ended in the Ruine of that poor Prince who continued not King much more than a Year after and was soon after the Deprivation of his Crown deprived of his Life also What Art was used to make that Parliament subservient to their ends I need not tell you One of the first Attempts was what I touched before to make Pardons granted by the King in Parliament revocable at his Pleasure in this the Clergy were very instrumental After this the Commons come to do their Parts and they represent that divers Judgments had been undone heretofore for that the Clergy were not there present and therefore pray they might appoint some common Proctor with sufficient Authority to that Purpose From hence he infers two things First That the Commons thought their Presence necessary because Judgments had been undone for want of it Therefore their Concurrence in Judgment was thought necessary to make a Judgment valid Secondly That they should therefore make a common Proctor This is strange Logick Their Presence was thought necessary and Judgments undone for want of it therefore they ought to be present I think ought to have been the Consequent but the Commons pray that in that respect they should make a Proctor I should think now the true Inference ought to have been The Bishops and Clergy ought not to be personally present in Cases of Blood yet because it is fit they should be represented at least in some Cases let them nominate a common Proctor to be in their stead where their Concurrence is necessary This is Sense the other is contradictory 'T is evident by this Petition of the Commons that matter of Blood was to be treated of for there needed no Proctor for any other use since themselves might have been present And I think it very clear by the Year-book in 10 E. 4. that when Issue was once joyned 't was their Duty to absent themselves For that Book is that the Peer questioned may plead not guilty and then the Bishops to depart so that it is plain they were not to vote after Issue joyned in matters of Blood So Hakewell in his Modus Tenend pag. 84. before cited saith That to our days when Question is had of the Attainder of any Peer the Bishops are to depart Now I take the Law to be all one what â—…ue is joyned in a Capital Accusation so as there be any upon which the Court may proceed to Famination of the Cause and to Judgment accordingly As to our purpose in the case of the 〈◊〉 of Danby he pleads the King's Pardon the King's Counsel or the Commons demur The matter then in Issue upon the Demurrer is whether the Pardon is good in Law upon which the Bishops according to 10 E. 4. are to go out because if the Pardon be found invalid then must Sentence of Death be pronounced against the Criminal for I take the Law to be That the pleading a Pardon in Bar upon an Endictment or Impeachment is a Confession that all the matters contain'd in the Endictment or Impeachment are true and he shall never be admitted to plead Not Guilty afterward But this by the way Our Question is about the Commons Petition that they would make a Proctor which being in matter of Blood the Author of the Letter saith was the only time whether this was Error temporis as one saith the Error of that time or an inconsiderate rash Desire of the Commons as another is not necessary to enquire for it doth not appear that any Capital Judgments had been reversed by reason of their Absence so that their desire fails in the ground of it if they meant of Capital ones for the first Judgment against the Spencers was affirmed in 1 Ed. 3. and the Reversal made 15 Ed. 2. was made null so that the Commons it seems were ignorant in that and might be unadvised in the rest as they sometime have been Beside if he consult Sir Edward Coke in his 2 Instit. cap. de Asportatis religiosor pag. 586. he doth well excuse the Commons in shewing that the Bishops were present at the Charge against the Spencers in 1 Ed. 2. so that the Commons might not know how far the Bishops were conusant of the thing and looking only on the out-side were ignorant of the Act in 1 E. 3. for the Discourser saith there were no more No replyes the Grand Questionist not in his Study but the Commons might know of more for we have not all the Rolls What then This at best is but a Surmise and the two Judgments against the two Spencers were enough to make their Allegation true that divers Judgments had been reversed for that cause though it be not to excuse their Ignorance in not knowing that the first Judgment against them was revived by the Statute of 1 Ed. 3. And it seems strange to me that he that had so much
Proctor at the beginning of the Tryal as is manifest and agreed by all therefore the Crime charged upon the Clergy could not but be before any Proceedings against any of the Criminals except that preliminary Vote which made them guilty of Blood in that Chronicler's Sense In Conclusion there was no Act to revoke these Pardons but the King it seems caused Execution to be done upon his own Authority and those general Votes in which the Clergy were present so that after all this Attempt the Authority of this MSS is against him But after all this we have one help left saith the Author of the Letter for if this Action in this Parliament would do him any Service the whole Parliament was repealed in I Henry the Fourth and so no Authority to be laid upon it I but replyes the Grand Questionist the Author of the Letter admits that the three Henries Fourth Fifth and Sixth were Usurpers and therefore the Repeal of that Parliament void I acknowledge the Author of the Letter saith so but he is so to be understood as the Law is now taken not as it was then for we see Henry the Fourh in Parliament claimed the Crown as his Right as being Heir to Iohn of Gaunt fourth Son to Edward the Third whereas the Title of Mortimer who was by another Parliament declared next Heir arose by his Marriage with Philippa Daughter and Heir to Lionel Duke of Clarence who was the third Son to Edward the Third but it was never before determined that the Daughter of a third Brother should be preferred in Succession to the Crown to the Son of a Fourth We see Maud the Empress Daughter to Henry the First could not be received Queen though she attempted and sought for it neither ever had we a Queen since the Conquest till that time Nor can I divine how long it might have remained a Question had not that Controversie been determined by the happy Union of both Titles in Henry the Seventh who married the Daughter and Heir of the house of York The next Question will be how far Laws made by an Usurper generally received and accepted by the People upon the resignation of the immediate precedent Possessor shall be esteemed valid I fear if we make such Laws void we must find some new way to make many of ours good till Henry the Second Was not Robert eldest Son to William the First alive till toward the latter end of the Reign of Henry the First who about the eighth Year after he was King deprived him of his Eyes after which he lived a Prisoner twenty six Years William Rufus had no better Title than the Acceptance of the People and his Composition with his Brother Robert who resigned his Title for 3000 Marks per an Henry the First succeeds by Title no better till Robert's miserable Death which happened in the thirty fifth year of his Reign and about a year before his death After him Stephen steps into the Throne help'd by two powerful Friends the Bishop of Winchester the Popes Legate his own Brother and the Bishop of Salisbury his great Friend and this in the Life of Maud Daughter to Henry the First and his own Brother Theobald whose Title though bad was better than Stephen's they being both Grand-children to William the first by Adela his Daughter marryed to the Earl of Blois But for this great favour and their breach of Oath to Maud he promised great Immunities to the Church and amongst other that Clergy-men should not be bound to answer to secular Courts But by our Author's Logick this Concession was void and the Clergy had no reason to complain because the old Law was revived at Clarendon At last to sodder all a Composition was made that Henry Maud's Son should have the Crown after Stephen's death which was performed by her Consent Maud being then alive who having strugled for the Crown as much as she could was at last contented with this Composition which was the only legal Title King Stephen had and no more voluntary in Maud than was that of Richard the Second But at length Maud dyes and Henry the Second and his Son Richard the first enjoyed the Crown in their just Rights After their Death Iohn comes upon the Stage in the Life of Arthur his elder Brother's Son so that here we have another Usurper after whose death and the death of Arthur Henry the Third had a good Title whose Descendents enjoy it to our Time for the Quarrels between York and Lancaster were not about the Line but the Persons insomuch that till Henry the Third the best Title to the Crown was the Acceptance of the People and particular Compositions with those who had the greater Right Come we nearer home to the time of Henry the Seventh who after the Death of his Mother and his Marriage with the Daughter and Heir of Edward the Fourth was rightful King His Eldest Daughter was marryed into Scotland from whom our present King enjoys his Crowns upon an unquestionable Title We will now come to his Son Henry the Eighth he had two Daughters Mary and Elizabeth the first by Katharine his elder Brother Arthur his Relict the second by Anne of Bullein born in the Life of his first repudiated Wife Queen Katharine Mary was by Act of Parliament declared a Bastard as born within unlawful Espousals Elizabeth after the Disgrace of her Mother was served in the same kind yet we see both of them successively enjoyed the Crown by virtue of another Act which entailed it upon them with the approbation of the people whereas otherwise the true Right would have been in Mary Queen of Scots our present Sovereigns great Grand-mother I might pursue this Theme through France in the case of Hugh Capet through Spain in the family of the D. of Medina Celi and at present in Portugal but I will not go out of our own Kingdoms and have said enough to make it manifest that Laws may be made or repealed by such Kings as are in Possession by Composition or Resignation with the acceptance of the People else our unwary Author hath laid a foundation to overthrow or weaken not only most of our Laws but most of the Laws of Europe Over and above all this if the Laws of Henry the fourth fifth and sixth were not good why did not the Nobility made in that time get new Charters of Creation in Edward the fourth's time Nay what became of the whole Hierarchy Many of the Prelates and inferiour Clergy must of necessity be consecrated by those that were no Bishops and consequently their Consecration and Orders by them conferred were void and all our subsequent Clergy who derive their Authority from those who had no legal Right extinguished a thing in my Judgment worth consideration to such as would avoid Laws made by actual Kings though their just Title might be disputed His mentioning Oliver rather deserves pity for his Inadvertence than any other Answer
for he cannot but know out late King chose rather to loose his Life than resign his Power that he never had quiet Possession but a Prince always strugling against him nor had he the acceptance of the People or any thing but force to buoy him up which after his Death fail'd in his next Descendent By what I have said it may appear to any equal Judge that the Laws made 1 Henry 4. were good notwithstanding his pretended Usurpation And as to the thing it self that the Bishops Absence in cases of Blood doth not make a Judgment given void appears plainly by the Case of the Earl of Salisbury in 2 H. 5. who petitions that a Judgment given against the Father might be reversed and assigns for Error that the Bishops who were Peers of the Realm were not present and upon full hearing and debate it was adjudged no Error Now I appeal to this Author whither he can think that my Lord and his Counsel were so stupid as not to urge what they could think of for the advantage of the Earl and the Clergy for whatsoever other faults might be laid to the charge of his Parent the cause appears to be turn'd upon that hinge by all this we may well conclude that the Lords in that Parliament did not hold the Bishops such Peers as ought to be allowed Judges concerning the Life and Death of Noble-men This Judgment our Author hath not thought fit to take notice of which might be equivalent to error temporis for it was either ignorantia or neglectus rei But he tells you Edward the fourth repealed all again in which he is mistaken for Edward the fourth repealed nothing but what concerned the Title between York and Lancaster with some Charters to others I come now to his third head or point Whether supposing that the Bishops absented as he contends only upon the account of the Canon-Law in the times of Popery whether those Laws do continue in force now since the Reformation he thinks they do not In this I shall be very short and against his Reasons which are rather Surmises than other I shall return direct Authorities of Judges and Lawyers in point First he saith the Canon-Law was grounded upon a superstitious fancy that to be present in Cases of Blood brought upon them Irregularity and hath there a large Digression upon the Unreasonableness of the Canon-Law in many particulars I shall easily yield that many of the Rules brought upon the Church by the Papacy are full of Hypocrisie and self-ends but do not think that our Bishops did first forbear from bloody Tryals about Lanfranks time as if this Canon had been unknown in England till then almost 700 years after the first Council of Toledo for Sir Henry Spelman reckons that Canon to be Anno Christi 400. and William the first came in Anno 1066. And in this first Council this Canon is cited but it is more reasonably referred to the eleventh Council of Toledo and the sixth Canon which expresly forbids their medling in Blood 't will yet be about 500 years before Williams Time It is therefore more probable that their forbearance in those Cases proceeded not from any thing brought in by Laufrank but was received here long before from their obedience to the Apostolick Canons which did not only forbid their medling in Blood but in all secular Employments and were carefully observed till Constantine's time who flourished in the year of Christ 323. 'T is likely enough that the Liberty then taken by the Clergy was restrained in Spain by that Council And if our Author please to observe it till they came to be corrupted by Covetousness and Ambition their chiefest Employment was to make Peace between their Neighbours as Chancellors and Arbitrators rather than as Lawyers and Judges In earnest whoever shall consider the intricacy of the Laws of England as they are called the Common-Law will rather believe when they sate as Chief Justices if ever they did so their Seats were among others better versed in the Common Laws than themselves and they sate rather to direct what was equal according to the rules of Mercy than according to the rigorous balance of Justice This certainly was their Office when they sate with the Earl in the County-Court Mr. Lambert in his Laws of Edgar cap. 5. hath these words Celeberrimus autem ex omni satrapiâ conventus bis quotannis agitor cui quidem illius diocesis Episcopus Aldermannus intersunto quorum alter jura divina alter jura humana populum edoceto Here you see the Bishops Office was only to teach the People the Divine Law as the Earl or Alderman did those of the Land His next Suggestion is rather a Conjecture than a Proof to wit that this Canon was never received contrary to himself before or that if it were received it was in diminution of the King's Prerogative and so repealed by the Statute of 25 H. 8. cap. 19. He might as well have said That all the Ecclesiastical Laws as of Tithes Marriages probate of Wills and other Faculties now exercised in the Ecclesiastical Courts are against the King's Prerogative and therefore void What Success an Attempt of that Nature lately had he may easily call to mind But let me bring into his Remembrance what the Statute made in the same Parliament 25 H. 8. cap. 21. hath in the Preamble of it Whereas his Majesties Realm recognizeth no Superiour under God but only his Majesty hath been and is free from Subjection to any mans Laws but only such as have been devised made and ordained within this Realm for the Weal of the same or to such others as by the Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used among them and have bound themselves by long Custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as the ancient and accustomed Laws of the same by the said Sufference Consents and Customs and none otherwise We see here the Sense of the whole Parliament That such Laws as had been used and accustomed should be look'd upon as the Laws of the Kingdom and not of any foreign Prince or Prelate Now let him tell me what Laws were common to us with any foreign Prelate except the Ecclesiastical and Canon-Law which having been here used are acknowledged a part of the Laws of the Land by Usage and Sufferance of the People So that we have now a whole Parliament that they did not look upon these as against the Kings Prerogative and so null as this Author would have it but fully confirmed as part of the English Law Agreeable with this is my Lord Coke in Cawdrey's Case lib. 5. 32. b. It is says he Resolved and enacted by authority of Parliament that all Canons Constitutions Ordinances and Synodals
when they might have been others that they were present when by his own Rules they should have been excluded either therefore the general words where they are not mentioned do not enforce their Absence or that they oughtto have been excluded at some other Trials where the Author of the Letter admits they were or might have been present The chief Case he instanceth in is that of Michael de la Pool Chancellour of England who was accused of many Misdemeanours by the House of Commons and as I think he would infer such as Thorp Chief Justice was found guilty of being Capital where the Author of the Letter saith the Bishops were not present yet allows them to have been present in the Case of this Chancellour a parallel Case as he saith with that of Thorp either therefore saith our Author they might have been present in the Case of Thorp or they should have been absent in Trial of Pool This is his Argument as near as I can gather out of his Words put together something obscurely I need give no other Answer to this than to lay before you the words of the Record This Accusation was exhibited by the Commons in 10 R. 2. against Michael de la Pool Lord Chancellour in full Parliament before the King Bishops and Lords and six Articles were objected by them against him The first was That he purchased Lands of the King of great value whilst he was Chancellour the other five as the Record saith were only Quarrels and of little concern To the first and most considerable the Chancellour put in a fair Answer the Commons reply and urge things to the utmost and amongst other things say That whereas by the Popes Provisions a Person was recommended to the Priory of St. Anthonies he the said Chancellour would not suffer him to be admitted till the Grantee had contracted to pay to the Chancellor and his Son 100 l. yearly and then parallel this with Thorp's Case and would have had the Chancellor in the same fault with Thorp for Bribery as a Judg and consequently incur the same Judgment The Chancellor replies and shews great difference between the Cases Upon the whole matter Judgment was given against him pursuant to the Accusation for Misdemeanours only in which the Bishops were and might be present and the parallelling it with Thorp's Case was only in the Management of the Cause by the Commons and no part of the Accusation Neither is it reasonable to believe that which our Author asserts in the same Page that the Prelates were free Agents and might withdraw at some times and be present at others as they saw cause For beside that this is contrary to the express Law of Clarendon which expresly declares that 't is their duty to be present in all Proceedings in Curia Regis which in that place must be understood of the Parliament because they were to be present with the other Lords tho I know that Curia Regis is sometimes taken in a more laxe Sense for all the Courts in Westminster are the King's Courts and unto which they were to give Obedience and Attendance in Cases not prohibited I say over and above this Act at Clarendon it seems to me very unreasonable to suppose that such a Body of Men had liberty to give their Attendance when they pleased without leave of the House or cause shewed why 't was fit they should be absent or that the Author of the Letter meant more when he saith they might have been present than that they were not prohibited by the Law of Clarendon which only had Relation to Matters of Blood But these Men had other Canons to go by when they thought fit as well as those of Toledo and 't is probable enough that the rest of the Noble-Men finding them most constant Factors for the Pope were willing enough to let them be absent upon any colourable Pretence when they desired it Is not one clear Precedent against them in point of greater weight than many dubious and equivocal ones which cannot without great Art be wire-drawn to speak to their advantage Let him consult the Discourse of Peerage pag. 17. The Case of the Earl of Northumberland 7 Hen. 4. Rot. processus cor Dom. Rege in Parl. in 5 Hen. 4. This Noble-Man came into Parliament and confessed before the King and Lords that he had done against his Allegiance in gathering Power and giving Liveries this Fact by the Lords was adjudged no Treason for which he gives Thanks to the Lords his Judges and a day after the Commons do the like where the Prelates are named as our Author affirms and to which I shall speak by and by But in 7 Hen. 4 the same Earl was in actual Rebellion in the North and his Forces dispersed by the Earl of Westmarland but he and the Lord Bardolf fled into Scotland the rest were most of them taken Prisoners This Case came into Parliament where the King commands the Lords Temporal Peers of the Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and Lord Bardolf Nothing can be plainer than that the King look'd upon the Lords Temporal as those Peers who were proper to give Judgment touching their Fellow Peers who had fled from Trial in a case of Blood The Record goes on the said Lords advised thereupon and gave Counsel to the King Then the said Lords Peers of the Realm by assent of the King order summoning the said Lords to appear at a day given or to stand convicted by Award of the Peers in Parliament The King farther demanded the Opinion of the Lords Temporal touching the Arch-bishop of York who was in the same Treason The Lords Temporal by the Assent of the King and by their Authority declared and awarded the said Earl and Lord to stand convict of Treason for not appearing upon Summons 'T is very clear that this whole Business was transacted by the Lords Temporal without the Bishops and with the Concurrence of the King 'T is not to be believed that the Bishops would have sate quiet had they thought themselves wronged in these Proceedings See the Discourse of Peerage pag. 17 18. I think it hardly possible to find a more clear Record in the Point than this is First here were two Noble Lords defeated in actual Rebellion and fled from Justice into Scotland The King upon this would not so much as consult with his Prelates knowing them by Law no proper Counsellours against Peers in matters of Blood applies himself to his Lords Temporal they order Proclamations by order of the King enjoyning the said Lords to appear at a day certain or to stand convict they not appearing are by Award of the Lords Temporal convicted of Treason and a Year after one is slain the other mortally wounded at Bramham-moor in York-shire Can any thing be more agreable to the Practice at this day against Men that fly from Justice and
must now meet under such Qualifications and no other as were by him allowed them which by all Men is agreed to be as Tenants to the King in Capite for their Possessions which they held in the Nature and by the Service of Baronies This being so I see not what use he can make of the Distinction made in Parliament between the several Estates of the Clergy and Laity The Question is not Whether the Clergy and Laity are distinct Estates which no Man ever denied but whether the Bishops distinct from the other Clergy in Convocation be an entire third Estate in the Lord's House that they are so no Man hath yet proved His Authority out of Eadmerus speaking of what was done in Parliament in 3 Hen. 1. saith it was done Utriusque ordinis concordi Curâ sollicitudine by the unanimous care and trouble of both Orders Ranks or Degrees Why must Ordo signify an Estate rather than a Degree or Rank Now I hope Men of different Degrees may sit together without being different Estates Dukes Earls Marquesses Viscounts Barons now sit together yet may make but one Estate But let Ordo signify that Estate as he would have it and as he thinks it doth why must it signify an intire Estate or what doth it more import than that it was done by the Joint-Consent of the Lords and Commons who might then sit together and were not at any time left out as is sufficiently proved by Mr. Petyt Matth. Paris his Clerus and Populus and the other Cases by him there mentioned comprehended the whole Body of the Clergy and Laity met together in Parliament including as well the Inferiour Clergy as the Superiour sitting in their due Ranks All the rest of his Precedents made use of by him seem rather to enforce that the King is not a third Estate than that the Bishops are more than a part of a third Estate among the Lords But this Point whether the King be one Estate or not in Parliament and how an Head can be considered as no part of the Body I leave to others to dispute but must rest in this undeniable Conclusion that there can be no legal co-ordinate Power however the case stands for as in the Body natural nothing can be done without the concurrence of the Head So in the Body Politick nothing can justly be done without the concurrence of the King in matters of publick concern in Parliament except their Proceedings deviate from the ordinary Rules of the known Laws of England I have put off the Examination of the first part of his fourth Chapter that I might conclude this Discourse with an Answer to the Matters he there alledgeth He finds himself pressed with that strong Argument drawn as well from Magna Charta as from divers Precedents that the Bishops were not Peers to Noble-Men but were themselves tried by a common Jury in Matters Capital and therefore were not of Condition to try Noble-Men who had in themselves Inheritable Noble Blood To this Argument he opposes two things First That the matter of Fact cannot be made out that a Bishop hath always been tried by Commoners Secondly That if it could it doth not overthrow their Peerage in Parliament This second Assertion I will easily grant if by Peerage in Parliament be no more meant than a Community of Appellation by reason of their sitting amongst the Lords and their Precedence in place with some other Priviledges as to Amerciaments days of Grace and the like But certainly if it can be cleared that they have of right been tried by common Juries and that as well before as after the time of Henry the 8th Nay that they have not look'd upon the Lords in Parliament as their Peers and proper Judges I may then rationally conclude that they are not Peers in Parliament to that end to try or be tried by Noble-Men there It is plain by all our Law-books that out of Parliament no such Priviledg belongs to them For first out of Parliament over and above the express Authority of Stanford a Judg in Queen Mary's time Sir Edward Coke a great Judg in our time Mr. Selden a great Lawyer and Antiquary Mr. Cambden an Herauld great Scholar and Historian all agree that Bishops shall not be tried by Noble-Men and that manner of Triall hath never been put in use as to them Now if this be confessed to be the Law out of Parliament let the Author give me one Example that a Man of right ought for a like Offence to be tried by one sort of Jury out of Parliament and another in it The Case of Appeals under which Covert he endeavours to hide himself I shall discuss anon The Priviledg they claimed as Clerks was common to all other Clerks as well as to them but there are many Cases of Clerks tried in Secular Courts and the Trial allowed to be good to which purpose see Cook 's second Instit. 638 but never any Exception of theirs allowed of as if those Trials were illegal As to the Case of Bishops and their Trials by common Juries Mr. Selden is very clear and gives many Examples both before and after Hen. 8th's time which are not so to be slighted as this Author seems to do That of John de Isle the Bishop of Ely's Brother is full to the point where the Bishop was arraigned and upon Question how he would be tried stood upon his Priviledg as Clerk that he was a Member of the Pope's and therefore ought to be brought to his Answer before his Ordinary the Arch-bishop of Canterbury who was there ready to demand him affirming that he ought not to answer before a Lay-Judg this Plea was rejected and a day given to the Bishop and a Jury impannelled sworn and tried which shews he had his Challenge The Jury bring in their Verdict and find that the Bishop was not guilty of the Fellony laid to the Charge of John de Isle his Brother and his Companions but they find that after the Felony committed the said Bishop knowing that these Persons had committed Felony did receive and harbour them upon which a Writ was directed to enquire what Goods and Chattels he had and his Person upon request of the Arch-bishop delivered him to be kept as it behoved him to do Now let any Man judg whether here were not in every respect a legal proceeding The matter of Fact tried by the Verdict of twelve Men Inquisition made concerning his Goods Lands and Chattels himself the Crime being only receiving of Felons delivered to the Arch-bishop either to make his Purgation or to be kept in due manner Was here now any Willingness in the Court to break the Law as our Author saith pag. 146. or not rather a perfect Observation of it Is not this perfectly agreeable to what Dr. Ridley in his view of the Civil and Ecclesiastical Laws saith pag. 86. If a Clerk be first arrested by a Spiritual Judg and found
one nay some might have been obliged to attend upon one Cause of Summons exprest which were not upon another for if the King had an Occasion of transporting an Army beyond Sea in that case only they that held by the Service of going into forreign Parts together with such as were tied to general Service were obliged to attend and liable to pay Escuage upon their default to be taxed by them who were present according to the Obligation of their Tenure If the Tenure were to go into Scotland or Wales they could not by reason of their Tenure be compelled to go else-where whereas the Attendance at the King's Court ex more was what I take it lay upon every Tenant in Chief holding by Knights Service Ratione Tenurae and was not superseded by King Iohn's Charter but still they that were not present were concluded as to all Acts of the King's Court Baron either in Criminal or Civil Causes as much as in the Court-Baron of an Inferiour Lord the Suitors present may proceed to all Judgments within the Cognizance of their respective Courts where through the common neglect of the Suitors the Steward for the most part gives Judgment by himself Mr. W. who was the first Author of a Lawyer that ran Counter to me makes a distinction between a Parliament and a Curia Regis which I conceive to be without any difference in Relation to the several Powers of the Curia and the Great Council of the Nation except that 't was less in that which is now called the Parliament than 't was in the Curia for he says that to the Curia the Tenants were obliged to come Ratione Tenurae but to the other they could not come but ex Gratia Regis Upon which 't is further observable 1st That he yields that the Commons others beside the Tenants in Chief had as much right as the Tenants in Chief to come to the Parliament before the 49th Hen. 3. for he grants that they too came sometimes before that time ex Gratia 2dly Whereas he supposes that King Iohn's Charter of Resignation was void not being in Magno Concilio though 't was in Communi Concilio Faronum he assignes no reason in the World for it's being void for admit that to the Commune Concilium Faronum or Curia the Tenants in Capite came Ratione Tenurae and to the General Council of the Kingdom ex Gratia which he subjoyns as the Ground for avoiding that ignominious Resignation which he agrees with me contrary to Dr. Brady to have been made in the Curia Regis and not in the General Council of the Kingdom does it follow that because they had no Right to come to the General Council though they had to the Curia that therefore a Resignation in the Curia was not good nay does it not follow that because they had no Right to come to the General Council therefore the King might exercise his absolute Power in such a Counsel as he should think fit to call and might oblige the Nation in any Act of his done by such Advice or Consent Nay rather if there were a Counsel where they might ex 〈◊〉 be present which Mr. W. makes the same with Ratione Tenurae does it not follow that there would be less Obligation upon them from any Act done in the General Council of the Kingdom where they had no Right to be present and so no consent of theirs could be urged to inforce the Obligation than from the Determinations of that Counsel where they were necessary Members But Mr. W. his Grounds for his Belief that the Commons had no Right to come to the General Council of the Kingdom before the 49th of Hen. 3. are two 1st That in the 45th of Hen. 3. only three were ordered to be Representatives for every County the Year I take to have been mistaken by the Printer for the Settlement and Reformation of the Government which he mentions was in the 48th and that he means that Settlement and not one before in the 42d is evident by his citing Si videatur Communitati Praelatorum â—…ronum which is in the Record of the 48th and not in any of the 42d that I have seen But 't is evident by the Record that the three he mentions were assigned for the Electors of a standing Counsel to the King which was to act out of Parliament as well as in but with no Authority in Legislation besides admit that they were intrusted with all the Power of the Counties I cannot find any force in the Argument that because a Representative was then agreed on therefore they had no Right to come before that time in their own Persons But indeed in the 42d of that King there was a Representive of the Commons who were in those times accounted only the Citizens and Burgesses this was pur espargner les Costs des Communs to spare the Charges of the Commous which I use not to shew that all such came any otherwise than two for a place But that the settling a Representative is an Argument that before that time they came in greater Numbers 2dly His second Argument is the Authority of Pollidore Virgil which proves wholly against him for it says that the Populus rarely were consulted with before the time of Hen. I. Adeo ut ab Henrico primo id Institutum Iure Manasse diâ—…i possit Even he allows the Right of the Commons to be a constituent part of Parliament to have been an Institution or a settled Right long before the 49th of Hen. 3. no less than one hundred forty nine Years And in the Case of Godsoll and others against Sir Christopher Heydon my Lord Cook affirmed that he had seen a Record in the time of Hen. I. of the Commons Degrees and Seats in Parliament his words are these En Ancient temps tout le Parliament sea insimul le Separation fuit Par le desire del Commons mes â—…ent obstant ils font forsque un mese ieo aie veiw un Record 30 H. 1. de lour Degrees Seats That the Commons were Members of the General Councils of the Kingdom in the time of Hen. I I think is very plain when we find even at Synods Assemblies for Ecclesiastical Affairs Nobilitas Populusque minor and Laici tam divices quam mediocres But that they then had any Order and certain Seats there I cannot readily believe And indeed we find that in the Reign of King Stephen who immediately succeed Hen. I. 't is spoke of as customary for the Uulgus or Commons which were Infinita Multituto Plebis to come as Members of the Great Council and to intermix themselves with Men of the greatest Quality as 't is usual in Crouds Uulgo etiam confusè permixtum ut solct se ingerente 3dly Mr. W. his third Argument is that where a Record makes mention of Arch-bishops Bishops Abbots Priors
Commune Concilium Regui nostri nisi ad Corpus nostrum redimendum et ad Primogenitúm Filium nostrum Militem faciendum et ad primogenitam Filiam nostram semel maritandam et ad hoc non fiet nisi rationabilè auxilium The Charter has further which is omitmited by him Simili modo fiat de Civitate Londinensi Civitas Londinensis habeat omnes antiquas Libertates Liberas Consuetudines suas tam per terras quà m per aquas praeterea volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque Portubus omnes Portus habeant omnes Libertates Liberas Consuetudines suas Here Mr. Hunt to be sure would have it divided since he begins the other part with Et ad habendum commune Concilium Regni Wherefore 't is manifest that even according to his rendring of this part of the Charter the Modus of Parliament is not declared the right of the Burroughs amongst other places to come to the Great Council being only implied under the rest of their Liberties and free Customs whereas he himself confesses That we have no History of the Commencement of their Right and that it was an ancient Establishment in the Government before Magna Charta As I had formerly urg'd in Iani Anglorum facies nova and in Ius Anglorum ab antiquo Et ad habendum commune Concilium de Scutagiis assidendis aliter quam in tribus casibus praedictis either ought to be read along with what relates to the Cities Burroughs Ports and Parishes or Townships and so their Right of coming to the Commen Council of the Kingdom is provided for in an especial manner as well as their other Liberties and Free Customs Or else the right of the Inhabitants of these places the integral parts of the Kingdom to send or come to the Common or General Council of the Kingdom must have been included in the general Provision for their Liberties and Free Customs and no otherwise taken care of And then H. the 3ds Charter being in nullo dissimilis or the same in Substance with this of King Iohn and having no express Provision for the manner of summoning the General Council of the Kingdom and only leaving Escuage to be raised as 't was in the time of H. the 2d it shews that Escuage was to be raised in such a Council so summoned as is provided for in King Iohn's Charter with which H. the 3ds agreed in Substance wherefore to say Escuage should be raised as 't was in the time of H. the 2d was as much as to say that for the assessing Escuage the Arch-Bishops Bishops Abbots Earls and all the Great Barons of the Kingdom holding in Chief were to be summoned by special Writs the other Tenants in Chief by general ones and for this they should have forty days notice But let us see what is made of a contrary Exposition By the first commune Concilium Mr. Hunt conceives the Curia Regis was meant and that out of that Court the King would not impose Escuage or Aid upon his Tenants except it were in those three Cases of Aid mentioned But then Et ad habendum commune Concilium Regni aliter quam in tribus casibus praedictis de scutagiis assidendis he conceives to be meant of Parliament and that all matters other than those three mentioned Aids and Escuage which were due by Tenure should be done by that commune Concilium that is his Parliament Truly I know not how he will free himself from a contradiction upon this when he makes Et ad habendum commune Concilium Regni aliter quam in tribus casibus praedictis Et de Scutagiis assidendis to be meant of a Parliament though before he had exempted Escuage from the Court of Parliament and assigned it to the Curia And this shews clearly that no other Council but the Curia Regis is there mentioned there being no Provision except what was contained under Liberties and Free Customs for any other matters besides Escuage and Aids and these such as he confesses to have been due from the King's Tenants for where 't is Nullum Scutagium vel auxilium ponam in Regno nostro nisi per commune Concilium Regni nostri By this commune Concilium he owns the Curia Regis was meant For the three Aids excepted in the Charter to be sure there was no need of a Council of Tenants they being Incidents and of course raised and returned into the Exchequer and the King expresly reserved unto himself a Power of raising them without convening any Council at all so that in short all the Common Council that can be here found by him is only a Curia Regis for the assessing of Escuage so that where 't is Nullum Scutagium vel auxilium auxilium is confined to such as lay upon the Tenants who were to be summoned to the Curia who were Tenants by Knights Service only and therefore he rightly observes if he takes it of such as held not per servitium Militare that the Burgesses were not Suitors to the Curia Regis and where 't is Commune Concilium de Auxiliis de Scutagiis if they ought to be joined together the Word Scutagium brought in with an and is exegetical and explanatory of the general Word Aid and confines it to Aid upon Tenants by Knights Service and it is certain that the matters excepted were incident to Knights Service as well as Socage Tenure According to which as London held in common Socage â—…ili modo fiat de Civitate London must be meant that as Escuage was raised in the Common Council of the Tenants by Knights Service in like manner Tallage in London should be settled in its Common Council for according to Mr. Hunt the City of London being a Burrough was no part of the Curia Regis which he says is the Commune Concilium just before mentioned wherefore simili modo fiat can have no other meaning being 't is manifest that their Aid was to be raised in a Common Council After all it must be agreed that this Charter is not carefully and clearly penn'd however here is enough to shew that it cannot possibly serve the contrary side Besides the uncontroulable Evidence of what was the modus of General Councils both before and after the making of this Charter till the 49th of H. the 3d. But Mr. Hunt might well be out in his Interpretation of King John's Provision about the Tenants in Capite since II. He mistakes the Nature of Tenure in Capite which I shall evince by these three particulars 1. In that he supposes that none of the Tenants in Chief were Majores Barones but Bishops and Earls 2. That none were Barones Regni but Tenants in Chief and none Barones Regis but such as were called of Grace to Parliament 3. In imagining that if a Tenant in Caâ—…te granted out to never so
immediately But I mnst needs say this Errour of Mr. Hunt's is the most excusable of any I meet with in his Book because the great Lord Cook leads him the way For he tells us and refers to the Mirror for Proof That by the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realin had all the Lands of England in demesne and les Grandes Mannors Royalties they reserved to themselves and of the Remnant they for the Defence of the Realm enfeoft the Barons of the Realm with such Jurisdiction as the Court Baron now hath and instituted the Free-holders to be Judges of the Court Baron Then he tells us in his second Institutes That till the Statute of 24. E. 3. whereby 't is provided that Alienations of Lands made by Tenants which held of H. 3. or of other Kings before him to hold of themselves should stand in force saving to the King his Prerogative of the time of his Great Grand-Father his Father and his own It was doubted whether the King's Tenant might have given part of the Tenancy to hold of himself Which is in Effect the same with Mr. Hunt's Notion of all the Tenants holding of the King in Chief 1. But 't is obvious that by what the Lord Cook said of the Laws of King Alfred and others whereby he supposes Tenures were erected not only of the King but of his Grantees who had their Court Barons His Opinion was that the King's Tenant might have granted out to hold of himself for otherwise how could he have had his Court of Tenants 2. Whereas he supposes that the Laws of King Alfred shew that the Kings had all the Lands in Demesne there is but one Law of King Alfred mentioned in the Mirror and that is for the great Councils assembling at London twice a year or oftner if need be Not any thing of Tenures 3. But amongst the Establishments made per cel estate per plusors Royes by several Kings in Parliament the Mirror says Assentus fuist que les choses suivant serrent appendant aux Roys al droit de la corone Soveraigne jurisdiction la Soveraign Signory c. come Franchises treasnre trove c. Then it goes on Ceux droits retiendrent les primers Roys delremnant de la terre enfefferont les Countees Barons c. Here 't is plain that no more than the Rights aforesaid amongst which Chief Cities Chief Ports and Great Mannors were named not all the Lands were retained by the first Kings And tho they are said to have Infeoff'd others of the rest of the Land to hold of them yet that does not necessarily imply that they had all in them before Nay the Mirror shews the contrary for it says That after God pleased to abate the British Nobility who used Force rather than Law he left the Realm to the most humble and simple of all the adjacent Countries the Saxons who came to conquer it from Almain de la quel gent il y eurent iesque quarant Soveraigns que touts soy tiendrent a Companions Amongst these forty Princes being equal and independent here was no King till they came to make a Choice And so the Mirror tells us they did having felt the smart of their Competitions Then Eslierent de eux un Roy a reigner sur eux Governer le People de dieu a Maintainer Defendre les Persons les Biens en quiet per les Rules de droit This shews they did not resign their Properties to the King for they chose him to defend them yet it seems they consented to take Grants from the King by such Services as were in common agreed upon And though they were principally from him as Head of the Body Politick yet any Man that observes the Forms of the Saxon Kings Grants will not think it a vain Imagination that such as I speak of should have been with universal Consent 4. But I cannot find any Warrant to question the Tenants Power at the Common Law to Grant out to hold of himself And I am sure there is an express Resolution for it in Dyer the Words are thus in English A Man seized of a Mannor in Fee held of the King in Capite before the Statute of Quia Emptores Enfeoffs J. S. of part of the demeans in Fee without saying more the Feofee enfeoffs another to hold of the Feoffor and his Heirs by 26 s. and 8 d. Rent for all Services The Land clearly is not held in Capite And the first Mesnalty is not held of the Feoffor as of the Mannor by Knights Service The Statute of 34 E. 3. mentioned before by the Lord Cook is not in the least contrary to this For whereas before Magna Charta the King's Tenant might have alien'd as he pleas'd and Magna Charta's Provision Quod nullus liber homo det de caetero amplius alicui vel vendat alicui de terrâ suâ quà m ut de residuo terrae suae possit sufficienter fieri Domino feodi servitium ei debitum quod pertinet ad feodum illud interpretatively gave a Fine to the King when his Tenant alien'd which was not due before that great Charter was made The Statute 34. E. 3. gave the King Fines for Alienations made in the time of any King even before the making of the Charter The Lord Cook cites an Answer to a Petition in Parliament 18. E. 1. Rex non vult aliquem medium which is no more than that he would not grant his Tenant who then petition'd Licence to alien However he had not forfeited his Land if he had alien'd but the King might have entred and seized the Land in the Name of Distress for a reasonable Fine for the Trespass Which the Lord Cook takes for the better Opinion And if the Land were forfeited to be sure the indivisible Service could not have been multiplied as Mr. Hunt imagines 'T is certain that tho at the Common Law the King or any other Lord might have distrained for his Services reserved upon the Original Grant in the Lands of any inferiour Grantee as well as in the Lands of his immediate Tenants yet there was this Inconvenience that the Wardships and Marriages were not so considerable when the Lands were parcell'd out and the Lands of the immediate Tenant who only was to be in Ward or to be married by the first Grantor were of less value Therefore was that Provision by Magna Charta by the Interpretation of which the King was to have Fines upon Alienations But tho the Inconvenience of Tenants aliening to hold of themselves was taken away by the Statute of Quia emptores Terrarum 18 Edw. 1. which gave Tenants free Power to alien their Lands and provided that the Alienees should hold of the Alienors immediate Lords with an Apportionment of Services Yet Licences of Alienation being
of charging or at least as to the Proportion but they having been at Parliament 26 E. 1. which was but eight Years before by Representatives of their own not of the County in general it shews how they had been taxt totis retroactis temporibus But besides the Charters of Counts Palatine erecting Corporations there were others granted by some who were particularly impowered to that purpose or however they might have been confirmed by the King afterwards But I shall give an Example of a Corporation raised by virtne of such a Power given by the King and confirmed afterwards Thurstinus Dei Gratiâ sciatis me dedisse concessisse Concilio Capituli Eborac Beverlac Concilio meorum Faronum meâ Cartâ confirmasse hominibus de Beverlaco omnes libertates iisdem legibus quibus ulli de Eborac habent in suâ Civitate praeterea enim non lateat vos quòd Dominus H. Rex noster concessit nobis potestatem faciendi de bonâ voluntate suâ sua Chartâ confirmavit Statuta nostra Leges nostras juxta formam Burgensium de Eborac c. H. Rex Angliae c. Sciatis me concessisse dedisse hâc Chartâ mea confirmasse Hominibus de Beverlaco liberum Burgagium secundum libertates Leges Consuetudines Burgens de Eboraco suam gildam Mercatorum cum placitis suis Feloneo cum omnibus liberis consuetudinibus libertatibus suis cum omnibus rebus sicut Thurstinus Archiepiscopus ea iis dedit c. There is another Confirmation by King Henry of the Charter by Thurstan and also William Arch-bishop of York to the same free-Borough And also another of King Richard wherein he mentions the Confirmation of the Bishop's Charters by his Grand-Father Tenentes de Villâ Beverlaci in auxiliis tam Regi quam Primogenitoribus cum Communitate praedict Comitatus semper hactenus non cum Communitate Civitatum Burgorum taxari contribuere consuevisse I need not go to prove that these came by reason of their Property in Land they being either the Kings Tenants or the Tenants of Subjects And whatever Priviledges their Interest might prevail with them to suffer to Traders amongst them 't is certain they were granted to the Free-holders 2. But then there were Corporations by Prescription where since now all the Free-men chuse it may seem more difficult to prove that they came upon the account of Property in Land Many of these received Charters in Confirmation of their Priviledges yet if they were taken away would remain good Corporations at the Common Law I may instance in London of which there is this memorable Passage in the Confessors Laws Debet etiam in London quae caput est regni legum semper Curia Domini Regis singulis septimanis die Lunae Hustingis sedere teneri And amongst other things quae huc usque consuetudines suas unâ semper inviolabilitate conservat King John's Charter provides for the ancient Liberties and free Customs of the City of London in particular and of all other Cities Burroughs Vills and Ports and some Charters of other Kings may seem more like new Grants than Confirmations of the old Priviledges But thus much is certain that those Cities Boroughs and Vills which had their Liberties and free Customs confirm'd by Magna Charta 9. H. 3. which was in the same Terms as to that part with King John's were Cities Burroughs and Vills at the Common Law And that we may frame an Idea of these we must have recourse to the old Saxon Laws By them it should seem that there was a greater equality amongst the Masters of Families than afterwards and the Law of Frank-pledges was well suited to such equality when no Man was above giving that Security to the Government upon which St. Edward's Law says Est quaedam summa maxima Securitas per quam omnes Statu firmissimo sustinentur ut unusquisque stabiliet se sub fidejussionis Securitate And as every City or Burrough was a Vill that being the Genus to both as well as an inferior Species the Law provided quod de omnibus Villis sub decimali fidejussione debebant esse universi of these Vills they that had special Priviledges Markets Fairs and the like were free Burroughs And as the Vills so the Burroughs at the Common Law were made up of a certain number of Free-men whose Property might extend far into the Counties These at first were under Tythings Afterwards as in the time of H. 1. Property falling into more Hands within the same Tract of Land or Precinct we find them answering for one another by Twentys the Headburrough was Aldermannus or Praepositus Villae or Burgi Every one of these as a Fidejussor I take it came anciently to the General Council of the Kingdom in his own Person if he pleas'd But very frequently they might intrust their Aldermannus or Headburrough to answer for them But the Franck-pledges discontinuing they might accustom themselves to electing of Members sometimes one sometimes more upon every Summons to Parliament And thereupon in every Burrough at the Common Law the Elections are by all the Free-men which answer to the Franck-pledges formerly except that 't is likely of Old all the Franck-pledges were very considerable Free-holders But still these Burroughs could not take in all the Free-holders nor yet the Vills as anciently consisting of clusters of Inhabitants But if any Man grew wealthy he loved to live by himself in some Castle or large Seat which he might build abroad in the Country Such look'd upon themselves to be too great to give Sureties for their good Behaviour as those that liv'd in Clusters did And by the time of Edw. the First Chivalers and their Children And I take it every considerable Free-holder was a Chivaler or Gentleman were exempted from the Law of Franck-pledges Doubtless every one of these as the Possessionati in Poland came to the General Councils in Person As the Lands were further improved and a free increase of Natures Stores made Men luxurious Great Men put themselves into Straits and were often obliged to sell their Inheritances and to manumit their Servants or release Servile Tenures and the Off-spring of these who themselves were Cheorls or Pesants were according to the Saxon Law which probably enough continued long after the Norman's Acquisition enobled or became Gentlemen by the Descent of five Hides of Land to the third or fourth Generation Thus together with the divisions of Lands amongst the several Children of great Proprietors and subdivisions downwards as the Families branch'd out the Numbers of Free-holders became by King Iohn's time little less than infinite tota regni Nobilitas quasi sub numero non cadebat And this sort of Nobility for the most part to be sure look'd upon themselves to be above Citizens or Burgers and scorn'd to be
within Frank-pledges and be bound with Sureties to their good Behaviour Which Dr. Brady tells us and rightly enough if he speak of the Time of Edw. 1. was only for the ordinary Free-men or the Bulk and multitude of the Free-men or small Free-holders All that look'd upon themselves as Gentlemen at the least were without any manner of Representation and wherever they were interested appeared in Person and sometimes in very disorderly Multitudes Some sensible of the inconvenience of it and expence and trouble to themselves of their free Choice became incorporated by Charter as aforesaid being either the Kings Tenants or some inferiour Lords or it may be the Tenants of several Mannors joining together and their coming to Parliament or as the Burrough of St. Alban's pleads pro omnibus serviciis faciendis was a consequent upon their Incorporation Free-hold I take it was the occasion of all this though afterwards Traders might be admitted to Priviledges amongst them The Traders and Free-holders within Cities or Boroughs sent their Delegates whilst here as in Poland the Possessionati Men living upon their Lands in the Counties came to the General Councils in their own Persons Thus it was here till the 49th of H. the 3d as I think the Authorities formerly insisted on by Mr. Petyt in behalf of the Citizens and Burgesses and by me for the Possessionati in the Counties sufficiently Warrant Wherefore the Alteration which was made in the Government in the 49th of H. the 3d. if any were then made was the calling out some of these Proprietors Earones Comitatus to come in their own Persons and putting a Representation upon the rest which was most likely to be done by the Perswasion and Influence of the King though with the consent of the People And therefore I must say 't is most probable that what is by Mr. Cambden's Author transmitted to us as done a little before the Death of H. the 3d must have been some years af-the 49th and the Kings Victory at Evesham over the Great Barons whom he curb'd by the Less the Commons Which prevail'd on his side by whose Assistance he depriv'd many great Men of a judicial Power in Parliament and of the right to special Summons while the Commons had their Power preserved in their Representatives they were all interested in the Legislature as before But all the Great Barons had not their former Interest in the Supream Judicature and yet this variation in respect of the Great Lords was no change of the outward frame of the Government but only a diminution of the Priviledges of some particular Men. And though the bringing in Representations where no Representations were before altered the Frame and Appearance of the Government yet it did not the Constitution and fundamental Interest of Proprietors of Land with whom the Ballance of Power has ever been in this Nation the Foundation is and was the same like the same Soul animating the same Body when 't is greater and when by reason of Tumults and Seditions as we may call them in the Spirits 't is wasted from its Corpulency and thereby often brought to a more assured state of Health than ever before This more healthful State in a contracted Body of Proprietors of Land I yeild to have been setled in the Reign of H. the 3d. It happening that there were Writs to that Purpose just in the 49th 't is concluded that then it was first begun Whereas by the same Argument 't was in the 38th when two for every County were summoned to Parliament Vice omnium singulorum But if I should confine my self to Authorities within the time of the first Edward immediate Successor to H. the 3d I doubt not but there were enough to satisfy any unbyass'd Reader that the Commons such as are now represented by Knights Citizens and Burgesses had before the 49th of H. the 3d Shares or Votes in making of Laws for the Government of the Kingdom and had communication in Affairs of State otherwise then as represented by the Tenants in Capite notwithstanding Dr. Brady's Affirmation to the contrary In the 24th of E. 1. the Earls Barons Knights and others of the Kingdom which others was then and afterwards meant of the Commons of the Cities and Boroughs gave a Subsidy Sicut aliàs nobis progenitoribus nostris Regibus Angliae And sure Hen. the 3d could be but one Progenitor so that the Farones Minores the Free-holders of Land which ever since the 49th or some other Year of Hen. the 3ds Reign were represented by the Knights of the Counties who were not in those times to be sure confined to Knights by Tenure or Dubbing And the Commons of Cities and Burroughs at the least from within the Reign of King John to whom Hen. the 3d. immediately succeeded were Members of Parliament being Parties to Grants there made And omitting the Prescription of the Burrough of St. Albanes from within the time of the Progenitors of Edward the first to use but one Authority not mentioned in either of my Tracts In the 28 of E. 1. the Knights Citizens and Burgesses had been summoned to the Parliament at Westminster Nobiscum de diversis negotiis nos Populum Regni specialiter tangentibus tractatur and Writs issued out for their reasonable Expences prout aliis consuevit in casu consimili 1. Upon which 't is observable that de quibusdam arduis which is now in use in the Writs of Summons ought not to be restrained to a few great matters but extends to divers according to the different natures of matters brought before or appearing to them 2. That the Commons had not only an Assent without power of dissenting but they were to treat as well as the Peers 3. That their coming was not a new thing then as if begun but 35 Years ago in the 49th of H. 3. but it was of Custom and legal Prescription so far that it laid an Obligation upon the Subject to contribute to these Expences and surely an Usage of 35 Years would not be a sufficient Charge in Law 4. That though there is no Evidence that Representations for Counties were settled before the 49th of Hen. 3. Yet the Freeholders were often at Parliament by Representation and thence there was ground in reason to occasion the Custom that they should bear the Charges of them that they chose Nay if there were no actual Choice there was tacit Consent from which Custom may arise that those who were willing and at leisure to be at Council should answer for and have Contributions from the rest But let both Dr. Brady and Mr. Hunt consider the Precedents above mentioned of Coventry and Bridgwater which did not hold of the King and yet sent Burgesses to Parliament and let them give a categorical Answer whether they believe that the Majores Barones Regni and omnes alij holding in Capite mentioned in King John's Charter made
Post-script which affirms That nothing can be the Concerns of Men united in any Polity but may be govern'd and ordered by the Laws of their Legislature for their good At least this shews how in matters of Notion and naked Rights great Wits may not only differ from others but from themselves But let us give the Argument raised from Conquest its full weight and see whether Mr. Hunt maintains our present Establishment upon clearer Grounds than they do who search Antiquity about the Point The absolute Power and Government of the Nation was by the right of Conquest setled in William the First and his Heirs this being so could not be parted with For it must be either voluntarily or by Compulsion For the first Sir Robert Filmer will tell you No Man can bind himself in a matter depending of his own Will there can be no Obligation which taketh State from the meer Will of him that bindeth himself If by Compulsion then they will tell you for the same Causes that a private Man may be relieved from his unjust and unreasonable Promise as that it was so grievous or for he was by Deceit or Fraud circumvented or induced thereunto by Terrour or Force or just Fear or by some great hurt even for the same causes the Prince or Princes may be restor'd in that which toucheth the diminishing of his or their Majesty If it be said That this would as well hold in relation to the Peoples parting with that Right which was once in them they will tell you that no Government can be exercised but Monarchy That no other Government is owned by God Almighty in the New or Old Testament but Monarchy That while God's People were without a King in Israel there was Confusion and Anarchy If Adam was no Monarch at least God himself was and 't was a Theocracy And therefore admit Paternal Power was not Monarchical yet a Man might as well seize upon a People without a Government as upon a piece of Land unoccupied And when once he became Conqueror he was let into a Divine Right of ordering arbitrarily all things within that district and could not depart from it And though every Monarch was not absolute for the Jewish Kings were not yet every Monarch by Conquest must needs be so being received without any Conditions or Limitations Now Mr. Hunt himself going chiefly to shew that Paternal Power was not as such absolute does not answer this Hypothesis and the Examination of it depends upon such searches into the bottom of things and the shewing them naked in their Metaphysical Existences that very few Men can judg of the Controversy at least not so many as may of the meaning of Writers and Records carefully compared together and in many places freed from all possible Ambiguity but still the more ambiguous they are the more evidently will they overthrow all those Pretences upon which these Notions are built For if the Records and Histories give such doubtful Responses as Mr. Hunt imagines then indeed we must look only to the present Government Whereas if Dr. Brady and his Friends could shew those ancient Authorities to be plainly on their side they would have many that would improve their Notion of the House of Commons their beginning by Rebellion into an Argument that they ought to be cast off as Usurpers upon the Divine Right of the Conqueror Or at least yeild but that one Point of the Conquest they will tell you agreeably to Mr. Hunt's Assertion that a Government by Conquest is unalterable by any lawful Power And as that is wholly different from a Government by consent whatever implies or admits of the consent of Subjects to the passing any Law is contrary to the Fundamentals of the Government and is like a Superstructure of Hay and Stubble whiâ—…h ought to be consumed Others will tell you that the most free Concessions of a Conquering Prince or one claiming under that Title and not departing with his Dominion can no more oblige himself or his Successors in any thing that may restrain his Soveraign Will and Pleasure than a Man can depart with the freedom of his Will And the most seeming Restraints can be no more than temporary Provisions or ordinary Methods of Ruling which the Prince as he found occasion might remove notwithstanding the strictest Clauses of Perpetuity they being of like Interpretation with such Passages as related to the continuance of the Jewish Law or Oeconomy which was to have no place in the New Heavens and new Earth But if they should yeild that all Grants and Charters c. are binding to the Prince who made them yet Sir Robert Filmer tells us expresly The Laws Ordinances Letters Patents Priviledges and Grants of Princes have no Force but during their Life if they be not ratified by the express Consent or at least by the sufferance of the Prince following who had knowledg thereof These Notions have more Favourers perhaps than there are Men of Judgment or Honesty enough to shew the weakness of them Nor has Mr. Hunt that I know of directly encountred them with his two-edg'd Weapon But if the supposed Fact which they are built upon be prov'd to be no more than Supposition all the most specious Superstructures are but Castles in the Air which vanish like Smoak ¶ Inter Communia brevia de Termino Michaelis Anno 34. Edwâ—… EX pacte eorundem hominum Regi est ostensum quod cum Uilla praedicta Civitas Burgus seu Dominicum Regis non erictat ut hominâ—… Uillâ—… predicte tanquam Cives Burgenses seu Tenentes de Domino Regis in alâ—…quibus auxilus 〈◊〉 seu contributionil us Regi seu progenitoril us suis concessis taxari consueberunt seu talliari sed tantum cum Communitate Coâ—… War Taxatores tamen Collectores XXX XX in 〈◊〉 praedicto homines praedictos tanquam Burgenses tarari XXX de bonis rebus suis ad opus Regis levare nituntur in ipsorum hominum â—…ampnum nori medicum gravamen depaâ—…perationem manifem Et quià Rex non vult quod iidem homines indebi è pregraventur in lâc parte â—…andat 〈◊〉 quod scrutaâ—… Rotulis Memorandis de consimilil us â—…enibus factis in Uillâ—… praeâ—…â tam tempore Regis quam progeâ—…orum suorum praedictorum si eis constare poterit evidenter quod praedicta Willa de Coventâ—… non siâ—… Civitas Burgus aut Manerium de antiquo Dominico Corone Regis ut praedictum est quod dicti homines simul cum aliis extra Civitates Burgos Maneria praedicta manentes ad huâ—…usmodi prestationem Regi faciendam â—…ari debeant semper haâ—…enus taâ—…ri conâ—…ueverunt tunc ipsos homines ad prestationem Regi ratione praedictae concessionis de XXX Regi ratione faciendum per praedictos Tatatores Collectores distringi non permittant aliter quam totis temporibus retroactis in hujusmodi
casu fieri consuevit Teste Rege apud Lancetost 18. die Octobris 34. FINIS ERRATA PAge 113. line 3. in Marg. read true way P. 117. l. 18. r. Bannerets Ib. l. 21. r. Banneret P. 122. l. 2. r. St. P. 144. l. 8. r. ingenuously So P. 145. l. 31. P. 160. l. 5 after the Word Barony add in the Margine viz. Ecclesiastical Persons P. 174. or 274. T l. 18. r. done P. 204. V l. 2. r. Counsel So l. 11. Ib. P. 212. X l. 22. r. permixtim P. 217. X l. 26. r. de tout le c. P. 220. l. 6. r. taken Other Literal Mistakes the Reader is desired to correct with his Pen. A TABLE of the Principal CONTENTS The Number of the Page being often mistaken through the Printers false counting to one another the Reader is desired where the Figures are wrong to observe the Letter which begins the Sheet A Page Abby of Molross O 206 207 Absence of the Bishops not merely from the Canon-Law 84 N 181 182 Adam de Orlton's Case R 267 T 180 Agitare Judicium Sanguinis prohibited H 101 and N 157 183 Allusion made by the Questionist not solid 165 Appeal to Rome no capital Crime antiently M 173 Appeal of Earl Godwin Q 227 Appeals in Trial V 191 192 193 Appellation ought to be governed by the Right S 278 Apostles their Rule p. 89 how far their Practice to be urged for Example now 133 Apostolick Canons against Clergy-Men their medling in Secular Affairs P 135 216 Arch-bishop Stratford's Case T 282 283 284 Arundel Earl his Case O 208 Assemby at Northampton no Parliament p. 170 171 172. Matters carried there in great Heat and no Iudgment of Treason given M 172 173 Attainders what they are 9 10 Augustine St. his Opinion 94 95 B. BArons how made enobled in Blood and how made 107 to 120 Barons by Blood and by Tenure different 78 118 119 120 Barones Majores who 78 Z 245 246 Barones Minores who 7 8 Barons Peer who 21 107 117 Barones Regis who 107 Z 247 to 250 Barones Regni who ibid. Baronagium and how comprehensive 107 P 202 203 Y 226 S 278 Becket not impeached of Treason from 65 to 70 and from 172 to N 180 Berkeley Sir Tho. his Case 28 29 V 196 Blesensis his Words marked 97 98 125 167 168 R 261 Bishops whether they sit in Parliament by vertue of any Baronies p. 106 108 and how 122 c. T 174 or 274 Bishops not Barons 77 108 19 123 124 125 Bishops how they sate with the Earls 91 92 93 145 P 217 Bishops Service and Tenure a Burthen 106 124 125 Their Tenure offects not their Persons 77 Bishops if a third Estate not capable to try a Peer 128 Bishops the form of their Writs no Argument of their Power 86 129 130 when present always exprest that they were 36 Bishops medling in Secular Affairs forbidden 129 135 P 216. Their Opposition to the King at Clarendon and from what Cause 141 Bishops Power clipt at Clarendon 99 O 144 when to go away in Criminal Cases 161 196 197 even in Acts of Parliament R 265 Bishops Absence not merely from the Canons 8 84 N 181 182 183 190 N 193 O Bishops Protestation p. 5 6 7 translated and explained 41 42 and N 185 to 194 Bishops not reckoned Nobles T 184 or 284 not called Lords till the time of Rich. II. 108 Bishop of Norwich his Case 40 Bishop of Carlile tried by a common Iury T 279 so Bishop of Ely 278 ibid. Bishops Absence no Error 47 Bishops had no Right to be present in the Debate and handling matters of Blood 143 Bishops not comprehended under the name of Peers or Grands if put after Earls and Barons 14 18 to 25 32 Bishops if others named always named where they are present 24 29 32 36 and that before others R 261 Bishops not Peers to Temporal Lords 71 to 99 S 280 Bishops sit in respect of Temporal Possessions 83 yet in the quality of Spiritual Persons T 174 or 274 and S 289 Bishops cannot sit in a double Capacity S 288 289 T 174 Bishops contended to be tried by their own Order T 181 or 281 whence their pretence of Immunity proceeded 153 Bishops to be tried by common Iuries T 277 to 282 Bishops their Equivocation 141 Bishops Messengers of Peace V 197 Bishops chief Employment to make Peace in civil Affairs antiently Counsellours not Iudges p. 89 91 their refusing to give Advice about keeping the Peace 30 31 266 and R 269 Bishops but part of a third Estate 80 to 85 and 126 127 137 S 290 Bishops in France never sit in that Chamber of Parliament which tries Capital Cases 90 Bishops never absent not prov'd Q 228 Bishops no where allowed to sit Inquisitors of Blood V 198 Bishops not summoned to Parliament several times Q 238 Bishops a Question whether they might be even of a Committee in matters of Blood V 199 Boeges de Bayon's Case 25 26 Brady Dr. his Assertions and Fancies condemned Pref. to the 2d Part and p. 189 in Marg. V X A a 204 205 224 227 Burroughs and Burgesses Z 237 238 C. CAmbridg Earl 50 Canons forbidding of Clergy-men to meddle in Capital Causes still in force 87 164 and P 217 to 222 Canons concerning Blood as anciently in England as the Conquest and part of the common Law N 181 182 Capitalis Justiciarius Angliae what Office 137 138 Capitalia placita what Q. 229 230 231 Chancellour when no Peer how tried T 285 286 Charter of King John the Author's Interpretation of it asserted against Dr. Brady X 206 207 against Mr. Hunt Z 237 to 242 Clarendon the meeting there a Parliament 139 Clarendon and the Parliament there considered 99 100 142 Clarendon Earl his Arguments against the pretended Conquest A a 260 to 263 Chivaler who B b 284 Clergy subjected to Baron-Service 112 140 Clergy their Power in Primitive-times 89 their Power in other Nations 90 Clerus never taken for the Bishops alone 126 Commons and Commonalty of the Kingdom where Records and Histories manifestly shew their Presence at Parliament before 49 Hen. 3â—… X 211 to Y 22â—… Commons their Vote in Danby's Case O 98 Commons sometimes meant by Grands R 270 S 279 226 3d Part anciently had their share in Judicature R 266 267 268 Commons always Members of Parliament 172 O 202 sâ—… together with the Lords in the times of Hen. I and King Stephen X 212 and long afterwards O 202 203 204 Mr. W's Grounds for the Belief that they had no Right to come to Parliament till 49 H. 3. answered and turned against him X 210 to Y 227 so Mr. Hunt's p. 221 222 223 Y 235 and to A a 268 Commons their Petition 21 R. 2. p. 11. and O 195 196 Community of Names no Argument of Right S 278 Concordia 4 E. 3. 27 R 263 Conquest disclaimed by William the first 139 A a 260 no Conquest