from me and hath much more of reason and something though not much more of civility and fairness in the maintaining of it so as whether or no his reasons will convince me I know not but if they do I will certainly grant it for my Maxime is still Amicus Plato amicus Socrates sed magis amica Veritas The Writer of this Treatise intituled The Grand Question concerning the Bishops right to vote in Parliament in Cases Capital Stated and Argued doth state the Question right that is Whether the Bishops may be present and vote Judicially in Capital Cases which come to be judged in Parliament either in giving the Judgement it self or in resolving and determining any circumstance preparatory and leading to that Judgement Then he sets down some things granted on both sides as 1. That Bishops do sit in Parliament by vertue of their Baronies and are bound to serve the King there From this he infers they have a Right of Judicature which is not denied but the question is as he saith himself what this Judicature is 2 That they sit by the same kind of Writ that other Barons do Upon which he would infer that they are impowered and required to confer and treat of all the weighty affairs that shall be brought before them the King having not limited nor restrained the one more than the other But it follows not because all are called together by the same authority that therefore the same duty is incumbent upon all if there be a higher power that directs what every ones duty is to do when they are come together Now the King acts in a higher Sphere by the Law of the Land and the law and practice of Parliament which prohibits Bishops from meddling with judging of Capital Causes in Parliament nor did they ever do it but in one extravagant proceeding in 28 H. 6. where nothing was regular nor Parliamentary from the beginning to the end which I look upon as altogether insignificant to alter what is so setled by Law and constant Custome therefore the Kings Writ of Summons cannot dispence with that to make that lawful which in it self is unlawful as I have sufficiently proved it And I will now go a little further in it than I did before for hitherto I have only insisted upon the Law of Parliaments as a thing setled in Parliament by the Constituons of Clarendon in Henry the Second's time and the Protestation of the Bishops enrolled in Parliament by the King Lords and Commons 11 R. 2. but now I will deliver my opinion which I submit to better Judgements that they lye still under a Restraint by the Canon Law which by the Statute 25 H. 8. c. 12. which was repealed 1 and 2 Phil. and Mar. but revived 1 Eliz. is still of force where it is not repugnant to the Laws of the Realm which we are sure this branch of it restraining Bishops from judging Capitally is not so far from it that it is confirmed and strengthened by the Law of the Land 3. The third Particular in which he saith all agree is That they have their Votes in Bills of Attainder acting in their Legislative capacity which is as much a Case of Blood as the other and perhaps as much forbidden by the Canon But I desire this worthy Person to consider that the Practice of Parliament is the Law of Parliament and is the commanding Law for regulating the Proceedings of Parliament and that hath over-ruled this Point that in the making of a Law every Free-man of the Kingdom doth give his consent either explicitly if he be a Member of either House or implicitly by his Representative for every Free-man of the Kingdome is there present or represented And it is the Fundamental Constitution of our English Freedome that no man can be bound by any Law but what himself hath consented to now a Bill of Attainder is as much a Law as any Statute Law of the Kingdom Therefore Bishops have acted in a Legislative capacity to judge and condemn Capitally as several Precedents we have of it in Henry the Eight's time but not in a judicial capacity And to say the Canon Law prohibits one as much as the other the Statute of 25 H. 8. clears that point which takes away the force of the Canon in the one not to abridge Members of Parliament from voting in the Legislative way and strengthens it in the other forbidding Bishops to vote Judicially in Cases of Blood Yet if you will have me deliver you freely my opinion in it I think it is an abuse crept in since Henry the Eight's time for before none were judged by Bill but such as had been slain in open War or Tryed Condemned and Executed by Commission and then the proceedings brought into Parliament and there approved of and the Attainder confirmed but under Henry the Eighth several persons were condemned by Bill and the Earl of Strafford lately in our memories which seems now to be authorized by the Practice of Parliament Sir Edw. Cooke tells a story which he had from Sir Thomas Gaudy one of the Judges of the Kings-bench how the King had commanded Cromwel and the Earl of Essex to attend the Justices and know of them if a man who was forth coming should be condemned by Act of Parliament without being heard who after some fencing answered if it were so it could not be afterwards called into question and Cromwel himself was not long after so served but this is by the way Multa quae fieri non debent facta valent I have been a little the longer in these particulars because it will much smooth our way in the following discourse And this worthy Gentleman must give me leave to say That he needed not have put himself to all that trouble of his first Chapter in telling us of the mighty power the Clergy had in the Primitive times in the ordering of Secular affairs which certainly was more by way of Counsel than any thing of Authority by way of Judgement and in a Judicial way And he will avow to me I doubt not that the ministery of the word was a full employment for the Apostles and so for Bishops who call themselves their Successors as well as serving of Tables and other ministerial duties was a full employment for those whom he calls the Treasurers of the Church and therefore they said it for themselves and left it as a Rule for their Successors even to Bishops and all other dispencers of the Word and Sacraments that it was not reason they should leave the Word of God and serve Tables Which it seems was a Non est Consonum by the Law of God just as by the Common Law of the Kingdom a Writ was provided declaring it to be likewise a Non est Consonum and to be Contra morem Consuetudinem Regni that Clergy-men should be employed in Secular affairs This indeed I hinted at then as I gave also some little touch at
would run through all the Tryals upon Record in that I have omitted four in that 4 E. 3. I shall give you an account of those Tryals in that Parliament and you will see that I could have no sinister end in not mentioning them and that all of them proved and confirmed my assertion that the Bishops had no part in any of them I expressed as much as was necessary to prove they were not present at Roger de Mortimers Earl of March who was the chief and the principal of those Delinquents and whose Tryal was the leading Case to all the rest I give you the words of the Record how after the exhibiting of the Articles against him the King bespake the Judges the Peers who were to judge him and charged them in these words Dont le dit Sr. le Roy vous charge Counts Barons les Piers de son Royalme que de st come cest choses touchent principalement a lui a vous a tout le people c. Therefore our said Lord the King charges you the Earls Barons Peers of his Realm that as these things chiefly concern him and you and all the people c. You give righteous Judgment I ask now if this be not as clear as the Sun at noon-day that by the words of this Record I charge you the Earls Barons Peers of the Realm which is the same as if he had said I charge you Earls and Barons who are the Peers of the Realm can be no otherwise understood but that only the Earls and Barons are the Peers that are there charged and none else to give this righteous Judgment The Earls and Barons are the two Species particularly enumerated and Peers is the genus which comprehends both And the same persons whom the King had so charged are they who tryed and gave Judgement upon the Earl of March as the Record shews it saying Les queux Countes Barons Piers c. did judge him guilty of those Treasons And the very same persons did give Judgement immediately in that very Parliament upon the rest viz. Sir Simon de Bereford John Mautravers Boeges de Bayons and the rest Therefore my not mentioning their Tryals which our Asserter lays to my charge as a Crime and a not doing what I had engaged my self to do which was to run through all the Tryals in those Parliament Rolls could not be designedly done with an intention to conceal any thing which made against me as it is maliciously and very falsely interpreted for they all made for me and it was a passing over sub silentio of so many Precedents that confirmed and fortified what I asserted And should you Sir ask me why I omitted the mentioning of them I profess I could give you no good account of it but that it was a meer inadvertency When the question first arose about the Judicature of the Bishops I took some short notes of some Copies of Records that I had and then seeing that all those particular Tryals in 4 E. 3. hung all upon one string and were managed by the same persons it seems I thought it then sufficient to set down the proceedings in the first which was the rule and foundation of the proceedings in the rest and afterwards when I came upon your request to take a little more pains in making my enquiry into the usage of ancient Parliaments I was afterwards more exact in it but when I wrote my Letter to you I made use of my notes which I had taken of the first Parliament and particularly of 4 E. 3. where these other Tryals as I say were left out But I shall now give you an account what they are and you will see it was not for my advantage to conceal them nor would it have been for our Asserters advantage if they had been mentioned but he quarrels at every thing Only give me leave before I come to that to set it down as a general Rule and a very true one That wherever there is an enumeration of particulars of several ranks and degrees which goes downwards beginning with the higher and ending with a lower and in the close a general expression is of Others to be added to and joined with them those others must not be of a higher rank and a superiour degree to that particular which is last mentioned but either of the same degree or of a lower This is a judged Case even in the business of Bishops in Cokes second Report in the Arch-bishop of Canterbury's Case p. 46. Ad este adjuge que Evesques ne sont include deins le Statute 13 Eliz. c. 10. It hath been adjudged that Bishops are not included in the Statute 13 Eliz. c. 10. which saith That Colledges Deans and Chapters Parsons Vicars and then concludes and Others having Spiritual Promotions that these last words cannot include Bishops for reasons before given which reasons are upon the Statute of 31 H. 8. concerning the dissolution of Abbies which mentioning their coming into the Kings hand by Renouncing Relinquishing Forfeiture Giving up c. and concludes with general words Or any other means this cannot be understood of an Act of Parliament which is a higher way of conveyance than any of those specified So Sir Edward Coke upon the Statute of Westminster the second c. 41. which saith Si Abbates Priores Custodes Hospitalium aliarum domorum Religiosarum c. hath this Comment Seeing this Act begins with Abbots c. and concludeth with other Religious Houses Bishops are not comprehended within this Act for they are superiour to Abbots c. and these words Other Religious Houses shall extend to Houses inferiour to them that were mentioned before So I conclude that the Record saying Earls and Barons and Peers c. the general words And Peers can comprehend none but some other Peers equal only or inferiour to Barons and not any above them as I am sure Bishops will say they are And I will tell you when those of a higher degree may and must be comprehended under a general expression that is when the Enumeration or Climax for so I may call it goes upwards beginning with a lower Rank and rising higher in those which they particularize As if it be said Barons Earls and all other Peers here Marquesses and Dukes will be comprehended and Bishops also would be if they were Peers which they are not but still I say if the enumeration descend none higher than the last mentioned can be understood to be meant by any general clause I think you are satisfied that the E. of March was Tryed and Judged only by the Temporal Lords to whom the K. had committed his Tryal and charged them only with it Sir Simon de Bereford was the next who was Tryed and by the same Persons the Record is Item en mesme le Parlement si chargea nostre Sur le Roy les ditz Countes Barons Piers a donner droit loyal Iugement come affiert
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
Coronae tenta coram Domino E. Rege in pleno Parliamento suo c. Mem. Thomas de Berkeley Miles venit coram Rege in pleno Parliamento suo allocutus de hoc c. about the murther of Edward the Second and asked how he would be tryed Ponit se super Patriam So twelve Knights were empannelled who did acquit him I do not look upon this as a Tryal by the House of Peers acting in their ordinary Judicial Capacity There was some other Court in those times in time of Parliament where the Peers probably were the principal Judges but then were added to them some great Officers of the Crown and of the Judges of Westminster-Hall before whom those Pleas of the Crown were held I confess this is to me Terra incognita a thing of which I can give no very good account But I think one may affirm with confidence that no Prelates were amongst them for they would have been mentioned if they had been there as in all Criminal Causes which were Capital or in any thing concerning such Causes I observe they were And even in this Case of Sir Thomas Berckley the next Parliament N. 18. it is said â—…tem en mesme le Parlement si prierent les Prelatz Countes 〈◊〉 Barons pout Mr. Thomas de Berkley a nostre Sur le Roy â—…il lui voustst deliver de meynprise c. Item in the same Parliament the Prelates Earls and Barons besought the King that he would set Sir Thomas Berkley at liberty from his Mainprize I do observe they are always named and never omitted if any else be named which is my Postulatum to our Asserter and not as he injuriously would put it upon me p. 56. of his Pamphlet That I should maintain That the Prelates are in all Cases particularly named or else they cannot be thought to be there and then to disprove it quotes a Bill of Subsidy where the words are Les Seigneurs Communes si sont assentez The Lords and Commons have agreed And Semble as Seigneurs du Parlement It seems to the Lords of Parliament and a hundred such instances more I know he may give And the Trifler could not but know that I could intend it of no other but of the matters in question which were Judgements in Criminal Causes And I shall add but this more to shew the improbability of the Prelates of those times being at all employed in Tryals of that nature and least of all that we should imagine they could be comprized under general expressions which if it were would argue an unquestionable right and title in them to such a Judicature Let us consider the Statute made but two years before it is 2 E. 3. c. 2. which confirms a Statute formerly made 27 E. 1. c. 3. which Enacts That the Justices of Gaol delivery which are sent down into the several Counties when they enquire of Felonies and Murthers if one of them be a Clerk then some discreet Knight of that County shall be associate to him that is the Lay-man and shall deliver the Gaol We see how careful they were then that no Church-man should take Cognizance of Matters of Blood Canon Law Common Law and Statute Law did prohibit it And now to follow my Gentleman to the Parliament 5 E. 3. in which he tells me I have not been fortunate in the choice of my Topick because that Parliament being called for the redress of the Peace and the Bishops saying It did not properly belong to them to give the King counsel for the keeping of the Peace of the Kingdome signified nothing But had they said it did not all belong to them it had been somewhat to the purpose But under this Gentlemans favour I think it is to the purpose to shew that the Bishops did then believe and acknowledge that it did not properly belong to them to look to the keeping of the Peace that it was not their proper work which implies that they conceived their duty and employment to lie another way And it is a strong argument à minore that if they might not do that and advise the King in doing what was necessary for the keeping of the Peace and punishing the breakers of it much less could they be put upon it to judge in Matters of Blood And for them to say that It did not properly belong to them was a little softer and more respectful to the King to excuse themselves from doing what he required of them for giving their advice than if they had bluntly said That it was not at all of their duty to give such advice which had grated a little too much and had been a kind of retorting it upon the King for requiring a thing in it self improper and unreasonable And yet they did as strongly put it off from themselves saying It did not properly belong to them for no prudent and sober man will do a thing that is not proper for him nor can it be required of him that he should So I think my Topick was very good and I may say I am not altogether unfortunate to have to deal with so weak and impertinent an Adversary What he saith in the Case of Sir John Grey and Sir William de la Zouch of Bishops that they are sometimes comprehended under the general word of Les Grantz I never denied it but in that place where the King did charge Toutz les Countes Barons autres Grantz en lour foies ligeances c. All the Earls Barons and other great men c. I say that Bishops cannot be comprehended there because in that place it can be understood but of such great persons whose Rank is after the Barons where I am sure no Clerk of the Parliament durst ever rank the Prelates And another Rule which I stand upon is That if any one Bench of the House of Peers be named and specified as that of Earls or Barons that of the Bishops if the Bishops were present is never left out but always first placed The next scratch he gives me is upon the Case of Sir William Thorp 25 E. 3. upon my inferring that by the General Term of the Grantz in that Parliament who approved of the Judgement of death given upon Thorp it cannot be supposed that the Bishops are understood because they tell the King that if such a Case should happen afterwards the King might call any of those Grantz whom he pleased and by their advice give such a Judgement of himself which I say could not be meant of Bishops because it was no employment for them to assist in Judgements of death Upon this my Gentleman is pleased in good serious earnest as he scoffingly expresses it to ask if this be not petere Principium to beg what I am to prove And I answer in true serious earnest that I do not petere Principium not beg the Question for the Question is first general Whether Bishops in Parliament can be employed in
that I confess they might be so because it was in passing an Act of Parliament to confirm their Attainder But my Gentleman is mistaken as he commonly is almost in all his Assertions for the Cases are not parallel the Earls of Kent Huntington and Salisbury had no Tryal had not been legally condemned and attainted but being taken in Circester by the Townsmen rising upon them were by them in a tumultuary manner put to death and the House of Peers afterwards in a judicial way adjudged the fact of those Lords Treason and them Traytors and this was done only by the Temporal Lords who are there particularly named But the Earl of Cambridge and the Lord Scroope had been Tryed Condemned and Executed at Southampton and this Judgement afterwards was brought into Parliament and there confirmed by Act of Parliam where the Bishops were and might be present but our Asserter hath ill luck in all his allegations And he will have as ill luck in what he saith to the Earl of Northumberland's Case 5 H. 4. where I am sure he begs the Question and doth Disputare ex non concesso for whereever Lords or Peers of Parliament are mentioned he will have the Bishops to be comprehended whereas those general words as all other such are to be understood Secundum subjectam materiam If it be in a Case where the Bishops are particularly by the Law of the Land and the continual practice in the execution of that Law excluded and others are comprized under the same general expression it must be understood of them only and not of those upon whom there is such a bar Now they who will have the Bishops to be Peers do not make them the sole and only Peers but allow Earls and Barons to be Peers with them But I do not allow them to be Peers at all our Asserter will prove them to be Peers by two Records Mautravers Case 4 E. 3. and their Protestation 11 R. 2. I have already given an account of what is in Mautravers Case the words are All the Peers the Earls and Barons being met c. Is it not ridiculous to expound this that by All the Peers is meant only the Bishops as if the dignity of the Peerage did principally belong to them that they should be Peers Sans queue as the French denominate a thing that belongs to some particular person more properly and in a more eminent degree than it doth to any body else Or is it not more rational and indeed only so to understand this expression to import that the Earls and Barons were the Peers who then met and that saying All the Peers the Earls and Barons c. the Earls and Barons are an Exegesis an exposition of the foregoing general denomination of Peers so Mautravers Case makes nothing for him but much against him And as to their own Protestation 11 R. 2. indeed they call themselves Peers there but that doth not make them so I have spoken to this point already very fully and sorry I am that I am forced to do it again and to do it so often but he leads me to it who doth as the Proverb saith Reciprocare serram go over and over the same thing as much as ever any man did I think and as often mistake The force of my Argument to prove that by the general appellation of the Lords who protested against the Kings delivering the Earls Petition to the Judges to have their opinion and judged the fact themselves not to be Treason but a Trespass could not be meant Bishops because the Record saith Sur quoy le dit Conte molt humblement remercia le Roy les ditz Seigneurs ses Piers de lour droiturel Iugement Whereupon the said Earl very humbly thanked the King and the said Lords his Peers for their right Iudgement Now the Bishops could not be Peers to the Earl who could not try him nor be tryed by him they being to be tryed only by Commoners and Commoners to try them if there be occasion of which more shall be said afterwards in its proper place I will here only observe one thing that our Asserter hath it instead of Humbly thanked Humbly reverenceth the King which he takes out of the Pamphlet that goes under the name of Mr. Seldens Baronage which I have ever looked upon as a spurious Book not made by Mr. Selden who would never have so translated Remercia and being full of faults and falsehoods yet this Book and Sir Robert Cotton's Abridgment which hath likewise faults enough are the chief Oracles that he consults and which do many times deceive him as the ancient Oracles did those who resorted to them Of as little signification is what he adds of the Lords of Parliament declaring the action of Henry Percy who was killed at the Battel of Shrewsbury to be Treason where he doth assure you the Bishops were present and you shall have his Oath for it I dare say if you will And how doth he prove it Why saith he the Arch-bishop of Canterbury was present at the former Iudgement for in express words he prayed the King that forasmuch as he and other Bishops were suspected to have been of confederacy with Henry Percy that the Earl of Northumberland would now publish the truth whereupon the Earl by the Kings command upon his Oath purged them all And then learnedly argues That here was no departure of the Arch-bishop and of the other Bishops concerned And I believe him for in truth here is a good proof that they were all present but to be purged themselves that they should not be thought Criminal not to act as Judges which is what our worthy Asserter doth assert and what he would have us think that he fully proves which he doth more solito that is Cujus contrarium c. Then my Gentleman for he is an active Gentleman makes an Alman leap to the very end of the last leaf of Sir Robert Cotton's Abridgement where he finds a marginal note of Mr. Prynn's to this purpose That the three Estates must concur to make a Parliament or Richard the Third's title would still be ambiguous and this he thrusts in here by head and shoulders I understand not how to the present purpose I think only to have the occasion to say that Mr. Prynn knew better of Records and what Plein Parlament meaneth than I and another whom he joyns with me and twenty more such as we are which I deny not though he should add to the number himself and forty more who were no wiser than he who all of them would not make our ballance two grains the heavier Then he comes to the Case of the Earl of Northumberland and the Lord Bardolph 7 H. 4. which he saith I say is like to that of the Earls of Kent Huntington and Salisbury 2 H. 4. and that is true for in both those Cases those Lords after their deaths having had their lives taken from them in a
Baronies for ought appears of elder time which he denies any did before the time of William the first of which perhaps more anon doth believe that this Tenure was enacted by some Parliament in William's time preceding to this whose Journals or Records are now lost yet adds for a further Proof the Authority of an ancient Manuscript in his hand belonging it seems to the Abbey of Ramsey of Matth. Paris where over the Year 1070 are inserted these Words In this Year the Servitium Baroniae was imposed upon Ramsey This perhaps might equally concern other Abbies yet seems but a weak Proof of the matter in question as to the Bishops did not somewhat in Ingulphus and the subsequent Practice give some Light to the Business But neither Laws nor Practice ought to be forced or stretched to a greater Latitude than the natural Construction of the Words will bear It cannot reasonably be denied but that in the Times of our Ancestors when Learning in Lay-men was very rare that the Clergy bare a great sway in the Councils of Princes and Great Men who busied themselves in little more then Feats of Arms and Hospitality But the Clergy a wary and vigilant sort of People guided by the subtile Heads of Rome under whose Banner they always fought what under pretences of Piety Satisfaction for Sins commited Redemption of Souls out of Purgatory and what not captivated the Consciences and drained the Purses of most of the ignorant Multitude Nay so holy was their Function and so sacred their Persons that no Secular Tribunal was by them thought sanctified enough to question their Actions but they still pressed to be remitted to their own or by their Appeals to Rome frustrated the Designs of the Civil Magistrate William the first being desirous to put a stop to this exorbitant Pride and growing Power of these Men and yet not disgrace their Calling did as before is mentioned out of Mat. Paris ordain that the Clergy should not be wholly exempted from all Secular Service and probably might before that have altered their Tenure which most-what before was in Frankalmoign unto the Tenure in capite sicut Baroniam or in the nature of a Barony by which they were made subject to such Services as Tenants in cap. per Baroniam were tyed unto and were called to Parliaments and sate among the other Noble-Men and the Barons Peers being first summoned thereunto by the King 's Writ Most Men have considered the Nobilitas Major or those who constituted the House of Peers under a threefold Relation First as made Earls or Barons by Creation and an actual Ceremony of investure of Robes and a succeeding Charter and Writ to attend in Parliament when summoned The Charter comprehended some Limitation how the Honour should go or else some Pension to the Barons to support their Dignity and Title of which you may see more Examples in Mr. Selden's Tit. of Hon. Part 2. Cap. 5. Such I conceive was that Charter made by King Stephen to Mandevile Earl of Essex and renewed again by Maud the Empress the like was that of Miles Earl of Hertford granted by Maud and renewed by Hen. II. which Charter only served to convey the third penny of the County Now these Charters being usual as to Earls which was the highest Degree at that time and an actual Ceremony being also used in the making of Knights which was the lowest degree of Honour I see no reason but to believe that the same Ceremony of Invetisture was used to Barons which was the middle Degree Some Light is given to this by considering the Charter granted to the Lord Iohn Beauchamp of Holt. where the words are Ipsum Iohannem in unum Parium Baronum Regni nostri Angliae praefecimus volentes quod idem Johannes haeredes masculi de Corpore suo exeuntes statum Baronis obtineant ac Domini de Beauchamp Barones de Kiddermister nuncupenter In cujus rei Testimonium c. Here being in this Charter no words of Creation but all in the Praeterperfect Tense we have promoted must refer to some Act done before and this Charter served only to limit how the Estate should go Mr. Seld. Tit. Hon. Part 2. Cap. 5. p. 747. I edit in fol. I know reckons this as the first Creation of a Baron by Patent but doth not observe the words nor his own Subsequent Patents made to others where the words are in the Present Tense and constituent of the Honour granted viz. Praficimus constituimus creamus we do create promote and appoint Neither can I imagine what Right those Ancient Barons of which we have yet some left who were so before Rich. II. have to come this day in Robes had not their Ancestors been invested with them in their Creation and different from those of Earls Now this as it was the most ancient so was it the most honourable way of conferring Honours so was it also the most noble by which their Blood was not only enobled but also all other Rights and Priviledges competible to that Degree were given unto them and certainly we must make some difference between one made a Peer of the Kingdom by Charter and one so called in ordinary Speech of which Name no Man in the Kingdom but is in some sense capable we being all Peers to those of our own Degree Now of these Peers thus enobled by the Invetisture of Robes some were called to Parliament by Writ after the Ceremony of Invetisture had been performed and had never any Patent to limit the descent of the Honour Such had their Honour in fee-simple and it went to the Heirs general of which we have many Examples where the Sole Daughter and Heir of such a Baron hath not only conveyed the Honour to her Descendents but enjoyed the Title herself during Life Amongst many I will only instance in one Charles Longuevile Son and Heir to Susanna Heir general to the Barony de Grey of Ruthin left only one Daughter named Susanna Charles her Father was received in Parliament in his Robes in the latter end of King Charles the first his Reign he dying left the foresaid only Daughter who after his Death married Sir Henry Yelverton of Easton Manduit in Northamptonshire Baronet Sir Henry died leaving Sir Charles Yelverton Baronet his Son and Heir then a Minor Susanna enjoyed the Honour during her Life and at her Death left Charles still under Age who immediately possessed the Honour and at his full Age was called by Writ sate in his Robes in Parliament till he died which happened soon after his Age of twenty one without any issue leaving the Honour to Henry his Brother and Heir yet alive and under Age. See Sir William Dugdale's History of the Baronage Title Lord Grey first Part pag. 718 719. The second way by which some have conceived Barons were made hath been by Writ only without any other Formality or Ceremony whatsoever and of this
their share in making new ones This one would think were enough to content them without desiring to have a Judicial Power in Cases of Blood which I doubt not to prove is by Law forbidden them But I fear the charging this Desire upon them is rather an Artifice of their Enemies who by assixing this Calumny upon them which indeed is not their Design labour to lessen them in the Estimation of the World and by that means bring into Contempt both their Persons and Callings Many Examples I confess are given where Christian Emperours and Princes have made use of the Service of Bishops as Counsellors Chancellors and Chief Justices and the like but upon Examination it will appear that as to our own Kingdom the Offices of these Persons were much mistaken The Office of Capitalis Justiciarius Angliae was not to sit and judge Causes among Associates as at this day but was the Chief Officer of the Nation had the Appellation of Prorex and had Power in the Absence of the King to displace any Officer of the Cinque-Ports and to do any thing as Vice-Roy and Protector of the Kingdom of which see at large Sir Henry Spelman's Glossary in the Word Capitalis Justiciarius Upon Examination it will be manifest that when they sate in any such places their Service rather was to direct the Conscience to make amicable ends of Controversies to preach Peace to others and pursue it themselves till the Subtilty of Rome turned Religion into Policy and destroyed the Power of it How far the Edicts of Princes were binding is not my Task to enquire but only how far that of their not medling in Blood was a part of the Law and Custom of this Kingdom and observed here But what I have said in this Chapter especially as to the Baronies of Bishops I have delivered by way of Proposal not Determination and upon a clear Answer of my Reasons shall be ready to retract any thing I have written CHAP. II. I Come now to the Examination of his second Chapter in which the Recognitions made at the Parliament held at Clarendon come under Examination together with the Protestation made 11 R. 2. I call it a Parliament because I find it generally so esteemed by our best Lawyers and I think denyed to be so by very few Mr. Selden calls it that great Parliament at Clarendon Tit. Hon. part 2. ch 5. p. 703. the first Edit in fol. Coo. 2. Instit. ch 2. p. 6. and in many other places Hoveden saith there met Clerus Populus Angliae Where note he makes Clerus comprehend Bishops Abbots and all Ecclesiastical Persons and Populus both Lords and Commons contrary to what Dr. Brady hath asserted but very weakly proved But before I enter into a more narrow Examination of this Statute I think it not amiss to give a short Account of the History of those times from William the First to the tenth year of Hen. the Second when this Meeting was with Relation only to the King and the Church It will not be denyed that William the First disclaimed all Title to the Crown of England by Conquest and swore to observe the Laws of Edw. the Confessor which were our Laws before yet notwithstanding it is generally agreed that he erected Tenures in Capite and Baronies and that amongst others he obliged the Bishops who before held their Lands in Frankalmoign to do Service to his Courts and to hold their Lands in Cap. sicut Baroniam and not to make their so frequent Appeals to Rome and Journeys thither without his License being a thing contrary to the known Laws of his Kingdom which is made evident by Sir Edward Cook in Cawdryes Case and Sir Roger Twysden in his Vindication of the Church of England in point of Schism These were the Servitutes ecclesiasticae and the Pessimae consuetudines so much complained of by Mat. Paris and other Monks of that Age. But however so it stood during the Times of Will the First Will. the Second and Hen. the First after whose Death Stephen without any Right and contrary to their Oaths made to Maud Daughter to Henry the First then alive by the Aid of the Bishops gets into the Throne and by their Power was kept there till a Composition was made with Maud. In Recompence of this their breach of Oath Stephen frees them and the rest of the Clergy from answering in any other Courts but Ecclesiastical by which they now look'd upon themselves as free from the secular Power because they were answerable for no Offences but in their Courts In this State of things Stephen dies and Hen. the Second Son to Maud according to Capitulation is received to the Crown who after he had setled his Affairs in Normandy resolves to do the like in England but fearing some Opposition to his Designs might arise from the Clergy he first calls together an Assembly or Council at Westminster in the ninth year of his Reign where he propounds That all such of the Clergy as should be taken and convicted for any heinous Crime should lose the Priviledge of the Church and be delivered to the civil Magistrate to be punished for their Offences as other the Kings Subjects were To this the Arch-bishop Becket with the rest of his Brethren refused to give their Consent as being against the Liberties of the Church which were confirmed to them by King Stephens Charter This Answer put the King to a second Question Whether the Arch-bishops and Bishops would submit themselves to the Laws and Customs observed by them in the time of his Grand-father Henry the First They answered equivocally They would their Order the Honour of God and the Holy Church in all things saved with which Answer the King was more enraged But the News of this Breach coming to Rome the Pope writes and sends a Messenger from Rome charges the Arch-bishop to make Peace with his Lord the King and to promise to observe his Laws without Exception The Arch-bishop thus humbled repairs to the King at Woodstock and there promises to observe the King's Laws so far forth as was required Upon this Submission the King having before broken up his Council at Westminster summons this Parliament to meet at Clarendon in the tenth Year of his Reign where he gives in Charge that they should call to Mind and put in Execution and Writing the Laws of his Grand-father Henry the First Of which these following were the chief First that there should be no Appeals to Rome without the Kings leave That Lay-men might handle cases of Tithes That no Arch-bishop or Bishop should excommunicate any person who held of the King in Cap. or interdict any official of his without his leave c. The eleventh of them was at large what we have now under Consideration which I shall repeat and translate as it ought to be by and by But by this short Relation I have made of the History of those
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
are convicted for non-appearance He must have a new way of reasoning who considering that in 4 E. 3. the Earls and Barons are declared those Peers to whom such Judgments belong that in 5 E. 3. the Prelates declared that in a Case where Blood might be it belonged not to them to be present that in 7 R. 2. the Temporal Lords were only concerned in a Case where the Accusation was Treason with many other Cases that in 1 Hen. 4. the Lords are declared Judges in such matters that in 2 Hen. 4. in a like Trial or Judgment the Temporal Lords are all named who were the Judges that now in 7 Hen. 4. the Temporal Lords are again declared Judges and after all this that the Prelates should be deemed proper Judges in Cases of Blood upon bare Surmises and no direct Proof seems to me to savour of a Man wedded to an Opinion which he resolves to maintain when at last tho Precedents confirm what the Law is 't is that must determine the Controversy This I say in Relation to what Mr. Hunt objects This Precedent may in part serve to give answer to those Arguments drawn from the Identity of Names to the Identity of Right The Bishops saith the Grand Questionist are sometimes comprehended under the name of Grands Seigneurs and Peers therefore their Right is equal to all others who enjoy those Names How he attempts to make this good we shall see anon But first let him consider how weak a way of arguing this is we know nothing is more equivocal than Names Many are called Lords who had once that Name as Embassadors Chief Justice c. or such whose Fathers are Dukes so Earls Eldest Sons yet are indeed but Commoners so Baronagium comprehends all the whole Parliament Barons there are of the Cinque-Ports of the Exchequer and of some chief Towns as I have noted before from Mr. Selden so we are not to judg the Right from the Appellation but govern the Appellation by the Right The first Precedent he urges is pag. 96. where in 4 E. 3. an Act passed for Trial by Peers Cotton Numb 6. 'T is agreed unto by the King and all the Grands in full Parliament that tho the Lords had tried some who were not their Peers upon Accusation by the King in a summary way against Law it should be so no more If the Bishops were here comprehended under the Name of Grands so were the Commons too if it should be an Act of Parliament will he hence infer that the Commons have an equal Right with the Lords because they all are called Grands Who were esteemed Grands or Magnates see Matth. Paris in Anno Dom. 1100. Inhibitio ne qui Magnates viz. Comes Baro Miles seu aliqua alia notabilis Persona c. Here you see under Magnates are taken Earls Barons Knights or any other Person of Rank So Milites Comitatuum and Barones quinque portuum are called Magnates inter com brevia de term sctae trin Sct. Mich. An. 34. E. 1. penes rentem Dom. thesaurarij in Scaccario he that desires more let him consult Mr. Petyt's Learned Discourse of the ancient Rights of the Commons pag. 93 94. and in sundry other places I think therefore I may safely conclude this Point That where Grands are named alone there not only the Bishops but the Earls Barons Judges and Commons might be comprehended but where the Grands are mentioned after the Earls and Barons there the Bishops who ought first to be named shall never be taken in secondarily and by Implication Neither is it any thing to our Question whether it were for their Honour to be absent in some Cases as he intimates pag. 100. in the Case of Roger Mortimer but what the matter of Fact was Pag. 112. He would comprehend the Prelates among the Peers because in 4 E. 3. N. 3. The words are All the Peers Counts and Barons assembled in Parliament upon strict Examination do assent and agree that John Mautrevers is guilty of the Death of Edmund Earl of Kent Here he would infer that the Prelates were present at the Examination of that Capital Crime under the name of Peers because at that time there were no Dukes nor others of Superiour Degree to Earls but he doth not consider that the word Peers in this place doth only denote who those Peers then mentioned were Peers viz. Earls and Barons not Bishops as before Magnates viz. Comes Baro Miles c. As when we say a Noble-Man is to be tried by his Peers we understand only those that are truly so and not others that sometimes may be called so this is much cleared by the Record 2 Hen. 4. N. 30. The Lords Temporal by the Assent of the King adjudged Thomas Holland late Earl of Kent Iohn Holland late Earl of Huntington and others Traitors this Judgment was after the Parties were dead and but the second Successor after Edward the third Why did not now the Prelates come in and claim their Right Certainly they would have done it but that they knew the Law and Practice was against them what else is material in this Chapter hath been taken notice of by the Author of the Letter and others so that it needs no further Examination and I may safely conclude that where the Prelates are not named they are not understood Now that in this case the Bishops could not be meant by the word Peers is very plain from the Record it self For the fore-named Iohn Mautrevers being not in hold the said Peers do pray our Lord the King that search should be made for him throughout the Realm and a Reward promised Now if the Bishops were meant by the word Peers alone for Earls and Barons are named witness the Peers Earls and Barons then by Parity of Reason the said Peers should be meant only of the Bishops as if they alone had made the desire for the Apprehension of the said Matrevers and the Earls and Barons had been unconcerned which is absurd See 4 E. 3. Mem. 3. N. 3. Seld. Baron p. 13. Our Author concludes his third Chapter with the Case of Henry Hotspur the eldest Son of the Earl of Northumberland who for having levied War with others against the King was declared a Traitor being before slain in Battel by the King and Lords in full Parliament this was upon Friday the 18th of February upon the same Friday upon that Case and the Petition of the Earl Father to Henry and Examination of his Cause by the Lords as Peers of Parliament to whom such Judgment belonged for the King would then have referred the whole matter to the Judges he was declared innocent of Treason or Felony but only finable for Trespass at the King's Pleasure for which the said Earl gave Thanks to the King and Lords for their rightful Judgment and also at the same time purged upon his Oath the Arch-bishop of Canterbury the Duke of York
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
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
misled by the Printers misplacing the quotation so excusing him from any wilful error and purposely venting of untruths I do the like in another great falshood of his in the page following upon his citing a Record 21 R. 2. In the case of the Earl of Arundel which he makes to be That the Lord Steward by the assent of the King Bishops and Lords adjudged the said Earl guilty of Treason whereas the Record runs That the Lord Steward by the commandment of the King and all the Temporal Lords and Sr. Thomas Percy empowered by the Prelates and all the Clergy of the Kingdom judged him guilty c. This you see is a foul misrepresenting of his Precedent and imposing upon the Reader a falshood instead of a true Record for it shews that no Bishop was personally present and I make it out That the putting of a Lay-man in their steads is a strong evidence of the incapacity of all Clergy men to be any of them personally present at any of those Tryals Yet in this I rather excuse our bold Assertor shewing how he was misled here likewise by Sr. Robert Cottons Abridgment and only add this That methinks one should not venture to quote a Record upon any mans allegation without consulting the Record it self which I said I am sure he had not done which I think was as gentle a reprimand as could be and shews That I supposed him such a lover of truth as that if he had known it a falshood he would not have made use of it only he was deceived relying upon the authority of that learned Antiquary Sir Robert Cotton but in truth I am now of another mind and see my Gentleman hath a large Conscience and a mercenary Pen to publish any thing right or wrong to please those that set him on work His third notorious falshood is The Precedent which he cites of Richard Earl of Cambridge who he saith 3 H. 5. was tryed in Parliament upon an accusation of Treason and found guilty the Lords Spiritual being personally present and bids us see the Record of it in the Tower To which I only say That he had not done it himself for he would have found it contrary to what he asserts and that the Earl of Cambridge was tryed condemned and executed at Southampton by a special Commission and that his Attainder was afterwards brought into Parliament and there confirmed by Act of Parliament at which the Bishops might be present Now I pray you Sir do you judge if I gave him any occasion for such a reply as he hath made to me throughout from the beginning to the end of his Pamphlet and if he should not first have considered the Beam in his own eye and have purged himself and given the world satisfaction for these gross mistakes of his rather than add more to them as he hath done all along his book with language fitter for Billingsgate than for the eyes or ears of any sober man But I see it is the nature of the Beast as the Proverb is which he cannot help therefore we must take him as he is Naturam expellas furca licet usque recurret And now Sir I must beseech you to pardon the trouble I have given you with this long Recapitulation of those his falshoods in his former Pamphlet In which I have been the longer to set forth the advantage he gave to one that would have fallen soul upon him and how gently I dealt with him thereby to justifie or at least something excuse my sharpness with him now which I confess and am sorry for for his base return of scoffings and railings against me not fit for a Gentleman who deserved better at his hands and gave him not the least provocation for it But tread upon a Worm and it will turn again And so I shall apply my self to answer what he saith as to his Arguments in the maintenance of his Assertions which I think will not prove very convincing and will follow him as he sayes he would follow me step by step and I hope I shall make it appear that he hath made many a false step and will begin with his Postulata's as he calls them wherein he saith we do agree but he means I think like Dogs and Cats His first Postulatum is concerning the Protestation of the Bishops 11 R. 2. Wherein he saith we both agree that it is a Law But that I have not set it down faithfully leaving out the most considerable things in it because they make against me which if I have done I am a very bad man and may pass not as he stiles me for One of the younger house of great Alexander but rather of the house of this great Asserter himself who is the chief of the family of the Asserters of untruths His charge against me is for leaving out a passage in my recital of this Protestation which is what they say in the beginning of it and likewise towards the end of it claiming themselves to be Peers and that in right of their Peerage by the Laws and Customes of the Kingdom they ought to be personally present in all Parliaments Then he subjoyns another Protestation in the 28 H 6. which he saith also I have not cited faithfully and ingenuously as I ought to have done This is a great charge upon me if it be true that I have done any thing unfaithfully and disingenuously of which I hope I shall be able to purge my self And first give me leave to make a Protestation for my self in the general which I do upon the faith of a Christian and an honest Man and it is this That neither in the citing of these Records or any other throughout my Letter to you I have purposely and willingly left out or concealed any thing that I thought material because it made against my opinion But what I have written is the naked truth as I am fully perswaded in my Soul and Conscience and all that I have done in it hath been singly and meerly for the discovery of the truth and the satisfying of my self and others of which I take the searcher of all hearts to witness and let our Asserter say so much if he dares though for venting falshoods for truths I find him a daring man And now to come to these particulars I will first lay before you upon what ground and to what end I urged that Protestation of the Bishops 11 R. 2. It was for two reasons One to shew That it being at their desire enrolled in full Parliament by the assent of the King Lords Temporal and Commons it came to be the Law of the Land though it had not been so before The second thing was to shew that the Salvo of the Prelates in that Protestation extended only to their Right of Sitting in Parliament in other cases but not in Cases of Blood and that they did not therein at all pretend to that which I think I very clearly proved
such Judgements and then particularly whether among the Grantz of that Parliament of 25 E. 3. that affirmed that Judgement against Thorp there were any Bishops And I infer there was none because they tell the King that hereafter even out of Parliament if any body else offend in like manner he may take any of them that is of those Grantz that now give him this advice to joyn in condemning him and by the Law of the Land a Bishop could not joyn therefore there was no Bishop amongst them And that by the Law Bishops and all Clergy-men were prohibited appears by the Act of Parliament of the second of that King which I mentioned before confirming one to the same purpose made in Edward the First 's time that No Clerk should be a Justice of Gaol-delivery for Tryal of Felons this I think is not petere Principium to prove the true meaning of what was done at that time in the House of Lords by what the Law of the Land had already established which must regulate what the House of Lords then did and doth shew there could be no Bishops in the number of those Grantz Then for what he saith of the Commons charging Michael de la Poole before the King Prelates and Lords which was in 10 R. 2. and parallelling his crime to that of Sir William Thorp who for it was condemned to dye upon which he will infer that Michael de la Poole was charged with a Capital crime and accused of it by the Commons before the Prelates as well as before the other Lords who gave their Judgements upon it He may examine the Record and he will find that the Impeachment was only for Misdemeanors cozening the King in an exchange of Land when he was Chancellour and some other miscarriages of that nature And it is the Impeachment which is in the nature of an Indictment that governs the Tryal be the crime what it will As it is laid in the Impeachment or the Indictment it must be so found upon the Tryal at the least it can be found no higher less haply it may be A man that is Indicted for a Misdemeanour cannot be found Capitally Guilty And though by a comparison by way of aggravation it was likened to Thorp's Case Michael de la Poole made it appear there was no resemblance between them And who will take pains to read the Record of Thorp which I dare say this Trifler never did nor scarce any Record will see that the ground of that Judgement which made it Capital was that himself had submitted to such a condition when he took upon him the Office of Chief Justice the words are Si sembla a eur le Jugement sur ceo rendu resonable depuis qil se obligea mesmes per son serement a tiel penance fil feist alencontre The Judgement given upon it seemed to them to be agreeing to reason since he had bound himself by his Oath unto such a punishment if he did contrary to his Oath And I must say it would go hard with a great many if every one should be hanged that cozens the King And it is a pretty remark of his upon Sir John Lee's Case 42 E. 3. that the Record saying That he was brought before the Prelates Dukes Earls Barons and some of the Commons c. He observes that if at this Tryal any thing had been objected which had been Capital the Bishops were present at it And I say he might have made a truer observation than that which is That they might be well assured that nothing Capital was to be objected because then the Bishops would not have been present And one thing I am sure is observable which is that the Bishops that is the Prelates are here recorded to be present and to be ranked before the Dukes Earls c. We are sure if any be specified they are and still ranked in the first place What my Gentleman means in what he saith upon the Tryals 50 E. 3. I understand not they are the Cases of Richard Lyons the Lord Latimer William Ellis the Lord Nevill and John Peach all these were only charged with Misdemeanors he saith their crimes were great and hainous and reckons the loss of Forts among them which he saith was a crime Capital in Gomenitz and Weston 1 R. 2. and that I acknowledge the Bishops to have been present at those Tryals But still this learned Gentleman who brags here that he will not suffer the World to be longer amused and imposed upon by my Notions doth himself still mistake the business not well understanding the nature of the thing he treats of Otherwise he would consider that the Tryal of a Criminal person must always be pursuant to his Charge which is a point I have already spoken to therefore I shall say little here only this that the Impeachment of the Commons against those persons was only for Misdemeanors their Tryal was accordingly and the Bishops were present And for what he saith of Gomenitz and Weston was clean another Case it was for betraying those Towns which they had undertaken to keep when the force upon them was not so great However it is not material what their Crime would appear to be upon proof but what their Charge was and that was Capital Then for what he adds of the Bishops being comprehended under the general Apellation of Les Seigneurs du Parlement The Lords of Parliament in several Cases which he there cites which he beats upon over and over again in so many several places of his Pamphlet and sets up like a Man of Straw of his own making to make sport with is what I never denied my Position is That I have still observed in all Tryals of Crimes when Bishops could be present it is so expressed that they were so as in all Crimes not Capital and I do not think one Instance can be given to the contrary And my other Position which I affirm with more confidence is That if any of the other ranks of the Lords be mentioned the Bishops are so likewise or else it is a certain argument that they were not there My Gentleman is a little put to his Trumps in the Case of Gomenitz and Weston 1 R. 2. That is so plain first the Commons coming and desiring That such as had lost Towns and Castles by their own default might be punished Per agard des Seigneurs Baronage By the Judgement of the Lords and Baronage whereupon those Lords commanded Gomenitz and Weston to be brought before them and upon a long hearing condemned them both to death And the Lords are particularly named the Duke of Lancaster first and ten more Earls and Barons by name of whom Roger Lord Clifford was the last and then a general clause Et plusours autres Setgneurs Barons Bannerettes And many other Lords Barons and Bannerets Now this is so plain and exclusive of all Prelates as my Gentleman is forced to confess that it seems
doubtful to him who these Lords were whether the Prelates or the Lords particularly named and plusours autres Seigneurs under which he saith very probably the Lords Spiritual might be comprised I see a truth cannot come clearly from him a thing that is most clear he makes it doubtful And one thing he saith most falsely of a Petition commanded to be read Numb 29. En cest Parlement per les Prelates Seigneurs Piers du Parlement By the Prelates and Lords Peers of Parliament which Petition he will have to be concerning this matter which is most false For that which is said Numb 29. is of a Petition and Writ of Error presented by William de Montague Earl of Salisbury which was then read and nothing at all concerning Gomenitz and Weston which is a horrible falshood and imposture of our Asserter to abuse the world so and impose upon the Reader The first request of the Commons concerning this business and to have this matter examined is Numb 38. and then Numb 39. there is mention of a Schedule given in by Weston and the Record saith Ueue leue la dite cedule en plein Parlement The Schedule being seen and read in full Parliament and any thing concerning Weston or Gomenitz before this there is not But some falshood he must still add of his own for the Jesuites Verse is very applicable to him Verba damus cum nostra damus quia fallere nostrum est Et cum nostra damus nil nisi verba damus And indeed throughout his whole Pamphlet he doth but Verba dare take Verba Words as in opposition to reality and truth for it is full of falshoods or take Words in opposition to matter and good sense for his whole Book is a very bundle of words without any good matter in it But one thing more I cannot but observe it is his insisting so much upon a thing which I am confident himself doth not believe though I have known a teller of stories tell one of his own invention so often that at last himself hath begun to believe it to be a truth It is that after the naming several Lords and ending with some Barons there is a general expression â—…t plusours autres Seigneurs Barons Bannerettes And many other Lords Barons and Bannerets my confident Gentleman hath the boldness to add Under which probably the Lords Spiritual might be comprised which he knows the Prelates of those times if they had been concerned in it would never have endured and the Clerk of the Parliament would as soon have eaten Fire as have entered it so Then in the Case of the Murtherers of John Imperial a publick Minister 3 R. 2. because I observe that it is expressed in the Parliament Roll that the Bishops were not present at the framing of the Act to make it Treason in them which I grant in other places of my Letter they might have been being to pass an Act of Parliament in a Legislative way my Gentleman is pleased to say That I forget my self In truth No I did suppose it and do suppose it to be a good Argument à minore to shew that the Prelates were then so modest as to withdraw upon the passing of a Law for the greater punishment of such a Capital Crime which in strictness perhaps they did not need to have done much more then would they avoid the sitting as Judges to take away life in a judicial way which they could no ways pretend to But my Gentleman loves to quarrel and scribble Paper though to no purpose To the Case of Sir Ralph Ferrers 4 R. 2. he only sings over his tedious plain Song That under the general word of Lords of Parliament Bishops may be comprehended and therefore he will have it That they must be so And much good may it do him with his Crambe bis cocta I may say centies cocta for I think he serves up this same dish a hundred times in this his learned Treatise But I may not let pass what he saith upon the Case of the Bishop of Norwich 7 R. 2. how extream falsly he recites things taking all upon trust how this man or t'other man cites a Record but never seeing the Record it self which perhaps he cannot so much as read He desires it may be taken notice of that for those Misdemeanors he was adjudged to make Fine and Ransome to the King and that the Judgement was passed upon him by the Lords by assent of Parliament where he saith he hopes I will not deny but that there were Bishops present and for this sends me to Cotton's Abridgement 7 R. 2. n. 23. but if he would have looked upon the Parliament Roll he would have found this Perquoy del aâ—…ent des Countes Barons autres Seigneurs Temporelz presentz en ce Parlement est assentuz accordez que vous soiez en la mercile Roy mis au fin raunceon pur vostre malfait solonc la quantitée qualitée dicell Therefore by the assent of the Earls Barons and other Lords Temporal present in this Parliament it is agreed and accorded that you shall be at the Kings mercy and put to Fine and Ransome for your misdeeds according to its quantity and quality You see now how this man would impose upon us and what stuff he brings to make good his assertion If I had been guilty of such a falshood I should have heard of it to purpose that both my ears would have rung again and no Ink this Gentleman could have got black enough to set it out in its colours Then he comes to the Case of Michael d la Poole 10 R. 2 where he saith the same things he did before and which I have already answered so to that I refer you The next is the 11 R. 2. where the Prelates withdrawing from Parliament by reason of matters of blood which were then to come into agitation enter a Protestation with a Salvo to their right of sitting in Parment which my Gentleman will have to be meant even of their being present at the agitation of those matters if they were so pleased This hath been treated of before at large already to which I refer you I will only observe this further at present out of the words of their Protestation first they say Quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet personaliter interesse ea propter pro nobis eorum quolibet protestamur eorum quilibet hic presens etiam protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus nec intendit nec vult aliquis eorum dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos eorum quemlibet in ea Parte penitus absentaxe This they declare That it is not lawful for them nor any of them
and Temporal and of the Commons in Parliament in the passing of an Act of Parliament for when a thing is said to be enacted by the King with the advice and assent of the two Houses that advice and assent of the two Houses is their passing and enacting of it as to their part in it For any thing that is done in either House if the King be mentioned in it is said still to be done by him with the Advice and Consent of that House so in a Judgement judicially given by the House of Peers where anciently the King was often present when they acted judicially it is said to be given by the King by the advice of his Lords and here the Duke of Gloucester represented the Kings Person and held the Parliament by Special Commission so the Judgement is said to be given by him by the advice of the Lords Temporal And so the Lords 28H 6. when the King of himself gave the Judgement upon the Duke of Suffolk the Lords protested against it because it proceeded not by their advice and counsel For that is it which gives the form and being to the Judgement and stamps upon it the Authority of the Parliament Then he comes to a Precedent without debate as he calls it which is that of 28H 6. the Duke of Suffolk's case and confessed so by me as he saith but not truly For I do not allow it to be a just and legal precedent I do acknowledge that the Bishops were present all along the whole transaction of that business but as I said in my first Letter to you so I must and do say in this there was in it from the beginning to the end nothing regular nor according to the usage and practice of Parliaments Then it cannot be said to be a Precedent no more than a Monster that hath no shape nor limb of a true Child can be said to be a Child As for the particular deformities of this Monster for so I may term it they are already so fully deciphered in my former Letter as I will not now trouble you with them again So it shall pass at this time as he will have it for a Precedent without debate for it shall not be any further debated Only I must say still it is but a single Precedent and of what force that is or can be when the constant course and practice of Parliaments hath been to the contrary I leave it to you to judge One single Precedent against all other Parliaments is an unequal match one would think I have heard of a great conquering Prince that gave it for his Motto Souls contra omnes but I have not heard it said so of a Parliament Solum contra omnia The authority of any one Parliament I know to be very great yet it is a known Maxime in the Law Parliament poit errer A Parliament may err and another Parliament may mend what one doth amiss Parliament-men are men and may and do sometimes mistake as well as other men it is possible they did so 28H 6. and more than probable they did so because no other Parliament before nor since did ever do the like And for his Recapitulation of all the fore-mentioned Records in all twenty seven which he makes to prove that this was not a single Precedent as I affirm it to be all the rest as he saith concurring with it to admit Bishops to be Judges in Capital Cases I will only say Sit liber Iudex resort to the Records themselves and to what is already said in my former Letter and this and then judge if he saith true Then he hath a fling at me for what I say upon the Case of Nicholas de Segrave 33 E. 1. where he must give me leave to say with truth what he saith falsly of me upon several occasions which is this That he hath not set down things Faithfully and Ingenuously He saith Segrave came into full Parliament into the presence of the King the Arch-bishop of Canterbury and several Bishops Earls and Barons acknowledged his offence and submitted to the Kings pleasure Upon this he observes That here was no Iudicatory of Parliament and then adds that the King pardoned him De advisamento Comitum Baronum Magnatum aliorum By the advice of the Earls Barons Nobles and others You shall see now how faithful and ingenuous a dealer our Asserter is but certainly he takes all upon trust and takes not the pains to see any thing himself First I do acknowledge it was no formal Tryal for there was no impeachment nor Indictment against him but I must say it was Tantamount for he comes in upon Summons into the Parliament then sitting where the Prelates were among the rest of the Members of the House and how long they continued there it appears not by the Record but he being come Nicholas de Warwick the Kings Councel charged him and pressed matters against him And then the King as the Record saith willing to have the advice of the Earls Barons Nobles and others of his Counsel enjoyned them upon the Homage Fidelity and Allegiance which they owed him to give him faithful Counsel what punishment was fit to be inflicted upon such a fact so confessed Who all of them upon a serious debate and advising upon the matter and well weighing all the particulars of it and what was by the said Nicholas plainly and expressly acknowledged do say That such a man deserved to lose his life But afterwards the Record saith Dominus Rer tamen de gratia sua speciali pietate motus malens vitam quam mortem eorum qui se voluntati suae submittunt remittit eidem Nicholao Iudicium vitae membrorum But the King moved by his special grace and piety desiring rather the life than the death of those that submit to his will did remit unto the said Nicholas the Judgement of loss of Life or Member Here you see the King advised not with his Prelates but with the Earls Barons and other Nobles and what did they advise Not to pardon him as our Asserter will have it but they say he deserved death and then the King of himself would not have it go to that extremity Now whether this Judgement would have been final if they had pronounced sentence and adjudged him to death as they only said such a man deserved death or whether this was only to be preparatory to a Tryal and to proceed afterwards upon a formal Impeachment I confess it is not clear to me nor is it greatly material to our purpose only it shews the Bishops were to give no advice in it one way or other and it is rather stronger to prove they are not to meddle in such matters if it was but preparatory For it shews that in those Capital Cases they must have nothing to do with them to determine and judge any thing concerning them from one end to the other ab ovo usque ad mala as the
be a Peer os the Realm and his Blood enobled which otherwise would have descended from him to his Posterity and to this present Baron who is since enobled by a later Creation but takes nothing from that Ancestor So then it is clear that sitting in the House of Peers and having a parity of Vote and enjoying many of the same priviledges with the Peers doth not in true and proper speaking make the Bishops Peers no more than 21 R. 2. Sir Thomas Percy sitting with the Peers and Voting with them as Procurator for the Bishops was thereby a Peer His next Argument is That in several Rolls of Parliament they are expressly called Peers which cannot be denied nor doth that make them Peers if the essential parts of Peerage be wanting to them We know that denominations are many times taken up in a large and improper sense for some circumstances some similitudes something which is extraneous unto them yet wherein they agree with things of another nature And so Bishops having place and vote in the House of Peers and joyning with the Peers of the Realm sitting in Parliament in all things with equal power uno excepto saving only in cases of Blood it is no wonder if they are often stiled Peers of Parliament But the Precedents he cites are falsly recited both in the Case of Mautravers and that of Gomenitz and Weston as I have shewed before His third Argument is That they have judged as Peers upon Peers of Parliament But I deny that they judge there as Peers but as called to the Parliament to be Members of the House of Lords as Bannerets were formerly and many principal Gentlemen who were still Commoners and some Officers as the Warden of the Cinque-Ports who was no Peer sometimes and yet summoned up to the House of Lords and all these judged such Peers as were tryed in those Parliaments in which they sate However that Bishops are not Peers of the Realm and so consequently not properly and truly Peers of Parliament though often called so I think will be clearly made out First I must as I have formerly done insist upon the Great Charter which Sir Edward Cooke saith is declaratory of the Principal grounds of the Fundamental Laws of England and which the Statute made 25 E. 3. Confirmatio Chartarum will have to be observed as the Common Law and all Judgements given against it to be undone and holden for nought this Law is certainly to be obeyed and what is done in observance of this Law is most legal And it enjoyning every man to be tryed by his Peers and Bishops being tryed by a Jury of Commoners Commoners are their Peers and they are Peers to Commoners and not Peers of the Realm Peers per eminentiam as I may call them or else Magna Charta is broken and made a Law of no authority 2. To be a Peer of the Realm their Blood must be enobled and their Persons dignified nor can they otherwise be put into the same rank with those who are so which would make but an ill accouplement and they would never draw well together Now Bishops do not sit in Parliament ratione Nobilitatis but ratione Officii as Stamford saith in his Pleas of the Crown p. 153. En respect de lour possession se launcient Baronies anneres a lour dignitées In respect of their possessions viz. the ancient Baronies annexed to their dignities 3. If they were Peers and their Persons enobled their Wives would be noble and have the priviledges of Peeresses being Married or Widows for Husband and Wife are one person in Law but we know they have no such priviledge which shews their Husbands to be no Peers 4. If Bishops were Peers of the Realm and any of them questioned for a Capital Crime in Parliament time they could be tryed and judged only by the House of Peers and by no other Court of Judicature The Lords could not avoid the trying of them themselves indeed any but Peers they may refuse except it be upon an Impeachment by the House of Commons for then they must retain it and proceed in it but not otherwise except they see some great cause for it Pro bono Publico as it is 1 R. 2. when the Commons desired that no suit between Party and Party should be undertaken and determined by the Lords or the Officers of the Council but that the Common Law might have its course except it be in such a business and against so great a person as one cannot else hope to have right done in it The same is confirmed 1 H. 4. which I alledge to justifie the Judicature of the House of Lords upon those who are not their Peers upon special occasion But for trying of their Peers is a duty incumbent upon them which they must perform and any Peer who is questioned may challenge it as his right and it cannot be denied him And therefore 4 E. 3. when they had upon the Kings earnest pressing them Tryed and Condemned Sir Simon de Bereford Sir Iohn Mautravers and other Commoners they make a Protestation that they nor their Successors Ne seroient mes tenus ne charges a rendre Iugements sur autres que sur lur Piers Should not be bound nor charged to give Iudgement upon any but their Peers But we know that they have sometimes turned off Bishops to Inferiour Courts as appears by the Record of it in the Exchequer the same 4 E. 3. Stephen Gravesend Bishop of London was complained of in Parliament by one Iohn de Wymburne for saying That if Edward the Second was yet living as he was informed he was in Corf-Castle he would assist him with all his power to re-establish him in his Throne Sir Edward Cooke saith that by order of Parliament the matter was referred to be tryed in the Kings-bench but the Record saith that the Parliament referred it to the Kings Council and appointed him to appear before them at Woodstock upon Sunday fortnight after Easter and that they turned him over to the Kings-bench to be Tryed by the Chief Justice Scroope and his fellow Judges Whereas had this Bishop been then accounted a Peer of the Realm he must have been Tryed in Parliament the Parliament being once possessed of his Cause and they could not have referred him to any other Judicature So here you have four Essential parts of Peerage all of them wanting in Bishops and the want but of one Essential part is enough to destroy the whole He can be no Peer of the Realm who is at the Kings sute Capitally Tryed by a Jury of Commoners if Magna Charta be good Law which is our All as we are Free-men Secondly He who is not himself enobled cannot be a Peer in equal rank to one that is For all Peers are equally Peers as we may say Peerage doth not recipere magis minus The meanest Baron is as much a Peer as the greatest Duke else they were not Peers it would be
Contradictio in adjecto an Imparity in a Parity Thirdly If the Husband be enobled the Wife must be so but the Wife of a Bishop is not enobled therefore the Person of her Husband is not for the Wife and the Husband are one Fourthly If a Bishop were a Peer he could in Parliament time be Tryed no where but in the House of Peers but Matter of Fact we find to be otherwise Therefore I think I may safely conclude that Bishops are no Peers But before I leave this point I must answer one thing which is said They say they hold by Baronage and therefore they are Barons as Fitz Stephen makes the Bishops in their altercation with the Temporal Lords about the pronunciation of the Sentence against the Arch-bishop saying Non sedemus hic Episcopi sed Barones Nos Barones vos Barones Pares hic sumus We sit not here in Parliament as Bishops but as Barons we are Barons and you are Barons Here we are Peers Fitz-Stephen's authority signifies nothing to me but this I know is said and believed by many therefore it must be answered to disabuse many who may think that holding by Barony creates a Baron which it doth no more than holding by Knights service makes a man a Knight or holding by Villanage makes a man a Villain which many do to this day even but here at East-Barnet and yet are good Free-men and no Villains for it works not upon the Person as Fleta saith l. 3. c. 13. the service they do is ratione tenementi non personae So the Bishops holding per Baronagium are thereby made subject to do the service of Barons and to obey the Kings Writ of Summons to attend the Parliament which makes them Lords of Parliament but affects not their person The Bishop of the Isle of Man is a Bishop as well as any of the rest first instituted by Pope Gregory the Fourth as Sir Edward Cooke saith but not holding by Baronage hath no place nor vote in Parliament We must know that this Tenure by Baronage was first created by William the First of all the Lands which held of the Crown in Capite consisting of so many Knights Fees these Lands were divided some to Lay-men some to Ecclesiastical persons And these were all bound to certain services though not all to the same and among others all to attend in Parliament whenever the King pleased to Summon them and so became Lords of Parliament This continued so till King Iohn's time when the number of the Temporal Lords growing so great and numerous that King made some alteration which certainly was setled and confirmed by Parliament but justly the time when this was done is not known the Record of it being lost The alteration was that none of the Temporal Lords should come to Parliament but such as received the Kings Writ a particular Summons for it These were called Barones Majores those who were not so summoned and so did not come to Parliament were stiled Barones Minores and were still Feodal Barons as before and held their Lands per Baronagium but were not Lords of Parliament Therefore it was not barely holding by Barony which made the person a Baron even in those times there was an act of the Kings requisite even in the Summoning of him to Parliament to make that Honour to affect and enoble the Person and so to fix it and make it hereditary in the Family which way of dignifying a Person continued till the eleventh year of Richard the Second when Iohn de Beauchamp Steward of the Houshold was first created by Patent Baron of Kiderminster since which time it hath still been practised to make them all Barons by Patent But the Bishops have still continued upon the first Institution of being by their Tenures obliged and accordingly Summoned to attend in Parliament which made them Lords of Parliament but not Peers of the Realm And now I come to his last point making them a Third Estate for which he cites the Bill presented to Richard the Third in his first Parliament where they are made so and to this I can oppose other passages in Parliament clean contrary as that 2 H. 4. where the Temporal Lords and they together are made to be one of the three Estates and other instances may be given of the same nature But let us a little consider how that Bill was framed 1 R. 3. it was first devised by certain Lords Spiritual and Temporal and other Nobles and notable Personages of the Commons a Party picked out and chosen for that purpose who presented it in the behalf and in the name of the Three Estates of this Realm of England and what was this to do to declare Edward the Fourth to have lived in adultery with Dame Elizabeth Gray whom he had married being precontracted to Dame Ellianor Bottiler daughter to the Earl of Shrewsbury and consequently all his Children Bastards Edward the Fifth a Bastard and Elizabeth his Sister a Bastard afterwards married to Henry the Seventh which entituled him and his Posterity to the Crown set an end to all the foregoing competitions and setled it as it is at this day this Bill as the Record saith was first presented and delivered to their Soveraign Lord the King that was to R. 3. whom they made so in the name and on the behalf of the said Three Estates out of Parliament and now by the said Three Estates assembled in Parliament ratified and confirmed And truly I must say this is not an authority to be bragged of for making the Bishops a Third Estate But then let us see if the Bishops sitting in the House of Lords have the necessary and essential qualifications of being a Third Estate in Parliament without which they cannot be a Third Estate there That the Clergy is one of the three Estates of the Realm and they the Principal and Chief of them no body denies And that they are Summoned to Parliament as a Third Estate of the Realm the dignified Clergy personally others of the Inferiour sort by their Procurators and Representatives is likewise confessed but not to have any part in making of Laws for the good Government of the Kingdom no not so much as in matters meerly concerning the Church but they may offer and propose and be consulted with but whatever they agree upon must come to the two Houses of Parliament and receive the stamp of their Authority before it can be presented to the King to become a Law and be binding to the People This is the work of the Convocation which meets at the same time with the Parliament and there is convened the Third Estate of the Realm Where the Bishops make the Upper House and there sit as Bishops according to their Spirituality But their Summons gives them another capacity which is to meet in the House of Lords and there Cum caeteris Praelatis Magnatibus Proceribus regni de arduis negotiis Statum regni Ecclesiae
the Government of the Church by the Imperial Law but not that I put any stress upon it but meerly to circumscribe the Question and keeping it within limits by a Negative declaring what it was not and an Affirmative expressing what it was how Bishops in Parliament could not Judicially act in Capital Cases Therefore were it all so as this learned Gentleman seems to infer that in France Spain Germany and those Northern Kingdoms which he mentions that Bishops were joyned with the Civil Magistrates in ordering the Publick Affairs of those Nations and that they had a share not only in the Legislative but in the Judiciary part as he alledgeth two Authors to prove it to have been in France it would not be of any signification to decide our Controversie for what is this to us to regulate our Parliaments and to operate on our Laws But first for matter of Fact as to France to which I can speak a little having spent many years in that Kingdom and I have by way of discourse informed my self from the Ambassadour who is here from that Crown who doth assure me that the Judges whom they call Counsellors and not Judges as we do who are Clergy-men as many there are joyned with the others of the Laity never sit in that Chamber of Parliament which trys Capital Causes which they call the Tournelle I believe the same may be observed in those other Countries which our Author mentions and I do not see how it could be otherwise the severity of the Canon Law being so strict in the prohibition of it But as I said before the Primitive Christians had that veneration for the Clergy and especially for the Bishops that they were still joyned with the Civil Magistrate in ordering the affairs both in Church and State The matters of the Church they determined Judicially in Secular affairs whether Criminal or other only by way of Counsel if the Civil Magistrate to whose Province they belonged did not do his part I am sure it was so in England Brompton in his Chronicle recites the Laws of King Athelstane in this particular I cited his very words in the original in my former Letter I shall now repeat them very faithfully in English He saith It appertains of right to a Bishop to promote that which is right both concerning God and the World A little after he addeth He ought likewise diligently together with the Secular Judges to promote Peace and Concord And soon upon it he hath this passage The Bishop ought to be present in Judgement with the Secular Judges not to suffer any buds of wickedness to sprout if he can hinder it His Presence and his Counsel was rather a check upon the Judge than to determine any thing in Secular affairs Sir Henry Spelman is a little more particular in delivering unto us the nature of that mixt Court it is in his Glossary upon the word Comes The Earl he saith did preside in that County Court not alone but joyned with the Bishop he to deliver what was Gods Law the other what was Mans Law and that the one should help and counsel the other Especially the Bishop to do it to the Earl for it was lawful for him sometimes to reprove the other and to reduce him bring him into order if he went astray Then he tells us what the work of that Court was that it had cognizance but of petty matters That the Earl had not cognizance of great mens businesses for such matters are to be brought into the Kings Courts he only judges poor mens Causes Hence it is that by our Law Actions for Debts and Trespasscs are not to be commenced in the County Court if it be for above the value of 40s It seems that in ancient times it was but one Court but each Judge had his proper work the Ecclesiastical Judge to distribute and deliver to them what was Gods Law the Secular Judge Mans Law And so it continued till William the First 's time who first separated the two Courts as appears by his Charter to Bishop Remigius which Mr. Selden relates in his Comment upon Eadmerus p. 167. which he saith the King did Communi Concilio Archiepiscoporum suorum raeterorum Episcoporum Abbatum omnium Principum regni sui In a Common Council by the advice of his Arch bishops and the rest of the Bishops and Abbots and all the great men of the Kingdom The words are Wherefore I command you and enjoyn you by my Royal authority that no Bishop nor Arch deacon presume to hold Plea in the Hundred Court any more upon the Episcopal Laws nor bring any Cause that pertains to the rule of Souls before the Judgement of Secular persons but that whoever is questioned according to the Episcopal Laws for any misdemeanour or fault shall come to that place which the Bishop shall chuse and nominate for that purpose and there shall make answer for himself and not in the Hundred Court but shall according to the Canons and the Episcopal Laws do that which is just and right both to God and to his Bishop This was again confirmed 2 R. 2. and so the Courts came to be divided as they continue to this day But nothing can be concluded out of that large Enumeration of the Bishops being admitted in those ancient times to Publick Councils which was more for their Advice and Counsel and Direction than to act any thing at all Authoritatively and Juridically and least of all to have any vote to determine any thing in Cases of Blood which the Canon Law made a Noli me tangere to them I deny not but before there were Christian Magistrates even in the Apostles times the Ministers of the Gospel did many times interpose and reconcile differences and sutes which many times happened amongst believers as St. Paul saith Is there not a wise man among you no not one that shall be able to judge between his Brethren Nor doth he exclude the Bishops that they may not come in as one of those wise men Yet 1 Cor. 6. 4. he seems to exclude them For he saith If then ye have judgement of things pertaining to this life set them to judge who are least esteemed in the Church Which doth seem to intimate as if he meant not the Bishops for sure they are not least esteemed But doth any man think that they were by this authorized to compel men to submit to their Judgement to punish or imprison or lay any corporal punishment upon them if they would not Indeed I cannot think so Nor do I find that St. Augustine was of that opinion the term he gives to those whom the Author of that Treatise will have to be Ecclesiastical Judges doth not imply so much rather the contrary methinks He calls them Cognitores which denotes rather one that took notice of such differences and would endeavour to compose them than a Judge to determine them which hath made me examine that passage more
Opinion have been some Heraulds and have contended that by the Writ of Summons the Person was enobled and if his Descendents were so called for three Descents the Blood was enobled I conceive this Opinion to be erroneous For it is against a Maxime in Law that the King should pass any thing by Implication and as unreasonable to believe he might not have Liberty to require the Counsel of his Subjects without conferring an Honour upon them he did not intend Besides it will hence follow That during divers Parliaments of Edw. 1. almost all in Edw. 2. and many in Edw. 3. all the Judges King's Serjeants and many other were enobled for they had the same Writ the Barons had yet were never accounted such nay were often after such Summons omitted The known Case of Mounthermer is very pertinent to our purpose who having married the Relict of the Earl of Gloster who had a great part of the Earldom in Jointure her Husband was summoned as an Earl during the Minority of her Son but after he came of Age Mounthermer was summoned as a Baron during his own Life and after wholly omitted in his Descendents If it be said that his Summons enobled him but in regard his Descendents were not called the Blood was not enobled what will they then say to the Case of Radulphus de Camois who was summoned and his Son after him in 7 Edw. 2. yet in 7 Rich. 2. Claus. Memb. 32. in dors Thomas Camois the Grand-child was chosen one of the Knights for Surrey and discharged by the King 's Writ because he and his Ancestors were Baronets and the said Thomas was summoned and served in that Parliament not as a Baron but as a Barons Peer or Baronet which was an inferiour sort of Honour and signisied the same thing that Tenants in Cap. did in the time of King John But that these sorts of Peers were sometimes summoned and sometimes omitted at the King's Pleasure The only difference being that which appeared when they came thither the one appearing viz. The inheritable Barons in their Robes the others not but in Habits different from the Barons Now that there was this difference is made plain by those Authorities shall be produced under the next Head which is that there were a sort of Persons called Barons who were so by Tenure only that is to say who held of the King in Cap. and had such a number of Knights-fees and upon that account were summoned as Barons or rather as Barons Peers Mr. Selden seems to say in his Tit. Hon. Part 2. Sect. 17. pag. 690. That all Honorary Barons of that time whereof he speaks were for ought appears Barons only by Tenure The words are cautelous and his Expressions as became a Learned Man warily set down First Honorary Barons viz. Such as had the Honorary Name of Barons but not the Blood for such I take his meaning to be because he gives us no Definition of Honorary Barons nor why if it be admitted that Barons had their beginning from the number of Knight's fees which they held why Earls had not the like beginning who held of the King in Cap. as well as the others Now that there was a clear distinction between Barons enobled in Blood and those that held only in Cap. the one we find called Barones Majores the greater Barons the other Barones Minores lesser Barons The red Book in the Exchequer or Remembrancers Office attributed to Gervasius Tilburiensis speaks of it as an undoubted Truth Quidam c. Some hold of the King in Cap. things belonging to the Crown to wit greater or lesser Barons Quidam enim de Rege tenent in Capite quae ad Coronam pertinent Barones scil majores seu minores by which it appears they both held of the King in Cap. yet were distinguished into greater or lesser Fitstephens in the Life of Thomas of Becket Chap. 11. mentions Secundae Dignitatis Barones Barons of a second Degree Matth. Paris Anno 1215 hath these words Summoneri faciemus Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per Literas nostras Et praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Cap. tenent de nobis ad certum diem Here we see two different sorts of Barons the one summoned by the King 's Writ the other by the Sheriff The first sort by Writs sealed by the Chancellor the rest by Writs to the Sheriff yet both held in Capite But certainly omnes qui de Rege tenent in Capite must be understood with a reasonable Restriction For it will be very evident to any Man who shall examine the Inquisitions post Mortem remaining in the Tower that much Land held per Baroniam was in the Hands of private Men who were never reputed Barons neither could these Inquisitions be understood of Tenures from Mesne Lords and not from the King because all Tenures per Baroniam were Tenures in Capite which must be from the King Besides if the Tenure of Land made a Baron Why were not the Purchasers of those Lands by the King's Licence of Alienation ever after the Stat. of quia emptores Terrarum called to Parliament as Barons The Case of the Earl of Arundel 11 Hen. 6. will not mend the matter for his Ancestor was created by Writ and the Castle entailed upon him so that he was called to Parliament not by having the Land only but by virtue of the Creation of his Ancestor and the Entail upon it In so much that I still conceive that the ancient Nobility from whatsoever beginning it arose was made inheritable by Creation and Investiture of Robes upon which sometimes followed Cnarters which directed how it should descend and the Confusion in Historians hath proceeded from their not distinguishing Barons from Barons Peers so called not from their Parity in Honour but in Estate and Tenure but wanting Investiture were called or left out at the Pleasure of the King This Distinction is clearly mentioned in the old Modus tenendi Parliamentorum printed by Mr. Hakewell Summoneri debent omnes singuli Comites Barones eorum Pares All Earls and Barons ought to be summoned as also their Peers I know the Authority of this Treatise hath been questioned by some Learned Men but by none with more violence and less reason than by Mr. Prin in his fourth part of his Register of Writs p. 591. To which easie Answers may be given if we consider the Translators out of the Saxon Tongue might easily translate Words which they thought of an equivalent Signification by words in use at that time as Wittena Gemot for Parliament and the like Others of as great Judgment have as strenuously defended the Authority of it Sir Edward Cook in his Jurisdiction of the Court of Parliament strongly defends its Antiquity and Mr. Hakewell pag. 135.
by Usage or Allowance that 's denied Nay the Impossibility is manifest For I conceive by Law the King cannot make an Estate for if he could he might make a fourth a fifth or a sixth Estate and require consent from them all to the making any Law which would alter the Frame of the Government Mr. Prin hath very well proved them to be only a third Estate in Convocation from the manner of penning their Grants there to wit By the name of Prelates and Clergy of the Province of Canterbury and York orderly assembled in a Provincial Synod or Convocation may be ratified and confirmed in your Highness's Courn of Parliament with the Assent of the Lords Spiritual and Temporal not Prelates and Clergy as in their Grant Prin. fourth part of his Kalender p. 594 595. to these I might add many more Authorities Caudrey's Case Cook part 5. p. 8. Clerus tota Gens Laicalis but these eare enough and I take it a full Answer to his several Records urged to that purpose and for Explanation of the Author of the Letter who when he saith they are a third Estate of the Kingdom not of the Parliament that is to say not in that House of Parliament where they sit mixt with the Temporal Lords But should I admit them a third Estate in the Lords House as this Author and others contend they are and so a distinct Estate from the Lay-Lords What colour can they then have to judg a Peer upon an Impeachment for Life when themselves tho they sit among them are a distinct Estate from them and so no way their Peers which I take to be a very strong Argument ad Hominem I have thus past his first Assertion and given Answer to his Conceit of their being a third Estate in the Lords House if by it he mean an intire third Estate and not a part of it as I said before For when they act in Convocation they act with the rest of the Clergy as an intire third Estate can they that is the Bishops in the Lords House be more than part of a third Estate where they vote not as Bishops but as Barons as themselves would have it Certainly we must not shut out the Convocation to represent the Clergy if then the Bishops in Convocation represent but a part of the Clergy how they should be an intire Representative of them in another place whilst both are in being is to me a Riddle Let us now come to his argumentative part After he hath climbed a Ladder of five Steps he comes at last to this Conclusion That to sit in Iudgment with the Lords is not against Magna Charta What if this shall be granted him Doth it thence follow that they are such Peers as are enabled to try those in Capital Cases who are enobled in Blood and have inheritable Baronies in themselves by Creation Magna Charta is a general Charter which directs the Proceedings in the Tryal of all men by their Peers Who are Peers to one another is not there the Question neither doth the Author of the discourse of Peerage make any other use of it The ancient Canons forbid them to meddle at all in secular Affairs if therefore the Indulgence of Kings have admitted their Presence in Parliaments in some Cases doth it thence follow that they have Right to be there in all Cases or to try Peers for their Lives to whom they are no way equal The Author proceeds and in the next place insists upon the Forms of their Writs which are of the same kind with those of the other Barons which being not limited nor restrained neither ought their Power so to be The Weakness of this Argument is very apparent for by this he may infer that the Judges and some others had the same Right for Mr. Elsing in his Modus pag. 11. hath observed that the Writs were alike to the Lords to the Judges and some others in diverse years of Ed. 1. in most of Ed. 2. and many of Ed. 3. But the Words of these Writs though general were to be interpreted by the Practise of the Court and not contrarily Again there is a great deal of difference between giving Counsel in difficult matters according to their Writ and trying Men for their Lives an Employment no way proper for Messengers of Peace and Preachers of glad Tidings Lastly the Earls and Barons are Consiliarii nati Counsellors by their Birth and so have a natural Right to give Counsel in all Affairs being once assembled in Parliament and for that Reason upon the Death of the King the Nobilitas Major have all equal Right to meet in Council in order to a Successor so have not the Bishops nay though Privy Counsellors their Commission ceasing they have then no Right to come into Council with the other Lords In the next place he saith Men as certainly dye by Bills of Attainder where the Bishops have an undoubted Right to vote in their Legislative Capacity and therefore to vote in Cases of Blood is not incompatible with their Function To this I answer the Cases are very different as well to the matter of the Law as the Reason of it For first Custom or whoever gave them Right to sit in the Lords House in the Nature or amongst the temporal Barons though Ecclesiastical Persons did not restrain them as to their Concurrence in the making new Laws yet very well might as to their judging in some Laws already made so that the one is agreeable to the Laws of the Kingdom and the Laws of Parliament and the other not so And if any thing in that Particular had been contrary to the Holiness of their Calling or their Rules of Living it had been fit for them to have informed the King and Lords and not for them to take notice of it otherwise Nay in that very Case when that Bill shall come to be passed into a Law by the King the Lords Spiritual ought to absent themselves as it was held by Mr. Bagshaw a Reader of the Middle-Temple in the time of Arch-bishop Laud by whose Power he was then prohibited from farther Proceedings in his said Lectures Rush. Hist. Collect. part 2. pag. 990. Secondly the passing a new Law be it what it will doth not immediately but by Consequence may concern Blood Now the Bishops who are always supposed to incline to Mercy rather than Severity may perpetually with a good Conscience hinder the passing such a Bill as shall punish a Delinquent with Death who had not capitally offended before But when once a Man is capitally impeached for transgressing a known Law and Issue joyned thereupon 't is not now in their Power with a good Conscience to acquit the Guilty because they must there opine according to the Proofs before them which is a very strong Argument why they might be permitted to be present in the one Case and not in the other Lastly if this way of arguing
Law be what it will it cannot bind the King's Hands from making use of any of his Subjects in what he pleases though the Employment be forbidden by Law This is the Meaning our third Author gives of this Constitution and much good may it do him Our last Author in his Grand Question comes next to be examined in which I shall be more large because in him is concentred what the rest have said and his Cause defended with much Learning and variety of Reading He names the Constitutions of Clarendon and the Protestation in 11 R. 2. as the two main Laws against him The Constitutions of Clarendon which were no more than a Recognition of the ancient Laws and Customs of England not made but revived by Hen. the First and now confirmed by his Grand-son Hen. the Second he considers as the most material and is content this Cause should stand or fall by them He tells you the Constitution in Debate is the eleventh in number of which the Words are Archiepiscopi Episcopi universae Personae regni qui de Rege tenent in Capite habeant Possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis Ministris Regis faciant omnes consuetudines Regias Et ficut ceteri Barones debeant interesse Iudiciis curie Regis quousque perveniatur ad diminutionem Membrorum vel ad Mortem After the Words he gives us the Translation of them made by the Author of the Letter in the following manner The Arch-bishops and Bishops and all the dignified Clergy of the Land that hold of the King in Capite shall hold their Possessions of the King as a Barony and answer for their Estates unto the King's Justices and Ministers and shall observe and obey all the King's Laws and together with the other Barons they are to be present at all Judgments in the King's Courts till it comes to require either loss of Life or Member But pray Sir why did you not rather give us a Translation of these Words of your own If the Author of the Letter have made an imperfect Translation why did not you mend it I believe if this Author had found it would have advantaged his Cause some Exceptions would have been taken to the Translation I shall by and by give the Reader a full account of the true Sense of the whole Period but will first make appear the Unreasonableness of the Exposition he makes of the last Clause of it Et sicut caeteri Barones debent interesse judiciis Curiae Regis quousque perveniatur ad diminutionem Membrorum vel ad Mortem The Meaning he conceives to be That the Bishops are required to be present in the King's Courts as other Barons are till they come to give Sentence as to dismembring or loss of Life Why he translates Curiae Regis in the plural Number the Kings Courts which is in the singular the King's Court and in this place hath always been understood of the High Court of Parliament in which the other Barons had an Interest to be present as Judges and in which Sense it is very often taken as is made clear by Mr. Petit in his learned Discourse of the ancient Rights of the Commons of England Pref. pag. 45. out of Gervasius Dorobornensis pag. 1653. who speaking of the Election of Arch-bishop Lanfrank hath these Words Eligentibus eum Senioribus ejusdem ecclesiae cum Episcopis ac principibus Clero Populo Angliae in Curia Regis in assumptione Sanctae Mariae and another Author saith it was Consensu Consilio omnium Baronum suorum omniumque Episcoporum Abbatum totiusque Populi Angliae commisit ei Dorobornensem ecclesiam That this was a Parliament we have little Reason to doubt and that it was called Curia Regis See also Inter com T. Hill 17 E. 3. penes remem in Scacc. 29. 32 H. 3. mem 12. 13. in dors rot claus Consideratum fuit in Cur. nostra toto Parliamento nostro c. Wherein Cur. Regis totum Parl. are but expressive of the same thing and not two Courts as I think I very well know that Curia Regis had various acceptations sometime it signified that Court of Justice that at those times followed the King's Person sometime it was taken for Aula Regis where Entertainments and Feasts were made as we read often in our Historians but I take it here to be understood of the High Court of Parliament for the Reasons before touched and many others if any shall seem to doubt of it Next why doth he leave out Judiciis whereas the Words are The Bishops as the other Barons ought to be present Judiciis curiae Regis in Trials in the King's Court viz. the Parliament he renders they are to be present in the King's Courts To help himself under the covert of an ill Translation savours not of that candour justly to be expected from so learned a Person and one that seeketh after Truth rather than Victory but since this Author is a subtile and no loose Writer give me leave to guess at the Reason of it He saw plainly that had he fairly rendred the Words The Bishops as other Barons have Right to be present in all Causes Sentences or Judgments in the King's Court or Parliament till the Cause Sentence or Judgment come to concern Life or Member the Word Judiciis in the plural Number must have referred to other Judgments in other cases and then the latter clause till Judgment or Sentence came to concern Life or Member would have been clearly restrictive as to cases of Blood for to be present at the Judgments of the Court till Judgment is Non-sense except the Words be applyed to different cases Now this Interpretation would have quite destroyed his main Undertaking who at last gives a Sense of the Words not only coincident with that given by the Author of the Bishops Rights to which I have before spoken but contrary to the Votes of the Lords in Parliament who though they seem to admit their Presence in the hearing such a case yet will not admit them to have any part or voice in the judging of it Beside I must needs take notice that 't is a strange Translation of the words Quousque perveniatur or in judicio perveniatur ad diminutionem Membrorum vel ad mortem Till they come to give Sentence when the Words more naturally import till Judgment may be fulfilled in the cutting off of Member or Life which is Execution But I shall anon give him a more proper Translation of the Words in the mean time will consider all his Subterfuges and cunning Evasions by which he would give colour to his Interpretation First from the occasion the Author of the Letter pag. 73. had said The Prelates affected a kind of Omnipotency he conceives the Author means in Judicature and I conceive he made that Supposition because he judged it for his Advantage to suppose so
discharged of all Accounts whatsoever when he was made Arch-bishop but the Heats and Animosities occasioned hereupon made him appeal to Rome which being so immediately after and contrary to his Oath at Clarendon might be called by the Name of Treason in those Days yet it appears plainly that an Appeal to Rome was not in those times look'd upon as a Capital Crime To this Purpose see Spelman's Councils Tom. 2. fol. 119. Concilium Pan-Britan apud Pipewell Congregatis illic Archiepiscopis Britanniae quibusdam Norman Galliae Hiberniae Episcopis Abat c. infra nominat praesente etiam ipso Ricardo Rege An. Dom. 1189. 1 Ric. 1. The King having given the Arch-bishoprick of York Gaufrido fratri suo quondam Lincolniae electo The Arch. of Canterb. Calumniatus est consecrationem illius prohibuit ei ne ipse ab alio quam ab eo consecrationem seu sacerdotalem ordinem susciperet Super hoc appellant ad Dom. Papam coram Rege universis Episcopis Clero Populo chartam Willielmi Regis Bastardi in qua continebatur controversia quae olim vertebatur inter Cantuariensem Eboracensem ecclesias protulit Here you see an Appeal to Rome publickly made and the Appellant not questioned for Treason or any other Misdemeanour and this done in 1 Rich. 1. who was the Son of Hen. 2. But admit this Appeal or rather Perjury in that time had been a Capital Crime his Appeal here hindred the pronouncing any Judgment So that Fitz-Stephen is mistaken in the first Point for he was neither accused nor condemned of Treason in the cause of John the Marshal Secondly he tells you he was accused of Treason because being cited he did neither appear nor competently excuse himself which must be understood to be meant by some other Proctor or Advocate for if he did not appear 't is impossible he should excuse himself any other way for it is clear he was at Northampton Ipsa die venimus Northamptoniam saith Fitz-Stephen cap. 10. co 1. That the Court sate not till the second day after their coming and he made an Appearance on the third is confessed by the same Author who a little before tells you he sent quatuor Milites to give his Answer and the King's Exception was that he did not answer in his proper Person which certainly by Law he was not obliged to do so that here was but a Contempt of one day however they were resolved to proceed for the Arch-bishops Depulsio or answer for himself took not place for so I take the meaning of depulsio to be Archiepiscopi ratio nulla est habita Whether you take ratio for an Account which probably he might give as to 300 l. prerended to be due to John the Marshal or in any other Sense 't was not allowed Lastly you have these words Archiepiscopus autem quia sententiae vel recordationi Curia Regis non licet contradicere sustinuit consilio Episcoporum ad Acta ad mitigandum honorandum Regem solenni manuum ipsius missione quasi concessionis Judicii uti moris est ibi The Archbishop by the Counsel of the other Bishops because he might not contradict the Sentence and memorial of the Kings court submitted to their Acts to the end that by his Submission he might Honour the King and mitigate his Anger and yielded to the Judgment and put in for his Sureties all the Bishops except London of which notice was taken Can any thing now be clearer than this that he both appeared submitted to the Judgment and put in Sureties to perform it and that here could not be any formal accusation of Treason whatsoever the Counsellors might dispute among themselvs So that Fitz-Stephen's Relation as to this matter is not only contrary to the Judgment of the Court which condemned him not for Treason and contradictory to himself who making the Relation as an Historian of what was done in that case where himself was present must be supposed to write what in truth was the matter of Fact and not what was the Opinion or Discourse of others except he had told us so But this proud Prelate being as the King thought not sufficiently humbled by the Judgment aforesaid nor by many other Affronts put upon him by the King's Officers a new Crime as I touched before is found out against him for Accounts to the value of 3000 Marks to which he is required to answer and to which saith our Questionist he gave a dilatory Answer so that the King requires him to stand to the Judgment of the Court But the Answer he gave was this That the King knew well enough that before his Election to the See of Canterbury he was discharged and how the Prince the Barons of the Exchequer and Sir Robert Lucy Chief Justice gave him a Discharge for all Accounts and secular Receipts from the King and so free and clear was chosen to the See and would plead the same no more Was this now a dilatory Answer and not a clear Discharge What doth any Accountant in the Exchequer do more Neither could the Court expect being cited upon another Business he should bring his Discharge in his Pocket But what if this Accusation had been true Was this Treason If every Cheater had been a Traytor the King would have had enow to hang But this Storm went higher for Becket finding himself over-power'd by the King's Party and menacing Words from them comes in his Archiepiscopal Robes with a Cross in his hand and appeals to Rome for which he was blamed and sharply rebuked by his old Enemy the Arch-bishop of York and as Hoveden saith by London and others But by his Appeal he avoided all Sentences could be pronounced against him yet left his Enemies and the King much incensed against him Gervase of Canterbury tells you col 1392. that the King sitting upon his Throne it seems in a hurry for the Words are euntes discernite said going forth Consider what this perjured and contumacious Traytor ought to suffer Itur judicatur They went out and gave their Opinion for this could be no legal Judgment because first it was out of the place where the Council sate and his Appeal prevented all farther Proceedings as it was then held This is the Sum of the Story taken out of Daniel's History upon the Year 1164. as he saith particularly delivered according to the Writers of those Times who those were he tells you in his Preface Hoveden Giraldus Cambrensis Mat. Paris Mat. Westm. Rishanger and others By this Relation you may see the Credit of this grave MSS. Author who hath knit together so many Mistakes and different from the Relation of others of or near the same time But the Bishop is now gone though before his going the King expostulates the matter with him to whom he answered That he was summoned in the Cause of John the Marshal and would answer to no other
having then made his Appeal Neither to speak my Mind freely can I see how he could be accused of Treason for Who was the Accuser The King could not because by reason of the dignity of his Person no Averment could be made against him neither could any man be tryed but by his Peers Now we hear of no Articles exhibited no Jury summoned nor no legal Proceedings in case it had been a Parliament for though Mag. Charta was not so perfect as in Henry the Third's Time yet all Historians agree 't was granted in Henry the First 's Time of the chief Points whereof Stephen Langton Arch-bishop of Canterbury brought a Copy into the Parliament in King John's Time a worthy Prelate he was though an Italian though it were the Law of the Land before and though the Council of the King might in some Misdemeanours proceed arbitrarily yet in Treason they could not as is well observed by Mr. Selden Priv. of Bar. ca. 4. pa. 10. but they were in those Cases to be tryed by their Equals Co. 2. Inst. pag. 50. tells you 't was as ancient as William the First gives you an Example of Roger Earl of Hereford so tryed in his Time But we have not yet done with Fitz-Stephens for our Author tells you that the King upon the proud Answer of Becket charges the Bishops that together with the Barons by virtue of their Allegiance they would give Judgment upon the Arch-bishop They excuse themselves The King presseth them Fitz-Steph Words are Rex responso Archiep accepto instat Episcopis praecipiens obtestans per homagium fidelitatem sibi debitam juratam ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam c. This he translates That the Bishops together with the Barons would give Judgment upon the Arch-bishop This appears to be after his Appeal when the giving of Judgment or medling farther in the Business was refused beside the undue Translation of the Words which signifie no more but the desire of the King that they would tell him their Opinion touching the Arch-bishop I wish he would give me any good Authority where dictare Regi sententiam for sibi here is the same can signifie giving Judgment upon a Criminal as he translates them I know very well that dictare judicium may be taken to deliver any Sentence leisurely Linw. lib. 3. Ne Cler. vel Mon. where it is all one with dicere or suggerere sententiam Beside no such Sense can be affixed to these Words for the King's Question refers to them all in general but certainly the King did not mean they should all pronounce Sentence but only privately tell him their Thoughts yet from hence would our Author infer that this was a Parliament and that the Bishops had Power to give Judgment in Criminal Cases when he hath proved neither because in Truth this was only an Attempt of the King 's to draw them to his Party having then Intentions to send to Rome about this matter The Words of the Bishop of Chichester which he spake to Becket after his Appeal to Rome will do him as little Service for they import no more than that the Interdict laid upon him and the rest from doing any thing against him during his Absence hindred them from being present at such Proceedings against him as the King required from them 'T is not to be doubted but the King would have pressed them to deliver their Opinions whither his Appeal were Treason or not what their Judgment would have been no man knows If it had been a Parliament then summons must have been sent out for his Appearance and Proceedings by Bill of Attainder in a Legislative way not arbitrary in Cases Capital Seld. pri Bar. cap. 4. pag. 10. as before noted He closes this Head of Discourse with a pretended Confutation of the Author of the Tractate of Peerage a Book by some snarl'd at but by none answered but let us examine what they both say The Author of the Discourse of Peerage tells you pag. 14. and backs what he saith by the Authority of Justice Doddridge Sir Edward Cook and Mr. Selden that these were only certain Recapitulations of the King's Prerogative and the Peoples Right then sought to be infringed by the Pope and Clergy That these Recapitulations were avite consuetudines is confessed and that that Canon concerning Blood is as ancient in England as the Conquest our Author acknowledgeth that Gervasius Dorobernensis reckons this Article among the Laws then established from all which the Discourser of Peerage might very well argue That which was a Custom in Henry the First 's Time taken notice and allowed in Henry the Second's Time and of the beginning whereof there is no Memorial extant nor account to be given ought reasonably to be esteemed as part of the ancient Custom which is the common Law of the Kingdom All that the grand Questionist thinks fit to reply to this is that it is little to his Purpose because this Clause in Question is not a Limitation of their Power but a Priviledge and Indulgence for their Absence That this Fancy is erroneous I have before shewed from the natural Sense of that Clause as also that long before these Constitutions they were both by their own Canon Law and Custom of the Nation prohibited from being present in Cases and Consultations of Blood and that themselves admitted not only the Liberty but the Obligation by their constant Obedience given to that Law and Custom in absenting themselves in those Cases as the Author of the Letter hath asserted and shall by me be farther cleared in my Answer to his Precedents Now I do not think that this Author believeth that these Constitutions gave them a greater Liberty than they had before but if it found them bound that Statute left them so and was as all affirmative Statutes are though not introductory of a new Law yet are they corroborative of the old and in their Oath they swear Obedience to this Article as well as to the rest to wit that they would according to their Duty be present in all Proceedings in Parliament with the rest of the Barons except in Cases of Blood in which they tell us afterwards that it was not lawful for them to be present at any hand so that upon their Allowance there was more than a Liberty for there was a Law against them Beside could this Sense be allowed it would no way serve to make good his main Hypothesis that they might be present till the definitive Sentence came to be given for if the Law were obligatory as to any part why not to every part of it Our Aurhor is as little fortunate in his attempt to evade the Authority of Roger Hoveden pag. 40. who saith That 't was agreed in the Synod at Westminster that no Clergy-man should agitare Iudicium sanguints He tels you this was part of a Canon agreed at Toledo which
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
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
Name of Peers or Grands and therefore may be comprehended under those Names when the Name Prelate is not expressed If this Author can be driven out of these holds I shall believe he may fairly quit the Field without any Dishonour I shall begin with the Tryal of Roger Mortimer in 4 Edward the Third but we must fetch our Judgment from what was done in 28 Edward the Third where upon the desire of Roger Wigmore Cousin and Heir of Mortimer that Attainder was examined and all the Proceedings repeated and upon the whole matter the King charges the Earls and Barons the Peers of the Realm that for as much as these things principally concerned him and them and all the People of his Realm that they would do such Right and loyal Judgment as was fit for such a Person to have The Words upon the Record are Le Roy vous charge Counts Barons les Pieres de son Royaum que de si come cestes choses touchent principalment a luy a vous a tout le peuple de son Royaum que vous facies au dit Roger droit loial Iugement come attient a un tel d'avoir Which said Counts Barons and Peers of the Realm returned and gave their Judgment c. The Words are the King charges you Counts Barons the Peers of his Realm not as our Author renders the Words Earls Barons and Peers of the Realm as if Peers were there distinct from Earls and Barons when the Words import no more than who were those Peers to wit the Earls and Barons therefore the Author of the Letter had reason to say the Bishops were not there who were left out in the reference made by the King whose Words are To the Earls and Barons the Peers of the Realm Now if the Question be asked who are those must not the Answer be the Earls and Barons So that the Bishops must be comprehended under the Names of Earls and Barons or not at all From whence it will follow that this Negative is something more than a bare Negative we may at least call it Negativum praegnans a Negative big with an Affirmative for it is first told who were those Peers Secondly to whom those Judgments belonged Chiefly to the King and them and consequentially to all the Kingdom and whatever the Practise is now I think it not hard to prove that anciently no Judgment or very rarely any by the Lords in Parliament was complete in criminal Cases or Execution done till it was ratified by the King yet that I may render all possible Right to the Bishops the matter will bear I would easily grant that if they were at all summoned to that Parliament they might be present whilst the Proceedings against Mortimer were in reading but went away when the Lords proceeded to the consideration of what Judgment was to be given against him which was enough to give them knowledge of the matter in Agitation and as much as was requisite to make them Parties according to the Opinion of my Lord Coke before cited I said if they were summoned because in many ancient Parliaments I cannot find they had any Summons at all as in 49 Hen. 3. 23 Ed. 1. 28 Ed. 1. 1 Ed. 2. 16 Ed. 2. and 6 Ed. 3. but after that were never omitted so that 't is probable enough that they were not summoned in 4 Ed. 3. who were left out in the sixth year of the same King But in this I will not be positive because it may be the Rolls have been lost Pag. 94. He takes a more exact view of the Case of Mortimer in 4 Ed. 3. and presseth strongly to have it allowed that the Judgment against Mortimer and some others was by Act of Parliament because the Reversal of it in 28 E. 3. was by Act and therefore saith he we may justly suppose that the Judgment against them was ratified in Parliament beside some Historians say he was condemned Iudicio Parliamenti and his own Petition is that the Statute and Judgment may be reversed and annulled and from this infers that if the first Judgment was by Act of Parliament and the Bishops not there then they might not be present in their Legislative Right and if they were there then this Negative way of Argument proves nothing that is they de facto were not there therefore de jure they ought not to be there This I confess is subtle but not solid 't is all grounded upon no greater Authority than Supposition First the Reversal was by Act therefore the Judgment was so too this doth not follow for many Judgments in Parliament may be reversed by Act of Parliament which were not so pronounced His second Conjecture hath as little weight because some Historians say it was by Judgment in Parliament therefore by Act because it is not a Parliament without the King and Lords and Commons for except this be his Argument it is of no force at all for it might be and doubtless was by Judgment in the Lords House which in ordinary Speech was called Judgment in Parliament nay how often doth himself infer the Presence of the Bishops from the Words Full Parliament when the Commons were not concerned and indeed meant no more than a full House Lastly Wigmore desiring the Statute and Judgment might be reversed proves as little for every thing ordained that is Statutum is not presently an Act of Parliament though every Act be Statutum Beside I do not find Statutum in the Record but only the Word Judgment used so that for ought appears from our Author the Bishops might well be absent at the first Judgment against Mortimer and not comprehended under the Name of Peers They have less reason to think themselves included under the Name of Barons if we well consider the words of Petrus Blesensis who living in the time of Hen. 2. well knew both what Honour they had and what they pretended then to whose Words are Quidam Episcopi Regum munificientias Eleemosynas antiquorum abusivè Baronias regalia vocant in occasione turpissimae Servitutis seipsos Barones vocant Vereor ne de illis quereretur Dominus dicat Ipsi regnaverunt non ex me Principes extiterunt ego non cognovi scias te accepisse Pastoris officium non Baronis c. Vacuum a secularibus oportet esse animum Modis omnibus cura ne secularibus te involvas Pet. Blesens edit ult p. 551 552. By this learned Arch-Deacon in his Tractate de Institutione Episc. you may be satisfied that he did not believe that Bishopricks which arose from the Bounty of the King or Alms of the People were ever erected into Baronies by the King but abusively or wrongfully so called by themselves who being charged with the Service by the King had a mind to attribute to themselves the Name since they did the Service For he saith they did abusively or wrongfully call their Possessions Baronies
and Royalties and themselves Barons both blaming and threating them from God for so doing and involving themselves in Secular Matters This Author flourished in the time of Hen. II. ancient enough to know the truth and how they were look't upon in those days Moreover I do not find it can be made appear except conjecturally that they were ever present where they were not first named The Honour of their Function makes them be called before Dukes and Earls and being by that reason Pralati leâ—… no Man deprive them of their Right and by Post-Position make them post Lati. Lastly This Person being executed in 4 Edw. 3. as appears by the Record in 28 E. 3. Cot. p. 85. without any Accusation or Answer makes me believe the Bishops being Men of Piety would not by their Prefence countenance so illegal a thing tho they had had Right without entring their Protestation manifesting their dislike of it neither do I believe their Spirits so humble to suffer a Post-Position of their Titles But this whole matter will I conceive be better cleared if I shall acquaint the Reader with something more concerning this Roger Earl of March than hath yet come to this learned Person 's Knowledg In 5 Edw. 3. the very next Year after the summary Judgment was given against Mortimer and Matrevers a Commoner at the Complaint of the King we find inter Brevia Baronibus direct 5 E. 3. m. 33. penes rememorat Dom. Regis in Sâ—…cio that those Judgments were per Comites Barones alios Pares Regni not a Syllable of the Prelates nor can the word alios take them in since in the whole current of Records the Prelates were never placed after Earls and Barons And the alij Pares were either such as might be extraordinarily summoned an usual Practice at that time or they were the Barons Peers viz. Barones Minores besides the succeeding words clear the Point For there was in 4 E. 3. an Agreement and Concordia made by the Lords and Commons that such Proceedings should not for the future be drawn into Example to judg Commoners to death upon Summary Articles without any Concurrence from them Now this Concord was made by the Temporal Lords not by the Prelates but per nos Pares praedictos nec non Communitatem Regni in eodem Parliamento Now in 4 E. 3. the Reference was made to the Earls and Barons the Peers to whom of right such Judgments belonged and no Prelates comprehended and here they are called Pares praedicti Add to this Rot. Parl. 13 E. 3. Numb 8. Le grant des Graunts where an Aid was granted to the King then in war with France The Record saith Les Countes Barouns esteantzen dit Parlement Granteront pour eiix pour leur Peers de la terre qui teignent per Baronie la desme garb la disme tuzon la disme Aignel de touts leur demaignes Terres Now if the Prelates were understood by the word Peers in this place then it must be granted that the Earls and Barons taxed the Prelates who always taxed themselves and the inferiour Clergy in Convocation But the succeeding words will clear the matter which run thus in the same Record Et pour ceo quil fu aviis as Prelatez Countes Barouns autres Graunts que pour les ploite des besognes c. the Record is touching a speedy Supply to the King Here we see where the Bishops were concerned they were named which shews they were no more comprehended under Peers before than under the word Magnates in this Clause I could multiply Records to this purpose and am confident no clear Example can be given where they were necessarily comprehended after Counts and Barons The next Authority he quotes to weaken the Authority of those he calls Negative Precedents is the case of the Murther of Iohn Imperiall a publick Minister sent from Genoa This Case I conceive is not truly stated by the Author of the Letter and misapplied by the Grand Questionist The Point in question in the Record was what Offence the Murther of this publick Minister was which matter was referred to the Judges for their Advice who agreed that it was Treason within the Statute of 25 E. 3. This their Judgment was confirmed in Parliament whilst the Doubt was in Agitation among the Judges 't was not material who was there But after they had given their Sense what was meant by this Confirmation in Parliament is the next Question Whether more were meant than an approving of the Opinion given by the Judges by them drawn up in form and this may well be the meaning of that whole Proceeding which Practice is usual in our days but cannot be called a Judgment in Parliament tho it might be their Opinion But if you will rather believe it to be by Act of Parliament then must the Commons be Parties of whom we hear no mention nor any Statute to that purpose extant that I can find and in that Case the Bishops might have been present if they would and whether they were or not is not material Vid. Cot. 3. R. 2. N. 38. p. 183. Yea in Acts of Parliament when the Sentence comes to be given they are to withdraw as it was held by Mr. Edward Bagshaw a learned Reader of the middle Temple who for some Opinions by him held touching the Bishops was by the Power of Arch-bishop Laud suspended from proceeding in his reading Rushw. Hist. Coll. Tom. 2. p. 990. The next Precedent is in 5 E. 3. Which in conclusion will do him as little Service as the former The Author of the Letter pag. 7 8. tells us that that Parliament was summoned for redress of the Breach of the Law and the Peace of the Kingdom and the Record saith further that 't was to consult touching Lands in Guienne and the Marriage of the King in which the Bishops went away and returned no more I confess I know no reason but they might have staid it seems they thought otherwise being in all likelihood privy to some Actions to be treated there wherein Sentence of Blood might be pronounced But be their reason what you will their words are these Et pour ceo que avisefust a les dits Prelates qu'il nattient proprement a eux de Counseiller de la gard de la paix de chastiment de tels malvois s'allerent mesmes les Prelates Which words do not only import that they voluntarily went away but that it did properly behove them not to be present in such matters or to give Counsel for the Punishment of such Crimes The same word is used in 1 Hen. 4. Cot. p. 392. where the King by the mouth of the Arch-bishop of Canterbury declares that the Commons in that Case were only Petitioners and that all Judgments belonged to him and the Lords belonged that is the Commons had no Right thereto so here nattient proprement is that
properly they had no Right thereto That all Judgments belonged to the King and Lords is only an Affirmation of the Arch-bishop but binds not the Commons See Posthu Cottoni p. 350. For I think it very plain that anciently the Commons as well as the Lords had their share in Judicature I shall touch some Records which the Reader may consult at leisure Rot. claus 12. E. 2. m. 5. in the Case of Hugh Audley and his Wife Margaret the Relict of Pierce Gaveston they petition'd to be restored to certain Lands given to Pierce A nostre Signure le Roy son Consâ—…l Prelatez Countes Barons del ' sa terre the Petition was brought into full Parliament and debated habito diligeâ—…i tractatu in pleno Parliamento tam per Prâ—…latos quam per Comites Barones totam Communitatem Regni Concordaâ—… Consideratum 't was ordained considered and agreed per Praelatos Comites Barones totâ—…m Communitatem Regni that all the King's Grants to the said Pierce Peter and his Wife should be revoked and the Deeds cancelled Et quod istud Iudicrum intretur in Rot. Parliament in Cancellariâ—… exinde â—…iur in scaccarium ad utrumque Bancum to be enrolled Nothing can be plainer than that this was a Judgment and no Act of Parliament and that not concerning Blood the Prelates concurred and that probably both Houses sate and voted together as one Body I shall add one Record more in a Capital Case and that is entred Rot. Patent 3 E. 3. pars prima me 33. The Case of Adam Orleton or Tarlton Bishop of Hereford and after of Worcester This Bishop was about 17 E. 2. convicted of Treason before Sir Henry Staunton and other Justices In 1 E. 3. he petitions that the Process and Record in which there was Error might be brought into Parliament and examined and he restored to his Estate Praetextu hujus petitionis mandatum fuit by a Writ Galfrido de Scroop who had the Record quod venire faceret recordum processum praedicta quae sunt in custodiâ suâ in pleuo Parliamenio where after he had assigned several Errors the Record concludes Et quia videtur Dom. Regi praefatis comitibus Proceribus Concilio Dom. Regis toti Communitati Regni convocatis ad Parliamentum quod praedictum recordum processus omnino erronea sunt rationibus praedictis concessum est quod eadem recorda processus adnullentur c. This was clearly a Judgment in Parliament in which the Commons were certainly present and that it was not an Act appears plainly for the Record was certified and Errors assigned and 't is worth observation that he did not assign for Error that he was before convicted by a common Jury but admitted it legal Next I think the Prelates were not Parties to the Reversal of the Judgment given in 17 E. 2. for it is coram Praefatis comitibus Proceribus c. though they were at the recital of the Errors neither is it much material for they might very well be Parties to the Examination of a Judgment in a Capital Case for whether they concurred either in affirming or reversing the Record that made them no Parties to the first Judgment but is only a Concurrence in Opinion that what before had been done by others was well or ill done by them I could cite many other Records where the Commons were present in Parliamentary Judgments but let these suffice But this may seem too large a Digression since I was upon the consideration of 5 E. 3. in which I say Secondly It doth not appear that this was an Advice taken up by themselves for the words are not fust avise par eux or ils furent d'avis it was thought fit by themselves but are et pour ceo que avis feust a eux that is because Advice was given them by others to go away they absented themselves probably in Obedience to those Laws which forbad their Presence And they returned no more saith the Author of the Letter p. 8. and the Advice was given by the Lords Temporal only No saith the Grand Questionist p. 102. The Bishops and Proctors of the Clergy went only into another Room to consult therein which was usual in those times I do not at all doubt but the Members of Parliament have several Rooms to retire to upon occasion but that in this Case they did go apart to consult and give Advice in this Business seems very unreasonable for any one to believe because they had but immediately before declared that the Consideration of such matters properly belonged not to them to meddle with and accordingly withdrew certainly no considerate Man will think they went to consult about what they in the same Breath said belonged not to them Besides we see the return of the Lords and Commons without any mention of the Bishops and the Advice given by them by the mouth of Sir Henry Beamont their Speaker which Advice was afterwards put into a Law and then the Prelates might be present tho they were not at giving the Advice For the Record saith It was enacted by the King Bishops Lords and Commons which then became a Law to which the Prelates might justly give their Consent in their Legislative Capacity whatever it concerned Where note that Sir Robert Cotton translates Grands Commons I think with good reason though carp't at by Mr. Prin in the Margine for we heard nothing of them before and soon after we find them named and undoubtedly concerned in all Proceedings before See Matth. Paris p. 55. Magnates Grands comprehends Counts Barons Knights or any other considerable Person together with many others which would be endless to quote Having before shewed that what our Author calls negative Precedents were not simply so and that the Author of the Letter had great reason to believe them absent where they were not named and where the Laws forbad their Presence especially having on his side the Authorities of 4 E. 3. Numb 1. of 1 H. 4. Numb 80. where the Temporal Lords assume unto themselves the power of judging Peers which Opinion is also made good by the late Votes of the Lords in Parliament May 15 1679. By the Case of Dr. Leighton in the Star-Chamber 6 Car. 1. It is evident that the Prelates were not look'd upon in the same sort that the Temporal Peers were for the Information against him was for writing a scandalous Book against the King Queen Peers and Prelates where Peers and Prelates are contra-distinguished and not taken synonymously as may be gathered by the Sentence and being another Body were judged as Peers to one another not to the Temporal Lords I come now to the Consideration of what he saith pag. 90. he there alledges that many of those the Author of the Letter calls Negative Precedents if they prove any thing prove too much for some of them admit they were not present
when they might have been others that they were present when by his own Rules they should have been excluded either therefore the general words where they are not mentioned do not enforce their Absence or that they oughtto have been excluded at some other Trials where the Author of the Letter admits they were or might have been present The chief Case he instanceth in is that of Michael de la Pool Chancellour of England who was accused of many Misdemeanours by the House of Commons and as I think he would infer such as Thorp Chief Justice was found guilty of being Capital where the Author of the Letter saith the Bishops were not present yet allows them to have been present in the Case of this Chancellour a parallel Case as he saith with that of Thorp either therefore saith our Author they might have been present in the Case of Thorp or they should have been absent in Trial of Pool This is his Argument as near as I can gather out of his Words put together something obscurely I need give no other Answer to this than to lay before you the words of the Record This Accusation was exhibited by the Commons in 10 R. 2. against Michael de la Pool Lord Chancellour in full Parliament before the King Bishops and Lords and six Articles were objected by them against him The first was That he purchased Lands of the King of great value whilst he was Chancellour the other five as the Record saith were only Quarrels and of little concern To the first and most considerable the Chancellour put in a fair Answer the Commons reply and urge things to the utmost and amongst other things say That whereas by the Popes Provisions a Person was recommended to the Priory of St. Anthonies he the said Chancellour would not suffer him to be admitted till the Grantee had contracted to pay to the Chancellor and his Son 100 l. yearly and then parallel this with Thorp's Case and would have had the Chancellor in the same fault with Thorp for Bribery as a Judg and consequently incur the same Judgment The Chancellor replies and shews great difference between the Cases Upon the whole matter Judgment was given against him pursuant to the Accusation for Misdemeanours only in which the Bishops were and might be present and the parallelling it with Thorp's Case was only in the Management of the Cause by the Commons and no part of the Accusation Neither is it reasonable to believe that which our Author asserts in the same Page that the Prelates were free Agents and might withdraw at some times and be present at others as they saw cause For beside that this is contrary to the express Law of Clarendon which expresly declares that 't is their duty to be present in all Proceedings in Curia Regis which in that place must be understood of the Parliament because they were to be present with the other Lords tho I know that Curia Regis is sometimes taken in a more laxe Sense for all the Courts in Westminster are the King's Courts and unto which they were to give Obedience and Attendance in Cases not prohibited I say over and above this Act at Clarendon it seems to me very unreasonable to suppose that such a Body of Men had liberty to give their Attendance when they pleased without leave of the House or cause shewed why 't was fit they should be absent or that the Author of the Letter meant more when he saith they might have been present than that they were not prohibited by the Law of Clarendon which only had Relation to Matters of Blood But these Men had other Canons to go by when they thought fit as well as those of Toledo and 't is probable enough that the rest of the Noble-Men finding them most constant Factors for the Pope were willing enough to let them be absent upon any colourable Pretence when they desired it Is not one clear Precedent against them in point of greater weight than many dubious and equivocal ones which cannot without great Art be wire-drawn to speak to their advantage Let him consult the Discourse of Peerage pag. 17. The Case of the Earl of Northumberland 7 Hen. 4. Rot. processus cor Dom. Rege in Parl. in 5 Hen. 4. This Noble-Man came into Parliament and confessed before the King and Lords that he had done against his Allegiance in gathering Power and giving Liveries this Fact by the Lords was adjudged no Treason for which he gives Thanks to the Lords his Judges and a day after the Commons do the like where the Prelates are named as our Author affirms and to which I shall speak by and by But in 7 Hen. 4 the same Earl was in actual Rebellion in the North and his Forces dispersed by the Earl of Westmarland but he and the Lord Bardolf fled into Scotland the rest were most of them taken Prisoners This Case came into Parliament where the King commands the Lords Temporal Peers of the Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and Lord Bardolf Nothing can be plainer than that the King look'd upon the Lords Temporal as those Peers who were proper to give Judgment touching their Fellow Peers who had fled from Trial in a case of Blood The Record goes on the said Lords advised thereupon and gave Counsel to the King Then the said Lords Peers of the Realm by assent of the King order summoning the said Lords to appear at a day given or to stand convicted by Award of the Peers in Parliament The King farther demanded the Opinion of the Lords Temporal touching the Arch-bishop of York who was in the same Treason The Lords Temporal by the Assent of the King and by their Authority declared and awarded the said Earl and Lord to stand convict of Treason for not appearing upon Summons 'T is very clear that this whole Business was transacted by the Lords Temporal without the Bishops and with the Concurrence of the King 'T is not to be believed that the Bishops would have sate quiet had they thought themselves wronged in these Proceedings See the Discourse of Peerage pag. 17 18. I think it hardly possible to find a more clear Record in the Point than this is First here were two Noble Lords defeated in actual Rebellion and fled from Justice into Scotland The King upon this would not so much as consult with his Prelates knowing them by Law no proper Counsellours against Peers in matters of Blood applies himself to his Lords Temporal they order Proclamations by order of the King enjoyning the said Lords to appear at a day certain or to stand convict they not appearing are by Award of the Lords Temporal convicted of Treason and a Year after one is slain the other mortally wounded at Bramham-moor in York-shire Can any thing be more agreable to the Practice at this day against Men that fly from Justice and
guilty he shall be degraded and delivered over to the Temporal Power But if he be first arrested by 〈◊〉 Secular Magistrate and tried and found guilty he shall be delivered to the Bishop to be deprived and then delivered back to Punishment The Precedent of Thomas Merks Bishop of Carlisle our Author allows to be against him but asks whether one Precedent before the time of Hen. 8th be sufficient to expound Magna Charta for in this Case the Immunities of the Church were considered and a Declaration by them that their Priviledges extended not to Treason But for a full Answer I say first that there are more Precedents than one but if there were not would not one with the constant Opinion of all Lawyers and Judges be enough to prevail with a dis-interested Man to believe that the Peers in Magna Charta and the Lex Terrae do not intend Bishops to be such Peers as are to receive their Trial by Noble-men But what Exception can be taken to those Cases after and in the time of Hen. 8th Did he not continue the Roman Religion all his time was it more against his Prerogative than of any of his Predecessors 'T is clear enough that the Proceedings before as well as after were according to Law notwithstanding the Clamour of the Clergy as is plain by Mr. Selden I shall now consider the Case of Adam de Orlton alias Tarlton Bishop of Hereford All Historians of those times as well as other later ones set sorth the violent Proceedings of the Clergy in that matter who took him twice out of the Hands of Justice But it appears by Mr. Selden by the Record Hill 17. E. 2. Rot. 87. Dors coram Rege that he was arraigned in the King's Bench and upon question how he would be tried refuseth to answer there Day is given and the Indictment brought into the Parliament where he makes the same Plea that he is by the Will of God and the Pope Bishop of Hereford and that he ought not to answer before that Court. Here you see whatever the Carriage of the Clergy was and what-ever Judgment was given against him His Exceptions were as much against any Trial in Parliament by the Lay-Lords as else-where And that consequently the Injury they conceived done to them was that they should be tried in any Secular Court whatsoever This you may see in Du Fresnes Glossary Verbo Par. The Trial he required was per Episcopos Pares suos By the Bishops his Peers This appears also by the Complaint of the Bishop of Ely that he was brought to be tried coram Laico Iudice before a Secular Judg. By this our Author's Mistake may appear who saith pag. 144. That they look'd upon themselves out of Parliament as having no Peers in Judgment but Bishops when it is evident by the Case of these Bishops that they made the same Exception as to their Trials before the Lords in Parliament that they did before the Secular Judges out of it and pretended they ought not to be tried before any Lay-Judges whatsoever Neither did they look upon themselves under the same Condition that Lay-Men were but being a distinct Body among themselves thought it reasonable to be judged by themselves only and in their own Courts an Innovation the Law never allowed or gave any Countenance unto I confess I cannot but wonder that any one Person of how great Parts soever should go about to contradict the Opinion of very many learned Judges who have all asserted the contrary to wit that Bishops ought to be tried by Commoners and no one Lawyer of any note that I know of hath hitherto maintained the contrary Methinks those of the Long-Robe should be tender in opposing the Judgments of Stanford Cook Doddridg and Selden except their Opinions were back'd by the Authority of Judges equal in Ability and Learning to those before named Having thus cleared the Precedents urged by Mr. Selden and others from the Exceptions of this Author let us now see what is alledged by him to prove that it was not always so but that sometimes they were tried by the Noble-Men as their Peers in Parliament And to that purpose he propounds the Case of Stratford Arch-bishop of Canterbury out of Arch-bishop Parker's Antiq. Ecclesiae Britan. who tells you that Stratford was at the King's Suit accused of Capital Crimes in the Exchequer that he put himself upon his Trial in Parliament that a Parliament was called and he after some Opposition admitted into the House and there as our Author saith put himself upon the Trial of his Peers this it seems is the Relation of Matth. Parker By the way whom he meant by his Peers doth not yet appear whether the Clergy only or the Lay-Lords But let us have recourse to the Record as it is abridged by Sir Robert Cotton 15 E. 3. Numb 8. The same day the King came into St. Edward's Chamber commonly called the Chamber de Pinct the painted Chamber before whom all the Lords and Commons the Arch-bishop of Canterbury humbled himself and required his Favour which he granted Afterwards the Arch-bishop desired that where he was defamed through the Realm he might be arraigned in open Parliament before his Peers probably by his Peers he understood the Bishops as others had done and not the Lay-Lords Besides this seems to be a Desire of his at a Conference before the King and Lords for it was in the painted Chamber whereas the Commons usually sate in the great Refectory now called Westminster-Hall Let us observe the King's Answer which was that he would attend the common Affairs and after hear others where we see the King did not grant his Desire but gave only a Dilatory Answer Lastly it doth not appear that he was ever arraigned in Parliament for the Record saith Numb 49. And it is to be remembred that all things touching the Arraignment of the Arch-bishop of Canterbury should remain with Sir William de Kedelsby Keeper of the Privy-Seal By which it is evident that these things were not then put into the Hands of Sir William de Kedelsby but to remain there where probably they were before and were only some Papers relating to what was before done in the Chequer for I find no Arraignment recorded about that time Two Yearsafter viz. 17 Edw. 3. Numb 22. All the Proceedings against the Arch-bishop were cancelled by order from the King so that nothing appears to have been done against him to any purpose either in Parliament or else-where 'T is true there was a continuance of the Parliament in 15 o from day to day for a Week about the Trial of Noble-Men that they should not be put to answer but in open Parliament by their Peers to which purpose there are named four Bishops four Earls and four Barons as a Committee to draw up the Plot. These Persons being in their Device assigned as hereafter doth ensue Under the Name of which Peers they
bring in the Chancellour and Treasurer and such like Officers and that all Estates should enjoy their Liberties 15 E. 3. N. 6 7 8. Here was indeed a Matter concerning Trials of Noble-Men had under Consideration but never reduced to any Law as the Practice of subsequent Times and the late Bill of the Lords about Trials do enough manifest But doth it not appear by this Record that the Bishops were not reckoned Nobles of the Land when he finds the Chancellour and Treasurer and such like Officers attempted to be brought in at that time and so not to have had any Right before But saith our Author it after follows that they may not lose their Temporalities Lands Goods and Chattels Now none were capable to lose their Temporalities but Bishops therefore this Law must have respect to them as well as other Nobles of the Land The Answer to this is very easy that the Clergy who had then all Power did endeavour to bring in their Fellows the other great Officers who were almost all Church-men Simon Langham Arch-bishop of Canterbury was Chancellour William Molso Dean of St. Martins le Grand Receiver and Keeper of the Kings Treasure and Jewels with many others as you may find Baker p. 141. These had Temporalities to lose and such Officers the Church always hoped to have had of their own Tribe but as I said before of this Attempt came no other Effect than to shew their aspiring Thoughts And whatever Opinion the Author of the Iurisdiction of the House of Peers is of as to the Roll of 4 Edw. 3. I believe the Law at this day will not be so taken that a Chancellour being no Peer shall be so tried by reason of his Office I am sure my Lord Keeper Bridgman being no Peer never voted in the House of Lords and the present Lord Chancellour when he gives his Vote goes to his place as a Baron See Hakewell p. 114. Ancient Customs how these great Officers are placed in Parliament when they are Peers and when not and certainly if their placing be different their Trials ought to be so too Neither can it seem reasonable to any considerate Man that a Person though such an Officer should not be capacited to give his Vote as a Baron and yet by virtue of his Office should be tried by Noble-Men Therefore I must take leave to deny what he affirms that they are Peers by virtue of their Office or that they have Right to be present in Parliament in all Cases of Judicature so as to concur in Sentence with the Nobles of the Land as our Author affirms pag. 132. The King may make whom he pleases Chancellour and the Statute assigns his Place but he cannot vote there without the King's Letters Patents to that purpose as I conceive See Old Modus Hakewell p. 14. I have in the first Chapter of this Treatise spoken largely to that Point and shewed in what sense a Bishop may be called Peer of the Realm And pag. 90 and 91. have handled the matter of Proxies therefore may pass over the Case of Arch-bishop Arundel which our Author proposes pag. 128. To the Case of William de la Pool I have spoken before only shall here observe that the submitting his Cause to the King was no waver of his Peerage for the matter never came to any formal Issue consider thâ—… Case of Nicholas Segrave in 31 Edw. 1. Ridley p. 266. who being accused of many Crimes Segrave being summoned thereunto appears in full Parliament confesseth the Fact and submits to the King This was no Waver of any Legal Trial by his Peers nor any disrespect to the Lords who might otherwise have ordered the summoning a Jury to try the Fact but by the King's Pardon that labour was saved The like may be taken notice of in that famous Case between the Earl of Hereford and Essex against the Earl of Glovester and Hertford in 20 Edw. 1. Riley p. 74. Where upon a very long pleading the Case in effect proves to be but this The Earl of Hereford complains to the King of great Robberies Depredations and Murthers committed by the Earl of Glocester in his Lands in Brecknock after the King's Inhibition The King for Remedy of this appoints the Bishop of Ely William of Valence his Uncle Iohn Mettingham and Robert Hertford to hear the Complaints of the said Earl and also the Answer of the said Earl of Glocester and his Servants to the Complaint of the Earl of Hereford and to summon a Jury for the Trial of the same and also commanded Robert Tiptoft Iusticiario suo de Westwell to be there present and to summon the said Delinquents to be before the said Commissioners and that Enquiry should be made per Sacramentum tam Magnatnm quam aliorum proborum Hominum Legalium de partibus Walliae comitat Glocest. They that is the Magnates which it seems were Noble-Men excepted against the taking an Oath and said 't was unheard of and that they would do nothing sine consideratione Parium suorum The Jury give in their Verdict against Glocester the Parties all submit to the King who by the Advice of Arch-bishops Bishops Earls Barons and the rest of those who were of his Counsel declare that the Earl of Glocester had forfeited his Liberties c. The words are Videtur tam ipsi Dom. Regi quam caeteris Praelatis Magnatibus reliquis de Consilio ejus quoad Comitem Glocestriae quod Libertas sua praedicta viz. totum Regale in Terris suis praedictis de Mergannon cum pertinentiis pro se haeredibus suis foris facta est ratione delicti praedicti c. In this Record there are many things Observable First The Bishop of Ely here mentioned was not a Judg in this Case between the two Earls but joyned in Commission with others who were empowered to summon a Jury to enquire of the matter of Fact not to condemn either Party but was only in the nature of an Inquest or Grand-Jury in order to a Trial. 2. That Noble-Men Magnates such as refused to take an Oath were returned of the Jury 3. That the Verdict was given in to the Commissioners notwithstanding some of the Jury were not sworn 4. That the Jury was summoned out of several Counties viz. Glocestershire and Wales Lastly and that for which I have chiefly produced it that this Submission of both Parties to the King was no waver of their Peerage Neither doth it appear that this Award made by the King with the Consent of those Prelates Earls c. was made in Parliament tho it be inter Placita Parliamentaria but only by such private Counsellours as the King thought fit to make use of in that Affair That it was no Parliamentary Judgment is evident from these two Reasons First The putting themselves to the Reference of the King was no putting themselves upon any Trial by their Peers because that should have been done only
many all the Grantees were Tenants in Capite and owed the same entire Service that the first Grantee did 1. His Errours upon his first and second Heads cannot be truly shown unless they be fully transcribed in their full Dimensions When the Conqueror says he did innovate his Tenures in Capite and made all Men of great Estates Barons and by their Tenures and Estates Members of Parliament we then had such Laws quas vulgus elegerit and the nwe had materially our three Estates though not so well sized and sorted as since We had then I say many great Free-holders in every County that by their Tenures were Members of Parliament whereas now we have but two and tho the People did not not chuse them yet the Men of that Order seem chosen once for all interpretatively by the People in their consent to the Government In this Constitution scarce any Man that was fit to be chosen but was without the Peoples choice a Member of Parliament as there now are more who are fit to be chosen than they can chuse so that the Barones Minores were then instead of Knights of the Shire and the Barones Majores Bishops and Earls did then as now make the Parliament Besides Barones Majores and Minores there was at this time a distinction between the Barones Regis and Barones Regni which I will explain to prevent any Mistake that may grow thereupon The Barones Regni were Barons by Tenure and made part of the Government by the Constitution of the first William and so in process of Time called Barones Regni because they had by Continuance of that Constitution acquired a fixed Right to that Honour But because of the frequent Wars between the Barons and the Kings at that time they did omit to summon some who were Barons by Tenure and now duly called Barones Regni to Parliament and called others that had no Right to be called Ratione Tenurae and those they called Barones Regis This was ill taken by the Lords and was one of the occasions of their War with King Iohn upon which they obtained his Charter for Remedy as follows Barones Majores Regni sigillatim summoneri faceret the truth of this as to the Fact will appear by the History of those Times and that this is the reason of this distinction of Barones Regis and Barones Regni doth appear by the recited Charter of King Iohn where the Majores Barones are called Barones Regni for the Barons were more concerned for the losing of their Honours than they were at the Communication of the like Honour to others and with reason though all Honours are lessened by the numbers of those that participate of them The Inconveniency and Mischiefs of this Constitution were very great and very sensible by making the Government to consist of one Order there was no third to moderate and hold the Ballance I shall not here enlarge upon his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Conquest nor upon his Conjecture of one of the Occasions of the Barons Wars nor yet upon his notion of three Estates materially the same when but one Order and by the same reason if all were in one by virtue of his Spiritual and Temporal Power and he had by a Conquest all the property of the Nation here the Government was materially the same with Lords Spiritual and Temporal and Commons in his Belly as when he had disgorged and scattered abroad the Property and Power But to the purpose of the above-mentioned Heads 1. Whereas he will have it that only Bishops and Earls were Majores Barones it appears manifestly to the contrary from the words of King Iohn's Charter which he mistakes Submoneri faciemus Archiepiscopos Episcopos Abbates Comites Majores Barones Regni Sigillatim Here are Majores Barones Regni after Bishops and Earls And I need not here remind him of the Vanity of the Notion of making Majores Barones exegetical or comprehensive of what went before 'T is certain if Bishops were Majores Barones as well as Earls here are others intended also and why are not such as held whole Baronies as some did Great Barons Besides you shall find numbers of Barons to have received particular Summons even to the Wars according to the Provision in King Iohn's Charter for summoning the Majores Barones Sigillatim I will give him some Names and see whether he makes Earls of them all Three Bassets William de Harecourt Roger de Somerey Iohn Forreigner Extraneus Richard de Grey Ern. de Bosco c. But if all these were Earls what thinks he of the nine hundred and odd who received special Summons De veniendo ad Regem cum Equis Armis usque Berwicam super Twedam in the 29th of Edw. 1. 2. Whereas he will have it that the Barones Regni were Barons by Tenure and the Barones Regis by Call to Parliament he might have known that every Baro Regis was a Baron of the Kingdom but every Baron of the Kingdom was not Baro Regis in a strict Sense Wherefore accordingly King Iohn's Charter confines the special Summons which as I say was to the Curia Regis to such Great Barons of the Kingdom as held in Capite There being after Majores Barones Regni in a different Provision Et omnes alios qui de nobis tenent in Capite Wherefore when all the Barons of the Kingdom were summoned it took in the Majores and Minores both those that held in Capite and otherwise But when they are used distinctly 't is wholly contrary to his Supposition for the Barones Regis were properly and strictly they who held immediately of the King as all manner of Authorities warrant Indeed I am almost ashamed here to bring Proof of a thing so evident But he may please to observe that Thanus and Baro were always of the same Acceptation Thanus Regis was strictly he who held Lands of the King by any kind of Tenure and so was Baro Regis tho somtimes appropriated to him that held by Knights Service and an ordinary Thane was no more than an honest Free-holder by any sort of Tenure as appears by Dooms-day-Book it self But I conceive the Difference between Baro Regni and Regis is sufficiently shewn in this following Authority In the 23d of Hen. 2. Benedictus Abbas tells us the King summoned Magnum Concilium de Statutis Regni sui coram Episcopis Comitibus Baronibus Terrae coram eis per Concilium Comitum et Baronum Militum et hominum suorum he made the fam'd Assize at Northampton Here are Barones Terrae or Regni and Barones Milites et Homines sui Here either all the Barones Regni were Barones Regis or sui And then his distinction between Baro Regni and Baro Regis falls to the ground there being no Difference or else there is that very Difference I stand upon viz. That the Barones Regni were comprehensive of all sorts of Barons the
Barones Regis were the King's Tenants in Capite Amongst which there were Knights at least And the Homines sui I take it were his great Officers and Justices These made a Select Council acting in Parliament and out of it either in a full Body or contracted by Agreement as I could easily shew But the Tenants in Capite were the King 's ordinary Council and therefore manifestly the Assize there was drawn up and advised by them in full Parliament with the Consent of all the Barons of the Kingdom under which in those ancient Times omnes quodamodo ordines Regni continebantur as Mr. Cambden observes But 't is observable that here 't is Homines sui or Regis to shew that the Justices and others who came not upon the account of Free-hold but as the King's Servants were not to be termed Barones sui A few Years before this there was a Summons for an Assembly at this very place and 't was manifestly no more than a Curia Regis 1. Whereas there were the Barones Terrae at the last above named to this were summoned only Tenants in Capite 2. Whereas then they were to exercise a Legislative Power de Statutis Regni this was only for a Judicial Power such as Tenants in Capite exercised by themselves for 't was only upon the Case of Becket 3. Whereas the former was called Magnum Concilium de Statutis Regni this Magnum Concilium as some call it was but Curia Regis Barones Curiae Regis adjudicaverunt eum esse in Misericordia As Hoveden informs us Now the Question is Whether those Tenants in Capite the Barones Curiae were Barones Regis which that they were I think is very obvious they being by reason of holding of the King obliged to attend at his Court And that these were the King's Barons or Barons of his Court or owing Suit and Service there must needs be synonimous But utterly to silence this Gentleman he grants that Hen. I. was crown'd in an extraordinary Convention of the People that is more than Tenants in Chief consented to that Change in the Succession Now that very King's Charter says 't was Communi Concilio Baronum Regni when among these he comes to mention such as held of him in Chief he calls them his Barons emphatically not but that all were his Barons in a remote sense Si aliquis Baronum meorum vel Comitum sive aliorum qui de me tenent mortuus fuerit haeres suus non redimat Terram suam sicut faciebat tempore Fratris mei This Relief it seems in his Brother's time was uncertain and immoderate and was by him reduced to the old Standard as 't was in Canutus his time as appears by the Comparison of the Laws of both The Earls Relief was eight Horses four with Furniture four without besides Arms and a certain quantity of Gold The Thanus Regis primarius as in King Canutus his Law or qui ei proximus as in Henry the 1st paid for Hereot or Relief which there were synonimous four Horses two with Furniture two without c. The Mediocris Thanus paid one Horse with Furniture and other things more or less according to the Custom of the Places under different Laws Here was Thanus or Baro Regis primarius the same with Baro Major and Thanus Mediocris or Baro Minor one of the alij qui de nobis tenent in Capite mentioned in King John's Charter And surely no Man will say that this Relief was not payable because of tenure in Capite By the 17th of King John it had become customary for the Relief to be paid in Money as appears by his Charter Siquis Comitum vel Baronum nostrorum sive aliorum tenentium de nobis in Capite per Servitium Militare mortuus fuerit relevium debeat habeat hareditatem suam per antiquum relevium scilicet haeres vel haeredes Comitis de Baroniâ Comitis integrâ per centum libras haeres vel haeredes Militis de integro feudo Militis per centum solidos ad plus et qui minus debuerit minus vel secundum antiquam consuetudinem feudorum Here Baro noster was manifestly the same with Thanus Regis in the older Laws and Baro de Baroniá integrâ with Thanus primarius or qui ei proximus The Mediocris Thanus Regis was the Miles or libere tenens one holding in Chief by Knights Service by whatsoever Proportion of a Knights Fee And by this time I think 't is evident that they whom Mr. Hunt supposes to have been the only Barones Regni were in a strict Sense the Barones Regis and but part of the Barons of the Kingdom 3. Whereas he Imagines that if a Tenant in Capite by Knights Service granted out to never so many they all owed the same entire and indivisible Service to the King and were his Tenants in Capite in this he must needs have been mistaken But that I may not seem to misrepresent his Sense I shall transcribe his Words and then endeavour to bring them out of their Clouds The Feudal Baronage says he was as large and as numerous as the Tenures by Knights Service in Chief which were capable of being multiplied several ways for every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee In this Paragraph there are three postulata 1. That Tenure by Knights Service in Chief was Tenure by Barony 2. That every Tenure by Knights Service had some entire indivisible Service incident to it 3. That this entire indivisible Service was multiply'd to the benefit of the King upon the Tenants aliening any part of the Fee The two first I agree to his Hands but dispute the third I conceive with good reason For upon the first view 't is evident that if the Grantee of the King's Tenant in Chief by Knights Service would before the Statute of Quia emptores terrarum have been a Tenant in Chief by reason of the entire and indivisible Service incident to the Tenure of his Land by the same reason the Grantees of Land held of the King in Chief by Socage or other Free Tenure would have been Tenants in Capite because of Fealty which is as indivisible an incident to all other Free Tenures as Homage or any thing else belonging to Knights Service And by Consequence upon this Notion since the King even before the pretended Conquest had ratione Coronae the Supream Signiory of all the Land of the Kingdom as the Mirror shews All the Land of the Kingdom would have been held of the King immediately before the Statute of Quia Emptores terrarum And then to be sure ever after since that provided that Lands shall be held as the Feoffor held over which by this opinion must always have been of the King
258 to A a 263 wherefore the Point of Conquest examined and what improvement is made of the admittance of it 293 to 300 Constitutions of Clarendon expounded and the Bishops Wings clipt there 144 to 166 Convocation of the Clergy 81 82 127 137 S 290 Corporations an account of them and of their ancient Interest in Parliament 276 to 286 3d part Coventry its first Representation in Parliament B b 279 Crimes some that did laedere Majestatem Regiam not capital 172 in marg Curia Regis of various Acceptation 150 Curia Regis how far Mr. W. and Mr. Hunt agree with the Author against Dr. Brady as to its being distinct from the General Council of the Nation V 204 Objection against them where their Notion of it differs from the Authors 205 particular Objections against Mr. W's Notion of it 209 X 210 Mr. Hunt's mistake about it 231 to Y 235 D. DAnby's Plea O 197 Demeasn the Kings of England never had all the Lands of the Kingdom in demeasn 3d part p. 253 to 255 Dictare Sententiam how understood N 179 Doctor Oates vndicated P 222 Doctor Standish his Case 47 S 291 E. EArls and Barons are the Peers of the Realm 22 23 24 R. 263 Earls and Barons consiliarij nati 138 Earl of Arundel's Case O 208 Earl of Hereford and Glocester their Case T 287 V 189 Earl Godwin his Appeal Q 227 Earl of Northumberland 51 54 R 274 275 Earl of Salisbury Kent Huntington their Case 50 Ellis William's Case 35 Errors none by the Bishops absence 47 Estate Bishops but part of a 3d Estate 80 to 85 Exegetical where words used exegetically 52 X 213 Explication of several words quosque Judicium pervenior 155 156 Exposition of words according to the standing 18 to 25 52 X 212 to Y 226 and Q 233 234 F. FErrer's Sir Ralph's Case 39 Fitstephen's Authority examined 77 Fortescuâ—… his Authority B b 271 Form of Writs no Proof of Right 86 Franck-pledges at a Great Council of the Kingdom and who within them B b 273 274 275 283 284 G. GEntlemen how became so C c 285 Glocester Earl and Hereford their Case T 287 and V 189 Godwin Earl his Appeal Q 227 Gomentez and Weston their Cases 37 Grants where the Bishops not comprehended under that word itsextent 32 S 278 279 Government the same before 49 H. 3. as since 3d part 271 to 290 Gurney Thomas 26 H. HAxy Thomas his Case 43 Henry Hotspur's Case S 281 282 283 Huntington's Earl Case 50 S 280 Hunt Mr. the Censure of his Book Pref. to the second Treatise His wrong Translation of non licet in mar 157 His Mistakes Y 229 c. Reasons why he might have spared his Censures Y 228 229 I. IMpeachment when by the Commons the Lords obliged to to try a Commoner 14 Interesse ubi judicium sanguinis tractatur vel exercetur prohibited 158 John Imperial's Case 39 R 264 Irregularity P 221 222 223 Judicial Power in Capital Cases denied the Bishops in the Northern Kingdoms 90 Judicial Power denied them here by Canon Common and Statute Law Vid. Bishops Absence not meerly from the Canons Judgments in which the Bishops had share 11 Judicium a word of various Acceptations 155 Judgments alledged to be void for the Absence of the Bishops 11 195 O 196 Judgments in Parliament and the Curia Regis how reconciled General Pref. V fin K. KEnt Earl S 280 King cannot make an Estate 126 127 King Stephen's Grants reversed at Clarendon 141 142 King Rich. II. undecently reflected on O 194 L. LAwyers confessedly differ from the Questionist as to the Trial of Bishops T 277 and V 194 Laws made upon a dubious Title good 45 46 P 209 to 214 Laws concerning the matter and manner of their making 44 45 Lay-men used to meet with the Clergy in their Councils 157 Lee Sir John's Case 35 Legislative Power in capital Matters allowed to Bishops yet no judicial Power inferred Gen. Pref. 87 88 131 132 and even that an Abuse crept in since Hen. VIII 88 London a Corporation at the Common Law B b 282 Lord Latimer Lions Richard c. 35 Lords of Parliament 36 Lords Temporal expresly named in the Record as sole Iudges 40 58 and R 276 S 280 M. MAnucaptors B b 274 March Earl 22 Mautraver's Case 20 51 279 S 280 281 ibid. Modus tenendi Parl. its Antiquity 121 Molross the Abby its Case and the Authority of that Book answered G 206 207 Mortimer Sir Iohn's case whether judg'd by Act of Parliament 56 to 59 R 262 Mortimer Roger's Case 14 and R 262 N. NAmes equivocal no good Argument from thence P 227 Nevel Lord 35 Nobilitas Major how made 113 Bishops no part of such Nobility S 287 Northumberland Earl R 51 54 274 275 O. OAts Dr. vindicated P 222 Objections from Reason against Mr. W. and Mr. Hunt where they differ from the Autthor's Notion of the Curia Regis 3d part 205 206 Ocle William 26 Old-Castle Sir John 55 Old Modus its Antiquity 121 Omnipotency and the Bishop's Affectation of it in what sense understood by Lord H. 152 153 Orlton's Case R 267 P. PArdons made revocable at Pleasure O 195 Parliament when the word first in use 121 Parliament at Clarendon 139 Peace of the Bishops refusing to give Counsel about it 30 31 R 266 269 Percy Henry's Case 53 Peers of the Realm who 20 21 Pessimae Consuetudines what 140 142 Petrus Blessensis his Testimony 97 98 125 167 168 R 261 Plain dealing 147 Plea of the Earl of Danby O 197 Pool William Duke of Suffolk 13 T 286 Pool Michael's Case 33 34 R 272 Presidents urged against Lord Hollis make for him 14 Proctors or Proxies why the Bishops desire to make them 12 concerning their making them 46 162 197 199 B 200 201 204 205 Proprietors of Land as such their Interest in the Great Council of the Kingdom Y 230 231 and B b 273 to 291 Protestations of the Lord Hollis his Sincerity 6 Protestation made by the Bishops 11 R 2 5 6 7 8 41 42 43 and O 185 to 194 Protestations in the names of the Lords Spiritual and Temporal 8 13 Protomartyr 49 Q. QUestion concerning the Bishops stated 10 11 R. REcapitulation of Arguments against the Bishops being Iudges in case of Blood N 184 Again more fully P 223 224. Q 225. S 277 Rickhil Sir William's Case 48 Reflections upon R. the 2d undecent O 194 Regradation of Peers V 190 S. SAlisbury Earl's Case 50 Sautree William's Case 49 Scheme of the Government as it anciently stood and now stands B b 271 to 291 Scripture against the Bishops their medling in Secular Affairs 134 Scroop Lord. 50 Segrave's Case 61 62 and Q 232 233. T 287 Seniores Populi who meant by them 167 170 Sinister ends in the Parliament 21 R. 2. O 195 Spencer's their Case 48 O 197 198. and Q 234 Standish his Case 47 and S 291 Statute 27. Ed. Ist. c. 3.