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
concerning Breakers of Truce and a Proviso in it That this Act shall not extend to any Act or Ordinance made 2 H. 5. late indeed and not of right King of England But still he is acknowledged King of England de facto which goes a great way to authorize any thing done under their power Therefore 11 H. 7. c. 1. A Law is provided to indemnifie all persons that shall do service to the King in being whether he have right or no. As for what is said of the Bishops making their Common Proxy at the prayer of the House of Commons That their Proceedings might be valid and not questioned in future Parliaments by reason of their absence and that divers Judgements had been reversed because they were not present It is true it is so expressed in the Roll of that void Parliament which as it hath no authority nor validity in it self so it is very strange that if there had been ground for this apprehension there should remain nothing upon Record in all the Rolls of Parliament that ever any Judgement or any other act done in any Parliament had been so repealed We know it was once attempted 2 H. 5. by Thomas Montacute Earl of Salisbury as I told you in my former Letter who brought his Writ of Error to reverse the Judgement given against his Father 2 H. 4. because the Bishops as he alledges there being Peers of Parliament were not parties to that Judgement but it was declared to be no Error and his Petition was rejected And we know that in Edward the First 's time there was a Parliament held at St. Edmonds-bury Clero excluso not a Prelate admitted to it And in Henry the Eighth's time all the Judges of England declared it for Law That the King might hold a Parliament with his Lords Temporal and Commons altogether without the Lords Spiritual Tout sans les Spirituels Seigneurs it is in Keilwayes Reports in Dr. Standish's Case Therefore there is no reason to think that any Judgements were repealed upon the Bishops being absent seeing their presence is not of necessity for the constituting and sitting of a Parliament And especially not for the Judgements which we treat of in Capital Cases because by what appears upon Record and by all the Laws Canon Common and Statute Law they never were present I always except that Unparliamentary Extravagant Proceeding and Judgement of Henry the Sixth in the twenty eighth of his Reign upon William de la Pool Our Asserter tells us of some Judgements reversed 15 E. 2. particularly in the Case of the Spencers but he doth not tell us where he finds it nor I believe doth he know himself having only taken it up some where upon trust as he doth other things But in this 21 R. 2. upon the Petition of the Earl of Gloucester it appears by the Record of the proceedings against the two Spencers Father and Son in that 15 E. 2. which are there repeated at large that there was nothing Capital in their Case neither in the Charge nor in the Judgement so as this signifies nothing to the matter in question which is all can be said to it And as little shall I say to his witty allusion of bringing me to a sight of my self as Alexander did his Horse to the Sun that he might not kick only this I might say if I were as foul-mouthed as he that indeed such a scoffing injurious Scribbler were fitter to be answered with a kick than with fair reasoning by way of Argument Next we come to the 1 H. 4. Sir William Rickhill's Case where I think I should do well only to transcribe what he hath written to shew it needs no answer but that I should waste too much Ink and Paper I represented in my Letter to you that Rickill being sent for into Parliament no formal charge being against him to give an account only by what order he had taken the Duke of Gloucester's Confession at Calais which he did the Bishops present but when they came to consider what was to be done upon it then only the Lords Temporal were asked their opinion which I alledge to shew that the Bishops there were not advised with because it might be preparatory to a further proceeding by way of Tryal And this our Asserter says is to serve an Hypothesis and learnedly gives it us in Greek and bids the Reader judge and so do I. Then for the Tryal of Hall who was one of the murtherers of the Duke of Gloucester he hath the condescension to acknowledge it probable that the Bishops were not there but then saith that they left it to the Temporal Lords without any Impeachment to their right it being secured before by the security of a confessed Act of Parliament 11 R. 2. it is their Protestation he harps at And if I had as much Greek as he I would say it in Greek that he now doth serve an Hypothesis or in good English beg the Question for that is his meaning of serving an Hypothesis for the Right which the Bishops there saved he will have to be and hath forty times repeated it to judge Capitally when they please but I have clearly shewed it was not of their assisting in those Judgements as he still will have it to be but other Judgements and proceedings in Parliament where in truth they had a right to assist Then follows the Case of William Sautre 2 H. 4. where he is pleased to give me a wipe for stiling him the Protomartyr of England and out of his great reading informs that St. Alban lived some hundreds of years before him but he must give me leave to inform him that the common acceptation of Martyrs amongst us Protestants now is of such Orthodox persons as have suffered for the truth whom the Papists have put to death for Hereticks and this man was the first of them in England He hath some other notable Remarks one is that whereas I said that the Bishops and Clergy of those times were the chief Promoters of bringing him to his end which I meant of their declaring him an Heretick and then turning him over to the Secular Power he observes upon it That then they acted in a Capital Case which he saith makes against me And that if it was the Lords Temporal who signed the Warrant for his execution that the Bishops had no hand in it and so have escaped my lash but who were his Judges nondum constat I am sure it doth not constare to me to what purpose he saith all this which I do not find to make either for him or against me No more than what he saith of the Case of the Earls of Kent Huntington and Salisbury 2 H. 4. who he grants were declared and adjudged Traytors by the Temporal Lords and no Bishops present and then saith he will give a Parallel Case it is of the Earl of Cambridge and the Lord Scroope 3 H. 5. where the Bishops were present and
a Capital crime High Treason and a Capital proceeding upon it We see the Sentence was far from Capital and could not have been such as it was if the Crime had been laid in the Accusation to be High Treason Roger de Hoveden in his relation of this business makes no mention of Treason He saith That the King calling a great Council at Northampton Taedium magnum fecit Archiepiscopo did a thing which much vexed the Arch-bishop which was that he caused his Horses to be put into the Arch bishops Inn whereupon the Arch-bishop sent the King word that he would not come to the Council till his Inn was cleared of those Horses yet upon the second day of the meeting the Arch bishop came into the Chapel where the Council sate and there desired the Kings leave that he might go over into France to visit Pope Alexander who was then there which the King denied him and said he should first answer for the injustice he had done to John the Marshal in his Court This John having complained to the King that he had had a long suit in the Arch bishops Court for some Land he held of him and could have no Iustice and that thereupon Curiam Archiepiscopi Sacramento falst ficaverat secundum consuetudinem Regni He had according to the custome of the Kingdom upon Oath charged the Court with wrong doing which I take to be a protesting against the proceeding of that Court and the Judgement there given in the nature of a Writ of Error The Arch-bishop answered to this That John had no injustice done him and that he brought into the Court a certain strange Book and would swear upon that how for want of Iustice he left my Court which the Officers that kept my Court looked upon as an injury done to me because it is the Law of the Kingdome Quod qui Curiam alterius falsificare voluerit oportet eum jurare super sacrosancta Evangelia Whoever will so charge a Court with false dealing must take his Oath upon the Holy Evangelists Notwithstanding this the King swore he would have Iustice done upon him Et Barones Curiae And the Barons of the Court gave Iudgement on him to be at the Kings mercy Which Iudgement the Arch-bishop going about to reverse Iudicium illud falsificare is the expression He was perswaded by the Barons to submit himself to the Kings mercy for a Fine of five hundred pounds Here is nothing in all this that can possibly infer any thing like Treason And it is something observable what both these Authors say of the Judgement given Gervasius saith Curiali Iudicio Episcoporum consensu condemnatus est as if the part of the Bishops in this judgement were something differing from the Act of the Court and not comprized in it Hoveden saith Barones Curiae Regis judicaverunt eum as if the Bishops had no hand in it at all Radulphus de Diceto Decanus Londinensis I suppose Dean of Pauls who lived in those times mentions this business he saith That the Arch-bishop was questioned upon John the Marshals complaint and fined 500 l. and that he was questioned likewise for moneys received by him when he was Chancellour for some Bishopricks and Abbies of which he had received the profits during their vacancies and that not finding the Bishops to be his friends he appealed from their Judgement but then the Proceres the Nobles though he appealed from their Judgement likewise yet they In eum nec confessum nec convictum sententiam intorserunt They wrested a Iudgement against him though he confessed nothing nor was at all convicted You see here is not a word of Treason laid to his charge nor nothing Capital or any thing towards it Matthew Paris tells you the same story and almost in the very same words Now let any man judge whether all those Historians concurring or single Fitz-Stephen disagreeing deserves more credit And that which hath greatest weight with me is the Argument drawn ex natura rei the crime which all agree that the Arch-bishop was charged with was his not appearing upon the Kings Summons which without a great and a very false Multiplying-Glass cannot appear to be any thing like Treason So I must conclude that since the Charge against him had nothing of Capital in it the proceedings upon it was not as against a Capital Offender not brought to Tryal as a Prisoner but came in upon a bare Summons and tarried there and returned at full liberty the Judgement neither of loss of Life nor Limb but meerly Pecuniary and as some of the Authors say compounded with for five hundred pounds I must I say conclude that this whole Case is nothing to our purpose and neither the Law nor usage of Parliament did bar the Bishops from being personally present at such a Tryal And now I come to the point of Peerage which I have so fully handled in my former Letter as I think I need not say much in this Our Asserter brings three Arguments to prove them to be Peers The first is That it is the general stile of all Parliaments from the beginning to be Generale Concilium Cleri Populi even before the coming in of the Normans which no man denies The businesses of the Church as well as of the Civil State are there determined the Writ of Summons shews it which saith That the King intending to call a Parliament Pro quibusdam arduis negotiis Nos Statum defensionem Regni Angliae Ecclesiae Anglicanae concernentibus Bishops and Temporal Lords are summoned and heretofore several others were summoned as Bannerets and sometimes other persons of Quality who likewise were not Peers and yet were called to the Parliaments as pleased the King and the Judges are so summoned at this day Super dictis negotiis tractaturi consilium suum impensuri Where the Bishops act as Bishops and what by the Law of the Land and the practice and usage of Parliaments they ought to do that they do and may do the Temporal Lords in like manner and so likewise the Judges every one acts in his Sphere but this neither gives the Bishops power to judge in Capital Causes if otherwise it be prohibited them nor doth it make them Peers no more than it did formerly the Bannerets and others for their being summoned to sit and vote in the House of Peers We had the experience of this the last Parliament a Baron pretending to a much ancienter station among the Peers by proving that his Ancestor had been summoned by one of our former Kings to sit more than once in the House of Lords yet not making it appear that that favour had been still continued to him and it being made appear on the other side that several Families in this Kingdom would have the same pretence upon the like ground it was the opinion of the House that he had no Right to it and consequently that his Ancestor was never acknowledged to
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
specialiter tangentibus tractare consilium impendere and thither they are obliged to come and attend by their Tenure of their Baronies where they sit in their Personal Capacity to do the service which they owe for the Lands they hold of the King Now we will consider if being there upon such an account it can any ways stand with reason and the nature of a Third Estate to esteem them to be so 1. To represent the body of the lesser Clergy as our Asserter will have them to do who else he saith would be in a worse condition than the meanest Clown having no body to represent them in giving Aids and Subsidies first I say that as Subsidies were heretofore given in Parliament which was the ancient Parliamentary way of supplying the necessities of the Crown and Government where the Convocation gave the Supply of the Clergy the Bishops as Members of the House of Lords had nothing to do in it but as Members of the Convocation they had and the Representatives of the lesser Clergy who were chosen by them and made up the Lower House of the Convocation they gave their consents and joyned in that Gift for the whole body of the Clergy the two Houses of Parliament did only ratifie and confirm what the Convocation had done and therefore only the beginning and the end of that Act of Subsidy given by the Clergy not the body of it was openly read in the several Houses of the Lords and Commons So 4 R. 2. the Commons having offered to give an aid so as the Clergy who enjoyed a third part of the Realm would pay one third part of the Summ the Clergy answered That they were not to grant any Aid by Parliament but of their own free wills and therefore willed the Commons to do their duties and they would do theirs This was the ancient way of granting supplies in Parliament where you see the lesser Clergy had their Representatives which it seems our Asserter did not understand and so no wonder if he did mistake as he commonly doth And this I must say further the lesser Clergy as he calls them are little beholding to him to have them to be represented by Bishops having no hand in the choice of them This I am sure puts them into a meaner condition than the meanest Clown who if he have but 40 s. Free-hold gives his voice to whom he will to represent him in Parliament to give his assent to part with his Money and to make any Law to bind him Of later times they have taken up another way of granting publick supplies which is of so much in the Pound which they call a Pound-rate and this brings in the Clergy to pay their proportion who are now as busie as any in electing of Members to Parliament In a word none can represent another in Parliament that is not chosen by him every particular person that hath right of vote being included in the majority of Vote So the whole Clergy being the third Estate of the Realm and the Bishops not being chosen by them they cannot represent that third Estate 2. The Bishops sit not in the House of Lords Ratione Spiritualitatis as was the opinion of all the Judges of England 7 H. 8. in Keilway's Reports in Dr. Standish's Case Les Spiritual Seignieurs nont ascun place en â—…e Parlament chamber per reason de lour Spiritualtie mes solement per reason de lour temporal possessions The Lords Spiritual have no place in the Parliament chamber by reason of their Spiritualty but by reason of their Temporal possessions How then can they be said to be there a Third Estate to represent the Clergy of England when they sit not there as Clergy-men 3. If they be a Third Estate they must have a Negative voice to whatever is proposed in the House if the majority of their opinions be against it And for our Asserter to say that the Custome and so the Law of the Parliament is otherwise and that the two Estates of the Lords Temporal and Spiritual make but one House where they vote intermixedly Why this shews they are not two Estates because they do vote intermixedly for if they were so they must vote severally and not be twisted so together as they are as I said before in my former Letter like a nest of Boxes one within another And think what a disparagement it would be to the House of Lords that two Estates must be clapped together to make them equal to the one Estate of the House of Commons 4. If the Bishops were a Third Estate the Parliament could not act as a Parliament without them for a Parliament is composed and must consist of Three Estates and nothing is binding but what is so passed But we know that in Edward the First 's time there was a Parliament called and held Clero excluso and Laws were there made when none of them were present and many Acts have passed in several Parliaments when the Bishops have all voted against them The Judges in that of 7 H. 8. deliver their opinions for Law Due nostre Sur le Roy poit assetz bien tener son Parlement per luy ses Temporal Seigniors per ses Commons tout sans les Spirituals Seigniors Our Lord the King can hold his Parliament himself with his Temporal Lords and his Commons wholly without the Lords Spiritual These and many other Reasons confirm me in my opinion that Bishops are neither Peers of the Realm nor a Third Estate in Parliament yet they might be both and not invalidate my Position which I at first undertook to prove which was only this that by the Practice and Custome of Parliament and by the Law of the Land Bishops are prohibited from meddling in Parliament as Members of the House of Lords in any Tryal of a Criminal Person where the Charge the Proceedings and the Sentence upon it is Capital and goes to the Loss of Life or Members only one Precedent excepted that extravagant one of 28 H. 6. And my good friend the Asserter who hath almost as many Errata's as Lines in his Book must give me leave to summ up all my Corrections of them in one Distich as Martiall did those of his Friend Fidentinus such another Fidentinus it seems as our Asserter and it was this Emendare tuos O Fidentine libellos Multae non possunt una litura potest And I must say the Verse doth not better quadrare with the product of his Brains which hath so many faults as can only be covered and put out of sight with one rasure from the beginning to the end than this one and the same Name of Fidentinus deciphers the Confidence of them both Nullâ pallescere culpâ And so I shall leave my Friend Fidentinus to learn better manners if he be not altogether incorrigible and apply my self to peruse and answer if I can a Treatise of a worthy Gentleman who is I see of a differing opinion
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
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
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
Times it may appear plainly that their yielding Obedience to the known Laws of the Kingdom in matters of Appeal appearing and answering in the King's Courts though it were the ancient Usage and Custom of the Realm was the thing that most vexed them and not how far their Presence was required in cases of Blood brought into Parliament in which they were contented to be limited by the Usage of that Court and to afford or forbear their Presence according to that Obligation which was incumbent upon them from the Canons of the Church invigorated by the constant Usage of the Nation If therefore I can make it good that the Bishops had no Right to be present in the Debate and handling matters of Blood and that that was the known Law and the Sense of this Act now before us and of the subsequent Protestation in 11. of R. 2. I shall think my self competently safe though some seeming Precedents and Records should be brought against me for it is the Law must be the Measure and Standard of our Actions and not always Records the Reasons whereof are sometimes obscure and the matter it self many times shortly rehearsed and not always legal I must confess this Author hath much laboured to fix a Sense upon this Article subservient to his Purpose but the more he struggles the more he is intangled 'T is worth Observation that four or five I suppose different Persons have written in the Defence of the Bishops Right to vote in Capital Causes in Parliament and having all of them a necessity to say something to this Law of Clarendon do all of them give different Interpretations of the meaning of it a great Argument of a weak Cause The first whose Title is The Honour of the Lords Spiritual c. I presume being satisfied with the general Sense which was put upon these Constitutions from all times from which it is always unsafe to vary and perceiving that those illegal Priviledges granted to them by King Stephen were by the reviving the Laws of Henry the First abolished doth ingeniously confess in three places pag. 26. at the end of the sixth Chapter and in the same page at the beginning of the seventh Chap. That at Clarendon their Wings were indeed much clip'd yet the Priviledge of sitting and voting in Parliament is left intire to them and tho' they never of late voted in Capital Cases yet they have ever made their Proxies as he hopes to make appear In Chapter the seventh he hath these words We confess as before for that they were Spiritual Persons they were not to sit in Capital Causes and loss of Limb but adds that long before they had exercised this Power By which Words it appears that in the Judgment of that Author whatever their Power and Practice was before yet that now by the Laws of Henry the First recognized at this Parliament at Clarendon that Power was taken away and not since practised That they had such Power before he endeavours to prove out of Compton and Spelman neither of which Authors make good any more than that the Bishop was Assessor with the Earl in the County-court which was only to advise him in point of Conscience not much unlike the Offices of our Surrogates who sit in consistory with the Bishops Chancellor in whom we know resides all the Power That this is so appears by the Laws of Edgar put out by Mr. Lambert who in his fifth Chapter hath these Words Centuriâ—… comitâ—…is quisqueâ—…t antea praescribitur interesto Celeberrimus autem ex omni Saâ—…ia bis quotannis conventus agitor cui cuidem illius Diocesis Episcopus senator intersunto quorum alter jura divina alter humana populum edoceto By which we see 't was the Office of the Bishop to direct the People in Divine Laws as it was of the Senator or Earl to teach them Humane of the same Opinion is Sir Edward Coo. 2 Instit. p. 488. Stat circumspecte agatis Lastly Chap. 8. pag. 32. he mentions the Council at Westminster that in regard they might not Agitare judicium sanguinis they had many times forborn to meddle in such Matters The whole Chapter is concerning Bills of Attainder now whether he meant that in such cases they did sometime absent themselves let himself explain This Author not fore-seeing the Advantage would be made of these Constitutions or else hoping to help himself upon the Power they had to make Proxies doth ingeniously confess the Truth but is deserted by all those of his Side who follow him The Author of the Rejoinder p. 5. tells you that the Constitutions of Clarendon permit the Bishops to be present and vote till it comes to loss of Life or Member which is not till the passing of Sentence upon the Prisoner I believed the loss of Life and Member was the Execution and if they may be there and vote till then they may be present as long as any other for when that is given all go away but if his Meaning be that they should go away when the Sentence is to be pronounced the precedent Words will not bear that Construction so that according to him this is rather an imping than clipping the Wings of the Bishops as the former Author affirmeth Beside this Exposition is contrary to the Votes of the Lords who tell you they must go away when their Lordships proceed to voting Guilty or Not Guilty which is before the definitive Sentence which is always given in the Presence of the Prisoner the other not Vide Iournal of Parl. pag. 258. 15 Maii 1679. in which they explained a former Vote made by their Lordships 13 Maii 1679. in which they had voted that the Lords Spiritual had Right to stay in Court in Capital Cases till Sentence or Judgment of Death came to be pronounced by which you see the House of Lords have disowned that Sense our late Interpreters would put upon the Words of this Constitution though themselves before had given colour to that Interpretation Our third Author intituled The Rights of the Bishops fairly passeth over this Law only tells you that a Bishop pronounced Sentence against Becket in case of Treason as Fitztephen a grave Author saith and farther tells you That though the Prince may indulge many Priviledges to his Clergy as this of not compelling them to vote in Parliament in cases of Blood where by the Canon Law they are prohibited yet that Law must yield to the Law of the Land but how if the Canon Law be part of the Law of the Land what 's then to be done which cannot devest the King of his Right of using his Subjects Clerks or not in any Places or Employments he shall think fit to employ them in or in which he may think them capable of doing Him or the Publick any Service This I confess is plain dealing and I wish it were not too much the Sense of some of our greatest Clerks that let the
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-Canon-Law which having been here used are acknowledged a part of the Laws of the Land by Usage and Sufferance of the People So that we have now a whole Parliament that they did not look upon these as against the Kings Prerogative and so null as this Author would have it but fully confirmed as part of the English Law Agreeable with this is my Lord Coke in Cawdrey's Case lib. 5. 32. b. It is says he Resolved and enacted by authority of Parliament that all Canons Constitutions Ordinances and Synodals
when they might have been others that they were present when by his own Rules they should have been excluded either therefore the general words where they are not mentioned do not enforce their Absence or that they oughtto have been excluded at some other Trials where the Author of the Letter admits they were or might have been present The chief Case he instanceth in is that of Michael de la Pool Chancellour of England who was accused of many Misdemeanours by the House of Commons and as I think he would infer such as Thorp Chief Justice was found guilty of being Capital where the Author of the Letter saith the Bishops were not present yet allows them to have been present in the Case of this Chancellour a parallel Case as he saith with that of Thorp either therefore saith our Author they might have been present in the Case of Thorp or they should have been absent in Trial of Pool This is his Argument as near as I can gather out of his Words put together something obscurely I need give no other Answer to this than to lay before you the words of the Record This Accusation was exhibited by the Commons in 10 R. 2. against Michael de la Pool Lord Chancellour in full Parliament before the King Bishops and Lords and six Articles were objected by them against him The first was That he purchased Lands of the King of great value whilst he was Chancellour the other five as the Record saith were only Quarrels and of little concern To the first and most considerable the Chancellour put in a fair Answer the Commons reply and urge things to the utmost and amongst other things say That whereas by the Popes Provisions a Person was recommended to the Priory of St. Anthonies he the said Chancellour would not suffer him to be admitted till the Grantee had contracted to pay to the Chancellor and his Son 100 l. yearly and then parallel this with Thorp's Case and would have had the Chancellor in the same fault with Thorp for Bribery as a Judg and consequently incur the same Judgment The Chancellor replies and shews great difference between the Cases Upon the whole matter Judgment was given against him pursuant to the Accusation for Misdemeanours only in which the Bishops were and might be present and the parallelling it with Thorp's Case was only in the Management of the Cause by the Commons and no part of the Accusation Neither is it reasonable to believe that which our Author asserts in the same Page that the Prelates were free Agents and might withdraw at some times and be present at others as they saw cause For beside that this is contrary to the express Law of Clarendon which expresly declares that 't is their duty to be present in all Proceedings in Curia Regis which in that place must be understood of the Parliament because they were to be present with the other Lords tho I know that Curia Regis is sometimes taken in a more laxe Sense for all the Courts in Westminster are the King's Courts and unto which they were to give Obedience and Attendance in Cases not prohibited I say over and above this Act at Clarendon it seems to me very unreasonable to suppose that such a Body of Men had liberty to give their Attendance when they pleased without leave of the House or cause shewed why 't was fit they should be absent or that the Author of the Letter meant more when he saith they might have been present than that they were not prohibited by the Law of Clarendon which only had Relation to Matters of Blood But these Men had other Canons to go by when they thought fit as well as those of Toledo and 't is probable enough that the rest of the Noble-Men finding them most constant Factors for the Pope were willing enough to let them be absent upon any colourable Pretence when they desired it Is not one clear Precedent against them in point of greater weight than many dubious and equivocal ones which cannot without great Art be wire-drawn to speak to their advantage Let him consult the Discourse of Peerage pag. 17. The Case of the Earl of Northumberland 7 Hen. 4. Rot. processus cor Dom. Rege in Parl. in 5 Hen. 4. This Noble-Man came into Parliament and confessed before the King and Lords that he had done against his Allegiance in gathering Power and giving Liveries this Fact by the Lords was adjudged no Treason for which he gives Thanks to the Lords his Judges and a day after the Commons do the like where the Prelates are named as our Author affirms and to which I shall speak by and by But in 7 Hen. 4 the same Earl was in actual Rebellion in the North and his Forces dispersed by the Earl of Westmarland but he and the Lord Bardolf fled into Scotland the rest were most of them taken Prisoners This Case came into Parliament where the King commands the Lords Temporal Peers of the Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and Lord Bardolf Nothing can be plainer than that the King look'd upon the Lords Temporal as those Peers who were proper to give Judgment touching their Fellow Peers who had fled from Trial in a case of Blood The Record goes on the said Lords advised thereupon and gave Counsel to the King Then the said Lords Peers of the Realm by assent of the King order summoning the said Lords to appear at a day given or to stand convicted by Award of the Peers in Parliament The King farther demanded the Opinion of the Lords Temporal touching the Arch-bishop of York who was in the same Treason The Lords Temporal by the Assent of the King and by their Authority declared and awarded the said Earl and Lord to stand convict of Treason for not appearing upon Summons 'T is very clear that this whole Business was transacted by the Lords Temporal without the Bishops and with the Concurrence of the King 'T is not to be believed that the Bishops would have sate quiet had they thought themselves wronged in these Proceedings See the Discourse of Peerage pag. 17 18. I think it hardly possible to find a more clear Record in the Point than this is First here were two Noble Lords defeated in actual Rebellion and fled from Justice into Scotland The King upon this would not so much as consult with his Prelates knowing them by Law no proper Counsellours against Peers in matters of Blood applies himself to his Lords Temporal they order Proclamations by order of the King enjoyning the said Lords to appear at a day certain or to stand convict they not appearing are by Award of the Lords Temporal convicted of Treason and a Year after one is slain the other mortally wounded at Bramham-moor in York-shire Can any thing be more agreable to the Practice at this day against Men that fly from Justice and
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
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
immediately But I mnst needs say this Errour of Mr. Hunt's is the most excusable of any I meet with in his Book because the great Lord Cook leads him the way For he tells us and refers to the Mirror for Proof That by the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realin had all the Lands of England in demesne and les Grandes Mannors Royalties they reserved to themselves and of the Remnant they for the Defence of the Realm enfeoft the Barons of the Realm with such Jurisdiction as the Court Baron now hath and instituted the Free-holders to be Judges of the Court Baron Then he tells us in his second Institutes That till the Statute of 24. E. 3. whereby 't is provided that Alienations of Lands made by Tenants which held of H. 3. or of other Kings before him to hold of themselves should stand in force saving to the King his Prerogative of the time of his Great Grand-Father his Father and his own It was doubted whether the King's Tenant might have given part of the Tenancy to hold of himself Which is in Effect the same with Mr. Hunt's Notion of all the Tenants holding of the King in Chief 1. But 't is obvious that by what the Lord Cook said of the Laws of King Alfred and others whereby he supposes Tenures were erected not only of the King but of his Grantees who had their Court Barons His Opinion was that the King's Tenant might have granted out to hold of himself for otherwise how could he have had his Court of Tenants 2. Whereas he supposes that the Laws of King Alfred shew that the Kings had all the Lands in Demesne there is but one Law of King Alfred mentioned in the Mirror and that is for the great Councils assembling at London twice a year or oftner if need be Not any thing of Tenures 3. But amongst the Establishments made per cel estate per plusors Royes by several Kings in Parliament the Mirror says Assentus fuist que les choses suivant serrent appendant aux Roys al droit de la corone Soveraigne jurisdiction la Soveraign Signory c. come Franchises treasnre trove c. Then it goes on Ceux droits retiendrent les primers Roys delremnant de la terre enfefferont les Countees Barons c. Here 't is plain that no more than the Rights aforesaid amongst which Chief Cities Chief Ports and Great Mannors were named not all the Lands were retained by the first Kings And tho they are said to have Infeoff'd others of the rest of the Land to hold of them yet that does not necessarily imply that they had all in them before Nay the Mirror shews the contrary for it says That after God pleased to abate the British Nobility who used Force rather than Law he left the Realm to the most humble and simple of all the adjacent Countries the Saxons who came to conquer it from Almain de la quel gent il y eurent iesque quarant Soveraigns que touts soy tiendrent a Companions Amongst these forty Princes being equal and independent here was no King till they came to make a Choice And so the Mirror tells us they did having felt the smart of their Competitions Then Eslierent de eux un Roy a reigner sur eux Governer le People de dieu a Maintainer Defendre les Persons les Biens en quiet per les Rules de droit This shews they did not resign their Properties to the King for they chose him to defend them yet it seems they consented to take Grants from the King by such Services as were in common agreed upon And though they were principally from him as Head of the Body Politick yet any Man that observes the Forms of the Saxon Kings Grants will not think it a vain Imagination that such as I speak of should have been with universal Consent 4. But I cannot find any Warrant to question the Tenants Power at the Common Law to Grant out to hold of himself And I am sure there is an express Resolution for it in Dyer the Words are thus in English A Man seized of a Mannor in Fee held of the King in Capite before the Statute of Quia Emptores Enfeoffs J. S. of part of the demeans in Fee without saying more the Feofee enfeoffs another to hold of the Feoffor and his Heirs by 26 s. and 8 d. Rent for all Services The Land clearly is not held in Capite And the first Mesnalty is not held of the Feoffor as of the Mannor by Knights Service The Statute of 34 E. 3. mentioned before by the Lord Cook is not in the least contrary to this For whereas before Magna Charta the King's Tenant might have alien'd as he pleas'd and Magna Charta's Provision Quod nullus liber homo det de caetero amplius alicui vel vendat alicui de terrâ suâ quà m ut de residuo terrae suae possit sufficienter fieri Domino feodi servitium ei debitum quod pertinet ad feodum illud interpretatively gave a Fine to the King when his Tenant alien'd which was not due before that great Charter was made The Statute 34. E. 3. gave the King Fines for Alienations made in the time of any King even before the making of the Charter The Lord Cook cites an Answer to a Petition in Parliament 18. E. 1. Rex non vult aliquem medium which is no more than that he would not grant his Tenant who then petition'd Licence to alien However he had not forfeited his Land if he had alien'd but the King might have entred and seized the Land in the Name of Distress for a reasonable Fine for the Trespass Which the Lord Cook takes for the better Opinion And if the Land were forfeited to be sure the indivisible Service could not have been multiplied as Mr. Hunt imagines 'T is certain that tho at the Common Law the King or any other Lord might have distrained for his Services reserved upon the Original Grant in the Lands of any inferiour Grantee as well as in the Lands of his immediate Tenants yet there was this Inconvenience that the Wardships and Marriages were not so considerable when the Lands were parcell'd out and the Lands of the immediate Tenant who only was to be in Ward or to be married by the first Grantor were of less value Therefore was that Provision by Magna Charta by the Interpretation of which the King was to have Fines upon Alienations But tho the Inconvenience of Tenants aliening to hold of themselves was taken away by the Statute of Quia emptores Terrarum 18 Edw. 1. which gave Tenants free Power to alien their Lands and provided that the Alienees should hold of the Alienors immediate Lords with an Apportionment of Services Yet Licences of Alienation being
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.
than the Suitors at the Curia being Summon'd The Legislative power they exercised as Members of the General Council or Parliament And the Iudicial power as Members of the Curia and were Members of the Curia as they held Lands of the King in Chief Whereas Men came to the Parliament generally upon the account of property in Land without consideration of tenure so it were free In short a Man may have that in an extraordinary capacity in Parliament which he has not there in an ordinary I likewise held that Becket was try'd for Misdemeanors only though according to the Language of those days they were crimina Laesae Majestatis and that the Tryal was in a bare Curia Regis when no more than Suitors to that were summoned Mr. Hunt 's Argument upon this follows If it was the Curia Regis wherein the ordinary Justice of the Nation was administred and not the Parliament was intended in the Assize of Clarendon in which the priviledge and indulgence under the quosque was allow'd to Bishops then the Assize of Clarendon is unduly urg'd against the Bishops judging in Cases of Blood in Parliament c. And consequently by the Assize of Clarendon the Bishops have no leave to withdraw If the Court wherein Thomas Becket was tryed was the Curia Regis then the Bishops judging in that Court in that cause doth most clearly declare that being a case in point that the quousque was an indulgence which they might use or wave Now to my thinking this seeming irrefragable Argument has no real force For not to mention his wrong interpretation of the Constitution of Clarendon nor yet his mistake of the Fact in relation to Becket 's Tryal as if he were Tryed for a Capital Offence In both which I doubt not but he will receive Conviction to the contrary from these two Learned Authors I am bold to say that there is no manner of consequence in the first Branch of his Dilemma which is the only thing that can lye upon me to answer And truly I conceive that it by no means follows that because the Curia Regis in the Constitution of Clarendon is not the whole Parliament but only that Court which either when a Parliament was held or when only a Council of Tenants in Capite or Lords assembled had the sole exercise of the Judicial Power that therefore Iudgements in Parliament before the Lords such as were Members of the Curia are not affected by that Constitution any more than we can now say the House of Lords cannot be concerned in any matter which does not belong to the whole Parliament I shall only add three Observations which may go far to put an end to this Controversie 1. That part of the Constitution of Clarendon which says of the Ecclesiastick Tenants in Chief Debent interesse Judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem was part of the avitae consuetudines ecclesiasticae If it had been a New Law then indeed whatever was not expresly forbidden were matter of Liberty But it being only in affirmance of the Ancient Law their Liberty went no further than the usage which was to be present only till such Causes came to be tryed 2. If Precedents are as Mr. Hunt censures them like an Oracle that will always give a Response agreeable to the Enquirer and Consulter then we must as I formerly did look to the Law in the Case without entring into the large Field of Precedents 3. If the Canons require the Bishops not to concern themselves in the Tryals of Capital Causes and those Canons have been sufficiently received to become the Law of the Land which these Authors prove undeniably then the Bishops must ever be supposed to have been absent when such matters came in question in Parliament unless they are mentioned there by name and cannot be comprehended under words common to them with the Temporal Lords any more than we can imagine that the Popish Lords who are excluded the Lords House by Act of Parliament yet still are Peers are Parties to any Judgement given by the Peers there SIR THE former trouble I gave you upon this Subject you pulled upon your self by desiring my opinion in it but for this I now give you I must beg your pardon it being singly upon my own account to do my self â—…ht and justifie what I then wrote to you against several aspersions cast upon me in a Pamphlet entituled The Right of Bishops to judge in Capital Cases in Parliament c. made it seems by the same person who had set out the other Pamphlet intituled The Honours of the Spiritual Lords asserted c. Of which I gave you some account in a Postscript to my former Letter and I think without any sharp reflection either upon that Author or his work The most I said was When I had instanced in three notorious falsifications of his The first is p. 112. where he quotes Mr. Selden to prove That the Spiritualty made their Proxies in Capital Causes in more Parliaments than the 21 R. 2. for that they did it likewise in the 2 H. 4. and 2 H. 5. which I shew was a mistake and only said he could not find it so in the Record it self but that he took it upon trust out of the Margin of Mr. Seldens book of the Priviledges of the Baronage p. 125. where there is such a quotation of the 2 H. 4. and the 2 H. 5. but wholly misapplyed by our Assertor of Honours for Mr. Selden alledges that Precedent to shew that whereas 2 H. 5. it was by the then Earl of Salisbury assigned as an error in the Attainder of his Father who was condemned of High-Treason in the 2 H. 4. because it was done Sans Assent des Prelates which are the words of the Record Without the Assent of the Prelates by the way speaks nothing of Proxies it was then adjudged to be no error and his Petition rejected which in truth is a strong Argument to prove that the Prelates had no right to be present at such Tryals and Judgments which is the main Question between us And though he being of another mind had maintained his opinion by so gross a prevarication I was so far from retorting it upon him with any bitterness saying It was disingenious and a suppressing of truth and not setting things down faithfully which is his ordinary language concerning me Or with insipid jeers saying I wear a sharp Sword a Trenchant Toledo as one of the younger house of great Alexander and that he brings me to the Sun like Alexanders Horse and telling of the Magical combate in Apuleius and a City of Birds in Aristophanes and such other scurralous passages as his Book is full of which shews the sweetness of the Gentlemans nature and the goodness of his cause which he maintains only by railing and false assertions Whereas I rather lessened his fault saying only that he was mistaken by being
in that Letter to which I refer my self But for these omissions which he makes so criminal As for the first concerning my not expressing that they made their Peerage a ground of their Protestation I answer That since what I conceived and maintained to have been their end in their Protestation which was Only to assert and lay claim to their Right of being present in Parliament in all other matters but matters of Blood was not at all controverted by me but that to which I fully agreed in omnibus I did not think it at all necessary nor proper to insert what moved them to make such a Protestation but only so much as was to the purpose for what I alledged that Precedent The matter of their Peerage is another point for which in truth there is little ground notwithstanding all their claim to it and that it be sometimes attributed unto them by such as desire to please them and perhaps by many ignorantly and mislead to it in regard of their sitting in the Upper House of Parliament and having a Parity of Vote with the Temporal Lords in the Legislative part and likewise in the judicial part of that House in all other Cases but of Blood from which they have been particularly debarred both by their own Canon Law and afterwards by the Law of the Land and the custome and usage of Parliament which may very well make many persons not considering the true nature of Peerage nor examining with care and diligence what in that particular our Law saith and what hath been the usage of Parliament give them that Appellation But I have in my former Letter cleared also this point I think very fully and shall say more to it in this when I come to answer that Article hereafter in course as our Assertor brings me to it for this now is but by the way upon occasion of this his first Postulatum And now for his other charge upon my unfaithful citing the Protestation in 28 H. 6. leaving out how the Lords Spiritual and Temporal joyned in challenging their Right of Judicature and that the Judgment given by the King concerning the Duke of Suffolk should not turn to their prejudice but they and their Successors should enjoy their liberties in case of their Peerage hereafter as freely and as largely as their Ancestors had before them I shall give a like answer to this as I did to the other I concealed nothing that was necessary and proper to be said which may appear by my letting forth particularly the whole proceeding in that Tryal step by step how the Prelates joyned in the management of it from the beginning to the end therefore certainly it had been no more a disadvantage to me to acknowledge that the Prelates claimed such a Right in a verbal Protestation than that they did actually exercise it as I say they did all along in the whole transaction of that business Therefore if it was designedly done it was a weak design in me my end was only to shew the palpable extravagances of that Tryal and of the Kings taking upon himself to give the Judgment and so mentioned the Lords Protesting against it in which the Prelates joyned with the Temporal Lords as well as they had in all the foregoing passages of it for the matter of their Peerage I reserved it still to be spoken to in a clause apart by it self when it comes to be the proper subject matter in question I did it in my former Letter to you and I shall do the same in this His second Postulatum is concerning Attainders in which he saith we both agree that Bishops may and ought to be present and yet Attainders saith he are matters of Blood and learnedly he adds That it is not material in the Judgment of any considering person which way a mans life is taken away whether by way of Attainder or by Impeachment and infers further That the Canon Law which by a jeer he saith I call the Law of Laws is not so indispensibly obliging And our Asserter it seems puts himself into the rank of those considering persons that make an Attainder and an Impeachment two distinct species or kinds of proceeding against a Criminal person to take away Life saying it is not material which of the two wayes life is taken away whether by Attainder or Impeachment Oh the Ignoramus that wants a considering Cap to judge aright and know what an Attainder is which is what follows upon the Conviction and Condemnation of the guilty Person be it upon an Impeachment in Parliament and Tryal there in a judicial way or by an Act of Parliament in the Legislative way or by a special Commission of Oyer and Terminer under the great Seal the Attainder is the Result and Consequent of those three wayes of Tryal and Condemnation and not a distinct thing running in a different channel from an Impeachment or from any of the other wayes of Tryal being the end and consequent as I say of all Tryals when the person is found Guilty The Term Attainder or Attainted implies so much which our Etymologists derive from the Latin Attingere to Touch or Reach to a thing Now a Criminal person is touched or reached unto and seized upon by the Law upon an Impeachment and Tryal in Parliament or by a Tryal out of Parliament by Commission as well as by an Act of Parliament so I think one may give it this Definition That it is a Notion in Law whereby the Law reacheth and seiseth upon a Condemned person taints his Blood and divesteth him of all his Priviledges both in publick and private concerns which he enjoyed before as a Free Man of England Besides our confident Asserter doth not consider the nature of the Question in controversy which is not Whether a Bishop quatenus a Bishop an Ecclesiastical person in holy Orders may be present as a Judge in any case when matters of Blood are agitated and whether the Canon Law be so obliging as that in no case he may but whether by the Law of the Land and the custome and usage of Parliament the Bishops be forbidden it when the House of Peers acts in a judicial capacity to condemn any body and not when they pass an Act of Parliament for it and I think it is clearly made out That they may in the latter case passing a Law for it and not in the former to act as Judges in a judicial way His third Postulatum is concerning the Petition of the Commons 21 R. 2. That in regard divers Judgments in Parliament had been heretofore undone and repealed for that the Lords Spiritual were not present at them the King would command them to make some their common Procurator with sufficient authority thereunto which would put an end to all controversies To this he saith That for me to demand what in particular those Judgments were at this distance of time is neither equitable nor rational And truely I made no such
by the institutions of the Holy Canons to be personally present and that of Right they cannot nor ought to be there and therefore they do not intend in any sort quomodolibet to be present but wholly to absent themselves while those matters are handling Can any man now have the fore-head to maintain that they could have a thought of challenging still a right contrary to such prohibitions and to say that it was only the Canon Law that did prohibit them I say still that the Canon Law was to them above all Laws and the Prelates of those times conceived themselves to be above all other Laws even not to be subject to them but what the Canon Law did allow or forbid was accordingly by them held to be most lawful or unlawful The Salvo they add makes it clear Iure paritatis nostrae cujuâ—…ibet eorum interessendi in dicto Parliamento quoad omnia singula inibi exercenda nostris eorum cujuâ—…ibet Statui Ordini congruentia in omnibus salbis The right of our Parity and of every one of them that is our equal right in the general and of every one of us in particular with the rest of the Lords of being present and acting in the said Parliament as to all things and every thing befitting our State and Order always remaining unto us safe and entire Now I would ask if it can be imagined that they would by way of Protestation reserve to themselves a liberty when they pleased to do what they said was not lawful for them to do and that which of right and according to the Law to which they were subject and must obey they could not nor ought to meddle with And if such things can be thought to be Statui Ordini congruentia for their Salvo extends only to such things as are agreeable to their State and Order Indeed I think it a solecism to have such a thought And I know it will be excepted against that I do take Paritas here in such a sense and not to be Nomen Apellativum to signifie Peerage a rank of men but I consider how it is put that it is Paritas interessendi in Parliamento which in my opinion is proper to render a Parity or an equal right with others to be present in Parliament But let them construe it Peerage it matters not to me I have handled that point fully by it self in my former Letter and shall do it again in this before I make an end to shew I am not afraid of that expression and though in those times the Prelates gave themselves sometimes that Character that it did not at all belong unto them And he beats upon this again That this was left out purposely by me in my citing this Protestation which I have sufficiently cleared already amongst his Postulata's therefore I shall not trouble you with it again in this place In the Case of Thomas Haxey 20 R. 2. my Gentleman is so ingenious as to say He believes the Bishops were not present but then he tells you why because it was an erroneous Judgment and an Irregular Condemnation and so commends their Prudence And sure he hath been with some Witch to raise some of those Prelates from the Grave as the Witch of Endor did Samuel to tell him the true cause why they withdrew themselves and did then forbear to use their Right as he saith it is lawful for every man to do else he could never have hit so pat upon the true cause of their withdrawing whereas otherwise a man might say it was because they knew they had no right to be there and if it had been their right they should the rather have made use of it to prevent and hinder an unrighteous Judgement and have caused a righteous one to be given And more than that if it was their Right and that they had a calling to be there they were bound to attend the Service and I think it would have been a breach of Duty and a Sin in them to withdraw themselves from it And now I come to a Bundle of Words indeed it is what he says concerning their Proxies 21 R. 2. out of which one shall have much ado to pick some sense and what it is he would be at I will do my endeavour in it He first puts us in mind of his fifth Postulatum and of what he said there of the difference between the Matter of a Law and the Manner of its enacting and that a Law may be repealed for the Matter of it and yet the Manner of making it still hold good This I suppose he saith because I except against the authority which that Parliament at the desire of the Commons gave the Bishops to make their Common Procurator in regard that whole Parliament was afterwards repealed and consequently all it did made null and void Yes saith he the Parliament was repealed by 1 H. 4. because it condemned those who were his friends as Traytors to the King and Government yet the proceedings in that Parliament were just and lawful To which I answer That what was done that Parliament agreeing with the practice and usage of other Parliaments was certainly just for the Manner of the doing though the Matter might be repealed and made null But what was never done before in any Parliament nor any thing like it could not receive any stamp of Authority for its being done in this Parliament because the Parliament it self had no authority a subsequent Parliament repealing it and making it as if it had never been And this of all the Bishops joyning to make a Common Proctor was never done in any Parliament before nor since If any should object that Henry the Fourth was an Usurper and had no right nor Title to repeal former Parliaments nor to make any Laws This were an Objection if it should be allowed would have a long tail and carry a very bad consequence for it would sweep away at once all the good Laws that were made in three Kings raigns and would make such a Hiatus in our Statute Laws as would put things into a very great disorder We know that in Edward the Fourth's time which followed immediately after those three Henries in all the Acts of Parliament which passed when mention is made of any thing done in those Kings Reigns still what was done is allowed of and confirmed and to their Persons and Government the Parliament still gives this Character that they were Kings indeed but not of right Which implies the stamp of Soveraign power and authority to be set upon all their actions and so upon the Parliaments that were summoned and held by them and principally there because of the concurrence and conjunction of the whole Kingdome in all things there done Nay in some Acts of Parliament we find care taken that nothing should clash with what had been done in Parliament by some of those Kings as 14 E. 4. c. 4. there is a Statute
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
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
testifies to have seen an Exemplification of it under the Great Seal of Ireland in the time of Henry the fourth testifying the same to have been sent into Ireland by Henry the second for a Form of holding Parliaments in that Kingdom So that we must either admit the Great Seal of Ireland to be forged or confess the Modus as ancient as Henry the second 's time Many admit that it was sent into Ireland as a Modus for that Country but was not so for England which seems to me unreasonable it not being likely we should give them a Patern different from our own who now observe most of the Rules there given Daniel Anno 1133 in the Life of Henry the first will tell you that in his time the word Parliament began to be in use after the Convocation of his Parliament at Salisbury in the 15th Year of his Reign Nay much ancienter even as old as Canutus if we believe the old Book of Sir Edmundsbury who in the fifth Year of his Reign summoned all his Prelates Nobles and Great Men to his Parliament as you may see more fully Rights of the Crown p. 100. By all which of much more that might be added we may see how dangerous it is to judg of Books by the promiscuous use of words I have made this short Digression to the end that what I shall say hereafter may be made clearer I shall now apply my self to the Case of the Clergy and consider their Right to sit in Parliament This Right of theirs must grow since the Conquest from the Tenure of their Land in Capite sicut Baroniam and consequently they cannot be reckoned but amongst the Barons by Tenure and are not properly Barons but Peers no way enobled in Blood nor of longer continuance than the Foundation upon which the Tenure is built continues Thus we see in the Dissolution of Monasteries the Tenure was extinguished The same in Bishopricks as that of Westminster and others where the Corporation being dissolved the Tenure as to them was extinguished I know very well they would not now be thought to sit Ratione Episcop Dignitatis as Bishops but as Barons In that famous Wrangle at Northampton touching Becket who should pronounce Sentence against him The Bishops tell the Lords Non sedemus hic Episcopi sed Barones nos Barones vos Barones pares hic sumus Fitst cap. 10. col 2. Seld. Tit. Hon. part 2. cap. 5. pag. 706. We sit not here Bishops but Barons We Barons and you Barons are here Peers or Equals Not meaning by these words that they were otherwise Peers than such as their Tenure made them which was only to hold in Cap. sicut Baroniam or in the nature of a Barony for although that tenere per Baroniam sicut Baroniam perhaps are all one neither of them imply a Barony but only the Services of a Barony which the Bishops by their Tenure were bound to perform as also the Abbots And I am the more confirmed in this Opinion because I do not find that any Examination was made what their Possessions were nor of how many Knights Fees they consisted but were they more or less the Tenure was the same whereas 't is probable the Possessions of some were above twenty Knights Fees the rate of an Earl others less than thirteen yet still the Tenure and Peerage was the same Neither is any Record or Patent produced nor I think can be where any Barony was annexed to their Possessions 'T is evident that out of one Bishoprick others have been taken as Peterborough out of Lincoln Oxford out of Gloster yet these Bishops came to Parliament and still under the same Tenure and Service In Edward the sixth's time Cranmer had his Episcopal Dignity during Pleasure Was he then a Baron at will We may safely conclude from the Complaint of all Historians of those Times that Tenure in Capite and their Services which arose by it was put upon them as a Burthen not as an Honour but imposed upon them to make them know they were Subjects which they could hardly be brought to believe having such Dependance upon Rome Yet was it not thought fit wholly to exclude them from all Councils and therefore this expedient was found out that they should hold their Lands by doing such Services as Barons did and sit amongst them in Parliament in the nature of Barons which they improved afterwards to the Appellation of themselves by the name of Barons but never could to equal Priviledges with those Persons who were truly such Petrus Blesensis in his Tractate de Institutione Episcopali hath these words which I have occasion to cite more at large towards the end of this Treatise pag. 129. Quidam Episcopi Regum munificentias eleemosynas antiquorum abusivè Baronias Regalia vocant in occasione turpissimae Servitutis se ipsos Barones vocant Some Bishops abusively call the Bounties of Princes and the Alms of their Ancestors Baronies and Royalties and taking occasion from that base Slavery he means certainly the Slavery in performing those Services put upon them by their Tenure call themselves Barons This he much and largely inveighs against from all which it may reasonably be collected that they gave themselves that Title rather than that it was given them by the King who yet sate in Parliament together with the other Barons not as a distinct Estate from them but involved with them as part of a third Estate which was intirely represented in Convocation For it seems to me very clearly that they never were a distinct Estate in Parliament if by Parliament you understand that part of it which consisted of Counts and Barons yet were they the chief and principal part of a third Estate in Parliament in respect of the Convocation which began continued and ended with it and where their Debates Gifts to the King and other Transactions bind only their own Body Neither is it reasonable to believe them a third Estate here otherwise than they are so accounted in other parts of the World to wit a part of that Body the Clergy who being a Select Portion or Lot of the Lords and Embassadours of Christ look'd upon themselves as not accountable to any Secular Tribunal Neither is it material whether they sate mixt with the Laity as perhaps they have sometimes done for this cannot alter their being a third Estate as Clergy-men let their Votes be gathered together or apart Indeed I cannot see how it is possible they should be a third Estate in that House where they sit among the Lords for besides their Unwillingness to own that they sit as Bishops but as Barons I would fain have any Man tell me how it comes to be so Dr. Heylin will tell you that Clerus was never taken for the Bishops distinct from the other Clergy By what Title do they then claim it by any Grant from the King that should be produced
and the Determinations promulgated by their Assent and the Assent of the King for the Lay-men did usually meet with the Clergy in their Councils in those days To which purpose see a Tractate of a late learned Writer in his Iani Angl. fac nov pag. 213. which came not to my hand till very lately Now whether this Agitation of the Clergy in matters of Blood had reference to the ordinary Courts of Justice in which they might not be present or to all in general is not material since it is only produced to shew the meaning of the Word and certainly if it be inclusive as to those Courts it is not exclusive to any other And Agitation in Tryals being naturally before Sentence Agitation in Tryals must extend to Preliminaries Let us now come to the Constitutions of Arch-bishop Langton in Linwood 'T is first found lib. 3. tit 29. Ne Clerici vel Mon. fo 269. ult edit Praesenti statuimus decreto c. Nec Jurisdictiones exerceant saeculares praesertim illas quibus judicium sanguinis est annexum His quoque duximus adjungendum ne scilicet judicium sanguinis in locis sacris tractetur in ecclesia videlicet vel in caemeterio Authoritate quoque Concilii districtius inhibemus ne quis Clericus beneficiatus vel in sacris ordinibus constitutus literas pro paena sanguinis infligenda scribere vel dictare praesumat vel ubi judicium sanguinis tractatur vel exercetur intersit The Sum of all which is that no Clergy-man should exercise Jurisdiction in any cause to which Sentence of Blood was annexed That no causes concerning Blood should be held in Churches or Church-yards Lastly that they should not be interessed where causes of Blood were handled nor should presume to write or dictate such Sentences to be inflicted To the same purpose are the Constit. of Othobon Ne cler advocat tit 7. p. 91. Let him look upon his own Authority out of Hostiensis Protestatio in judicio is meant of a Protestation in a Suit or Process I am sure these are Testimonies more than enough to shew the true meaning of judicium among Lawyers which is the only end for which I have produced them I shall now come to the true Translation of the Words but shall not follow Mr. Selden and after him the Author of the Letter in rendring Universae personae Regni all the dignified Clergy nor shall I allow of his Criticism of Persona or Personatus because for ought appears to me some Clergy-men who were not dignified might by License from the King purchase Lands held in Capite sicut Baroniam and thereupon think themselves exempt from this Law Having thus far cleared the way I come now to the true Translation of the Words themselves which 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 sicut ceteri Barones debent interesse Judiciis Curie Regis quousque perveniatur in Judicio ad diminutionem Membrorum vel ad Mortem In English Let the Arch-bishops and Bishops and all Persons whatsoever of the Kingdom who hold of the King in Capite have their Possessions from the King in the Nature of a Barony and by reason thereof let them answer the King's Justices and Ministers and perform all Royal Customs And in like manner as the rest of the Barons 't is their Duty to be present at all Debates Process or Proceedings in the King's Court viz. the Parliament till what time so far forth or except when in the Tryal Debate or Process the loss of Life or Member may fall out to be the Upshot or Conclusion of the Case or the matter put in Issue In plain English in all cases where the Issue or Conclusion may fall out to be ended in loss of Life or Member they are by this Law to be absent Now I hope upon Issue joyn'd if the Impeachment be of a capital Crime the conclusion or upshot may happen to be found to concern Life or Member And that this is the true Sense and Construction of the Words I dare appeal to any Man who is so far Master of the Language as not to think fit to consound Moods Tenses and Numbers at Pleasure as this Author seems to do when he reads Curiae Regis the King's Courts which being in the singular Number resers only to the King 's great Court the Parliament the King's Courts in the plural Perveniatur in the Potential Mood when such a thing may be brought to pass with pervenitur in the Indicative Mood when such a thing is brought to pass that is as he erroneously translates till Sentence comes to be given And the Authorities before-cited evidently shew that the Writers of those Ages understood the Law in that sense To which Authorities I shall now add the Opinions of Mr. Selden Sir Edward Cook Mr. Hakewell and Fitz-Stephens a Writer of good esteem with our Author Mr. Selden Tit. Hon. part 2. ch 5. p. 704. explaining these Constitutions of Clarendon saith that the meaning of this in question is That the Bishops were to sit in Judgment with the rest of the Barons in all cases save in cases of Blood Now I hope every man will admit 't is a case of Blood before Sentence and that the Barons sit in Judgment when the Matter comes to be treated of before them Sir Edward Coke cap. de Asportatis Relig. cites the Parliament of 11 R. 2. where by their own acknowledgment they went out before any Debate their presence being prohibited by the canon-Canon-Law Mr. Hakewel in his Mod. ten pag. 84. hath these words Therefore we see the Presence of the Bishops in Parliament in respect of their Baronies is Duousque perveniatur ad diminutionem c. for so even unto our times when Question is had of the Attainder of any Peer or other in Parliament the Arch-Bishops and Bishops depart the House and make their Proctors Here you see they are to depart when Question is had c. As to their making Proctors I shall speak more fully hereafter as also shall shew that the Canon Law both by these Constitutions and before them was part of the Consuetudines Regni yet this by the way appears plainly that the desire of the Cominons in 21 R. 2. that they might make Proctors must have reference to the beginning not the end of the Tryal when the naming them was useless But let me not do him wrong for pag. 33. he touches the Sense I have given but dislikes it viz. That the last Clause is not to be understood of the Sentence but of the kind and quality of the Cause that is they are to be present in the King's Courts till they come to a Cause where Life and Member are concerned This Sense certainly is near
having then made his Appeal Neither to speak my Mind freely can I see how he could be accused of Treason for Who was the Accuser The King could not because by reason of the dignity of his Person no Averment could be made against him neither could any man be tryed but by his Peers Now we hear of no Articles exhibited no Jury summoned nor no legal Proceedings in case it had been a Parliament for though Mag. Charta was not so perfect as in Henry the Third's Time yet all Historians agree 't was granted in Henry the First 's Time of the chief Points whereof Stephen Langton Arch-bishop of Canterbury brought a Copy into the Parliament in King John's Time a worthy Prelate he was though an Italian though it were the Law of the Land before and though the Council of the King might in some Misdemeanours proceed arbitrarily yet in Treason they could not as is well observed by Mr. Selden Priv. of Bar. ca. 4. pa. 10. but they were in those Cases to be tryed by their Equals Co. 2. Inst. pag. 50. tells you 't was as ancient as William the First gives you an Example of Roger Earl of Hereford so tryed in his Time But we have not yet done with Fitz-Stephens for our Author tells you that the King upon the proud Answer of Becket charges the Bishops that together with the Barons by virtue of their Allegiance they would give Judgment upon the Arch-bishop They excuse themselves The King presseth them Fitz-Steph Words are Rex responso Archiep accepto instat Episcopis praecipiens obtestans per homagium fidelitatem sibi debitam juratam ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam c. This he translates That the Bishops together with the Barons would give Judgment upon the Arch-bishop This appears to be after his Appeal when the giving of Judgment or medling farther in the Business was refused beside the undue Translation of the Words which signifie no more but the desire of the King that they would tell him their Opinion touching the Arch-bishop I wish he would give me any good Authority where dictare Regi sententiam for sibi here is the same can signifie giving Judgment upon a Criminal as he translates them I know very well that dictare judicium may be taken to deliver any Sentence leisurely Linw. lib. 3. Ne Cler. vel Mon. where it is all one with dicere or suggerere sententiam Beside no such Sense can be affixed to these Words for the King's Question refers to them all in general but certainly the King did not mean they should all pronounce Sentence but only privately tell him their Thoughts yet from hence would our Author infer that this was a Parliament and that the Bishops had Power to give Judgment in Criminal Cases when he hath proved neither because in Truth this was only an Attempt of the King 's to draw them to his Party having then Intentions to send to Rome about this matter The Words of the Bishop of Chichester which he spake to Becket after his Appeal to Rome will do him as little Service for they import no more than that the Interdict laid upon him and the rest from doing any thing against him during his Absence hindred them from being present at such Proceedings against him as the King required from them 'T is not to be doubted but the King would have pressed them to deliver their Opinions whither his Appeal were Treason or not what their Judgment would have been no man knows If it had been a Parliament then summons must have been sent out for his Appearance and Proceedings by Bill of Attainder in a Legislative way not arbitrary in Cases Capital Seld. pri Bar. cap. 4. pag. 10. as before noted He closes this Head of Discourse with a pretended Confutation of the Author of the Tractate of Peerage a Book by some snarl'd at but by none answered but let us examine what they both say The Author of the Discourse of Peerage tells you pag. 14. and backs what he saith by the Authority of Justice Doddridge Sir Edward Cook and Mr. Selden that these were only certain Recapitulations of the King's Prerogative and the Peoples Right then sought to be infringed by the Pope and Clergy That these Recapitulations were avite consuetudines is confessed and that that Canon concerning Blood is as ancient in England as the Conquest our Author acknowledgeth that Gervasius Dorobernensis reckons this Article among the Laws then established from all which the Discourser of Peerage might very well argue That which was a Custom in Henry the First 's Time taken notice and allowed in Henry the Second's Time and of the beginning whereof there is no Memorial extant nor account to be given ought reasonably to be esteemed as part of the ancient Custom which is the common Law of the Kingdom All that the grand Questionist thinks fit to reply to this is that it is little to his Purpose because this Clause in Question is not a Limitation of their Power but a Priviledge and Indulgence for their Absence That this Fancy is erroneous I have before shewed from the natural Sense of that Clause as also that long before these Constitutions they were both by their own Canon Law and Custom of the Nation prohibited from being present in Cases and Consultations of Blood and that themselves admitted not only the Liberty but the Obligation by their constant Obedience given to that Law and Custom in absenting themselves in those Cases as the Author of the Letter hath asserted and shall by me be farther cleared in my Answer to his Precedents Now I do not think that this Author believeth that these Constitutions gave them a greater Liberty than they had before but if it found them bound that Statute left them so and was as all affirmative Statutes are though not introductory of a new Law yet are they corroborative of the old and in their Oath they swear Obedience to this Article as well as to the rest to wit that they would according to their Duty be present in all Proceedings in Parliament with the rest of the Barons except in Cases of Blood in which they tell us afterwards that it was not lawful for them to be present at any hand so that upon their Allowance there was more than a Liberty for there was a Law against them Beside could this Sense be allowed it would no way serve to make good his main Hypothesis that they might be present till the definitive Sentence came to be given for if the Law were obligatory as to any part why not to every part of it Our Aurhor is as little fortunate in his attempt to evade the Authority of Roger Hoveden pag. 40. who saith That 't was agreed in the Synod at Westminster that no Clergy-man should agitare Iudicium sanguints He tels you this was part of a Canon agreed at Toledo which
Ricard Archbishop of Canterbury thought fit to have received here and I think would inferr that here was no more done then a Proposal of this to be received not that itw as so But if we will believe Gervas Dorbernensis in 22 H. 2 fo 1429. An. 1175. he will tel you they went much farther His Words are Hoc concilio ad emendationem ecclesiae Anglicanae assensu Domini Regis Primorum omnium Regni haec promulgata sunt capitula Among which one is His qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut perse membrorum truncationes faciant aut inferendas judicent Here is not only a Proposition of the Arch-bishop but an Assent and Promulgation of the same by the King and chief of the Kingdom And the true Sense of that Canon which being so confirm'd had the force of a Law is That Clergy-men should not agitare or medle in any Tryal of Blood which certainly extends to Preliminaries but are prohibited to make Amputations themselves or give their Opinion or Judgment that such Amputations ought to be made by others Their presence at such Trials was unlawfull Non licet and their Acting prohibited So at last I have done with this clause and have shewd that it is not indulgent but restrictive that it was a custom in H. 1. time sworn to at Clarendon published at Westminster 12 years after and by all this made part of the Law of the Nation have answered all his Subterfuges and Evasions have shewed the Interpretation I have given was always received I expect now so much Ingenuity in this Author that he will either yield to my Sense or give another agreeable to the Rules of Grammar and the proper Signification of the Words and not take the Liberty to explain them at his Pleasure and confound Voices Moods and Numbers Insomuch that this Statute will remain Testimonium irrefragabile still and I am sure if he observes his due bounds he must give an Interpretation equipollent to to what I have given So hard it is for the greatest Wits to maintain an ill Cause I come now to the Consideration of the Protestation made in the Parliament held in 11. R. 2. which our Author saith much cleareth the whole Business especially the preface therof for the omission of which he blames the Author of the Letter I shall give it you in English which our Author hath not thought fit to do and by that means deprived many of his Readers of means to make a true Judgment of it In the Name of God Amen For as much as by the Law and Custom of the Kingdom of England it belongs to the Arch-bishop of Canterbury for the time being as also to the rest of his Suffragans Fellow-Brethren and Fellow-Bishops with the Abbots Priors and other Prelats whatever who hold of the King by Barony as Peers of the foresaid Kingdom to be personally present in the Parliaments of the King whatsoever and there with the rest of the Peers and others that have right to be there present concerning the arduous Affairs of the Nation and concerning other things there usualy to be treated of to Consult Treat Ordain Appoint and Define and other things to do which there in time of Parliament are prepared or fitted to be done In all and singular of which We William Arch-bishop of Canterbury Primate of England and Legate Apostolical for our selves our Suffragans our Felow-Bishops and Fellow-Brethren as also for the Abbots Priors and all the foresaid Prelates do protest and every one of them doth protest who either by himself or his Proctor shall be here Present at this time publickly and expresly that we intend and every one of us will in this present Parliament and others as Peers of the fore-said Kingdom after our accustomed manner be present to Consult Treat Ordain and Define and all other things ro exercise together with the rest that have right to be present in the same The Condition State and Order of us and every one of us being still saved But for as much as in this present Parliament some matters are to be treated of in which it is not lawful for us or any of them according to the Decrees of the Holy Church and the Canons thereof to be at any hand personally present For which Reason we for our selves and for every of them do protest and every one of them here doth also protest That we intend not nor will because according to the Law we cannot nor ought not be present in this present Parliament whilst such matters are or shall be treated of but that we and every one of them will upon that occasion all together absent our selves our right of Peerage and of theirs as to our and their being present in the said Parliament and as to our and every of their exercising and doing all and singular things our and their order in all things allways preserved And we farther protest and every one of them protesteth that by reason of this our absence we do not intend neither doth any one of them intend or will that the Trials or Proceedings had or to be had in this present Parliament upon those aforesaid matters in which we cannot nor ought not as is premised be present as much as in us lyes or any of them lyes shall in times to come be any way impugned weakened or broken He tells you that this Protestation saving the legall Formalities consists of three parts First a declaration of their undoubted Right as Peers of the Realm by virtue of their Baronies to sit and Vote in all Debates in Parliament Where by the way the words are de Regni negotiis not omnibus of the affairs of the Kingdom not all of them and aliquibus may as well be understood as omnibus and this appears soon after upon their own shewing for they tell you they intend to be present in this and all other Parliaments and presently after tell you it is not lawful for them to be present in this Parliament while such matters were handled to intend to be present and then tell you that 't is not lawful to be present in this Parliament shews that their Power was limited and not universal however upon this Protestation they went out at the Begining and made no Proctor for they tell you they ought not to be personally present at any hand where such Affairs are or would be treated of which certainly was before the definitive sentence so that the Canon required their absence at Preliminaries according to the sense of all times till these new expounders came in place I will not here dispute whether this Protestation be an act of Parliament with Submission to better Judgments I think it hard that what was intended as a Protestation should by Construction be advanced to an Act no more than his present Majesties Concessions upon the desire of
the Lords and Commons in the case of some of the late Traitors should have the like construction and the entring into the Roll by the Clerk was no more then entring into the Lords Journal now But since our Author hath made his Observations let him give me leave also to make mine First This protestation is cunningly worded by their own Direction therefore their calling themselves Peers of the Realm doth not make them such in any new sense neither doth entring in their Journal Book do more than make it a Record and render them liable to Punishment if any thing unfit in it shall be taken notice of An example of this we have in the Bishops Protestation 1641. That all Laws to be made in their forced Absence should be void which could not any way weaken them or ours here that they should be good any ways strengthen those Laws then made The next thing observable is that he saith 'T is their undoubted Right as Peers of the Realm by virtue of their Baronies to sit and vote in all Debates in Parliament In which Assertion he begs two things first That they sit there by Vertue of their Baronies whereas he hath not proved they ever had any except tenere sicut or quasi per Baroniam or per servitium Baroniae be equivalent with esse Baronem which I cannot so easily admit though they call themselves so and in ordinary Speech may be so called by others that Question having never been determined though admitted in Pleading by Counsel The Reasons of my Doubts I have given in my first Chapter and shall submit them to more learned Judgments They say here they sit as Barons but allow that they have no Right to judge in those Cases then in Agitation and notwithstanding it should be true that William the First divided the Kingdom into Counties and Baronies to hold of him in Capite a County to contain twenty Knights Fees a Barony thirteen or thereabout it doth not appear that every Bishop had thirteen Knights Fees or that some of them had not above twenty yet all of them held equally in Capite sicut Baroniam and sate there among the Nobility as Associates to them I shall farther observe that their Right to sit and vote there was more solito as they had usually done and this with a Salvo or Saving to their State and Order so that except our Author had first proved that 't was their usual manner to vote and judge in matters of Blood and that this was agreeable to their State and Order which themselves deny he hath done nothing for they pretend not to any other Right but what they usually enjoyed and what was agreeable to their State and Order Let now our Author take what Advantage he can from the Preface to the Protestation for the Omission of which he so much blames the Pen-man of the Letter The second matter he affirms and attempts to prove is that their absenting themselves was merely in obedience to the Canons of the Church and not out of Respect to any other Law Yet Sir William Baker's Continuer pag. 478. ult Edit saith their Absence was not from their Obedience to the Canon-Law only but according to the Practise of the Kingdom to this day by which it seems he look'd upon it as the common Practise for them to do so For he tells you 't was impossible they should claim such a Right by virtue of their Baronies or that the Lords should allow such a Protestation if there were any other Law against them then in force And that if this Protestation were a Law the Case was more strong on their side for then it declares they had that Right they pretended to by Law Should I admit this for once Doth it not also as solemnly declare that in Cases of Blood they are barred by the Canon-Law and so make that Bar a part of the matter enacted But for a fuller Answer and Discharge of what he urgeth without repeating what I have said before as to the Protestation it self let me put him in mind what I doubt not he knows that all Arguments ab impossibili or Deductions ad impossibile are the weakest ways of Demonstration and never used where any other can be brought which at best in this Case can only argue a Neglect in the Lords But secondly he may be advertised that all protestations are entered according to the desire of the Protestors and not made an Act of the House Lastly all this is but what they usually did and hath not relation to any other Matter than what was their Custom and was agreeable to their State and order which was to absent themselves in cases of Blood His Digression afterward for for two or three Leaves about the Power of of the Pope or his Legate to dispense with Irregularity which here he calls a Penalty in another place the Sanction it self together with the mystery of the Canon-Law serves in my Judgment to no other end but to shew the Bishops were generally Time-servers and forced Polity and Religion to bend to their turns forgetting that nothing is profitable which is not first Just. However we do not hear of any Dispensation granted here either by the Pope or his Legate and I would be glad this Author did let us know that his Opinion is that the Pope or Legate have a legal Power to to dispence with those Canons established in Councils and received by a Nation I always did believe that those that attributed to the Pope a greater Power then I do did not look upon him under any other Notion than as one trusted to keep and not to break the Canons Having thus cleared the Protestation from his Objections let us examine the clear meaning of it This Author saith that the very reading it is sufficient to convince any man that the Canons were the only cause of their absence I will not deny but that it might him but do not believe it hath Reason to force others to be of this mind For if two Laws were against them to wit the canon-Canon-Law and the common-Common-Law confirmed in Parliament 't was not unusual for those sort of men to express which of them they had most mind to But beside this I find no Absurdity to affirm they took notice of both though more obscurely of the last by a Non licet to the one by a de jure non possumns to the other 'T is not lawful for us at any hand by the first viz. the Canons which are to us a greater Law than any other Next by the Law of the Land de jure non possunius Not that in it self our Presence in all Cases were unlawful if the Canons were not in the way But there is also another Law which prohibits us from being present in those Cases in which otherwise we might have thought it reasonable to have given our Assistance who are no such strict Observers of the
Canons when 't is for our Advantage to break them I might now proceed to the Examination of his Iast Head How far the Canon Law is at this day binding But because I would not leave any thing untaken notice of he thinks fit to make use of for the strengthening his Cause I shall speak something to what he farther urgeth He tells you out of Knighton That this Parliament was called Parliamentum sine Misericordiâ and that many Circumstances concurred which might make the Lords willing to admit of their Protestation because their business might proceed better against the King's Ministers He need not have urged Inducements to perswade the Lords to admit of their Protestation except he had first shewed they had Power to have refused it But by this Inducement he insinuates that the Bishops would probably have obstructed Justice against those wicked Ministers about the King What the Accusation was for which some of them were executed I shall let you seek in the Historians of those times being unwilling to rake into that Puddle any deeper I shall therefore leave this Parliament and the mysterious Canons as our Author well calls them and come to the Anti-Parliament to this held in 21 R. 2. where as he saith the King had a Mind to undoe what was done in the Parliament in 11 R. 2. which Intention this Author saith he had kept in his Mind ten Years by being willing to let the Bishops be absent in 11. that he might have that pretence to Question in this Anti-Parliament the things then done An undecent Charge he lays upon the King if it be well considered The Declaration by help of the Bishops that the King's Pardon granted in Parliament in 11. was revocable by the King was the Labour of his Ministers in 〈◊〉 which those Ministers prevailed in 〈◊〉 Measure but their Actions with 〈◊〉 â—…cceeding Murther of the D. of Gloâ—… the King's Uncle bred such a Jealousie and Distrust between the King and his People that I may call it the first Stone which left not rolling till it ended in the Ruine of that poor Prince who continued not King much more than a Year after and was soon after the Deprivation of his Crown deprived of his Life also What Art was used to make that Parliament subservient to their ends I need not tell you One of the first Attempts was what I touched before to make Pardons granted by the King in Parliament revocable at his Pleasure in this the Clergy were very instrumental After this the Commons come to do their Parts and they represent that divers Judgments had been undone heretofore for that the Clergy were not there present and therefore pray they might appoint some common Proctor with sufficient Authority to that Purpose From hence he infers two things First That the Commons thought their Presence necessary because Judgments had been undone for want of it Therefore their Concurrence in Judgment was thought necessary to make a Judgment valid Secondly That they should therefore make a common Proctor This is strange Logick Their Presence was thought necessary and Judgments undone for want of it therefore they ought to be present I think ought to have been the Consequent but the Commons pray that in that respect they should make a Proctor I should think now the true Inference ought to have been The Bishops and Clergy ought not to be personally present in Cases of Blood yet because it is fit they should be represented at least in some Cases let them nominate a common Proctor to be in their stead where their Concurrence is necessary This is Sense the other is contradictory 'T is evident by this Petition of the Commons that matter of Blood was to be treated of for there needed no Proctor for any other use since themselves might have been present And I think it very clear by the Year-book in 10 E. 4. that when Issue was once joyned 't was their Duty to absent themselves For that Book is that the Peer questioned may plead not guilty and then the Bishops to depart so that it is plain they were not to vote after Issue joyned in matters of Blood So Hakewell in his Modus Tenend pag. 84. before cited saith That to our days when Question is had of the Attainder of any Peer the Bishops are to depart Now I take the Law to be all one what â—…ue is joyned in a Capital Accusation so as there be any upon which the Court may proceed to Famination of the Cause and to Judgment accordingly As to our purpose in the case of the 〈◊〉 of Danby he pleads the King's Pardon the King's Counsel or the Commons demur The matter then in Issue upon the Demurrer is whether the Pardon is good in Law upon which the Bishops according to 10 E. 4. are to go out because if the Pardon be found invalid then must Sentence of Death be pronounced against the Criminal for I take the Law to be That the pleading a Pardon in Bar upon an Endictment or Impeachment is a Confession that all the matters contain'd in the Endictment or Impeachment are true and he shall never be admitted to plead Not Guilty afterward But this by the way Our Question is about the Commons Petition that they would make a Proctor which being in matter of Blood the Author of the Letter saith was the only time whether this was Error temporis as one saith the Error of that time or an inconsiderate rash Desire of the Commons as another is not necessary to enquire for it doth not appear that any Capital Judgments had been reversed by reason of their Absence so that their desire fails in the ground of it if they meant of Capital ones for the first Judgment against the Spencers was affirmed in 1 Ed. 3. and the Reversal made 15 Ed. 2. was made null so that the Commons it seems were ignorant in that and might be unadvised in the rest as they sometime have been Beside if he consult Sir Edward Coke in his 2 Instit. cap. de Asportatis religiosor pag. 586. he doth well excuse the Commons in shewing that the Bishops were present at the Charge against the Spencers in 1 Ed. 2. so that the Commons might not know how far the Bishops were conusant of the thing and looking only on the out-side were ignorant of the Act in 1 E. 3. for the Discourser saith there were no more No replyes the Grand Questionist not in his Study but the Commons might know of more for we have not all the Rolls What then This at best is but a Surmise and the two Judgments against the two Spencers were enough to make their Allegation true that divers Judgments had been reversed for that cause though it be not to excuse their Ignorance in not knowing that the first Judgment against them was revived by the Statute of 1 Ed. 3. And it seems strange to me that he that had so much
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
Proctor at the beginning of the Tryal as is manifest and agreed by all therefore the Crime charged upon the Clergy could not but be before any Proceedings against any of the Criminals except that preliminary Vote which made them guilty of Blood in that Chronicler's Sense In Conclusion there was no Act to revoke these Pardons but the King it seems caused Execution to be done upon his own Authority and those general Votes in which the Clergy were present so that after all this Attempt the Authority of this MSS is against him But after all this we have one help left saith the Author of the Letter for if this Action in this Parliament would do him any Service the whole Parliament was repealed in I Henry the Fourth and so no Authority to be laid upon it I but replyes the Grand Questionist the Author of the Letter admits that the three Henries Fourth Fifth and Sixth were Usurpers and therefore the Repeal of that Parliament void I acknowledge the Author of the Letter saith so but he is so to be understood as the Law is now taken not as it was then for we see Henry the Fourh in Parliament claimed the Crown as his Right as being Heir to Iohn of Gaunt fourth Son to Edward the Third whereas the Title of Mortimer who was by another Parliament declared next Heir arose by his Marriage with Philippa Daughter and Heir to Lionel Duke of Clarence who was the third Son to Edward the Third but it was never before determined that the Daughter of a third Brother should be preferred in Succession to the Crown to the Son of a Fourth We see Maud the Empress Daughter to Henry the First could not be received Queen though she attempted and sought for it neither ever had we a Queen since the Conquest till that time Nor can I divine how long it might have remained a Question had not that Controversie been determined by the happy Union of both Titles in Henry the Seventh who married the Daughter and Heir of the house of York The next Question will be how far Laws made by an Usurper generally received and accepted by the People upon the resignation of the immediate precedent Possessor shall be esteemed valid I fear if we make such Laws void we must find some new way to make many of ours good till Henry the Second Was not Robert eldest Son to William the First alive till toward the latter end of the Reign of Henry the First who about the eighth Year after he was King deprived him of his Eyes after which he lived a Prisoner twenty six Years William Rufus had no better Title than the Acceptance of the People and his Composition with his Brother Robert who resigned his Title for 3000 Marks per an Henry the First succeeds by Title no better till Robert's miserable Death which happened in the thirty fifth year of his Reign and about a year before his death After him Stephen steps into the Throne help'd by two powerful Friends the Bishop of Winchester the Popes Legate his own Brother and the Bishop of Salisbury his great Friend and this in the Life of Maud Daughter to Henry the First and his own Brother Theobald whose Title though bad was better than Stephen's they being both Grand-children to William the first by Adela his Daughter marryed to the Earl of Blois But for this great favour and their breach of Oath to Maud he promised great Immunities to the Church and amongst other that Clergy-men should not be bound to answer to secular Courts But by our Author's Logick this Concession was void and the Clergy had no reason to complain because the old Law was revived at Clarendon At last to sodder all a Composition was made that Henry Maud's Son should have the Crown after Stephen's death which was performed by her Consent Maud being then alive who having strugled for the Crown as much as she could was at last contented with this Composition which was the only legal Title King Stephen had and no more voluntary in Maud than was that of Richard the Second But at length Maud dyes and Henry the Second and his Son Richard the first enjoyed the Crown in their just Rights After their Death Iohn comes upon the Stage in the Life of Arthur his elder Brother's Son so that here we have another Usurper after whose death and the death of Arthur Henry the Third had a good Title whose Descendents enjoy it to our Time for the Quarrels between York and Lancaster were not about the Line but the Persons insomuch that till Henry the Third the best Title to the Crown was the Acceptance of the People and particular Compositions with those who had the greater Right Come we nearer home to the time of Henry the Seventh who after the Death of his Mother and his Marriage with the Daughter and Heir of Edward the Fourth was rightful King His Eldest Daughter was marryed into Scotland from whom our present King enjoys his Crowns upon an unquestionable Title We will now come to his Son Henry the Eighth he had two Daughters Mary and Elizabeth the first by Katharine his elder Brother Arthur his Relict the second by Anne of Bullein born in the Life of his first repudiated Wife Queen Katharine Mary was by Act of Parliament declared a Bastard as born within unlawful Espousals Elizabeth after the Disgrace of her Mother was served in the same kind yet we see both of them successively enjoyed the Crown by virtue of another Act which entailed it upon them with the approbation of the people whereas otherwise the true Right would have been in Mary Queen of Scots our present Sovereigns great Grand-mother I might pursue this Theme through France in the case of Hugh Capet through Spain in the family of the D. of Medina Celi and at present in Portugal but I will not go out of our own Kingdoms and have said enough to make it manifest that Laws may be made or repealed by such Kings as are in Possession by Composition or Resignation with the acceptance of the People else our unwary Author hath laid a foundation to overthrow or weaken not only most of our Laws but most of the Laws of Europe Over and above all this if the Laws of Henry the fourth fifth and sixth were not good why did not the Nobility made in that time get new Charters of Creation in Edward the fourth's time Nay what became of the whole Hierarchy Many of the Prelates and inferiour Clergy must of necessity be consecrated by those that were no Bishops and consequently their Consecration and Orders by them conferred were void and all our subsequent Clergy who derive their Authority from those who had no legal Right extinguished a thing in my Judgment worth consideration to such as would avoid Laws made by actual Kings though their just Title might be disputed His mentioning Oliver rather deserves pity for his Inadvertence than any other Answer
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-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
but of the better Opinion of such as were the Judges The Records of the Court were not to be denyed to any man others it seems might by understanding men concerned in the Cause The meaning of the Law I take to be that Cases of Right might be tryed here of any Value but criminal Cases were not medled withall I remember not to have read any where that Capitalia placita had that Signification our Author suggests Placita Coronae Placita Parliamentaria and Placita Communia I have met with but Capitalia Placita for Placita Capitalium criminum is new to me However the meaning of that be yet the Manuscript Life of Saint Cuthbert as to the thing it self will help us out He tells you it may be with as much Truth as Brompton that one Hamel the Son of Earl Godwin being imprisoned by the Earl of Northumberland his Friends earnestly interceded with the Earl that he might not loose his Head Here indeed we find a man imprisoned by an Earl Application made to the Earl in his behalf no mention of any Bishop any Tryal or any farther Proceeding in the business but the Tryal and the Bishops Presence at it are both supplyed by our Author who hath proved neither or produced greater Proof than the Authority of a loose Legend and that lame too and yet upon this he triumphs as if the Point were clearly gained when there is nothing of what he would have made good by him Is it not now a thousand Pities that so well sounding Words so well put together should signifie nothing The next Precedent our Author takes into Consideration is that of Nicholas Segrave cited by the Author of the Letter pag. 55. by this Author pag. 76. which he would evade by supposing the Bishops might be comprehended under the Name of Magnates or Counsellors and shews that some of the Bishops were probably then of his Counsel For a clear Answer to these Surmises I shall give you shortly the whole Case as you shall find it at large inter placita Parlam 33 Ed. 1. Riley pag. 266. Nicholas Segrave had Summons by the Sheriff and the Command of the King to answer to such things as should be objected against him and to hear and stand to what the Curia Domini Regis to wit the Parliament consideraret in praemissis Segrave upon this Summons Venit in pleno Parliamento in praesentiâ ipsius Domini Regis Arch. Cantuariensis plurimorum Episcopor Comitum Baronum aliorum de Consilio Regis tunc ibidem existentium Nicholas de Warwick perhaps the King's Atturney accuseth him of many and great Crimes which he offers to prove Segrave confesseth all submits to the King de alto basso Et super hoc Dom. Rex volens habere avisamentum Comitum Baronem Magnatum aliorum de consilio suo injunxit eisdem in Homagio fidelitate ligeantia quibus ei tenentur quod ipsum fideliter consulerent qualis poena pro tali facto sic cognito fueri infligenda The Comites Barones Magnates c. adjudge him worthy of Death After this the King pardons him and orders him to put in seven Sureties and to render himself a Prisoner at the King's Command and to be accountable to the King for the Issues of his Land held in his own or his Wifes Name This in short is the Case of Segrave in which it is very clear that at the Accusation the Bishops were present as of Right they might be but at the Tryal they are omitted Now to suppose them comprehended under a general Name and out of Order who were particularly expressed when their Presence was lawful is both unusual and unreasonable unusual because it is against the Rule of Law to comprehend the greater after the Nomination of the lesser and so to take the Bishops under the name of great Men who are constantly first named and were so here at the Beginning Secondly 't is unreasonable to make a different Construction of the same Words in different Cases or Laws now we know that in the Statute de Asportatis Religiosorum the Words are Comites Barones Magnates where we know the Bishops were not comprehended under the Name Magnates nor ought to be here and to suppose the contrary is against the Current of all Acts of Parliament and Records By the Magnates and alii de Consilio were meant the Judges and other Counsellors at Law whose Advice the King required as was very just and usual in those times 'T is likewise observable that the Word Consilio is written with an s which shews those Counsellors he advised with were not necessarily Members of Parliament for then the Word would have been written with a c Concilio His remarkable Precedent of the D'Spencers will stand him in as little stead in the Reign of Edward the Second they were both condemned and the Exilium Hugonis D'Spencer is to be seen in the old Natura brevium Those Judgments were afterward reversed at York in 15 Edward the Second but in 1 Edward the Third the first Judgments were affirmed and so they were look'd upon as condemned Persons which continued though themselves were dead for above seventy years til by the prevailing Party in 21 Richard the Second that Act was again called in question as void in regard the Bishops were absent and the Bishops desired to make a Proctor by the Commons which they accordingly did but at last through their exorbitant Proceedings that whole Parliament was repealed in 1 Henry the Fourth To this I have largely spoken before to which I shall refer the Reader with this farther Advertisement that in troublesome times things are not always carryed as they ought to be wherefore we are not always to look at what was but what ought to have been done neither are we to be governed by seeming Precedents such as sometimes as in the Case of Ship-money may be produced against Law I have before made it manifest that the Canons of the Church long before Lanfrank's time forbad Clergy-men to meddle either in Blood or secular Employments neither is it reasonable to believe the Laws of this Land were different from the general Rule incumbent upon all Clergy-men to observe especially when we see the Immunities granted them by King Stephen were so early recalled by Henry the Second and the Constitutions then made at Clarendon look'd upon as the ancient Customs of the Nation insomuch that the Discourser had very good reason to say 't was the common Usage which is the common Law of England Pag. 88. Our Author comes to the Examination of those Records urged against him and his Exceptions in general are First That they are Negative the Bishops were not present at Tryals of Blood therefore they had no Right to be present Secondly They were sometimes absent when they were not prohibited therefore their Absence was voluntary Thirdly they are sometimes comprehended under the
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
must now meet under such Qualifications and no other as were by him allowed them which by all Men is agreed to be as Tenants to the King in Capite for their Possessions which they held in the Nature and by the Service of Baronies This being so I see not what use he can make of the Distinction made in Parliament between the several Estates of the Clergy and Laity The Question is not Whether the Clergy and Laity are distinct Estates which no Man ever denied but whether the Bishops distinct from the other Clergy in Convocation be an entire third Estate in the Lord's House that they are so no Man hath yet proved His Authority out of Eadmerus speaking of what was done in Parliament in 3 Hen. 1. saith it was done Utriusque ordinis concordi Curâ sollicitudine by the unanimous care and trouble of both Orders Ranks or Degrees Why must Ordo signify an Estate rather than a Degree or Rank Now I hope Men of different Degrees may sit together without being different Estates Dukes Earls Marquesses Viscounts Barons now sit together yet may make but one Estate But let Ordo signify that Estate as he would have it and as he thinks it doth why must it signify an intire Estate or what doth it more import than that it was done by the Joint-Consent of the Lords and Commons who might then sit together and were not at any time left out as is sufficiently proved by Mr. Petyt Matth. Paris his Clerus and Populus and the other Cases by him there mentioned comprehended the whole Body of the Clergy and Laity met together in Parliament including as well the Inferiour Clergy as the Superiour sitting in their due Ranks All the rest of his Precedents made use of by him seem rather to enforce that the King is not a third Estate than that the Bishops are more than a part of a third Estate among the Lords But this Point whether the King be one Estate or not in Parliament and how an Head can be considered as no part of the Body I leave to others to dispute but must rest in this undeniable Conclusion that there can be no legal co-ordinate Power however the case stands for as in the Body natural nothing can be done without the concurrence of the Head So in the Body Politick nothing can justly be done without the concurrence of the King in matters of publick concern in Parliament except their Proceedings deviate from the ordinary Rules of the known Laws of England I have put off the Examination of the first part of his fourth Chapter that I might conclude this Discourse with an Answer to the Matters he there alledgeth He finds himself pressed with that strong Argument drawn as well from Magna Charta as from divers Precedents that the Bishops were not Peers to Noble-Men but were themselves tried by a common Jury in Matters Capital and therefore were not of Condition to try Noble-Men who had in themselves Inheritable Noble Blood To this Argument he opposes two things First That the matter of Fact cannot be made out that a Bishop hath always been tried by Commoners Secondly That if it could it doth not overthrow their Peerage in Parliament This second Assertion I will easily grant if by Peerage in Parliament be no more meant than a Community of Appellation by reason of their sitting amongst the Lords and their Precedence in place with some other Priviledges as to Amerciaments days of Grace and the like But certainly if it can be cleared that they have of right been tried by common Juries and that as well before as after the time of Henry the 8th Nay that they have not look'd upon the Lords in Parliament as their Peers and proper Judges I may then rationally conclude that they are not Peers in Parliament to that end to try or be tried by Noble-Men there It is plain by all our Law-books that out of Parliament no such Priviledg belongs to them For first out of Parliament over and above the express Authority of Stanford a Judg in Queen Mary's time Sir Edward Coke a great Judg in our time Mr. Selden a great Lawyer and Antiquary Mr. Cambden an Herauld great Scholar and Historian all agree that Bishops shall not be tried by Noble-Men and that manner of Triall hath never been put in use as to them Now if this be confessed to be the Law out of Parliament let the Author give me one Example that a Man of right ought for a like Offence to be tried by one sort of Jury out of Parliament and another in it The Case of Appeals under which Covert he endeavours to hide himself I shall discuss anon The Priviledg they claimed as Clerks was common to all other Clerks as well as to them but there are many Cases of Clerks tried in Secular Courts and the Trial allowed to be good to which purpose see Cook 's second Instit. 638 but never any Exception of theirs allowed of as if those Trials were illegal As to the Case of Bishops and their Trials by common Juries Mr. Selden is very clear and gives many Examples both before and after Hen. 8th's time which are not so to be slighted as this Author seems to do That of John de Isle the Bishop of Ely's Brother is full to the point where the Bishop was arraigned and upon Question how he would be tried stood upon his Priviledg as Clerk that he was a Member of the Pope's and therefore ought to be brought to his Answer before his Ordinary the Arch-bishop of Canterbury who was there ready to demand him affirming that he ought not to answer before a Lay-Judg this Plea was rejected and a day given to the Bishop and a Jury impannelled sworn and tried which shews he had his Challenge The Jury bring in their Verdict and find that the Bishop was not guilty of the Fellony laid to the Charge of John de Isle his Brother and his Companions but they find that after the Felony committed the said Bishop knowing that these Persons had committed Felony did receive and harbour them upon which a Writ was directed to enquire what Goods and Chattels he had and his Person upon request of the Arch-bishop delivered him to be kept as it behoved him to do Now let any Man judg whether here were not in every respect a legal proceeding The matter of Fact tried by the Verdict of twelve Men Inquisition made concerning his Goods Lands and Chattels himself the Crime being only receiving of Felons delivered to the Arch-bishop either to make his Purgation or to be kept in due manner Was here now any Willingness in the Court to break the Law as our Author saith pag. 146. or not rather a perfect Observation of it Is not this perfectly agreeable to what Dr. Ridley in his view of the Civil and Ecclesiastical Laws saith pag. 86. If a Clerk be first arrested by a Spiritual Judg and found
other Cases Now this very Question seems to me an over-ruling ours for if it were then a Question whether they might be of a Committee in Cases of Blood where the Judges were often joyned with the Lords it can be no doubt but that they ought not to be admitted to give their Votes as Judges in the like Cases in their Persons REFLECTIONS UPON Antidotum Britannicum AND Mr. Hunt's late Book and Post-script As far as concerns the Controversy between Doctor Brady and the Authorof Jani Anglorum facies nova and of Jus Anglorum ab Antiquo London Printed Anno 1682. CHAP. I. The true and essential Difference between the General Council of the Kingdom and the Curia Regis maintained against Dr. Brady Mr. W. and Mr. Hunt with a short Account of some Reasons why Mr. Hunt might have spared his Censures upon them who apply themselves to the Study of Antiquities SInce Dr. Brady received a Reply two of my Brethren of the Gown Mr. W. and Mr. Hunt both of Greys-Inn have appeared in print in behalf of the King's Tenants in Capite and will needs have it that these ingrost the Right of coming to Parliament as one calls it or the Magnum Concilium as the other till 49 of Hen. 3. One professes that he never read what has been wrote upon this Subject either by Mr. Petyt or me The other slights it all as a Dispute not worth the Cost and Pains spent about it and grants many of Dr. Brady's Hypotheses but denies his Consequences and so allows him to be a good Antiquary but an ill Logician That there was a Curia Regis or Common Council of the Tenants in Chief such especially as held of the King by Knights Service distinct from the Great Council of the Nation or Parliament In which Curia the King's Tenants granted to the King Auxilia Aids and did act many things in relation to their Tenures Both agree with me directly against Dr. Brady who will have it that all the King's Tenants by Knights Service never met in any Council or Court but thereby it became the General Council of the Nation or Parliament In which since he is opposed by these two learned Authors agreeing with me they have given so much Credit to my Notion that they have prevented that further trouble which I might have given the inquisitive World upon that point If I can free my self from the force of these Gentlemens Arguments or Objections upon those things wherein I differ from them I think I need not fear the empty Thunder of Men of other Professions but may look upon my Notions as sufficiently established Both Mr. W. and Mr. Hunt are Men of much longer standing and greater natural and acquired Parts then I can pretend to yet if I have the good fortune to fall into the Paths of ancient Truth no modern Authorities ought to beat me out of them They both will have it that the Tenants in Chief were the only Members of the Curia Regis which was held for Matters within the King 's ordinary Power and of the Magnum Concilium or Parliament where the extraordinary Power was exercised Against them both before I examine their supposed grounds from Authority this obvious Objection in reason may be urged If all the Tenants in Capite by Knights Service were obliged to attend in the Curiâ either by virtue of their Tenure as one takes it or of general Summons as the other and the consent of none but such Tenants were requisite for passing of Laws in Parliament what reason can be assigned why Laws might not have been made in the Curia and so that have become a Parliament when ever the King pleased to declare it so Can a more particular Summons and notice of Arduous Affairs which is Mr. Hunt's Notion lay a greater Obligation upon them to be present who however were bound to come And if they were bound to come can Absence be reasonably pleaded to free any from the Obligation of what was then agreed on Indeed Dr. Brady who will have it that every full Confluence of the Tenants in Chief by Knights Service to Counsel was a General Council of the Nation supposes that even before King John's Charter and while he thinks that they were to come to Parliament ex More without Summons if but a few appeared it was no General Council which is an absurd Supposal unless there was before that a Law in being that they should not act without a certain number as supposing that forty were to make a full House as now 't is said to be with the Commons for otherwise they who did appear did according to the general Rule of making Laws bind them who were absent through their own default But if we consider how contrary it was to the Usage of those Times to make Laws or insert Clauses or Words idle or unnecessary we shall not easily believe that they would according to Mr. Hunt's Supposal have made Provision for the particular summoning of those for arduous Affairs who were obliged to attend at the Council without such Summons Indeed I am aware that Dr. Brady hath charged me with putting such a sense upon King John's Charter as would imply a needless Provision The Doctor tells us that by King John's Charter the Cause of Summons was to be exprest and from thence he would infer that it was a Great Council there intended for saith he such Provision were needless if there had been but one Cause for which they were to be summoned which he urges as the Consequence of my interpreting that Summons there provided for to have been only for raising such Aids in the Curia as could be imposed upon the King 's immediate Tenants and none else Now admit that this had been to a Parliament and had taken in all manner of Charges to be laid upon the Subject if the raising of Taxes were the only work of a Parliament the providing that they should have notice when a Tax had been required would have been as impertinent and if the Parliament had any other Power this Provision had been as defective as he supposes 't was according to my rendring superfluous For that Summons mentioned in King John's Charter is restrained and limited to the granting of Aids but there is not one word or syllable of making or enacting Laws which is the main business of Parliaments and therefore this must be intended of some Inferiour Counsel and not of the General Council of the Kingdom But if the Charter be taken to be meant only of raising such Aids as lay upon none but the King's Tenants if those Aids branch themselves into Escuage and Tallage here were two Causes of Summons as the one or the other was required or if only such Aid as Escuage was within the Provision still the Cause or the Occasion of raising the Escuage might be different and therefore the cause of Summons more than
of settled Prerogative were not taken away from the King he not being named in the Statute By that Statute indeed if a Tenant in Capite aliened with Licence the Alience became Tenant in Capite for the Statute divided the Signiory But how it could be at the Common Law in any other Case than that of Copartners who are but as one Heir and plac'd in the same Relation to the Lord I cannot imagine I find in the Statute of Ireland this of Copartners is mentioned as the Law of England In Regno nostro Angliae talis est Lex Consuetudo quod siquis tenuerit de nobis in Capite habuerit Filias heredes ipso patre defuncto antecessores nostri habuerunt semper nos habuimus cepimus homagium de omnibus hujusmodi Filiabus singulae earum tenerent de nobis in Capite in hoc Casu Which shews that the Case of Copartners being a single Instance of the continuance of the same immediate Service notwithstanding the division of the Fee was an Exception out of a general Rule But I dare say no body that understands any thing of the Feudal Law as it has been received in this or other Nations will be of Mr. Hunt's Opinion in this particular 3dly Mr. H. would have done well to have answered the Objections against the supposed Conquest before he concluded for it and I shall take it for granted 't is a Question heartily begg'd 'till I find an Answer to these Arguments in Ius Anglorum ab antiquo 1. That the Histories of those Times prove undeniably that William the first came in upon Terms which he swore to at his Coronation and solemnly confirmed afterwards This indeed was a Conquest in the Language of those times as 't was distinguish'd from an Hereditary Right but no otherwise Thus in King Iohn's time a Man pleads that his Father had such a thing de Conquestâ—… suo viz. by his own Purchase or Acquisition 2. That Dooms-day-Book it self demonstrates that Men enjoyed their Lands under their old Titles And those Laws of St. Edw. which the Histories assure us were confirmed by Compact with William the first without particular Confirmation of their Estates 3. That we have later Records of the allowance of Titles derived from before the Norman Acquisition nay even of the whole Palatinate of Chester the Title to which was laid only in Descent even after King William's Confirmation 4. That ancient Historians and Dooms-day-Book confirm the Opinion of that Judg in Edw. III. time who informs us that William the first disseized only them that were in Arms against him and forfeited by opposing that Title which the Nation received Till Mr. Hunt has answered these Arguments amongst others in Ius Anglorum ab antiquo I hope he will not be angry that some are so critical that they will not call the first William Conqueror especially since Conquestor and Conquestus cannot now be reduced to their old peaceable Signification And therefore are by no means to be admitted unless we take the sense of the Judicious Lord Clarendon who rebukes Mr. Hobbs for insisting upon William the first his Title by Conquest as being what he himself renounced and abdicated if he ever had it If Mr. Hobbs says that unhappy Great Man Had taken the pains and known where to have been informed of the Proceedings and Transactions of William the Conqueror he would have found Cause to believe that that great King did ever dexterously endeavour from the time that he was assured that his Possession would not be disturbed to divest himself of the Title of a Conqueror and made his legal Claim to what he had got by the Will of Edward the Confessor whose Name was precious to the Nation and who was known to have a great Friendship for that Prince who had now recovered what had been his And he knew so well the ill Consequence which must attend the very imagination that the Nation had lost its Propriety that he made haste to grant them an Assurance that they should still enjoy all the Benefits and Priviledges which were due to them by their own Laws and Customs By which they should be still governed as they were during that King's whole Reign who had enough of the unquestionable Demesnes and Lands belonging to the Crown of which he was then possest without a Rival and belonging to those Great Men who had perish'd with their Posterity in the Battel with Harold to distribute to those who had born such Shares and run such Hazards in his prosperous Adventure And those Laws and Customs which were before the Conquest are the same which the Nation and Kingdom have been since governed by to this day with the Addition of those Statutes and Acts of Parliament which are the Laws of the Successive Kings with which they have gratified their Subjects in providing such new Security for them and Advantages to the Publique as upon the Experience and Observation of the Ages and Times when they were made contributed to the Honour and Glory of the King as well as Happiness of the People Many of which are but the Copies and Transcripts of ancient Land-marks making the Characters more plain and legible of what had been practised and understood in the preceding Ages and the Observations thereof are of the same Profit and Convenience to the King and People And upon Mr. Hobbs his Supposition that William the first at his Reception had dispens'd with the Subjection of the Ecclesiasticks by the Oath he took not to infringe the Liberty of the Church The Lord Clarendon has to the same purpose with the former or rather as evidence that there was no colour of a Conquest these words They who know any thing of that time know that the Oath he took was the same and without any Alteration that all the former Kings since the Crown had rested on a single Head had taken which was at his Coronation after the Bishops and the Barons had taken their Oath to be his true and faithful Subjects The Arch-bishop who crowned him presented that Oath to him which he was to take himself which he willingly did to defend the holy Church of God and the Rectors of the same to govern the universal People subject to him justly to establish equal Laws and to see them justly executed Nor was he more wary in any thing than as hath been said before that the People might imagine that he pretended any other Title to the Government than by the Confessor tho it is true that he did by degrees introduce many of the Norman Customs which were found very useful or convenient and agreeable enough if not the same with what had been formerly practised And the common Reproach of the Laws being from time to time put into French carries no weight with it For there was before that time so rude a Collection of the Laws and in Languages so Forriegn to
demand for I do very well know what judgments the Commons did then not intend which were all Judgments in Capital Cases for it is most clear by all Records of Parliament and all the vestigia that remain with us of the usage and proceedings of antient Parliaments that there is not the least colour for so much as a doubt or a suspition that the Prelates or Lords Spiritual could have any part in those Judgments And we know on the other side what judgments they had their shares in which were all Judgments in such Civil Causes as came into the Parliament and in Criminal Causes that were not Capital and the Commons then could intend none but these which was enough to satisfie me that this Petition of theirs at that time was no wayes contrary or repugnant to what I maintained And by the way methinks it is worth observation the reason they give of their desire that the Bishops would make a Proctor not so much for that that their presence there was of so absolute necessity as that what was done without them was in it self null and void but to put an end to all controversies which shews the Prelates had expressed some dissatisfaction and had gotten some things which had been done in their absence to be undone and Repealed which considering their power at that time and how all the Laity was in awe of them would have a great effect upon mens minds and make them do what else they would not have done and perhaps strain a point a little to satisfie them And still it shews that notwithstanding their absence they were good and valid till the same power that had made them did Repeal them And to shew what an ascendant the Prelates had over King and Parliament and the whole Kingdom at that time see what they did but the year before 20 R. 2. They declared unto the King in open Parliament That they were sworn to the Pope and See of Rome and if any thing were in Parliament attempted in restraint of the same they would in no wise assent thereunto but would utterly withstand the same and can we then wonder if the Commons were not very loth to displease them and willing to comply with them much rather than have a controversie with them and perhaps be fain at last to undo what they had done His fourth Postulatum is upon the Protestation of Viscount Beaumont in the name of the Lords Spiritual and Temporal in the Case of William de Pole Duke of Suffolk which hath been touched upon before wherein he now saith I have left out the most material words but what they are he expresseth not nor can I imagine what he means As I have already said I have been very particular in setting down every circumstance of the whole proceeding acknowledged the actings of the Prelates in it thoroughout as far forth as the Temporal Lords and then I say how upon the Kings giving Judgment upon the Duke that Viscount in the name of the Lords Spiritual and Temporal made that Protestation That it should not be nor turn in prejudice nor derogation of them their heirs ne of their Successors in time to come I think this was sufficient to shew that I did acknowledg all that could be pretended to for the Bishops Judicature in that business and what this Assertor would have more and wherein I have failed I can not imagine only I see he is a quick-sighted Gentleman and can see further into a Milstone than another man and spy a fault which another cannot see He hath a fifth Postulatum to whichI can say nothing for I understand not what he would be at he speaks of my accurateness in making a distinction between the Matter andForm of a Law and then saith He observes three things though he expresseth but two which he saith he shall have occasion to make use of hereafter when he comes to speak of the particular Cases and I must refer my Answer to what I shall there find when I believe I shall make it appear that he makes no great use of them nor of any other Argument that he brings And now I come to the particular Cases the first is 4 E. 3. of Roger Mortimer Earl of March being then condemned for Treason Here our Asserter saith That by 28 E 3. upon his Cousin Roger of Wigmore's petitioning to have this Judgment and Attainder reversed I acknowledg it to be an Attainder If I say truth say nothing to the purpose This is gentile language and which discovers my Gentlemans ignorance as well as his rudeness his ignorance in conceiving an Attainder to be only by a Law by an Act of Parliament in which Bishops may be present and if they were not so but did withdraw it was their own voluntary act and no diminution to their Rights I have already upon his second Postulatum handled this point so fully and made I think both his errour and the truth so clear as I need not say any thing more to it here Then it is a pretty Argument he brings against my saying That the Record being Les queur Counts Barons Piers les Articles per eur eramine rebindrent c. Which Earls Barons and Peers having examined the Articles returned c. It must be inferred that the Bishops cannot be comprehended under the word Peers since the Barons are named first To this his Answer is Well but I find the contrary Peers many times put before Barons particularly in Mr. Selden's Baronage p. 12. then he cites a Record of the Judgment against John Mautravers where it is said For which the said Peers of the Land and Judges of Parliament adjudge and award c. Doth this at all contradict my quotation of the Record in Roger of Mortimers Case but that it is as I say That the general word Peers is there put after the Barons and being so cannot comprehend Bishops because in some other Records that word is put before He talks of drawing arguments illogically I am sure this is so I would put him a Case he brings his Action of Slander against one for that at such a time in such a place he had spoken ill of him and said he was a lying Knave and other words that will bear an Action and proves it by witness That man proves by other Witnesses That at another time and in another place he had spoken very well of him and said He was a fine Gentleman I ask now if he would be satisfied with this and not stand upon it that he had proved his Plaint and expects a Verdict and Judgment upon it So may I say that my Precedent stands good and proves what I alledge it for and what he saith is not to the purpose But I will go further and make it appear that even his Precedents that he alledges make all for me and against himself and though he charges me with not being so good as my word saying That I
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
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
saying is neither in the Judgement it self nor any thing leading to it So he comes to the Arch-bishop Becket's Case where he notably spends his mouth but like an ill Hound all upon false Hunting and indeed runs riot so far as he is not to be lashed in He fills several leaves of his Book with Encomium's of the Popish Clergy because some of them sometimes did what it was their duty to do which doth not excuse them in the general current of their proceedings commonly to stand for the authority of the Pope and the See of Rome against the Regal power and the authority of Parliaments as they did 20 R. 2. saying They were sworn to the Pope and to that See and they would oppose whatever the King and the Temporal Lords should do En restriaion del Poair Apostoliqué ou derogagation de la libertoe de Saina Eglise In restraint of the Power Apostolick or derogation of the Liberty of Holy Church So he takes much pains to assert the Kings natural right to command his Subjects to serve him upon any emergency and so to make Clergy-men Justitiaries if he see cause for it Which then gives them power of Judicature and I do acknowledge it but it is to be understood of Judicature in such Cases as the Law of the Land allows we know they have been some of them Lord Chancellours Lord Treasurers Lord Privy Seal but can he shew me that any of them judged in Cases of Blood For this Case of Beckett's is certainly misrepresented in Fitz-Stephens manuscript We know there have been heretofore in many Counties Justices of Assize which have been Clergy-men joyned with others in Commission who were not Clergy-men to take Assizes in the County And the Act of Parliament 27 E. 1. c. 3. coming to give power to those Justices of Assize to deliver the Gaols and so to be made Justices of Gaol-delivery and try Felons and Murtherers it provides that if one of them be a Clerk then one of the most discreet Knights of the Shire shall be associated to him that is a Lay-man and be empowered by the Knights Writ to deliver the Gaols of the Shires and chasten and punish whom they shall find to be guilty And this Statute is confirmed 2 E. 3. c. 2. which makes it manifest what the intendment of the Law is in that particular that Clerks must not meddle to judge in Cases of Blood and must hold good even for Bishops who are all of them Clerks As for this Case of Beckets which only stands upon the credit of a Manuscript said to be made by Fitz-Stephens a Monk whom he characterizes for a sober and grave Historian and more solito out of the sweetness of his nature gives me a lash saying It is usual with me to let fall expressions to vilifie Testimonies and Precedents when they make against me and this because I stile it a Blind Manuscript and suspect the Author as partial having been a creature of Beckets and consequently no friend to the King And therefore I give rather credit to the unanimous consent of the Historians of those times who do not relate the passages of that Tryal to be as he makes them than I do to him and his Manuscript I call it a Blind Manuscript because it sees not the light lyes obscure in some bodies Closet Mr. Selden doth not tell where and I dare say our Asserter never saw it though he terms the Author a grave Historian His tale is how at that great Council at Northampton Archiepiscopus laesae Majestatis Coronae Regiae arguitur quia est a Rege citatus pro causa Iohannis neque venerat neque idonee se excusasset c. The Arch-bishop is questioned for Treason against the Crown of the King because he was summoned by the King in the Cause of John that is one John the Marshal who complained that the Arch-bishop had done him injustice in his Court and he neither came nor had sifficiently excused himself upon sickness or any other just reason which might necessarily hinder him whereupon he was condemned to forfeit his personal estate and the Bishops and Barons not agreeing who should pronounce the sentence they putting it off from one to another at last the King commanded the Bishop of Winchester to do it This is his story and one may think it a strange piece of Treason one not to come immediately upon a Summons to attend the King especially if it be true what all the Historians that write of those times have related of this business Gervasius Dorobernensis is an Author as Mr. Selden observes who lived in that age and one of whom Mr. Selden and all Antiquaries we are sure have a good opinion and though our Asserter is confident enough to affirm they all have so of Fitz-Stephen it is of what I do not find that much hath been said by them to shew that nor do I think that any of our Antiquaries but Mr. Selden doth so much as mention him And from Gervasius Dorobernensis we have this relation Rex praecepit praesules Proceres regni apud Northamptoniam una cum ipso Archiepiscopo convenire c. The King commanded the Prelates and Nobles of the Kingdome together with the Arch-bishop himself to meet at Northampton where the Arch-bishop was accused of many things first that he had not fully done justice to one John that had a suit before him then that upon this occasion being called into the Kings presence he neglected to come To this the Arch-bishop made answer That John had all the justice done him that was due to him that he had illegally defamed his Court that he would not swear upon the Evangelists as the custome is but upon an old Song-book which he brought with him But that being upon this summoned he came not into the Kings presence was not upon any contempt but that he was hindred by a great sickness and that he had excused himself by two competent witnesses whom he had sent for that purpose yet this served not his turn but Curiali Iudicio Episcoporum consensu condemnatus est He was condemned by the Iudgement of the Court the Bishops consenting to it that all his personal estate should be at the Kings disposing This now is delivered unto us by an unquestionable known Author who lived in that time Fitz-Stephen and he agree in the matter of the Accusation and agree in the Judgement but Fitz-Stephen lays it to be Crimen laesae Majestatis Coronae Regiae High-Treason which must be for not coming to the King when he was summoned Gervasius saith that he sent his excuse by two witnesses who testified that he was then very sick and not able to come which we all know to be a Lawful Essoine De malo lecti which cannot be disallowed but must excuse nay justifie any bodies absence Now can any body that is master of common sense believe Fitz-Stephens relation who will have this to be
with an evil Eye with much other such Language throughout his Book which the Reader may observe if he pleases He ought with more Reason to have considered the Age the Quality the Place this Octavo Gentleman beld at Court the Service he had done his Country both at home and abroad rather than to have loaden the Ashes of a dead Noble-Man with Revilings railing Language and Reproaches who was known to be a Person of so great Worth and Experience The Reader will pardon this Warmth in me when I hear a Person now at rest so slighted who had he been alive this little Gown-man durst not have approached without marks of Reverence and Submission But let us allow him to make up the shortness of his Reasoning by the length of his Railing Thirdly His Extravagancies are so numerous that nigh every Leaf hath somewhat or other of that Nature Conjectures and Surmises without any manner of Proof must pass for Demonstrations One while the Bishops are Spiritual Barons a Title I never remember given to them nay not so much as Lords Spiritual till the time of Rich. II. Another time Feudal Barons and that there was no other than Feudal Nobility Sometimes they are Barones Majores yet not enobled in Blood nor their Honour conferred upon them by any actual Ceremony or otherwise esteemed than Barons by Tenure and that William the Conqueror intended that as an Honour which themselves and all other Historians complain of as a Burthen That the Bishops in Parliament are a full third Estate and yet we know Acts are good when they are either excluded absent or oppose the passing them and yet they never represented any but themselves Sometime he is troubled that the Nomination of the Bishops is in the King These things cursorily observed by me makes his whole Book appear an indigested Lump fit to be lick'd over if so it may be brought into any form 'T is not unlike a Lottery where after a hundred Blanks you may chance get a Prize But I shall leave a further Examination of his crude Notions to another Hand who may be more concerned to detect his Errors than I am However I cannot omit the taking notice of his pompous Title â—…tis indeed a Titulus Sesquipetulcus Their Right unalterable in that place in the Government they now enjoy which Fancy is confirmed by a Consequence of his own making Page 122 That the Bishops cannot be detruded from that Place they bear in the Constitution of the Government for that no Government can legally or by any lawful Power be changed but must remain for ever once established and it cannot be less then Treason of State to attempt a Change No Authority in the World is competent to make any Alteration How false this Position is he will find if he consult the frequent Change of Governments since the Creation in the Jewish Grecian Roman nay in our Britannick State with many others in all parts of the World Neither can I imagine this Maxime can serve him to any other end than to arraign those Parliaments who have made Laws without them or that in 17 Car. 1. Anno 1642 which by Act took away their Seats in that House And lastly to accuse those as Traitours to the State if any hereafter shall attempt it I am confident no Parliament will endeavour to take from them their just Right but to say they cannot and that the Government cannot then subsist is as absurd as the other is unlikely I must further observe that this Author doth upon all Occasions blame those Persons who deny the Prelates that judicial Power in Capital Cases he would place in them as Enemies to the Government whereas he ought to know that Exceptio probat regulam in non exceptis He that gives them Authority in all things that are clear and denies it them in dubious doth more asserttheir Right then he that by giving it them in all things doth rather perplex it I have now done with this unwary Writer who whilst he seems so zealous for the Government doth himself in the main part of it unhinge and destroy it Doth he not Pag. 144. endeavour to destroy the most ancient Court of Chancery which he calls both a Reproach and Grievance to the Nation Doth he not spend some Leaves to shew how this may be effected by setting up as many Chancellours as there shall be Judges in Courts which must in the end be either wholly useless or run us upon an Arbitrary way of proceeding and put an end to all our ancient way of Trials by Iuries and leave all in the Breast of the Iudg to determine Let him not now think to take off the Envy of this by a fawning commendation of our present Lord Chancellour I am so well acquainted with the great Abilities and large Endowments of that Noble Person that I doubt not but his just Decrees in that Court will remain as perpetual Testimonies of his Conscientious Iustice and Equitable Distribution of it in that place in which he is now settled Nor can I believe he will be pleased with any tho never so due Commendations to the Disparagement of his worthy Predecessors or such as hereafter may succeed him in the most Honourable Station in which he now is worthily placed DId the Author of this Treatise believe that the Lord Bishops voting as Judges in Parliament in Cases of Life and Member could any way conduce either to their Honour or Greatness or the Good of the Church and Nation he would never have entred the List in this Quarrel being himself wholly conformable and in his Judgment fully approving the Polity of the Church of England as the best reformed of any other he knows having cleared herself from the Superstitious Formalities of the Church of Rome on the one hand and on the other not requiring from her Children under Terms of Communion any thing in which she may not lawfully as he thinks be obeyed But being fully convinced that their asserting this Right in themselves will bring forth no other Fruit except Envy to their Persons and perhaps sometime or other through the unequal Affections of a head-strong People Prejudice to their Functions I have been the more easily induced to make known my Thoughts herein I observe there have already been made publick six elaborate Treatises upon this Subject four asserting a Right in them to vote in Parliament in matters of Blood and two against it But because the last and most learned Tractate which goes under the name of the Grand Question c. is look'd upon and indeed is the most material I shall apply my self chiefly to the Examination of his Arguments and I hope discover the Errors Fallacies or Inconsequences of them He tells us at first that 't is granted on both sides that the Bishops sit in Parliament by virtue of their Baronies This I must take Liberty to question as doubtful still premising that Truth doth not lye in
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.
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
not that the thing was true or that the Author of the Letter gave him any cause to take up that Fancy Their Affectation of Omnipotency was not to be freed from that part of the Law of the Land which was agreeable with the Laws of the Church which they were content to submit to but their Desire was to be freed from those they thought were against them to wit to do Service to the King for their Lands to answer to his Justices and Ministers to be subject to the secular Power for any crimes they should commit These were the things they stormed at and were the Ecclesiastical Bondage and the wicked Constitutions Matt. Paris and other Historians of his Time so much exclaimed against because they would have had all their Affairs transacted in their own Courts so that our Author need not have spent ten Pages to prove what no body affirms Much of the Contests between the King and Clergy arose from the Charter granted by K. Stephen Anno 1136. That all Persons and Causes ecclesiastical should appertain only to ecclesiastical Judges which Charter whatever stir they made about it according to our Author's Logick was void for Maud the Empress Daughter to Henry the First third Son to William the First and so right Heir to the Crown was then alive to whom the Bishops and People had sworn Obedience and therefore King Stephen was as much an Usurper as Hen. the Fourth This Charter was the Latis offendiculi the stumbling Stone they could not escape and the meer restoring now at Clarendon the ancient Laws and Customs confirmed to the People by Hen. 1. was what gave them the greatest Disturbance not that they affected any Omnipotency of Judicature at least in cases of Blood insomuch that our Author had no reason to pin a Sense upon the Words of the Author of the Letter to which he had no Inducement from any Words of that Author Having done with the Occasion we come now to his second Enforcement of his Opinion viz. the plain meaning of the Words First he quarrels with the copy the Author of the Letter follows taken out of Matt. Paris and Wendover who notwithstanding in Mr. Selden's Opinion have best preserved the meaning of this Constitution Seld. tit hon part 2. pa. 703. 704. Though I do not grant his Vatican copy following as he saith Gerv. Doroberniensis is better yet for once I am content to follow his copy and admit the Words in Judicio to be inserted which are left out by Matt. Paris yet I think necessarily implyed but shall never yield to his unwarrantable construction of them which in conclusion amounts to this That the Bishops were bound to be in the Kings Courts in all Judgments till it came to Sentence of loss of Life and Member and then they might go out in obedience to the Canons of the Church if they pleased to which they pretended themselves bound in Conscience to give Obedience and that for this Reason the Pope marked this Constitution with a hoc tolerandum the others with hoc improbandum I confess I think the Interpretation of these Words contrary to their natural Sense and contrary to the Opinion and Practise of former times who have always understood them to import that the Clergy ought to be present in all Tryals in Parliament except in Tryals of Blood But before I proceed to make good the true Sense and Translation of these words it will be necessary to explain the Signification of some of them First Quousque usque quo dummodo praeterquam are often times indifferently taken as signifying the same thing and are limiting restraining Particles and used as Exceptions to something which went before 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 till what time till when so far forth except when or the like Secondly Iudicium signifies properly a Tryal at Law a Case a Suit or Process and is not taken for a definitive Sentence except when it is delivered as the Opinion of the Court resulting upon a precedent Tryal had before others in which he that pronounces Sentence hath not or very rarely more than a directive Power and do's not give his own single Opinion but the Sense of others in matters debated Actiones quarum causa in jus quisque vocatur quandoque dicuntur judicia Ut in L. in bon fid 13. de Usuris L. 4. C. tit 32. L. Mora S. in bo fid Theophilus refert in S. 1. de Act. quas Athenienses 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicebant Budaeus notat in communi Lingua Graeca per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 generali nomine dicebant litem actionem paenam mulctam judicium to wit the whole Proceedings Iudicium est legitima disceptatio duorum aut plurium coram judice Cale Dict. Calv. Lex juridcirca finem to the same purpose By these Authorities and many more 't is plain that Judicium Judgment comprehends the whole Proceedings in any Cause and not the Sentence only Pervenio signifies to arrive at or the Accomplishment or Bounds of any thing as pervenire ad metam is to arrive at or come to the Goal Ovid speaking of the Return made by the Eccho hath these Words Verba refert aures non pervenientia nostras Words that arrived not at our Ears they came not to the Terms or Bounds designed So pervenior in the Passive Voice must signifie to be arrived at or accomplished in That Judicium in our Case must be taken in the Sense I have given I shall evince from the general Opinion of Lawyers I shall begin with Magna Charta The Words there are judicium Parium and understood of a Tryal by his Equals The Question which is asked the Prisoners after their Plea is not who shall give Sentence upon thee but how wilt thou be tryed and they that give Sentence are not those that try them in criminal Cases nay their appealing to a Tryal by them is accounted a standing Mute The next Authority shall be from the Council at Westminster in the 22. year of Hen. 2. no more than twelve years after the Assize of Clarendon and as Hoveden saith taken out of the 11. of Toledo and summoned as Gervas of Canterbury saith In hoc consilio ad emendationem Ecclesiae Anglicanae ex assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula Amongst which this is one His qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut per se Membrorum truncationes faciant aut inferendas judicent That such as were in holy Orders should not agitate or meddle in Tryals of Blood as a thing unlawful for which Reason they are prohibited from cutting off any Member themselves or from giving their Opinions or Judgments that such Punishments ought to be inflicted This Synod we see was not only a Meeting of the Clergy but with them of the Primores Regni
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
which he thinks he demonstrates whereas Mr. W. takes the Curia to have been the only Court where the Tenants could pretend to come ex debito or Ratione Tenurae Mr. Hunt will have it that they and they only came both to the Curia and to Parliament ex debito whatever others might sometimes have been called ex Gratia But then he thinks that he has found a sure means to distinguish which was a Parliament and which was a Curia by the nature of the Summons If it was to all Tenants in Chief by Knights Service generally it made a Curia If the Great Barons had special Summons 't was a Parliament in his Judgment To convince him of his Mistakes in this and other Matters which he might have rectified if he had not undervalued the Study of English Antiquities will not be enough to him unless I likewise shew how convenient it would have been for him to have had more regard to some of those Matters of Fact within that Learning which I conceive I have made good against Dr. Brady and which Mr. Hunt has not yet vouchsafed to confute otherwise than by an ipse dixit First Wherefore I shall first shew him some Mistakes which I am concerned to represent to him And that 1. As to the matter in Issue in relation to what our Government was before the 49th of Hen. 3. 2. As to the manner of summoning the Parliament or General Council of the Kingdom and the Curia whereby he thinks he is able to distinguish the one from the other Secondly I shall shew the Erroniousness of some Suppositions which may have contributed to Mr. Hunt's belief that the Tenants in Chief were the only Members of the Parliament till the 49th Hen. 3. Or that Tenants in Capite only constituted both the Curia and the Parliament according to the fancied different Summons Thirdly I shall shew that he himself in effect grants that more than Tenants in Chief had right to come to the Great Council of the Nation in which the Nation 's Rights were involved Fourthly That even according to his own Notion of Tenure in Capite all Proprietors of Land as such had till the 49th of Hen. 3. right to come to the General Council of the Kingdom Fiftly That whereas he would set aside the Question of what the Government was till the 49th of Hen. 3. as impertinent 1. His own Notion by which he would supplant the Labours of others destroy's it self while mine maintains what he aims at 2. He puts such matter in issue for asserting the present Government as can never be maintained 3. He yields so much of the Fact against me as sets aside the whole Foundation of his Postscript And yet Admit he answers all Objections against his Postscript the Grounds which I go upon are of the most general use 1. The first of his Mistakes which I cannot but animadvert on seems to be wilfull for he renders the matter of late put in Issue as to what our Government was before the 49th of Hen. 3. to be whether the Counties in all this time had their Representatives in Parliament by the Formality of a Choice and as if our Government was according to the Concessions of them who have lately appeared in the defence of it to take it's fate upon this Issue viz. Whether our present House of Commons in the same form as it is now constituted was not in being ever after the Conquest and as if we should yeild that otherwise it were no essential part of our Government I must confess according to his Insinuation that whoever puts it upon this point betrayeth the Cause of the Government but he would do well to name the Man who has done this Disservice This I must confess I have insisted upon that Proprietors of Land as such without consideration of Tenure or collated Dignity have from the time of William the first downwards to the 49th of H. 3. enjoyed a Right of coming to the Great Councils of the Kingdom and could not be bound by any Laws to which they had not consented either in Person or by Representation yielded to sometimes before but not setled till the 49th of Hen. 3. And Mr. Petyt hath satisfied Mr. Hunt himself that the Cities and Boroughs were represented in Parliament from time beyond the account of Records or History But this I desire may be considered that admit there were no Representation of the Free-holders of the Counties settled at any time within the Reign of Hen. III or in any other King's Reignnow appearing and farther that it cannot be shewn that such Free-holders ever came to the General Councils of the Kingdom in their own personal Interest yet however if it appear that such as are now represented by the Knights of the respective Shires gave their Votes to Parliamentary Proceedings by such as they particularly appointed to that end before the 49th of Hen. 3. the present Constitution stands sufficiently established without the least Imputation of Novelty or Usurpation And this were enough for my purpose But since many Arguments induce the belief that before the 49th of Hen. 3. such ordinary Free-holders often came to the General Councils of the Kindom without special Election and Representation I should have given too great Advantage to the Underminers of Common Right if I should have undertaken to prove that the Counties from the time of the reputed Conquest downwards always had their Representatives by the formality of a Choice which Mr. Hunt I thank him would put upon me to prove His second Mistake as to the manner of summoning the Great Council and the Curia wherein he thinks that there lies an essential difference between the two Courts is nearly conjoyned to the first and if it were no mistake would overthrow my Notion for if as he holds only Tenants in Chief made the General Council of the Kingdom as well as the Curia then my belief that others besides such Tenants had right to come to the General Council would be groundless and it might be probable that the different Summons might distinguish the Courts But whereas he fancies it to have been a distinctive Mark or certain Diagnostick of a Parliament where the Summons were personal to the Bishops Earls and the Greater Barons if he had been pleased to have taken the Pains to consult the Records he would have found the Summons to have been as personal to the Wars and consequently to the Curia which besides other Occasions for its sitting was held at the place of Rendezvous to charge Escuage upon the Defaulters as 't was to the General Council which if I prove I hope 't will be yielded that the essential Difference of those two Courts could not arise from the nature of the Summons to the King's Tenants whether all were called in general or some among the rest in particular but from the Persons summoned whether only Tenants in Chief or others
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
that of the Nation British Saxon Danish and Latine almost as unintelligible as either of the other that if they had been all digested into the English that was then spoken we should very little better have understood it than we do the French in which the Laws were afterwards rendred And it is no wonder since a Reduction into order was necessary that the King who was to look to the Execution took care to have them in that Language which himself best understood and from whence issued no Inconvenience the former remaining still in the Language in which they had been written CHAP. III. That Mr. Hunt himself in Effect grants that more than Tenants in Chief had right to come to the Great Council of the Nation in which the Nation 's Rights were involved I Do not deny says he but upon a Change in the Succession to the Crown there might have been in this time extraordinary Conventions of the People to declare their universal Assent for better assuring such Successors discountenancing the real Prince and preserving the Peace as in the Case of William the second Henry the first King Stephen and King John c. with an assent of such an Assembly as this at least King John should only if so have made his Kingdom Tributary to the Pope 1. Here he grants that sometimes more than Tenants in Capite assembled at Council 2. That to some purposes such Assemblies were needful not only to quiet the Minds of the People but to transfer over a National Right For he says if ever there were extraordinary Conventions which he owns to have been in some Cases then King John could have made the Kingdom Tributary only in such a Council viz. an extraordinary Convention Wherefore Government being as he says Rei Publicae Communis Sponsio he grants that the Government here was not absolutely in the King and his Tenants in Chief For if it had they might have disposed of all the Nation 's Rights Wherefore in effect he yields That the Men of that Order were not chosen once for all interpretatively by the People in their Consent to the Government But further if he yields us those Authorities which shew that the People of the Land the Free-holders used to assemble for the declaring their Assent to the Supream Governour with what colour can he set aside those Authorities which mention Assemblies to other purposes in as general Terms If an ordinary Free-holder was under the word Populus at an Election to the Crown or Recognition of a Title how comes the Signification to be restrained at other times Will not Vulgus Plebs Populus minor Laici mediocres and the like denote more than Tenants in Capite as well at one publick Assembly in the some King's Reign as at another Unless a prior Law be shewn which excludes the Commons from one Council but admits them to the other But I cannot find any thing more in this Supposition than a downright begging the Question Indeed if William the first made a Conquest of England so as that he divided out all the Lands of the Kingdom to be held of him in Chief And the Alienees of Tenants in Chief still held immediately of the King neither of which will readily be proved then indeed but not till then the Populus Minor at the Councils would be taken for the Tenants in Chief only But the admittance that the presence or consent of more than Tenants in Chief was at any time needful to any Act of rightful Civil Power wholly destroys the supposition of a Conquest unless we can believe that the conquer'd ought to give Laws to the Conqueror or that notwithstanding any kind of Establishment the dernier resort and Supremacy of Power is always in the People Which is a Notion that would unsetle all Governments making them precarious Whereas he himself tells us No Government can be legally or by any lawful Power chang'd but must remain for ever once establish'd CHAP. IV. That even according to Mr. Hunt's Notion of Tenure in Capite all Proprietors of Land as such had till the 49th of H. 3. right to come to Parliament THis though never so strange I think will be granted me that he does if he makes all the Free-holders of the Kingdom Tenants in Capite per Baroniam He supposes that the whole Kingdom was upon the matter turn'd into one great Mannor by William the First all Men made his Tenants And that all the great Possessions by which he must mean the Mannors of which others held were made Baronies Now this Feudal Baronage he says was 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 Since he uses this as a Proof of the Multiplication of Baronies according to the Argument Baron-Service was indivisible Thus every Proprietor as he had part of the divided Fee was part of the Baronage and consequently If all the Baronage both Spiritual and Temporal de jure ought to have Summons now to Parliament without respect to Estate or Tenure there would be a great many Pretenders But to be sure when all the Baronage were summoned antiently these inferior Tenants came by his own Rule as owing the Service of Barons and so ratione Tenurae were Barones Regni But the Baronage of England having been always in his Opinion the Lords Spiritual and Temporal and Nobility having been Foudal or because of the Feud the Burgesses being all according to him till about the time of H. 3. under Tenure by Baronage were as good Lords as the best And why were not honest Free-holders so too as well as Traders most of them then 't is likely Mechanicks CHAP. V. Whereas he would set aside the Questions of what the Government was till 49th of H. 3. as impertinent 1. His own Notion by which he would supplant the Labours of others destroys it self while mine maintains what he aims at 2. He puts such matter in Issue for asserting the present Government as can never be maintained 3. He yeilds so much of the Fact against me as sets aside the whole Foundation of his Postscript And yet admit he answers all Objections against his Postscript the Grounds which I go upon are of the most General Use. FOr preventing the Worlds being troubl'd with impertinent Labours and to divert those that thus employ themselves to Undertakings more useful to the Publick advantagious to themselves he thought fit to tell us that the Parliament was always materially the same But we are at a loss to know what he means by materially the same For 't is manifest that according to his Notion if the Government were from the time of our Dispute always in one it would have been materially the same as 't is now and
yet he will not allow the Legislative Power to be in one here Every Government says he is the Representative of the People in what they are to be governed by it by their consent to it in the first erecting thereof they do trust their Governours with the Rule and Order of their Lives and Estates for the Common-Weal This seems to be his meaning of materially the same as 't is brought to shew that 't is not needful in order to the maintaining the present right of the Commons to shew That the Counties in all this time had their Representatives in Parliament by the formality of a Choice Which no Man that I know of has of late laboured to prove But if this be his meaning of materially the same then all Governments are materially the same Whereas they may be so formally as founded in the consent of the People which he presupposes But if William the First was an absolute Conqueror as he all along yeilds to Dr. Brady where was the consent of the People to his Government And how can a Government by consent now of constituent parts different from what he thinks ours was at the first Erection by the Conquest be either materially or formally the same with such a Government by Conquest But we must seek further for his meaning in materially the same He tells us the Parliament and the Curia Regis were materially the same that is as one would think there consisted of the same Members the only difference being laid to be in the nature of the Summons And yet he tells us that the ancient Burroughs sent Members to Parliament but that such were not Suitors to the Curia Regis How then were these materially the same Thus 't is plain that he has laid no manner of Foundation for our Government by King Lords and Commons or by King and three States which he takes to have been the Eâ—…entials of our Government from the Conquest but what himself undermines Whereas what I go upon prevents all manner of Pretences for unhinging of it and is the same in effect with what the Great Fortescue observed in the time of H. 6. Et in omnibus Nationum harum Regum earum temporibus regnum illud eisdem quibus jam regiter consuetudinibus continuè regulatum est quae si non optimae extitissent aliqui illorum justitiâ ratione vel affectione concitati eas mut assent Indeed this Assertion of that famous Chancellor has been much exploded by those who think that the altering of some Laws or Customs is a change of the Government And therefore say that he was greatly mistaken because many old Customs have been abolish'd Whereas he certainly meant it of the Fundamental Constitution Which as far as ever I could learn was and is that every Proprietor of Land especially should in the General Council of the Kingdom consent to the making those Laws under which they were to Live In the time of the Confessor as appears in the Transcript of his Laws there was a Folcmote or General Assembly of the People of all the Counties of England which was to be held once a Year on the Kalends of May to treat of all Matters of State and Publick Concern the very Law for such Assembly was received and confirmed in the 4th of William the First So that then by Law and of Right whatever was the Fact the People of all the Counties of England that is all the Members of the County Courts the Free-holders were to meet in a Great Council or Parliament as we now call it Admit that this is to be taken of every County respectively which were to make as many distinct Governments as Counties still the Adunatio Conciliorum or Calling together of the Counties and Hundreds as often as there was need which H. the â—…st promis'd by his Charter would come to the same thing And that all the Members of the several County Courts were Members of the Great or General Council and came accordingly if they pleased Not to mention the several Authorities by me formerly insisted on I conceive may appear by comparing two Authors of undoubted Credit and sufficient Antiquity who shew what the Great Council was in the time of Henry the second In the 16 of Henry the second that King held his Easter Court Baron at Windsor as Bromton shews us Rer tenuit Curiam suam in solemnitate Paschali Thither indeed were flock't most of the Nobility fere omnes Regni Anglae Episcopii Magnates But this being a Curia de more or an ordinary Court which no more than Tenants in Chief were obliged to take notice of nothing of universal Obligation could then be Establish'd Wherefore from hence the King went to London where as that Historian says de Coronatione Filij sui Henrici majores Regui sui Statutis magnum celebravit Concilium Gervasius who lived in that very time acquaints us particularly with the Summons and Appearance thereupon Convenerunt die Statuto ex mandato Regis ad Londoniam totius Angliae Episcopi Abbates Comites Barones Vice-comites Praepositi Aldermanni cum Fide-iussoribus suis. There assembled at London according to the King's Summons the Bishops Abbots Sheriffs the Heads of Hundreds and of Tythings with all the Frank-pledges throughout England unless the Fide-jussores Answer to the Manucaptores of which immediately If this take not in all the Free-holders of England I know not what will for he that was within no free-pledge or was no Fide-jussor was either an Out-Law or not his own Man but his that was to be answerable for him But every Master of a Family or Free-holder that was within the Protection of the Laws was one of the Frank-pledges And indeed Bronton tells us in express Terms that all the Libere sui Regni tenentes all the Free-holders of the Kingdom were there for they all swore Allegiance to the young King as well as to the Father Omnes Comites Barones liberos Regni sui tenentes devenire homines novi Regis Filij sui sibique super reliquias sanctorum Ligeantias Fidelitates jurare Fidelitate semper nihilominus suâ salvâ But if the Fidejussores mentioned in Gervasius were no more than the Manucaptores which used to answer for the Appearance of them that were chose to represent the Counties Cities and Boroughs in Parliament then here is positive proof of such Representation of the Commons as was in the times of Edw. I. Edw. II. and so downwards Yet 't is not improbable that the Pledges or Manucaptors for the Knights Citizens and Burgesses chose to parliament were introduced long after this time instead of the Fidejussors or Frank-pledges when that admirable ancient Polity about Frank-pledges became impracticable and was discontinued or broken through the general Corruption of Manners which rendred it impossible for whole Neighbourhoods to answer for
of charging or at least as to the Proportion but they having been at Parliament 26 E. 1. which was but eight Years before by Representatives of their own not of the County in general it shews how they had been taxt totis retroactis temporibus But besides the Charters of Counts Palatine erecting Corporations there were others granted by some who were particularly impowered to that purpose or however they might have been confirmed by the King afterwards But I shall give an Example of a Corporation raised by virtne of such a Power given by the King and confirmed afterwards Thurstinus Dei Gratiâ sciatis me dedisse concessisse Concilio Capituli Eborac Beverlac Concilio meorum Faronum meâ Cartâ confirmasse hominibus de Beverlaco omnes libertates iisdem legibus quibus ulli de Eborac habent in suâ Civitate praeterea enim non lateat vos quòd Dominus H. Rex noster concessit nobis potestatem faciendi de bonâ voluntate suâ sua Chartâ confirmavit Statuta nostra Leges nostras juxta formam Burgensium de Eborac c. H. Rex Angliae c. Sciatis me concessisse dedisse hâc Chartâ mea confirmasse Hominibus de Beverlaco liberum Burgagium secundum libertates Leges Consuetudines Burgens de Eboraco suam gildam Mercatorum cum placitis suis Feloneo cum omnibus liberis consuetudinibus libertatibus suis cum omnibus rebus sicut Thurstinus Archiepiscopus ea iis dedit c. There is another Confirmation by King Henry of the Charter by Thurstan and also William Arch-bishop of York to the same free-Borough And also another of King Richard wherein he mentions the Confirmation of the Bishop's Charters by his Grand-Father Tenentes de Villâ Beverlaci in auxiliis tam Regi quam Primogenitoribus cum Communitate praedict Comitatus semper hactenus non cum Communitate Civitatum Burgorum taxari contribuere consuevisse I need not go to prove that these came by reason of their Property in Land they being either the Kings Tenants or the Tenants of Subjects And whatever Priviledges their Interest might prevail with them to suffer to Traders amongst them 't is certain they were granted to the Free-holders 2. But then there were Corporations by Prescription where since now all the Free-men chuse it may seem more difficult to prove that they came upon the account of Property in Land Many of these received Charters in Confirmation of their Priviledges yet if they were taken away would remain good Corporations at the Common Law I may instance in London of which there is this memorable Passage in the Confessors Laws Debet etiam in London quae caput est regni legum semper Curia Domini Regis singulis septimanis die Lunae Hustingis sedere teneri And amongst other things quae huc usque consuetudines suas unâ semper inviolabilitate conservat King John's Charter provides for the ancient Liberties and free Customs of the City of London in particular and of all other Cities Burroughs Vills and Ports and some Charters of other Kings may seem more like new Grants than Confirmations of the old Priviledges But thus much is certain that those Cities Boroughs and Vills which had their Liberties and free Customs confirm'd by Magna Charta 9. H. 3. which was in the same Terms as to that part with King John's were Cities Burroughs and Vills at the Common Law And that we may frame an Idea of these we must have recourse to the old Saxon Laws By them it should seem that there was a greater equality amongst the Masters of Families than afterwards and the Law of Frank-pledges was well suited to such equality when no Man was above giving that Security to the Government upon which St. Edward's Law says Est quaedam summa maxima Securitas per quam omnes Statu firmissimo sustinentur ut unusquisque stabiliet se sub fidejussionis Securitate And as every City or Burrough was a Vill that being the Genus to both as well as an inferior Species the Law provided quod de omnibus Villis sub decimali fidejussione debebant esse universi of these Vills they that had special Priviledges Markets Fairs and the like were free Burroughs And as the Vills so the Burroughs at the Common Law were made up of a certain number of Free-men whose Property might extend far into the Counties These at first were under Tythings Afterwards as in the time of H. 1. Property falling into more Hands within the same Tract of Land or Precinct we find them answering for one another by Twentys the Headburrough was Aldermannus or Praepositus Villae or Burgi Every one of these as a Fidejussor I take it came anciently to the General Council of the Kingdom in his own Person if he pleas'd But very frequently they might intrust their Aldermannus or Headburrough to answer for them But the Franck-pledges discontinuing they might accustom themselves to electing of Members sometimes one sometimes more upon every Summons to Parliament And thereupon in every Burrough at the Common Law the Elections are by all the Free-men which answer to the Franck-pledges formerly except that 't is likely of Old all the Franck-pledges were very considerable Free-holders But still these Burroughs could not take in all the Free-holders nor yet the Vills as anciently consisting of clusters of Inhabitants But if any Man grew wealthy he loved to live by himself in some Castle or large Seat which he might build abroad in the Country Such look'd upon themselves to be too great to give Sureties for their good Behaviour as those that liv'd in Clusters did And by the time of Edw. the First Chivalers and their Children And I take it every considerable Free-holder was a Chivaler or Gentleman were exempted from the Law of Franck-pledges Doubtless every one of these as the Possessionati in Poland came to the General Councils in Person As the Lands were further improved and a free increase of Natures Stores made Men luxurious Great Men put themselves into Straits and were often obliged to sell their Inheritances and to manumit their Servants or release Servile Tenures and the Off-spring of these who themselves were Cheorls or Pesants were according to the Saxon Law which probably enough continued long after the Norman's Acquisition enobled or became Gentlemen by the Descent of five Hides of Land to the third or fourth Generation Thus together with the divisions of Lands amongst the several Children of great Proprietors and subdivisions downwards as the Families branch'd out the Numbers of Free-holders became by King Iohn's time little less than infinite tota regni Nobilitas quasi sub numero non cadebat And this sort of Nobility for the most part to be sure look'd upon themselves to be above Citizens or Burgers and scorn'd to be
within Frank-pledges and be bound with Sureties to their good Behaviour Which Dr. Brady tells us and rightly enough if he speak of the Time of Edw. 1. was only for the ordinary Free-men or the Bulk and multitude of the Free-men or small Free-holders All that look'd upon themselves as Gentlemen at the least were without any manner of Representation and wherever they were interested appeared in Person and sometimes in very disorderly Multitudes Some sensible of the inconvenience of it and expence and trouble to themselves of their free Choice became incorporated by Charter as aforesaid being either the Kings Tenants or some inferiour Lords or it may be the Tenants of several Mannors joining together and their coming to Parliament or as the Burrough of St. Alban's pleads pro omnibus serviciis faciendis was a consequent upon their Incorporation Free-hold I take it was the occasion of all this though afterwards Traders might be admitted to Priviledges amongst them The Traders and Free-holders within Cities or Boroughs sent their Delegates whilst here as in Poland the Possessionati Men living upon their Lands in the Counties came to the General Councils in their own Persons Thus it was here till the 49th of H. the 3d as I think the Authorities formerly insisted on by Mr. Petyt in behalf of the Citizens and Burgesses and by me for the Possessionati in the Counties sufficiently Warrant Wherefore the Alteration which was made in the Government in the 49th of H. the 3d. if any were then made was the calling out some of these Proprietors Earones Comitatus to come in their own Persons and putting a Representation upon the rest which was most likely to be done by the Perswasion and Influence of the King though with the consent of the People And therefore I must say 't is most probable that what is by Mr. Cambden's Author transmitted to us as done a little before the Death of H. the 3d must have been some years af-the 49th and the Kings Victory at Evesham over the Great Barons whom he curb'd by the Less the Commons Which prevail'd on his side by whose Assistance he depriv'd many great Men of a judicial Power in Parliament and of the right to special Summons while the Commons had their Power preserved in their Representatives they were all interested in the Legislature as before But all the Great Barons had not their former Interest in the Supream Judicature and yet this variation in respect of the Great Lords was no change of the outward frame of the Government but only a diminution of the Priviledges of some particular Men. And though the bringing in Representations where no Representations were before altered the Frame and Appearance of the Government yet it did not the Constitution and fundamental Interest of Proprietors of Land with whom the Ballance of Power has ever been in this Nation the Foundation is and was the same like the same Soul animating the same Body when 't is greater and when by reason of Tumults and Seditions as we may call them in the Spirits 't is wasted from its Corpulency and thereby often brought to a more assured state of Health than ever before This more healthful State in a contracted Body of Proprietors of Land I yeild to have been setled in the Reign of H. the 3d. It happening that there were Writs to that Purpose just in the 49th 't is concluded that then it was first begun Whereas by the same Argument 't was in the 38th when two for every County were summoned to Parliament Vice omnium singulorum But if I should confine my self to Authorities within the time of the first Edward immediate Successor to H. the 3d I doubt not but there were enough to satisfy any unbyass'd Reader that the Commons such as are now represented by Knights Citizens and Burgesses had before the 49th of H. the 3d Shares or Votes in making of Laws for the Government of the Kingdom and had communication in Affairs of State otherwise then as represented by the Tenants in Capite notwithstanding Dr. Brady's Affirmation to the contrary In the 24th of E. 1. the Earls Barons Knights and others of the Kingdom which others was then and afterwards meant of the Commons of the Cities and Boroughs gave a Subsidy Sicut aliàs nobis progenitoribus nostris Regibus Angliae And sure Hen. the 3d could be but one Progenitor so that the Farones Minores the Free-holders of Land which ever since the 49th or some other Year of Hen. the 3ds Reign were represented by the Knights of the Counties who were not in those times to be sure confined to Knights by Tenure or Dubbing And the Commons of Cities and Burroughs at the least from within the Reign of King John to whom Hen. the 3d. immediately succeeded were Members of Parliament being Parties to Grants there made And omitting the Prescription of the Burrough of St. Albanes from within the time of the Progenitors of Edward the first to use but one Authority not mentioned in either of my Tracts In the 28 of E. 1. the Knights Citizens and Burgesses had been summoned to the Parliament at Westminster Nobiscum de diversis negotiis nos Populum Regni specialiter tangentibus tractatur and Writs issued out for their reasonable Expences prout aliis consuevit in casu consimili 1. Upon which 't is observable that de quibusdam arduis which is now in use in the Writs of Summons ought not to be restrained to a few great matters but extends to divers according to the different natures of matters brought before or appearing to them 2. That the Commons had not only an Assent without power of dissenting but they were to treat as well as the Peers 3. That their coming was not a new thing then as if begun but 35 Years ago in the 49th of H. 3. but it was of Custom and legal Prescription so far that it laid an Obligation upon the Subject to contribute to these Expences and surely an Usage of 35 Years would not be a sufficient Charge in Law 4. That though there is no Evidence that Representations for Counties were settled before the 49th of Hen. 3. Yet the Freeholders were often at Parliament by Representation and thence there was ground in reason to occasion the Custom that they should bear the Charges of them that they chose Nay if there were no actual Choice there was tacit Consent from which Custom may arise that those who were willing and at leisure to be at Council should answer for and have Contributions from the rest But let both Dr. Brady and Mr. Hunt consider the Precedents above mentioned of Coventry and Bridgwater which did not hold of the King and yet sent Burgesses to Parliament and let them give a categorical Answer whether they believe that the Majores Barones Regni and omnes alij holding in Capite mentioned in King John's Charter made
not pursue this Author in his Digression touching the ground and reason of the Trial by Peers since our Question is not what the Law may be in other Countries but what the Practice of our own is and of what sort of People those Peers are to be composed That is to say Whether the Jury for the Trial of Bishops shall be composed of Noble-Men or of Commoners In this he confesseth that the Lawyers and those of them who have most searched into Antiquity are of a different Opinion to what he maintains as to this Particular A shrewd Objection I take it this is for every one ought to be credited in his own Art and 't is ten to one the Generality of the Lawyers are rather in the right than Strangers to the Profession or Lawyers of a lower Rank than those great Masters have been But that he may say something he tells you that Mr. Selden not only in that confused Rapsody goes under his name but in his more elaborate second Edition of his Titles of Honour admits the Bishops to be Peers in which he hath corrected and left out the false or doubtful Passages of his first Edition and among the rest that Passage A Bishop shall not be tried by Peers in Capital Crimes What then doth this Omission supersede those Precedents laid down by him in that Rapsody as he calls it which was as much his as the other The leaving out that Passage might be a Neglect in the Printer I am sure 't is no Retractation of what he had said before Neither need I tell this Author how Books come sometimes to be corrupted Secondly He saith some things have been affirmed about this matter with as great Assurance as this is which have not been the constant Practice Coke he saith is positive in his third Instit. p. 30. That a Bishop should not be tried by Peers and in the same Page that a Noble-Man cannot wave his Trial by his Peers and put himself upon the Trial of the Country And doth this Author think the Law to be otherwise Yes he saith in the Record of 4. Edw. 3. That Thomas Lord Berkley put himself upon his Country I have a Transcript of the Record by me which I received from my learned and worthy Friend Mr. Atwood of Greys-Inn but because it is in Latine and agrees with the Abridgment by Sir Robert Cotton and review ed by Mr. Prin I shall not transcribe except two or three Lines Thomas de Barkele Miles venit coram Domino Rege in pleno Parliamento suo c. Cotton 4 E. 3. Numb 16 17. In a Plea of the Crown holden before the King this Parliament Thomas of Berkley Knight was arraigned for the Death of Edw. II. for that the said King was committed to the keeping of the said Thomas and Iohn Mautrevers at the Castle of Thomas at Berkley in Glocestershire where he was murthered Thomas pleads that he was sick at Beudlâ—…y without the said Castle at the Death of the said King and put himself upon the Trial of 12 Knights named in the Record by whom he was acquitted Here we have an Arraignment of Thomas de Berkele Knight in 4 Edw. 3. but none of Thomas Lord Berkele as this Author supposeth In 5 Edw. 3. Numb 15. I find the same Person at the request of the whole Estate discharged by the name of Sir Thomas Berkley so that it seems plain he was then no Peer and consequently no waver of Peerage in 14 Edw. 3. and in 4 Rich. 2. Cot. p. 187. I find him summoned to Parliament not before 14 Edw. 3. When any Noble Man had the Addition of Miles the name of his Barony was generally expressed and the word Dominus annexed Iohn de Beauchamp Militi Domino de Beauchamp 27 Hen. 6. Rob. de Hungerford Mil. Dom. de Moleyns and many others Insomuch that I am confident that in 4 E. 3. Thomas de Berkley had never been summoned and so not inter Barones Majores And the Milites were Tenants in Capite I have at last examined all the parts of this elaborate Treatise in which the Author hath endeavoured with all Art and Industry imaginable to support a declining Cause I have not to my Knowledg left any Argument unconsidered which hath been thought material by this Writer to be urged in defence of that Cause the Maintenance whereof he had undertaken I have been longer I confess in this Discourse than at first I thought to have been but this must be attributed to the Subtilty of my Adversary who by learned Digressions and cunning Insinuations hath indeed clouded the Truth and rendered it less visible to the Eyes of common Readers Notwithstanding what I have said if this Drudgery of being present as Judges in Criminal Cases or in the Trials of Noble-Men in Parliament be the Right of the Lords Spiritual in Parliament If the Embassadours of Christ the Messengers of Peace and the Preachers of Mercy and Reconciliation to God in Christ have more mind to be Executioners of God's strange Work than in what he delights If they delight rather to make Wounds than to bind them up let them enjoy that Burthen according to their Desire But their Pretences to it hitherto have been ineffectual and of late all Power of Judicature in Cases of Blood hath been denied them in several Parliaments by both Houses Neither hath this Author been yet so happy as to have produced any one clear Precedent where they have been present at the Trial and have given Votes for the acquittal or Condemnation of any Noble-Man brought to Judgment in Parliament in Cases of Blood Or that any of their Order have been in such Cases tried by Noble-Men or indeed have desired to be so tried Certainly this Nation together with the most of other Christians in Europe lived under the Papal Communion till the times of Reformation and therefore the Bishops here cannot reasonably be supposed to have enjoyed Priviledges different or greater than those enjoyed by their Fellows in other Places where they had the greatest as well Power as Honour But I think I may with Confidence affirm they were no where allowed to sit Inquisitors of Blood and not only to debate but at their Pleasure to give Sentence in such Cases as Secular Persons in Secular Courts I very well remember that in the Parliament begun here 1640 it was at the beginning thereof hotly debated in the Lords House whether any Bishop might be so much as of a Committee in any Parliamentary Examination in the Case of my Lord Strafford because it was a Case of Blood in which by Law they ought not to meddle the Debate was put off and the Bishops were willing to absent themselves according to the Opinion of one of their own Body and agreeable to the Practice and Usage of the Kingdom being only allowed by the Lords to enter a Protestation saving their Rights in that and