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upon Record in all the Rolls of Parliament that ever any Judgement or any other act done in any Parliament had been so repealed We know it was once attempted 2 H. 5.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 Standish's Case Therefore there is no reason to think that any Judgements were repealed upon the Bishops being absent seeing their presence is not of necessity for the constituting and sitting of a Parliament And especially not for the Judgements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
comprehends them all so that our Question being concerning their Rights in Parliament if this be not meant of one it will neither advantage nor prejudice me but only shew how willing they were to break through all Rubs when they could in those times of their Power and the Blindness of the People The whole Sentence by our Author abridged to his purpose is as followeth Illud coelestem exasperat iram plerisque discrimen aeternae damnationis accumulat quod quidam principes sacerdotum seniores populi licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis seque ideo immunes à culpa reputant quod mortis truncationis Membrorum decernentes à pronunciatione duntaxat executione paenalis sententiae se absentent Sed quid hac simulatione perniciosius est Nunquid definire discutere licitum est quod pronunciare non licet In English This doth exasperate the Wrath of Heaven that certain of the Chief Priests or Bishops and Elders of the People notwithstanding they do not dictate or pronounce Judgments of Death yet they handle them in their Disputations and discussions of the same yet notwithstanding think themselves free from Guilt because though they Decree the Sentence of Death or loss of Members they only absent themselves at the pronunciation of the Penal Sentence But what is more pernicious than this Simulation Is it lawful to discuss and determine what is unlawful to pronounce And in the whole Treatise inveighs against the general neglect of the Bishops in performing their Duty not confining himself to any place and seems a prophetical description of the practise of the Inquisition afterward brought in by S. Dominick But if it were referred to the practise of some of the Bishops and Clergy of England probably it may be meant of such as were made Secular Judges or sate with the Earls in the County Court where they perhaps were present at the discussion though not at the Sentence which was left to be pronounced by the Secular Judge till after the time of Edw. 1. See 28 Edw. 1. c. 3. where it is ordained that the Justices appointed to take Assizes in every County where they do take as they be appointed Assizes shall remain together if they be Lay-men but if one of them be a Clerk then one of the most discreet Knights of the Shire being Associate to him that is a Lay-man by our Writ shall deliver the Goals of our Shires Here we see their Power though Justices to meddle in Capital Cases was prohibited nay some Records are in the Tower that when two have been commissioned as Judges for the same Circuit the Commission of the Clerk has been restrained to common Pleas that to the Lay-man unlimited see Iani Ang. facies nova pag. 209. 210. Shall we now believe that what was prohibited to Clerks in Edward the First his Time was permitted to them in the High Court of Parliament in subsequent times I have given my Reasons why I think Seniores Populi could not comprehend the Abbots Priors Lords and Commons yet if any man will contend this was a Parliament then must Seniores Populi comprehend amongst others the Commons and their Proceedings to be in a legislative way in which the Commons could only meddle and in which we deny not the Clergy to have their part so that this doubty Precedent will no way serve our Author's Turn His second Instance to make good his Assertion is taken from the Authority of Will. Fitz-Stephen a Monk of Canterbury in MSS. in Sir Rob. Cotton's Library and some other private hands in which he relates what happened to Arch-bishop Becket in the Contest between the King and him in the great Council at Northam ton called soon after Becket's obstinate Carriage at Clarendon in which Relation among others that Author hath these Words Secunda die considentibus Episcopis comitibus Barenibus Angliae omnibus Norpluribus Roffensis Episcopus quidam alius nondum venerat Archiep. lesae majestatis coronae regiae Arguitur quia se ut supra narratum est à rege citatus ro causa Johannis to wit Iohn the Marshal neque venerat neque idonee se excusasset Archiepiscopi depulsio nullum locum habuit Allegata tamen Johannis supradicti injuria jurisdictione hujus causae propria curiae suae integritate Rex exigit judicium Archiepiscopi nulla ratio est approbata Then after much debate who should do it Judgment was pronounced by the Bishop of Winchester which ended in the Confilcation of all his personal Estate The Sum of what Fitz-Stephen saith which is cap. 10. col 2. p. 21. in that Copy I have seen is this That when the Bishops and Barons of England and many of Nor. Normandy as Mr. Selden thinks were met together the Arch-bishop is there accused of Treason because having been cited by the King in the Cause of one Iohn he appeared not nor gave in a sufficient Excuse To let pass what is materially replyed by the Author of the Letter to this Authority I shall make some Observations of my own not yet taken Notice of First That this Assembly held at Northampon was not a Parliament but a great Counsel summoned by the King soon after Becket's stubborn carriage to his Prince at Clarendon to be advised by them how to humble that proud Man where it was lawful for him to use the Counfel of any of his Subjects of Normandy or others as he thought good who certainly in an English Parliament could not be admitted amongst the natural English Secondly we hear nothing of the rest of the Clergy nor the commons but of the Bishops Earls and Barons but that the Commons had allways right to appear in Parliament is learnedly made good by Mr. Petit in his Tractate of the ancient Rights of the Commons In the next place the relation of Fitz-Stephens is not only different from the relation of other Historians but in it self is subject to many Exceptions For first it is plain he was not accused of High Treason in the case of John the Marshal as he saith which appears by the Judgment of that Council which upon the whole matter reac'hd only a Confiscation of his personal Estate which shews clearly the Accusation was not in that Case for Treason because they here punished him with a lesser Punishment than was due to Treason now 't was not in their Power to change the nature of the Crime but must have either found him guilty of Treason or have acquitted him But the Truth is there was a second Accusation by the King about the same time and in the same Place concerning Accounts to the King of Receits during the Vacancy of the Sees of some Bishopricks when he was Chancellor to which he refused to give other Answer saying He was not cited in that Cause and over and above that he was fully
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-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
they had a place to go to when 't was fit they should consult apart not that they always did so no more than it doth that the Prelates sate not among the Lords because they sometimes went apart and had a place to go to as well as the Commons We know that 7 Iacobi when Prince Henry was created Prince of Wales they all sate together in the Court of Requests and may do again when the King pleaseth I have now done with this rather curious than necessary Question which I had not touched upon had not Percy 's place in Parliament given me occasion a little to search into it Yet I think it not amiss here to insert the Prayer of the Commons and the form of the Proxy made by the Clergy to Sir Thomas Percy in 21 Rich. 2. memb 6. no. 9. as it is at large upon the Record that the Reader may be able to give a rational Judgment both what his Power was and how the Clergy were represented by him The Commons first pray the King that whereas divers Judgments and Ordinances before time made in the time of his Progenitors had been recalled and made null because the Estate of the Clergy were not present Et pour ceo prierent au Roy que pour surety de sa person salvation de son royaum les Prelates le Elergy ferroient un Procurateur avet povoir sufficient pour consentir en leur nome a toutes choses ordonances a justifier en cest present Parlament que sur ceo chacun seigneur spirituel diront pleinment son avis Sur quoy le dicts seigneurs spirituels commetterent leur plein povoir generalment a un lay personne nomerent en especial Thomas Percy Chevalier sur ceo baillerent au Roy une schedule contenant leur povoir la quelle nostre seigneur le roy receust commanda le dit Mardy estre entre de record en rolle de Parlement de quelle cedule la form sensuit Nos Thomas Cantuariensis Robertus Ebor. Archiepiscopi ac praelati Clerici utriusque provinciae Cantuar. Eborac jure ecclesiarum earundem habentes jus inter essendi in singulis Parlamentis Domini nostri Regis regni Angl. pro tempore celebrandis nec non tractandi expediendi in eisdem quantum ad singula in instanti Parlamento pro statu honore Domini nostri Regis nec non Regaliae suae ac quiete pace tranquillitate regni judicialiter justificand Venerabili viro Domino Thomae de Percy Mil. nostram plenarie committimus potestatem ita ut singula per ipsum facta in praemissis perpetuis temporibus habeantur It is observable in this Prayer the Commons recite Ordinances as well as Judgments to have been made null by reason of the Bishops Absence and comprehended not Judgments alone Now of what Latitude Ordinances were taken whether temporary or otherwise look'd upon as Laws is not very certain Secondly they desire such a Proctor as might have Power to confent to such things as should be done Thirdly they naming a Lay-man who had no Right of his own to sit there and giving the King a Schedule of their Procuration was enough to make their Right be preserved to them without any explicite Consent by their Proctor or perhaps his being so much as present at any Debate But I now proceed to observe how ready our Author is to pick what Advantage he can against the Author of the Discourse of Peerage from the words by him quoted out of the Manuscript History written by the Abbot of Molros in Scotland where the King of England sent Bishop Fox as I remember to treat with the King of Scotland Iames the Fourth then there touching a Match between the Children of those two Princes 'T is a Book to be seen in some few hands and writes of the Parliament in 21 R. 2. The Author of the Discourse pag. 20. tells you that that Manuscript Author blames the Prelates much for the Opinion they gave generally about the Revocation of Pardons but in this as in many other Authorities that make against him our Author curtails the Words and cites no more than makes for his turn The Words at large are these Dederunt ergo locum judicio sanguinis in hoc facto Ita quod dubitabatur à pluribus si non incurrerent in poenam irregularitatis pro negotio memorato unde contigit quod propter istud minus peccatum inciderent in aliud majus peccatum consequentur ut laicam personam constituerent procuratorem pro iisdem qui illorum vice consentirent ad judicium sanguinis dandum in isto Parliamento si necesse foret occasio emersisset The Prelates by this act of theirs gave Allowance or Countenance to Tryals of Blood insomuch that it was doubted by many whether they did not fall under the Penalty of Irregularity by reason of the foresaid business from whence it happened that instead of that lesser Offence they fell into a greater by Consequence in that they made a Lay-man their Proctor who in their Room might consent to a Judgment of Blood to be given in that Parliament if it were needful or occasion had happened I have translated dare locum fudicio sanguinis to give way or Allowance to a Judgment of Blood because it appears by the subsequent Words he meant them so The use the Author of the Discourse of Peerage makes of these Words is to shew that the Canons were not the only Cause that hindred their presence in II Rich. 2. For then when they had no Encouragement from the King or Lords then they ought not at any hand to be present in such Cases but here in 21. when they had any Allowance or Connivence as to the Laws against them then the Canons were neglected altogether His Inference seems to me rational and good Oh! but saith the Grand Questionist they were present in voting the Pardon to the Earl of Arundel revocable Under his Favour I think he is mistaken for the Book warrants no such matter only tells you that they gave a general Vote that Pardon 's granted in Parliament were revocable by the King by consequence whereof some of those who were pardoned in 11. were executed in 21. which Votes I hope might pass though the Parties concerned were not present and this meaning the book seems to enforce For first that Author saith it was a doubt amongst many whether that act did not make them incur the Penalty of Irregularity which would have been none had they personally by their Votes revoked the Pardon granted to the Earl of Arundel Secondly he saith by making a Proctor in that Case of Blood they committed a greater Fault than the former but certainly the making a Lay Proctor was not a greater Fault than actual Allowance and personal voting in Blood which that Author charges them with Lastly they made a
and other Lords who were suspected to be of the Confederacy with the said Henry Hotspur alias Percy This was the work of Friday the 18th of February on Saturday the 19th the Commons give Thanks to the Lords Spiritual and Temporal for the rightful Judgment they had given as Peers of Parliament 5 H. 4 from N. 12 to N. 17. This is the whole Case as to Father and Son Now whether the Bishops were present at all these Proceedings and how far is the Question The Grand Questionist contends they were present at the Proceedings both against the Father and the Son at that against the Son from the word full Parliament which he seemeth to infer must include the Bishops and at that against the Father from the Thanks made by the House of Commons the next day after the acquittal of the Earl First as to the Son It appears plainly by the Historians of those times that he was slain in the fourth Year of the King in the life-time of the Father who soon after broke out into Rebellion so that at the time of Henry's Death he was only a Commoner and consequently not to receive any Judgment in the Lord's House alone nor could he be made a Traitor otherwise than by Act of Parliament so that the word full Parliament must either refer to some particular Act of Parliament made in his Case in which the Bishops might be present and the Commons concur or else the Proceedings were wholly irregular and contrary to their own Agreement in 4 E. 3. Now from an illegal Act no Right can be concluded As to the Earl himself we find him suddenly after in open Rebellion defeated and escaped into Scotland with Lord Bardolf and convicted of Treason by the Temporal Lords for not appearing upon Summons and all this within two Years after Now can it be reasonable to think that the Bishops were present at the acquittal of this very Lord in 5 H. 4. who were not present in 7 H. 4. which was but two Years after nor were present at a like Case in 2 H. 4. N. 30. against the Earl of Holland and others which was not three Years before Neither can any weight be laid upon the Thanks of the House of Commons which was only matter of Complement and performed at another time when the House was assembled upon other matters but seeing them there might extend their Thanks to them also who though they could not contribute did nothing to hinder the Clemency of the Temporal Lords towards the Earl besides at the same time it was accorded by the King and Lords upon the Desire of the Commons that certain ill Officers about the King should be discharged in which the Bishops might be Instrumental and very well deserve the Thanks of the Commons at which Desire of the Commons they might assist and be absent at the rest The Precedent of Iohn Lord Talbot will not avail him he exhibited an Accusation against the Earl of Ormond for certain Treasons by him committed this Accusation was in the Marshalsea before the Earl of Bedford Constable of England The King to put an end to this matter doth by Act of Parliament make an Abolition and Discharge of the said Accusation and Discovery The words are That the King by the Advice and Assent of the Lords Spiritual and Temporal and the Commons made an Abolition of the said Detection Whoever denied the Bishops Consent in a Legislative way and had it been otherwise the Commons could not have been I think regularly concerned 2. H. 6. N. 9. The Precedent of the Duke of Suffolk in 28 H. 6. I thought to have passed over being a Case as irregular in the Proceedings as unjust in those that put to death that unfortunate Man Much Art was used by the Court to have preserved him from the Envy of the People A Parliament assembled at Westminster after dismissed into London then prorogued to Leicester that dissolved and another called at Westminister in which the Duke appeared which exasperated the Commons against him But upon the whole Record it appears that no Issue was joyned for after Articles exhibited by the Commons and his denial of them March 14 at the least of the eight first and giving some Answers to others on the 17 th he was sent for again and the Chancellour acquainted him that he had not put himself upon his Peerage and now asketh him how he would be tried who instead of pleading put himself upon the King's Order who caused him to be banished for five Years By all this it appears here were no judicial Proceedings which could not be before Issue joyned so that although the Bishops were present at the reading of the Articles yet this can be no Precedent to entitle them to be present in judicial Proceedings in Capital Causes for here were none at all in this Case and till Issue joyned the Bishops are not bound to withdraw Neither ought it to seem strange that the Viscount Beaumont should make Protestation in the name of the Lords Spiritual and Temporal against these Proceedings which they finding to be extra-judicial in very many Particulars they did not know I mean the Bishops as well as some of the Lords what Construction might be made to their Prejudice for sometimes they met in one place sometimes in another and not always in the Parliament-House to consult of this Business Besides many things pass sub silentio which being questioned would not have been allowed these Observations being added to what hath been said by the Author of the Letter seems to me a full Answer to this Precedent in which the Protestatio is only Protestatio facti not Iuris I have thus put an end to the Examination of this third Chapter and fully considered all his Arguments and Precedents and come now to a view of his fourth and last Chapter CHAP. IV. IN this Chapter our Author hath employed all his Art to assert the Peerage of the Bishops and that they make a third Estate in Parliament in what sense they are called Peers as also that the entire Clergy met in Convocation make a third Estate I have largely shewed before and shall not now repeat I admit they are sometimes called Lords Spiritual tho not so before Rich. II. but Prelates or the like Peers of the Realm Peers in Parliament If by that Appellation you would make them Equals to the Nobilitas Major I think they never were yet have they many Privtledges in respect of their Seats and Episcopal Dignity in the Lords House and by reason of their most honourable Profession have all of them Precedence to Barons I admit also that the Clergy is really a third Estate and that the Bishops in respect that they are the Head of the Clergy may sometimes in ordinary Discourse be called so but are in truth never so exclusively to the rest of the Clergy they all making but one Body or third Estate fully represented
yet he will not allow the Legislative Power to be in one here Every Government says he is the Representative of the People in what they are to be governed by it by their consent to it in the first erecting thereof they do trust their Governours with the Rule and Order of their Lives and Estates for the Common-Weal This seems to be his meaning of materially the same as 't is brought to shew that 't is not needful in order to the maintaining the present right of the Commons to shew That the Counties in all this time had their Representatives in Parliament by the formality of a Choice Which no Man that I know of has of late laboured to prove But if this be his meaning of materially the same then all Governments are materially the same Whereas they may be so formally as founded in the consent of the People which he presupposes But if William the First was an absolute Conqueror as he all along yeilds to Dr. Brady where was the consent of the People to his Government And how can a Government by consent now of constituent parts different from what he thinks ours was at the first Erection by the Conquest be either materially or formally the same with such a Government by Conquest But we must seek further for his meaning in materially the same He tells us the Parliament and the Curia Regis were materially the same that is as one would think there consisted of the same Members the only difference being laid to be in the nature of the Summons And yet he tells us that the ancient Burroughs sent Members to Parliament but that such were not Suitors to the Curia Regis How then were these materially the same Thus 't is plain that he has laid no manner of Foundation for our Government by King Lords and Commons or by King and three States which he takes to have been the Eâ—…entials of our Government from the Conquest but what himself undermines Whereas what I go upon prevents all manner of Pretences for unhinging of it and is the same in effect with what the Great Fortescue observed in the time of H. 6. Et in omnibus Nationum harum Regum earum temporibus regnum illud eisdem quibus jam regiter consuetudinibus continuè regulatum est quae si non optimae extitissent aliqui illorum justitiâ ratione vel affectione concitati eas mut assent Indeed this Assertion of that famous Chancellor has been much exploded by those who think that the altering of some Laws or Customs is a change of the Government And therefore say that he was greatly mistaken because many old Customs have been abolish'd Whereas he certainly meant it of the Fundamental Constitution Which as far as ever I could learn was and is that every Proprietor of Land especially should in the General Council of the Kingdom consent to the making those Laws under which they were to Live In the time of the Confessor as appears in the Transcript of his Laws there was a Folcmote or General Assembly of the People of all the Counties of England which was to be held once a Year on the Kalends of May to treat of all Matters of State and Publick Concern the very Law for such Assembly was received and confirmed in the 4th of William the First So that then by Law and of Right whatever was the Fact the People of all the Counties of England that is all the Members of the County Courts the Free-holders were to meet in a Great Council or Parliament as we now call it Admit that this is to be taken of every County respectively which were to make as many distinct Governments as Counties still the Adunatio Conciliorum or Calling together of the Counties and Hundreds as often as there was need which H. the â—…st promis'd by his Charter would come to the same thing And that all the Members of the several County Courts were Members of the Great or General Council and came accordingly if they pleased Not to mention the several Authorities by me formerly insisted on I conceive may appear by comparing two Authors of undoubted Credit and sufficient Antiquity who shew what the Great Council was in the time of Henry the second In the 16 of Henry the second that King held his Easter Court Baron at Windsor as Bromton shews us Rer tenuit Curiam suam in solemnitate Paschali Thither indeed were flock't most of the Nobility fere omnes Regni Anglae Episcopii Magnates But this being a Curia de more or an ordinary Court which no more than Tenants in Chief were obliged to take notice of nothing of universal Obligation could then be Establish'd Wherefore from hence the King went to London where as that Historian says de Coronatione Filij sui Henrici majores Regui sui Statutis magnum celebravit Concilium Gervasius who lived in that very time acquaints us particularly with the Summons and Appearance thereupon Convenerunt die Statuto ex mandato Regis ad Londoniam totius Angliae Episcopi Abbates Comites Barones Vice-comites Praepositi Aldermanni cum Fide-iussoribus suis. There assembled at London according to the King's Summons the Bishops Abbots Sheriffs the Heads of Hundreds and of Tythings with all the Frank-pledges throughout England unless the Fide-jussores Answer to the Manucaptores of which immediately If this take not in all the Free-holders of England I know not what will for he that was within no free-pledge or was no Fide-jussor was either an Out-Law or not his own Man but his that was to be answerable for him But every Master of a Family or Free-holder that was within the Protection of the Laws was one of the Frank-pledges And indeed Bronton tells us in express Terms that all the Libere sui Regni tenentes all the Free-holders of the Kingdom were there for they all swore Allegiance to the young King as well as to the Father Omnes Comites Barones liberos Regni sui tenentes devenire homines novi Regis Filij sui sibique super reliquias sanctorum Ligeantias Fidelitates jurare Fidelitate semper nihilominus suâ salvâ But if the Fidejussores mentioned in Gervasius were no more than the Manucaptores which used to answer for the Appearance of them that were chose to represent the Counties Cities and Boroughs in Parliament then here is positive proof of such Representation of the Commons as was in the times of Edw. I. Edw. II. and so downwards Yet 't is not improbable that the Pledges or Manucaptors for the Knights Citizens and Burgesses chose to parliament were introduced long after this time instead of the Fidejussors or Frank-pledges when that admirable ancient Polity about Frank-pledges became impracticable and was discontinued or broken through the general Corruption of Manners which rendred it impossible for whole Neighbourhoods to answer for
a Simon de Bereford Chebalier c. Item in the same Parliament our Lord the King charged the said Earls Barons and Peers to give a right and loyal Iudgement upon Sir Simon de Bereford c. It follows afterwards Si agarderent aviggerent les ditz Countes Barons Piers come Iuges du Parlement per assent du Roy que le dit Simon come treitre fast treisne pendu So the said Earls Barons and Peers as Iudges of Parliament did with the Kings assent award and adjudge Sir Simon de Bereford to be Drawn and Hanged You see the same persons were his Judges who had before Tryed and Condemned the Earl of March yet I must observe a little difference in the expressions The King in giving the charge to the Peers in the Earls Case the words of the Record are The King charges you Earls Barons Les Piers de son Royalme The Peers of his Realm which must be construed Who are the Peers or Being the Peers of his Realm And then their Judgement comes to be set down the Record saith Les queux Countes Barons Piers c. The which Earls Barons and Peers did so and so with a Conjunction Copulative and before Peers as if there were some other Peers after the Earls and Barons which if there were we are sure it could not be the Bishops which is all that we are to enquire into We know that heretofore the Kings of England did sometimes send Writs of Summons to other persons that were not Peers of the Realm but persons of Quality as Bannerets and some Officers as the Warden of the Cinque-Ports whom I find commonly to be the last set down in the List of those who were summoned And those persons so summoned came and attended the Parliament and had Voice and Vote with the Peers as Members of their House and as Peers pro tempore and might be comprized under the general name of Peers and being Lay-men might act as Peers in all Tryals and in all other Judgements of Parliament both Civil and Criminal even in Capital Causes but these could in no sort be esteemed to be Peers of the Realm though they might pass in a large acceptation and a vulgar construction of the expression be termed Peers in Parliament These now might be summoned to a Parliament or two or three Parliaments one after another as pleased the King and then be summoned no more if the King was otherwise minded and they could not pretend to have wrong done them their former Summons having been Ex mera gratia without any right of theirs to them So then I may conclude that it is all one whether you will take it as it is expressed in the Kings charge then The Earls Barons Peers of the Realm c. or as it is when they come to give Judgement and as it is likewise expressed in the Case of Sir Simon de Bereford The said Earls Barons and Peers c. and whether that Conjunction and before the word Peers be of any signification or no to mark out other Peers subsequent to the Barons is not material to what our Asserter would have to be understood of my leaving out any thing for it had all made for me and against him making it clear enough that the Bishops had no part in those Judgements The next Precedent is the Judgement of Iohn Mautravers the Record says Trestouz les Piers Countes Barons assemblez a ceste Parlement a Westminster 〈◊〉 on t examine estroitement sur ce sont assentuz accordez que John Mautravers 〈◊〉 est culpable c. All the Peers Earls and Barons assembled in this Parliament at Westminster have strictly examined and thereupon have agreed and accorded that John Mautravers is guilty c. I appeal now to any man that hath but common sense if it can be imagined that the Prelates or Bishops can be thought to be meant by that expression of All the Peers and if it be not the same in signification as when the King charged them to give righteous Judgement upon the Earl of March saying Si vous charge Countes Barons les Piers de mon Roialme c. And so I charge you Earls Barons the Peers of my Realm c. There the several ranks of Peers are first named and the general word which denotes their Quality common to both which makes them competent Judges of those matters that is their being Peers is put last And here in this Record concerning Mauâ—…avers it is put first Which comes all to one And it is further observable that at the time of that Parliament there were no Temporal Lords before Earls neither Dukes nor Marquesses So if any others were to be understood to be comprised under that General Title of Peers it could be only the Lords Spiritual which is a thing very ridiculous to believe Can it be thought nay can our Asserter himself think I trow not that when the other particular ranks and degrees of the Peerage are expressed and set down nominatim by name as one may say by Tale and by Token Earls and Barons that I say at the same time and to be joyned with them in the same action another rank of men viz. Bishops must pass under a General Title and that put in the first place as if Peerage were an Apellativum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to them or a Genus Imperfectum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the two Species the Lords Spiritual and Lords Temporal which Genus the Logicians define to be Quod speciebus suis non communicatur ex aequo sed alteri magis alteri minus uni speciei immediatè propriè alteri mediatè in ordine ad primariam And that so the Lords Spiritual should still be principally and chiefly meant by the General Name of Peers they Primariò and the Temporal Lords Secundarió Those Logical expressions I know our Asserter understands well who blames others for bringing Illogical arguments therefore I put this to him But that they are not at all Peers of the Realm to speak properly and truly and as they are in the eye of the Law though they have sometimes been stiled so both by themselves and others I have in my former Letter I think made it clear and all that our Asserter saith to the contrary hath not made me change my opinion and I shall say more to it when I come in course to answer what is there said by him In the mean time I shall only add this which I lay for a ground that I do verily believe no instance can be given of an enumeration of some particulars in an Universal Collective Proposition and to leave out that particular which is first in Rank and ought to be first named if any at all be named and to have that to be tacitely implied under the General Term the Signum Collectivum As in this Proposition All the Peers Earls and Baâ—…ons gave such a Iudgement This
specialiter tangentibus tractare consilium impendere and thither they are obliged to come and attend by their Tenure of their Baronies where they sit in their Personal Capacity to do the service which they owe for the Lands they hold of the King Now we will consider if being there upon such an account it can any ways stand with reason and the nature of a Third Estate to esteem them to be so 1. To represent the body of the lesser Clergy as our Asserter will have them to do who else he saith would be in a worse condition than the meanest Clown having no body to represent them in giving Aids and Subsidies first I say that as Subsidies were heretofore given in Parliament which was the ancient Parliamentary way of supplying the necessities of the Crown and Government where the Convocation gave the Supply of the Clergy the Bishops as Members of the House of Lords had nothing to do in it but as Members of the Convocation they had and the Representatives of the lesser Clergy who were chosen by them and made up the Lower House of the Convocation they gave their consents and joyned in that Gift for the whole body of the Clergy the two Houses of Parliament did only ratifie and confirm what the Convocation had done and therefore only the beginning and the end of that Act of Subsidy given by the Clergy not the body of it was openly read in the several Houses of the Lords and Commons So 4 R. 2. the Commons having offered to give an aid so as the Clergy who enjoyed a third part of the Realm would pay one third part of the Summ the Clergy answered That they were not to grant any Aid by Parliament but of their own free wills and therefore willed the Commons to do their duties and they would do theirs This was the ancient way of granting supplies in Parliament where you see the lesser Clergy had their Representatives which it seems our Asserter did not understand and so no wonder if he did mistake as he commonly doth And this I must say further the lesser Clergy as he calls them are little beholding to him to have them to be represented by Bishops having no hand in the choice of them This I am sure puts them into a meaner condition than the meanest Clown who if he have but 40 s. Free-hold gives his voice to whom he will to represent him in Parliament to give his assent to part with his Money and to make any Law to bind him Of later times they have taken up another way of granting publick supplies which is of so much in the Pound which they call a Pound-rate and this brings in the Clergy to pay their proportion who are now as busie as any in electing of Members to Parliament In a word none can represent another in Parliament that is not chosen by him every particular person that hath right of vote being included in the majority of Vote So the whole Clergy being the third Estate of the Realm and the Bishops not being chosen by them they cannot represent that third Estate 2. The Bishops sit not in the House of Lords Ratione Spiritualitatis as was the opinion of all the Judges of England 7 H. 8. in Keilway's Reports in Dr. Standish's Case Les Spiritual Seignieurs nont ascun place en â—…e Parlament chamber per reason de lour Spiritualtie mes solement per reason de lour temporal possessions The Lords Spiritual have no place in the Parliament chamber by reason of their Spiritualty but by reason of their Temporal possessions How then can they be said to be there a Third Estate to represent the Clergy of England when they sit not there as Clergy-men 3. If they be a Third Estate they must have a Negative voice to whatever is proposed in the House if the majority of their opinions be against it And for our Asserter to say that the Custome and so the Law of the Parliament is otherwise and that the two Estates of the Lords Temporal and Spiritual make but one House where they vote intermixedly Why this shews they are not two Estates because they do vote intermixedly for if they were so they must vote severally and not be twisted so together as they are as I said before in my former Letter like a nest of Boxes one within another And think what a disparagement it would be to the House of Lords that two Estates must be clapped together to make them equal to the one Estate of the House of Commons 4. If the Bishops were a Third Estate the Parliament could not act as a Parliament without them for a Parliament is composed and must consist of Three Estates and nothing is binding but what is so passed But we know that in Edward the First 's time there was a Parliament called and held Clero excluso and Laws were there made when none of them were present and many Acts have passed in several Parliaments when the Bishops have all voted against them The Judges in that of 7 H. 8. deliver their opinions for Law Due nostre Sur le Roy poit assetz bien tener son Parlement per luy ses Temporal Seigniors per ses Commons tout sans les Spirituals Seigniors Our Lord the King can hold his Parliament himself with his Temporal Lords and his Commons wholly without the Lords Spiritual These and many other Reasons confirm me in my opinion that Bishops are neither Peers of the Realm nor a Third Estate in Parliament yet they might be both and not invalidate my Position which I at first undertook to prove which was only this that by the Practice and Custome of Parliament and by the Law of the Land Bishops are prohibited from meddling in Parliament as Members of the House of Lords in any Tryal of a Criminal Person where the Charge the Proceedings and the Sentence upon it is Capital and goes to the Loss of Life or Members only one Precedent excepted that extravagant one of 28 H. 6. And my good friend the Asserter who hath almost as many Errata's as Lines in his Book must give me leave to summ up all my Corrections of them in one Distich as Martiall did those of his Friend Fidentinus such another Fidentinus it seems as our Asserter and it was this Emendare tuos O Fidentine libellos Multae non possunt una litura potest And I must say the Verse doth not better quadrare with the product of his Brains which hath so many faults as can only be covered and put out of sight with one rasure from the beginning to the end than this one and the same Name of Fidentinus deciphers the Confidence of them both Nullâ pallescere culpâ And so I shall leave my Friend Fidentinus to learn better manners if he be not altogether incorrigible and apply my self to peruse and answer if I can a Treatise of a worthy Gentleman who is I see of a differing opinion
what Men may say of themselves or passeth under common Estimation of Men but what upon serious Examinition of the Question shall be found to be true I shall endeavour to make it appear that many who held Lands in Cap per Baroniam or per servitium Baroniae were not enobled in Blood nor had Right to demand their Writ of Summons as the Noble Barons had but were to expect the King's Will and Pleasure and were often left out These were secundae Dignitatis Barones or Barons by Tenure only of which some might probably be adopted into the Nobilitas Major afterwards as Barones adscriptij yet at first were not so and this was to them an Honour but to the Bishops a Burthen who held their Lands free before and had no Honour conferred upon them as the rest had For tho it be true that all the great Noble-Men held per Baroniam yet was it not their Tenure which gave them that Right as I shall shew by and by These second sort of Barons were called Barons Peers because they held of the King in Capite as his immediate Free-holders and were stiled Barones Regis for the Word imported then no more but Men holding of the King's Person in Capite These subdivided their Lands to others under the like Military Service these were likewise called Barons from their appearing at their Lord's Court called the Court Baron and Baronagium became a Word of general Signification comprehending those liberè Tenentes or Sutors to the Court Baron who together with the King 's immediate Tenants who were the Barones Regis that is the Kings immediate Free-holders made up the Communitas Angliae and comprehended all Persons except such as held in Villenage Besides these thus made by the King there were others some found here some brought out of Normandy of great Nobility and Extraction who had of their own great Possessions as Earldoms and Counties in this Country and others brought over with the Conquerour out of Normandy of an Inferiour Rank to whom he gave the like Honour out of the Lands of those adhered to Harold which all held of him per Baroniam but by Creation were many of them afterwards made of a higher Rank and were called Comites Regis and Majores Barones Regni they being possessed of the like Honours in their several Countries before The Bishops I conceive were not under any of these Ranks but were called to Parliaments ratione Episcopalis Dignitatis not ratione Tenurae only of which they complained as a Burthen Creation they had none to any higher Honour than Episcopal their Tenure could not give them a greater Honour than to be Barones minores or Barons Peers Neither can I find in any Act of Parliament or Record that they were called Lords before the time of Rich. II. and then first called Lords Spiritual to shew their Honour arose from their Spiritual Function and not from any Temporal Possessions nor the name of Barons applied to them except by themselves who perhaps finding the Burthen of their Service which before was free were willing that others should give them the Title tho there was no more reason that their Tenure by Baron Service should make them Barons than that Knight Service should make the Tenant a Knight Having thus cleared my way I shall in the next place shew that these Barones Minores or Barons Peers were sometimes summoned by Writs to Parliament and sometimes left out The Abbot of Feversham one under the same Rule with the Bishops was summoned to 12 Consecutive Parliaments as Tenant in capite per Baroniam and then left out 19 Edw. 2. Rot. penes remem Dom. Regis in Scall Thomas de Furnival had been sumoned to 30 Parliaments and yet upon an Amerciment in the Exchequer pleads he was no Baron now except he had held in Cap. per Baroniam or part of a Barony he could not have been summoned at all as a Member of Parliament Whether his Plea were allowed doth not appear upon the Record but by this and some other Records in my hand to the same purpose it seems to me that many that held per Baroniam were not Barons but at the best Bannerets or Barons Peers I cannot find by my utmost search that any thing hitherto hath madeit apparent that Baronies were ever annexed to the Possessions of the Bishops but Men have generally taken it for granted that they were so They say that William the first soon after his Reception to the Crown of England did introduce new Tenures and established Counties and Baronies and did then order that Bishops and the Parliamentary Clergy should hold per Baroniam or sicut Baroniam which the Learned Mr. Selden saith in the language of those Times signified the same thing For he saith that tenere de Rege in capite and habere possessiones sicut Baroniam and to be a Baron according to the Laws of those Times are synonimous Seld. Tit. Hon. part 2. pag. 704 Cook Hakewell and others say they hold per Baroniam But the Proofs any that I have met with offer to make good this Division by William or that Tenure per Baroniam did infer more when a minor Baron in my Judgment are not cogent What they urge is taken out of Wendover and from him transcribed by Matth. Paris He first greatly blaming the Act of William hath these Words Episcopatus Abbatias omnes quae Baronias tenebant catenus ab omni servitute saeculari libertatem habuerant sub servitute statuit militars irrotulans singulos Episcopatus Abbatias pro voluntate suâ quot Milites sibi successoribus suis Hostilitatis tempore voluit a singulis exhiberi That is He established under Military Service all Bishopricks and Abbeys which held Baronies and at that time had freedom from all Secular Service inrolling them all and appointing according to his Pleasure what Souldiers in time of War they should severally find unto him and his Successors Mr. Selden finding the contradiction in these Words that their Baronies which should have kept them as he thought free from Secular Service as the words import were the only thing that bound them to it thinks there ought to be a Parenthesis after Baronias in purâ perpetuâ eleemosina eatenus ab omni servitio saeculari c. and makes the words run thus All Bishops and Abbeys that held Baronies in Frankalmoign and in that respect freed from all Secular Service c. And backs this Conjecture by the Authority of Mr. Cambden who he conceives might have seen some Copy where those words were But he need not have put himself to the trouble of that Conjecture had he translated eatenus at that time as the word signifies and never that I know in that respect However finding further that this would not take away all doubt because the words refer not to all Bishopricks and Abbeys but to such only as then possessed
testifies to have seen an Exemplification of it under the Great Seal of Ireland in the time of Henry the fourth testifying the same to have been sent into Ireland by Henry the second for a Form of holding Parliaments in that Kingdom So that we must either admit the Great Seal of Ireland to be forged or confess the Modus as ancient as Henry the second 's time Many admit that it was sent into Ireland as a Modus for that Country but was not so for England which seems to me unreasonable it not being likely we should give them a Patern different from our own who now observe most of the Rules there given Daniel Anno 1133 in the Life of Henry the first will tell you that in his time the word Parliament began to be in use after the Convocation of his Parliament at Salisbury in the 15th Year of his Reign Nay much ancienter even as old as Canutus if we believe the old Book of Sir Edmundsbury who in the fifth Year of his Reign summoned all his Prelates Nobles and Great Men to his Parliament as you may see more fully Rights of the Crown p. 100. By all which of much more that might be added we may see how dangerous it is to judg of Books by the promiscuous use of words I have made this short Digression to the end that what I shall say hereafter may be made clearer I shall now apply my self to the Case of the Clergy and consider their Right to sit in Parliament This Right of theirs must grow since the Conquest from the Tenure of their Land in Capite sicut Baroniam and consequently they cannot be reckoned but amongst the Barons by Tenure and are not properly Barons but Peers no way enobled in Blood nor of longer continuance than the Foundation upon which the Tenure is built continues Thus we see in the Dissolution of Monasteries the Tenure was extinguished The same in Bishopricks as that of Westminster and others where the Corporation being dissolved the Tenure as to them was extinguished I know very well they would not now be thought to sit Ratione Episcop Dignitatis as Bishops but as Barons In that famous Wrangle at Northampton touching Becket who should pronounce Sentence against him The Bishops tell the Lords Non sedemus hic Episcopi sed Barones nos Barones vos Barones pares hic sumus Fitst cap. 10. col 2. Seld. Tit. Hon. part 2. cap. 5. pag. 706. We sit not here Bishops but Barons We Barons and you Barons are here Peers or Equals Not meaning by these words that they were otherwise Peers than such as their Tenure made them which was only to hold in Cap. sicut Baroniam or in the nature of a Barony for although that tenere per Baroniam sicut Baroniam perhaps are all one neither of them imply a Barony but only the Services of a Barony which the Bishops by their Tenure were bound to perform as also the Abbots And I am the more confirmed in this Opinion because I do not find that any Examination was made what their Possessions were nor of how many Knights Fees they consisted but were they more or less the Tenure was the same whereas 't is probable the Possessions of some were above twenty Knights Fees the rate of an Earl others less than thirteen yet still the Tenure and Peerage was the same Neither is any Record or Patent produced nor I think can be where any Barony was annexed to their Possessions 'T is evident that out of one Bishoprick others have been taken as Peterborough out of Lincoln Oxford out of Gloster yet these Bishops came to Parliament and still under the same Tenure and Service In Edward the sixth's time Cranmer had his Episcopal Dignity during Pleasure Was he then a Baron at will We may safely conclude from the Complaint of all Historians of those Times that Tenure in Capite and their Services which arose by it was put upon them as a Burthen not as an Honour but imposed upon them to make them know they were Subjects which they could hardly be brought to believe having such Dependance upon Rome Yet was it not thought fit wholly to exclude them from all Councils and therefore this expedient was found out that they should hold their Lands by doing such Services as Barons did and sit amongst them in Parliament in the nature of Barons which they improved afterwards to the Appellation of themselves by the name of Barons but never could to equal Priviledges with those Persons who were truly such Petrus Blesensis in his Tractate de Institutione Episcopali hath these words which I have occasion to cite more at large towards the end of this Treatise pag. 129. Quidam Episcopi Regum munificentias eleemosynas antiquorum abusivè Baronias Regalia vocant in occasione turpissimae Servitutis se ipsos Barones vocant Some Bishops abusively call the Bounties of Princes and the Alms of their Ancestors Baronies and Royalties and taking occasion from that base Slavery he means certainly the Slavery in performing those Services put upon them by their Tenure call themselves Barons This he much and largely inveighs against from all which it may reasonably be collected that they gave themselves that Title rather than that it was given them by the King who yet sate in Parliament together with the other Barons not as a distinct Estate from them but involved with them as part of a third Estate which was intirely represented in Convocation For it seems to me very clearly that they never were a distinct Estate in Parliament if by Parliament you understand that part of it which consisted of Counts and Barons yet were they the chief and principal part of a third Estate in Parliament in respect of the Convocation which began continued and ended with it and where their Debates Gifts to the King and other Transactions bind only their own Body Neither is it reasonable to believe them a third Estate here otherwise than they are so accounted in other parts of the World to wit a part of that Body the Clergy who being a Select Portion or Lot of the Lords and Embassadours of Christ look'd upon themselves as not accountable to any Secular Tribunal Neither is it material whether they sate mixt with the Laity as perhaps they have sometimes done for this cannot alter their being a third Estate as Clergy-men let their Votes be gathered together or apart Indeed I cannot see how it is possible they should be a third Estate in that House where they sit among the Lords for besides their Unwillingness to own that they sit as Bishops but as Barons I would fain have any Man tell me how it comes to be so Dr. Heylin will tell you that Clerus was never taken for the Bishops distinct from the other Clergy By what Title do they then claim it by any Grant from the King that should be produced
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
Northampton make fully against him as also his Fancy that the Bishops had Right to be present till the definitive Sentence concerning Blood was to be given is against the Opinion of both Houses in the last Parliament Sixthly I have shewed that the Protestation made 11 Richard the Second if it were not a Law was a solemn Confession by themselves that the Canon-Law was against them and further given great Probability that there was in it respect had to the established Law of the Kingdom Seventhly I prove that the Canons are still in force that they are a part of the Law of England and not to be annulled but by act of Parliament and that Irregularity is not taken away by the Reformation Lastly I have given clear Answers to all his pretended Authorities and Reasons urged in his second Chapter and shewed that they are either not to the Purpose or misapplyed or against him I should now come to examine his Precedents in his third Chapter and assert the manner of Tryal of Bishops by common Juries but that is fully done by the learned Author of the Discourse of Peerage and for Precedents if there were any as I think there are not yet the Law being against him they would signifie little Yet least he should think himself neglected I shall in the next Chapter take them into Consideration CHAP. III. I Will not be long in the Examination of his Precedents because in my Opinion the Lords in the last Parliament have determined the Controversie For our Author contends that the Bishops have Right to be present till the definitive Sentence comes to be given and longer if they please for he sets them at Liberty Now the Lords in their explanatory Votes made May 15. 1679. have declared That the Bishops have Right to sit in Court till the Court proceed to the Vote of Guilty or Not Guilty Tho' this their Lordships have now admitted be a Liberty greater than I think their Predecessors ever enjoyed who in Cases of Blood went out at the beginning yet this Vote takes from them all Power Judicature as Peers to the Lords for it gives them no Liberty to pass any Vote but only allows them to sit as Spectators but reserves the Judgment to themselves I perceive this Author is not willing to give much credit to the Relation of Brompton touching what he reporteth of the King 's appealing Earl God-win of the Death of his Brother I will not concern my self in this matter it being before the Conquest and a Story in which the Relaters much differ some say 't was at the Table others in Council why not in both next his Appeal is to the Earls and Barons I wonder our Author doth not say that the Bishops were here meant by Barons For if there were then no Barons some others must be comprehended under that name and not long after our Author tells you the Bishops were comprehended under that Name in the case of Hamel Vid. Leg. Edvar conf cap. 8. nono de decimis apibus where the Name Barons is used before the Conquest I will not give overmuch credit to this Relation of Brompton the rather because William of Malmsbury looks upon it as a Romance for he saith Rumigeruli spargunt Cronica tacent Yet perhaps Brompton's Authority may go hand in hand with Fitz-Stephen But admitting the Story had some Truth in it his Endeavour to prove the Bishops present is not unpleasant He tells you after the Conversion of Ethelbert they were never absent in any Councils of the Nation that were Publick and that there was then no Canon to be afraid of for the Council of Toledo was brought in by Lanfrank some time after First he assumes a Negative they were never absent which cannot be proved except by one who had lived all those times Next he tells you they had no Canon to be afraid of it seems they lived then without Rule I do not believe this Author would have them do so still Thirdly he saith that Council of Toledo take the first or the eleventh the last of them about five hundred years before was first brought in by Lanfrank I think the substance of that Council was observed before but not established as a Canon till the Synod at Westminster of which I have spoke before The Story of the Arch-bishops condemning Queen Emma might be as true as that other of Godwin and both Romantick but however he tells you the Bishops did certainly sit in the County-Courts at all Judgments What their Office was in those Courts I have told you before out of the Laws of Alfred as also you may find the same in Sir Henry Spelman's Gloss. verb. Comes pag. 140 141. where he at large discourses of the Causes to be tryed in those Courts and tells you they were only for the ease of the Poor and things of small value and that the great and powerful men had their Tryals in the Kings Courts and more to the same purpose which the Reader may peruse if he see good and in part are transcribed by the Author of the Letter pag. 108 109 110. Now let any man judge whether the Opinion of Sir Henry Spelman or his Conjecture of Capitalia placita and the Legend of Saint Cuthbert be of most Credit The Author of the Letter tells you that no Capital Crimes were triable in the County-Court But our Author tells us out of the Laws of Edw. the Confes. set out by Henry the first mention is made of Capitalia placita cap. 31. The Title of the Chapter is De Capitalibus Placitis The words follow In summis capitalibus placitis unus Hundredus aut comitatus judicetur à duobus non unus duos judicet Sic inter judices studia diversa sunt ut alii sic alii aliâ—…er fuisse tendunt vincat sententia meliorum cui justicia magis acquieverit Interesse comitatui debent Episcopi Comites caeterae potestates qui dei leges seculi negotia justâ consideratione diffiniant Recordatione curiae Regis nulli negare licet alias licebit per intelligibiles homines placiti nemo de Capitalibus placitis testimonio convincatur c. Unusquisque per pares suos judicandus est In this obscure Law there is nothing at all that sounds like a Tryal in Criminal Matters except our Author will say that in such Cases no man shall be convicted by Witnesses when there is no other way to try matter of Fact except his own Confession for the Words are that no man may be convicted by Testimony Next it is plain Summa and Capitalia placita are joyned together one explaining the other so that I conceive nothing more is meant than considerable Cases where the matter in Law was dubious to the Judges who were not one Bishop and one Earl but Bishops Earls and other great men and the Judgment was not to be given according to the major
by the Earl of Gloster against whom the Bill was found whereas here the Reference is made by both and to the Kingalone Next we find the King here was present with the rest which was not usual if the Lords had proceeded judicially wherever the matter was heard whether in Parliament or else-where Besides it is observable that the word Consilium is twice written with an s whereas if it had been a Parliament the word would have been written with a c as was generally observed by the Writers of those Times In Conclusion this Record makes nothing either to the Bishops Power of judging in Criminal Cases or that Submission of a matter to the King should be a waver of Peerage but was a making the King an Arbitrator for they knew the Verdict was void being not upon Oath I have before denied that such Persons as sate in the Lord's House by virtue of their Office had any Right to be tried by Noble-Men except they had an inheritable Right of their own as well as their Office I am not therefore concerned to examine as to Predial Feudal or Personal Right what is urged by our Author or any other because I have throughout this Discourse maintained that no Man can have any Priviledg or Right of Trial but according to the nature of his Peerage which seems to me not only reasonable but within the plain meaning of Magna Charta that the Triers and Party tried ought to be of the same Condition and capable to undergo the same Penalties in like Case That what the Discourser hath said as to the Regradation of their Peerage when their Office shall be taken away means no more than that Officers shall no longer sit among the Peers not that they had any Right of Peerage during the continuance thereof tho they were placed among them by a particular Law or Usage Neither is our Author's Reason of any force that because Persons enobled in Blood in a Forreign Country shall not try a Peer of England therefore the Parity is not of Blood but of Priviledg in Parliament For he cannot but know that all Laws are originally made for the benefit of those who are born subject to them or adopted into them by Naturalization and such shall have the full benefit of all things appliable to their English Condition as if they were natural born-Subjects Others that are Strangers tho of equal or greater Quality shall not enjoy the Rights invested in the Natives by their Birth but only the Protection and Priviledge of the Laws of that Country where they are during their abode there Another Argument is drawn by our Author from the Proceedings in Cases of Appeal against a Noble-Man at the Suit of the Party He argues thus If in Appeal of Murther or the like at the suit of the Party a Noble-Man shall be tried by a Jury of good Free-holders then their Exemption from being always so tried proceeds from their sitting in Parliament and not from Nobility of Blood and therefore all those who have Right to sit in that House have Right to the same Priviledg But the Bishops have Right to sit in the same House and are called Barons therefore they ought to enjoy the same Priviledge other Barons have This Argument how specious soever it may appear is unconclusive in many respects First It doth not follow that those that have Priviledg to sit in the same House have the same Priviledges to all Intents and Purposes My Lords the Judges and all Justices of the Peace sit upon the same Bench and by the same Commission yet are not equal in all Circumstances Nay my Lords the Bishops themselves though they are of the same Order and Quality yet are not equal in Priviledges I have before shewed that there were Barones Minores who were not properly Barons but so called and might be left out at the King's Pleasure But such as are enobled in Blood may demand their Writs which the Barones Minores could not And if now the Bishops have that Right which is not certain it is because they are to summon the Clergy without which the Parliament would not be compleat as to the Convocation And were it not for that Reason the Bishops might be now wholly left out for they being only Barons by Tenure cannot be in any other Rank than were the Barones Minores who were left out at the King's Pleasure I have before asserted they hold their Possessions per Servitium Baroniae as a Burthen not Honour to them and their sitting among the Lords was only indulged to the Dignity of their Function as Bishops they being indeed no more than Commoners Neither secondly doth it any way follow that because Peers in some Cases shall be tried by a Common Jury therefore those who are properly Commoners and only priviledged to sit among the Lords should participate of the same Honour with them To examine farther into the Reason why in all Criminal Cases at the Suit of the King the Trial shall be by Peers not so in an Appeal for the same Crime Sir Edw. Coke will tell you One reason is because the Trial if it ought to be so must be before a Lord Steward and no Appeal can be brought before a Lord Steward who is but only Temporary but ought to be brought before the Judges in the King 's ordinary Courts of Justice We are likewise further to consider that Inequality of Persons is not of the Law of Nature but of Human Constitution and that the Statute of Magna Charta is but a Confirmation of our ancient Rights in which all Subjects were Pares But since it is apparent that ever since Magna Charta and perhaps long before the Trials at the Suit of the Party have been as they now are we must look upon them as a Branch of the common Law of England never taken away from the Commoners but that the King and Noble-Men as to what concerned the Crown were contented to introduce that manner of Trial as to the Nobles and long use and Custom hath now made it to be received as the Law of England yet the poor Commoner never received that way of Trial as to his own Right who look'd upon the Verdict of twelve substantial Men of his Neighbourhood as much better Security for them and their Heirs than a Trial upon Honour When upon their Appeal it would always have been in the Power of the King to name again the same Lords for Triers which they had before and by that means defeat them of the benefit of their Appeal to which the Law gives so great respect that upon an Appeal brought all Proceedings at the King's Suit should as has been taken for Law stay till the Appeal were determined because a particular wrong to a private Person in the Murther of an Husband or very near Relation is of greater Consideration to the Party than the general loss of a Subject is to the King I shall
the Parliament till the 49th of H. 3. This I think may be enough to satisfy any reasonable Man that the Government was the same before the 49th of H. 3. that 't was after and that it had not its Rise from Rebellion nor yet from Conquest or Usurpation but from a Consent binding on both sides And thus I have shewn which Mr. Hunt does not that our Government exactly answers his Rule or Idea of a lawful Government which he says Is the Representative of the People in what they are to be governed by it and by their Consent to itâ—… in the first erecting thereof they do trust their Governours with the Rule and Order of their Lives and Estates c. But 2. He puts such Matter in Issue for asserting the present Government as can never be maintained That William the first made no Conquest of England and that the Interest of the Commons in Parliament did not begin by Rebellion in the 49th of H. 3. have been thought good Mediums to settle the Foundations of our Government Mr. Hunt indeed looks upon all Labours to this purpose as impertinent But this he says is certain That whatever thing of Government is introduced by the Consent of the Prince and that Aleration assented to and embraced avow'd and own'd by every Man of the Community by Actions and other open Declarations of a full consent and this continued for Centuries of Years and in all that time applauded and found agreeable to the Interest of the Prince and People and the old Government abolish'd and impracticable the very matter of it ceasing and it become a thing impossible as well as not desirable to restore it I say whatever Constitution is thus introduced and establish'd is as unmoveable as unalterable or no Government is as if it had been ever so Wherefore to shew that our Government was so introduced and establish'd that it ought not to be altered according to him we must prove every one of these following Particulars 1. That admitting a Conquest and that the Commons came into Parliament by rebelling against the Heir of the Conqueror yet theywere introduced by the legal Consent of the Prince 2. That this Constitution was assented to and embraced avowid and own'd by every Man in the Community by Actions and other open Declarations of a full Consent 3. That for Centuries of Years this has constantly been applauded and found agreeable to the Interest of Prince and People 4. That though there were a Conquest yet the Right of Conquest is abolished 5. That the exercise of a Government according to such a Right is become impracticable impossible and not desirable by any 6. That the very Matter of it ceases I may well without further inlarging conclude this Head with his own words If our Government must take its Fate upon such Issues as these I am sure we shall not long hold it 3dly But then he yields so much of the Fact put in Issue by me as sets aside the Foundation of his whole Post-script and yet admit he answers all Objections against his Post-script the Grounds which I go upon are of the most general Use. That there was an absolute Conquest of the Nation by William the first and that he admitted none to any Shares in the Government but such as derived their Interest from his Bounty is contended for by many Tanquam pro aris focis And tho the History of King William the first his entring upon the Government is very strong against them and may be the first thing considerable Yet from the supposition that the Tenants in Chief such as were the Suitors at the Curia made the Parliament where the absolute Government of the Nation was plac'd they very strongly may infer a Conquest Whereas the Proof of the difference of the Curia Regis and the Concilium Pambritannicum or Parliament shews that all the pretence of Conquest is out of doors and consequently the Government is such as now it is by free Consent on all sides not founded on Usurpation upon the Rights of any nor is there the least pretence of unsettling what as the great Fortescue observes has not chang'd with the People or Rulers Admit a Conquest and the Inheritance which every one claims in the Laws will be maintainable only as a naked Right and naked Rights are thin and metaphysical Notions which few are Masters or Judges of But Conquest or no Conquest a Government derived from the Pleasure of one or consented to by all are Questions which any ordinary Capacity is able to judg of when the Testimonies rely'd on by both sides are laid before them And though Matters depending upon Testimony are not capable of Demonstration so far as they depend upon that yet where Testimonies are made use of for the laying a Foundation upon which some Metaphysical Notions of Right are built it is possible to demonstrate that the Testimonies will not serve the purpose for which they are brought but are clearly on the otherside And it that be done it wholly silences the Dispute better than Mr. Hunt's Scheme of Probabilities or his Metaphysical nay or Physical Notions of the Right of Fatherhood If therefore it be shewn that there is not the least shadow for pretence of a Conquest or that only such as derived what they had from the Bounty of the Prince were interested in the Government and Legislature certainly the whole Frame of Consequences built upon such Supposition easily falls to the ground I appeal to the World Whether what Mr. Hunt thought fit to say for the preventing the World's being troubled with such impertinent Labours and to divert those that thus employ themselves to Undertakings more useful to the Publick can be of such a general Use and Satisfaction as the destroying those Foundations which are laid for a Government not known to our Laws nor own'd in our so well constituted and so ancient Frame the Admittance of which would root up the very Foundations He says our Government was always materially the same When according to him 't was neither materially nor formally the same it is now Whereas this Labour which he explodes shews that 't was always both materially and formally the same and therefore unalterable If there were a Conquest that Conquest establish'd a Government or it did not If it establish'd a Government then according to him no following Consent even of the Conqueror can divest him of any part of that Right which was given by the Conquest For upon the Bishops account he tells us They cannot be detruded from that Place they bear in the Constitution of the Government for that no Government can be legally or by any lawful Power changed but must remain for ever once establish'd and it can be no less than Treason of State to attempt a Change No Authority in the World is competent to make any Alteration If it be said This is contrary to the
p. 146. Gr. Qu p. 146. Ridley p. 86. Gr. Qu. p. 147. Walling p. 109. Baker p. 1â—…4 Dan. p. 214 An 1323. Seld. pri Bar. p. 147. Gr. Qu. p. 144. Gr. Qu. p. 126. 15. E. 3. N. 8 Gr. Qu. p. 128. Gr. Qu p. 132. 31 Edw 1 a N. B. the Submission of the matter to the K. without any Exception by the Lords makes the King sole Iudg and so the Case can no longer go on in any Parliamentary Way b The reason I conceive why the Reference to the King was made by them both was because no Proceedings could be in Parliament in regard the Vâ—… dict was nâ—… returned upon Oath and so in it self null Disc. of Peerage p. 4. Gr. Qu. p. 132. Gr. Qu. p. 134. Gr. Qu. p. 135. Gr Qu. p. 14â—… Gr. Qu. p. 142. Gr. Qu. p. 143. Cook 3 Inst p. 30. 4 E 3. N. 16 17. Milites 5 E. 3. N. 15. Cotton Antid Brittan p. 56. Mr. Hunt p. 156. Hunt p. 133. 166. Dr. Brady against Jani Angl. c. p. 26. c 29. a Ant. Brit. p. 59. b Mr Hunt p. 148. Mr. Hunt p. 150. The King 's ordiâ—…ry setlâ—…d nâ—… established Court was a different shing from the Confluence of Baâ—…ons and Tenents in Capite at those thre great Feasts which were set and appointed times for great and General Councils if there were an Appearance sufficient Brady against Jani Anglorum c. pag. 30. Dr Brady against Jani Angl. p. 30. Vid. 1. Instit. f. 69 b Escuage nest q. penalty puâ—… non se sans de Service de Chivaler Bruertons c. 6. Rep. f. 2. a. Ant. Brit. p. 59 Ibid. p. 57. Ant. Brit. p. 59 Anti Brit. p. 57. Rot. Pat. 48. H. 3. infra P. 30. Rot. Pat. 42. H 3. The Original Record is not now to be found but I have seen an Abridgment of it done by Mr. Selden Mr. W. his second Argument considered Pol. Vir. lib. 11. fol. 188. 16 H. 1. 1 Rolls fol. 11. Ead. lib. 3. f. 58. Spelm. Coâ—…c vol. 2. f. 35. Cron. Eliense Vid. Jus Angl. p. 211. Hist. Norm gest a Stepho Rege f. 93 Antid Brit. p. 59. Mr. W. his third Agument fully answered Anti. Brit. p. 59. This the Hinge of the Controversy as to the Fact Whether the Commons of England were introduced into Parliament or had any Share or Votes in making of Laws for the Government of the Kingdom or had any Communication in Affairs of State otherwise than as represented by the Tenants in Capite before the 49th of Hen. 3. vid. Dr. Brady a-against Mr. Petyt p. 1 2. Mr. Hunt p. 152. Rot. Parl. 4. E. 3. N. 3. les Piers Counts Barons Counts Barons les Piers 4 E. 2. Rot. Parl. Rot. Cart. 5. â—…o m5 n. 33. Rot. Sat. 25. E. 1. n. 38. Rot. Iarl 15 E. 3. a. 50. d. Sta. Westm. 1. 3E 1. 2. Iusti. 156. Rot. Pat. 48 H. 3. paâ—…s unica m. 8. d. Rot. Pat. 43 H. 3. pars unica in 8. n. 10. Vid. Jan. Angl. facies nova p. 246. Both Mr W. and Mr. Hunt argue this may Vid. Mr. H. p. 152. Mr. Hunt p. 152. Eademrus f. 49. Vid. Ian. Angl. facies 〈◊〉 p. 214. â—…ad f. 58. Ricard Hagustaldensâ—… f. 312. Croniceâ—… Eliense Eâ—… vet Regist in Archivis Cant. Arch. Vid Ian. Angl. c. p. 221. Claus. 15. Jo p. 2. m. 7. vid. Ian. c. p. 231. Rot. Claus. 38. H. 3. m 7. c. 2. Ian. Angl. c. p. 245. Rot. Claus. 21. H. 3. m. 7. d. Magna Charta 9. H. 3. Mr. Hunt p. 152. Vid. Jus Angl. ab antiquo c. 8. Eadm supra Rich. Hagulst Ant. Brit. p. 60. Matth. Paris Addit f. 217. Matth. Prâ—…is fol. 978. Ibid. Rot. Pat. 42. H. 3. m. 10. Rot. Pat. 42 H. 3 m. 4. Stat. St. p 27 E. 3. Dr. Brady against Mr. Petyt p. 126. Dr. Brady against Mr. Petyt p. 130. Mr. Hunt p. 156. Mr. Hunt p 1â—…8 Mistakes Mr. Hunt p. 155. Ibid. p. 154. Mr. Hunt p. 154. Mr. Hunt p. 151 179. Vid. Jus Anglorum ab antiquo Addit p. 20 to 32. Mr. Hunt p. 149. See Escuage taxt at such a a Military Assembly Inter Com. de Termin Sâ—… Mich. 4â—… H. 3. r. 4. â—…id Ian. Ang. p 240. Rot. Claus. 47. H. 3. m. 7. do so Page 156. Seld. Tit. Hon. fol. 592. Mr. Hunt p. 148. Rot. Claus. 26 H. 3. pars 1. m. 10. P. 131. P. 148. Contradictio in Terminis P. 165. Pag. 160. Mr. Hunt p. 159. So Dr. Brady consesses out of Mat. Paris against Jan. Ang. c. p. 6 6 Vid. Jus Ang. p 154. Et de scutagiis assidendis submoneri faciemus c. King John's Charter Mr. Hunt p. 166. Page 151. Vid. Jan. Ang. Facies nova throughout Page 156. Mr. Hunt p. 157. Page 157. Mr. Hunt p. 158 Claus. 47. H. 3. m. 7. d. Claus. 29. E. 1. m. 14 d. Mr. Hunt 〈◊〉 p. 158. Vid. Jus Ang. ab antiquo p. 108. Benedictus Abbas sub Effigie Iulij A. 11. f. 72. in Bib. Cot. Cam Ordines Angl. p. 61. Quarto Vid. Jan. Ang. facies nova p. 189. Tit. of Hon. f. 583. Hoveden f. 494. Mr. Hunt p. 153. Magna Charta H. 1. Spelman's Glos. Tit. Hereâ—…tum Spelm. Glos. Tit. Heriot Magna Charta Johannis Rs. P. 163 164. After the Statute of Qua Emptores entire Services aâ—… Fealty Hâ—…rsots and the like might â—…e multiolyed to the Lord upon the Tenants parcelling out the Lands but not before Vid. Talbot's c 8. R. f. 105 a. So Bruerton's c. 6. Rep. f 1. 2. 1 Inst. f. 93. a. Mirror p. 7. 1 Inst. f. 58. The Author of Antid Brit. builds much upon this Authority Antid p. 10. 2 Inst. f. 65. 1 Inst. ibid. Mirror p. 11. Ibid. p. 7. Vid. Spelman 's Councils Vol. 1. f. 340. Rex non potuit distrahere patrimonium Regni sine assensu procerum Dyer 〈◊〉 Eliz. f. 229. b. Magna Charta cap. 32. 2 Inst. f. 66. 1 Instit. f. 142. 2 Instit. f. 67. 14 H. 3. Tit. Prerog Stat. de Hibernia 1 Inst. f. 67. a. Vid. Jus Ang. p. 34 to 58 p. 139. Mr. Petyt's Preface p. 20. So Roâ—… de temp R's Jo. Lord Hales his Collections in Lincolns-Inn lib. Jus Angl. p. 80 to 100. Ibid. p. 112 to 117. Addit p. 90. Jus Angl. p. 99 to 106. Mr. Hunt p. 130. Survey of the Leviathan p. 109. Survey of the Lev. p. 148. Mr. Hunt p. 153. Page 155. Ibid. pag. 157. Supra p. 212. Mr. Hunt p. 122. Ibid. p. 131. Page 129. Page 163. Page 164. Page 173. Page 2. Page 179 180. Page 156. Vid. Postscript p. 28. Mr. Hunt p. 155. Page 148. Page 151. Fortescue de laudibus Legum Ang. p. 38. b. Vocatio Congregatio Populorum Gentium omnium qui ibi omnes convenire debent universi qui sub protectione pace Domini Regis degunt consistunt in Regno praedicto ibi