the force of a Law because it may be destroy'd by the Act of the Parties themselves If therefore the Bishops did afterwards act contrary to this Protestation they took away all the force of it 2. The particular nature of this Protestation is such as doth most evidently preserve their Right to be personally present on the account of their Peerage and Baronies and the great design of a Protestation is to preserve a Right notwithstanding some Act which seems to destroy it as thier absenting themselves on the account of the Canons might seem to doe But of this already 3. We are now to consider the third Point Whether on supposition that on the account of the Canon-Law the Bishops had always withdrawn in the time of Popery that had continued in force still since the Reformation I think not upon these Reasons 1. Because the Canon-Law was founded upon a Superstitious fancy viz. that if Clergy-men be present in Causes of Bloud they contract Irregularity ex defectu perfectae Lenitatis as the excellent Canonist Navarr saith because it argues a want of perfect Lenity But if we consider the cases they allow which do not incurre Irregularity and those they do not allow which do incurre it we shall find all this stir in the Canon-Law about this matter to be onely a Superstitious kind of Hypocrisy 1. If a man in Orders gives another man Weapons without which he could not defend himself and by those weapons he maims him that assaulted him this doth not make him irregular but if he kills him it doth and yet the Canons make the case of Dismembring and Death the same 2. It makes a man act against the Law or Nature to prevent Irregularity For they say if it be for the defence of Father or Mother or preventing the ruin of his Country although the Cause be never so just a Clergy-man that dismembers or takes away another's life is irregular 3. If a Clergy-man discovers Treason or accuses another for Treason without a Protestation that he doth not doe it with a design to have him punished he is irregular but if he makes that Protestation although death follows he is not 4. If a Clergy-man be in an Army and perswades the Souldiers to fight manfully and kill as many as they can this doth not make him irregular ny although he beats them if they will not fight but if he happens to kill an enemy himself then he is 5. If he gives a Souldier a Sword or a Gun by which he dispatches his enemies if he did it with a particular intention that he should slay or maim them he is irregular if onely with a general intention that he should overcome he is not This being somewhat a nice Case the Canonists take more then usual pains to prove it And from hence they defend their Priests and Iesuits in the Indies who carry the Cross before their Armies into the Field and encourage them to kill all they can and yet Navarr saith they are so far from being irregular that they are regularissimi as his word is 6. If a man to gain an Indulgence carries a faggot to burn an Heretick if it be with a design to take away his life he is irregular but if he be hanged first or dead before it be thrown into the fire then he is not 7. If a man in Orders helps a Chirurgeon in cutting off a man's Leg he is not irregular but if a man be justly condemned to have his Leg cut off if he then gives any assistence he is irregular because the one is moved out of Mercy and the other out of Justice 8. If the Bishops sit and condemn a man for Heresy and deliver him over to the Secular Power for Execution yet they free this from Irregularity or else the practice of the Inquisition were lost This seems a very difficult Case but the Canonists salve this by saying that the Inquisitours when they deliver them over to the Secular Power do pray that they may not be hurt either Wind or Lim as it appears by the Forms used in the Directorium Inquisitorum And if this be not the height of Hypocrisie let the World judge And therefore this part of the Canon-Law is not consistent with the Sincerity of the Reformation 2. This part of Canon-Law is inconsistent with the King's Power over Ecclesiastical Persons For it supposeth them liable to the penalty of a Law which he hath no cognisance of and derives no force or authority from him which tends to the diminution of the King's Prerogative Royal and therefore it is nulled by the Stat. 25 H. VIII c. 19. I do very much question whether this ever were any part of the Canon-Law of England notwithstanding the Pope's Decretals i. e. whether these Canons ever received confirmation by the Royal Authority either in Synodal Constitutions or elsewhere And it would be a very hard case if our Kings had not the same Privileges which are allow'd in Popish Countries viz. that nothing passes for canon-Canon-Law within their Territories till it pass the examination of the King's Council and approbation by his Authority Thence in France nothing passes without the King's Pareatis nor in Spain or Flanders without the King of Spain's Placet no nor in the Kingdom of Naples without the Royal Exequatur It is well known that the 6. Book of Decretals was not allowed in France because of the quarrel between the King and Boniface VIII and that even the Council of Trent it self was not allowed by Philip II. till it had been strictly examined by the King's Council that nothing might be allowed which tended to the diminution of his Prerogative How then will men justifie the making that a part of the Canon-Law of England which was repugnant to the Rights of the Crown and deprives the King of the Power of taking advice of those of his Subjects whom he hath summon'd for that end 3. The Sanction of this Law is ceased which was Irregularity And some of our most Learned Iudges have declared that is taken away by the Reformation But in case any be of another opinion I shall urge them with this inconveniency viz. that the great Instrument of discovering the Plot falls under Irregularity by it For it is most certain by the Canon-Law that a man in Orders accusing others of Treason without making his due Protestation in Court is Irregular But if this be now thought unreasonable as it is in the person of an Accuser why should it not be so in the case of Iudges And if the Irregularity be taken away then the Sanction is gone and if the Sanction be taken off in a meer positive Law the force of the Law is gone too And therefore this Canon-Law which forbids Clergy-men being present in Capital Cases and giving Votes therein is wholly taken away by the Reformation And we do not find any mention of it for 80 years and more after the Reformation till about the
times These things I have laid together with all possible brevity and clearness that in one view we may see a consent of all these parts of the Christian World in calling Bishops to their publick Councils and most solemn Debates and how far they were from thinking such Imployments inconsistent with their Sacred Function and charging them that thereby they left the Word of God to serve Tables Neither can this be looked on as any part of the Degeneracy of the Church or the Policy of the Papacy since as the fore-cited Arumaeus saith they were admitted to this honour before the Papal Power was advanced and were so far from carrying on the Pope's designs that they were in most Countries the greatest Opposers of them And when the Popes began to set up their Monarchy their business was to draw them off from meeting in these Councils under several pretences of Cases of Bloud and other things the better to keep them in a sole Dependency on themselves As will appear by the following Discourse 2. The next thing suggested is that the Imperial Law doth forbid Clergy-men having any thing to doe with Secular matters And for this a Rescript of Honorius and Theodosius is mentioned and a Decree of Iustinian To which I answer 1. The Imperial Edicts are not the Law of England Our dispute is about a Right by our own Laws which a Rescript of Honorius and Theodosius can neither give nor take away What would become of the whole frame of our Government and of our just Rights and Properties if the producing of Imperial Edicts would be sufficient to overthrow them When the Bishops once pleaded hard in Parlament in behalf of an Imperial Constitution lately adopted into the Canon-Law the Answer given by all the Temporal Lords was Nolumus leges Angliae mutare quae huc usque usitatae sunt approbatae They did not mean they would make no alterations in Parlament for that very Parlament did so in several things but their meaning was as Mr. Selden observes that they owned neither Canon nor Imperial Laws here any farther then they were agreeable to the Laws of the Land 2. The Imperial Constitutions do give liberty to Church-men to have to doe in Secular Affairs The Emperour Constantine whose Constitutions deserve as great regard as those of Honorius and Theodosius to shew his respect to the Christian Religion permitted all men to bring their Causes before the Bishops without ever going to the other Tribunals as Sozomen a Lawyer of Constantinople relates And this is the true foundation of the Constitution De Episcopali Iudicio as Gothofred confesseth Which is at large inserted into the Capitulars with a more then usual introduction and made a Law to all the Subjects of the Empire Franks Saxons Lombards Britons c. and therefore is more considerable to these parts then a bare Rescript of Honorius and Theodosius And yet these very Emperours in a Constitution of theirs do so far ratifie the Judgment of Bishops upon Trial by consent before them that no Appeal doth lie from their Decree What Rescript then is this of theirs which so utterly forbids Clegy-men having any thing to doe with publick Functions or things appertaining to the Court I suppose that Constitution of Honorius is meant which confines the Bishops Power to what concerns Religion and leaves other Causes to the ordinary Judges and the Course of Law But two things are well observed by Iac. Gothofred concerning this Rescript of Honorius 1. that it is meant of absolute and peremptory Judgment without Appeal 2. that whatever is meant by it not many years after this Constitution was repealed by Honorius himself and the Bishops sentence made as absolute as before So that Honorius is clearly against him if a man's second judgment and thoughts be better 3. The practice of the best men in those Ages shews that they thought no Law in force to forbid Church-men to meddle in Secular Affairs as might be at large proved from the practice of Gregory Thaumaturgus and S. Basil in the East of Silvanus Bishop of Troas of S. Ambrose S. Augustine and others of the greatest and most devout Church-men of those times And S. Augustine was so far from thinking it unlawfull that in his opinion S. Paul commanded the Bishops to doe it Constituit enim talibus Causis Ecclesiasticos Apostolus Cognitores And the learned Gothofred of Geneva saith Mos hic frequens legitimus eundi ad Iudices Episcopos It was then a common and legal practice to go to Bishops as to their Iudges Which would never have been if there had been a Law in force to forbid Bishops meddling in Secular Affairs 4. The Emperours still reserved to themselves the power of dispensing with their own Rescripts and the Canons of the Church Therefore the Council of Sardica when it prohibits Bishops going to Court excepts the Princes calling them thither Upon which Balsamon hath this Note that although the Canons prohibit yet if the Emperour commands the Bishops are bound to obey and to doe what he commands them without any fault either in the Emperour or them And in other places he asserts the Emperour's power of dispensing with the strictest Canons against Church-mens meddling in Secular Affairs Thence he saith the Metropolitan of Side was chief Minister of State under Michael Ducas and the Bishop of Neocaesarea made the Laws of the Admiralty for Greece And the Glosse upon Iustinian's Novells observes that Bishops may meddle with the Affairs of the Commonwealth when their Prince calls them to it And this is the present Case for the Bishops are summon'd by the King 's Writ to serve him in the publick Council of the Nation and therefore no Imperial Rescript if it were of force in England could have any in this Case which was allowed by the Imperial Laws themselves 5. There is a great Mistake about Iustinian's Decree For the Bishops are not so much as mention'd in it but the Defensores Ecclesiarum who were Lawyers or Advocates of the Church as appears by a Constitution of Honorius where Gothofred proves they were not so much as in Orders It is true Iustinian doth appropriate the Probat of Wills to the Master of his Revenue but the Law and Custom of England as Lindwood observes hath alter'd that Constitution and which must we regard more Iustinian or our own Laws I find one thing more suggested by way of Prejudice to the Cause in hand viz. the Common Law of England which hath provided a Writ upon a Clergy-man's being chosen an Officer in a Mannor saying it was contra Legem Consuetudinem Regni non consonum The Argument had been altogether as good if it had been taken from a Minister of a Parish not being capable of the Office of Constable and it had as effectually proved that Clergy-men ought not to meddle in Secular
THE GRAND QUESTION Concerning the Bishops Right To VOTE in PARLAMENT In Cases Capital STATED and ARGUED FROM The Parlament-Rolls and the History of former Times WITH An Enquiry into their Peerage and the Three Estates in Parlament LONDON Printed for M. P. and sold by Richard Rumball Book-binder at the Ball and Coffin in the Old Change 1680. THE CONTENTS CHAP. I. THE Question stated and general Prejudices removed CHAP. II. The Right in point of Law debated Concerning the Constitution of Clarendon and the Protestation 11. R. 2. CHAP. III. The Precedents on both sides laid down those against the Bishops examined and answered CHAP. IV. The Peerage of the Bishops cleared how far they make a third Estate in Parlament Objections against it answered CHAP. 1. The Question stated and general Prejudices removed THE Question in debate as it is stated by the Authour of the Letter is Whether the Bishops may be present and Vote Iudicially in Capital Cases which come to be judged in Parlament either in giving the Iudgment it self or in resolving and determining any circumstance preparatory and leading to that Iudgment For our better proceeding towards a Resolution of this Question it will be necessary to take notice of some things granted on both sides which may prevent needless disputes and be of great use in the following Debate 1. It is granted That the Bishops do sit in Parlament by virtue of their Baronies and are bound to serve the King there And one part of the Service due to the King there is to sit in Iudgment for the Authour of the Book entitled The Iurisdiction of the House of Peers asserted proves at large that the Right of Iudicature belongs to the Barons in Parlament and that the Lords Spiritual have a considerable share therein appears by this passage in the Title-page of that Book translated into English The Iudgment of the Lords Spiritual and Temporal is according to the Vse and Custom of Parlament The Vse and Custom of Parlament is the Law of Parlament The Law of Parlament is the Law of England The Law of England is the Law of the Land The Law of the Land is according to Magna Charta Therefore the Iudgment of the Lords Spiritual and Temporal is according to Magna Charta Some Right then of Iudicature in Parlament the Bishops have by Magna Charta which whatever it be is as much theirs by that Charter as any Right of Temporal Persons and cannot be invaded or taken from them without breach of that Charter any more then the Rights of the Lords Temporal or of any other Persons whatsoever But how far that Right doth extend is now the thing in Question 2. It is not denied that the Bishops do sit in Parlament by the same kind of Writs that other Barons do They are summon'd to advise and debate about the great and difficult Affairs of the Kingdom cum Praelatis Magnatibus Proceribus dicti Regni nostri Angliae colloquium habere tractatum i. e. to joyn therein with the Bishops and other Lords of the Kingdom So that by the King 's Writ of Summons they are impower'd and requir'd to confer and treat of all the weighty Affairs that shall be brought before them And no Instance is so much as offer'd to be produced of any Writ wherein the King doth limit and restrain the Bishops any more then any other Lords of Parlament as to any matter of Consultation or Point of Judicature belonging to that House They have then by their Writ of Summons as good right to sit in all Cases as in any and since the other Lords by their Writs are summoned to advise with the Prelates in all matters that shall come before them without limitation it is not to be conceived how this can be done if the Bishops in some of the most important Debates be excluded 3. It is yielded That if the House proceeds in a Legislative way by passing Bills of Attainder the Bishops have a Right to sit and Vote therein as well as other Lords at these it is said that the Bishops are or should be all present at the passing of them for then they act as Members of the House of Lords in their Legislative capacity But men do as certainly die that are condemned in the Legislative as in the Iudicial Way Is not this then really as much a Case of Bloud as the other If the Bishops should give their Votes in the Legislative way to condemn a Person for Treason and yet think they had not Voted in a Case of Bloud they would then indeed be like Chaucer's Frier mention'd by the Authour of the Letter that would have of a Capon the Liver and of a Pig the Head yet would that nothing for him should be dead Doth a Bill of Attainder cut of a man's Head without making it a Case of Bloud There can be then no objection now made against the Bishops Right from any Canons of the Church for those allow no such distinction of proceeding in the Legislative or Iudicial Way And the late Authour of the Peerage and Iurisdiction of the Lords Spiritual doth grant that the Canons do prohibit the Bishops voting in Bills of Attainder as much as in any Case whatsoever But we are not to suppose a Person of such abilities as the Authour of the Letter would go about to exclude the Bishops from their Right of Voting in a Iudicial way in Cases Capital unless there were some great appearance of Law on his side because he professes so great a Desire that Right may prevail and that his design in writing was to satisfy himself and others where that Right is The discovery whereof is our present business Yet before the Authour of the Letter comes to a close debate of the matter of Right he lets fall some general Insinuations to create a prejudice in the Reader 's mind as to the Bishops meddling at all in Secular Affairs as though it were inconsistent with their Function and with some passages in the Imperial Law And because men may sometimes doe more harm by what they tell us they will not say then by what they do say it will be fit to prevent the danger of such Insinuations before we come to consider his Arguments 1. The first is that meddling at all in Secular Affairs seems to be the doing that which the Apostles declared they would not doe viz. leave the Word of God and serve Tables But are all Persons of Estates now bound to part with them as the Christians then did The serving of Tables was a full employment and they who attended that Office were the Treasurers of the Church to distribute to every one as they judged fit out of the common Stock Is it no Service to God to doe Justice and to shew Mercy to attend upon the publick Affairs of the Kingdom when they are called to it by their Sovereign Or are all Bishops now
in the same circumstances the Apostles were when the Christian Church was to be planted in the World and so few persons as the 12 Apostles made choice of for that Work Is there no difference to be made between a Church constituted and settled and incorporated into the Commonwealth and one not yet formed but labouring under great difficulties and making its way through constant persecutions May it not be as well argued that Bishops are not to stay in one Countrey nor to have any fixed habitation because the Apostles passed from place to place preaching the Word of God Doth not the Authour of the Letter himself confesse that the Clergy are one of the Three Estates of the Kingdom and by the Act 8 Eliz. 1. the Clergy are called one of the greatest States of this Realm And is there not then great Reason that those who are the chief part of it as he confesseth the Bishops to be should have a share in affairs that concern the whole Nation And would it not seem strange to the Christian World that we alone of all the Kingdoms of Europe should exclude the Bishops from having an equal Interest with the other Estates in Parlament For it were easy to prove from unquestionable Testimonies that as soon as the Christian Religion was well settled in any of these Northern Kingdoms the Bishops were admitted into all the publick Councils and have so continued to this day where the Convention of the Estates hath been kept up Bohemia onely excepted since the days of Sigismond I begin with France where Hincmarus saith there were two great Councils every year one of the States of the Kingdom for ordering the Affairs of the ensuing year and redressing of Grievances and in these the Bishops were always present and the other of the King's Council which managed the intervening Affairs and into this the chief of the Bishops were chosen It were endless to repeat the several Parlaments in France in the time of the Merovingian and Caroline Race wherein Laws were passed and the great Affairs of the Kingdom managed by the Bishops Noblemen and others Those who have looked into the ancient Annals and Capitulars of France cannot be ignorant of this There is one thing remarkable to our purpose in the famous Council of Frankford which opposed the Worship of Images so stoutly viz. that after the matters of Religion were agreed then according to the Custom of that Age the other Estates being present they proceeded to other matters and then Tassilo Duke of Bavaria was brought upon his Knees for Treason and the Cause of Peter Bishop of Verdun was heard who was likewise accused of Treason and there purged himself Concerning both which Cases there are 2 Canons still extant among the Canons of that Council and in another the Bishops are appointed by consent of the King to doe Justice in their several Dioceses And that they had not onely a share in the Legislative but in the Iudiciary part appears by one of the ancient Formulae in Marculphus where it is said that the King sate in Judgment unà cum Dominis Patribus nostris Episcopis vel cum plurimis Optimatibus nostris vel in the language of that Age is the same with This was the Palatine Court where Bignonius saith the greater Causes were heard the King himself being present or the Comes Palatii Episcopis Proceribus adsidentibus the Bishops and Lords sitting in Iudicature together with him And this was not onely the Original of the Parlament of Paris as a standing Court of Iudicature but the like in England was the true foundation of the Supreme Court of Iudicature in the House of Peers So that in the eldest and best times of France after Christianity had prevailed there neither consultation about publick Affairs nor administration of Justice were thought inconsistent with the Function of Bishops In Spain during the Gothick Power all the great Affairs of the Kingdom and even the Rights of their Princes were debated and transacted by the greatest of the Clergy and Nobility together as may be seen in the several Councils of Toledo in that time in the case of Suintilas Sisenandus and others And in one of them it is said that after they had dispatched matters of Religion they proceeded ad caeterarum Causarum negotia to the handling of other Causes In the 13. Council of Toledo the Case of Impeachments of Treason is brought in and Rules set down for due proceedings therein And yet from one of these Councils of Toledo it is that all the stir hath been made in the Canon-Law about Bishops not being present in cases of bloud In Germany the first Laws that were ever published were those by Lotharius II. in Comitiis Regni saith Goldastus and there were present 33 Bishops 34 Dukes 72 Counts besides the People And by the Matriculation-Roll of the States of the Empire it appears what a great Interest the Clergy have preserved ther in from the first times of the prevalecy of Christianity there And Arumaeus a considerable Protestant Lawyer of the Empire saith the Bishops of Germany sit in a double capacity in the Diets both as Bishops and as Princes of the Empire And he commends the prudence of that Constitution with respect both to Iustice and the Honour and Safety of Religion For the Kingdom of Bohemia Goldastus a learned Protestant saith that there as in all other well-constituted Kingdoms among Christians there were 3 Estates of Prelats Nobles and Commons and this continued he saith from the time Christianity was received till the days of Sigismond No sooner was Christianity received in Hungary but their Princes Stephanus and Ladislaus called their great Councils of their Prelats and Nobles and the Laws made in the Concilium Zabolchianum were passed by the King with all his Bishops and Nobles and with the consent of the whole Clergy and People In Poland Starovolscius saith that their Ancestours after they received Christianity out of regard to Religion gave the Bishops the first place in the Senate and admitted the Clergy to the great Offices of the Kingdom And Sigismond in his Constitution saith the States of Poland consist of the Bishops Barons and Delegates called Nuntii terrestres In the Northern Kingdoms Adamus Bremensis saith that the Bishops after the People received Christianity were receiv'd into their publick Councils And Loccenius reckons up among the several Estates the Bishops Nobles Knights and Deputies of the Country and Cities And it appears by the Hirdstraa or the ancient Laws of Norway the Bishops as well as Nobility were present in the Convention of the States and all publick Councils The like might be proved here in the Saxon times from the Conversion of Ethelbert downward This is so very evident that he must blind his eyes that doth not see it if he doth but cast them on the History of those
them in Capital Causes seems to be of equal force against this Precedent viz. That this Parlament of the 21 R. II. and all that was done in it was repeal'd in the 1 H. IV. And if that be so and those Acts of State which then passed had not again been repealed 1 Ed. IV. then the Repealing of that of 1. Ed. III. signifies nothing and consequently the Affirmance of the first Iudgment against the two Spencers is good notwithstanding that Repeal And therefore that we may examine this matter to the bottom I shall set down the very words of the Authour of the Letter concerning it Speaking of the Declaration made by the Lawyers in the 10 Ed. IV. concerning the Bishops making a Procurator in Capital Causes he hath these words It is true here is mention made of their making a Proctor which was Error temporis the Errour of those times grounded upon what was so lately done as they looked upon it though irregularly done in the last Parlament of R. II. whom they consider'd as their lawfull King and in truth he was so the three Henry's that came between being but Vsurpers And again speaking of the same business of a Proctor in the 21 R. II. he hath this remarkable passage I have already shewed that this whole Parlament was repeal'd for the extravagant things that were done in it of which this was one And therefore nothing that was then done can signifie any thing to a leading case any ways to be followed and this as little as any except it could be made appear which I am confident it cannot that some Iudgment had been reversed upon that account because the Prelats were not present and had not given their assent to it Now if I can make out these two things 1. That the Parlament of R. II. was not legally repeal'd 2. That the Iudgment against the two Spencers was revers'd and that the Repeal of that Reversal in 1 Ed. III. was revok'd in 21 R. II. upon this very account because the Prelats were not present and had not given their assent to it I hope the Authour of the Letter will be satisfy'd that both this Precedent and the Case of a Proctor are very significant in this Cause and that there is a great difference between being confident and certain of any thing 1. That the Parlament of 21 R. II. was not legally repeal'd And for this I take the Authour 's own acknowledgment that R. II. was in truth lawfull King and that H. IV. was but an Vsurper Nay I add farther that R. II. was alive and in prison when H. IV. repeal'd the Parlament of 21 R. II. For so it is said in the very Act of Repeal that R. II. late King of England was pursued taken put in ward and yet remaineth in ward And now I leave it to the Authour of the Letter whether a Parlament call'd by a lawfull King and the Acts of it ought to be deem'd legally repeal'd by a Parlament that was call'd by an Usurper and held whilst the lawfull King was alive and detain'd in prison 2. That the Iudgment against the two Spencers was revers'd and the Repeal of the Reversal of it in 1 Ed. III. revok'd in 21 R. II. and that upon this very account because the Prelats were not present and had not given their assent to it which the Authour of the Letter is confident cannot be made appear That this Iudgment was reversed for this Reason I have already shewn viz. in the Parlament at York 15 Ed. II. And I shall now shew that the Repeal of that Reversal in 1 Edw. III. was revok'd in 21 R. II. and that upon the account mentioned For in this Parlament Tho. le Despenser Earl of Gloucester exhibited two Bills in which he prayeth that the Revocation of the Exile of the two Spencers in 15 Ed. II. might be brought before the King and confirmed and that the Repeal of the same made in the 1 Ed. III. might be revoked Of which Act of Repeal these Errours are assigned among others because the Prelats who are Peers of the Realm did not assent to the Iudgment and because it was made onely by the Earls and Barons Peers of the Realm c. and because it was made against the form of the Great Charter of England in which it is contain'd that no man shall be exil'd or otherwise destroyed but by the lawfull Iudgment of his Peers or by the Law of the Land So that it seems it was look'd upon as a breach of the Great Charter for the Temporal Lords to condemn a Peer without the Assent of the Bishops and that such a Iudgment was not esteem'd a lawfull Iudgment by his Peers And those Errours of the first Iudgment assign'd in the Revocation of it in 15 Ed. II. are allowed in this Parlament of 21 R. II. and that Revocation confirm'd and the Repeal of it in 1 Ed. III. revok'd upon the same account I shall onely observe that in this Parlament as before in 15 Ed. II. the Bishops are declared to be Peers Peers of the Realm Rot. 55. Peers in Parlament Rot. 56. 61 but most fully and distinctly in the Roll last cited Peers of the Realm in Parlament Of which farther use may be made in the last Chapter concerning the Peerage of the Bishops And now to sum up the force of this Precedent for the Iurisdiction of the Bishops in Cases of Treason Here is a Reversal of a Iudgment because made without the Assent of the Prelats by the Parlament at York in 15 Ed. II. And whereas it is said this Reversal was repeal'd and the first Iudgment affirm'd in 1 Ed. III. I have shew'd that this was no legal Repeal because Ed. II. was alive and lawfull King or else Ed. III. could never have been so in the time of that first Parlament of Ed. III. and consequently Ed. III. at that time was an Usurper and the Proceedings of that Parlament null and void So that the Reversal in 15 Ed. II. stands good notwithstanding the Repeal in 1 Ed. III. Besides that this Repeal whatever it was is solemnly revok'd in 21 R. II. And H. IV. who revers'd all the Proceedings of the Parlament of 21 R. II. during the life of R. II. is acknowledg'd by the Authour of the Letter to have been an Vsurper and R. II. to have been a lawfull King And now I think that this Precedent hath all the advantage that can be and that the Iurisdiction of the Bishops in Cases of Treason could not have been asserted in a higher manner then to have a Iudgment in Case of Treason solemnly revers'd in two Parlaments for this very cause because the Bishops who are Peers assented not to it And this Precedent own'd by the House of Commons in their Petition to have a Common Proctor appointed by the Clergy in this very Parlament of 21 R. II. as is acknowledg'd by the Authour of the Letter